SINI.T.R. Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners herein impugn the order of the Tribunal rejecting their request to employ them continuously as Gramin Dak Sevaks [for brevity "GDS"], in preference to persons with lesser service, as also consider them for regular appointment to the posts in which they have been continuing. The applicants also sought for a declaration that the Circular, produced as Exhibit P4 in O.P(CAT) 75 of 2012, is ultra vires the Industrial Disputes Act, 1947 [for brevity "ID Act"] and opposed to Article 14 and 16 of the Constitution of India. The claim against the Circular was insofar as it prescribed a minimum three years continuous service for granting preference in re-employment of GDS; when the ID Act stipulated only 240 days of employment in an year.

(2.) The Tribunal, relying on the principle laid down by the Hon'ble Supreme Court in Secretary, State of Karnataka v. Umadevi [(2006) 4 SCC 1] that there could be no entry to public employment through back door, found that the petitioners-applicants are ad hoc employees whose appointment were as a stop gap arrangement. It was found that there was nothing to show that they were engaged as provisional hands after a due selection carried out pursuant to a public notification; who alone are to be granted re-employment as per Exhibit P4.

(3.) The learned Counsel for the petitioners Sri.M.R.Hariraj would point out that the distinction drawn by the Department insofar as "outsiders/ substitutes" and "provisional hands" does not really exist. In practice, appointments are made only on temporary basis from persons who have knowledge of the locality in which the Post Office is situated, wherein there is a vacancy; while provisional hands are continued till the vacancy exists. Insofar as substitutes like the petitioners are concerned, artificial break in service is created, so as to deny them continuous service in a three year period. It is in this context that a specific contention was raised based on the provisions of the ID Act, which was not considered by the Tribunal. General Manager, Telecom v. A. Srinivasa Rao [(1997) 8 SCC 767] was relied on to urge that the Postal Department would answer the definition of an "industry" under the ID Act. Superintendent of Post Offices v. P.K.Rajamma [(1977) 3 SCC 94] was placed before us to contend that E.D.Agents were not casual workers but work under the direct control and supervision of the State. Reference to State of Assam v. Kanak Chandra Dutta [(1967) 1 SCR 679] was also made to distinguish a 'post' from a 'holder' and to bring home the meaning that was assigned to a civil post. The attempt is to contend that the post to which the petitioners were appointed was a civil post and the Department, being an 'industry' under the ID Act, going by Section 25F continuous service has to be understood as 240 days service in an year. It is also urged that if that contention is approved, then necessarily the Postal Department would be obliged to engage persons employed as substitutes on a 'last come first go' basis, which has also been approved by the Hon'ble Supreme Court in Gaziabad Development Authority v. Vikram Chaudhary [(1995) 5 SCC 210] as an imperative rule of service jurisprudence; even in the absence of a statutory mandate.