IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34683 of 2008(S)
1. V.J.JOSEPH STANLEY, NOW WORKING AS
... Petitioner
2. A.J.JEEJA ROSE, NOW WORKING AS A.P.M
3. L.JAYASREE, NOW WORKING AS A.P.M.
4. V.SURESH KUMAR, NOW WORKING AS POSTAL
5. S.SARALADEVIKUNJAMMA, OFFICE ASSISTANT,
6. RADHAMMA M.K., NOW WORKING AS A.P.M.
7. K.KRISHNAKUMAR, NOW WORKING AS OFFICE
8. K.CHANDRABABU, NOW WORKING AS
9. V.R.VIJAYAKUMAR, NOW WORKING AS
Vs
1. UNION OF INDIA, REPRESENTED BY ITS
... Respondent
2. THE DIRECTOR GENERAL OF POSTS,
3. THE CHIEF POST MASTER GENERAL,
4. THE POST MASTER GENERAL, CENTRAL REGION,
5. THE SUPERINTENDENT OF POST OFFICES,
6. SUPERINTENDENT OF POST OFFICES,
7. SUPERINTENDENT OF POST OFFICES,
8. SUPERINTENDENT OF POST OFFICES,
9. CENTRAL ADMINISTRATIVE TRIBUNAL,
For Petitioner :SRI.B.MANIMOHAN
For Respondent : No Appearance
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :01/12/2008
O R D E R
K. BALAKRISHNAN NAIR & M.C.HARI RANI, JJ.
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W.P.(C) No. 34683 OF 2008
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Dated this the 1st day of December, 2008
J U D G M E N T
~~~~~~~~~~~
Balakrishnan Nair, J.
The writ petitioners were the applicants in O.A.No.24/2008
of the Central Administrative Tribunal, Ernakulam Bench. They
were candidates seeking admission to the Limited Departmental
Competitive Examination for promotion to the cadre of Postal
Service Group ‘B’ for the accumulated vacancies for the period
from 2003 to 2006 is held on 16th and 17th of February, 2008.
They were held to be ineligible to attend the above examination
by the competent authority. The communications received in
this regard were under challenge in the O.A. For convenient
reference, we extract the contents of one of the impugned
letters given to a candidate by the Senior Superintendent of
Post Office, Kollam Division, Kollam, which reads as follows:
“It has been intimated from the Office of the Chief
Post Master General, Kerala Circle,
Thiruvananthapuram-695033 that your application
for admission to the above examination has not been
considered as you are not in Lower Selection Grade
(LSG) with 5 years of service as on 1.1.2006”
W.P.(C) No.34683/2008 2
2. Similar communications were served on others also.
In fact, all the petitioners/applicants were promoted to Lower
Selection Grade under the Time Bound One Promotion Scheme
(TBOP Scheme) and they were drawing the salary attached to
that post also. Their salary was also fixed in the scale of pay
under Rule 22 (I)(a)(1) of the Fundamental Rules. The orders
posting them described the same as promotion. Therefore,
though they were promoted under the TBOP Scheme, they
submit, they should have been treated as regular promotees to
the cadre of Lower Selection Grade (LSG). If that be so, they
have admittedly more than 5 years service as on 1.1.2006 and
therefore they were eligible to take part in the Limited
Competitive Examination for promotion. But, the respondents
took the view that they are not regular promotees to the cadre of
LSG. Aggrieved by the stand of the respondents, in the above
quoted letter and similar letters, they approached the C.A.T.
Though the C.A.T. initially granted interim orders permitting
them to participate in the examination, the Original Application
was finally heard and dismissed by the Tribunal by Ext.P6 order.
The Tribunal followed the Full Bench decision of the Hyderabad
W.P.(C) No.34683/2008 3
Bench and dismissed the Original Application. The relevant
portion of the said order reads as follows:
“17. From the facts as detailed above, we are of
the firm view that controversy involved in the
matter has already been settled by the order of
the Full Bench (Hyderabad) dated 6.4.2005 in
the case of Addul Gaffer and others (supra). It
has been held in unequivocal terms in that order
that TBOP and BCR schemes are only financial
upgradations in the scales and not promotions.
The Chennai Bench which passed the order in
K.Perumal’s case (supra) itself vide order in
P.Rajendran’s case (supra) made it “clear that the
official, in the cadre of TBOP or BCR without being promoted
to LSG either notionally or regularly are not eligible to
appear” in the examination. In the above facts and
circumstances of the case, these OAs fail and
accordingly they are dismissed. The interim
order passed in these cases provisionally
permitting the applicants to appear for the
Postal Services Group ‘B’ Examination also
stands vacated, if the Examination has not
already been held/the applicants have already
appeared in the Examination.”
3. The learned counsel for the writ petitioners submitted
that the above view taken by the C.A.T. is plainly untenable. The
decision of the Hyderabad Bench is at variance with the
decisions of other Benches of the Tribunal. Further, ever since
the introduction of TBOP, the promotees under the scheme were
treated as regular promotees for the purpose of Limited
W.P.(C) No.34683/2008 4
Departmental Competitive Examination for promotion to Group
‘B’ cadre. So, the present stand of the respondents violates their
fundamental rights including those under Article 21 of the
Constitution of India.
4. We notice that the respondents have mainly relied on
a clarification issued by the Ministry of Communications,
Department of Posts, Dak Bhavan, Sansad Marg on 23.4.2001, in
support of the stand taken by them. The said communication is
extracted in paragraph 13 of Ext.P6 order of the C.A.T. When
there is some ambiguity in the rule, it is always permissible for
the Executive Government to issue such clarifications. The
petitioners have chosen not to challenge that clarification. Going
by that clarification, the petitioners cannot be treated as those,
who got regular promotion to L.S.G. Further, independent of
the decisions of other Benches of the C.A.T., we are of the view
that for regular promotion to Group ‘B’, the incumbent must be a
regular promotee in the feeder category. The promotees under
the TBOP Scheme are promoted without any reference to cadre
strength. Only on the basis of length of service, the posts held by
them are upgraded and they are granted the scale of pay of
W.P.(C) No.34683/2008 5
higher post. Regular promotion can be ordered, only, when a
vacancy arises in the cadre post. So, we are of the view that the
stand taken by the respondents is in accordance with the general
principles governing regular promotion. The fact that they have
earlier treated the promotees under the TBOP Scheme also as
regular promotees does not affect their power to correct
themselves and take a stand in accordance with law. It is a
settled position in law that this Court cannot ask the Executive
Government to repeat an illegality for the sake of satisfying the
requirement of Article 14 of the Constitution of India. The action
taken, in accordance with the Recruitment Rule for promotion
cannot be described as an action violative of fundamental rights
of the petitioners.
5. We notice that this Court has already held in W.P.(C)
No.30447/2007 that promotion under TBOP scheme cannot be
treated as regular promotion. SLP(C) No.16251/2008 filed
against that judgment was dismissed by the Apex Court as per
order dated. 22.9.2008.
W.P.(C) No.34683/2008 6
In the result, we find no reason to interfere with the
impugned order. Accordingly, this writ petition is dismissed.
(K.BALAKRISHNAN NAIR, JUDGE)
(M.C.HARI RANI, JUDGE)
ps