IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 WP(C).No. 29232 of 2009(S) -------------------------- OA.848/2006 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER: --------------- NIRMALA.K., D/O. VELAPPU, AGED 33 YEARS, GDS BPM, AYIROOR.P.O., KALLATT, VELIANCODE, PONNANI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENTS: --------------- 1. THE UNION OF INDIA, REPRESENTE BY MINISTRY OF COMMUNICATIONS, NEW DELHI. 2. THE SUB DIVISIONAL INSPECTOR, PONNANI SUB DIVISION, PONNANI, MALAPPURAM. 3. THE SUOPERINTENDENT OF POST OFFICES TIRUR DIVISION, MALAPPURAM. 4. CHIEF POST MASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM. 5. POST MASTER GENERAL NORTHERN REGION, CALICUT. ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.SOLICITOR FOR R1 TO R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF O.A. NO.848/2006. P2: TRUE COPY OF REPLY STATEMENT. P3: TRUE COPY OF REPLY STATEMENT. P4: TRUE COPY OF ORDER DT.22.6.2009 IN O.A. 848/2006. TRUE COPY P.S. TO JUDGE C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. .................................................................... W.P.(C) No.29232 of 2009 .................................................................... Dated this the 30th day of August, 2010. JUDGMENT Ramachandran Nair, J. W.P.(C) is filed challenging the order of the C.A.T. in the O.A. filed by the petitioner challenging Annexure-A1 Notification issued by the third respondent for appointment of Gramin Dak Sevak (GDS) in Ayiroor Post Office in Malappuram District. The vacancy arose on account of voluntary retirement of the regular incumbent in 2004. Considering the fact that petitioner was working as substitute Post Master as and when the previous incumbent was continuing, the petitioner was appointed on a provisional basis after retirement of the previous incumbent from 23.4.2004. For the last over six years, the petitioner is working as the Post Master on a provisional basis. While so, third respondent issued Annexure-A1 notification inviting application for appointment of Post Master in the very same Post Office on a provisional basis, against which O.A. was filed. The Tribunal upheld the notification for the reason that department is W.P.(C) 29232/2009 2 entitled to select a person after calling for applications. However, petitioner's case is that petitioner is working on a provisional basis and should not be displaced for appointment of another person on a provisional basis. Petitioner banks on her experience as her eligibility for continuance. The Assistant Solicitor General Sri.T.P.M.Ibrahim Khan appearing for the respondents contended that the petitioner was not appointed by adopting any selection procedure, but was appointed only on an adhoc basis and as a substitute and so much so, department is entitled to make appointment by following the procedure for selection which is inviting application and selection of candidate on competitive basis. Even though we find force in the contention of the Assistant Solicitor General that department is entitled to fill up the vacancy by adopting the selection procedure, we notice that the appointment proposed under Annexure-A1 is not a regular one. We do not find any justification for the department to substitute the petitioner with another provisional hand because petitioner admittedly eligible for the post was appointed as a substitute even during the service of the previous Post Master and after retirement of the said Post Master, the W.P.(C) 29232/2009 3 petitioner was allowed to continue and is working as Post Master on provisional basis for the last six years. There is also force in the contention of the petitioner that her long experience will give her an edge over others even in a regular selection procedure. Counsel for the petitioner has also relied on relevant Rule in this regard where experience is an additional qualification for selection. In this context Assistant Solicitor General submitted that even though experience will be counted, it is a matter to be considered whether rival applicants also have experience comparable to the petitioner or more than her. We do not think there is any need for us to consider all these matters at this stage because these are issues to be considered when the post is filled up on a regular basis. We, therefore, allow the W.P.(C) by vacating Annexure-A1 Notification which is for provisional appointment to substitute a person already appointed and working on provisional basis but leaving freedom to the third respondent to make appointment on regular basis, if they propose so, in accordance with the Rules and petitioner can also make application raising her claim of experience. We also make it clear that if a person with experience is entitled to W.P.(C) 29232/2009 4 appointment without undergoing any selection process, it is for the petitioner to make an application for regularisation of the post she is holding on provisional basis, if the Rules permit it. C.N.RAMACHANDRAN NAIR Judge K.SURENDRA MOHAN Judge pms