Patna High Court
The Bharat Sanchar Nigam Limited vs Sudhir Kumar Jha on 19 July, 2024
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVIEW No.35 of 2021
In
Civil Writ Jurisdiction Case No.14740 of 2018
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1. The Bharat Sanchar Nigam Limited through Chairman Cum Managing
Director, Bharat Sanchar Nigam Limited, BSNL Corporate Office, New
Delhi- 110001.
2. The Assistant General Manager (Pers-III), Office of the Chairman-cum-
Managing Director, Bharat Sanchar Nigam Limited, BSNL Corporate
Office, New Delhi- 110001.
3. The Chief General Manager, Telecom, Bharat Sanchar Nigam Limited,
Patna- 800001 (Bihar).
4. The Assistant General Manager (Estt.), Office of the Chief General
Manager, Telecom, Bharat Sanchar Nigam Limited, Patna- 800001 (Bihar).
5. The General Manager, Telecom District Manager, Bharat Sanchar Nigam
Limited, Darbhanga, (Bihar)- 846007.
6. The Telecom District Manager, Bharat Sanchar Nigam Limited, Madhubani
(Bihar)- 847402.
7. The Divisional Engineer (Admn), Office of the Telecom District Manager,
Bharat Sanchar Nigam Limited, Madhubani (Bihar)- 847402.
8. The Divisional Engineer (Admn), Office of the Telecom District Manager,
Bharat Sanchar Nigam Limited, Darbhanga, (Bihar)- 846007.
... ... Petitioner/s
Versus
1. Sudhir Kumar Jha son of Late Shiv Shankar Jha Regular Majdoor (Group-
D), Bharat Sanchar Nigam Limited, under Madhubani SSA, District-
Madhubani (Bihar).
2. Pawan Kumar Jha son of Late Rup Narayan Jha Regular Majdoor (Group-
D), Bharat Sanchar Nigam Limited, under Madhubani SSA, District-
Madhubani (Bihar).
3. Sipahi Singh son of Arjun Singh Regular Majdoor (Group-D), Bharat
Sanchar Nigam Limited, under Madhubani SSA, District- Madhubani
(Bihar).
4. Anant Jha son of Late Baldeo Jha Regular Majdoor (Group-D), Bharat
Sanchar Nigam Limited, under Madhubani SSA, District- Madhubani
(Bihar).
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ashok Kumar Dubey, Advocate
For the Opposite Party/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
Patna High Court C. REV. No.35 of 2021 dt.19-07-2024
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ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 19-07-2024
Heard learned counsel for the review petitioners.
2. This application has been preferred seeking review
of the judgment dated 17.01.2020 passed in CWJC No.14740 of
2018. The said writ application was preferred seeking the
following reliefs :-
"I. For issuance of an appropriate writ/writs,
order/orders and/or direction/directions in the
nature of certiorari for setting aside the order
dated 02.01.2018 passed in O.A.No.050/00473 of
2017 by Hon'ble Central Administrative
Tribunal, Patna Bench, Patna by which O.A. was
disposed of with a direction upon the respondent
authorities to hold supplementary Limited
Departmental Competitive Examination (LDCE)
for the present applicants on the same standard
as held on 20.08.2017, within two months from
the date of communication of this order and pass
appropriate orders on the same, without
appreciating the facts and policy decisions in this
regard.
II. For any other relief/reliefs for which the
petitioner is entitled in the eye of law."
3. The learned Writ Court has dealt with the facts of
the case in Paragraphs 3, 4 and 5 of the order under review,
which are being reproduced hereunder for ready reference:-
Patna High Court C. REV. No.35 of 2021 dt.19-07-2024
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"3. The facts of the case in brief are that the
respondents were initially engaged as Daily
Rated Mazdoors and were granted temporary
status. While working under the temporary
status, they were granted status of Regular
Mazdoor vide order dated 18.07.2002. While
working under the regular status they received
chargesheet dated 04.02.2011 and were
proceeded against departmentally. The
proceedings against them concluded with order
dated 05.03.2016 imposing penalty of lower
stage in the existing time scale of pay by two
stages for six months. During pendency of the
disciplinary proceedings, a notification for
Limited Departmental Competitive Examination
(for short 'LDCE') for the post of Telephone
Mechanic was notified but the respondents were
not allowed to appear in examination going to be
held on 28.09.2014 as they were not fulfilling the
mandatory condition as stated in para 6(4) of the
notification dated 01.08.2014. Feeling aggrieved
by the decision of the petitioners, the respondents
approached the Central Administrative Tribunal,
Patna Bench, Patna (for short 'Tribunal') vide
O.A/050/00684/2014. In the said case, the
Tribunal vide order datd 25.09.2014 directed the
petitioners to allow the respondents to appear in
LDCE provisionally and keep their result in
sealed cover. The respondents appeared in the
examination but they did not qualify. Hence, vide
order dated 05.12.2017, the original application
was dismissed by the Tribunal as the same had
Patna High Court C. REV. No.35 of 2021 dt.19-07-2024
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become infructuous. Subsequently, notification
dated 03.06.2017 was issued for conducting
LDCE examination 2017 and the date of
examination was fixed on 20.08.2017 in order to
fill up the vacancies for the post of Telecom
Technician up to 31.3.2017. As per the provision
in the recruitment rules of Telecom Technician
circulated vide BSNL Corporate office letter
dated 250-3/2012-PERS-III dated 19th September,
2012, the eligible employees were directed to
submit their application form latest by
19.07.2017. The respondents submitted their application form in time, but the petitioners did not issue admit card to the respondents.
4. Being aggrieved by the non issuance of admit card, the respondents filed Original Application no.050/00473 of 2017 before the Tribunal.
5. The petitioners filed their written statement before the Tribunal in the said Original Application wherein it was pleaded that the respondents were engaged as daily wagers for some project as and when required and on completion of the project work they were disengaged along with several labourers. Being aggrieved with their disengagement they filed O.A.No.404 of 1998 which was heard together with batch of cases and were disposed of in 1999 with certain direction about maintaining seniority with liberty to the Department to make necessary enquiry as per law into the allegations regarding their initial engagement on the basis of forged records mentioned in their labour cards. Patna High Court C. REV. No.35 of 2021 dt.19-07-2024 5/13 As per the order of the Tribunal, a High Power Committee was constituted to verify the genuineness of their claim of initial engagement. On enquiry, the High Power Committee came to the conclusion that the labour cards of the respondents contained forged and false signature of SDE/JJO and on enquiry from the authorized SDE/JJO of that period they denied about their signature in writing and submitted that the signature was not done by them. On the basis of enquiry a proceeding was initiated against the respondents under Rule 36 of BSNL CDA Rules, 2006 vide memo dated 19.6.2010. Meanwhile, as per the order of Tribunal, all the respondents, who were working as labourers in the Department were granted adhoc temporary status of labour and subsequently adhoc status of Regular Mazdoor. It was further pleaded that during pendency of departmental proceeding against them, notification was issued for conducting LDCE but the respondents were not allowed to appear in the examination as they were not fulfilling the mandatory condition as stated in para 6(4) of notification dated 1.8.2014. It was further pleaded that the departmental proceedings initiated against the respondents have been concluded and vide order dated 5.3.2016 penalties have been imposed upon them."
4. The learned Writ Court has taken note of the order dated 02.01.2018 passed by the learned Tribunal disposing of Patna High Court C. REV. No.35 of 2021 dt.19-07-2024 6/13 the original application with a direction to the respondent authorities to hold a supplementary examination for the respondents on the same standard as held on 20.08.2017 within two months from the date of communication of the order.
5. It was this order of the learned Tribunal which was sought to be challenged before the learned Writ Court. The petitioners raised the contention that since the respondents were neither adhoc Regular Majdoor nor adhoc Temporary Majdoor, they could not have been allowed to appear in the Limited Departmental Competitive Examination (in short 'LDCE') for the post of Telecom Technician. It was contended that the respondents were forged appointees who have no legal right to participate in the departmental examination.
6. The petitioners submitted before this Court that since the respondents had not attained the required eligibility to appear in the LDCE for the post of Telecom Technician as per mandatory Condition No. 6(4) prescribed by notification dated 01.08.2014, the direction issued by the learned Tribunal to arrange for a supplementary examination for them is liable to be set aside.
7. The learned Writ Court went through the provision Patna High Court C. REV. No.35 of 2021 dt.19-07-2024 7/13 of Clause 6(4) of the notification dated 01.08.2014 and found that the said provision provided that the Casual Majdoors working in SSA units possessing 10th standard qualification and having been granted TSM status by the Department would be eligible to appear in the LDCE.
8. The learned Writ Court further found that provisional gradation list was prepared by Office of the General Manager, Telecom, District-Darbhanga dated 01.05.2001, as contained in Annexure '3' to the writ petition, which would show that the respondents were granted temporary status on provisional basis with effect from 01.08.1998. It was further noticed that vide office order dated 18.07.2007, as contained in Annexure '4' to the writ petition, the competent authority had conveyed the Office of the General Manager Telecom, District- Darbhanga his approval to grant Regular Mazdoor status to the respondents who were working as TSM on temporary or adhoc basis.
9. For the above reasons, the learned Writ Court found that the records of the petitioners itself suggest that the respondents were earlier TSM on adhoc and temporary basis and were approved to be conferred with the status of Regular Mazdoor on 18.07.2002.
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10. While making submissions before this Court Mr. Ashok Kumar Dubey, learned Counsel for the review petitioners, has taken us through Annexure '4' of the review petition, which is a copy of the order dated 01.05.2001. It is submitted that this order was issued in order to implement the decision of the learned Central Administrative Tribunal for consideration of TSM/regularisation of Casual Mazdoors within department's norms and for that purpose a provisional/adhoc gradation list had been prepared based on the basis of the labour cards submitted in the Office as shown in the Annexure (in five pages for 191 Mazdoors). On the direction of the learned CAT, Patna, they were granted temporary status on provisional/adhoc basis with effect from 01.08.1998. This word 'adhoc basis' is the bone of contention. It is submitted before this Court that the respondents were not granted the status of 'TSM' rather they were 'TSM on adhoc basis'.
11. Learned counsel for the review petitioners submits that since Clause 6(4) of the notification requires that a Casual Mazdoor working in SSA units possessing 10th Standard qualification and having been granted 'TSM' status by the Department would be eligible for recruitment to the post of Telecom Mechanic now called Telecom Technician, the Patna High Court C. REV. No.35 of 2021 dt.19-07-2024 9/13 respondents were not eligible to be considered under the said rule.
Consideration
12. We have gone through the records. The order of the learned Tribunal pursuant to which Annexure '4' to the review petition was issued, is available on the record. Paragraphs 16 and 16A the order of the learned Tribunal would be important to be taken note of hereunder and we do so:-
"16. In this connection, the learned counsel for the applicants referred to the earliest departmental scheme known as grant of "temporary status and regularisation scheme" issued by DOT, Government of India, New Delhi, vide circular letter No.(1) DOT circular No.269-10/89 STN dated 7.11.1989 (as at Annexure-A-15 of OA No.436 of 1998 and (ii) subsequent clarificatory letter No. DOT letter No.269-10/89; (iii) No.269-4/93- (STN II) dated 17.12.93 (as at Annexure-A-6 read with Annexure-A-7 of the OA No.402/98); (iv) Office order No.6(87) Estt. PPD 937 dated 24.8.90 of the Executive Engineer Postal Division, Patna (as at Annexure-A-2 of OA-599/96); (v) letter No. ST 37-1998 CL dated August, 1998 of 'the Chief Manager (Telecommunication), Bihar Circle, Patna (as at Annexure-A-15 of the OA Patna High Court C. REV. No.35 of 2021 dt.19-07-2024 10/13 No.402/98 and (vi) O.M.No.49014/4/90-Estt.
(C) dated 8.4.91 (as at Annexure- of the
O.A. ) and submitted that under the
aforesaid schemes and the clarificatory letter/circular orders of the Respondents, the applicants are entitled to grant of temporary status and regularisation of their services, as they fulfil all the following conditions:-
(1) They are currently employed (2) They have rendered a continuous service of one year i.e. 240 days/206 days before 17.12.93;
(3) They were engaged prior to 22.6.88;
(4) They were not absent for more than 365 days preceding 17.12.93;
(5) They were recruited before 7.6.88 and, therefore even if otherwise than through Employment Exchange and had crossed the upper age limit prescribed for the post, provided, they are otherwise eligible for regular appointment in all other respects, they are entitled to the grant of temporary status.
16A. The Respondents have not controverted provisions under rule for grant of temporary status and regularisation of the services of the applicants with the Respondents. There is also no denial of the facts of their fulfilling Patna High Court C. REV. No.35 of 2021 dt.19-07-2024 11/13 the aforesaid conditions in the streotype Written Statements in all the O.As."
13. Having considered the case of the applicants in the said Original Application, some of whom are respondents in the present case, the learned Tribunal issued certain directions which are contained in paragraph '21', which is reproduced hereunder:-
"21. In view of the aforesaid discussions of the factual and legal aspects of the matter involved, we dispose of all the aforesaid O.As. with the following directions:-
(i) The impugned termination notices/ orders dated 30.6.98 issued by the Respondents Department to the applicants are quashed,
(ii) Those of the applicants, who have been either disengaged and/or engaged under the interim orders of the Tribunal or otherwise shall continue to be engaged on the term and conditions as applicable to them;
(iii) Those of the applicants, who have been disengaged by the impugned order shall be re engaged with Continuity of service, but without back wages on the terms & condition as applicable to them;
(iv) The Respondents shall draw up a seniority list of the DRMS/Casual labours and assign them proper seniority with reference to their initial dates of engagement as well as length of service;
(v) The Respondents shall examine the question Patna High Court C. REV. No.35 of 2021 dt.19-07-2024 12/13 of conferment of temporary status and regularisation of their services as per the relevant rules, the exercises relating to IV and V shall be completed within four months from the receipt of a copy of this order.
(vi) The Respondents shall, however, be at liberty to make necessary inquiry into the allegations regarding their engagement on the basis of alleged forged records and to take appropriate action in the matter in accordance with law.
In the facts and circumstances, there shall be no order as to costs."
14. On bare reading of the order of the learned Tribunal, it would appear that there was a direction to the respondents to examine the question of conferment of temporary status and regularisation of the services of the applicants as per relevant Rules. Pursuant to this order, when the respondents who are the petitioners before this Court took up the exercise for conferment of temporary status and regularisation of the services of the applicants, they decided to confer temporary status but while issuing Annexure '4' they came out with a word 'TSM on adhoc basis'. They themselves further granted them the status of Regular Mazdoor. But, at this stage, they are trying to take benefit of their own wrong by pointing out that the applicants were not granted the status of 'TSM' rather they were 'TSM on adhoc basis'.
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15. We find from the discussions in the order of the learned Tribunal as well as the learned Writ Court that both have examined the entire pleadings on the record and the relevant recruitment Rules and then rightly concluded that the competent authority having conferred the status of 'Regular Mazdoor' to the respondents, have in fact taken them as 'TSM' and only thereafter they have been regularised to a higher rank.
16. We find no error of record in the judgment of the learned Writ Court.
17. This review application has no merit and is dismissed accordingly.
(Rajeev Ranjan Prasad, J) (Partha Sarthy, J) avinash/-
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