ERNAKULAM BENCH
Original Application No. 109 of 2010
Monday, this the 7th day of June, 2010
CORAM:
HON'BLE Mr. JUSTICE K.THANKAPPAN, JUDICIAL MEMBER
HON'BLE Mr. K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER
Muhammed Sadique K.P.,
Contingent Employee,
Beypore Sub Post Office - 673 015. ... Applicant.
(By Advocate Mr. Vishnu S. Chempazhanthiyil)
v e r s u s
1. The Senior Superintendent of Post Offices,
Calicut Division, Calicut : 673 003
2. Union of India represented by
The Chief Postmaster General,
Kerala Circle, Thiruvananthapuram ... Respondents.
(By Advocate Mr. P. Parameswaran Nair, ACGSC)
The Original Application having been heard on 01.06.2010, this Tribunal on
07.06.10 delivered the following :
O R D E R
HON'BLE MR. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
The applicant is working as a contingent employee since November, 2005 in Beypore Sub Post Office. The respondents have published a notification inviting applications for the post of GDS BPM, SV Colony P.O. as at Annexure A-6. The applicant has submitted an application pursuant to A-6 notification claiming the benefit of working as contingent staff at Beypore Sub Post Office. The part time contingent
employees are entitled to preference in the matter of appointment in GDS posts as per letter No. 17-141/88/EDC & Training dated 6.6.1988 issued by the Director General,Department of Posts, New Delhi. Instead of giving him preference, the respondent No. 1 is proceeding with appointment of outside candidates. Hence the O.A.
2. The applicant submits that he is entitled to preference in the matter of appointment to the post of GDS BPM, SV Colony P.O., in the light of the aforesaid letter dated 6.6.1988. Non consideration of his entitlement for preference is illegal and arbitrary. The applicant is similarly situated as the applicant in OA Nos. 571/2001, 543/2003, and 03/2005 and, therefore, he is entitled to the same benefit as granted to the applicants therein.
3. The respondents contested the O.A. They submitted that the applicant was not appointed as a contingent employee by any authority following a due process of selection. There is a ban on recruitment of contingent employees in the department since 2005. The applicant was engaged as part-time sweeper cum scavenger on daily wage basis for 1 = hours a day in Beypore Post Office from November, 2005. But no appointment order was given to him. Therefore, he is not entitled for
appointment to GDS post. Moreover a request transfer to the post of GDS SV Colony is pending with the competent authority.
4. The respondents admitted that a part time contingent employee who was selected and appointed after following due process of selection is entitled to preference in the matter of GDS post as per letter dated 6.6.1988. But the applicant is not entitled for this preference as he was not appointed as a contingent employee by any authority following a due process of selection. He was not called from the
Employment Exchange; he was not posted as a contingent employee after observing due formalities. The application received from the applicant pursuant to the notification dated 05.01.2010 does not have any proof to show that he is appointed as a contingent employee. As he is not entitled to any preferential claim for appointment as GDS, the O.A. should be dismissed. 5. Arguments were heard and document perused.
6. The letter of Director General, Department of Posts, New Delhi, No. 17-141/ 88/ EDC & Training dated 6.6.1988 is reproduced as under :
"DG Posts Letter No.17-141/88-EDC & Trg., dated the 6th
June,1988.
Sub : Preference to casual labourers in the matter of
appointment as ED Agents.
According to the prevalent Recruitment Rules governing
the cadre of Group 'D', the order of preference among various
segments of eligible employees is as under :-
(a) Non test category
(b) ED employees
(c) Casual labourers
(d) Part time casual labourers.
2. Since the number of vacancies of Group 'D' is limited
and the number of ED employees eligible for recruitment as
Group 'D' is comparatively large, the casual labourers and
part time casual labourers hardly get any chance of their
being absorbed as Group 'D'. Thus majority of casual
labourers with long service as left out without any prospect of
their getting absorbed in Group 'D' cadre.
3. Keeping the above in view, a suggestion has been put
forth that casual labourers, both full and part time should be
given preference for recruitment as Extra Departmental
Agents, in case they are willing, with a view to afford the
casual labourers a chance for ultimate absorption as
Group 'D'.
4. The suggestion has been examined in detail and it has
been decided that casual labourers, whether full time or part
time, who are willing to be appointed to ED vacancies may be
given preference in the matter of recruitment to ED posts,
provided they fulfil all the conditions and have put in a
minimum service of one year. For this purpose, a service of
240 days in a year may be reckoned as one year's service. It
should be ensured that nominations are called for from
Employment Exchange to fill up the vacancies of casual
labourers so that ultimately the casual labourers who are
considered for ED vacancies have initially been sponsored by
Employment Exchange."
7. It is amply clear that the casual labourers whether full time or part time are eligible for preference in the matter of recruitment to ED posts if they fulfil all the conditions and have put in a minimum service of one year, i,e, 240 days in a year. The respondents have admitted that the applicant is a part time sweeper/scavenger engaged in the Beypore Sub Post Office from November, 2005 onwards and he is continuing so even today. He has got more than four years service as a part time employee. But not giving an appointment order to the applicant is a wilful default on the part of the respondents to circumvent the ban on recruitment of contingent employees in the department in 2005. The respondents have taken the work of a casual labourer for many years without a break by appointing him on daily wage basis without an appointment letter. If he is not appointed following due process of
selection, the fault lies with the respondent and not the applicant. Having taken the work of a casual labourer ever since 2005, it is not fair on the part of the respondents to deny the benefit of preference for which he is eligible on the basis of the letter dated 6.6.1988. It was open to the respondents not to have taken work from him continuously. They could have appointed the applicant on contract basis. They could have outsourced the job he was doing. They could have appointed others in such a
way that they do not put in a minimum service of 240 days in a year. Once 240 days is completed in a year by a casual labourer, whether full time or part time, if he is willing to be appointed to ED vacancy he is eligible for preference in the matter appointment to ED post provided he fulfils all the conditions. By not giving a letter of appointment, after engaging him for years together, the respondents cannot deprive the applicant of his accrued eligibility for preference as envisaged in the letter dated
06.06.1988.
8. It is relevant here to quote the letter of Director General of Posts No. 45-24/88 SPB-I dated 17.5.1989:
"Copy of DG Dept. of Posts, New Delhi letter No. 45-24/88 SPB-I, dated
17.5.1989
Sub:- As above.
Sir,
I am directed to pay that reference have been received seeking
clarification as to which class of workers should be treated as full time or
part time casual labourers.
2. It is hereby clarified that all daily wagers working in post offices or in
RMS offices or in administrative officers under different designations
(mazdoor, casual labourer outsider) are to be treated as casual labourers.
These casual labourers who are engaged for a period of less than 8 hours
a day should be described as part time casual labourers. All other
designations should be discontinued.
3. Substitutes engaged against absentee should not be designated as
casual labourers, for purposes of recruitment to Group D posts,
substitutes should be considered only when casual labourers are not
available. That is, substitutes will rank list in priority, but will be above
outsiders. In other words, the following priority should be observed.
i. NIC Group D officials
ii. EDAs of the same division
iii. Casual labourers (full time or part time)
For purpose of computation of eligible service, half of the service
rendered as part time casual labourers should be taken into account. That
is, if a part time casual labourer has served for 480 days in a period of 2
years he will be treated, for the purpose of recruitment to have completed
one year as of service as full time casual labourers.
iv. EDAs of other division in the same region.
v. Substitutes (not working in metropolitan cities).
vi. Direct recruits through employment exchange.
Note: Substitutes working in metropolitan cities will however, rank above
No. (iv) in the list.
4. Please acknowledge receipt immediately.
Sd/-
Dr. Sarjaram
Asst. Director General (SPN)"
In terms of the above letter, the applicant who is working in Beypore Sub Post Office
for a period less than 8 hours a day should be described as part time casual labour.
9. In an identical matter in O.A. No. 534/2003, this Tribunal decided as under:
"3. We have heard the learned counsel on either side and have perused the material on record. The contention of the respondents that the applicant is not entitled to any preference as per A-3 notice because her name was not sponsored for appointment as part time sweeper is no more tenable in view of the orders of this Tribunal in OA Nos.818/2000 and 936/2001. Under identical circumstances, this Tribunal held that as the applicants in those cases had been permitted to continue as part time casual labour for a long time and had been appointed by the competent authority, the fact that their names were not sponsored by the employment exchange could not be held out to be a valid reason for denying them the benefit of the long service for preference for appointment to ED posts. We find that there is no reason to differ from the view taken. It is a fact that the applicant has been working continuously from 1.6.95 onwards till date. If the appointment was irregular and the service would not give any benefit to the applicant, the respondents should have resorted to
a process of selection through employment exchange and made appointment to the post of part time sweeper. They did not do that but allowed the applicant to continue for more than 7 years. In these circumstances, we find no justification for not considering the applicant for appointment by giving preference in terms of A-3, inspite of repeated instructions contained in A-4.
4. In the light of what is stated above, we allow the application
and direct the first respondent to consider the request of the
applicant for appointment to the post of GDS MD, Velliapally, giving
preference to her in terms of A-3 and A-4 despite the fact that the
applicant's appointment as a part time Sweeper was not routed
through employment exchange."
10. In O.A. No. 571/2001 also, similar decision was taken by this Tribunal. The
relevant part is extracted as follows :
"3. An identical issue came up for consideration before the Bench
in OA 818/2000. In that case, the part time contingent employee
who had been working from December 1993 onwards was denied
the benefit of preference in the matter of appointment to ED post for
the reason that the applicant was not sponsored by the Employment
Exchange. The Tribunal held that as the applicant had worked as
Part Time casual labourer for a long period, this benefit should not
be denied to him solely for the reason that he was not engaged as
casual labour through the intervention of the agency of Employment
Exchange. The facts of this case are also similar. The applicant
admittedly is working as Part time contingent Sweeper with effect
from 1.1.1996 onwards without break and the 3rd respondent has
forwarded her representation to the 2nd respondent. The 3rd
respondent forwarded the application being convinced that the
applicant having been working continuously from 1996 onwards was
eligible to be treated as a regular Part time Contingent Sweeper and
was eligible to be appointed as ED Agent in preference to outsiders.
4. In the result, the application is allowed. The respondents are
directed to consider the applicant for appointment to the post of
EDMC Chittanjur treating her as a regular Part time employee giving
her the benefit of the directions contained in the letter of Director
General of Posts, dated 6.6.88 and 31.3.92. Recruitment to the post
of EDMC, Chittanjur through open market should be resorted to only
if the applicant is found unsuitable for such appointment."
11. In O.A. No. 03/2005, it was held by this Tribunal as under :
"7. Therefore the contention of the respondents that the applicant
had not been sponsored by Employment Exchange cannot hold
good. Further, in (1996) 6 SCC 216, Excise Superintendent,
Malkapatnam, Krishna District, A.P., the Apex Court has held that,
restricting the selection only to the candidates sponsored by the
Employment Exchange, was not proper. In the circumstances,
the applicant has made out a case and therefore we are of the view
that the relief has to be granted to the applicant The contention of
the applicant that vide Annexure A-5 notification the respondents are
attempting to fill up the said vacancy on provisional basis, on going
through the said notification, we find that though appointment is on
provisional basis it is likely to be regularised. In the circumstances,
we are of the view that it is a fit case where direction be given to the
respondents to consider the applicant for an appointment to the post
of GDS BPM Ambalathara.
8. In the light of the above submissions, the application is
allowed. Respondents are directed to consider the applicant for an
appointment to the post of GDS BPM Ambalathara and give her the
benefit contained in the letter of Director General of Posts. It is
made clear that selection through open market could only be
resorted to, if the applicant is found unsuitable for such appointment.
With above direction the O.A is allowed. In the circumstances, no
order as to costs."
The order of this Tribunal in OA 3 of 2005 fully covers the present OA.
12. In Writ Petition ) No. 33732/2005 challenging the order in the said OA, the
Hon'ble High Court of Kerala held as follows :
"....... Going by the department instruction, such casual labourers
are to be given preference in the matter of recruitment. It is for the
department to ensure that the appointments even on casual basis
are not made through the back door. Having appointed people like
the applicant and such applicants having gained experience as
casual labourers they cannot be prevented from participating in the
selection and appointment. It is seen that the Tribunal as well as
this court has consistently taken the stand as above, and the
directions have been implemented also. We do not find any merit in
this writ petition and it is accordingly dismissed."
13. In OA No. 744 of 2009, this Tribunal held as under:
"7. In view of the above position, we allow this OA and declare that the
applicant is eligible and entitled to be considered for appointment as GDS Mail
Packer, Ayyanthole in preference to outsiders in terms of Annexure A-3 letter
dated 6.6.1988. Consequently, the respondents are directed to consider the
applicant for appointment to the post of GDS Mail Packer Ayyanthole giving her
the benefit contained in the letter of Director General of Posts (Annexure A-3).
It is made clear that selection through open market could only be resorted to, if
the applicant is found unsuitable for such appointment. The aforesaid direction
shall be carried out by the respondents within a period of two months from the
date of receipt of a copy of this order. There shall be no order as to costs."
The applicant is similarly placed as the applicant in the aforesaid OA in as much as both are part time sweepers, without formal appointment orders on daily wage basis.
14. In the light of the decisions of this Tribunal in a number of cases and the decision of the Hon'ble High Court, the respondents cannot deprive the applicant ofthe benefit of the departmental instruction to give preference in the matter of recruitment on the plea that they have not given an appointment letter but only taken work from the applicant for so many years. If the post in question is going to be filled up by transfer, appointment of outsider in preference to the applicant does not arise.
But the applicant is entitled to preference if he fulfills all conditions, for appointment as GDS in any vacancy.
15. In the result, the O.A. succeeds. The first respondent is directed to consider the applicant for appointment to the post of GDS BPM, S.V. Colony P.O., in preference to open market candidates giving the benefit of Annexure A/1 letter dated 06.06.1988 within a period of 60 days from the date of receipt of a copy of this order. If the vacancy at S.V. Colony is filled up by transfer, he should be considered for any other vacancy. No order as to costs.
(Dated, the 7th June, 2010)
K. GEORGE JOSEPH JUSTICE K THANKAPPAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 109 of 2010
Monday, this the 7th day of June, 2010
CORAM:
HON'BLE Mr. JUSTICE K.THANKAPPAN, JUDICIAL MEMBER
HON'BLE Mr. K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER
Muhammed Sadique K.P.,
Contingent Employee,
Beypore Sub Post Office - 673 015. ... Applicant.
(By Advocate Mr. Vishnu S. Chempazhanthiyil)
v e r s u s
1. The Senior Superintendent of Post Offices,
Calicut Division, Calicut : 673 003
2. Union of India represented by
The Chief Postmaster General,
Kerala Circle, Thiruvananthapuram ... Respondents.
(By Advocate Mr. P. Parameswaran Nair, ACGSC)
The Original Application having been heard on 01.06.2010, this Tribunal on
07.06.10 delivered the following :
O R D E R
HON'BLE MR. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
The applicant is working as a contingent employee since November, 2005 in Beypore Sub Post Office. The respondents have published a notification inviting applications for the post of GDS BPM, SV Colony P.O. as at Annexure A-6. The applicant has submitted an application pursuant to A-6 notification claiming the benefit of working as contingent staff at Beypore Sub Post Office. The part time contingent
employees are entitled to preference in the matter of appointment in GDS posts as per letter No. 17-141/88/EDC & Training dated 6.6.1988 issued by the Director General,Department of Posts, New Delhi. Instead of giving him preference, the respondent No. 1 is proceeding with appointment of outside candidates. Hence the O.A.
2. The applicant submits that he is entitled to preference in the matter of appointment to the post of GDS BPM, SV Colony P.O., in the light of the aforesaid letter dated 6.6.1988. Non consideration of his entitlement for preference is illegal and arbitrary. The applicant is similarly situated as the applicant in OA Nos. 571/2001, 543/2003, and 03/2005 and, therefore, he is entitled to the same benefit as granted to the applicants therein.
3. The respondents contested the O.A. They submitted that the applicant was not appointed as a contingent employee by any authority following a due process of selection. There is a ban on recruitment of contingent employees in the department since 2005. The applicant was engaged as part-time sweeper cum scavenger on daily wage basis for 1 = hours a day in Beypore Post Office from November, 2005. But no appointment order was given to him. Therefore, he is not entitled for
appointment to GDS post. Moreover a request transfer to the post of GDS SV Colony is pending with the competent authority.
4. The respondents admitted that a part time contingent employee who was selected and appointed after following due process of selection is entitled to preference in the matter of GDS post as per letter dated 6.6.1988. But the applicant is not entitled for this preference as he was not appointed as a contingent employee by any authority following a due process of selection. He was not called from the
Employment Exchange; he was not posted as a contingent employee after observing due formalities. The application received from the applicant pursuant to the notification dated 05.01.2010 does not have any proof to show that he is appointed as a contingent employee. As he is not entitled to any preferential claim for appointment as GDS, the O.A. should be dismissed.
5. Arguments were heard and document perused.
6. The letter of Director General, Department of Posts, New Delhi, No. 17-141/ 88/ EDC & Training dated 6.6.1988 is reproduced as under :
"DG Posts Letter No.17-141/88-EDC & Trg., dated the 6th
June,1988.
Sub : Preference to casual labourers in the matter of
appointment as ED Agents.
According to the prevalent Recruitment Rules governing
the cadre of Group 'D', the order of preference among various
segments of eligible employees is as under :-
(a) Non test category
(b) ED employees
(c) Casual labourers
(d) Part time casual labourers.
2. Since the number of vacancies of Group 'D' is limited
and the number of ED employees eligible for recruitment as
Group 'D' is comparatively large, the casual labourers and
part time casual labourers hardly get any chance of their
being absorbed as Group 'D'. Thus majority of casual
labourers with long service as left out without any prospect of
their getting absorbed in Group 'D' cadre.
3. Keeping the above in view, a suggestion has been put
forth that casual labourers, both full and part time should be
given preference for recruitment as Extra Departmental
Agents, in case they are willing, with a view to afford the
casual labourers a chance for ultimate absorption as
Group 'D'.
4. The suggestion has been examined in detail and it has
been decided that casual labourers, whether full time or part
time, who are willing to be appointed to ED vacancies may be
given preference in the matter of recruitment to ED posts,
provided they fulfil all the conditions and have put in a
minimum service of one year. For this purpose, a service of
240 days in a year may be reckoned as one year's service. It
should be ensured that nominations are called for from
Employment Exchange to fill up the vacancies of casual
labourers so that ultimately the casual labourers who are
considered for ED vacancies have initially been sponsored by
Employment Exchange."
7. It is amply clear that the casual labourers whether full time or part time are eligible for preference in the matter of recruitment to ED posts if they fulfil all the conditions and have put in a minimum service of one year, i,e, 240 days in a year. The respondents have admitted that the applicant is a part time sweeper/scavenger engaged in the Beypore Sub Post Office from November, 2005 onwards and he is continuing so even today. He has got more than four years service as a part time employee. But not giving an appointment order to the applicant is a wilful default on the part of the respondents to circumvent the ban on recruitment of contingent employees in the department in 2005. The respondents have taken the work of a casual labourer for many years without a break by appointing him on daily wage basis without an appointment letter. If he is not appointed following due process of
selection, the fault lies with the respondent and not the applicant. Having taken the work of a casual labourer ever since 2005, it is not fair on the part of the respondents to deny the benefit of preference for which he is eligible on the basis of the letter dated 6.6.1988. It was open to the respondents not to have taken work from him continuously. They could have appointed the applicant on contract basis. They could have outsourced the job he was doing. They could have appointed others in such a
way that they do not put in a minimum service of 240 days in a year. Once 240 days is completed in a year by a casual labourer, whether full time or part time, if he is willing to be appointed to ED vacancy he is eligible for preference in the matter appointment to ED post provided he fulfils all the conditions. By not giving a letter of appointment, after engaging him for years together, the respondents cannot deprive the applicant of his accrued eligibility for preference as envisaged in the letter dated
06.06.1988.
8. It is relevant here to quote the letter of Director General of Posts No. 45-24/88 SPB-I dated 17.5.1989:
"Copy of DG Dept. of Posts, New Delhi letter No. 45-24/88 SPB-I, dated
17.5.1989
Sub:- As above.
Sir,
I am directed to pay that reference have been received seeking
clarification as to which class of workers should be treated as full time or
part time casual labourers.
2. It is hereby clarified that all daily wagers working in post offices or in
RMS offices or in administrative officers under different designations
(mazdoor, casual labourer outsider) are to be treated as casual labourers.
These casual labourers who are engaged for a period of less than 8 hours
a day should be described as part time casual labourers. All other
designations should be discontinued.
3. Substitutes engaged against absentee should not be designated as
casual labourers, for purposes of recruitment to Group D posts,
substitutes should be considered only when casual labourers are not
available. That is, substitutes will rank list in priority, but will be above
outsiders. In other words, the following priority should be observed.
i. NIC Group D officials
ii. EDAs of the same division
iii. Casual labourers (full time or part time)
For purpose of computation of eligible service, half of the service
rendered as part time casual labourers should be taken into account. That
is, if a part time casual labourer has served for 480 days in a period of 2
years he will be treated, for the purpose of recruitment to have completed
one year as of service as full time casual labourers.
iv. EDAs of other division in the same region.
v. Substitutes (not working in metropolitan cities).
vi. Direct recruits through employment exchange.
Note: Substitutes working in metropolitan cities will however, rank above
No. (iv) in the list.
4. Please acknowledge receipt immediately.
Sd/-
Dr. Sarjaram
Asst. Director General (SPN)"
In terms of the above letter, the applicant who is working in Beypore Sub Post Office
for a period less than 8 hours a day should be described as part time casual labour.
9. In an identical matter in O.A. No. 534/2003, this Tribunal decided as under:
"3. We have heard the learned counsel on either side and have perused the material on record. The contention of the respondents that the applicant is not entitled to any preference as per A-3 notice because her name was not sponsored for appointment as part time sweeper is no more tenable in view of the orders of this Tribunal in OA Nos.818/2000 and 936/2001. Under identical circumstances, this Tribunal held that as the applicants in those cases had been permitted to continue as part time casual labour for a long time and had been appointed by the competent authority, the fact that their names were not sponsored by the employment exchange could not be held out to be a valid reason for denying them the benefit of the long service for preference for appointment to ED posts. We find that there is no reason to differ from the view taken. It is a fact that the applicant has been working continuously from 1.6.95 onwards till date. If the appointment was irregular and the service would not give any benefit to the applicant, the respondents should have resorted to
a process of selection through employment exchange and made appointment to the post of part time sweeper. They did not do that but allowed the applicant to continue for more than 7 years. In these circumstances, we find no justification for not considering the applicant for appointment by giving preference in terms of A-3, inspite of repeated instructions contained in A-4.
4. In the light of what is stated above, we allow the application
and direct the first respondent to consider the request of the
applicant for appointment to the post of GDS MD, Velliapally, giving
preference to her in terms of A-3 and A-4 despite the fact that the
applicant's appointment as a part time Sweeper was not routed
through employment exchange."
10. In O.A. No. 571/2001 also, similar decision was taken by this Tribunal. The
relevant part is extracted as follows :
"3. An identical issue came up for consideration before the Bench
in OA 818/2000. In that case, the part time contingent employee
who had been working from December 1993 onwards was denied
the benefit of preference in the matter of appointment to ED post for
the reason that the applicant was not sponsored by the Employment
Exchange. The Tribunal held that as the applicant had worked as
Part Time casual labourer for a long period, this benefit should not
be denied to him solely for the reason that he was not engaged as
casual labour through the intervention of the agency of Employment
Exchange. The facts of this case are also similar. The applicant
admittedly is working as Part time contingent Sweeper with effect
from 1.1.1996 onwards without break and the 3rd respondent has
forwarded her representation to the 2nd respondent. The 3rd
respondent forwarded the application being convinced that the
applicant having been working continuously from 1996 onwards was
eligible to be treated as a regular Part time Contingent Sweeper and
was eligible to be appointed as ED Agent in preference to outsiders.
4. In the result, the application is allowed. The respondents are
directed to consider the applicant for appointment to the post of
EDMC Chittanjur treating her as a regular Part time employee giving
her the benefit of the directions contained in the letter of Director
General of Posts, dated 6.6.88 and 31.3.92. Recruitment to the post
of EDMC, Chittanjur through open market should be resorted to only
if the applicant is found unsuitable for such appointment."
11. In O.A. No. 03/2005, it was held by this Tribunal as under :
"7. Therefore the contention of the respondents that the applicant
had not been sponsored by Employment Exchange cannot hold
good. Further, in (1996) 6 SCC 216, Excise Superintendent,
Malkapatnam, Krishna District, A.P., the Apex Court has held that,
restricting the selection only to the candidates sponsored by the
Employment Exchange, was not proper. In the circumstances,
the applicant has made out a case and therefore we are of the view
that the relief has to be granted to the applicant The contention of
the applicant that vide Annexure A-5 notification the respondents are
attempting to fill up the said vacancy on provisional basis, on going
through the said notification, we find that though appointment is on
provisional basis it is likely to be regularised. In the circumstances,
we are of the view that it is a fit case where direction be given to the
respondents to consider the applicant for an appointment to the post
of GDS BPM Ambalathara.
8. In the light of the above submissions, the application is
allowed. Respondents are directed to consider the applicant for an
appointment to the post of GDS BPM Ambalathara and give her the
benefit contained in the letter of Director General of Posts. It is
made clear that selection through open market could only be
resorted to, if the applicant is found unsuitable for such appointment.
With above direction the O.A is allowed. In the circumstances, no
order as to costs."
The order of this Tribunal in OA 3 of 2005 fully covers the present OA.
12. In Writ Petition ) No. 33732/2005 challenging the order in the said OA, the
Hon'ble High Court of Kerala held as follows :
"....... Going by the department instruction, such casual labourers
are to be given preference in the matter of recruitment. It is for the
department to ensure that the appointments even on casual basis
are not made through the back door. Having appointed people like
the applicant and such applicants having gained experience as
casual labourers they cannot be prevented from participating in the
selection and appointment. It is seen that the Tribunal as well as
this court has consistently taken the stand as above, and the
directions have been implemented also. We do not find any merit in
this writ petition and it is accordingly dismissed."
13. In OA No. 744 of 2009, this Tribunal held as under:
"7. In view of the above position, we allow this OA and declare that the
applicant is eligible and entitled to be considered for appointment as GDS Mail
Packer, Ayyanthole in preference to outsiders in terms of Annexure A-3 letter
dated 6.6.1988. Consequently, the respondents are directed to consider the
applicant for appointment to the post of GDS Mail Packer Ayyanthole giving her
the benefit contained in the letter of Director General of Posts (Annexure A-3).
It is made clear that selection through open market could only be resorted to, if
the applicant is found unsuitable for such appointment. The aforesaid direction
shall be carried out by the respondents within a period of two months from the
date of receipt of a copy of this order. There shall be no order as to costs."
The applicant is similarly placed as the applicant in the aforesaid OA in as much as both are part time sweepers, without formal appointment orders on daily wage basis.
14. In the light of the decisions of this Tribunal in a number of cases and the decision of the Hon'ble High Court, the respondents cannot deprive the applicant ofthe benefit of the departmental instruction to give preference in the matter of recruitment on the plea that they have not given an appointment letter but only taken work from the applicant for so many years. If the post in question is going to be filled up by transfer, appointment of outsider in preference to the applicant does not arise.
But the applicant is entitled to preference if he fulfills all conditions, for appointment as GDS in any vacancy.
15. In the result, the O.A. succeeds. The first respondent is directed to consider the applicant for appointment to the post of GDS BPM, S.V. Colony P.O., in preference to open market candidates giving the benefit of Annexure A/1 letter dated 06.06.1988 within a period of 60 days from the date of receipt of a copy of this order. If the vacancy at S.V. Colony is filled up by transfer, he should be considered for any other vacancy. No order as to costs.
(Dated, the 7th June, 2010)
K. GEORGE JOSEPH JUSTICE K THANKAPPAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 109 of 2010
Monday, this the 7th day of June, 2010
CORAM:
HON'BLE Mr. JUSTICE K.THANKAPPAN, JUDICIAL MEMBER
HON'BLE Mr. K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER
Muhammed Sadique K.P., Contingent Employee,
Beypore Sub Post Office - 673 015. ... Applicant.
(By Advocate Mr. Vishnu S. Chempazhanthiyil)
v e r s u s
1. The Senior Superintendent of Post Offices,
Calicut Division, Calicut : 673 003
2. Union of India represented by
The Chief Postmaster General,
Kerala Circle, Thiruvananthapuram ... Respondents.
(By Advocate Mr. P. Parameswaran Nair, ACGSC)
The Original Application having been heard on 01.06.2010, this Tribunal on 07.06.10 delivered the following :
O R D E R
HON'BLE MR. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
The applicant is working as a contingent employee since November, 2005 in Beypore Sub Post Office. The respondents have published a notification inviting applications for the post of GDS BPM, SV Colony P.O. as at Annexure A-6. The applicant has submitted an application pursuant to A-6 notification claiming the benefit of working as contingent staff at Beypore Sub Post Office. The part time contingent
employees are entitled to preference in the matter of appointment in GDS posts as per letter No. 17-141/88/EDC & Training dated 6.6.1988 issued by the Director General,Department of Posts, New Delhi. Instead of giving him preference, the respondent No. 1 is proceeding with appointment of outside candidates. Hence the O.A.
2. The applicant submits that he is entitled to preference in the matter of appointment to the post of GDS BPM, SV Colony P.O., in the light of the aforesaid letter dated 6.6.1988. Non consideration of his entitlement for preference is illegal and arbitrary. The applicant is similarly situated as the applicant in OA Nos. 571/2001, 543/2003, and 03/2005 and, therefore, he is entitled to the same benefit as granted to the applicants therein.
3. The respondents contested the O.A. They submitted that the applicant was not appointed as a contingent employee by any authority following a due process of selection. There is a ban on recruitment of contingent employees in the department since 2005. The applicant was engaged as part-time sweeper cum scavenger on daily wage basis for 1 = hours a day in Beypore Post Office from November, 2005. But no appointment order was given to him. Therefore, he is not entitled for
appointment to GDS post. Moreover a request transfer to the post of GDS SV Colony is pending with the competent authority.
4. The respondents admitted that a part time contingent employee who was selected and appointed after following due process of selection is entitled to preference in the matter of GDS post as per letter dated 6.6.1988. But the applicant is not entitled for this preference as he was not appointed as a contingent employee by any authority following a due process of selection. He was not called from the
Employment Exchange; he was not posted as a contingent employee after observing due formalities. The application received from the applicant pursuant to the notification dated 05.01.2010 does not have any proof to show that he is appointed as a contingent employee. As he is not entitled to any preferential claim for appointment as GDS, the O.A. should be dismissed.
5. Arguments were heard and document perused.
6. The letter of Director General, Department of Posts, New Delhi, No. 17-141/ 88/ EDC & Training dated 6.6.1988 is reproduced as under :
"DG Posts Letter No.17-141/88-EDC & Trg., dated the 6th
June,1988.
Sub : Preference to casual labourers in the matter of
appointment as ED Agents.
According to the prevalent Recruitment Rules governing
the cadre of Group 'D', the order of preference among various
segments of eligible employees is as under :-
(a) Non test category
(b) ED employees
(c) Casual labourers
(d) Part time casual labourers.
2. Since the number of vacancies of Group 'D' is limited
and the number of ED employees eligible for recruitment as
Group 'D' is comparatively large, the casual labourers and
part time casual labourers hardly get any chance of their
being absorbed as Group 'D'. Thus majority of casual
labourers with long service as left out without any prospect of
their getting absorbed in Group 'D' cadre.
3. Keeping the above in view, a suggestion has been put
forth that casual labourers, both full and part time should be
given preference for recruitment as Extra Departmental
Agents, in case they are willing, with a view to afford the
casual labourers a chance for ultimate absorption as
Group 'D'.
4. The suggestion has been examined in detail and it has
been decided that casual labourers, whether full time or part
time, who are willing to be appointed to ED vacancies may be
given preference in the matter of recruitment to ED posts,
provided they fulfil all the conditions and have put in a
minimum service of one year. For this purpose, a service of
240 days in a year may be reckoned as one year's service. It
should be ensured that nominations are called for from
Employment Exchange to fill up the vacancies of casual
labourers so that ultimately the casual labourers who are
considered for ED vacancies have initially been sponsored by
Employment Exchange."
7. It is amply clear that the casual labourers whether full time or part time are eligible for preference in the matter of recruitment to ED posts if they fulfil all the conditions and have put in a minimum service of one year, i,e, 240 days in a year. The respondents have admitted that the applicant is a part time sweeper/scavenger engaged in the Beypore Sub Post Office from November, 2005 onwards and he is continuing so even today. He has got more than four years service as a part time employee. But not giving an appointment order to the applicant is a wilful default on the part of the respondents to circumvent the ban on recruitment of contingent employees in the department in 2005. The respondents have taken the work of a casual labourer for many years without a break by appointing him on daily wage basis without an appointment letter. If he is not appointed following due process of
selection, the fault lies with the respondent and not the applicant. Having taken the work of a casual labourer ever since 2005, it is not fair on the part of the respondents to deny the benefit of preference for which he is eligible on the basis of the letter dated 6.6.1988. It was open to the respondents not to have taken work from him continuously. They could have appointed the applicant on contract basis. They could have outsourced the job he was doing. They could have appointed others in such a
way that they do not put in a minimum service of 240 days in a year. Once 240 days is completed in a year by a casual labourer, whether full time or part time, if he is willing to be appointed to ED vacancy he is eligible for preference in the matter appointment to ED post provided he fulfils all the conditions. By not giving a letter of appointment, after engaging him for years together, the respondents cannot deprive the applicant of his accrued eligibility for preference as envisaged in the letter dated
06.06.1988.
8. It is relevant here to quote the letter of Director General of Posts No. 45-24/88 SPB-I dated 17.5.1989:
"Copy of DG Dept. of Posts, New Delhi letter No. 45-24/88 SPB-I, dated
17.5.1989
Sub:- As above.
Sir,
I am directed to pay that reference have been received seeking
clarification as to which class of workers should be treated as full time or
part time casual labourers.
2. It is hereby clarified that all daily wagers working in post offices or in
RMS offices or in administrative officers under different designations
(mazdoor, casual labourer outsider) are to be treated as casual labourers.
These casual labourers who are engaged for a period of less than 8 hours
a day should be described as part time casual labourers. All other
designations should be discontinued.
3. Substitutes engaged against absentee should not be designated as
casual labourers, for purposes of recruitment to Group D posts,
substitutes should be considered only when casual labourers are not
available. That is, substitutes will rank list in priority, but will be above
outsiders. In other words, the following priority should be observed.
i. NIC Group D officials
ii. EDAs of the same division
iii. Casual labourers (full time or part time)
For purpose of computation of eligible service, half of the service
rendered as part time casual labourers should be taken into account. That
is, if a part time casual labourer has served for 480 days in a period of 2
years he will be treated, for the purpose of recruitment to have completed
one year as of service as full time casual labourers.
iv. EDAs of other division in the same region.
v. Substitutes (not working in metropolitan cities).
vi. Direct recruits through employment exchange.
Note: Substitutes working in metropolitan cities will however, rank above
No. (iv) in the list.
4. Please acknowledge receipt immediately.
Sd/-
Dr. Sarjaram
Asst. Director General (SPN)"
In terms of the above letter, the applicant who is working in Beypore Sub Post Office
for a period less than 8 hours a day should be described as part time casual labour.
9. In an identical matter in O.A. No. 534/2003, this Tribunal decided as under:
"3. We have heard the learned counsel on either side and have perused the material on record. The contention of the respondents that the applicant is not entitled to any preference as per A-3 notice because her name was not sponsored for appointment as part time sweeper is no more tenable in view of the orders of this Tribunal in OA Nos.818/2000 and 936/2001. Under identical circumstances, this Tribunal held that as the applicants in those cases had been permitted to continue as part time casual labour for a long time and had been appointed by the competent authority, the fact that their names were not sponsored by the employment exchange could not be held out to be a valid reason for denying them the benefit of the long service for preference for appointment to ED posts. We find that there is no reason to differ from the view taken. It is a fact that the applicant has been working continuously from 1.6.95 onwards till date. If the appointment was irregular and the service would not give any benefit to the applicant, the respondents should have resorted to
a process of selection through employment exchange and made appointment to the post of part time sweeper. They did not do that but allowed the applicant to continue for more than 7 years. In these circumstances, we find no justification for not considering the applicant for appointment by giving preference in terms of A-3, inspite of repeated instructions contained in A-4.
4. In the light of what is stated above, we allow the application
and direct the first respondent to consider the request of the
applicant for appointment to the post of GDS MD, Velliapally, giving
preference to her in terms of A-3 and A-4 despite the fact that the
applicant's appointment as a part time Sweeper was not routed
through employment exchange."
10. In O.A. No. 571/2001 also, similar decision was taken by this Tribunal. The
relevant part is extracted as follows :
"3. An identical issue came up for consideration before the Bench
in OA 818/2000. In that case, the part time contingent employee
who had been working from December 1993 onwards was denied
the benefit of preference in the matter of appointment to ED post for
the reason that the applicant was not sponsored by the Employment
Exchange. The Tribunal held that as the applicant had worked as
Part Time casual labourer for a long period, this benefit should not
be denied to him solely for the reason that he was not engaged as
casual labour through the intervention of the agency of Employment
Exchange. The facts of this case are also similar. The applicant
admittedly is working as Part time contingent Sweeper with effect
from 1.1.1996 onwards without break and the 3rd respondent has
forwarded her representation to the 2nd respondent. The 3rd
respondent forwarded the application being convinced that the
applicant having been working continuously from 1996 onwards was
eligible to be treated as a regular Part time Contingent Sweeper and
was eligible to be appointed as ED Agent in preference to outsiders.
4. In the result, the application is allowed. The respondents are
directed to consider the applicant for appointment to the post of
EDMC Chittanjur treating her as a regular Part time employee giving
her the benefit of the directions contained in the letter of Director
General of Posts, dated 6.6.88 and 31.3.92. Recruitment to the post
of EDMC, Chittanjur through open market should be resorted to only
if the applicant is found unsuitable for such appointment."
11. In O.A. No. 03/2005, it was held by this Tribunal as under :
"7. Therefore the contention of the respondents that the applicant
had not been sponsored by Employment Exchange cannot hold
good. Further, in (1996) 6 SCC 216, Excise Superintendent,
Malkapatnam, Krishna District, A.P., the Apex Court has held that,
restricting the selection only to the candidates sponsored by the
Employment Exchange, was not proper. In the circumstances,
the applicant has made out a case and therefore we are of the view
that the relief has to be granted to the applicant The contention of
the applicant that vide Annexure A-5 notification the respondents are
attempting to fill up the said vacancy on provisional basis, on going
through the said notification, we find that though appointment is on
provisional basis it is likely to be regularised. In the circumstances,
we are of the view that it is a fit case where direction be given to the
respondents to consider the applicant for an appointment to the post
of GDS BPM Ambalathara.
8. In the light of the above submissions, the application is
allowed. Respondents are directed to consider the applicant for an
appointment to the post of GDS BPM Ambalathara and give her the
benefit contained in the letter of Director General of Posts. It is
made clear that selection through open market could only be
resorted to, if the applicant is found unsuitable for such appointment.
With above direction the O.A is allowed. In the circumstances, no
order as to costs."
The order of this Tribunal in OA 3 of 2005 fully covers the present OA.
12. In Writ Petition ) No. 33732/2005 challenging the order in the said OA, the
Hon'ble High Court of Kerala held as follows :
"....... Going by the department instruction, such casual labourers
are to be given preference in the matter of recruitment. It is for the
department to ensure that the appointments even on casual basis
are not made through the back door. Having appointed people like
the applicant and such applicants having gained experience as
casual labourers they cannot be prevented from participating in the
selection and appointment. It is seen that the Tribunal as well as
this court has consistently taken the stand as above, and the
directions have been implemented also. We do not find any merit in
this writ petition and it is accordingly dismissed."
13. In OA No. 744 of 2009, this Tribunal held as under:
"7. In view of the above position, we allow this OA and declare that the
applicant is eligible and entitled to be considered for appointment as GDS Mail
Packer, Ayyanthole in preference to outsiders in terms of Annexure A-3 letter
dated 6.6.1988. Consequently, the respondents are directed to consider the
applicant for appointment to the post of GDS Mail Packer Ayyanthole giving her
the benefit contained in the letter of Director General of Posts (Annexure A-3).
It is made clear that selection through open market could only be resorted to, if
the applicant is found unsuitable for such appointment. The aforesaid direction
shall be carried out by the respondents within a period of two months from the
date of receipt of a copy of this order. There shall be no order as to costs."
The applicant is similarly placed as the applicant in the aforesaid OA in as much as both are part time sweepers, without formal appointment orders on daily wage basis.
14. In the light of the decisions of this Tribunal in a number of cases and the decision of the Hon'ble High Court, the respondents cannot deprive the applicant ofthe benefit of the departmental instruction to give preference in the matter of recruitment on the plea that they have not given an appointment letter but only taken work from the applicant for so many years. If the post in question is going to be filled up by transfer, appointment of outsider in preference to the applicant does not arise.
But the applicant is entitled to preference if he fulfills all conditions, for appointment as GDS in any vacancy.
15. In the result, the O.A. succeeds. The first respondent is directed to consider the applicant for appointment to the post of GDS BPM, S.V. Colony P.O., in preference to open market candidates giving the benefit of Annexure A/1 letter dated 06.06.1988 within a period of 60 days from the date of receipt of a copy of this order. If the vacancy at S.V. Colony is filled up by transfer, he should be considered for any other vacancy. No order as to costs.
(Dated, the 7th June, 2010)
K. GEORGE JOSEPH JUSTICE K THANKAPPAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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