CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH:: AT HYDERABAD
OA/020/00337/2020,
MA 317/2020 & MA 12/2021
Date of CAV: 02.09.2021
Date of Pronouncement: 23.09.2021
Hon’ble Mr. Ashish Kalia, Judl. Member
Hon’ble Mr.B.V.Sudhakar, Admn. Member
1. National Association of Postal Employees, Gr-C,
R/by V.Sivaji, General Secretary,
S/o Sri V.Gangaiah, Aged 42 years,
Occ : Accountant, Narasaraopet HO – 522 601.AP.
2.Ch.Ganesh Rao Gr-C, S/o late Sri Ch.Venkat Swamy,
Aged 52 years, Occ : Postal Asst,
Hyderabad GPO & Divisional President, National Association of Postal Employees, Gr-C, Hyderabad GPO Division, TS.
3.B.Ravikumar, Gr-C, S/o late Sri Mangya, Aged 32 years, Occ : Postal Asst. Hyderabad GPO & Divisional Secretary, National Association of Postal Employees, Gr-C, |
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Hyderabad GPO Division, TS. (By Advocate : Mr. B. Gurudas) Vs. 1.Union of India, rep by The Secretary to the Govt of India, M/o Communications & IT, Dept of Post, New Delhi 110 001.
2.The Chief Postmaster General, Telangana Circle, Hyderabad-500 001.
3.The Postmaster General, Head Quarters Region, Hyderabad-500 001.
4.The Chief Postmaster, Hyderabad GPO, |
| ...Applicants
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Hyderabad-500 001. |
| ....Respondents |
(By Advocate: Mrs. K. Rajitha, Sr. CGSC)
ORDER
(As per Hon’ble Mr. B.V.Sudhakar, Admn. Member)
Through Video Conferencing:
2. The OA is filed challenging the down gradation of the Hyderabad General Post Office (for short “Hyd-GPO”) and the consequences thereof vide respondents Circular/Letter/Memo/ Office Notes dated 24.05.2019,
27.04.2020, 06.05.2020, 09.05.2020 and 26.05.2020 respectively.
3. Brief facts are that Hyd-GPO is a heritage Post office and the respondents without following prescribed procedure in collecting statistics and applying untested Adhoc Core System Integrator (for short “ACSI”) establishment norms, have decided to downgrade the office from Group ‘A’ to Group ‘B’ status, resulting in declaring 45 Postal Assistants (for short “PA”) posts as surplus and proposed to attach the said PAs to different postal Divisions under Hyderabad City Postal Region. Aggrieved, the OA is filed.
4. The contentions of the applicants are that the respondents have not collected the statistics as per procedure prescribed. The ACSI norms are untested. Many items of work done were not considered for establishment review. Human effort in operating the machines was side lined. Down gradation and consequent movement of staff was mooted without the approval of the competent authority. Standard Inspection Unit (for short “SIU”) norms were flouted. Public interest was compromised and staff morale adversely impacted. Without responding to the representations of the Staff Unions, respondents’ bulldozed the proposal of down gradation of Hyd-GPO and consequential attachment of staff members to City Postal Division.
5. After hearing both the sides, at the admission stage, this Tribunal directed the respondents not to interfere with the status of the Hyd-GPO and stayed the transfer of PAs by passing an interim order on 3.7.2020 and extended it from time to time, on hearing both sides.
6. Respondents in their reply statement confirmed that as per Postal Directorate letter dated 24.5.2019, a work study was conducted in 20 Head post offices and adhoc norms were notified, which, when applied to HydGPO while conducting annual establishment review for the year 2019, it was found that 45 PA posts plus 3 supervisory posts were found surplus. Consequently, it was proposed to temporarily attach the surplus identified PAs to different postal divisions under Hyderabad City Postal Region. The number of points required to continue Group ‘A’ status of Hyd-GPO is 11,000 whereas, on review only, 7343 points were arrived at and hence, it was proposed to downgrade it to Group ‘B’ status. Further, Staff Unions are precluded from taking up establishment issues vide Postal Directorate letter dated 31.3.1965. Even before their representations could be disposed, they have approached the Tribunal. Neither public interest nor staff morale would be adversely affected due to down gradation, since Hyd-GPO functioned with Group ‘B’ status prior to 2005 and that many Head Post offices in the country are working with Group ‘B’ status. The sanctioned establishment of the Hyd- GPO is 136 (134 PAs + 2 LSG) and the justified strength is 91 as per review, whereas 122 officials are working thereby rendering 31 officials surplus. New Post offices are to be opened in the outlying areas of Hyd. City and the existing post offices have to be strengthened and hence the attachment of PAs to divisions as proposed, by calling for their willingness in adherence with the Principles of Natural Justice. Of the 31 PAs individually addressed to indicate their options for attachment to different Postal divisions, 10 opted for attachment, 18 sought retention at Hyd-GPO and the rest did not respond. The attachment of PAs will curtail unnecessary expenditure on establishment. Conducting work study in 25% of the Head Post offices is not practical and it is not necessary to undertake study of every office since the nature of work is similar. The CSI norms were applied to branches specified and where not, old norms were used to complete the review. The proposal to down grade Hyd-GPO was submitted to R-1 by R-2 (Chief Post Master General (CPMG), Telangana Postal Circle, Hyderabad) on 27.4.2020 and it was approved on 16.7.2020 (Annexure R-IX to MA 317/2020). Implementation will be subject to outcome of the pending OAs. Cadre restructuring is under adjudication and that the present review is of the establishment of the Hyd GPO based on ACSI norms. Similar establishment review based on CSI norms, was done in respect of Vaishalinagar, Boddupal & LB Nagar Sub Post Offices respectively, revealing that there was justification for 4 PA posts altogether in these offices and therefore, it is not correct to state that ACSI norms were not applied to other offices. Computerization has brought about a sea change in the functional dynamics of Hyd-GPO.
Applicants filed a rejoinder, wherein they claim that the respondents have admitted that work study was not conducted in the required number of HPOs. When the ACSI norms have not covered all the branches of the HPO, respondents should have fallen back on the age old time tested Maratha Time test and the relevant provisions of the Madan Kishore report for organizing work study. From 2019 onwards there are 29 PA vacancies that have not been filled up, causing immense work pressure. Chief Post Master has intimated R-3 vide his letter dated 16.3.2020 that Asst. Accounts officer (for short AAO) has developed norms for the accounts branch, as per latter’s report dated 9.3.2020 in compliance with the orders of R-2. AAO is not the competent authority to develop establishment norms. OA 265/2020 filed by some others is different from the present OA since grounds and orders challenged are dissimilar. Other contentions pleaded are repetitive.
Respondents along with the reply statement have filed MA 317/2020 in the instant OA for vacation of the interim stay granted on 3.7.2020 and its extension on 22.07.2020, wherein they assert that in MA 186/2020 filed in OA 265/2020, in respect of the same issue, this Tribunal refrained from granting any interim order. An erroneous view of law as well as facts was taken, in passing the interim order on 3.7.2020 and later extending it. The establishment module of CSI is under testing and therefore, the work study team has developed ACSI norms. Tribunal has observed in the interim order that the Standard inspection unit (for short SIU) norms were violated, which is not true since SIU norms are applicable to administrative offices and not to an operative office like Hyd-GPO. Further, it was also remarked by the Tribunal on 3.7.2020 that certain items of work were not reckoned. ACSI norms were applied wherever available and old norms used for other items of work, thereby covering every activity of work of Hyd-GPO in arriving at the work load. The Tribunal went on to observe that ACSI norms were not applied to other offices in the country but exclusively to Hyd-GPO, whereas the ground reality is that establishment review of HydGPO had to be taken up since it was due. Besides, Tribunal adduced that down gradation was implemented without approval of R-1, which indeed was approved on 16.7.2020. The statistics were compiled by the Chief Post Master and the correctness was verified by the Asst. Supdt. of Post offices. In addition, Tribunal has commented that the down gradation was done with an ulterior motive, which is not true. Attachment of 45 PA posts to needy offices will not entail immediate down gradation of Hyd-GPO to Group ‘B’ status. There is a proposal to upgrade Khammam Postal Division into Group ‘A’ division by redeploying the Group ‘A’ post of Hyd-GPO which is found surplus due to review. There will be no adverse impact on public service or morale of the employees as put forward by the Tribunal in the interim order. Due to the interim order, additional manpower to needy Post offices could not be provided, though badly required. Other contentions made are on similar lines as in the reply statement.
Applicants filed a reply to the MA No. 317/2020 filed by the respondents for vacation of the interim order, asserting that the earlier OAs cited by the respondents are different in respect of the orders challenged.
The ASCI norms have not been tested in any GPO. Review of establishment cannot be undertaken based on adhoc untested norms for long. The statistical information given by the Group Supervisors were not taken into account. Hyd-GPO earns almost half the revenue of the Circle and there is good potential to earn more. Due to computerization, work load has decreased in other Post offices, whereas in case of Hyd-GPO it has increased due to introduction of new services. Whenever a policy initiative is initiated, invariably the Joint Consultative Machinery (for short JCM) and Departmental Council are consulted and therefore, it is incorrect to state that Unions are debarred from taking up establishment matters. Lower Selection Grade (for short LSG) cadre restructuring will have a marked impact on establishment review in respect of PA cadre. R-1 has violated the interim order of the Tribunal by issuing memo dated 16.7.2020 to downgrade Hyd-GPO. Earlier, respondents claimed that they proposed to divert the surplus Group ‘A’ post of Hyd-GPO to City Regional Office and in the MA, they are claiming that it would be deployed to upgrade Khammam Postal Division. When almost half the staff strength of HydGPO is reduced irregularly, it would mar public service and morale of the staff since the remaining staff will have to shoulder the burden of the existing heavy work load.
Respondents moved the Hon’ble High Court for the State of Telangana in WP No. 15170 of 2021 for staying the Tribunal interim order dated 3.7.2020. While not acceding to the prayer made, Hon’ble High Court has directed on 7.7.2021, to dispose the case as expeditiously as possible, preferably within 6 weeks from the date of receipt of the order. The order of the Hon’ble High Court is extracted here under:
“As the issue pertains to down grading of the GPO, inasmuch as the writ petition is filed only against the interim orders passed by the Tribunal and since it is also stated that counter and vacate stay petition is filed and as the matter is before the Tribunal, we do not go into the merits of the matter. It is suffice to direct the Tribunal to dispose of the vacate stay petition/OA, as expeditiously as possible, preferably within a period of six (6) weeks from the date of receipt of a copy of this order.
Accordingly, the writ petition is disposed of. No order as to costs.
As a sequel thereto, miscellaneous applications, if any, pending in this Writ Petition, shall stands closed.”
Ld. Sr. Standing Counsel for respondents mentioned about the Hon’ble High Court order on 19.8.2021 and accordingly, hearing commenced, finally reserving the judgment on 2.9.2021.
6. Heard both the counsel and perused the pleadings on record. The main thrust of the arguments of the Ld. Counsel for the applicants was that the down gradation and consequent transfer of officials was not in accordance with established procedures and rules. This was opposed by the Ld. Sr. Standing counsel for Respondents by claiming that the action taken was as per R-1 directive, the competent authority and that down gradation is a policy matter which should not be interfered with by the Tribunal.
7. I. The dispute is about down gradation of Hyd- GPO using ACSI norms and the consequent displacement of Postal Assistants from HydGPO to different City Postal Divisions under Hyderabad City Postal Region, with jurisdiction over post offices located in urban and rural areas. We have carefully gone through the various contentions of both the parties and the material papers on record. Our observations vis-à-vis their contentions are as under.
To begin with, applicants sought the following relief:
“In view of the facts stated above, and circumstances, this Hon’ble Tribunal may be pleased to call for the records pertaining to the following impugned orders.
1) Adhoc Core System Integration (CSI) norms Communicated under DOP Circular No. 25-11/2019-PE-1/WS dt.24.05.2019 (Annexure-I)
2) Chief Postmaster General, Telangana Circle, Hyderabad (Respondent No.2) Lr. No. Est/Downgradation-Hyd GPO/2020 DT.24-04-2020 (Annexure-II)
3) Postmaster General, Head Quarters Region, Hyderabad (Respondent No.3) Memo No. HQR/Est/9-6-/IV dt. 06.05.2020
(Annexure III)
4) Chief Postmaster, Hyderabad GPO, Hyderabad (Respondent No.4) Office Note dt. 09.05.2020 in file No. A/Est/Review/2019/Dlgs (Annexure-IV)
5) Chief Postmaster, Hyderabad GPO, Hyderabad (Respondent No.4) Office Note dt. 26.05.2020 in file No. A/Est/Review/2019/Dlgs
(Annexure-VIII)
and declare them as illegal, arbitrary, contrary to the rules and instructions prescribed and in violation of the provisions of the Constitution of India contained in Articles 14 and 21 and set aside and quash the said illegal orders with a consequential direction to the Respondents to take up the review of the establishment of the Hyderabad GPO along with other post offices, in the Circle/ Region, only after testing and finalization of CSI Norms following the due procedure taking all aspects into consideration and pass such other order or orders as deemed fit and proper in the interest of justice.”
II. Establishment Review
The preliminary contention of the applicants is that the statistics of Hyd-GPO for establishment review were compiled by a special committee constituted by the Regional Office and not by Chief Post Master, Hyd-GPO as per rules in vogue. Chapter XVII of Postal Manual, Vol. IV Part I, speaks of establishment review to be conducted under relevant rules. HydGPO is an operative office headed by the Chief Post Master (for short “CPM”), who has to arrange for the necessary statistics for review. Statistics compiled are to be forwarded to the Divisional office/ Regional office, and if required a test check of the statistics can be sought by the CPM or ordered by the authority superior to the CPM, by deputing personnel on his behalf for the said purpose. Thereafter, they are examined by the Divisional / Regional office in detail in order to take an appropriate decision in regard to expansion or contraction of the establishment with the concurrence of the internal finance advisor. Respondents have made it clear that the CPM has forwarded the compiled statistics for annual establishment review pertaining to the year 2019 and requested for verification of the same. Accordingly, the statistics were got verified independently by deputing Asst. Superintendents of Post offices from the administrative office. Verification of statistics by a few Asst.
Superintendents of Post offices, it appears, has been construed by the applicants to be collection of statistics by a Special Committee and not by the CPM, Hyderabad. Applicants have not submitted any document to disprove that the Chief Post Master has collected the statistics. If the assertion of the applicants was true, which indeed points towards a serious procedural lacuna, it is not known as to what prevented them to present the documentary evidence, despite giving ample opportunities to do so. The contention of the Ld. Counsel for the applicants that their averment was not rebutted by the respondents in the reply statement, would not sustain since respondents in their standing instructions filed on 9.7.2020, have asserted that the statistics were collected as per practice and got verified by the Asst. Superintendents. In spite of this unequivocal and repeated pleading by the respondents, the same was not refuted by the applicants with any verifiable evidence in their rejoinder/ reply to the MA 317/ 2020, filed by the respondents for vacation of the interim stay passed on 3.7.2020. Thus applicants were making only a general and bald statement without documentary proof to substantiate their contention. Therefore, there is no reason to not to believe that the respondents followed the procedure prescribed in collection of statistics. Hence, in the absence of any textual evidence submitted by the applicants, contrary to the assertion of the respondents that the statistics were compiled by the Sr. PM Hyd-GPO, we reject the contention of the applicants that the statistics were compiled by the special committee as averred by them.
III. Sample Size
The next contention of the applicants is about choosing a very small number of Head Post offices (for short HPO)/ General Post offices (for short GPO) for study to lay down establishment norms. They contend that for setting up establishment norms at least 25% of the offices from the 810 Head Post Offices and 24 General Post Office (A-XII) ie around 208 post offices, spread over the country are to be taken up for study, whereas respondents took a sample size of only 20 Head post offices. Therefore, applicants contend that the action of the respondents is against rules. Respondents in the reply statement aver that, it is not practical to cover neither 25% of the total Head Post offices nor is it necessary to cover all the Head Post offices for laying down the establishment norms and that work study was conducted in 20 Head Post offices to prescribe the Adhoc Core System Integrator (for short “ACSI”) norms. Core System Integrator (CSI), in simple terms, is a software, which communicates and seamlessly interacts with other software’s used in respondents organization, doing away with the cumbersome and time consuming process of operating each software separately. Due to computerization, respondents claim that there is substantial reduction of work and hence it was imperative to develop establishment norms applicable to a computerized work environment. To this extent, we appreciate and acknowledge the fact that computerization does facilitate rapid and accurate response in comparison to the manual mode. However, establishment norms have to be carefully studied and standardized since any inadequacy in this regard will be detrimental to work efficiency and the survival of the organization. Respondents insist that work study of a sample of 20 Post offices out of total population of 834 Post offices would do (810 HPOs + 24 GPOs). As per respondents’ version, the percentage of offices sampled would thus work out to a sample size of 2.39% of the total population. The question that would then arise is as to whether 2.39% of the sample size will be representative of around 98% of the population under study. Statistically speaking, it will be gravely improper to assume that a miniscule sample of 20 Head post offices would represent a humungous majority of the remaining 814 Head post offices/General Post Offices. We would like to affirm the observation made by going into the basics of sampling and sample size, since we are concerned that the respondents have not shown the seriousness they ought to have, in dealing with an issue of immense public interest. The Public interest emanates from the fact that Hyderabad GPO has been set up in 1724 as a petite post office and slowly with the work getting augmented over more than 3 centuries, it has graduated to a Group ‘A’ post office, by enlarging the services offered and consistently earning a Lion’s share of annual revenue of the Postal circle. Its eminence requires no elaboration, as most of the public members visit this post office rather than the others, in view of the unique service image it has carved for itself over the centuries. It provides a range of services mostly unmatched by other post offices in the Postal Circle. Its march towards progress and potential for growth is unsatiating and yet respondents’ decision to arbitrarily interfere in its stellar march by achieving the present mantle of Group ‘A’ status and rendering magnificent public service, requires to be examined closely against the background of rules and law.
Reverting to the core issue of sampling, it is a process by which inference is made to the whole by examining a part. The purpose of sampling is to provide various types of statistical information of a qualitative or quantitative nature about the whole by examining a few selected units, in cases where the population is big like in the instant case of instituting establishment norms for a population of 834 HPOs/GPOs. Sampling is done because cost wise gathering data for the entire population is exorbitant and a time guzzler. Even in relatively small populations, the data may be needed urgently and including everyone in the population in the data collection may take too long. Therefore, we do agree with the respondents that it may not be practical nor required, to study all the 834 units since it would amount to an approach adopted during census, but we disagree with regard to their submission that even covering 25% of the 834 Head Post Offices i.e. approximately 208 offices, is not practical. The respondents have not made any effort whatsoever through material papers submitted or during oral submissions to neither explain the rationale in choosing only 20 Head Post Offices and why not a lesser or a higher number nor did they file any OM which dictated a certain percentage of post offices to be studied, if not 25% as claimed by the applicants, despite being repeatedly probed by the Tribunal in the hearings conducted. Every decision of the respondents has to have a rationale backing it. A rationale comes into play when you are asked to give the reasoning or justification for an action or a choice you make. There is a focus on the 'why' in a rationale: why you choose to do something, study or focus on something. It is a set of statements of purpose and significance and often addresses a gap or a need. The set of statements of purpose in deciding to study only 20 HPOs are not forthcoming from the respondents in none of their treble submissions of standing instructions, reply statement and MA for vacation of interim stay. The only reason spelt out, that it is not practical to study beyond 20 HPOs without advancing reasons as to how it is practical to study the specific number of 20 and why it is impractical to study more, is indubitably irrational. Undeniably the size of the sample is very important for getting accurate, statistically significant results and conducting the study successfully. Thus, there has to be a definite sample size and it cannot be selected in an arbitrary manner as is convenient to the respondents. Arbitrariness is an antithesis to rationality, the latter being the bed rock of Jurisprudence. Particularly in the context of the fact, that the primary goal of sampling is to get a representative sample, from a larger population of 834 units, so that the respondents can study the smaller group and produce accurate generalizations about the larger group with repercussions into the future as well. In setting up establishment norms, population and sample are two important interrelated factors of intrinsic significance. Ignoring the interrelationship is unscientific and the respondents being model employers dealing with one of the world’s gigantic Postal Network of nearly 1.55 lakh post offices (Annexure A-XII), cannot afford to adopt instinctive methods to deal with an issue of grave public importance and staid repercussions for India Post in the years to come. The more representative is the sample of the population, the more the accuracy in the quality of the results. Larger the sample size which is closer to the representative sample size, the larger is its representativeness. A sample should not reflect any bias toward a specific attribute by adopting a questionable sample size as is noticed in the present case. True to speak sampling is a tool that is used to indicate how much data to collect and how often it should be collected. This tool defines the samples to take in order to quantify a system, process, issue or problem. To sum up, the three core characteristics of a good sample are i) to be goal-oriented, ii) accurate representative of the universe and iii) being proportional to the population under study. The sample size of 2.39% of the total population i.e. 20 HPOs as decided by the respondents does not, in our view, enable the respondents to reach the goal of defining establishment norms for the 834 HPOs/GPOs since the sample is unrepresentative of the total population because of its size being decidedly disproportionate to the size of the population studied. The reason is not far to fetch, since if the sample is too small as in the instant case, the results will be skewed and one does not get a fair picture of the whole population, defeating the very purpose of conducting the work study. It appears that the respondents have resorted to convenient sampling where selection of offices is based on their accessibility and belief that the responses from such sample units would be representative. Convenience sampling is a type of nonprobability sampling in which units are sampled simply because they are "convenient" sources of data for the respondents. The risk involved in this type of sampling for the case on hand, is that the scope of participation of certain percentage of offices located in unique geographical regions and different cultural background would not be adequate. Hence, the results of the convenience sampling cannot be generalized to the target population because of the potential bias of the sampling technique due to under-representation of subgroups in the sample in comparison to the population of interest. Moreover, the bias of the sample cannot be precisely measured. Defacto, results in the case on hand, could be biased because of under or over representations of the various hues of the Head Post offices located in urban, rural, hilly, tribal and remotely located areas in the North East and J&K. The potent sampling technique is probability sampling wherein each office of the population has a known nonzero chance of being selected through the use of a random selection procedure. If results are to be produced that are representative of the whole population, probability sampling techniques are the most valid choice. To be precise, the aim of the respondents was to arrive at the time taken in performing each of the operations in different branches of the HPOs/GPOs. For calculating the time taken for a large number of transactions performed, quantitative research has to be undertaken. Quantitative research is the process of collecting and analyzing adequate numerical data from a representative sample which can be used to find patterns and averages, make predictions, test causal relationships, and generalize results to wider populations with the closest accuracy as is possible. It produces objective data with a higher coefficient of reliability that can be clearly communicated through statistics and numbers. Further, when a sample is to be selected, statistical formulae are used to usher in the needed objectivity in the decision. The documents of the respondents are bereft of any such information which is critical in taking a decision of crucial public interest.
Going a step further, mathematically speaking, for determining the sample size (NSS), the population size, confidence level, standard deviation, margin of error and Z scores are plugged into the rudimentary and well known formula given below:
NSS=Necessary Sample Size = (Z-score)2 X Std Dev X (1-StdDev) / (margin of error)2
Z-score (also called a standard score) gives an idea of how far from the mean a data point is. Standard deviation estimates how much the responses received will vary from each other and from the mean number. A low standard deviation means that all the values will be clustered around the mean number, whereas a high standard deviation implies they are spread out across a much wider range. The safe choice is a standard deviation of 0.5 which will help to make sure that the sample size is representative. Errors in sampling are inevitable and the question is how much error can be allowed. Generally, the margin of error allowed, also known as confidence interval, is up to + or – 5%. Confidence level deals with how confident one wants to be that the actual mean falls within the margin of error aimed at. The most common confidence levels are 90%, 95% and 99% respectively. These confidence levels are converted into Z-scores by using a Z-score table commonly available for making statistical studies (Source SJSU. edu). In the present case, since the factor of study is very sensitive involving the future of the HPOs/GPOs entwined with public interest, the safest confidence level to be reckoned is 95%. Statistical trend in different studies, more or less tend to lean to this percentage. The Z score for 95% confidence level from the Z-Score table is 1.96. By feeding the acceptable values stated taking the population size as large the Necessary Sample size (NSS) will work out as under:
NSS = ((1.96)2 x .5(.5)) / (.05)2
= (3.8416 x .25) / .0025
= .9604 / .0025
= 384.16
= ( 385 approximately)
Against the minimum of 385 HPOs required to be studied as per the basic statistical formula, respondents have selected only 20 HPOs which is grossly inadequate by any standards. Even otherwise, it is common logic that 2.39% of the sample size does not represent 98% of the rest of the population. Applicants have asked for 25% of the offices i.e. 208 to be studied and even that the respondents were on a weak wicket to expound as to why they could not select the said number nor could they produce any GOI memo which determines the sample size in studies of the nature carried out by them. Therefore, there has been a gross sampling error that occurred in the very initiation of the work study by deciding on an inaccurate sample size from the angle of logic and on application of rudimentary relevant mathematical formula. Once there is a grave sampling error, the result would be obviously erroneous. The respondents were lost in the woods and hence could not clarify the rationale in choosing an insignificant number of 20 HPOs to set up the ACSI norms. It is thus clear that there was no application of mind in taking an appropriate decision on the sample size. A decision taken without application of mind cannot be upheld under law, as observed by the Hon’ble Supreme Court in East Coast Railway & Anr. vs. Mahadev Appa Rao & Ors. on 7 July, 2010 in CIVIL Appeal No. 4964 of 2010 arising out of SLP ( Civil) No.27153 of 2008, as under:
24. We may hasten to add that while application of mind to the material available to the competent authority is an essential prerequisite for the making of a valid order, that requirement should not be confused with the sufficiency of such material to support any such order. Whether or not the material placed before the competent authority was in the instant case sufficient to justify the decision taken by it, is not in issue before us. That aspect may have assumed importance only if the competent authority was shown to have applied its mind to whatever material was available to it before cancelling the examination. Since application of mind as a threshhold requirement for a valid order is conspicuous by its absence the question whether the decision was reasonable having regard to the material before the authority is rendered academic.
On examination of the question as to whether the impugned decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached, as mandated by the Hon’ble Supreme Court in Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, this Tribunal is of the view that no reasonable authority could have reached such a conclusion and therefore, the very choice of choosing 2% of the population to represent 100% of the population is arbitrary.
Instinctual decisions have no place in law. Reason backed decisions hold the fort and not otherwise. We are flabbergasted to note that the respondents were unable to produce any rule to select only 20 HPOs/GPOs. Therefore, the decision to select 20 HPOs to set up ACSI adhoc norms for 834 HPOs/GPOs is not legally tenable in accordance with the judgment cited supra for lack of application of mind in deciding the representative sample size in the disputed issue.
IV. Competency of R-2 to R-4
Another related contention of the applicants is that local respondents R-2 to R-4 have developed their own norms to branches of HPOs for which ACSI norms were not developed by R-1, the competent authority on the subject. Consequently, the entire exercise of down gradation of Hyd-GPO is vitiated. In specific terms, applicants contend that without the approval of the competent authority i.e. R-1, norms were evolved for the accounts branch, not covered under ACSI norms. Further for other branches for which ACSI norms were not evolved old manual norms were adopted by the local respondents, again without the approval of the competent authority. By going into the facts, it is evident that the entire dispute arose when Hyd-GPO was due for annual establishment review for the year 2019 and the respondents initiated action as per Postal Directorate letter No. 2511/201.9-PE-I/WS dated 24.5.2019. The relevant portion of the letter is extracted verbatim here under:
“A work study was conducted at 20 Head Post Offices for various types of activities carried by each branch in Post Offices. On examination of the each activity, adhoc norms have been prepared and finalized for each activity of work at Post Offices.
2. Establishment Review module under CSI is under testing. Till such time, all are requested to follow these adhoc norms while carrying out the establishment review of the Post Offices.”
It is apparent from the cited letter that the Internal Work Study Team (I/WS) has studied activities of each branch in 20 Head Post offices and the ACSI review norms have been prepared. Of relevance is that the respondents claim that each branch of the HPO has been covered. As observed above, with the computerization of post offices, it was obligatory to develop new norms and hence ACSI norms were developed by the respondents. Consequently, with the advent of new ACSI norms, old norms get relegated. Applicants claim that the following items of work given in Annexure X of OA, have not been covered by ACSI norms.
PART-I
1. Accounts Branch
2. Schedules work
3. TMO Compilation – Issue and Paid
4. ECB Memos
5. J Branch – Stock purchase and distribution
6. Work in the Administrative Branch
7. AEPS Biometric
8. Adhaar enabled payment system
9. UCP/UCR further detailed classification
10. Server down, Finance problems
11. SOP not received
12. Branch to Branch transfer
13. Maintenance of Rough Note Books
14. Maintenance of Hand to Hand receipt Books
15. Maintenance of Registers in all Branches
16. Overnight Counter.
PART – II
1. 29 Sub Officers are attached to Hyd GPO Work relating to these offices in respect of the following items are not included
a) Receipt and despatch of mail bags
b) Receipt and despatch of Accounts bags
c) Receipt and supply of cash
d) Receipt and review of ECB memos
f) Receipt and review of accounts
g) Receipt and review of daily and periodical statements
As seen from the table, 17 items of work critical to the establishment review have not been covered by ACSI norms. Admittedly, although R-1 is the competent authority as per the reply statement, the local respondents (R-2 to R-4), who are incompetent to apply other than ASCI norms for establishment review, took upon themselves to use old manual norms to review the work of branches not covered by new ACSI norms. More so, in the context of the letter of R-1 dated 24.5.2019 being portentously emphatic that every branch of the HPO has been studied for laying down ACSI norms. If some branches were left, it is for R-1 to clarify as to what should be done with respect to such branches. In the absence of any instruction to this extent in the cited letter, it was incumbent on part of R-2 to R-4 to obtain approval from R-1 to apply old norms, since ACSI norms are applicable to all HPOs/GPOs in the country and not just for Hyd-GPO. Without approval of R-1 for application of old norms, it was grossly irregular on part of R-2 to R-4 to process down gradation of Hyd-GPO with its allied consequences. Therefore, to conclude, it is crystal clear that incompetent authorities have applied old norms to certain items of work not covered by new ACSI norms. The application of old norms by incompetent authorities in matters of grave importance is legally invalid.
Furthermore, when it comes to Accounts Branch for which ASCI norms were not developed, R-4 (Chief Post Master, Hyd GPO) in his letter dated 16.3.2020 to R-3 (PMG, HQ Region, Hyd), which is appended to the rejoinder, has stated as under:
“Accounts Branch work load:
The statistical data of the branch was compiled by the AAO Circle office and the norms were fixed by AAO and workload assessed accordingly. The justified staff has been calculated according to the norms fixed by AAO.”
We are aghast to note that the Asst. Accounts Officer (AAO) has fixed the establishment norms for the accounts branch as per his report (page 18 of rejoinder) dated 9.3.2020 submitted to R-4, as under :
“I am directed by the CPMG, Telangana Circle to assess the workload of Accounts Branch of Hyderabad GPO in the light of CSI, since no ad hoc norms were communicated by the Postal Directorate in r/o. Accounts Branch. In obedience of the competent authority orders, I visited the Hyderabad GPO in the month of February 2020 and assessed the work of Accounts branch. A copy of said assessment (containing II Parts, 39 pages) is enclosed. Since no norms are communicated, the actual/ practical time taken to complete the task ascertained from the officials is incorporated. Further, 10% coefficient may be awarded on the total workload for performing the said tasks and the same are illustrative but not exhaustive. “
R-2 has no locus standi to order fixation of establishment norms, in the context of respondents repeated assertion in the reply statement that they have done the establishment review based on ASCI norms as ordered by R-1, who is the competent authority to order so. There are 834 HPOs/GPOs in the country and uniform establishment norms have to be fixed by R-1 for review of the work in the said offices. If each Chief Post Master General, (R-2 in the instant case), of every circle lays down the establishment norms for the HPOs/GPOs under their jurisdiction, then there will be, for sure administrative chaos in the respondents organization. In fact, on one hand R-2 to R-4 claim that they have done the establishment review of Hyd-GPO as per R-1 orders and on the other hand, have self- contradicted this contention by taking up review as per their own norms/old norms for certain branches. To reiterate, some establishment norms were developed by AAO for accounts branch on the orders of R-2, an incompetent authority and in respect of other branches where ACSI norms were not framed, again incompetent authorities have applied old norms. In none of their written submissions, respondents have filed any memos to justify that the action of local respondents ie R-2 to R-4 to develop norms for accounts branch and applying old norms for some other branches bypassing the orders of R-1, is as per rules, despite liberally granting plentiful opportunities to do so. R-2 has indulged in unbridled exercise of power to direct AAO, though ipso facto he has no power to delegate the said function of developing work study norms for the accounts branch of the Hyd-GPO. Reasons for such delegation supported by rules are not to be seen across the length and breadth of the written submissions of the respondents. Hence the said decision has to be construed to be unlawful. Material papers submitted by the respondents, when scanned pixel wise, have not revealed that R-1 has delegated the power to lay down establishment norms to R-2 and the grounds thereof. We therefore, declare the decision of R-2 as illegal by taking support of the observations of Hon’ble Apex Court in District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496, as under:
“Unbridled power available to be exercised by any person whom the Collector may think proper to authorise, without laying down any guidelines as to the persons who may be authorised and without recording the availability of grounds which would give rise to the belief, on the existence whereof only, the power may be exercised, deprives the provision of the quality of reasonableness.” .
Respondents, surprisingly, have not even made a feeble attempt to refute the above contentions of the applicants in the OA/rejoinder by filing an additional reply, if they were sure that their actions were as per rules and law. It is relevant to point out at this juncture, that any action which is against rules has to be curbed and snubbed, as observed by the Hon’ble Supreme Court in the following verdicts:
The Hon’ble Supreme Court in T.Kannan and ors vs S.K. Nayyar (1991) 1 SCC 544 held that “Action in respect of matters covered by rules should be regulated by rules”. Again in Seighal’s case (1992)
(1) supp 1 SCC 304 the Hon’ble Supreme Court has stated that “Wanton or deliberate deviation in implementation of rules should be curbed and snubbed.” In another judgment reported in (2007) 7 SCJ 353 the Hon’ble Apex court held “ the court cannot de hors rules
Therefore, the development of unauthorized norms and applying old norms for branches for which ACSI norms were not evolved, having been done by incompetent authorities namely R-2 to R-4 against legal principles referred to above as well as against rules, the same are void ab initio.
It is not out of place to affirm that it is well settled in law that a public authority discharging a public function has to act fairly. His/her decision is to be founded on germane factors and not by considering extraneous factors. R-2 need to have to put to himself a correct question of law as to whether he was competent to order the AAO to develop norms for the accounts branch, to enable him to arrive at the correct answer. Instructions of R-1 were clear and meticulously following them was the name of the game and if there were any gaps, placing the ball in the court of R-1 was the legally valid response. Once ACSI yardsticks were positioned by R-1, they have to be followed and not anything else. However, it was not to be and hence a blatant jurisdictional error has occurred. Any decision lacking jurisdiction is unenforceable in the eyes of law and is a sure case of abuse of power. We take support in stating the above by relying on the observations of the Hon’ble Apex Court observations in
M.P. State Coop. Dairy Federation Ltd. v. Rajnesh Kumar Jamindar, (2009) 15 SCC 221, as under:
48. It is also a well-settled principle of law that an authority discharging a public function must act fairly. It, for the aforementioned purpose, cannot take into consideration an irrelevant or extraneous matter which is not germane for the purpose for which the power is sought to be exercised. The Scrutiny Committee as also the Review Committee was required to pose unto themselves a correct question of law so as to enable them to find out a correct answer. It was, therefore, imperative that the criteria laid down in the circulars issued by the State of Madhya Pradesh should have been scrupulously followed. The Federation, therefore, in our opinion, having regard to the fact that there was no material to show that the respondent employees had become dead wood, inefficient or corrupt, must be held to have abused its power.
.....
..... Furthermore, it is well settled that while a power is exercised by an authority, ordinarily, the reasons contained in the order should be supported by the materials on record.
51. ...... It is one thing to say that a yardstick has been fixed for the purpose of taking recourse to the power of compulsory retirement but there cannot be any doubt or dispute that such yardstick must be based on relevant criteria. If the relevant criteria, as has been laid down by the State, which has been adopted by the Federation, had not been acted upon, the order must be held to have been suffering from jurisdictional error.
Moreover, a statute is a rule or law which has been made by a government or other organization and formally written down. R-1 has vide letter dated 24.5.2019 communicated the rules to be followed in establishment review of HPOs/GPOs using ACSI norms. Thereby the said letter of R-1 conveying the requisite rules having acquired the character of a statute, it has to be literally interpreted in consonance with its purported objective. In this context, we need to observe that the construction of the statute issued by R-1 is clear, plain and natural in its language to the extent that every branch of the Head Post Office has been studied in fixating the ASCI norms. The fundamental rule of interpretation is that the words used in the statute must be given their plain grammatical meaning. One cannot afford to add any words to read something into the statute, which was not intended. It being so, there was no necessity to alter the essence of R-1 statute by R-2, to build norms for areas not indicated in the said letter or use old norms not spoken of in the said signorma, by adding words of non- availability of ACSI norms for certain branches of the HPO. Even if the statute is unworkable, it is improper to add words and activate it, because by doing so, the very intent of the statute of R-1 to use new ACSI norms gets modified. Each word employed in a statute must take colour from the purport and object for which it is used. The intent, purport and object of R1 letter was candidly plain and clear to conduct establishment review using ACSI norms and no where it is mentioned that old norms can be used or local authorities can develop local norms for branches uncovered by ACSI work study norms. Thus, the singular interpretation of the statute was to apply ACSI norms. Basically, when there was no scope for two interpretations, as per law, the literal and unique interpretation of the statute to use only ACSI norms has to be adopted. Hence, the decisions of the local respondents to develop new norms and use old norms in the background of the non-availability of ACSI norms for certain branches, though not directed by R-1 stridently goes against the law of interpretation and hence are not sustainable. Therefore, they are null and void. Our above remarks are based on the judgments of the Hon’ble Apex Court in the following cases.
a. Polestar Electronic (P) Ltd. V- Addl. CST, (1978) 1 SCC 636:
“7. Now, if there is one principle of interpretation more well-settled than any other, it is that a statutory enactment must ordinarily be construed according to the plain natural meaning of its language and that no words should be added, altered or modified unless it is plainly necessary to do so in order to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute. This rule of literal construction is firmly established and it has received judicial recognition in numerous cases. Crawford in his book on “Construction of Statutes” (1940 Edn.) at p. 269 explains the rule in the following terms:
“Where the statute’s meaning is clear and explicit, words cannot be interpolated. In the first place, in such a case they are not needed. If they should be interpolated, the statute would more than likely fail to express the legislative intent, as the thought intended to be conveyed might be altered by the addition of new words. They should not be interpolated even though the remedy of the statute would thereby be advanced, or a more desirable or just result would occur. Even where the meaning of the statute is clear and sensible, either with or without the omitted word, interpolation is improper, since the primary source of the legislative intent is in the language of the statute.”
b. Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd. (2007) 6 SCC 236:
The elementary rule of interpretation of the statute is that the words used in the section must be given their plain grammatical meaning. Therefore, we cannot afford to add any words to read something into the section, which the legislature had not intended.
c. LIC of India v. Retired LIC Officers Assn., (2008) 3 SCC 321:
Each word employed in a statute must take colour from the purport and object for which it is used. The principle of purposive interpretation, therefore, should be taken recourse to.
V. Contribution of Man and Machine:
An allied contention of the applicants is that Machine contribution was considered and the effort made by the man behind the machine was forgotten. With the advent of computerization, postal transactions are now facilitated by using the IT software developed for different branches of the Post office like Core Banking Solution for Savings Bank, PLI software for Postal Life Insurance, Point of Sale for transactions across the counter etc. It is common knowledge that when an input is fed to the computer, the software operates on the same and yields the necessary output. The type of input to be fed depends on the intellect and decision of the operator who is feeding the input. The input characteristics are essentially based on the requirements of the clientele of the postal department. Resultantly, input decisions vary depending on the service to be provided as per customers’ diktats. In short, the man behind the machine has to cognitively map the requirements of the customer and then operate the system. Hence, he is as important as the machine. Eulogizing one over the other is unfair. Post office is into banking, insurance, retailing, philately, logistics, mail operations, business development and a whole range of other specialized services. Posting of staff to the different branches is a periodic affair and also keeping in view leave contingences, which has a marked impact on the time it takes for input decisions. Indeed to reiterate, the magic of the computer depends on the operator who makes it operational. It is his ability to give proper commands, which decides the time of transaction and hence his contribution is quintessential, since any wrong command will result in errors galore. Applicants plead that this core contribution of the man behind the machine has been ignored and hence the time factors given under ASCI are under estimated. The applicants have furnished the details of actual time taken in performing the transactions and the ACSI time norms in annexure IX, as under:
AVERAGE TIME FACTORS PRESCRIBED AS PER CSI NORMS AND ACTUAL
TIME TAKEN
Sl. No. CSI | Activity | Average TF as per CSI Norms | Actual time taken |
| Point of Sale |
|
|
1-3 | Activities performed by Supervisor | 206 s | 15 Mts |
5-7 | Activities performed by Operator | 177 s | 15 Mts |
8 | Speed Post | 82 s | 10 Mts |
10 | Registered letter | 61 s | 10 Mts |
14 | VP/VPP Articles | 139 s | 10 Mts |
22 | EMS Document | 204 s | 12 Mts |
34 | Stamps and Stationary | 78 s | 5 Mts |
36 | IPO Issues | 67 s | 5 Mts |
39 | EMOs | 148 s | 10 Mts |
46 | Generation & Tally Reports with cash | 650 s | 30 Mts |
50 | MO Booing Vfn by Supervisor | 42 s | 10 Mts |
| IVPS |
|
|
9 | Insertion of arts & manifest and seal | 175 | 10 Mts |
| Cheque clearance |
|
|
10 | Zone closed by supervisor | 240 S | 10 Mts |
| Outward Cheque Clearance |
|
|
1 | Posting of summary in SAP by the operator – inward | 182 s | 10 Mts |
12 | Preparation of remittance/ clearance list and despatch to SOs and Account Office | 439 s | 60 Mts |
| Savings Bank |
|
|
1 | CIF Creation / Modification | 136 s | 5 Mts |
17/18 | SB Deposit / Withdrawal | 204 s | 5 Mts |
19 | KVP Issue | 88 S | 5 Mts |
22/23 | MIS Accounts | 341/ 220s | 30/10 Mt |
44 | ATM Cash feeding in Finacle | 193/85s | 30/10 Mt |
| Delivery & Postman Management system |
|
|
1-2 | L bag, SP Bag received etc | 12/14/18s | 5 Mts |
6 | Counting and checking of bags | 8 s | 3 Mts |
22-30 | Regd SP, VP Articles handling | 10s | 2 Mts/pa |
59 | Invoicing EMOs | 33s | 5 Mts/pm |
| SBCO |
|
|
5 | Checking of vouchers | 11 s | 10 Mts |
| Treasury |
|
|
1 | Opening of Treasury Branch | 22 s | 10 Mts |
5 | Withdrawal of cash | 243 s | 15 Mts |
45 | To present the documents to bank counter, receive & count cash & bring the same to PO | 6410 s | 3 Hrs |
There is huge gap between the two. Respondents have not even whispered in the reply statement as to the plausible reasons for such a large variation. Applicants contend that it is because of ignoring the time consumed in making the human effort to complete the transactions. Usually when work study is undertaken, the results of such a study are shared with the operative units where such studies are undertaken, to obtain the feedback on the time factors worked out, for confirming their validity or rework on them, if need be. Respondents are silent on this aspect. We are disappointed that when a core contention in regard to the time factors was made by the applicants, respondents have not delved on the same to present their point of view, for reasons best known to them.
Instead, respondents have harped on the fact that the number of points that need to be earned for retaining Group ‘A’ status of Hyd-GPO is 11,000 and that on taking up establishment review using a hybrid of ACSI & old norms, 7343 points were found to have been earned and hence, down gradation is an inevitability. The grave sampling error noticed, ACSI norms not being developed for some branches, applying old norms and developing unauthorised norms by local respondents arbitrarily etc. point towards an unreasonable approach adopted by the respondents in assessing the work load and deciding the down gradation of Hyd-GPO. When the approach of the respondents’ lacks rationality due to grave procedural lapses brought out supra, their conclusion that the points earned on review are less than 11000 lacks logic. Anything illogical is unacceptable. Respondents’ organization is a public institution and any major decision encompassing public interest has to be responsible, reliable and valid. Adjudged against the 3 elements of measurement referred to, the decision to downgrade Hyd-GPO is not maintainable since it is neither responsible nor reliable nor for that matter, valid. In sum and substance, we found no reasons forthcoming from the respondents rebutting the critical contention of the applicants. When the start, of using certain unapproved norms is fouled, the finish in the form of down gradation decision cannot be declared as proper. A right in law exists when it has a lawful origin. An order is bad in its inception it does not get sanctified at a later stage for the reason that illegality strikes at the root of the order. No authority is competent to validate such an order. Once an order is bad in the initial stage the further proceedings based on the said order will be non-est. This flows from the general principle applicable to 'consequential orders' which applies to administrative orders as much as to judicial orders. Once the basis of a proceeding has gone awry, any action thereof would fall to the ground. This principle of consequential orders which is applicable to judicial orders is equally applicable to administrative orders. In the instant R-1 has laid down the ACSI norms without covering all the branches of the HPO/GPO and directed the lower formations to review the establishment of the cited offices. Having got incomplete Adhoc CSI norms, R2 to R-4 tried to make up for the inadequacies in R-1 order, by developing their own norms and applying old norms, which is impermissible under law. The order of R-1 is bad in its inception since it does not cover all the branches of the HPO/GPO. Improving the said order by the local respondents, transgressing their jurisdiction, has transformed the R-1 order from bad to worse and hence non est in law. In making the above remarks we have taken support of observations of the Hon’ble Supreme Court in the following verdicts.
A. Badrinath vs Government of Tamil Nadu And Ors., AIR 2000 SC 3243, 2000 (6) SCALE 618, (2000) 8 SCC 395, 2000 Supp 3 SCR 573:
28. This flows from the general principle of applicable to 'consequential orders'. Once the basis of a proceeding is gone, may be at a later point of time by order of a superior authority, any intermediate action taken in the meantime - like the recommendation of the State and by the UPSC and the action taken thereon - would fall to the ground. This principle of consequential orders which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders. In other words, where an order is passed by an authority and its validity is being reconsidered by a superior authority (like the Governor in this case) and if before the superior authority has given its decision, some further action has been taken on the basis of the initial order of the primary authority, then such further action will fall to the ground the moment the superior authority has set aside the primary order.
B. State Of Orissa & Anr vs Mamata Mohanty on 9 February,
2011 in CIVIL APPEAL NO. 1272 OF 2011
ORDER BAD IN INCEPTION:
20. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. (vide: Upen Chandra Gogoi v.State of Assam & Ors., AIR 1998 SC 1289; Mangal Prasad Tamoli (Dead) by L.Rs. v. Narvadeshwar Mishra (Dead) by L.Rs. & Ors. , AIR 2005 SC1964; and Ritesh Tiwari & Anr. v. State of U.P. & Ors., AIR 2010 SC 3823).
Being on the subject, we also need to add at this juncture that administrative process will be vindicated by clarity in its exercise. Reasons for taking a decision have to be disclosed and sufficiently sustained. Absence of reasons could render the decision liable for judicial review and can be legally declared unworkable, as in the present case. It is the reasoning alone, that helps to appreciate the controversy in its correct perspective and hold whether the administrative decision, is justifiable in law. Respondents having not given reasons for the vast time gap in the transactional time observed under ACSI and quoted by the applicants by appending Annexure A-IX, the transactional time decided by the respondents under ACSI need necessarily require a second look. We are of the view that this can be the correct legal approach to resolve the dispute. Our above views are expressed by relying on the observations of the superior judicial fora, as under:
a. In CCT vs. Shukla and Bros. [(2010) 4 SCC 785], the Hon’ble Supreme Court impressed upon the need for recording of appropriate reasons in orders and held as under:
"11. The Supreme Court in S.N. Mukherjee v. Union of India while referring to the practice adopted and insistence placed by the courts in United States, emphasized the importance of recording of reasons for decisions by the administrative authorities and tribunals. It said "administrative process will best be vindicated by clarity in its exercise". To enable the courts to exercise the power of review in consonance with settled principles, the authorities are advised of the considerations underlining the action under review. This Court with approval stated: (SCC p. 602, para 11)
'11. ... 'the orderly functioning of the process of review requires that the grounds upon which the administrative
agency acted be clearly disclosed and adequately sustained'.'
12. In exercise of the power of judicial review, the concept of reasoned orders/actions has been enforced equally by the foreign courts as by the courts in India. The administrative authority and tribunals are obliged to give reasons, absence whereof could render the order liable to judicial chastisement. Thus, it will not be far from an absolute principle of law that the courts should record reasons for their conclusions to enable the appellate or higher courts to exercise their jurisdiction appropriately and in accordance with law. It is the reasoning alone, that can enable a higher or an appellate court to appreciate the controversy in issue in its correct perspective and to hold whether the reasoning recorded by the court whose order is impugned, is sustainable in law and whether it has adopted the correct legal approach. To subserve the purpose of justice delivery system, therefore, it is essential that the courts should record reasons for their conclusions, whether disposing of the case at admission stage or after regular hearing."
b. Hon’ble Jharkhand High Court in Jit Lal Ray v. State of Jharkhand, WP(C) No. 469 of 2019, decided on 26-04-2019 has held :
“It is settled position of law that a decision without any reason will be said to be not sustainable in the eyes of law, because the order in absence of any reason, also amounts to the violation of the principles of natural justice.”
Based on the aforesaid, we observe that the respondents were expected to reason out as to whether human contribution was factored in prescribing ACSI norms and also present their point of view for the huge variations between the ACSI time factors and those stated by the applicants. Ld. Counsel for the applicants has submitted that the respondents organization has a good practice of picking up some members of the Staff Unions as observers/ members of work study team, so that the stakeholders are on board in arriving at acceptable work norms. True, such a practice has to be complemented. However, respondents have not stated so anywhere in the multiple affidavits. While being on the subject, we are reminded of the pivotal role of feedback in electronic circuits. Just as in an electronic circuit, reverse feedback enhances the operational efficiency of the circuit, so too the field feedback received from stakeholders, is a valuable source to correct anomalies, if any, and make the system robust. From the facts on record, the respondents appears to have not given any thought to the feedback provided, which we are of the view, is incorrect. To conclude, respondents not disclosing reasons as to whether human contribution was reckoned in tailoring the ACSI norms is not in consonance with legal principles of the superior judicial fora, cited supra.
VI. Public Interest
Proceeding further, we notice that the applicants have contended that the exercise of down gradation of the Hyderabad GPO has seriously compromised public interest. Presently, Hyderabad GPO is headed by a Group ‘A’ officer designated as Chief Post Master. A Group ‘A’ officer has wide powers to settle public claims in regard to Money Orders, non- delivery of mail, Savings Bank claims and so on. Hyd.-GPO is an operative office, which is the front end of the respondents organization and is thus placed at the cutting edge between the administration and the customers. Progressive measures will help in fine tuning the cutting edge to improve service delivery. Not only external service delivery has to improve but the internal working environment with reference to discipline, recruitment, staff welfare etc. has to be in tandem in order to enable any public organization render public service of superlative quality. Hyd-GPO can be no exception to this basic Managerial norm. When the internal working environment is effective and efficient the same gets reflected in the external service delivery. In other words, the equation of significance is that the internal working efficiency is directly proportional to the external service delivery efficiency of an organization. The general principle is that the scope to enhance internal and external working efficiency depends on the level of administrative independence the Head of Office enjoys. As the status of the office amplifies, proportionally the independence gets enlarged. Applying this principle to the instant case, when Hyd-GPO is downgraded from Group A to Group B, the degree of autonomy would be condensed since the operational and administrative powers available would be curtailed resulting in referring certain types of public issues to the Divisional Superintendent for resolution. Thereby, an additional tier comes into play to settle public claims/issues which invariably consumes more time and throws up new doubts since the issue has to be vetted at different levels, before a final decision is taken. The policy of the Government is to provide effective service in the shortest possible time. GOI, having noticed the shortfalls in providing public service by Central Govt. departments, has introduced the Centralized Public Grievance Redressal and Monitoring System (for short CPGRAMS), an online 24 X 7 platform for the citizens to lodge their complaints about service delivery. The motive was to improve service efficiency across the spectrum of Central Government departments, of which the respondents organization, a service department, is a part and is known to contribute to a significant percentage of complaints. When GOI policy is for improving service efficiency, the respondents cannot indulge in the luxury of diluting the same by giving scope for procrastination of resolution of public grievances by taking a regressive decision of downgrading the Hyd-GPO and that too, by not adhering to the basic procedures prescribed. The argument of the respondents that there are many HPOs/ GPOs with Group B status providing similar service is hollow since there is a marked difference in the schedule of powers, as prescribed in the Postal Manuals in different domains like finance, discipline, claim settlement etc. to be exercised by a Group ‘A’ and Group ‘B’ officer. This variance is sufficient enough to make all the difference in the service quality to be rendered, assuming similar levels of sincerity and commitment in the officers who hold the posts. Similar logic extends in improving the internal working environment with reference to the status of the office. Further, the existence of Group ‘B’ HPOs/GPOs spoken of, by the respondents which are statistically justified to be so, can be no reason to irregularly downgrade Hyd-GPO from Group ‘A’ to Group ‘B’ by throwing the applicable procedures to the wind. Reducing the ability to service customers and control internal environment, by curtailment of powers of the Post Master through down- gradation of Hyd-GPO is a hard fact, which cannot be denied by any stretch of imagination. Chief Post Master with Group ‘A’ status has wider powers and therefore would be able to attend to public grievances at his level, which would be fundamentally foregone if Hyd-GPO is downgraded to GrB irregularly by using unapproved norms violating the instructions of the competent authority on the subject. Hence’ an irrational administrative decision which diminishes service quality is not in public interest and therefore, unendurable in the legal domain. As observed by the Hon’ble Supreme Court in the judgments cited below, larger public interest demands observance of instructions and not to violate them. Indeed, the overarching requirement of the Constitution is that every action of the State has to be well informed and in public interest. The decision of the respondents is neither well informed in consonance with the prescribed procedures as brought in the previous paras nor in public interest and therefore lacks legal sanction.
a. Karnataka Public Service Commission & Ors v B.M. Vijaya Shankar & Ors, AIR 1992 SC 952:(1992) 2 SCC 206:
“Larger public interest demands of observance of instruction rather than its breach”.
b. Nidhi Kaim & Another vs State of Madhya Pradesh & Ors Etc in Civil Appeal No. 1727 of 2016, as under:
No doubt, that the overarching requirement of Constitution is that every action of the State must be informed with reason and must be in public interest.
Applicants further contend that the reduction of posts arbitrarily will demoralize the staff, as less number of staff members have to shoulder higher work load. Their claim is that the PA strength is reduced nearly by 50%. Respondents reject this contention by stating that without work, posts cannot be retained and that neither public interest nor staff morale has been adversely effected in down grading Hyd-GPO. We find this contention lacking the required basis, since reduction of posts has to be done by following established and approved norms by the competent authority. In the instant case, the competent authority has not approved the ACSI norms to a number of branches as pointed by the applicants and admitted by the respondents. Hence, any review based on unapproved norms by local respondents can be no basis for reduction of posts. Admittedly, fewer hands dealing with higher work load would invite work pressure and will lead to mistakes being committed, inconveniencing the customers and thereby, compromising public interest in the process. Moreover, this Tribunal is witness to a number of disciplinary cases instituted by the respondents resulting in recoveries running into lakhs from staff members for having been identified as subsidiary offenders in fraud cases on grounds of not following rules. Fraud is committed by someone and instead of recovering the loss from the main offender, it is recovered from other staff members, who are no way directly connected to the fraud, by alleging that they have not followed the rules. Employees’ response is that they are overburdened with work because of shortage of staff and hence, the slips occur. Naturally, this demoralizes the staff and no wonder, the same could be a common occurrence in Hyd-GPO if it is downgraded. Hence, down gradation of Hyd-GPO leading to demoralization of staff cannot be brushed aside. Demoralization is a serious issue that cannot be swept under the carpet. A demoralized employee cannot put his heart and soul in the assignment given to him. With heavy work load thrusted on him due to the consequence of irregular establishment review, will drive fear in him that he is likely to make mistakes to complete the work in time. This fear is a great demoralizer, particularly when those who had committed innocuous mistakes without any ulterior motive are made to pay for the folly, with respondents instituting major disciplinary proceedings to impose a major cut in the pay & allowances and sometimes sending them home to cool their heels. Respondents organization is a Public institution and the humongous hierarchy they have, is to keep up the staff morale. Higher morale results in ensuring higher customer satisfaction. Customer satisfaction is critical to public interest and the respondents organization being a public institution has been in the forefront in rendering public service of superior quality. They need to continue the same but not dent it with decisions of the nature in question, lacking pragmatism and the backing of rules and law. Thus, we are of the view that respondents have raised the objection that no public interest or staff morale has been adversely effected, for the sake of raising it, without any foundation and hence does not call for any serious attention, as observed by the Hon’ble Supreme Court in Kanta Goel v. B.P. Pathak, (1977) 2 SCC 814, at page 815, as under:
“An objection for the sake of an objection which has no realistic foundation cannot be entertained seriously for the sake of processual punctilliousness.”
In view of the above, we hold that Public interest will be compromised by the respondents’ impugned decision to downgrade the status of Hyd-GPO from Group ‘A’ to Group ‘B’, as well as lower the morale of the staff members.
VII. Handling of alleged Surplus staff by the local authorities:
Applicants are also aggrieved that the local authorities irregularly acted beyond their brief in haste, to attach posts to City Postal divisions and forced identified surplus officials to opt for city postal divisions, without the approval of down gradation proposal by R-1. The records on file indicate that R-2 has submitted the proposal of down gradation to R-1 for approval on 27.4.2020 and it was approved on 16.7.2020. The proposal submitted showcased that due to review, 45 PA posts were found surplus. R-3 ordered temporary attachment of surplus identified PA posts to different City Postal divisions under Hyderabad city region as under, vide letter dated 6.5.2020. The relevant paras are extracted hereunder:
“After review of statistical report of Hyderabad GPO, 45 PA Posts are found surplus for want of justification. In this regard, approval of the competent authority is hereby conveyed for temporary allotment of surplus identified Postal Assistant (PA) Posts of Hyderabad GPO to the following offices as per the projection of requirement in the above said references.
Name of the Dn | Total PA posts requirement |
Hyderabad City | 11-(Banjara Hills (04), Karwansahu (01), Motinagar (02), Manikonda (02), & MANUU (02) |
Hyderabad SE | 08-(Medipalli (01), Boduppal (01), Vaishalinagar (01), Meerpet (01), Hyderguda (01), LB Nagar (01), RK Puram (01) and DO (01) |
Secunderabad | 09- (GC Rasta (01), Shamirpet (01), JJ Nagar (01), Jai Jawan Colony (01), Nagaram (01), Chevella (01), Mominpet (01), Alampally (01) and Shankarpalli (01) |
Medak | 17- Medak DO (03), Nehruroad (02), Siddipet HO (06), Kodurkurd (03), Allipur (02) and Tekmal (01) |
Total | 45 |
Hence, I am directed to request you to send detailed proposals along with statistics in r/o the above offices as per ad hoc CSI norms, to this office immediately for taking necessary action to redeploy the surplus posts of Hyderabad GPO to the needy units. The officials rendered surplus in Hyderabad GPO due to reduction of posts for want of justification will also be attached to the divisions on temporary basis after identifying surplus officials (willing senior/ unwilling junior officials).
However, the officials attached to the divisions will continue to be in the pay rolls of Hyderabad GPO. Hyderabad GPO will continue to draw their pay and allowances till such time the posts are permanently redeployed and the officials transferred to other divisions.”
Accordingly, R-4 has obediently moved the office note dated
9.5.2020 directing the identified 31 surplus PAs to exercise their option by 14.5.2020, which was extended upto 21.5.2020 for attaching them to any of the city postal divisions, indicated above, under Hyderabad city Postal Region with Post offices located in far flung places as well. There being no response, R-4 reminded the concerned on 26.5.2020 to reply by 17 hours on 27.5.2020. Once again, there being no reply, individual letters were shot off to the PAs concerned by R-4 on 29.5.2020 directing immediate response. Of the 31, ten gave willingness to work in other divisions, 18 opted to be retained at Hyd-GPO and the rest gave no option. In other words, 2/3rd of the staff members were unwilling to stir out of Hyd-GPO. Obviously, when the staff feel wronged by administrative decisions, which are not in wavelength with the prescribed procedures, the resistance mounts leading to a legal battle. Exactly, this is what has happened in the instant case, with the filing of the instant OA dated 25.6.2020. The respondents have not explained as to why R-3, who has no jurisdiction over the issue, could downsize the establishment and direct R-4 to commence the process of moving the identified surplus staff to city postal divisions vide his letter dated 6.5.2020, without the receipt of R-1 approval. R-3, as the head of the City Postal Region, bears the responsibility to go into the pros and cons of the proposal submitted by Hyd-GPO for verifying as to whether it is in accordance with established procedures. If need be, bring it to the notice of R-2 about the procedural irregularities like AAO fixing norms for accounts branch, old norms being adopted without approval of R-1 etc. It is a classic case of colourable exercise of power by R-3. In fact, seeking clarification from R-1 about the methodology to be adopted in case of branches not covered by ACSI norms would have been apt, for the reason that adhoc norms circulated by R-1 are not just for Hyd–GPO but for the 834 HPOs/GPOs in the country. Hence, a Pan India decision was called for and not a local decision without jurisdiction. R-3 is a Joint Secretary level officer holding independent charge of the Region and at the said senior level, it would have been appropriate to give a careful reading of the proposal submitted by R-4 against the backdrop of rules and thereafter, take up with the superiors for action as per rules. There is no record on file to claim that R-3 has made such an effort and instead, hastily pushed the proposal by issuing the premature order dated 6.5.2020. Haste brings waste in all the dimensions of relevance, as seen in the case on hand. We depreciate the R-3 decision since it is an administrative aberration devoid of competency and any support of the relevant rules. Only after the Tribunal intervention by issue of the Interim order on 3.7.2020, the approval of R-1 was received on 16.7.2020, which again has a legal angularity, discussed in the ensuring para.
Delving further deep into the dispute, we have no hesitation to hold that the order of R-3 cited smacks of arbitrariness. In legal parlance, a decision not in conformity with rules, but based on individual discretion not backed by reasons and founded on preference, is said to be arbitrary. The facts and circumstances of a case will reveal the element of arbitrariness in the legal paradigm. The test to discern arbitrariness is the test of reasonableness and if a mode is prescribed to perform an act and if it is not followed, then the vice of arbitrariness would be attracted. Rule of law advocates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that `be you ever so high, the laws are above you'. This is what men in power must remember always.
Applying the above legal disposition to the instant case, we find that the order of R-3 dated 6.5.2020 details the posts to be attached to city divisions without elaborating the reasons as to what elements of the Chief Post Master report dated 16.3.2020 that propelled to take the decision to attach the posts to city divisions and that too, in the face of no approval having been received from R-1 at that point of time. There is, thus the quality of reasonableness profoundly absent in the cited decision of R-3 by exercising his own discretion. The mode prescribed was to await approval of down gradation from R-1 and thereafter, initiate action to disperse the surplus posts identified. Before R-1 approval dated 16.7.2020 was received, R-3 issued the premature memo dated 6.5.2020 and R-4 acted in tandem to compel the so called surplus identified officials to make their choice to move to any of the city postal divisions. Thus, R-3 &R-4 ran before the whistle for the 100 meter dash was blown and such a start is termed as a foul in the sports arena and in the legal arena, it is categorized as arbitrary. Hence, the memos issued by R-3 and R-2 cited supra are to be distinctly classified as arbitrary. A decision which is arbitrary is illegal and hence the letter dated 6.5.2020 of R-3 is unlawful. Respondents are not above law and they cannot run the organization as per their whims and caprices. The law will catch up with them sooner or later. Any selective amnesia to this stark reality by the respondents is ill advised. We have made the above comments by taking support of the observation of the Hon’ble Apex Court in East Coast Railway & Anr. v. Mahadev Appa Rao & Or in Civil Appeal No. 4964 of 2010 & Civil Appeal Nos. 4965-4966 of 2010, decided on July 7, 2010, as under:
16. What then is meant for arbitrary/arbitrariness and how far can the decision of the competent authority in the present case be described as arbitrary? Black's Law Dictionary describes the term "arbitrary" in the following words:
"1. Depending on individual discretion; specif., determined by a judge rather than by fixed rules, procedures, or law. 2. (Of a judicial decision) founded on prejudice or preference rather than on reason or fact. This type of decision is often termed arbitrary and capricious."
18. There is no precise statutory or other definition of the term "arbitrary".
In Kumari Shrilekha Vidyarthi and Ors. v. State of U.P. and Ors. (AIR 1991
SC 537), this Court explained that the true import of the expression "arbitrariness" is more easily visualized than precisely stated or defined and that whether or not an act is arbitrary would be determined on the facts and circumstances of a given case. This Court observed:
"The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that `be you ever so high, the laws are above you'. This is what men in power must remember, always."
From the above, one can safely conclude without any iota of doubt, that the local authorities have acted beyond their jurisdiction erroneously and hence their decisions lack legal force.
VIII. Violation of Interim Orders:
One another striking contention of applicants having serious connotations is that the respondents have infringed the interim order of the Tribunal passed on 3.7.2020 by issuing the memo dated 16.7.2020. From the facts of the case, it is palpable that on hearing both the sides, Tribunal passed an interim order on 3.7.2020. The relevant paras are extracted here under:
“4. This OA is filed by the National Association of Postal Employees and two others in a representative capacity with respect to down-gradation of Hyderabad GPO from Group A to Group B status and the consequent fall out of transfer of officials working in Hyderabad GPO. Ld. Counsel for the applicants argued at length, which are capsulated hereunder:
i) The establishment review module of Core System Integrator (CSI) software (s/w) is still under testing as per 1st respondent letter dated 24.5.2019. An untested s/w module cannot be the basis for establishment review.
ii) Down-gradation based on the work study of 20 Head Post Offices is against the rule which prescribes collecting statistics and conducting a work study in 25% of 810 Head Post offices/General Post offices i.e. approximately 200 post offices, with proper urban/rural mix and thereupon, after taking the views of the stake holders, respondents should undertake down gradation.
iii) Staff inspection unit norms which are statutory in nature have been flagrantly violated.
iv) Time factors for 16 items of work listed at Annexure X of the OA have not been reckoned while stipulating the adhoc norms. Hence, the norms lack both qualitative and quantitative validity.
v) Huge variations in time allotted for each item of work and the actual time taken makes it lucid that the adhoc norms lack rudimentary reliability.
vi) Surprisingly, the adhoc norms are not being applied to any other post office among the 1,54,898 post offices functioning in the country but selectively to Hyderabad GPO.
vii) Applying the adhoc norms to Hyderabad GPO and not to its constituent Sub Post Offices, which together form a core accounting unit, would give an incorrect picture i.r.o. the aspect of surpluses or deficiency of staff. Without making such an exercise, declaring 45 posts surplus and initiating action to transfer staff from GPO to SOs, as per impugned orders enclosed, is premature and authentically invalid. More so, in the context of there being 38 vacancies in Hyderabad GPO and cadre restructuring of this office under adjudication by courts.
viii) Without the approval of the 1st respondent, who is the competent authority, the 2nd and 3rd respondents enforcing down-gradation is irregular and arbitrary.
ix) Local authorities have not collected statistics as envisioned in the rules but instead, formed a committee and based on its report, action to downgrade has been initiated, which is a clear violation of relevant establishment review rules.
x) The ulterior motive was to downgrade Hyderabad GPO, an operative unit, from Group A to Group B status and use the Group A post in the 2nd or 3rd respondent office, which de facto are administrative units, thereby going against the very policy of the respondents to strengthen operative units on priority basis vis-à-vis administrative units.
xi) Compromising the independent status of Hyderabad GPO by down-gradation and thereby adversely impacting public service as well as staff morale.
5. Contesting the claims made, the Ld. Respondents’ counsel argued that establishment review is a policy matter and that in a similar issue this tribunal in the recent past after taking all the factors into consideration has not granted any relief. She sought time to obtain instructions on the points raised by the Ld. Applicant counsel.
6. After hearing both the counsel, we concur with the Ld. Respondents counsel in regard to the aspect of establishment review being a policy matter. However, the challenge made by the applicants is in regard to applying the adhoc establishment norms on various grounds like competency, procedural irregularities, using untested establishment review module, selectivity, public interest etc which need to be looked into closely within the frame work of rules. Hon’ble Apex Court has time and again observed that rules cannot be curbed or snubbed. It is not out of place to adduce that a policy is implemented by framing relevant rules and it is these which are to be followed by the respondents. The challenge in this OA is very much against not following the said Rules. In the previous OA referred to by the Ld. Respondents’ counsel, the challenge was in regard to transfer of officials but in the present case the very foundation of the transfer i.e. the establishment review and the consequences thereof are under challenge on various grounds listed above.”
The interim order was a direction to the respondents to not to interfere with the Group A status of Hyderabad GPO. The interim order was thereafter extended from time to time based on the submissions of both the parties. Despite the Tribunal order of 3.7.2020 respondents have gone ahead and issued the down gradation memo of Hyderabad GPO on 16.7.2020 violating the interim order, which tantamount to contempt of court. The Ld. Counsel for the applicants has submitted that the respondents are habitual contemnors and they have no respect for court orders. A court order, right or wrong, has to be complied or contested in the superior judicial fora for seeking appropriate relief. In the instant case, there is no stay of the interim order by the Hon’ble High Court as on 16.7.2020.
Respondents without giving any reasons in the reply statement for issue of the memo in question contrary to the Tribunal order, have submitted that they would implement the cited memo subject to the finalization of the OA, as if they have been generous enough to grant a concession to the Tribunal. The question is why at all a memo was issued contravening the Tribunal order, for which we find no answer. The submission of the respondents that they have not implemented the memo is unacceptable, since an executive cannot sit on appeal over a judicial order. The very issue of the down gradation memo cited is inappropriate attracting the provisions of the Contempt of Court. It is time that R-1 evolves a training program exclusively for officers from the JAG level and above, who approve the affidavits, at Rafiq Ahmed Kidwai National Postal Academy (RAKNPA), Ghaziabad on legal issues, so that their point of view is properly reflected and due care is taken for being careful in implementing the orders of the court. This suggestion we are giving because we see a point in the submission of the Ld. Applicants’ Counsel and our experience too has been sadly so. Often, the Tribunal had to chide the respondents to comply with the Tribunal orders. Our concern is that, justice should prevail and all parties have to work in this direction. While being on the subject, it would be beneficial to quote the observations of the Hon’ble Supreme Court in Director of Education v. Ved Prakash Joshi,(2005) 6 SCC 98, in regard to the necessity to implement the court order, as under:
The court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party who is alleged to have committed default in complying with the directions in the judgment or order..... Right or wrong the order has to be obeyed. Flouting an order of the court would render the party liable for contempt. (Emphasis supplied) Referring to the above case, the Apex Court has stated in its judgment in
Bihar Finance Service House Construction Coop. Society Ltd. v. Gautam
Goswami, (2008) 5 SCC 339,
32. While exercising the said jurisdiction this Court does not intend to reopen the issues which could have been raised in the original proceeding nor shall it embark upon other questions including the plea of equities which could fall for consideration only in the original proceedings. The court is not concerned with as to whether the original order was right or wrong. The court must not take a different view or traverse beyond the same. It cannot ordinarily give an additional direction or delete a direction issued. In short, it will not do anything which would amount to exercise of its review jurisdiction.
In view of the above observation of the Hon’ble Apex Court the respondents are liable to be prosecuted for Contempt of the Court suo motu. However, we do not wish to go that far at this juncture, but to direct R-1 to take necessary action in issuing proper guidelines to those down below for ensuring that the Tribunal orders are respected, properly understood and acted upon without fail, leaving no room for being hauled over the coals for contempt. The memo so issued, be marked to the Registrar of the Tribunal and the representing Ld. Sr. Respondent counsel for reference and record. Thus, as there has been a clear violation of the interim order of the Tribunal by issue of R-1 letter dated 16.7.2020, it calls for deprecation of the same, with all the force English language can command. We hope and trust that R-1 will take proper and necessary steps to ensure that the same is not repeated in the future.
We are also constrained to observe that the respondents in the MA 317/2020 have attributed certain uncalled for remarks to the Tribunal by stating as under:
Para –i -- page 11 – “Hon’ble CAT at Para 4 (vi) & (vii) of the Interim Order dt. 03.07.2020 has observed that establishment adhoc norms were not being applied to any other post offices in India.”
Para – J – page 12- “Hon’ble CAT at para 4 (viii) & (ix) of the Interim Order dt. 03.07.2020 has observed that the down gradation was enforced irregularly without approval of the 1st respondent.”
Para –k – Page -12- “Hon’ble CAT at para 4 (x) of the Interim Order dt. 03.07.2020 has observed that the down gradation of GPO was done with ulterior motive.”
Para- l --Page 12 – “Hon’ble CAT at para 4 (xi) of the Interim Order dt. 03.07.2020 has observed that the down gradation of Hyd-GPO adversely effects public service/staff morale.”
It appears that the respondents have not read the interim order carefully.
The relevant para reads as under:
“This OA is filed by the National Association of Postal Employees and two others in a representative capacity with respect to down gradation of HydGPO from Group A to Group B status and consequent fall out of transfer of officials working in Hyd-GPO. Ld. Counsel for the applicants argued at length, which are capsulated here under:
i) The establishment review module of Core System Integrator (CSI) software (s/w) is still under testing as per 1st respondent letter dated 24.5.2019. An untested s/w module cannot be the basis for establishment review.
ii) Down-gradation based on the work study of 20 Head Post Offices is against the rule which prescribes collecting statistics and conducting a work study in 25% of 810 Head Post offices/General Post offices i.e. approximately 200 post offices, with proper urban/rural mix and thereupon, after taking the views of the stake holders, respondents should undertake down gradation.
iii) Staff inspection unit norms which are statutory in nature have been flagrantly violated.
iv) Time factors for 16 items of work listed at Annexure X of the OA have not been reckoned while stipulating the adhoc norms. Hence, the norms lack both qualitative and quantitative validity.
v) Huge variations in time allotted for each item of work and the actual time taken makes it lucid that the adhoc norms lack rudimentary reliability.
vi) Surprisingly, the adhoc norms are not being applied to any other post office among the 1,54,898 post offices functioning in the country but selectively to Hyderabad GPO.
vii) Applying the adhoc norms to Hyderabad GPO and not to its constituent Sub Post Offices, which together form a core accounting unit, would give an incorrect picture i.r.o. the aspect of surpluses or deficiency of staff. Without making such an exercise, declaring 45 posts surplus and initiating action to transfer staff from GPO to SOs, as per impugned orders enclosed, is premature and authentically invalid. More so, in the context of there being 38 vacancies in Hyderabad GPO and cadre restructuring of this office under adjudication by courts.
viii) Without the approval of the 1st respondent, who is the competent authority, the 2nd and 3rd respondents enforcing down-gradation is irregular and arbitrary.
ix) Local authorities have not collected statistics as envisioned in the rules but instead, formed a committee and based on its report, action to downgrade has been initiated, which is a clear violation of relevant establishment review rules.
x) The ulterior motive was to downgrade Hyderabad GPO, an operative unit, from Group A to Group B status and use the Group A post in the 2nd or 3rd respondent office, which de facto are administrative units, thereby going against the very policy of the respondents to strengthen operative units on priority basis vis-à-vis administrative units.
xi) Compromising the independent status of Hyderabad GPO by down-gradation and thereby adversely impacting public service as well as staff morale.”
The observations attributed to the Tribunal were actually the submissions of the Ld. Applicants’ counsel from paras (i) to (xi) of the interim order and not that of the Tribunal.
Respondents being model employers need to be cautious in filing affidavits before the tribunal by referring to correct facts. Ld. Sr. Standing Counsel for the Respondents could have guided the respondents to avoid stating what is not correct. Judicial discipline of stating the true facts applies to both the parties. Mistakes of the nature in question give an impression that there was serious lack of application of mind in drafting the affidavits. We hope that due note of the same shall be taken and ensure no recurrence.
IX Role of Trade Unions
The interesting aspect of the dispute is that the matter under dispute was taken up by the Trade Unions of the respondents’ organization, raising serious concerns about the entire proposal. Respondents claim that the Trade unions are precluded from taking up matters relating to establishment matters. In regard to the submission of the respondents, we would like to recall that as per the Joint Consultative Machinery Brochure published by Govt. of India, the Scheme for joint consultation with the organizations of Government servants on the pattern of the Whitely Machinery in U.K. was recommended by the Second Pay Commission (1959). After working out the details in consultation with the leaders of the employees, the Scheme was introduced in 1966. The Scheme is voluntary covering civil regular employees of the Central Govt. other than Class I/II services/police personnel etc. Government and the Staff Associations/Unions participating in the Scheme are required to subscribe to a Declaration of Joint Intent, which, inter alia, provides for abjugation of agitational methods by the Staff Unions/Associations for redressal of their grievances. The objective of the scheme was to promote harmonious relations and of securing the greatest measure of cooperation between the Government, in its capacity as employer, and the general body of its employees in matters of common concern, and with the object of increasing the efficiency of public service.
Importantly, the scope of the Joint Councils includes all matters relating to conditions of service and work, welfare of employees and improvement of efficiency and standards of work, provided, however, that (i) in regard to matters of recruitment, promotion and discipline, consultation is limited to matters of general principles only, and (ii) individual cases are not considered. While the National Council deals only with matters affecting Central Government employees generally, such as pay of common categories of staff, allowances, etc., the Departmental Council deals with matters affecting only the employees in the Ministries/Departments concerned. The Office/Regional Councils deal with regional or local issues only.
Hence, as a matter of policy, Govt. of India has desired that the recognized Trade unions be associated in taking decisions in relation to conditions of service and work, improving efficiency and in particular, standards of work, the aspect that is under dispute in the OA. Respondents as is seen from material papers placed on the record, have not consulted the JCM before proceeding with laying down ACSI norms, in accordance with the GOI policy. The intrinsic reason for formation of JCM was to improve efficiency in public service and of all the Central Govt. departments. The JCM is appositely relevant to Postal Department, which is essentially a labour oriented service department. Therefore, not consulting the JCM, formed on the recommendations of the 2nd Pay Commission as a policy measure, has denuded the opportunity to the respondents to garner the views of the staff side, who work at the field level and have firsthand experience of the happenings on the ground. Their inputs based on practical experience would have helped in taking a balanced view in setting up standards of work, an issue of common concern for both the parties. Indeed, DOPT vide Memo No.9/13/2000-JCA, dated 12.10.2001, extracted hereunder, has adduced that the forum of JCM be effectively used to resolve staff demands/ grievances and to reduce filing of cases before the Administrative Tribunal. Had the respondents effectively used the tool of JCM, perhaps the dispute could have been mutually resolved in the JCM.
Sub:- Effective use of JCM scheme.
A negotiation machinery for Central Government employees was introduced in 1966 for setting up of Joint Councils at the National, Departmental and Local levels. Over the years a large number of issues have been resolved through the mechanism of the Joint Consultative Machinery and Compulsory Arbitration.
2. In the 68th Report of Department related Parliamentary Committee on Home Affairs on demands for grants (2000-2001), the Committee had interalia expressed concern about the heavy pendency of cases before the Central Administrative Tribunals. In this context they recommended that effective use of JCM mechanism and Board of Arbitration be made for resolving grievances. This in turn is likely to bring down pendency of cases in CAT.
3. In view of the above, it is reiterated that effective use of JCM forum may be made for resolution of demands / grievances of staff side, within the ambit of rules prescribed for functioning of the JCM machinery.
Respondents have cited the Postal Directorate letter dated 12.7.1979 & 31.3.1965 to claim that the Unions are debarred from taking up establishment issues. This contention does not stand to reason because the decision to down grade does affect the conditions of work, work efficiency and public service. Moreover, GOI has taken a conscious policy decision to involve the JCM in matters while evaluating the standards of work. To top it, DOPT the nodal Ministry on personnel matters has in 2001 and 2002 emphasized the need to take decisions pertaining to staff grievances in consultation with the JCM as at above and also reduce the filing of cases before the Tribunal, in pursuance of Parliamentary Committee observation. The application of ACSI norms will have far reaching impact on the functional efficiency of the GPOs/HPOs in the country operating in different Geo-socio-cultural backgrounds, requiring tailoring of appropriate work standards and hence, taking the stakeholders on board using the medium of JCM would have been a prudent administrative decision in congruence with the Govt. policy. Therefore, the respondents’ contention that the Unions cannot take up establishment issues, being contrary to Govt. Policy and the later instructions of the nodal Ministry, is not maintainable. It would not be wide off the mark, to acclaim that respondents have violated the GOI policy on consultation with the JCM in regard to service matters of intrinsic relevance.
X. Adhocism:
In a matter of vital importance, both to the respondents organization and public in general, adopting the methodology of adhocism in decision making process for a long period of time is harmful, is one another submission of the applicants. Factual matrix of the case indicates that the establishment norms circulated by Postal Directorate are adhoc and incomplete, not covering the entire ambit of operational functioning of the HPOs/GPOs. R-1 has circulated the adhoc norms on 24.5.2019 by studying a miniscule population of 20 HPOs/GPOs from the total population of 834 units. Some of the branches of the HPOs/GPOs, as admitted by the respondents, have not been covered by the ACSI norms. Resultantly, local respondents decided to use a cocktail of available old norms and some locally evolved norms by the AAO. More than 2 years have elapsed and the ACSI adhoc norms are understood to have been used, as the respondents have not pleaded introduction of regular norms, in any of their averments/submissions. The HPOs/GPOs are the major post offices in the postal network and on them, the sub-post offices and Branch post offices depend for rendering numerous public services. The postal network has 1,54,965 (Annexure A-XII) post offices, with 834 HPOs/GPOs, 24,776 sub-post office and 1,29,380 branch post offices. From the gargantuan network we can understand that 1,54,131 post offices depend on the 834 HPOs/GPOs for ensuring that the public members have access to postal services, all over the country. The figural support has been taken to drive home the point the importance of these 834 HPOs/GPOs in maintaining the postal services from Kashmir to Kanyakumari. In short, they constitute the very foundation of the Postal network and any review of their status using unreliable and half complete adhoc norms will be detrimental to the organization and more particularly, the ability to render public service. Hyderabad–GPO in particular, because it is not only the embodiment of public service, but also the major revenue spinner for Telangana Postal Circle and is generally the harbinger of many a new service in the Circle/Country, as claimed by the applicants and not repudiated by the respondents. Any diminishment of their status, under the garb of computerization without making a comprehensive study as per prescribed procedure will be dangerous to the very survival of a century old institution touching the life of mostly the common man, for whom postal service is vital. The postal organization has a predominant rural presence with 1,39,067 (88.57%) post offices in rural areas and 15,898 (11.43%) (Annexure A-XII) in urban areas. To this day, rural populace still trust and depend heavily on the postal network. Thus, changing the status of the HPOs/GPOs in a short sighted manner using half- baked, undependable and piecemeal adhoc norms will have a far reaching adverse impact in serving the rural public. India lives in the rural villages and hence, the need to remain focussed to render essential public service in this sector, cannot be lost sight of by the respondents.
In addition, adhoc norms are of transient nature and deployed in case of urgency for a short period and not for many years, obliterating the very meaning of the word ‘adhoc’. Albeit, not in the context of setting up establishment norms, but while dealing with adhoc appointments/ Promotion, Hon’ble Supreme court has deplored the practice of adhoc decisions in Suraj Parkash Gupta and others Vs. State of J&K and others reported as (2000) 7 Supreme Court Cases 561. Further, the Hon’ble Jammu & Kashmir High Court - Srinagar Bench in Ghulam
Hassan Rather vs Union Territory of J&K & Anr, on 4 August, 2020 in WP (C) No. 946/2020 (O & M) has observed that adhocism has generated avoidable litigation and it is the root cause for demoralizing the employees.
The relevant para is extracted hereunder:
This course adopted by the different departments is generating avoidable litigation as many of the employees approach the court raising the plea that they are senior to the person who has been given charge of some higher post. Not only this, such a course also demoralizes other employees in the department. This is resulting in adhocism in the working of different departments of the government.
The observation of the Hon’ble J&K High Court has turned out to be a Gospel truth with the decision of respondents to use adhoc norms being aggressively challenged in the instant OA. Using adhoc norms by the respondents for years is a best example of practicing adhocism, which has been denounced by the Hon’ble J&K High Court as at above. Another strong remark of the Hon’ble Supreme Court in regard to adhoc decisions can be seen in the verdict in Sanjay Singh vs The State Of Uttar Pradesh in CIVIL APPEAL NO.8300 OF 2016 on 26 August, 2020, as under:
The present dispute is a reflection of the mess in the education system where starting from the primary level to the highest level adhocism seems to prevail in the appointment of teachers and lecturers in turn having consequences for the students who need to benefit from the best education process.
Similarly, the Constitution Bench of the Hon’ble Supreme Court in Rudra Kumar Sain v. Union of India, (2000) 8 SCC 25, has observed that continuing an employee in an adhoc position for long is not advisable. Again in Ajay Kumar Bhuyan v. State of Orissa, (2003) 1 SCC 707, Hon’ble Supreme Court has observed that the culture of adhocism has to be denounced.
The spirit of the Hon’ble Supreme Court judgments cited supra, which has to be imbued, made in the context of adhoc appointments/promotions is that adhoc decisions are despicable, in any domain of the administration. By telescoping the theme of the cited judgments to the case on hand, respondents clinging on to the incomplete and capricious adhoc norms for years together and using them irrationally to strike at the justifiably earned Group ‘A’ status of Hyd-GPO by dint of expansion of services over the years, as seen from the latest revenue figures, given herein below, goes against the spirit of the Hon’ble Supreme Court judgments referred to. Hence lack legal respectability.
FINANCLE TRANSACTIONS REPORTS
(JUNE, JULY, AUG 2021)
| Jun-21 | Jul-21 | Aug-21 |
TOTAL AMT OF DEPOSIT |
70.61 crores |
69.02 crores |
63.39 croes |
TOTAL AMT OF WDWLS |
227.78 crores |
296.92 crores |
206.34 croes |
The average monthly turnover, of Hyd-GPO is around 300 crores over 3 months and the projected average annual turnover would be approximately around Rs.3600 crores. To handle such a large turnover, senior level officers from Group ‘A’ grade is the minimum requirement. With the postal organization adding new services year on year, the turnover will increase and not slide. Even during the Corona period, the postal organization flourished by implementing the trapezoid model of National road network to deliver medicines and other essential commodities all over the country by using its Mail Motor service assets extensively, when other transport companies downed their shutters. Hats off to such public organization wedded to public cause when the need arose. Be it winter or summer, India Post has an ever green demand. How to tap the unending demand for postal services emerging from the modern society is the look out of the management of the respondents organization. Coming back to the relevance and importance Hyderabad GPO in regard to its status, we are unable to comprehend as to how the respondents could take a sweeping decision to downgrade a Rs.3600 crore annual turnover institution, from Group ‘A’ to Group ‘B’, contrary to ground reality and admittedly by adopting ACSI norms riddled with grave deficiencies as pointed in the above paragraphs. The applicants have submitted that there is abundant scope to introduce many more services in public interest and if done, the work will increase. The vision and mission of any organization is to look towards growth and aim to move the Hyd-GPO from Group A to JAG status considering its tremendous growth potential, but not relegate it to a Group B status, by means lacking legal authenticity.
Coming back to aspect of adhocism, it is high time that the respondents decide to usher in regular norms which are reliable and validated by the Standard Inspection Unit (for short SIU) under the control of the Ministry of Finance, rather than the Internal Work Study unit of the respondents organization. Bias in internal work study cannot be ruled out as the dominant urge and pressure to prove that computerization has ushered in massive savings, is but obvious, in the context of the stupendous efforts made by the respondents in pumping thousands of crores over the years, as made evident from the recent annual progress reports of the respondents, to transform the respondents organization into a technology driven one. Undoubtedly, computerization does bring in manpower savings but it has to be demonstrated by means and processes, which are in rhythm with rules/ regulations. Therefore, the study by an external agency like the SIU of MOF, the nodal wing of Govt. of India in pioneering work study, will make the results fair and acceptable. Ld. Counsel for the applicants has submitted that the respondents organization does not have a regular professional Internal work study team or a full-fledged wing to deal with the instant issue of profound relevance and that it is stitched up when warranted, again in an adhoc manner and therefore the skewed results. The setting up of the internal work study is just an eye wash to show to the stakeholders that a committee has worked out the ACSI norms and no more, is one another uncompromising submission of the Ld. Counsel for the applicants. We do not want to comment upon the same, but leave it to the respondents to introspect and take apposite measures, if need be as are required, to improve the scenario related to work standards. Nevertheless, we make it clear that in view of the Hon’ble Supreme Court observations cited supra, we are not appreciative of the respondents resorting to adhocism in evolving work norms without ushering in regular norms for years, and that too in a haphazard manner by denuding the rules and prescribed procedures. More particularly, the respondents need to evolve regular norms as they have claimed that the computerization of the post offices has been accomplished in all its grandeur over the last few decades. To conclude, adhocism is no solution to resolve sensitive issues revolving around establishment matters linked to public service. Time has come for the respondents to set aside the adhoc CSI incomplete norms and replace them with regular norms.
XI. LSG Cadre Restructuring:
Another contention of pertinent relevance is that the LSG cadre restructuring, a major policy initiative of the respondents, was not implemented as per policy before deciding on down gradation of Hyd-GPO. True, respondents have gone in for large scale restructuring by creating Lower Selection/ Higher Selection grade-I/II posts in lieu of PA posts. The Tribunal had occasion to adjudicate disputes in regard to the cadre restructuring in OA Nos.515/2018 & 517/2018 batch, vide order dt. 19.08.2020 and OA Nos. 516/2018 & batch vide order dt. 04.09.2020. It is reported that the said judgment of the Tribunal has been implemented and four postal employees, aggrieved by the implementation of the order of the Tribunal by the respondents, filed OA 177/2021. No interim order has been issued in the said OA. Hence, the decks are cleared for implementation for cadre restructuring in Hyd-GPO. It has to be implemented sooner or later and if implemented, there would be further reduction of PA posts in Hyderabad GPO. The contention of the applicants is that the sanctioned strength of Hyd –GPO is 156, as per details furnished by them.
“4.10 The sanctioned strength of the GPO is furnished hereunder:
S.No | Designation | No. Sanctioned |
1. | Chief Post Master | 1 |
2. | HSG-I (NFG) | 1 |
3. | HSG-I | 5 |
4. | HSG-II | 14 |
5. | LSG | 2 |
6. | Postal Assts. | 134 |
| Total | 156 |
From the total sanctioned strength of 156, the PA posts are 134. Among the 134, 11 of them are on deputation, 4 on long leave, 8 are officiating as APMs (Asst. Post Masters), 1 deputed to Army Postal Service and 14 are vacant, taking the total deficit in absolute terms in the Postal Assistant cadre to 38 and in percentage terms, it is 28%. In response, respondents aver that due to review using adhoc ACSI norms, the justified strength in PA cadre is 91 against sanctioned strength of 136 (134 + 2 LSG) rendering 45 PA posts surplus. The working strength of PA cadre being 122, the surplus identified official numbering 31 (122-91= 31) were proposed to be attached to other divisions in the City Region as per the orders of R-3 referred to, ostensibly to economize establishment expenditure. The averment of the respondents suffers from the basic flaws as pointed out in the previous paras relating to the efficacy of sample size, incompetent authority fixing the work norms and applying old norms in the absence of the ACSI norms for certain branches of the HPOs.
The additional inherent deficiency is not implementing cadre restructuring in Hyd GPO, under the garb of a non-existent litigation. Restructuring is an important policy initiative of the respondents providing for promotions of PAs to the LSG/HSG-I & II cadre across the board. Denying the same to the PAs of the Hyd-GPO, but for others in the Circle, is discriminatory by imagining an unreal litigation. It is not out of place to point out that the respondents were not careful in acting against the interim order of the Tribunal dated 3.7.2020, which is real, and comically, they imagine an unreal pending litigation in regard to LSG restructuring with the Tribunal, which certainly is untrue. Leave apart the comedy, if Cadre restructuring is implemented, which has to be implemented as per their own policy, the deficiency will mount steeply with the depletion of PA posts and the newly created LSG/HSG posts have to be differently calibrated on the work study front. Hence, respondents overlooking the need to implement cadre restructuring in Hyd-GPO and hastily proceeding with the down gradation is contrary with the respondents’ policy on restructuring and more so, violating indispensable norms of work study. Whenever there are more than two policies to be implemented in an organization, they are to be implemented in a manner complimenting each other and not at the cost of exclusion of one over the other. Organisational Management portends postulation of policies, which are mutually inclusive. Even in the case on the hand, LSG restructuring and establishment review are mutually inclusive and one cannot be taken up by excluding the other, whatever reasons the respondents may like to propound.
Any action of the local respondents which does not subscribe to the well laid down policies that are interrelated and associated rules, will stand invalidated. Legally speaking decisions that are incongruent with the policies and allied rules of the respondents’ organization are to be curbed and snubbed as per the Hon’ble Supreme Court observations cited at para 7(iv) supra.
XII. GPOs vs. HPOs:
A correlated twin contention of the applicants to the above, is that the GPOs and HPOs are different in their working style and therefore, results of study of HPOs in respect of transactional time cannot be applied to GPOs. Additionally, respondents have unfairly singled out Hyd-GPO for application of ACSI norms leaving the rest of the GPOs in the country. Taking the later contention first, applicants vociferously state that it is discriminatory to choose Hyd-GPO for down-gradation by applying ACSI norms and not any other GPO, although Ppostal Directorate letter was circulated Nation-wide. Even in the Circle, the review on the basis of ACSI norms was not applied to other Post offices. Respondents lukewarm response was that Hyd-GPO was taken up because its annual review for 2019 was due. We do not understand as to why the respondents are fighting shy to come clean as to whether other GPOs in the country were taken up for similar review under ACSI norms. Offering no response to the specific contention of the applicants would imply implicit admission. Local respondents (R-2 to R-4) did adduce that 3 local sub Post offices viz Vaishali Nagar, Boddupal and LB Nagar, which are relatively small size post offices, were subjected to review using adhoc ACSI norms and found justification for 4 PAs, thereby dispelling the contention of the applicants that no other office in the Circle was taken up for review. Nevertheless, having noticed many inadequacies in setting up the adhoc ACSI norms, as was brought out in the preceding paras, the application of defective norms to the 3 Sub Offices is the moot point which the respondents need to introspect and decide. Returning to the argument of targeting Hyd-GPO for application of ACSI norms, the stoic silence of the respondents in not responding to an unambiguous contention of non- application to other GPOs is surprising to note. If no other GPO was taken up for study then the approach of the respondents to mark Hyd-GPO and order its down gradation on known fault lines brought about supra, would be discriminative, to say the least.
Now coming to the second aspect, of GPO and HPO being different and therefore the norms have to be different, respondents have explained that the nature of functions are the same and therefore there can be no variance in the work norms. Way back in the 18th century, the Head post offices in UK that were providing the total range of telecom services along with offering postal services, were nomenclatured as General Post Offices to distinguish them from other Head Post offices. India Post being a relic of the British legacy, the same pattern could have been replicated. History apart, respondents’ point of view is that, if for example Savings Bank wing is considered, rules and the processes are the same across all post offices and therefore, the work standard has to be necessarily the same, be it HPO or GPO. We are of the view that it is not as simple as is made out to be. Post office is an institution, which provides an extensive range of services like banking, insurance, retailing, philately, mail receipt and delivery, Business development, Promotional activities, designing special products and marketing them exclusively etc. Taking the case of savings bank, in GPOs there are several counters dedicated for Savings Bank (SB), Recurring Deposit (RD), Monthly Income Schemes (MIS) etc. A gingerly walk into the heritage Hyd-GPO would reveal this aspect. Same is the case in other GPOs because of the large number of customers who visit them. This is a situational requirement which cannot be denied. However, in case of Head Post offices, the claim of the Ld. Counsel for the applicants is that there are at the most 1 to 3 counters to provide services related to SB, RD, MIS etc. As a result of less number of counters, unrelated services like banking and insurance are clubbed, and in a few other cases retailing gets associated with stamp sales and so on. The lower density of customers would justify less number of counters and therefore, different services are combined and offered. In other words, the counter clerk in the HPO is a jack of all arts but master of none. In contrast, the counter clerk in GPO is a master specialist since he offers a single category of service as long as he continues in the said seat. To offer different service by the same person depending on the customer need calls for in depth knowledge of the different services to be provided. Hence, the stress would be relatively higher when different services are to be provided at a single counter unlike offering a single category of service. Stress is related to time. The greater the stress, greater is the mental sag, and hence more the consumption of time to perform a function. These are common psychological aspects that we come across in daily life. To elaborate, the short point is that, in GPOs there is specialization in providing the services and generalization in HPOs. Consequently, when an employee deals with the same work again and again, he becomes a specialist in SB or RD or MIS etc and would take less time to perform the operations. He need not rack his brain since the work is routine and he perfects it. Whereas in a HPO, with two or more dissimilar services having been combined would make the counter clerk to first understand the requirement of the customer and then ruminate over the approach for providing the service sought for. The cognitive decision that has to be taken would necessarily require more time because of the requirement of the switch over for providing services which are disparate requiring different rules and regulations to be followed. Therefore, it cannot be said that the time taken in completing similar transactions in HPOs and GPOs would be the same, as sweepingly contended by the respondents. There is a definite and distinct variance. When we state so, we are reminded of the commencement of mass production of cars by General Motors, USA, by ushering in the concept of assembly line production wherein each activity has been segregated and specialization accomplished. Consequently, the rate of production has increased multi-fold facilitating mass production and bringing down the cost of the cars. Similarly, in GPOs with specialization in providing service, the time factor would be less and in HPOs with generalization of services provided, the time consumed per transaction would invariably be higher, assuming experience, qualification etc. of the counter clerks being the same.
Further, the largeness or the smallness of an organization has its own impact in regard to working efficiency. A large organization like Hyd- GPO presently led by a Group ‘A’ officer, is empowered to settle most of the claims and hence the transaction time, which is the time interval between the initiation of the transaction and its finalization, would get reduced. The same is not the case in respect of HPO because the claim has to be sent to Divisional office which is generally located in a different premise and processed at different levels to close the initiated transaction. As a result, the transactional time would be more. Thus, on two preliminary factors itself, we find that there is difference. A deeper analysis will throw up many more variations, as for example, the GPOs because of their unique location, size and importance are given special functions like Hyd-GPO accepting contribution of GDS staff from all over the country as contended by the applicants, which definitely calls for a coefficient of consideration. Applicants strongly contend that this aspect of profound importance has been blatantly ignored and the respondents did not rebut the same, giving room for a probable conclusion that time factors of many services to HydGPO have been given a clean ‘go-by’. Thus, to claim that the GPOs and HPOs are equally placed in respect of transactional time by the respondents is not in the realm of reason. Each has its unique disposition, calling for a proper and intense study but not by adopting the principle of adhocism without contemplating over the relevant issues requiring contemplative consideration. We thus find a clear fallacy in respondents submission.
Moreover, we are perplexed to note as to what prevented the respondents to come out with information as to the application of ACSI norms for other GPOs in the country. By offering no remarks on this contention, respondents have made them susceptible to the allegation that Hyd-GPO has been singled out for application of ACSI norms. Applying the norms only to Hyd-GPO and proposing to down grade it, is discriminatory. Decisions of the respondents, which are discriminatory are liable to be struck down, as observed by the Hon’ble Apex Court in Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489:
Discriminatory action of the Government is liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.
Having gone through the pleadings in depth, we gain the impression, that the local respondents appear to have been enthusiastic to act on the newly evolved ACSI norms, which is understandable in an administrative set up, but the deep-down aspect that has been glossed over is that enthusiasm has to be tempered with responsibility to verify as to whether all is well with the ACSI norms before making a move that is likely to have adverse civil consequences. What is a civil consequence has been answered by Hon’ble Apex Court in Mohinder Singh Gill & Ors. v. The Chief Election Commissioner, New Delhi & Ors., [1978] 2 SCR 272 as under:
Hon’ble Justice Krishna Iyer, J. speaking for the Constitution Bench observed:
"But what is a civil consequence, let us ask ourselves, bypassing verbal booby-traps? "Civil consequences" undoubtedly cover infraction of not merely property or personal rights out of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence."
The proposed down gradation of Hyd-GPO will have an adverse civil consequence for the assumed surplus staff members, since they have been directed to opt out of GPO, without following the rules and policies laid in regard to the issue on hand. Coming to the general public, the scope to be served effectively has been adversely affected due to down gradation for reasons expounded in above paras. Therefore, the proposal of down gradation has far reaching adverse civil consequences, which have not been properly weighed by the respondents. Above all, a decision dealing with public interest has to be within the contours of the Hon’ble Apex Court judgments cited supra on the subject.
We, therefore, have no hesitation to observe that the GPOs and HPOs are distinctively placed in regard to the transactional time and singling out Hyd-GPO for applying ACSI norms, was because of local respondents enthusiasm over running the sense of responsibility, leading to adverse civil consequences, which is not maintainable under law.
XIII. Importance of Disposal of Representations:
Down gradation though found not maintainable under rules and law, respondents without disposing the representations submitted by the recognized Trade Unions on 7.4.2020, 14.5.2020 & 11.05.2020 (Annexures A-VI, VI & VII) proceeded with the proposal. The dispute erupted with R-2 forwarding the proposal to R-1 for down-gradation of Hyd-GPO on
27.4.2020 and bloomed with receipt of the approval from R-1 on 16.7.2020. R-3 issued the memo attaching surplus PA posts to different city postal divisions on 6.5.2020. R-4 accordingly initiated action vide letters dated 9.5.2020, 26.5.2020 & 29.5.2020 directing the identified officials found surplus to let known their options by 14.5.2020, 21.5.2020 & 27.05.2020 and immediately, as per letters cited. Unions wrote on 7.4.2020, 11.05.2020 & 14.5.2020 and yet respondents without replying to the unions have issued orders dated 6.5.2020, 09.05.2020, 26.5.2020 & 29.5.2020 setting into motion the attachment of alleged surplus staff to the different city postal divisions. The Unions are recognized by the Govt. of India under the Trade Union Act of 1926 and one among the many roles they play, is to voice the grievance of the staff when administrative decisions are taken without adhering to statutory rules and policies of the respondents organization. Ld. Counsel for the applicants has submitted that there are umpteen number of instructions from R-1 to ensure that the representations of the Trade Unions in regard to service matters are replied promptly. A typical example of such instruction can be seen in letter No.SR/5-2/5/20 dated 18th Aug’ 21 of the office of the CPMG, Tamil Nadu Circle, Chennai wherein, they have cited the Postal Directorate Letter No.31-3-/66-SR dated 24th Nov. 1966 stressing upon the importance of responding to the Union letters. The relevant paragraph from the letter of the Tamil Nadu Postal Circle is extracted hereunder:
“It has been intimated by the Circle Secretary, FNPO – NUPE PM & MTS Postmen & MTS that no reply was given to the letters submitted by their Union Secretaries at Divisional/ Regional/ Circle level.
As per Directorate letter No. 31-3/66-SR dated 24th Nov 1966, the administration will address replies to communications from the Service Associations to the General Secretaries and to the Head Quarters address of the local Associations concerned with the only exception of DO letters from the Presidents. Replies to such DO letters may be sent to the Presidents but this will also be invariably addressed to the Head Quarters address of the Service Associations unless the sender of the reply is of the opinion that there are special reasons or circumstances for sending reply direct to the address of the Presidents.
I am directed to request to follow the above mentioned Directorate letter for giving reply to the Union letters submitted by the Secretaries of the recognized Service Unions/ Associations at Divisional/ Regional/ Circle level.”
The need and importance of Trade unions is well rooted in Article 19 of the Constitution. Article 19(1)(c) of the Constitution of India, which envisages Fundamental Right to freedom of speech and expression also guarantees the country’s citizens the right “to form associations or unions” including trade unions. The Hon’ble Supreme Court has held that the right guaranteed in Article 19(1) (c) also includes the right to join an Association or Union. In the case of All India Bank Employees’ Association v. N.I. Tribunal AIR 1962 SC 171, Hon’ble Apex Court has laid down the rights of the members of the Trade Unions that are encompassed within the fundamental right to freedom of expression and speech, i.e. Article 19(1)(c) and one of the rights stated is the right to discuss their problems and propagate their views. Against the law laid down, the respondents are incorrect to state that the Unions are prohibited from taking up establishment issues. Executive instructions issued by Postal Directorate dated 31.3.1965/12.7.1979 being contrary to legal principle laid down by the Hon’ble Apex Court cited supra, they are therefore of no assistance to the respondents.
Indeed, DOPT has communicated to all Ministries the need to dispose representations received as expeditiously as possible vide its memo No. 25134168-Estt.(A) dated 20.12.1968, the relevant portions of the same is extracted hereunder:
Representations from Government servants on service matters —
Treatment of Reference is invited to the Ministry of Home Affairs Office Memorandum No. 118/52-Ests. Dated the 30th April, 1952 on the subject mentioned above (copy enclosed for ready reference). It has been brought to the notice of the Ministry of Home Affairs that undue delay occurs very often in the disposal of representations from Government servants in regard 'to matters connected with the service rights or conditions which causes hardship to the individuals concerned.
2. The representations from 'Government servants on service matters may be broadly classified as follows :-
(1) Representations/ complaints regarding non-payment of
salary/allowances or other dues;
(2) Representations on other service matters;
(3) Representations against the orders of the immediate superior authority; and
(4) Appeals &petitions under statutory rules/ orders (e.g. Classification, Control & Appeal Rules/petition Instructions).
3. In regard to representations of the type mentioned at (1) and (2) above, if the individual has not received a reply thereto within a month of its submission, he could address, or ask for an interview with the next higher officer for redress of his grievances. Such superior officer should immediately send for the papers and take-such action as may be called for, without delay
4. Representations of the type mentioned at (3) above, would be made generally only in cases where there is no provision under the statutory, Jules or orders for making appeals or petitions. Such representations also should be dealt with as expeditiously as possible. The provisions of the preceding paragraph would apply to such representations also, but not to later representations made by 'the same Government servant on the same subject after his earlier representation has been disposed off appropriately.
5. In regard to the representations of the type mentioned at (4) above, although the relevant rules or orders do not prescribe a time limit for disposing of appeals and petitions by the competent authority, it should be ensured that all such appeals and petitions receive prompt attention and are disposed within a reasonable time, If it is anticipated that an appeal or a petition cannot be disposed of within a month of its submission, an acknowledgement or an interim reply should be sent to the individual within a month.
6. The instructions contained in paragraph 2 of this Ministry's Office Memorandum No. 118/52-Ests. Dated the 30th April, 1952, will stand modified to the extent indicated in the paragraphs 3, 4 and 5 above.”
The first representation was submitted on 7.4.2020 and till the date of filing the OA on 25.6.2020, without disposing the same, respondents went ahead with the decision to displace the surplus identified officials as per their orders cited supra, violating the DOPT order referred to above. Respondents’ contention that before they could respond to the representations the OA was filed is factually incorrect since representations were submitted before any decision was taken by the respondents and as per DOPT instruction, disposal of the representation was paramount before taking a decision on the matter. Respondents have thus acted against the nodal Ministry instructions in regard to the disposal of representations. Any action taken against rules is unlawful as was brought out in the paras supra. Therefore, decisions of the respondents dated 6.5.2020, 9.5.2020, 26.5.2020 & 29.5.2020 lack validity for not adhering to the DOPT instruction cited and for violating law relating to adherence of rules.
Furthermore, disposal of a representation will reveal the mind of the decision maker enabling the dispute resolution to proceed accordingly. By not disposing the representation, unions would be ignorant of the disposition of the respondents in regard to the issue raised and such an approach is desecration of the Principles of Natural Justice. Every administrative authority empowered to pass an order which is likely to adversely affect the interests of individuals is required to record reasons and communicate the same as per the recognized facets of rules of Natural Justice. If not done, the order passed against which a representation is pending, is vitiated. Non disposal of representation of the Trade Unions is therefore violative of Principles of Natural Justice. Our remarks are supported by the observation of the Hon’ble Supreme Court in G. Vallikumari v. Andhra Education Society,(2010) 2 SCC 497, as under :
The requirement of recording reasons by every quasi-judicial or even an administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the affected person is one of the recognised facets of the rules of natural justice and violation thereof has the effect of vitiating the order passed by the authority concerned.
In the instant case, R-3 went ahead in attaching the surplus identified posts to the City Postal Divisions on 6.5.2020 and R-4 in tandem mounted pressure on the surplus identified officials to submit their options by his missives dated 9.5.2020, 26.5.2020 & 29.5.2020 to opt for city postal divisions, without caring to reply to the representations of the unions dated 7.4.2020, 11.05.2020 & 14.5.2020. The orders of R-3 & R-4 are not backed by reasons justifying the decision taken. In particular, the order dated 6.5.2020 which is crucial, reads that based on Chief Post Master report, the decision was taken. What did the report state, its evaluation against existing rules and thereupon the sound reasons for attaching certain number of posts to city divisions are conspicuously absent in the order. Hence, decisions taken by the respondents to displace staff members as a consequence of proposed down gradation, without disposal of representations and issuing orders bereft of reasons are against rules and law, making them legally invalid.
XIV. Inconsistent stances by the Respondents:
Curiously, a close reading of the written submissions of the respondents indicates that respondents have taken different stands on the same issue while responding to the opposite party contentions. In the OA, it was contended by the applicants that the respondents, with an ulterior motive, have decided to reduce the status of Hyd-GPO from Group ‘A’ to Group ‘B’, in order to divert the Group ‘A’ post to the administrative office namely the City Regional Office, located at stone’s throw away from HydGPO. Respondents have denied the same. Operative offices directly offer public service and hence it is natural to give importance to them for filling up of vacant posts or creation of posts. Regional office is the second tier in the administrative hierarchy, the first one being the Divisional office. Therefore, the point made by the applicants was that starving the operative office of a Group ‘A’ post, though justified and redeploying it to the City Regional office is undermining public interest. We have verified the records and found that a proposal to this effect was under process vide respondents letter dated 27.04.2020 (Annexure A-II), which is as under:
“In Telangana Circle, Hyderabad Headquarters Region is having major revenue generating units (copy enclosed) and now the revenue generated for the last two Financial years furnished is furnished below:
Sl. No. | Financial Year | Circle Revenue | HQR Revenue | Share of HQR |
1 | 2018-19 | 1,80,79,96,369 | 1,44,42,17,955 | 79.87% |
2 | 2019-20 | 1,98,89,53,844 | 1,58,81,56,122 | 79.87% |
In view of the above, there is justification for an APMG in the status of Class-I in addition to the existing 2 Assistant Directors for exclusively supervision/ monitoring the BD activities.”
Understanding the implication of the applicants submission, it appears respondents have changed their stand, by stating that they would like to divert the Group A post to upgrade Khammam Postal Division from Group B to Group A. To this extent, the respondents stated in MA No. 317/2020 as under:
“There is also proposal to upgrade Khammam Postal Division from Group-B status to Group-A status by redeploying the Group A post within the Circle.”
This approach of the respondents is faulty on two grounds, primarily for being inconsistent in their decision making approach and secondarily Khammam Postal Divisional Office is again an administrative office like Hyderabad City region. The contention made by the applicants is that operative offices should not be deprived of justified posts at the cost of providing manpower to administrative offices. For a moment, though not admitted, presuming that the city regional office or the Khammam Divisional office required a Group ‘A’ post, it was incumbent upon the respondents to justify that these offices badly needed the post over HydGPO with facts and figures. The thrust of the arguments of the applicants/ Ld. Counsel for the applicants, that the operative offices are to be given priority in respect of establishment matters because of their direct interface with the public, has not been effectively countered by the respondents in their pleadings/submissions. We did not find any justification coming forth from the respondents except for making very general statements. We agree with the applicants that offices of first call for the public members have to be given precedence in filling/creation of posts. Besides, decisions by public authorities are to be consistent. The stand of the respondents has been mercurial. In the course of the adjudication of the dispute, it has been changing and is thus unfair. It amply indicates that respondents are not clear in their mind as to how to use the Group A post if found to be really surplus. Lack of clarity of mind in taking administrative decisions will result in arbitrary decisions that cannot be upheld under law. Inconsistency is like the ocean storm which may sink the ship of the respondents’ organization, if the rudder of consistency is not properly held, to be on course to the shore. Consistency in decision making is a virtue which is essential to be cultivated as observed by the Hon’ble Apex Court in Secy., State of Karnataka vs. K. Umadevi (2006) 4 SCC 1, at para 20, as under:
“Consistency is a virtue"
From the facts, we find the respondents were more inconsistent than being consistent in regard to prioritizing the priorities intertwined with public interest.
XV Policy Matter
The curtains on the dispute can be drawn only after the contention of the Ld. Senior Standing Counsel for respondents that the Tribunal cannot interfere in policy matters is properly answered. The defence albeit singular has immense legal significance. Before we get into the knitty-gritty of the contention, it would be beneficial to cite the key judgments, as under, of the Hon’ble Apex Court, in respect of policy matters:
a. BALCO Employees' Union (Regd.) v. Union of India, (2002) 2 SCC 333,
Unless the policy framed is absolutely capricious and, not being informed by any reason whatsoever, can be clearly held to be arbitrary and founded on mere ipse dixit of the executive functionaries thereby offending Article 14 of the Constitution or such policy offends other constitutional provisions or comes into conflict with any statutory provision, the Court cannot and should not outstep its limit and tinker with the policy decision of the executive functionary of the State.
b. CSIR & Ors. v. Ramesh Chandra Agrawal & Anr. in Civil Appeal No.1716 of 2004, wherein the Apex Court, held as under:
33. Indisputably, a policy decision is not beyond the pale of judicial review. But, the court must invalidate a policy on some legal principles. It can do so, inter alia, on the premise that it is wholly irrational and not otherwise.
c. Constitutional Bench judgment in Ashoka Kumar Thakur v. Union of India & Others, (2008) 6 SCC 1:
The Indian courts have scrupulously refrained from entering into the domain of policy determination or policy evaluation while exercising the power of judicial review. This Court has emphasised that it does not sit in appeal over a policy decision and does not substitute nor does it examine the wisdom of the policy choice. It interferes with policy decision only when it finds the policy to be palpably arbitrary, mala fide or discriminatory.
From the above judgments, it is evident that the policy decisions are not beyond the pale of Judicial review. However, the policy has to be invalidated on legal principles that the policy is reasonless, irrational, arbitrary, discriminatory, malafide, lack of application of mind etc. We have looked at the policy document of R-1, the competent authority, in laying down ACSI norms, by issuing the letter dated 24.5.2019. The said letter clearly states that after studying every branch of 20 HPOs, the ACSI norms have been prescribed. However, respondents R-2 to R-4 openly admit that for some of the branches of the HPOs the ACSI norms have not been prescribed. In other words, without studying all the branches the ACSI norms have been set up. It is like sending a soldier to the war front with a train of bullets for the machine gun but with the trigger being inoperable. If the soldier has to fire, the machine gun has to be fully operable and similarly, in the instant, case norms for all the branches of the HPOs have to be developed before issuing a direction to the subordinate formations for undertaking establishment review as per the new ACSI norms. Therefore, R-1 directing the subordinate formations to review establishment of HPOs, with incomplete norms is beyond the realm of reason and hence, irrational.
Besides, respondents have failed to reason out as to why the sample size has to be 20 and not any other number. As brought out in the above deliberations, a sample size of 2.39% of the population cannot logically and statistically represent the remaining 98% of the population. Even a reasonable person would not agree with the preposition that 2% of the population represents the rest 98%. Thus the sample size which is critical to institute work norms was chosen arbitrarily without any rhyme or reason. Arbitrariness is writ large in deciding the sample size. Sample decides the fate of the study and with the sample being faulty, the study will be faulty.
So too, the ACSI norms in the instant case.
Lack of application of mind in evolving the norms in a scientific manner backed by quantitative analysis is agreeably evident. A decision taken with total non-application of mind and that too, without any reasoning, would render the decision as arbitrary. Arbitrariness was vividly rampant in the administrative decisions of respondents to choose the sample size of 20. Our aforesaid remarks are based on the observations of the Hon’ble Apex Court in:
a. State of Uttar Pradesh vs. Ashok Kumar Nigam [(2013) 3 SCC 372], at para 14 as under:
"Total non-application of mind and the order being supported by no reason whatsoever would render the order passed as 'arbitrary'. Arbitrariness shall vitiate the administrative order..."
b. East Coast Railway & Anr vs Mahadev Appa Rao & Ors on 7 July, 2010 in
CIVIL Appeal No. 4964 of 2010 arising out of SLP ( Civil) No.27153 of
2008,
20. Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non-application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable.
There being a directional gap from R-1 in regard to the action to be taken in respect of branches for which ACSI norms were not evolved, an incompetent authority viz. R-2, arbitrarily got developed the norms for a key branch like the accounts branch. Besides, R-2 to R-4 used available old norms for other branches without the approval of R-1. Hence there is a distinct jurisdictional error. Law does not recognize orders of incompetent authorities to be valid. The important aspect to be noted is that R-1 gave approval for the down gradation without application of mind, albeit it was brazenly evident that elements not contained in the policy were acted upon to cause the down gradation of Hyd-GPO. Fundamentally, allowing policy aberrations to be acted upon for arriving at a result which is not in agreement with the innate policy clauses, by the policy laying body, would strike at the very validity of the policy and make it defunct.
Further, the norms were laid by studying only HPOs and not GPOs. Therefore, applying HPO norms to GPOs without studying the latter was found to be incorrect, for reasons elaborated in the preceding paras. This is a fundamental flaw in the policy. Carrots cannot be compared with cauliflower, though both are vegetables but each has a distinctive composition and character.
Every order of the respondents has to be a reasoned order. The respondents failed to answer as to whether human contribution in operating the computers was considered, although the applicants came up with quantitative figures to prove that there was enormous gap in the time factors indicated in ACSI norms and actually observed in the day to day field operations. Respondents not responding to this important contention is an admission that the human contribution has not been given due credence as is required to make the norm justifiably workable. Hence, a policy ignoring the core elements on which it has to be based, gets apparently termed as defective and non- operable.
Any policy framed has to be in public interest and in the instant case, it was found to work the other way of largely undermining public interest at depths equivalent to that of the Mariana trench of the Pacific Ocean. The way it was compromised was explained in depth in the relevant para above and we would not like to repeat the same.
Importantly, the JCM has to be consulted in developing work norms as per the policy of the GOI referred to above. Directions of the Parliamentary committee and DOPT instructions are forceful that JCM has to be taken on Board. Any new policy has to be evolved based on the existing rules and policies and not violating them. The present one has been framed infringing rules and existing policy of the respondents’ organization of consulting JCM, and therefore can have no legal approval.
A policy is advanced on a regular basis and not on an adhoc basis. Even if was initiated on an adhoc basis, it has to attain regularity at the earliest and continuing the adhoc policy for years, as seen in the present case, is censured under law. Adhocism as an instrument of administration has been adversely commented by the Hon’ble Apex Court as pointed out in the preceding paras.
Therefore, considering the above, the policy of laying down ACSI norms is flawed for being arbitrary, irrational, reasonless and with total lack of application of mind writ large on its evolution. Hence as per the observations of the Hon’ble Supreme Court cited supra, the Tribunal is endowed with the power to intervene and declare that the policy document of respondents dated 24.5.2019 is not in accordance with law.
In addition, we have also observed that many unacceptable angularities in the implementation of the policy by the respondents like not disposing the representations of the unions, contravening the interim order of the Tribunal dated 3.7.2020, incompetent authorities issuing orders beyond their jurisdiction in developing and applying norms not contained in the policy, local respondents acting beyond their brief in initiating the displacement of staff, overlooking LSG restructuring that has serious ramifications to down gradation, failing to provide evidence as to whether other GPOs in the country were subjected to similar review as was done for Hyd-GPO etc. have crept in, while implementing the defective policy. Thus, there are many fallacies even in implementing the flawed policy. On both fronts ie laying down of the policy and implementing it, the respondents have not come out with flying colours. We say no more on the aspect touched upon.
XVI. Violation of Articles 14 & 16 of the Constitution:
After going through the contours of the case in detail, we find that the decision to down grade Hyd-GPO and proposed consequential displacement of the so called identified surplus staff, is violative of Articles 14 and 16 of the Constitution. Based on the deliberations in previous paras in respect of facts, rules and law applicable to the instant case, we have held that the Policy/administrative decisions concerning the disputed issue are arbitrary, irrational and unreasonable. Therefore, the imminent need for judicial review to forestall illegality in the interest of justice and direct the respondents to have a fresh look at the whole affair for taking decisions lawfully. We are inspired by the observations of the Hon’ble Apex Court in Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, as under, in airing the above views :-
“22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made
“lawfully…”
Continuing our observations, we are of the view that in an act that is arbitrary, it is implicit in it that it is unequal as per constitutional law and is, therefore violative of Article 14, and since the dispute on hand deals with an issue of public employment, it also oversteps Article 16 of the Constitution. We have drawn our above conclusion drawing support from the judgment of the Hon’ble Apex Court in Dakshin Haryana Bijli Vitran Nigam v. Bachan Singh, (2009) 14 SCC 793, wherein it was held as under:-
23. In E.P. Royappa v. State of T.N. (1974) 4 SCC 3 this Court observed as under: (SCC p. 38, para 85)
“85. … From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.”
The dispute resolution would not end, unless we specifically observe that there is a self- evident error in the policy of the respondents by not developing ACSI norms for all the branches of the HPO though claimed to have done vide R-1 letter dated 24.5.2019. Further, the letter is clear that only ACSI norms are authorized to be applied, but not any other norms. The yardstick framed by R-1 ought to have been followed by R-2 to R-4, but they did not. Even, there is no scope to interpret the letter in any other manner, since it is plain and understandably the language prevails, as observed by the Hon’ble Apex Court in (1974) 1 SCR 589. Either, one has to apply the ACSI norms and if not, revert to the competent authority for guidance, is the legal prerequisite. Deviant action, as initiated by R-2 to R-4 in the disputed issue is legally invalid. In addition, no reasonable person would have contemplated to develop norms which he is not authorized to do as was done by R-2 in the instant case. This has led to manifest injustice caused to the applicants, since local respondents R-3 & R-4 proposed dispersal of assumed surplus posts and staff, by following questionable procedures and exceeding their jurisdiction. For reasons stated, the administrative decision of downgrading Hyd-GPO is wrong in law and has to be directed to be corrected by the Tribunal through the process of judicial review. While making the above remarks, we take support of the Hon’ble Gujarat High Court in Nanuki Prasad vs Union of India on 12 September, 2018 in R/SCR.A/2192/2010, as under:
30. In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan vs. Mallikarjuna reported in AIR 1960 SC 137. If the provision of a statutory rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari.
32. However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect.
51. ...... It is one thing to say that a yardstick has been fixed for the purpose of taking recourse to the power of compulsory retirement but there cannot be any doubt or dispute that such yardstick must be based on relevant criteria. If the relevant criteria, as has been laid down by the State, which has been adopted by the Federation, had not been acted upon, the order must be held to have been suffering from jurisdictional error.
Therefore, since the decision of the respondents to downgrade HydGPO by framing a policy which has been found to be irrational, arbitrary, lacking reason and application of mind for whys and wherefores explained at length in the background of Hon’ble Supreme Court judgments and also even the process followed in implementing the policy was evidently legally impoverished for being similarly arbitrary, discriminatory, irrational with total non-application of mind, the outcome can be none other than an illegal outcome. The end or goal of an administrative decision has to be legitimate and constitutional and if not, it shall have to be declared as illegal. Unfortunately, in the instant case, the end goal to down grade HydGPO coupled with the displacement of staff suffers from the vices of arbitrariness, irrationality, discrimination, unfairness, non-application of mind etc., thereby is not consistent with the letter and spirit of the Constitution and hence not constitutional. For stating what we did above, we rely on the observations of the Hon’ble Apex Court in State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, at page 356 , wherein it was held as under:
Chief Justice Marshall’s classic statement in McCulloch v. Maryland followed by Justice Brennan in Kazenbach v. Morgan remains a beacon light:
“Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.”
XVII. Other contentions dealt:
Other contentions made by both the parties were gone into. Respondents plead that in OA 265/2020 filed in regard to a similar issue, interim order was not issued by the Tribunal when pressed for, by filing MA 286/2020. The grounds and the orders challenged are different in the cited OA and the instant OA. This contention was also answered in the interim order dated 3.7.2020 wherein it was observed by the Tribunal that in OA 265/2020 the challenge was to the transfer of surplus official and in the instant OA the challenge is about not following rules and the very foundation of the transfer ie establishment review and consequences thereof. Therefore, the interim order cited was issued in the instant OA as the grounds were different. True to speak, we notice that the respondents without being sure as to whether what they were doing was correct as per rules, the moves on the chess board were made by the respondents for down gradation and staff transfers under the veil of attachments to post offices, which had to be check mated through judicial chastisement by the Tribunal in accordance with rules and law by passing the interim order in question. Applicants contended that establishment module is under testing and hence norms which are under testing cannot be applied. Respondents have explained that till the establishment module of CSI is completed a work study team has studied the work standards and has set up ACSI. It is not required to wait for the establishment module of CSI to be completed as claimed by the applicants, since the respondents are at liberty to develop norms by a properly composed work study team, but the mistake committed by the respondents is that ACSI norms for all branches were not instituted and R-2 to R-4 used locally developed norms/old norms, without competence for branches not covered, as commented extensively in the preceding paras. Also, applicants contended that the Standard Inspection Unit (for short SIU) standards were not used for developing ACSI norms. SIU standards are applicable to administrative offices/branches and not to operative units as per the version of the respondents. However, we would have appreciated if the relevant OM was filed to make things clear. Respondents claim that posts are required to open new post offices in outlying areas of the city and also strengthen post offices with inadequate staff and hence, diversion of surplus staff of Hyd-GPO is a must. We empathise with the concern expressed, but the exercise has to be done within the ambit of rules and law, which we found expressively lacking in the decision to down grade Hyd-GPO. From public point of view, all post offices are important, but one should not be made to suffer irregularly at the cost of the others. Applicants contended that statistical information compiled by Group supervisors was not reckoned. They did not submit any document to this effect and hence, lacks credence.
XVIII. Before we part, we are reminded of the age old proverb that a stitch in time saves nine. This applies to the case on hand squarely, for the simple reason that, had the local respondents brought to the notice of R-1 the difficulty in applying ACSI norms due to the error of they having not been developed for all branches, it would have, perhaps, been possible for R-1 to attempt a justifiable work around or contemplate completion of developing norms for all the branches of the HPOs/GPOs and thereupon decide to venture initiating the sensitive task of establishment review seamlessly and flawlessly. That was not to be, triggering a process which led to a series of errors originating due to non- adherence of rules and procedures, consuming not only valuable time but gave abundant room for litigation and avoidable complexities. Had the local respondents acted in time as pointed out, valuable time and labour of both the parties including this Tribunal could have been saved. We base our above remarks keeping in mind the observation of the Hon’ble Apex Court in Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan, (2003) 1 SCC 197, as under:-
An inadvertent error emanating from non-adherence to rules of procedure prolongs the life of litigation and gives rise to avoidable complexities. The present one is a typical example wherein a stitch in time would have saved nine.
Indeed, it was right on part of the respondents to take up establishment review due to computerization but they did it in the wrong way resulting in unfairness caused to the applicants and seldom such decisions can be upheld under law as pointed out by the Hon’ble Apex Court in Swadeshi Cotton Mills vs. Union of India, AIR 1981 SC 818:
21) It is trite law that even doing what is right may result in unfairness if it is done in the wrong way
The unfairness candidly speaking, has sprung because of the unlawful administrative decisions of the respondents and for the same, applicants cannot be penalized for no fault on their part, as held by Hon’be Supreme Court in Mohd. Ghazi vs. State of M.P. 2000(4) SCC 342, as under:
“It is settled law that no one should be penalized for no fault of his.”
XIX. Conclusion:
In view of the aforesaid circumstances, since the decision of the respondents to downgrade Hyd-GPO with allied consequences, was found to be contrary to Articles 14 & 16 of the Constitution and the relevant rules/law, we declare the said decision as unjust, arbitrary, irrational, unreasonable and illegal. Consequently, the impugned Circular/ Letter/ Memo/ Office Notes dated 24.05.2019, 27.04.2020, 06.05.2020, 09.05.2020 and 26.05.2020 of the respondents respectively are set aside and quashed. The respondents are granted liberty to proceed with the exercise of establishment review, as early as they can, after developing regular CSI norms by following due procedures and taking the relevant aspects into consideration, in accordance with rules and law.
Till then, Hyd-GPO will continue to enjoy the status of Group ‘A’ and redeployment of posts/ staff shall be done only after review with regular CSI norms as directed.
XX. With the above directions, the OA is allowed with no order as to costs. MAs stand disposed of accordingly.
(B.V.SUDHAKAR) (ASHISH KALIA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
