Central Administrative Tribunal - Ernakulam
T.K. Pavithran S/O Late P.K. Karuppan vs Union Of India Represented By on 27 July, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH T.A. NO. 24/2008 Monday this the 27th day of July 2009. C O R A M : HON'BLE MR. GEORGE PARACKEN, JUDICIAL MEMBER HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER T.K. Pavithran S/o late P.K. Karuppan Telecom Technical Assistant E-10-B,Telephone Exchange, Palarivattom, BSNL, Ernakualm residing at Thaiperambil, Konathukunnu PO Irinjalakkuda,Thrissur-680 123 ..Applicant By Advocates M/s V. Sajith Kumar, K.R. Sudhakaran Pillai and M. Hareesh Vs. 1 Union of India represented by the Secretary to Government Ministry of Communications, New Delhi-1. 2 The Chairman & Managing Director BSNL, Sanchar Bhavan, 20-Ashoka Road, New Delhi-1. 3 The Chief General Manager BSNL, Kerala Circle, Thiruvananthapuram-33. 4 The Assistant General Manager (Admn) Office of PGMT, BSNL Bhavan, Ernakulam, Kochi-16 5 P.S. Somathan, Telecom Technical Assistant Telephone Exchange, Perumbavoor. .. Respondents. By Advocate Mr. Mathews K Philip, for R 1-4 By Advocate Mr. T.C. Govindaswamy for R-5 The Application having been heard on 29.4.2009 the Tribunal delivered the following :- O R D E R
HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER The applicant is aggrieved by the refusal of the respondents to depute him for training and appointment in the cadre of Telecom Technical Assistant in accordance with his seniority in the cadre of Technician and prays for ante-dating of his seniority in the cadre of TTA.
2 The Applicant commenced service in the Telecom department, Ernakulam SSA as Technician w.e.f. 27.10.1982. The basic qualification prescribed for Technician cadre was three year Diploma in Engineering or SSLC with two year ITI certificate. The applicant possesses National Council for Training in Vocational Trades Certificate which is equivalent to ITI. According to him, in the Gradation list of Technicians as on 1.1.1990, he stood at Sl. No. 272 and the 5th respondent at Sl. No. 273. In the revised seniority list dated 1.7.1994 also the applicant was senior to the 5th respondent. However, on restructuring the cadre of Technician the applicant was not included in the walk in group on the ground that his qualification NCTVT is not equivalent to ITI. Applicant challenged his non-inclusion before the Tribunal in OA. 189/96. In the meanwhile, on the basis Ext. P-3 letter dated 19.8.96 the 3rd respondent made clear that NCTVT is a higher qualification than ITI and the applicant is eligible to be included in the list of walk in group. On the basis of the clarification of the Department itself, the OA became infructuous. Consequently the applicant was sent for training and posted as TTA w.e.f. 23.12.1996. The 5th respondent who underwent training earlier than applicant was appointed in April, 1996. The applicant represented for pre-dating his appointment vis-a-vis 5th respondent. In the gradation list published on 20.11.2002 the applicant was at Sl. No. 180 whereas the 5th respondent was at Sl. No. 181. However, in the eligibility list of TTAs for promotion to JTO issued on 6.11.2003 the applicant was placed at Sl. No. 277 whereas the 5th respondent was at 60. Hence the applicant filed this O.A. seeking to quash Ext. P-1 and P-7, to grant notional seniority to the applicant over the 5th respondent and for grant of consequential benefits on the ground that the seniority in the TTA cadre is the criterion for deputing for JTO training, it was due to the fault of the respondents that training of the applicant was delayed and rectification of anomalies is not prohibited under the Rules.
3 The respondents in their reply statement contested the O.A. They submitted that National Apprenticeship Certificate conducted by the National Council for Training in Vocational Trades was not listed by the Department as eligible qualification for inclusion in walk-in group, that the matter was referred to the Director of Employment & Training, Govt. of Kerala, on getting clarification from that office the applicant was included in the walk in group and consequentially deputed for training. They further submitted that the inter-se seniority was prepared strictly on the basis of instructions on the subject and that there is no provision for ante-dating of seniority.
4 The respondent No.5 in his reply submitted that the new restructured cadre of Telecom Technical Assistant was introduced only during 1993-94, that the basic qualification prescribed was Three year Diploma in Electrical, Electronics, Telecommunication Engineering or SSLC with two year ITI certificate. It is submitted that the applicant did not have any of these qualifications. NCTVT certificate was included as an eligible cadre only by Ext. P-3 dated 19.8.1996. The 5th respondent is a holder of Diploma in Electrical Engineering, he was trained and appointed as TTA on 27.4.96 whereas the applicant was brought over the cadre only on 2.12.1996. He has also opposed the TA on the ground of non impleading of the affected parties.
5 Heard learned counsel for the parties and perused the records produced before us.
6 The applicant had earlier filed O.A. 189/96 with the prayer that he may be included in the walk in group to TTA cadre by considering his qualification as equivalent to that eligible for walk in group to TTA cadre. During the pendency of the O.A. the eligibility of his qualification was got clarified from the competent authority, the applicant was sent for training on 7.10.1996 and was appointed to TTA on 23.12.1996 after the training. Therefore, OA 189/96 was closed as infructuous with the direction to the applicant to take up the matter with the authorities if he had any grievance on completion of the training. The applicant submitted representation on 22.2.97 for preponing his date of appointment in TTA cadre at par with Shri P.S. Somanathan (R-5) which was rejected. The applicant approached the High Court of Kerala through WP(C) No. 16835 of 2004 which was disposed of directing the respondents to dispose of the representation submitted by the applicant. In this Application the applicant is challenging the rejection of his representation.
7 Let us examine the plea of the applicant regarding his seniority. The comparative seniority position of the applicant vis-a-vis 5th respondent in the various Gradation lists of Technicians in the Ernakulam SSA is tabulated below:
Name Applicant R-5 Date of entry as Technician 27.10.1982 27.10.1982 Seniority position as Technician on 1.1.1990 272 273 Seniority position as Technician on 1.7.1994 212 213 Seniority position as Technician on 20.11.2002 180 181 Seniority position as TTA in the Circle Gradation 277 60 list on 6.11.2003 It is seen from the above tabulation that the applicant and the 5th respondent entered service as Technician on the same date and that the applicant was senior to the 5th respondent in the three Gradation lists published on 1.1.90, 1.7.94 and 20.11.2002 and that the 5th respondent overtook the applicant by virtue of his earlier training and appointment in the cadre of TTA.
8 We notice that at the time of initial recruitment of the applicant to the cadre of Technician, the basic qualification prescribed for the post of Technician was three year Diploma in Electrical, Electronics, Telecommunication Engineering or SSLC with two year ITI certificate. The applicant was a holder of NCTVT certificate. Therefore, it is clear that at the time of initial recruitment of the applicant, the respondents were satisfied that he had the requisite/equivalent qualifications. Othewise, he could not have been appointed to the cadre of Technician.
9 The new cadre of Telecom Technical Assistant was introduced during 1993-94 and the minimum basic qualification prescribed was "three years Diploma in Electrical, Electronics, Telecommunication Engineering or SSLC with two year ITI certificate." When restructuring of cadres was implemented in the Department, eligibility list of officials who were to be considered as walk in group to TTA cadre was prepared, the applicant's name was not included as the qualification possessed by him was not listed by the Department as one of the eligible qualifications for inclusion in the group. The competent authority in the Department decided to include the NCTVT certificate as an eligible qualification for selection to the new re-structured cadre only by Ext. P-3 dated 19.8.1996. Therefore, the applicant who possesses NCTVT certificate was not eligible to be inducted in to the TTA cadre before the date of Ext. P-3 as per the rules in force. The applicant after inclusion of NCTVT certificate as one of the qualifications equivalent to SSLC with ITI, included in the walk in group, sent for training and appointed to the TTA cadre on 23.12.1996, whereas the 5th respondent being a Diploma holder was included in the walk in group, undergone training and appointed to TTA cadre on 27.4.1996.
10 ow the question that comes up for consideration is whether the action of the respondents in seeking clarification about the qualification of the applicant is legally valid or not. We find that at the time of initial recruitment of the applicant into the Technician cadre, the Department was satisfied that the applicant had the requisite qualification to be appointed to the post of Technician. The minimum qualification fixed for both the posts are seen to be same. Under such circumstances, there was no need to refer the matter to the authority in the Govt. of Kerala for clarification. The only reason which is forthcoming is that NCTVT certificate is not listed as a qualification prescribed under the Recruitment Rules to the cadre of restructured TTA. Accordingly he was not sent for training and as a consequence his appointment to the TTA cadre was delayed . He was sent for training only after obtaining the clarification from the competent authority.
11 The learned counsel for the respondents submitted that the Gradation list of TTAs was published well before 2000 and the Application was filed only on 13.9.2004 after much delay. The respondents were directed to produce the Gradation list of TTAs of Ernakulam SSA in support of their submission. They filed M.A. 316/09 on 29.4.2009 We have perused the Gradation list of TTAs produced by the respondents. As there was no date on which the list was published, this Tribunal has asked the respondents to furnish an affidavit indicating the date on which the said list was published. The respondents have filed M.A. 516/09 to accept additional reply statement in which they have stated as under:
"The petitioner had passed the screening test for appointment to the JTO cadre against 35% departmental qualifying quota vacancies held on 30.4.2000. As per JTO Recruitment Amendment) Rules 1996 and subsequent clarifications, length of service in the TTA cadre will be the criterion for sending qualified TTAs for JTO training. Then an eligibility list was prepared by the circle office based on the date of joining as TTA and the marks obtained in the TTA training. So the gradation list prepared on the basis of TTA training marks was not used for determining the seniority of TTAs for sending them for JTO Training and hence not published. The gradation list prepared on the basis of TTA training marks was not published and it was produced as Annexure A-1"
What emerges from the above is that as per the JTO Recruitment Amendment Rules 1996 and subsequent clarifications length of service in the TTA cadre alone will be the criterion for sending qualified TTAs for JTO training. Admittedly the entry of the applicant in to the TTA cadre was delayed due to delay in sending him for training whereas the 5th respondent who was junior to the applicant in the Technician grade who was trained ahead of the applicant became senior to him in the TTA cadre and by virtue of this action of the respondents, the applicant lost the opportunity of early early into the cadre of TTA which counts for promotion to JTO group. Hence, we are of the view that the applicant was prejudicely affected due to the delay in sending him for training whatever may be the reason for the delay.
12. In this view of the matter, we allow the T.A., quash P-5 and direct the 3rd respondent to restore the seniority of the applicant over the 5th respondent in the TTA cadre in Ekm SSA , treating him as if he was sent for training in accordance with his seniority in the Technician grade. We further direct the 3rd respondent to afford him his due seniority above the 5th respondent in the Circle gradation list, on a notional basis, for the limited purpose of reckoning his seniority in the TTA cadre for JTO training. This order shall be complied with within three months from the date of receipt of a copy of this order. No costs.
Dated 27th July, 2009 K. NOORJEHAN GEORGE PARACKEN ADMINISTRATIVE MEMBER JUDICIAL MEMBER kmn