CIVIL WRIT JURISDICTION CASE No. 3148 of 2005 ---- In the matter of an application under Article 226 of the Constitution of India. ---- 1. VINAY KUMAR @ VIJAY KUMAR, SON OF SRI KRISHNA DEO RAI, RESIDENT OF VILLAGE-JITWARPUR BULLA CHAK, P.O. JITWARPUR, DISTRICT-SAMASTIPUR. 2. RAGHAV RANJAN SON OF SRI YUGESHWAR THAKUR, RESIDENT OF VILLAGE-FATIKWARA, P.O. HARPUR FATIKWARA, P.S. MAHNAR, DISTRICT VAISHALI. 3. SATYA PRAKASH, SON OF SRI RAMESHWAR PRASAD MAHTO @ BAMESHWAR PRASAD, RESIDENT OF VILLAGE- CHANDHARPUR, P.O. MUKTAPUR, VIA- NAURANGA, DISTRICT SAMASTIPUR. 4. MAN MOHAN PATHAK, SON OF SRI SURESH PATHAK, RESIDENT OF VILLAGE- SAMSA, P.O. SAMSA, VIA BAKHARI BARAON, DISTRICT BEGUSARAI. 5. PARMENDRA KUMAR SINGH @ PRAMENDRA SINGH , SON OF SRI KEDAR PRASAD SINGH, RESIDENT OF VILLAGE AND P.O. BITHAULI, DISTRICT VAISHALI. 6. BHARAT BHUSHAN SON OF SRI GENALAL MAHTO, RESIDENT OF VILLAGE KORBADHA, P.S. SAMASTIPUR, DISTRICT SAMASTIPUR. 7. PRAMOD KUMAR, SON OF SRI RAM CHARITRA CHOUDHARY @ RAM CHANDRA CHOUDHARY, RESIDENT OF VILLAGE AND P.O. MOKAMA GHAT, DISTRICT PATNA. 8. PARSUN KUMAR @ PRASUN KUMAR, SON OF SRI AWADHESH KUMAR SINHA, RESIDENT OF MOHALLA, BAGHMALI GACHI NEAR S.D.O.(T), HAJIPUR, DISTRICT VAISHALI. 9. ANIL KUMAR, SON OF SHRI SHIVA NATH SAH, RESIDENT OF MAGARDAHI, WARD NO.15, SAMASTIPUR, DISTRICT SAMASTIPUR. 10. SANJAY KUMAR ROY SON OF SRI RAM PUKAR RAI, RESIDENT OF VILLAGE SIHMA, P.O. SIHMA CHAK, DISTRICT BEGUSARAI. …PETITIONERS Versus 1. THE UNION OF INDIA, THROUGH CHIEF POST MASTER GENERAL, BIHAR CIRCLE, PATNA. 2. THE POST MASTER GENERAL, NORTHERN REGION, MUZAFFARPUR. 3. DIRECTOR OF POSTAL SERVICES, NORTHERN REGION, MUZAFFARPUR. 4. SUPERINTENDENT OF R.M.S.N.B. DIVISION, SAMASTIPUR. 5. HEAD RECORD OFFICER, R.M.S. N.B. DIVISION, SAMASTIPUR. 6. SUB-RECORD OFFICER, R.M.S. N.B. DIVISION, BARAUNI DISTRICT-BEGUSARAI. 7. SUB-RECORD OFFICER, R.M.S. N.B. DIVISION, DARBHANGA. 8. REGISTRAR, GENERAL ADMINISTRATIVE TRIBUNAL, PATNA. …..RESPONDENTS ---- For the Petitioner :Mr. Nand Kumar Singh & :Mr. Arvind Kumar For the Union of India :Mr.Binay Kr. Pandey ---- P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR & THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL ------ K.K. Mandal,J. This present writ petition has been filed challenging the - 2 - order dated 24.09.2003, passed by the Central Administrative Tribunal, Patna Bench, Patna, in O.A.No.575 of 1997, whereby the original application has been rejected. The petitioners have also challenged the order dated 01.09.2004, passed in R.A.No.34 of 2003/M.A.No.405/2003 (Bharat Bhushan & Ors. Vs. Union of India & Ors.), whereby the Tribunal has refused to review the order dated 24.9.2003. 2. A brief statement of facts essential for adjudication of the dispute may be indicated. 14 posts of Extra Departmental Mailman for short „EDMM‟), and one post of ED Stamp Vendor, fell vacant in RMS NB Division at Samastipur, Barauni, and Darbhanga. Names were invited from the local Employment Exchanges at Samastipur and Darbhanga. Samastipur Employment Exchange sponsored certain names on 29.04.1997, whereas Begusarai and Darbhanga forwarded names of certain applicants on 9.4.1997 and 9.5.1997 respectively. They were made to take the written test for recruitment followed by oral and physical test. It is the case of the petitioners that they were provided with the appointment letters on different dates in the month of July, 1997. They started working on the post, but suddenly were visited with a letter dated 29.9.1997 (Annexure-10), disclosing therein that a serious irregularity had crept in the process of appointment and as such, steps be taken to cancel the appointments of EDSV and EDMM. This led to filing of the original application. On consideration of the materials on record, the Tribunal held as under: “It is thus observed that while there is a room for suspecting that the action of respondent no.4 might have benefited the sponsorees of the Employment Exchange at the cost of the full-time/part-time casual workers with temporary status already granted to them, it is quite obvious that the applicants were engaged in the employment of the respondents hardly for about three months when orders terminating the services of the applicants were issued by the respondents vide their letter dated the 29th - 3 - September,1997(Annexure-A-8). The applicants were appointed on different dates in the month of July, 1997(Annexures-A-5 A-6 and A-7) and thus had not completed even one year under the respondents. It is apparent that the respondents took a serious note of the deviation from the prescribed procedure as committed by respondent no.4 in the matter of recruitment of the applicants and they have taken appropriate action, as per rule, vide their letter dated the 22nd September,1997(page 68 of the W.S.). This letter does not seem to have been challenged by the respondent under fire. It appears that the said respondent has been proceeded against by the Department. It is also observed that the applicants have not placed before us a case that the respondents have violated the prescribed procedure while cancelling their appointment. They have simply stated that they were duly sponsored by the Employment Exchange, and following a certain procedure, they were appointed. They have not been able to establish a case against the full-time/part-time casual workers who were already in the employment of the respondents with temporary status having already been granted to them and which, according to the procedure, should have been considered for the said appointment. The question of whether show cause notices should have been served on the applicants before their services were ordered to be terminated loses its strength when the period of their employment and also the fact that respondent no.4 had committed an apparent violation of the prescribed procedure on the subject are kept in view. The degree of violation of the procedure far out weighs. The aspect of the need for giving an opportunity to the applicants to show cause. The provisions under Rule 6(a) of the EDA (Conduct & Service) Rules are quite explicit on the manner in which the services of such employees have to be dealt with. The question of giving an opportunity at this stage to the applicants to show cause would have arisen only when the error committed by the respondent no.4 had any room for review or correction; his act in initiating the recruitment process and completing it the way he did was prima facie wrong and did not leave any scope for reconsideration, as the procedure adopted by him was entirely his own and, accordingly, apparently irregular.” 3. The case of the Department/respondents is that the local officers acted in complete breach of the procedure of appointment as indicated in different circulars of the Department. It is the case of the - 4 - respondents that the local authorities were not required to undertake the process of appointment from the open market as there were sufficient number of casual workers working within the Postal Division in question who are required to be given option and recruited as Extra Departmental agents/employees. In fact, such steps had earlier been taken but undermining the said process, the local authorities proceeded to appoint the Extra Departmental agents/employees from the open market. There was thus a glaring breach of rules/circulars governing the field which necessitated the impugned action. 4 While assailing the impugned order, learned counsel for the petitioners submitted that the procedures adopted by the authorities were the same as was/were adopted on previous occasion. There was aptitude test followed by the written test and thereafter they were selected. It is next submitted that their removal/termination from service is violative of the rules/principles of natural justice as they were not afforded any opportunity of being heard and/or to submit show cause before their termination/removal from service. 5. Learned counsel appearing on behalf of the respondents submitted that the authorities at the local level acted in gross violation of the laid down procedure inasmuch as the instructions/guidelines which have the effect of amending procedure as contained in Annexure-12, issued way back in the year 1988, and reiterated by a communication dated 17.9.1990 as contained in Annexure-13, have been grossly violated for ulterior motive. It is the case of the respondents that as per the prevailing rule, the casual workers who were serving in their respective Postal Divisions in question for long had to exercise option and absorbed as Extra Departmental agent(s), so that they can get an opportunity to be finally absorbed as Group „D‟ employees in the - 5 - Department. 6. We have considered the submissions advanced on behalf of the parties, and carefully perused the materials available on record. 7. Learned counsel for the petitioners has not been able to show to us any document emanating from the office of the local officers who were involved in adopting selection process and appointing the petitioners indicating that a communication was already sent to the higher authorities that there was no eligible casual worker working in the Postal Division(s) in question who can be appointed in terms of the provisions as contained in Annexures-12 and 13. An attempt has been made before us to show that initial grant of temporary status to some of the casual workers in the year 1991 was subsequently withdrawn on receiving certain complaint(s). Learned counsel, however, admits that subsequently their temporary status was restored. There is no dispute that as per the prevailing procedure of selection, the causal workers working from before having temporary status have to be preferred first. 8. The respondents have placed on record their counter affidavit/supplementary counter affidavit. This is what has been stated in paragraph 3 of the supplementary counter affidavit: “That the SRM NB Division Samastipur called willingness of all full time/part time casual workers on 1.7.96 from all recruiting units, who have completed 240 days in a year as casual workers and whose names were sponsored by concerned employment exchange at the initial stage of appointment as casual workers as envisaged in the Dte. Letter NO.17-141/88/ED and Trg. Dated 6.6.88. Altogether 64 casual workers submitted willingness for the post out of which 4 applicants submitted willingness after the cut of date of 15.7.96. There were 18 casual workers who were eligible for consideration in ED employment as per rules. Misinterpreting the factual position that there were no casual labours in his division eligible for the post of EDMM/EDSV, the SRM addressed to the PMG, North Muzaffarpur on 20.8.96 seeking instruction and on the other hand the SRM addressed to the HRO/SROs of his division on 21.8.96 to process - 6 - filing up the vacant post of EDMM/EDSV by calling names from local employment exchange. In this matter the submission made in para-5 of the counter affidavit stands rectified to the extent mentioned above.” 9. There appears to be no dispute between the parties that if adequate number of eligible casual worker(s) are working within the Postal Division in question, i.e., Samastipur and Barauni, the procedure adopted by the respondents for appointment of ED Agents from open market, shall not be justified. 10. This Court would like to examine the case put up by the petitioner in this writ proceeding in order to find out whether during the relevant time, there was eligible casual workers available within the Postal Division(s) in question. According to the writ petitioners, as many as 56 casual workers working with the Postal Division(s) in question were granted temporary status by an order dated 28th June,1991(Annexure-15). A complaint was filed with respect to such grant of temporary status whereafter the Postmaster General, Northern Region, Muzaffarpur, by a communication dated 31st of May,1993 (Annexure-16), directed Sr./Superintendent of post RMS, and Superintendent, P.S.D., Muzaffarpur, to examine the cases of all casual labours privileged with temporary status. 11. It is the case of the writ petitioners that in pursuance of the aforesaid instruction/order, the temporary status so granted to the casual labours was withdrawn. The petitioners in order to support the aforesaid contention relied on a communication dated 1.6.1995 (Annexure-17). On perusal of the aforesaid communication contained in Annexure-17, it appears that pending enquiry/examination the salary of the 4th grade employee was directed to be paid as per ordinary rates. The relevant portion of the communication is reproduced hereinbelow: - 7 - “fo"k;:- lHkh nSfudh etnqjksa dk osru lk/kkj.k nj ls cukus ds laca/k esa A vki lHkh dks lwfpr fd;k tkrk gS fd vki vius v/khu dke djus okys lHkh nSfud etnwjkas dh etnqjh vxys vkns’k lk/kkj.k nj es cukdj Hkstsa A ftlesa prqFkZoxhZ; deZpkjh dk dsoy fuEuor ewy osru 750/&:0 egxkbZ HkRrk gh tksMk tk;sxk A bls vfr vko’;d le>sa rFkk irz dh ikorh Hkstsa A ebZ 95 dh etnwjh dk Hkkmpj lk/kkj.k nj ls gh HkstsaA” g0 &vLi"V ea0 uk0 ik.Ms; vf/k{kd jsy Mkd lsok ,u0 ch0 izeaMy leLrhiqj 848101” 12. It is the contention of the petitioners that on conclusion of the verification/examination as instructed by the superior authority, it was ultimately found that the casual workers were rightly granted the temporary status. The aforesaid fact would appear from the communication dated 2nd July,1997 (Annexure-19). It is thus evident from their own pleadings that at no point of time the grant of temporary status to several casual employees working under the Postal Division in question was ever withdrawn. The contention of the petitioners is that when the process of selection was taken up there was no eligible casual workers/labours within the Postal Division(s) in question who could be given preference in terms of the instruction/circulars of the Department. Admittedly, there was sufficient number of casual employees available within the Postal Division in question who were to be offered the assignment as per the instruction/circular of the Department as noticed hereinabove. Adverting to the next contention of the petitioners that in terminating their services as Extra Departmental employees within three - 8 - months of such retention/engagement without issuing any show cause notice is violative of the principles of natural justice. Two facts need to be borne in mind before the said contention of the petitioners can be appropriately considered. If the procedure which has been adopted in order to select as Extra Departmental Agent(s)/employees itself was not available for the authorities in view of the attending facts of the case, then the whole selection process stands vitiated. Secondly, the power of dispensing with the services of the Extra Departmental employees is covered by a rule provision. We have considered the first aspect of the matter and come to a conclusion that even going by the case of the petitioners made out before this Court, the process of selection for appointment from open market was not available to the authorities as admittedly there was adequate number of casual labours/workers available within the Postal Division in question who were to be preferred and given the engagement/appointment based on their options. The respondents Union of India have categorically stated that in fact this process was earlier adopted and their option were invited and, as such, there was absolutely no need to adopt the process of selection and grant part time engagement to the persons who were not serving the department from before in any capacity. Coming to the second aspect of the matter, Rule 6 of the Extra Departmental Agents (Conduct and Service) Rules governs the field. Rule 6 of the said Rules(hereinafter referred to as the „Rule‟) is reproduced hereinbelow for the facility of quick reference : “6(a) The services of an employee who has not already rendered more than three years‟ continuous service from the date of his appointment shall be liable to termination at any time by a notice in writing given either by the employee to the appointing authority or by the appointing authority to the employer.” - 9 - (b) the period of such notice shall be one month; Provided that the service of any such employee may be terminated forthwith and on such termination, the employee shall be entitled to claim a sum equivalent to the amount of his basic allowance plus Dearness Allowance for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or, as the case may be, for the period by which such notice falls short of one month.” 13. The respondents Union of India has taken a stand that as per the said Rule in lieu of the show cause notice one month pay and allowances were paid to the petitioners but they refused to receive the same. Considering the aforesaid aspect of the matter also, we are of the view that the petitioners were rightly terminated from their engagement in accordance with the provision contained in Rule. It is not the case of the petitioners that they continued on the said Extra Departmental posts for more than three months. 14. In what we have found/observed hereinabove, the consideration of the matter by the Tribunal cannot be faulted. We, therefore, uphold the order dated 24.9.2003(Annexure-1), passed by the Tribunal in O.A.No.575 of 1997. 15. There is no merit in this writ petition which is accordingly dismissed. There shall be no order as to costs. ( S. K. Katriar ) ( Kishore K. Mandal ) Patna High Court The 17th day of March, 2010 HR/NAFR