Central Administrative Tribunal - Delhi
A.A. Joseph vs Bharat Sachar Nigam Ltd on 26 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA-542/2010
OA-1041/2010
OA-1042/2010
Along with
OA-3371/2010
New Delhi this the 26th day of August, 2011
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shailendra Pandey, Member (A)
OA-542/2010
1. A.A. Joseph,
S/o A.A. Andryose,
Sub Divisional Engineer (Electrical)
BSNL Electrical Sub Division- II
Alappuzha- 688001.
2. K.A. George
S/o Geeverghese Abraham,
Executive Engineer (Electrical)
BSNL Electrical Division
Trivandrum.
3. Shaji Mathew Sramblckal
S/o Mathew,
Sub Divisional Engineer (Electrical)
BSNL Electrical Sub Division- II
Kottayam.
4. T. Sunilkumar
S/o V Thankachan
Junior Telecom Officer (Electrical)
BSNL Sub Division- I
Kottayam-39.
5. Allas Chacko
S/o Chacko
Sub Divisional Engineer (Building)
O/o PGMT, BSNL Bhavan
Katathiparambil Road
Kochi-682016
6. D. Somarajakurup
S/o Damodaran Nair,
Sub Divisional Engineer (Electrical)
BSNL Electrical Sub Division- II
Trivandrum.
7. R. Hemachandaran
S/o B Rajappan Nair,
Sub Divisional Engineer (Electrical)
BSNL Electrical Sub Division
Telephone Exchange Compound
Kalpetta, Wayanad District.
8. Jayakumar n.s.
S/o R. Krishan Nair,
Sub Divisional Engineer (Electrical)
BSNL Electrical Sub Division-I
V Floor, Housing Board Building
Panampilly Nagar, Ernakulam. -Applicants
Versus
1. Bharat Sachar Nigam Ltd
IV Floor, Bharat Sachar Bhawan,
Harish Chandra Mathur Lane
Janpath, New Delhi 110001 represented by
Its Chairman and Managing Director
2. Director (Human Resources)
Bharat Sachar Nigam Ltd
Bharat Sachar Bhawan,
Harish Chandra Mathur Lane
Janpath, New Delhi 110001 -Respondents
OA-1041/2010
Ganesh S. Ingle
S/o Suryabhan Ingle
Sub Divisional Engineer (E-P)
O/o Executive Engineer (Elect)
BSNL Electrical Division,
3rd Floor, City Exchange,
Near Pudhari Press, Kolhapur 3. -Applicant
Versus
1. Bharat Sachar Nigam Ltd
IV Floor, Bharat Sachar Bhawan,
Harish Chandra Mathur Lane
Janpath, New Delhi 110001 represented by
Its Chairman and Managing Director
2. Director (Human Resources)
Bharat Sachar Nigam Ltd
Bharat Sachar Bhawan,
Harish Chandra Mathur Lane
Janpath, New Delhi 110001
3. Surender Singh s/o Sh. Umed Singh
SDE (Electric) in the office of EE (E)
2nd Floor, DLF Sector 37, Faridabad
r/o A-114, Ground Floor, Ashoka Ext. II
Sector 37, Faridabad.
4. Arun Sharma s/o Sh. J.B. Sharma
SDE (E), ALTTC, Ghaziabad
R/o. 758/44, Tri Nagar, Delhi- 39.
5. R.L. Jain s/o Late Shri N.C. Jain
SDE (E), T.E. Building, Sukhdev Nagar
Panipat (Har, r/o H. No.618
Sector 7, Karnal.
6. Devendra Pal Singh s/o late Shri S.C. Singh
SDE (Civil), BSNL, Meerut Zone, Meerut
R/o C-231 Ganga Sagar Colony, Near IIMT
Ganga Nagar, Meerut.
7. Adesh Jain s/o late Sh. B.M. Jain
SDE (C ), BSNL, Delhi Zone
R/o H. No. 120, Gali No. 4,
East Azad Nagar, Delhi.
8. Mohinder Singh Saini s/o Sh. Chander Prakash
SDE (Civil), BSNL, BSNL Corp. Office, New Delhi
R/o 141, D-10, Sector 7, Rohini, Delhi.
9. Devender Kumar Gupta s/o Sh. Jagat Ram Gupta
SDE (C ), BSNL, Rohtak
R/o H. No. 246, Sector 15, Sonipat, Haryana.
10. Sanjay Aggarwal s/o late Sh. C.B. Aggarwal
SDE (C ) BSNL, Delhi Zone, Delhi
R/o BF-70, SFS, Shalimar Bagh, (East)
Delhi. -Respondents
OA-1042/2010
1. Atish B. Ingle
S/o Bhaskarrao Ingle,
Sub Divisional Engineer (Electrical)
17 A Dwarka Nagri,
Near Krushinagar Telephone Exchange,
Post & Dist Akola, 444005. (MS)
2. Bhushan S. Chikhlikar
S/o Shivaji Chikhlikar
Sub Divisional Engineer (Electrical)
Qtr. No. C 3, BSNL Staff Quarters,
Telephone Exchange Campus,
Post Aligbag- 402201.
Dist Raigarh. (MS)
3. Dipak K. Sathe
S/o Krushanarao Sathe
Sub Divisional Engineer (Electrical)
Flat No. 501, Orchid Complex,
Sadashiv Peth, Post & Dist Pune- 30.
4. Jayprakash P. Patil
S/o Prabhakarrao Patil
Junior Telecom Officer (Electrical)
O/o Sub Divisional Engineer (Electrical)
BSNL Electrical Sub Division
CTO Compound, Near Railway Station
Post & Dist Akola 444001 (MS). -Applicants
Versus
1. Bharat Sachar Nigam Ltd
IV Floor, Bharat Sachar Bhawan,
Harish Chandra Mathur Lane
Janpath, New Delhi 110001 represented by
Its Chairman and Managing Director
2. Director (Human Resources)
Bharat Sachar Nigam Ltd
Bharat Sachar Bhawan,
Harish Chandra Mathur Lane
Janpath, New Delhi 110001
3. Surender Singh s/o Sh. Umed Singh
SDE (Electric) in the office of EE (E)
2nd Floor, DLF Sector 37, Faridabad
r/o A-114, Ground Floor, Ashoka Ext. II
Sector 37, Faridabad.
4. Arun Sharma s/o Sh. J.B. Sharma
SDE (E), ALTTC, Ghaziabad
R/o. 758/44, Tri Nagar, Delhi- 39.
5. R.L. Jain s/o Late Shri N.C. Jain
SDE (E), T.E. Building, Sukhdev Nagar
Panipat (Har, r/o H. No.618
Sector 7, Karnal.
6. Devendra Pal Singh s/o late Shri S.C. Singh
SDE (Civil), BSNL, Meerut Zone, Meerut
R/o C-231 Ganga Sagar Colony, Near IIMT
Ganga Nagar, Meerut.
7. Adesh Jain s/o late Sh. B.M. Jain
SDE (C ), BSNL, Delhi Zone
R/o H. No. 120, Gali No. 4,
East Azad Nagar, Delhi.
8. Mohinder Singh Saini s/o Sh. Chander Prakash
SDE (Civil), BSNL, BSNL Corp. Office, New Delhi
R/o 141, D-10, Sector 7, Rohini, Delhi.
9. Devender Kumar Gupta s/o Sh. Jagat Ram Gupta
SDE (C ), BSNL, Rohtak
R/o H. No. 246, Sector 15, Sonipat, Haryana.
10. Sanjay Aggarwal s/o late Sh. C.B. Aggarwal
SDE (C ) BSNL, Delhi Zone, Delhi
R/o BF-70, SFS, Shalimar Bagh, (East)
Delhi. -Respondents
OA-3371/2010
1. Mr. S.M. Rahman,
Sub-Divisional Engineer (E),
BSNL Electrical Sub-Division-I,
Chaudhary Building, Bhuban Chandra Path,
Uzan Bazaar, Guwahati, Assam.
2. Mr. Gautam Sen,
Sub-Divisional Engineer (E),
BSNL Electrical Sub-Division,
Dr. Bhowal Building, Sadar Ghat Road,
Silchar-788001, Assam.
3. Mr. Budhin Pamegam,
Sub-Divisional Engineer (E),
BSNL Electrical Circle,
Office of the Chief Engineer
(Electrical) Administrative Building,
6th Floor, Pan Bazar,
Guwahati-781001, Assam.
4. Mr. Gauranga Sen Gupta,
Sub-Divisional Engineer (E),
BSNL Electrical Circle,
Administrative Building,
6th Floor, Pan Bazar,
Guwahati-781001, Assam.
5. Mr. Chinmoy Roy,
Sub-Divisional Engineer (E),
BSNL Electrical-Sub Division,
Agartala, Tripura.
(Recently transferred to Kolkata)
Present Address:-
BSNL Electrical-Sub Division-II,
P-9/10, Ganesh Chandra Avenue,
5th Floor, Kolkata-13.
6. Bhubaneswar Baro,
Sub-Divisional Engineer (E),
BSNL Electrical-Sub Division,
Johrat, Assam. -Applicants
Versus
1. Bharat Sachar Nigam Ltd
IV Floor, Bharat Sachar Bhawan,
Harish Chandra Mathur Lane
Janpath, New Delhi 110001 represented by
Its Chairman and Managing Director
2. Director (Human Resources)
Bharat Sachar Nigam Ltd
Bharat Sachar Bhawan,
Harish Chandra Mathur Lane
Janpath, New Delhi 110001 -Respondents
(By Advocates: Shri Vinod Joshi, for the applicant in OA
No.1041/2010 & OA No.1042/2010
Shri Harshad V. Nameed, for the applicant in OA
No.542/2010
Shri Abinash K. Mishra, for the applicant in OA
No.3371/2010
Shri Rajnish Prasad, for the official respondents
Shri Yogesh Sharma, for the private respondents)
O R D E R
Honble Mr. G. George Paracken, Member (J) All these original applications are substantially similar. OA-542/2010 was originally filed in Ernakulam Bench of this Tribunal as OA-529/2009 and OA-1041/2010 and OA-1042/2010 in Mumbai Bench bearing OA Nos. 483/2009 and 481/2009 respectively. OA-3371/2010 was filed in this Bench itself. The earlier 3 OAs have been transferred to this Bench, so that all these cases are heard and disposed of together.
2. The reliefs sought by the Applicants in OA-1041/2010 and OA-1042/2010 are identical and they are as follows:-
a) this Honble Tribunal be pleased to call for the record and proceedings alongwith draft recruitment rules and thereafter be further pleased to direct the Respondents to add the following para in the Recruitment Rules applicable to the present Applicants:
However, the existing incumbents holding the post of Executives on regular basis on the date of notification of these RRs shall continue to be eligible for promotion to the grade of D.E., A.G.M., C.A.O..
b) this Honble Tribunal be further pleased to restrain the Respondents from giving effect to said Recruitment Rules and not to promote any of the employees in the cadre of Electrical Wing as per the Recruitment Rules of 2009;
c) this Honble Tribunal also be pleased to restrain the Respondents from bifurcating the seniority list of Diploma Holder and Graduates on account of the Recruitment Rules publish on 14.7.2009;
d) this Honble Tribunal be pleased to directed the respondents to provide exemption from educational qualification of degree in engineering to Executive officers of Electrical & Civil Wing in the recruitment rules relating to the BSNLMS framed by the respondents.
e) this Honble Tribunal be further pleased to quash and set aside the said Recruitment Rules discriminating the Applicants and direct the Respondents as prayed in prayer clause (a) above;
f) this Honble Tribunal will be pleased to pass such other and further orders as deem fit in the fact and circumstances of the case;
g) the cost of this application be awarded to the applicant.
Amended Reliefs as per order dated 7.9.2010.
h) this Honble Tribunal be further pleased to restrain the Respondents from making classification in classification amongst the Diploma Holders and declare that all the Diploma Holders treated at par with Degree Holders by virtue of their experience.
3. The reliefs sought in OA-542/2010 are similar in substance and they are also reproduced as under:-
1. Quash Annexure A1 recruitment rules and Annexure A2 Office Communication so far it is adverse to the applicants;
2. Direct the respondents to provide same exemption granted in BSNL Recruitment Rules 2009 (Annexure A1) to the existing incumbents holding the post of Executives in Telecom Operations. Finance & Telecom Factory be extended to the Civil/Electrical Wing Executives framed by the Respondents.
4. The applicants in OA-3371/2010 have, in addition, challenged the Post & Telegraphs Building Works (Group A) Service Rules, 1994, which came into existence on 6.8.1994. The reliefs and the Interim relief sought by them are as under:-
8.1 Quash and set aside the schedule IB of the BSNL Management Services Recruitment Rule, 2009 read with the amendments carried out vide letter dated 2.7.2010 and the recruitment rules of 1994 to the extent the same denies the benefits to the diploma holders who became Assistant Engineers (E)/SDE (E) after 6.8.1994.
8.2. Direct the respondents to include the serving/existing diploma holder sub-Divisional Engineer/Assistant Engineer (E) into the field of selection for promotion to the post of Executive Engineer (Electrical) in the Bharat Sanchar Nigam Limited.
8.3 Pass other order(s) as may be deemed fit and proper in the facts and circumstances of the case.
9. Interim order prayed for:
Stay/suspend impugned rules (Schedule IB of the 2009 Rules read with amendment carried forwarded vide letter dated 2.7.2010 read with the recruitment rules 1994) to the extent it excludes the diploma holder Sub-Divisional Engineer/Assistant Engineer (E) from the field of selection for promotion to the post of Executive Engineer (E) merely on the ground that the said diploma holders have become Assistant Engineers (E)/SDE (E) after 6.8.1994 and/or be pleased to issue an interim direction that pending disposal of the application no promotion shall be made to the post of Executive Engineer (Electrical) and/or pass such other interim order or direction as may be deemed fit and proper in the facts and circumstances of the case.
5. All the applicants were working in Department of Posts and Telegraphs (DOT in short) and they have been absorbed in the BSNL w.e.f. 1.10.2000. The BSNL issued the Sub Divisional Engineer (Electrical), Recruitment Rules, 2002, which came into existence on 01.03.2002. The relevant part of the said Recruitment Rules are as under:-
9. Initial Constitution:-
(i) All officials having the post of Sub Divisional E ngineer (Electrical), on regular basis in erstwhile DOT/DTS/DTO before commencement of those rules and those who have been absorbed in Bharat Sanchar Nigam Limited shall be deemed to have been appointed as Sub Divisional Engineer (Electrical).
(ii) The continuous regular service of officials referred to in sub-rule 9(i) above before the commencement of these rules shall count for the purpose of probation, qualifying service for promotion, confirmation and pension.
Thereafter, the aforesaid BSNL Management Services (BSNLMS for short) Recruitment Rules, 2009 came into existence on 11.06.2009.
6. The main challenge in all these OAs is against the Annexure A-1 (in OA 542/2010) BSNLMS Recruitment Rules 2009 and the Annexure A-7 order 02.07.2010 (in OA 1042/2010), issued as an amendment to the said BSNLMS RRs, 2009. The BSNLMS Recruitment Rules have four Schedules, namely, Schedule 1A, IB, IC & ID. The Schedule IA deals with the Method of recruitment, Field of Promotion & Minimum qualifying service in the lower grade for appointment of Executive on promotion of Telecom Operations & graduate or equivalent in respect for finance of BSNLMS. The Note 2 of the said schedule reads as under:-
2. Educational qualification for executives to be promoted to the grade of DE/AGM/CAO (see serial no.1b column No. 5) shall be engineering degree or equivalent in Telecommunications, Electronics & Computers/IT/Electrical for Telecom Operations & graduate or equivalent in respect for finance of BSNLMS. However, existing incumbent holding the posts of Executives on regular basis on the date of notification of these RRs shall continue to be eligible for promotion to the grade of DE/AGM/CAO.
Similar Notes have been appended in Schedule IC & ID which deals with Method of Recruitment, filed of promotion and minimum qualifying service in the lower grade for appointment of executives on promotion to Higher Grade of Telecom Factories of BSNLMS and all other streams of SSNLMS respectively. However, in Schedule IB which deals with the Method of Recruitment, Field of Promotion & Minimum qualifying service in the next lower grade for appointment of Executives on promotion to Higher Grade of Civil Engineers, Electrical Engineers & Architects of BSNLMS, similar provisions regarding the existing incumbents have not been made. The Note 2 of the said Schedule reads as under:-
2. Educational qualification for executives to be promoted to the grade of Assistant General Manager/EE/Arch (see serial no.1, column No. 5) shall be degree in engineering or equivalent in respect of Civil & Electrical Disciplines, whereas degree in Architecture or equivalent and valid registration as Architect with the Council of Architects for Architectural Discipline.
In other words, according to the learned counsel for the applicants, out of the four lower grades for appointment of Executives on promotion to Higher Grades for various constituents/streams of the BSNL Management Services, in all the 3 grades relaxation in the case of educational qualification have been given to the existing incumbents like the applicants but the applicants alone have been discriminated in the matter.
7. The other relevant parts of the said Schedule read as under:-
Sl.No. Grade (Equivalent) IDA Pay scale in Rs. Method of Recruitment Whether selection by Merit or Selection cum seniority or Non-selection post Field of selection and the minimum qualifying service for promotion
1. Assistant General Manager/EE/Arch (Equivalent of STS i.e. E4) 14,500-350-18,700 (Post Based Promotion Promotion from SDE/AE Level executive Selection-cum-seniority (a)From JTS grade having 4 years of regular service in the grade.
(b)From regular SDE/AE or equivalent grade of concerned discipline, who are graduate (as detailed of note 2 below) from an Indian Institute/University recognized under Indian Laws in prescribed discipline, with total qualifying service of 7 years as on Ist January of the year.
2. Deputy General Manager/SE/SA (Equivalent to JAG i.e. ES) 16000-400-20,800 (Post Based Promotion) By Promotion Selection by merit Executives in Assistant General Manager/EE/Arch or equivalent (erstwhile SYS) Grade, who have completed 4 years of regular service in the grade as on Ist January of the year.
8. According to the Applicants, to make the matter further worse for them, by the Order dated 02.07.2010 issued as an amendment to the BSNLMS Recruitment Rules 2009, the Assistant Engineers who were holding the post of SDE or equivalent on a regular basis on the date of notification of P&T BW (Group A) Service Rules 1994, i.e., 06.08.1994 only were made continued to be eligible for promotion to the post of Executive Engineer or equivalent STS level post in BSNL, if they possess a Diploma in Engineering in their respective branch from a recognized University/Institution or equivalent. The relevant part of the said order reads as under:
Order dated 02.07.2010 However the existing incumbent holding the post of Sub Divisional Engineer or equivalent on a regular basis on the date of notification of P&T BW (Group A) Service Rules 1994 i.e. 06.08.1994 shall continue to be eligible for promotion to the post of Executive Engineer or equivalent STS level post in BSNL, if they possess a Diploma in Engineering in their respective branch from a recognized University/Institution or equivalent.
9. Because the Applicants have become regular SDEs only after 06.08.1994, even with the aforesaid amendment order dated 02.7.2010 also they continued to be totally disentitled to be considered for promotions to the post of Executive Engineer. According to them, while the discrimination they were subjected to earlier in accordance with the Recruitment Rules 2009 was among the four wings namely (i) Telecom Operators and Finance, (ii) Civil Engineers, Electrical Engineers and Architects, (iii) Telecom Factories and (iv) all other streams, by the amendment Order dated 02.7.2010 they have been discriminated within the same wing of Civil Engineers/Electrical Engineers and Architects to which they belong. As a result their diploma holding counter parts in the same wing who got regular promotion as SDE prior to 06.08.1994 and those who have become regular SDE after that date have been treated as separate class for the purpose of promotion to the post of Executive Engineer.
10. The learned counsel for respondent/BSNL argued that the claim of the applicants in nutshell is that they want all the diploma holders/Civil/Electrical Engineers shall be treated at par with Degree Holders for promotion to the post of Executive Engineer and the distinction between diploma holders as on the cut of date of 6.8.1994 and those after that date is a case of discrimination. He has also pointed out that applicant No.2 in the OA No.542/2010, Sh.T. Sunil Kumar is only a JTO and he is not even in the feeder grade for promotion as Executive Engineer and, therefore, he has no right of even consideration for promotion to that post of Executives. According to the learned counsel, the applicants have not been discriminated in any manner as whatever promotional avenues they have had in the Department of Post/DOT, before their absorption have never been denied to them.
11. The learned counsel for the respondents has also submitted that the Order of the Jaipur Bench of this Tribunal in OA No.337/2009 Vijay Kumar Sharma Vs. Union of India & Ors. dated 19.08.2009 fully covers the present case. The facts of the case were that the applicant therein was holding the post of Sub-Divisional Engineer in Posts & Telegraph Department. Before his absorption in BSNL on 01.10.2000 also, he was working in the same capacity. His grievance was that the BSNL has framed the Recruitment and Promotion rules to the post of Executive Engineer/AGM whereby Degree holder Assistant Engineers have been made eligible for promotion and Diploma holder Assistant Engineers have been excluded from being promoted to the higher post. His contention was that as per the old Rules, P&T Building Works (Group A) Service Rules 1994 which was applicable to the applicant when he was working in the Postal Department and even thereafter he was transferred to BSNL, the Diploma holder Assistant Engineers were made eligible for promotion to the post of Executive Engineer/AGM. He has, therefore, sought the following reliefs:-
i) That the respondents be commanded to make a promotion of Executive Engineer (Elec.) higher grade i.e. E.E. (Elect)/AGM/SEEs for the vacancies of 2007, 2008, 2009 and upto 10th June, 2009 as per existing rules 1994 where under Diploma holder {Asstt. Engineer (Elec.)} were eligible for promotion.
ii) Issue an appropriate order or direction by which the schedule I-B of BSNL MS Rules 2009, pertaining to promotion from the post of SEE, Divisional Engineer (Elect.) have been deprived from promotion to the post of EE (Elect.)/AGM be declared ultra virus, illegal, unconstitutional, irrational and arbitrary.
iii) Issue an appropriate order or direction by which Diploma holder Sub Divisional Engineer (Elec.) Wing holding the post of executive on regular basis on the date of notification of Recruitment Rules 2009 be continue to be eligible for promotion on the next higher post i.e. EE (Elect.)/AGM/SE like I-A & I-C of the BSNL MS Rules, 2009.
12. The Tribunal after detailed consideration, dismissed the OA vide Order dated 19.8.2009 and the operative part of the same is as under:-
7. The next grievance of the applicant is that the Rule as framed by the respondents whereby Diploma holder Assistant Engineers have been excluded for promotion to the post of Executive Engineer (Electrical)/Assistant General Manager may be declared ultra virus and unconstitutional, it may be stated that the matter on this point is no longer res-integra. The same has been settled by the decision of the Honble Supreme Court in the case of State of J&K vs. Trilok Nath 1974 (1) SLR 536. That was a case where under the old rules, Diploma as well as Degree holder Assistant Engineers were eligible for promotion to the post of Executive Engineers. Subsequently, the Government framed the Rules whereby Diploma Holder Assistant Engineers were excluded for promotion to the post of Executive Engineers. The said action of the Government was challenged on the ground that the action of the respondents is arbitrary as it takes away the vested right of the Diploma Holder Engineers and further once the Diploma as well as Degree holder Assistant Engineers were integrated into one cadre of Assistant Engineer, no discrimination can be made for the purpose of promotion. The contention so raised on behalf of the employees was accepted by the Honble High Court. However, the Apex Court set aside the judgment of the Honble High Court and it was held that classification for the purpose of the promotion can be made on the ground of educational qualification. This decision of the Constitution Bench has been relied upon by the Honble Supreme Court in number of decisions. We do not wish to refer to those decisions. Suffice it to say that in the latest decision of the Honble Supreme Court in the case of M. Rathina Swami & Others vs. State of Tamil Nadu & Others, JT 2009 (5) 556, the Apex Court while relying upon the constitution decision of the Apex Court in Trilok Nath (supra) and Roop Chand Adeakha Vs. DDA, JT 1998 (4) SC 114 in Para 24 has upheld the qualification (classification) made on the basis of educational qualification for the purpose of giving preferential treatment to one class of candidates as against another.
8. Thus for the foregoing reasons, we are of the view that applicant has not made out any case for the grant of any relief. Accordingly, the OA is dismissed at admission stage with no order as to costs.
13. He has also relied upon the Order of the Madras Bench of this Tribunal in OA No. 983/2010 All India Graduate Engineer Telecom and Ors. Vs. B.S.N.L decided on 25.2.2011 wherein it was held as under:-
8. The official respondents 1 to 5 and the private respondents 6 to 11 have filed their reply. The official respondents in their reply point out that even as per ITS Group A Recruitment Rules, 1992, 50% of Junior Time Scale level posts were filled up by direct recruitment through engineering services examination as per Rule 8 (1) (a). The remaining 50% JTS levels posts were filled up by promotion from Assistant Engineers belonging to Telecom Engineers Services Group B cadre with three years regular service in that grade. They further submit that a degree in Engineering or its equivalent in Electrical or Electronics and Electrical Communication etc. is required for direct recruitment only and there was no qualification restriction for promotion to Group A services for TES Group B cadre in the said rules. A perusal of the ITS Group A Recruitment Rules 1992 also confirms this point. Therefore, the contention of the applicants that till the corporatisation of Telecom Services into BSNL, the Recruitment Rules 1992 in the erstwhile Indian Telecom Services which were followed till then prescribed the minimum educational qualification of an Engineering Degree for promotion to Group A Officers is not correct.
9. A reading of the Rule and Foot Note No.2 of Schedule 1A dealing with promotion to the post of DE/CAO/AGM of B.S.N.L. Management Services Recruitment Rules, 2009 as quoted in page No.5 of this order shows that Foot No.2 is only a protection to the existing incumbents who were eligible for promotion to Group A posts even as per 1992 Rules. Therefore, this could not be considered as a relaxation to the existing Rules and this argument of the applicants is also not acceptable.
10. Another point raised by the applicants is that the impugned note is in violation of the guidelines issued by the DOP&T in OM No. AB14017/12/87-Estt(RR) dated 18.3.1988 wherein it is mentioned that for scientific and technical posts the educational qualification prescribed for direct recruitment should be insisted upon for promotees also in the interest of administrative efficiency atleast in the case of the Senior Group A posts. The respondents in their reply point out that these instructions are only in the nature of guidelines and they are not binding and BSNL Management has got the right to formulate its own Rules. They also point out that these guidelines itself provides for protection for existing incumbents in para 3.1.3 wherein it is mentioned that when the existing eligibility criteria is enhanced it will adversely affect the persons holding the feeder grade posts on regular basis a note to the effect that the eligibility criteria shall continue to be the same for the persons holding the feeder posts on regular basis on the date of notification of the revised rules could be included in the revised rules.
11. This argument of the respondents seems to be reasonable and therefore, Foot Note No.2 of Schedule 1A of the BSNL Management Services Recruitment Rules, 2009 cannot be considered to be arbitrary or illegal on this ground.
12. The other grounds raised by the applicants that the relaxation is contrary to the interest of the BSNL is purely a matter of concern for the executive. Therefore, we are not going into the merits of this contention of the applicants. The Honble Supreme Court in its findings, in State of Andhra Pradesh Vs. V. Sadananda and Others 1989 Supp SCC 574 has also emphasized the point, that prescribing qualifications and mode of recruitment etc, are matters which comes under the domain of executive. The relevant findings which is cited by the respondents are quoted below:
The mode of recruitment and a category from which a recruitment to a service is made are all matters which are exclusively within the domain of the executive. It is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive.
14. Learned counsel for the applicant in OA-3371/2010 has submitted the additional arguments that the respondents have issued OM dated 02.09.2003, in which it has been stated as under:-
Para 5.2 (a) read with Annexure-IV-Promotion
(a) Promotional avenues that will be applicable after absorption in BSNL shall be as indicated in enclosure attached as Annexure IV.
Promotional Avenues With a view to motivate Executives in BSNL for achieving excellence in performance and higher productivity, resulting into improved quality of service, customer satisfaction and greater revenues for the Company, Executives in BSNL will be allowed upgradation to the next higher IDA Pay scale on a time bound basis, varying between 4 to 6 years, as may be prescribed for each Scale and other attendant conditions, up to the IDA pay scale of JAG Selection Grade, beyond which it will be dependent upon availability of post and suitability and selection for promotion which will be uniformly evaluated in the various streams of discipline.
15. He has also referred to OM dated 18.01.2007 issued by the BSNL, the relevant part of which reads as under:-
7. Since the first review under Executive upgradation policy is to be made with reference to 01.10.2004, any upgradation due to the Executive on or before 01.10.2004 based on earlier time bound policies, such upgradation will be granted to the executive on the basis of options as ONE TIME RELAXATION if he/she is willing for such promotion and adjudged fit in accordance with concerned regulatory conditions, OPTIONS ONCE EXERCISED, SHALL BE FINAL. The subsequent eligibility for IDA pay scale upgradation of such Executives will be governed by BSNLs Time Bound Upgradation scheme as provided in Para 1(I) (b) (3.2) above.
16. According to him, by the aforesaid two OMs, since the BSNL has already assured promotional avenues for the Applicants and similarly placed persons, they shall not be allowed go back from it as it will be hit by the principle of legitimate expectation/estoppel. He has also submitted that there is no nexus with the object sought to be achieved in sub-classifying the diploma holders as those who holding the post of Sub Divisional Engineer on regular basis as on 6.8.1994 and later.
17. Shri Yogesh Sharma, learned counsel for the private respondents in OA-3371/2010 has also supported the argument of the learned counsel for the official Respondents in all these OAs and submitted that by the amendment carried out in BSNLMS Recruitment Rules 2005 vide order dated 02.07.2010, the applicants have not been discriminated in any manner as the promotional avenues for the Degree holders cannot be the same as those for the Diploma holders. He has also submitted that the promotional avenues of the Applicants have also not been adversely affected as to whatever promotions they were entitled to, while they were in DOT, they are still available to them. In this regard, he has also relied upon the Order of the Jaipur Bench in Vijay Kumar Sharmas case (supra), which is based on the judgment of constitution Bench in the case of State of J&K Vs. Trilok Nath 1974 (1) SLR 536.
18. We have considered the submissions of the learned counsel for the parties. The dispute in these cases is in a very narrow compass. According to the Applicants who are Diploma holders, in the first place there should not have been any differentiation among the officers in the 4 wings of BSNL in the matter of educational qualifications for promotion as Executives. While in schedules 1A, IC & ID of the BSNLMS Recruitment Rules, 2009, the existing incumbents holding the posts of Executives on regular basis on the date of its notification will continue to be eligible for promotion to the higher grade, in schedule 1B applicable in the case of the Applicants, the existing Diploma Holders were excluded completely from the scope of promotion as Executives. Secondly, when the Respondent BSNL has extended the same relief to the Diploma Holders vide their order dated 2.7.2010, they have created an arbitrary divide between the Diploma Holding Sub Divisional Engineers who were regular as on 6.8.1994 and those who became regular thereafter. The first aspect of their submission has already been considered by the Jaipur Bench of this Tribunal in OA-337/2009- Vijay Kumar Sharmas case (supra). Relying upon the judgments of the Apex Court in State of J&K Vs. Trilok Nath 1974 (1) SLR 536, M. Rathina Swami & Ors. Vs. State of Tamilnadu & Ors. JY 2009 (5) 556 and Roop Chandra Adalkha Vs. DDA JT 1998 4SC 114, the Jaipur Bench held that classifications for the purpose of promotion can be made on the basis of educational qualifications. The contention of the Applicants in OA-983/2010-All India Graduate Engineer Telecom and Ors. (supra) decided by the Madras Bench of Tribunal on 25.2.2011, who were all Graduate Engineers, was that Note No. 2 in Schedule 1A of the BSNL Management Service Recruitment Rules, 2009 enabling all the incumbents holding the post of Executives in the feeder cadre on regular basis on the date of the notification of the rule, i.e., 14.7.2009 eligible for promotion by dispensing with basic educational qualifications of Engineering Degree etc. with total service of seven years as on Ist January of the year was in violation of the mandatory requirement of minimum educational qualifications for recruitment to post equivalent to STS and above. The Madras Bench dismissed the aforesaid OA based on the judgment of the Apex Court in State of Andhra Pradesh Vs. V. Sadananda and Others 1989 Supp SCC 574 wherein it has been held that it is not for the judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive. In other words, both the Jaipur Bench and the Madras Bench have considered the validity of the respective Notes No.2 below the Schedule IA & IB of BSNL Management Services Rule, 2009. Both the benches, in effect, have held that the inclusion of Diploma Holders with Degree Holders for the specified promotional posts and exclusion of the Diploma Holders for another promotional post are at the discretion of the executive for good and sufficient reasons and the Courts/Tribunal are not to interfere in such matters. We respectfully agree with the aforesaid findings of both the coordinate Benches of Jaipur and Madras.
The scenario has slightly changed with the issuance of the order dated 02.07.2010 by the Respondents as an amendment to the BSNLMS Recruitment Rule 2009. By the said amendment, the total exclusion of the Diploma Holders for promotion to the grade of Assistant General Manager/EE/Arch as was the case in Note 2 of Schedule 1B of BSNLMS Recruitment Rules 2009 has been partially relaxed. The pre 2.7.2010 position in the BSNLMS Recruitment Rules 2009 was that for promotion of Executives and Higher Grades, the candidate should have the minimum Degree qualification as on 14.7.2009, i.e., the date of publication of the said Rules. By the amendment order dated 02.07.2010, the existing incumbents holding the post of Sub Divisional Engineer or equivalent on a regular basis on the date of notification of P&T BW (Group A) Service Rules 1994, i.e., 06.08.1994 have been made eligible for promotion to the post of Executive Engineer or equivalent STS level post in BSNL, even if they were possessing only a Diploma in Engineering. Applicants herein are Diploma Holders and they are not regular sub Divisional Engineers as on 06.08.1994 and as such they do not come within the purview of said order dated 02.07.2010. The contention of the Applicants is that with the aforesaid order, the Respondents have created a sub class within a class, which is unconstitutional. In other words, the distinction made between the Diploma holding Sub Divisional Engineers, who have become regular on or before 6.8.1994 and those who become regular later, is arbitrary and, therefore, unconstitutional. We do not find merit in the said contention of the learned counsel for the Applicants as the Respondents have fixed the cut off date as 06.08.1994 not without any reasons. The Post and Telegraphs Building Works (Group A) Service Rules, 1994 came into existence on that date. According to the said Rules also there was the distinction between the degree and diploma holding Assistant Engineers. The Diploma holding Assistant Engineers were not eligible for promotion for the post of Executive Engineers(E). The only exception was in the case of these diploma holder Assistant Engineers, who were serving as Assistant Engineers (E) on regular basis on the date of the notification of the Recruitment Rules of 1994, i.e., 6.8.1994. It is only by way of an exception or a concession the Respondent BSNL has retained the same provision in schedule 1B of BSNL MSRR-2009 by way of amendment made vide Order dated 2.7.2010. By the said Order dated 2.7.2010, they were only honouring the similar commitment made in 1994 Recruitment Rules. Once the unamended provision contained in schedule 1B of BSNL MSRR 2009 has been upheld by the Coordinate Bench of this Tribunal, we do not find that the said Rules will become unconstitutional or arbitrary by extending the benefits to Diploma holding Sub Divisional Engineers who were regular by 6.8.1994, i.e., the date from which 1994 Recruitment Rules have come into existence. We, therefore, do find any discrimination or arbitrariness in fixing the cut of date of 6.8.1994 to determine the eligibility of regular Diploma Holding Sub-Divisional Engineers for promotion to Higher grades and the challenge made by the Applicant in OA-3371/2010 against the Recruitment Rules 1994 is not sustainable.
19. In view of the above facts and legal position, we dismiss these OAs. There shall be no order as to costs.
(Shailendra Pandey) (G. George Paracken)
Member (A) Member (J)
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