Central Administrative Tribunal - Delhi
Varun Kumar Shukla vs Union Of India & Ors on 8 January, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 116/2012 New Delhi this the 08th day of January, 2013 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) 1. Varun Kumar Shukla, S/o Shri Ramnuj Shukla, R/o A-56, Ganganagar, Meerut. 2. Manish Niranjan, S/o Ram Bihari Niranjan, R/o Q-No.2, Telephone Exchange, Bareta Mansa. 3. Anchal Kumar, S/o Late Shri Somdeo, R/o 510, Indranagar, Nangal Township, District Ropar (PB). 4. Ram Kripal Singh, S/o Sh. Ram Chandra Singh, R/o Hastel Block, 202, P&T, CC Block, Sector-1, Calcutta. Applicants. (By Advocate Shri Amit Kumar) Versus Union of India & Ors. 1. Bharat Sanchar Nigam Limited, Sanchar Bhawan, 20, Ashoka Road, New Delhi. 2. The CGM (NTR), BSNL, G.O.I., Kidwai Bhawan, New Delhi-110001. 3. The GM (Personnel), BSNL, Corporate Office, Janpath, New Delhi-110001. Respondents. (By Advocate Shri Rajnish Prasad) O R D E R (ORAL)
Shri G. George Paracken:
The applicants have filed this Original Application against the alleged arbitrary and illegal action of the Respondents whereby they were not allowed to appear in the Limited Departmental Competitive Examination (`LDCE for short) for promotion to the grade of Sub Divisional Engineer (`SDE for short) (Telecom.) under 33% quota, scheduled to be held on 04.03.2012.
2. The brief background of the case is that the applicants were recruited as Direct Recruit JTOs pursuant to the advertisement dated 14.03.2002 issued by the respondent BSNL. One of the eligibility conditions for appearing in the said examination was that the candidates should have been declared pass in the final year examination of Engineering on or prior to 31.07.2002 and they should have submitted their provisional certificate to that effect to the respondents. The applicants and many other similarly placed persons have challenged the aforesaid stipulation before the Honble High Court of Delhi in Writ Petition No. 1954/2003 and in other connected Writ Petitions. The said writ petitions were allowed by a Single Judge of the High Court on 13.01.2004 in which he issued a mandamus to the respondents to process the case of the petitioners for appointment by scrutinizing their professional degrees/mark-sheets provided the same were offered for scrutiny by the date prescribed in the letter issued to the petitioners to report to the respondent with their original documents together with attested copies for scrutiny. The aforesaid judgment of the Single Judge of the High Court was challenged before the Division Bench vide WA No. 245/2004 and other connected writ appeals. By judgment dated 27.02.2004, the writ appeal court dismissed the aforesaid appeals. The Civil Appeal No.4835/2000 filed by the respondents before the Apex Court has also been dismissed vide order dated 30.01.2008. Another Civil Appeal bearing No.6957 of 2005 was also disposed of vide order dated 14.09.2009 in view of the aforesaid order dated 30.01.2008. Later on, the Respondent-BSNL started the process of completing formalities appointing the Applicants as JTOs and after completion of 10 +4 weeks training as per Rules they were appointed on different dates in 2009.
3. Thereafter, the respondents have advertised the LDCE for recruitment for the posts of Management Trainee. Since the applicants were not considered eligible by the Respondents to apply for the aforesaid posts, they have approached this Tribunal again vide O.A. 2854/2009 and O.A. 3120/2009 with a prayer to accord appointments to them from the year 2002-03 i.e. from the date they were eligible to be appointed as JTOs on the basis of their qualifying the competitive written examination held on 09.06.2002; for refixing their seniority on the basis of their merit obtained in the competitive written examination held on 09.06.2002 and particularly vis-a-vis the appointees who, though lower in the order of merit as compared with the applicants, had been appointed while ignoring them; for refixing the salary payable to them in terms of the recommendations of 6th Pay Commission by backdating their appointment and treating them as having been appointed from the date other similarly placed incumbents figuring in the select/merit list in which they also figure, were appointed and/or w.e.f. the date, persons lower in merit than them had been appointed; for allowing them notional benefits of such deemed continuous appointment to them; and for directing the respondents to waive the pre-condition of 4 years work experience within BSNL in their case, thereby allowing them to appear as internal candidates in the selection process to be held for filling up the vacancies of Management Trainee under open quota. This Tribunal, vide its order dated 03.06.2010, disposed of the aforesaid O.As and directed the respondents to fix the seniority of the applicants as per their respective ranks in the select list of the examination held in the year 2002 for the post of JTOs and to re-fix their pay at the time of joining as JTO. Though they were not eligible for back wages, but it was held that the period would be counted for increments and their pay would be fixed at the time of their joining by addition of their increments which they would have got earlier during the interregnum period, had they joined service then; and to pay the differential salary and allowances as per re-fixation of pay indicated above. However, this Tribunal was of the considered opinion that the antedating of the appointment would not entitle them to count the interregnum period towards work experience for the purpose of consideration of their candidature for the posts of Management Trainee. Relevant part of the said order is reproduced as under:-
29. Taking a purposive and constructive interpretation of both words Work and Experience we would construe that there should be actual experience physically/mentally in a specific position. In the present case, the Applicants in OA No.2854/2009 joined as JTOs in the year 2009 and though we are directing the Respondents to treat their appointment retrospectively w.e.f. the date on which their juniors in the select list were appointed, they do not have physical/mental work experience in the position of JTO from that date. Therefore, the prayer to consider and direct the Respondents for interpreting the notional period also towards the work experience or to direct the Respondents to waive/relax the provisions of minimum period of 4 years of work experience, the Applicants could not establish the rationality and basis for us to interfere in the matter. Therefore, all the Applicants in OA No.2854/2009 would not have work experience from the retrospective date but would only have from prospective date, the date from which they actually worked in the BSNL. On the other hand, Applicant in OA No.3120/2009 has joined as TTA way back in 2003 and has got work experience in BSNL. Therefore, he would be entitled to consider as per the eligibility criteria of 4 years work experience to be considered for competing to the post of Management Trainees.
30. In the light of the above discussions, well settled position in law, we direct the Respondents (i) to fix the seniority of the Applicants as per their respective ranks in the select list of the examination held in the year 2002 for the post of JTOs; (ii) to re-fix their pay at the time of joining as JTO. Though the Applicants would not be eligible for back wages, but the period would be counted for increments and their pay would be fixed at the time of their joining by addition of their increments which they would have earlier during the interregnum period had they joined service then; and (iii) to pay the differential salary and allowances as per refixation of pay indicated in (ii) above. We are of the considered opinion that the antedating of the appointment would not entitle the Applicants to count the interregnum period towards work experience for the purpose of consideration of their candidature for the post of Management Trainees. The Applicant in OA No.3120/2009 having joined in BSNL as TTA with effect from May, 2003, he would have 4 years of work experience for the said purpose and thus, he would be eligible for consideration if other wise suitable.
31. With the above directions, the Original Applications are disposed of. A copy of this order shall be placed in each of the OAs. In view of the typical nature of the case, we do not pass any order on costs.
4. The Applicants filed Writ Petition No.8704/2010 against the aforesaid order of the Tribunal dated 03.06.2010 to the limited extend that they have not been allowed to sit in the SDE examination. The said Writ Petition was ultimately allowed as withdrawn vide order dated 15.09.2011 with liberty to file an Original Application to agitate their claim that they are eligible to appear for the LDCE for the post of Sub Divisional Engineer vide 33% quota. The aforesaid order is reproduced as under:-
The learned counsel for the petitioners, after some arguments, on instructions, seeks to withdraw the writ petition with liberty to file an Original Application to agitate their claims that they are eligible and entitled to appear for the Limited Competition Examination for the post of Sub Divisional Engineer under 33% quota for which the examination is to be held and all other consequential reliefs. The examination in question is yet to be held by the respondents and this aspect of the matter was not directly in issue in OA No. 2854/2009 and had also not been adjudicated to this extent. Under the circumstances, the petitioners are entitled to be permitted to withdraw this petition with liberty as prayed for. The writ petition is, therefore, dismissed as withdrawn with liberty as prayed for.
5. Thereafter, the applicants have filed this O.A seeking the following reliefs and interim relief:
Reliefs:
(i) To count the retrospective appointment of the applicant with effect from 2002 onwards as a regular service for all practical purposes including the eligibility for the LDCE examination.
(ii) To count the service of the applicants from 2002 onwards for counting the eligibility to sit in the SDE in view of the facts that notional seniority have been granted to the applicants from 2002 onwards;
(iii) May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice.
Interim Relief:
To allow the applicants to appear provisionally in the LDCE examination subject to the final outcome of the OA.
6. While considering this case initially on 12.01.2012, this Tribunal allowed the aforesaid interim relief and accordingly the respondents were directed to allow the applicants to appear in the LDCE for the post of SDE provisionally subject to the final outcome of this OA. The respondents have declared the result and three of the applicants have qualified and one failed.
7. The applicants have submitted that they were part of the 2002 batch and, therefore, they are entitled for all the benefits which are available for the other members of the said batch. However, delay in appointment was due to the respondents and it is only after the Apex Court decided the matter, they have given them the appointment. The Respondents are now taking advantage to their own wrong. They argued that once they have been granted seniority and have been given appointment retrospectively then they are eligible to count that service. They have further submitted that it was the respondents themselves who are to be blamed for their state of affairs inasmuch as the Honble High Court of Delhi, as early as on 13.01.2004, had clearly directed the respondents to process their case for appointment by scrutinizing their degree/mark sheet for securitization by the date prescribed in the letter issued to the respondents. It was only the respondents who sat over the matter in spite their appeal having been dismissed by the Division Bench of the Honble High Court of Delhi and the Honble Supreme Court. They have also stated that even though no stay was against their appointments, yet the respondents gave the offer of appointment only as late as 2009 contravening all the judgments/orders passed by the Honble Court. Thus, now the respondents cannot be allowed to take benefit of their own wrong and inasmuch as they did not appoint the applicants in spite of the categorical order of the Honble Court.
8. They have also relied upon a similar Writ Petition No. 37322/2010 and connected petitions The Managing Director-cum-Chairman and Another Vs. K.S. Premakumar and Others decided by the High Court of Karnataka on 21.04.2011. The relevant part of the said judgment is as under:-
13. It is true that promotion will take effect only from the date of official assumes charge in the promoted post. Admittedly, the examination for 25 quota of vacancies from 1997-98 to 2000-2001 was held on 01.12.2002 and promotion for the candidates who are eligible for promotion was effected by an order dated 27.08.2004. The seniority of the respondents was fixed correctly along with the persons who were promoted under 75% quota as per the rules. The applicants also got their seniority vis-`-vis promotees under the 75% quota based on the year in which the vacancy arose. The petitioners had held the DPC for promotion under 75% promotion quota in the year 200-2001 itself and issued promotion orders on 16.5.2000 and 28.12.2001. If the Department had conducted the examination annually to fill up the 25% quota of vacancies, the respondents would have got their promotion w.e.f. 16.5.2000 and 31.12.2001. Though the examination was held in December, 2002, actual appointment orders were issued in the year 2004 as per Annexure A5 dated 26.5.2004 and the posting orders were made on 08.06.2004 as per Annexure A6.
14. In SANTANAKRISHNANs case, the Apex Court was considering a similar matter. In the said decision, Department of Telecom introduced the time bound promotion for the Assistant Engineers on 25.09.1990 on completion of 12 years service in the grade. The petitioners therein made representations for giving them promotion from the same date on which their counter-parts in the 2/3rd quota got the benefit of time bound promotion. Santanakrishna, a candidate for competitive examination against 1/3rd quota of the corresponding year was actually promoted in June, 1986 on account of delay in holding the examination. His contention was that the promotion to the SDE grade against 1/3rd quota should have been the same as the date of promotion of the counter parts under the 2/3rd quota, which happened to be 11.5.1981. Chandigarh Bench allowed the notional date of promotion in respect of the candidates who were before it, whereas the Madras Bench allowed the promotion w.e.f. 12.09.1982 taking into account the time consumed for completing the process of examination, which was actually held in 1992 and for processing ACRs etc., for which six months was allowed. The Supreme Court allowed the notional date of promotion as 12.9.1982 for the purpose of counting experience and other service benefits and accordingly Santhanakrishnans notional date of promotion was fixed as 12.9.1982 and he was made eligible to get the time bound promotion on 12.9.1994 on completion of 12 years, which he would have otherwise got only in June, 1997. In the present case also, the respondents prayed for giving notional date of promotion with all consequential benefits such as counting of experience for further promotions with effect from the notional date of promotion. In SANTANAKRISHNANs case, the Honble Apex Court agreed with the view of Madras Bench of the Tribunal. In the instant case, the examination was indefinitely postponed after announcing. The Tribunal has noted the crucial events in SANTANAKRISHNANs case and in the instant case as under:
Year for which Back-log was existing Date of promo-tion of officials under seniority quota Date of holding of Limited Departmental Competitive Examination Date of Declaration of Result Date on which promotion was given to LDCE quota Delay in promoting LDCE compared to seniority quota Notional date of promotion ordered by Madras Bench of CAT and upheld by Honble Apex Court 1973 to 1981 11.5.1981 11/12.3.1982 29.10.1984 19.6.1985 4 years 12.9.1982 (6 months from date of holding the LDCE examination 1996 to 2001 16.5.2000 and 28.12.2001 1.12.2002 (Originally scheduled to be held on 23.7.2001) 15.12.2003 8.6.2004 (Except applicant No.16, who was promoted on 2.11.2007 3 to 4 years
15. The applicants before the Madras Bench were notionally promoted from 1.6.2003 i.e. six months from the date of holding the examination. In the present case, examination was held within one year of promoting senior quota officials but the declaration of results was delayed because of the Court proceedings. The examination was first scheduled on 23.7.2001 i.e. little later than 16.5.2000, the date on which the first batch of seniority quota officials were promoted. Thereafter, it was postponed from time to time. It was finally held on 1.12.2002 and results were announced on 15.12.2003 i.e. after one year after holding the examination. It took six months to issue promotion orders. The candidates of vacancy year 1996-97 were promoted after four years of their counter parts in seniority quota were promoted. The end result is the same as in SANTHANAKRISHNANs case. Considering all these aspects, the Tribunal has directed the petitioners to assign notional date of promotion as SDEs to the respondents with effect from 23.1.2002 i.e. six months from 23.7.2001, the date on which the examination was announced to be held.
16. In BALWANT SINGH NARWAL & OTHERS VS. STATE OF HARYANA & OTHERS (2008) 7 SCC 728, the Apex Court has held that if the promotion of an employee is delayed because of the pendency of the Court proceedings, he shall be entitled to a deemed date of promotion viz., the date of promotion of their counter parts. In the present case, the Tribunal has directed the petitioners to grant consequential benefits such as counting of experience for the purpose of promotions, annual increments, etc. with effect from 23.1.2002. It has clarified that the respondents are not entitled to any arrears of pay from the date of such notional fixation on 23.1.2002 but will be entitled for arrears of pay from 1.4.2008 as the OA was filed only on 2.4.2009. We are of the view that the said order does not call for interference.
17. In the result, writ petitions fail and they are accordingly dismissed. No costs.
9. They have further relied upon the judgment of the Apex Court in Union of India Vs. K.R. Rajoria (2000 (3) SCC 563) in which it has been held that the regular service did not mean actual service only, and the eligibility could be determined with reference to notional promotion granted to the candidate from a retrospective date. The relevant part of the aforesaid judgment reads as under:
20. In the context of this case, the High Court erred in equating the words regular service with actual experience relying on the decision in Union of India V. M. Bhaskar. In that case the eligibility criterion expressly was of completion of 2 years experience in Grade II. The case is, therefore, entirely distinguishable.
10. The Respondents in their reply has stated that the Applicants have not been fulfilling the prescribed eligibility of having 3 years regular service in the grade of JTO as on Ist July of any of the four vacancy years, i.e., vacancy years 2006-07 to 2009-10. Rather, they would be eligible for LDC Exam for the post of SDE for the vacancy years 2012-13/2013-14 onwards on the basis of their date of joining the training as JTOs. In this regard they have relied upon the order of the Tribunal dated 12.08.2001 in OA No.1562/2010 and connected cases (supra). The relevant part of the said order is as under:-
18. We find that the grounds advanced by the counsel for the Applicants to treat the year of examination to count the eligibility of 3 years regular service as JTO would be irrational and illegal, if the examination takes place some years after the year in which the vacancies have arisen. Even those JTOs who have not joined when the vacancies existed in the grade of SDE would become eligible to write LDCE. This would create an anomalous situation as the JTOs who are not borne in the cadre even on the vacancy year would become eligible to write LDCE for promotion to the post of SDE. For example, vacancies of the year 2006-07, examination is held in the year 2010-11, the correct position to determine eligibility of 3 years of regular service will be 1st July, 2006 (vacancy year). If the Applicants plea is accepted the JTOs having 3 years of regular service as on 1st July, 2010 (year of examination will be eligible) which means JTOs joining up to 30.06.2007 will be entitled to write LDCE. This claim is rather illegal and irrational. Such a claim does not seem to be the intention of Rule makers and has not been adopted in the past. We also accept the contention of past practice followed by the Respondents. We, therefore, find there is logic and rationality in the grounds taken by the Respondents to treat the period of 3 years of regular service as 1st July of the vacancy year as the eligibility criteria/condition for the JTOs to write LDCE. This is in addition to the condition of 3 years of regular service in the year of examination. Both eligibility conditions are to be fulfilled by the JTOs to be entitled to write LDCE for SDE grade.
19. Thus, we accept the grounds raised by the Counsel for the Respondents that eligibility criteria of 3 years of regular service in JTO on the 1st July of the vacancy year and LDCE examination year is legally right approach. We accordingly give the constructive interpretation that Note-2 and Note-3 are to be read harmoniously to come to the considered conclusion of the JTOs to become eligible for LDCE. Resultantly, 3 years of regular service in the grade of JTO as on 1st July of the vacancy year would be the eligibility criteria, in addition to the condition of 3 years of regular service on the 1st July of the year of LDCE.
20. With regard to the 2nd issue, we find that the redundant word list having been deleted from the Note 3 of the Column 12 of the Schedule, the Note has become crystal clear. No ambiguity exists. Deletion of List in our opinion, is legally sustainable.
21. As the LDCE has been ordered in Vimal Bhardwajs case (supra) to be held separately for four vacancy years 2006-07, 2007-08, 2008-09 and 2009-10, the JTOs having put in 3 years of regular services as on the 1st July of the corresponding years would be eligible to write LDCE as shown in the following Table:-
_______________________________________ Sl. Vacancy year JTOs having 3 year of No. regular service as on the date will be eligible for LDCE.
_______________________________________
1. 2006-07 01.07.2006
2. 2007-08 01.07.2007
3. 2008-09 01.07.2008
4. 2009-10 01.07.2009 _______________________________________
22. Considering the totality of facts and circumstances of the case and for the reasons indicated within this order, we are of the firm view that the Applicants in all these OAs have not established their case to treat their eligibility as on 1st July of the LDCE examination year only. In the result, these nine OAs are disposed of with the conclusive order that those of the Applicants (JTOs) in all these OAs eligible as per the above table will be entitled to write LDCE for the corresponding vacancy year(s). The Respondents are accordingly directed to intimate the Applicants in all the OAs within a period of 9 weeks from the date of receipt of a certified copy of this order, leaving the parties to bear their respective costs. Let copy of this order be placed in the records of each OA.
11. We have heard the learned counsel for the parties. We have also perused the entire documents on record. First of all, we shall say that OA No. 1562/2010 and connected cases (supra) relied upon by the Respondents has no relevance in this case. The issue considered in the said case was regarding the crucial date for eligibility to be considered for the Junior Telecom Officers (JTO) for appearing in the Limited Departmental Competitive Examination (LDCE) for promotion under 33% quota for the vacancies in the post of Sub Divisional Engineer (Telecom). That is not the issue in the present case. Issue in the present case is whether notional service awarded to the Applicants can be considered as the regular service in their case for fulfilling the eligibility criteria for appearing in the LDCE for appointment for the post of SDE under 33% quota. The Applicants in the present case are Direct Recruit JTOs belonging to the 2002 batch. For none of their fault and even after availability of the judgment of the Honble High Court of Delhi in Writ Petition No.1954/2003 (supra) vide judgment dated 27.02.2004, the Respondents have appointed them as JTOs only in 2009. Again in OA No.2854/2009 and connected cases, they have secured order dated 03.06.2010 from this Tribunal in their favour for refixing their seniority as per their ranks in the select list of the examination held in the year 2002. However, they were not allowed to participate in the LDCE for recruitment for the Posts of Management Trainee for the only reason that one of the eligibility condition for the same was work experience for the prescribed period which the Applicants did not possess. There is no such condition for appearing in LDCE for promotion to the grade of Sub Divisional Engineer under 33% quota. Therefore, the Applicants case is squarely covered by the judgment of the Apex Court in K.R. Rajorias case (supra)
12. In view of the above position, the OA is allowed. The interim order passed on 12.01.2012 is made absolute. Consequently, we direct the Respondents to count the services of the Applicants from 2002 onwards as regular service for all practical purposes including the eligibility for the LDCE and for determining the eligibility for promoting to the post of Sub Divisional Engineer. Since some of Applicants herein have already passed the LDCE for promotion to the aforesaid grade, they shall be given the consequential benefits as per their position in the merit list. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
`Rakesh