Friday, November 2, 2012

*** 227/2009, 309/2009, 399/2009 & 440/2009 on ??? 2012


CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE

ORIGINAL APPLICATION Nos. 227/2009, 309/2009, 399/2009 & 440/2009

TODAY, THIS THE ......... DAY OF ..............., 2012

HON'BLE SMT. LEENA MEHENDALE    ...         MEMBER (A)

HON'BLE SHRI V. AJAY KUMAR             ...         MEMBER (J)

OA No.227/2009

1. J.N. Lakshmikantha,
   S/o J.R. Narasimhamurthy,
   Aged 51 years, Working as
   Sub-Divisional Engineer, BSNL,
   Anjananagar Telephone Exchange,
   Magadi Main Road, Anjananagar
   Vishwaneedam Post, Bangalore -560 091.

2. Smt. Geeta K. Adiga,
   W/o Krishnamurthy Adiga,
   Aged 52 years, Working as
   Sub-Divisional Engineer, Customer Service
   Centre, BSNL, Karangalpady,
   Mangalore – 575 003.

3. R. Balasubramanyam,
   S/o T.K. Ramamurthy,
   Aged 57 years, Working as
   Sub-Divisional Engineer, BTM Exchange
   (Internal), Bangalore – 560 076.

4. S.V. Karki, S/o V.T. Karki,
   Aged 53 years, Working as
   Sub-Divisional Engineer (Telegraphs),
   Somwarpet, Kodagu District – 571 236.

5. Smt. Sandhya K. Upadhya,
   W/o Krishnaswamy Upadhya,
   Aged 49 years, Working as
   Senior Sub-Divisional Engineer,
   Chandra Layout Telephone Exchange,
   Bangalore – 560 040.


6. J. Srinivasan, S/o P.R. Jagadeesan,
   Aged 56 years, working as
   Sub-Divisional Engineer (Internal),
   N.G. Village RLU, Under D.E. (Internal),
   Koramangala, DGTD, BSNL,
   Bangalore – 560 047.                               ...                                 Applicants
(By Advocate Shri A.R. Holla)

Vs.

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.

4. Ramakant B. Puranik,
   S/o Bheemannacharya Puranik,
   Aged about 54 years,
   Working as Sub-Divisional Engineer,
   O/o Divisional Engineer (Internal),
   Shankarapuram Telephone Exchange,
   Bangalore – 560 019,
   Plot No.21, 2nd Main, Vivekanandanagar,
   Kathriguppe Main Road, Bangalore-85.

5. All India Bharat Sanchar Nigam Ltd.
   Executive Association,
   Karnataka Circle, Bangalore,
   C-55, 5th Radial Road, ITI Colony,
   Doorvaninagar, Bangalore – 560 016.
   Rep. by the Circle Secretary, H.T. Anderi.

6. Sri K.R. Leeladhara, S/o K. Ramanna,
   Aged 53 years, Working as Sub-Divisional engineer
   (MS Installation), O/o the DE  (MJ Installation),
   Annexe Building 4th Floor, CGMT Compound,
   Halasuru, Bangalore – 560 008.                                    ...         Respondents

(By Advocates S/shri S. Prakash Shetty, ACGSC for R-1, Vishnu Bhat,
Advocate for R-2 & 3, Ms. J. Sarita for R-4 and 5 and P.A. Kulkarni for R-6)

OA No.309/2009

1. Chakoli Appalal J., S/o J.A. Chakoli,
   Aged 48 years, Working as Sub-Divisional
   Engineer, TSE (X), BSNL, O/o the Chief
   General Manager, TQAC, WMS Compound,
   Sanchar Complex, Bangalore – 560 041.

2. Smt. Padmini G., W/o Chakoli Appalal J.,
   Aged 47 years, Working as Sub-Divisional
   Engineer, BSNL, O/o the Divisional Engineer,
   OCB-283, TAX II, WMS Compound,
   J.P. Nagar III Phase, Bangalore – 560 078.

3. Smt. Dhanalaxmi C. Gujari, Aged 54 years,
    Working as Sub-Divisional Engineer,
   (MM-II), BSNL, MM Section, Telephone House,
   Bangalore telecom District, Bangalore – 560 094.

4. Smt. Hemalatha R.K., Aged about 51 years,
    Working as Sub-Divisional Engineer (SSTP),
   BSNL, 4th Floor, New Telecom Building,
   Basaveshwara Circle, Bangalore – 560 001.

5. C.S. Gujari, Aged 57 years,
   Working as Sub-Divisional Engineer (Computer),
   BSNL, Computer Section, Telephone House,
   Bangalore Telecom District, Bangalore – 560 001.

6. S.M. Hiremath, S/o Malleshayya, Age 52 years,
   Working as Sub-Divisional Engineer (OCB) Max-I,
   BSNL, Telephone Exchange, Old Bus Stand,
   Davanagere – 577 002.                           ...                                 Applicants

(By Advocate Shri A.R. Holla)

Vs.

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 Advocates S/Shri M. Rajakumar, ACGSC for R-1, and V.N. Holla,
ACGSC for R-2 and 3)
O.A. No.399/2009

1. D. Harikrishna Hebbar,
   S/o Ranganatha Hebbar,
   Aged 48 years, Working as
   Sub-Divisional Engineer (Lecturer),
   Regional Telecom Training Centre,
   T.K. Layout, Kuvempunagar,
   Mysore – 570 009.

2. Sudhakar Rai K., S/o Narayan Rai,
   Aged 49 years, Working as
   Sub-Divisional Engineer (Groups),
   O/o the Divisional Engineer (T), BSNL,
   Surendra Mansion, Belthangady – 574 214.

3. Vittala Bhandary H., S/o Nanjappa Bhandary,
   Aged 51 years, Working as Sub-Divisional
   Engineer (Groups), BSNL, Golthamajal,
   Post: Kalladka – 574 222,
   Bantwal Taluk, (D.K.)                                ...                     Applicants

(By Advocate Shri A.R. Holla)

Vs.
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 Advocates S/Shri M. Vasudeva Rao, SCGSC for R-1 and
Vishnu Bhat, Counsel for R-2 and 3)

OA. NO.440/2009

1. H.S. Mahabaleshwara Bhat,
   S/o H.M. Subba Bhatta,
   Aged 52 years, Working as
   Sub-Divisional Engineer (Mobile Services)
   O/o AGM (CC), Amenity Block,
   Central Telephone Exchange Compound,
   Basaveshwara Circle, Bangalore – 560 001.  ...                    Applicant

(By Advocate Shri A.R. Holla)

Vs.

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 Advocates S/Shri S. Prakash Shetty, ACGSC for R-1 and
V.N. Holla ACGSC for R-2 and 3)


O R D ER

Hon'ble Smt. Leena Mehendale, Member (A) :


            These 4 O.As involving 16 applicants have arisen sadly on account of refusal of BSNL to set their home in right condition.  From 1996 onwards, there is a continuous reluctance by the top BSNL officers to set right the seniority list of JTOs, thus giving rise to a large number of cases.  The present O.As are also a sequel to those.

2.   The JTOs of the department are eligible for next higher promotion of TES Group 'B'.  The Recruitment Rules in 1981 (supplemented by some amendments in 1986 and 1987) provided for 1/3rd promotions for meritorious JTOs to be decided on the basis of a competitive merit examination,  and the remaining 2/3rd promotions were again based on passing of a qualifying examination.  Thus, there are 3 categories – Merit JTOs, Qualified JTOs and Unqualified JTOs.  All applicants here can be termed as unqualified seniors whose year of recruitment ranges from 1974 to 1982 whereas respondents No.4 to 6 of OA No.227/2009 can be termed as qualified juniors.

3.            The department changed the Rules on 23.7.1996, doing away with qualifying examination for the seniority quota.  Under the new Rules of 1996, 25% promotions were still reserved for merit examination, but, the remaining 75% were to be filled by seniority-cum-fitness basis.  In one related SLP No.26071/1995, the department gave an undertaking that vacancies existing till the new Rules came into force would be filled up in accordance with the old Rules.   Thus, by implicaton, the vacancies arising after 23.7.1996, have to be filled as per the new Rules.
4.            On 21.10.1998, the department promoted 1966 Qualified JTOs after creating those many posts with effect from 15.10.1993, thus, giving them seniority under the old Rules.  Many of them were of the recruitment year 1982 or thereafter. Hence, the creation of these posts with retrospective effect as well as promotions of 1966 persons without clear declaration of vacancies before the date of new Rules, i.e., 23.7.1996, was challenged.  There is a long list of litigations before various Benches of CAT and various High Courts, which history is narrated in the subsequent para.  They resulted in the impugned order dated 9.3.2009 (Annexure-A/17) which reads as:
".....  It has been decided to cancel the reversion of 1966 TES Group-'B' officers and restore their seniority in the seniority list No.3 to 5 in supersession of the order dated 11.11.2004 ibid and regulate their promotions with effect from the date of assumption of charge in TES Group 'B' as per the order dated 21.10.1998.

             In order to give effect to this decision, the management committee of BSNL has approved creation of 1369 supernumerary posts of TES Group 'B' for the period 21.10.1998 to 25.4.2000 vis-a-vis 1966 abolished posts earlier created on 15.10.1998.

             Accordingly, 1369 supernumerary posts are hereby created so as to restore the seniority in the list No.3 to 5."

(The remaining posts have been given away to MTNL).


This is challenged in the present O.As.


5.         We have gone through all the records and heard the counsels on both sides at length.  The ups and downs of this case alongwith the view points of all the counsels as well as our own observations and conclusions are as below.


6.         As seen from the reply statement, although, it was the Rule of 1981 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.  One Shri P.N. Lal challenged this method in Allahabad High Court some time around 1985 praying that his promotion should be given with reference to the date of passing the qualifying examination.  Allahabad High Court upheld the contention resulting 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 calculated that on 31.3.1993, they already had 3235 vacancies, another 944 posts had also been created and there was justification to create 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'.  Thus, they promoted in bulk 7700 JTOs in TES Group 'B' and saved the reversion of 550 JTOs, who were already promoted.  This exercise was completed on 15.10.1993.

7.         The new Rules came into force with effect from 23.7.1996 doing away with qualifying examination for the seniority based promotions.  The scenario on that day is that the department has given large scale promotions in 1993 consuming 2636 future vacancies.  What are the vacancies occurring between 15.10.1993 and 23.7.1996, who has been promoted against them, how many Qualified JTOs or Merit JTOs still remain to be promoted as on 23.7.1996? – answers to all these questions are not known.   No record is before us to know how the department decided their vacancy position or seniority for JTOs on 23.7.1996.  This lack of information or transparency about it is a major cause for all these litigations.

8.         Between 23.7.1996 and October, 1997, the Department gave TES Group 'B' promotions to 129 JTOs in Karnataka Circle, who had earlier cleared the qualifying examination, but, had not been promoted.  Hence, some unqualified senior JTOs approached this Tribunal in OA No.624/1997.  The Bench observed in its order dated 23.7.1998, that there were only 61 vacancies in Karnataka Circle as on 23.7.1996, which could be filled by qualified JTOs.  The Deprtment argued that they were "merely adhoc promotions" to be discontinued at the end of the adhoc period.  Accepting this, the Bench directed:
to end the adhoc promotion of 68 qualified junior JTOs and for subsequent adhoc arrangements, the department would go strictly by the seniority-cum-fitness criterion and these 68 incumbents who were given the adhoc promotions, disregarding the seniority of the senior applicants would not be entitled to claim the benefit of such service for the purpose of fixing seniority in the TES Group 'B' cadre. 


This, according to us, is the single most important fator of this case.


9.         On 15.10.1998, the department took another challengable action.  They created 1966 TES Group 'B' posts (all over India) retrospectively with effect  from 15.10.1993 and issued 1966 promotion orders vide No.2-7/98-STG-II, dated 21.10.1998 (Annexure-A/5).  The reply statement dated 5.10.2009 states:-
"09.     In the year 1998 the Department has iasued an order dated 15th October, 1998 creating 1966 posts of SDE and it is indicated that those posts are deemed to have been ceated along with 2636 posts in 1993 itself for the purpose of preventing reversion of 550 regularly promoted officers."

This statement of the respondents is obviously an irrational statement on two counts.  Firstly, creation of all the extra required posts, viz., 3626 for preventing the reversion of 550 officers affected by P.N. Lal's judgment was already completed on 15.10.1993.  Hence, if the department is now taking the stand that further excess 1966 posts were also being created 5 years later for preventing the reversion of 550 officers, then, it is obviously a false statement and calls for action against the official respondents who authorised such statement.  Secondly, the department has clearly forgotten the distinction between the vacancies and creation of posts.  Vacancies can be located pertaining to the previous years.  Posts cannot be created with retrospective effect, unless there are special circumstances such as, judicial order.  Nothing was warranted on 15.10.1998.

10.       This order was, therefore, challenged in OA No. 946/1998, 1034/1998 and 94/1999 before this Bench.   All the 3 O.As were jointly taken up  and decided on 31.8.1999.  The Tribunal quashed the creation of 1966 posts with retrospective effect of 15.10.1993.  The Tribunal also directed the respondent Telecom Department to refer to the 61 vacancies existing prior to the new Rules and promote only such qualified JTOs who could fill up vacant posts which arose prior to 23.7.1996.  The rest of the JTOs (All over India) were to be reverted.  This order was challenged in the  High Court of Karnataka in W.P. No..43253-55/1999, filed by the Respondent department.  We observe that at this stage, the department should have carried out Circle-wise exercise to find out vacancies between 15.10.1993 to 23.7.1996 and justify those 1966 posts, if at all, there was a justifiction.  The department has not come clean about such information.  How they could have given them effect of 15.10.1993, on which date they already had created 2636 posts (in excess) is beyond all justification.

11.       On 26.4.2000, the Department promoted 5626 JTOs under the new Rules because of which, all the present applicants got their promotion as TES Group 'B' but only w.e.f. 26.4.2000.  However, since the question of 1966 promotions was still pending in the High Court of Karnataka, those 1966 promotions had not been disturbed and the new promotees of the year 2000 remained junior.  Only on 19.10.2000, after the Writ Petition was dismissed by the High Court of Karnataka, the Department of Telecom, issued order as seen at Annexure-A/3, mentioning that 68 JTOs of Karnataka Circle from out of the 1966 promotees stood reverted.  This list begins with the names of M. Sudheendra, Ramakanth S. Naik, and so on. The respondents have stated in reply statement that they cancelled all the 1966 posts created retrospectively, though, Annexure-A/3,  does not mention this clearly, nor, does it state anything about those 61 vacancies that existed in Karnataka Circle, and whether they were part of 1966 or not.  It also says nothing about the Circle-wise distribution of 1966 posts.  Nothing is mentioned regarding statutory reservation of SC/ST either.

12.       Out of the above-mentioned 68 reverted officers of Karnataka Circle, 51 persons filed OA No.1664/2000 and 1672 to 1721/2000 before this Tribunal (51 applications).  Their main plea was that many JTOs promoted vide order dated 26.4.2000, were junior to them, hence, their reversion was not justified.  It was observed by this Tribunal as below:
            "It is obvious from the above position taken by the respondents that the entire matter of interse seniority of these applicants vis-a-vis others is still indeterminate and is in the process of being finalised.  ..... and if in the light of the positions in the revised seniority list, the posts of present applicants do not have to be included in the list of 1966 which will stand abolished as per the decision of the Tribunal earlier, their promotion to the higher post would be regularised. 

It further says: 
            "However, as per the records available, it has been observed that the applicants Sh. M. Sudheendra and others are not the junior-most officers who were to be reverted after quashing the creation of 1966 posts in compliance of Hon'ble CAT, Bangalore Bench Judgment dated 31.8.99 in OA No.946/98.

In view of the above position, the reversion order of 68 officers of Karnataka Circle issued vide DoT order No.15-84/98-STG-II dated 19.10.2000 is hereby cancelled.  These 68 officers are eligible for all the benefits of promotion issued vide DoT order No.2-7/98-STG-II dated 21.10.98."


13.       The Tribunal, therefore, in its order dated 8.10.2001 (Annexure-A/4), directed that the respondent department should finalise the seniority list of TES Group 'B' within a period of three months and if the applicants are found senior enough, not to be included in the group of officers due for reversion, then, to that extent, their reversion will stand quashed.

14.       Thus, this order did not allow those 51 applicants to continue as seniors to the original applicants of OA No.624/1997, but, only stopped their reversion in comparison to many other junior JTOs promoted on 26.4.2000, subject to above exercise.  But, the respondents have disregarded this aspect.  The seniority list No.5, issued by the department vide letter dated 28.03.2001 (Annexure-A/6), which contains more than 2000 names, and which is now finalised as per Annexure-A/17, includes these reverted officers also.  For example, M. Sudeendra at Sl. No.3429 and Ramakanth Naik at Sl. No.3437, etc., but, does not mention the names of unqualified seniors (applicants in OA No.624/1997 or OA No.946/1998), who should be mentioned at a position higher than these.

15.       The respondent department also rescinded the reversion and issued order dated 29.4.2002 (Annexure-A/5) stating that:-
".....the concerned seniority list of TES Group 'B' in which the names of the applicants are appearing have been reviewed.  .... However, as per the records available, it has been observed that the applicants Sh. M. Sudheendra and others are not the junior-most officers who were to be reverted after quashing the creation of 1966 posts in compliance of Hon'ble CAT, Bangalore Bench Judgment dated 31.8.99 in OA No.946/98.

In view of the above position, the reversion order of 68 officers of Karnataka Circle issued vide DoT order No.15-84/98-STG-II dated 19.10.2000 is hereby cancelled.  These 68 officers are eligible for all the benefits of promotion issued vide DoT order No.2-7/98-STG-II, dated 21.10.98."

It further said:-
"for compying with the directions of the Kerala High Court dated 28.1.2002 in CMP No.60734/01, the department had to conduct a supplementary qualifying examination in continuation of one such examination conducted in November, 2000.  Therefore, the officers who would pass such special supplementary qualifying examination would be included in the final seniority list No.5. Therefore, it is not possible to finalise the said seniority list at present".

16.       Thus, we find an apparent contradiction between the information available at Annexures-A/2 and A/5.  Para 23 of Annexure-A/2 (order of this Tribunal in OA No.946/1998) mentions that on the basis of information furnished by the department itself, only 61 TES Group 'B' posts existed in Karnataka Circle prior to new Rules.  The order says:-  "We are not able to find out as to who among the 129 officers now promoted would be entitled to the promotion against the 61 vacancies."  Yet, by Annexure-A/5, the respondents merely rescinded the reversion order of all 68 officers of Karnataka Circle.  We are constrained to record that if there were only 61 vacancies in Karnataka Circle, but, 129 JTOs were promoted (in the All India list of 1966 JTOs) and therefore, 68 were in excess of vacancies and were reverted by order under Annexure-A/3, then, how could this reversion be cancelled without declaring them junior to the applicants in OA. No.624/1997 or 946/1998, etc.  On the contrary, we are told that one qualifying examination was conducted in 2000 and another in 2003, suggesting that there were vacancies, but, no qualified personnel.  No details of the two examinations are given, neither their purpose nor their outcome.

17.       Thus, the Unqualified seniors who scored a point in OA No.946/98 by getting the 1966 promotions quashed, (out of which 68 pertain to Karnataka Circle and are definitely declared as excess) did not gain anything out of Annexure-A/5, dated 29.4.2002, which in effect restored all those 68 excess juniors as their seniors.  The department had issued seniority list No.5 on 26.3.2001, which remained operative.

18.       Hence, once again, two O.As were filed by two unqualified senior applicants in OA Nos.1031/2001 and 849/2002, requesting their due place in seniority list No.5, above their immediate Qualified juniors as promotion of Qualified juniors dated 21.10.1998 has remained undisturbed. These two applicants are also applicants in OA No.624/1997.  This OA was disposed (Annexure-A/7) in view of the undertaking given by the respondent Department that "the final seniority list of 28.3.2001 will undergo changes in view of supplementary examinations as directed by Kerala High Court judgment.  Thus, it would be pre-mature to state that those 68 officers would be rendered junior to the applicants".  The Bench, however, directed the respondent department to finalise the seniority list within six months from the date of holding special supplementary qualifying examination.  It is seen further from Annexure-A/9, that under the Kerala High Court judgment, some merit posts as well as SC/ST posts were also to be filled which complicated the issue further and the department could not finalise the list earlier. 

19.       On 01.11.2004,  when the seniority list was not finalised and this Bench decided to summon Secretary, DoT., on 22.11.2004, the department hurriedly passed order on 11.11.2004 and once again, reverted those 68 TES Grop 'B' officers (Annexure-A/10) and made it subject to the final outcome of the Kerala High Court judgment.  However, the revised seniority list No.5 issued on 15.11.2004 (its Karnataka extract seen at Annexure-A/13) still contained names of these reverted officers as can be seen from Sl. No.348 M. Sudeendra onwards.  They are all arranged as per their year of qualifying examination.  Since, the reversion dated 11.11.2004 is also challenged in the High Court of Punjab and Haryana and the High Court of Delhi, the list No.5 was still not final.  Another list issued on 12.1.2005 which is continuation of List No.5 finds the names of Unqualified seniors such as present applicants and applicants of OA No.624/1997, etc., whose year of recruitment ranges between 1974 to 1982 and who, therefore, claim a position above Sudheendra recruited in 1982.

20.       Annexures-A/15 and A/16 are the two orders of the Kerala High Court passed in 2008, where the applicants were aggrieved by the department's order dated 11.11.2004, i.e., second reversion.  While quashing it, the High Court has clarified that "if there is dearth of vacancies as on 22.07.1996 to accommodate all promotees, the excess junior hands can be reverted.    Accordingly, the impugned order at Annexure-A/17, dated 9.3.2009, states that:
"In pursuance of the order dated 1.12.2008 of the High Court of Kerala and another order dated 11.8.2009 of the High Court of Delhi, the DoT order dated 11.11.2004, reverting the 1966 officials is quashed and that there shall be no reversion pursuant to the said DoT order dated 11.11.2004.
In order to give effect to these two orders, the management of BSNL approves creation of 1369 supernumerary posts for the period 21.101998 to 25.4.2000 vis-a-vis 1966 abolished posts created vide DoT letter No.5-1/93-TE-II, dated 15.10.1998".

21.       This itself shows that the department is no longer claiming that the supernumerary posts are available with effect from 15.10.1993 as was tried to be done by order dated 15.10.1998.  They are creating these posts with effect from 21.10.1998 which is after the date of judgment of this Tribunal in OA No.624/1997. 

22.       Before proceeding, we would consider the arguments of private respondents No.4,5 and 6 in OA No.227/2009.In the reply statement, Respondent No.6, has raised an objection that the application suffers from non-joinder because all the 1966 promotees are not impleaded as a party.  This plea is rejected in view of the following: 
i)             Gurpreet Singh & Ors. Vs. Union of India & Ors. - 2000(1)SLR 49.
ii)            Hari Singh Kaushal Vs. Union of India & Ors. - 2006(1) ATJ 379 in
which with judgment of Hon'ble Supreme Court in Janardhan Vs. Union
of India – 1983 (2) SLR 113  has been referred and relied upon.
iii)           V.K. Jain Vs. P.S. Gupta – 2002() SCT 521 in which reliance on the same
question was placed on the decision in the case of Janardhana (supra)
and The General Manager, South Central Railway, Secunderabad & Anr.
Vs. A.V.R. Siddhanthi & Ors  - 1974 (1) SLR 597.

            In the above cases, it was inter alia held that where the seniority list is impugned on the ground that the same has been drawn up on illegal and invalid grounds and the relief claimed is basically against the Government, impleading of individual employees is not essential and will not make the case invalid.  Also, when there is a challenge to the principle of determination of seniority the persons who are likely to be adversely affected are not necessary parties.  They are at the most a proper party.  Their absence is not fatal to the maintainability of the position.  Therefore, there is no infirmity in the order and there was no necessity to implead all the parties, numbering in thousands, as parties to the proceedings.

23.       The applicants have prayed to assign seniority to them above those officials whose seniority is restored by the impugned order Annexure-A/17.  The Respondent No.6 has pointed out that the names of the 1966 reverted officers was deleted from the seniority list No.3 to 5 vide order dated 11.11.2004, whereas, the present applicants were promoted on 26.4.2000 and their seniority is fixed in list No.6.  However, since the order dated 11.11.2004 stood quashed by the Kerala High Court, the present applicants whose names appear in the seniority list No.6, will have to stay junior to those 1966 reverted officers against whom the order dated 11.11.2004 was passed and their names were deleted in List No.3 to 5, but, have been restored back to the list No.3 to 5.  This argument of Respondent No.6 as well as those from Respondents No.4 and 5 do not go beyond the point that since the reversion of 1966 officers has been annulled by the orders of High Courts of Kerala and Delhi, therefore, they will remain senior to the present applicants. We cannot agree with this.  The only protection that the 1966 reverted officers have been granted is a protection from their reversion compared to the promotion of many more junior officers promoted on 26.4.2000.  But, it cannot be against the present applicants whose case stands supported by the judgment of this Bench in OA No.624/1007 as well as 946, 1034 of 1998 and 94 of 1999, also supported by the judgment of High Court of Karnataka in Writ Petition No. 43253-55/1999.

24.         Thus, in a nutshell:-
(A).      From their own affidavit before us in the present OA, the whole complication began with the verdict of Allahabad High Court in the Writ Petition of P.N. Lal decided in 1985.  To save the reversion of 550 promotee JTOs, the department needed to promote another 7700 JTOs.  For this, they had 3235 vacancies, 944 sanctioned posts and another 885 justifiable posts, thus, reaching a figure of 5064.  This necessitated creation of 2636 posts which was like borrowing from future vacancies and the order was passed on 15.10.1993. Thus, on that date, the department had a vacancy position of minus 2636 (negative) TES Group 'B' posts.  If that be so, how could the department issue orders on 15.10.1998 creating 1966 posts with effect from the same date of creation of 2636 posts, i.e., with effect from 15.10.1993 (refer para 9 supra).  This situation has now been corrected by Annexure-A/17, which agrees that the supernumerary posts are not from 15.10.1993, but from 21.10.1998 onwards.

(B).      As seen from the judgment of Kerala High Court annexed at Annexure-A/15, the department has given an affidavit that at the relevant time (i.e., date of new R.Rs coming into force, i.e., 23.7.1996), there were 4200 vacancies against which altogether 3629 JTOs were promoted as per the old rules and hence, none of those 3629 JTOs need to be reverted in favour of those unqualified seniors, who could stake their claim of seniority only for the vacancies arising after 23.7.1996.  It is not understood as to how the department which had already over-drawn 2636 vacancies on 15.10.1993, was still having 4200 vacancies on 23.7.1996, i.e., within a span of 3 years.  The respondents have produced no record to show their circlewise vacancies nor any record to show whether any promotions were given between 15.10.1993 to 22.7.1996 against those vacancies.  It would be much better if the department dealt with this issue circlewise. 

(C).     The statement about 4200 vacancies does not refute that for Karnataka Circle, there were only 61 vacancies prior to 23.7.1996.  OA 624/1997 was agitated on the ground that 129 JTOs of Karnataka Circle were given promotion after 23.7.1996 when only 61 vacancies were available.  Accordingly, the respondents were directed to revert the remaining 68 JTOs.  The claim of the present applicants as well as the applicants in OA No.624/1997, etc.,  was against these 68 persons irrespective of 4200 vacancies.  We notice that applicant No.5, Smt. Sandhya Upadhyaya in this OA, was also applicant No.14 in OA No.624/1997.  To circumvent this, the department has played the gimmick of passing the order dated 15.10.1998 under which the 1966 posts were created with effect from 15.10.1993 on which date, as we have earlier pointed out, they had already over-drawn 2636 posts against their future vacancies.  This was challenged in OA No.946/1998 and 1034/1998 and OA No.94/1999  and was quashed on 31.8.1999.  Thereafter, on 19.10.2000, a reversion order for 68 officers of Karnataka Circle was also passed.  Those reverted officers challenged in OA No.1664/2000 and other connected matters mainly on the ground that even disregarding the fact of their having passed the qualifying examination, but, going simply by seniority, they hold the position senior to some of the other JTOs, who have been promoted on 26.4.2000, hence, their reversion dated 19.10.2000 be quashed.  Thus, this Tribunal directed not to revert them before the respondents had examined their seniority vis-a-vis all those promoted on 26.4.2000. The respondents were directed to do this within three months.  We find through various subsequent events that during the date of this order, i.e., 8.10.2001 and today, there were various orders some times reverting them, sometimes restoring their seniority, sometimes deleting their names from the seniority list and sometimes restoring their names back in the seniority list,  but on no occasion, the department has carried out the exercise of comparing the date of recruitment of those 1966 JTOs (68 out of the  at Annexure/A3), with the recruitment dates for 5626 JTOs promoted on 26.4.2000.  The situation, as on today, is that  all those 1966 JTOs have enjoyed continuous promotions with effect from 15.10.1998, thus, making the outcome of the decisions of OA No.624/1997 and 946/98, 1034/98 and 94/1999 as infructuous.

25.       The respondents have tried to  explain that "in view of various judgments of the High Court of Kerala, Delhi High Court , etc., the continuous promotion of 1966 JTOs as TES Group 'B' has remained protected.  The impugned order Annexure-A/17, is an outcome of those judgments and the hands of the department are tied-up and hence Annexure-A/17 cannot be quashed".

26.       We would not like at this stage to go into the details of the creation of 1369 super-numerary posts as against the earlier agitated 1966 posts (accommodating for some posts that have gone out from BSNL to MTNL). However, we cannot overlook that by department's own contention, these posts have been created with effect from 21.10.1998 to 25.4.2000.  This is obviously an effort to settle them as senior to the unqualified seniors who received their promotion on 26.4.2000.  We agree that many of them may be juniors to these 1966 persons as judged by the date of recruitment.  Yet, many of those 5626 promotions are definitely recruited earlier.  For example, the present applicants.  Hence, we agree with the claim of the present applicants that their seniority should be fixed in comparison to the seniority of those 68 TES Group 'B'  Karnataka Officers who are mentioned in Annexure-A/3, starting with Sudheendra, Ramakanth Naik, etc.

27.       We accordingly, direct that as far as the present 16 applicants of Karnataka Circle are concerned, their date of recruitment should be compared with the dates of recruitment of these 68 officers in Annexure-A/3 and strictly as per that comparison, their seniority should be adjusted vis-a-vis those 68 officers. The seniority list No.5 and 6 will be modified to that extent.  The respondent department shall carry out this exercise within 2 months of this order, and give them the notional seniority.  Consequential financial benefits will accrue from the date of this order.  The O.As are disposed of accordingly.

28.         No order as to costs.


            (V. AJAY KUMAR)                                               (LEENA MEHENDALE)
                 MEMBER (J)                                                            MEMBER (A)

psp.
The purpose of this creation is simply to protect them from reversion.  The applicants are not claiming that the reversion of these 1369 people should continue.  They are simply demanding their own placement above these officers.

20.       It is pertinent to note that the department has still not finalised the seniority list.  As the 1966 employees belong to various parts of the country, there were Writ Petitions in the High Court of Kerala,  and the High Court of Delhi.  On 11.2.2005, the Kerala High Court in CMP No.60734/2001 directed to make promotions against the 1/3rd merit quota on the basis of merit examination conducted in September, 2003. Accordingly, 122 officers were promoted on 22.3.2005, however, subject to the final decision in OP No.37134/01 and 21656/01 pending before the High Court of Kerala.  In addition, the department order dated 11.11.2004 was also quashed by Kerala High Court in WP No.8245/05, thus, quashing the seniority lists No.4,5 and 6 also.  Following this order of Kerala High Court, the Delhi High Court as well as the CAT, Chandigarh, directed the department not to revert any officer in pursuance to order dated 11.11.2004.  Hence, the department, on 9.3.2009, created 1369 super-numerary posts with effect from different periods ranging from 21.10.1998 to 25.4.2004 and restored the seniority of officers in the seniority list No.3 and 5.  This action has been challenged in the present OA.
22.       The written statement of the respondent department  do not meet the requirement of logic, or of numbers or of transparency.


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