Wednesday, October 9, 2013

O A No.398 of 2009 on --01/2013





Shri R.Rajendra,
S/o K.Ramaswamy Iyengar,
Aged 52 years, working as
Sub-Divisional Engineer, BSNL,
Shankarapuram [o/D] Shankarapuram,
Telephone Exchange, Bull Temple Road,
Bangalore – 560 019. ...Applicant

(By Advocate Shri S.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 Director.

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

(By Senior Central Government Standing Counsel Shri M.V.Rao  for Respondent-1 and Additional Central Government Standing Counsel Shri V.N.Holla for Respondents-2&3)



It  arises from a historical judgement given by Allahabad High Court  in P.N.Lal's case.  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.   This OA is filed on 19.8.2009 under Section 19 of AT Act, 1985.  Briefly the applicant was recruited as JTO (Junior Telecom Officer) in the year 1978.  He would be due for promotion as SDE which is a TES Group 'B' post on the basis of the qualifying examination.  However, the recruitment rules were amended in 1996 and the new rules provided that the promotion from JTO to TES Group 'B' would be based on seniority-cum-fitness.  However, the department gave an undertaking in the SLP nO.2601/1995 that the vacancies existing till the new rules came into force on 23.7.1996 would be filled up in accordance with the old rules.
2. All these would have resulted in reversion of nearly 550 officers from SDE to JTO.  To avoid that the respondents have promoted nearly 770 JTOs based on their date of qualifying examination.  The department already had 3235 vacancies as on 31.3.1993 and also had  justification for another 885 posts.  Therefore, the department created additional 2636 posts, after the creation of these posts promotions were affected in all the circles to avoid the reversion of 550 officers.
3. A little more confusion is added by the amendment to recruitment rules brought out in 1986 and 1987 in which for the first time a concept  of putting premium  had merit was brought in.    Under these rules, therefore 2/3rds of JTOs  were to be promoted as per seniority  by merely passing the qualifying examination whereas 1/3rd of JTOs were to be promoted  on the basis of their marks obtained in competitive examination.  In view of P.N.Lal's judgement the department formulated new recruitment rules of 1996.  Under these 3/4th of the posts (75%) were to be filled by seniority without requiring any qualifying examination and only 1/4th (25%) were to be promoted on merit basis by means of competitive examination.
4. Hence there is no dispute about the position that the vacancies prior to 23.7.1996 have to be  filled up as per old rules and the vacancies arising thereafter alone has to be filled up as per the new rules.
5. It is already mentioned above that the Department of Telecommunications created 1966 TES  Group 'B' posts retrospectively w.e.f. 15.10.1993 in order to accommodate 550 qualified JTOs vide their order dated 15.10.1993 and the promotions were actually affected from 21.10.1998.  Such a creation of 1966 posts with retrospective effect were challenged by non-qualified JTOs including some of the applicants herein.  One of such OAs was OA No.946/1998 which was disposed of by this Tribunal and it was decided on 31.8.1999 questioning the creation of 1966 posts with retrospective effect.    It was observed that on 23.7.1996 (which is the date of change of rules?) there existed  61 vacancies in the Karnataka Circle.  Hence the respondents were promoted directed to review the promotion orders and determine who among the private promoted respondents could be fitted against those 61 vacancies and thereafter revert the others.  It is seen from the judgement in OA No.946/1998 and that in earlier OAs numbered as OA No.624/1997 and 86/1998 in Karnataka Telecom circle the department had pleaded that there were only 61 vacancies prior to 23.7.1996 but due to misinterpretation some more vacancies which arose after 23.7.1996 had been filled up by promoting the qualified candidates on a temporary adhoc basis and that the respondents would give an undertaking that once the period of that adhoc arrangement comes to an end they would not extend the promotion for a further period and that only 61  vacancies could be allocated to the candidates who have passed the qualifying examination and that even if they have to make any local or officiating arrangements in respect of vacancies which arose after 23.7.1996 they would do so only on the basis of seniority cum-fitness as reflected in the combined circle gradation list.  This Bench after the undertaking given by the Department did not deem if proper to pass any further order and disposed of the applications making it clear that those candidates who have been given adhoc promotions in respect of vacancies which arose after 23.7.1996 would not be entitled to claim the benefit of such service which they had rendered in the higher post for the purpose of seniority vis-a-vis the applicants even if they ultimately get regularised.  These orders were passed on 23.7.1998.
6. Pursuant to the order dated 31.8.1999 in OA No.946/1998, the Writ Petition No.42553-54-55/199 were also filed and were also dismissed.
7. In the mean time, in yet another case i.e., CA No.4339/1995 and CA No.6485 and 6486/1998  the Supreme Court passed an order 26.4.2000 directing the department to revise the seniority list at TES Group 'B' officer  based on the year of recruitment.  However, the department promoted 5626 JTOs on regular basis vide order dated 26.4.2000  as per the Recruitment Rules of 1996 without reviewing the promotions effected against 1966 posts quashed by this Hon'ble Tribunal in OA No.946/1998.  Thereafter, the department recruited 65 officers from Karnataka circle  by an order dated 19.10.2000 and cancelled 1996 posts of SDEs  which were quashed by this Hon'ble Tribunal earlier.    The reverted officers filed OA No.1664/2000 and connected matters before this Tribunal against the order of their reversion.  This Hon'ble Tribunal by an order dated 8.1.2001 disposed of OA No.1664/2000 and connected matters directing the Department (a) to finalize the concerned seniority list of TES Group 'B' officers within 3 months.
8. Thus the crux of the matter is that on one had the creation of 1966 posts were quashed in OA No.946/1998 because those applicants did not belong to the merit quota but belonged to the seniority quota and the said 1966 posts were created to accommodate the merit quota that was based on the competitive merit examination.  However, when the department sought to blindly revert all of them then it turned out that some of them which later on typically came to be known as Shri M.Sudhidran group were not the junior most as seen from their date of original appointment and hence reversion were not justified.  It was for this limited grounds that the order of the CAT in OA No.946/1998 was stayed by the High Court  and later modified it.
9. Thus we find that the department of Telecommunications and later on BSNL have not carried out the exercise of properly reading the judgement in OA No.946/1998. The real issue is that the present applicant and many more like him who are claiming seniority based promotion are not given the rightful seniority based promotion despite the change in Rule in their favour in 1995. Therefore, date of seniority needs to be compared with respect to all those 1966 officers containing seniority based in  Seniority List 3-5 and if any one of them is junior than the present applicant then the present application shall be given a seniority over and above that person.  Therefore, we could not quash Annexure A17 but would direct the respondent department to compare the date of appointment of the present applicant in the cadre of JTO and dates of those 1966 candidates and give the present applicant  the same seniority as may have given to another person from amongst the list of those 1966 officers whose date of joining as JTO is immediately after the date of joining of the present applicant. The department shall carry out this exercise within three months.  OA is disposed of .  No order as to costs.



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