Central Administrative Tribunal - Chandigarh
Shiv Kumar Sharma S/O Sh. Roop Lal Sharma vs Bharat Sanchar Nigam Limited on 18 October, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
ORIGINAL APPLICATION No. 060/00133/2015
Date of filing: 12.02.2015
Order reserved on: 04.10.2016
Chandigarh, this the 18th day of October, 2016
CORAM: HONBLE MR. JUSTICE L.N. MITTAL, MEMBER (J) &
HONBLE SMT. RAJWANT SANDHU, MEMBER (A)
1. Shiv Kumar Sharma s/o Sh. Roop Lal Sharma, working as JTO, O/o GMTD Chandigarh, R/o House NO. 36-B, Sector 36-A, Chandigarh.
2. Dinesh Pal, s/o Naurata Ram, working as JTO, O/o CGMT Punjab Circle, Chandigarh.
3. Vijay Kumar s/o Om Parkash, working as JTO, O/o CGMT Punjab Circle, Chandigarh.
4. Mrs. Sant Saroj w/o Sh. Vinod Kumar Sharma, working as JTO, O/o GMT CMTS Sector 49, Chandigarh, R/o H. NO. 2113, Ashiana Enclave, Sector 48-A, Chandigarh.
5. Mrs. Santosh Wadhwa w/o Sh. Hari Chand Wadhwa, working as JTO, O/o CGMT Punjab Circle, Chandigarh, R/o 109, Young Dewel Society, Sector 49-A, Chandigarh.
6. Mrs. Raminder Kaur, w/o Sh. Nirmal Kumar, working as JTO, O/o CGMT, Punjab Circle, Chandigarh, R/o H. NO. 709-A, Sector 36, Chandigarh.
7. Raj Bahadur Singh, S/o Sh. Harbans Singh, working as JTO, O/o GMTD, Ferozepur, R/o Village and P.O. Froze Shah, Tehsil and District Ferozepur.
8. Nirmal Singh s/o Sh. Didar Singh, working as JTO, O/o GMTD Ludhiana, H. NO. 2843, Sector 32-A, Ludhiana.
9. Major Singh s/o Sh. Kaur Singh, working as JTO, O/o GMTD, Bathinda, R/o Mohalla Jhutti Klan, Bathinda.
.APPLICANTS
BY ADVOCATE: SHRI MANOJ KUMAR SOOD
VERSUS
1. Bharat Sanchar Nigam Limited, Corporate Office, 4th Floor, Bharat Sanchar Bhawan, Janpath, New Delhi-110001, through its Chairman-cum-Managing Director.
2. Senior General Manager (Pers.), Bharat Sanchar Nigam Limited, Corporate Office, 4th Floor, Bharat Sanchar Bhawan, Janpath, New Delhi-110001.
3. Arun Kukkar JTO age 36 years son of Sh. M.L. Kukkar, Address BSNL, Sector 49-C, Chandigarh.
4. Umesh Parsad JTO age 37 years son of late Sh. Hari Parsad, Address BSNL ITPC Sector 20, Panchkula.
5. Sh. Sudhir Sharma JTO age 35 years son of Sh. Rameshwar Prasad Address BSNL Sector 49-C, Chandigarh.
6. Devender Sharma JTO age 32 years son of Sh. Y Sharma Address BSNL Sector 20 Panchkula.
.RESPONDENTS
BY ADVOCATE: SHRI G.C. BABBAR FOR RESPONDENTS NO. 1&2
SHRI GIRISH AGNIHOTRI ,SR. ADVOCATE WITH SHRI GUNJAN MEHTA AND SHRI SAROJ MALAKAR FOR RESPONDETNS NO. 3 TO 6.
ORDER
HONBLE MR. JUSTICE L.N. MITTAL, MEMBER(J):-
This Original Application under Section 19 of the Administrative Tribunals Act, 1985 has been filed by nine applicants claiming the following relief:-
i) Quash the Examination Notice NO. 24-I/2014-Rectt. Dated 13.11.2014 (Annexure A-1) whereby respondent No. 1 sent notice for conducting Limited Departmental Competitive Examination for promotion to the grade of Sub-Divisional Engineer (Telecom) under 33% Quota for vacancies 2010-2011, 2011-2012, 2012-2013 and 2013-2014 as well as backlog/unfilled vacancies for SC/ST for the year 2009-2010.
ii) Quash the Examination Notice No. 24-I/2014-Rectt. Dated 20.4.2015 (Annexure A-1-A) whereby respondent No. 1 sent notice for conducting Limited Departmental Competitive Examination for promotion to the grade of Sub-Divisional Engineer (Telecom) under 33% Quota for vacancies 2010-2011.
iii) For issuance of directions to the respondents first to fill the vacancies for the year 2009-2010 under the 67% quota on the basis of seniority cum fitness for the post of SDE.
iv) For directions to the respondents not to conduct Limited Departmental Competitive Examination for promotion to the grade of Sub-Divisional Engineer (Telecom) under 33% Quota for vacancies 2010-2011, 2011-2012, 2012-2013 and 2013-2014 till the vacancies under the 67% quota are filled.
2. Private respondents 3 to 6 were impleaded as party to the O.A. on M.A. filed by them.
3. Facts in the case are not in very much in dispute. The applicants initially joined service of Department of Telecom (DoT) -Union of India (UOI). They were promoted as Junior Telecom Officers (JTOs) on different dates from 16.7.1997 to 14.6.2000. Bharat Sanchar Nigam Limited (BSNL)-official respondents no. 1 & 2 came into existence w.e.f. 01.10.2000. Recruitment Rules (RRs) (Annexure A-3) for the post of Sub-Divisional Engineer (Telecom) [in short, SDE(T) ] were framed by official respondents in the year 2002. According to RRs, post of SDE (T) was to be filled by promotion only- 75% on the basis of seniority-cum-fitness and 25% by Limited Departmental Competitive Examination (LDCE). By amendment of RRs in the year 2007, seniority quota was reduced to 67% and LDCE quota was increased to 33%, effective from the vacancies for the year 2006-07. Seniority quota promotion posts up to the year 2008-09 were filled in the year 2011. LDCE quota posts till 2009-10 were filled by promotion order dated 2.7.2013 (Annexure A-7). Vide letter dated 17.9.2014 (Annexure A-9), preparatory exercise for promotion to SDE (T) under seniority quota for vacancies of 2009-10 to 2013-14 was started. However, the said exercise could not be taken to logical conclusion because of interim status quo order dated 4.2.2015 (Annexure A-11) issued by Honble High Court of Kerala in litigation relating to inter-se-seniority of JTOs. On the other hand, respondents issued letter dated 13.11.2014 (Annexure A-1) for holding LDCE for promotion to the post of SDE (T) under LDCE quota for vacancies year 2010-11 to 2013-14. However, vide letter dated 20.4.2015 (Annexure A-1/A), it was decided to hold LDCE for vacancy year 2010-11 only for promotion to the post of SDE (T) under LDCE quota. Vide interim order dated 29.5.2015 of the Tribunal, the respondents were allowed to hold the LDCE but it was directed that final result will not be declared without permission of the Court. The said interim order was modified vide order dated 18.5.2016 to the extent that the respondents could declare the result of the examination which had already been conducted and could take further consequential steps but shall not make any actual promotion.
4. Grievance of the applicants is that according to judgment dated 12.8.2014 (Annexure A-8) of Honble Supreme Court in Civil Appeal No. 7830/2014 BSNL & Ors. Vs. S.K. Dubey and Ors., seniority in the post of SDE (T), in the absence of any express provision in the RRs, cannot be granted from retrospective date of occurrence of vacancies when the employee was not borne in the cadre. Accordingly, if JTOs are promoted to the post of SDE (T) under LDCE quota for 2010-11 prior to promotion under seniority quota for vacancies of 2009-10, the applicants shall suffer because they are in the zone of consideration for promotion under seniority quota for the vacancies of 2009-10. If the promotions are held in time, promotees of 2009-10 would be senior to promotees of 2010-11. However, the respondents are in the process of making promotion under LDCE quota for 2010-11 whereas promotions under seniority quota for 2009-10 have not yet been made.
5. Official respondents no. 1 & 2 in their written statement pleaded that they are unable to hold DPC for making promotions under seniority quota for 2009-10 in view of interim status quo order of Honble High Court of Kerala. However, steps are being taken to make promotion against LDCE quota for 2010-11. LDCE was held on 21.6.2015 for the same. Promotions under the seniority quota will be considered after final verdict of Honble High Court of Kerala. It was also pleaded that letter dated 13.11.2014 (Annexure A-1) for promotion under LDCE quota for vacancies from 2010-11 to 2013-14 has been rendered infructuous because proposed examination could not be conducted on 15.2.2015 and also because vide letter dated 20.4.2015 (Annexure A-1/A), LDCE was conducted on 21.6.2015 for vacancy year 2010-11 only. Factual position pleaded by the applicants was not disputed.
6. Private respondents no. 3 to 6 adopted the written statement of official respondents no. 1 & 2.
7. The applicants filed replication wherein they controverted the stand of the respondents and reiterated their version.
8. Official respondents vide affidavit dated 19.9.2016 stated that RRs of 2002 were being amended to make provision for inter-se-seniority of SDE(T) to the effect that promotees under seniority quota and LDCE quota of a particular vacancy year shall get inter-se-seniority in the ratio of 2:1 i.e. first two posts to seniority quota promotee and third post to LDCE quota promotee and so on. The said amendment is proposed to be implemented w.e.f. the year 2009-10 onwards. Management Committee has already approved the said proposal. It would be implemented after approval by the BSNL Board. After the said proposed amendment, promotees under both quotas for vacancy year 2009-10 will be senior to promotees under both quotas for subsequent years. In this manner, grievance of the applicants shall be redressed. Further information dated 21.9.2016 was submitted by the official respondents that proposal for fixing inter-se-seniority of seniority quota promotees and LDCE quota promotees in the ratio of 2:1 (by rotation as mentioned above) irrespective of the date of joining was approved by Board of Directors on 28.8.2015 but it was to be effective from prospective date i.e. from the date of approval by the Board. However, to make it effective from the vacancy year 2009-10 onwards, proposal has been approved by Management Committee on 24.11.2015, but is yet to be approved by BSNL Board.
9. We have heard learned counsel for the parties and perused the case file.
10. Counsel for the applicants reiterated that if promotions under LDCE quota for 2010-11 are made prior to promotion under seniority quota for 2009-10, then promotees of LDCE quota for subsequent year 2010-11 shall be senior to the promotees of seniority quota for earlier vacancy year 2009-10. It would be unjust and arbitrary and shall cause irreparable loss and injury to promotees of seniority quota for 2009-10. Reference in this regard was made to S.K. Dubey (Supra), according to which, seniority is to be fixed according to date of joining and not according to vacancy year. The applicants are in zone of consideration for promotion under seniority quota for 2009-10.
11. On the other hand, counsel for respondents reiterated that promotion under seniority quota for 2009-10 cannot be made presently in view of interim status quo order of Honble High Court of Kerala. As regards the grievance of the applicants regarding seniority, counsel for official respondents as well private respondents submitted that RRs are being amended to redress the grievance of the applicants as mentioned in clarificatory affidavit dated 19.9.2016 and information dated 21.9.2016. Counsel for private respondents submitted that if they are promoted under LDCE quota for 2010-11, they shall not claim seniority over promotees of seniority quota for 2009-10 who may be placed enblock senior to LDCE quota promotees of 2010-11. In this regard, undertakings of 307 candidates who have appeared in LDCE held on 21.6.2015 for promotion under LDCE quota for 2010-11 have been given to the effect that if they are promoted under LDCE quota, they shall not claim seniority over seniority quota promotees as per affidavit dated 19.9.2016 of the official respondents. It was submitted that necessary condition regarding seniority to the aforesaid effect may be incorporated while making promotion under LDCE quota for 2010-11.
12. We have carefully considered the matter. Admittedly there are large number of vacancies of both the quotas. As per letter dated 13.11.2014 (Annexure A-1), there are 2025 vacancies for 2010-11, 273 vacancies for 2011-12, 323 vacancies for 2012-13 and 675 vacancies (subject to change) for 2013-14 under LDCE quota. Vacancies under seniority quota, which is double of LDCE quota, would be much more than vacancies of LDCE quota. Thus thousands of posts of SDE (T) are lying vacant, obviously hampering the functioning of the official respondents. During the course of hearing, it was stated that adhoc/current duty charge of the posts of SDE(T) has been given to JTOs. However, such adhoc arrangement cannot be allowed to continue for long. By its very nature, such arrangement is meant to be stop-gap arrangement only. Consequently, promotion under LDCE quota cannot be stalled for long merely because promotion under seniority quota cannot be made in view of interim status quo order of Honble High Court of Kerala.
13. However, at the same time, grievance of the applicants is very genuine. If promotions under LDCE quota for 2010-11 and subsequent years are made prior to promotions under seniority quota for earlier year of 2009-10 and consequently if on the basis of earlier date of joining, promotees of LDCE quota for 2010-11 and subsequent years become senior to promotees of seniority quota for 2009-10, it would result in grave injustice to promotees of seniority quota for 2009-10. It would be highly unjust and would amount to arbitrariness. In fact, even the official respondents have admitted the genuineness of the grievance of the applicants in clarificatory affidavit dated 19.9.2016 and information dated 21.09.2016 as noticed above. Even candidates for promotion under LDCE quota (including private respondents no. 3 to 6) have admitted correctness of grievance of the applicants as 307 such candidates have given necessary undertakings. Consequently, certain directions have to be given to safeguard the interest of prospective promotees of both the quotas as well as for smooth functioning of official respondents.
14. Consequently in order to balance the equities so that neither promotees of seniority quota nor promotees of LDCE quota suffer nor functioning of Official respondents is hampered due to stalling of promotion under both the quotas, necessary directions are being issued. Official respondents have already filed an interim application in Honble High Court of Kerala for vacation of interim status quo order. They may pursue the same sincerely in Honble High Court for expeditious disposal thereof for vacation or suitable modification of interim status quo order or for early final disposal of the Writ Petition itself by Honble High Court of Kerala so that promotions under seniority quota may also be made without delay.
15. In addition to the aforesaid, it is directed that promotions under LDCE quota for 2010-11 or even for subsequent years shall be made only after making of proposed amendment in RRs relating to inter-se-seniority of promotees under both the quotas to be applicable from the vacancy year 2009-10 onwards as mentioned above. In the promotion orders also, condition shall be incorporated regarding inter-se-seniority of promotees of both the quotas on the lines stated in affidavit dated 19.9.2016 and information dated 21.9.2016 as mentioned above and undertaking to the same effect shall also be taken from the promotees of LDCE quota. Those refusing to give any such undertaking may not be promoted. In this manner, interests of promotees of both the quotas will be safeguarded and neither seniority quota promotees nor LDCE quota promotees shall suffer and official respondents shall also be able to function smoothly by making promotions under LDCE quota. It is also directed that as and when interim status quo order is vacated or modified or Writ Petition is finally disposed by Honble High Court of Kerala, promotion under seniority quota shall be made expeditiously. The O.A. stands disposed of accordingly with no order as to costs.
(JUSTICE L.N. MITTAL) MEMBER (J) (RAJWANT SANDHU) MEMBER (A) Dated: 18 .10.2016 `SK 1 (O.A. No. 060/00133/2015)