Central Administrative Tribunal - Ernakulam
K.P. Girija vs Union Of India on 31 May, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 1047 of 2012
Tuesday, this the 31st day of May, 2015
CORAM:
Hon'ble Mr. Justice N.K. Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
1. K.P. Girija, aged 47 years, D/o. Pappu, Junior Telecom Officer
(External), BSNL, Telephone Exchange, Angamali, Ernakulam,
residing at Karthika, Canal Road, Okkal PO, Perumbavoor.
2. C.K. Ambika, aged 43 years, D/o. C.P. Kochukandan, Junior
Telecom Officer, BSNL, Telephone Exchange, Arakkunnam,
Ernakulam, residing at Kulayattikara PO, Arayankavu, Ernakulam.
3. R. Babu, aged 48 years, S/o. E. Raghavan, Junior Telecom Officer,
BSNL, Telephone Exchange, Vithura, Thiruvananthapuram, residing
at Thiruvathira, Pazhakuti PO, Nedumangadu, Trivandrum.
4. C.K. Ravi, aged 46 years, S/o. Late C. Kuttappan, JTO, O/o. the
Divisional Engineer (CS), BSNL Bhavan, Ernakulam, residing at
Cherangara House, Poopani, Perumbavoor PO, Ernakulam District.
5. P.V. Gokulan, aged 45 years, S/o. P.K. Velayudhan, SDE(O)
Marketing, O/o. The PGMT, BSNL, Kavilakathumpadom, Trichur,
residing at Flat No. D3, Castle Rock Regency, Kannath Lane,
Ayyanthole, Trichur - 680 003.
6. M.V. Remesan, aged 41 years, S/o. P.V. Koran, Junior Telecom
Officer, BSNL, Telephone Exchange, Cherupuzha, Kannur, residing
at Chembrakanam, Thimiri PO, Cheruvathur, Kasargode.
7. P.R. Sudha, aged 44 years, D/o. K. Rajappan, Junior Telecom
Officer, BSNL, Telephone Exchange, Kalamasserry, Ernakulam,
residing at Lakshmi Nivas, Companypadi, Alwaye.
8. C.V. Unnikrishnan, aged 43 years, S/o. Velayudhan, SDE(O),
BSNL, Telephone Exchange, Chembukavu, Thrissur, residing at
C 6/6, P&T Quarters, Poothole, Thrissur-680 004. . . . . Applicants
(By Advocate : Mr. Shafik M.A.)
Versus
1. Union of India, represented by the Secretary,
Department of Telecommunications, Ministry of Communications,
Sanchar Bhavan, New Delhi.
2. The Chairman cum Managing Director, Bharat Sanchar Nigam
Limited, Sanchar Bhavan, New Delhi.
3. The Chief General Manager, Telecom, BSNL, Kerala Circle,
Trivandrum. . . . . Respondents
(By Advocate : Mr. T.C. Krishna, Sr. PCGC)
This application having been finally heard on 24.5.2016, the Tribunal
on 31.5.2016 delivered the following:
ORDER
Hon'ble Mr. Justice N.K. Balakrishnan, Judicial Member -
The 8 applicants in this case have approached this Tribunal for a declaration that they are entitled to be posted as Junior Telecom Officers (JTOs) against the Scheduled Caste vacancies for the year 1995 onwards and that their seniority should be reckoned from the correct recruitment year i.e. 1995 or 1996 and for consequential reliefs.
2. The applicants contend as follows:
All the applicants belong to Scheduled Caste community. They joined the Department as Technicians during 1990-1993. The next promotion which they can aspire is the post of JTOs. As per the Recruitment Rules 35% of the vacancies are to be filled up from among the cadres of Phone Inspectors, Auto Exchange Assistants, etc. as per a screening test to be conducted by the Department. The respondents notified the 2 nd screening test as per Annexure A1 letter dated 3.12.1998. All the applicants were qualified in the year 1995 itself and they were declared as passed. They were sent for training and they completed the phase-I training on 29.6.2001. On completion of phase-I training they were appointed as JTOs as per Annexure A2 order dated 2.8.2001. Thereafter phase-II training commenced on 3.9.2001. They completed that training as well. The applicants were considered as JTO candidates of recruitment year 1999 backlog qualifying quota. The screening test for promotion in the 35% quota was not conducted from 1995 onwards. Only ten vacancies earmarked for the SC/ST candidates were filled up in the 1 st screening test conducted by the Department prior to 1995. Thereafter, no test was conducted to fill up 35% quota for the vacancies in SC/ST quota. Finally the test was conducted on 30.4.2000 for the backlog vacancies from 1995 onwards. The vacancies of JTOs existed in SC quota for 1995 was 29, in 1996 it was 13 and in 1997 it was 14 and in 1998 it was 7 as can be seen from Annexure A3 letter. The applicants ought to have been appointed as JTOs against 1995 vacancies and they should have assigned seniority from 1995. Representations were submitted by them. A junior batch from Maharashtra who had undergone training along with the applicants were assigned seniority from 1996. Since no seniority list was published, the applicants were not in a position to know whether the recruitment year has been changed. The next promotion which the applicants can aspire is to the cadre of Sub Divisional Engineer.
As per the Recruitment Rules 67% is filled up by seniority-cum-fitness from among the JTOs. As the recruitment of the applicants is shown as 1999 only, they were not considered so far. There were no vacancies in the year 1999 but the applicants were kept in the seniority list of 1999 as they were 1999 recruitees. Accordingly, the applicants seek the relief as stated above.
3. This application is strongly resisted by the respondents contending as follows:
The applicants were appointed as JTOs in the year 2001 against recruitment year 1999, against the backlog qualifying quota as per Annexure A2 appointment order dated 2.5.2001. The applicants have approached this Tribunal after about 12 years. As such the claim is barred by limitation. The applicants were recruited and posted against backlog vacancies of recruitment year 1999. The applicants were well aware of that fact from the date of appointment in the year 2001. The applicants joined the Department as Technicians during 1990-1993. For becoming eligible for promotion through screening test to the cadre of JTO a Technician has to first enter the cadre of Telecom Technical Assistant (TTA for short). Then only he would become eligible for writing the screening test for becoming a JTO on completion of six years service as TTA. Subsequently the Department of Telecommunications decided to admit the TTAs to take the screening test for becoming JTOs against the screening test quota irrespective of the length of service through letters dated 13.12.1994. The respondents notified the first screening test for promotion to the cadre of JTOs for the 35% quota vacancies as per JTO Recruitment Rules, 1990. That test was conducted on 29.1.1995. The first applicant alone appeared in the screening test but she failed to qualify in the exam. All the other applicants did not qualify for appearing in the test as they became TTAs only thereafter. As per the provisions of Annexure R2(a) the Recruitment Rules, vacant posts of JTOs were to be filled up by direct recruitment against 50% of the vacancies. The remaining 50% is to be filled up by promotion from among the departmental candidates. Out of the 50% promotion quota, 35% was reserved for officials belonging to the cadres of Phone Inspectors/Auto Exchange Assistants etc. The second screening test was notified to be conducted on 11.4.1999 as per the JTO Recruitment Rules, 1996. It was postponed due to administrative reasons and the same was subsequently held on 30.4.2000 in which all the applicants participated and got qualified. The averment that the applicants were qualified even in the year 1995 is not correct. Except the 1 st applicant other applicants did not become TTA in the year 1995. Annexure A2 the posting order would clearly show that they are JTOs of the recruitment year 1999, backlog qualifying quota.
4. The 1st screening test was conducted on 29.1.1995 as per the Recruitment Rules of 1990. The 2nd screening test was conducted on 30.4.2000 as per Recruitment Rules, 1996 taking into account all the vacancies from 1996 up to 1999. The Recruitment Rules do not stipulate the periodicity for conducting the screening test. The applicants who were not qualified to appear in the screening test in 1995 cannot claim appointment as JTO from 1995. The 1st applicant alone was qualified for taking the screening test in 1995 and as such she appeared in the 1 st screening test on 29.1.1995 but she did not come out successful. The 1 st applicant who failed in the '1995 test' and the other applicants who were not eligible to appear in the test in 1995 are claiming to be appointed as JTOs from 1995 onwards. The subsequent representations are only the results of an after thought to escape the question of limitation. Hence, the respondents prayed for dismissal of the Original Application.
5. A rejoinder was filed by the applicant refuting the averments made in the reply statement.
6. The points for consideration are:
i) whether this application is barred by limitation; and
ii) whether the applicants are entitled to be promoted as JTOs for the recruitment year 1995 onwards as claimed by them?
7. We have heard the learned counsel appearing for the parties and have also gone through the pleadings and documents produced by the parties. Point No. 1 :
8. The claim made by the applicants is stoutly resisted by the respondents firstly on the ground of limitation. It is submitted by the learned counsel for the respondents that even as per Annexure A2 posting order dated 2.8.2001 the candidates mentioned therein (the applicants herein and the others) were provisionally appointed as JTOs for the recruitment year 1999-backlog qualifying quota. When it was specifically mentioned that they were appointed as JTOs for the recruitment year 1999 they cannot now contend that they should have been appointed for the vacancy year 1995 onwards. If as a matter of fact the applicants were aggrieved by Annexure A2 to the extent that their appointments were not made for the recruitment year 1995 they should have challenged the order then and there. It has not been done within the time stipulated in Section 21 of the Administrative Tribunals Act. It is pointed out by the respondents that except the 1 st applicant other applicants were not qualified to appear in the screening test between 1996 to 1998. The respondents would also contend that there is no stipulation in the Recruitment Rules for making it obligatory on the part of the respondents to hold the screening test annually or within any definite period. Therefore, the contention that screening test should have been conducted annually also is not supported by any rule.
9. It is also pointed out that the circle gradation list was published in the year 2007. Then also the applicants had no complaint whatsoever. They approached this Tribunal only in the year 2012. Going by Annexure A2 and from the averments made by the applicants it is crystal clear that they were aware of the fact that they belong to JTO candidates of the recruitment year 1999 backlog qualifying quota. The 1 st screening test was conducted on 29.1.1995 as per the Recruitment Rules, 1990. The 1 st applicant who alone was eligible to appear for the test, appeared for the test but she failed in the examination. Since Annexure A2 order makes it clear that the applicants were appointed as JTOs against the vacancies of the recruitment year 1999 towards backlog vacancies the contentions to the contrary cannot be sustained at all. The applicants have approached this Tribunal in 2012 after about 11 years of Annexure A2 order and as such this application is hopelessly barred by limitation.
10. The applicants wanted to rely upon Annexure A3 application submitted under the RTI Act and Annexures A4 & A5 representations made in April, 2012 to contend that this application filed on 16.11.2012 is not barred by limitation. A stale claim cannot be revived by submitting representations. Except the 1st applicant the other applicants did not have 5 years continuous satisfactory service as Technical Assistant. That could not be controverted by the applicants also. No relaxation has been given. It is pointed out by the learned counsel for the respondents that the applicants have slept over the matter for several years and have now wanted to revive a stale or dead claim which cannot be allowed at all (see the decisions of the Hon'ble Supreme Court in C. Jacob v. Director of Geology and Mining & Anr. - 2008 (10) SCC 115, Union of India & Ors. v. A Durairaj - JT 2011 (3) SC 254 and also Vijay Kumar Kaul & Ors. v. Union of India & Ors. - 2012 (7) SCC 610. Therefore, in view of what is stated above this application is liable to be dismissed on the ground of limitation itself. Point No. 2 :
11. While discussing point No. 1 we have already found that the application is liable to be dismissed on the ground of limitation itself. However, we proceed to consider the case on merits as well, though it is actually not necessary. It is not disputed that the applicants joined the Telecom Department during 1990-1993. No provision could be shown by the applicants which makes it mandatory on the part of the respondents to conduct screening test every year. Not only that, as per the Recruitment Rules, 1990 the 'five years experience' is one of the eligibility conditions which the other applicants (except the 1 st applicant) did not satisfy. So far as the 1st applicant is concerned she participated in the examination conducted in the year 1995 but she could not succeed. Therefore, the contention that their seniority should have been fixed with reference to the recruitment year 1995 cannot be sustained at all. It is also not disputed that subsequently Recruitment Rules 1996 came into force superseding the provisions of the Recruitment Rules, 1990. Accordingly, the 2 nd screening test was conducted on 30.4.2000 as per the Recruitment Rules, 1996 taking into account all the vacancies for the period from 1996 to 1999. The contention that in fact there was no vacancy in the year 1999 and so the promotion of the applicants as JTOs for the vacancies of 1999 cannot be sustained. What is meant is the backlog vacancies up to the recruitment year 1999. Annexure R2(a) is the 1990 Recruitment Rules.
12. The learned counsel for the respondents has also relied upon Annexure R2(b) an order passed by the Division Bench of this Tribunal on 23.2.2010. It was held by this Tribunal in that order that the seniority of incumbents has to be determined on the basis of the dates of their actual joining and not on notional basis by allotment of slots. It was observed that such a view was taken by the Chandigarh Bench of this Tribunal in Dewan Chand's case which was affirmed by another Co-ordinate Bench of this Tribunal in V. Govindan referred to therein. Those decisions were followed by this Tribunal.
13. Annexure R2(c) is a decision of the Division Bench of the Hon'ble High Court in OP (CAT) No. 335 of 2010 dated 12.4.2012. In that case it was held by the Hon'ble High Court that Annexure A1 therein promoting 6000 JTOs to the post of Sub Divisional Engineer is a regular promotion order and the seniority of the officers promoted therein shall be as per the list appended. It was stated that there was no mention that the promotions were subject to the quota rota rule or that the seniority therein would be subject to any change consequent to the departmental competitive examination. It was specifically held that though the departmental competitive examination was conducted calculating the number of vacancies for the previous years, none of the persons who were successful therein are entitled to have their seniority counted from a date before which they joined duty. It was so held in the light of the 3 Judges Bench decision of the Apex Court in Central Provident Fund Commissioner & Anr. v. N. Ravindran & Ors. - 1995 Supp(4) SCC 654. It is submitted by the learned counsel for the applicants that Annexure R2(c) was in respect of the promotion by departmental examination under general quota and it was not with reference to the SC/ST quota but the ratio decided therein is that the persons who became successful cannot claim seniority from a date before which they joined duty.
14. As per Annexure A2 the applicants were appointed as JTOs for the recruitment year 1999 and joined duty without any demur accepting Annexure A2 and it was not challenged for nearly 11 years. The contention that the principle laid down in Annexure R2(c) is not at all applicable to the facts of this case cannot be accepted. In paragraph 19 of Annexure R2(c) the Hon'ble High Court held:
'19. To sum up, we declare that there is no rule entitling an employee of the respondents to claim service benefits from the date of arising vacancy. Service benefits can be claimed only from the date of joining duty. When appointments are made from different streams one after another, those who are subsequently appointed are not entitled to seniority over those who are appointed earlier so long as no such condition is stated in the earlier appointment order. Resultantly, we further find that the applicant before the Tribunal is entitled to have his seniority settled in pursuance to Annexure A1 promotion order. The review applicants who were later appointed towards 25% quota under departmental competitive examination are not entitled to have their seniority fixed with retrospective effect against the applicant. The review applicants are not entitled to claim service benefits from the date of arising of vacancy. They are entitled to count their seniority reckoned from the date of joining duty in the promoted post.'
15. The applicants also wanted to contend that in Maharashtra/Mumbai circle similarly placed officers were posted as claimed reckoning the recruitment year as 1996. Under what circumstance such an order was issued is not clear. The applicants cannot get themselves compared to officers of other circles. In view of what is stated above we hold that the claim made by the applicants lack merit also and on that ground also this OA is liable to be dismissed.
16. In the light of the findings entered above the applicants are not entitled to succeed in this OA. Hence, this OA is dismissed. No order as to costs.
(P. GOPINATH) (N.K. BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER SA