IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 WP(C).No. 34683 of 2008(S) -------------------------- OA.24/2008 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS/ APPLICANTS 2,3 & 10-16: --------------------- 1. V.J.JOSEPH STANLEY, NOW WORKING AS BUSINESS EXECUTIVE AND PUBLIC RELATIONS INSPECTOR (POSTAL), H.P.O., ALAPPUZHA RESIDING AT "GENOVA", VATTAYAL, THIRUVAMPADI P.O., ALAPPUZHA 688 002. 2. A.J.JEEJA ROSE, NOW WORKING AS A.P.M (ACCOUNTS), VAIKOM H.P.O, RESIDING AT THEKKEPALACKAL HOUSE, KATTOOR, KALAVOOR, ALAPPUZHA DISTRICT. 3. L.JAYASREE, NOW WORKING AS A.P.M. (ACCOUNTS) MUVATTUPUZHA H.P.O RESIDING AT "HARISREE", BEHIND KSRTC STAND, HARIPAD. 4. V.SURESH KUMAR, NOW WORKING AS POSTAL ASSISTANT (BCR), H.P.O., KAYAMKULAM RESIDING AT MOMMOOTTIL THARAYIL, S.V.WARD, KAYAMKULAM. 5. S.SARALADEVIKUNJAMMA, OFFICE ASSISTANT, O/O.SUPERINTENDENT OF POST OFFICES, MAVELIKARA DIVISION, RESIDING AT KOTTAKKAL, MANNAR. 6. RADHAMMA M.K., NOW WORKING AS A.P.M. (ACCOUNTS), CHANGANACHERRY H.P.O., RESIDING AT MUZHANGODIL PUTHENVEEDU, KURATHIKAD, THEKKEKARA P.O., MAVELIKKARA 690 107. 7. K.KRISHNAKUMAR, NOW WORKING AS OFFICE ASSISTANT (BCR),O/O.SUPERINTENDENT OF POST OFFICES PATHANAMTHITTA DIVISION, RESIDING AT PUTHENPARAMBIL HOUSE, VANCHITHARA, KOZHENCHERRY P.O., 689 641. WP(C).No. 34683 of 2008 8. K.CHANDRABABU, NOW WORKING AS ACCOUNTANT, ADOOR H.P.O., RESIDING AT 'SARANGI", MELOODE P.O., ADOOR 691 523. 9. V.R.VIJAYAKUMAR, NOW WORKING AS POSTAL ASSISTANT (BCR), CHENGANNOOR H.P.O., RESIDING AT VIJAYAVILASAM, KOTTA P.O., KARACKAD, PIN 689 504. BY ADV. SRI.B.MANIMOHAN RESPONDENTS/ RESPONDENTS: --------------------------- 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF COMMUNICATION AND I.T, NEW DELHI. 2. THE DIRECTOR GENERAL OF POSTS, DEPARTMENT OF POSTS, DAK BHAVAN, NEW DELHI 110001. 3. THE CHIEF POST MASTER GENERAL, KERALA CIRCLE, TRIVANDRUM. 4. THE POST MASTER GENERAL, CENTRAL REGION, KOCHI-682 018. 5. THE SUPERINTENDENT OF POST OFFICES, ALAPPUZHA DIVISION. 6. SUPERINTENDENT OF POST OFFICES, MAVELIKKARA DIVISION, MAVELIKKARA. 7. SUPERINTENDENT OF POST OFFICES, PATHANAMTHITTA DIVISION, PATHANAMTHITTA. 8. SUPERINTENDENT OF POST OFFICES, THIRUVALLA DIVISION, THIRUVALLA. 9. CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, REPRESENTED BY REGISTRAR, CAT BUILDING, KALOOR, ERNAKULAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ---------------------------------------- W.P.(C) No. 34683 OF 2008 ---------------------------------------- Dated this the 1st day of December, 2008 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The writ petitioners were the applicants in O.A.No.24/2008 of the Central Administrative Tribunal, Ernakulam Bench. They were candidates seeking admission to the Limited Departmental Competitive Examination for promotion to the cadre of Postal Service Group 'B' for the accumulated vacancies for the period from 2003 to 2006 is held on 16th and 17th of February, 2008. They were held to be ineligible to attend the above examination by the competent authority. The communications received in this regard were under challenge in the O.A. For convenient reference, we extract the contents of one of the impugned letters given to a candidate by the Senior Superintendent of Post Office, Kollam Division, Kollam, which reads as follows: “It has been intimated from the Office of the Chief Post Master General, Kerala Circle, Thiruvananthapuram-695033 that your application for admission to the above examination has not been considered as you are not in Lower Selection Grade (LSG) with 5 years of service as on 1.1.2006” W.P.(C) No.34683/2008 2 2. Similar communications were served on others also. In fact, all the petitioners/applicants were promoted to Lower Selection Grade under the Time Bound One Promotion Scheme (TBOP Scheme) and they were drawing the salary attached to that post also. Their salary was also fixed in the scale of pay under Rule 22 (I)(a)(1) of the Fundamental Rules. The orders posting them described the same as promotion. Therefore, though they were promoted under the TBOP Scheme, they submit, they should have been treated as regular promotees to the cadre of Lower Selection Grade (LSG). If that be so, they have admittedly more than 5 years service as on 1.1.2006 and therefore they were eligible to take part in the Limited Competitive Examination for promotion. But, the respondents took the view that they are not regular promotees to the cadre of LSG. Aggrieved by the stand of the respondents, in the above quoted letter and similar letters, they approached the C.A.T. Though the C.A.T. initially granted interim orders permitting them to participate in the examination, the Original Application was finally heard and dismissed by the Tribunal by Ext.P6 order. The Tribunal followed the Full Bench decision of the Hyderabad W.P.(C) No.34683/2008 3 Bench and dismissed the Original Application. The relevant portion of the said order reads as follows: “17. From the facts as detailed above, we are of the firm view that controversy involved in the matter has already been settled by the order of the Full Bench (Hyderabad) dated 6.4.2005 in the case of Addul Gaffer and others (supra). It has been held in unequivocal terms in that order that TBOP and BCR schemes are only financial upgradations in the scales and not promotions. The Chennai Bench which passed the order in K.Perumal's case (supra) itself vide order in P.Rajendran's case (supra) made it “clear that the official, in the cadre of TBOP or BCR without being promoted to LSG either notionally or regularly are not eligible to appear” in the examination. In the above facts and circumstances of the case, these OAs fail and accordingly they are dismissed. The interim order passed in these cases provisionally permitting the applicants to appear for the Postal Services Group 'B' Examination also stands vacated, if the Examination has not already been held/the applicants have already appeared in the Examination.” 3. The learned counsel for the writ petitioners submitted that the above view taken by the C.A.T. is plainly untenable. The decision of the Hyderabad Bench is at variance with the decisions of other Benches of the Tribunal. Further, ever since the introduction of TBOP, the promotees under the scheme were treated as regular promotees for the purpose of Limited W.P.(C) No.34683/2008 4 Departmental Competitive Examination for promotion to Group 'B' cadre. So, the present stand of the respondents violates their fundamental rights including those under Article 21 of the Constitution of India. 4. We notice that the respondents have mainly relied on a clarification issued by the Ministry of Communications, Department of Posts, Dak Bhavan, Sansad Marg on 23.4.2001, in support of the stand taken by them. The said communication is extracted in paragraph 13 of Ext.P6 order of the C.A.T. When there is some ambiguity in the rule, it is always permissible for the Executive Government to issue such clarifications. The petitioners have chosen not to challenge that clarification. Going by that clarification, the petitioners cannot be treated as those, who got regular promotion to L.S.G. Further, independent of the decisions of other Benches of the C.A.T., we are of the view that for regular promotion to Group 'B', the incumbent must be a regular promotee in the feeder category. The promotees under the TBOP Scheme are promoted without any reference to cadre strength. Only on the basis of length of service, the posts held by them are upgraded and they are granted the scale of pay of W.P.(C) No.34683/2008 5 higher post. Regular promotion can be ordered, only, when a vacancy arises in the cadre post. So, we are of the view that the stand taken by the respondents is in accordance with the general principles governing regular promotion. The fact that they have earlier treated the promotees under the TBOP Scheme also as regular promotees does not affect their power to correct themselves and take a stand in accordance with law. It is a settled position in law that this Court cannot ask the Executive Government to repeat an illegality for the sake of satisfying the requirement of Article 14 of the Constitution of India. The action taken, in accordance with the Recruitment Rule for promotion cannot be described as an action violative of fundamental rights of the petitioners. 5. We notice that this Court has already held in W.P.(C) No.30447/2007 that promotion under TBOP scheme cannot be treated as regular promotion. SLP(C) No.16251/2008 filed against that judgment was dismissed by the Apex Court as per order dated. 22.9.2008. W.P.(C) No.34683/2008 6 In the result, we find no reason to interfere with the impugned order. Accordingly, this writ petition is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (M.C.HARI RANI, JUDGE) ps