Central Administrative Tribunal - Delhi
Alok Namdev vs Bharat Sanchar Nigam Limited on 1 November, 2023
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Item No.24/ C-3 OA No. 1448/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 1448/2022
M.A. No. 3457/2023
Reserved on 27.09.2023
Pronounced on 01.11.2023
Hon'ble Mrs. Pratima K Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
1. Name: Alok Namdev Age: 37 years
Address: In front of Banjar Club, Civil Line Mandla,
Madhya Pradesh-481661 Designation: Junior
Engineer (JE)
2. Name: Koneti Naga Durganna
Age: 33 years
Address: 38 Kottapalli, Prodduturu, M V Ramana
Reddy Nagar, Cuddapah
Andhra Pradesh-516360
Designation: Junior Engineer (JE)
3. Name: Gaurav Kumar Pandey
Age: 34 years
Address: House No. 885, Shyamal County, Waghodia
Road, Near Gayatri
Temple, Vadodara, Gujarat-390019
Designation: Junior Engineer (JE)
4. Name: Bhagirath Meena
Age: 33 years
Address: Tila No. 1, Delhi Bypass, Jawar Naga
District., Jaipur, Rajasthan- 302004
Designation: Junior Engineer (JE)
5. Name: Pushap Raj
Age: 33 years
Address: Village Patyar, P/O Maloh,
Tehsil Sundernagar, District Mandi,
Himachal Pradesh-175018
Designation: Junior Engineer (JE)
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Item No.24/ C-3 OA No. 1448/2022
6. Name: Sanjoy Das
Age: 40 years
Address: Military Bhavan, 12 Ma Sarada Road,
Barasat, North 24 Parganas, West Bengal-700124,
Designation: Junior Engineer (JE)
7. Name: Priya Ranjan Kumar
Age: 36 years
Address: Qtr No. C/10, Uttarpara Telephone Exchange
Compound, 7A Rajmohan Road, Uttarpara, Hooghly,
West Bengal-712258
Designation: Junior Engineer (JE)
...Applicants
(By Advocate : Mr. Arun Bhardwaj, Sr. Advocate assisted
by Mr. Rajesh Rai and Mr. Rohan Rai)
Versus
1. Bharat Sanchar Nigam Limited
Through its Chairman & Managing Director
(A Govt. of India enterprise)
Represented by the Chairman
And Managing Director, BSNL
2. DGM (Recruitment) BSNL CO
Recruitment Branch, BSNL Corporate Office, Room
no: 215, 2nd Floor, Eastern Court, Janpath,
New Delhi-110001
3. Sr. GM (Establishment)
BSNL Corporate Office, Room no: 215, 2nd Floor
Eastern Court,
Janpath, New Delhi-110001
...Respondents
(By Advocate: Mr. K.K. Rai, Sr. Advocate assisted by
Mr. Anshul Rai, Mr. Piyush Sharma, Mr. Shivam
Dubey, Ms. Medha Tondon and Mr. Sreosh
Chatterjee)
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Item No.24/ C-3 OA No. 1448/2022
ORDER
By Hon'ble Dr. Chhabilendra Roul, Member (A):-
The instant OA has been filed by the applicants under Section 19 of the Administrative Tribunals Act 1985, seeking the following relief(s):-
"a. Quash the impugned Examination Notification dated 21.04.2022 for Limited Internal Competitive Exam (LICE) filling vacancies upto 31.12.2021 for Vacancy Year 2021.
b. Direct the Respondents to conduct Limited Internal Competitive Exam (LICE) for Vacancy Years 2018, 2019 and 2020, by correctly calculating the vacancies without giving retrospective effect for abolition of vacancies, after the expiry of reasonable period of time from the date of the disposal of this application. c. Direct the respondent to stay the conduct of [JTO(T)] - Junior Telecom- Officer (Telecom) Limited Internal Competitive Exam (LICE) for Vacancy Year 2021 till LICE Examinations are held for Vacancy Years 2018, 2019, and 2020. d. Pass any other order which the Hon'ble Tribunal deems fit in the interest of justice."
2. Brief facts of the case are that the applicants who are serving as Junior Engineers (JE-Non Executive) in different Circles are aggrieved by conducting of further examination for promotion to the Group C employees to the grade of Junior Telecom Officer (Telecom) [JTO(T)]. To this effect the respondents have issued a notification dated 21.04.2022 4 Item No.24/ C-3 OA No. 1448/2022 calling applications from eligible employees giving details and schedules of the said examination. It is the claim of the applicants that the said examination is contrary to the statutory provisions governing the Limited Internal Competitive Examination (LICE) promotions. Accordingly, they have preferred the present OA seeking the aforementioned reliefs.
3. At the outset, learned counsel for the applicants submits that he is not pressing the relief 8(i) of the prayer clause reproduced herein above.
4. In support of the applicants‟ claim, learned counsel for the applicants argues that the LICE for the years 2018-2019 and 2020 has not been held in terms of the Recruitment Rules for the post of JTO(T) and the same is required to be processed year wise in the nature of occurring of vacancies for each year separately. He states that in the present examination proposed to be conducted, the respondents have since clubbed the vacancies for the last four years altogether; it is in violation of the statutory provisions of the Rules. Learned counsel for the applicants draws attention to the JTO (Telecom) Recruitment Rules-2014. Relevant clause 7 and 13 thereof read as under:-
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Item No.24/ C-3 OA No. 1448/2022 "7. " July of the vacancy year (financial year) shall be the cut-off date for determining the eligibility criteria regarding age/educational qualifications/length of residency period for appearing in LICE for promotion to JTO (T) Official on selection in the LICE will be allotted a vacancy year against which he/she has been selected based on his rank and eligibility.
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13. The vacancies falling vacant under Absoption quota, mentioned in column „11‟ due to retirement/resignation/VR/death/promotion etc will automatically stand diverted to internal promotional KICE quota as indicated in Column „11‟."
5. Learned counsel for the applicants states that in violation of the statutory instructions, the respondents have clubbed the vacancies qua the years 2018, 2019 and 2020 whereby the applicants have been deprived of three opportunities which they could have availed as against one. The respondents have incorrectly clubbed the vacancies together and accordingly deprived the applicants from the chances to appear in the examination.
6. Learned counsel for applicants further draws strength from the judgment of the Guwahati Bench of this Tribunal in OA No. 43/2015. Particularly he refers to paras 8 and 9 of the said judgment, which are reproduced as under:-
"We have noticed that vide advertisement dated 13 11 2014 even though year wise vacancy position has been notified, a single examination for all the four 6 Item No.24/ C-3 OA No. 1448/2022 years is proposed to be held on 15.02.2015. It is noted that the several Benches of this Tribunal like the Chandigarh Bench has already directed the BSNL authorities under the jurisdiction of Chandigarh Bench to hold independent examination for each vacancy year. The order of the Chandigarh Bench was challenged before the Hon‟ble Himachal Pradesh High Court wherein vide order dated 08.12.2011 passed the orders, relevant portion of which has already been quoted at para 5 above. BSNL authorities, pursuant to advertisement dated 03.01.2012, had already held the examination on 04.03.2012 for promotion of JTO(T) to SDE (T) for the vacancy years 2006-07, 2007-08, 2008-09 and 2009-10. Result of such examination has been published and accordingly, promotions were made.
9. Now, again the BSNL authorities is going to hold one single examination for the vacancy years 2010-11. 2011-12, 2012-13 and 2013-14. The question comes before us how the BSNL authorities will segregate the vacancies by holding one examination for four vacancy years. Persons who have not qualified for the vacancy years 2010-11, 2011-12 but qualified for 2013-14 will be allowed to sit in the examination along with persons who are qualified for all the four vacancy years. Moreover, by clubbing the vacancies for all four years into O LDCE, applicants all of whom have become eligible by 2010-2011 itself, will have only one opportunity ass the LDCE instead of four opportunities that they are entitled to under the law. In other words. applicants will lose three chances to pass the LDCE which is violation of Article 16 of the Constitution of India. The Hon‟ble Himachal Pradesh High Court vide its order dated 08.12.2011 while permitting the BSNL to conduct one examination for all the four vacancy years 2006-07, 2007-08, 2008-09 and 2009-10 directed the BSNL to conduct separate examination for each vacancy year from 2010-11. The direction to hold separate examination for each vacancy year from 2010-11 seems to have been disregarded by the BSNL authorities while again intending to hold one examination for the vacancy years 2010-11, 2011-12, 2012-13 and 2013-14 vide impugned advertisement dated 13.11.2014. Therefore, the action of the 7 Item No.24/ C-3 OA No. 1448/2022 respondents to hold one examination by clubbing the vacancies of four years is not at all sustainable. At the same time, we do not want to stall the process initiated by the BSNL Authorities vide advertisement dated 13.11.2014. Accordingly, we declare that the proposed LDCE to be held on 15.02.2015 shall be restricted for the vacancy year 2010-11 and make it clear that only those, who are eligible for having three years continuous experience in the JTO (T) for the vacancy year 2010-11, shall be allowed to sit in the examination to be held on 15.02.2015. For the remaining three vacancy years i.e., 2011-12, 2012-13 and 2013-14, BSNL authorities are directed to hold separate individual examination year wise as directed by the Hon‟ble Himachal Pradesh High Court. The examination scheduled on 15.02.2015 is not interfered with subject to above directions."
7. Learned counsel for applicants also relied upon a judgment passed by the Chandigarh Bench of this Tribunal in OA No. 505/2010 which is being confirmed by the Hon‟ble High Court of Himachal Pradesh, Shimla in C.W.P. No.6264/2011, BSNL and Ors. Vs. Vimal Bhardwaj and Ors.
8. Learned counsel for the applicants further submits that the last examination for the said post was conducted only in the year 2018 and in terms of the list of vacancies as annexed with the counter reply and also provided to us, there are left over vacancies for the year 2018 in spite of the restructuring of the posts. He states that as the issue at stake has already been decided by a Coordinate Bench of this Tribunal at 8 Item No.24/ C-3 OA No. 1448/2022 Chandigarh and upheld by the Hon‟ble High Court, there is no serious cause for the respondents to take deviation from the same. He prays that the issue be decided on the analogy of the said judgment. He states that though the respondents may have been proceeding with the examination 2021, however, the vacancies should have been calculated for the years i.e. 2018, 2019 and 2020. A fresh copy of the chart has been provided and the same is taken on record wherein vacancies have been carried forward.
9. Learned counsel for respondents while opposing the present OA states that the language of the impugned notification was unambiguously clear. He states that there is absolutely no scope for interpretation in the impugned notification as it clearly mentions that the examination has been held only for the vacancy year 2021. He further clarifies that the word „upto for the year 2021‟ refers to the last date of the year i.e. 31.12.2021. He states that the LICE will be pursuant to the notification dated 21.04.2022 for the vacancies from 01.01.2021 to 31.12.2021. He draws attention to para 4, 6 and 7 of the counter reply, which are reproduced hereinbelow:
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Item No.24/ C-3 OA No. 1448/2022 "4. The applicants are contending that the BSNL notifications dated 21.04.2022 for holding JTO(T) LICE-2021 goes against the DOPT guidelines and legal principles in so far as it has clubbed the vacancies in JTO(T) grade for the years 2018, 2019 and 2020. To this extent, they are pleading for segregation of vacancies for the years 2018 and 2019 and 2020 and holding of separate exams for the vacancies for each year. The contention of the applicants is wrong. The vacancies notified vide dated 21.04.2022 specifically belong to the vacancy year 2021 only as per the number post available in BSNL in JTO(T) grade subsequent to the Restructuring exercise approved by BSNL Board whereby nightsizing of the Company has been effected as part of the Revival Plan approved by the Gol.
It is matter of record that BSNL was facing difficult financial conditions to the extent that its losses were widening for some years. Based on the financial performance of the PSU, DOT classified BSNL as "Incipient sick CPSE" in September, 2017 vide DoT OM.No. 103/2017-SU-I dated 05.09.2017. The Department of Public Enterprises (DPE) has issued Guidelines for "Streamlining the mechanism for revival and restructuring of sick/incipient sick and weak Central Public Sector Enterprises: General principles and mechanism of restructuring" vide O.M. No DPE/5(1)/2014-Fin (Part IX) dated 29 10.2015 Department of Telecommunications (DoT) initiated the process for preparation of restructuring/revival plan of BSNL. IIM Ahmedabad was accordingly engaged by DoT to prepare a Revival/ Restructuring plan for BSNL.
xxx xxx xxx
6. So far as present issue for holding of LICE JTO(T) is concerned, it is a part of record that the sanctioned strength of JTO(T) prior to 31.01.2020, ie, the effective date of VRS, was 39067. The working strength of JTO(T) cadre prior to 31 01 2020 was 16599. As a fallout of the VRS Scheme, and GoM mandated abolition of post vacated 10 Item No.24/ C-3 OA No. 1448/2022 through retirement between 01.02.2020 and 31.01.2022, and the Restructuring Plan approved by BSNL Board, the sanctioned post of JTO (T) in BSNL with effect from 1.02.2020 was revised to 11756, as per the Business requirements of BSNL. The working strength against the revised number of sanctioned post was 14733 as on 31.12.2020. Thus, there was over supply of working heads post Restructuring vis-a-vis sanctioned post of JTO (T) in BSNL in 2020 year and hence no vacancy in the said year. Accordingly, it was not feasible to hold any 2022 or JTO (T) for the year 2020.
Subsequently, due to yo 25-64-2074 House Court Delh promotions from JTO to SDE grades, a total 1817 vacancies in JTO(T) grade have been identified in BSNL on pan India basis for the year 2021 and as per JTO(T) RRS 2014, a total 889 vacancies (50% through LICE and 50% DR) have been taken up for promotion through LICE vide impugned notification dated 21.04.2022.
7. The present notification dated 21.04.2022 deals with vacancies in JTO (T) grade specifically for the year 2021. Similarly, in prior years, the Company has held JTO (T) LICE separately for vacancy years 2013-14, 2014-15, 2015-16, 2016-17 and 2017-18 To this extent, the Company following the guidelines of DoPT as well as legal principles under law of the land. As to why the vacancies that may have been available in the year 2018-2019 were not used for LICE, the reasons have been adequately elaborated in the reply to the para 4.10 and 4.11 of the OA above. The abolition of a large number of posts in BSNL through VRS, retirement and Restructuring exercise approved by BSNL Board rule out any utilization of posts that ay have been available in the year 2018-19 and are non-existent now. Given these facts, prayer of applicants for stay of JTO(T) exam for the vacancy year 2021 if considered by the Hon'ble Tribunal, the restructuring exercise initiated by BSNL Board as part of the Revival Plan approved by the GOI is bound to get derailed. Accordingly, it is prayed that the interim relief is liable to be rejected more particularly in view of the 11 Item No.24/ C-3 OA No. 1448/2022 fact that promotional prospects of the applicants are being maintained without any discrimination."
10. Learned counsel for the respondents draws strength from Cabinet Decision vide Office Memorandum dated 29.10.2019 (Annexure R-1) annexed with the counter reply. He also draws strength from Guidelines on Voluntary Retirement Scheme (VRS) Voluntary Separation Scheme (VSS) dated 20.07.2018 (Annexure A-7) and thereafter a communication dated 23.11.2021 of the respondents regarding BSNL Board approval on total Manpower requirement in BSNL (Annexure A-8). He states that in view of the Cabinet decision followed by the VRS Scheme and the manpower assessment by the respondents, the respondents have carried out the said exercise. This being the policy decision, the Tribunal has limited powers to interfere with the same. He relied upon a judgment of the Hon‟ble Alex Court in Civil Appeal Nos. 4679- 80 of 1996 titled P.U. Joshi And Others Versus Accountant General, Ahmedabad and Others. Para 10 of the said judgment reads as under:-
"10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field 12 Item No.24/ C-3 OA No. 1448/2022 of policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."
11. In rejoinder, learned counsel for the applicants states that Cabinet decision followed by the VRS Scheme and restructuring does not anywhere reflect that the vacancies for the year 2018, 2019, 2020 have been abolished or not be filled, as the chart clearly mentioned that the same have been carried forward at the relevant point of time. 13
Item No.24/ C-3 OA No. 1448/2022
12. We have gone through the records of the case thoroughly and heard arguments of both the counsels. 12.1 It is our considered view that the Public Sector Undertaking like BSNL has the prerogative to restructure the organization, to rationalize the number of employees required for the organization after restructuring and also introduce Voluntary Retirement Scheme (VRS). In the instant case, the Union Cabinet has taken decision vide memorandum dated 29.10.2019 regarding restructuring of BSNL including introduction of VRS as well as rationalization of manpower. 12.2 The decision by the Union Cabinet has accepted the proposal of Department of Telecommunications for revival of BSNL and MTNL by reducing employee cost as one of the factors leading to revival of these two Corporations. In view of this, the historical or legacy vacancies prior to restructuring of the BSNL, have no relevance. The present applicants‟ claim for year wise conduct of LICE for promotion has lost its relevance. Once the restructuring of BSNL was effected by the Department of Telecommunications vide memorandum dated 29.10.2019 based on the Cabinet decision of the Union of India, all the previous vacancies pertaining to all the ranks are subsumed with the restructured manpower. 14
Item No.24/ C-3 OA No. 1448/2022 12.3 In this context, we intend to agree with the contention of the learned counsel for the respondents that the ratio of the judgment in P.U. Joshi (supra) is squarely applicable in the instant case. In the said judgment, it has been rightly said that the government servant has no right to claim that the rules governing conditions of service should be forever the same as the one when he entered service and a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.
12.4 Having said that the BSNL and the Department of Telecommunications had the prerogative based on the Union Cabinet decision to restructure BSNL including reduction of manpower pertaining to various ranks, we agree that the year wise vacancies prior to such reorganization and rationalization have lost legitimacy. After the reorganization and rationalization of manpower, the organization has created new vacancies on account of VSS subsequent to the reorganization, retirement, promotion etc. Accordingly, the ratio of the order of a Coordinate Bench of this Tribunal in OA 43/2015 is not applicable to the instant case because the facts and circumstances in the present case are clearly 15 Item No.24/ C-3 OA No. 1448/2022 distinguishable from the facts and circumstances obtaining in the said judgment. Similarly, the ratio of the order of Chandigarh Bench of this Tribunal in OA 505/2010 as well as the judgment of the Hon‟ble High Court of Himachal Pradesh at Shimla in C.W.P. No.6264/2011 are also not applicable in the instant case.
13. In view of the above, we do not agree with the contention of the learned counsel for the applicant that the vacancies for the years 2018, 2019 and 2020 prior to restructuring of BSNL have not been abolished and accordingly the respondents should conduct year wise LICE for those years. We agree with the contention of the learned counsel for the respondents that the vacancies notified as per the examination notice dated 21.04.2022 pertain to the year 2021.
14. Accordingly, the OA lacks merit and hence is dismissed. Pending MA, if any, also stands disposed of accordingly. No costs.
(Dr. Chhabilendra Roul) (Pratima K Gupta)
Member (A) Member (J)
/daya/