Friday, November 2, 2012

OA 216 / 2009, 260 / 2009 308 / 2009, & 13 / 2010 on ????? 2012


CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE

ORIGINAL APPLICATION Nos. 216/2009, 260/2009 308/2009,  & 13/2010

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

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

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

OA No.216/2009

B. Ramachandra,
S/o Late Boraiah,
Aged 53 years, Working as
Sub-Divisional Engineer,
O/o the Divisional Engineer (External),
BSNL, Basaveshwaranagar,
Bangalore – 560 079.                     

OA No.260/2009

1.C. Nagarajaswamy,
   S/o Late Chikkalingaiah,
   Aged 54 years, Working as
   Sub-Divisional Engineer,
   O/o the Divisional Engineer (External),
   BSNL, Basaveshwaranagar,
   Bangalore – 560 079.      
           
OA No.308/2009

1. B.A. Parameshwarappa,
   S/o B. Ajjappa, Aged 49 years,
   Working as SDE, CSC-III,
   BSNL, Mandipet, Davangere,
   DTO Building, Davangere.

2. M.S. Vidhyadhar,
   S/o Late Siddaiah, Aged 50 years,
   Working as SDE, Transmission,
   Telephone Exchange, Nazarbagh,
   Mysore – 570 004.                                    ...                         Applicants

(All 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. P. Shivamurthy,
   Sub-Divisional Engineer,
   C.T.S.D., B.S.N.L., Magadi Road,
   Bangalore – 560 079.

5. Sri A. Subramanya,
   Sub-Divisional Engineer (Comm),
   O/o the AGM, Telecom (BSNL),
   Kunjibettu, Udupi – 576 102.
6. Ms. P. Himaya Rani,
   Sub-Divisional Engineer, Out Door,
   The Telephone Exchange, BSNL, Ulsoor,
   Bangalore – 560 008.

7. Sri Poster Thimmappa,
   Sub-Divisional Engineer (MM),
   O/o TDM Telecom,
   New Nehru Stadium, BSNL,
   Rangamandir Road, Bidar – 585 401.

8. Sri K. Karagapa,
   Sub-Divisional Engineer (Cable),
   Out Door, Hosakerehalli Exchange,
   BSNL, 100 Feet Ring Road,
   Banashankari III Stage,
   Bangalore – 560 085.


9. Sri B.L. Shiva Kumar,
   Sub-Divisional Engineer (HRD),
   O/o the CGM QA, Sanchar Complex,
   BSNL, WMS Complex, 47th Cross,
   9th Main, 5th Block, Jayanagar,
   Bangalore – 560 041.

10.Ms. B.K. Mannamma,
    Sub-Divisional Engineer (Indoor),
   C.DOT Exchange, BSNL,
   80 Feet Road, HAL 2nd Stage,
   Indiranagar, Bangalore – 560 038.

11.Ms. D.P. Pramila,
   Sub-Divisional Engineer,
   12th Main, 4th Block,
   Telephone Exchange Building,
   Koramangala, Bangalore – 560 034.

12.Sri Cheluvaraju,
    Sub-Divisional Engineer (Installation),
    O/o the G.M. Telecom, BSNL Bhavan,
    B.M. Road, Hassan – 573 201.

13.Sri B. Rangaswamy,
    Sub-Divisional Engineer,
    O/o the G.M. Telecom, BSNL,
     Behind Head Post Office, Mandya-571 401.

14.Sri M. Ravishankar,
    Sub-Divisional Engineer,
    O/o the G.M., BSNL, 69, Temple Road,
    1st Cross, IV Block, Jayalakshmipuram,
    Mysore – 570 012.

15.Sri Hulgi Basavaraj Vaaral,
    Sub-Divisional Engineer (Switching Installation),
    O/o the D.E. Installation, BSNL,
    Belgaum – 590 001.

16.Sri P. Palanivelu,
    Sub-Divisional Engineer,
    O/o the DE External, BSNL,
    50 Feet Road, HAL II Stage, Indiranagar,
    Bangalore – 560 038.




17.Sri M.H. Gangaikoppa,
    Sub-Divisional Engineer,
    O/o the D.E. (Installation), BSNL,
    J.C. Nagara, Hubli.

18.Ms. P. Radha,
    Sub-Divisional Engineer (HRD),
    O/o the TDM, BSNL,
    Dr. Shanka Gowda Building,
    New E.K. Minu, Raichur – 584 101.

19.Ms. R. Mala,
    Sub-Divisional Engineer (Indoor),
    City Telephone Exchange, BSNL,
    Sampangiramnagar, Bangalore – 560 009.

20.Sri Rakesh S. Kadam,
    Sub-Divisional Engineer (Mobile Service),
    O/o the G.M., BSNL, M.G. Road,
    Bijapur -  586 101.
  
21.M. M. Anuradha,
   Sub-Divisional Engineer (I/D),
   Ulsoor Telephone Exchange, BSNL,
    Kensington Road, Bangalore – 560 0098.

22.Sri Arokia Raj,
    Sub-Divisional Engineer (External),
    BSNL, Milegres Building III Floor,
    Hampankatta, Mangalore – 575 001.


23.Ms. N. Vanitha,
    Sub-Divisional Engineer,
    Rural WLL Exchange, Ground Floor,
    CMX Building, Bansveshwara Circle,
    Bangalore – 560 009.

24.Sri G. Devendran,
    Sub-Divisional Engineer,
    BSNL, HAL Telephone Exchange,
    Vimanapura, Bangalore-560 038.


25.Ms. N.K. Mamatha,
    Sub-Divisional Engineer (Computer),
    O/o the CGM QA, Sanchar Complex,
    BSNL, WMS Complex 47th Cross, 9th Main,
    5th Block, Jayangar, Bangalore – 560 041.
26.Sri G. Kumareshan,
    Sub-Divisional Engineer,
    Telephone Exchange, BSNL,
    Malur, Kolar District.

27.Sri Mallikarjun S. Talikoti,
    Sub-Divisional Engineer,
    O/o the GM, Telephone Exchange Compound,
    BSNL, Belgaum – 560 001.

28.Sri Krishna N. Moger,
    Sub-Divisional Engineer,
    O/O the General Manager, Telecom,
    BSNL, Laxmi Complex, LLR Road,
    Shimoga – 577 201.

29.Sri H.M. Soratur,
    Sub-Divisional Engineer,
    CCI City Exchange, BSNL,
    Sampangiramnagar, Bangalore-560 009.

30.Sri S. Rajanna,
    Sub-Divisional Engineer,
    O/o the D.E., Basaveshwara Externals,
    BSNL, Magadi Road, No.1326/1,
    Caverinagar, Kamakshipalya,
    Bangalore – 560 079.

31.Sri Satish B. Asangi,
    Sub-Divisional Engineer,
    RSU Telephone Exchange,
    Koppal, BSNL, Koppal District.

32.Sri V. Mohan,
    Sub-Divisional Engineer,
    Telephone Exchange, Chellekere,
    BSNL, Davanagere District.

33.Sri Sunil Ganapathi,
    Sub-Divisional Engineer,
    O/o the G.M. Telecom, BSNL,
    Telephone Exchange Compound, Belgaum – 590 001.

34.Sri B.M. Budinal,
    Sub-Divisional Engineer (G),
    Chada Chan, BSNL, Bijapur – 586 101.



35.Sri Rajkumar L. Asangi,
    Sub-Divisional Engineer,
    O/o the G.M. Telecom, BSNL,
    Telephone Exchange Compound,
    Station Road, Bellary – 583 101.

36.Sri K.L. Shivanna,
    Sub-Divisional Engineer (Phones),
    Urban Telephone Exchange, BSNL,
    Belt Road, Chikkamagalur – 577 101.

37.Sri M.H. Prakash,
    Sub-Divisional Engineer,
    O/o the D.E. (R), BSNL,
    Davanagere – 577 006.

38.Sri J.H. Channa Krishnappa,
    Sub-Divisional Engineer,
    C.DOT Exchange, BSNL,
    Chikkaballapura, Kolar District.

39.Sri Mariyappa A. Dasar,
    Sub-Divisional Engineer (Groups),
    Kushal Nagara Telephone Exchange,
    BSNL, Kodagu District.                               ...                             Respondents

(By Advocates S/Shri M. Rajakumar, ACGSC for R-1, Shri Vishnu Bhat
for R-2 and 3 Ms. Saritha for R-6,9,13,14,16,24,25,26,32,37,and 38 in OA No.216/2009, S. Prakash Shetty, ACGSC for R-1, and  Shri V.N. Holla, ACGSC for R-2 and 3 in OA No.260/2009  M. Rajakumar ACGSC for R-1, and Shri Vishnu Bhat for R-2 and 3)

OA No. 13/2010
1. G. Nagaraj,
   S/o Late Hanumanthappa,
   Aged 47 years, Working as SDE,
   (CSC/MS), BSNL, 8th Main, Co-axial Building   
   P.J. Extension, Davangere.

2. Hanumanthappa Bajari,
   S/o Bhimappa, aged 48 years,
   Working as AGM (O&P),
   O/o GMT, BSNL Bhavana,
   P.B. Road, Davangere.                            ...                                 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. Ms. P. Radha,
    Sub-Divisional Engineer (HRD),
    O/o the TDM, BSNL,
    Dr. Shanka Gowda Building,
    New E.K. Minu, Raichur – 584 101.

5. Ms. R. Mala,
    Sub-Divisional Engineer (Indoor),
    City Telephone Exchange, BSNL,
    Sampangiramnagar, Bangalore – 560 009.

6. Sri H.M. Soratur,
    Sub-Divisional Engineer,
    CCI City Exchange, BSNL,
    Sampangiramnagar, Bangalore-560 009.

7. Sri V. Mohan,
    Sub-Divisional Engineer,
    Telephone Exchange, Chellekere,
    BSNL, Davanagere District.

8.  Sri B.M. Budinal,
    Sub-Divisional Engineer (G),
    Chada Chan, BSNL, Bijapur – 586 101.

9. Sri K.L. Shivanna,
    Sub-Divisional Engineer (Phones),
    Urban Telephone Exchange, BSNL,
    Belt Road, Chikkamagalur – 577 101.

10.Sri M.H. Prakash,
    Sub-Divisional Engineer,
    O/o the D.E. (R), BSNL,
    Davanagere – 577 006.
11.Sri J.H. Channa Krishnappa,
    Sub-Divisional Engineer,
    C.DOT Exchange, BSNL,
    Chikkaballapura, Kolar District.

12.Sri Mariyappa A. Dasar,
    Sub-Divisional Engineer (Groups),
    Kushal Nagara Telephone Exchange,
    BSNL, Kodagu District.                               ...                             Respondents

(By Advocates S/Shri M. V. RAO SCGSC for R-1, and
 Shri Vishnu Bhat for R-2 and 3)

O R D E R

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


            These four O.As have the same point as was involved in the other four O.As No.227/2009, 309/2009, 399/2009 & 440/2009, already decided by this Tribunal through an exhaustive discussion of facts and history and they apply to present O.As also.  The O.As arise out of 4 orders of the DoT (Now BSNL). 

2.         The first order pertains to the promotion of 68 JTOs of Karnataka Circle, for whom, there were no vacancies under the old Recruitment Rules and their promotions should have been guided by new Recruitment Rules dated 23.7.1996.  Their promotions were challenged and were quashed (with certain directions) by CAT, Bangalore in O.A. No.624/1997 on 23.07.1998.   The second order in question was passed by the department on 21.10.1998 creating 1966 posts of TES Group 'B' with retrospective effect  from 15.10.1993, which in effect, annulled the seniority claim of the present applicants and was also quashed by CAT, Bangalore Bench in O.A. No.946/1998, etc., on 31.8.1999.  The Tribunal order was challenged in High Court, but upheld by order dated 30.05.2000 in W.P. No. 43253-55/1999.  In the meantime, BSNL passed order dated 30.4.2005 which is seniority list No.5 and which continues to treat those promoted 1966 JTOs as senior. There followed a series of litigations whose history is narrated in the 4 O.As referred above.  All that resulted in the order dated 9.3.2009 of the BSNL, which is impugned herein.

3.         For the sake of convenience, the matrix of OA No.216/2009 is taken up for consideration.

4.         The applicants in OA. No.216/2009, 260/2009 and 308/2009, belong to Scheduled Caste category and the applicant in OA No.13/2010 belongs to Scheduled Tribe category, in contrast to the 16 applicants of earlier four O.As mentioned above, who all belong to the General category.

5.         The entire history narrated in OA Nos.227/2009, 309/2009, 399/2009 & 440/2009, holds good in this case also, except for the additional point that applicants here are from reserved category and the claim of some other promoted JTOs belonging to SC/ST categories in the Seniority List No.5, dated 30.4.2005 will have to be kept in mind.  The BSNL claims that, when they issued promotion order of JTOs on 21.10.1998 against the 1966 posts, which they were created retrospectively w.e.f.15.10.1993, they had promoted such qualified JTOs, who had passed the qualifying examination prior to the new Recruitment Rules.  In doing so, they overlooked the fact that all of the 1966 promotees belonged to General category.  Thus, their appointment would not take care of the statutory requirement for reservation to SC/ST category.  To take care of this aspect, they were required to hold the qualifying examination as was the requirement under the earlier Rule.  Hence, they conducted two examinations, one, in the year  2000 and another in the year 2003.  Those SC/ST JTOs, who qualified against such examination were required to be promoted under the older Recruitment Rules of 1981.  Hence, even though, their year of recruitment is subsequent to the year of recruitment of the present applicants, they have a claim of seniority over the present applicants, who are also from reserved category.

6.         We may recall here that, under the older Recruitment Rules, only those JTOs could be promoted to TES Group 'B' (Seniority Quota) who could pass the qualifying examination.  This Rule was changed with effect from 23.7.1996, when the criterion of qualifying examination was withdrawn for the 75% seniority quota.  Though for the 25% Merit quota, the requirement of Merit examination remained.  We are concerned only with the Seniority Quota at this stage.  The 39 private respondents are all those JTOs who have qualified in the qualifying examination held in 2000 and 2003.  The respondent department claims that because of such passing, they have a claim of seniority over the present applicants under the reserved category who have not qualified the examination.  It is for this reason, that their names have been included in the seniority list No.5 from Sl. No.379 to 413.  The applicants who have not qualified such examination, are therefore, included in Seniority List No.6, thus, making them junior to all those in the Seniority List No.5 including the 39 private respondents. 

7.         Thus, we have three points in the argument of both the counsels which needs to be examined:-

            (1)       Between 15.10.1993, on which date the department had created 2636 excess TES Group 'B'  posts in order to take care of the judgment in P.N. Lal's case and 23.7.1996 when the new Recruitment Rules became effective, what was the vacancy position available with the DoT?  How many vacancies were filled under the SC/ST reservation quota and what was the SC/ST vacancies remaining as on 23.7.1996.   Though, the respondents would submit that this aspect is important and the claim of the 39 private respondents for inclusion in the Seniority List No.5 arises out of this, they have not supported this stand by any authentic facts and figures.  On the contrary, we find that they have treated this factor as irrelevant in the present case for the reasons explained below.
            (2)       The 1966 officers promoted on 21.10.1998 are no longer occupying any posts created retrospectively with effect from 15.10.1993.  That claim of retrospective seniority has been dropped by the respondent department while issuing the impugned order dated 9.3.2009.  The supernumerary posts now created to accommodate them are created with effect from 21.10.1998 to 25.4.2000.  This part of the impugned order should be read along with the fact that on 26.4.2000, the respondents issued bulk orders promoting 5626 officers who are all from the seniority category and claim simply seniority (as per the requirement of the new Recruitment Rules), but, have not passed any qualifying examination which was the requirement of the older Rules prior to 23.7.1996. 

            (3)       It is also important to note that many JTOs promoted on 26.4.2000 are junior to the 1966 earlier promoted officers (now to be read as 1369 supernumerary officers).  Still, the fact remains that the 16 applicants in the earlier referred cases (O.A. Nos. 227/2009, 309/2009, 399/2009 & 440/2009) and the four applicants in the present four cases and perhaps, many more are senior to these 1369 supernumerary officers, when compared strictly on the basis of seniority.

8.         Thus, the pertinent question here is not of comparing the present 4 SC/ST applicants vis-a-vis the 39 private respondents of the SC/ST category, but, of comparing them vis-a-vis those 68 Karnataka Circle officers (from out of 1966), who cannot be treated as promoted under the older Recruitment Rules, but, have remained included in the Seniority List No.5.  We find therein that many out of those 68 officers starting from  Sudheendra at Sl. No.348 upto Shri Palani. T at Sl. No.379, appear above the 39 private respondents.  This demolishes the claim of the respondent department that these 39 reserved category officers have come against the reserved category vacancies that existed before 23.7.1996.  If by application of impugned order dated 9.3.2009, the 1966 posts lose their label of "created w.e.f. 15.10.1993", but, have acquired a new label of "created for the period 21.10.1998 to 25.4.2000",  then there is no availability of SC/ST posts prior to 23.7.1996 as a part of 1966.  The department may have to re-examine the whole issue of reservation and placement of present 39 respondents against reserved category vacancies prior to 23.7.1996, if there are any such.  Otherwise, they will have to be included as an additionality to the 1369 supernumeraries. Since, that issue is not before us, we would leave the department to complete their own exercise.  Hence, coming back to Seniority List No.5, we would not comment about what position should be given to these 39 SC/ST officers appearing at Sl. No.380 to 413 vis-a-vis Sudheendra and his group of 24 persons.  However, as far as the present four applicants are concerned, they have to come above Sudheendra and group in the Seniority List No.5, because, their year of recruitment is prior to the recruitment of Sudheendra and group.  Thus, their seniority over-rides those of Sudheendra and group, irrespective of whether they belong to General category or reserved category.

8.         We, therefore, direct the respondent BSNL, to modify the Seniority List No.5 and 6 to the extent that four present applicants will have to be placed above the position of Sudheendra and group.  The respondent BSNL, should carry out this exercise within two months from the date of this order and give them the notional seniority.  Consequential financial benefits will accrue from the date of this order.  No order as to costs.
             


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