Supreme Court - Daily Orders
B.S.N.L. vs S.Sadasivan on 12 August, 2014
Bench: Kurian Joseph, Rohinton Fali Nariman
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7830 OF 2014
(Arising out of SLP(C) No.39932 of 2012)
BHARAT SANCHAR NIGAM LIMITED & ORS. APPELLANT(S)
VERSUS
S.K. DUBEY & ORS. RESPONDENT(S)
O R D E R
Leave granted.
2. This appeal by special leave is directed
against the order of the Central Administrative
Tribunal, Jabalpur, whereby the original application
filed by the respondents herein was allowed and the
direction has been given to the present appellants
(respondent therein) to assign the notional date of
promotion as Sub Divisional Engineers (SDEs) with
consequential benefits such as counting of experience
for further promotions, annual increments etc. to the
original applicants with effect from 23.01.2002.
Signature Not Verified
Digitally signed by
NEETU KHAJURIA
3. The order passed by the Central
Date: 2014.08.30
13:28:20 IST
Reason:
Administrative Tribunal cannot be sustained for more
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than one reason. In the first place, there is no rule
with regard to the subject service which gives
benefit of assigning the notional date of promotion
with retrospective effect. The present respondents
were employees of the Department of
Telecommunications, Government of India and were
working as Junior Telecom Officers prior to 1996. In
exercise of the powers conferred by the proviso to
Article 309 of the Constitution of India, the
Telecommunications Engineering Services (Group 'B')
Recruitment Rules, 1996 were made with effect from
22.07.1996. Inter alia, these rules provide for method
of recruitment, age limit and other qualifications for
the recruitment by way of promotion to the post of TES
Group 'B'.
4. As per these Rules, 75% promotion is to be
made on the basis of seniority-cum-fitness from
amongst Junior Telecom Officers with three years
regular service in the Grade and 25% is to be promoted
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on the basis of Departmental Competitive Examination
from Junior Telecom Officers with three years
r10egular service in the Grade. The crucial date for
determining the eligibility is 1st July of the year to
which the vacancy pertains. 1996 Recruitment Rules do
not provide for ROTA nor does it provide for holding
Departmental Competitive Examination for the vacancies
every year in contra-distinction to the earlier Rules
of 1981 entitled Telegraph Engineering Service (Group
'B' Posts) Recruitment Rules, 1981. 1981 Rules, inter
alia, had a provision that inter se seniority of the
officials who have qualified in the Departmental
Qualifying Examination shall be in the ratio of 2:1
starting with the officers selected by the method of
selection by Departmental Promotion Committee on the
basis of Departmental Qualifying Examination. It also
provided that there shall be normally one examination
consisting of two parts called Qualifying-cum-
Competitive Examination for promotion to the service
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which shall be held at least once in a calendar year.
The ROTA rule as well as holding the examination at
least once in a calendar year which were provided in
the 1981 Rules are conspicuously absent in the 1996
Rules. The validity of the 1996 Rules has not been put
in issue by any one.
5. Secondly, it is pertinent to notice that with
effect from 1.10.2000, the present appellant, Bharat
Sanchar Nigam Limited (for short 'B.S.N.L.'), came
into existence. The Telecommunication Department was
bifurcated and the telecommunication services were
transferred to the appellant-company. B.S.N.L. in 2002
framed Recruitment Rules of the Sub Divisional
Engineers (Telecom), which came into effect on
1.3.2002. Rule 8 of the 2002 Rules has not saved 1996
Rules, save and except reservation, relaxation of age
limit and concessions required to be provided for the
Scheduled Castes and Scheduled Tribes, other Backward
Classes, Ex-service men and other special categories
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of persons. In the absence of any rule, either in
1996 Rules or in 2002 Rules, providing for assignment
of promotion on notional basis, the view taken by the
Central Administrative Tribunal is not correct.
6. The Tribunal relied upon the decision of this
Court in Union of India and Another v. J.
Santhanakrishnan and Others, (2007) 15 SCC 694, which
has no application in the present fact situation.
Santhanakrishnan’s case (supra) relates to the 1981
Rules which as noted above provided for ROTA as well
as holding the examination at least once in a calendar
year. It was in that situation that this Court
approved the view of Central Administrative Tribunal
at Madras giving the notional date of promotion. The
1996 Rules and 2002 Rules being substantially and
significantly different from the 1981 Rules, the
decision of this Court in Santhanakrishnan has no
application at all.
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7. Moreover, it is well settled principle in
service jurisprudence that a person appointed on
promotion shall not get seniority in earlier year but
shall get a seniority of the year in which his/her
appointment is made. In the absence of any express
provision in the rules, no promotion or seniority can
be granted from a retrospective date when the employee
has not been born in the cadre. It is common ground
that 1996 Rules or 2002 Rules have nothing to do with
inter se seniority between promotees of 75% quota
based on seniority-cum-fitness and 25% promotion on
the basis of Departmental Competitive Examination.
8. In view the above, it is held that the view
of the Central Administrative Tribunal, Bangalore
Bench in original application No.181 of 2009 decided
on 26.04.2010 and the decision of the Karnataka High
Court dated 21.04.2011 affirming the decision of the
Tribunal dated 26.04.2010 are not correct view and do
not lay down the correct legal position. Since the
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special leave petition from that judgment was
dismissed by this Court on 25.08.2011 and a petition
seeking review of that order has also been dismissed,
the benefit of notional promotion given to 124
employees with effect from 23.01.2002 remains
unaffected, but the benefit of the above decisions
cannot be given to the present respondents in view of
the legal position explained above.
9. Civil appeal is, accordingly, allowed. The
judgment is set aside. The parties shall bear their
own costs.
........................CJI.
( R.M. LODHA )
..........................J.
( KURIAN JOSEPH )
NEW DELHI; ..........................J.
AUGUST 12, 2014 ( ROHINTON FALI NARIMAN )
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFERRED CASE (CIVIL) NO. OF 2014
(Arising out of T.P.(Civil) No.184 of 2013)
RAJESH BANTA & ORS. PETITIONER(S)
VERSUS
DEWAN CHAND & ORS. RESPONDENT(S)
O R D E R
Transfer petition is allowed. Writ Petition
being C.W.P. No.5133/CAT-2010 titled “Rajesh Banta
and Others v. Central Administrative Tribunal and
Others” is transferred from Punjab and Haryana High
Court to this Court and is treated as Transferred
Case.
2. We have heard Mr. Sunil Kumar, learned
senior counsel for the petitioners.
3. For the reasons stated by us in our order
passed today in Civil Appeal arising out of SLP(C)
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No.39932 of 2012 titled 'Bharat Sanchar Nigam Ltd. &
Ors. vs. S.K. Dubey & Ors.', the transferred case is
liable to be dismissed and is dismissed accordingly.
No costs.
........................CJI.
( R.M. LODHA )
..........................J.
( KURIAN JOSEPH )
NEW DELHI; ..........................J.
AUGUST 12, 2014 ( ROHINTON FALI NARIMAN )
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ITEM NO.1 COURT NO.1 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 35756/2012
(Arising out of impugned final judgment and order dated 21/06/2011 in
WP No. 3725/2011 passed by the High Court Of Bombay)
B.S.N.L.& ORS. Petitioner(s)
VERSUS
S.SADASIVAN & ORS Respondent(s)
(With application for permission to file additional documents, prayer
for interim relief and office report)
WITH
SLP(C) No. 35927-35928/2012
(With Office Report)
SLP(C) No. 35930-35931/2012
(With appln.(s) for intervention and Office Report)
SLP(C) No. 39932/2012
(With appln.(s) for directions, prayer for interim relief and Office
Report)
T.P.(C) No. 184/2013
(With appln.(s) for stay and Office Report)
SLP(C) No. 21416/2013
(With appln.(s) for Office Report)
Date : 12/08/2014 These petitions were called on for hearing today.
CORAM :
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE KURIAN JOSEPH
HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN
For Petitioner(s) Mr. R.D. Agrawala, Sr. Adv.
Mr. Pavan Kumar ,Adv.
Ms. Neelam, Adv.
Mr. P.A. Kulkarni, Adv.
Mr. Khwairakpam Nobin Singh ,Adv.
Mr. Rajshekhar Rao, Adv.
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Ms. Zehra Khan, Adv.
Mr. Senthil Jagadeesan ,Adv.
Mr. Govind Manoharan, Adv.
Mr. Sunil Kumar, Sr. Adv.
Mr. Manish Kumar, Adv.
Mr. Piyush Kaushik, Adv.
Mr. Rakesh K. Sharma, Adv.
For Respondent(s) Mr. S. Sadasivan, In-person
Mr. Jayant Kumar Mehta ,Adv.
Mr. S. Beno Bencigar, Adv.
Mr. P. Rajendran, Adv.
Mr. P. Soma Sundaram ,Adv.
Mr. Sanjay Jain ,Adv.
Mr. Rameshwar Prasad Goyal ,Adv.
Mr. P.A. Kulkurni, Adv.
Mr. Sapam Biswajit, Adv.
Mr. Ashok Kumar Singh ,Adv.
Mr. Adhyaru Yashwant, Sr. Adv.
Ms. Malini Poduval ,Adv.
Ms. Babita Sant, Adv.
Mr. W.A. Quadri, Adv.
Ms. Sadhana Sandhu, Adv.
Mr. D.S. Mahra, Adv.
UPON hearing the counsel the Court made the following
O R D E R
SLP (C) No.35756 OF 2012 In paragraph 3 of the impugned order, the High Court has observed thus :
“The question is : whether the Tribunal was right
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in answering the controversy on the principal that the correct date for reckoning seniority of the respondent ought to be taken as 7th December, 2001 which is his date of joining. In our opinion, there is no infirmity in the said view taken by the Tribunal.” We find no infirmity with the above view taken by the High Court. Special leave petition is, accordingly, dismissed.
SLP(C) 35927-35928 OF 2012 The view taken by the Kerala High Court does not suffer from any legal infirmity. Special leave petitions are, accordingly, dismissed.
SLP(C) 35930-35931 OF 2012 The view taken by the Kerala High Court that a person appointed on promotion shall not get a seniority of an earlier year and that the date of occurrence of vacancy is not relevant for that purpose, in the absence of the rule to the contrary, is a correct view.
The challenge to the legality of the order on merits is misconceived and misplaced. However, insofar as petitioners are concerned, it is clarified that their notional promotion with effect from 23.01.2002 will not be affected in view of Order dated 21.04.2011 passed by the High Court of Karnataka in Writ Petition Nos. 37322
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of 2010 and other connected matters and the said order of the High Court having not been interfered by this Court in Special Leave Petition (Civil) No.22720 of 2011 titled M.D.-cum-Chairman, BSNL and Another v. K.S. Premakumar and Others.
The present special leave petitions are disposed of as above. In view thereof, no separate order needs to be passed on the applications for intervention (I.A. Nos. 108-109). These are disposed of accordingly. SLP(C) No.39932 of 2012
Leave granted.
Civil appeal is allowed in terms of the signed order.
SLP(C) No.21416 OF 2013 The view taken by the Kerala High Court does not suffer from legal infirmity and, accordingly, special leave petition is dismissed.
T.P.(C) No.184 OF 2013 Transfer petition is allowed. Writ Petition being C.W.P. No.5133/CAT-2010 titled “Rajesh Banta and Others v. Central Administrative Tribunal and Others” is transferred from Punjab and Haryana High Court to this
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Court and is treated as Transferred Case. We have heard Mr. Sunil Kumar, learned senior counsel for the petitioners.
For the reasons stated by us in our order passed today in Civil Appeal arising out of SLP(C) No.39932 of 2012 titled 'Bharat Sanchar Nigam Ltd. & Ors. vs. S.K. Dubey & Ors.', the transferred case is liable to be dismissed and is dismissed accordingly. No costs.
(Neetu Khajuria) (Renu Diwan)
Sr.P.A. Court Master
(Signed orders in C.A. @ SLP(C) No.39932/2012 and T.C. @ T.P.(C) No.184/2013 are placed on the file)