Central Administrative Tribunal - Ernakulam
Sindhu G vs The Chairman And Managing Director on 9 December, 2015
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION NO. 180/00 943/2015
Wednesday this the 9th day of December, 2015
CORAM
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
Sindhu G, aged 42 years, W/o Gireesh
Telecom Technical Assitant (TTA).
Telephone Exchange, Vazhappilly,
Muvattupuzha, Ernakulam District
residing at Telecom Staff Quarters,
Vazhappilly, Muvattupuzha.
. . . . Applicant
[By Advocate Mr. Karol Mathew Sebastian Alancherry)
Versus
1. The Chairman and Managing Director, Bharat Sanchar Nigam Limited,
5th floor, Bahrat Sanchar Bhavan, Janpath, New Delhi.110 001.
2. The Chief General Manager, Telecom, BSNL, Kerala Circle,
Thiruvananthapuram.,695001.
. . . . Respondents
(By Advocate Mr. PMM Najeeb Khan)
This application having been finally heard on 04.12.2015, the
Tribunal on 09.12.2015 delivered the following:
ORDER
Per: Justice N.K.Balakrishnan, Judicial Member This OA has been filed by a Telecom Technical Assistant for a declaration that the stipulation of six years in the proviso (b) to para I (ii) relating to the transfer/promotion under 35% quota under column 12 to the schedule to the Annexure A1 Recruitment Rules has no relevancy for writing the test or examination for promotion. She seeks a writ of mandamus to be given to the respondents directing them to promote and post the applicant as JTO forthwith.
2. We have heard the counsel for the applicant and Shri PMM Najeeb Khan who took notice for the respondents. The learned counsel for the respondents submits that this OA is liable to be dismissed at the threshold itself as the issue involved in this OA has already been decided against the applicant in OA. 47/2000, which was confirmed by the Hon'ble High Court in OP 10855/2003(S) dated 4.4.2003. The applicant challenges Annexure A1 notification dated 8.2.1996. The learned counsel for applicant has not produced a copy of the order in OA.47/2000. The applicant is well aware of the fact that she had challenged the selection process done by the respondents pursuant to Annexure A1 notification which was done based on Annexure A1 notification of 1996. It was contended by the applicant that, in the earlier round of litigation, her request for appearing in the screening test for promotion to the post of JTO was wrongly rejected by the Department. That was the reason she approached this Tribunal. Her Original Application was dismissed by this Tribunal as per order dated 29.8.2002. As said earlier though she challenged the order passed by this Tribunal in OA. 47/2000, she met with the same fate before the High Court as well. Since it was the selection process and the order of rejection passed by the Department in 2002, was challenged and since her claim was rejected by the Tribunal and also by the High Court she cannot re-agitate the same issue by filing another application. Though now the applicant contends that Annexure A1 notification which prescribes six years of regular service as a condition for transfer/promotion under 35% quota, it was found that she had not completed the prescribed period of service and that was the reason that claim was rejected then. Now the applicant contends that there was a misreading of the relevant rules and that her application was wrongly rejected. That was the very foundation of her case in OA. 47/2000. By introducing certain words or expressions or crafty innovations the applicant cannot contend that there is a new cause of action to challenge the selection done in 2002 (as per which the claim was rejected) after about 12 years. The main grievance of the applicant seems to be that subsequently the Recruitment Rules was amended and as she does not have the required educational qualification, she is totally denied of the opportunity to get promotion. It is for the employer to amend the Recruitment Rules to get the most qualified and talented persons to a particular post. It falls within the domain of the employer to decide the matters like this. The Tribunal cannot encroach into those aspects and direct the employer as to what should be the essential qualification for appointment or promotion, as the case may be. It is made clear in Annexure A3 judgment that the fact that the applicant had not completed the requisite period of service even by the date of the test was not challenged at all. In fact that was conceded to before the High Court. Therefore, it is fallacious to contend that respondent/department had misread the rule. The Tribunal after inquiry found that the claim made by applicant is unsustainable. That was confirmed by the High Court.
3. Since the applicant did not produce the copy of the order in the previous original application, the registry was directed to make available the file. The number of the OA mentioned in the High Court judgment in Annexure A3 was OA 47/2002 but the actual number was OA 47/2000. OA 47/2000 and three other O.As were heard together. The matter was referred to the Full Bench vide order dated 30.4.2002. The question of law referred to the Full Bench was: :
'The 'six years of regular service' referred to in the Recruitment Rules to be put in by the Phone Inspectors/Auto Exchange Assistants/Transmission Assistants/Wireless Operators who possess High/School/Matric qualification to be called for the qualifying screening test under 35% quota would be the total service as interpreted by the Principal Bench this Tribunal in OA No. 193/99 or it should be 6 years in the cadre of TTA and other eligible cadres as interpreted by the Hyderabad Bench of this Tribunal in OA No.1754/98.' The Full Bench after detailed hearing of all the parties including the counsel appearing for all the applicants ultimately answered the legal question as under:-
'Thus, a candidate aspiring to take part in the screening test for promotion to JTO should:
(i) Belong to the cadre of PI/AEA/WO/TA/.TTA.
(ii)Have High School/Matriculation qualification, and
(iii)Have completed 6 years of regular service in the department.
In the light of the above discussion, we answer the legal question referred to us as follows:
The PI/AEA/WO/TA/TTA who possess the High Court/Matriculation qualification should have completed six years of regular service in the department in order to be eligible to appear for the screening test under the 35% quota as per the relevant recruitment rules.' Thereafter the O.As were placed before the Division Bench for disposal. OA 47/2000 was separately considered by the Division Bench and following the decision rendered by the Full Bench on the question referred, it was held by the DB that the criteria stated therein is length of service and educational qualifications and that the applicant is not entitled to get the reliefs sought for in the Original Application since she did not have the length of service. The applicant in fact suppressed all these facts and contends that in the earlier round of litigation all these matters were not brought before the Tribunal or before the High Court. The counsel for the respondents would submit that it is a clear abuse of the process of the court. As stated earlier the decision rendered by this Tribunal in OA 47/2000 was confirmed by the High Court and dismissed the OP (CAT) filed by the applicant.
4. Courts or Tribunal can neither prescribe qualification nor encroach upon the power of the authority concerned so long as qualifications prescribed are relevant and shall have a nexus to the functions and duties of the officer to which the selection is to be made. Causing amendment of Recruitment Rules to suit the needs of the hour falls within the domain of the employer. Therefore, fixing or changing the eligibility criteria does not call for intervention at the hands of this Tribunal. See the decision in Chandigarh Administration through the Director, Public Instructions (Colleges), Chandigarh Vs. Usha Kheterpal Waie and others - (2011) 9 SCC 645.
5. If any point was omitted to be taken up in OA 47/2000, which might and ought to have been raised and agitated in that OA, she cannot re-agitate the same by filing another application now, after about 12 (twelve) years since that plea must be held to be barred by res judicata; at any rate by the principles of constructive res judicata.
6. For reasons afore-stated, we are not inclined to admit this OA. It is accordingly dismissed. No order as to costs..
(P.Gopinath) (N.K. Balakrishnan) Administrative Member Judicial Member kspps