Central Administrative Tribunal - Bangalore
S.B. Srinivasan And Ors. vs Union Of India (Uoi) And Ors. on 31 August, 1999
JUDGMENT
S. Venkataraman, Vice-Chairman
1. In all these applications the applicants who are in the cadre of Junior Telecom Officers ('JTOs') have sought for quashing the order dated 15.10.1998 passed by the Telecom Department by which 1966 posts of Sub-Divisional Engineers ('SDEs') known as TES Group-B posts were created with effect from 1993 retrospectively by upgrading that very number of posts of JTOs, as well as the DPC proceedings and the order dated 21.10.1998 by which promotions are effected to fill up the posts of TES Group-B ('SDEs').
2. The factual background in which these applications have been filed, as could be gathered from the material placed before us, is as hereunder:
Prior to 23.7.1996 the TES Group-B Posts Recruitment Rules of 1981 as amended in 1986 and 1987 governed the mode of filling up of the posts of TES Group-B. As per those Rules, 66 2/3rd percentage of posts had to be filled up by Junior Engineers (who are now designated as JTOs) who had passed the prescribed qualifying examination and the remaining 33 1/3 percentage-of posts had to be filled by candidates who succeeded in a competitive examination. Those JTOs who had passed the qualifying examination will be referred to as Qualified Engineers in the course of this order for purpose of convenience.
Para 206 of the P & T Manual contain'ed a provision that for the purpose of promotion to TES Group-B, the seniority in the lower cadre bad to be fixed with reference to the date of passing of the qualifying examination and not with regard to the date of recruitment to that cadre. But, the department used to prepare eligibility list of JTOs who had passed the qualifying examination as per the year of recruitment in the JTOs cadre and promotions were effected on that basis. One Sri P.N. Lal in a writ petition filed before the Allahabad High Court challenged such promotion and 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 and claimed promotion from the date his juniors as per the date of passing the examination had been promoted. The Allahabad High Court upheld that contention by its judgment dated 20.2.1985. The department challenged that judgment before the Apex Court in an SLP. However, that SLP was dismissed on merits on 8.4.1986. Following that decision different Benches of the Tribunal 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 Principal Bench in its order dated 28.2.1992 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 14 revised seniority lists in TES Group - B. The Junior Telecome Officers Association gave a representation to the department that the implementation of the judgment in P. N. Lal's case and other Tribunals orders 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 was informed that to prevent 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 31.3.1993 there were already 3235 vancancies, that 944 posts had been created upto 31.3.1993 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 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 preventing reversion of 550 officers. On the basis of that recommendation necessary orders were passed including the order dated 15.10.1993 creating 2636 TES Group-B posts. After the creation of the posts, promotions were effected in all the circles to prevent the reversion of 550 officers.
In its representation, the Association had also put forth a grievance that as a result of the judgment 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 serious 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 23.7.1996. The new Rules have done away with the qualifying examination for promotion to TES Group-B posts. Under these Rules 75 per cent of the posts have to be filled up on the basis of seniority cum-fitness and 25% on the basis of a departmental competitive examination from the cadre of JTO.
In S.L.P. No. 26071 of 1995 the department made a statement before the Supreme Court that vacancies which were existing till the new Rules came into force on 23.7.1996 would be filled up in accordance with the Rules which were in force prior to the new Rules. The 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 23.7.1996 have to be filled up as per the old Rules and that vancancies arising on and after 23.7.1996 have to be filled up as per the new Rules.
Some of the JTOs who had become eligible for promotion under the new Rules on the basis of their seniority had filed O.A. Nos. 624 of 1997 and 86 of 1998 before this Bench complaining that inspite of the clear undertaking given before the Supreme Court the Department was promoting the qualified JTOs to fill up vacancies which arose after 23.7.1996 though they had to be filled up on the basis of seniority cum-fitness. The department in those cases pleaded that there were only 61 vacancies in TES Group-B in Karnataka Circle prior to 23.7.1996, that by some misinterpretation of the departmental letter some vacancies which arose after 23.7.1996 had been filled up by promoting the qualified candidates on a temporary ad hoc basis for the purpose of local arrangement and that they would give an undertaking that once the period of that ad hoc 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 the 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 recording the undertaking given by the Department did not deem it proper to pass any further order and disposed of the applications making it clear that those candidates who have been given ad hoc promotion 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.
Now the department has issued the impugned order in its letter dated 15.10.1998 creating 1966 posts of SDE and it is indicated that those posts are deemed to have been created along with 2636 posts in 1993 itself for the purpose of preventing the reversion of 550 regularly promoted officers. Out of the newly created posts, 128 posts have been allotted to Telecom Circle, Karnataka. On 21.10.1998, that is within 6 days after the issue of that order, the department has issued an order promoting 3629 qualified JTOs to SDE posts. Pursuant to that promotion dated 21.10.1996, the Karnataka circle has issued a promotion-cum posting order dated 23.10.1998 which is produced as Annexure-A12 in O.A, No. 1034 of 1998.
3. The applicants have challenged the validity of the order creating 1966 posts after the new Rules came into force, but at the same time treating those posts as having been created in 1993. According to the applicants, this order has been passed only to help the qualified JTOs get promotion and without any justification and that this order is arbitrary. According to them, the posts created after 23.7.1996 should be filled up under the new Rules on the basis of seniority-cum fitness. They have also challenged the promotions effected on 21.10.1998 which according to them have been made to fill up the newly created posts.
4. The case of the official respondents, as put forth in the reply is that as 1966 posts were created in continuation of the letter dated 15.10.1993, they must be deemed to have been created in 1993 and as such they have to be filled up in accordance with the old Rules. In the reply, the respondents have not given any specific reason for creating 1966 posts from a retrospective date and in continuation of the 1993 creation. They have also not specifically denied the averment in the applications that the "creation of the new posts is to circumvent the situation and to accommodate the officials". With regard to the promotions effected on 21.10.1998 in one portion of the reply it is stated that the promotions have been ordered against the vacancies for 1994-95, 1995-96 and from 1.4.1996 to 22.7.1996 and that those promotions arc in accordance with the judgment of the Supreme Court dated 25.10.1996. According to them, as those vacancies arose prior to 23.7.1996, they have to be filled up as per the old Rules and the promotions are valid. In another portion of the reply, it is stated that as the new vancancies are created in continuation of the creation of posts in 1993, they have also been taken into account for effecting promotion as those posts must be deemed to have been created in 1993 itself.
5. The learned counsel for the applicants contended that the reason given in the impugned letter dated 15.10.1998 for creating 1966 posts with effect from 1993 is not true, that this can be made out from the different stands taken by the department at different times, that to implement the order of the Allahabad High Court and various Benches of this Tribunal the department prepared a fresh eligibility list and held review DPCs after creating 2636 posts in 1993 and that who even had to be promoted to prevent reversion of 550 officers had been promoted, that several vacancies had arisen after 31.3.1993 and had not been filled up and that there was no need to create new posts retrospectively to prevent the alleged reversion of 550 officers. According to him the new posts have been created retrospectively only to give promotions to all those officers who had passed the qualifying examination till 1991 and that such a creation of posts retrospectively was impermissible in view of the undertaking given before the Supreme Court that only the vacancies which had occurred prior to 23.7.1996 would be filled up as per the old Rules. He relied on the circumstance that within 6 days after the creation of these posts the order of promotion has been issued promoting 3629 officers for posts including the newly created posts to support his contention that the new posts have been created only to accommodate those qualified JTOs. He pointed out that the DPC must have already kept the list ready in view of the fact that on 18.10.1998 itself the names promoted under the order dated 21.10.1998 have been sent by fax to Karnataka Circle which can be seen from Annexure-A 12 produced in O.A. No. 946 of 1998. The apprehension of the applicants that the department wants to see that all the qualified JTOs who are juniors to the applicants with reference to the year of recruitment are promoted even against vacancies which are created or which have occurred after 23.7.1996 is sought to be strengthened by the departments own admission in the earlier cases that they had in fact given ad hoc promotions to qualified candidates against vacancies which arose after 23.7.1996.
6. The learned Counsel for the department contended that the Government has the power to create posts even retrospectively, that in 1993 a policy decision had been taken by the Government to create that number of posts which were required to prevent reversion of 550 officers who had earlier been promoted on account of the implementation of the orders of the Allahabad High Court and various Benches of this Tribunal, that as it was found that 1966 more posts were still required to be created to prevent reversion of 550 officers in continuation of the decision contained in letter dated 15.10.1993 by which 2636 posts were created, 1966 more posts have been created with effect from 1993 and that the applicants, cannot challenge such creation of posts. With regard to the promotions, he contended that as they were made to fill up the vacancies which arose prior to 23.7.1996 the applicants cannot challenge the same.
7. The proposition that the Government has the power to create posts from an anterior date is not disputed. But, in a case where the mode of filling up of the posts has substantially changed on account of new Rules coming into force and where the Government itself had given an assurance before the Supreme Court that the vacancies which occurred prior to 23.7.1996 would be filled under the old Rules, thereby stating that the vacancies which arose after 23.7.1996 would be filled up as per the new Rules, the Government cannot arbitrarily and without any justification create new posts after 23.7.1996 and give effect to the creation from a date anterior to 23.7.1996. The mere fact that the Government has power to create posts retrospectively docs not mean that it can exercise that power arbitrarily or to circumvent the new set of recruitment Rules which have come into force. The learned Counsel for the respondents submitted that even if the creation of the posts with effect from 1993 is held to be bad, all that can be done is to quash the creation of the posts retrospectively and that it would not in any way help the applicants, as those posts cannot be directed to be filled up under the new Rules.
8 In effect, his submission was that the applicants can have no grievance about the creation of the posts retrospectively. Even if the applicants may not be able to get a direction that those posts are to be filled up under the new Rules on the basis of seniority, it would at least prevent the juniors to the applicants who have passed the qualifying examination being promoted earlier than the applicants. Therefore, we find that it cannot be said that the applicants can have no grievance about the creation of the posts retrospectively.
9. The points that arise for consideration in these applications are -
1. Whether the creation of 1966 posts by letter dated 15.10.1998 treating them as having been created in 1993 is arbitrary, not related to the declared purpose of preventing reversion of the already promoted junior officers and for ulterior reasons and cannot therefore, be sustained?
2. Whether the impugned promotions have been made even against the newly created posts and if so to what extent the promotions are vitiated?
10. Though in the reply the respondents have not clearly stated as to why 1966 posts had to be created retrospectively from 1993, the reason given in the impugned order is to the effect that though in the letter dated 15.10.1993 it was stated that 2636 SDE posts were created by upgradation of JTO posts, to avoid reversion of about 550 SDEs already promoted and working on regular basis, on review it had been found that 1966 posts in TES Group-B were less created than the number actually required, that the entire matter was considered by Telecom Commission and the Commission decided to create the balance of 1966 SDE posts by upgradation of JTO posts on the matching saving principles. Thus, the only reason for which the new posts have been created retrospectively is to prevent the reversion of 550 officers who had already been promoted and who had to be reverted to implement the judgment in P.N. Lal's case and the other orders of the Tribunals. We have to find out whether this reason is true.
11. The respondents have produced the file pertaining to the creation of these posts. We have perused that file. The JTOs' Association has submitted a representation dated 23.3.1998 in which the Association has stated that earlier on the basis of the information got from all) the circles it had been concluded that 7700 posts were required, that later the department had issued various promotion orders promoting totally 8338 JTOs as SDEs, that the department had promoted 638 JTOs more than the actual vacant posts available, that the department has shown on paper that approximately 750 SDE posts had been kept as back log vacancies to be filled up in future from amongst SC/ST candidates, though in reality not a single post of SDE was available, that 273 man-month posts have been utilised for posting on regular basis and all this has resulted in short fall of about 1661 posts and it created a huge gap in the vacancies available and that the total vacancies that should have been available as on 22.7.1996 must have been 5175 whereas in reality only 3489 vacancies were available. In that letter the Association has stated that the entire 4025 vacancies which occurred during the period from 1.4.1994 to 22.7.1996 should have been available exclusively for considering the qualified JTOs who passed the examination held in 1989, 1990 and 1991 whose number may be around 3200. They have, therefore, requested the department to take necessary action and help to get promotion orders issued so as to cover all the remaining JTOs who have passed the qualifying examination held upto 1991. The main prayer of the Association as put forth in that letter has been to see that all the vacancies which occurred from 1.4.1994 upto 22.7.1996 are kept in tact for the qualified JTOs and to ensure that all the qualified JTOs are promoted. In view of the fact that the recruitment rules had been changed from 23.7.1996 and the only way by which all the qualified JTOs could be promoted was by creating necessary posts prior to 23.7.1996, the Association has sought for creation of posts for the purpose of preventing reversion of 550 officers. On this representation a Committee was constituted on 4.9.1998. The Committee met on 24.9.1998. The minutes of the Committee meeting show that the Committee was informed that in order to avoid reversion of 550 regularly promoted AEs, a total of 8391 JTOs had been promoted as per the lists of promotion orders issued in 1993 and 1994, that the figure of 7700 which had been indicated to the earlier Committee was not correct and that 691 JTOs had been promoted in 1994 without any posts being available for them in TES Group-B. The Committee felt that those additional 691 posts also have to be created by upgradation. The Committee was also informed that the earlier Committee had included 273 man-month posts of AEs to effect regular promotions, that as per Rules regular promotions cannot be made against man-month posts and that as such those 273 posts should also have been created by way of upgradation. The Committee has next referred to the information that to effect 8391 promotions, for want of sufficient number of eligible SC/ST candidates a total of 781 posts of AEs were required to be carried forward to next year, that the earlier Committee had inadvertently not deliberated upon the same resulting in 781 posts meant for SC/ST being carried forward only on paper whereas the correct course would have been to create those vacancies by upgrading the posts of JTOs. The Committee felt that in order to fulfill the agreement between the JTOA(I) and the department completely a total of 1745 posts of AEs should have been created and accordingly recommended the creation of 1745 posts with effect from the dates from which different groups/batches had actually been promoted beyond 2336 posts to prevent reversion of 550 AEs.
12. In the note sheet different officers have taken note of the alleged promotion in excess of Group-B posts actually existing and have stated that it was not understood as to how promotions can be ordered where there were no posts and as to how the pay and allowances were drawn when there were no posts and that aspect needed investigation. The Member (Services) has indicated that the Committee had not done its job properly and adequately, that the Committee should have brought out evidence in the form of circle by circle figures so that the actual figure is settled once and for all. He has also indicated that payment of salary to 691 JTOs who had been promoted as SDEs without sanction of so many posts is not acceptable and it reflected total lack of financial discipline. The recommendation of the Committee to create 1745 posts does not appear to have been pursued further. A new note has been put up showing as to how many persons were qualified in each of the examinations conducted in 1985, 1987, 1988 and 1989, as to how many of them were already working as TES Group-B before pronouncement of the judgment and as to how many persons became seniors after the implementation of the judgment each year. The figures given are as hereunder:
On the basis of the above chart it was deduced that 7892 posts of TES Group-B were required in OC category to implement the judgment upto the qualifying year 1988, that 15% of those posts i.e., 1183 posts were required for SC quota, that 7 1/2% viz., 591 posts were required for ST quota, that the total posts required were 9666 posts, that the earlier Committee considered only 7700 posts for implementation of P.N. Lal's judgment and that there was a shortage of 1966 posts. On the basis of this chart approval has been given for creation of 1966 number of TES Group-B posts and the impugned order has been passed.
13. The avowed object of creating new posts both in 1993 and in 1998 was to prevent the reversion of 550 officers who had earlier been promoted as a consequence of the judgment in P.N. Lal's case. The first thing any one would have done for that purpose is to ascertain when those 550 officers actually passed the departmental examination and as to how many who had still not been promoted and who had passed the qualifying examination earlier to the date of passing of the examination by those 550 officers. But, strangely no attempt has been made to ascertain this fact either by the earlier Committee or by the later Committee. As the creation of 2666 posts in 1993 is not under challenge, we need not go into the question whether the basis on which those posts were created was correct. But, when aclaim was made in 1998 that to prevent the reversion of those very same 550 officers some more posts had to be created retrospectively, the department ought to have taken steps to examine the matter in detail.
14. The chart referred to above has taken 3288 officers who passed the examined in 1985 as having become seniors and 2498 officers who had passed the examination in 1987 as having become seniors after the implementation of the judgment. Even if these figures are taken as correct, it is unintelligible as to how 2106 officers who passed the examination in 1988 have been taken as having become seniors and who had to be promoted to prevent reversion. We may refer here to the affidavit filed by Sri, R.K. Takkar, the Chairman, Telecom Commission in O.A. No. 1460 of 1995 before the Ernakulam Bench. That affidavit had been sworn on 5-2-1996. In that affidavit, the Chairman has stated that the department had 3000 qualified Junior Telecom Officers awaiting promotion to Telecom Engineering Services Group-B who had qualified in the examination in 1989, 1990 and 1991. It is clear that none of the qualified JTOs who had passed in the examinations held subsequently i.e., 1989, 1990 and 1991 had been promoted. When such is the case, if among the candidates who passed the examination in 1988, 103 OC, 83 SC and 39 ST candidates had been promoted on the basis of their seniority, with reference to the year of recruitment, the others who passed the examination in that same year would not have become seniors. Among the candidates who passed the qualifying examination in the same year, their seniority is to be taken with reference to their seniority in the cadre. What the department has done is to blindly take all those who had passed the examination in 1988 and who had not yet been promoted by the time the judgment came to be implemented, as having become seniors and who had to be promoted. The 550 officers who must have been promoted earlier could at best have passed the examination in 1988 itself. In any event, those 550 officers who had been promoted on the basis of their seniority with reference to the year of recruitment would not become juniors to those who passed the examination in 1988 itself and as such the question of 2106 persons who passed the examination in 1988 becoming-seniors by virtue of the judgment does not arise. At this juncture, we may observe that admittedly by 1986 the Supreme Court had affirmed the judgment in P.N. Lat 's case. As such, it is unintelligible as to how in 1987 and in 1988 the Department could have promoted officers following the same mode which had been struck down in P.N. Lal's case. Be that as it may, it is obvious that even if the figures given in the above chart for the years 1985,1987 and 1988 are taken as correct, at best 5786 officers could have become seniors to those who had been wrongly promoted earlier.
15. It was reported that 8338 persons had been promoted and posted in 1993 and 1994 even though there were no posts available to the extend of 638 posts. No attempt has been made to find out how such promotions against vacancies which never existed had been made. Those promotions are stated to have been effected in 1993 and 1994. While at one point the total number of promotions effected is shown as 8338, at another point it is stated that a total of 8391 persons had been promoted. If really those promotions had been made without available posts, it is highly improbable that for 4 years the promotees would have held the higher posts, drawn the salaries and no one in the department could have noticed that. It is obvious that the averment that 8338 or 8391 persons had been promoted even though no posts were available to the extent of 638 posts cannot be correct. By 1994 vacancies had arisen and the affidavit filed by Sri B. Rajasekhar, Deputy General Manager (Administration) in these cases shows that 3964 vacancies arose in 1994-95. Obviously the promotions effected in 1994 must have been made against some of those vacancies. An attempt has been made to make it appear that the promotions had been made without there being any posts and on that basis to create additional posts retrospectively. However, that basis for creation of new posts has been given up and a new note has been put up with regard to the number of persons who became seniors as a consequence of the implementation of the judgment. There again an attempt has been made to boost the number by including the candidates who had passed the examination in 1988.
16. One of the reasons given for creating the new posts is that while creating 2636 posts the Committee had not taken into account the number of posts which had to be carried forward for SC/ST and as such some provision had to be made for that purpose. 15% and 7 1/2% of 7882 posts have been taken into account for the purpose of carry forward. The Committee has not taken into account those SC/ST candidates who had also been promoted out of those who had passed in 1985, 1987 and 1988. That apart, the Chairman in his affidavit has stated that all qualified SC/ST candidates had been promoted while effecting the promotions in 1994. That means, those scheduled caste candidates who had passed in 1989, 1990 and 1991 examinations have been promoted. The authority while passing the impugned order has not at all taken into consideration the number of SC/ST candidates of subsequent years who had been promoted. That apart, when there are no qualified SC/ST candidates, there was no reason to create posts for the purpose of carry forward for being filled up by those candidates subsequently. It is true that as per the decision of Ernakulam Bench, one combined examination had to be conducted for SC/ST candidates and it is only those SC/ST candidates who qualified in that examination can be promoted with reference to the old Rules. If at all it becomes necessary after that examination is held, the question of creating some posts for those SC/ST candidates who passed in that examination will have to be considered. There was absolutely no reason for creating posts for carry forward for the purpose of SC/ST to be filled up under the old Rules.
17. That the very basis for creating the new posts retrospectively viz., to prevent reversion of 550 officers sought to be made out here cannot be true is borne out by the affidavits filed by the departmental officer before the Ernakulam Bench. Sri. S. Sthanukumaran Thampi, who is a Deputy General Manager (Administration) in his affidavit filed on 25.8.1998 has stated that it was decided by the Department to review the seniority of persons who passed the qualifying examination according to year of passing of the examination and to make promotions accordingly, that this was agreed to before the Principal Bench and the statement was recorded by the Supreme Court in SLP filed against the order of the Principal Bench, that under the above circumstances the entire seniority of more than 10000 persons was recast on the basis of date of passing qualifying examination, that eligibility list of persons who have passed the examination upto 1991 was prepared, that in the DPC held in 1994 promotions were given from that list to all persons who had passed upto 1988 and that 272 persons who had passed the examination in 1989 had also been included and that SC/ ST candidates who passed the examination in 1989, 1990 and 1991 were all promoted. He has stated that about 3500 JTOs stand qualified in the examination and they have to be appointed against vacancies which arose upto 22.7.1996 which is approximately 4200. This affidavit clearly shows that in the promotions effected in 1994 all those persons who had passed the qualifying examination not only in 1985, 1987 and 1988 but also about 272 persons who had passed the examination in 1989 had been promoted. When such is the case, obviously those who would have become seniors by virtue of their passing the examination in 1985, 1987 or even in 1988 have been promoted and there was no need to promote any one to prevent reversion of the 550 officers. Even after that promotion still there were about 4200 Group-B posts vacant upto 22.7.1996.
18. The Chairman Sri. R.K. Takkar in his affidavit has stated that the entire process of implementing the judgments referred to therein was completed with the issue of promotion orders dated 27.5.1994 and 3.6.1994 promoting 5000 JTOs to TES Group-B and prior to that the department had issued 14 revised seniority lists in TES Group-B as per the various review DPCs held for that purpose. It is clear that in order to implement the judgments, the department has prepared fresh eligibility lists, thereafter held review DPCs and issued promotion orders. Subsequently 14 seniority lists in TES Group-B cadre have been issued. When such an exercise had been done, the Committee or the department without referring to those documents has proceeded on the assumption that to prevent reversion of 550 officers there was need to create some more posts in 1998. In the order in O.A. No. 1497 of 1996 and connected matters before the Ernakulam Bench, the Tribunal has observed as hereunder in para 33 :
"Further, we take judicial notice of the fact that all the vacancies occurring upto 1993-94 have been filled up with the officers who had already qualified at the Departmental Examinations held upto 1988-89, even though all the officials who have qualified in the 1989 qualifying examination have not yet been fully accommodated...."
This finding also demonstrates that there was no need to promote any one for the purpose of preventing the reversion of 550 officers.
19. Even assuming that in 1993 when the question of taking steps to prevent reversion of 550 officers was considered there was a mistake in calculating the number of promotions which had been done and that 1966 posts were still required, we fail to understand as to why that shortfall could not have been made up out of 6966 vacancies which according to the affidavit of Sri Rajashekar arose during the period from 1994 upto 22.7.1996. Those vacancies had not been filled up till 21.10.1998. When the earlier Committee met in 1993 it had taken into consideration the vacancies which had arisen upto 31.3.1993. As on that date it assessed the requirement of new posts at 2636. But, if subsequently some more posts became necessary, there was no bar to make use of the vacancies which arose in 1994. It would appear that for effecting 8338 or 8391 promotions those vacancies have been utilised. The representation of the Association would indicate that the Association wanted all the vacancies arising after 31.3.1994 to be utilised not for promoting those candidates who had to be promoted to prevent reversion, but for those who had qualified in the examination held from 1989 to 1991. The Association has made it clear that they wanted to ensure that all those who had passed the qualifying examination are promoted. The department appears to have yielded to that demand and as they could not now create posts retrospectively only for the purpose of ensuring promotion to all the qualified candidates has made it appear that this creation is in continuation of the creation of posts in 1993. Sri S.S. Thampi in his affidavit has stated that the department has committed to the JTO's Association that all those JTOs who had passed the qualifying examination held upto 1991 will be duly promoted. That appears to be the reason why the department has now taken up the exercise of creating some more posts from a retrospective date. The reason put forth for creating these posts retrospectively is not the real reason. If really the department had taken a policy decision prior to the new Rules coming into force, that all the qualified candidates would be promoted and if pursuant to that decision it had become necessary to create posts retrospectively, the department could have come forward with such a case. But, that is not the plea put forth either in the reply or in the file. In fact the file contains the mines of a meeting which had taken place on 25.4.1993 between the representatives of JTOs Association in connection with their demands and the Hon'ble MOS(C). Those minutes are signed on behalf of the management by DDG(SR) and by the representatives of the Association. In that meeting it was decided that the Committee should be constituted to go into all aspects of situation thathas arisen from the Courtjudgment and suggest a solution to settle the issues in not exceeding 2 months. There is no material to show that any policy decision was taken to promote all the qualified candidates before implementing the new Rules to be issued or to create posts for that purpose. Without any such decision having been taken earlier, the department still feels that it has given commitment to promote all the qualified JTOs, as indicated in the affidavit of Sri S.S. Thampi. Not being able to put forth that as the reason for creating the new posts, in the absence of any material, the department has purported to create the posts making it appear that it is necessary to prevent reversion of 550 officers which was the main object with which the posts were created in 1993. We, therefore hold that the impugned order dated 15.10.1998 creating 1996 posts retrospectively from 1993 is arbitrary and has been passed evidently to get over the new Recruitment Rules for the purpose of promoting the JTOs who had passed in the qualifying examination and who now have to wait for their turn as per seniority on the basis of their recruitment to get promotion. This order will have, therefore, to be quashed.
20. Coming to the question as to whether the promotions effected on 21.10.1998 are vitiated, the case of the applicants is that those promotions have been made even in respect of those 1966 posts which were created on 15.10.1998. When the arguments were heard, we were unable to understand as to how 3629 promotions had been effected after creating 1966 posts. It was also not clear as to whether 1183 posts meant for SC and 591 posts meant for ST which had been taken into account for the purpose of arriving at the short fall, had been kept vacant or whether they had been filled up. We, therefore, called upon the respondents to clarify those aspects, Sri Rajashekar has filed the affidavit purporting to clarify those aspects. In his affidavit, he has stated that 3629 promotions have been made for the vacancies which had arisen from 1994-95 to 22.7.1996 and that those vacancies do not include 1966 posts created as per letter dated 15.10.1998.
21. The applicants' case from the beginning is that the respondents have effected the promotions even in respect of those 1966 posts created on 15.10.1998. In fact, the Tribunal had granted an interim order of stay of the order of promotion and posting in respect of those candidates who had not already assumed charge of the new created posts. Subsequently, some of the private respondents filed an application for vacation of the stay. Thereafter, an order was passed modifying the order of stay subject to the condition that the TES Group-B officers who are officiating in that cadre and who have come from the seniority quota shall not be reverted or in any way disturbed for the purpose of accommodating the officers who are now posted to Karnataka Circle in pursuance of the impugned order. At that stage, the respondents never indicated that the promotions effected were not in respect of the newly created posts and that they were only against the posts which had already arisen prior to 23.7.1996. In fact, even in the reply the official respondents have specifically stated that since the vacancies created by the department were in continuation of October, 1993 upgradation and related to that period, the department has taken into consideration those vacancies while issuing the promotion order dated 21.10.1998. When such is the case, it is unintelligible as to who Sri Rajashekar has sworn in his affidavit that 1966 posts have not at all been taken into account in effecting the new promotion. In his affidavit, he has stated that between 1994-95 and 22.7.1996, 6966 vacancies were available. But, in O.A. No. 624 of 1997 a letter written by the Director, SD-I dated 18.2.1998 to CGM, Karnataka Circle was produced alongwith the department's reply and in that letter the total number of vacancies from 1.4.1994 to 22.7.1996 is shown as approximately 3147 excluding MTNL, Mumbai. The applicants have specifically alleged in the application that the total number of vacancies in MTNL, Mumbai on 22.7.1996 was 338. Though in the application a specific reference has been made about the vacancies prior to 23.7.1996 as furnished by the respondents, in the reply no reference is made to this averment in the application nor is it denied. If at all there was any explanation to indicate as to how the approximate number of vacancies of 3147 plus 338 of MTNL, Mumbai could go up to 6966 as stated in the affidavit, that explanation should have been given in the reply. It is unbelievable as to how suddenly the estimated vacancy could have doubled. In the affidavit on 25.8.1998 by Sri Sthanukumaran Thampi vacancies upto 23.7.1996 are stated to be approximately 4200.
22. Sri. T.N. Prabhakara Rao, Assistant General Manager (Legal) has filed an affidavit/ on 1.4.1999 before the Mumbai Bench in M.A. No. 69 of 1999 in O.A. No. 930 of 1997. In that affidavit, there is an attempt to explain as to how the number of vacancies went upto 6966 from the figures furnished to this Bench. There he has stated that after the submission of information to this Bench, some of the circles furnished revised number of vacancies including the number of posts created based on the assets for the period from 1994 to 22.7.1996 which were in the pipeline at the time of furnishing the information to this Bench. According to him, after taking into account revised vacancies, the total vacancies available for promotion were 6944. It is unintelligible as to how in that affidavit it is stated that "number of posts created based on the assets for the period from 1994 to 22.7.1996 which were in the pipeline at the time of furnishing the information to the Hon'ble CAT". If the posts had been created, then the question of their being in the pipeline would not arise. If on the date the information was furnished to this Bench some new posts to be created for the period from 1994 to 22.7.1996 were in the pipeline, then there must have an order creating those posts other than the one which is now impugned. No such order is either referred to in that affidavit nor is it produced. The department has furnished inconsistent figures at different times and has taken inconsistent stands.
23. The fact that some of the newly created posts as per the impugned order must have also been taken into account while effecting promotions in Karnataka circle is easily demonstrable. In the reply filed by the department in O.A. No. 624 of 1997 the department has categorically stated that in Karnataka circle there were only 61 vacancies in Group-B posts upto 23.7.1996. Annexure-A12 in O.A. No. 1034 of 1998 is the transfers and postings order issued by the CGM Telecom, Karnataka circle. This order shows that 38 officers have been posted to existing vacancies in Part-A, 21 officers have been posted to existing vacancies in Part-B and in Part-C 90 JTOs have been promoted to Group-B posts and posted against existing vacancies. The total number of promotions effected are 129. Thus from Annexure-A12 it can be gathered that in all postings and promotions have been effected in respect of 149 existing posts of TES Group-B. If there were only 61 vacancies of Group-B prior to 23.7.1996 in Karnataka circle, it is unintelligible as to how as many as 129 officers have been promoted to TES Group-B. Though the applicants have referred to this aspect in the applications, the respondents have not tried to give any clarification or explanation in their reply. It is obvious that without taking into account 128 newly created posts allotted to Karnataka circle, the department could not have promoted 129 officers or filled up 149 existing posts. That must be the reason why in the reply the respondents have pleaded that because those vacancies were created in continuation of the 1993 order those vacancies have also been taken into account while effecting the promotions. As such, we are unable to rely on the affidavit of Sri Rajashekar that none of the 1966 posts newly created under the impugned order is included in the promotions now effected. As a consequence of the quashing of the order creating 1966 posts with effect from 1993, the vacancies available in Karnataka circle for promotion under the old Rules must necessarily come down. On the basis of the information furnished by the department itself earlier only 61 TES Group-B posts in Karnataka circle could be filled up by effecting promotions under the old Rules. We are unable to find out as to who among the 129 officers now promoted would be entitled to the promotion against 61 vacancies. As such, we will have to quash the promotions in excess of 61 vacancies in Karnataka circle and direct the respondents to review the promotions to restrict it to those vacancies which were existing in Karnataka circle prior to 23.7.1996.
24. Before concluding, we arc constrained to observe that there appears to he utter chaos in the department with regard to the management of the establishment. The department is unable to give correct figures regarding the number of vacancies which existed at a given point of time and different figures have been given before different Tribunals. Though some approximation in a large department may Become unavoidable, large variations particularly after the department had enough time to verify all those figures are difficult to appreciate. Decisions appear to have been taken without proper application of mind and investigation of facts. From the way the impugned order dated 15.10.1998 has been passed, the inference that the decision is taken on a superficial basis and to suit a particular situation without realising the implications in that regard is inescapable. The file shows that even though financial indiscipline was noticed by promotions having been effected without there being promotional posts, without first investigating that mailer a decision to create new posts has been taken. Unless the administration is toned up, the department would invite serious problems in the management of the establishment,
25. For the above reasons these applications are allowed in part and the impugned order dated 15.10.1998 creating 1966 posts with effect from 1993 is quashed. In so far as the order of promotion effected in Annexure-A12 dated 23.10.1998 is concerned, the promotions effected against vacancies in excess of 61 vacancies which existed prior to 23.7.1996 stand quashed. The respondents shall review the promotions already done and determine as to who among the private respondents are entitled to be promoted against those 61 vacancies and thereafter revert the others. This shall be done within a period of 4 months from the date of receipt of a copy of this order No. order as to costs.