Judgment · High Court · 2012

Both the writ petitions arising out of the common judgement and order da ted 5.5.2011 passed in two Original Applications being OA No. 55/2010 and OA No. 58/2010, have been heard together and are being disposed of by this common orde r.

#2. While Mr. R. Sarma, learned counsel appearing for the petitioner involve d in WP(C) No. 3538/2011 represents the applicant involved in OA No. 58/2010, Mr . M.H. Choudhury, learned counsel represents the petitioner in WP(C) No. 4267/20 11 who was the applicant in OA No. 55/2010. The said two OAs were filed by the p etitioners assailing the orders dispensing with their services as GDSMD (Gramin Dak Sevak Mail Deliverer). It is an admitted position that they were appointed a s such purely on temporary and contractual basis. While the petitioner in WP(C) No. 3538/2011 was appointed on 12.12.2007, the petitioner involved in WP(C) No. 4267/2011 was appointed by order dated 27.3.2008. In both the orders, it was cle arly stated that their appointments as GDSMD were purely on temporary and contra ctual basis and would be liable to be terminated at any time without any notice and without assigning any reason.

#3. Their aforesaid services came to be terminated by order dated 19.2.2010 as per the provisions of the GDS (Conduct and Employment) Rules, 2001. Under Rul e 8 of the said Rules, the employment of a Sevak who has not already rendered mo re than three years’ continuous employment from the date of his appointment shal l be liable to termination at any time by a notice in writing given either by th e Sevak to the Appointing Authority or by the Appointing Authority to the Sevak. The period of such notice shall be one month. As per proviso to Rule 8, the emp loyment of any such Sevak may also be terminated forthwith and on such terminati on, the Sevak shall be entitled to claim a sum equivalent to the amount of Basic Time Related Continuity Allowance plus Dearness Allowance as admissible for the period of the notice at the same rates at which he was drawing them immediately before the termination of his employment, or, as the case may be, for the perio d by which such notice falls short of one month.

#4. s were dispensed with, with clear one months’ notice. By the impugned order dated 19.2.2010, the services of the writ petition

#5. Assailing the aforesaid order dispensing with their services, the petiti oners had approached the Central Administrative Tribunal, Guwahati Bench by fill ing the aforesaid OAs. The Tribunal on perusal of the records and upon hearing t he learned counsel for the parties having dismissed the OAs, the applicants have filed these two writ petitions for setting aside the order passed by the learne d Tribunal and to reinstate them in service. We have heard Mr. R. Sarma, learned counsel for the petitioner in WP(C) 6. No. 3538/2011 as well as Mr. M.H. Choudhury, learned counsel representing the pe titioner in WP(C) No. 4267/2011. We have also heard Mrs. R. Bora, learned CGC. There is no dispute that the petitioners had been appointed purely on te 7. mporary and contractual basis and that too without following any process of sele ction. Although, Mr. R. Sarma, learned counsel representing the petitioner in WP (C) No. 3538/2011 in reference to the order of appointment, has submitted that h is appointment, although was temporary, but as per the stipulation made in the o rder of appointment, the same was to continue till regular appointment. However, as will be seen from the terms and conditions of the appointment, the appointme nt was purely temporary and contractual with the clear stipulation that his serv ice would be liable to be terminated at any point of time without assigning any reason and also without any notice. The fact of the matter is that both the peti tioners were appointed de hors the recruitment rules.

#8. Learned counsel for the petitioners have drawn our attention to the exec utive instructions issued by the Department of Posts, which have been compiled i n Swamy’s Compilation of Service Rules for Postal Gramin Dak Sevak. Under the sa id compilation, the particular letter issued on 30.12.1999 speaks of provisional appointment of ED Agents. As per the stipulation made in the said circular lett er, in case of any difficulty in regular appointment, provisional appointment to be made, which however, will not and cannot mean for provisional appointment ca n be made without following the recruitment rules and without the approval of th e Controlling Officer. Moreover, the circular letter dated 4.9.1982 under the s ame compilation, clearly speaks of recruitment of ED Agents through employment e xchange.

#9. In both the case, the petitioners were appointed in clear violation of t he recruitment rules and without the approval of the competent authority. It was in such circumstances, the competent authority in the Postal Department decided to dispense with the services of the petitioners and accordingly by the impugne d orders dated 19.2.2010, their services were dispensed with.

#10. The Tribunal has discussed all the aspects of the matter in detail in th e impugned judgement and order. It has rightly been held by the Tribunal that if the impugned orders are interfered with, the same will amount to upholding th e back door and illegal appointment. The Tribunal has rightly held that both the appointments having been made de hors the procedure prescribed by the rules, th e same cannot be sustained.

#11. For all the aforesaid reasons, we do not find any infirmity in the impug ned common judgement and order dated 5.5.2011 passed by the learned CAT, Guwahat i Bench in OA No. 55/2010 and 58/2010. Consequently, no relief can be granted to the petitioner and accordingly, both the writ petitions are dismissed.

#12. Before parting with the case records, we place on records that since bot h the petitioners have rendered their services as GDSMD and thereby have gained experience, in case of any future employment including provisional appointment, their candidatures may be considered taking note of the experience gathered by t hem.

#13. There shall be no order as to costs.