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NON REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

         CIVIL APPEAL NO. 90 OF 2015    Y. NAJITHAMOL & ORS.        ………APPELLANTS

Vs.  SOUMYA S.D. & ORS.            ……RESPONDENTS

WITH CIVIL APPEAL NO. 91  OF 2015   

J U D G M E N T

V. GOPALA GOWDA, J.  The present appeals arise out of the common impugned

judgment and order dated 20.12.2011 passed by the High

Court of Kerala at Ernakulam in OP (CAT) No. 1095 of 2011

(S)  and  connected  petitions,  whereby  the  High  Court

upheld the order of the Central Administrative Tribunal,

Ernakulam  Bench  (hereinafter  referred  to  as  the

“Tribunal”), which held that the appointment from GDS/EDA

to  the  post  of  Postman  is  only  by  promotion  and  not

direct recruitment, and that because of this reason, the

age restriction under Column No. 7(2) of the Department

of  Posts  (Postman/  Village  Postman  and  Mail  Guards)

Recruitment Rules, 1989 (hereinafter referred to as the

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“Recruitment Rules”) as well as reservation against the

OBC category is not permissible.

2.  Since a common question of law arises in both these

appeals, for the sake of convenience, we refer to the

facts of the Civil Appeal No. 90 of 2015. The facts of

the  case  required  to  appreciate  the  rival  legal

contentions advanced on behalf of the parties are stated

in brief as hereunder:

Appellant  nos.  1-4  belong  to  the  OBC  category.  On

30.11.1992, appellant no.3 commenced service as a Gramin

Dak Sevak (GDS) MD. Appellant no.2 commenced service as

GDS MD on 16.11.1998, appellant no.4 on 22.08.2001 and

appellant  no.1  on  08.01.2003.  In  2009,  the  Postmaster

General  notified  11  vacancies  for  the  post  of

Postman/Mail  Guard.  On  27.02.2010,  all  the  four

appellants were appointed to the post of Postman, after

passing  the  departmental  examination  for  the  same.

Challenging the said appointments, Respondent nos. 1 and

2 filed OA 436 of 2010 before the Tribunal on the ground

that the appointment to the post of Postman is by way of

promotion and, therefore, there can be no reservations

for persons belonging to OBCs for the said posts. It was

contended  before  the  Tribunal  that  the  selection  and

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appointment  of  the  appellants  herein  under  GDS  merit

quota  overlooking  the  higher  marks  obtained  by  the

respondents herein on the basis of the examination held

on 20.12.2009 is illegal and arbitrary and that the same

is  violative  of  Articles  14,  16  and  21  of  the

Constitution  of  India.  The  Tribunal,  adjudicating  the

essential question as to whether the recruitment of GDS

to the cadre of Postman through departmental examination

is merit based selection on promotion or not, held as

under: “If the Recruitment Rules for Postman/ Mail Guard are read keeping the entire scheme  of  promotion  in  view  then  the method  of  recruitment  of  GDS  to  the cadre  of  Postman  through  departmental examination  is  to  be  treated  as  merit based  selection  on  promotion  only. Admittedly, the reservation for the OBC category  will  not  apply  to  the recruitment  of  GDS  to  the  cadre  of Postman  in  the  instant  O.A. Consequently,  the  nature  of  the unfulfilled unreserved vacancies in the departmental  quota  when  added  to  the merit quota of GDS will remain the same as  unreserved.  Therefore,  there  is  no justification  for  transferring  the unreserved  vacancies  to  the  OBC category. That being so, the appointment of  the  party  respondents  4  to  7  is against  unreserved  vacancies.  This appointment is legally untenable because the  claim  of  the  applicants  for appointment  against  unreserved vacancies,  on  account  of  their  having higher merit than the part respondents

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cannot be ignored.”

The  Tribunal  further  held  that  the  order  of  the  Full

Bench of the Tribunal passed in O.A. No. 807 of 1999,

dated 03.11.1999, holding that the appointment of Extra

Departmental Agents to the post of Postman was by way of

direct recruitment and not promotion was not applicable

to the facts of the instant case. It was distinguished on

the ground that the question before the Full Bench was

with  respect  to  filling  up  of  those  25%  of  total

vacancies notified for the post of Postman, which were to

be filled on the basis of seniority, and thus, pertained

to Column 11(2)(i) of the Recruitment Rules, whereas the

controversy in the instant case was with respect to the

other 25% of the total vacancies, which were to be filled

on the basis of merit in the departmental examination and

thus, pertained to Column 11(2)(ii) of the Recruitment

Rules.

3. Aggrieved  of  the  order  of  the  Tribunal,  the

appellants challenged the correctness of the same by way

of filing a Writ Petition before the High Court of Kerala

at Ernakulam. The Division Bench of the High Court came

to the conclusion that a reading of Columns 11(1) and (2)

of the Recruitment Rules does not support the claim that

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appointments to the said posts are being made by way of

direct  recruitment  instead  of  promotion.  The  Division

Bench of the High Court held as under:

“We are only concerned with Col.11 (1), 11(2)(i)  and  11(2)(ii).  The  entire vacancies as of now is divided into two portions, i.e. 50% could not be made by promotion from Group D on the basis of their  merit  in  the  departmental examination,  then  the  unfulfilled vacancies would go to Extra Departmental Agents on the basis of the rank list in the departmental examination. Then among the other 50%, 25% would go to persons based on the seniority who need not take any departmental examination and for that 25%, if candidates are not sufficient for consideration  to  the  post  of  Postman based  on  the  seniority,  the  rest  will again  go  to  Extra  Departmental  Agents based on the merit in the rank list in the  departmental  examination,  then  the other  25%  from  among  the  Extra Departmental Agents based on the merit in the  departmental  examination.  If  still any  vacancies  are  available,  from  one recruiting  division  to  another  postal division is also contemplated and after exhausting that process, if the posts are still  remain  unfilled  again  from  one postal  division  located  in  the  same station  to  another  postal  division located in the circle. After exhausting the  exercise  contemplated  under  Col.11 (1) to (4), if any posts are vacant, then the question of direct recruitment from the nominees of Employment Exchange comes into  play.  Reading  of  Column  11(2)  to (4),  nowhere  it  refers  to  any  direct recruitment  as  such.  It  only  says  by promotion  so  far  as  Group  D  and  if candidates  are  not  sufficient  for

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promotion  in  Group  D,  then  it  goes  to Extra Departmental Agents on the basis of merit  in  the  examination.  If  the intention were to be by promotion only from  Group  D  candidates,  then  the unfilled from the category under Column 11(1) ought not to have been earmarked for  Extra  Departmental  Agents  based  on their  merit  in  the  Departmental examination.”   

The High Court accordingly dismissed the Writ Petitions

filed  by  the  appellants  herein  questioning  the

correctness of the order passed by the Tribunal. Hence

the present appeals.

4. We have heard Mr. V. Giri, the learned senior counsel

appearing on behalf of the appellants in the Civil Appeal

90  of  2015  and  Mr.  N.K.  Kaul,  learned  Additional

Solicitor General appearing on behalf of Union of India

and Dr. K.P. Kylashnath Pillay, learned senior advocate

appearing on behalf of some of the respondents.   5. The essential question of law which arises for our

consideration  in  the  instant  case  is  whether  the

appointment of the appellants to the post of Postman is

by way of direct recruitment or by promotion.

6. We first turn our attention to the relevant rules at

play  in  the  instant  case,  which  are  the  Recruitment

Rules.  The  Schedule  to  the  said  Recruitment  Rules

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specifies  the  method  of  recruitment,  age  limit,

qualifications etc. relating to appointments to the said

posts.  Column  1  specifies  the  name  of  the  post  as

Postman/Village Postman, and Column 3 specifies it to be

a Group ‘C’ post.

7. Column 11 of the Recruitment Rules which is at the

heart of the controversy in the present case, reads as

under:

“Method of recruitment whether by direct recruitment  or  by  promotion  or  by deputation/transfer  and  percentage  of the  vacancies  to  be  filled  by  various methods :-

1.50%  by  promotion,  failing  which  by  Extra Departmental  Agents  on  the  basis  of  their merit in the Departmental Examination.

2.50%  by  Extra  Departmental  Agents  of  the recruiting division of Unit, in the following manner, namely:

(i) 25% of vacancies of postman shall be filled  up  from  amongst  Extra Departmental  Agents with  a minimum of 5 years of service on the basis of their seniority, failing which by the Extra Departmental Agents on the basis of Departmental examination.

(ii) (ii)  25%  from  amongst  Extra Departmental Agents on the basis of their  merit  in  the  departmental examination.

3.If the vacancies remained unfilled by EDAs of the recruiting division, such vacancies may be so filled by EDAs of the postal division failing in the Zone of Regional Director.

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4.If the vacancies remained unfilled by EDAs of the recruiting units such vacancies may be filled  by  EDAs  of  the  postal  divisions located  at  the  same  station.  Vacancies remaining  unfilled  will  be  thrown  upon  to Extra Departmental Agents in the region.

5.Any  vacancy  remaining  unfilled  shall  be filled up by direct recruitment through the nominees of the Employment Exchange."

A careful reading of the above Column makes it clear that

essentially  two  ‘pools’  are  envisaged  from  which

appointments to the post of Postman can be made. One is

the pool of those candidates who are being promoted, and

the other is the pool of the Extra Departmental Agents

who  are  appointed  to  the  said  post  after  passing  a

departmental  examination.  50%  of  the  candidates  being

appointed to the post of Postman are selected by way of

promotion.  The  remaining  50%  of  the  candidates  are

selected in two ways. 25% of the candidates are selected

from amongst the Extra Departmental Agents on the basis

of  their  seniority  in  service,  and  the  other  25%

candidates  are  selected  from  the  Extra  Departmental

Agents  based  on  their  merit  in  the  Departmental

Examination.

8. Further, Column 12 of the Recruitment Rules reads as

under:

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“In  case  of  recruitment  by promotion/deputation/transfer grade from which  promotion/deputation/transfer  to be made:  

1.Promotion from Group 'D' officials who have put  in  three  years  of  regular  and satisfactory service as on the closing date for  receipt  of  applications  through  a Departmental  examination.

2.Extra  Departmental  Agents  through  a Departmental Examination.              

3.Direct  recruitment  through  a  Departmental Examination."

The post in the instant case, that of Postman is a Group

‘C’ post. Thus, it is quite natural that ‘promotion’ to

the said post can happen only from the feeder post, which

in the instant case, are the Group ‘D’ posts. Admittedly,

GDS  is  not  a  Group  ‘D’  post,  and  members  of  GDS  are

merely Extra Departmental Agents.

9. At  this stage,  it is  also useful  to refer  to the

decision of this Court in the case of C.C. Padmanabhan &

Ors. v. Director of Public Instructions & Ors.1, 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

1  1980 (Supp) SCC 668

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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 Prasad2, 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.]”

2  (1997) 11 SCC 650

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Further, a three-judge Bench of this Court in the case of

The Superintendent of Post Offices & Ors. v. P.K. Rajamma3

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.

10. A Full Bench of the Ernakulam Bench of the Central

Administrative Tribunal in the case of  M.A. Mohanan  v.

The Senior Superintendent of Post Offices & Ors.4, had the

3  (1977) 3 SCC 94

4  O.A. No. 807 of 1999, decided on  03.11.1999

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occasion  to  consider  a  similar  question.  The  majority

opinion of the Tribunal held as under:

“As the name itself indicates,  EDAs are not departmental employees. They become departmental employees from the date of their  regular  absorption  as  such.  And promotions  are  only  for  departmental employees.  Therefore,  EDAs  cannot  be treated  as  'promoted'  as  Postmen.  They can  be  treated  as  only  appointed  as Postmen. It  is  further  seen  from instructions  of  Director  General  Posts under  Rule  4  of  Swamy's  publication referred to earlier that EDAs service are terminated on appointment as Postman and hence they become eligible for ex gratia gratuity. If the recruitment of EDAs as Postman is treated as a promotion, the question of termination will not arise. This also leads one to conclude that the recruitment  of  EDAs  Postman  cannot  be treated as one of promotion. Further,  Hon'ble  Supreme  Court  in  C.C. Padmanabhan  and  Ors.  v.  Director  of Public  Instructions  and  Ors.,  1980 (Suppl.)  SCC  668=1981(1)  SLJ  165  (SC), observed that 'Promotion' as understood in ordinary parlance and also as a term frequently  used  in  cases  involving service laws means that a person already holding a position would have a promotion if he is appointed to another post which satisfies  either  of  the  two  conditions namely  that  the  new  post  is  in  higher category of the same service or class. Applying the above criteria appointment as Postman from EDA cannot be termed as promotion as the posts of Postman and EDA belong  to  two  different  services  viz. regular  Postal  Service'  and  'Extra Departmental Postal Service.'”                   (emphasis laid by this Court)

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11. The  Tribunal  in  the  instant  case  sought  to

distinguish  the  aforementioned  case  with  the  case  in

hand,  by  placing  reliance  on  another  decision  of  the

Tribunal and holding that the Full Bench was concerned

with the cases of those candidates covered under Column

11(2)(i),  whereas  the  case  of  the  candidates  in  the

instant  case  was  covered  under  Column  11(2)(ii),  and

thus, the decision of the Full Bench has no bearing on

the facts of the case on hand. This reasoning of the

Tribunal cannot be sustained, as the Full Bench of the

Tribunal was clearly adjudicating the broader question of

whether the appointment of Extra Departmental Agents to

the post of Postman is by way of direct recruitment or by

way of promotion. The attempt to distinguish the ratio of

the  Full  Bench  of  the  Tribunal  on  such  a  superficial

ground is akin to reading the decision of the Full Bench

like a Statute, which cannot be sustained.

12. The  Division  Bench  of  the  High  Court  placed

reliance on the wording of Column 11(1) to conclude that

since the Extra Departmental Agents being appointed as

provided under Column 11(1) can be called as promotees,

then the Extra Departmental Agents under Column 11(2)(i)

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and (ii) also must be treated at par. The said reasoning

of  the  High  Court  also  cannot  be  sustained.  It  is

nobody’s case that the Extra Departmental Agents being

appointed  under  Column  11(1)  be  called  promotees.  The

language of Column 11(1) itself makes this crystal clear.

The use of the words ‘failing which’ makes it obvious

that there is a distinction between those candidates who

are  being  selected  by  way  of  promotion,  and  the

candidates  who  are  Extra  Departmental  Agents  and  have

cleared the departmental examination, and that the latter

will be considered for appointment only if there are no

eligible candidates under the former category. Thus, the

appointment of GDS to the post of Postman can only be

said  to  be  by  way  of  direct  recruitment  and  not

promotion.

13. Further  regard  may  be  had  to  the  Notification

dated  11.08.2009  issued  by  the  Office  of  the

Postmaster  General,  Department  of  Posts,  notifying

the  examination  for  recruitment  to  the  cadre  of

Postman/ Mail Guard. Under the Head of ‘Eligibility’,

it states as under:             “

(i) Group D-……… (ii) GDS- For GDS, the upper age limit shall be

50 years with 5 years relaxation for SC/ST

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candidates and 3 years relaxation for OBC candidates as on 1st July, 2008 and he/ she should have completed a minimum of 5 years regular  satisfactory  services  as  on  1st January 2008. There is no restriction on number of GDS to be permitted to take the examination under the 25% merit quota. All eligible GDS will be allowed to appear in the examination.

Note (i): Reservation will be provided for  OBCs  in  Recruitment  of  GDS  as Postman as is being done in the case of SC/STs.”

The  said  notification  also  makes  it  evident  that

reservations for candidates belonging to the OBC category

were  very  much  in  contemplation  at  the  time  the

departmental examination was conducted. Even if a mere

reading of Columns 11(1) and 11(2)(i) and (ii)  of the

Recruitment  Rules  as  well  as  the  Notification  issued

while  notifying  the  departmental  examination  is  not

enough, the subsequent legislative developments leave no

scope  for  doubt  as  to  the  legislative  intent.  The

relevant Column of the Department of Posts (Postman and

Mail Guard) Recruitment Rules, 2010, reads as under:

“Column 11 (a)… (c) 25%  by  recruitment  on  the  basis  of Competitive  examination  limited  to  Gramin  Dak Sevaks*  of  the  recruiting  Division  who  have worked for at least five years in that capacity as on the 1st day of January of the year to which the vacancy(ies) belong failing which by

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direct recruitment; *Gramin Dak Sevaks are holders of Civil posts but they are outside the regular Civil Service due to which their appointment will be by direct recruitment.”  

Even  though  the  said  Rules  are  not  meant  to  apply

retrospectively, and neither are we suggesting that they

do,  this  makes  the  position  of  the  Gramin  Dak  Sevaks

crystal clear. Their appointment as Postman is only by

way of direct recruitment and not by way of promotion.

14. Having  concluded  that  the  selection  of  Extra

Departmental Agents or Gramin Dak Sevaks to the post of

Postman under Column 11(2)(ii) of the Recruitment Rules

is only by way of direct recruitment and not by way of

promotion,  the  question  of  whether  reservation  for

candidates belonging to OBC category  is allowed becomes

easier to answer. It has now been well settled by a nine

judge Bench of this Court in the case of Indra Sawhney v.

Union of India5 that reservation for candidates belonging

to  OBC  category  is  permissible  in  cases  of  direct

recruitment.

15. In view of the reasoning and conclusions recorded by

5  1992 Supp (3) SCC 217

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us as above, the order of the Tribunal as well as the

impugned judgment and order of the High Court are set

aside. There is no infirmity in the appointment of the

appellants  to  the  post  of  Postman.  The  Appeals  are

accordingly allowed. No costs.

        …………………………………………………………J.                               [V.GOPALA GOWDA]

…………………………………………………………J.                               [R. BANUMATHI] New Delhi, August 12, 2016