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Monday, 12 March 2012

Copy of CAT case filed by Postmaster Grade1,before Hon'ble CAT bench, Jodhpur



IN THE CENTRAL ADMINISTRATIVE TRIBUNAL

JODHPUR BENCH AT JODHPUR 

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, Department of Posts, Ministry of Communications & IT

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,

Rajasthan Circle, Jaipur-302007.



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 in Sriganganagar Division. A copy of the same is filed herewith and marked as Annexure A/7. Simultaneously, another order came to be issued by the 3rd respondent on dated 26.8.2011 and notified on 30.8.2011 (PM) by 4th respondent. A copy of the same is filed herewith and marked as Annexure A/8. The applicant came to know about it only on 1.9.2011; 31.8.2011 being a closed holiday. Before, he could think anything; he was relieved in an unceremonial way on the very same day. Even, the formal order came to be issued by the 5th respondent only on dated 5.9.2011. A copy of the same is filed herewith and marked as Annexure A/9.



(5). That the applicant was immediately sent for undertaking the training at Saharanpur. He was imparted the said training from 12.9.2011 to 15.10.2011. The applicant’s name was included in the eligibility list for IPO LDCE vide letter dated 17.8.2011. His name is placed at Sl. No. 137. A copy of the same is filed herewith and marked as Annexure A/10. But he was not permitted to appear in the said examination vide letter dated 12.10.2011 issued in pursuance with Directorate letter dated 24.8.2011. A copy of the same is filed herewith and marked as Annexure A/11.



(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 (AMARJEET SINGH GILL)

Date: 6.10.2011 Signature of applicant 


IN THE CENTRAL ADMINISTRATIVE TRIBUNAL

JODHPUR BENCH AT JODHPUR 


ORIGINAL APPLICATION NUMBER / 2011

Amarjeet Singh Gill VS. Union Of India And Ors


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

Jodhpur


















IN THE CENTRAL ADMINISTRATIVE TRIBUNAL JODHPUR BENCH AT JODHPUR



Original Application Number / 2011



Amarjeet Singh Gill VS. Union Of India And Ors



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, Jaipur-302007





 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






























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, Jaipur-302007





 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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