THE HON'BLE SMT. JUSTICE T. MEENA KUMARI & THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA W.P. NO.4500 of 2001 ORDER: (Per. Hon’ble Smt. Justice T. Meena Kumari) This Writ Petition is filed seeking a Writ of Mandamus declaring the action of respondents 2 and 3 in treating the petitioner as provisional appointee and also not condoning the break of service from 18.9.1997 A.N. to 20.9.1997 A.N caused due to the action of the 2nd respondent and also the order of the Central Administrative Tribunal, Hyderabad dated 16.03.1999 in O.A.No.1608 of 1997 and confirmed in the order dated 4.4.2000, as illegal and arbitrary and for a consequential direction to the respondents 2 and 3 to treat the petitioner as having been regularly selected as Branch Post Master of Chintopu post office, Nellore District and continue his services as regular candidate by condoning the break of 3 days service from 18.9.1997 to 20.9.1997. The case of the petitioner is that he was appointed as Branch Post Master, Chintopu Post office in Nellore Division on provisional basis on 11.2.1993 A.N. by the 2nd respondent. Subsequently, the 2nd respondent has issued a notification dated 12.10.1993 calling for applications for the post of Extra Departmental Branch Post Master from the eligible candidates. The petitioner had also applied in response to that notification and he was selected for the said post and he was imparted requisite training and he has been working as regular Branch Post Master, Chintopu Post office with effect from 11.12.1993. While so, on the oral orders of the respondents 2 and 3, the petitioner was compelled to hand over the charge to the 4th respondent on 18.9.1997 A.N and again he was asked to take the charge on the A.N. of 20.9.1997. Thus the respondents had caused break of 2 days in service. Challenging the said action of the respondents, the petitioner filed O.A.No.1608 of 1997 before the Central Administrative Tribunal, Hyderabad. The Tribunal by its order dated 16.3.1999 while upholding the action of the respondents held that the petitioner was only a provisional appointee and has to be continued on that basis. Thereafter, the petitioner filed an application for review of the order dated 16.3.1999 passed in O.A.No.1608 of 1997. Since there was a delay of 207 days in filing the said application, the petitioner filed M.A.No.995 of 1999 seeking to condone the said delay. However, the Tribunal by its order dated 4.4.2000 dismissed the said application on the ground that the petitioner has not made out a case for condoning the said delay. Aggrieved by the aforesaid orders of the Tribunal, the petitioner filed the present writ petition. The respondents filed counter-affidavit contending that due to reinstatement of the 4th respondent on 18.9.1997 A.N., in obedience to the directions of Central Administrative Tribunal in its order dated 20.2.1997 in O.A.No.189 of 1994, the petitioner was discharged from the post of Branch Post Master, Chintopu with effect from 18.9.1997 A.N. and that the petitioner was again taken to duty as Branch Post Master, Chintopu when the 4th respondent was placed under off duty with effect from 20.9.1997 A.N. and thus the petitioner has been continuing to work as Branch Post Master from 20.9.1997 A.N. till now. It is further contended that provisional appointment orders were issued to the petitioner on 8.9.1999 and regular/permanent orders will be issued after verifying the character and antecedents of the petitioner. It is further contended that as there is a break of two days in service for the petitioner, he has to be given regular appointment orders with effect from 20.9.1997 A.N. after verifying the character and antecedents of the petitioner. Therefore, the respondents prayed for dismissal of the writ petition. A rejoinder has been filed on behalf of the petitioner stating that when the respondents intended to implement the order of the Central Administrative Tribunal dated 20.2.1997 passed in O.A.No.189 of 1994, wherein the petitioner was not impleaded nor was he put on notice, it is the duty of the respondents to issue show cause notice to the petitioner before compelling him to take a break of service in order to accommodate the 4th respondent. It is stated that provisional arrangement which was effective from 11.2.1993 came to an end once the petitioner was selected as regular Branch Post Master from 1.12.1993. It is further stated that the petitioner was appointed to the post of EDBPM after adopting due process of selection as per rules. It is further stated that if it is necessary to continue the provisional arrangement till the case of earlier EDBPM is finally disposed of, there is no justification for issuing of notification for selecting a regular candidate. When the Central Administrative Tribunal gave liberty to the respondents either to keep the 4th respondent under suspension or on duty, the only course available to the respondents is to keep the 4th respondent under suspension because the Tribunal has not suspended nor set aside the notification which was already brought to logical conclusion and the selected candidate assumed the charge on 20.2.1997. The learned counsel for the petitioner made his contentions more or less on the same lines as averred in the affidavit filed along with the writ petition and in the rejoinder stating that the respondents have failed to issue appointment order to the petitioner while they are admitting the fact of his selection through a notification and as long as the legality of the said notification was not challenged, the notification and the selection process came to be acquired legal status and the selection cannot be called as provisional unless the previous incumbent challenged the notification and the selection process and also the result in pursuant to that. It is further submitted that the respondents have no justification in refusing to treat the period of service rendered from 1.12.1993 as regular service. Having heard the submissions made by the learned counsel on either side and having perused the orders of the Tribunal and also the material available on record, we are of the view that the Tribunal rightly held that when the services of the regular candidate were not finally terminated in accordance with the rules, no fresh appointment could be made as per the ED service rules. Admittedly the petitioner joined duty in 1993 provisionally and when his appointment was made, the services of earlier regular EDBPM candidate was not terminated in accordance with the rules and the case of the regular EDBPM was not finally disposed of. In this background, the case of the petitioner cannot be accepted. Hence the Tribunal rightly held that the petitioner was only a provisional appointee and he has to be continued on that basis. Since the petitioner herein had completed more than 3 years of service, he is eligible to be considered for regular absorption as ED staff in accordance with the letter of D.G., P & T dated 23.02.1979. Therefore, the Tribunal rightly held that the petitioner shall submit a representation for regularizing his services in accordance with the rules and on such representation the respondents shall consider the same and pass appropriate orders in accordance with rules. The Tribunal further held that the petitioner shall be continued as a provisional candidate till the case of the 4th respondent has been finally disposed of. Hence, we do not find any illegality in the orders impugned in this Writ Petition. The Writ Petition is accordingly dismissed. No costs. --------------------------------- Justice T. Meena Kumari ------------------------------------------ Justice Gopala Krishna Tamada 16.08.2010 Gsn.