IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 WP(C).No. 10600 of 2006(S) -------------------------- OA.274/2004 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER: --------------- B. SUJATHA KUMARI, W/O. RAJAN, AGED 40 YEARS, POSTMAN (DEPARTMENTAL STAMP VENDOR) SUB POST OFFICE, PANDALAM, RESIDING AT PUSHPALAYAM MURIPPARAMURI, CHENNIRKKARA, KOZHANCHERRY TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.M.R.HARIRAJ SMT.REKHA VASUDEVAN SRI.SURAJ.S SRI.P.A.KUMARAN SMT.VINEETHA B. SRI.JAMES ABRAHAM (VILAYAKATTU) SMT.VINEETHA B. SRI.JAMES ABRAHAM (VILAYAKATTU) SRI.P.ABANI SRI.K.R.AVINASH(KUNNATH) RESPONDENT(S): --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, DEPARTMENT OF POSTS, MINISTRY OF COMMUNICATIONS, NEW DELHI. 2. THE ASSISANT DIRECTOR OF POSTS, DEPARTMENT OF POSTS, NEW DELHI. 3. THE CHIEF POST MASTER GENERAL, KERALA CIRCLE, DEPARTMENT OF POSTS, NEW DELHI. 4. THE SUPERINTENDENT OF POST OFFICES, PATHANAMTHITTA DIVISION, PATHANAMTHITTA. SRI. P.PARAMESWARAN NAIR, ASST. SOLICITOR GENERAL FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 10600/2006 APPENDIX PETITIONER'S EXTS. EXT.P1 - TRUE COPY OF FINAL ORDER DATED 23.7.1999 IN O.A.975/1997 BY THE ERNAKULAM BENCH OF THE CENTRAL ADMINISTRATIVE TRIBUNAL. EXT.P2 - TRUE COPY OF DEPARTMENT OF POST (PA & SA) RECRUITMENT RULES, 1990. \ EXT.P3 - TRUE COPY OF DEPARTMENT OF POST (PA & SA) RECRUITMENT (AMENDMENT) RULES, 1991. EXT.P4 - TRUE COPY OF ORDER NO.37-63/98-SPB I (Pt) DATED 20.8.1999 ISSUED BY THE 2ND RESPONDENT. EXT.P5 - TRUE COPY OF FINAL ORDER DATED 12.2.2002 IN O.A. 1000/2001 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P6 - TRUE COPY OF GAZETTE NOTIFICATION ALONG WITH THE COVERING LETTER DATED 25.1.2002. EXT.P7 - TRUE COPY OF ORDER NO.RECTT/10/2004 DATED 3.1.2004 ISSUED BY THE CIRCLE OFFICE. EXT.P8 - TRUE COPY OF ORDER NO.B3/40/EXAM/2004 DATED 29.3.2004 ISSUED BY THE 4TH RESPONDENT. EXT.P9 - TRUE COPY OF ORIGINAL APPLICATION WITHOUT ANNEXURES FILED BEFORE THE TRIBUNAL. EXT.P10 - TRUE COPY OF REPLY STATEMENT FILED BY THE RESPONDENTS. EXT.P11 - TRUE COPY OF ARGUMENT NOTES FILED BY THE COUNSEL FOR THE PETITIONER. EXT.P12 - TRUE COPY OF FINAL ORDER DATED 14.2.2006 IN O.A.274/2004 OF THE HONOURABLE TRIBUNAL. EXT.P13 - TRUE COPY OF ORDER NO.CAT/OA/274/04 DATED 17.3.2006. /TRUE COPY/ K.BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- W.P.(C) NO.10600 OF 2006-S ----------------------------------------- Dated 5th March, 2009. JUDGMENT Balakrishnan Nair, J. The writ petitioner was the applicant in O.A.No.274/2004 before the Central Administrative Tribunal, Ernakulam Bench. The respondents herein were the respondents in the said O.A. 2. The brief facts of the case are the following: The petitioner is a Group D employee. Her next promotion post is Postal Assistant/Sorting Assistant. The qualifications and method of appointment to that post are prescribed in Ext.P6 Recruitment Rules. In the schedule to the Rules, at column 11, the method of appointment is provided as 50% by direct recruitment and 50% through Limited Competitive Examination. The feeder categories for promotion are named in column 12 of the schedule. Altogether 49 posts from Letter Box Peon to Mail Guard are included as feeder categories. Postman, which is the post held by the petitioner, is included as serial No.19 among the said group of posts. The said schedule WP(C) NO.10600/2006 2 also provides that the procedure for recruitment shall be governed by the administrative instructions issued by the Department from time to time. That provision is included as a Note under column 11 of the schedule. 3. While so, the Chief Postmaster General, Kerala Circle, notified a schedule for holding the Departmental Competitive Examination, for promotion from Group D posts to the post of Postal Assistant/Sorting Assistant, as per Ext.P7 notification. The applications of the persons interested were to reach the Superintendent, Pathanamthitta Division by 25.3.2004. Pursuant to the said notification, the petitioner submitted her application. But, her application was rejected by Ext.P8 communication dated 29.3.2004, for the reason that she has already availed six chances to appear for the examination. The said communication was issued, relying on Ext.P4 letter issued by the Department of Posts on 20.8.1999, informing the officers under it that the Last Grade Servants claiming promotion to the post of Postal Assistant/Sorting Assistant will be given only six chances to appear for the Limited Competitive Examination. Aggrieved by Exts.P4 and P8, the petitioner filed Ext.P9 O.A., challenging those communications and also seeking consequential reliefs. 4. The petitioner/applicant pointed out that Ext.P4 has been quashed by Ext.P5 order of the Central Administrative Tribunal (CAT) in WP(C) NO.10600/2006 3 O.A.Nos.1000 and 1006/2001 dated 12.2.2002. Construing the provisions of the Recruitment Rules then in force, the Tribunal held that a restriction not provided in the Recruitment Rules cannot be introduced through executive instructions in the nature of Ext.P4. In the meantime, Ext.P6 Recruitment Rules were issued on 9.1.2002, in which, as mentioned earlier, there was a provision enabling to issue executive instructions, providing for the procedure for recruitment. The respondents maintained the view that even though Ext.P4 is quashed, by virtue of the aforementioned Note contained in Ext.P6, the earlier executive instructions survived. That was the reason for the petitioner to challenge Ext.P4 also. 5. The respondents filed a reply statement, resisting the prayers in the O.A. In support of their contentions, the respondents relied on the aforementioned Note in the schedule to Ext.P6 Recruitment Rules and also the executive instructions issued as per Ext.P4. The Tribunal considered the rival contentions and dismissed the O.A., relying on the aforementioned Note in Ext.P6 and also Ext.P7, the notification issued inviting applications for the competitive examination. The said notification contained a stipulation that a candidate will get only six chances to appear for the examination during his service period. The Tribunal took the view that the said instructions contained in Ext.P7 will amount to the instructions WP(C) NO.10600/2006 4 contemplated under Ext.P6 Recruitment Rules. So, when Exts.P6 and P7 are read together, the Tribunal held that the present stand of the respondents has got statutory backing. Based on that finding, the O.A was dismissed. 6. The petitioner has filed this Writ Petition, mainly raising the following grounds. Every one who come under the 49 categories enumerated in the schedule to Ext.P6 Recruitment Rules is eligible to be considered for promotion, as and when vacancies arise under the 50% promotion quota. It is a substantive right. The said right cannot be restricted or abrogated by executive instructions. The Note mentioned above, which is relied on by the respondents and the Tribunal, permits only to lay down the procedure. Laying down the syllabus, total marks for the test, valuation etc., may come under the scope of procedure. But, by executive instructions, eligible candidates cannot be barred from taking part in the Competitive Examination, for the reason that they have attempted the examination earlier for six times. Secondly, it is submitted that Ext.P4 has been quashed by the CAT as per Ext.P5 order. Therefore, the executive instructions contained therein, no longer survive. The enabling provision introduced in the form of a Note in Ext.P6, cannot resurrect those executive instructions by nullifying the effect of Ext.P5 order of the CAT. Of course, by amending the Rules, the basis of a judgment could be removed. But, WP(C) NO.10600/2006 5 there should be a non-obstante clause in the amendment intended for that purpose. Going by the principles concerning the same, the enabling provision introduced will not have any efficacy to nullify the effect of Ext.P5 or breathe life to Ext.P4, which is already quashed. Even if Ext.P4 is valid, the same cannot stand scrutiny, in the light of the fundamental rights of the writ petitioner/applicant under Articles 14 and 16 of the Constitution of India, it is submitted. 7. The petitioner submitted that in the absence of any instructions issued after the issuance of Ext.P6 Recruitment Rules, Ext.P4 cannot be pressed into service, to support the impugned action, as it was issued before the introduction of the Recruitment Rules in 2002. It is also pointed that Ext.P7 cannot be treated as an instruction issued by the Department, but only by the Head of the Kerala Circle. But, the Tribunal has proceeded on the footing that it is an instruction issued by the Department, though the respondents do not have any such case, it is submitted. 8. The respondents have filed a counter affidavit, supporting the impugned order. 9. Head. We feel that the first contention of the petitioner itself has to be accepted. The Note under column 11 of the schedule to Ext.P6 Recruitment Rules enables only prescription of procedure for the conduct of WP(C) NO.10600/2006 6 the Competitive Examination. There is no bar in the Rules against an incumbent participating in the examination for more than six times. The bar introduced under the guise of prescribing the procedure, even assuming Exts.P4 and P7 are otherwise valid, cannot be sustained. For barring a candidate, who is otherwise eligible as per the Rules, from participating in the examination, there should be an express enabling provision in it. The power to issue instructions regarding the procedure for the conduct of the examination cannot be abused for this purpose. Therefore, we are of the definite view that on the strength of Ext.P4 or Ext.P7, the petitioner cannot be prevented from participating in the competitive examination. In view of our finding on this point, it is unnecessary to consider the other points canvassed by the petitioner. In the result, the Writ Petition is allowed. The impugned order of the CAT is set aside. Ext.P8 is quashed. The petitioner's participation in the competitive examination pursuant to the interim order of the Tribunal shall be treated as regular and her results shall be published. The amounts, if any, recovered from the salary of the petitioner towards the costs ordered by WP(C) NO.10600/2006 7 the CAT shall be refunded to her. K.BALAKRISHNAN NAIR, JUDGE. M.L.JOSEPH FRANCIS, JUDGE. nm/