HON'BLE Dr K.B.S.RAJAN, JUDICIAL MEMBER The applicant, who was engaged as early as on 09-03-2003 as GDSMD at Mundela against a regular vacancy, but not by following the proper channel of selection, and the applicant continued to serve in that capacity till 31-07-2009 when regular hand of GDS MC was posted consequent to abolition of post. Taking into account the experience from 2003, the applicant had approached the respondents for extending the benefit of order dated 18-05-1979 which provides for efforts to be made to give alternative employment to ED Agents who have been appointed provisionally and subsequently discharged from service due to administrative reasons, if at the time of discharge they had put in not less than three years' service. In such cases, their names should be included in the waiting list of ED Agents discharged from service prescribed in D.G P & T letter No. 43-4/77-Pen dated 23-02-198-79.
2. A further request was made vide Annexure A-3 representation dated 15-06-2010 and the same too had not been disposed of. An identical issue came up for consideration in OA no. 429 of 2005 which was decided on 21-07-2006 in favour of the applicant therein. And in an yet recent case in OA No. 170 of 2009 the Tribunal held that in such cases, the appointment shall be treated at par with provisional appointment and the benefits available to such discharged provisional appointees would be available. OA No. 471 of 2009 also has dealt with in such a manner and the OA allowed.
3. On the basis of the above, the applicant has approached the Tribunal in this OA seeking the following reliefs:-
(i) Direct the respondents to extend the benefits of Annexure A2 to the applicant.
(ii)Direct the respondents to consider and pass orders on Annexure A1 and A3 representations in the light of Annexure A-
4 judgment.
(iv)Any other further relief or order as this Hon'ble Court may deem fit and proper to meet the ends of justice.
(v)Award the cost of these proceedings.
4. Respondents have contested the O.A. They have stoutly contested the contention of the applicant that his engagement was on provisional basis and brand his engagement purely as stop gap arrangement. The character of provisional appointment referred to in order dated 18-05-1979 is different, as the same is an appointment following certain guidelines and by no stretch of imagination, such a character of provisional appointment could be fastened to the nature of appointment of the applicant. Annexure A-4 order also cannot help the applicant, as the character of the appointment of the applicant therein was indeed provisional. Rather, the decision in OA No. 684 of 2009 applies squarely, where the claim of the applicant was rejected by the Tribunal here and later on when review was filed, after an unsuccessful attempt in the High Court, the same too was rejected. That decision would apply to the facts of this case.
5. Counsel for the applicant argued that though the review in the case of OA No. 684 of 2009 was dismissed on another ground the matter was considered by the Tribunal in OA No. 931 of 2011 and the same stood allowed. As such, the case of the applicant be dealt with in the same manner as in the case of D.V. Praveen, who was the applicant in OA No.
684 of 2009 as well as 931 of 2011.
6. Counsel for the respondents relied upon the counsel statement given in this OA wherein the details of the aforesaid case of D.V. Praveen had been referred to.
7. Arguments were heard and documents perused. Admittedly, the applicant had functioned in the same post for over six years. The engagement of the applicant in 2003 was against a regular vacancy as stated in para 4.2 of the OA which does not stand rebutted by the respondents. And, it was on the basis of a regular appointment having been made to the said post that the applicant stood discharged in 2009. This is also undisputed. The only difference is that whereas for provisonal appointment the process of selection is followed while in the instant case, such a procedure was not followed. It is on the basis of this fact that the respondents contend that the appointment cannot be said to be provisional but has to be branded purely as a stop gap arrangement not to qualify for the benefit under the provisions of the D.G letter dated 18-05-1979. The question is whether the contention of the respondents on the above lines is legally valid and if not whether the applicant is entitled to the reliefs claimed.
8. In so far as the case of OA No. 684 of 2010, the same stands on a peculiar footing. For, in that case, when the application of the applicant for appointment to the post of GDSDA at Thangassery was rejected and the applicant moved the Tribunal in OA No. 729 of 1998, the respondents, referring to the decision in K.B.N. Visveshwar Rao (1996) 6 SCC 216 accepted to consider the case of the applicant even without being sponsored by the Employment Exchange. However, they considered him for another post and engaged him as GDSDA Kureepuzha. It was later on that the respondents engaged the applicant in various capacities and in that process, the applicant could gain experience to the extent of more than one decade. His claim that he had crystallized his right to be considered as a retrenched provisional appointee was to be considered on the basis of High Court Order, which directed the CPMG to consider as to whether the applicant was competent to hold the post and also keeping in view the integrity of the applicant. Thus, on consideration, when the CPMG rejected the case, the applicant moved the Tribunal and the Tribunal has allowed the OA very recently, wherein, inter alia, the Tribunal has held as under:- "Arguments were heard and documents perused. The undisputed facts are that the applicant has been in the employment of the respondents from 1996. True, initial appointment was not by sponsorship through employment exchange. But, the matter has to be dealt with, with the facts and circumstance occurring in the present case. The same is dealt with as under:- (a) Initially, the applicant filed OA No. 729/1998 when his candidature for the post of EDDA, Thangassery was not considered by the respondents on the ground that his name was not sponsored through employment exchange. At that time, when the application came up for hearing the counsel for the respondents stated that in view of the ruling of the Hon'ble Apex Court in the case of Excise Supdt vs K.B.N. Visweshwara Rao (1996) 6 SCC 216 the respondents would consider the candidature of the applicant. (Para 2 of the order at Annexure A-2 refers). (b) Instead of considering the applicant for the post of EDDA, Thangassery, the applicant was given posting as EDDA, Kureepuzha, vide Annexure A-3. This is on stop gap arrangement from 25-07-1998. It was at this time that another notification was issued in respect of the afore said post and the applicant challenged the same through OA No.
51 of 2002. This was considered and the respondents were directed to consider the case of the applicant for the said post along with others, vide order dated 18-08-2004 at Annexure A-4. (c) It was in respect of the above order that in W.P. No. 32034, the High Court directed the Chief Post Master General to consider and allow the applicant to function, in case he is found efficient and subject to his integrity being above board. Annexure A-6 judgment dated 30-01-2008 refers. (d) When again a notification was issued for filling up the vacancy of EDDA at Kureepuzha, the applicant challenged the same in OA No. 689/2004 and the same was dismissed by order dated 25-02-2010 vide Annexure A-7. The applicant has taken up the case with the High Court in W.P. No. 7760 of 2010, though the High Court had dismissed the petition, gave a latitude to the applicant to file a review and the RA No. 23 of 2010 was dismissed, but with remarks that the applicant cannot be blamed for his not having been sponsored through employment exchange. Every time, it was the respondents who allowed the applicant to function in one capacity or the other. Two such capacities enable one to have preference in regular appointment - as a casual labour under order dated 06-06- 1988 and (b) as a retrenched employee under order dated 18-05-1979. Had the respondents been more strict in not engaging the applicant or others when these were not through employment exchange, this kind of a situation would not have arisen. Having extracted work from the applicant for over a decade, if the respondents turn around to state that the applicant's initial appointment was not through employment or that he had been functioning as a stop gap arrangement, the same cannot be permitted. In fact, the decision in the case OA No. 974/2010 fully applies to the facts of this case. As such, the relief granted to the applicant therein could well be extended to the applicant as well. In view of the above, the OA is allowed to the extent that the respondents are directed to place the applicant's name in the list of discharged/displaced GDS who at the time of discharge had 3 years of service as mentioned to the letter of Directorate General (Posts) dated 18-05-1979 and resultant efforts be made by the respondents to give the applicant alternative employment in accordance with law. If the selection process in respect of the post of GDS BPM Kura has not been progressed (as stated by the applicant's counsel), respondents shall consider the case of the applicant for the said post, subject to his fulfilling the essential qualification and attendant conditions attached to the same."
9. The case of the applicant, cannot be equated with the above case. However, it could be considered on the basis of the other decisions cited by the applicant.
10. In the case of OA NO. 471 of 2009, however, the Tribunal has analyzed the spirit and import of the order dated 18-05-1979 and held as under:- "3. Considering the rival contentions raised in this O.A and on analyzing the impact of Annexure A6, the question to be decided is that whether the applicant is entitled to any reliefs as he claimed in the O.A. or not. The fact remains that the applicant was allowed to work in the post of GDSMD II with effect from 23.04.99 and he continued for more than 10 years. Such an engagement was due to the reason that the original incumbent was on put off duty with effect from that date. The stand taken in the reply statement is that the applicant is not a temporary employee, but he was only a substitute for a stop gap arrangement for the time being. Hence he cannot claim the benefit of Annexure A6. A reading of Annexure A6 especially the last paragraph of the said letter of the Director General of the Posts, would show that after considering the question of dismissal or removal of an ED Agent who was allowed to work in a vacancy occurred due to put of duty on account of dismissal or removal, such employees should be included in the waiting list of ED Agents discharged from service. The relevant portion of the letter reads as follows:- " Efforts should be made to give alternative employment to ED Agents who are appointed provisionally and subsequently discharged from service due to administrative reasons, if at the time of discharge they had put in not less than three years' service. In such cases their names should be included in the waiting list of ED Agents discharged from service, prescribed in D.G., P&T, Letter No.43-4/77-Pen. dated 23.3.1979." A reading of the above portion would clearly indicate that ED Agents who are appointed provisionally and subsequently discharged from service due to administrative reasons are entitled for their names to be included in the waiting list of ED Agents discharged from service. The only difference with that of the case of the applicant is that he was according to the respondents appointed as a substitute, but the fact remains that he remained in service for more than 10 years and he was appointed temporarily in the post due to the order of put off duty of the original incumbent. If so, we are of the view that the applicant is entitled for the benefit of Annexure A6, for which the applicant may apply to the respondents or the competent authority to get his name registered in the Live Register. By the above declaration, we allow this O.A. to the extent as indicated, with no order as to costs."
11. In fact, on the basis of the above, another OA No. 170 of 2009 (vide Annexure A-2) has been allowed. Of course, in that order, it has been reflected that the very appointment order indicated the nature of the appointment as provisional in character.
12. In the instant case, as the order of appointment is not available in the pleadings, the Tribunal is not in a position to ascertain whether such a term has been used therein too. Nevertheless, the fact remains that the applicant continued for over six years uninterruptedly and his appointment is in respect of a post which could be filled up on regular or provisional basis.
13. True, the respondents have contended that the appointment is only one of stop gap arrangement. What is the nature of Stop gap arrangement has been examined by the Constitution Bench in the case of Rudra Kumar Sain vs Union of India (2000) 8 SCC 25, wherein the Apex Court has, inter alia held as under:-
16. The three terms "ad hoc", "stopgap" and "fortuitous" are in frequent use in service jurisprudence. In the absence of definition of these terms in the Rules in question we have to look to the dictionary meaning of the words and the meaning commonly assigned to them in service matters. The meaning given to the expression "fortuitous" in Stroud's Judicial Dictionary is "accident or fortuitous casualty". This should obviously connote that if an appointment is made accidentally, because of a particular emergent situation and such appointment obviously would not continue for a fairly long period. But an appointment made either under Rule 16 or 17 of the Recruitment Rules, after due consultation with the High Court and the appointee possesses the prescribed qualification for such appointment provided in Rule 7 and continues as such for a fairly long period, then the same cannot be held to be "fortuitous". In Black's Law Dictionary, the expression "fortuitous" means "occurring by chance", "a fortuitous event may be highly unfortunate". It thus, indicates that it occurs only by chance or accident, which could not have been reasonably foreseen. The expression "ad hoc" in Black's Law Dictionary, means "something which is formed for a particular purpose". The expression "stopgap" as per Oxford Dictionary, means "a temporary way of dealing with a problem or satisfying a need". x x x x x x x
20. In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be "stopgap or fortuitous or purely ad hoc". In this view of the matter, the reasoning and basis on which the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be "fortuitous/ad hoc/stopgap" are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous." (emphasis supplied)
14. Keeping in view the above dictum of the Apex Court and the earlier order in OA No. 471 of 2009 and 170 of 2009, if the case of the applicant is viewed, the applicant fulfilling the requisite qualifications and having worked for a substantial period of over six years (Six years period is considered as 'a long period' vide judgment in the case of Pritpal Singh vs Union of India (2000) 17 SCC 687), his appointment cannot be treated as "stopgap". Thus, the applicant has made out a case.
15. In view of the above, the OA is allowed. Respondents are directed to keep the name of the applicant in the live Register for accommodating the applicant against any vacancy in the near future, in accordance with his turn and subject to his fulfilling the other attendant conditions of appointment.
16. Under the circumstances, there shall be no orders as to cost. K.NOORJEHAN Dr K.B.S.RAJAN ADMINISTRATIVE MEMBER JUDICIAL MEMBER