IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 WP(C).No. 14547 of 2007(S) -------------------------- OA.290/2006 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS: --------------- 1. UNION OF INDIA, REPRESENTED BY THE DIRECTOR GENERAL, DEPARTMENT OF POSTS, NEW DELHI. 2. THE CHIEF POSTMASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM-33. 3. THE ASSISTANT DIRECTOR (WELFARE & SPORTS), O/O. CHIEF POSTMASTER GENERAL, KERALA CIRCLE, THIRUVANNATHAPURAM. BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR RESPONDENTS: --------------- 1. S.SREEKUMAR, AGED 32 YEARS, S/O. SUKUMARAN NAIR, GRAMIN DAK SEVAK BRANCH POSTMASTER, PARAKUNNU P.O., NAVAIKULAM, THIRUVANANTHAPURAM NORTH DIVISION, RESIDING AT 'KGS' NIVAS, VENKULAM, EDAVA P.O.,THIRUVANANTHAPURAM 2. D.ANILKUMAR, S/O. DHARMARAJ, GRAMIN DAK SEVAK MAIL DELIVERER, MYLAKKAD P.O., KOLLAM SOUTH DIVISION, RESIDING AT "ANIL NIVAS", CHIRAKAZHARATHAZHAM P.O., KOLLAM. 3. V.VINODKUMAR, S/O. VENUGOPALAN NAIR, GRAMIN DAK SEVAK MAIL DELIVERER, PEZHUPAZHUTHOOR S.O, THIRUVANANTHAPURAM SOUTH DIVISION, RESIDING AT "SREE VIHAR", THALAYAL, BALARAMAPURAM P.O., THIRUVANANTHAPURAM. 4. B.S.SABUMON, S/O. BHASKARAN,GRAMIN DAK SEVAK MAIL DELIVERER, KALLUVATHUKAL P.O., KOLLAM SOUTH DIVISION, RESIDING AT `CHALIL VEEDU', CHIRAKKARATHAZHAM P.O, KOLLAM. ADV. SRI.M.A.SHAFIK FOR R1-4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/05/2009, ALONG WITH WPC NO. 14577 OF 2007 WPC NO. 14575 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.14547/2007 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF O.A.NO.290/2006 OF THE CAT, ERNAKULAM, DATED 25.04.2006. EXT.P2: COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS HEREIN IN O.A.NO.290/2006 DATED 13.7.2006. EXT.P3: COPY OF THE ORDER DATED 23.01.2007 IN O.A.NO.290/2006 OF THE CAT, ERNAKULAM. RESPONDENT'S EXTS: EXT.R1(A): COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS HEREIN IN O.A.NO.1142/99 BEFORE THE CAT. EXT.R1(B): COPY OF THE ORDER DAT.22.11.2001 IN O.A.NO.1142/99 OF THE CAT. //TRUE COPY// PA TO JUDGE K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ---------------------------------------- W.P.(C) Nos.14547, 14575 & 14577 OF 2007 ---------------------------------------- Dated this the 21st day of May, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. W.P.(C) No.14547/2007: The respondents in O.A.No.290/2006 are the writ petitioners. The respondents herein were the applicants in that Original Application. 2. The brief facts of the case the following: The respondents/applicants are Gramin Dak Sevak (GDS) employees working under the 2nd petitioner. They were recruited to the said post under the sports quota. For appointment to the post of Group 'D' and Group 'C' posts, the Government have set apart 5% quota for eminent sports persons. The quota is applicable only to the posts set apart for direct recruitment. The Government have issued directions in this regard in relaxation of the Recruitment Rules as per Annexure-A6 dated 21.11.1989. The said order reads as follows: W.P.(C) No.14547/2007 & connected cases 2 “I am directed invite to your attention to this office letter No.25-4/85-SPB-I dated 5.8.1988 wherein instructions issued by the Department of Personnel & Training relating to recruitment of sports persons to Group 'C' & 'D' posts in relaxation of recruitment rules were circulated. These rules inter-alia provide that the sports persons who have represented their state or the country in a National or International sports competition in a recognized Sports Event can be appointed against Gr.'C' & 'D' posts subject to availability of vacancies under the sports quota. These orders are also applicable to sports persons who are already in Government service. 2. EDAs and Casual Labourers, who represent P& T Teams or a State Team in National Championships or represent the Country in an International Championships in such disciplines as are shown in in the list circulated by the Department of Personnel & Training (copy enclosed) may be considered for appointment to Group 'C' & 'D' posts provided that they are otherwise eligible as per these instructions and the relevant recruitment rules for the posts. Such cases should be decided at Circle level and need not be referred to Directorate. 3. It is also clarified that there is no ban on filling up of vacancies. In order to improve the standard of sports in the department, all the Heads of Circles are requested to consider appointment of outstanding sports persons including EDAs and Casual labourers of the Department under the sports quota upto 5% of vacancies in the outsider quota, subject to the condition that total reservation does not exceed 50% of vacancies for SC/ST/Handicapped/ Compassionate appointments etc. This should however be done without prejudice to compassionate appointments. W.P.(C) No.14547/2007 & connected cases 3 It is further stated that there is no quota for recruitment of EDAs or casual labourers as sports persons. Such appointments can be made if the sports persons are otherwise eligible. However, such appointments should be kept to the barest minimum and should be resorted to in exceptional circumstances. It is also pointed out that employment of Casual Labourers is at present not allowed.” 3. The above order was clarified by Annexure-A7 dated 27.11.1989 and further clarified by Annexure-A8 dated 19.6.1995. A cumulative reading of the above annexures would show that 5% of the direct recruitment vacancies in Group 'C' and Group 'D' posts should be set apart for recruitment to sports persons. The persons already working as GDS and casual labourers are also eligible to be considered in that quota. While so, the 2nd petitioner issued Annexure-A1 notification inviting applications for appointment to the post of Postal Assistant/Sorting Assistant in the Kerala Postal Circle in different divisions. The total vacancies notified under Annexure- A1 notification would come to 146. Though, reservations were made for SC/ST, Physically Handicapped, Ex-service men and OBC, no reservation was made for sports persons. Aggrieved by the same, the Original Application was filed by the respondents W.P.(C) No.14547/2007 & connected cases 4 herein. They also relied on Annexures-A9 and A10 under which, earlier, promotions were granted to departmental hands under the sports quota to Group 'C' and Group 'D' posts. So, the applicants claimed that similar treatment should be meted out to them. Ext.P1 is the copy of the Original Application. The respondents in the Original Application, who are the writ petitioners, resisted the prayers by filing Ext.P2 reply statement. According to them, relevant orders do not contemplate promotion of GDS employees, who are sports persons, to the post of Group 'C' or Group 'D'. The sports persons in the GDS cadre can be considered along with others including open market candidates for appointment in the sports quota. In the reply statement, the writ petitioners even went to the extent of saying that their original recruitment to the cadre of GDS under the sports quota itself was wrong. 4. During the pendency of the Original Application, the Tribunal reserved eight vacancies, among the total vacancies notified under Annexure-A1. At the time of final hearing, the Tribunal found that the applicants are entitled to be W.P.(C) No.14547/2007 & connected cases 5 accommodated in those vacancies, provided, they are otherwise qualified as per the Recruitment Rules. It was also observed that in case they are not qualified, the competent authority may consider relaxing the qualifications appropriately. Aggrieved by the said order of the C.A.T., a copy of which is produced as Ext.P3, this writ petition is filed. 5. We heard the learned counsel on both sides. Going by Annexures-A6 to A8, we find that 5% of the vacancies notified under Annexure-A1 should have been set apart for sports persons and applicants should also have been considered in that quota along with other sports persons, if any, who applied. The direction of the C.A.T. to consider the applicants to those vacancies is mainly based on Annexures-A9 and A10. But, we feel that the courts are bound by the principle “where there is a right, there is a remedy”. Annexures-A6 to A8 confer only a right to be considered in the sportsmen quota on the applicants. The writ petitioners might have been generous beyond the requirement of the law in the past. But, the court is not justified in asking them to repeat that conduct again. So, the direction of W.P.(C) No.14547/2007 & connected cases 6 the Tribunal to consider the applicants in the eight vacancies available as a result of the interim order of the C.A.T. cannot be upheld. We set aside that direction. The writ petitioners also complained about the direction to consider the relaxation of basic qualification. Since the Tribunal has not given any positive direction regarding relaxation of basic qualification, it is unnecessary for us to interfere with that matter. Under the Recruitment Rules, the power to relax is reserved with the Government. Having regard to the facts of a particular case, if the Government thinks relaxation should be granted, it can grant it. 6. In view of the rights of the applicants to be considered for appointment in the sports quota, we direct the competent authority among the petitioners to invite applications from the open market as well as from among the GDS and casual labourers who were eligible to apply for appointment to the eight vacant posts, as on 31.3.2006, the date which was the last date notified for submission of applications under Ext.P1. The competent authority among the petitioners shall consider the W.P.(C) No.14547/2007 & connected cases 7 claim of the applicants, including those who applied pursuant to the fresh notification to be issued, and fill up the eight vacancies which were available for recruitment under the sports quota. This exercise shall be competed by the competent authority within six months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of as above. W.P(C) Nos. 14575 & 14577 OF 2007: The above judgment will govern these writ petitions also. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps