The Tribunal in the instant case sought to
distinguish the aforementioned case with the case in
hand, by placing reliance on another decision of the
Tribunal and holding that the Full Bench was concerned
with the cases of those candidates covered under Column
11(2)(i), whereas the case of the candidates in the
instant case was covered under Column 11(2)(ii), and
thus, the decision of the Full Bench has no bearing on
the facts of the case on hand. This reasoning of the
Tribunal cannot be sustained, as the Full Bench of the
Tribunal was clearly adjudicating the broader question of
whether the appointment of Extra Departmental Agents to
the post of Postman is by way of direct recruitment or by
way of promotion. The attempt to distinguish the ratio of
the Full Bench of the Tribunal on such a superficial
ground is akin to reading the decision of the Full Bench
like a Statute, which cannot be sustained.
NON REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 90 OF 2015
Y. NAJITHAMOL & ORS.Vs.SOUMYA S.D. & ORS.
Dated:August 12, 2016
Citation:(2016) 9 SCC 352
The present appeals arise out of the common impugned
judgment and order dated 20.12.2011 passed by the High
Court of Kerala at Ernakulam in OP (CAT) No. 1095 of 2011
(S) and connected petitions, whereby the High Court
upheld the order of the Central Administrative Tribunal,
Ernakulam Bench (hereinafter referred to as the
“Tribunal”), which held that the appointment from GDS/EDA
to the post of Postman is only by promotion and not
direct recruitment, and that because of this reason, the
age restriction under Column No. 7(2) of the Department
of Posts (Postman/ Village Postman and Mail Guards)
Recruitment Rules, 1989 (hereinafter referred to as the
“Recruitment Rules”) as well as reservation against the
OBC category is not permissible.
2. Since a common question of law arises in both these
appeals, for the sake of convenience, we refer to the
facts of the Civil Appeal No. 90 of 2015. The facts of
the case required to appreciate the rival legal
contentions advanced on behalf of the parties are stated
in brief as hereunder:
Appellant nos. 1-4 belong to the OBC category. On
30.11.1992, appellant no.3 commenced service as a Gramin
Dak Sevak (GDS) MD. Appellant no.2 commenced service as
GDS MD on 16.11.1998, appellant no.4 on 22.08.2001 and
appellant no.1 on 08.01.2003. In 2009, the Postmaster
General notified 11 vacancies for the post of
Postman/Mail Guard. On 27.02.2010, all the four
appellants were appointed to the post of Postman, after
passing the departmental examination for the same.
Challenging the said appointments, Respondent nos. 1 and
2 filed OA 436 of 2010 before the Tribunal on the ground
that the appointment to the post of Postman is by way of
promotion and, therefore, there can be no reservations
for persons belonging to OBCs for the said posts. It was
contended before the Tribunal that the selection and
appointment of the appellants herein under GDS merit
quota overlooking the higher marks obtained by the
respondents herein on the basis of the examination held
on 20.12.2009 is illegal and arbitrary and that the same
is violative of Articles 14, 16 and 21 of the
Constitution of India. The Tribunal, adjudicating the
essential question as to whether the recruitment of GDS
to the cadre of Postman through departmental examination
is merit based selection on promotion or not, held as
under:
“If the Recruitment Rules for Postman/
Mail Guard are read keeping the entire
scheme of promotion in view then the
method of recruitment of GDS to the
cadre of Postman through departmental
examination is to be treated as merit
based selection on promotion only.
Admittedly, the reservation for the OBC
category will not apply to the
recruitment of GDS to the cadre of
Postman in the instant O.A.
Consequently, the nature of the
unfulfilled unreserved vacancies in the
departmental quota when added to the
merit quota of GDS will remain the same
as unreserved. Therefore, there is no
justification for transferring the
unreserved vacancies to the OBC
category. That being so, the appointment
of the party respondents 4 to 7 is
against unreserved vacancies. This
appointment is legally untenable because
the claim of the applicants for
appointment against unreserved
vacancies, on account of their having
higher merit than the part respondents
cannot be ignored.”
The Tribunal further held that the order of the Full
Bench of the Tribunal passed in O.A. No. 807 of 1999,
dated 03.11.1999, holding that the appointment of Extra
Departmental Agents to the post of Postman was by way of
direct recruitment and not promotion was not applicable
to the facts of the instant case. It was distinguished on
the ground that the question before the Full Bench was
with respect to filling up of those 25% of total
vacancies notified for the post of Postman, which were to
be filled on the basis of seniority, and thus, pertained
to Column 11(2)(i) of the Recruitment Rules, whereas the
controversy in the instant case was with respect to the
other 25% of the total vacancies, which were to be filled
on the basis of merit in the departmental examination and
thus, pertained to Column 11(2)(ii) of the Recruitment
Rules.
3. Aggrieved of the order of the Tribunal, the
appellants challenged the correctness of the same by way
of filing a Writ Petition before the High Court of Kerala
at Ernakulam. The Division Bench of the High Court came
to the conclusion that a reading of Columns 11(1) and (2)
of the Recruitment Rules does not support the claim that
appointments to the said posts are being made by way of
direct recruitment instead of promotion. The Division
Bench of the High Court held as under:
“We are only concerned with Col.11 (1),
11(2)(i) and 11(2)(ii). The entire
vacancies as of now is divided into two
portions, i.e. 50% could not be made by
promotion from Group D on the basis of
their merit in the departmental
examination, then the unfulfilled
vacancies would go to Extra Departmental
Agents on the basis of the rank list in
the departmental examination. Then among
the other 50%, 25% would go to persons
based on the seniority who need not take
any departmental examination and for that
25%, if candidates are not sufficient for
consideration to the post of Postman
based on the seniority, the rest will
again go to Extra Departmental Agents
based on the merit in the rank list in
the departmental examination, then the
other 25% from among the Extra
Departmental Agents based on the merit in
the departmental examination. If still
any vacancies are available, from one
recruiting division to another postal
division is also contemplated and after
exhausting that process, if the posts are
still remain unfilled again from one
postal division located in the same
station to another postal division
located in the circle. After exhausting
the exercise contemplated under Col.11
(1) to (4), if any posts are vacant, then
the question of direct recruitment from
the nominees of Employment Exchange comes
into play. Reading of Column 11(2) to
(4), nowhere it refers to any direct
recruitment as such. It only says by
promotion so far as Group D and if
candidates are not sufficient for
promotion in Group D, then it goes to
Extra Departmental Agents on the basis of
merit in the examination. If the
intention were to be by promotion only
from Group D candidates, then the
unfilled from the category under Column
11(1) ought not to have been earmarked
for Extra Departmental Agents based on
their merit in the Departmental
examination.”
The High Court accordingly dismissed the Writ Petitions
filed by the appellants herein questioning the
correctness of the order passed by the Tribunal. Hence
the present appeals.
4. We have heard Mr. V. Giri, the learned senior counsel
appearing on behalf of the appellants in the Civil Appeal
90 of 2015 and Mr. N.K. Kaul, learned Additional
Solicitor General appearing on behalf of Union of India
and Dr. K.P. Kylashnath Pillay, learned senior advocate
appearing on behalf of some of the respondents.
5. The essential question of law which arises for our
consideration in the instant case is whether the
appointment of the appellants to the post of Postman is
by way of direct recruitment or by promotion.
6. We first turn our attention to the relevant rules at
play in the instant case, which are the Recruitment
Rules. The Schedule to the said Recruitment Rules
specifies the method of recruitment, age limit,
qualifications etc. relating to appointments to the said
posts. Column 1 specifies the name of the post as
Postman/Village Postman, and Column 3 specifies it to be
a Group ‘C’ post.
7. Column 11 of the Recruitment Rules which is at the
heart of the controversy in the present case, reads as
under:
“Method of recruitment whether by direct
recruitment or by promotion or by
deputation/transfer and percentage of
the vacancies to be filled by various
methods :-
1.50% by promotion, failing which by Extra
Departmental Agents on the basis of their
merit in the Departmental Examination.
2.50% by Extra Departmental Agents of the
recruiting division of Unit, in the following
manner, namely:
(i) 25% of vacancies of postman shall be
filled up from amongst Extra
Departmental Agents with a minimum
of 5 years of service on the basis
of their seniority, failing which by
the Extra Departmental Agents on the
basis of Departmental examination.
(ii) (ii) 25% from amongst Extra
Departmental Agents on the basis of
their merit in the departmental
examination.
3.If the vacancies remained unfilled by EDAs of
the recruiting division, such vacancies may
be so filled by EDAs of the postal division
failing in the Zone of Regional Director.
4.If the vacancies remained unfilled by EDAs of
the recruiting units such vacancies may be
filled by EDAs of the postal divisions
located at the same station. Vacancies
remaining unfilled will be thrown upon to
Extra Departmental Agents in the region.
5.Any vacancy remaining unfilled shall be
filled up by direct recruitment through the
nominees of the Employment Exchange."
A careful reading of the above Column makes it clear that
essentially two ‘pools’ are envisaged from which
appointments to the post of Postman can be made. One is
the pool of those candidates who are being promoted, and
the other is the pool of the Extra Departmental Agents
who are appointed to the said post after passing a
departmental examination. 50% of the candidates being
appointed to the post of Postman are selected by way of
promotion. The remaining 50% of the candidates are
selected in two ways. 25% of the candidates are selected
from amongst the Extra Departmental Agents on the basis
of their seniority in service, and the other 25%
candidates are selected from the Extra Departmental
Agents based on their merit in the Departmental
Examination.
8. Further, Column 12 of the Recruitment Rules reads as
under:
“In case of recruitment by
promotion/deputation/transfer grade from
which promotion/deputation/transfer to
be made:
1.Promotion from Group 'D' officials who have
put in three years of regular and
satisfactory service as on the closing date
for receipt of applications through a
Departmental examination.
2.Extra Departmental Agents through a
Departmental Examination.
3.Direct recruitment through a Departmental
Examination."
The post in the instant case, that of Postman is a Group
‘C’ post. Thus, it is quite natural that ‘promotion’ to
the said post can happen only from the feeder post, which
in the instant case, are the Group ‘D’ posts. Admittedly,
GDS is not a Group ‘D’ post, and members of GDS are
merely Extra Departmental Agents.
9. At this stage, it is also useful to refer to the
decision of this Court in the case of C.C. Padmanabhan &
Ors. v. Director of Public Instructions & Ors.1, wherein
it was held as under:
“This definition fully conforms to the
meaning of 'promotion' as understood in
ordinary parlance and also as a term
frequently used in cases involving
service laws. According to it a person
1
1980 (Supp) SCC 668
already holding a post would have a
promotion if he is appointed to another
post which satisfies either of the
following two conditions, namely-
(i) that the new post is in a higher
category of the same service or class of
service;
(ii) the new post carries a higher grade
in the same service or class.”
Promotion to a post, thus, can only happen when the
promotional post and the post being promoted from are a
part of the same class of service. Gramin Dak Sevak is a
civil post, but is not a part of the regular service of
the postal department. In the case of Union of India v.
Kameshwar Prasad2, this Court held as under:
“2. The Extra Departmental Agents system
in the Department of Posts and Telegraphs
is in vogue since 1854. The object
underlying it is to cater to postal needs
of the rural communities dispersed in
remote areas. The system avails of the
services of schoolmasters, shopkeepers,
landlords and such other persons in a
village who have the faculty of
reasonable standard of literacy and
adequate means of livelihood and who,
therefore, in their leisure can assist
the Department by way of gainful
avocation and social service in
ministering to the rural communities in
their postal needs, through maintenance
of simple accounts and adherence to
minimum procedural formalities, as
prescribed by the Department for the
purpose. [See: Swamy's Compilation of
Service Rules for Extra Departmental
Staff in Postal Department p. 1.]”
2
(1997) 11 SCC 650
Further, a three-judge Bench of this Court in the case of
The Superintendent of Post Offices & Ors. v. P.K. Rajamma3
held as under:
“It is thus clear that an extra
departmental agent is not a casual worker
but he holds a post under the
administrative control of the State. It
is apparent from the rules that the
employment of an extra departmental agent
is in a post which exists "apart from"
the person who happens to fill it at any
particular time. Though such a post is
outside the regular civil services, there
is no doubt it is a post under the State.
The tests of a civil post laid down by
Court in Kanak Chandra Dutta's case
(supra) are clearly satisfied in the case
of the extra departmental agents.”
(emphasis laid by this Court)
A perusal of the above judgments of this Court make it
clear that Extra Departmental Agents are not in the
regular service of the postal department, though they
hold a civil post. Thus, by no stretch of imagination can
the post of GDS be envisaged to be a feeder post to Group
‘C’ posts for promotion.
10. A Full Bench of the Ernakulam Bench of the Central
Administrative Tribunal in the case of M.A. Mohanan v.
The Senior Superintendent of Post Offices & Ors.4, had the
3
(1977) 3 SCC 94
4
O.A. No. 807 of 1999, decided on 03.11.1999
occasion to consider a similar question. The majority
opinion of the Tribunal held as under:
“As the name itself indicates, EDAs are
not departmental employees. They become
departmental employees from the date of
their regular absorption as such. And
promotions are only for departmental
employees. Therefore, EDAs cannot be
treated as 'promoted' as Postmen. They
can be treated as only appointed as
Postmen. It is further seen from
instructions of Director General Posts
under Rule 4 of Swamy's publication
referred to earlier that EDAs service are
terminated on appointment as Postman and
hence they become eligible for ex gratia
gratuity. If the recruitment of EDAs as
Postman is treated as a promotion, the
question of termination will not arise.
This also leads one to conclude that the
recruitment of EDAs Postman cannot be
treated as one of promotion.
Further, Hon'ble Supreme Court in C.C.
Padmanabhan and Ors. v. Director of
Public Instructions and Ors., 1980
(Suppl.) SCC 668=1981(1) SLJ 165 (SC),
observed that 'Promotion' as understood
in ordinary parlance and also as a term
frequently used in cases involving
service laws means that a person already
holding a position would have a promotion
if he is appointed to another post which
satisfies either of the two conditions
namely that the new post is in higher
category of the same service or class.
Applying the above criteria appointment
as Postman from EDA cannot be termed as
promotion as the posts of Postman and EDA
belong to two different services viz.
regular Postal Service' and 'Extra
Departmental Postal Service.'”
(emphasis laid by this Court)
11. The Tribunal in the instant case sought to
distinguish the aforementioned case with the case in
hand, by placing reliance on another decision of the
Tribunal and holding that the Full Bench was concerned
with the cases of those candidates covered under Column
11(2)(i), whereas the case of the candidates in the
instant case was covered under Column 11(2)(ii), and
thus, the decision of the Full Bench has no bearing on
the facts of the case on hand. This reasoning of the
Tribunal cannot be sustained, as the Full Bench of the
Tribunal was clearly adjudicating the broader question of
whether the appointment of Extra Departmental Agents to
the post of Postman is by way of direct recruitment or by
way of promotion. The attempt to distinguish the ratio of
the Full Bench of the Tribunal on such a superficial
ground is akin to reading the decision of the Full Bench
like a Statute, which cannot be sustained.
12. The Division Bench of the High Court placed
reliance on the wording of Column 11(1) to conclude that
since the Extra Departmental Agents being appointed as
provided under Column 11(1) can be called as promotees,
then the Extra Departmental Agents under Column 11(2)(i)
and (ii) also must be treated at par. The said reasoning
of the High Court also cannot be sustained. It is
nobody’s case that the Extra Departmental Agents being
appointed under Column 11(1) be called promotees. The
language of Column 11(1) itself makes this crystal clear.
The use of the words ‘failing which’ makes it obvious
that there is a distinction between those candidates who
are being selected by way of promotion, and the
candidates who are Extra Departmental Agents and have
cleared the departmental examination, and that the latter
will be considered for appointment only if there are no
eligible candidates under the former category. Thus, the
appointment of GDS to the post of Postman can only be
said to be by way of direct recruitment and not
promotion.
13. Further regard may be had to the Notification
dated 11.08.2009 issued by the Office of the
Postmaster General, Department of Posts, notifying
the examination for recruitment to the cadre of
Postman/ Mail Guard. Under the Head of ‘Eligibility’,
it states as under:
“
(i) Group D-………
(ii) GDS- For GDS, the upper age limit shall be
50 years with 5 years relaxation for SC/ST
candidates and 3 years relaxation for OBC
candidates as on 1st July, 2008 and he/ she
should have completed a minimum of 5 years
regular satisfactory services as on 1st
January 2008. There is no restriction on
number of GDS to be permitted to take the
examination under the 25% merit quota. All
eligible GDS will be allowed to appear in
the examination.
Note (i): Reservation will be provided
for OBCs in Recruitment of GDS as
Postman as is being done in the case of
SC/STs.”
The said notification also makes it evident that
reservations for candidates belonging to the OBC category
were very much in contemplation at the time the
departmental examination was conducted. Even if a mere
reading of Columns 11(1) and 11(2)(i) and (ii) of the
Recruitment Rules as well as the Notification issued
while notifying the departmental examination is not
enough, the subsequent legislative developments leave no
scope for doubt as to the legislative intent. The
relevant Column of the Department of Posts (Postman and
Mail Guard) Recruitment Rules, 2010, reads as under:
“Column 11
(a)…
(c) 25% by recruitment on the basis of
Competitive examination limited to Gramin Dak
Sevaks* of the recruiting Division who have
worked for at least five years in that capacity
as on the 1st day of January of the year to
which the vacancy(ies) belong failing which by
direct recruitment;
*Gramin Dak Sevaks are holders of Civil posts
but they are outside the regular Civil Service
due to which their appointment will be by direct
recruitment.”
Even though the said Rules are not meant to apply
retrospectively, and neither are we suggesting that they
do, this makes the position of the Gramin Dak Sevaks
crystal clear. Their appointment as Postman is only by
way of direct recruitment and not by way of promotion.
14. Having concluded that the selection of Extra
Departmental Agents or Gramin Dak Sevaks to the post of
Postman under Column 11(2)(ii) of the Recruitment Rules
is only by way of direct recruitment and not by way of
promotion, the question of whether reservation for
candidates belonging to OBC category is allowed becomes
easier to answer. It has now been well settled by a nine
judge Bench of this Court in the case of Indra Sawhney v.
Union of India5 that reservation for candidates belonging
to OBC category is permissible in cases of direct
recruitment.
15. In view of the reasoning and conclusions recorded by
5
1992 Supp (3) SCC 217
us as above, the order of the Tribunal as well as the
impugned judgment and order of the High Court are set
aside. There is no infirmity in the appointment of the
appellants to the post of Postman. The Appeals are
accordingly allowed. No costs.
…………………………………………………………J.
[V.GOPALA GOWDA]
…………………………………………………………J.
[R. BANUMATHI]
New Delhi,
August 12, 2016
Print Page
distinguish the aforementioned case with the case in
hand, by placing reliance on another decision of the
Tribunal and holding that the Full Bench was concerned
with the cases of those candidates covered under Column
11(2)(i), whereas the case of the candidates in the
instant case was covered under Column 11(2)(ii), and
thus, the decision of the Full Bench has no bearing on
the facts of the case on hand. This reasoning of the
Tribunal cannot be sustained, as the Full Bench of the
Tribunal was clearly adjudicating the broader question of
whether the appointment of Extra Departmental Agents to
the post of Postman is by way of direct recruitment or by
way of promotion. The attempt to distinguish the ratio of
the Full Bench of the Tribunal on such a superficial
ground is akin to reading the decision of the Full Bench
like a Statute, which cannot be sustained.
NON REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 90 OF 2015
Y. NAJITHAMOL & ORS.Vs.SOUMYA S.D. & ORS.
Dated:August 12, 2016
Citation:(2016) 9 SCC 352
The present appeals arise out of the common impugned
judgment and order dated 20.12.2011 passed by the High
Court of Kerala at Ernakulam in OP (CAT) No. 1095 of 2011
(S) and connected petitions, whereby the High Court
upheld the order of the Central Administrative Tribunal,
Ernakulam Bench (hereinafter referred to as the
“Tribunal”), which held that the appointment from GDS/EDA
to the post of Postman is only by promotion and not
direct recruitment, and that because of this reason, the
age restriction under Column No. 7(2) of the Department
of Posts (Postman/ Village Postman and Mail Guards)
Recruitment Rules, 1989 (hereinafter referred to as the
“Recruitment Rules”) as well as reservation against the
OBC category is not permissible.
2. Since a common question of law arises in both these
appeals, for the sake of convenience, we refer to the
facts of the Civil Appeal No. 90 of 2015. The facts of
the case required to appreciate the rival legal
contentions advanced on behalf of the parties are stated
in brief as hereunder:
Appellant nos. 1-4 belong to the OBC category. On
30.11.1992, appellant no.3 commenced service as a Gramin
Dak Sevak (GDS) MD. Appellant no.2 commenced service as
GDS MD on 16.11.1998, appellant no.4 on 22.08.2001 and
appellant no.1 on 08.01.2003. In 2009, the Postmaster
General notified 11 vacancies for the post of
Postman/Mail Guard. On 27.02.2010, all the four
appellants were appointed to the post of Postman, after
passing the departmental examination for the same.
Challenging the said appointments, Respondent nos. 1 and
2 filed OA 436 of 2010 before the Tribunal on the ground
that the appointment to the post of Postman is by way of
promotion and, therefore, there can be no reservations
for persons belonging to OBCs for the said posts. It was
contended before the Tribunal that the selection and
appointment of the appellants herein under GDS merit
quota overlooking the higher marks obtained by the
respondents herein on the basis of the examination held
on 20.12.2009 is illegal and arbitrary and that the same
is violative of Articles 14, 16 and 21 of the
Constitution of India. The Tribunal, adjudicating the
essential question as to whether the recruitment of GDS
to the cadre of Postman through departmental examination
is merit based selection on promotion or not, held as
under:
“If the Recruitment Rules for Postman/
Mail Guard are read keeping the entire
scheme of promotion in view then the
method of recruitment of GDS to the
cadre of Postman through departmental
examination is to be treated as merit
based selection on promotion only.
Admittedly, the reservation for the OBC
category will not apply to the
recruitment of GDS to the cadre of
Postman in the instant O.A.
Consequently, the nature of the
unfulfilled unreserved vacancies in the
departmental quota when added to the
merit quota of GDS will remain the same
as unreserved. Therefore, there is no
justification for transferring the
unreserved vacancies to the OBC
category. That being so, the appointment
of the party respondents 4 to 7 is
against unreserved vacancies. This
appointment is legally untenable because
the claim of the applicants for
appointment against unreserved
vacancies, on account of their having
higher merit than the part respondents
cannot be ignored.”
The Tribunal further held that the order of the Full
Bench of the Tribunal passed in O.A. No. 807 of 1999,
dated 03.11.1999, holding that the appointment of Extra
Departmental Agents to the post of Postman was by way of
direct recruitment and not promotion was not applicable
to the facts of the instant case. It was distinguished on
the ground that the question before the Full Bench was
with respect to filling up of those 25% of total
vacancies notified for the post of Postman, which were to
be filled on the basis of seniority, and thus, pertained
to Column 11(2)(i) of the Recruitment Rules, whereas the
controversy in the instant case was with respect to the
other 25% of the total vacancies, which were to be filled
on the basis of merit in the departmental examination and
thus, pertained to Column 11(2)(ii) of the Recruitment
Rules.
3. Aggrieved of the order of the Tribunal, the
appellants challenged the correctness of the same by way
of filing a Writ Petition before the High Court of Kerala
at Ernakulam. The Division Bench of the High Court came
to the conclusion that a reading of Columns 11(1) and (2)
of the Recruitment Rules does not support the claim that
appointments to the said posts are being made by way of
direct recruitment instead of promotion. The Division
Bench of the High Court held as under:
“We are only concerned with Col.11 (1),
11(2)(i) and 11(2)(ii). The entire
vacancies as of now is divided into two
portions, i.e. 50% could not be made by
promotion from Group D on the basis of
their merit in the departmental
examination, then the unfulfilled
vacancies would go to Extra Departmental
Agents on the basis of the rank list in
the departmental examination. Then among
the other 50%, 25% would go to persons
based on the seniority who need not take
any departmental examination and for that
25%, if candidates are not sufficient for
consideration to the post of Postman
based on the seniority, the rest will
again go to Extra Departmental Agents
based on the merit in the rank list in
the departmental examination, then the
other 25% from among the Extra
Departmental Agents based on the merit in
the departmental examination. If still
any vacancies are available, from one
recruiting division to another postal
division is also contemplated and after
exhausting that process, if the posts are
still remain unfilled again from one
postal division located in the same
station to another postal division
located in the circle. After exhausting
the exercise contemplated under Col.11
(1) to (4), if any posts are vacant, then
the question of direct recruitment from
the nominees of Employment Exchange comes
into play. Reading of Column 11(2) to
(4), nowhere it refers to any direct
recruitment as such. It only says by
promotion so far as Group D and if
candidates are not sufficient for
promotion in Group D, then it goes to
Extra Departmental Agents on the basis of
merit in the examination. If the
intention were to be by promotion only
from Group D candidates, then the
unfilled from the category under Column
11(1) ought not to have been earmarked
for Extra Departmental Agents based on
their merit in the Departmental
examination.”
The High Court accordingly dismissed the Writ Petitions
filed by the appellants herein questioning the
correctness of the order passed by the Tribunal. Hence
the present appeals.
4. We have heard Mr. V. Giri, the learned senior counsel
appearing on behalf of the appellants in the Civil Appeal
90 of 2015 and Mr. N.K. Kaul, learned Additional
Solicitor General appearing on behalf of Union of India
and Dr. K.P. Kylashnath Pillay, learned senior advocate
appearing on behalf of some of the respondents.
5. The essential question of law which arises for our
consideration in the instant case is whether the
appointment of the appellants to the post of Postman is
by way of direct recruitment or by promotion.
6. We first turn our attention to the relevant rules at
play in the instant case, which are the Recruitment
Rules. The Schedule to the said Recruitment Rules
specifies the method of recruitment, age limit,
qualifications etc. relating to appointments to the said
posts. Column 1 specifies the name of the post as
Postman/Village Postman, and Column 3 specifies it to be
a Group ‘C’ post.
7. Column 11 of the Recruitment Rules which is at the
heart of the controversy in the present case, reads as
under:
“Method of recruitment whether by direct
recruitment or by promotion or by
deputation/transfer and percentage of
the vacancies to be filled by various
methods :-
1.50% by promotion, failing which by Extra
Departmental Agents on the basis of their
merit in the Departmental Examination.
2.50% by Extra Departmental Agents of the
recruiting division of Unit, in the following
manner, namely:
(i) 25% of vacancies of postman shall be
filled up from amongst Extra
Departmental Agents with a minimum
of 5 years of service on the basis
of their seniority, failing which by
the Extra Departmental Agents on the
basis of Departmental examination.
(ii) (ii) 25% from amongst Extra
Departmental Agents on the basis of
their merit in the departmental
examination.
3.If the vacancies remained unfilled by EDAs of
the recruiting division, such vacancies may
be so filled by EDAs of the postal division
failing in the Zone of Regional Director.
4.If the vacancies remained unfilled by EDAs of
the recruiting units such vacancies may be
filled by EDAs of the postal divisions
located at the same station. Vacancies
remaining unfilled will be thrown upon to
Extra Departmental Agents in the region.
5.Any vacancy remaining unfilled shall be
filled up by direct recruitment through the
nominees of the Employment Exchange."
A careful reading of the above Column makes it clear that
essentially two ‘pools’ are envisaged from which
appointments to the post of Postman can be made. One is
the pool of those candidates who are being promoted, and
the other is the pool of the Extra Departmental Agents
who are appointed to the said post after passing a
departmental examination. 50% of the candidates being
appointed to the post of Postman are selected by way of
promotion. The remaining 50% of the candidates are
selected in two ways. 25% of the candidates are selected
from amongst the Extra Departmental Agents on the basis
of their seniority in service, and the other 25%
candidates are selected from the Extra Departmental
Agents based on their merit in the Departmental
Examination.
8. Further, Column 12 of the Recruitment Rules reads as
under:
“In case of recruitment by
promotion/deputation/transfer grade from
which promotion/deputation/transfer to
be made:
1.Promotion from Group 'D' officials who have
put in three years of regular and
satisfactory service as on the closing date
for receipt of applications through a
Departmental examination.
2.Extra Departmental Agents through a
Departmental Examination.
3.Direct recruitment through a Departmental
Examination."
The post in the instant case, that of Postman is a Group
‘C’ post. Thus, it is quite natural that ‘promotion’ to
the said post can happen only from the feeder post, which
in the instant case, are the Group ‘D’ posts. Admittedly,
GDS is not a Group ‘D’ post, and members of GDS are
merely Extra Departmental Agents.
9. At this stage, it is also useful to refer to the
decision of this Court in the case of C.C. Padmanabhan &
Ors. v. Director of Public Instructions & Ors.1, wherein
it was held as under:
“This definition fully conforms to the
meaning of 'promotion' as understood in
ordinary parlance and also as a term
frequently used in cases involving
service laws. According to it a person
1
1980 (Supp) SCC 668
already holding a post would have a
promotion if he is appointed to another
post which satisfies either of the
following two conditions, namely-
(i) that the new post is in a higher
category of the same service or class of
service;
(ii) the new post carries a higher grade
in the same service or class.”
Promotion to a post, thus, can only happen when the
promotional post and the post being promoted from are a
part of the same class of service. Gramin Dak Sevak is a
civil post, but is not a part of the regular service of
the postal department. In the case of Union of India v.
Kameshwar Prasad2, this Court held as under:
“2. The Extra Departmental Agents system
in the Department of Posts and Telegraphs
is in vogue since 1854. The object
underlying it is to cater to postal needs
of the rural communities dispersed in
remote areas. The system avails of the
services of schoolmasters, shopkeepers,
landlords and such other persons in a
village who have the faculty of
reasonable standard of literacy and
adequate means of livelihood and who,
therefore, in their leisure can assist
the Department by way of gainful
avocation and social service in
ministering to the rural communities in
their postal needs, through maintenance
of simple accounts and adherence to
minimum procedural formalities, as
prescribed by the Department for the
purpose. [See: Swamy's Compilation of
Service Rules for Extra Departmental
Staff in Postal Department p. 1.]”
2
(1997) 11 SCC 650
Further, a three-judge Bench of this Court in the case of
The Superintendent of Post Offices & Ors. v. P.K. Rajamma3
held as under:
“It is thus clear that an extra
departmental agent is not a casual worker
but he holds a post under the
administrative control of the State. It
is apparent from the rules that the
employment of an extra departmental agent
is in a post which exists "apart from"
the person who happens to fill it at any
particular time. Though such a post is
outside the regular civil services, there
is no doubt it is a post under the State.
The tests of a civil post laid down by
Court in Kanak Chandra Dutta's case
(supra) are clearly satisfied in the case
of the extra departmental agents.”
(emphasis laid by this Court)
A perusal of the above judgments of this Court make it
clear that Extra Departmental Agents are not in the
regular service of the postal department, though they
hold a civil post. Thus, by no stretch of imagination can
the post of GDS be envisaged to be a feeder post to Group
‘C’ posts for promotion.
10. A Full Bench of the Ernakulam Bench of the Central
Administrative Tribunal in the case of M.A. Mohanan v.
The Senior Superintendent of Post Offices & Ors.4, had the
3
(1977) 3 SCC 94
4
O.A. No. 807 of 1999, decided on 03.11.1999
occasion to consider a similar question. The majority
opinion of the Tribunal held as under:
“As the name itself indicates, EDAs are
not departmental employees. They become
departmental employees from the date of
their regular absorption as such. And
promotions are only for departmental
employees. Therefore, EDAs cannot be
treated as 'promoted' as Postmen. They
can be treated as only appointed as
Postmen. It is further seen from
instructions of Director General Posts
under Rule 4 of Swamy's publication
referred to earlier that EDAs service are
terminated on appointment as Postman and
hence they become eligible for ex gratia
gratuity. If the recruitment of EDAs as
Postman is treated as a promotion, the
question of termination will not arise.
This also leads one to conclude that the
recruitment of EDAs Postman cannot be
treated as one of promotion.
Further, Hon'ble Supreme Court in C.C.
Padmanabhan and Ors. v. Director of
Public Instructions and Ors., 1980
(Suppl.) SCC 668=1981(1) SLJ 165 (SC),
observed that 'Promotion' as understood
in ordinary parlance and also as a term
frequently used in cases involving
service laws means that a person already
holding a position would have a promotion
if he is appointed to another post which
satisfies either of the two conditions
namely that the new post is in higher
category of the same service or class.
Applying the above criteria appointment
as Postman from EDA cannot be termed as
promotion as the posts of Postman and EDA
belong to two different services viz.
regular Postal Service' and 'Extra
Departmental Postal Service.'”
(emphasis laid by this Court)
11. The Tribunal in the instant case sought to
distinguish the aforementioned case with the case in
hand, by placing reliance on another decision of the
Tribunal and holding that the Full Bench was concerned
with the cases of those candidates covered under Column
11(2)(i), whereas the case of the candidates in the
instant case was covered under Column 11(2)(ii), and
thus, the decision of the Full Bench has no bearing on
the facts of the case on hand. This reasoning of the
Tribunal cannot be sustained, as the Full Bench of the
Tribunal was clearly adjudicating the broader question of
whether the appointment of Extra Departmental Agents to
the post of Postman is by way of direct recruitment or by
way of promotion. The attempt to distinguish the ratio of
the Full Bench of the Tribunal on such a superficial
ground is akin to reading the decision of the Full Bench
like a Statute, which cannot be sustained.
12. The Division Bench of the High Court placed
reliance on the wording of Column 11(1) to conclude that
since the Extra Departmental Agents being appointed as
provided under Column 11(1) can be called as promotees,
then the Extra Departmental Agents under Column 11(2)(i)
and (ii) also must be treated at par. The said reasoning
of the High Court also cannot be sustained. It is
nobody’s case that the Extra Departmental Agents being
appointed under Column 11(1) be called promotees. The
language of Column 11(1) itself makes this crystal clear.
The use of the words ‘failing which’ makes it obvious
that there is a distinction between those candidates who
are being selected by way of promotion, and the
candidates who are Extra Departmental Agents and have
cleared the departmental examination, and that the latter
will be considered for appointment only if there are no
eligible candidates under the former category. Thus, the
appointment of GDS to the post of Postman can only be
said to be by way of direct recruitment and not
promotion.
13. Further regard may be had to the Notification
dated 11.08.2009 issued by the Office of the
Postmaster General, Department of Posts, notifying
the examination for recruitment to the cadre of
Postman/ Mail Guard. Under the Head of ‘Eligibility’,
it states as under:
“
(i) Group D-………
(ii) GDS- For GDS, the upper age limit shall be
50 years with 5 years relaxation for SC/ST
candidates and 3 years relaxation for OBC
candidates as on 1st July, 2008 and he/ she
should have completed a minimum of 5 years
regular satisfactory services as on 1st
January 2008. There is no restriction on
number of GDS to be permitted to take the
examination under the 25% merit quota. All
eligible GDS will be allowed to appear in
the examination.
Note (i): Reservation will be provided
for OBCs in Recruitment of GDS as
Postman as is being done in the case of
SC/STs.”
The said notification also makes it evident that
reservations for candidates belonging to the OBC category
were very much in contemplation at the time the
departmental examination was conducted. Even if a mere
reading of Columns 11(1) and 11(2)(i) and (ii) of the
Recruitment Rules as well as the Notification issued
while notifying the departmental examination is not
enough, the subsequent legislative developments leave no
scope for doubt as to the legislative intent. The
relevant Column of the Department of Posts (Postman and
Mail Guard) Recruitment Rules, 2010, reads as under:
“Column 11
(a)…
(c) 25% by recruitment on the basis of
Competitive examination limited to Gramin Dak
Sevaks* of the recruiting Division who have
worked for at least five years in that capacity
as on the 1st day of January of the year to
which the vacancy(ies) belong failing which by
direct recruitment;
*Gramin Dak Sevaks are holders of Civil posts
but they are outside the regular Civil Service
due to which their appointment will be by direct
recruitment.”
Even though the said Rules are not meant to apply
retrospectively, and neither are we suggesting that they
do, this makes the position of the Gramin Dak Sevaks
crystal clear. Their appointment as Postman is only by
way of direct recruitment and not by way of promotion.
14. Having concluded that the selection of Extra
Departmental Agents or Gramin Dak Sevaks to the post of
Postman under Column 11(2)(ii) of the Recruitment Rules
is only by way of direct recruitment and not by way of
promotion, the question of whether reservation for
candidates belonging to OBC category is allowed becomes
easier to answer. It has now been well settled by a nine
judge Bench of this Court in the case of Indra Sawhney v.
Union of India5 that reservation for candidates belonging
to OBC category is permissible in cases of direct
recruitment.
15. In view of the reasoning and conclusions recorded by
5
1992 Supp (3) SCC 217
us as above, the order of the Tribunal as well as the
impugned judgment and order of the High Court are set
aside. There is no infirmity in the appointment of the
appellants to the post of Postman. The Appeals are
accordingly allowed. No costs.
…………………………………………………………J.
[V.GOPALA GOWDA]
…………………………………………………………J.
[R. BANUMATHI]
New Delhi,
August 12, 2016
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