Friday, October 11, 2013

Bom OA 398/2009

Bom OA 398/2009



Dated this ___________, the _____day of March, 2013.


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

(By Advocate Shri Narayana)


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

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

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


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were to be filled strictly on Seniority-Cum-Fitness basis and the need for passing the qualifying examination was withdrawn.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

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

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

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

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

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


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