Friday, October 11, 2013

Bgl CP 22/2012

Bgl  CP 22/2012


In TA Nos.123/2009,124/2009, 125/2009 & OA 95/2010

 Dated this                 the     day of         , 2013


  Applicants In TA 123/2009:

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

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

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

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

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

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

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

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

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

10. F.M. Andrade,
Staff No.17396,
Working as Asst. General Manager

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

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

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

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

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

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

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

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

    Applicants in TA 124/2009:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

     Applicants In TA 125/2009:

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

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

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

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

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

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

    Applicants in OA 95/2010:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

One earlier rough draft as available in the dictation to sarala is as below --

TRANSFERRED APPLICATION NOS.123/2009, 124/2009, 125/2009





This contempt petition which arises out of TA No.123/2009 has its origin going back to 1985 and has many unsolved issued which have been dealt with by various Benches of the Tribunal as well as some Benches of the High Court and the Apex Court also. All those cases are the fall out of a historical case of P.N.Lall Vs. Government of India decided by the Allahabad High Court in 1985.

2. The Department of Telecom has a large number of officers at the entry level of JTO (Junior Telecom Officer) whose next higher promotion is called SDE or alternatively as TES Group 'B'. The respondent department had evolved two methodologies of promotion based on merit and seniority respectively according to the recruitment rules of 1981 supplemented in 1986 and 1987, 1/3rd promotions were to be given to meritorious JTOs on the basis of merit competitive examination. For the remaining 2/3rd promotions also there was the requirement of seniority as well as passing of a qualificatory examination. The prayer of P.N.Lal in the Allahabad High Court was that his promotion should be given with reference to the date of qualifying examination and not with reference to the date of entry in service as was the practice of the department till then. This contention was upheld by the High Court of Allahabad by their order dated 26.4.2000 which was challenged in the Supreme Court and the decision of the Allahabad High Court was upheld. He took support of para-206 of the manual of the department for guiding promotions, the Hon'ble Supreme Court in CA No.4339/1995.

3. As seen from OA No.398/2009 some recruitment rules were framed in 1966 under which the seniority in the feeder cadre of Junior Engineers was required to be fixed based on the year of recruitment. The recruitment rules were amended in 1981 and then in 1986 and again in 1987, introducing the concept of merit based promotion. Para-206 of the P&T Manual contained a provision for the promotion of TES Group 'B' the seniority in the lower cadre had to be fixed from the date of passing the qualifying examination and not with regard to the recruitment of cadre. But the department continued to prepare eligibility list of JTOs as per the year of recruitment. One Sri P.N Lal in a Writ Petition filed before the Allahabad High Court contended that in view of para 206 of the P&T Manual the promotions had to be made with reference to the date of passing the qualifying examination and not with reference to the date of recruitment in the feeder cadre and claimed promotion from the date of his juniors as per the date of passing the examination had been promoted. The Allahabad High Court upheld that contention by its judgement date 20th February 1985. The Department challenged that judgement before the Apex Court in an SLP. However, that SLP was dismissed on merits on 8th April, 1986. Following that decision different Benches of the Central Administrative Tribunal (CAT) passed orders in several cases directing the Department to give promotions to several Applicants from a date prior to the date on which the juniors on the basis of date of passing the qualifying examination had been promoted. The implementation of several orders posed some problems and ultimately the Hon'ble Principal Bench of CAT in its order dated 28th February 1992 gave some directions and the Apex Court also affirmed the same. The Department prepared fresh eligibility list of JTOs in accordance with the decision in P.N.Lal's case and after holding review DPCs issued in revised seniority list in TES Group-B.

4. The Junior Telecom Officers Association gave a reprsentation to the department that the implementation of the judgement in P.N.Lal's case and other Tribunals oarders would result in reversion of 550 officers who had been promoted earlier on the basis of their seniority with reference to the year of recruitment and that their reversion had to be prevented. A Committee was constituted to go into that question and suggest remedial measures which had to be taken for preventing the reversion of those 550 regularly promoted officers. The Committee informed that to avoid the reversion of those 550 officers 7700 JTOs who had become seniors to them on the basis of date of their passing the qualifying examination had to be promoted as Assistant Engineers (SDE). The Committee found that as on 31st March 1993 there were already 3235 vacancies, that 944 posts had been created upto 31st March 1993 and that as such 4179 posts were already available. The Committee also found that creation of 885 posts which were justified had been held up on account of the ceiling which had been fixed. The Committee suggested that those 885 justified posts could be allowed to be created by the Circles in relaxation of the ceiling limit. Taking into account those 885 posts as well as the posts already available, the committee recommended creation of balance of 2636 posts for the purpose of avoiding reversion of 550 officers. On the basis of that recommendation necessary orders were passed including the order dated 15th October 1993 creating 2636 TES Group-B posts. After the creation of the posts, promotions were effected in all the circles to avoid the reversion of 550 officers.

5. In its representation the Association had also put forth a grievance that as a result of the judgement in P.N.Lal's case and the other orders of the Tribunal, the later recruited officers would get promotion earlier to the senior officers and that even in future recruitments the JTOs of later years may become seniors to the JTOs of earlier years of recruitment and that this would cause seniors aberration and the qualifying examination no longer remains qualifying examination. This aspect was examined by the Department and to alley the above grievance new TES Group-B Recruitment Rules, 1996 were framed. These new Rules came into force from 23rd July 1996. The new Rules have done away with the qualifying examination for promotion to TES Group-B posts. Under these Rules 75 percent of the posts have to befilled up on the basis of seniority cum fitness and 25% on the basis of a departmental competitive examination from the cadre of JTO.

6. In S.L.P. No.26701 of 1995 the Department made a statement before the Hon'ble Supreme Court that vacancies which were existing till the new Rules came into force on 23rd July 1996 would be filled up in accordance with the Rules which were in force prior to the new Rules. The Hon'ble Supreme Court after recording that submission disposed of the SLP. Now there is no dispute about the position that the vacancies which arose prior to 23rd July 1996 have to be filled up as per the old Rules and that vacancies arising on and after 23rd July 1996 have to be filled up as per the new Rules.

7. In the light of the judgement the TA No.123/2009 came to be filed first before the High Court of Karnataka in W.P. No.9574/2008 and then transferred to this Tribunal. After some hearings it was agreed between both the Counsel that respondent BSNL would be willing to consider the case of all the 25 applicants if some details regarding their service conditions were furnished for ready reference in a chart like manner. Accordingly by the order of this Tribunal dated 20.9.2011 it was directed to the applicants to give information on 11 parameters as agreed by both the Counsel to the department. The respondents were directed to consider these representations in the light of judgement of Supreme Court dated 26.4.2000 within a period of 4 months.

8. When the CP came up for hearing it was contended by the senior Counsel for the BSNL that in view of the order of this Bench dated 20.9.2011 the department has considered the entire aspect and have passed a speaking order on 14.9.2012. The direction of this Bench was to examine all the applicants in the light of judgement of the Supreme Court dated 26.4.2000. However, the seniority of comparable officers such as V.K.Mohli and others have been revised on the basis of qualifying order in compliance with the judgement and orderof the Hon'ble Supreme Court dated 25.3.2008 in IA No.16 of CA No.4339/1995. The seniority based on qualifying order as per the principle laid down by Allahabad High Court have not contained finality. The above position of the Supreme Court in IA No.16 in CA NO.4339/1995 dated 25.3.2008 has therefore been applied to all the concerned officers. However, since these applicants were not a part of that group which had claimed the benefit of Allahabad High Court decision, there seniority has remained decided on the basis of their year of recruitment. The order further mentions that presently there are two SLPs filed by the BSNL which are pending before the Supreme Court being SLP No.5145/2012 and second being SLP No.3319/2012 which was filed against some of the contempt proceedings taken up with various Benches of CAT.

9. In view of this order the original respondent BSNL submit that the CP may be dismissed.

10. The Counsel for the respondent BSNL also relies on the judgement of the Madras High Court in W.P.No.34430/2007:
“49. Much emphasis is laid upon the above observations of the Supreme Court to contend that the benefit of the Judgment of the Supreme Court would be available to all those persons who are promoted on the basis of their qualifying examination. This contention does not merit acceptance. The Supreme Court has made the above observations, taking note of the fact that the petitioners in the Contempt Petition have obtained orders from various Benches of CAT and that they were not parties in 2000 (9) SCC 71 and I.A.No.16/06. The observation of the Supreme Court in Para 15 in Contempt Petition No.248 of 2007 is not of universal application applying to all those SDEs, who are placed in seniority as per para 206 of P&T Manual. By repeated observations, Supreme Court has clarified that the Supreme Court has not laid down any principles or law having universal application. In the order of the Supreme Court in Contempt Petition repeated emphasis was on the fact that the rights of the applicants were determined in a duly constituted proceeding, which determination has attained finality, a subsequent Judgment of a Court or Tribunal taking a contrary view will not aversely affect the applicants in whose case the orders have attained finality. The rights of the Applicants in the Contempt Petition were finally crytallised and determined in a duly constituted proceeding, which determination has attained finality.

50. The rights or the Writ Petitioners were not so determined in a duly constituted proceeding nor has attained finality. The refixation of seniority by the revised seniority list dated 17.01.2007 is in accordance with the direction of the Supreme Court in (2000) 9 SCC 71. The Petitioners, who were recruited subsequent to Respondents 4 and 5, viz., N.R.Shah and R.Tarakam (in W.P.Nos.6420 to 6424/07) being recruits of the year 1971 and Respondents 4 to 12 (in W.P.No.34430/07) being recruits of the year 1970-1972 were rightly placed above the Petitioners and the same cannot be challenged.”

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