Central Administrative Tribunal - Patna
Brahm Narayan Singh vs Bharat Sanchar Nigam Ltd on 15 December, 2020
-1- OA/050/00238/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
OA/050/00238/2020
With
MA/050/00117/2020
Reserved on: 11/11/2020
Pronounced on: 15/12/20200
CORAM
HON'BLE MR. M.C. VERMA, JUDICIAL MEMBER
HON'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE MEMBER
Brahm Narayan Singh, Staff No. 8278, son of late Ram Chandra
Singh, Principal General Manager, Telecom District, Dhanbad, 3rd
Floor, CTO Building, Hirapur, Dhanbad - 826001.
...............Applicant
By Advocate : Shri M.P.Dixit
Versus
1. The Bharat Sanchar Nigam Limited through the Chairman &
Managing Director, Bharat Sanchar Bhawan, Harish Chandra
Mathur Lane, Jan Path, New Delhi - 110001.
2. The Deputy General Manager [Pers.
[Pers.-SM],
SM], Bharat Sanchar Nigam
th
Limited, Corporate Office, 4 Floor, Bharat Sanchar Bhawan, Jan
Path, New Delhi - 110 001.
3. Shr
Shrii K.K.Singh, Staff No. 8345, Principal General Manager [NOW-
[NOW-
M] C.O. Bihar Telecom Circle, Bharat Sanchar Nigam Limited,
Patna - 800 001 [Bihar].
4. Miss Gita Banerjee, Staff No. 8419, Principal General Manager
[CFA], Bharat Sanchar Nigam Limited, Circle Offic
Office,
e, Presently
under Additional Charge of Chief General Manager, Jharkhand
Telecom Circle, Bharat Sanchar Nigam Limited, ARTTC Building,
Ranchi - 835217 [Jharkhand].
.....Respondents
By Advocate
Advocate(s): Shri Shyamal Krishna Sinha
Shri Prabhat Kumat Sinha
Shri Satyabir Bharti
-2- OA/050/00238/2020
ORDER
[ Heard through Video Conferencing ] Per S.K. Sinha, A.M:- Instant stant OA has been filed against the the BSNL order dated 08.05.2020 ((Annexure Annexure A/6) appointing Sh K K Singh, Respondent No. 3 as CGMT (Chief General Manager Telecom),, Jharkhand Telecom Circle (JTC) . The applicant has requested in the OA for following reliefs:
reliefs:-
"8[1] That Your Lordships may graciously be pleased to quash and set aside the impugned orderer dated 08.05.2020 issued by the Respondent No.2as contained in Annexure-A/6 Annexure A/6 qua the applicant and Respondent no.3.
8[2] That the respondent be further commanded/directed to issue Corrigendum by posting the applicant as CGMT, Jharkhand Circle, Ranchi being ng senior to the Respondents no.3 without any further delay.
8[3] That the respondents be further directed to grant all consequential benefits in favour of the applicant.
8[4] Any other relief or reliefs including the cost of the proceeding may be allowed in favourofthe applicant."
2. Brief facts of the applicant's 's case is that he is an officer of Indian Telecom Service (ITS) Group Group-A A , 1984 Batch (Allotment (Allotment Year 1985) . He joined the Telecom Department on 21.07.1986 and was promoted to Senior Administ Administrative rative Grade (SAG) with effect from 30.12.2004 30.12.2004. He has been presently working as Principal General Manager ( PGM) Telecom,, Dhanbad since 19.11.2018. As the then Chief General Manager Telecom (CGMT), Jharkhand Circle Circle,, ShriKishore Kishore Kr Thakur was due to superannuate from service on
-3- OA/050/00238/2020 29.02.2020 , the applicant sent representation to the CMD, BSNL on 27.02.2020 to consider him for the post of CGMT, JTC and followed up with another representation on 01.03.2020. The competent authority in BSNL,, however, vide order dated 28.02.2020 (Annexure A/2) , posted Shri R. K. Chouhan, an ITS (Group-A) A) officer of 1984 Batch (Allotment Year 1985) 1985), holding the post of PGMTT (Ajmer), Raj Rajasthan as CGMT, JTC. The BSNL authorities also JTC.
simultaneously entrusted sted additional charge of CGMT, CGMT JTC to Miss Gita ta Banerjee, ITS officer of 1985 Batch (Allotment Year 1986) and holding the office of PGM ( CFA), Circle Office Ranchi, as an interim measure , till the joining of a regular incumbent(Annexure incumbent A/5). Shri ri R. K. Chouhan Chouhan,, who was posted as CGMT, JTC vide Annexure A/2, sent a representation to CMD BSNL on 02.03.2020 02.03.2020 for cancelling his posting on personal grounds (Annexure A/4). On 08.05.2020, the BSNL ordered the posting of Sh Shri K. K. K Singh (Respondent No. 3), ITS officer of 1985 Batch (Allotment Year 1986), 1986) as CGMT, JTC (Annexure A/6). The applicant applicant, aggrieved with the posting of Shri Sh K. K. Singh (Respondent No. 3), an officer Junior to him in inter-se seniority,, and with the BSNL authorities ignoring his claim for the post,, submitted aanother representation to CMD, BSNL on 11.05.2020 requesting to review the impugned order (A/6). 2.1 The applicant, in the OA, has drawn attention to the Civil List of ITS Group Group-A officers issued on 01.01.2020 01.0 (Annexure A/1)wherein
1)wherein
-4- OA/050/00238/2020 the na name me of the applicant figures at sl. no.
n 94 and the names of Shri ri K. K. Singh (Respondents No.3) and Miss Gita Gi Banerjee figure at sl.
no.
o. 125 and 161 respectively. He has further pleaded that CGMT is a non--selection selection post for which appointment is decided on seniority. In his representations to the CMD BSNL, he claimed suitability for the post on grounds of seniority and vast experience. The applicant has pleaded that Respondent no.3 who has been posted as CGMT , Jharkhand vide the impugned order is junior to him in terms of year of selection/allotment and date of promotion to Senior Administrative Grade (SAG) - applicant was promoted to SAG on 30.12.2004 30.12.2004, whereass Respondent No 3 got that promotion on 07.08.2006. Since CGMT functions as in-charge in charge of the entire Telecom Circle, the posting of a junior officer to that office while a senior officer was still PGM in that Circle was against rules and settled pr principle of law. The applicant has referred the case of Dr. Dr. Nirmala Gupta reported in 1997(36) ATC 637 (Para-6) which laid down that junior cannot be posted as in-charge in charge of his senior and also junior cannot be made administrative head if senior is availabl available. The applicant has also mentioned that the order dated 29.02.2020 entrusting additional charge of CGM, JTC to Miss Gita Banerjee, who is junior to him him, was arbitrary, stigmatic and humiliating .
3. Respondents, both official and private, contested the maintainability of OA and filed separate Written Statement. Official
-5- OA/050/00238/2020 Respondents (Respondent no 1 & 2) have contended the OA on the ground that the applicant had not exhausted the available remedies.. They averred that applicant's representa representations tions (Annexures A/3 series and A/7) were not submitted to the competent authority through proper channel i.e. through CGMT, JTC.
JTC These representations were received, but the same were not processed for not being sent through proper channel. The respondent respondents have also averred that applicant is an employee of DOT on deputation to BSNL and BSNL CMD has full administrative authority over transfer and posting of all its officers officers. However, as the applicant is an employee of DOT, the competent authority to decide his grievance is Member (Services), DOT to whom he should have addressed his representation . The respondents have also asserted that the applicant pplicant should have made DoT necessary respondent.
3.1 The Respondents have further averred that the impugned pugned order dated 08.05.2020 was a general administrative a order of transfer and posting. According to recruitment rules rules of BSNL Management Services Services, CGM and PGM as equivalent posts and as per schedule IA of BSNL Management Service Rules Rules, the Post/Grade de of CGM/PGM is to be filled through "selection by m merit". The he applicant Shri Brahm Narayan Singh is a regular SAG level officer, deployed in BSNL vide DOT letter dated 11.03.2013 (Annexure R1) and has already been designated as PGM equivalent to HAG HAG. As PGM and
-6- OA/050/00238/2020 CGM are equivalent posts and the applicant is already holding the post of PGM, the plea of seniority should not have been raised by the applicant qua the impugned order.
order. The entrustment of charge of CGM Jharkhand Telecom Circle to Ms Ms. Geeta Banerjee as interim arrangement was ordered as she was the senior most HAG level officer avail available in the Circle headquarter, Ranchi. Respondents have pleaded that Shri R. K. Chouhan, PGM, PGM Ajmer, who was posted as CGMT, Jharkhand on 28.02.2020 (Annexure A/2), A/ did not join the post because of personal problems and the competent ompetent authority decided to post Shri K.K. Singh in his place. The applicant pplicant was not found suitable for the post of CGMT as he was due for months, 31st December, 2020.
superannuation within seven months,on
4. Private respondent (Respondent no.3), in separate reply, reply, reiterated the pleadings of official respondents and stated that he joined the office of CGM, JTC on 04.06.2020 after being relieved from his last place of posting on 03.06.2 03.06.2020. The answering respondent mentions about his holding equivalent grade and post as the applicant prior to the issuance of impugned order.
order. Both were granted non non-functional up-gradation gradation (NFU) (NFU) in the HAG w.e.f.
23.07.2017 and h hee (respondent no. 3) was was designated as Principal General Manager on October 5, 2017 (Annexure - R 3/4).. The answering respondent has further averred that the applicant did not sen send representation through proper channel , i.e. through CGM,
-7- OA/050/00238/2020 JTC, Jharkhand and thus violated the DoP&T order dated 01.11.1999 (Annexure R R-3/5) which mandates that direct submission of representations should be taken seriously and appropriate disciplinary action should be initiated against those vviolating iolating the instructions. As the applicant did not send send his representation through proper channel, it is clear that he did not exhaust the available remedies before approaching the Tribunal. Also, att the time of issuance of impugned order order, the applicant was left with only seven months before superannuation and so, he could not have been considered for the post of CGM CGMT on account of smooth functioning of the organization. The answering respondent also mentions mention that as per BSNL MSRR MSRR-2009, CGM is a post of 'selection by merit' and that tthe pleading of the applicant that CGMT was administrative ve head and reporting officer for PGM within the Circle was not PGMs correct.
5. After the admission, we heard the learned counsels for rival parties. The official respondents (Respondent no. 1 and 2) were re initially represented by Shri Shyamal Kishore Sinha and later by Shri Satyabir Bharti. The private respondent ((Respondent no. 3) was represented by Shri Prabhat Kumar Sinha.
6. Shri M.P. Dixit, learned counsel for applicant, applicant submitted that the impugned order dated 08.05.2020 (Annexure A/6) was issued under the subject "Transfer and P Posting osting of officers/executives
-8- OA/050/00238/2020 equivalent to HAG/SAG of ITS Group 'A' 'A'-regarding". The BSNL's earlier order dated 28.02.2020 vide which Shri R.K. Chouhan, was as posted as CGMT, Jharkhand (Annexure 2) was also issued under the same subject heading. He averred that these orders clearly show that the posting of CGMT in BSNL is not through promotion or 'selection selection by merit merit' as claimed by the respondents in their written statement statement; it is done one simply as transfer/ posting.
posting Ld. counsel stated that according ccording to Recruitment Rules of BSNL Management Services issued on 14.07.2009 14.07.2009, CGM and PGM are equivalent posts of HAG (Higher Admi Administrative Grade) and these the posts are to be filled through ''selection by merit'.. Once selected as PGM, the officers are posted as CGM on the basis of seniority which does not require separate selection process. Ld. counsel mentions that the t official respondents (Respondent no. 1&2 )have have shown bias against the applicant by not considering his seniority and not deciding his representation representation.
6.1 Ld. counsel further urged that between May 8, 2020 and May 16, 2020 two officers were posted to the office of CGMT, Jharkhand Circle. Shri R.K. Chouhan had been posted as CGM, Jharkhand vide order dated 28.02.2020 (Annexure A/2) and his posting order was cancelled on 16.05.2020 (Annexure P--1). In between this period, Shri ri K. K. Singh was also posted as CGMT, Jharkhand Circle on May 8, 2020. He questioned the legal sanctity of the impugned order which
-9- OA/050/00238/2020 was issued without cancelling the earlier posting order of Shri R.K. Chouhan Chouhan.
6.2 Learned counsel further averred that Respondent no. 3 vide letter dated 18.05.2020 (Annexure P/3) had requested CMD, BSNL (Respondent Respondent No. No.1) for extension of time up to 30.06.2020 for joining the office of CGMT Jharkhand. However, he was relieved on 03.06.2020 with instruction to join his new assignment and he joined the office accordingly on 04.06.2020. As Miss Gita ta Banerjee was holding the additional charge of CGMT Jharkha Jharkhand nd Circle since 29.02.2020 29.02.2020, the reason behind the BSNL not agreeing to his request for extension of joining time was the bias of official respondents respondents against the applicant who had approached the Tribunal challenging the posting of Respondent No.3 as CGMT, Jharkhand. 6.3 Learned counsel submitted that the applicant had not challenged the earlier posting of Shri R.K. Chouhan as CGMT, CGM , Jharkhand as he was senior to the applicant (sl. no 77).. The entrustment of additional charge of CGM of office fice as an interim measure to G Gita Banerjee, ITS officer of 1986 batch figuring at Sl. No. 161 of Annexure A/A was humiliating to the applicant because CGMT of a Circleis a higher post which ich supervises the functioning of PGMs posted within that circle. Entrusting additional a responsibility of CGM,, JTC to Gita Banerjee while the applicant was posted as PGMT, Dhanbad reflected the bias and vindictive attitude of respondent
-10- OA/050/00238/2020 towards the applicant. The learned counsel mentioned that seniority was an important consideration in Government service. A seni senior or officer is given preference in promotion and he cannot be made to serve under a junior officer. Ld. Counsel put reliance on the Supreme Court order in Tarsem Singh Vs State of Punjab reported in 1994(4) SLR 539 in support of his averment. 6.4 Ld counsel submitted that the applicant, applicant being an officer of DoT on deputation to BSNL BSNL, is subject to the organizational rules and command structure of BSNL and so, he addressed his representations to CMD, BSNL. Further, urther, he could not have sent his representations presentations through a junior unior officer holding additional charge of the office of CGMT Jharkhand Jharkhand. Moreover, BSNL authorities had earlier accepted the representation of Shri Sh R. K. Chouhan addressed to CMD directly.
7. Shri Shyamal Krishna Sinha, advocate advocate appearing for official respondents respondents, assailed the OA on ground of maintainability because the applicant had not exhausted the available remedies. He stated that though the applicant had submitted representation on 11.05.2020 11.05.2020, it was not through proper channel ch and so, it cannot be said that he exhausted the available remedies. Hence, the OA deserves to be dismissed under Section ection 20 of the Administrative Tribunals Act .
-11- OA/050/00238/2020 7.1 Ld. counsel further pleaded that the post of CGMT is filled through 'selection by merit' and not on the basis of seniority alone and he referred to Recruitment Rule of BSNL Management Services issued on 14.07.2009. He mentioned that Chairman-cum-Managing C Managing Director (C (CMD), BSNL is the competent authority to post suitable officers as CGMT on the basis of merit-cum-seniority.To merit To a specific query regarding the relative seniority, learned counsel conceded that the applicant was above respondent no. 3 in inter inter-se seniority. He further mentioned that tthe applicant was a convict, however, keeping in view the welfare of the applicant, applicant the fact of conviction of the applicant had not been disclosed by the respondents in the pleadings.
7.2 Regarding the posting of Respondent espondent no. 3 as CGMT, Jharkhand on 08.05.2020 when the posting of of R.K. Chouhan made vide order dated 28.02.2020 had not been cancelled cancelled,, ld counsel mentioned that its answer was given in the written statement. 7.3 Ld. counsel contended the statement of counsel for applicant that the post of CGMT was filled only on the basis of seniority.. He stated that as per the respondents the post of CGMT was filled by way of selection. In this regard, he on 16.10.2020 was requested to clarify: (i) whether there is any selection committee; (ii) how how many person persons were considered for selection; (iii) Whether the applicant was among those persons who were considered for selection; (iv)
-12- OA/050/00238/2020 Whether minutes of this selection meeting/procedure is available;; and (v) Whether any order rder qua selection, before issuance of impugned n notification otification was ever passed.
passed Learned counsel expressed ignorance with regard to these fivefold queries. He also did not agree to the offer of fixing another date to enable him to seek instructions instructions/clarifications from respondents on these points. He concluded luded his argument stating that the OA was was not maintainable and was devoid of merit; hence deserve dismissal.
8. Learned counsel Shri Satyabir Bharti appeared for official respondents on the next date and conceded that post of CGMT was not a selection post, it was rather filled up by transfer/ transfer posting.. He also conceded that the applicant is senior to the private respondent and th that PGMs, Telecom Circle have to report to the CGMT.. However, owever, he added that both posts are equivalent and none of them can be said to be inferior to the other and therefore, the posting of Respondent espondent no. 3 as CGMT JTC was not arbitrary. He also stated that ITS is an All India Cadre and there are several instancess of a junior officer holding the post of CGM and the senior officers holding the post of PGM. However, on query whether there is any case of a Telecom Circle wherein in same State a junior officer held the post of CGM CGMT and a senior officer the post of PGM, PGM learned earned counsel answered that he has no data and perhaps there is no such case.
-13- OA/050/00238/2020 8.1 Learned counsel was put a specific query that as the order posting Shri R.K. Chauhan as CGMT Jharkhand was still valid on 08.05.2020 2020 how without recalling or cancelling th that order rder Respondent espondent No.3 was posted to the same office.
office Learned earned counsel stated that BSNL Corporate office had decided to cancel the posting of Shri R R. K. Chouhan before issuing the posting of Shri K. K K. Singh .
He referred to the supplementary written statement of official respondents, particularly its para para-2 2 which relate to R.K. Chauhan and copy of the note sheet at page 178 regarding proposal for transfer and posting of CGM at various places. Learned counsel for applicant accepted the veracity of para-2 2 of the supplementary written statement and the referred note sheet.
sheet Ld Counsel for respondents submitted that the delay in issuing the cancellation order was on account of fewer staff attending the office due to Corona pandemic. 8.2 Ld. counsell referred to BSNL Employee Transfer Policy dated ated May 7, 2008 (Annexure R/4) in which one of the objectives of transfer transfer/job rotation as mentioned at Para 2 (b) (viii) is "to ensure continuity of management and systematic planning for key posts in middle and senior management level"
level". As CGMT is key post in a Telecom Circle and the applicant had only seven months left before superannuation, he was not suitable for the post. Ld counsel mentioned entioned that as in the states there is only one post of Chief Secretary and other senior officers in the same grade continue to
-14- OA/050/00238/2020 serve in other capacities, similarly the applicant could continue to function as PGM in Jharkhand Circle. Ld. counsel, in support of his argument qua the same issue, referred to the Supreme Supreme Court judgement in EE. P. Royappa vs State of Tamilnadu delivered on 23 November 1973 1973.
9. Shri Prabhat Kumar Sinha, learned arned counsel for the private respondent , mentioned that it was the discretion of CMD, BSNL to find a suitable person for the post of CGMT, Jharkhand. He submitted that seniority niority of applicant vis-a-vis vis Respondent espondent no. 3 was not in dispute and posting of Respondent no. 3 as CGMT Jharkhand was not ot a case of promotion; it was the discretion of CMD, BSNL. He mentioned that ITS is an All India Cadre and its officers can be posted anywhere in the country. Ld counsel mentioned that even e at present,, several senior officers are functioning as PGMs, wh whereas ereas some junior officers have been posted as CGMs. Ld counsel gave the example of V. Jagadeeshan, the officer at sl. no. 141 of Annexure A/1, A/1 who has been appointed as CGM in Tamilnadu though he is junior to many officers holding the post of PGM inclu including the applicant. To a specific query whether there is any example of aTelecom Circle ircle where a senior officer is working as PGM and an officer junior to him is the CGMT,, the learned counsel could not provide any case.
10. In the case of E. P. Royappa vs State of Tamil Nadu, Hon'ble Apex Court on 23rd November 1973 laid down that "there there is no
-15- OA/050/00238/2020 hostile discrimination in transfers from one post to another when the posts are of equal status and responsibility responsibility". In the instant case, the posts of PGM and CGM are equivalent in terms of grade (HAG) i.e. scale of pay but not of equal status and responsibility. CGMT CGM of a Telecom Circle is in-charge charge of the entire Circle C and oversees the functioning of all BSNL officers including PGMs posted in that circle and thus, has higher status and responsibility compared to PGMs.
PGM .
Hence, ratio of the above judgement cannot be applied to the instant case.
11. The respondents have, in their pleadings and through their counsels' arguments, contested the maintainability of the OA on the ground that the applicant had sent his representations to CMD, BSNL directly and not through proper channel, i.e. through CGMT, CGMT, Jharkhand Circle and so the applicant cannot be considered to have exhausted availabl availablee remedies. The respondents have pressed for dismissal of the OA under Section ection 20 of the Administrative Tribunal Act,, 1985 1985. The he applicant had sent his representation on 28.02.2020 when Shri K K. K. Thakur, the then incumbent CGMT was getting superannua superannuated. On 29.02.2020, Miss Gita Banerjee, Banerjee, an officer junior to the applicant, was given additional charge of the office of CGM , JTC. The he applicant's main grievance in the OA is that BSNL authorities overlooked his seniority in appointment to the po post st of CGMT, JTC and also while entrusting additional charge of that office to Miss Gita
-16- OA/050/00238/2020 Banerjee . The official respondents have conceded that they did receive the applicant's representations but decided not to take cognizance of it. At the same time, BSNL Corporate Office did not object to Shri R.K. Chouhan sending his representation directly to CMD, BSNL. In fact fact, they took note of his representation and decided to post Respondent no. 3 in his place at Jharkhand. In view of these facts, plea of the respondents to dismiss the OA is not justifiable.
12. BSNL has divided its countrywide operations in Telecom Circles and each Circle is headed by an officer designated as CGMT. The counsel for respondents have argued that PGM and CGM are equivalen equivalent posts of HAG and it is the prerogative of CMD, BSNL to decide their posting as CGM or PGM. They also argued that CGMTT of many circles were junior officers while many senior officers held posts of PGMs elsewhere elsewhere. The learned learne counsels, however, were unable to provide any illustration of a Telecom Circle wherein a senior officer worked as PGM and his junior held the office of CGMT in same State/CGMT State/CGMT.
13. The impugned order, posting Respondent espondent no. 3 as CGM, JTC was issued when the previous or order der dated 28.02.2020 posting Shri R.K. Chouhan as CGM, JTC was still valid.
valid Ld counsel for respondents have argued that the BSNL corporate office had decided to cancel the previous order before issuing the posting of Shri K. K. Singh and that tthe cancellation of previous order was an administrative
-17- OA/050/00238/2020 formality which was completed on 16.05.2020 16.05.2020.. They have ascribed the delay in issuing the cancellation order to Covid pandemic because of which fewer staff were attending the office.
office Despite the reasons reasons,, it is a fact that two officers were posted to the same office between 08.05.2020 and 16.05.2020 which raises the issue of legal sanctity of the order issued later later.
14. Following facts relevant to adjudication of this OAemerge OAemerge indisputably from the pleadings and arguments of rival sides :
a. Applicant cant is senior to Respondent no.3 no. in inter-se seniority of ITS officers.
b. CGMT of a Telecom Circle is the overall in-charge
in of the Circle and has
higher status and responsibility than an PGM . The PGMs posted in that Circle report to CGMT.
c. CMD, BSNL has full administrative authority over transfer and posting of all its officers while they are deployed in BSNL. d. The CGM and PGM are equivalent posts of Higher Administrative Grade (HAG). The appointment to the post of CGMT is through transfer/posting and not through 'selection by merit'. e. The applicant is due for superannuation from service shortly.
15. With Respondent no. 3 posted as CGMT Jharkhand , the applicant is presently working as subordinate to his junior. Hence, moot point in this case is lawfulness of the decision of BSNL to post an officer (Respondent no.3) as CGMT, JTC while another officer (Applicant) higher in inter-se se seniority functions as PGM in that circle in subordinate capacity .
-18- OA/050/00238/2020
16. It is trite that Government Departments and organizations have a hierarchical structure. The hierarchy decides communication communication and command channels and the degree of responsibility and authority of functionaries at various levels.
levels The promotion from lower to higher levels is decided on the twin considerations of merit and seniority. When merits are equal, seniority is the relevant determining ffactor actor and where merit is not under consideration, seniority becomes the only factor in deciding promotion. Where a senior official is suitable for promotion in terms of merit,, he is entitled to promotion onthe basis of his seniority in preference to his juniors niors.
17. PGM and CGM in BSNL are equivalent posts under HAG, however, their status and responsibility vary vastly within a Telecom Circle.. Relation between CGMT and PGMs within a Telecom Circle is that of supervisory officer and subordinate;
subordinate a PGM in a Telecom Circle has to report to the CGMT. So, even e as the two o posts are equivalent in grade grade, posting of a PGM to the office of CGMT amounts to effective promotion. Since posting to the office of CGMT is dealt as transfer/posting and not as 'selection by merit', seniority of officers, especially those within the Telecom Circle has to be taken into consideration while deciding to post an officer as CGMT.
CGMT The Hon'ble Apex Court in its judgement on 11th December, 1986, in R S Das Etc. Etc. vs Union of IIndia ndia and others ( reported at 1987 AIR 597)held at
-19- OA/050/00238/2020 para 1.3 that "Where promotion is made on the basis of seniority, the senior has preferential right to promotion against his juniors ......"
......".
18. While CMD, BSNL has full authority to decide the posting / transfer of officers deployed within the organization he is not empowered to violate the seniority of officers. He cannot post a junior officer as in-charge charge of senior officer. The seniority of a government servant is determined in accordance with rules which are framed under Article 16 of the Constitution. In the instant case, the BSNL BSNL, by posting a junior officer as CGMT of a Circle while senior officer remains posted as PGM there, have violated the established law on seniority.
19. Based on preceding discussions, we are of the opinion that the order posting Shri K K. K. Singh (Respondent No 3) as CGMT of Jharkhand Circle with the applicant continuing as PGMT in that Circle is arbitrary and against the established law on seniority. The OA is,, therefore, allowed and the impugned order to the the extent of posting of Shri K K. K. Singh (Respondent no.3) as CGMT Jharkhand is quashed and set aside. The respondents are directed to consider the representation of the applicant (Annexure - A/7) and pass a speaking order at the earliest possible preferably one week before the due date o of his superannuation.
20. This disposes of the OA and pending MAs, if any.
any. No order as to costs.
[ Sunil Kumar Sinha ] [ M.C. Verma ] Administrative Member Judicial Member Srk.