Sunil Thomas, J. (Member (J))

1. The applicant along with one Amalraj and others applied to the post of GDSMD Kusumagiri, pursuant to notification dated 16.9.2009. Amalraj was selected and appointed on 24.12.2009, on the premise that he was the highest scorer. It was later found by the respondents that there was a mistake in the evaluation of marks secured by Amalraj and that he was wrongly placed as the first person in the rank list. Accordingly, notice of termination dated 22.8.2012 was issued to him. Amalraj challenged it in OA No. 835 of 2012 before this Tribunal. An interim stay was granted by this Tribunal and consequently, Amalraj continued to work during the pendency of the Original Application. The OA was disposed of, vide order dated 27.11.2015. This Tribunal held that grave injustice was done to the applicant herein who was originally placed as the second ranked and who ought to have been placed as the first ranked. Consequently it directed the removal of Amalraj from the post of GDSMD and it further directed to issue immediate appointment order to the applicant in spite of the applicant herein not being a party to that proceedings. However, as a solace to Amalraj, it was directed that the Postal Department shall consider to accommodate Amalraj in any of the vacant posts in the same division, considering the fact that he had been employed in the Postal Department and he was removed, not due to his default. Amalraj accordingly vacated his post on 21.7.2016. Annexure A4 communication dated 15.7.2016 was issued to the applicant herein appointing him. By Annexure A4, applicant sought time for joining. He was appointed later, by order of appointment dated 5.1.2017 and joined the duty on same day.

2. While so, Annexure A5 notification was issued for the Limited Departmental Competitive Examination (LDCE) to the cadre of Postman for the vacancies of the period 2017-2018. The eligibility criteria was that the GDS should have worked at least for five years in that capacity as on 1.4.2017. The applicant also submitted his application. His application was rejected by Annexure A1 dated 12.1.2018, on the ground that he had not worked for the minimum period and thus was not qualified to apply for the post. This is challenged in the Original Application. The main reliefs sought in the Original Application are as under:

"i) To declare that the applicant is entitled to be notionally appointed as GDSMD, Kusumagiri with effect from the date of Annexure A2;

ii) To call for records leading to Annexure A1 and quash the same and to declare that the applicant is entitled to have his notional service as GDSMD, Kusumagiri with effect from the date of Annexure A2 reckoned in order to appear in the Competitive Examination for appointment to the post of Postman in the 50% quota by direct recruitment from among the Gramin Dak Sevak pursuant to Annexure A5 notification;

3. Pending the OA, by order in MA No. 636 of 2019 the applicant was provisionally permitted to appear for the LDCE examination, which was held on 15.9.2019. The result of the examination was submitted before this Tribunal in a sealed cover, which, on opening, disclosed that the applicant stood qualified in the examination. Accordingly, both sides were heard and examined the records.

4. The premise on which this OA is laid is on the ground that the applicant was denied employment with effect from December, 2009, due to mistake, delay and negligence on the part of the respondents. Had he been appointed in December, 2009, he would have been legally eligible for applying to the post of Postman vide notification issued by the respondents. The applicant was the most meritorious among all the candidates who had contested in December, 2009, to the post of GDSMD. He was ready to work, if appointment was offered to him. The glaring defect in the appointment process was informed to him only after seven years. According to the applicant, Supreme Court in Nirmal Chandra Bhattacharjee v. Union of India 1991 Supp(2) SCC 363] had held that the mistake or delay on the part of the Department should not be permitted to recoil on the employees. This was reiterated by the Supreme Court in State of Uttar Pradesh & Ors. v. Mahesh Narain & Ors.: (2013) 4 SCC 169] [LQ/SC/2013/256] . It was further contended that Supreme Court had distinguished regular service from actual service in Union of India & Ors. v. K.B. Rajoria(2000) 3 SCC 562] [LQ/SC/2000/577] to include even notional service, as it amounts to set right the wrong done to an incumbent by denying him an appointment, to which he was otherwise legally entitled to. The ratio in Rajoria's case (supra) was followed in Sharma K.K. v. High Court of Delhi & Ors. (2014) 6 SCC 96] wherein it was held that the court was duty bound to restitute the lost opportunity of an incumbent due to the mistakes and illegalities committed by the Department. It was contended that the applicant lost the opportunity for being considered for career advancement only due to the wrongful denial of appointment to the applicant due to the mistake attributable to the respondents. That being so, the wrong done to the applicant has to be corrected by reckoning his service notionally, with effect from the date of Annexure A1, as if the right thing had been done at the right time.

5. The respondents in their reply statement asserted that pursuant to Annexure A3 order directing Amalraj to vacate, he was issued with a notice to vacate on 5.7.2016. Accordingly, he vacated the post of GDSMD on 21.7.2016. Pursuant to Annexure A3 order, an offer of engagement at the Kusumagiri BO was issued to the applicant herein on 15.7.2016. He sought some time to join. Accordingly, Annexure A4 memo was issued to the applicant dated 5.1.2017. He was called upon to join. He joined on 5.1.2017 itself. The applicant could be appointed only after Amalraj had vacated the post, and applicant joined in January, 2017. As per Annexure A5, the eligibility condition for the GDS to appear in the LDCE examination was that the candidate must have worked for at least five years in that capacity. The applicant had not worked for five years and consequently, he was not entitled to appear for LDCE examination. Hence, the respondents were justified in rejecting his application.

6. The learned counsel for the applicant vehemently relied on the decisions in Nirmal Chandra Bhattacharjee's case (supra) as well as Mahesh Narain's case (supra) to contend that the mistake occurred only on the part of the Department and it should not recoil on the employees. It is true that the entire incident occurred due to an inadvertent mistake on the part of the staff of the Postal Department. Even that was noticed on a second scrutiny voluntarily adopted at a higher level. Immediately on detecting it, Postal authorities issued notice of termination to Amalraj, who challenged the notice of termination before this Tribunal. It is true that by virtue of interim stay granted by this Tribunal, he continued to hold the post. Immediately, after Annexure A3 order was passed, order was issued to Amalraj to vacate and letter offering appointment to the applicant was also issued. There was no delay on the part of the Postal authorities, nor had they shown any favouritism to said Amalraj. As indicated earlier, it is true that this Tribunal had found that there was culpable negligence on the part of the establishment.

7. In the above circumstance, the learned counsel for the applicant contended that the Postal authorities were not justified in rejecting the application of the applicant for the LDCE examination. It was contended by the learned counsel for the applicant, relying on Rajoria's case (supra), that Supreme Court has affirmed that even notional service can be treated as regular service and relief was granted to the appellant therein. It is pertinent to note that notification specifically provided that the applicant, to qualify himself to appear for the examination must have "worked for at least five years in the capacity as GDS". Admittedly the applicant was appointed only in January, 2017 and notification was published immediately thereafter. Evidently, he had not worked for five years as stipulated in Annexure A5. The contention of the applicant was that he should notionally be deemed to have been appointed with effect from the date of Annexure A2 and should be treated as notional service.

8. Though the learned counsel for the applicant heavily relied on Rajoria's case (supra), that decision seems to be distinguishable on facts. That was a case wherein the appellant was notionally promoted to the post of Additional Director (Works) with effect from 22.2.1995. He was considered to the post of Director General (Works) which was under challenge in the above proceedings. The post of Director General (Works) was a selection post to be filled up by promotion from among Additional Director Generals (Works) with two years regular service in that grade. The question that came up before the Supreme Court was whether the notional service granted to the 4th appellant therein could be considered as two years regular service. The Supreme Court held that the word "regular" does not mean actual and held that the question that arose whether the appointment of appellant No. 4 was regular and in accordance with Rules or was it irregular in the sense that it was contrary to the principle of law. The Supreme Court held that by giving the appellant a notional promotion as Additional Director General he was in fact regularly appointed to the post on that date which should have been considered by the Supreme Court. On facts it was held that it amounted to a two years regular service as contemplated in the rules. Consequently, it was held that the applicant therein was notionally promoted was entitled to treat it as regular service and found fault with the High Court for having equated the words of regular service with actual experience, relying on the decision in Union of India & Ors. v. M. Bhaskar & Ors. : (1996) 4 SCC 416] [LQ/SC/1996/934] .

9. Evidently, in Rajoria's case (supra) the rule only provided for two years 'Regular service' which the Supreme Court held, cannot be equated with actual experience. On that premise, M. Bhaskar's case (supra) was distinguished. However, the eligibility criteria fixed in M. Bhaskar's case (supra) was completion of two years' experience which was the distinguishing feature. In the case at hand, unlike other Rules, what has been prescribed was that the person must have "worked for at least five years in that capacity". Consequently, "working experience" in the present case cannot be equated with "regular service" or even "notional service".

10. The learned Senior Panel Counsel opposing the application specifically referred to the decision in Nirmal Chandra Sinha v. Union of India & Ors. (2008) 14 SCC 29] [LQ/SC/2008/800] wherein it was held that promotion takes effect with effect from the date of promotion being granted and not from the date of occurrence of vacancy or creation of the post. It was held that when a rule requires two years' actual service in the lower post, before a person can be considered for promotion, that rule cannot be violated by considering a person who has not put in two years' service in the lower post. To supplement this, the learned counsel further relied on the decision in J & K Public Service Commission v. Dr. Narinder Mohan & Ors. : (1994) 2 SCC 630] [LQ/SC/1993/1054] which stated that when the statutory Rules are made, the appointment shall be only in accordance with the Rules and it should not supplant the law.

11. As indicated above, what is prescribed by the notification is that a person applying must have worked for at least five years in that capacity. It clearly means actual experience in that post. The learned Senior Panel Counsel pointed out that this is a specific provision which was applicable in the case of GDS who being selected as Postman, whereas in other corresponding rules there is no prescription which calls for only an experience. Evidently, Rajoria's case (supra) cannot be extended to the present case. Hence, the decisions in M. Bhaskar's case (supra) and in Nirmal Chandra Sinha's case (supra) referred to above seems to be more applicable to the facts of the case.

12. There is yet another reason for not granting the above relief. This Tribunal by Annexure A3 only directed that the applicant be given appointment. It did not say that his appointment shall be notionally with effect from the date of Annexure A2. The relief was confined by that order only to give an appointment having regard to the peculiar circumstances that was available on record, that too, when the applicant herein was not a party to the earlier proceedings. To that extent the injustice caused to the applicant was redressed. Having considered this, it emerges that notional appointment cannot be given with effect from a date from which the applicant was not even appointed that, too when another person was holding that post.

13. Having considered the entire facts in the above perspective we are satisfied that the relief sought by the applicant cannot be granted. Necessarily, the OA has to fail. In the result the OA fails and it is dismissed. No costs.