Service Matter – whether the appointment of the appellants to the post of Postman is by way of direct recruitment or by promotion.= 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 India[5] that reservation for candidates belonging to OBC category is permissible in cases of direct recruitment. In view of the reasoning and conclusions recorded by 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.

NON REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE
JURISDICTION
CIVIL APPEAL NO. 90 OF 2015

Y. NAJITHAMOL & ORS. ………APPELLANTS

Vs.

SOUMYA S.D. & ORS. ……RESPONDENTS
WITH
CIVIL APPEAL NO. 91 OF 2015

J U D G M E N T

V. GOPALA GOWDA, J.

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.

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.
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.
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.

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.

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.

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 :-
50% by promotion, failing which by Extra Departmental Agents on the basis
of their merit in the Departmental Examination.

50% by Extra Departmental Agents of the recruiting division of Unit, in the
following manner, namely:
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) 25% from amongst Extra Departmental Agents on the basis of their merit
in the departmental examination.

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.

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.

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.
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:

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.

Extra Departmental Agents through a Departmental Examination.

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.
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 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
Prasad[2], 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.]”

Further, a three-judge Bench of this Court in the case of The
Superintendent of Post Offices & Ors. v. P.K. Rajamma[3] 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.
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 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)

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.

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.

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:

Group D-………
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.

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 India[5]
that reservation for candidates belonging to OBC category is permissible in
cases of direct recruitment.

In view of the reasoning and conclusions recorded by 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
———————–
[1]
[2] 1980 (Supp) SCC 668
[3]
[4] (1997) 11 SCC 650
[5]
[6] (1977) 3 SCC 94
[7]
[8] O.A. No. 807 of 1999, decided on 03.11.1999
[9]
[10] 1992 Supp (3) SCC 217

Advertisements
This entry was posted in Uncategorized and tagged , . Bookmark the permalink.