Central Administrative Tribunal - Allahabad
Sat Pal Singh Kashyap S/O Shri Kaboola ... vs Union Of India Through Secretary on 3 May, 2013
Reserved on 25.04.2013
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH,
ALLAHABAD
Transfer Application No. 01 of 2012
(Writ Petition No. 38925 of 2005)
Allahabad this the, 03rd day of _May, 2013
Honble Mr. Justice S.S. Tiwari, Sr. J.M./HOD
Honble Ms. Jayati Chandra, Member (A)
Sat Pal Singh Kashyap s/o Shri Kaboola Singh, r/o Village Sudhiyana Post Office Kulasara Greater Noida, Distt. Gautam Buddah Nagar.
Applicant
By Advocates: Sri Neeraj Dwivedi
Sri P.K. Dwivedi
Versus
1. Union of India through Secretary, Ministry of Communication, Department of Telecommunication, New Delhi/Chief Managing Director, Bharat Sanchar Nigam Ltd., New Delhi.
2. Chief General Manager Telecommunication (West), U.P. Division, Dehradun.
3. General Manager Bharat Sanchar Nigam Limited, Noida District Gautam Buddah Nagar.
4. Assistant General Manager (Admn) in the office of G.M.T.D., Bharat Sanchar Nigam Limited, Noida, G.B. Nagar.
5. Sub Division Officer Phones, Tilpatta Greater Noida.
Respondents
By Advocate: Sri K.N. Mishra
O R D E R
By Honble Mr. Justice S.S. Tiwari, Sr. J.M./HOD Initially this Writ Petition was filed before the Honble High Court of Judicature at Allahabad by the petitioner Sat Pal Singh Kashyap. Subsequently, by Order dated 09.12.2011, passed by the Honble Mr. Justice Rakesh Tiwari, this Writ Petition has been transferred to this Tribunal on the ground that the matter in issue is now cognizable by the Central Administrative Tribunal. Accordingly, it has been registered in this Tribunal as T.A. 01 of 2012.
2. The petitioner/applicant has filed the Writ Petition for the following relief(s): -
(1) Issue writ, order or direction in the nature of certiorari calling for the record and to quash the order dated 19.4.05 passed by AGM (A&P) O/o G.M.T.D. Noida, G.B. Nagar, Annexure-8 of the writ petition.
(2) Issue writ, order or direction in the nature of mandamus commanding the respondents to pay the entire arrears of salary and further direct the respondents to pay the monthly salary of petitioner months to the monthly in future for the post of Sr. TOA due to the petitioner.
(3) Issue writ, order or direction in the nature of mandamus commanding the Respondents not to interfere in the functioning of petitioner as Senior T.O.A. (G) in the office S.D.O. Phones Tilpatta, Greater Noida, G.B. Nagar.
(4) Issue any other writ order or direction which this Honble Court may deem fit and proper in the facts and circumstances of the case.
(5) Award the cost of the writ petition to the petitioner.
3. The facts, in brief, are as follows: -
That the Department of Telecommunication advertised the vacancies for the post of T.S.M. (Temporary Status Mazdoor) in the year 1989. In pursuance of that advertisement the applicant applied for the said post, and he was selected and appointed on the said post on 01.10.1989. He joined as a Class IV employee in the department of the respondents. He was subsequently regularised on 21.07.1993 and got the status of regular Mazdoor, and was posted as Wireman (W/M). As per short chronology of events, he had been promoted as Phone Mechanic on 31.03.1997 but claims entitlement from an earlier date. The S.D.O. (Phones) in Greater Noida by his letter dated 05.01.2002 directed the subordinate authorities, in pursuance of letter dated 01.01.2002 issued by the G.M.T.D., Gautam Buddha Nagar, Noida, to relieve the applicant for training for the post of Senior Telecom Operating Assistant to the Director (Training) L.T.T.C. Campus, Ghaziabad. The Sub Divisional Officer (Phones), Greater Noida further directed the sub-ordinate authorities to relieve the employee who had succeeded in Written Test and had completed four months training, and further direction was given to the applicant to go for further training of two weeks, which was to be held between 17.06.2002 to 28.06.2002. In compliance of the aforesaid direction, the applicant went for training and completed the same. He was placed at serial No. 3 in the list, so prepared.
4. The Departmental Promotion Committee (hereinafter referred to as D.P.C.) considered the character roll of the eligible employees for promotion to the post of Senior TOA (G) and the applicant was placed at serial No. 7 in the list recommended by the D.P.C. for promotion. The applicant is Intermediate passed having I.T.I. Diploma in Electrical, hence he is forming part of walk in Group and entitled for appearing in Senior Telecom Operating Assistant. In pursuance of the directions of D.P.C., the Assistant General Manager O/o G.M.T.D., Noida promoted the applicant on the post of Senior TOA (G), and informed all the concerned authorities accordingly. The applicant joined on the said post on 02.02.2005 and since then continuously working on the post of Senior TOA (G).
5. To the utter surprise of the applicant, the A.G.M. (A & P) [O/o G.M.T.D., Noida] issued a letter dated 19.04.2005 reverting the applicant back to his earlier post and cancelled the promotion order of applicant, and directed the applicant to join on the post of Phone Mechanic. This order of the A.G.M. is arbitrary and illegal as the applicant fulfilled all the eligibility conditions for being appointed on the post of Senior TOA (G). The authorities have wrongly mentioned that the applicant has not completed five years service as Phone Mechanic. Several persons, junior to the applicant, have been promoted on the post of Senior TOA (G) but, he has wrongly been reverted back. The applicant made several representations and also contacted the respondents authorities but, they have not heard his request. The applicant has been reverted back without proper opportunity of hearing and without obtaining prior approval of the D.P.C. The applicant was promoted on the post of Phone Mechanic on 27.05.1996 and not w.e.f. 31.03.1997, as alleged by the respondents. Since the respondents did not consider his representations, he filed the Writ Petition before the Honble High Court mainly on the grounds that the act of the respondents in reverting him back is with malafide intention and hence their act is illegal, arbitrary and bad in law. His date of promotion as Phone Mechanic has wrongly been alleged as 31.03.1997. Before reverting him back, no inquiry was conducted nor any opportunity of hearing was given to him.
6. The respondents contested the Petition, and filed the Counter Affidavit contending that as per letter No. 252-1/91-STN (PL), Govt. of India, Ministry of Communication, Department of Telecommunications dated 27.04.1994, the eligibility condition for walking group examination for Senior TOA (G) was only for TOA, who possessed 10+2 standard qualification or equivalent to it but, Shri Sat Pal Singh Kashyap applicant was not the TOA so he did not qualify for walking group examination. He appeared in D.P.C. held on 26.05.2001 for the post of Senior TOA (G). Due to wrong information given by him deliberately in his application that he was working as a Phone Mechanic since 27.05.1996 whereas he was appointed as Phone Mechanic w.e.f. 31.03.1997 vide G.M.T.D., Ghaziabad No. GMT/GZB/E-31/Rectt./PM/1997/36 dated 28.04.1997 and thus he was not completing five years service as Phone Mechanic which was an eligibility condition for appearing in the Departmental examination for Senior TOA (G) vide DOT No. 252-1/91-STN (Pt.), Government of India, Ministry of Communication, Department of Telecommunication dated 27.04.1994. The D.P.C. recommended the case of applicant from Phone Mechanic to Senior TOA (G) seeing the record of training and last five years confidential record. While reviewing the case, on complaint by employees, it came to the notice that the applicant was not eligible to appear in the examination of Senior TOA (G) held on 25.05.2001 hence, his case was examined by the G.M.T.D., Noida who found that the petitioner gave wrong information in his application stating that he was working as Phone Mechanic since 27.05.1996 while his actual date was 31.03.1997. The applicant was fully aware of this fact because he took the payment of `400/- on 11.04.1997 as one time incentive after six months of TM training due to not being promoted as TM. Accordingly, his candidature was cancelled by the G.M.T.D., Noida, and he was reverted back on the post of Telephone Mechanic with immediate effect. The applicant has got no case and the Writ Petition/Transfer Application deserves to be dismissed.
7. The applicant has filed the Rejoinder Affidavit mainly reiterating the stands taken by him in the Writ Petition (Transfer Application) earlier.
8. The applicant has placed reliance on documentary evidence which is annexure Nos. 1 to annexure Nos. 9, on record. Annexure RA-1 has also been filed by the applicant along with the Rejoinder Affidavit.
9. On the other hand, the respondents have also filed documentary evidence, which is annexure Nos. CA-1 to annexure Nos. CA-4. The documentary evidence, filed by the parties, will be referred to at the appropriate stage according to its relevance.
10. Heard the learned counsel for the parties and perused the documents on record.
11. The main grievance of the applicant in this case has been that he completed the training for the post of Senior TOA (G) and he was also appointed on the said post but, subsequently he has been reverted back without any opportunity of hearing and without conducting any inquiry before reverting him. It is also contended by the applicants Advocate that he was promoted on the post of Telephone Mechanic on 27.05.1996 and, thus, he was eligible to undergo the training for the post of Senior TOA (G) and was also entitled for promotion on the said post and he was rightly promoted on the said post but wrongly reverted back. He has filed the copies of the orders of the departmental authorities by which he was sent for training and by which he was placed in the panel for promotion and also copy of the order by which he was directed to join on the said post. He has also filed copy of a document countersigned by the Accounts Officer (Cash) in which his date of entry in the present cadre has been shown as 27.05.1996. On the strength of these papers, it has been contended by the learned counsel for the applicant that he has wrongly been reverted back. On the other hand, it has been contended by learned counsel for the respondents that the applicant has deliberately concealed the actual date of joining on the post of Telephone Mechanic and wrongly mentioned the date of joining as 27.05.1996. There is no authentic documentary evidence on record to support this contention of the applicant that he was working on the post of Telephone Mechanic w.e.f. 31.03.1997. The respondents have placed reliance on annexure CA-2 and annexure CA-3 filed along with the Counter Affidavit, which revealed the date of joining of the applicant as Telephone Mechanic as 31.03.1997, and if this date is considered to be correct date of his appointment as Telephone Mechanic, he has not completed the eligibility period of five years as Telephone Mechanic before he appeared before the Departmental Promotion Committee examination held on 26.05.2001. The applicants counsel could not show any documents on record to the effect that the applicant had actually completed five years service as Telephone Mechanic before 26.05.2001. It is also worth to mention that the relevant rules containing the eligibility conditions for appearing in the departmental competitive examination for the post of Senior TOA (G) has not been said to be incorrect. Both the parties have filed copies of relevant rules and five years service as Telephone Mechanic has been mentioned in those records at the relevant place as an eligibility condition. A perusal of the order, cancelling the candidature of applicant, which has been filed by the applicant as annexure A-8 on record, shows that Shri Sat Pal Singh Kashyap (applicant) was promoted as Telephone Mechanic w.e.f. 31.03.1997 as per G.M.T.D., Ghaziabads letter No. GMT/GZB/E-31/Rectt./PM/1997/36 dated 28.04.1997 and, thus, the applicant did not complete five years service as Telephone Mechanic, which was the eligibility condition for appearing in qualifying examination for Senior TOA (G), held on 26.05.2001, and consequently his candidature for above noted examination was cancelled. It is also mentioned in the above annexure that the applicant also took payment of `400/- on 11.04.1997 as one time incentive after six months of Phone Mechanic training due to not being posted as Phone Mechanic and, as such, he was well aware of facts and status as on 27.04.2001 when he applied for the examination. This paper has been filed by the applicant himself on record and no documentary evidence in rebuttal of this paper has been filed by the applicant. It is also relevant to mention here that if the applicant had been working on the post of Phone Mechanic since 27.05.1996, he could have easily filed the relevant documents to prove this fact but, he has not filed any such paper on record. He has also not filed any documentary evidence nor there is any averment in the Writ Petition/ Transfer Application to the effect that any relaxation was available to the applicant for counting his services as Phone Mechanic or there was any concession granted to him for appearing in the aforesaid examination.
12. In view of the above facts, circumstances and discussion made above, we are of the view that the applicant has got no case and the T.A. deserves to be dismissed. Accordingly, the T.A. is dismissed. No order as to costs.
(Ms. Jayati Chandra) [Justice S.S. Tiwari]
Member-A Member-J
/M.M/
??
??
??
??
9