Central Administrative Tribunal - Ernakulam
Meerabai.E.B vs The Chairman And Managing Director on 19 January, 2016
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Applicaton No.627/2013
Tuesday this the 19th day of January 2016
CORAM:
HON'BLE Mr.JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs.P.GOPINATH, ADMINISTRATIVE MEMBER
1. Meerabai.E.B.,
W/o.Jnanasekharan,
Telephone Supervisor (O),
Public Grievance Cell,
Office of the Prinicpal General Manager,
Ernakulam Telecom, BSNL Bhavan,
Ernakulam, Cochin - 16.
Residing at 35/620 A, North Janatha,
Palarivattom P.O., Cochin - 25.
2. Valasaladevi.M.,
W/o.K.N.Madhu,
Senior Supervisor (O),
Telecom Revenue Accounts,
Office of the Chief Accounts Officer (TR),
BSNL, Thodupuzha, Idukki.
Residing at Kondattu House,
Kanjiramattom, Thodupuzha (E), P.O., Idduki.
3. Mary.P.Y.,
W/o.Francis Emmanuel,
SS(OP), P.C.Section,
O/o.the Principal General Manager,
Ernakulam Telecom, BSNL Bhavan, Cochin - 16.
Residing at Mangalath House, Santhi Nagar,
Marottichode, Edappally, Cochin.
4. K.Vijayalakshmi,
W/o.G.Karthikeyan Nair,
Senior Supervisor (OP),
P.C.Section, O/o.the Principal General Manager,
Ernakulam Telecom, BSNL Bhavan, Cochin - 16.
Residing at Madhavam, Veliyathu Parambu,
Desabhimani Road, Elamakkara, Cochin - 26.
5. Omana Mathew,
W/o.Vargheese V.John,
SSS (Commercial),
Office of the Sub Divisional Engineer,
BSNL, Kayamkulam, Alleppey.
Residing at Matherippil House,
Njakkanal P.O., Krishnapuram, Alappey.
6. Deleted. . . . . Applicants
(By Advocate Mr.P.P.Jnanasekharan)
Versus
1. The Chairman and Managing Director,
Bharat Sanchar Nigam Limited,
5th Floor, Bharat Sanchar Bhavan,
Janpath, New Delhi - 110 001.
2. The Chief General Manager,
Kerala Telecom, BSNL,
Kerala Circle, Trivandrum - 695 033. . . . . Respondents
(By Advocate Mr.George Kuruvilla)
This application having been heard on 1st December 2015 this
Tribunal on 19th January 2016 delivered the following :
ORDER
HON'BLE Mrs.P.GOPINATH, ADMINISTRATIVE MEMBER The applicants are employees in the Bharat Sanchar Nigam Limited (BSNL). It is submitted that they all have the requisite educational qualifications and service seniority prescribed for writing the Limited Internal Competitive Examination (LICE) for promotion to the post of Junior Telecom Officer (JTO). The respondents conducted a screening test under the JTO Recruitment Rules 1996 on 30.4.2000 to fill up vacancies of JTO in the 35% department quota specifically to fill up vacancies of JTO up to 31.8.1999. It was specifically and repeatedly declared in the notification to the test and other connected communications that there existed no vacancy for OC candidates during the period, who were later permitted to write the test on condition that they would not put up any claim to the vacancies of JTO that may arise after 31.8.1999. The test was conducted on 30.4.2000. The basic qualification prescribed by the said Rule was matriculation or equivalent. This Rule ceased to exist on 31.8.1999. From 1.9.1999, new JTO Recruitment Rules came into force that prescribed higher and specified educational qualifications. After the test of 30.4.2000, for 13 years the respondents did not conduct any test/examination for promotion in the 35% department quota. On 2.6.2013 the Limited Internal Competitive Examination was conducted as per the prevalent JTO Recruitment Rules, 2001, to fill up vacancies of JTO that arose during the period from 2000 to 2012. The appellants herein have written the examination and are awaiting the results. Applicants have come to know that the respondents are about to promote and post third party candidates, who have not written the examination and who do not possess the mandatory educational qualifications to write the same, into the vacancies that have been notified to be filled up on the basis of the LICE conducted on 2.6.2013 under the JTO Recruitment Rules 2001 that arose after 31.8.1999. The applicants who have already put in more than two decades of service have now reached the age bar prescribed by the Rules in this respect. The applicants who were entitled to write the examination for promotion a number of times as per Rules, were denied the chance by the non- conducting of the same at the appropriate time by the respondents, have lost the chance of writing the examination and hence are prejudiced as a result. The situation prevailing in the Kerala Circle of the BSNL at present is that the number of applicants for promotion as JTO are much less than the vacancies available. There are 695 vacancies (as per the affidavit filed by the BSNL before this Tribunal in a connected matter) of JTO available in the Kerala Circle to be filled up on the basis of the Limited Internal Competitive Examination conducted on 2.6.2013 under the JTO Recruitment Rules 2001. The number of applicants who have applied for and written the said examination is only 201. The entire number of the officiating JTOs is only 144. So, together, the number of applicants of the LICE 2013 is only 345. Even after promoting and posting all these applicants irrespective of the results of the LICE conducted on 2.6.2013, there again will remain 350 vacancies of JTO in the Circle. If all the officiating JTOs, are also to be promoted and posted as JTO, in spite of their non qualification and ineligibility to be considered against the vacancies of the 2000-2012 period, there will remain 149 vacancies of JTO to be filled up in the Kerala Circle. In this back ground, the respondents are liable to be directed to treat the above applicants as walk in group as a one time measure, and to promote and post them as JTO as they are educationally and otherwise qualified and eligible for the same under the JTO Recruitment Rules 2001, after imparting them the mandatory preposting departmental training. As per Rules, an eligible employee is entitled to write the JTO promotion test/examination a number of times. Apparently, in order to favour the officiating JTOs, the respondents waited and let the vacancies accumulate without conducting the examinations at the appropriate times. In the meanwhile, the above applicants have reached the land mark age of 50 years, rendering them ineligible to write any further promotion examinations, due to the age bar condition prescribed by the recruitment rules. This valuable right of the applicants to write the examination for promotion has been denied to them not for any fault on their part, but due to the inertia and lapses on the part of the respondents. Hence, the respondents are bound to adopt remedial measures to redress the grievances of the applicants in the matter. The enthusiasm exhibited by the respondents so far to favour the OC candidates of the screening test of 30.4.2000 in matters of promotion and posting as JTO, has been reflective of bias and favouritism. The courts of law up to the apex court of the country had to interfere to prevent the respondents from perpetrating the illegality of diverting posts from the Direct Recruitment Quota for posting the OC candidates of the screening test, in spite of the notifications thereto and the undertaking by the applicants of the said screening test not to put up claims otherwise and for other reasons stated above etc. Even when all the applicants to the LICE 2013 and all the officiating JTOs are promoted and posted as JTOs there will still remain large number of vacancies of JTO in the Kerala Circle to be filled up. So, the respondents can, and ought to, be first promoting and posting all the applicants of the LICE 2013 who possess the qualifications prescribed by the JTO Recruitment Rules 2001 as JTO, and then be promoting and posting all the officiating JTOs as such. This way the establishment and the employees both would mutually benefit and the floodgate of litigations can be prevented from opening up too. The screening test of 30.4.2000 was conducted under the JTO Recruitment Rules 1996 which prescribed matriculation or equivalent as the basic educational qualification to write the test. The candidates of the said test, when given the required training, are found to be effective and able JTOs by the respondents. Thus it can be seen that it actually is the pre-posting training that makes all the difference. So if educationally higher qualified employees like the above applicants are given the training, they will prove more efficient and effective in discharging the duties of the office of the JTO. In Nanjundappa vs. Thimmaiah 1972 SLR (SC) 94 the Hon'ble Supreme Court ruled that appointments made in infraction of Rules cannot be regularized. Similarly, in Rupa Rani Rakshit vs. Jharkhand Gramin Bank AIR 2010 SC 787 the Apex Court has laid down the law that in cases where promotion is made without following the rules, the service rendered in pursuance should not be counted for the purpose of seniority. So, viewed from any angle, the successful candidates of the screening test of 30.4.2000, the officiating candidates, cannot be in law promoted and posted into vacancies of JTO that arose after 31.8.1999, to fill up which the LICE was conducted on 2.6.2013 under the JTO Recruitment Rules 2001. Unfortunately, the number of educationally qualified applicants under the prevalent JTO Recruitment Rules 2001 for the LICE 2013 is much less than the vacancies existing for the period from 2000 to 2012. Applicants aver that the instance of the maticulates having 'excelled' as JTOs after they were given the required training is before the respondents. In spite of that, the respondents are even going out of the way to accommodate the under qualified and ineligibles under the prevalent Rules into vacancies into which they cannot be posted in law. This the respondents are doing, ignoring the qualified as per the prevailing Rules, like the above applicants. The main relief sought by the applicants is to declare that they who have lost chances of writing the examination for promotion as JTO and have hence become age barred now for the same, due to the inordinate delay and failure exclusively of the respondents to have conducted them at the appropriate times, deserve to be compensated and hence are entitled to be treated as walk in group as a onetime measure, and promoted and posted as JTOs into vacancies of JTO for the relevant period.
2. Respondents in their reply aver that Outside Recruitments/Departmental Examinations are being conducted by the CGM's of the territorial circles of the organization strictly in accordance with the Rules and regulations framed and issued from time to time by the Director General Telecommunications earlier and later by the BSNL Corporate Office from its formation on 1.10.2000. The recruitment to the cadre of JTO is now governed by the JTO Recruitment Rules 2001. With the formation of the BSNL, a registered company, it has to compete with other Private Service Providers in the Telecom Sector. With a view to tone up the efficiency in services, certain changes were made by the competent authority to improve the quality of manpower of the organization. Many posts are upgraded by changing the minimum qualification, eligibility conditions etc. That was necessitated to commensurate with the raised status and raised pay of the post. Matters of Recruitment Rules and Departmental Examinations are absolutely within the domain of the Executive and such matters have to serve the needs of the Organization. The JTO Examination which is an All India Examination, notified vide Annexure A-8 and scheduled on 2.6.2013, was conducted in compliance of the directions of the Hon'ble High Court of Kerala in its judgment dated 14.9.2012 in O.P.(CAT) No.3714 of 2011 preferred against this Tribunal's order in O.A.No.203/2010 and connected cases. Screening test in the year 2000 was conducted for filling the vacancies which arise between 1996 to 1999 and was based on 1996 Recruitment Rules. Since 2001 Recruitment Rules came into existence on 26.9.2001 with mode of recruitment and eligibility conditions different, no further posting can be done based on earlier recruitment rules for vacancies arising after 26.9.2001. Since no Screening Test was conducted from 1996 till 1998, the qualifying screening test for promotion to JTOs was held on 29.1.1999 and 30.4.2000 as per Recruitment Rules 1996 on the persistent demand of the Association even when Recruitment Rules of 1999 had come into being which provided for LDCE instead of Screening Test. Since there were about 6000 officials from all over India in the screening test held in 1999 and 2000, over and above the vacancies available under 35% quota till 31.8.1999, as a welfare measure the BSNL Board took a decision on 30.3.2001 to divert 500 vacancies from the Direct Recruitment quota to 35% quota, on an year to year basis in order to adjust the screening test qualified officials. The diversion continued from 2001 to 2007 and about 3500 vacancies were thus diverted from the Direct Recruitment quota to the Departmental quota. The said diversion of vacancies was challenged before the High Court of Punjab and Haryana in CWP No.5608/2007, which on 30.5.2008 ordered for re- diversion of the posts to the Direct Recruitment quota and this decision of the High Court was upheld by the Hon'ble Apex Court in SLP Nos.13220- 13221/2009 filed by BSNL Officers Association and others. The recruitment to the cadre of JTO is being conducted as per the provisions contained in Annexure A-7 Recruitment Rules which came into force with effect from 26.9.2001. As per the schedule to Annexure A-7, 50% of the posts are to be filled by direct recruitment and 50% by promotion. The following is the criteria for filling up the 50% promotional quota :-
I) 35% by promotion through limited internal competitive examination from the following Group C employees below 50 years of age as on the date of such examination, of the Engineering Wing namely Phone Inspector/Auto Exchange Assistants/Wireless Operators/Transmission Assistants/Telecom Technical Assistant/Sr.Telecom Office Assistants and possessing the following essential qualifications and experience.
A. (i) Bachelor of Engineering/Bachelor of Technology or equivalent Engineering Degree in any of the discipline viz. Telecommunications/Electronics/Electrical/Radio/Computer Or Bachelor of Science with Physics and Mathematics Or 3 years Diploma in Telecom/Electronics/Radio/Computer and B. (ii) 10 years regular service in post Group C. II) 15% by promotion through limited internal competitive examination from amongst the following Group C employees of Telecom Engineering
i) Working in Telecom Engineering Branch including office of Chief General Manager, Telecom Circle/District other than Plumbers/Sanitory Inspectors/Conservancy.
ii) Working in Telecommunication Factory, other than those borne on Industrial Establishments.
iii) Born on the regular establishment and working as Accounts Clerk in the Accounts Wing under Telecommunications Circles.
iv) Born on the regular establishment and working as Works Clerks Grade I and II, Work Assistants, Draftsman, Junior Architects and Electricians in the Civil Wing under Telecom Circles and possessing the following educational qualifications, namely :
3 years Diploma in Telecom/Electrical/Radio/Computer Engg.
and 10 years service in posts in Group 'C'.
3. The employees eligible to take up competitive examination under 35% Limited Internal Competitive Examination quota shall not be eligible for appearing at the competitive examination under 15% limited Internal Competitive Examination quota. Subsequently the competent authority has reduced the eligible service to 7 years vide Corporate Office Letter No.5- 28/2009-Pers. IV dated 12.10.2009. There is no provision in the Recruitment Rule to promote the employees who possess the educational qualification as prescribed in the Recruitment Rule, without conducting departmental examination as provided under the relevant Recruitment Rules. It is submitted that further recruitment to the JTO cadre can be made only under the new rule. In case the applicants possess educational qualification and other eligibility conditions specified in the new recruitment rule, they can also appear for the examination. The cut off date for reckoning age of the candidate would be 1 st July of the respective vacancy year (recruitment year), which means a candidate can write the examination for any vacancy year if he/she is below 50 years of age as on the 1st July of the said vacancy year. The Recruitment rules do not contain a provision for allowing walk in group for promotion. Hence the applicants cannot be promoted in that way also. Also they have got enough chances in the earlier examinations. These applicants have appeared in the examination that was conducted on 2.6.2013. They are eligible and they will get promotion if they pass. If the Recruitment Rules are relaxed selectively for the benefit of the applicants, it would have been great injustice to similarly placed other persons. Also it is submitted that no such decision has been taken by the competent authority to promote those candidates who do not possess the educational qualification prescribed in the JTO Recruitment Rule 2001 and have not written the LICE held on 2.6.2013. The matter of conducting of departmental examination and framing rules and regulations and fixing standard for the same, are absolutely within the domain of the competent authority and the various judicial forums of the country upheld the said decision also. The Hyderabad Bench of the Tribunal in O.A.No.644/2009 filed by Shri.K.V.R.Murthy and others held that the law is fairly well settled that the Court/Tribunals cannot interfere in matters like prescribing qualifications/standards for appointments/promotion to any particular post. The High Court of Andhra Pradesh in its judgment dated 3.9.2007 in WP 6357 of 2006 filed by M.Jaya Rao declared that 'at any rate no individual has a fundamental or legal right, to insist that the standards of a given test must be of a particular level, much less compel the authority to relax the standards stipulated by it. As per orders of the Apex Court in the case of Chandigarh Administration through Director Public Instructions (College), Chandigarh vs. Usha Khetrapal and others in 2011 (9) SCC 645 'It is now settled that it is for the rule making authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. Courts and Tribunals can niether prescribe the qualifications nor entrench upon the power of the concerned authority so long as the qualifications prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provisions of the constitution'.
4. Heard the counsel for the parties and considered the written submissions made. This is another of those cases where excess litigation by different interest groups have resulted in orders being issued in respect of reliefs asked for, then challenged and the resultant effect of the same on different interest groups who have been subsequently affected by amendments in JTO Recruitment Rules which makes them ineligible by the time they come up for promotion. There is a 1996 Recruitment Rules, 1999 Recruitment Rules followed by 2001 Recruitment Rules. There is a 35% Limited Departmental Competitive Examination quota and a 15% Limited Departmental Competititve Examination quota. There is a screening test for 35% quota in the JTO Recruitment Rules 2001. Respondents in Annexure R-1(c) mentions amendments to para (i) (B) (ii) and para (ii) in Col.12 of Recruitment Rules without producing the Recruitment Rules. The 1996 JTO Recruitment Rules reveals that there is a 50% Direct Recruitment quota and 50% Departmental Promotion quota. The 50% department promotion quota is further divided into 15% promotion of department candidates through competitive examination and 35% by promotion/transfer of Transmission Assistants/Wireless Operators/Auto Exchange Assistants/Phone Inspectors/Telco Technical Assistants who (a) possess the educational qualification of B.E./B.Tech, B.Sc. and have 5 years regular service in the cadre (b) who possess High School/Matriculation with 6 years regular service in the cadre through a qualifying screening test.
5. A screening test was held on 30.4.2000 and 621 candidates were declared qualified. Of this 621, 20 SC candidates who qualified were posted as JTOs. 601 qualified candidates were OC and were awaiting posting as there were no vacant posts. The BSNL attempt to adjust these departmental candidates against direct recruitment quota was set aside by Punjab and Haryana High Court in CWP No.5608/2007. A second attempt to adjust these candidates by creating supernumerary posts was also declared illegal by Punjab and Haryana High Court. Thus the above officiating JTOs have not been given regular appointment as JTO for want of vacancies.
6. In WP No.1956/2006 the Hon'ble High Court of Kerala directed that the respondents shall consider the case of the petitioners as against vacancies which had arisen subsequent to 31.8.1999 in accordance with law and rules prevailing on the date of occurence of vacancies. The Tribunal in T.A.6/2009 directed BSNL to conduct JTO exam within a period of 4 months. Following this, BSNL issued directions to conduct LDCE on 30.5.2010 for promotion to the cadre of JTO under 35% and 15% promotion quota to fill up 177 vacancies under 15% quota and 423 vacancies under 35% quota. Some candidates challenged this notification Annexure R-2(b) by filing O.A before this Tribunal. This Tribunal in O.A.297/2010 and others stayed further proceedings in pursuance of Annexure R-1(b) notification. The Tribunal disposed of the above O.As by a common order dated 15.3.2011. It was observed therein :
13. We may first consider whether the promotion to the post of Junior Telecom Officers based on an examination conducted, and after holding the DPC, should be made and posts filled up against vacancies arising in the relevant Recruitment Year by considering the eligible candidates qualified in each such relevant year of recruitment, or can all the vacancies which have arisen all these years could be filled up in bunch based on the qualification to be satisfied on the cut off date, as notified and in so doing, whether it is arbitrary and violative of Art.14 of the Constitution of India. In this connection we may notice that the practice that was followed by the respondents was to fill up the vacancies with reference to the Recruitment Year in which the vacancies arose though a common examination was conducted for a bloc period. In this connection the Govt. of India, Ministry of Communication had issued a notification under date 4th December, 1998 proposing to hold a Departmental Competitive Examination for promotion to the post of Junior Telecom Officer under the 15% quota of vacancies reserved for Departmental officers to be held on 15th and 16th May, 1999 and the vacancies for the years, 1995, 1996, 1997 and 1998 was to be filled up through this examination and year-wise vacancies to be filled up through this examination with U/R, S/C and S/T break up were also given. It was further provided that vacancies for the year 1998 will be announced later.
Further the notification prescribes that the vacancies of the Recruitment year 1995 will be filled up as per the Recruitment Rules circulated vide letter dated 06.07.90 and the vacancies of the Recruitment year 1996, 1997 and 1998 are to be filled up as per the Recruitment rules circulated vide office letter dated 02.04.96. The notification also states that since the examination is being held to fill up vacancies of recruitment years 1995, 1996, 1997 and 1998, the crucial date for reckoning age and service will be the 1st July, 1995, 1st July, 1996, 1st July, 1997 and 1st July, 1998 respectively for competing against the vacancies of each year. While filling up Col.No.11 in the application form, the candidate should clearly indicate the recruitment year of vacancies against which they wish to compete. A copy of this notification was made available to us by the learned counsel for the applicant and referred to the fact that this notification was Exhibit P3 in T.A.No.4/09 in which the respondents- the Chief General Manager, BSNL, Trivandrum and the Chairman cum Managing Director, BSNL, New Delhi etc. were parties as respondent Nos.2 and 3 respectively. Contrary to that, in the present notification all the vacancies en-bloc are notified and the crucial date for reckoning the age is notified as the 30.05.2010 and that the regular service condition as the 1st July, 2009. In other words, it is evident that candidates who became age barred on the crucial date so fixed, could not compete in the examination even though they were qualified to appear in the examination during the relevant year in which the vacancies had arisen. The manner of filling up the vacancies en-bloc for all these years without conducting any examination in the relevant year and by conducting a common examination and further fixing the crucial date regarding age as also the service condition by prescribing a cut off date, as is now done, clearly takes away the right of the applicants to be considered for promotion, despite the fact that they were qualified in terms of the recruitment rules and were entitled to be considered against the vacancies which arose in the relevant recruitment year. In other words it is only by the efflux of time and due to the inaction on the part of the respondents to conduct the examination every year for promotion, that they would become ineligible to appear for the examination. Even though amended rule is not given any retrospective operation by any express provision, the effect of this amendment is retroactive as it would apply to all the vacancies which have arisen in the past several years. It is thus clear that by fixing a common date for both the regular service condition to be satisfied as 1st July, 2009 and by fixing the crucial date for reckoning age as 30.05.2010, all the candidates irrespective of whether they became qualified in the relevant year when the vacancies arose will have to satisfy these conditions as on the later date as fixed and not with reference to the year of vacancy, thus affecting their vested right of being considered for promotion. In this connection we may refer to the fact that for 50% of the posts which are to be filled by direct recruitment, the respondents have been conducting the examination regularly to fill up those posts but in the case of promotion, they did not conduct the examination and the vacancies en-bloc are notified and a common examination is conducted. Conducting a common examination by itself may not be invalid provided their eligibility to participate in the examination is determined with reference to a date in the relevant year of recruitment when the vacancies arose. Further the Recruitment Rules Annexure A1 framed by the respondents provides the BSNL Promotional Committee and its composition in Col.13 and for promotion/confirmation. Therefore even after a candidate passes the examination and a list is prepared, it is for the Committee to finally prepare a select list for promotion. Therefore the rule implies a Departmental Promotion Committee to meet and they have to conduct the exercise for promotion from among the eligible candidates as against the vacancy position in the relevant Recruitment Year. Since the recruitment to the post of Junior Telecom Officer is in the ratio of 50:50 between direct recruits and promotees and when 50% direct recruitment posts have been filled based on examination conducted every year, non- conducting of the examination and thereafter not notifying the year-wise vacancies and that too, by prescribing a condition that the qualification has to be satisfied as on a cut off date much after the year of recruitment and filling up of the vacancies in a bunch will adversely affect the right of the promotees for being considered for promotion against the year in which the vacancies had arisen. In this connection we may also point out that the the Calcutta Circle of the respondents- Corporation has published a similar notification for conducting the examination, but they have clearly notified the year-wise vacancies. It is also to be observed that as on 2.12.2009 only the rule as prescribed in Annexure A1 was in force. The amendment was made subsequent to the notification and after the selection procedure commenced. In Y.V.Rangaiah and Others vs. J.Sreenivasa Rao and Others; 1983 SCC (L&S) 382, the Apex Court held that in terms of the old rules a panel had to be prepared every year in September and that the a panel should have been prepared in the year 1976 and transfer on promotion to the post of Sub-Registrar Grade II should have been made out of that panel. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It was observed that there is not even a slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules In this case, though there is no express rule for preparation of a panel every year for the reasons which were already stated, i.e., going by the practice followed as well as impliedly providing for a D.P.C. to be constituted and going by the precedents, and in the light of the fact that 50% direct recruitment vacancies were already filled up by conducting examination every year, there cannot be any doubt that it was always intended to fill up the vacancies occurring every year by conducting an examination for promotion, as well. But for reasons best known to the respondents when they could not conduct the examination in the manner as pointed out, it may not be illegal to conduct a common examination subsequently for the past recruitment years, to which selection is to be made. In other words, if the year-wise vacancies are notified and promotional exercise is done, from among the eligible candidates, the eligibility being determined with regard to any cut off date during the relevant year of recruitment, there would not have been any arbitrariness but the amendment now made after the notification issued and the selection procedure commenced, hence such amendment cannot have any validity with reference to the vacancies which have already arisen in the respective year of recruitment. Any amendment made to the rule after the selection process has commenced can have prospective effect only. In the aforesaid case, the Hon'ble Supreme Court on a consideration of the relevant rules as well as the instructions issued by the Govt. came to hold that a list of approved candidates was required to be prepared as on September 1,1976 for making appointments to the grade of Sub Registrars Grade II by transfer. But no such list having been prepared as on September 1.11.1976, the same having been drawn up in 1977 by which time the amended rules had come into force, it was held that the legitimate expectation of those who were entitled to be included in the list which ought to have been prepared in September 1976 cannot be frustrated on account of the fact that the panel had not been prepared and it was so framed only in the year 1977. On this conclusion the Court had held that the vacancies available prior to 1.9.76 ought to be filled up under the unamended rules.
14. In State of Manipur and Others vs. A.Ongbi Memcha Devi(Smt.) and Another; 1995 SCC (L&S)962, the Hon'ble Supreme Court had occasion to consider the justifiability of simultaneous selection for the vacancies occurring in different years and the procedure to be adopted. It was held as follows:-
'8. It is not the case of the respondents that the DPC made separate selection for the vacancies for the years 1980, 1982 and 1983 and the DPC appears to have bunched together all the vacancies for the years 1980 to 1985 and has made one selection for the 6 promotional vacancies and this has resulted in enlargement of the field of choice for the purpose of selection. The grievance of the appellant is that this mode of selection is disregard of the instructions contained in the office memorandum dated 24-12-1980 operated to his prejudice appears to be justified because if separate selection had been made for the vacancies which occurred in the years 1980, 1982 and 1983 the field of choice would have been much more restricted and the appellant would have had better chances of being selected.' In this connection it is also to be noticed that the amendment in the Recruitment Rules of JTO-2001 was introduced in 12.10.09 has not been given any retrospectivity. Further the vacancies were calculated up to 31.3.2009 which were to be filled up as per the notification. Therefore the selection procedure adopted for filling up those vacancies calculated up to 31.3.2009 has to be made with reference to the rules as existed then and the amendment effected subsequently cannot apply to those vacancies. Therefore the respondents' attempt to fill up the vacancies en- bloc with the amended qualification is clearly wrong and illegal. In O.A.No.242/10 the learned counsel Shri Vishnu S.Chempazhanthiyil contends that the action of the respondents in filling up the vacancies up to 31.3.2009 by applying the amendment is in violation of the directions contained in Writ Petition No.1956/2006 produced as Annexure A10 in the case. We have persued Annexure A10 judgment produced in the said case. That was a case of Telecom Technical Assistants which was one of the eligible cadres for promotion to the post of JTO on the basis of screening test and seniority. The contention was that the official respondents had notified a qualifying screening test exclusively for SC/ST candidates for the vacancies of JTO up to 31.8.1999, in the 35% departmental quota,which was subsequently postponed. By notification dated 30.11.1999 persons belong to the SC/ST were notified for the test. By another notification, a second qualifying screening test was notified on 8.3.2000 and apparently, a second qualifying screening test was held on 30.4.2000 and the result of the screening test was declared. The BSNL had decided to divert 500 posts of TTAs who had qualified in the screening test, for training every year, by diverting the post of direct recruitment. It was contended that such diversion should be declared as illegal. There was also a contention regarding the amendment made in 1999. The diversion was found to be valid. But the decision to make available the entire diverted vacancies to one set of departmental candidates was held to be arbitrary. But the Court refraining from declaring so for the reasons stated in paragraph 19 of the judgment. It was directed that persons who were eligible as on 31.8.1999 under the 15% departmental quota, will be considered for promotion to the post of JTOs after identifying those persons who are eligible as aforementioned, the BSNL has to conduct a limited departmental competitive examination as undertaken in paragraph 8 of the counter affidavit . It is therefore contended that they are bound by the decision. We are unable to appreciate the contention since the filling up of the vacancy in a particular manner as directed certainly ought to be done in the absence of any amendment to the rules. But the Court cannot take away the power to legislate and, if by a subsequent legislation, whether it be by a statute or by a sub ordinate legislation, the position is altered, such legislation has to be tested with reference to settled principles in this regard. In the absence of any contention of invalidity based on well-founded principles, merely because the rule if applied would take away any such right, is of no consequence. However, we have tested the amendment made in the foregoing paragraphs and have already held for the reasons stated that such amendment cannot be retrospective in character. For the foregoing reasons, it has to be held that the amendment made to the rule as per Annexure A2 is not retrospective in character and has no application in respect of vacancies which have already arisen prior to 12th October, 2009. We also hold that the crucial date for determination of the age as on 30th May,2010, is irrational and arbitrary, since the vacancies has to be notified and filled up with reference to the eligibility criteria as on the date of arising of the vacancies or as on the cut off date with reference to the recruitment year in which the vacancies arose. A common cut off date, as fixed, now for the vacancies en bloc is therefore, arbitrary and violative of Article 14. For the same reason we hold that the eligibility condition, the crucial date of which is fixed as 1st July, 2009, is also bad. It would, however, be permissible to fix any cut off date as 1st July of the Recruitment year or years. Even though the BSNL, West Bengal Circle by Annexure A6 had notified the vacancies under 35% and 15% quota year-wise, viz.,2001, 2002, 2005 and 2007 respectively , the deviation made by the Kerala Circle, in the view we have already expressed above, is clearly wrong and arbitrary.
15. Even though it is contended that the year of experience to be possessed has been reduced from 10 to 7 years in Group C for promotion to JTO cadre through LICE under 35% and 15% quota, as arbitrary and violative, we cannot accept the same. Annexure A2 is the notification issued on 12th October, 2009 by which the proposal to reduce the prescribed regular service for appearing in the examination for JTO was stated to be under consideration, based on the request made by the employees and it is as a result of such consideration, the BSNL management had approved the reduction of the prescribed regular service from 10 years to 7 years. It is further provided that the Recruitment Rules issued on 10.10.2001 will stand amended to the above extent. Thus, it can be seen that the amendment is by way of substitution and applying the rule of interpretation, when an amendment is made by way of substitution, it takes effect from the date on which parent rule came into force. Even though it is contended that it takes away vested right, what is the age to be prescribed for appearing in a particular test is always a policy matter with which the Court normally cannot interfere. Further the reduction of the number of years from 10 to 7 will not affect the applicants since if they have 10 years experience necessarily they continue to be eligible as the reduction is only to their advantage. In this connection we may refer to the decision of this Tribunal in O.A.No.411/2000 and O.A.No.436/2000 rendered on 25th March, 2002 where among other things, the challenge was against the reduction of maximum age limit prescribed in the Recruitment Rules brought down to 40 years from 50 years for appearing in the competitive examination quota. The 1999 Rules prescribes the age of 50 years for candidates like the applicant therein. It was held that the age limit prescription is absolutely on the purview of the administrative parlance due to their own reasons and the scope for judicial review is very much limited unless otherwise it is warranted. Even though it is contended that the field of choice has been increased by reducing the service experience to 7 years, thereby taking away the right of being considered against limited number of persons if the qualification was to be 10 years experience,but we do not think that such a contention has any merit. The rule making authority is empowered to amend the rules retrospectively, the effect of which may be to take away a vested right. So long as it is not mala fide, such amendment is valid. Here the amendment is made by way of substitution, and therefore, it is retrospective. We do not think that merely because the rule is made retrospective, the rule could be held to be arbitrary or violative of Article 14. it is always possible to take away a vested right by a legislation validly made. There is no indefeasible right for promotion. It was held by the Apex Court that introduction of educational qualification rendering some of the existing employees ineligible for promotion is legally valid. There is no guarantee that existing rule will not be changed.(See 1999 (3) SCC 653; 1994(6) SCC
252). In the absence of any challenge to the rule, otherwise than by contending that it is not retrospective or that it takes away a vested right, we do not think that the rule suffers from any unconstitutionality . We, therefore, declare that the amendment of the service from 10 years to 7 years by Annexure A2, is valid. All the points raised are answered accordingly.
7. A Review Petition was filed against above order which was disposed off with a modifying order that Annexure A-4 Corrigendum dated 27.2.2010 to Annexure A-8 Notification dated 27.2.2010 is not retrospective in character and has no application to vacancies which had arisen prior to 12.10.2009. The order also stated that Annexure A-2 amendment of service from 10 years to 7 years is retrospective and has application from the date of issue of Annexure R-1 Recruitment Rules.
8. Against the above order of Tribunal some candidates filed O.P. (C.A.T) No.3714/2011 challenging the order of the Tribunal holding the reduction of service from 10 years to 7 years amendment restrospectively. This was dismissed by High Court on 14.9.2012. Thereafter the present LICE for selection to post of JTO was held. Thus the conduct of this exam was delayed due to various court and contempt cases whose disposal was awaited before holding this exam as per Annexure A-7 Recruitment Rules dated 26.9.2001 which are detailed pre para above as 35% by promotion through Limited Internal Competitive Examination from the Group C employees with Engineering Degree and 10 years service and 15% by promotion through Limited Internal Competitive Examination who have a Diploma and 10 years service. There is no provision in the Recruitment Rules for promoting employees who possess educational qualification as indicated in Recruitment Rules without conducting departmental examination. Hence the applicant's prayer is not covered by the Recruitment Rules. It is not as if the applicants have not got the chance for appearing in the examination as they have appeared in the earlier examination contend the respondents. These applicants have appeared in the examination conducted on 2.6.2013 and hence will get promoted if they pass.
9. The applicants would contend that there was a 13 year delay since April 2000 in conducting the 35% departmental quota exam for JTO. But this can be traced largely to various litigations. There would nothing be apparently wrong if delay is traced to finding a solution to place the officiating JTOs who qualified the 30.4.2000 Screening Test as they had passed a test though the availability of vacancies was questionable. This is attributable to respondents and not to those who passed the exams. That this can be traced to non-holding of 35% departmental quota exam is not established as applicants had a chance to appear in exam of 2.6.2013. Those who had qualified the Screening Test and were empanelled for promotion as JTO in 2000, as per 1996 Recruitment Rules for vacancies up to 31.8.1999 could not be given promotion for want of vacancies. They cannot be adjusted as the new Recruitment Rules came into existence on 26.9.2001. They have been protected by creation of 3500 supernumerary posts of JTOs and they can have no further claims as they are not occupants of posts against regular vacancies and sympathy and goodwill are not factors which should guide their future.
10. Similarly the claim of applicants in this O.A for one time measure of walk-in promotion to JTOs has no ground as nobody has a indefeasible right to promotion. On one hand applicants want 2000 Screening Test cases to be treated strictly as per Recruitment Rules whereas in their own case they want the Recruitment Rules to be relaxed by seeking a walk-in promotion. Applicants had a chance in the 15% quota as per 1999 Recruitment Rules and could have availed the chance at that point of time. The conditions for qualifying for a post by promotion has been laid down under a statute. Any appointment like walk-in promotion in violation thereof would be therefore be a nullity and should not be encouraged. The power of judicial review cannot be exercised to direct an employer to fill posts or give promotion in violation of statutory rules. It is also necessary to control the power of litigation to direct the course of action of public bodies in violation of rules. The Apex Court in Union of India vs. Dharam Pal (2009) 4 SCC 170 held :
'It is now well settled that even power of relaxation even specifically provided in the appointing authority himself being created (sic by) a statute cannot be exercised in an arbitrary and cavaliar fashion.'
11. The only relief that can be considered is that vacancies notified in 2013 examination be broken up with reference to the specific year in which the vacancy arose and the age, educational and any other eligibility criteria be fixed as per Recruitment Rules with reference to year of occurrence of vacancy and candidates be selected as per provisions of Recruitment Rules in the relevant year of vacancy. This would alleviate the disadvantage of 13 years delay, enbloc notification of vacancies and bunching. The examination for all the years of vacancy can be a common one, as conducting a common examination by itself may not be invalid, provided the eligibility to participate in the examination is determined with reference to a date in the relevant years of recruitment when the vacancies arose.
12. Promotion should be governed by conditions of employment and Recruitment Rules and not by general principles of justice and fair play. In this case such a provision of walk-in promotion has not been provided in the rules and the proposal for invoking it in a arbitrary and cavaliar fashion is not justified. The relief sought in the O.A is therefore not admitted. While declaring the results of the examination conducted on 2.6.2013, the principle laid down by the Tribunal in O.A.No.297/2010 and reiterated in pre-para 11 above be followed. No costs.
(Dated this the 19th day of January 2016)
P.GOPINATH N.K.BALAKRISHNAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp