Central Administrative Tribunal - Delhi
Sanjay Tyagi vs Bharat Sanchar Nigam Limited on 9 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2112/2009 NEW DELHI THIS THE 9th DAY OF AUGUST, 2011 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHAILENDRA PANDEY, MEMBER (A) 1. Sanjay Tyagi S/o Sh. Naresh Kumar R/o 21/3B, Type IV BSNL Quarters, Kali Bari Marg, New Delhi-110001. 2. Ram Pyare Prasad S/o Lt. R.K. Mehta R/o 21/3C, Type IV BSNL Quarters DIZ Area Kali Bari Marg New Delhi-110001. 3. Ram Chander Gupta S/o Lt. Shri R.S. Gupta R/o 22/3C, Type IV BSNL Quarters DIZ Area Kali Bari Marg New Delhi-110001. 4. Rabindra Prasad S/o Sh. Bindeshwari Prasad R/o Qtr.1, Type III, Telecom Colony A2A, Janakpuri, New Delhi-110058. 5. Indu Sekhar Sudhanshu Mishra S/o Late Sh. Kamleshwar Mishra R/o National CGHS Ltd. Plot No. 4, Flat No. A-3, Sector-3, Dwarka New Delhi. Applicants. (By Advocate Ms. Vibha Narang for Mrs. Rani Chhabra) VERSUS 1. Bharat Sanchar Nigam Limited, (A Govt. of India Enterprise) Corporate Office: Personnel Branch 4th Floor, Bharat Sanchar Bhawan Janpath, New Delhi-110001. 2. Directors of Board Bharat Sanchar Nigam Limited, Corporate Office: Personnel Branch 4th Floor, Bharat Sanchar Bhawan Janpath, New Delhi-110001. 3. General Manager (Personnel) Bharat Sanchar Nigam Limited, Corporate Office: Personnel Branch 4th Floor, Bharat Sanchar Bhawan Janpath, New Delhi-110001. 4. Assistant General Manager (Personnel) Bharat Sanchar Nigam Limited, Corporate Office: Personnel Branch 4th Floor, Bharat Sanchar Bhawan Janpath, New Delhi-110001. Respondents. (By Advocate Shri Rajnish Prasad) ORDER
Mr. G. George Paracken:
The challenge in this O.A. is the Annexure A-4 Recruitment Rules (2008) of Directly Recruited DGMs of BSNL Management Services, published on 25.06.2009 and the Annexure A-1 advertisement issued by the respondents for recruitment of 150 DGMs in Telecom Management Services (TMS) and 60 DGMs in Telecom Accounts & Finance Services (TAFS) through written test and personnel interview. The offending clause in the aforesaid Recruitment Rules is regarding the experience prescribed for the post of DGM, as contained in clause 7 of Schedule-I appended to the said Recruitment Rules which reads as under:
Experience Method of recruitment Period of Probation 7 8 9 Candidates from public sector, private sector and government are eligible to apply. All candidates, however, must fulfil all three criteria as highlighted below:
1. Twelve (12) years of post qualification working experience as on Ist August of the recruiting year.
2. Minimum of 3 years of experience as under on Ist August of the recruiting year in:
a. E4 grade as defined in DPE guidelines (IDA scale 14500-350-18700/Revised Scale 29100-54500) in case of PSU experience OR.
b. Equivalent annual gross salary, which comes to approximately Rs. Seven Lacs gross in case of private sector. OR c. CDA scale 10000-325-15200 (pre revised scale in case of government posts).
3. Minimum work experience of 5 years in a company with an annual turnover Rs.100 Cr (in case of PSU, private companies) as on Ist August of the recruiting year.
Recruitment 2 years
2. The aforesaid provision of the Recruitment Rules has also been incorporated in the Annexure A-1 advertisement in the following manner:
3.3 Eligibility criteria/work experience Candidates from public sector, private sector and government are eligible to apply. All candidates, however, must fulfill all three criteria mentioned below:
Twelve (12) years of post qualification working experience as on 01.08.2009.
Minimum of 3 years of experience as on 01.08.2009 in:
d. E4 grade as defined in DPE guidelines (IDA pre-scale Rs.14500-350-18700/Revised IDA Scale Rs. 29100-54500) in case of PSU experience or.
e. Equivalent annual gross salary, which comes to approximately Rs. Seven Lacs gross, in case of private sector or f. CDA scale Rs. 10000-325-15200 (pre-revised scale in case of government posts) Minimum work experience of 5 years, as on 01.08.2009, in a company with an annual turnover more than Rs.100 Cr (in case of PSU, private companies).
3. The applicants have, therefore, sought the reliefs and the interim reliefs in the present OA which are as under:
Reliefs:
declare clause 7 of schedule 1 of Rule 2 of the Recruitment Rules, 2008 published on 25.6.2009 as ultravires, unconstitutional and violative of Articles 14 and 16 of the constitution;
quash advertisement No. 14-1/2009/Recruitment of DGM in Telecom Management Services and DGM in Telecom Accounts and Finance Services Examination; and pass such other order/s which this Honble Court may deem fit and proper in the circumstances of the present case.
Interim Reliefs:
pass an ad-interim exparte order staying the qualification mentioned in para 3.3 of the Advertisement No. 14-1/2009/Recruitment issued by the Respondents;
allow the applicants to appear in the examination without insisting the qualification mentioned in clause II of para 3.3 in the said Advertisement; and pass such other order/s which this Honble Court may deem fit and proper in the circumstances of the present case.
4. The brief background of the case is that the applicants in this O.A. are Engineers who were appointed in the Department of Telecommunication (DOT for short) as Junior Telecom Officers (JTO for short) through competitive examination against the vacancies for the year 1991-92. In the year 2000, DOT decided to corporatise the organization through transfer of all the assets and liabilities along with the service in the government company with name and style of Bharat Sanchar Nigam Limited (BSNL for short). Consequent to the creation of the BSNL, the applicants were transferred from the DOT/BSNL/MTNL. In the year 2002, options were called from the persons transferred to BSNL as to whether they intend to remain in DOT or with BSNL. In the said option letter, in para 14 dealing with the inter se seniority and in Para 6 dealing with the terms and conditions of absorption, the respondents have stated that inter se seniority of officers in various grades in BSNL will be the same as the seniority maintained in the DOT.
5. The respondent/BSNL published the BSNL Management Services Recruitment Rules, 2009 which came into effect on 11.06.2009 (Annexure A-5). According to the said Recruitment Rules, for the directly recruited DGM of Management Services, the prescribed qualification, as mentioned in Schedule-1, was 12 years of post qualification working experience as on Ist August of the recruiting year and minimum 3 years of experience as on Ist August of the recruiting year in E-4 grade as defined in DPE guidelines (IDA pre-revised scale Rs.14500-350-18700/Revised IDA Scale Rs.2911-54500) in case of PSU experience or equivalent annual gross salary, which comes to approximately Rs. Seven Lacs gross, in case of private sector or CDA scale Rs.1000-325-15200 (pre-revised scale in case of government posts).
6. Pursuant to the aforesaid Rules, the respondents made an advertisement for filling up 150 posts of DGM in TMS and 60 posts of DGM in TAFS. The applicants challenged the said qualification prescribed in the Recruitment Rules and the advertisement issued on the ground that the same was discriminatory as they have been in service for more than 12 years but simply because the BSNL has not placed them in the scale of E4 they were denied the opportunity to appear in the examination whereas their juniors who have been absorbed in MTNL have become eligible with the same qualification. According to the applicants, the aforesaid action of the respondents was clearly discriminatory as the respondents at the time of absorption had promised them that their inter se seniority will be maintained as per the DOT seniority but the persons who had opted for BSNL were deprived of their chance to appear in the aforesaid examination whereas the persons junior to them in the DOT have become eligible to appear in the said examination. They have sought an interim relief in this OA to permit them to appear in the aforesaid examination without insisting the qualification mentioned in the advertisement but this Tribunal has not granted them the necessary permission. Later on, the respondents have conducted the examination but only 40 persons had joined against the 150 vacancies of TMS and 6 persons in TAFS against the 60 vacancies advertised. According to the applicants, the respondents have completely ignored the DOPT guidelines contained in Annexure RA-2 filed along with the rejoinder affidavit, the relevant para 3.1.3 of which reads as under:
3.1.3 Where the eligibility service for promotion prescribed in the existing rules is being enhanced (to be in conformity with the guidelines issued by this Department) and the change is likely to affect adversely some persons holding the feeder grade posts on regular basis, a note to the effect that the eligibility service shall continue to be the same for persons holding the feeder posts on regular basis on the date of notification of the revised rules, could be included in the revised rules.
7. The respondents in their reply have submitted that the applicants have been working in the DOT and later in BSNL for 12 years. While absorbing them in BSNL, no weightage was given for the past service and they were placed in E IA grade even when in other PSUs persons having similar educational qualification and work experience were given E2 scale and later promoted to E4 or E5 scales. However, the applicants have reached only upto E2 or E3 scale so far due to the promotional policy of the respondent BSNL and, therefore, they have not become eligible to apply for the said post of DGM. They have also submitted that the comparison of the applicants between BSNL and other PSUs is misconceived as the former is a big organization with functional and service requirement, which is not similar in nature as in other PSUs. They have also stated that all the PSUs have different organizational hierarchy with different recruitment rules and they offer different avenues of promotion to their officers and staff which are not comparable. In this regard, they have further stated that all Group `B officers in DOT were absorbed in BSNL, after options were called from them vide Circular dated 02.09.2003 wherein all the terms and conditions of absorption in BSNL including pay scales were clearly stated. Further, they have been given weightage in the form of point to point fixation which included the IDA pay scale compared to their corresponding CDA scale which the optees would receive on exercising options in BSNL.
8. As regards the post of DGM which has been advertised, they have submitted that it belongs to the E5 pay scale and, therefore, the requirement for the said post was determined as 3 years experience in E4 scale which is reasonable and justifiable.
9. The learned counsel for the respondents has also submitted that the very same issue raised by the applicants in this O.A. has been considered by Madras Bench of this Tribunal in O.A. No. 909 and 938 of 2009 M. Radhakrishnan Vs. The Director (Finance), BSNL & Ors. decided on 08.12.2010. According to the learned counsel, the only difference between these two cases is that the applicants in the present case belong to the TMS and the applicants in the other case belong to the TAFS. The Madras Bench has dismissed the aforesaid two O.As on the ground that BSNL and MTNL are separate organizations having separate service regulations and, therefore, they cannot be compared. The relevant part of the said judgment is as under:
5. It is not in dispute that both BSNL and MTNL are separate organizations and separate service regulations are in vogue. The applicant cannot compare himself with that of an employee belonging to MTNL organization and thereby would contend that he is eligible to be promoted to the post of Deputy General Manager. We do not see any reason to accept the contentions raised on behalf of the applicant. For the reasons stated above, both the applications are dismissed. However, there will be no order as to costs.
10. We have heard the learned counsel for the applicants Mrs. Vibha Narang for Mrs. Rani Chhabra and the learned counsel for the respondents Mr. Rajnish Prasad. As in O.A. 909 and 938 of 2009 (supra), the contention of the applicants in this case is also that the respondent BSNL has not placed them in E4 scale and, therefore, they were denied the opportunity to appear in the examination for the DGM post whereas their juniors in the DOT who have got absorbed in another PSU, namely, MTNL have become eligible to appear in the said examination with the same qualification. Therefore, the action of the respondents is discriminatory. The respondents have clearly stated in their reply that the BSNL and MTNL are separate entities having their own separate organizational structure and recruitment rules and, therefore, they are not comparable in the matter of promotions of their employees. They have also stated that while absorbing the applicants in BSNL, no weightage was given for the past service and they were placed in E IA grade even when in other PSUs persons having similar educational qualification and work experience were given E2 scale and later promoted to E4 or E5 scales. However, the applicants have reached only upto E2 or E3 scale so far due to the promotional policy of the respondent BSNL and, therefore, they have become ineligible to apply for the said post of DGM. They have also submitted that the comparison of the applicants between BSNL and other PSUs is misconceived as the former is a big organization with functional and service requirement, which is not similar in nature as in other PSUs. They have also stated that all the PSUs have different organizational hierarchy with different recruitment rules and they offer different avenues of promotion to their officers and staff which are not comparable. As held by the Madras Bench of the Tribunal, the BSNL and MTNL are having separate organizations and separate service regulations, both are not comparable. Therefore, the applicants cannot say that they should also get the same promotional avenues and pay scales which are applicable to the employees in the MTNL.
11. In view of the above position, we do not find any merit in this O.A. and it is dismissed accordingly. There shall be no order as to costs.
( Shailendra Pandey) ( G. George Paracken ) Member (A) Member (J) SRD