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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