Central Administrative Tribunal - Madras
A Elangovan vs Bharat Sanchar Nigam Ltd on 26 September, 2024
1 OA /310/01511,1513 to 1523 of 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/01511, 01513, 01514, 01515, 01516, 01517,01518, 01519,
01520, 01521, 01522 and 01523/2016
Dated this the 26th day of September, Two Thousand Twenty Four
CORAM :
HON'BLE MR M. SWAMINATHAN, MEMBER(J)
AND
HON'BLE MR. SANGAM NARAIN SRIVASTAVA, MEMBER(A)
1.R. Palani,
S/o Rajamanickam,
Telecom Mechanic, BSNL,
C-14, Telecom Staff Quarters,
Bharathipuram,
Dharmapuri. .. Applicant in OA 1511/2016
2.V. Tamil Selvan,
S/o K. Vaiyapuri
Telecom Mechanic, BSNL,
No.24, Cheran Nagar,
North Kattur, Trichy. .. Applicant in OA 1513/2016
3.T. Sundaram,
S/o Thangavel,
Telecom Mechanic, BSNL,
Manganikadu,
V.Muthampatti Post,
Pommadi Via Dharmapuri.
Dharmapuri Taluk and District. .. Applicant in OA 1514/2016
4. D. Chandrasekaran,
S/o Dekshinamurthy,
Telecom Mechanic, BSNL,
29, East Agraharam,
Nannilam,
Thiruvarur District. .. Applicant in OA 1515/2016
2 OA /310/01511,1513 to 1523 of 2016
5. K. Balathandayutham.
S/o Kathamuthu,
Telecom Mechanic, BSNL,
1/233, 5th Cross Street,
Vishaan Thoppu,
Pulivalam Post,
Thiruvarur District. .. Applicant in OA 1516/2016
6.A. Elangovan,
S/o P. Angamuthu,
No.334/1, Eswarangar,
Pallividai,
Samayapuram PO,
Lalgudi TK, Trichy District. .. Applicant in OA 1517/2016
7.K. Ambairam,
S/o Karuppan,
Telecom Mechanic, BSNL,
3/51/N, Annai Therasa Nagar East,
Virudhachalam Main Road,
Ulundurpet, Villupuram District. .. Applicant in OA1518/2016
8.M. Nadaraja,
S/o P. Muthaiah,
Telecom Mechanic, BSNL,
C2/2, Telecom Staff Quarters,
V.M. Chatram, Palayamkottai,
Thirunelveli. .. Applicant in OA.1519/2016
9.V. Renganathan,
S/o G. Veeramuthu,
Telecom Mechanic, BSNL,
2/57, East Street,
Nagal Kuzhi Post,
Senthurai Taluk,
Ariyalur District. .. Applicant in OA.1520/2016
10.R. Manickam,
S/o K. Rengan,
Telecom Mechanic, BSNL,
3/77, Keel Ayyampalayam,
Vembadithalam Post, Salem District. .. Applicant in OA 1521/2016
3 OA /310/01511,1513 to 1523 of 2016
11.K. Ramakrishnan,
S/o S. Kanapathy,
Telecom Mechanic, BSNL,
74A, Masi Street,
Alwar Thirunagari,
Thuthukudi District. .. Applicant in OA1522/2016
12.E. Saravanan,
S/o S. Esakkimuthu,
Telecom Mechanic, BSNL,
No.30, Sri Lakshmi Illam,
MSK Nagar, Gandhi Nagar,
Tirunelveli. .. Applicant in OA 1523/2016
By Advocate M/s Law Square
Vs.
1. Bharat Sanchar Nigam Ltd.,
Corporate Office
rep by The Chairman-cum Managing Director,
IR Ball Eastern Court,
Janpath, New Delhi.
2.Bharat Sanchar Nigam Limited
Tamil Nadu Telecom Circle
rep by The Chief General Manager,
No.16, Greams Road, Chennai.
3.Bharat Sanchar Nigam Limited,
Chennai Telecom Circle
rep by The Chief General Manager,
No.78, Purashawakkam High Road,
Chennai.
4.Ministry of Communication and IT Technology,
Department of Telecommunications
rep by its Secretary to the Government of India,
Door No.20, Ashoka Road,
Sanchar Bhavan, New Delhi. .. Respondents in all
the OAs
By Advocate Mr. S. Gopinathan for R.1 to 3
4 OA /310/01511,1513 to 1523 of 2016
ORAL ORDER
(Pronounced by Hon'ble Mr. M. Swaminathan, Judicial Member) Since the issue involved in all these applications is similar and the relief sought is also identical, which is founded on similar facts and circumstances, these applications were heard together and are being disposed of by this common order.
2. The relief sought by the applicants in all these applications is as follows:
"(i) To call for the records connected with Proceedings No.RET/301-5/2007/Vol-II/33, dated 26.02.2016, passed by the 2nd respondent and quash the same
(ii) To direct the 1st respondent to appoint him as Telecom Technical Assistant duly fixing his name in the appropriate place and seniority based on the marks and rank obtained by him in the supplementary Examination 2007 duly following Rule of reservation by relaxing the Telecom Technical Assistant Recruitment Rules 2001 as well as invoking the provisions of other Employee Service Rules there to duly permitting him to draw his pay in the appropriate Scale of Pay for the post of Telecom Technical Assistant and draw arrears of pay and allowances and all other attended and monetary benefits retrospectively with effect form 10.03.2008 onwards or from the date of joining duty of Telecom Mechanic as Telecom Technical Assistant in Chennai Telephones Circle in accordance with the respective Scale of pay in force.
(iii) To pass such further or other orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case and thus render justice."
5 OA /310/01511,1513 to 1523 of 2016
3. All the applicants are employed as Telecom Mechanics at the Respondent Company. To fill vacancies for the 2004 recruitment year for the position of Telecom Technical Assistant (TTA)--a higher post than Telecom Mechanic--the Respondents conducted a Limited Departmental Competitive Exam (LDCE) in 2005, following the TTA Recruitment Rules of 2001. Many Telecom Mechanics, including the applicants, struggled to pass the LDCE due to the difficulty of the exam, which even Engineering Graduates found challenging. After discussions, the 1st Respondent issued orders on 11.06.2007 to conduct a Supplementary Examination exclusively for candidates who failed the LDCE, with a relaxation of the TTA Recruitment Rules, a decision later endorsed by the Hon'ble Andhra Pradesh High Court on 04.04.2008 in W.A. No.363 of 2008. Meanwhile, one P. Narayanan approached the Hon'ble High Court of Madras, Madurai Bench, requesting permission to participate in the Supplementary Exam. A Single Judge directed the 2nd Respondent to consider his representation. The said P. Narayanan subsequently filed a Writ Appeal No. 1331/2007 The Supplementary LDCE was held on 28.10.2007, and the applicants were passed, qualifying for promotion to TTA. However, the 2nd Respondent later published results and instructed the applicants to undergo training. Subsequently, the Hon'ble Madras High Court on 10.07.2008 ruled that the Supplementary Examination is illegal in WA No. 1331/2007 6 OA /310/01511,1513 to 1523 of 2016 The 2nd Respondent appealed to the Supreme Court in SLP (Civil) No. 15490 of 2008 but subsequently withdrew the appeal without contesting the case on merits. The 1st and 2nd Respondents were accused of discriminatory treatment regarding the applicants' promotion requests. The applicants requested retrospective promotion to TTA effective 11.01.2016, but the 2nd Respondent rejected this request in a letter, dated 26.02.2016. Consequently, the applicants filed these applications challenging the rejection of their promotion.
4. When the matter was taken up for final hearing, the learned counsel for the applicants contended that the respondents have failed to consider the fact that the Supplementary Examination was conducted for all the States in India and 423 similarly placed candidates who had passed the examination had been enjoying the fruits of their labour for the past 8 years while 97 candidates including the applicants herein from the Tamil Nadu Circle who have had the same qualification had been languishing for no reason without getting due benefits of their promotion.
5. She further argued that the respondents should have recognized that over 25,000 candidates nationwide appeared for the Supplementary Examination conducted between May 2007 and August 2008. To the applicants knowledge, more than 423 candidates who passed the exam 7 OA /310/01511,1513 to 1523 of 2016 were promoted to the post of TTA. However, the applicants, who were selected through the same examination, were denied the same promotion benefits. The respondents erred by arbitrarily selecting candidates from the same class and cadre and treating them differently. She contended that the same laws, rules, and regulations that applied to other selected candidates across the country should have equally applied to those from the Tamil Nadu Circle, warranting their promotion to TTA. Therefore, she sought relief in the present OA.
6. In response, the learned counsel for the respondents strongly opposed the applicants' submissions, arguing that the issue is no longer res integra. He noted that the applicants had previously approached this Tribunal in OA No. 694/2013, which was dismissed by order dated 04.09.2016. He further contended that all the issues raised by the applicants in the current OA had already been addressed in detail. Additionally, he pointed out that the applicants submitted a representation to the respondents in 2016 with a different request after the Tribunal had dismissed the previous OA. Consequently, he asserted that the principle of res judicata applies, and he requested that all the OAs be dismissed in limine, with costs.
8 OA /310/01511,1513 to 1523 of 2016
7. We have heard both the parties at length and perused the pleadings, and the materials placed on record. We have also gone through the judgments relied upon by the respective parties.
8. We find merit in the respondents' counsel's submission. Upon reviewing the pleadings, we note that there is no mention of the previous OA filed by the same applicants. Even after the respondents submitted their reply statement, the applicants filed a rejoinder, which also failed to reference the earlier OA filed before this Tribunal by the very same applicants herein.
9. We find that the issue is no more res-integra and has been decided by this Tribunal, Hon'ble High Court and by the Hon'ble Supreme Court also.
10. The Hon'ble Madras High Court vide it is order, dated 10.07.2008 in W.A. No.1331 of 2007 in the case P. Narayanan Vs Bharat Sanchar Nigam Limited held as follows:
.......... .......... ........... ...........
"From reading of the above, it is clear that the Andhra Pradesh High Court has not considered the following relevant issues:
9 OA /310/01511,1513 to 1523 of 2016 "(i) whether the BSNL has power to call for the applications for supplementary examination for the failed candidates alone or not?
(ii)Giving one more opportunity to the failed candidates would affect the rights of the others."
Without considering the same, the Andhra Pradesh High Court merely held that the writ petitioners are not eligible to write the supplementary examination for the year 2004 since they have already become eligible for the examination for the year 2006. In view of above with respect to the learned Judges, we are not in agreement with the said judgment.
10. There is no provision in the Recruitment Rules of BSNL giving power to the respondent to conduct the supplementary examination. In the absence of any specific power or explanation or provision under the Rules or regulations, the BSNL has no right to call for the supplementary examination. Hence, for the foregoing reasons, we are of the view that calling for applications from the failed candidates for the supplementary examination by the respondent in pursuance of the letter dated 26.07.2007 bearing No. RET/301-5/2007 for promotion to the post of Telecom Technical Assistant is illegal and wrong and therefore, it is liable to be quashed and accordingly, the same is quashed. The order of the learned single Judge is set aside and the writ appeal is allowed. No costs. Consequently, M.P.Nos.1 and 2 of 2007 are closed".
11. Aggrieved by the said order of the Hon'ble Madras High Court , the Respondent BSNL, preferred appeal before the Hon'ble Supreme Court in CC.No.15490/2008 which was dismissed as withdrawn, as per the leave of the petitioner.
12. It is also pertinent to mention here that Private Parties G. Sampathkumar & Others also filed Appeal against the order of the Hon'ble 10 OA /310/01511,1513 to 1523 of 2016 Madras High Court in WA No.1331/2007, before the Hon'ble Supreme Court in SLP (Civil) No.24750-24752/2008(G. Sampathkumar & Ors Vs. P. Narayanan & Anr.), which was also dismissed by order, dated 07.12.2009, in the following terms:
"In view of the fact that Special Leave Petition filed by BSNL, against the judgement dated 10th July 2008, sought to be impugned in the present petition, has already been dismissed the present petition also stands dismissed"
Even the Review Petition (C) No.2113-2115/2011 filed by the above said Private Parties was also dismissed on the gound of delay as well as on merits by the Hon'ble Supreme Court, by order, dated 22.09.2011.
13. The present applicants previously filed an OA No.684 of 2013before this Tribunal which by its order, dated 04.09.2015 has dismissed the said OA . The relevant portions of the order are extracted as hereunder:
"4. Heard the learned counsel appearing for the applicants and learned counsel appearing for the respondents.
5. It is contended by the learned counsel appearing for the applicants that withdrawing the benefit of supplementary examination to the applicants while allowing the same benefit to the employee of circles other than Tamilnadu Circles amounts to discrimination and therefore at least as a one-time measure to enable the applicant to derive the benefits of supplementary examination, the Recruitment rules to be amended suitably.
6. It is strenuously contended by the learned counsel that the employees who are similarly situated as that of the applicants in other circles have been promoted to the post of Telecom Technical Assistant whereas promotion given to the 11 OA /310/01511,1513 to 1523 of 2016 applicants had been withdrawn consequent on the judgement of the division bench of the Madras High Court passed in WA.No.1331 of 2007. When the supplementary examination has been conducted all over the country in respect of all the circles withdrawing the benefit of supplementary examination to the employees of Tamilnadu circle only is opposed to the principle of equality before law.
7. Learned counsel appearing for the respondents 2 & 3 submits the relief sought for by the applicants in the OA is beyond the competency of the Tribunal and therefore OA is liable to be dismissed.
8. There is no much controversy with regard to the factual aspects. The applicants are the benefactrices of the supplementary examination conducted by the BSNL. The very conducting of supplementary examination has been held to be not valid by the Division Bench of the Madras High Court in WA No.1331 of 2007. The Special Leave Petition filed by some of the aggrieved parties also ended in dismissal.
9. The issue is whether the department is empowered to conduct supplementary examination to the failed candidate is no more res-integra in view of the findings recorded by the Division Bench of the Madras in WA 1331 of 2007 as confirmed by the Supreme Court in the SLPs. Admittedly the Recruitment Rules do not provide for holding supplementary examination.
10. Question is whether this Tribunal is competent to direct the BSNL to amend the Recruitment Rules making provision for conducting Supplementary examination?
11. Identical issue came up for consideration before the Division Bench of the High Court of Madras in WP 7111 of 2001, wherein the direction given by the Tribunal to hold supplementary examination came to be set aside. The relevant portion of the order passed by the High Court in WP No.7111/2011 reads hereunder:
"5. We have not found any justification for the relief that the Tribunal has granted. We can find 12 OA /310/01511,1513 to 1523 of 2016 even less justification for the directions given by it Viz, but the recruitment rule be amended with a view to promote Junior Maintenance Mechanic to the post of Vocational Instructor. It is not for the Tribunal to either make the rules or to direct making the rules, which is a legislative function. The Tribunal has not found any part of the rule already framed as being violative of any provision of the constitution nor has it quashed any such rule. The direction to re-write the rule, in the circumstances, was wholly uncalled for. The Writ Petition is allowed. Connected Miscellaneous Petition is closed"
12. In view of the above settled proposition of law, this Tribunal cannot give direction to the respondents to amend the recruitment rules making the provision for holding the supplementary examination. Accordingly, this Original Application is devoid of merits and it is hereby dismissed. There shall be no order as to costs".
14. The above order clearly indicate that all the issues raised by the applicants have been thoroughly discussed and addressed by the Tribunal. Following that order, the applicants submitted a new representation to the respondents with a different request. After this was rejected, they approached the Tribunal again with the present applications. Such an attitude of the applicants cannot be tolerated, as the principle of res judicata clearly applies here. While we considered imposing costs on the applicants, we have chosen not to proceed with that action.
13 OA /310/01511,1513 to 1523 of 2016
15. For the aforesaid reasons and in the circumstance of the case, we find that the applicants have miserably failed to make out a case for the relief prayed for by them. In the result all the Original Applications are dismissed. No order as to Costs.
(SANGAM NARAIN SRIVASTAVA) (M. SWAMINATHAN)
MEMBER(A) MEMBER(J)
26.09.2024
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