Tuesday, June 2, 2015
CAT Bench CHANDIGARH judgement on Sr Postmaster Cadre
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH
ORIGINAL APPLICATION NO.1328/HR/2011
Order Reserved on 23.04.2015
Pronounced on 28.04.2015
CORAM: HON'BLE MRS. RAJWANT SANDHU, MEMBER (A)
HON'BLE DR. BRAHM A. AGRAWAL, MEMBER (J)
1. All India Association of IPASP, Haryana Circle through Circle Secretary Sh. Hira Lal son of Late Sh. Chandu Ram, age 47 years working as ASPO(HQ) Kurukshetra.
2. Subash Chander son of Sh. Ram Dia, aged 41 years, ASPO Yamunanagar Postal Sub Division, Yamunanagar.
3. All India Association of IPASP, Punjab Circle Headquarters, Chandigarh through Circle Secretary Hari Mohan son of Shri Kishan Pal, aged 50 years, officiating as Deputy Divisional Manager, PLI, office of Chief Post Master General, Punjab Circle, Chandigarh
4. Gopal Krishan son of Late Sh.S.Sharma Asstt. Supdt. Post Offices, East Sub Division, Chandigarh.
1. Union of India through the Secretary to Government of India, Ministry of Communications & Information Technology, Department of Posts, New Delhi.
2. The Chief Postmaster General, Punjab Circle, Chandigarh.
3. The Chief Postmaster General, Haryana Circle, Ambala.
Present: Sh. V.K. Sharma, counsel for the applicants.
Sh. Rohit Mittal, proxy for Sh. Rakesh Verma, counsel for the respondents.
O R D E R
BY HON'BLE MRS. RAJWANT SANDHU, MEMBER (A)
1. This O.A. has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
8(i) Quash the letter dated 3.10.2011 (Annexure A-1) by which Limited Departmental Examination for Promotion to the cadre of Sr. Postmaster (Gazetted) has been ordered to be held on 31.12.2011 which is against the Department of Posts, Postal Supdts/Postmaster Group B Recruitment Rules, 1987 as amended from time to time as there is no vacant post in the quota prescribed under the rules.
ii. Quash the letter dated 29.11.2011 by which the applicants have been informed that ASPO are not eligible for appearing in the examination.
iii. Quash the Department of Posts, Senior Postmaster (Group B Gazetted), Postmaster (Grade III and II-Group B non-Gazetted) and Postmaster (Grade I-Group C Non-Gazetted) Recruitment Rules, 2010, Annexure A-8 i.e Postmasters Cadre Rules, 2010 run contrary to the Postal Services Postmaster Group B Rules, 1987 as amended from time to time, as the quota of the Inspector Line, has also been reduced from 19% and 75% by carving out the posts. There are also no vacant posts under 75%, 19% and 6% quota.
iv. During the pendency of the OA, the operation of the impugned order Annexure A-1 may be stayed.
v. Issue direction to the respondents to consider the case of the members of the applicant No 1 Union and other applicants for promotion under rules of 1987 in their quota and promote them from due date with all the consequential benefits and it be declared that the bifurcation of quota now carried out by the respondents is illegal, arbitrary and bereft of any discernible principle.
2. It has been stated in the O.A. that the applicants are an Association of the employees which is represented by their Circle Secretary. Its members and applicant No. 2 and 4 are similarly situated and common question of facts and law are involved in respect of all the applicants and as such they have filed a Joint Original Application which may be allowed in the interest of justice.
3. It has further been stated that there was a cadre of Post Master, which was governed by the Postmaster Services Class II (Recruitment) rules, 1975. Similarly, there was a cadre of Postal Superintendents governed by the statutory set of rules equivalent to the Post Master Services Class II Rules, 1975. In 1987 both these cadres were merged and governed by the rules know as Department of Posts, Postal Superintendents/ Postmasters Group ‘B’ Recruitment Rules, 1987. In 1993 these rules were amended and it was laid down that 75% of total posts would be filled by promotion from amongst Inspector of Post Offices and Inspector of Railway Mail Service (Pay scale of Rs.1400-2300) with 5 years of regular service in the grade. Copy of the Department of Posts, Postal services Group ‘B’ Recruitment (Amendment) Rules, 1993 is appended as Annexure A-3. Inspector Post Offices are further promoted as ASPO and they formed one cadre. Since under the 1987 Rules, ASPOs were not eligible to appear in the examination for promotion to the post of Postal Services Group B, a clarification was issued on 23.8.1994 for making ASPOs and HSG-I officials as eligible for appearing in the examination (Annexure A-4). On the basis of these rules in the cadre of postal Services Group B, total posts in the different quotas were as under :
(a) 75% quota 649
(b) 19% quota 165
(c) 6% quota 52
4. On 3.2.2010, an order was issued by which it was decided to constitute a separate cadre of Postmasters by carving them out from the existing general line cadre posts and Postal Services Group B of Postal Wing and to designate them as Senior Postmaster, Postmaster Grade III, Postmaster Grade II and Postmaster Grade I. On the basis of this a letter was issued on 22.11.2010 stating therein that in the wake of introduction of technology, challenges from the market and to increase productivity, it is absolutely essential to ensure that key post offices are headed by the professional managers (Annexure A-5). In order to ensure that professionally qualified, trained and meritorious officials held the key post offices, it has been decided to introduce a separate cadre of Postmasters. The posts were to be carved out from the existing general line posts, instead the posts of Senior Postmaster were carved out from the total strength of General line and Inspector line. The number of Senior Postmasters posts has been calculated as 116. It was also mentioned in para 5 of the letter dated 22.11.2010 that initial constitution of various grades of Postmaster shall be done by inviting options/applications from the existing incumbents of LSG, HSG II, HSG I in post offices and Postal Services Group B. Some of the members of the Association had been promoted in Postal Services Group B and are awaiting promotion against 75% Quota. However, no options were called from them being not eligible. Thereafter owing to fresh notification dated 22.11.2010, none of the senior Inspectors/Asst Supdt Post Offices, awaiting promotion for 649 posts (75% Quota) would be eligible for opting as Senior Postmaster as 100% promotion to Senior Postmaster from Inspector line officials is through Limited Departmental Competitive Examination. From the letter dated 9.2.2011, issued by the respondent no.2 it was clear that applications had been invited only from the Postal Service Group B officials including Senior Postmaster working on regular basis (Annexure A-6).
5. Total posts in Postal Group ‘B’ services under 75% quota, 19% quota and 6% quota are 866 and 116 posts have been carved out from 866 posts meaning thereby that the quota has to be read keeping in view the remaining posts, which are 750 if the 2010 rules are to be applied which the applicants challenge. In case this was not so, the respondents would have called options from the younger officials promoted and working in Postal Group B services under 19% and 6% quota. This has been admitted by the respondents in their letter dated 31.5.2010 when applicants sought information under the RTI Act, after the issuance of the letter dated 3.2.2010 (Annexure A-7). On the basis of this letter, the recruitment rules have been notified as Department of Posts, Senior Postmaster (Group B Gazetted), Postmaster (Grade III and II - Group B Non-Gazetted) and Postmaster (Grade I, Group C non-Gazetted) Recruitment Rules, 2010 (Annexure A-8).
According to these rules, 25% of the posts of senior Postmaster are required to be filled by promotion and 75% are to be filled through Limited Departmental Competitive Examination in the following manner:
Postmaster Grade-III in PB-2 of Rs.9300-34800 and Grade pay of Rs.4600/- with two years regular service in the grade (including regular service in Higher Selection Grade-I, if any).
75% promotion (through Limited Departmental Competitive Examination):
Inspectors of Posts in P-2 of Rs.9300-34800 and Grade pay of Rs.4200/- with six years, regular service in the grade after qualifying a Limited Departmental Competitive Examination.
6. In the grounds for relief it has, inter alia, been stated as follows:
(i) It is well settled law that one can be promoted in his own quota and vacancies of one quota cannot be diverted to another quota. Under the 1987 rules as amended in 1993 there is no Departmental Examination for filling the 75% posts but so far all posts of PSS Group B have been filled up through competitive examination. This is because of defective policy of introducing examination for promotion to PSS Group B through competitive examination and not maintaining representation roster for 19%, 6% and 75%.
(ii) For all recruitments representation roster is being maintained to fill the reserved vacancies. Neither representation can exceed the total percentage nor can it be replaced by any other point. As such 75% means filling 75% on the total strength and not vacancies that occur in a particular year. Application of the percentage of reservation through the vacancy based roster was called in question in various cases including in the celebrated case of R.K. Sabharwal Versus State of Punjab, wherein it has been held that reservation of jobs should apply to posts and not to vacancies. There is every apprehension that the examination for 75% vacancies is being conducted without calculating the posts under the quota as there is no vacant post in either quota of PSS group B.
(iii) The calculation of vacancies in the present manner is even against the principles of natural justice because reservation in promotion by seniority subject to fitness was introduced in 1972, subject to some conditions. In 1974, reservations in promotion by selection from C to B within B and from B to the lowest rung of Group A were introduced providing the element of direct recruitment does not exceed 50%. Contrary to this, in the notification dated 22.11.2010, all 87 posts (75% of 116) earmarked for Senior Postmaster are ordered to be filled through examination. Instead these should be part of 19% roster meant for Limited Departmental Competitive Examination. Thus, the action of respondents stand vitiated.
(iv) The respondents are liable to be directed to identify 75% of 116 posts (87 posts) of Sr. Postmaster for filling up through the competitive examination and recast the roster for different stream i.e.19%, 6%, keeping intact the seniority cum fitness quota amongst Inspector Posts cadre to the extent of 649 posts out of 866 posts of PSS Group B. Only those posts which fall vacant owing to retirement, promotion, resignation, death etc. under 19% and 6 % quota should be filled through examination. Otherwise all the 100% post will be occupied by the officials coming through examination and the experienced Inspector Post cadre official will be ignored and deprived of promotional avenue resulting in frustration due to stagnation, and will mar efficiency in the cadre, which will be arbitrary, irrational and discriminatory.
(v) Otherwise also in this examination, according to the rules of 2010, Asstt. Supdt Post Offices is not eligible to appear in the examination for promotion to the post of Sr. Post Master particularly when the post of Asstt. Supdts of Post Offices and Inspectors of Post Offices form one cadre and are in common seniority list and both the posts come under PB-2 of Rs.9300-34800/- with difference in Grade Pay only. Inspectors are in the grade pay of Rs.4200/- whereas the ASPOs are in the grade pay of Rs.4600/-. Since under the 1987 rules read with clarification of 1994, ASPOs were made eligible for appearing in the examination for promotion to PSS Group B, no justification is there to debar the ASPOs for appearing in the examination if the rules of 2010 are to be applied which cannot be applied unless the rules of 1987 are amended.
7. Written statement on behalf of the respondents was initially filed on 07.05.2012 wherein it has been stated that the Department of Posts issued orders creating Postmaster cadre consisting of Postmaster Grade-I, Grade-II & III and Sr. Postmasters (Gazetted) in exercise of the powers conferred by the proviso to Article 309 of the Constitution. The rules regulating the method of recruitment to the posts of Sr. Postmasters Gr-B (Gazetted) were promulgated vide notification no.137-03/2009-SPB-II dated 09.09.2010 (Annexure R-1). As per the notified statutory Recruitment Rules for Sr. Postmasters (116 numbers), are to be filled by the following methods:
(i) 25% of posts from Postmaster Gr.III in PB-2 of Rs.9300-34800 with grade pay of Rs.4600 with two years regular service.
(ii) 75% of posts by promotion through Limited Competitive Departmental Examination and according to Item No.12 of the RRs Inspector of Posts in PB-2 of Rs.9300-34800 and Grade Pay of Rs.4200 with six years regular service after qualifying a Limited Departmental Competitive Examination.
The Department of Posts issued a notification on 03.10.2011 for holding the Limited Departmental Competitive Examination for promotion to the cadre of Sr. Postmasters (Gazetted) on 31.12.2011 from amongst eligible candidates. The ASPs who are in the Gr. B gazetted status in the Grade Pay of Rs.4600 are not eligible and their applications for appearing in the LDCE were not considered. The applicant no.3 previously filed OA No.399/PB/2011 on the same issue but while pronouncing the order on 26.05.2011, this Tribunal did not give its finding on the relief. The applicants through this OA are making one more attempt.
8. Amended written statement was filed on behalf of the respondents on 18.02.2013 wherein it has been stated that the present OA is not maintainable because the Rules regulating the method of recruitment to the post of Senior Post Master Grade-B (Gazetted) were promulgated under Article 309 of the Constitution of India vide notification No.137-03/2009-SPB-II dated 09.09.2010. Accordingly to Recruitment Rules of Sr. Postmaster (Gazetted), 25% of the posts are to be filled from General Line Officials through DPC, while 75% of the posts are to be filled from Inspector Post Line Officials through a Limited Departmental Competitive Examination. Further, according to item 12 of Recruitment Rules, 25% of the posts to be filled from General Line Officials are through Postmaster Grade-III in PB-2 of Rs.9300-34800 with Grade Pay of Rs.4600/- with two years regular service in the Grade (including regular service in HSG-I), while 75% of the posts to be filled from Inspector Post Line are from Inspector of Posts officials in PB-2 of Rs.9300-34800 with Grade Pay of Rs.4200/- with six years regular service.
9. In order to fill the posts of Sr. Postmaster, a notification dated 03.10.2011 for holding the Limited Departmental Competitive Examination for promotion to the cadre of Sr. Postmaster (Gazetted) was issued. Since the Asstt. Supdt. Posts working in Grade Pay of Rs.4600/- have been conferred ‘Gazetted Status’ but not given Group-B, therefore, these were not made eligible in the aforesaid examination, also as per the RRs. As per the Recruitment Rules, only Inspector Post Officials having six years of regular service in PB-2 of Rs.9300-34800 with Grade Pay of Rs.4200/- are eligible to appear in the LDCE. LDCE examination was later on postponed till further orders. Hence, in view thereof, the present OA deserves dismissal as no cause of action has accrued to the applicants.
10. It has also been mentioned in the written statement that total number of posts apportioned to IPO Line and General line after amendment of existing RRs of Postal Superintendent Gr.B remains to be settled and to this extent O.A. is premature.
11. Arguments advanced by learned counsel for the parties were heard when learned counsel for the applicant reiterated the facts and grounds taken in the O.A. He stated that as per the 1987 Rules, the number of posts of Superintendent/Postmaster Gr. B Service Recruitment Rules mentioned therein was 790 and this figure could not have been varied without there being amendment of the Rules. Hence action of the respondents in taking away 116 posts from this cadre and designating these as Senior Postmaster was highly irregular. He stated that the LDCE examination for promotion to the cadre of Senior Postmaster (Gazetted) could not be held as notified vide letter dated 03.10.2011 (Annexure A-1), since there was no mention therein of the number of posts to be filled through this examination. The respondents had themselves stated in response to a RTI application that there were no vacancies available in the Group B cadre. Hence it was not understood as to why the LDCE was proposed to be held. He also stated that relief clause 8(ii) had been rendered infructuous and he was not pressing for the same.
12. Learned counsel for the respondents stated that the Senior Post Master Group B Gazetted, Postmaster Grade III and II Group B non-Gazetted and Postmaster Grade I-Group C non-Gazetted Recruitment Rules, 2010 had been promulgated in exercise of powers conferred by the proviso to Article 309 of the Constitution of India and the applicants could not challenge the same. It was for the Department to decide on the number of posts to be apportioned to each category keeping in view work load, the nature of duties and other aspects and hence there was no merit in this O.A.
13. We have given our careful consideration to the matter. The claim made in the O.A. that the promotion to the posts notified by the Postal Department should continue under the Rules of 1987, is clearly unreasonable since the department has notified the Department of Posts, Senior Post Master (Group B Gazetted), Postmaster (Grade III and II-Group B non-Gazetted) and Postmaster (Grade I, Group C non-Gazetted) Recruitment Rules, 2010 on 09.09.2010. Therefore, any selection to these posts after the September 2010 has to take place in accordance with these Rules. Moreover, through the circular dated 03.10.2011, the applications were invited for LDCE for the post of Senior Postmaster (Gazetted) and Rules for these posts had only notified on 09.09.2010. The O.A. is therefore held to be without merit and is dismissed.
MEMBER (J) MEMBER (A)