Central Administrative Tribunal - Delhi
Uday Pratap Singh vs Union Of India Through on 23 August, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No. 591/2010 Reserved on: 16.08.2012 Pronounced on:23.08.2012 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE MRS. MANJULIKA GAUTAM, MEMBER (A) 1. Uday Pratap Singh, Aged about 39 years, S/o Sri Raja Ram Singh, R/o Qtr.No.83, Plot No.17, Road No.1, Gardanibagh, Patna. Presently posted at S.D.E. (OCB), Main Exchange, Patna. 2. Sanjay Kumar Singh, Aged about 41 years, S/o Sri Girish Mohan Singh, R/o Besides Tara Tower, North Shastrinagar, P.O. + P.S. - Shastrinagar, Patna. Presently posted as SDE, MDF PT Main Exchange, O/o PGM PTD, Patna. 3. Md. Farooque Azam, Aged about 40 years, S/o Late Md. Alauddin, R/o Old Azimabad Colony, P.O. - Mahendru, P.S. Sultanganj, Patna. Presently posted as SDE (IN), O/o CGMT, BSNL, IT - Section, Patna. 4. Rajeev Ranjan Chaudhary, Aged about 38 years, S/o Sri S.K. Chaudhary, R/o Jain Campus, Bardhman Colony, Naya Tola, Patna-4. Presently posted as ADT (YP-II), O/o CGMT, Patna. 5. Raju Kumar, Aged about 40 years, S/o Sri Shashi Bhushan Pd. Singh, R/o Near KPS KIDS School, East of Gokul Path, North Patel Nagar, Patna. Presently posted as SDE (Internal), Patelnagar Telephone Exchange, Patna. 6. Uday Shankar Prasad, Aged about 43 years, S/o Late Sri Mahadeo Prasad R/o 2nd Floor, Mahadeo Misthan Bhandar, Kadam Kuan, Patna. Presently posted as SDE (Internal), Patliputra Telephone Exchange, Patna. 7. Amitabh Kiran, Aged about years, S/o Sri Ishwar Prasad Singh R/o Road No.1, Azad Nagar, Kankarbagh, Patna. 8. Kaushal Kishore, Aged about 36 years, S/o Sri Ram Prit Singh, R/o Nagla Main Road, Malsalami, Patna City, Presently posted as SDE Project, Sanchar Parishra, Patna. 9. Satish Kumar, Aged about years, S/o Sri Shyam Narayan Roy R/o Moh. Jai Prakash Nagar, PO Ashiana Nagar, Patna. Presently posted as SDE OFC (Mtce) Main Exchange Building, Budh Marg, Patna. 10. Vidya Bhushan Pd. Karan, Aged about 42 years, S/o Sri Lal Deo Prasad, R/o F.No.405, Urmila Kunj Apartment, Ara Garden Road, Aagdeo Path, Bailey Road, Patna. Presently posted as SDE, OFC (M), Patna. O/o DE L.D. ETR, Patna, Main Exchange, Budh Marg, Patna. 11. Raymond Osta, Aged about 40 years, S/o Late Sri A.A. Osta, R/o 1/39, New Patliputra Colony, Patna-13. Presently posted as SDE Marketing, 1st Floor, Sanchar Sadan, O/o CGMT, Bihar Telecom Circle, Patna. 12. Awanish Kumar, Aged about 36 years, S/o Sri Radheshyam, R/o Mohalla Jairam Bazar, (Opp. Studio Photo Unique), Khagaul, Patna. Presently posted as SDE M/W (Project) Anisabad, Telecom Exchange, Patna. 13. G. Prasad, Aged about 42 years, S/o Sri Murari Prasad Srivastava, R/o C/o Ramesh Prasad, Shanti Nagar, SBI Colony Road, Takiapar, Danapur, Patna. Presently posted as SDE (M/W Project) Anisabad, Patna. 14. Arun Kumar, Aged about 47 years, S/o Sri S.D. Srivastava, R/o Flat No.203, F-Baidnath Apartment, Road No.3, West Mahesh Nagar, Patna. Presently posted as Sr.SDE (O/f). ..Applicants By Advocate: Shri Raees Khan. Versus 1. Union of India through The Secretary, Department of Telecommunication, Sanchar Bhawan, North Block, New Delhi-1. 2. The Chairman-cum-Managing Director, Bharat Sanchar Nigam Limited, Statesman House, Barakhamba Road, New Delhi. 3. DDG (SR), BSNL Co. New Delhi. 4. The Chief General Manager, Bihar Telecom Circle, Bharat Sanchar Nigam Limited, Patna. .. Respondents By Advocate: Shri Rajnish Prasad. ORDER
Mrs. Meera Chhibber, Member (J) Applicants, who are working as Executives in BSNL, a Company incorporated under the Companies Act, 1956, came into existence on 1.10.2000 have challenged the RRs of Management Trainees (Revised) and sought direction to the respondents to consider the experience of Executive working in the department and treat them as Senior to Management Trainees who are yet to be recruited by the BSNL and to consider the eligibility of all the officers in Executive Level irrespective of their age and qualification for the above post.
2. It is submitted by the counsel for the applicants that after formation of BSNL, RRs for the Management Trainees have been notified on 1.9.2009 (Annexure-A), according to which, an Executive who has more than 4 years of experience would not be considered eligible because for the internal employees, age has been fixed as 36 years, which is evident from page 32 while for the Management Trainees (external), age has been put as 30 years. Since all the applicants are above 36 years of age, they would not even be considered thus resulting in discrimination because persons, who would be much junior to them would be considered for the next post.
3. Respondents on the other hand have opposed this OA. They have stated that answering respondents have acted in consistence with directions contained in Tribunals order dated 6.8.2002 in OA No. 298/2002 and accordingly they had called for options for absorption from Group B Officers in BSNL vide Notification dated 2.9.2003.
4. They have explained that BSNL is a leading Telecom company and is effectively providing the telecom services and has to face stiff competition in the market. The MR RR-2009 have been framed keeping in view the service requirements of the organization/organisational need whereby requisite eligibility conditions by way of age, educational qualification and experience are identified and formulated with the intention of getting the best Managers for the organization at the middle level though fast track promotion for achieving the business goals in the changing business scenario.
5. They have further explained that Column-6 of the Schedule of the BSNL MTRRs provide the age limit of 30 years for MT external and the age limit of 36 years for the MT internal, relaxable in case of reserved category candidates as per Government guidelines. Age limit is to be reckoned as on 1st August of the year of Examination. The age limit of 36 years has been prescribed for insiders as against 30 years prescribed for external candidates which itself shows that the interest of the internal candidates has been kept in mind. The provisions prescribed in the MTRRs-2009 are fully just, reasonable and rational with the intention of getting the best Managers for the organization at the middle level. In any case, it is a policy decision which cannot be interferred by the Tribunal unless it is shown that the RRs are absolutely arbitrary in nature and have been issued with an oblique motive which is not the case here.
6. In the additional affidavit filed by the BSNL, they have annexed BSNL Management Services RRs, 2009 which are operative from 11.6.2009 to show that applicants have a separate avenue of promotion on the basis of selection-cum-seniority and it has been clarified under Note-2 that the existing incumbents holding the post of Executives on regular basis on the date of notification of these RRs shall continue to be eligible for promotion to the grade of DE/AGM/CAO irrespective of their qualification. They have thus stated that the applicants are not adversely affected, therefore, no interference is called for. The OA may be dismissed.
7. They have also referred to other cases wherein RRs were challenged by the different parties and those OAs have been dismissed.
8. We have heard both the counsel and perused the pleadings also.
9. Perusal of main RRs show that for the post DE/CAO/AGM which is equivalent to STS, i.e., E-4 promotion, there are two modes of recruitment, one, by way of direct recruitment and the other, by way of promotion from the SDE/AO level on the basis of selection-cum-seniority. To be more precise, the relevant portion is quoted below:-
S. No. Grade (Equivalent) IDA Pay scale in Rs. Method of Recruitment Whether selection by Merit or Selection cum seniority or Non-selection post Field of selection/ minimum qualifying service for promotion inter-se seniority 1 2 3 4 5 a. From directly recruited MTs, to the extent of vacancies decided by BSNL every year subject to max. of 50% of the posts As per Management Trainee Recruitment Rules (MTRR) b. 50% of posts by Promotion from SDE/AO Level executives Selection-cum-seniority From regular SDE/AO or equivalent grade of concerned stream, who are engineer-ing graduate/ graduate (as detailed at note 2 below) from an Indian Institute/ University recog-nized under Indian Laws, with total qualifying service of 7 years as on 1st January of the year.
Moreover, Note-2 is also quoted below which reads as under:-
Educational qualification for executives to be promoted to the grade of DE/AGM/CAO (see serial no.1b, column no.5) shall be engineering degree or equivalent in Telecommunications, Electronics & Computers/IT/Electrical for Telecom Operations and graduate or equivalent in respect for Finance of BSNLMS. However, existing incumbents holding the posts of Executives on regular basis on the date of Notification of these RRs shall continue to be eligible for promotion to the grade of DE/AGM/CAO.
10. Counsel for the respondents, BSNL also made a statement at the bar that the existing incumbents would be considered for further promotion as per the above RRs irrespective of their qualifications meaning thereby that the applicants would also be considered for promotion as per their turn irrespective of their qualification, therefore, it cannot be stated they are adversely affected or the RRs are arbitrary. In fact perusal of Schedule IA which has been quoted above shows that 50% of the posts would be recruited directly as MT Management (Trainees) as per Management Trainee Recruitment Rule (MTRR), while 50% of the posts are to be filled by way of promotion from SDE/AO level executives on the basis of selection-cum-seniority, meaning thereby that the regular SDE/AO working in BSNL also have avenue of promotion as per the above RRs. If BSNL, in its wisdom thought that 50% of the posts should be filled directly through open market, the SDES working in BSNL cannot have any objection because it is for the authorities to decide how they wish to maintain excellence in their operations. One could understand if there were no promotional avenues for the applicants at all but so long their interests are protected by providing 50% of the posts to be filled by way of promotion, applicants cannot challenge the other mode which is to be filled by directly recruited persons from outside. After all it is a policy matter which cannot be interferred by the courts, nor can we sit over the wisdom of the executive in choosing the mode of recruitment or the categories from which recruitment is made as that is within the purview of the Executive. In State of Andhra Pradesh Vs. V. Sadananda and Others 1989 supp.(1) SCC 574, it has been held by the Honble Supreme Court as follows:-
The mode of recruitment and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the executive. It is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive.
Thus, we are supported by Honble Supreme Court in taking the above view. Even otherwise, it is seen that OA 983/2010 was filed by All India Graduate Engineer Telecom Officers Association for challenging the Foot Note-2 of Schedule IA dealing with promotion to DE/AGM/CAO as the directly recruited Executives felt that those who do not fulfill the eligibility as per the RRs should not be allowed further promotion on the ground that this note is in violation of minimum educational qualification to STS and above which are technical and professional in nature. The said OA was dismissed on 25.2.2011 by the Madras Bench of the Tribunal by observing that Foot Note-2 of Schedule IA of the BSNL MS cannot be considered to be arbitrary or illegal. Similarly in Writ Petition No.16753/2010 filed by P. Srinivasa Rao and Others Vs. BSNL and Others, Honble High Court of Judicature, Andhra Pradesh at Hyderabad held as follows:-
The BSNL in order to maintain excellence in its operations can choose its own policy of recruitment for absorbing efficient personnel to face the increasing competition from the private sector. The petitioners have no locus standi to contend that the post of DGM has to be filled up only by promotion from the category of DE/Chief Executive Engineers/AGMs, we are unable to agree with the contention of the petitioners that E4 scale of employees in metropolitan cities like Mumbai and Delhi were performing the same duties and functions on par with the Sub-Divisional Engineers who are in E3 scale and working in the rest of the country and prescribing pay scale i.e. E4 grade for PSU employees and not prescribing any pay scale for the private sector and prescribing the eligibility criteria for private sector employees basing on the gross salary of Rs.7 lakhs per annum or working in a company which has turn over of 100 crores or above irrespective of the salary of the employee is a positive and hostile discrimination of the PSU employees. We do not think that the rules made and the eligibility criteria prescribed for the post of DGM are either arbitrary or discriminatory. It is for the employer to prescribe the eligibility criteria and the competence of the employer cannot be questioned by the petitioners so long as the criteria prescribed is uniform and with the object of absorbing more efficient and talented people for effective functioning of the organization. It is not open for the petitioners to contend that there is no nexus between the criteria prescribed and the object sought to be achieved and further there is no force in the contention that the impugned recruitment rules are arbitrary, illegal and discriminatory and violative of Articles 14, 16 and 21 of Constitution of India.
11. Though this case was for promotion to the post of DGM but the grounds taken were almost the same as taken in the present OA. We are thus satisfied that the issue has already been adjudicated upon at different levels by the courts. We find no illegality in the RRs framed by the respondents for the post of DE/CEE/AGM as promotional avenue has already been provided to the applicants as well, who are working as Executives in BSNL on regular basis irrespective of their eligibility.
12. In view of above, we find no merit in the OA. The same is accordingly dismissed. No costs.
(MRS. MANJULIKA GAUTAM) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh