Central Administrative Tribunal - Delhi
All India Graduate Engineers & Telecom vs Cmd on 11 October, 2013
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-4100/2012
MA-3463/2012
MA-3659/2012
Reserved on : 03.10.2013.
Pronounced on :11.10.2013.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
1. All India Graduate Engineers & Telecom
Officers Association through its General
Secretary,
Amit Roy,
S/o Sh. G.S. Roy,
R/o MCF-4085, Sanjay Colony,
Sector-23, NIT Faridabad,
Haryana-121005.
2. Ajit Kumar,
S/o late Sh. Ramji Lal,
R/o Qtr. No.1, Type-IV,
BSNL Colony, New Kather,
Near Income Tax Office,
Solan, H.P.
3. Rajendra Singh,
S/o Sh. Hakim Singh,
R/o C-7, P&T Colony,(BSNL),
Vivek Vihar,
New Delhi-95. .. Applicants
(through Sh. M.K. Bhardwaj, Advocate)
Versus
1. CMD,
Bharat Sanchar Nigam Limited,
Corporate Office:
3rd Floor, Bharat Sanchar Bhawan,
H.C. Mathur Lane,
Janpath, New Delhi-1.
2. The Director (HRD)
Bharat Sanchar Nigam Limited,
Corporate Office:
3rd Floor, Bharat Sanchar Bhawan,
Janpath, H.C. Mathur Lane,
New Delhi-1. . Respondents
(through Sh. Rajnish Prasad, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) MA-3463/2012 for joining together in one application is allowed.
2. Following relief has been sought in the present O.A.:-
(i) To declare the action of respondents in not applying the same criteria for determining eligibility for appointment to the post of DGM under Direct Recruitment quota as prescribed for employees of private companies as illegal and arbitrary.
(ii) To declare the Recruitment Rules i.e. Recruitment Rules (2008) of directly recruited DGMs of BSNL Management Service as unconstitutional and ultra vires to the extent Executive of BSNL have not been treated eligible at par with employees of private sector.
(iii) To direct the respondents to declare the applicants/Executive of BSNL as eligible subject to getting annual gross salary approximately Rs.7 Lakhs for appearing in the direct recruitment DGMs exam of BSNL.
(iv) To quash and set aside RRs (2008) of directly recruited DGMs of BSNL to the extent the BSNL executives have been made ineligible to appear in DGMs exams/participation in selection process in DGM even after getting salary approx Rs.7 Lakhs per annum..
(v) To direct the respondents to give same advantage of BSNL Service/ACRs etc. to the applicants while deciding their eligibility and finalizing selection to the post of DGM as given to BSNL officials while making appointment to the post of Senior DGM.
(vi) To allow the OA with costs.
3. The applicants are Executives of BSNL having Engineering qualifications and are presently working in different posts of the level of JTO/SDE. They are aggrieved by issue of Notification in September, 2012 by the respondents inviting applications for direct recruitment to the post of DGMs in BSNL. Amongst other things, the following eligibility criteria/work experience has been provided in Para 3.3 of the aforesaid Notification:-
Eligibility Criteria/Work Experience:
Candidates from Public Sector, Private Sector and Government are eligible to apply. All candidates, however, must fulfill all three criteria mentioned in Recruitment Rules 2008 of Direct Recruitment DGMs of BSNL Management Services issued vide No.314-36/2008-Pers.1(Pt) dated 25.6.2009 as listed below:
(i) Twelve (12) years of post qualification working experience, as on 01.08.2012.
(ii) Minimum 3 years experience as on 01.08.2012 in E-4 grade as defined in DPE guidelines (IDA pre-revised scale Rs.14500-350-18700/Revised IDA Scale of Rs.29100-54500) in case of PSU experience or Equivalent annual gross salary, which comes to approximately Rs. Seven lacs gross, in case of private sector or CDA scale of Rs.1000-325-15200 (Pre-revised scale in case of government posts)/Revised scale PB-3 (15600-39100)+Grade Pat 6600.
(iii) Minimum work experience of 5 years, as on 01.08.2012, in a company with an annual turnover more than Rs.100 Cr. (in case of PSU, Private companies).
4. The contention of the applicants is that by this Notification the respondents have treated them inferior to the candidates of private sector, thus, depriving them of opportunity to apply for this selection. They have mainly taken the following grounds in support of their contention:-
(i) The action of the respondents in treating the applicants inferior to candidates of private sector is highly illegal and unjustified. Once the applicants fulfilled the criteria of getting gross salary of Rs. 7 Lakhs and 12 years of regular service in Telecom domain they should not be declared ineligible.
(ii) Thousands of Executives recruited in BSNL not only have basic Engineering qualification but also additional qualification such as ME/M.Tech./MBA. Such Executives have been rendered ineligible to apply for these posts even after putting in 12 years post qualification service in BSNL, simply because BSNL has not given appropriate Executive grade at entry level and career progression at par with other leading PSUs to their own Executives.
(iii) As per existing policy in BSNL, an Executive will require to serve minimum 19 years before he can satisfy eligibility condition of three years regular service in E-4 grade as asked for in the above advertisement.
(iv) Executives of BSNL which has a turnover more than 28,000 crores will not be eligible but if they leave BSNL and join a private sector company having a turnover of Rs.100 crores, they will become eligible.
(v) Outsiders have become eligible with 12 years post qualification experience in any domain whereas Executives of BSNL having experience of Telecom domain are not.
(vi) Many employees of private companies engaged by BSNL on contract basis and serving under the supervision of the applicants are eligible to participate in the said recruitment but the applicants are debarred.
5. The respondents have filed their reply in which they have rebutted the averments of the applicants. They have stated that BSNL has reserved 150 posts of DGMs for direct recruitment in Telecom Management Services. These are over and above the sanctioned strength of 1800 DGM posts in BSNL Management Services Recruitment Rules, 2009 which are to be filled by promotion. Further, they have stated that this is second round of recruitment under the direct DGM Recruitment Rules, 2008 for 106 vacancies in Telecom Management Services which were left unfilled in the previous round of recruitment held in 2009-2011. In that recruitment eligible Executives of BSNL had participated and have also succeeded on merits. They have further stated that the present advertisement for recruitment DGMs is not an internal examination but is open for all with the intention of getting the best managers for the organization from open market. They have gone on to say that the issue raised in the present O.A. has already been adjudicated in earlier rounds of litigation and the Recruitment Rules and Advertisement has been upheld by their Co-ordinate Benches of this Tribunal, namely, Hyderabad, Chennai and this Bench. Moreover, the order dated 06.07.2010 in OA-1044 & 1093 of 2009 of Hyderabad Bench was challenged before the Honble Andhra Pradesh High Court in Writ Petition No. 16753 of 2010, which was dismissed. The issue regarding discrimination vis-`-vis private sector candidates has also been considered and rejected by the Honble High Court in favour of BSNL.
6. We have heard both sides and have perused the material on record.
7. Learned counsel for the applicants has contended that it is no more res-integra that arbitrariness is negation of Rule of Law and, therefore, if the Courts find arbitrariness in state action they are competent to strike it down without being impeded by technicalities. According to him the present case of applicants is a clear case of discrimination and arbitrariness because Rs.7 Lakh package condition is discriminatory in comparison with private sector employees. BSNL candidates having 12 years of service and Rs. 7 Lakh package are not eligible to compete in the examination whereas private sector candidates satisfying this condition are eligible. The condition that BSNL Executives must be having experience in E-4 grade has caused great injustice to the BSNL Executives. He further stated that Recruitment Rules for the post of Sr. DGM were framed in 2011. For that not only Telecom experience is required but weightage has been given to the service rendered. However, this is not the case in Recruitment Rules for DGM. Relying on the judgement of Apex Court in the case of N. Abdul Bashir Vs. K.K. Karunakaran, 1989 Supp. (2) SCC 344 he stated that it was held that ordinarily it is for the Government to decide upon the consideration which in its judgment to be underlying factor in policy formulation. However, if the consideration is proved to be of no relevance to the object sought to be achieved, it is open to the Court to strike it down. Learned counsel argued that in the case of UOI Vs. Hemraj singh Chauhan, AIR 2010 SC 1682 it has been held by the Honble Supreme Court that the right to be considered for promotion is a fundamental right. In the case of A. Satyanarayana & Ors. Vs. S. Purshottam Dass & Ors., (2008) 5 SCC 416 it has been held that a statutory rule must be in consonance with the constitutional scheme.
8. Replying to the arguments of the applicants counsel, learned counsel for the respondents stated that the 150 posts ear-marked for direct recruitment are over and above 1800 posts available for promotion of the applicants. He reiterated that through this direct recruitment BSNL is seeking to select best talent from open market. As far as BSNLs own Executives are concerned, the promotional channel is open for them as per the relevant Rules. Moreover, he argued, that the issues raised by the applicants have been earlier considered by different Co-ordinate Benches of this Tribunal as well as Honble Andhra Pradesh High Court. In all these cases the contention of the applicants has not been accepted. He denied that the Rules were arbitrary or discriminatory. He said that private sector and public sector candidates have different attributes and cannot be compared and therefore different eligibility criteria has been formulated for candidates from different sectors. Rs.7 Lakh has been prescribed for private sector since initial gross salary of DGM would be around Rs.8 Lakhs. If more than Rs.7 Lakhs had been prescribed no one from private sector would have applied for this job. Relying on the judgment of Apex Court in the case of State of Andhra Pradesh and anr. Vs. V. Sadanandam and Ors., 1989 Supp.(1) SCC 574 he stated that in this case it was held that the mode of recruitment and the category from which the recruitment to a service should be made are of matters which are exclusively within the domain of the Executive and it is not for judicial bodies to sit in judgment over the wisdom of the Executive.
9. We have considered the submissions of both sides. Respondents counsel had contended that the contention of the applicants that DGM post can only be filled by promotion has been rejected by the Hyderabad Bench of this Tribunal. We have prused the judgment of the Hyderabad Bench dated 06.07.2010 in OA-1044 & 1093 of 2009 in which the following four issues had been framed for determination:-
(i) whether the respondents have the power to notify separate rules for direct recruitment?
(ii) whether the notification dated 25.06.2009 providing for direct recruitment is legally sustainable?
(iii) whether the applicants claim that all the posts should be filled up by internal BSNL candidates either by promotion or by direct recruitment is sustainable in law and to what relief if any are the applicants are entitled?
In their findings, the Hyderabad Bench had come to the conclusion that the BSNL Board has power to notify separate Recruitment Rules for direct recruitment and that the contention of the applicants that all the posts should be filled by internal BSNL candidates cannot be accepted. They also came to the conclusion that the BSNL Board wants to draw and attract the best talent from all sources. The requirement of 3 years experience in E-4 scale mentioned in Advertisement for the post of DGM is fully justified and reasonable.
9.1 We have perused the judgment of Honble Andhra Pradesh High Court in Writ Petition No. 16753/2010 through which the above judgment of Hyderabad Bench was challenged. The Honble High Court observed 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 Engineer/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 Su-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 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.
For the reasons aforementioned, there are absolutely no valid grounds to set aside the order dated 06.07.2010 passed by the Central Administrative Tribunal and to issue writ of mandamus as prayed for by the petitioners.
The writ petition is therefore dismissed. There shall be no order as to costs. 9.2 We have also perused the judgment dated 08.12.2010 in OA-909 and 938 of 2009 of Madras Bench of this Tribunal and Principal Bench dated 07.08.2011 in OA-2112/2009. We find that in both these cases this Tribunal has ruled that there cannot be any comparison between Executives of BSNL and other pSUs such as MTNL etc.
10. On the basis of above, we come to the conclusion that the issued raised by the applicants has already been adjudicated in the judgments cited above. In particular, Honble Andhra Pradesh High Court has clearly rejected the contention of the applicants that the said Recruitment Rules are arbitrary and that there is no nexus between the criteria prescribed and object sought to be achieved. Finding no infirmity in these Rules, they upheld the judgment of Hyderabad Bench of this Tribunal dated 06.07.2010 and dismissed the Writ Petition. In our opinion, the present O.A. is squarely covered by the aforesaid judgment and in accordance with the decision in that the relief asked for by the applicants cannot be granted. Accordingly, this O.A. is dismissed. No costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/