Friday, October 11, 2013

Bgl CP 22/2012

Bgl  CP 22/2012

CENTRAL ADMINISTRATIVE TRIBUNAL
      BANGALORE BENCH,BANGALORE.

CIVIL CONTEMPT PETITION NO:- 22/2012
In TA Nos.123/2009,124/2009, 125/2009 & OA 95/2010

 Dated this                 the     day of         , 2013

CORAM:- HON'BLE SMT. LEENA MEHENDALE, MEMBER (A)
HON'BLE SHRI V. AJAY KUMAR, MEMBER (J)

  Applicants In TA 123/2009:

1. Marigouder A.H.
Staff No.16784,
Working as Divisional Engineer,
Mobile Services, CMX Building,
Devaraj Urs Road,
Bangalore.

2. P. Prabhakar Rao
Staff No.16699,
Working as Divisional Engineer-
O/o DGM Marketing, CGMT,
Halasur, Bangalore.

3. S.B. Nannanavar,
Staff No.16486,
Working as Asst. General Manager (OP),
O/o General Manager – Telecom,
Jayalakshmipuram, Mysore – 570 012.

4. M. Shivaswamy,
Staff No.16407,
Working as Divisional Engineer-Out-door,
Above Punjab National Bank,
Dr. Rajkumar Road, Bangalore 560 010.

5. Anantha Subramaniam,
Staff No.16793,
Working as A.G.M.- Mobile Services,
Amenity Block, Queen's Road,
Bangalore 1.

6. K. Diwakar Rai,
Staff No.16470,
Working as Divisional Engineer, Extl-II,
BSNL, Kadri Telephone Exchange,
Kadri, Mangalore.

7. K.G. Suryanarayana,
Staff No.16647,
Working as Divisional Engineer (NIB)
BSNL, Nazarbad Telephone Exchange,
Hardinge Circle, Mysore 570 010.

8. K. Vittal Alva,
Staff No.17457,
Working as Divisional Engineer (Groups),
BSNL, Kadri Telephone Exchange,
Kadri Mangalore.

9. Raviprakash Rao,
Staff No.17411,
Working as Divisional Engineer
BSNL, Pandeshwar, Mangalore.

10. F.M. Andrade,
Staff No.17396,
Working as Asst. General Manager
(CFA), BSNL, O/o PGM,
Mangalore.

11. Y. Suresh,
Staff No.17419,
Working as Divisional Engineer (Outdoor)
BSNL, Telephone Exchange Bykampadi,
Mangalore.

12. G. Venkateswarlu,
Staff No.16492,
Working as Divisional Engineer-Cell One,
1 Floor, Ashoknagar Telephone Exchange,
GUNTUR 522 007, Andhra Pradesh.

13. V.S. Goudar,
Staff No.16684,
Working as Divisional Engineer-
Vigilance, O/o PGM, Telecom Bldg.,
Rajbhavan Rd, Bangalore-1.

14. R.H. Kai,
Staff No.16705,
Working as Divisional Engineer,
BSNL, ERP Development Centre, ALTTC
Campus, Ghaziabad 201 002. U.P.

15. M.L. Patil,
Staff No.30942,
Working as S.D.O. P-I,
BSNL, K.C.Park, Dharwad.

16. B.C. Gundar,
Staff No.16777,
Working as D.E. External II,
T.K. Layout, Mysore 570 009.

17. R.R. Koppar,
Staff No.16847,
Working as D.E.-Indoor,
Telephone Exchange, D.C. Compound,
Dharwad.

18. P.V. Hungund,
Staff No.17596,
Working as Asst. General Manager-WLL,
O/o General Manager (NW-O) CM
CGMT, KTK, BSNL, S.V. Road,
Halasuru, Bangalore 560 008.

    Applicants in TA 124/2009:

19. V. Gopinath,
Working as Sr-Sub-Divisional Engineer
(Staff-III), O/o CGMT, S.V. Road,
Halasuru, Bangalore 560 008.

20. H.K. Nagarathna,
Working as Sr. Sub-Divisional Engineer
(MKTG), O/o General Manager,
BSNL, Tumkur 572 101.

21. H.S. Chandrika,
Working as Sr. Sub-Divisional Engineer
(Sales & CFA), O/o General Manager,
BSNL, Kolar 563 101.

22. A. Shakti,
Working as Sr. Sub-Divisional Engineer
(HRD), O/o General Manager,
BSNL, Kolar 563 101.

23. Basavaiah,
Working as Divisional Engineer(Urban),
BSNL, Telecom Bldg, Ashoka Road,
Tumkur.

24. G.S. Nagaraja Gupta,
Working as Divisional Engineer,
Telephone Exchange,
Nanjanagudu 571 301. Dist. Mysore.

25. A.V. Srikantan
Working as Divisional Engineer (Tech),
RTTC, T.K. Layout, Mysore 570 009.

26. K.A. Gopalakrishna
Working as Divisional Engineer,
Telephone Exchange, Kollegala 571 440.

27. V.C. Hiremath,
Working as DGM – Mobiles, BSNL
Telephone Bhavan, Balives,
Solapur 413 002.

28. K. Balasubramanya,
ERP Development Centre, ALTTC
Campus, Ghaziabad – 201 002. U.P.

29. T.C. Kodandaram,
Working as Divisional Engineer,
O/o Sr. GMT, BSNL, Plot No.71,
Sector 13, Near:CIDIO Gardens,
New Panvel 410 217.

30. M. Ponnuswamy,
Working as AGM (SCT), Officiating
O/o CGMT, Bangalore.

31. M. Muthu,
Working as AGM (HR/ADMN),
O/o General Manager, BSNL,
Kolar 563 107.

32. Susheela,
Staff No.30722,
Working as Sr. Sub-Divisional Engineer,
O/o DGM CRM (Data)
New Telecom Building, Devaraj Urs Road,
Bangalore 560 001.

33. B.S. Rathod,
Staff No.17069,
Working as DGM (MM)_
O/o PGM BGTD, Rajbhavan Road,
Bangalore 560 001.

34. S. Revathi,
Staff No.18748,
Working as Divisional Engineer,
Telephone Exchange, Hunasuru,
Dist. Mysore.

35. M.R. Suresh,
Staff No.17564,
Working as AGM (Installation)
O/o GM NW – CFA,
Telecom Building, Rajbhavan Road,
Bangalore 560 001.

36. K.N. Sulikeri,
Staff No.17471,
Working as AGM-MKTG (S&M)
O/o CGMT, S.V. Road, Halasuru,
Bangalore 560 008.

37. M.V. Gangadhara,
Staff No.30259,
Working as AGM (CC), City Tele
Exchange, Sampangiramnagar,
Bangalore 24.

38. Arshi Krishnamurthy,
Staff No.30605,
Working as AGM NW-O,
Telephone Exchange, BSNL
Harapanahalli 583 131,
Dist. Davanagere.

39. K.P. Desai,
Staff No.30264
Working as Divisional Engineer (Plg)
O/o CGMT KTK, S.V. Road,
Halasuru, Bangalore – 8.

40. Shobha Somnath,
Working as Sr. Sub- Divisional
Engineer, O/o AGM Sales-III,
4th Floor, Telecom Bldg.,
Rajbhavan Road, Bangalore 1.

41. Geetha K. Murthy,
Staff No.16638,
Working as AGM (BB), 4th Floor,
Ulsoor Tele Exchange, Halasur,
Bangalore 8.

     Applicants In TA 125/2009:

42. P.A. Virupakshaiah,
Staff No.17456,
Working as AGM (NOW West-I),
Vijayanagar Telephone Exchange,
Bangalore 40.

43. K.V. Mutalik,
Staff No.32 104,
Working as Sr. Sub-Divisional Engineer(L),
RTTC, T.K. Layout, Mysore.

44. S.V. Dixit,
Staff No.30657,
Working as Divisional Engineer,
Telephone Exchange, Belgaum.

45. D.S. Metri,
Staff No.16347,
Working as Divisional Engineer,
O/o DGM-QA, CACT Complex,
Doorvaninagar, Bangalore.

46. H.B. Hungund,
Staff No.321 10.
Working as Sub-Divisional Engineer
(Groups), Telephone Exchange,
Nanjanagudu 571 301.
Dist. Mysore.

47. A. Vijayendra,
Staff No.33401,
Working as Sub-Divisional Engineer(L),
D.T.T.C. BSNL, Jayanagar Tele Exchange,
Jayanagar, Bangalore.

    Applicants in OA 95/2010:

48. P.K. Kadaramandalgi,
Staff No.30339,
O/o The General Manager (Telecom),
B.S.N.L., Devaraj Urs Layout,
Davanagere 577 006.

49. B.P. Kulkarni,
Staff No.17376,
AGM (NW-O) External,
Bharat Sanchar Nigam Limited,
P.J. Extension, Davanagere 577 002.

50. C.C. Somashekar,
Staff No.30724,
AGM(NW-O) Internal, MAX-I Bldg.,
Bharat Sanchar Nigam Limited,
PB Rd., Davanagere 577 001.

51. M.K. Mohana,
Staff No.30820,
Sub-Divisional Engineer,
O/o D.E. BTM (OD) B.T.M. Telephone
Exchange, 7th Cross, BTM Layout
II Stage, Bangalore.

52. R.S. Ramesh,
Staff No.30823
Senior Sub-Divisional Engineer(Mobiles),
O/o General Manager, BSNL,
Kolar 563 107.

53. U.S. Mujawar,
Staff No.33443,
Senior Sub-Divisional Engineer,
O/o CGMT, S.V. Road,
Halasuru, Bangalore 560 008.

54. Jamaluddin Hadagali,
Staff No.30503,
Sr. S.D.E. A/T
Inspection (T&D) Circle,
HUBLI. ...  Petitioners
(By Advocate Shri Shiraguppi)

Versus
1. Shri A.N.Rai
Director- Human Resource Development,
Bharat Sanchar Nigam Ltd.,
Bharat Sanchar Bhavan,
Harishchandra Mathur Lane,
Janpath, New Delhi 110 001.

2. Shri R.K. Verma,
The Asst. Director General(Pers.I)
4th Floor, Bharat Sanchar Bhavan,
Janpath, New Delhi 110 001.     ...  Respondents
(By Advocate Shri N. Amaresh)


O R D E R
Per : Smt. Leena Mehendale, Member (A)
This case has a history that goes back to 1966 when certain instructions in Post and Telegraph Manual were replaced by Rules for promotion. This resulted in two cases that had vide influence on departmental promotions, being P.N.Lal Vs. Union of India and Madras Telephone SC & ST Social Welfare Ass., Vs. Union of India. They further resulted in some important litigations & issues without whose discussion the present matter cannot be appreciated. These issues have been elaborately discussed by Hon'ble Justice Singh in (2006) 8 SCC 662 in the matter of Promotee Telecom Engineers Forum and others Vs. Secretary Telecom and Others and we will quote from this, for clarity.
2. List of relevant cases;
I. P.N.Lal and Brij Mohan Vs. Union of India, decided on 20.02.1985 by Allahabad High Court in WP No.2739 and 3652  of 1981 and the SLP against both under No.3384 and 3386 of 1986, Union of India Vs. Permanand Lal and Brij Mohan, dismissed on 08.04.1986 by Hon'ble Supreme Court.
II. SLP 19716 & 19722 of 1991 by Union of India as well as Junior Telecommunication Officers Association (India) against the order dated 07.06.1991 passed by Principal Bench of CAT were dismissed on 06.01.1992.
And similar issues raised by Junior Telecom Office Forum reported in 1994 Supp (2) SCC 222.
III. Madras Telephone SC & ST Social Welfare Association Vs. Union of India decided by CAT, Madras in TA No.909/1986 on 31.12.1986.
And Civil Application against it in Union of India Vs. Madras Telephone etc, CA No.4339 of 1995 decided on 13.02.1997 reported in 1997(10) SCC 226.
IV. Contempt Petition No.121/1999 in the above CA No.4339 of 1995, reported in (2000) 9 SCC 71, decided on 26.04.2000.
And I.A. No.16 in the above CA No.4339 of 1995 as well as Promotee Telecom Engineers Forum & Ors. Vs. Secretary, Department of Telecommunications and Others reported in (2006)8 SCC 662.
And CP arising in the same matter (2008) 11 SCC 579.
V. TA Nos. 123/2009, 124/2009 & 125/2009 decided by this Bench on 20.09.2011
And present Contempt Petition No.22/2012.
3. We quote from Singh (J) in (2006) 8 SCC 662:-
“before coming into force of the Telegraph Engineering Service Class II Recruitment Rules 1966, the promotion from the post of erstwhile Engineering Supervisors Telecom (re-designated as Junior Engineer) to the post of Assistant Engineer was made in accordance with the instructions contained in paragraph 206 of  Post and Telegraph Manual, Vol. IV which reads as;
206. All Junior Engineers recruited after 1-1-1929, under the new system after serving for 5 years in Engineering branch may be permitted to appear at the departmental qualifying examination, which will be held from time to time in the subjects enumerated below, provided they have a good record. This qualifying examination is intended to test the general ability of Engineering Supervisors and their knowledge in the latest developments in Telegraphy and Telephony. A pass in this examination is an essential condition for promotion in Telegraph Engineering and Wireless Service Class II.
2. Promotion to the TE & WS Class II, will be made according to the principle of seniority-cum-fitness but the Engineering Supervisors who pass the qualifying examination earlier will rank senior as a group to those who pass the examination on subsequent occasions i.e. officials  who passed the examination held in 1956 will rank as en bloc senior to those who passed in 1957. Their seniority inter se will, however, be according to their seniority in the cadre of Engineering Supervisors.”

“This promotion was clearly according to the principle of seniority-cum-fitness. Those who passed the qualifying examination earlier ranked senior as a group to those who passed the examination on subsequent occasions, i.e. officials who passed the examination held in the year 1956 ranked en block senior to those who passed in 1957. Their seniority inter se, however, was determined according to their seniority in the cadre of Engineering Supervisors.
“With the coming into force of the Recruitment Rules, 1966 w.e.f. 15.06.1966, the method of determining seniority was changed. It was provided that;
“• the Engineering Supervisors must complete 5 years of service to be eligible for appearing at the departmental qualifying examination,
• the eligibility list of candidates for consideration of the DPC (Departmental Promotion Committee) would be prepared in accordance with the instructions issued by the Government. The instructions were issued on 28.06.1966 and required the preparation of a separate list for each year of recruitment.
• Para (v) of the instructions provided that all officials of a particular year of recruitment/ appointment, who had qualified in the examination, would rank en- block senior to those officials of the same year of recruitment/ appointment, who qualified in subsequent examination.”
“It would thus appear that in the matter of promotion the emphasis shifted from the year of passing the examination to the year of recruitment/appointment of the candidate concerned.
“In the year 1981 one Shri  Parmanand  Lal (1966 batch) and Brij Mohan (1965 batch), both of whom qualified in the qualifying examination held in 1974, filed two writ petitions complaining of their placement in the eligibility list below the last man who passed the qualifying examination in 1975. The department contended that the eligibility list had been arranged on the basis of seniority, based on the year of recruitment and ignoring the year of passing the qualifying departmental examination, as required by the Recruitment Promotion Rules of 1966. The Lucknow Bench of Allahabad High Court considered the submissions urged before it in the light of the Recruitment Rules of 1966 as partially modified in 1981 and provision in para 206 of the P & T Manual and concluded that those who qualified in the departmental examination earlier were entitled to be promoted prior to those who qualified later, irrespective of the year of their initial recruitment. It was held that para 206 of the Manual was not in conflict with either the Rules of 1966 or 1981, but was supplemental to those Rules. Relief was accordingly granted to the 2 writ petitioners based on the interpretation of the Rules and para 206 of the P & T Manual.
“SLPs preferred by the Union of India challenging the aforesaid decision numbered as SLP Nos. 3384 and 3386 of 1986 were dismissed by Apex Court by order dated 08.04.1986.
“Following the judgment of the Allahabad High Court several petitions were filed before the Principal Bench, Central Administrative Tribunal seeking identical relief. The Principal Bench by a detailed order of 07.06.1991 allowed the applications and issued directions for re-fixation of seniority, keeping in view the relevant recruitment rules and para 206 of the Manual. This Order of the Principal Bench was challenged before the Supreme Court both by the Union of India and by Junior Telecommunication Officers Association (India). The SLP Nos.19716 and 19722 of 1991 were dismissed on 06.01.1992. While dismissing the SLPs this Court observed:-
“......The Principal Bench has followed the judgment of the Allahabad High Court in Writ Petition Nos.2739 and 3652 of 1981 decided on February 20, 1985. SLP (C ) Nos. 3384-86 of 1986 against the judgment of the Allahabad High Court have already been dismissed by this Court on April 8, 1986. We see no grounds to interfere. Special Leave petitions are dismissed".
“Subsequently, the same questions were again agitated before this Court in 1993 Supp (4) SCC 693 Junior Telecom Officers Forum and Others Vs. Union of India and Others and 1994 Supp (2) SCC 222 Telecom Eng. Service Association (India) & Anr. Vs. Union of India and Another but those writ petitions were dismissed.
“In the meantime, the Madras Telephone SC & ST Social Welfare Association filed a WP before the Madras High Court with a prayer that the eligibility list must be prepared by determining the seniority on the basis of confirmation as Junior Engineer. It was transferred to the Tribunal as TA 909 of 1986 and the Tribunal by its judgment dated 31.12.1986 held that the year of recruitment for the purpose of seniority is extraneous and irrelevant and accordingly directed that the eligibility list be arranged according to the year of passing the qualifying examination. As amongst those who pass the examination in the same year, the list should be according to their merit as seen from the marks obtained in the examination.
“The decision of the Tribunal was challenged before this Court in Civil Appeal No.4339 of 1995 and the judgment of this Court is reported in (1997) 10 SCC 226 Union of India Vs. Madras Telephone SC & ST Social Welfare Association; This Court held :
“......The Tribunal neither accepted their statement nor did it uphold the Department's case but directed that these lists should be prepared on the basis of the year of the passing of the Departmental Qualifying Examination and not on the basis of the year of recruitment/ appointment.   In our opinion what the Tribunal has done really amounts to rewriting the rule which should not have been done by it.  The appeal is accordingly allowed.”
“In view of the earlier judgments of this Court (in 1993 & 1994) and the judgment of 1997 which apparently took a contrary view, the Union of India found difficulty in implementing the order of this Court and, therefore, it filed an application for clarification which came to be disposed of by this Court along with other applications, petitions and civil appeals, by a common judgment reported in (2000) 9 SCC 71 Union of India Vs. Mdadras Telephone SC & ST Social Welfare Association.
“Shorn of unnecessary details this Court took the view that the judgment of this Court in CA No.4339 of 1995 laid down the correct law. It did not approve the view of the Allahabad High Court observing that once the statutory recruitment rules came into force and the procedure was prescribed under the said Rules for preparation of eligibility list for promotion by Notification dated 28.06.1966, it is that procedure which has to be adopted, and the earlier administrative instructions contained in para 206 of the P & T Manual cannot be adhered to. It observed that the contrary conclusion of the Allahabad High Court was undoubtedly incorrect. However, it made a pertinent observation and clarified as follows:-
"We, however, make it clear that the persons who have already got the benefit like Parmanand Lal and Brij Mohan by virtue of the judgments in their favour, will not suffer and their promotion already made will not be affected by this judgment of ours.”
4. After discussing this much Hon'ble Justice Sinha notes that the matter didn't rest there.  The affected parties sought clarification vide IA No.16 on this issue and came to be decided by a 3 Member Bench including him. The final paras of his judgment as reported in (2006) 8 SCC 662 have dealt with these fresh claims and it is held:-
18. The question that arises as to whether the applicants can claim the protection of their seniority and consequent promotion on the basis of observation and the clarification contained in the judgment of this Court reported in Madras Telephone.  Having considered all aspects of the matter we are satisfied that those whose cases stand on the same footing as that of Parmanand Lal cannot now be adversely affected by re-determination of their seniority to their disadvantage relying on the later judgment of this Court in its judgment Madras Telephones (2000) 9 SCC 71 (supra).

19. We, therefore, direct that such of the applicants whose seniority had been determined by the competent authority, and who had been given benefit of seniority and promotion pursuant to the orders passed by Courts or Tribunals following the principles laid down by the Allahabad High Court and approved by this Court, which orders have been attained finality, cannot be reverted with retrospective effect.  The determination of their seniority and the consequent promotion having attained finality, the principles laid down in later judgments will not adversely affect their cases.”
5. The above Para 19 clinches the issue.  It is explicit that benefit of Parmanand Lal's case is to be given only to those who had gone to the court and none else.
6. Thereafter The Hon'ble Supreme Court while deciding a contempt petition (2008) 11 SCC 579 arising out of the same judgment has held as follows:-
“16. It is obvious that a completely wrong view has been taken by the Government.  It was specifically held by this Court in its order dated 28.09.2006 that such of the employees, whose claims for the seniority on the basis of the qualifying year had become final because of the orders, of the courts, should not be disturbed on account of its subsequent judgment dated 26.04.2000.”
7. With this background it is clear that seniority is to be decided as per year of recruitment, but only those persons' seniority based on year of examination will be protected, who have approached various Benches of CAT or High Courts and got their seniority protected on the same grounds as that of Permanand Lal, before 26.04.2000.
8. The present applications TA No.123, 124 and 125 of 2009 were filed before this Tribunal involving 54 applicants in all.  They came to be decided on 20.09.2011. It was prayed therein that the inter se seniority of the applicants was not decided properly and the respondents department pointed out the decision of the Hon'ble Supreme Court in judgment reported in 2000 SCC 71 decided on 26.04.2000.  In order to look to the issue afresh, both the counsel undertook that on getting certain fresh information from all the applicants regarding their date of entering into service, date of passing the examination, etc., the department would consider the whole issue in the light of all the Supreme Court judgments. The OA was, therefore, disposed by giving such a direction to the applicants as well as the respondents.
9. The present CP No.22/2012 dated 28.03.2012 is now filed on the ground that the applicants had given all the necessary details within the prescribed four months period, but the respondents have not considered their cases. In the CP, the applicants also mention at Para 4 that as per the decision in (2000) 9 SCC 71 dated 26.04.2000 the persons whose seniority has been finalized by applying para 206 of the PNT, Manual should not be disturbed and their seniority should not be altered. However, many of their juniors were given promotions ahead of them disturbing their seniority and that was the ground in the OA.
10. The Respondents have filed their Reply enclosing a speaking order passed by them on 21.08.2012, it states as below:-
“representations received from the applicants have been examined. It is intimated that the seniority of entire cadre of TES Gr.B equivalent to SDE(T) was revised on Recruitment year basis in the year 2001 in compliance of Hon'ble Supreme Court judgment dtd.26.4.2000. On the other hand, the seniority of comparable officers viz V.K.Mahuli etc have been revised on qualifying year basis in compliance of Hon'ble Supreme Court judgment/order dtd.25.3.2008 in IA No.16 in CA No.4339/1995.
The seniority on qualifying year basis following the principles laid down by the Allahabad High Court in respect of comparable officers, was determined in duly constituted proceedings which determination had attained finality. Accordingly in pursuance of the judgment dtd.25.3.2008 of the Apex Court seniority of these officers has been revised vide DOTs letters dtd.19.5.2008 and 21.5.2008. Your seniority has not been determined by any order of court or tribunal in duly constituted proceedings on the basis of principles laid down by Allahabad High Court as it has not been stated/mentioned in Oas/TAs. Hence, your claim for the revision of seniority on qualifying year basis as done in case of comparable officers cannot be acceded to.
It is also intimated that BSNL has already approached Hon'ble Supreme Court in respect of similarly placed persons who do not have favourable order from any court or tribunal. Two SLPs filed by BSNL in respect of such persons are pending before the Hon'ble Supreme Court.
1. SLP No.5145/2012- UIO & Anr. Vs. Om Prakash & Others.
2. SLP No.3319/2012-BSNL Vs. Mhar Singh & Others.

Further the Hon'ble Supreme Court had issued notice and stayed the contempt proceedings.”
11. It is, therefore, the case of the respondents that the present 57 applicants who have not received any protection of their seniority by any particular order of the Tribunal prior to the judgment on 26.04.2000, cannot now get the protection atleast until the two said SLPs No.5145 & 3319 of 2012 have been decided by Hon'ble Supreme Court.
12. In view of the above, speaking order of the department and also in view of the facts that some of the similar contempt proceedings have been stayed by the Hon'ble Supreme Court, we dismiss the CP and discharge the notice. Liberty, however, is granted to the present 57 applicants to approach the suitable forum after the two SLPs Nos.5145 & 3319 of 2012 have been decided by Hon'ble Supreme Court. No order as to costs.


(Shri V. Ajay Kumar)   (Smt.Leena Mehendale)
    Member (J)                       Member (A)


dm/km*

Bom OA 70/2009

Bom OA 70/2009

CENTRAL ADMINISTRATIVE TRIBUNAL,
BOMBAY BENCH, MUMBAI

ORIGINAL APPLICATION NO.70 OF 2009

Dated this Friday, the 22nd day of February, 2013.

CORAM: HON'BLE SMT. LEENA MEHENDALE, MEMBER(A).
HON'BLE SMT. CHAMELI MAJUMDAR, MEMBER(J)

Ram Arjun Palav
R/at 25/742, C.G.S. Colony,
S.M. Plot, Sector 7,
Antop Hill, Mumbai 400 037.   ...   Applicant

(By Advocate Shri V.A. Nagrani)

VERSUS

1. Director General of Shipping,
Zahaj Bhavan, W.H. Marg,
Ballard Estate,
Mumbai 400 001.

2. The Asst. Estate Manager,
Government of India,
101, M.K. Road,
Old C.G.O. Bldg., Annexe,
3rd Floor, Mumbai 400 020.  ...  Respondents

(By Advocate Smt. H.P. Shah alongwith
Shri P. Khosla for Respondent No.1 &
Shri N.K. Rajpurohit for Respondent No.2)

O R D E R
Per: Smt. Leena Mehendale, Member(A)
This Original Application is filed on 09.02.2009 under Section 19 of the Administrative Tribunal Act, 1985 on the point of recovery at market rate for unauthorized occupation of government accommodation.
2. The case has a very short compass.  Applicant who is a Upper Division Clerk was occupying the quarters alloted by Respondent-Department within their residential colony.  It appears that with effect from 06.11.1996 he came to occupy the accommodation No.23/591, C.G.S. Colony, S.M. Plot, Sector 7, Antophill, Mumbai, Type II.  During one of the sudden inspections carried out by the officials of the Respondent-Department, it came out that he had sublet the said quarters to other people.  Therefore, the allotment was cancelled vide cancellation No.50/Sub/163/98EMB dated 26.09.1998. His representation against the cancellation order was rejected. The Estate Officer issued show cause notice under Section 4 of the P.P. Act and after giving hearing, passed an eviction order dated 27.09.2000 asking the applicant to surrender the quarters within 15 days.
3. The appeal against this order before the Civil Court of Bombay bearing Appeal No.113/2000 resulted in a Writ Petition before the High Court of Bombay, who remanded the matter to Estate Officer for fresh hearing.  After de-novo hearing, the Estate Officer once again issued eviction order dated 27.09.2005 (Exhibit A-5).  An appeal No.84 of 2005 against this order was dismissed in Bombay City Civil Court on 19.10.2007 (Exhibit A-6).  The City Civil Court had recorded following questions and findings:-
“QUESTIONS: FINDINGS
1. Whether the disputed premises   In affirmative
   are Public Premises?
2. Whether the appellant was and   In affirmative is in unauthorized occupation
   thereof after termination of
   license on 2.11.1998?”
4. A Writ Petition against the Appellate order was also dismissed on 08.02.2008.
5. Under these circumstances, it is the claim of applicant that the Respondents-Department issued notice dated 29.05.2008 for recovery of Rs.8,38,368/ as outstanding arrears for unauthorized occupation of the said quarter and another letter dated 12.11.2008 fixing monthly recovery installment of Rs.8,000/ per month.
6. The applicant in paragraph 8(a) of the Original Application has prayed for quashing these two orders No.PB-26-Admn/(5)/89-III dated 12.11.2008 (Ex. A-1) and order No.7/AB/I/SS/08 IMM dated 29.5.2008 which is not produced in the Original Application or till time of hearing. A stay order had been granted on 11.02.2009 which is extended from time to time till date of final hearing.
7. We have heard both the learned counsel for the parties and have perused the pleadings and documents annexed therewith.
8. As pointed out by the learned counsel for the respondents it has not been disputed by the applicant that he misused the allotment of Flat No.23/591, C.G.S. Colony, AntopHill, by subletting it. He was, therefore, rightfully evicted and also it is within the right of the respondents to recover the rent at market rate.  All the litigations that the applicant has engaged are at his own instance and he cannot claim any respite from paying market rent for that period.  The purpose of allotment of government accommodation to government employees is to facilitate their smooth performance at the office.  It is however, a fact that there is always a paucity of government accommodation and many genuine government employees have to await for a long time before they can get a residential accommodation.  Under these situations any employee misusing the allotment given to him must be treated with a firm hand.  The various claims of the present applicant have already been raised and decided by various fora such as Estate Office, City Civil Court and High Court of Bombay and it has come out through all these cases that he has no valid claim.  The learned counsel for the respondents, therefore, prays that the Original Application may be dismissed.
9. In view of all the aspects as discussed above, we find no merit in the Original Application which is, therefore, dismissed. No order as to costs.

(Smt. Chameli Majumdar)    (Smt. Leena Mehendale)
    Member(J)               Member(A)

dm.


Bom OA 111/2010

Bom OA 111/2010

CENTRAL ADMINISTRATIVE TRIBUNAL,
BOMBAY BENCH, MUMBAI.

ORIGINAL APPLICATION No.111 OF 2010

Dated of Decision:15.02.2013

CORAM: HON'BLE SMT. LEENA MEHENDALE, MEMBER(A)
HON'BLE SMT. CHAMELI MAJUMDAR, MEMBER(J)

Vishal Babu Kale,
At Zalta, Post Chikalthana,
Tq. Dist. Aurangabad.   ...   Applicant
(By Advocate Shri Sandeep G. Kulkarni
holding for Advocate Shri S.D. Dhonge)

VERSUS

1. The Union of India,
Through: Secretary,
Telecommunication Department,
Sanchar Bhavan, 20 Ashoka Road,
New Delhi 110 001.

2. Assistant Director,
(Recruitment)
BSNL, Administrative Building,
4th Floor, Juhu Road,
Santacruz (W), Mumbai 400 054.

3. The General Manager,
Telecom
11/12 “Sanchar Sadan”
GM Telecom, Cannaught Place,
CIDCO, N-5, Aurangabad – 3.     ...   Respondents
(By Advocate Shri A.K. Sharma)

O R D E R (ORAL)
Per: Smt. Leena Mehendale, Member(A)
Heard both the learned counsel for the parties.
2. Learned counsel for the respondents submits that the respondents agree that the calculation of marks for deciding 'Indigent circumstances' was done incorrectly.  Noting the dependency of 5 persons he should have been given 59 marks.  However, since it was recorded that there is a dependency of 4 persons only the marks alloted to him were 54.  Since at the time of final consideration no case who was assigned with less than 55 marks was considered, the case of the applicant was not considered in 2008.  Now the respondents are willing to reconsider his case by taking his indigency marks to be 59.  Therefore, his case will be considered by the Head Office of BSNL, Delhi whenever their next meeting to consider the cases of Compassionate Appointment will be held.
3. This contention is agreeable to the learned counsel for the applicant.  The Original Application is therefore, allowed with the directions to the respondents to treat the indigency marks of the applicant as 59 and reconsider his case whenever the next meeting at Delhi is taking place.  We must however, keep on record our observation that BSNL being a huge organization, the number of applications for Compassionate Appointment in any Calender year is quite large and all those applicants are seeking a speedy redressal in view of the sudden death of the earning hand in their family.  Hence BSNL must follow some set frequency for holding such meetings which should be at least twice a year.  We hope that the BSNL is already following the such pre-decided calender for meetings on question of appointments on compassionate grounds so that cases are considered in reasonable time.
4. With these observations, the Original Application is allowed.
                                                       

(Smt. Chameli Majumdar) (Smt. Leena Mehendale)
    Member(J)            Member(A)

dm.

Bom OA 170/2013

Bom OA 170/2013

CENTRAL ADMINISTRATIVE TRIBUNAL,
BOMBAY BENCH, MUMBAI.
ORIGINAL APPLICATION NO.170 OF 2013

Dated of Decision:05.04.2013

CORAM: HON'BLE SMT. LEENA MEHENDALE, MEMBER(A).
HON'BLE SMT. CHAMELI MAJUMDAR, MEMBER(J)

Sudhakar Giri
R/at Type -2,
Block No.29, Qtr. No.287,
Ekta Vihar, C.B.D. Belapur,
Navi Mumbai – 400 614.   ...   Applicant

(By Advocate Shri R.G. Walia)

VERSUS

1. Union of India, through
Director, Ministry of Agriculture,
Department of Agriculture & Cooperation
Central Fertilizer Quality Control &
Training Institute(Faridabad),
having address at N.H. IV,
Faridabad – 121 001 (Haryana).

2. Dy. Director,
R.F.C.L. Sector – 24, PHO-28/29,
P.O. Vashi, Turbhe,
Navi Mumbai – 400 703.

3. Shri Rajendra Singh
Working as Sr. Fertilizer Inspector
with Central Fertilizer Quality
Control & Training Institute (Faridabad),
Having address at N.H. IV,
Faridabad – 121 001 (Haryana).  ...  Respondents

O R D E R (ORAL)
Per: Smt. Leena Mehendale, Member(A)
Heard the learned counsel for the applicant for a while.
2. He has received his transfer order from Mumbai to Kalyani in West Bengal vide order dated 07.03.2013 which also states that new incumbent is due to come from Faridabad and would be deemed to have been relieved on 31.03.2013.  It is to be noted that the main institute at Faridabad and the 3 laboratories at Chennai, Mumbai & Kalyani are the only 4 establishments where the present applicant can be posted.
3. After narrating this position the learned counsel for the applicant submits that he would make a representation to the Department making all the points that he has stated in the OA and requesting a sympathetic consideration from the Department.
4. In view of this, the OA is disposed of.  Liberty is granted to the applicant to make a representation to the Department within a week's time and the respondents Department should consider and pass necessary order on the same within two weeks thereafter.
5. With the above directions, the OA is disposed of. MA No.240/2013 for Interim Relief is rejected.           No order as to costs.
DASTI.

(Smt. Chameli Majumdar)    (Smt. Leena Mehendale)
    Member(J)               Member(A)

dm.

bom No.265/2011

bom No.265/2011

CENTRAL ADMINISTRATIVE TRIBUNAL
BOMBAY BENCH, MUMBAI

ORIGINAL APPLICATION No.265/2011

Dated this Wednesday the 25th day of April, 2012

CORAM:-   HON'BLE SMT. LEENA MEHENDALE, MEMBER (A)

Shri Mahesh Kumar Agarwal
R/at 1/8 Railway Officers
Quarters, Nesbit Road,
Mazgaon, Mumbai 400 010.               ... Applicant

(By Advocate Shri S.V. Marne)

VERSUS

1. Union of India, through
The General Manager,
Central Railway, HQ office,
Mumbai CSTM, Mumbai – 400 001.

2. The Chief Operations Manager,
Central Railway, HQ Office
Mumbai CSTM, Mumbai.

3.   Mr. Brijendra Kumar,
Sr. DCM, West Central Railway,
DRM Office, Jabalpur, M.P.

4. The Chief Transport Planning
Manager, Central Railway,
CSTM, Mumbai.            ...  Respondents

(By Advocate Shri V.D. Vadhavkar)

O R D E R
This OA is filed on 03.03.2011 with a prayer to expunge the entries of “Average” against the 9 attributes in the ACR of the applicant for the year 2006-07 and also for expunging the remark by accepting authority “Not Fit For Promotion”. A further prayer is made to upgrade the remarks to that of “Very Good”.
2. It is stated in the OA that the adverse entries for the year 2006-07 were communicated to him by letter dated 04.10.2007 at Annexure A-1. He represented against it on 14.11.2007, Annexure A-7 and the same was rejected by a detailed order date 19.01.2008, Annexure-A/2 by one Shri Vinay Mittal, COM.  One of the grounds for turning down the request to expunge the remark of “Average” was that “it is not an adverse remark”. However, at the time of holding of DPC for promotion to the post of Junior Administrative Grade, the applicant was again communicated on 19.7.2010 (Annexure-A/8) the said ACRs for the year ending 31.3.2006, 07 and 2008 on the ground that the said ACR is adverse to the applicant as the same is below the benchmark. The representation made by the applicant against the said ACR grading was also rejected by Respondent No. 2 by order dated 18.10.2010.
3. The applicant has claimed that first of all, the Reporting Officer has written “Average” against 9 of his attributes including General Assessment without any supporting material facts and in disregard to the Rules. He also avers that the Reporting Officer had kept the ACR pending for more than 3 months and when he wrote that the report, he had already become biased and revengeful because in the intervening period, the applicant who was also acting as an Enquiry Officer in respect of yet another officer, did not obey the oral wish expressed by the Report Officer of coming up with harsh report.  The applicant claims that the Reporting Officer was guided by this fact and hence, with a biased approach, he has given “Average” ACR.
4. He further claims that Respondent No. 4, who was the Reviewing Officer, has merely agreed with the remarks of the Reporting Officer (Annexure-R/3). But, the Accepting Authority, namely, Respondent No.2,  has gone one step ahead and mentioned that the applicant was “not fit for promotion”. This is against para 3.11 of the ACR Rules, as, it is obligatory on the part of the Accepting Authority to clearly point out the material and factual deficiency on the working of the applicant for which he was declared “Unfit”. The applicant claims that there was no communication to him that he was adjudged as “Unfit for promotion” by the Accepting Authority.
5. The respondents have prayed for the dismissal of the OA on the grounds that:
(a) The 1st communication of “Average” dated 4.10.2007, the applicant's representation dated 14.11.2007 and the reply of the authorities dated 22.1.2008 is one set of papers that has reached finality by the last communication dated 22.1.2008, wherein it was informed that Average is not adverse”. It aggrieved, the applicant should have challenged it in 2008. The applicant cannot agitate the rejection of his representation order dated 22.1.2008 in the year 2011. It becomes time barred.
(b)  The remark of the Accepting Authority, viz., “Not Fit for Promotion” (When written and when communicated?).
(c) The remark “Average” being below benchmark, the DPC is entitled to refuse promotion for the reason of “Average” ACR and hence, there is no need to modify the decision of the DPC.
(d)  The representation of the applicant dated 23.7.2010 (Annexure-A/9), which was made after he learnt about the DPC's view on his promotion, was rejected by the competent authority by their letter No.CON/COM/APAR-2010, dated 18.10.2010 (Annexure-A/3). This decision of the administrative authority is final since it does not have to be a detailed speaking order.
(e) The respondents quoted the decision of the Hon'ble Supreme Court in the case of Namboodri, wherein it is sated that the Tribunal cannot sit over the decision of the administrative authorities who are best judge of the performance of the applicant.  Speaking order in deciding such representation is not necessary.
6. I find that Annexure A-1, dated 4.10.2007, which is the 1st communication to him states as below:
     “Sub: Annual Confidential Report for the  year ending 31.03.2007.
         - - -

The following remarks have been recorded in your Annual Confidential Report for the year ending 2006-07.


Sr. Item      Remarks
No.
i. Attitude towards work-Dedication  Average
motivation, commitment to objectives
willingness to learn and systematse work.

ii. Decision making ability and judgment- Average
Insight and ability to weigh pros and
cons and take decisions.

iii. Initiative – Capacity and             Average
resourcefulness in planning and
handling unforeseen situations,
willingness to take additional
responsibility and new areas of work.

iv. Ability to guide, inspire and motivate Average
Capacity to guide, motivate, review
    performance, obtain willing support by
own conduct and to inspire confidence.

v. Communication skill (written & Oral)   Average
Ability to formulate and present facts,
conciseness and persuasiveness.

vi. Safety Consciousness  Average

vii. Approach to Customers       Average

viii. Human Resource Development  Average

ix. Cost and Expenditure Control  Average

The above remarks are being conveyed to you, not to discourage you but to enable you to overcome your short-comings and improve your performance.”
7. Thus, it is very clear that in 2007, he was neither told about the remarks of the Accepting Authority, nor given a chance to represent against it. Any authority who is responsible to maintain the custody of the ACRs is fully aware that all the adverse remarks, including the remarks given by the Reviewing and the Accepting Authority are to be communicated.  It is clear that the same was not done in 2007, thus, denying him a chance for making a timely representation. It is also clear that the remark of the Accepting Authority is definitely an adverse remark, even though the respondents may hold a view that the adverse remarks given by the Reporting Officer were not adverse.
8. The applicant has apparently taken the plea of bias that could have been shown by the Reporting Officer against him and the said averment is not denied by Respondent No.3 that the Reporting Officer, who has been impleaded by name in the case, nor by the respondents.  Even though, in his representation dated 14.11.2007, the applicant made an allegation of bias shown by the Reporting Officer, the same has not been denied by the Respondent No. 3.  In his comments dated 26.8.2010, to the department, the Reporting Officer did mention that average performance were substantiated by documentary proof. However, nothing has been mentioned in the ACR. The theory that the applicant had shown indisciplined behaviour has been raised by Respondent No.3 as an afterthought in his comments dated 26.8.2010, because nothing has been stated in the ACR itself. The most important fact is that the Reporting Officer has not given any oral or written warning to the applicant during the entire period. As per the rules regarding writing of ACR, adverse remarks are to be made only if no appreciable improvement is seen despite giving memo or letters in writing or warning or reprimand, etc.  It is argued by the applicant that when no such memo was given to him throughout the year, thereafter, his performance cannot be adjudged as adverse.
9. I have gone through all the documents filed by both sides and considered the arguments of both the learned counsel.
10. The crux of the matter is that a performance report which is below benchmark, must be communicated in time. Here, the fact about the average ranking given by the Reporting Officer was communicated along with an observation that the same was communicated only for the purpose of bringing improvement. If that be so, then, it is not understood as to why the Respondent department felt it necessary to once again communicate to him by letter dated 14.7.2010 and that too, when DPC was due to consider all cases of promotion. Further, a perusal of Annexure-A/1, which is a communication from Shri Vinay Mittal, COM, shows that only the average remarks of the Reporting Officer in respect of the 9 attributes was communicated along with an apparently advisory paragraph which stated:
“The above remarks are being conveyed to you, not to discourage you but to enable you to overcome your short-comings and improve your performance.”
Annexure-A/5, shows that adverse remarks were written by the Accepting Authority Shri R.N. Verma on 14.9.2007. It is an adverse remark though only consequential to the remarks of the Reviewing Officer and should have been communicated.  As such, non communication of the same in time in October, 2007, must be treated as irrelevant for the purpose of DPC.
11. The prayer of the applicant has 4 parts, namely,
(a) to  expunge the adverse remark against the 9 attributes quoted above.
(b) to expunge the remarks of the Accepting Authority saying “Not Fit for Promotion”.
(c) improve the overall grading to “Very Good”
(d) Give consequential benefits commensurate with the Grading of “Very Good”.
12. However, from Annexure-A/8, it is seen that on 19.7.2010, the applicant was informed about 3 consecutive ACRs ending March, 2006, March, 2007 and March, 2008. Since, he was asked to represent, it can be inferred that they had pointed out at some deficiencies. The applicant has not annexed the enclosures that he has received along with Annexure-A/8 for those 3 years. Hence, I will be limiting my observation only to his ACR for the year 2006-2007, which he has impugned and his prayer also pertains only to this ACR. While Shri Vinay Mittal, COM, has been careful to give a detailed reply to his representation on 19.1.2008 (Annexure-A/2), he has not answered anything about the issue of bias raised by the applicant. Even on the subsequent occasion in 2010, the applicant represented on the ground of bias by the Reporting Officer and the same has once again been ignored while answering his representation.
13. Furthermore, the 2nd request of the applicant, definitely has merit as it was not communicated at all in time, but, was communicated in 2010 only with a view to stall the promotion of the applicant. Hence, it must be said that the decision of the DPC of 2010 must be reviewed to the extent that the report for the year 2006-07 must be ignored and the report of the previous relevant year should be taken into consideration.
14. In view of the above, I agree with the applicant's prayer to the extent of part A & B above. However, I cannot agree with part 3, which is a prayer to improve his overall grading to Very Good. It can be upgraded to Good. However, since even Good will fall below the benchmark and considering that his representation was not fully considered on the question of bias, I further direct that the ACR for the year 2006-07 must be ignored and all promotions of the applicant should be decided on the basis of other available ARCs.
15. As far as the consequential benefits are concerned, they will depend upon the outcome of the DPC in which the ACRs other than for the year 2006-07 will be taken into consideration. The respondents should complete the necessary exercise, if any, within 3 months.
16. With these directions, the OA is disposed of. No order as to costs.


                   (Smt. Leena Mehendale)
                Member (A)

dm.+psp.

Bom OA 291/2010

Bom OA 291/2010

CENTRAL ADMINISTRATIVE TRIBUNAL,
BOMBAY BENCH, MUMBAI.

ORIGINAL APPLICATION No.291 OF 2010

Dated of Decision:15.02.2013

CORAM: HON'BLE SMT. LEENA MEHENDALE, MEMBER(A)
HON'BLE SMT. CHAMELI MAJUMDAR, MEMBER(J)

Shri Ram P. Kanakdande
R/at Janki Niwas,
Naik Nagar, Nanded.     ...   Applicant

(By Advocate Shri K.R. Yelwe)

VERSUS

1. The Union of India, through
The Secretary to the Govt. of India,
Ministry of Finance,
Department of Revenue,
Central Board of Excise and Customs,
New Delhi 110 011.

2. The Secretary to the Govt. of India,
Ministry of Pension,
Personnel Grievances,
(Department of Personnel & Training)
New Delhi 110 001.

3. The Chairman
Central Board of Excise & Customs,
Ministry of Finance,
Department of Revenue,
New Delhi 110 001.

4. The Commissioner
Office of the Commissioner of
Central Excise,
Customs & Service Tax,
Town Centre: N-5, CIDCO,
Aurangabad 431 030.

5. The Asstt. Commissioner,
Central Excise & Customs,
Nanded Division,
Nanded. ...   Respondents

(By Advocate Shri A.K. Sharma)


O R D E R (ORAL)
Per: Smt. Leena Mehendale, Member(A)
Heard Shri K.R. Yelwe, learned counsel for the applicant and Shri A.K. Sharma, learned counsel for the Respondents.
2. Learned counsel for the respondents submits that in view of the DOPT's circular dated 26.07.2012 the applicant is eligible for reconsideration.  Hence his case will be considered on the next occasion whenever the respondents are considering the cases of Compassionate Appointment.  This satisfies the learned counsel for the applicant.  Hence, Original Application is disposed of in the above terms.  No costs.

(Smt. Chameli Majumdar)    (Smt. Leena Mehendale)
    Member(J)               Member(A)

dm.

Bom OA 398/2009

Bom OA 398/2009

CENTRAL ADMINISTRATIVE TRIBUNAL,
BANGALORE BENCH, BANGALORE

ORIGINAL APPLICATION No.398/2009

Dated this ___________, the _____day of March, 2013.

CORAM: HON'BLE DR. K.B. SURESH, MEMBER(J)
HON'BLE SMT.LEENA MEHENDALE, MEMBER(A)


Shri R. Rajendra,
Sub-Divisional Engineer,
BSNL, Shankarapuram
(o/D) Shankarapuram Telephone
Exchange, Bull Temple Road,
Bangalore 560 019.   ...   Applicant

(By Advocate Shri Narayana)

VERSUS

1. Union of India,
By Secretary,
Ministry of Communications &
Information Technology,
Department of Telecom Services,
Sanchar Bhavan, No.20, Ashoka
Road, New Delhi 110 001.

2. Bharat Sanchar Nigam Ltd.,
Corporate Office, 4th Floor,
Bharat Sanchar Bhavan,
Janpath, New Delhi 110 001.
By its Chairman and Managing
Director.

3. The Chief General Manager,
Telecom, Karnataka Circle,
BSNL, No.1, Swamy Vivekananda
Road, Ulsoor, Bangalore 560 008.  ...  Respondents

(By Advocate Shri M.V. Rao for Respondent No.1
& Shri V.N. Holla for Respondent Nos.2&3)

O R D E R

Per: Smt. Leena Mehendale, Member(A)
This Original Application is filed on 19.08.2009 under Section 19 of the Administrative Tribunal Act, 1985 with a prayer that the applicant R. Rajendra who is a recruitee of the year 1978 as Junior Telecom Officer (JTO) in the Department of Telecommunication should be given higher seniority as compared to several other juniors in view of the fact that the new Recruitment Rule of the Department dated 23.07.1996 did not require the JTOs to pass the qualifying examination for being promoted as TES Group 'B', (also called SDE).
2. Prior to 1966 the promotion of JTOs in the Department of Telecommunication was governed by P&T Manual, paragraph 206 which prescribed passing of a qualifying examination for the purpose of promotion.  The examinations were held on yearly basis for a big batch of JTOs.  In 1966 proper Recruitment Rules were framed and they had some variance as compared to the previous instructions.  The new Recruitment Rules were partially modified in 1981 and 1986. They prescribed that there would be two types of examination for the JTOs – one would be qualifying examination which required simple passing but the other would be called competitive examination and would decide the merit.  The Rules prescribed that 66.66% of the posts of SDE had to be filled on Seniority-Cum qualifying basis from amongst JTOs who had passed the prescribed qualifying examination but the remaining 33.33% of posts were to be filled by the “merit JOTs” who succeeded in competitive examination.  For the sake of present OA, we can ignore the Rules governing “merit JTOs”.
3. These Recruitment Rules were further changed on 23.07.1996 whereby the number of promotion to be given to “merit JTOs” was reduced to 25% and the remaining 75% vacancies were to be filled strictly on Seniority-Cum-Fitness basis and the need for passing the qualifying examination was withdrawn. There were several officers in the Department who had earlier either opted out of the qualifying examination or were not able to qualify it.  The 1996 Rules gave them a hope and rightful expectation to be promoted as SDE as per their seniority in preference to those JTOs who were juniors and who did not fall in the category of “25% merit JTOs” but would have superceded them on the  basis of “qualifying examination”.
The applicant herein recruited as JTO in the year 1978, falls in the category of such non-qualified JTOs.
4. However, before coming to this applicant, we have to take note of an important consequence of the Recruitment Rules of 1966 (partially modified in 1981 and 1986). As they had some variance with earlier instructions, they eventually led to a lot of litigants whose origin can be traced to differing judgments in two cases (and the Special Leave Petitions or Intervention Application or Contempt Petitions arising out of them).
a. P.N. Lal and Brij Mohan Vs. Union of India, decided on 20.02.1985 by Allahabad High Court in WP No.2739 and 3652 of 1981.
And many similar directions given by Principal and other Benches of CAT, in line with the judgment of Allahabad High Court.
b. Madras Telephone SC & ST Social Welfare Association Vs. Union of India decided by CAT, Madras in TA No.909/1986 on 31.12.1986 as modified by High Court of Madras in CA No.4339 of 1995.
Two related references are:-
c. Contempt Petition No.121/1999 arising in the above CA No.4339 of 1995, reported in (2000) 9 SCC 71, decided on 26.04.2000.
d. I.A. No.16 in the above CA No.4339 of 1995 as well as Promotee Telecom Engineers Forum & Ors. Vs. Secretary, Department of Telecommunications and Others- Reported in (2006)8 SCC 662.
5. A succinct discussion of these is provided in the judgment in 'd' (supra) by Hon’ble Justice Sinha on behalf of 3 Member Bench which resolves the Controversy arising out of the decision in those cases.  Both 'c' and 'd' (supra) concluded that the judgment of Allahabad High Court and some consequential judgments of CAT, Principal Bench were not correct and tenable, but further provided that for those whose seniority was settled because they had obtained orders from Court in pursuant to Allahabad High Court between 1985 to 2000, their seniority would be protected.
It must be emphasized that the above set of cases represents a totally different issue than the present one. Issue discussed above relates to Recruitment Rules framed in 1966, and whether promotion should be given as per year of passing or as per year of Recruitment.  The present issue has arisen from Recruitment Rules of 1996 and is based on the change  that under new rules the qualifying Examination has been scrapped.  The new issue has been agitated in following set of cases:-
i) OA No.624/1997, CAT Bangalore Bench

ii) OA No.946/1998 and WP No.43253-55/1999
(dismissed by the High Court of Karnataka)

iii) CP 2/2000 In OA No.946/1998 & Ors.

iv) OA No.1664/2000 and 1672 to 1721/2000, CAT Bangalore Bench.

v) OA 227/2009 and Ors. before CAT Bangalore.
6. As seen from the reply statement, it was agitated before Allahabad High Court by P.N.Lal that although, it was the Rule of 1966 mandated that seniority of qualified JTOs was to be fixed with reference to the date of passing qualifying examination, in practice, the Department used to prepare the eligibility of qualified JTOs as per the year of recruitment and then promote them when vacancies arose. Allahabad High Court in 1985 decided that his promotion should be given with reference to the date of passing the qualifying examination. This resulted in a large number of similar applicants demanding their seniority as per the judgment in P.N. Lal's case.  All these claims resulted in need to revert 550 officers who were already given higher seniority and promoted.  To save them from reversion, it was necessary to promote 7700 JTOs as TES Group 'B'.  The Department issued 14 revised seniority lists for TES Group ‘B’ because of which 550 SDE earlier promoted would become juniors to 7700 JTOs.  The Department calculated that on 31.03.1993, they already had 3235 vacancies, another 944 posts had also been created and there was justification to upgrade yet another 885 posts. Thus, out of 7700 JTOs who needed to be promoted, to save the reversion of 550 earlier promoted JTOs, the Department was in a position to accommodate 5064 JTOs which would still leave open the question of 2636 JTOs.  The Department, therefore, created these additional 2636 posts in TES Group 'B' against future vacancies.  Thus, they promoted in bulk 7700 JTOs in TES Group 'B' and saved the reversion of 550 JTOs, who were already promoted prior to judgments of Allahabad High Court and Principal Bench of CAT.  This exercise was done as a onetime measure and was completed on 15.10.1993.
7. Against this background the new Recruitment Rules for JTOs effective from 23.07.1996 took away the need of qualifying examination for seniority based promotion for 75% of the posts of TES Group ‘B’.  Before that the Union of India had given an undertaking to the Supreme Court in SLP 26071/1995 that the vacancies existing till the new rules came into force on 23.07.1996 would be filled up in accordance with the old rules. It is, therefore, undisputed that vacancies prior to 23.07.1996 would have to be filled as per the old rules and vacancies arising after 23.07.1996 would be filled up as per new rules.
8. It is the claim of present applicant and many other similarly placed like him that despite this undertaking the Department continued to give promotions for vacancies arising after 23.07.1996 as per the pre-amended recruitment rules but called them officiating promotions, thus trying to play safe.
9. Thus the position immediately after 23.07.1996 was that those JTOs who had not cleared the qualifying examination but were more senior expected their promotion as soon as vacancies would become available but the Department continued to accommodate such JTOs who had cleared the qualifying examination prior to 23.07.1996 but who were not actually promoted prior to that date for the reason that there were very few vacancies available.
10. Looking back, we can appreciate that the reason for non-availability of large number of vacancies was that Department had already “borrowed vacancies from future” as explained in para 6 supra.  The Department, it is claimed, ignored the claim of those Sr. JTOs who, under the new rules, were not required to go through the qualifying examination at all.
11. The question of non-qualified JTOs becoming eligible for promotion on the basis of seniority in the post-1996 scenario came up before CAT, Bangalore Bench in OA No.624/1997.  The Department admitted that by wrong interpretation of the DOT letter dated 26.09.1996 the juniors to those applicants were given officiating promotion for vacancies which actually arose after 23.07.1996.  The Department undertook that promotions would be regulated in future as per new rules as soon as the officiating period of such Junior JTOs would come to an end.  It was also submitted that as on 23.07.1996 the Karnataka Circle had 61 vacancies in the TES Group ‘B’ cadre hence, out of all the officiating promotee SDEs, only 61 could be accommodated as regular and rest would have to be reverted to make way for “non-qualified seniors”.
12. The OA No.624/1997 was disposed of by order dated 23.07.1998 after recording the undertaking of the Department that all that officiating promotees would be reverted as soon as their officiating period ended and except the 61 vacancies existing as on 23.07.1996 all the new vacancies would be filled on the basis of Seniority-Cum-Fitness.  The Bangalore Bench of CAT made it clear in their order that “those candidates who were given ad-hoc promotion in respect of vacancies which arose after 23.07.1996 would not be entitled to claim the benefit of such service for the purpose of seniority vis-a-vis the applicants therein, even if they ultimately get regularized.”
13. It is claimed that the Department was still not in a mood to give the benefit of seniority to the JTOs who had a rightful claim for promotion after 23.07.1996.  The DOT therefore, vide their order dated 15.10.1998 once again created 1966 TES Group ‘B’ posts retrospectively w.e.f. 15.10.1993 so as to accommodate all the JTOs who had qualified the examination but were not promoted prior to 23.07.1996 for the reason of non-availability of vacancies. Those promotions orders were  issued on 21.10.1998.
14. This move was again challenged by “non-qualified senior” JTOs in OA No.946/1998 and connected matters before CAT Bangalore Bench.  The Tribunal by their order dated 31.08.1999 (Annexure A-2) quashed the creation of 1966 posts with retrospective effect of 1993. Thus except for 61, all vacancies which were available with Karnataka Circle as on 15.10.1998 once again became vacant and available for the JTOs strictly on the basis of seniority.
15. The Department were directed to review the promotions already given against the 1966 created posts, determine who among private respondents could be accommodated against those 61 vacancies and revert the others (Annexure A-2).  This order of the CAT Bangalore Bench was challenged in W.P. No. 43253-55 of 1999 but the W.P. was dismissed by the High Court of Karnataka by order dated 30.05.2000.
16. Once again, we find a major lapse by the DOT at this stage. Some of the “qualified JTOs” could be entitled to seniority-based promotion also, depending on natural vacancies between 23.07.1996 to 30.05.2000, or till date of such calculation. But, the department failed to find out of it was so.
17. However, in CP No.2/2000 for non-compliance of the directions of the Tribunal in OA No.946/1998, the DOT referred to matters at (a), (b), (c) in para 4 (supra) and pleaded that in view of the order of Hon’ble Supreme Court dated 26.04.2000, the directions of the Tribunal in OA No.946/1998 made on 31.08.1999 had become un-implementable.  The plea was rejected by the Tribunal and on 29.09.2000 the respondents were directed to tender unconditional apology. The S.C. order dated 26.04.2000 had arisen from the DOT Recruitment Rules of 1966 wherein qualifying examination was still a requirement whereas the OA No.946/1998 has arisen as a consequence of the  Recruitment Rules of 23.07.1996 which had done away with it.  Hence the Tribunal rightly pointed out that the observation of the Supreme Court dated 26.04.2000 had no bearing on the issue raised in OA No.624/1997 and 946/1998.
18. The applicant points out at Para 4 (vi) of OA that even as per the direction of the Supreme Court in their order dated 26.04.2000 in CP No.121/1999 arising out of Civil Application No.4339/1995, the Department was directed to revise the seniority list of TES Group ‘B’, Officers based on their year of recruitment.  However the department promoted 5626 JTOs on regular basis vide order dated 26.04.2000 without reviewing the promotions effected against 1966 posts which were quashed by CAT, Bangalore in OA No.946/1998.  Thus, the problems while not settling inter-se seniority between 1966 JTOs promoted on 21.10.1998 and 5626 JTOs promoted on 26.04.2000.
19. The Department simply canceled 1966 promotions  of SDEs, which were quashed by the Tribunal and reverted 68 officers of Karnataka Circle by their order dated 19.10.2000 (Annexure A-3). The 68 officers are Mr. M. Sudheendra and 67 others and will be referred to as “Sudheendra and 67 others in subsequent paras”. However, these reverted officers filed OA No.1664/2000 and connected matters before the Tribunal, which was decided on 08.10.2001.  In this OA 1664/2000, the Department had submitted that the applicant Shri M. Sudheendra and 67 others were not the junior most officers when compared with the 5626 JTOs promoted on 26.04.2000 and therefore, should not have been reverted even after quashing the creation of 1966 posts in compliance with the CAT order in OA No.946/1998. In view of this the Tribunal directed as below:-
“In the light of the clarifications now furnished on behalf of the respondents we consider it appropriate to dispose of this application with the following directions:-
“1. The Respondents shall finalise the concerned seniority list of T.E.S. Group B Officers within a period of 3 months.
2. If in the said seniority list the applicants are senior enough not to be included in the group of officers who will have to be reverted to the lower posts as a consequence of the abolition of 1966 posts in the promoted category of T.E.S. Group B Officers, as per the order at Annexure A-9, the order of reversion which has been impugned in this case shall stand automatically quashed.
3. In the event of the occurrence of the situation mentioned under the direction 2 above, the respondents  shall treat the applicants as eligible for the benefits in the promoted post in accordance with their interse/seniority positions in the list finalized under the direction at (1) above.”
20. It is admitted position that “M.Sudheendra and 67 others do not fall in the list of JTOs to be promoted against 61 vacancies available before 23.07.1996. It is also seen from the list at Annexure A-6 serial No.17671 that he and others are recruitees of 1982 whereas the applicant is recruitee of 1978. Therefore, even though they was senior to 5626 JTOs  promoted after 23.07.1996 and before 19.10.2000, it is also fact that on any day after 23.07.1996 they could not be promoted without first adjusting the applicant in present OA.
21. Now, we come to the impugned order passed in Annexure A-17 dated 09.03.2009. It discusses the anomaly created by reverting the 1966 JTOs without comparing their inter-se seniority with the 5626 JTOs promoted on 26.04.2000. This order refers to several other decisions such as from High Court of Kerela, High Court of Delhi, etc. but, fails to take into account, the order passed by this Tribunal in OA No.946/1998 which was confirmed by High Court of Karnataka.  Thus, even after creating 1369 supernumeraries posts it fails to give justice to the applicant and some other similarly placed JTOs who were left behind thrice by the department. First, when the department gave officiating promotions to some Jr. JTOs without acknowledging the claim of unqualified JTOs after 23.07.1996, second, when the department created 1966 posts of JTOs with retrospective effect of 15.08.1993 so as not to accommodate the non-qualified JTOs and third time by promoting 5626 JTOs on 26.04.2000 without having first accommodated the non-qualified JTOs.
22. In view of this, we direct the respondents to treat the impugned order dated 09.03.2009 to be modified to the extent that the present applicant will be adjusted in the seniority above Mr. M.Sudheendra of 1982 recruitment year. The respondents are directed to issue necessary orders of fixing seniority within next two months and give all consequential benefits to the applicant within three months thereafter. OA is allowed to that extent. No order as to costs.


(Smt. Leena Mehendale)          (Dr. K.B.Suresh)
    Member(A)                  Member(J)


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