B.R Sarangi, J.:— The petitioner-Asutosh Sahu, who is a minor, represented by his father guardian, has filed this application to quash Annexure-3 dated 24.05.2018, the list of rejected candidate showing rejection of application of the petitioner for admission into class-I in Kendriya Vidyalaya, Berhampur on the ground of “wrong selection of category”; and further seeks for direction to opposite party no. 4 to admit him in Class-I in Kendriya Vidyalaya, Berhampur for the academic session 2018-19.

2. The factual matrix of the case, in hand, is that petitioner's the father is working as Gramin Dak Sevak Branch Postmaster at Jhadankuli, Berhampur under the Ministry of Communications and I.T, Department of Posts of the Government of India. Pursuant to notification issued by the Principal, Kendriya Vidyalaya, Berhampur, the father of the petitioner applied for admission of his son in Class-I in the priority service category-I. On consideration of his application, the selection committee prepared a list of selected candidates in which the name of the petitioner was found place at Sl. No. 89. Consequentially, the petitioner's father was called upon by the School authority along with all original documents accompanied by the petitioner and his mother. On the date fixed, the petitioner's father appeared, but opposite party no. 4 informed that the petitioner cannot be admitted into the School, as he (father of the petitioner) is not coming under the priority service category-I, being not a central government employee, and accordingly issued the list of rejected candidates in Annexure-3 dated 24.05.2018 indicating “wrong selection of category”. Hence this application.

3. Mr. Biplaba P.B Bahali, learned counsel for the petitioner contended that the father of the petitioner, who is working as Gramin Dak Sevak, is a Central Government employee working under the Department of Posts of the Government of India as Branch Postmaster and has been drawing salary from the consolidated fund of India. As such, the Ministry of Communications and I.T, Department of Posts, Government of India issued a letter on 01.08.2008 under Annexure-6 series recognizing the contribution of Gramin Dak Sevaks in providing postal services in rural parts of the country and as a gesture of goodwill the Minister of State (Communications and I.T) wrote to the Minister of Human Resources Development for extending the eligibility for admission to Kendriya Vidyalayas in favour of children of Gramin Dak Sevaks. In such view of the matter, the petitioner's father is a Central Government employee and as such his son, the petitioner herein, is entitled to get admission into Class-1 in Kendriya Vidyalaya, Berhampur. It is further contended that in the previous year similarly situated candidates, who were the children of Gramin Dak Sevaks, were granted the benefit of employees of Central Government and admitted to Kendriya Vidyalaya. Therefore, non-admission of the petitioner's son in the year in question amounts to discrimination and hence, arbitrary and unreasonable and contrary to provisions of law. It is further contended that if the application of the petitioner was considered and his name found place in the select list at serial no. 89, and his father being a Central Government employee coming under the priority service category-I, non-giving of admission to the petitioner and rejection of his application subsequently, is not justified. Therefore, the petitioner seeks for quashing of the list of rejected candidates under Annexure-3 dated 24.05.2018 indicating “wrong selection category”, as the same cannot sustain in the eye of law.

4. To substantiate his contentions, he has relied upon The State of Assam v. Kanak Chandra Dutta, AIR 1967 SC 884; Superintendent of Post Offices v. P.K Rajamma, (1977) 3 SCC 94 : AIR 1977 SC 1677; Y. Najithamol v. Soumya S.D, (2016) 9 SCC 352 : AIR 2016 SC 3789; Asha v. PT. B.D Sharma University of Health Sciences, (2012) 7 SCC 389; Chandigarh Administration v. Jasmine Kaur, (2014) 10 SCC 521; Satish Mohan Padhi v. NISER, 2016 (II) ILR-CUT 1242; Ajitesh Singh v. Kendriya Vidyalaya, 2015 (II) ILR-CUT 785; and S. Krishna Sradha v. State of Andhra Pradesh, (2017) 4 SCC 516.

5. Mr. H.K Tripathy, learned counsel appearing for opposite parties no. 2 to 4 has contended that the action taken by the authority is fully justified which does not warrant interference at this stage. By the time the interim order was passed by this Court and communicated to the opposite parties, no seats were available, as the same had already been filled up. As the Gramin Dak Sevak is not a regular employee, due to false declaration made by the father of the petitioner, admission has been denied to him. It is further contended that admission of previous year given to the children of Gramin Dak Sevaks is an inadvertent mistake, which has been rectified in the subsequent year. He has also tried to distinguish the decisions cited by the learned counsel for the petitioner, as mentioned supra.

6. Though several judgments have been referred to in the written notes submitted by opposite party no. 4, the same have not been placed at the time of hearing.

7. Heard Mr. Biplaba P.B Bahali, learned counsel for the petitioner and Mr. H.K Tripathy, learned counsel for opposite parties no. 2 to 4. None appears for opposite party no. 1-Union of India. Pleadings between the parties having been exchanged and with the consent of learned counsel for the parties this petition is being disposed of finally at the stage of admission.

8. The admitted fact is that opposite party no. 4 issued an advertisement inviting applications for admission into Kendriya Vidyalaya, pursuant to which, the petitioner through his father guardian submitted his application, vide Annexure-1, indicating therein that the petitioner's father is a Central Government employee coming under service category-I. It is mentioned in the application form that children of the transferable and non-transferable Central Government employees and children of ex-servicemen were to be taken as priority category-I. Along with the said application, a series of documents, including service certificate, have been uploaded, as the petitioner's father was serving as Gramin Dak Sevak. On consideration of such application, the petitioner's name was placed in the select list prepared by the authority at serial no. 89 under priority category. Therefore, on being called upon, the petitioner and his parents appeared before the selection committee on 24.05.2018, along with the documents. But on consideration of his documents, the application of the petitioner was rejected with the remark “wrong selection of category” as per list of rejected candidates in Annexure-3.

9. The Kendriya Vidyalaya Sangathan issued Guidelines for Admissions in Kendriya Vidyalayas, 2018-19. In Note (v) appended to Part-C of the above guidelines, it has been provided as follows:—

“(v) In respect of Category I, II, III and IV admissions, the veracity of the Certificates submitted by the parents in proof of their service must be invariably verified by the Principal.”

10. At the time of submission of application, the petitioner's father furnished his service certificate issued by the Senior Superintendent of Posts, Berhampur (GM) Division, Berhampur (GM), which reads thus:—

“This is to certify that Mr. Bidyadhar Sahu is a regular employee of Govt. of India working in the department of Posts, India as Branch Postmaster w.e.f 08.05.2013 He has been drawing the salary from the Consolidated Fund of Govt. of India and his pay has been fixed as per the recommendation of 7th CPC. His present basic Pay is Rs. 4745/- in the level NIL of the 7 CPC. He/She is a GPF/CPF/PRAN optee having Number NIL. He is having NIL number of transfer during the proceeding seven years.”

11. Under the General Guidelines contained in Part-A of the above guidelines for admissions in Kendriya Vidyalayas (2018-19), “Central Government Employee” has been defined under sub-Clause (i) of Clause-2 as follows:—

“2(i) CENTRAL GOVERNMENT EMPLOYEES:

An employee who draws his emoluments from the consolidated fund of India.”

12. Clause-3 thereof deals with priority in admission and clause-3(A) reads as follows:—

“(A) KENDRIYA VIDYALAYAS UNDER CIVIL/DEFENCE SECTOR:

1. Children of transferable and non-transferable Central government employees and children of ex-servicemen. This will also include children of Foreign National officials, who come on deputation or transfer to India on invitation by govt. of India.”

13. On perusal of the aforesaid guidelines it is crystal clear that an employee, who draws his emoluments from the consolidated fund of India, is termed as Central Government employee for the purpose of admission into Kendriya Vidyalaya. In the service certificate issued by the competent authority, it has been clearly indicated that the petitioner's father is an employee of the Government of India working in the Department of Posts, India as Branch Postmaster and receiving his salary from the Government of India, Therefore, the conditions stipulated in the definition clause (2(i) read with clause-3A are fully satisfied by the petitioner's father.

14. Mr. H.K Tripathy, learned counsel for the opposite parties no. 2 to 4 vehemently urged before this Court that the service certificate issued by the Senior superintendent of Posts that the petitioner is a regular employee of Government of India, is not correct and thereby, the petitioner's father has tried to mislead the opposite parties in giving such an erroneous certificate, for which rejection of the admission of the petitioner is justified. But it is admitted in the counter affidavit that admission has to be made as per the procedure for admission prescribed in Kendriya Vidyalayas Sanghatan Admission Guidelines, 2018-19. It is also admitted that the petitioner father was working as a Gramin Dak Sevak in the department of Posts but it is contended that the service conditions of the Gramin Dak Sevaks are different from Central Government servants. This contention cannot have any justification, once it is admitted that the petitioner's father is a Central Government employee working under department of Posts as a Gramin Dak Sevak. Merely because a certificate has been issued by the competent authority that the petitioner's father is a regular employee of Central Government, the same cannot preclude the petitioner from getting the benefits admissible to him in terms of the guidelines issued by the Kendriya Vidyalaya.

15. The Department of Posts of Gramin Dak Sevaks (Conduct and Engagement) Rules, 2011 under clause 3(c) defines “Government” means Central Government and under clause 3(d) “Gramin Dak Sevak” to mean (i) a Gramin Dak Sevak Branch Postmaster. Note attached to the said provision reads thus:—

“NOTE 1-The persons holding the posts of Extra-Departmental Agents under the Posts and Telegraphs Extra-Departmental Agents (Conduct and Service) Rules, 1964 or Gramin Dak Sevaks (Conduct and Employment) Rules, 2001 on regular basis on the date of commencement of these rules shall be deemed to have been engaged to and hold the posts of Gramin Dak Sevaks in accordance with the provisions of these rules.”

16. Rule 3-A deals with terms and conditions of engagement and clause (iv) thereof reads as follows:—

“(iv). A Sevak can be transferred from one post/unit of another post/unit in public interest;”

17. Therefore, the nature of work which is undertaken by the Gramin Dak Sevak clearly indicates that father of the petitioner is a Central Government employee, which is in clear adherence to the guidelines issued by the Kendriya Vidyalaya. As such, clause 2(i) of the guidelines, which deals with definitions, clearly defines “Central Government Employee” that an employee who draws emoluments from the consolidated fund of India. It does not state the regular employee or casual employee or contractual employee whatsoever. But fact remains, as per the guidelines of the Kendriya Vidyalaya, the Central Government employees who draw their emoluments from the consolidated fund of India, their applications will be taken into consideration on priority basis. Therefore, the contention raised by learned counsel appearing for opposite parties no. 2 to 4 that the petitioner's father was not a regular employee of the Central Government, being working as a Gramin Dak Sevak, has no justification and such an argument cannot sustain in the eye of law. Furthermore, the Department of Posts of Gramin Dak Sevaks (Conduct and Engagement) Rules, 2011 clearly indicates that “Gramin Dak Sevak” means a Gramin Dak Sevak Branch Postmaster. Admittedly, father of the petitioner is discharging the duty of Branch Postmaster, being a Gramin Dak Sevak, and as such is a Central Government employee holding a transferable post. Consequentially, the minimum requirements to be considered for admission to Kendriya Vidyalaya are satisfied. The ground of rejection of the application of the petitioner is “wrong selection of category”. If the petitioner's father is holding a transferable post and is a Central Government employee, as defined under the guidelines, in that case the rejection of his application on the aforesaid ground cannot have any justification and as such the same is liable to be set aside.

18. In the case of Y. Najithamal (supra) the apex Court, while considering the case of promotion to Gramin Dak Sevak, held as follows:

“9. At this stage, it is also useful to refer to the decision of this Court in the case of C.C Padmanabhan v. Director of Public Instructions 1980 Supp SCC 668 : AIR 1981 SC 64, wherein it was held as under.:.

“This definition fully conforms to the meaning of ‘promotion’ as understood in ordinary parlance and also as a term frequently used in cases involving service laws. According to it a person already holding a post would have a promotion if he is appointed to another post which satisfies either of the following two conditions, namely-

(i) that the new post is in a higher category of the same service or class of service;

(ii) the new post carries a higher grade in the same service or class.”

Promotion to a post, thus, can only happen when the promotional post and the post being promoted from are a part of the same class of service. Gramin Dak Sevak is a civil post, but is not a part of the regular service of the postal department. In the case of Union of India v. Kameshwar Prasad (1997) 11 SCC 650, this Court held as under:

“2. The Extra Departmental Agents system in the Department of Posts and Telegraphs is in vogue since 1854. The object underlying it is to cater to postal needs of the rural communities dispersed in remote areas. The system avails of the services of schoolmasters, shopkeepers, landlords and such other persons in a village who have the faculty of reasonable standard of literacy and adequate means of livelihood and who, therefore, in their leisure can assist the Department by way of gainful avocation and social service in ministering to the rural communities in their postal needs, through maintenance of simple accounts and adherence to minimum procedural formalities, as prescribed by the Department for the purpose. [See: Swamy's Compilation of Service Rules for Extra Departmental Staff in Postal Department p. 1.]”

Further, a three-judge Bench of this Court in the case of The Superintendent of Post Offices v. P.K Rajamma (1977) 3 SCC 94 : AIR 1977 SC 1677 held as under:

“It is thus clear that an extra departmental agent is not a casual worker but he holds a post under the administrative control of the State. It is apparent from the rules that the employment of an extra departmental agent is in a post which exists “apart from” the person who happens to fill it at any particular time. Though such a post is outside the regular civil services, there is no doubt it is a post under the State. The tests of a civil post laid down by Court in Kanak Chandra Dutta's case (supra) are clearly satisfied in the case of the extra departmental agents.”

(Emphasis laid by this Court)

A perusal of the above judgments of this Court make it clear that Extra Departmental Agents are not in the regular service of the postal department, though they hold a civil post. Thus, by no stretch of imagination can the post of GDS be envisaged to be a feeder post to Group ‘C’ posts for promotion.”

19. In view of the judgment of the apex Court, as mentioned above, there is no iota of doubt that Gramin Dak Sevak is a civil post, but not part of regular service of the postal department and, therefore, the appointment of Gramin Dak Sevak will be by way of direct recruitment and not by way of promotion.

20. In the case of The Superintendent of Posts (supra), the apex Court also reiterated that Gramin Dak Sevak is a civil post and in paragraph-4 of the judgment it has been observed as follows:—

“4. It is thus clear that an extra departmental agent is not a casual worker but he holds a post under the administrative control of the State. It is apparent from the rules that the employment of an extra departmental agent is in a post which exists “apart from” the person who happens to fill it at any particular time. Though such a post is outside the regular civil services, there is no doubt it is a post under the State. The tests of a civil post laid down by this Court in Kanak Chandra Dutta's case (supra) are clearly satisfied in the case of the extra departmental agents.”

21. Once the petitioner's father is the holder of civil post under the Central Government, he is a Central Government employee and satisfies the requirement of the guidelines issued for admission in Kendriya Vidyalaya, as mentioned above. The question that whether Gramin Dak Sevak is a regular employee or not, is not required to be considered at this stage, in view of the admitted fact that Gramin Dak Sevaks are Central Government employees receiving salary from the consolidated fund of the India and for the purpose of admission in Kendriya Vidyala, as per the guidelines, requirements are satisfied. Therefore, the rejection of the candidature of the petitioner on the ground of “wrong selection of category” in Annexure-3 cannot have any justification and thereby the same is liable to be quashed and is accordingly quashed.

22. In course of hearing, a question was posed by the Court that since the academic session 2018-2019 is going to lapse, in the event the writ application is allowed then what will be its effect. Reference has been made to a Division Bench judgment of this Court (of which Dr. B.R Sarangi, J. is a member) rendered in the case of Satish Mohan Padhi (supra), in paragraphs 9 and 10 whereof, relying upon the judgment of the apex Court, the Division Bench held as follows:

“9. Similar question had come up for consideration before the apex Court in Asha v. PT. B.D Sharma University of Health Sciences (supra) and in paragraph-31 thereof, the apex Court came to hold as follows:

“31. Having recorded that the appellant is not at fault and she pursued her rights and remedies as expeditiously as possible, we are of the considered view that the cut-off date cannot be used as a technical instrument or tool to deny admission to meritorious students. The rule of merit stands completely defeated in the facts of the present case. The appellant was a candidate placed higher in the merit list. It cannot be disputed that candidates having merit much lower to her have already been given admission in the MBBS course. The appellant had attained 832 marks while the students who had attained 821, 792, 752, 740 and 731 marks have already been given admission in the ESM category in the MBBS course. It is not only unfortunate but apparently unfair that the appellant be denied admission.”

It is well recognized principle of law that strict adherence to the time schedule has to be followed, but the Court may have to mould relief and make an exception to the cut off date in exceptional circumstances in order to ensure that no fault can be attributed to the candidate that candidate persuade his rights and legal remedies expeditiously without any delay.

10. In the judgment rendered in Chandigarh Administration (supra), the apex Court in paragraphs-33.2 and 33.4 whereof held as follows:

33.2 Under exceptional circumstances, if the court finds that there is no fault attributable to the candidate i.e the candidate has pursued his or her legal right expeditiously without any delay and that there is fault only on the part of the authorities or there is an apparent breach of rules and regulations as well as related principles in the process of grant of admission which would violate the right to equality and equal treatment to the competing candidates and the relief of admission can be directed within the time schedule prescribed, it would be completely just and fair to provide exceptional reliefs to the candidate under such circumstances alone.

xxx xxx xxx

33.4 When a candidate does not exercise or pursue his/her rights or legal remedies against his/her non-selection expeditiously and promptly, then the courts cannot grant any relief to the candidate in the form of securing an admission.

23. Since no fault is attributable to the petitioner, in the event seats are filled up and the academic session for which admission was sought is going to lapse, then opportunity is to be given to the petitioner to prosecute his studies keeping one seat reserved for him in the ensuing session 2019-2020 and accordingly this Court so directs.

24. The writ petition is thus allowed. No order as to costs.