Central Administrative Tribunal - Allahabad
Ramit Maurya S/O Late Shri R.P. Maurya vs Union Of India Through Secretary ... on 18 December, 2009
APPROVED FOR REPORTING
OPEN COURT
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH ALLAHABAD
(THIS THE 18th DAY OF DECEMBER, 2009)
PRESENT :
HONBLE MR. JUSTICE A.K. YOG, MEMBER-J
HONBLE MR. S. N. SHUKLA, MEMBER-A
ORIGINAL APPLICATION NO.1117 OF 2009
(U/s, 19 Administrative Tribunal Act.1985)
1. Ramit Maurya S/o Late Shri R.P. Maurya, R/o A-933/6 Indra Nagar, Lucknow. At present working as Area Manager (Shahadra East) O/o GMTD Ghaziabad.
2. R.P. Singh, S/o Sri Shyam Singh, R/o Village Dandiamai, Post Shikohabad, District Firozabad. At present working as DE (Broadband) ALTTC Ghaziabad.
3. Shashi Kumar S/o Sri Karan Singh, R/o Village Garh, P.O. Garh, Mirpur, District Haridwar. At present working as A.G.M. (A & P), O/o GMTD Dehradun.
4. Arvind Kumar S/o Sri Shiv Kumar, R/o House No.837, MIG Ujjaini Ratan Lal Nagar Kanpur. At present working as D.G.M. (CMTS-NSS) O/o GM (CMTS) Dehradun.
5. Sanjay Kumar, S/o late Sri Om Prakash Malkani, C/o Sh. Sunil Kumar, Mohalla Khatikan, Old Town Baghpat, P.O. & District Baghpat, U.P. At present working as D.G.M. (BD) O/o CGMT, Meerut.
6. Beeran Prajapati, S/o Sri Mohan, R/o Qtr. 14 Income Tax Colony Mangal Pandey Nagar, Meerut. At present working as D.G.M. (O) O/o CGMT, Meerut.
7. Sanjay Kumar S/o Sri K.S. Gupta, R/o 84/4 Puradalel, Bhaghambari Road, Allahpur, Allahabad. At present working as DGM (Plg) O/o GMTD, Bareilly (UP).
. . . . . . . .Applicants
By Advocate : Shri Shailendra
Shri Shayamal Narayan
Versus
1. Union of India through Secretary (Government of India), Department of Tele Communication, Sanchar Bhawan, 20, Ashoka Road, New Delhi.
2. Bharat Sanchar Nigam Limited through its Chief Managing Director & Chairman, 3rd Floor Bharat Sanchar Bhawan, Mathur Lane, Janpath, New Delhi.
3. Bharat Sanchar Nigam Limited Board through its Chairman & Managing Director.
4. Chairman & Managing Director, B.S.N.L., 3rd Floor Bharat Sanchar Bhawan, Mathur Lane, Janpath, New Delhi.
5. Controlling Authority/Minister Incharge of Administrative Department of Tele Communication, Sanchar Bhawan, Ashoka Road, New Delhi.
6. The Secretary, Department of Personnel & Training, North Block, New Delhi-01.
. . . . . . . . . Respondents
By Advocate : Shri Subodh Kumar, and
Shri D.S. Shukla (for Respondent No.2, 3 & 4)
Shri S.N. Chatterji (for Respondent No.1)
O R D E R
(DELIVERED BY: JUSTICE A.K. YOG, MEMBER-JUDICIAL) BACKGROUND:
1. Applicants claimed following interim relief in this O.A:-
In view of the facts and circumstances, it is expedient in the interest of justice and equity that this Honble Tribunal may stay the effect and operation of the impugned advertisement No.14-1/09-Recruitment 1 Section B.S.N.L. dated 14.7.2009 (Annexure No.7 to this O.A.) for making recruitment by way of direct recruitment on the post of D.G.M. and further respondent authorities may be restrained from making any procedure or process of selection during the pendency of the Original Application and further restrain the authorities from going any examination as scheduled on 11.10.2009 in that reference, or may such other and further order which this Tribunal may deem fit and proper in the facts and circumstances of the case.
2. This Tribunal while Admitted the OA, it passed following interim order dated 30.09.2009; which is reproduced:-
30.09.2009 Honble Mr. Justice A.K. Yog, JM Honble Mr. S. N. Shukla, AM (Interim Relief) Applicant seeks to challenge impugned Advertisement/Notification dated 14.07.2009 (filed as Annexure A-7/Compilation-II) whereby the Respondent Authorities of Bharat Sanchar Nigam Ltd. - (BSNL) have notified to hold Written Examination and Interview and fill up the post of DGM by Direct Recruitment. Recruitment Rules 2009 (earlier Recruitment Rules 1992) provide for filling the posts in question by Promotion only.
Applicants have made out prima facie case.
In the facts of the case, factors of balance of convenience and irreparable loss also in favour of the applicant. Direct Recruitment is against recruitment Rules, 2009 itself. If direct recruitment is not stayed, the Applicant shall be seriously prejudiced and their right of promotion jeopardized. Moreover, interest of the persons, who shall appearing in test/interview and selected, shall also arise unnecessarily complicating the lies. If Direct recruitment is permitted the Applicants, for no fault of their, shall become junior and thus put to humiliation a sufferance which cannot be compensated in terms of money. Moreover, posts of DGM being filled by disputed process of Recruitment, the Applicants prospect of promotion in future over posts of DGM shall be seriously effected.
Learned counsel for the respondents informs that matter regarding absorption of the incumbent (like the applicants) is pending before Delhi High Court. The issue of absorption is intrinsically connected with the filling of the posts (in question). There is no good reason, as on date to justify haste in making recruitment particularly when the Respondents (BSNL) has not finalized process of absorption/continuance of deemed deputation. Proximity of the date of issuing of recruitment Rules - 2009 and impugned advertisement - do cast doubt that it may not leave the Applicants (and other similarly situated persons in BSNL) without remedy or at least a belated relief with significant sufferance.
Be that as it may, BSNL, on the other hand, can always make alternative arrangement by filling up posts by making ad-hoc promotions as done in the post.
Balance of convenience justify prayer of interim relief.
In case process of selection/direct recruitment is not stayed at this stage itself the Applicants are likely to miss chance of promotion for ever particularly when Rules do not permit direct recruitment.
Shri D.S. Shukla learned counsel refers to Clause 6.2 of Rules of 2009 which contemplates that group A officers when absorbed from ITS and other streams shall be given en-bloc seniority in their respective grade.
The Applicants, however, submit that it is not a good/sufficient protection of their right as it fails to ensure as to when such contingency shall arise. According to them they shall become victim of uncertainty.
We are of the view, prima facie, that direct recruitment is not warranted under Recruitment Rules and Respondent should not be allowed to create uncertainty for the Applicants and/or third party (i.e. person who may be selected in future for Direct recruitment). In the totality of the circumstances we are satisfied that the applicants are entitled to interim relief prayed for.
In the result, we restrain the respondents and concerned authorities not to proceed with direct selection/recruitment in pursuance to the impugned advertisement No. 14-1/09-Recruitment 1 Section B.S.N.L. dated 14.07.2009; this order, however, does not preclude the Respondents from considering the claim and exercising their option to make promotion (regular/ad-hoc), as the case may be.
List on next date with Office report regarding status of pleadings to enable the Bench to fix date for final hearing.
Apart from the applicant, learned counsel, representing the Respondent shall ensure that this order is communicated to the concerned authorities within 48 hours.
List on 06.01.2010.
3. Thereafter the respondents, not being satisfied, filed Writ petition No.51692 of 2009 (against aforequoted interim order) before High Court of Allahabad. After hearing the parties, it finally disposed of the Writ Petition vide order dated 8.10.2009. Relevant extract of said order is reproduced:-
By this writ petition the petitioner has prayed for quashing the order dated 30.09.2009 passed by Central Administrative Tribunal in Original Application No.1117 of 2009 by which order the Tribunal has restrained the respondents-petitioners from proceeding with direct selection/recruitment in pursuance of the advertisement No.14-1/09-Recruitment B.S.N.L. (Recruitment-I Section) dated 14.7.2009. The petitioner issued an advertisement on 14.7.2009 inviting applications against 150 posts of DGMs in Telecom Management Services and 60 posts of DGMs in Telecom Accounts and Finance Services Exam to be filled by direct recruitment. The respondents feeling aggrieved with the advertisement filed the claim petition before the Tribunal. The claim of the respondents before the Tribunal was that the applicants are qualified and eligible for promotion on the post of D.G.M., as they are already working in the grade, called as S.T.S. (Regular) belong to 1999 Batch of I.T.S. (Indian Telecom Services) and in case post is allowed to be filled up by way of direct recruitment it shall adversely effect the rights of the promotion and future prospect. Reliance was also placed on the Rule called as Indian Tele Communication Services (Group-A) (Recruitment Rules), 1992. It was further contended that under the Rules of 1992, the posts are to be filled up only by promotion. Even according to the subsequent Rules, framed by the B.S.N.L. in 2009, dated 14.07.2009, namely Recruitment Rules of BSNL, Management Services the post of D.G.M. are to be filled up by promotion. Hence the exercise of direct recruitment was wholly unjustified. The Tribunal prima facie being satisfied with the submission of the applicants passed order restraining the respondents from proceeding with the direct selection/recruitment on the basis of the advertisement dated 14.7.2009.
Learned counsel for the petitioner, Sri Subodh Kumar contends that the direct recruitment examination................................................
Sri Ashok Khare, learned counsel for the respondents-applicants contends...
We have heard the learned counsel for the parties and perused the record.
The issues which have been raised in the Tribunal requires interpretation and consequences of two Rules framed on 25.06.2009 and 14.07.2009 as well as the effect of the Rules 1992. The counsel for the corporation has submitted that direct recruitment is only for the post which have been included in the authorized for direct recruitment and in fact the direct recruitment is now one of the mode to fill up the post of DGM and such direct recruitment does not affect the rights of the respondents or other similarly situated person. The issue which requires to be considered is regarding the right of the corporation to proceed with the direct recruitment. The counsel for the Corporation has also submitted that direct recruitment is only for limited posts and the Tribunal has not taken into consideration the Recruitment Rules dated 25th June,2009 by authorized strength for direct recruitment on the post of D.G.M. was provided for. The order of Tribunal does not indicate that the Tribunal considered the aforesaid Rules. There are about 600 posts vacant of DGM and the applicants being only 7 in number, their right of absorption and promotion shall also be considered. The learned counsel for the Corporation has also submitted that written test is scheduled to be held on 11th October, 2009 in different centers of the country, and if the examination is not held, the corporation would suffer irreparable loss. Taking into consideration over all facts and submission of the parties, we are of the view that the examination which is scheduled on 11th October, 2009 may be held. However, the result of the written examination for direct recruitment be not declared till the disposal of Original Application by Central Administrative Tribunal. As undertaken by the learned counsel for the Corporation, the Corporation shall proceed with the absorption and promotion simultaneously. Learned counsel for the petitioner may file counter affidavit in original application before Tribunal within one week. The respondents may file rejoinder affidavit within one week thereafter. Learned counsel for the parties are agreed that the petition which is directed only against an interim order be disposed of finally. In view of the aforesaid, we dispose of the writ petition modifying the interim order passed by Tribunal dated 30.09.2009 to the above extent. We make it clear that we are not expressing any opinion on the merits of the claim of the parties which is pending adjudication before the Tribunal. Looking to the nature of the dispute the Tribunal is requested to dispose of the matter expeditiously.
After we dictated the above order, the counsel for the parties brought into the notice of the court that the Corporation itself has postponed the examination schedule to take place on 11.10.2009. Be, as it may even if the Corporation fixes another date of examination for direct recruitment, it shall not declare the result of such examination till the Original Application is decided by the Tribunal. (Underlined to lay emphasis)
4. On a Misc. Application No.4132 of 2009 dated 14.10.2009, filed by Respondent (BSNL) with a prayer to prepone the date for hearing. Tribunal passed following order:-
06.11.2009 Honble Mr. Justice A.K. Yog, J.M M.A (Listing) No.4132/09 (supported by Affidavit)- with a prayer to prepone the date of hearing. In affidavit (sworn by Shri P.K. Srivastava, G.M, B.S.N.L Allahahad) filed in support of prayer for preponement of the date for hearing. It is disclosed that Civil Misc. Writ Petition No. 51692 of 2009 Bharat Sanchar Nigam Ltd. Vs. Ramit Maurya and Ors. was filed against interim order dated 30.9.2009 passed by this Tribunal in the present O.A. NO.1117/09. Said writ petition has been finally disposed of vide judgment and order dated 8.10.2009 with certain observations. Copy of said order is Annexure 1 to the said Affidavit. High Court provided new schedule to the parties for filing their pleadings in the Tribunal. Interim order passed by the Tribunal was partially modified. It is admitted to the parties that now interim matter was over since examination, in question, which was scheduled to take place on 11.10.2009 has been postponed and no fresh date for examination has been fixed. Question to declare the result as such does not arise in the existing situation.
Counter affidavit on behalf of Respondents No.2, 3 and 4 filed through Senior Standing Counsel, B.S.N.L and it is on record.
Learned counsel for the applicant submits that parawise rejoinder (in reply to the said counter affidavit of respondents NO. 2, 3 and 4) is being filed today in the Registry. Office to restore and place the same on file.
Shri S.N Chatterji, Additional Standing Counsel, Government of India informs that counter affidavit on behalf of respondents No. 1, 5 and 6 is ready and awaited and same can be filed within 3 days. One week time is allowed to file parawise counter affidavit of respondents NO. 1, 5 and 6. Applicant shall have two weeks thereafter to file parawise rejoinder affidavit.
List this Expedite Application on 27.11.2009 alongwith office report regarding pleadings.
Before parting with the case, following four things may be noted by learned counsel for the applicant and Registry for compliance:-
(i) Statement made on behalf of learned counsel for the applicant is that similar matter is pending before Andra Pradesh High Court wherein interim order is passed. Either of learned counsel representing respective parties may also be placed copy of writ petition pending before Andra Pradesh High Court alongwith complete copy of ordersheet of Andra Pradesh High Court.
(ii) Copy of Civil Misc. Writ Petition NO. 51692 of 2009 - Bharat Sanchar Nigam Ltd. Vs. Ramit Maurya and Ors. filed before Allahabad High Court (disposed of on 8.10.2009) shall also be kept ready for perusal of the Bench, if required.
(iii) Office is directed to arrange the file as follows: -
Part A Compilation.
Part B Counter Affidavit of Respondents No. 2, 3 and 4 alongwith rejoinder affidavit in reply thereto.
Part D Counter Affidavit of Respondents No. 1, 5 and 6 alongwith its rejoinder affidavit, if any.
(iv) Learned counsel for the Applicant shall do running master paging on red pencil on right hand side of page of top of file A, B and C. Office shall also flag file.
5. The OA was, however, taken up for final hearing on 15.12.2009. Shri D.S. Shukla, Advocate (appearing with Shri Subodh Kumar, Advocate), after case was heard on merit at some length, placed before us correspondence/letter dated 27.11.2009 addressed by B.S.N.L to its Standing Counsel to show that B.S.N.L was proceeding to take steps for clubbing several other O.As pending before different Tribunals and to be heard together after obtaining order of Chairman under section 25, Administrative Tribunals Act, 1985. There is no categorical statement that application has been filed before the Tribunal at New Delhi, if not when it is proposed to be filed. Learned counsel for the applicant, on the other hand, refers to High Court judgment and order dated 8.10.2009 whereby High Court required this Tribunal to decide O.A. expeditiously. He also pointed out that BSNL is contemplating/decided to hold examination for Direct Recruitment on the post of DGMs (in question) on 3.1.2010 and also to promote others- (Junior to the Applicants) by granting Ad-hocpromotion and exercising power of relaxation. This Bench passed following order:-
-15.12.2009 Honble Mr.Justice A.K. Yog, J.M. Honble Mr. S.N. Shukla,A.M. Learned counsel for the parties present. Heard parties counsel at length.
No time left. List/Put up this case tomorrow i.e. 16.12.2009 as a first case at 10.30.A.M.
-16.12.2009 Honble Mr. Justice A.K. Yog, Member (J) Honble Mr. S.N Shukla, Member (A) We have heard the argument of learned counsel for the applicant and in reply, the arguments made by Shri Subodh Kumar Advocate representing the respondents, in part.
Shri Subodh Kumar, Advocate seeks adjournment of the case on personal ground.
In view of it, we adjourn the case for tomorrow as prayed by him. The case shall be taken up tomorrow at 10.30 AM.
_________
6. When OA was again taken up on 16.12.2009; Counsel for BSNL informed that no application, as required under section 25, Administrative Tribunals Act, 1985 has been filed till date and is completely non-committal as to how much time BSNL requires to take steps and/or file requisite application before Central Administrative Tribunal, Principal Bench. In view of High Court order (desiring early decision of the O.A.) and subsequent developments as informed by the counsel for the applicant and not disputed by the Counsel representing BSNL viz.the department has fixed January 3, 2010 for holding the examination to make appointment by Direct Recruitment under Rule, 2009 and Ad-hoc promotions of Promoteesin lower Cadre and Grade, we find that BSNL is trying to blow hot and cold in same breath, which cannot be allowed. It sought for early decision before High Court and now wants adjournment on flimsy/vague ground/s like proposing to seek clubbing/transfer of O.As to be decided together. We, therefore, proceed to hear and decide this O.A. on merit.
FACTS OF THE CASE:
7. The applicants were Selected and recruited through All India Competitive Engineering Service Examination conducted by Union Public Service Commission (UPSC)-and belong to 1999 Batch of ITS (Indian Telecom Services) in 1999; and also promoted subsequently in STS Grade in the year 2006.
8. Relevant particulars and details of all the Applicants have been disclosed in tabulated chart filed as Annexure A-1/Compilation-II. There is no dispute that Services of the petitioners are governed by Indian Tele Communication Services (Group-A) (Recruitment Rules), 1992 (called Rule 1992) as notified on 29.05.1992/(Annexure A-2/Compilation-II). In these Rules there is no provision for making Direct appointment on the post of DGM (JAG).
9. In the year 2000 Government of India decided to set up Bharat Sanchar Nigam Ltd. (B.S.N.L) and transfer Staff, Business of D.T.S (Department of Telecom Services) and D.T.O. (Department of Telecom Operators) to said B.S.N.L. The Government, however, retained authority to formulate policy, management and administrative control, etc. and corporatise the service provisions, functioning of the Department of Tele Communication. Government of India (Ministry of Communications, Department of Telecom Services issued Office Memorandum (vide No.2-29/2000-Restg. Government of India, Ministry of Communications), Department of Telecommunication Services, dated 30.09.2000, (Annexure A-3/compilation-II- PP 42) which provided for a non-optional deemed-deputation to the Group-A Officers to B.S.N.L. till the officers were absorbed in the company and clearly provideAs such administrative Department for BSNL would be DOT. Moreover, clause 4 (i), 4 (iv), 4 (v) and 4 (vii) of said OM are aimed to protect interest of ITS officers governed by Rule 1992. List of Cadres in the field Unit of DTS/DTO of Department of Telecommunications (DOT) (prior to their approval) attached said OM (Compilation II/pp 46 of OA) shows that they are placed in Group A and at the top of all other Officers of Group A and below.
10. On 26.11.2001 Secretary, Department of Tele Communications, Government of India Addressed a D.O.No.12-23/95-TE.I to Secretary, Department of Personnel and Training, New Delhi, (Annexure A-4/Compilation-II pp 52). The D.O. letter inter alia states the following:-
As per decision of the Cabinet Group A Officers In this regard, I would like to mention once again that as per decision of the cabinet, Group A officers have an extended deemed deputation to BSNL up to a period of 5 years, till the officers are absorbed in the Company. Thus during this period they shall be governed by the rules applicable to Central government employees and therefore, their aspirations relating to promotion and removal of stagnation need to be duly addressed as per the guidelines of Government of India. The Service Association has also been consistently taking up the issue of stagnation and cadre Review in the service at various platforms. You are requested to once again examine the issue and arrange to place the Cadre Review proposal of Indian Telecom Service Group A before the Cadre Review Committee for an early decision.
11. It is submitted that the foregoing documents show that apparently there is no provision for Direct Recruitment on the post of D.G.M. under existing Rules.
12. However, PERSONNEL Sections of BSNL Corporate Office published Recruitment Rules (2008) of Directly Recruited DGMs of BSNL Management Services (BSNL MS) vide File No.314-36/2008-Pers.I (Pt.) dated 25.06.2009 (Annexure A-6/Compilation II of OApp 68) with a preamble stating as under:-
Recruitment Rules for Directly Recruited DGMs of BSNL as appended below will be part of BSNL Management Services Recruitment Rules, 2008. (Underlined to lay emphasis)
13. It showed Authorized strength of Directly Recruited DGMs of BSNL MS & BSNL TAES to 150 + 60 respectively (equivalent to JAG). It also provided for Training (specialized class room as well as Field Training) during 2 years probation. Admittedly no Rules were appended while said Rules (2008) were issued.
14. Later, BSNL issued Corrigendum dated 10.09.2009 to the aforesaid Recruitment Rules 2008 providing that 2008 be read as 2009; and Method of Recruitment as Direct (Annexure CA-2 of the CA of BSNL).
15. Probably, realizing its mistake (due to the haste as alleged by the Applicants) issued Notification dated 14.7.2009 (Annexure A-5/Compilation II pp 54) containing BSNL Management Services, (BSNL MS)/Recruitment Rules 2009; to be effective w.e.f 11th June, 2009. There is specific mention in the Rule 14 that provision of Recruitment Rules are even at the moment subject to final terms and conditions of absorption of Group A Officers in BSNL in future. Rule 14 is reproduced:-
14. Provisions of these recruitment rules will also be subject to final terms and conditions of absorption of Group A Officers in BSNL in future.
16. The aforesaid Rules of 2009 also contemplate that appointment by way of promotion as per Schedule 1A, 1B, 1C and 1D. So far as post in question i.e. D.G.M is concerned, schedule 1C which is relevant wherein row-2 which refers to the post of DGM requires filling up the post by way of promotion only from amongst Executive working in S.T.S Grade or equivalent Grade having completed four years of regular service. Relevant portion of said schedule is hereby reproduced:-
Deputy General Manager (Equivalent to JAG i.e. E5) 16000-400-20,800 (Post Based promotion) By promotion Selection by merit Executives in AGM Grade, who have completed 4 years of regular service in AGMs grade as on 1st January of the year.
17. Aforesaid Rules (framed by B.S.N.L itself) provides for appointment on the post/s of D.G.M by way of promotion only. According to the Applicants, however, aforesaid Rules are without authority of law.
18. Simultaneously, a notification dated 14.07.2009 was issued through newspaper and Websites and an advertisement was issued for Direct Recruitment of Dy. General Managers (Annexure A-7/Compilation-I). The applicants are before this Tribunal against the said Rules and advertisement (Annexure A-5 to 8/Compilation-II).
19. Applicants in instant OA seek following reliefs:-
In view of the facts and circumstances and the ground mentioned in heading 4 and 5 of the above application prays for the following reliefs:-
(A) Issue order or direction commanding the respondents to set aside impugned advertisement dated 14.7.2009 (Annexure No.7 to this Original Application) (as available in the B.S.N.L. Website) and consequential proceedings for selection on the post of D.G.M. (B) Issue order or direction commanding the respondents nos.1,5 and 6 to go for ad hoc promotion on the post of D.G.M. in lieu of vacant post, as previously done and even done in current eligible batch of 1998. In case, there is any exigency for appointment on the post of D.G.M. or authorities may go for regular promotion as procedure provided in the Rules of 1992, providing relaxation as available in the Rule itself.
(C) Issue order or direction commanding the respondent nos.1,5 and 6 to declare the impugned notification BSNL Management Services Recruitment Terms and Conditions Rules, 2009 notified on 14.07.2009 ineffective till absorption of applicants like officers are finalized.
(D) Issue any other, order or direction which this Honble Court/Tribunal may deem fit and proper in the circumstances of the case.
CASE OF THE APPLICANTS:-
20. Learned counsel for the applicant took us through the facts of the case stated above and elaborated them further with reference to his case. It is submitted that applicants are at present working in S.T.S. Grade (in B.S.N.L.) on Deemed Deputation. They were initially got recruited through All India Competitive Engineering Services Examination conducted by Union Public Service Commission in 1999 for recruitment in different Ministries/Department of Central Government vide its notification no. 98/E(GR)I/18/1 which was published in the Gazette of India on 23rd January 1999 for the various services/posts including Indian Telecom Communication Services. The Carrier Progressions of the various services/posts were also mentioned in the said notification alongwith the functionalities, duties & responsibilities attached to the each level of the post.
21. As per admitted position, once applicants are on deemed deputation in the BSNL and originally belongs to Telecommunication Department. There being no cadre like S.T.S. Grade in B.S.N.L, under no circumstances, the authorities could be allowed to even frame the rules for making promotion on the post of D.G.M. Even after formation of B.S.N.L which has been, carved out from department of Telecommunication, there is no bifurcation of post till date by the Central Government. Hence, in case BSNL requires to make any appointment either by way of direct recruitment or by way of promotion, the only posts available for this purpose belong to the cadre of Telecommunication Department. Until and unless the posts are bifurcated or new post created in B.S.N.L. with the consent/Approval of Government of India as provided by Office Memorandum dated 30.9.2000 (Annexure A-3 pp 42). D.O. Letter dated 26.11.2001 (Annexure A-4- pp 52) issued by Government of India read with Rule, 1992, no post out of the sanctioned strength of the post of erstwhile DOT can not be appropriated for direct recruitment.
22. So far as services of applicants are concerned, they are governed by the Rules, 1992 as notified in 1992 itself (Annexure A-2). In reference to above, Rule 8 of Rules of 1992, which also refers to schedule 3, for appointment on the post of JAG (Junior Administrative Grade) contemplates only source for recruitment i.e. by way of promotion, that too from amongst officers working in S.T.S. Grade having five years regular service. Relevant portion is hereby reproduced.
Junior Administrative Grade By promotion Selection Officers in the Senior Time Scale with 5 (five) years regular service in the grade.
23. Apart from above, Rule 8 (2) of Rules of 1992 specifically provides that appointments in grade specified Serial No. 1 to 6, schedule 1 shall be made by way of promotion. Meaning thereby, there is no way of making any direct recruitment on the post concerned.
24. Until and unless either the cadre of S.T.S. Grade or JAG are bifurcated in between DOT and BSNL or some new cadre formed, no recruitment on the said post could be done. In any case no such bifurcation has yet materialized or done, all such posts belong to department of Telecommunication and in respect to such posts the right of absorption/promotion is vested with those who came on deputation from Telecommunication Department i.e applicants hence no recruitment by direct recruitment is permissible. It was informed that as per decision of the Cabinet Group A Officer have an extended deem deputation to B.S.N.L. upto five years till the officers are absorbed in the Company, thus during this period, they shall be governed by the Rules applicable to Central Governments employees and therefore their aspiration relating to promotion and removal of stagnation need to be duly addressed as per guidelines of Government of India (Annexure A-4).
25. In pursuance of the new telecom policy of 1999 Government of India decided corporatization the service provisions, function of department of Telecommunication and therefore, it was also decided to transfer the business, providing Telecommunication Service in the country, at that time run and entrusted in the department of Telecommunication Services, newly formed Company was given the name B.S.N.L (The Company) w.e.f. 1.10.2000. The Government has also decided to retain the function of policy formulation, licensing Wireless Spectrum Management, Administrative Control P.S.Us. Standardization and Validation equipment and R & D etc. Para 4 (vii) of Office Memorandum dated 30.9.2000 (Annexure A-3/Compilation pp 42), is hereby quoted:-
(vii) Bharat Sanchar Nigam Limited will be competent to create posts as per norms adopted by it, however, it will seek prior approval of the Government for appointments to higher level posts as per provisions of Article 144 (1) of its Articles of Association.
(Underlined to lay emphasis)
26. So far as final absorption of the Applicant/s is concerned, it is admittedly still under consideration.
27. By way of information, it is submitted by the applicants that to meet the shortage of Officers at D.G.M level at B.S.N.L recruitment on Ad-hoc promotion basis from amongst officer working in the department has been made. Batch from 1995 to 1997 have already been promoted as D.G.M and 1998 batch is expected its promotion any time. This leaves only 1999 (the batch to which the applicants belong) high and dry for two reasons:-
(i) Officers are sought to be directly recruited at D.G.M level and
(ii) While the case of the applicants is pending finalization of absorption etc., their juniors who were promoted from lower cadres and who stand absorbed in the B.S.N.L are also likely to be promoted any time to the effect of double jeopardy to the applicants.
28. It is also pointed out that all the applicants possess qualifying service of 4 years under 1992 Rules and 5 years under 2009 Rules and in that respect, they are similarly placed as earlier batches and much better than those sought to be appointed now under impugned Rules who shall be able to meet so called urgency after about 2 to 3 years; whereas the Applicants are already available.
29. In aforesaid background, it is further submitted that Recruitment Rules of BSNL Management Services File No. 400-106/2007-Pers I dated 14th July 2009 sought to be made effective w.e.f.11.6.2009 (Annexure A-5). There is no provision of making of appointment of the post of D.G.M by way of Direct Recruitment.
30. As against Rule of 14th July 2009 i.e. Recruitment Rules (2008) of Directly Recruited DGMs of BSNL Management Services, File No.314-26/2008-Pers. I (Pt.) dated June 25th 2009 seeking to recruit officers at DGM level through Direct Recruitment becomes redundant and superseded in view of Rules dated 14th July 2009 having been issued at a later date. Contents of Rule dated 25.6.2009 do not find place in the Rules dated 14th July 2009, and even if it is to be assumed though not conceded that these Rules shall be effective from 11.6.2009, no such Rules can be made, which do not have any source of determining Authorized Strength of directly recruited DGMs and by all combinations/permutation of the number of authorized posts indicated in para 5.1-(iv-(a),(b) & (c)- of Rules dated 14th July 2009 (Annexure A-5) and information supplied in response to query under R.T.I Act 2005 (Annexure A-11), there is no definite information/authority for the said 150 posts as B.S.N.L T.M.S and 60 posts of B.S.N.L T.F.S are over and above the sanctioned strength of the existing cadre of B.S.N.L Management Services or that they are a separate cadre not included and not a part of existing cadre and that they will be separate stream for further promotions not interfering with promotion prospects of existing cadre to the determent of the hierarchy of the existing cadre. In other words if such Direct Recruits are allowed to sit on top of the applicants, under any interpretation, the Direct Recruits will become senior to the applicants for all times to come. Unless the applicants case of absorptions and promotion is completed before any such recruitment can be contemplated, though not provided for under any valid Rules per say.
31. The learned counsel for the applicants also invited our attention to the change of qualification and eligibility required for appointment of the post of DGM through the impugned advertisement, which is arbitrary and illegal as no such amendment can be made in the statutory Rules.
32. It is also submitted that if the Authorities were to take an objection if at all regarding inadequate experience on the part of the applicant/applicants then there is a provision for relaxation in experience under Rule 8 (5) as well as 12 and 13 of Rules 1992. The relevant Rules read as under:-
8 (5) The eligibility list for considering promotions shall be prescribed eligibility condition are being considered for promotion, the senior officers who would not have completed the requisite service shall also be considered provided that such senior officers have completed the probation period and passed the Department Tests as applicable. 8 (12) Consideration of promotion of seniors with less qualifying service; in case where juniors who have completed their qualifying/eligibility service are being considered for promotions, their seniors would also be considered provided they are not short of the requisite qualifying/eligibility service by more than one year on the date of reckoning for promotion to the next higher grade alongwith their juniors who have already completed such qualifying/eligibility service.
8 (13) Power to relax:- Where the controlling authority is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing and in consultation with the Commission, relax any of the provisions of these rules with respect to any class or category.
33. The applicants further place reliance on following Rulings:-
(i) Arun Kumar and others Vs. Union of India and others (2007) 5 SCC 580 relevant para 11.
(ii) Nautam Prakash DGSVC, Vadtal and Ors. Vs. K.K. Thakkar and others (2006) 5 Supreme Court Cases 330 relevant para 24.
(iii) T.N Housing Road Vs. N. Balasubramanium and others (2004) 6 Supreme Court cases 85 relevant para 6.
(iv) Ramchandra Keshav Adke Vs. Govind Joti Chavare and others AIR 1975 Supreme Court 915 relevant para 25.
(v) J.N Ganatra Vs. Morvi Municipality, Morvi (1996) 9 Supreme Court Cases, 495 relevant page 4.
34. We do not find these citations relevant or directly dealing with the issue/s in hand.
CASE OF THE RESPONDENTS
35. The respondents No.2 to 4 (BSNL) in their counter affidavit raised various objections. First, vide para 7 to 10 of the counter affidavit it is stated that the Applicants are to be blamed for delay in absorption by failing to give option. His issue is beyond the actual controversy and grievance of the Applicants. Respondents admit that process of absorption of Grade A Officer is still not completed.
36. Secondly, it is pointed out that there is a huge shortage of Officer at D.G.M level at B.S.N.L.known as J.A.G (Junior Administrative Grade) owing to which the working is adversely affected. Accordingly, B.S.N.L has decided to recruit experts having qualifications i.e. Engineering, CA, CS and ICWA respectively.
37. Para 10, 12 and 40 of the counter affidavit read:-
10.That it is also made clear her that now the BSNL has decided to recruit the experts having professional qualifications such as CA, ICWA, CS and Engineering respectively.
12.That due to acute shortage of DGMs of about 650 posts and also due to requirement of BSNL specially in the competitive era where the BSNL is competiting with other similarly situated companies of National/International repute, separate approval of Competent Authority was obtained for creation of 150 post in Telecom Management Services (Engineering side) (BSNL) TMS) and 60 post of DGMs (BSNL Telecom Account and Fnance Services) with required eligible qualifications such as Engineering CA, CS and ICWA with specified experience. The aforesaid 210 posts is Authorized strength of directly recruit DGMs of BSNL Management Services to be filled as per recruitment rules for direct recruit DGMs notified vide Rule dated 25.6.2009 (Annexure 6 page 69 of the Paper Book of OA). Since the aforesaid rules for direct recruitment of the DGMs contemplates that the same will be part of BSNL Management Services Recruitment Rules, 2009. A corrigendum dated 10th September 2009 was issued that instead of BSNL MSRRs 2008 the same be read as BSNL MSRRs 2009. The corrigendum further contemplates that under column 8 the word recruitment be read as direct recruitment.
40.That the contents of para No.4.23 of the O.A. as stated are not admitted and are denied. The qualification of DGMs to be recruited directly is in respect of BSNL/TMS 150 posts and BSNL TAFS 60 posts. On perusal of age and experience and qualifications of the person to be recruited by direct recruitment it is clear that the Company is interested to have young and the best available intellectuals in their respective field who are well acquainted with the specialized latest knowledge of the communications, electronics, electrical, Information Technology, Computer and Computer Science etc. So far as the DGMs TAFS are concerned required qualification is CA, ICWA, CS. None of the applicants have such educational qualification.
38. Above paras have been replied vide para 6, 8 and 30 of the Rejoinder Affidavit.
39. In our view the stand taken by the BSNL stands vitiated and cannot be sustained in above respect in view of Clause 13 of Advertisement dated 14.07.2009 (Annexure A-7 to the OA) which reads:-
13.Probation-cum-Training and Bond
(i)Probation will be on-job for a period of two years, which will include one year of specialized classroom as well as field training.
(ii)All candidates shall, before their appointment as DGMs in Telecom Management Services and DGMs in Telecom Accounts & Finance Services, have to successfully undergo prescribed training as per the training plan laid down and amended by the Company from time to time.
(iii)All candidates provisionally recruited shall execute Bonds in the format specified by the BSNL indicating their willingness to serve the BSNL for a period of at least 5 years from the date of their appointment as DGMs.
40. Aforequoted clause 13 of the Advertisement shows that even if BSNL is permitted to make recruitment through Direct Selection under impugned Rules of 2009, it is not going bring experienced hands to make the situation better immediately. As far as averment on the part of BSNL in para 40 of the counter affidavit is concerned we can refer to relevant extract of Para 30 and 31 of the rejoinder affidavit which reads:-
30.So far as qualification part is concerned that requires statutory approval. So far as the alleged term used young and best intellectuals are concerned, petitioner requires to reply that they are below 40 years age while the age requires in the impugned notification dated 14.7.2009 is 45 years therefore the authorities are as a matter of fact calling the incumbent more than the age of petitioner and therefore, the claim in the para under reply is incorrect misleading and requires to be rejected. So far as the term best level intellectual are concerned, all the petitioners are selected by Union Public Service Commission and further having experience of more than 8 years in telecom operation while on the other hence BSNL calling the incumbent have no experience in telecom operation, to that extent petitioners are best available intellectual and therefore no person by direct recruitment is required. Reason given by the authorities in the para under reply requires to be rejected.
31.That the contents of para 41 of the counter affidavit is denied while contents of para 4.24 of the original application is reiterated. The authorities failed to inform the statutory sources, the recruitment body has no right to change the qualification which is existing as per statute so far as the mode of appointment is concerned. So far as young and intellectual is concerned that has already been replied in the preceding paragraph, to that extent contrary averments made in the para under reply requires to be rejected.
41. We have, however, noted that nowhere the respondents have taken stand in their Counter Affidavit that the applicants do not possess the required qualification.
42. Learned counsel for the respondents would also submit that to meet the shortage of BSNL framed appropriate Rules. Para 13 of the counter affidavit refers, reproduced in verbatim:-
13. That, the Bharat Sanchar Nigam Limited has also framed BSNL Management Services Recruitment Rules, 2009 notified on 14.7.2009 which are effective from 11.6.2009. On perusal of clause 4.1 of the Recruitment Rules (Annexure No. 5 page 54 of the paper book of OA) further contemplates that the executives at the level higher than that of management trainees recruited directly or to be recruited by the Company will also be part of BSNL Management Services. Just to clarify the confusion it is further made clear here that Para No. 5.1 and 5.2 shows the table of Grade/Level of different cadre of services. The post of DE (Divisional Engineer/AGM at Sl. NO. V) is the entry level of BSNL Management Service by promotion and direct recruitment of Management trainees. In this way there is no hindrance in the recruitment of DGM directly as per selection process dated 14.7.2009.
43. Learned counsel for the respondents submitted Photostat copy of the some judgment but did not refer to them and placed no reliance the same during the course of the argument.
44. Counsel representing Respondent no.1 did not add or address the Bench nor referred to the Counter Affidavit filed by Respondent No.1.
CONCLUSIONS:
45. From the pleadings of the parties and submission made by learned counsel on either side, the issue/s which requires adjudication are dealt hereunder.
46. The first point is-Whether posts of D.G.M (150 + 60) can be filled by Direct Recruitment on the basis of Rules, 2009 framed by B.S.N.L. which adversely affect the applicants and other person of 1999 batch governed by rule 1992?
47. At the outset it is to be noted that recruitment Rules 1992 (Annexure A-2/Compilation 2 of the O.A) have been framed by the President of India exercising powers under Article 309, Constitution of India. There is no dispute that Rule 1992 has not been revoked or withdrawn. On the other hand, Direct Recruitment Rule 2009, (issued by B.S.N.L, a Company) cannot override aforesaid Rule 1992. No attempt has been made by the Respondents to show that Rules 2009 have statutory force.
48. Rule, 1992 clearly provide that post of Junior Administrative Grade shall be filled by promotion from the officers in Senior Time Scale with 5 years regular service in the Grade (Senior Administrative Scale). Schedule III of said Rules 1992, clearly provide that appointment in the grade specified in Sl. No. 1 to 6 in Schedule I shall be made by promotion from amongst officers in the next lower grade as specified in Schedule III.
49. Office memorandum dated September 30, 2000 (Annexure A-3/Compilation II), as noted above, further protects Terms and Conditions of the officers, like the Applicants on deemed-deputation. Clause 4 (v) contemplates Officer and Staff shall continue to be subject to all rules and regulations as are applicable to Government servants.. till such time as they are absorbed finally by the Company after they exercise their options. Their pay scale, salaries and allowances will continue to be governed by existing Rules, regulations and orders.
50. On behalf of the respondents (B.S.N.L) reference is made to Clause 4 (vii) which reads:
Bharat Sanchar Nigam Limited will be competent to create posts as per norms adopted by it, however, it will seek prior approval of the Government for appointments to higher level posts as per provision of Article 144 (1) of its Articles of Association.
(Underlined to lay emphasis)
51. No attempt is made to place on record the NORMS adopted by BSNL to create posts or to show that prior approval of Government being taken to initiate process of Direct Recruitment. Unfortunately, no endeavour is made to satisfy that these DGM Posts (150 + 60) sought to be filled up are part of regular strength of DGM covered by Rule 1992 or Rule 2009 (framed by BSNL itself) or these posts have been newly created, if so when?. BSNL/Respondent who is in possession of relevant record/figures, has failed to place it on record.
52. Learned counsel for the respondents then refers to para 18 of counter affidavit (of BSNL), which reads:-
18. In this regard it is submitted that the higher level post in BSNL is General Manager and above.
53. This para has been sworn on the basis of record without enclosing relevant record or giving particulars of said record. Counsel for BSNL fails to support above Statement in Counter Affidavit. In absence of the basis for making such averment in the counter affidavit, no reliance can be placed on it.
54. The applicants in order to elaborate and explain the meaning of terms higher posts used in para 4.7 ( O.M dated 30.9.2000-Annexure A-3/Compilation II pp41), refer to Recruitment Rules of B.S.N.L. Management Services dated 14.07.2009; para 5 of it uses expression Grade/Level. He refers Schedule 1A which reads:-
Method of Recruitment, Field of Promotion & Minimum qualifying service in the lower grade for appointment of Executives on promotion to Higher Grade of Telecom Operations & Finance of BSNLMS.
55. It is also argued that all posts above Junior Time Scale or Senior Time Scale as S. No.1 (which is the lowest level/grade) all other posts referred to at S. Nos.2 to 8 referred to in said schedule 1A (which can be filled up by promotion only), have to be treated in higher grade/level. In support of his argument, he refers to table under 5.1; in its second column the expression used is grade/level. With reference to it, it is submitted that two words grade and level are synonymous and interchangeable.
56. In that view of the matter, it is submitted that if the posts mentioned in Sl. NO. (v) from Sl. NO. 4 to 1 i.e. DGM (equivalent to Executive Director) shall be treated to be in Higher Level as compared to the posts mentioned against Sl. NO. 5 (v). The argument cannot be said to be without force but we do not record finding finally on the basis of said submission. It is, however, as already discussed above, the respondents have failed to show that the post of DGM is not a post of Higher level.
57. Also there is no direct affirmative statement that prior approval of the Government is obtained for making appointment on the posts of J.A.G. (by Direct Recruitment). Learned counsel for the applicant, seek to rebut above statement in Counter Affidavit of BSNL about Higher Level, refers to the list of cadre appended to said office memorandum dated 30.9.2000 which places I.T.SGroup A at the top at Serial No.1 which shows that the posts held by I.T.S. are in higher level even as compared to other posts of Group A (viz. Posts at Sl. Nos. 2, 4, 5, 6 & 7).
58. Shri Shailendra, Advocate, appearing on behalf of the applicants, further submits that expression prior approval used in para 4.7 of OM dated 30.9.2000 puts restriction on initiating process of even recruitment/selection which according to him as part of appointment.
59. From the above, it is clear that BSNL did not seek prior approval or consent of the Government of India for creating posts as required under para 2 of Office Memorandum dated 30.9.2000. There is no basis for statement made in counter affidavit to say that post below General Manager cannot be treated in higher level.
60. To appreciate the meaning and scope of English term appointment, we may refer to the meaning of said expression appoint given in Legal Glossary1988 Edn.published by Ministry of Law and Justice (G.O.I) at pp. 24 which reads:-
Appoint- the action of nominating or placing in an office.
61. On behalf of the applicant, learned counsel for the applicant has placed reliance on following decisions:-
(i) 1990 (2) S.C.C 669- A.P. Public Service Commission Hyderabad and another Vs. B. Sarat Chandra and others. Relevant extract of para 7 of the aforesaid decision reads:-
..But round phrases cannot give square answers. Before accepting that meaning, we must see the consequences, anomalies and uncertainties that it may lead to. The Tribunal in fact does not dispute that the process of selection beings with the issuance of advertisement and ends with the preparation of select list for appointment, Indeed, it consists of various steps like inviting applications, scrutiny of application, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment..
(ii) AIR 1962 S.C. 36, General Manager Southern Railway and another Vs. Rangachari. Relevant extract of para 16 on which reliance is placed reads:-
.The three provisions form part of the same constitutional code of guarantees and supplement each other. If that be so, there would be no difficulty in holding that the matters relating to employment must include all matters in relation to employment both prior, and subsequent, to the employment and form part of the terms and conditions of such employment..
62. A provision is to be read as whole. It appears that expression appointment used in Clause 4.7 of office memorandum does include process of recruitment/selection. Otherwise, it is likely to cause serious repercussions. If BSNL is permitted to undertake process of selection/recruitment and declare select list (without approval of G.O.I) and later seeks Approval of G.O.I but it is denied, then it shall, apart from causing embarrassment to BSNL, also give rise to compilations viz.-inviting litigations, wastage of public funds, time, energy and money of third parties since large number of candidate shall be acting on the representation of BSNL. It is more so-when Advertisement in question does not disclose that process/selection is subject to the rider of prior Approval of the Government. It is well settled that when a provision admits of two interpretations, which is more logical, pragmatic, meaningful and useful should be preferred. Hence we accept the submission of the Applicant while reading clause 4.7. Consequently, BSNL ought to have obtained prior approval from the Government before initiating process of Direct recruitment.
63. The second point iswhether BSNL is competent to frame Rule, 2009? And Can BSNL frame Rule with retrospective effect?
64. According to the applicant BSNL is not competent to make recruitment which infringes upon the rights of the applicants governed by Rule 1992 framed by the President of India under Article 309 of Constitution of India by framing Rules with retrospective effect.
65. On behalf of the applicants it is further submitted that BSNL, (a Company), cannot formulate Rule (like notification dated 14th July 2009) giving retrospective effect (i.e. from 11.6.2009) since retrospectivity cannot be conferred in absence of statutory powers.
66. Learned counsel for the applicant has placed on following decisions:-
(i) AIR 1972 SC 2427- Prithvi Chanda Vs. Union of India and others. Apex Court while dealing with the power/jurisdiction of the Government to provide retrospective effect held. Relevant extract of para 3 of the said reads:-
The underlying principle is that unlike Sovereign Legislature which has power to enact laws with retrospective operation, authority vested with the power of making subordinate legislation has to act within the limits of its power and cannot transgress the same.
(ii) AIR 1965 S.C. 1429- The State of M.P. and Ors. And Tikamdas. Relevant extract of para 5 reads:-
5. Let us examine the rival contentions and test the soundness of each briefly. First of all, we have to ascertain the scope and area of the rule-making powers, the limitations thereon and the retro-active operation of such rules. There is no doubt that unlike legislation made by a sovereign Legislature, subordinate legislation made by a delegate cannot have retrospective effect unless the rule making power in the concerned statute expressly or by necessary implication confers power in this behalf
(iii) 1997 (6) S.C.C 623, Chairman Railway Board and others Vs. C.R. Rangadhamaiah and others. Relevant extract of para 24 of the said decision reads:-
24. In many of these decisions the expressions vested rights or accrued rights have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon, B.S. Yadav and Raman Lal Keshav Lal Soni.
67. Learned counsel for the applicants further submits that BSNL has attempted to create a cadre within Cadre by providing a source (i.e. Direct Recruitment) whereas both Rule 1992 and Rule 2009 admits of one source for appointment that is by promotion only. We find substance in this argument.
68. The applicants further point out that BSNL has designs other than what they have disclosed in paras 10, 12 and 40 of their Counter Affidavit. Stand taken by BSNL in those paras of Counter Affidavit, on the face of it does not appeal and sequence of events show that it has acted in haste or under some misconception. First, BSNL issued advertisement dated 14.7.2009 (Annexure A-7/Compilation I). Said notification did refer to Rules for Direct Recruitment being appended thereto but in fact there were no Rules appended in existence at that time. File Number/s show that notification for Direct Recruitment came in existence in the year 2008 but Rules were framed only on 25.7.2009 though they were under consideration since year 2007 (which is evident from perusal of photo copy of Recruitment Rules of B.S.N.L Management Services-Annexure A-5/Compilation II). Even clause 14 of said Rules 2009 (as noted above) makes those Rules subject to final terms and conditions of absorption of Group A officers in BSNL. In all fairness Absorption should be finalized. And, during interim period, BSNL can always resort to promotion as it did in the past. We see no difficulty (nowhere/otherwise pointed out by the Counsel for BSNL) in following past practice.
69. We hold that Advertisement dated 14.7.2009 (copy filed as Annexure A-7/Compilation I of the O.A.-at pp.18) is arbitrary, illegal and without basis in absence of Valid Rules. We also hold that BSNL has no authority to frame Direct Recruitment Rules, 2009 (Annexure A-5)-with retrospective effect. Consequently, we further hold that BSNL, was under obligation to obtain prior approval of the Government (G.O.I) under clause 4 (iii) of Office Memorandum dated 30th September 2000, (Annexure A-3/Compilation II to O.A-pp-42) which it failed to obtain before initiating procedure for Appointment of DGM through Direct Method.
ORDER
70. Consequently, we direct-
(i) BSNL (Respondents No.2 to 4) not to give effect to the Advertisement dated 14.7.2009 (Annexure A-7/Compilation I to the O.A.) and not to hold examination on the basis of Direct Recruitment Rules, 2009. (BSNL, TMS & BSNL TAFS)(Annexure A-6/Compilaton II of the O.A).
(ii) Respondent Nos.1 to 6 are directed to make promotions on the vacant posts of DGMas done in the past- till absorption is finalized as has been done in the past.
(iii) Respondents are directed not to make appointment by Direct Recruitment except in exercise of valid authority of law and without affecting/prejudicing the right of officers governed by Rule 1992.
71. O.A. stands allowed subject to the above directions/observations. We make no order as to costs.
72. A copy of the order shall be given to the learned counsel for the parties as per Rules within 1 week from today.
73. Applicants/Respondents and their counsel are directed to communicate copy of this order forthwith to the concerned Authority for compliance.
Member (A) Member (J)
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