Per Hon’ble Shri Devendra Chaudhry, Member (A)

1. As the two O.As involve inter-related common questions of facts and law, hence, they are being disposed of by this common order and with consent of the ld counsels of the parties.

2. Per applicant Shri Rajendra Kumar Awasthi of OA No. 609/1995, he was appointed as Extra Departmental Branch Post Master as Substitute in place of one Shri Jamuna Prasad on 19/06/1989 at Post office Mahbullapur. In proof thereof, a „Anubhav Praman Patra‟ which translates into – „experience certificate – and a Charge certificate is filed. It is further submitted that later, he - Rajendra Kumar Awasthi (referred to as 'Awasthi' in short hereinafter), was transferred to work as Extra Departmental Postman as Substitute at post office Diguria, district Lucknow in place of one Shri Safiq Ali on 07/05/1992 as the position at Diguria had fallen vacant due to promotion of Shri Safiq Ali. That later vide order 29/06/1995 (Annexure-5), he was transferred to work as Substitute at post office Ghaila in place of one Shri Ramesh Dutt Tewari (referred to as 'Tewari' in short hereinafter) who in turn was posted from Ghaila to Diguria.

2.1 That subsequently, the Assistant Superintendent Post office North called for names of persons for appointment to the post of Extra Departmental Postman from Employment office and the name of Applicant was sponsored by the Employment office along with names of three others. That being resident of village Diguria and having passed High School examination in 1979 and given the minimum qualification being class VIII with preference to High School, he considered himself eligible for the appointment but was not considered and the list of Employment Exchange sponsored candidates itself was cancelled, despite that fact that he was eligible for selection as he had worked for seven years as Substitute as against a requirement of only three years for absorption of a Substitute to become a regular ED. That later, after cancelation of the sponsored candidates he came to know that one Virendra Kumar of village Chandan, Post office CIMAP, Lucknow has been appointed at Diguria ignoring the claim of the Applicant which is against rules; hence the O.A. No 609/1995 in which the appointment of Virendra Kumar was challenged apart from his own plea for absorption and regularisation.

2.2 The OA No. 609/1995 was thereupon taken up for hearing by the Tribunal which vide order dated 17/11/1995 passed an order of status quo on the plea of Awasthi for Interim relief to enable him to continue at Ghaila. Aggrieved against this status quo order, the Respondent in OA No. 609/1995 – viz Virendra Kumar [whose appointment was challenged in the O.A. ] filed a separate O.A. No.18/2016, wherein it was submitted that the status quo order had been erroneously interpreted by Awasthi and Tewari inasmuch that when the status quo order was passed on 17/11/1995, Awasthi was posted at Ghaila and not at Diguria and so the status quo order implied that Awasthi would continue at Ghaila and that it did not imply that the appointment order dated 08/11/1995 of Virendra Kumar for taking charge at Diguria was stayed. That notwithstanding, Awasthi and Tewari did not vacate their respective places and Virendra Kumar – Applicant in O.A. 18/1996 was not given charge of EDMC Diguria against the appointment order dated 08/11/1995; hence the O.A. – viz O.A. 18/1996 wherein it is prayed that the Applicant therein – Virendra Kumar be given charge of the EDMC at Diguria. Virendra Kumar has supported this interpretation/assertion of the status quo order of 17/11/1995 on the grounds that the Interim relief sought by Awasthi was itself for allowing him [Awasthi ] to continue to work at Ghaila and so the Interim relief given could not go beyond what was asked for in the first place qua the prayer itself. That both Awasthi and Tewari are jointly responsible for the erroneous interpretation of the status quo order and liable to be punished also as Tewari did not give charge to Virendra Kumar in direct defiance of the order of 08/11/1995 which not only contained directions for appointment of Virendra Kumar but also a clear direction to Tewari to hand over charge to Virendra Kumar. 

2.3 However, as things stand, Shri Ramesh Dutt Tewari did not leave Diguria and this act of his became the basis of the O.A. No. 18/1996 filed by Virendra Kumar in which he Virendra Kumar prayed for grant of charge as EDMC Diguria and payment of allowances and pay etc for the period he was not allowed to take charge of the place at Diguria as EDMC. 

3. The ld counsels for both the parties were heard in extenso and all the pleadings and documents filed in both the O.As examined carefully.

4. The key issue which falls for consideration is whether the appointment of Virendra Kumar challenged in OA No. 609/1995 is lawful and he should be given charge per his O.A. 18/1996 and, whether Applicant in OA No. 609/1995 can be regularised as per his prayer.

5. Having thus set the stage for discussion, we may now advert to the points related to OA No. 609/1995 and as we progress, points related to O.A. No. 18/1996 would be dealt with in tandem.

6. In OA No. 609/1995, the Applicant – Awasthi - has prayed for following reliefs per para 8:

Para-8 of OA No. 609/1995:

A. This Hon‟ble Tribunal be pleased to quash the order of appointment dated – not printed in the O.A. - contained in Annexure No. 1 passed by opposite party no. 3 and appoint the applicant on the post of extra Departmental Postman at Post Office Diguria District-Lucknow.

B. This Hon‟ble Tribunal be pleased to direct the respondents to consider the case of the applicant for regularisation on the post of E.D. Postman at Post Office Diguria Lucknow.

C. To issue any other order or direction which this Hon‟ble Tribunal deems, fit and proper.

D. Award the cost of application in favour of the applicant.”

Clearly there are two different reliefs claimed -

i. Quash the order of appointment of Shri Virendra Kumar vide appointment order [Annexure -1] passed by Respondent-3

ii. Regularisation on the post of ED at Post Office Diguria, District Lucknow

Consequently, these two different reliefs are susceptible for violation of provisions of Rule-10 of the CAT (Procedure) Rules, 1987, which reads as under

Rule-10 of CAT (Procedure) Rules, 1987:

“10. Plural remedies. - An application shall be based upon a single cause of action and may seek one or more reliefs provided that they are consequential to one another.”

Thus, per Rule-10 an application has to be based on a single cause of action but, the applicant may seek one or more reliefs provided that they are consequential to one another.

7. This brings us to the grounds of challenge stated in para-5 of the OA No. 609/1995. Para-5 reads as under:

Para-5 of OA No. 609/1995 :

a. Because the applicant is working since last seven years without any break and is entitled for regularisation / appointment on the post of E.D. Postman as per departmental rule.

b. Because the respondent has arbitrary transferred the applicant from Diguria to Ghaila only to ignore his legal claim.

c. Because the applicant possess all requisite qualification for the post of E.D. Post Man having experience of more than seven years.

d. Because the applicant is entitled for regularisation after completing 3 years of continuous service as per departmental rule.

e. Because appointment on the post of E.D. Postman has been made overlooking the departmental rules and norms.

f. Because the Shri Virendra Kumar Rawat is not even the resident of village Diguria as such his appointment is illegal and against Departmental rules.

Evidently, the ground taken to challenge the appointment order of Shri Virendra Kumar, Respondent-4 is that he is not a resident of the village Diguria and the ground taken for regularisation of Applicant himself is that the Applicant has been in continuous service as ED for seven years and that as per rules just three years of service are adequate for regularisation and so he should be regularised – relief para – „B‟-.

8. Evidently the reasons for quashing the appointment order of appointment of Virendra Kumar have no connection at all with the grounds for regularisation. Therefore, in respect of Awasthi in OA No. 609/1995, challenge to the appointment order of Virendra Kumar is clearly a separate distinct relief and the prayer for regularisation is another separate distinct relief. This distinction is also evident from the fact that the grounds for challenge to appointment of Virendra Kumar are inter alia his lack of residence at Diguria etc, whereas grounds for regularisation are Awasthi‟s service as Substitute for a period of seven years which is more than the alleged qualifying period of three years for absorption of a Substitute to a regular post.

8.1 Consequently the OA No. 609/1995. on the face of it suffers from the vice of Plural remedies per Rule-10 of the CAT (Procedure) Rules,1987 and so, worthy of dismissal at the threshold unless it is established that the challenge to the appointment of Virendra Kumar at Diguria would have a consequential relief of grant of appointment of the Applicant at Diguria while being conscious of the fact that the Applicant is not a regularly appointed ED admittedly which is also why he is seeking regularisation as a relief. Moreso, the appointment of Virendra Kumar against the vacant post of Diguria – which was made vacant due to promotion of the then incumbent Shri Safiq Ali and that Tewari who was a regular appointee at Ghaila post office was only asked to look after the work at Diguria and in his – Tewari‟s place, Substitute Awasthi was directed to look after the work as Substitute at Ghaila 

9. In light of above, we may first examine the case of challenge to the appointment of Virendra Kumar.

10. The OA No. 609/1995 applicant – Awasthi - has challenged the appointment of Virendra Kumar on the ground that Virendra Kumar is not a resident of the village Diguria, District Lucknow and so his appointment is de hors the rules. However, while not stated at all in para-5 of – „Grounds‟ in the O.A., another reason emerges from the submissions of the O.A. 609/1995 in its paras viz para-3 to para-9. Same read as under:

Para 3 to 9 of O.A. 609/1995:

“3. That it is pertinent to mention here that Shri Safiq Ali in whose place the applicant was working at Post Office Diguria appeared and qualified in the Departmental Examination of Postman as such the post of Extra Departmental Postman at Post Office Diguria fell vacant.

4. That the applicant has also made an application for regularisation on 1.6.1995 when he came to know that the post on which the applicant is working fell vacant due to person on whose place the applicant is working has passed the Department exam of Postman. A photo copy of representation dated 19.5.1995 is filed herewith as Annexure No. 4 to this application.

5. That the applicant was again transferred from Post Office Diguria to post office Ghaila by order dated 29.6.1995 as substitute in place of Ramesh Dutt Tewari who was regular appointed at the post office Ghaila and Ram Dutt Tewari was transferred to Post Office Diguria. A photo copy of order dated 29.6.1995 is filed herewith as Annexure No. 5 to this application.

6. That the post of E.D. Postman was lying vacant and the applicant was working on the same but the Assistant Superintendent Post Office North called for the names of the person who are eligible for appointment on the post of Extra Departmental Postman from the employment office vide letter dated 4.7.95 the name of the applicant was sponsored by the employment officer and accordingly the applicant applied for appointment on the post of E.D. Postman with other applicants. The name sponsored by the employment officer as under :

Shri Rajendra Kumar Awasthi.

Anoop Kumar,

Vishnu Dutt Shukla

Sanjai Rastogi.

7. That it is pertinent to mention here that the applicant is resident of Village Diguria, he has passed Matriculation Examination in 1979, it worth mentioning that the essential qualification for the post of E.D. Postman is Class VIII pass however, as per departmental instruction the preference will be given to the candidates having passed High School Examination as such the applicant is fully qualified and entitled for appointment on the post of E.D. Postman on preference having experience of more than seven years.

8. That the list of candidates sponsored by the employment exchange was cancelled by Assistant Superintendent Post Offices for the reasons best known to him on 28.09.1995. A photo copy of matriculation certificate domicile certificate and departmental instruction are filed herewith as Annexure No. 6, 7 and 8 to this application.

9. That after cancellation of the list sponsored by employment exchange the names were asked from the market on 29.9.1995 applicant again applied in pursuance of order dated 29.9.1995 alongwith relevant documents.”

Admittedly, the post of EDDA Diguria fell vacant when the regularly appointed permanent incumbent of the post – Shri Shafiq Ali (referred to as 'Shafiq' in short hereinafter) got promoted to the post of Postman. Consequently, two actions were taken by the Respondents – (i) Shri Ram Dutt Tewari – a regularly appointed EDDA at Ghaila - was sent to Diguria vide order 29/6/1995 (Annexure A-5 in O.A. 609/1995) and, (ii) the Assistant Superintendent Post Office North (referred to as 'ASPO' in short hereinafter) took steps to fill up the now vacant post of Diguria – vacant due to promotion and transfer therefrom to the post of Postman of the regular appointee – Shafiq.

11. Going forward, the post of EDDA Diguria was taken up for filling by calling of names from the Employment Exchange and the names of four persons were sent by the Employment Exchange, namely: S/s Rajendra Kumar Awasthi, Anoop Kumar, Vishnu Dutt Shukla and Sanjal Rastogi. However, this list was cancelled vide 28/09/1995 and fresh names were sought vide notification dated 29/09/1995 by the ASPO against which the Applicant applied but could not be selected. The Applicant has not stated any reasons in the O.A. as to why he was not selected.

12. This brings us to the examination of the submissions of the Respondents 1-3 in O.A. 609/1995 wherein it is stated that –

i. Per the EDA (Conduct and Service) Rules 1964, (referred to as '1964 Rules' in short hereinafter) when the EDA proceeds on leave or permitted to officiate as „Postman‟, he is the one who has to arrange for providing his Substitute and that the Substitute has to be spared out as and when the regular incumbent comes back to the original post. That, therefore, the Substitute has no right for any automatic absorption in the department For buttressing this point, the Respondents have alos relied on a bunch of judgements of Hon Apex Court in - [para-3 of CA in OA No. 609/1995] refers.

ii. Therefore, applicant Shri Rajendra Kumar Awasthi has no right to claim any absorption per the rules, even if he has worked as a Substitute since 1989 firstly at Mohibullapur till 1992 and from 1992 to 1995 at Diguria notwithstanding his experience

iii. Accordingly, per rules, names were called from the Employment Exchange vide letter dated 02/07/1995 when the post of incumbent Shri Shafiq Ali fell vacant at Diguria and the list of four candidates was sent by the Employment Exchange vide letter 31.7.1995 / 01.8.1995 whereafter all the candidates were informed to submit their applications vide office letter dated 09/08/1995. But out of four candidates, only one candidate viz the applicant – Rajendra Kumar Awasthi applied and notices to other three were received back as undelivered (para-3 of CA in OA No. 609/1995). Therefore, since there would be no element of competition on receipt of merely one application, hence a general public notice vide 28/9/1995 was issued to the public at large for more names to enable worthy selection which notice was issued as per rules. As a result, five applications were received and so after receipt of these 05, there became a total of six applications including that of Rajendra Kumar Awasthi. Based on the comparative chart (Annexure CA-2) wherein the Applicant Rajendra Kumar Awasthi secured the lowest marks of 30% in High School and Virendra Kumar secured the highest marks amongst all the six candidates, in High School, Virendra Kumar was selected. That thereupon vide letter dated 08/11/1995 Virendra Kumar was appointed as EDDA / MC Diguria and the Sub-Post Master, M/M, Lucknow directed Shri Ramesh Dutt Tewari, EDDA/MC to hand over charge to Virendra Kumar but Ramesh Dutt Tewari did not do so and meanwhile the applicant Shri Rajendra Kumar Awasthi in the OA No. 609/1995 got a stay from the Tribunal vide order 17/11/1995 for maintenance of status quo by filling the OA No. 609/1995 which also was wrongly interpreted by Awasthi and Tewari despite instructions of the Respondents. Consequently, Ramesh Dutt Tewari has continued to work as EEDA/MC at Diguria post office and Rajendra Kumar Awasthi is continuing as Substitute at Ghaila against the post of Ramesh Dutt Tewari and the lawful incumbent Virendra Kumar could not be given charge till date. That the claim of Rajendra Kumar Awasthi on the post of Diguria is unacceptable as (a) he was not selected for the Diguria post office EDDA during the recruitment process due to low marks (b) he is only a Substitute and continues at the status of Substitute even at Ghaila.

At this point it would be well to examine the rules pertaining to the appointment of a Substitute and a regular EDDA per the „Posts and Telegraph Extra-Departmental Agents (Conduct and Service) Rules 1964 (referred to as '1964 rules' in short hereinafter) as these are the relevant applicable ones in terms of the year of the Rules in respect of the case at hand in light of the fact that the related Rules were later amended a bit in 2001 followed by in 2011 etc. For citing the Rules we rely on the „Swamy‟s Compilation of Service Rules – Muthuswamy and Brinda – Swamy Publishers (P) Ltd, Chennai / New Delhi – Seventh edition – 1999

13. Per Rule -1 of the 1964 rules, the correct nomenclature for the Rules is –“ Posts and Telegraphs Extra-Departmental Agents (Conduct and Service) Rules, 1964 (referred to as '1964 rules' in short hereinafter) 1964. Rule 2(b) reads as under:

“ Rule 2(b) “ Extra-Departmental Agent” means -

(i) an Extra-Departmental Sub-Postmaster;

(ii) an Extra-Departmental Branch Post master;

(iii) an Extra-Departmental Delivery Agent;

(iv) an Extra-Departmental Mail Peon;

(v) an Extra-Departmental Letter Box Peon;

(vi) an Extra-Departmental Mail Carrier or Runner;

(vii) ….

(xiii) an Extra-Departmental Porter..”

Rule-3 is for Appointing Authority, Rule-4 for Pension and Rule-5 for Leave. Rule-3 and 5 read as under:

Rule-3:

“3. Appointing Authority

(1) The appointing authority in respect of each category of employees shall be as shown in the schedule annexed to these rules.

(2) If any doubt arises as to who is the appropriate appointing authority in any case, the matter shall be referred to the Government, who decision thereon shall be final.

3-A. The powers of the appointing authority in the matter of awarding any of the penalties specified in Rule 7 may be exercised by an authority which has been shown in the Schedule annexed to these rules or by any other authority empowered in this behalf by a special order of the Head of the Circle under circumstances to be recorded in writing:

Provided that in no case, the authority so appointed shall be lower in rank than the authority who originally appointed the ED Agent.

Rule-5:

The employees shall be entitled to such leave as may be determined by the Government from time to time: Provided that

(a) where an employee fails to resume duty on the expiry of the maximum period of leave admissible and granted to him, or

(b) where such an employee who is granted leave for a period less than the maximum period admissible to him under these rules, remains absent from duty for any period which together with the leave granted exceeds the limit up to which he could have been granted such leave,

he shall, unless the Government, in view of the exceptional circumstances of the case, otherwise decides, be removed from service after following the procedure laid down in Rule 8.

DIRECTOR GENERAL‟S INSTRUCTIONS

(1) Leave of 10 days for every half year. – Extra- Departmental Agents may be granted paid leave at the rate of 10 days for every half year, but there shall be no provision of carry forward or encashment of this leave. This will be implemented with effect from half year beginning from 1st July, 1998.

(2) Granting of leave to ED Agents and appointment of substitutes. A reference is invited to Rule 5 of the ED Agents (Conduct and Service) Rules, 1964, according to which the employees shall be entitled to such leave as may be determined from time to time. In accordance with this provision, Government of India have decided that leave for ED Agents should be regulated as below-

(1) The expression "leave" as applied to ED Agents means "period during which with the approval of the Appointing Authority, an ED Agent is permitted not to attend personally to the duties assigned to him, provided that in cases where a Superintendent of post Offices is the Appointing Authority, such approval may be accorded on his behalf, by the concerned Inspector of Post Offices for a period not exceeding 60 days"

An Inspector of Post Offices will be competent to sanction leave for a period not exceeding 60 days in cases where the appointing authority is the Superintendent.

(2) During leave, every ED Agent should arrange for his work being carried on by a substitute who should be a person approved by the authority competent to sanction leave to him. Such approval should be obtained in writing.

(3) The allowance normally payable to an ED Agent shall, during leave, be paid to the approved substitute provided by him.

(4) No ED Agent should be permitted leave of absence for more than 90 days at a stretch which may be extended up to 180 days in exceptional circumstances by the Divisional Superintendent of Post Offices. The maximum period of leave which may be sanctioned to an ED Agent in a single stretch shall not exceed 180 days. Leave of absence in excess of 180 days may be granted by Heads of Circles only in cases where the necessity for leave arises due to ED Agent officiating in a departmental post. The Heads of Circles have been delegated powers to sanction leave to EDAs beyond 180 days on account of genuine illness (effective 12-9-1988).

(5) If an ED Agent remains on leave for more than 80 days at a stretch, he will be liable to be proceeded against under Rule 8 of EDAs (Service and Conduct) Rules, 1964.

(6) Leave shall not ordinarily be availed by an ED Agent at frequent intervals. If an ED Agent is found to have taken leave at frequent intervals for a total period of 180 days or more in a period of one year, he shall cease to be an ED Agent.

2. Application form is to be obtained in quadruplicate from ED Agent proceeding on leave and after the sanctioning authority has passed the orders on the application, one copy should be handed over to the ED Agent and another to the substitute, the third copy being retained as the office copy for the file of the sanctioning authority. A copy should be given to the concerned drawing officer (Head Postmaster) for drawing the allowances to the substitute provided by the ED Agent.

In cases where Ex-Territorial Army personnel or Ex-Army Reservists who are working as ED Agents are called for active field service and there is no possibility of their release to rejoin the ED posts in the near future, the provisions contained in Para. 1 (6) that, if an ED Agent are not applicable

Clearly Instruction [2]{2} provides for appointment of Substitute to be arranged by the ED Agent who has been formally appointed under Rule-3 and any Agent cannot be on leave exceeding 180 days at a stretch. In the present case, the post at Diguria fell vacant in the context of the incumbent Shri Shafiq Ali‟s promotion of Postman in 1995 and Tewari who was EDDA Ghaila was directed to work as EDDA, Diguria and he was directed to arrange for a Substitute for which he arranged Awasthi as Substitute in his place at Ghaila vide letter dated 29/06/1995 which reads as under:

CA-1: order dated 29/06/1995:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

14. Therefore, the fact is that Awasthi was directed to be a Substitute at Ghaila per arrangement by Tewari and it was clearly specified that the said arrangement was totally temporary and liable to be rescinded any time. So, for Tewari to claim EDDA rights at Diguria qua Virendra Kumar is totally de hors rules from any account as he was not at Diguria at the time when Virendra Kumar was selected and posted under Rule-3. Moreso he also did not have any right of absorption as EDDA of any sort as the same is nowhere provided in the 1964 rules nor has Awasthi cited any rules under which he could be absorbed at Diguria. This point is dealt separately in later part of this judgement. The annulment of the appointment of Virendra Kumar in the best case scenario for Awasthi would still not entitle him to become a EDDA and worse certainly not at Diguria because even in the imaginary situation of Awasthi‟s appointment as EDDA by absorption or regularisation he – Awasthi would not have any rights for posting at Diguria because the same would depend on the posting orders to a post office in the imaginary situation of absorption/ recruitment/ regularisation and that post office could have been any one /other than Diguria. Moreso the exact designation of post of EDA offered from the list of posts stated in Rule-2(b) would also depend on the eligibility of Awasthi for the exact post specified in the rule. Therefore, for Awasthi to assume that he has rights over being posted at Diguria ant that to as EDMC are misconceived presumption. Which is why when the status quo injunction was granted by this Tribunal vide 17/11/1995, even in that case, if at all there was an injunction, it was for Awasthi continuing as Substitute at Ghaila and not at Diguria which is also what Awasthi prayed for in his Interim relief prayer. This misconceived presumption is what is also observed at the outset of the judgement and order of this Tribunal dated 18/03/2004 which off course was set aside by the Hon' High Court in WP SERVICE BENCH No. 703 of 2004 dated 17/02/2017 filed by Virendra Kumar in O.A. 18/1996 wherein this Tribunal pronounced upon both the O.A.s viz 609/1995 filed by Awasthi and O.A. No. 18/1996 filed by Virendra Kumar. The relevant portion of the set aside judgment is as under:

OA No. 18/1996 A.W. OA No. 609/1995 Dated 18th March, 2004

“As the two OAs involve inter-related facts and common question of law, are being disposed of by this common order.”

2. In OA-18/96 applicant who has been appointed as EDDA/EDMC, Diguria vide order dated 8.11.1995 assails the action of respondents in misconstruing the stay granted in OA 609/95, as a result of which applicant has not been given charge of the post..”

However, as the Tribunal went ahead and set aside the order of appointment of Virendra Kumar without going into the correctness of the order and so the Hon' High Court set right the perception prevailing qua Awasthi and Tewari and set aside the order of the Tribunal by directing as under:

“5. After hearing learned counsel for the parties, we find that Sri Virendra Kumar, applicant in Original Application No.18/1996 was appointed on 8.11.1995. Respondent No.7 Rajendra Kumar Awasthi in Original Application No.609/1995 challenged appointment of petitioner and made a prayer that said appointment be set aside and Respondent No.7 should be appointed. Tribunal has not touched on the correctness of the aforesaid appointment and the same has not been set aside. Having not done so, we failed to understand as to how Tribunal could have directed for fresh selection on a post which is already occupied after appointment of petitioner vide order dated 8.11.1995 and appointment order is not set aside. When confronted this situation, learned counsel for the parties could not reply. In our view, judgment and order passed by the Tribunal cannot be sustained and matter requires afresh decision by the Tribunal.

6. The Writ Petition is allowed. Impugned judgment and order dated 18th March, 2004 in Original Application No.18/96 and Original Application No.609/95 is set aside. The matter is remanded to Central Administrative Tribunal, Lucknow to decide both the original applications afresh, in accordance with law, after hearing the parties, expeditiously, preferably within six months from the date of production of certified copy of this order.”

15. This fortifies our perception also with respect to the highly erroneous assumption by Awasthi and Tewari of the status quo granted in November 1995 by the Tribunal – which indeed was for Awasthi to continue as Substitute at Ghaila and not Diguria repeat not Diguria. But between Tewari and Awasthi there seems to have been a prima facie cosy arrangement wherein while Tewari continued at Diguria even after posting of Virendra Kumar and in direct defiance of the order dated 08/11/1995 – which is the appointment order of Virendra Kumar – which contains clear direction to Tewari to hand over charge to Virendra Kumar and to vacate Diguria, Awasthi continued as Substitute Ghaila even while Tewari continued to occupy the place of Diguria by not handing over charge to Virendra Kumar and moving to Ghaila which would have resulted in displacement of Awasthi – that is he would be rendered jobless and so - lo and behold the Tribunal order of 17/11/1995 came in handy by way of not moving from Diguria and enabling Awasthi to continue at Ghaila even while denying the rights of lawfully appointed Virendra Kumar to take charge at Diguria.

This unjustifiable defiance of Respondents directions and just plain law has continued till date that is for the last 27 years. While the negation of the order of this Tribunal of 2004 took 21 years from 1996 to 2017, even then, it has only now been able to come to pass that we are at the stage of adjudicating an event lost in the hoary times.

Thus, it is clear in the least that Awasthi at least does not have any claim for being posted at Diguria qua his being Substitute at Ghaila since 1995.

16. As regards the challenge to the appointment of Virendra Kumar to the loss of Awasthi with respect to the process of selection of Virendra Kumar, it is clear that rule-2 of Section IV of the 1964 rules lays down the necessary provisions with respect to selection criteria. The same is extracted hereunder:

Section IV - Rule-2:

“2. Educational Qualifications:

ED SubPostmasters and ED Branch Postmasters: Matriculation, [The selection should be based on the marks secured in the Matriculation or equivalent examinations. No weightage need be given for any qualification(s) higher than Matriculation.]

ED Delivery Agents ED Stamp Vendors and All other Categories of EDAs. VIII Standard. Preference may be given to the candidates with Matriculation qualifications. No weightage should be given for any qualification higher than Matriculation. Should have sufficient working knowledge of the regional language and simple arithmetic so as to be able to discharge their duties satisfactorily. Categories such as ED Messengers should also have enough working knowledge of English.

Evidently while minimum requirement is Class VIII standard, preference is to be given to candidates with Matriculation qualifications and no weightage is to be given for a qualification higher than Matriculation. It is no longer res integra that wherever higher-level qualification is prescribed as being preferred then the assessment will be based on the preferred level and not the minimum prescribed level. The fact that Virendra Kumar secured the highest marks amongst the candidates at Matriculation who responded to the notification for EDDA Diguria and Awasthi was at a low 30% for the Matriculation. For Awasthi to now contest in the event of a failure to qualify that the criteria of assessment was unlawful is highly misconceived in the eyes of law and there are any number of judgements of the Hon Apex Court on the matter that a preferred qualification is vires per the Constitution and failure cannot challenge an examination.

16.1. The counsel for Virendra Kumar has asserted by citing judgement passed by Hon‟ble Supreme Court in Surinder Singh vs Union Of India & Ors on 30 March, 2007, Appeal (civil) 143 of 2001, wherein, it has been held as under:

“..These Guidelines/Norms/Instructions clearly stipulate that if the candidates, who have passed Matriculation examination, are available for selection to the posts of EDDA, the selection should be made by the Selection Committee on the basis of the marks obtained by the candidates in preferential qualification (i.e. Matriculation) and in the absence of Matriculate candidates, the selection has to be made on the basis of essential qualification, viz. 8th standard. It appears that the CAT as well as the High Court, both have lost sight of the object and import of the Guidelines/Norms/Instructions dated 21.07.1998 laid down by a Competent Authority. The CAT is not competent to lay down criteria for the selection and appointment to the post of EDDA. It is the prerogative and authority of the employer to lay down suitable service conditions to the respective posts. In our view, in service jurisprudence the prescription of preferential qualification not only refers to numeric superiority but is essentially related to better mental capacity, ability and maturity to shoulder the responsibilities, which are entrusted to the candidates after their selection to a particular post. All the more, it is important for efficient and effective administration. The basic object of prescribing a minimum qualification is to put a cut off level for a particular job in accordance with the minimum competency required for the performance of that job. The object of prescribing preferential qualification is to select the best amongst the better candidates who possess more competence than the others. Sub-clause (iv) of Clause 2 puts a limit with respect to preferential qualification by way of a clear stipulation that no preference should be given to the qualification above Matriculation. Hence, the preferential qualification was considered to be more effective and efficient and also it was a clear assumption that a candidate possessing the same is best suited for the post in question.

Shri U.S. Puria, Assistant Director General (ED), Department of Posts, New Delhi, in his counter affidavit filed on behalf of respondent Nos. 1 and 2 has stated that Dharam Pal, respondent No. 4, was appointed provisionally as EDDA by the Area Sub-Divisional ASPOs with effect from 26.04.1997 on compassionate ground in place of his father Babu Ram who died on 26.04.1997 while working as EDDA, Tangore, B.O. in Kurukshetra. He stated that the appointment of respondent No. 4 was subject to the approval of Chief Post Master General, Haryana Circle, Ambala. Respondent No. 4 worked as EDDA from 26.04.1997 to 31.03.1999. The Circle Selection Committee later on has found that two sons of the deceased Babu Ram were already in employment, therefore, the claim of respondent No. 4 for appointment to the post of EDDA on compassionate grounds was rejected. The charge of EDDA, Tangore B.O., Kurukshetra was handed over to Budh Singh, a regular ED employee of Kurukshetra Division, who was on deputation to Army Postal Service and discharged from the said service on 15.03.1999. Budh Singh joined service on 31.03.1999 when respondent No. 4 was relieved from the job. However, Budh Singh absented from the duty w.e.f. 1.4.1999. Departmental proceedings were initiated against Budh Singh as per the Rules. Finally, Budh Singh was removed from the service by the Competent Authority vide order dated 15.09.1999. In these circumstances, the post of EDDA was notified to the Employment Exchange and general public by the respondentDepartment. The respondent Nos. 1 and 2 had justified the selection and appointment of the appellant on the basis of marks secured by him in Matriculation examination, which according to them is a preferential qualification, as per the Guidelines/Norms/Instructions prescribed by the Competent Authority.

[(1993) 2 SCC 310], this Court in paragraph 13 held as under:

"13. ....There is nothing arbitrary or unreasonable in the employer preferring a candidate with higher qualification for service. It is well settled by a catena of decisions that classification on the basis of higher educational qualification to achieve higher administrative efficiency is permissible under our constitutional scheme.

Further, in paragraph 15 it is observed as under:

"15. ...It is true that notwithstanding the preference rule it is always open to the recruiting agency to prescribe a minimum eligibility qualification with a view to demarcating and narrowing down the field of choice with the ultimate objective of permitting candidates with higher qualifications to enter the zone of consideration."

In view of the above-stated factual situation and settled position of law, the orders of the CAT as well as the High Court cannot be sustained.

For the above-said reasons, the appeal is, accordingly, allowed. The judgment and order dated 27.09.2000 of the High Court of Punjab and Haryana at Chandigarh in CWP Nos.13280-CAT/2000 confirming the order of the CAT, Chandigarh Bench, Chandigarh, in O.A. Nos.171 HR/2000 is quashed and set aside. Respondent Nos. 1 to 3 are directed to take necessary steps for facilitating the resumption of the duties of the appellant on the post of EDDA. In the facts and circumstances of the case, there shall be no order as to costs.

The point is that the Hon Apex Court has held that “guidelines / norms/ instructions clearly stipulate that if the candidates, who have passed matriculation examination are available for the selection to the post of EDDA, the selection should be made by the selection committee on the basis of the marks obtained by the candidates in preferential qualification (i.e. Matriculation) and in the absence of Matriculate candidates, the selection has to be made on the basis of essential qualification i.e. “8th Standard”. In the present case the petitioner as well as the opp. Party R.K. Awasthi possess preferential qualification i.e. Matriculation and selection has been made on the basis of preferential qualification as such there is nothing wrong in the selection.

16.2. Other citations filed are as under:

(i) Civil Appeal No. 1710 of 1990, Govt. of A.P. v. P Dilip Kumar - Equivalent citations: 1993 SCR (1) 435, 1993 SCC (2) 310 wherein it is held that -

“..For direct recruitment to the post of Dy. Executive Engineer, Rule prescribing Bachelor‟s degree in Engineering as minimum qualification and providing for preference to holders of post-graduate degree in Engineeringout of those qualified in written test and interview process of first selecting post-graduate degree holders „en bloc‟ and then Bachelor degree holders, irrespective of marks obtained in the qualifying test, not violative of Arts. 16 and 14- A.P. Engineering Service Rules, 1966, R. 4 Note-1- Constitution of India, Arts. 16 & 14

Other citations include:

a. 2000 (18) LCD 1230- Dr. Prabhu Narain Saxena vs. The Chancellor, Agra University

b. 2003 (21) LCD 1415- Ram Shankar Verma vs. U.P. Secondary Edu S.S. Board.

c. 2015 (33) LCD 2566- Madras Institute of Development vs. Dr. K. Sivasubramaniyam

d. 2015 (33) LCD 2783- Bimlesh Misra vs. State of U.P. & Others.

e. 2015 (33) LCD 2583- Ramesh Kumar vs. UoI

f. (2002) 10 SCC 585- Bum Standard Co. Ltd. Vs. Tarun Kumar Chakraborty.

16.3 Thus, the Hon Apex Court in the matter of Government Of Andhra Pradesh Etc. ... vs P. Dilip Kumar And Anr. Etc. Etc on 3 February, 1993, Equivalent citations: 1993 SCR (1) 435, 1993 SCC (2) 310 has held as under:

“There is nothing arbitrary or unreasonable in the employer preferring a candidate with higher qualification for service. It is well settled by a catenation of decisions that classification on the basis of higher educational qualification to achieve higher administrative efficiency is permissible under our constitutional scheme. See Roshan Lal Tandon v. Union of India, [1968] 1 SCR 185; State of J & K v. Trilok Nath Koosa, [1974] 1 SCC 19; Md. Sujat Ali v. Union of India, [1975] 3 SCC 76; Roop Chand v. DDA, [1989] Supp. 1 SCC 116; V. Markandaya v. State of A.P., [1989] 3 SCC 191 and Sanatan Gauda v. Berhampur University, [1990] 3 SCC 23. We, therefore, do not agree that treating post-graduates as a class and giving them preference in this manner is violative of Articles 14/16 of the Constitution. We also do not see any vice in the relevant rule and in Note 1 as amended in 1983.

16.4 As regards failure not being kosher in challenging an examination result, given the factum that the candidature of Awasthi was considered in the selection process in which Virendra Kumar came out successful, the Hon' High Court Allahabad, Lucknow Bench, in the matter of Maya vs State Of U.P. Thru Chief Secy. & 4 ... on 4 December, 2012, Writ Petition No. 3129 (S/S) of 2008, held as under:

“..Therefore, at this stage there are two basic questions for consideration. Firstly, whether unsuccessful candidates can challenge the constitution of the selection committee as well as the process of selection adopted by. Secondly, whether the candidates being in the select list have any right to claim their appointments on the basis of their being placed in the select list.

Hon'ble the Supreme Court in the Dhananjay Malik's case (supra) has held that unsuccessful candidates cannot challenge the selection on the ground that the Selection Committee was not properly constituted or the process of selection was unfair…”

In Dhananjay Malik and others Vs. State of Uttranchal and others (2008) 4 Supreme Court Cases 171, Appeal (civil) 1771 of 2008, itself has held as under:

“..9. In a recent judgment in the case of Marripati Nagaraja vs. The Government of Andhra Pradesh, (2007) 11 SCR 506 at p.516 SCR this Court has succinctly held that the appellants had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process.”

16.5 Other citations have been given by the counsel for Virendra Kumar which are as under:

(i) 2003 (21) LCD 1415- Ram Shankar Verma vs. U.P. Secondary Edu S.S. Board

(ii) 2015 (33) LCD 2566- Madras Institute of Development vs. Dr. K. Sivasubramaniyam, which has referred to judgements - (1976) 3 SCC 585, (1995) 3 SCC 486, (2010) 12 SCC 576, (2013) 11 SCC 309.

(iii) In Dr. G. Sarana vs. University of Lucknow & Ors., (1976) 3 SCC 585, a similar question came for consideration before a three Judges Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Anthropology in the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed, the petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention, the Court held:-

“15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee. This view gains strength from a decision of this Court in Manak Lals case where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at Madras Inst.Of Dev. Studies & Anr vs K. Sivasubramaniyan & Ors on the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting:

“It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.”

(iv) In Madan Lal & Ors. vs. State of J&K & Ors. (1995) 3 SCC 486, similar view has been reiterated by the Bench which held that:-

“9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla1 it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any r

17. Here also, no one amongst the shortlisted in the Employment Exchange names or from the Public notice challenged the appointment of Virendra Kumar. Moreso, even after the public notice, the claim and candidature of Awasthi was weighed for its possibility but not selected due to low marks in High School and so we find that there is no challenge left for the appointment of Virendra Kumar and in the matter of State n v. Subimal Kumar, the Hon' High Court Kolatta (AFAD 339 of 1974 Decided On, 12 June 1981) has held that it is for the plaintiff to prove his case because the principle of law is that the plaintiff must succeed on the strength of his own case and not on the weakness of the defendant's version and there is nothing from the Applicant of OA No. 609/1995 to prove his case which therefore, has to fail the truth test and the assertion of Awasthi that the selection based on High School qualification of higher marks of Virendra Kumar being erroneous is liable to be held and is held against Awasthi.

18. As regards the calling of names from the Employment Exchange is concerned, the Instruction (16) in Section-IV reads as under:

“(16) Recruitment of ED Agents through Employment Exchange.- The question of recruitment of ED Agents through Employment Exchange has been under consideration of the Government for some time past

2. It has not been decided that the employment of ED Agents should be made through Employment Exchanges. For this purpose, the concerned recruiting authority should send a requisition to the local Employment Exchange, having jurisdiction over the area, requesting nomination of suitable candidates for the post, having the prescribed qualifications, within a period of 30 days from the date of sending requisition to the Employment Exchange for nomination of candidates, to the concerned authority. 

However, the Hon Apex Court in the matter of Excise Superintendent, Malkapatnama, Krishna District, A.P. b. KBN Viswesara Rao & Others [1996 (6) Scale 670 ] has held that in addition to calling names from Employment Exchange, names should inter alia also be called for by public notice by display in office and then the cases of all the candidates who have applied be considered. This also resulted in the issue of instructions 16 (A) subsequently by the Respondents – page 90-91 of „Swamy‟s compilation of SERVICE RULES FRO POSTAL ED STAFF – Muthuswamy and Brinda, Swamy Publishers Chennai and Delhi Branch, Seventh Edition 1999 (referred to as 'Swamy' in short hereinafter). Clearly names can be called from the Employment Exchange and by Public notice and so the challenge with respect to names being called by Public notice gets weakened moreso when we notice that in the final analysis – Annexure CA-2, the Respondents considered the name of Awasthi also having been called earlier through Employment Exchange along with the names of other candidates received post Public notice. 

19. As regards the challenge on the grounds of residence, Instruction 4 of para (1) under the Section -IV – Method of Recruitment printed in Swamy states as under:

“4. Residence:

(i) The ED BPM/ED SPM must be a permanent resident of the village where the post office is located. He should be able to attend to the post office work as required of him keeping in view the time of receipt, despatch and delivery of mails which need not be adapted to suit his convenience or his main avocation.

(ii) ED Mail Carriers, Runners and Mail Peons should reside in the station of the main post office or stage wherefrom mails originate/terminate, i.e. they should be permanent residents of the delivery jurisdiction of the post office.

(iii) ED Agents of other categories may, as far as possible, reside in or near the place of their work (Letters No. 5- 9/72-EL Cell, dated 18-8-1973 and No. 43-312/78- Pen., dated 20-1-1979, stand modified to this extent).”

Clearly, while the criteria for ED BRANCH POSTMASTER [ED BPM] / ED SUB POSTMASTER [ED SPM], the candidate has to be a permanent resident of the village where the post office is located and to be able to provide office space for the same, in the case of EDA/MC viz Extra-Departmental Agent – Mail Carrier {reference Rule-2 read with Instruction4 also extracted above} there is no condition of permanent residency in the post office of posting village itself for a ED Mail Carrier (condition 4 (ii) for a but merely for residing in the station of the main post office and not the village post office. Awasthi‟s argument that Virendra Kumar is not permanent resident of Diguria is therefore, blunted by this condition of residency and Awasthi has not shown any documentary proof to defy this different residence condition as compared to an appointment of a ED as ED BPM or ED SPM. Therefore, this challenge of residency also falls to the ground. In addition, it is noted that per Instruction – (9) – under the Section -IV – Method of Recruitment – states as under:

“(9) Giving preference to SC and ST in appointments.- According to Para, 5 of Letter Nos. 43-14/72-Pen., dated the 2nd March, 1972, wherever possible, first preference should be given to Scheduled Caste/Scheduled Tribe candidates, apart from P & T and other Government Pensioners, for appointment as ED Agents. It is also prescribed in Para. 3 of this Office Letter No. 5-9/72-E.D. Cell, dated the 18th August, 1973, that Matriculates should be given preference over those who have passed VIII Standard for appointment as ED BPM, and those who have passed VIII Standard should be given preference over those who have passed VI Standard for ED Das, etc.

2. It is observed that, in several Circles, the orders for giving preference to Scheduled Castes/ Scheduled Tribes, in the appointment of ED Agents, are being interpreted in different ways.

3. It is hereby clarified that candidates belonging to the Schedules Caste/Scheduled Tribes with the minimum educational qualifications prescribed in this Office Letter No. 5-9/72- ED Cell, dated the 18th August, 1973, viz., VIII Standard for ED BPMs, VI Standard for ED Das and ED SVs and working knowledge of the regional language and simple arithmetic for other EDAs (and working knowledge of English for ED Messengers) should be given preference over the candidates belonging to other communities, even if the latter and educationally better qualified, provided that the candidates belonging to Scheduled Castes/Scheduled Tribes are otherwise eligible for the post.”

Thus, candidates belonging to Scheduled Castes (SC) are to be given preference and the claim of Virendra Kumar is doubly strengthened on this ground as he is admittedly a SC candidate also evident per the admitted appointment letter. Thus, on this point Awasthi looses ground for challenging the appointment of Virendra Kumar.

20. By now we come to the end of the challenge to the appointment of Virendra Kumar by Awasthi vide OA No. 609/1995. The conclusion is clear that – the appointment of Virendra Kumar is lawful and upheld.

21. As regards claim of Awasthi to absorption, first of all it is a separate relief much apart from the relief challenging appointment of Virendra Kumar. Even on the claim of absorption, there is no rule shown by Awasthi that Substitutes have right to absorption after three years of service as Substitute. In fact Rule-5 of the 1964 rules do not in the body of rule itself have provision for appointment of a Substitute. It is only contained in the DG‟s Instructions per Swamy‟s Compilation referred to in earlier part of this judgement. Thus Instruction (2) (2) as discussed earlier provides for the fact that every ED agent should arrange for his work being done by a Substitute who should be a person approved by the authority competent to sanction leave to him. Such approval should be obtained in writing. The point to be noted also here is that Awasthi has in his O.A. of 1995 asserted that the Respondents appointed him as Substitute – this assertion is misconceived inasmuch that per DG‟s Instructions under Rule-5 of the 1964 rules – while the arrangement of a Substitute is made by a regular ED when he/she goes on leave, but the Substitute so arranged has to have an approval of the authority competent to grant leave to the regular ED. This cannot be read as to mean that the Respondents authority have appointed the Substitute. The Substitute continues to be a person who is arranged by the regular ED going on leave / desirous of going on leave before he can be given permission to go on leave. The ld counsels for Awasthi have cited the Circular of 13/5/1992 wherein some benefit seems to have been given to some persons. However, we do not know as to how exactly the benefits have been given and what are the individual merits and facts of the cases therein. No such detailed information has been put forth by the counsels for Awasthi. Therefore, we are unable to consider the Circular as verifiable support for consideration of absorption of Awasthi in light of other specific rules concerning the same per the 1964 rules. The point is that there is no right granted to a Substitute for regular appointment explicitly anywhere in the 1964 rules or for that matter unambiguously even in the instructions which we could lay our hands on. Further, the absorption / regularisation of Awasthi at Diguria cannot have a nexus with the challenge to his rejection during the process of selection is evident from the fact that even if one were to imagine the absorption of Awasthi for a moment, it cannot be the case that Awasthi is appointed at Diguria just because he belongs to Diguria. The appointment of various types of EDAs requires different residency and property/income conditions as seen in the extracts of rules/instructions/Circulars discussed above.

22. Therefore, for Awasthi to assert that even in the case of an imaginary successful case of absorption / regularisation, he will have a vested legal right for appointment at Diguria in whatever post of EDA is unjustifiable and liable to be trashed. Therefore, we cannot agree to the assertion of Awasthi qua his claim for absorption / regularisation at Diguria even if for the sake of an imaginary situation. Thus, relief (2) also cannot be upheld as stated in the O.A. The ld counsels for Awasthi have also cited certain judgements which unfortunately do not come handy. Thus, in the matter of UPSRTC v. UP Parivahan Nigam Shikshaks, 12/01/1995 – the matter relates to apprentices appointed under the Apprentices Act 1961 and such candidates are altogether on a different platform qua the facts of the applicant/Respondent in the cross cases at hand particularly as Apprentices are given training per the – are recruited as per set of rules and more importantly in para-10 it is specifically stated that –

“.. We make it clear that while considering the cases of the trainees for giving employment in suitable posts, what has been laid down in the Service Regulations of the Corporation shall be followed….”

In the case at hand the 1964 Rules do not provide any specific rule for absorption of Substitute nor has the applicant Awasthi been able to show the same in an indisputable manner. Hence this citation would not help. Similarly other citation concerning State of UP v. Omprakash & Ors, 22/07/2006, relates to selection by UP Public Service Commission against regular vacancies and the matter has a widely different ambit of coverage qua the qualifications preference than the case at hand and the issue of qualifications has been dealt at length qua the citations given in the earlier part of this judgement. Similarly the controversy in the matter of State of Rajasthan v. Jagdish Chopra is also not very helpful inasmuch that it has in a way not dealt with the issues of regularisation, absorption etc and has ultimately said that –

“..We therefore are of the opinion that it will not be proper for this Court now at this juncture to set aside the said appointment as the appointment granted in favour of the respondent by the State was not by reason of his merit in the select list but by reason of the orders of the High Court…”

Thus we are unable to draw any strength for the case of Awasthi qua the citations

23. As regards the actual righteousness of the claim for regularisation, independent of Diguria – while it is to be noted that the relief claimed by Awasthi is only and only with respect to regularisation on the post of ED Postman at Post office Diguria along with the fact that Virendra Kumar has been appointed as EDDA/MC – the claim of Awasthi as ED Postman at Post office Diguria is a claim to a different post given the 12 categories of EDAs which can be appointed per Rule-3 of the 1964 rules already discussed earlier. Meaning thereby that there is no apparent nexus of consequential nature with regards to the challenge to the appointment of Virendra Kumar with relief (2) of regularisation on the post of ED Postman at Post office Diguria. Therefore, the relief (2) of the O.A. 609/1995 is worthy of being thrown out on the grounds of Plurality as per Rule-10 of the CAT (Procedure) Rules, 1987 also discussed in the earlier part of this judgement.

24. Notwithstanding, even if for a moment we consider the case of absorption / regularisation, we find that there is no provision in 1964 rules for regularisation though there is a provision for absorption which is under para-(20) of the Section -IV – Method of Recruitment – which states as under:

“(20) Absorption of surplus ED Agent on the waiting list.- Clarifications have been sought on the following points:

(i) Whether such surplus/discharged ED Agents should be absorbed in comparable ED posts or in any ED post;

(ii) How long the name of such an ED Agent should be kept in the waiting list;

(iii) Whether the name of an ED Agent who refuses the ED post once offered to him should be removed from the waiting list;

(iv) whether recruitment of ED Agents from outside candidates should be made or not when surplus ED Agents on the waiting list are available.

2. The above points have been carefully examined. Employment of ED Agents is mostly local in nature and is also on part-time basis. They can have other avocations also. Surplus ED Agents will, therefore, normally be interested in alternative employments only if it is offered near the place of their residence. Again, the ED BPMs/SPMs are required to reside in the post village, other categories of ED Agents are required to reside near the place of their work or the stage from where mails are exchanged. In view of those re-strictions, a certain amount of flexibility in the appointment of these surplus ED Agents is necessary. It is, therefore, felt that it is not necessary to issue elaborate instructions on the subject, especially in regard to item (1) above. It is for the appointing authority to ensure that displaced ED Agents are suitable for the alternative post.

3. As regards items (ii) and (iii), the name of the surplus/displaced ED Agent should be kept on the waiting list for one year. If an ED Agent refuses to accept the offer of alternative employment which is at the same station or in the neighbourhood, his name should not be kept in the waiting list. If the post offered is at a place away from his place of residence, his name should be kept/continue to be kept in the waiting list. If a surplus ED Agent is not absorbed in another post within one year, the name should be removed from the list.

The waiting lists should be prepared on sub-divisional basis for all ED Agents and on Divisional basis for ED BPMs/ED SPMs. The names in the waiting list should be arranged in order of total ED service rendered by the surplus/displaced ED Agent and alternative posts should be offered on the basis of seniority in the waiting list.

4. In regard to item (iv), the recruitment of outsiders to the post of ED Agents, other than ED BPMs/ED SPMs should not be made until all the sur-plus/displaced ED Agents on the waiting list are re-employed or they refuse the offer of re-employment.

(D.G., P. & T., Letter No. 43-4/77-Pen., dated the 23rd February, 1979.]

But then this has no provision stated for a Substitute category of ED explicitly by name and nomenclature. So, we cannot read more than what is given and therefore, the plea of absorption is on a very weak wicket.

25. Awasthi has claimed that a minimum of only three years working as Substitute is required and that he has worked for more than seven years as against the qualifying period of only three years and so is liable to be absorbed notwithstanding non-selection in the appointment process which he has challenged concerning Virendra Kumar. Awasthi has not pointed out to the existence or not of a waiting list and so the issue of absorption benefit falls by the wayside at the threshold itself even after a liberal interpretation of relief (2) claimed by Awasthi. The fact that the claim for regularisation in relief (2) can be read as if it is a claim for absorption would be taking liberality to unjustifiable levels notwithstanding. Thus Awasthi has technically not even claimed benefit of absorption per his relief prayer.

26. However, we are happy to examine the issue under the lens of regularisation. This brings us to the assertion of the famous Uma Devi case for regularisation cited by ld counsels for Awasthi. It needs to be understood at the outset that Uma Devi is purely for regularisation under certain conditions. For this purpose, relevant paras of Uma Devi are extracted below:

“20. We may now consider, State of Haryana Vs. Piara Singh and Others [1992) 3 SCR 826]. There, the court was considering the sustainability of certain directions issued by the High Court in the light of various orders passed by the State for the absorption of its ad hoc or temporary employees and daily wagers or casual labour. This Court started by saying:

"Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making rules under the proviso to Article 309 of the Constitution or (in the absence of such rules) by issued rules/instructions in exercise of its executive power. The court comes into the picture only to ensure observance of fundamental rights, statutory provisions, rules and other instructions, if any governing the conditions of service"

This Court then referred to some of the earlier decisions of this Court while stating:

"The main concern of the court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the Constitution. it is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. Where a temporary or ad hoc appointment is continued for long the court presumes that there is need and warrant for a regular post and accordingly directs regularization. While all the situations in which the court may act to ensure fairness cannot be detailed here, it is sufficient to indicate that the guiding principles are the ones stated above."

This Court then concluded in paragraphs 45 to 50:

The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee. Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.

Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.

An unqualified person ought to be appointed only when qualified persons are not available through the above processes.

If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State "

With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent -- the distinction between regularization and making permanent, was not emphasized here -- can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in paragraph 50 of Piara Singh (supra) are to some extent inconsistent with the conclusion in paragraph 45 therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.

26.1 Similarly, in the matter of State of Tamilnadu v. A.Singmuthu (2017) 4 SCC the Hon Apex Court has held as under:

“….14. In a similar issue, concerning part-time sweepers, the State of Tamil Nadu has filed an appeal before this Court, and those appeals were allowed by this Court byjudgment dated 21.02.2014 inSecretaryto Government, School Education Department, Chennai vs. Thiru. R. Govindasamy and Others (2014) 4 SCC 769. After referring to various judgments on this issue, in paras (5) to (7), this Court held as under:-

“5. The issue involved here remains restricted as to whether the services of the part-time sweepers could have been directed by the High Court to be regularised. The issue is no more res integra.

6. In State of Karnataka v. Umadevi (3) (2006) 4 SCC 1 this Court held as under: (SCC p. 40, para 48) “48. … There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules.”

7. In Union of India v. A.S. Pillai (2010) 13 SCC 448 this Court dealt with the issue of regularisation of part-time employees and the Court refused the relief on the ground that part-timers are free to get themselves engaged elsewhere and they are not restrained from working elsewhere when they are not working for the authority/employer. Being the part-time employees, they are not subject to service rules or other regulations which govern and control the regularly appointed staff of the department. Therefore, the question of giving them equal pay for equal work or considering their case for regularisation would not arise.”

15. In State of Rajasthan and Others Vs. Daya Lal and Others(2011) 2 SCC 429, this Court has considered the scope of regularisation of irregular or part-time appointments in all possible eventualities and thisCourt clearly laid down that part-time employees are not entitled to seek regularisation as they do not work against any sanctioned posts. It was also held that part-time employees in government-run institutions can in no case claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Relevant excerpt from the said judgment is as under:

“12. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:

(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.

(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be 'litigious employment'. Even temporary, ad hoc or daily- wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right

(iii) Even where a scheme is formulated for regularization with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut off dates.

(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.

(v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.

See: Secretary, State of Karnataka v. Uma Devi 2006 (4) SCC 1, M. Raja v. CEERI Educational Society, Pilani 2006 (12) SCC 636, S.C. Chandra v. State of Jharkhand 2007 (8) SCC 279, Kurukshetra Central Co-operative Bank Ltd v. Mehar Chand 2007 (15) SCC 680, and Official Liquidator v. Dayanand 2008 10 SCC 1.” (emphasis added)

16. The learned Single Judge of the High Court, while allowing the writ filed by the respondent extended the benefit of the said G.O. Ms. No.22 dated 28.02.2006 and directed the appellants to grant regularisation of respondent’s service from the date of completion of ten years of service with salary and other benefits. The learned Judge failed to take note of the fact that as per G.O. Ms.No. 22 dated 28.02.2006, the services of employees working in various government departments on full-time daily wage basis, who have completed more than ten years of continuous service as on 01.01.2006 will be regularised and not part-time Masalchis like the respondent herein. In G.O.Ms. No. 84 dated 18.06.2012, the Government made it clear that G.O.Ms. No. 22 dated 28.02.2006 is applicable only to full- time daily wagers and not to part-time daily wagers. Respondent was temporarily appointed part-time worker as per Tamil Nadu Finance Code Volume (2) Appendix (5) and his appointment was completely temporary. The respondent being appointed as part-time Masalchi, cannot compare himself to full-time daily wagers and seek benefit of G.O.Ms.No.22 dated 28.02.2006. The Single Judge also failed to consider that the Government did not grant regularisation of services of any part-time employee on completion of ten years of his service as envisaged under the G.O.Ms. No.22 dated 28.02.2006.

17. The learned Single Judge erred in extending the benefit of G.O.Ms.No.22 dated 28.02.2006 to the respondent that too retrospectively from the date of completion of ten years of service of the respondent. The respondent was appointed on 01.04.1989 and completed ten years of service on 31.03.1999. As rightly contended by the learned senior counsel for the appellants, if the respondent is to be given monetary benefits from the date of completion of ten years of service, that is from 01.04.1999 till the date of his regularization that is 18.06.2012, the financial commitment to the State would be around Rs.10,85,113/- (approximately)towards back wages apart from pension which will have a huge impact on the State exchequer. That apart, the learned senior counsel for the appellant submitted that in respect of Registration Department, about 172 persons were regularized under various G.Os. and if the impugned order is sustained, the Government will have to pay the back wages to all those persons from the date of completion of ten years in service and this will have a huge impact on the State exchequer. Since the impugned order directing regularization of the respondent from the date of completion of their ten years would adversely affect the State exchequer in a huge manner, the impugned order cannot be sustained on this score also.

18. It is pertinent to note thateven the regularisation of services of part-time employees vide G.O.(Rt.) No.505 Finance (AA-2) Department dated 14.10.2009 and G.O.(2D) No.32 Finance (T.A. 2)Department dated 26.03.2010 was effectedby extending the benefit of G.O. dated 28.02.2006 only from the date of Government Orders and not from the date of completion of their ten years of service. The Division Bench also failed to take note that G.O.Ms.No. 22 P &AR Dept. dated 28.02.2006 is applicable only to full-time daily wage employees and who had completed ten years of continuous service as on 01.01.2006 and not to part-time employees……

The impugned order of the Division Bench affirming the order of the Single Judge granting benefits to the respondent from the date of completion of ten years of service is erroneous and the same is liable to be set aside. [emphasis supplied]

19. In the result, the impugned order is set aside and this appeal is allowed. No costs….”

The summum bonnum of this citation is that regularisation is not a right and there are a lot of oceans to cross before any such advantage can be given per law. So also, in this case.

26.2 Then again in the matter of Upendra Singh vs The State Of Bihar And Ors. on 23 February, 2018, CIVIL APPEAL NO. 2356 OF 2018, it is held as under:

“..7) After considering the respective arguments, we are of the view that the impugned judgment is without any blemish and no interference is called for. In fact, whole premise on which the case is founded by the appellant seems to be incorrect. We note that the cases of these persons, including the appellant, were duly considered by the University, on the basis of which order dated August 13, 2003 were passed refusing regularisation. This order specifically states that the initial appointment of the appellant and others was not in accordance with law. It was made without advertisement and there was no recommendation of panel by the Selection Committee. So much so, the appointments were not made by the competent authority. We find that the University, or for that matter, the Government had agreed to regularise the services of those employees of the colleges, which had become the Constituent Colleges, only on the condition that their initial appointment was after following the due procedure and that too against the sanctioned post. A statement was made at the Bar by learned counsel for the respondent that there were no sanctioned posts even now.

8) Law pertaining to regularisation has now been authoritatively determined by a Constitution Bench judgment of this Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors., (2006) 4 SCC 1. On the application of law laid down in that case, it is clear that the question of regularisation of daily wager appointed contrary to law does not arise. This ratio of the judgment could not be disputed by the learned counsel for the appellant as well. That is why she continued to plead that the appointment of the appellant was made after following due procedure and in accordance with law. However, that is not borne from the records. Pertinently, order dated August 13, 2003, vide which the appellant was refused regularisation on the aforesaid ground was not even assailed by the appellant at that time. It may be mentioned that in Uma Devi, the Court left a small window opened for those who were working on ad hoc/ daily wage basis for more than ten years, to regularise them as a one-time measure. However, that was also subject to the condition that they should have been appointed in duly sanctioned post. Further, while counting their ten years period, those cases were to be excluded where such persons continued to work under the cover of orders of the courts or the tribunal. The High Court has, in the impugned judgment, discussed these nuances and has also referred to the judgment in Uma Devi and held that the benefit of one-time measure suggested in that case could not be extended to the appellant because of the following reasons:

“The Appellants clearly fall in the exception noticed in paragraph-53 of Umadevi (supra) as their claims were sub judice on the date the pronouncement of the Constitution Bench was made in view of pendency of C.W.J.C. No. 12235 of 2005 disposed subsequently on 29.08.2006. Such litigious continuation in employment stands excluded from the directions of Umadevi.

The Appellants claim to have been regularized within the staffing pattern. In our opinion, it is not the crux of the matter. The crucial question is if their initial appointment by the Managing Committee was in consonance with Article 14 of the Constitution of India by open advertisement and competitive merit selection. On account of various interpretations by more than one Bench of M.L. Kesari (supra) reference was made to the Full Bench. We have already noticed from the order refusing regularization dated 13.08.2003 that the appointment of the Appellants on daily wage was not in consonance with the law.

The conclusion in Ram Sewak Yadav (supra) at paragraph 43 is as follows: “43 (A) Uma Devi (supra) prohibits regularization of daily wage, casual, adhoc, and temporary appointments, the period of service being irrelevant; (B) An illegal appointment void ab initio made contrary to the mandate of Article 14 without open competitive selection cannot be regularized under any circumstances.

(C) Irregular appointments can be regularized if the appointment was made by an authority competent to do so, it was made on a vacant sanctioned post, in accordance with Article 14 of the Constitution with equal opportunity for participation to others eligible by competitive selection and the candidate possessed the eligibility qualifications for a regular appointment to the post. [emphasis supplied]

(D) The appointment must not have been an individual favour doled out to the appointee alone and he person must have continued in service for over ten years without intervention of any court orders.”

9) We are, thus, of the view that there is no merit in this appeal, which is accordingly dismissed…”

26.3 Given the above citations, it is difficult to uphold the plea of the Applicant for regularisation in the context of his working as a Substitute on an arrangement by Ramesh Dutt Tewari per the rules. Laws and judgements interpretations cannot be stretched at will and fancy. Hon Apex Court has held so in a number of cases. Thus, in the matter of Ramesh Chand Daga v. Rameshwari Bai, [(2005) 4 SCC 772], this Court held :

"A judgment, as is well known, is not to be read as a statute. A judgment, it is trite, must be construed upon reading the same as a whole. For the said purpose the attendant circumstances may also be taken into consideration."

[See also Zee Telefilms Ltd. & Another v. Union of India & Others (2005) 4 SCC 649]

In P.S. Sathappan (Dead) By Lrs. v. Andhra Bank Ltd. & Others [(2004) 11 SCC 672], this Court held :

"The judgment of this Court must be read as a whole and the ratio therefrom is required to be culled out from reading the same in its entirety and not only a part of it."

"A doubt arising from reading a judgment of the Court can be resolved by assuming that the judgment was delivered consistently with the provisions of law and therefore a course or procedure in departure from or not in conformity with statutory provisions cannot be said to have been intended or laid down by the Court unless it has been so stated specifically."

In N. K. Rajgrahia Vs. M/s Mahavir Planatation Ltd. & Ors. JT 2006 (1) SC 70, the Court observed:

"An order of a court of law and, in particular, a consent order, must be read in its entirety for the purpose of ascertaining its true intent and purport."

27. Thus, Awasthi has very little cover to seek benefit of regularisation and so his claim of regularisation while being a Plurality strictly, is still adjudicated upon by this order so that complete justice is done and seen to be done qua the claim of the Applicant in OA No. 609/1995.

27.1 This then brings us to the O.A. No. 18/1996 in which following relief is claimed:

Para 8 of O.A. No. 18/1996:

“(I) The Hon‟ble Tribunal may be pleased to direct the respondents to get the charge of the post of E.D.D.A. cum E.D.M.C. Diguria transferred to the legally appointed on the post of EDDA cum EDMC Diguria District Lucknow.

(II) The Hon‟ble Tribunal may also be pleased to direct the respondent to take action against those who did not get the charge transferred and comply the orders of the Assistant Superintendent of Post Offices (North) Lucknow

(III) The Hon‟ble Tribunal be pleased to vacate the stay to Shri R.K. Awasthi EDDA cum EDMC Ghaila on the ground of which the charge of the E.D.D.A. cum E.D.M.C. Diguria was stated to have not transferred to the applicant also action against Shri R.K. Awasthi for obtaining „stay‟ on misleading facts if any presented before the Hon‟ble Tribuna

IV) The Hon‟ble Tribunal may be pleased to issue direction to the Respondent to pay the allowance plus D.A. for the period he was not allowed to join on the post if the stay granted to Shri R.K. Awasthi in 607/95 was wrongly interpreted causing loss to the applicant.

(IV) Any other direction appropriate in the circumstances of the case may be deemed proper in the interest of justice.”

27.2 Evidently relief is sought with respect to direction to getting the charge of the post of EDDA/MC Diguria as also direction against those who did not enable this charge taking over by the Applicant Virendra Kumar in O.A. No. 18/1996. Relief is also sought qua the vacation of stay granted to Awasthi which was read in a misleading manner by Tewari and Awasthi with Tewari even defying the order dated 08/11/1995 of the Respondents who have surprisingly taken no action against Tewari perhaps on the misreading by them also of the stay given in OA No. 609/1995. Relief is also claimed for grant of pay and allowances for the period Applicant has not been allowed to work at his selected place of posting. Clearly once we have held that the appointment of Virendra Kumar is lawful while analysing the relief claimed in OA No. 609/1995 the consequence of Virendra Kumar being given the charge of the EDA /MC at Diguria goes without saying so in as many words for that matter. Notwithstanding Virendra Kumar is liable to be given charge of EDA/MC at Diguria forthwith. The stay granted in any which manner or read in any which way by the parties concerned in OA No. 609/1995 and even by the Respondents in O.A. No. 18/1996 is erroneous and notwithstanding the stay the same no longer has any merits left to continue and so it stands vacated in all respects forthwith.

28. As regards back pay, it is clear that the Applicant Virendra Kumar has not been able to work for a single day but certainly not for his fault. The Hon Apex Court has held grant of back wages in cases where services are reinstated after termination held illegal. We are not aware of any law laid down qua grant of back wages in case of an appointment not ensured due to lapse of the employers. Hence while the Applicant missed 27 years of his rightful employment, we cannot find a handle of law to help the Applicant grant back wages. As regards action against those responsible for the 27 year lapse, the Respondents have already given notice to Tewari for not handing over charge to Virendra Kumar. It is upto them to take it forward. All we would in the least direct is that Tewari should forthwith vacate Diguria by handing over charge to Virendra Kumar forthwith and where he goes after that – to Ghaila or any other place is none of our business in the case at hand because Tewari has not filed any CA despite sufficient notice and so we cannot say what he should do except that he must and shall vacate Diguria and hand over charge to Virendra Kumar within one week of receipt of a certified copy of this order. Only then can truth be truly victorious – ….. trees irrigated by lies and fire cannot grow but truth irrigates justice.

29. It is accordingly per atque per directed as follows:

i. The reliefs claimed in OA No. 609/1995 are dismissed and so the O.A. 609/1995 stands dismissed;

ii. The status quo stay granted in OA No. 609/1995 stands vacated in consequence;

iii. The reliefs claimed in O.A. No. 18/1996 are upheld as follows:

a. The Applicant Virendra Kumar shall be granted charge of the post of EDA/MC Diguria within one week of receipt of a certified copy of this order and Shri Ramesh Dutt Tewari shall forthwith hand over charge to Shri Virendra Kumar at Diguria and not later than one week of receipt of a certified copy of this order at pain of possible contempt;

b. Respondents shall enforce this at the pain of possible adverse contempt action by the Tribunal should they fail to ensure same; and

c. The Respondents are at liberty to post Shri Tewari in accordance with law.

d. No order as to back wages to Virendra Kumar

Ordered accordingly.

30. No costs.