Department of Posts (Postman/ Village Postman and Mail Guards) Recruitment Rules, 1989 – Column No. 7(2) – Vacancies for the post of Postman/Mail Guard – Gramin Dak Sevaks – reservation for candidates belonging to OBC category – Whether the appointment to the post of Postman is by way of direct recruitment or by promotion – Held, 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 – reservation for candidates belonging to OBC category is permissible in cases of direct recruitment.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
[V.GOPALA GOWDA] AND [R. BANUMATHI] JJ.
August 12, 2016
CIVIL APPEAL NO. 90 OF 2015
Y. NAJITHAMOL & ORS. ………APPELLANTS
SOUMYA S.D. & ORS. ……RESPONDENTS
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.
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