IN THE CENTRAL ADMINISTRATIVE TRIBUNAL
ORIGINAL APPLICATION NUMBER /2011
Amarjeet
Singh Gills on of Shri Jaswant Singh Gill, aged about 27 years, resident of
House No. 6, 2nd Block, Near Patwar Training
School, Purani Abadi, Sriganganagar, at present employed on the post of
Postmaster Grade-I, Hanumangarh Town Post Office, Hanumangarh.
Applicant
VERSUS
1. Union of India through
Secretary to the Govt of India
Dak
Bhawan, Sansad Marg, New Delhi-110001.
2.
Director General, Posts & Chairman,
Postal
Services Board, Dak Bhawan, Sansad Marg,
New
Delhi-110001.
3.
Chief Post Master General,
4. Post
master General,
Rajasthan
Western Region, Jodhpur
5.
Superintendent of Post offices,
Sriganganagar
Division, Distt. Sriganganagar.
Respondents
DETAILS OF APPLICATION:
1
Particulars of orders against which this Original application is made:
(i). Order No. 4-24/2011-SPB-II dated 26.9.2011, by 2nd respondent. (Annexure A/3).
SUBJECT
IN BRIEF: PROMOTION: POSTMASTER
GDE-I:
DECLINATION OF
2. JURISDICTION:
The applicant declares that the subject matter of the order
against which he seeks redressal is within the jurisdiction of this Hon’ble
Tribunal.
3. LIMITATION:
The
applicant declares that the application of the humble applicant is within the
limitation period as prescribed in section 21 of the Administrative Tribunal
Act 1985.
4. FACTS
OF THE CASE:
The Original application of humble applicant is most respectfully
submitted as under: -
(1).
That so far relevant to this original application, the applicant was initially
appointed to the post of Postal Assistant on dated 31.8.2004 in Sriganganagar
Division. He is at present employed on the post of Postmaster Grade-I
Hanumangarh Town Post Office and continues to discharge his duties satisfactorily.
(2).
That a Postmaster Cadre was introduced in Postal Wing of the Department of Post
vide letter dated 22.11.2010. A copy of the same is filed herewith and marked
asAnnexure A/3. The case of the applicant fell under para 5(iii) of the
same i.e. PA with 5 years of service. He applied for the same and was subjected
to appear in the Limited Departmental Competitive Examination, held on dated
12.6.2011.
(3).
That the 2nd respondent was pleased to issue
an order dated 9.8.2011, whereby it was directed that declination of
appointment by a candidate to the post of Postmaster Grade-I may be accepted
after passing the Departmental Examination but before his appointment. A copy of
the same is filed herewith and marked as Annexure
A/4. The result of Departmental Examination dated 18.8.2011 was declared in
reference to letter dated 30.6.2011 and got noted to the applicant on dated
23.8.2011. His name finds place at Sl. No. 1. A copy of the same is filed
herewith and marked as Annexure
A/5. The applicant came to know on dated 25.8.2011 that as per a letter
dated 19.8.2011 that he has been allotted Western region. A copy of the same is
filed herewith and marked asAnnexure A/6.
(4).
That the applicant was also issued with an order dated 26.8.2011 whereby he has
been ordered to be posted as Postmaster Grade-I at Hanumangarh Town
(5).
That the applicant was immediately sent for undertaking the training at Saharanpur
(6).
That besides the fact that the applicant was not given any opportunity to make
up his mind regarding acceptance or otherwise decline the appointment as Post
Master Grade-I. He did not know the subsequent changes in regard to the
obstruction in appearing in the IPO LDCE. As a matter of fact, such restriction
was imposed subsequently. The applicant submitted a detailed representation on
dated 27.10.2010 and requested for his reversion to his parent cadre. The
contents of the same may be read as a part of this OA. A copy of the same is
filed herewith and marked as Annexure
A/12. He also sent a reminder on dated 5.11.2011. He also mentioned that he
had not claimed any TA/DA for his transfer and Training etc. A copy of the same
is filed herewith and marked as Annexure
A/13.
(7).
That the applicant has come to know that 2nd respondent issued a clarification dt. 26.9.2011 with regard to acceptance
of declination of appointment by the candidate to the post of Postmaster
Grade-I after passing the Departmental examination, but before his appointment,
may be accepted. It has been said that the Directorate's letter of even number
dated 9.8.2011 is very clear. Declination of appointment by the officials can
be accepted by the Circles only if the same is received before issue of order
of appointment. No deviation is permissible in the matter. A copy of the same
is filed herewith and marked as Annexure
A/1.
(7). That there was absolutely no ambiguity and one could
decline after the passing in departmental examination but before his
appointment. Secondly, the date of result of departmental examination is
18.8.2011 and the regions are allocated to selected candidates on 19.8.2011
itself. There would have been no time for submitting declination by any of the
candidates even the results were promulgated on 18.8.2011 itself.
(8).
That the applicant has also come to know that in the same matter, the CPMG
Punjab region has been please to issue appointment order on dated 30.9.2011 in
respect of the same post of Postmaster Grade-I under the same Policy. In para 4
of the same the candidates have been asked to submit that their unwillingness
within a period of one week thereof. A copy of the same is filed herewith and
marked as Annexure A/14.
They have followed the circular issued by the 2nd respeondet in its true spirit but it has not been found expedient
for the respondents to adhere to the same.
(9).
That the applicant was compelled to go and join the post of Postmaster Grade I.
It would be pertinent to mention here that even under the service rules there
is a provision for refusing promotion and at the most one could be debarred
from the promotion for one year. One could otherwise request for his transfer
under FR 15 on the lower post where he has got lien. After all he is on
probation for two years. But the respondents are bent upon to force the
applicant just because an unworkable clarification has been issued and no mind
is required to be applied. There has been no response to his representation, so
far. The applicant is faced with humiliation and frustration for none of his
faults and he feels that he has a better future service prospectus in his
present cadre.
5. GROUNDS OF APPLICATION:
This application is preferred on the following amongst other
grounds:-
(A).
Because the applicant has submitted his declination for appointment to the post
of Postmaster Grade-I as per main circular issued by the 2nd respondent. He was forced to join on the said post without any
justification. The action of the respondents in not permitting him to revert
back to his parent cadre/post cannot be sustained in law being violative of
Article 14 and 16 of the constitution of India
(B).
Because the circular dated 9.8.2011 (A/5) is clear and it contemplates that one
could submit declination after the result was out but before he is appointed.
The applicant was not given any opportunity for accepting or declining the
appointment as has been done in other Telecom Circles. The action of the
respondents is ex facie illegal, discriminatory and is not sustainable in law
being violated of articles 14 and 16 of the constitution of India
(C).
Because the so-called clarification dated 26.9.2011 was unwarranted and results
in an absurdity besides being unworkable. There is no concept of appointment
from the date of appointment letter. One’s date of appointment is the date on
which he joins the particular post. The impugned clarification has an effect of
changing the very object of the main circular and the same does not advance the
objective of the same. The same is illegal arbitrary, discriminatory and
deserved to be quashed.
(D).
Because the other regions have correctly followed the circular but the
respondents have not adhered to the same. They have also put the cart before
the horse in as much as there was no time between the date of declaration of
the result and the date of allocation of candidates to the various regions
(though not an appointment order). The candidates were not given any time to
submit their declination applications. The applicant is being deprived of the
benefits of the main circular for no fault on his part.
(E).
Because the applicant did not know the changed circumstances and service
conditions. Even under the
service rules there is a provision for refusing promotion and at the most one
could be debarred from the promotion for one year. One could otherwise request
for his transfer under FR 15 on the lower post where he has got lien. After all
he is on probation for two years. His
detailed representations are being not dealt with kept pending without any
justification just to make the matter complicated.
(F).
Because this Original application is sustainable on many other legal grounds,
which he craves, leave to urge at the time of admission and hearing of this
case.
6.
DETAILS OF REMEDIES EXHAUSTED
The applicant does not have any other equally efficacious, speedy
and adequate remedy except to invoke the extraordinary jurisdiction of this
Hon’ble Tribunal
7. MATTERS NOT PREVIOUSLY FILED OR PENDING MADE ANY OTHER COURT: -
The
applicant declares that he had not previously filed any application, writ
petition or suit regarding the matter in respect of which this Application is
made before any other court or authority or any other branch of the Tribunal
and no such application, writ petition or suit is pending before any of them.
8. RELIEFS SOUGHT
In view
of the facts and grounds mentioned in para 4 and 5, above the applicant prays
for the following reliefs:-
(i)
That impugned clarification dated 26 Sep, 2011, issued by 2nd respondent, (Annexure A-1) may be declared illegal and the same may be
quashed. The respondents may be directed to accept the declination letter of
the applicant for the post of Post Master Grade-I and he may be permitted to
revert back to his substantive post of Office Assistant, Sriganganagar,
Divisional Office, and allowed all consequential benefits. Any adverse order,
if passed during the pendency of this OA, may also be quashed.
(ii)
That any other direction, or orders may be passed in favour of the applicant which
may be deemed just and proper under the facts and circumstances of this case in
the interest of justice.
(iii).
That the costs of this application may be awarded.
9.
INTERIM ORDER IF PRAYED FOR: - NIL
10.
This application is being filed through his counsel.
11.
PARTICULARS OF IPO SUBMITTED TOWARDS FEES.
Postal
order number.
Date of
issue.
Issued
by : Jodhpur
Payable
at : Jodhpur
12.
LIST OF ENCLOSURES : As per index to this O A
HUMBLE
APPLICANT THROUGH HIS COUNSEL.
(J K
MISHRA/A K KAUSHIK) Advocates
VERIFICATION
I, Amarjeet Singh Gills on of Shri
Jaswant Singh Gill, aged about 27 years, resident of House No. 6, 2nd Block, Near Patwar Training School, Purani Abadi, Sriganganagar,
at present employed on the post of Postmaster Grade-I, Hanumangarh Town Post
Office, Hanumangarh, at present employed on the post of Postal Assistant in
Sriganganagar HO Distt- Sriganganagar, do
hereby verify the contents of para 1 to 4 and 6 to 12 as true to my personal
knowledge and para 5 and it's sub para are believed to be true on the legal
advice and nothing material has been concealed or suppressed.
Place: Jodhpur
Date: 6.10.2011 Signature of applicant
IN THE
CENTRAL ADMINISTRATIVE TRIBUNAL
ORIGINAL APPLICATION NUMBER / 2011
Amarjeet Singh Gill VS. Union
Of India
I N D E X TO OA
Sl. No.
PARTICULARS PAGES
1. Original Application 1-
2. Annexure
A/1
3. Annexure
A/2
4. Annexure
A/3
5. Annexure
A/4
6. Annexure
A/5
7. Annexure
A/6
Note: one extra set of paper book
shall be submitted as and when asked for.
( J K MISHRA/A K KAUSHIK ) ADVOCATES
Dated. 10.2011 COUNSEL FOR APPLICANT
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL JODHPUR
BENCH AT JODHPUR
Original
Application Number / 2011
Amarjeet
Singh Gill VS. Union Of India
SYNOPSIS
DATE OF
EVENTS BRIEF PARTICULARS
Dated.
.10.2011 ( J K MISHRA/A K KAUSHIK ) ADVOCATES
Jodhpur
COUNSEL FOR APPLICANT
Department
of Posts, India
Ministry
of Communications & IT
Dak
Bhawan, Sansad Marg,
New
Delhi-110001.
Director
General, Posts & Chairman,
Postal
Services Board
Dak
Bhawan, Sansad Marg,
New
Delhi-110001.
Chief
Post Master General, Rajasthan
Circle
► Declining
promotion to Postmaster Grade-I by the officials declared successful in Postmaster Grade-I Departmental
Competitive Examination held on 12.06.2011.
D.G. Posts No. 4-24/2011-SPB-II dated 26 Sep, 2011.
I am directed to refer to Directorate's letter of even number
dated 9.8.2011 on the above subject and to say that in the aforesaid letter the
Circles were advised that declination of appointment by the candidate to the
post of Postmaster Grade-I after passing the Departmental examination, but
before his appointment ,may be accepted.
2. References are being received seeking clarification with
regard to acceptance of declination of appointment by the candidate to the post
of Postmaster Grade-I after issue of order of appointment but before joining by
the candidate to the post of Postmaster Grade-I.
3. The Directorate's letter of even number dated 9.8.2011 is
very clear. Declination of appointment by the officials can be accepted by the
Circles only if the same is received before issue of order of appointment. No
deviation is permissible in the matter.
Copy
of Office Memorandum No.1/3/69-Estt(D) dated 22nd November, 1975 from Cabinet
Secretariat, Department of Personnel and A.R.
Subject:- Policy to be followed in case where
persons refuse promotion to a higher grade.
The
undersigned is directed to say that cases occasionally arise when government
servants offered promotion to a higher post refuse to accept the promotion, for
personal reasons. Such refusal of promotion may in many cases create
administrative difficulties and government work may also suffer. The question
as to what action should be taken in cases where government servants refuse
promotion to a higher grade, has been considered in this department and it has
been decided that such cases may be dealt with in the manner indicated in the
subsequent paragraphs…
2. When
a government servant does not want to accept a promotion which is offered to
him, he may make a written request that he may not be promoted and the request
may be considered by the appointing authority, taking relevant aspects into
consideration. where the reasons adduced by the persons concerned for such
refusal ordinarily meet the requirements of the case if the next person in the
select list were promoted. However, since it may not be administratively
possible or desirable to offer appointments, to the persons who initially
refused promotion, on every occasion on which a vacancy arises during the
period of validity of the panel, no fresh offer of appointment on promotion
should be made in such cases for a period of six months from the date of
refusal of first promotion. Government servants refusing promotion for reasons
acceptable to the appointing authority will, on eventual promotion to the
higher grade, lose seniority vis-a-vis their erstwhile juniors promoted to the
higher grade earlier than they, irrespective of whether the posts in question
are filled by selection or otherwise.
3. The
above mentioned policy will not apply where adhoc promotions against short-term
vacancies are refused.
4. It
is requested that Ministry of Finance etc. may bring these instructions to the
notice of all persons employed under them including those in attached and
subordinate offices. In so far as the persons belonging to the Indian Audit and
Accounts Department are concerned, these instructions are being issued in
consultation with the Comptroller and Auditor General of India
sd/-
(S.Krishnan)
Director
(S.Krishnan)
Director
Department
of Posts, India
Ministry
of Communications & IT
Dak
Bhawan, Sansad Marg,
New
Delhi-110001.
Director
General, Posts & Chairman,
Postal
Services Board
Dak
Bhawan, Sansad Marg,
New
Delhi-110001.
Chief
Post Master General, Rajasthan
Circle
► Declining
promotion to Postmaster Grade-I by the officials declared successful in Postmaster Grade-I Departmental
Competitive Examination held on 12.06.2011.
D.G. Posts No. 4-24/2011-SPB-II dated 26 Sep, 2011.
I am directed to refer to Directorate's letter of even number
dated 9.8.2011 on the above subject and to say that in the aforesaid letter the
Circles were advised that declination of appointment by the candidate to the
post of Postmaster Grade-I after passing the Departmental examination, but before
his appointment ,may be accepted.
2. References are being received seeking clarification with
regard to acceptance of declination of appointment by the candidate to the post
of Postmaster Grade-I after issue of order of appointment but before joining by
the candidate to the post of Postmaster Grade-I.
3. The Directorate's letter of even number dated 9.8.2011 is
very clear. Declination of appointment by the officials can be accepted by the
Circles only if the same is received before issue of order of appointment. No
deviation is permissible in the matter.
FUNDAMENTAL
RULES Vol – I
CHAPTER
III GENERAL CONDITIONS OF SERVICE 12 of 15
F.R.
15. (a) A local Government may
transfer a Government
servant
from one post to another; provided that except-
(1) on
account of inefficiency or misbehaviour, or
(2) on
his written request,
a
Government servant shall not be transferred substantively to, or, except in a
case covered by rule 49, appointed to officiate in a post carrying less pay
than the pay of the permanent post on which he holds a lien, or would hold a
lien had his lien not been suspended under rule 14.
(b)
Nothing contained in clause (a) of this rule or in clause
(13) of
rule 9 shall operate to prevent the transfer of a Government servant to the
post on which he would hold a lien, had it not been suspended in accordance
with the provisions of clause (a) of rule 14.
L.G.R.1. A question arose whether an order which cancelled
the appointment of an officer to a post with retrospective effect when his
emoluments were not affected thereby was permissible. It was held that as the
rule protects an officer from reduction in emoluments except in case of
inefficiency or misbehaviour, the order under reference would not contravene
the intention of Fundamental Rule 15.
L.G.R.
2. A question having arisen
whether the reversal of permanent arrangements in consequence of any orders
passed by the appellate or revisional authority, as the case may be, is barred
by Fundamental Rule 15, it has been held with the concurrence of the
Auditor-General that if an officer having been dismissed or removed from
service, or reduced in rank, or superseded by another officer, has a right of
appeal against the penalty imposed on him and his appeal is allowed, and
equally if there is an authority competent to interfere, in revision, with the
orders passed by lower authorities imposing that penalty and that authority
sets aside the orders imposing that penalty the reversal of any permanent
arrangement made in the meantime may be considered to be the automatic
consequence of the orders passed by the appellate or revisional authority, as
the case may be, and that the provisions of Fundamental Rule 15, according to
which a Government servant shall not be transferred, substantively to a post
carrying less pay, except under the circumstances mentioned in that rule, are
not attracted in such a case.
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