MADHUMOHAN H Vs. BHARATH SANCHAR NIGAM LTD

JUDGEMENT

(1.) The puzzling question for resolution in these original petitions is the fixation of inter se seniority between directly recruited Junior Telecom Officers (JTOs) and promotees to that post, in Bharat Sanchar Nigam Limited (for short 'BSNL') . The unsuccessful applicants in O.A.Nos.185 & 1081 of 2013 and 553 of 2015 who are directly recruited JTOs, have filed the captioned original petitions challenging the orders passed in their respective Original Applications moved before the Central Administrative Tribunal, Ernakulam Bench. O.A.Nos.185 and 1081 of 2013 were dismissed by a common order dated 16.1.2015 and evidently, order of dismissal was passed in O.A.No.553 of 2015 referring to the said common order dated 16.1.2015 and also the pendency of Original Petitions filed against it before this Court. Applicants 5, 2 and 4 in O.A.No.185 of 2013 have filed O.P.(CAT) .No.45 of 2015, applicants in O.A.No.1081 of 2013 have filed O.P.(CAT) .No.25 of 2015 and applicants in O.A.No.553 of 2015 have filed O.P. (CAT) .No.126 of 2015. In the aforesaid circumstances, the captioned original petitions were heard jointly and they are being disposed of by this common judgment. Hereafter in this judgment, for convenient sake, the documents are referred to in the order they are set out in O.P. (CAT) No.126 of 2015 arising from O.A.No.553 of 2015, unless otherwise specifically mentioned. In this context, it is also relevant to note that in the said O.P. the true copy of O.A.No.185 of 2013 along with Annexures, the reply statement filed therein by the official respondents along with Annexures, the reply statement filed by respondents 4 and 6 to 15 and such other documents are also produced along with the copy of O.A.No.553 of 2015.

(2.) All the petitioners are JTOs in BSNL and they were directly recruited as such, from open market on different dates in different years, spanning from 2001 to 2010. Applicants in O.A.Nos. 185 and 1081 of 2013 are direct recruits of the years 2001-2002 and they challenged Annexure-A7 of Ext.P1, the provisional All India Eligibility List of JTOs circulated vide Lr.No.2-18/2007-Pers.II (Pt.I) dated 11.5.2012, drawn up in respect of different recruitment years specified therein for promotion to the post of Sub Divisional Engineer (SDE) under seniority quota. They are aggrieved by the non-compliance with the Government of India instructions issued by the Department of Personnel & Training (DoPT) as per Annexure-A4 O.M. dated 3.7.1986 and Annexure-A5 O.M. dated 3.3.2008. Annexure-A3 is a circular dated 5.1.2004 issued by the first respondent intimating the parties, addressed thereunder, that pursuant to the revision of percentage quota for departmental candidates and outsider candidates from 35:65 to 50:50 the combined seniority of the JTOs belonging to both categories was also prepared by rotation of vacancies in accordance with the revised percentage viz., 1:1. They were also required to dispose of representations, if any, received against fixation of seniority, accordingly. The method of fixation of seniority of JTOs, based on 1:1 ratio between direct recruits and promotees in the matter of promotion to the post of SDE, has been fixed as per Annexure-A4 O.M. dated 3.7.1986. After considering he consolidated instructions in AnnexureA4 a clarificatory memorandum viz., Annexure-A5 O.M. dated 3.3.2008 was issued by the DoPT, in the matter of determination of seniority. To be precise, their grievance is that in the All India Eligibility list of JTOs circulated vide letter dated 11.5.2012 (Annexure-A7 of Ext.P1) , out of about 10000 JTOs enlisted therein, 7500 are promotees and there are only 2500 direct recruits. They contended that promotee JTOs who joined service later to them had been assigned higher ranks therein. According to them, the All India Cadre seniority list for the purpose of promotion to the post of SDE ought to have been prepared based on the date of joining in the cadre of JTO. In O.A.Nos.185 and 1081 of 2013, besides challenging Annexure-A7 of Ext.P1, they had also challenged Annexure-A1 order dated 7.1201 The said document was produced as Annexure-A13 in O.A.No.1081 of 2013. The said order came to be passed pursuant to an order of the Tribunal in O.A.No.712 of 201 The said applicants preferred representations against Annexure-A7 All India Eligibility List and inaction on such representations constrained them to file O.A.No.712 of 201 The said O.A. was disposed of with a direction to the official respondents to consider those representations on merits and in accordance with law, in the light of the decisions of the Tribunal on the subject matter. It was also directed not to finalise the provisional eligibility list and effect promotions till the disposal of the representations. The representations directed to be disposed of, as per the said order, were rejected as per Annexure-A1 order. It was in the said circumstances that challenge was also made against Annexure-A1, in both the said original applications. They would further contend that based on Annexures-A4 and A5 rotation policy there would be no backlog vacancies for the promotees to be carried forward whereas there are several backlog vacancies to be filled up in the case of external candidates. It was also their contention that the provisional All India Eligibility List of JTOs was prepared without adhering to the order of the Tribunal in Thomas Zachariah v. BSNL (O.A.No.16 of 2009) rendered following the decision of the Chandigarh Bench of the Tribunal in Dewan Chand and others v. Union of India and others (T.A.No.84-11-R-2009 and connected cases) . The decision in O.A.No.16 of 2009 was upheld by this Court as per the judgment in O.P.(CAT) No.175 of 2010, it is submitted. A similar decision rendered by the Bombay Bench of the Tribunal was upheld by the Bombay High Court in BSNL v. Sadasivam (W.P.(C) No.3725 of 2011) , it was further submitted. They also got a further case that the provisional circle level seniority list of Kerala Circle which was earlier quashed by this Court as per judgment in O.P.(CAT) No.421 of 2011 that arose from O.A.No.35 of 2010 (R.Bijoy and others v. Union of India) , has been adopted for drawing the All India Eligibility List. For all these reasons, Annexure-A7 as also Annexure-A1 are illegal and unsustainable, it is contended.

(3.) The official respondents contended that the predecessor of BSNL viz., Department of Telecommunications (DoT) had framed recruitment rules relating the post of JTO in the year 1996 prescribing filling up of 50% of the vacancies by direct recruitment and 50% by promotion. The 50% quota was split up into 35% and 15% and 35% set apart for promotion from Group 'C' feeder cadres like Phone Inspectors/ Auto Exchange Assistants/Wireless operators/Transmission Assistants/Telecom Technical Assistants etc. and 15% was set apart for promotion of departmental candidates through limited departmental competitive examination from Group 'C' employees of the regular establishment working in the Telecom Engineering Branch and having passed High School/Metric examination. Engineering graduates and graduates in Physics and Mathematics were eligible for direct recruitment under JTO Recruitment Rules and as such, persons with such qualifications were given appointment till the amendment of the said Rules, in the year 1999. As per JTO Recruitment Rules, 1999 the provision for recruiting science graduates, was deleted. The qualifications prescribed for direct recruitment were inapplicable for promotion. However, no direct recruitments/promotions had been made under the JTO Recruitment Rules, 1999, it was further stated by the official respondents in their reply affidavit, filed before the Tribunal. On formation of the BSNL with effect from 1.10.2000 it framed JTO Recruitment Rules in 2001 and going by the same, 50% of the posts are to be filled up by direct recruitment and 50% by promotion through Limited Internal Competitive Examination. Out of the 50%, 35% of the said promotion quota was to be filled up by conducting Limited Internal Competitive Examination from internal candidates belonging to Group 'C' below the age of 50 years and the balance 15% was to be filled up from other Group 'C' employees of Telecom Engineering Branch without age restriction based on Limited Internal Competitive Examination. They contended in O.A.Nos.185 and 1081 of 2013 that the applicants therein viz., appellants in O.P.(CAT) Nos.25 & 45, of 2015 were directly recruited by BSNL as per JTO Recruitment Rules, 2001 and being persons borne in the cadre in the year 2002 and afterwards they got no locus standi or authority to question the recruitments made by the DoT. The respondents further contended that irrespective of the source of recruitment viz., direct recruitment or promotion JTOs are to undergo a pre-appointment training before actual appointment. Only those who came out successful in the training would be given appointment. The said training is being conducted in batches in a phased manner according to the accommodation available in the training centres. It is also the contention of the official respondents that seniority of JTOs is to be determined based on the marks obtained in the pre-appointment training and also taking into account the recruitment year. They would further contend thus:-