P K SRIVASTAVA Vs. UNION OF INDIA

JUDGEMENT

(1.) On 21st September, 1984 the petitioner was appointed as Assistant Divisional Engineer Telecom on probation. On 31st December, 2002 the petitioner was transferred from Meerut (U.P.) to Jamshedpur (Jharkhand Circle) on promotion as General Manager. On 15th March, 2005, 59 officers of the telecom services, who were working with Bharat Sanchar Nigam Ltd. transferred to different places throughout the country. The petitioner was at SI. No. 36 therein. He was transferred from Jamshedpur to Allahabad whereas respondent no. 4 was transferred from Allahabad to Katihar (Bihai Circle) . On 18th April, 2005, respondent no. 4 handed over charge of Allahabad office to Sri Shyam Babu, Deputy General Manager. On 25th April, 2005, petitioner was relieved from Jamshedpur. On 27th April, 2005, petitioner joined his duty as General Manager, Telephone, District Allahabad. On 5th May, 2005, Joint Deputy Director (Personnel) has passed an order permitting Sri Radhey Shyam to be retained at Allahabad upto 30th October, 2005. On the same day another order was passed by the Deputy General Manager (Administration) where under the petitioner was posted as General Manager (Operation) Telephone, District Allahabad with immediate effect. The petitioner contended that Sri Radhey Shyam, respondent no. 4 herein, after handing over change at Allahabad did not join his duty at Katihar and started exercising political influence through large number of members of Parliament upon the Communication Minister of the Government of India. On such influence and pressure he obtained an order from the Joint Deputy Director (Personnel) to remain in the post at Allahabad upto 30th October, 2005. As aforesaid, on the same day, the Deputy General Manager (Administration) informed the petitioner, who had joined as General Manager Telephone, District Allahabad on 27th April, 2004 shall be posted as General Manager (Operation) while the respondent no. 4 shall continue to function as General Manager Telephone, Allahabad till 30th October, 2005.

(2.) According to the petitioner, there is only one sanctioned post i.e. General Manager telephone, District Allahabad. There is no post of General Manager (Operation) , Telephone, District Allahabad. Therefore, the temporary creation and posting of the petitioner in such post is clearly illegal. It has only made to accommodate the respondent no. 4. The post of General Manager (Operation) can be created by the headquarters of the Bharat Sanchar Nigam Ltd. or appropriate authority of the telephone. Neither the Chief General Manager, Telephone U.P. (East Circle) , Lucknow is competent to create a post or to pass any order of posting on that post. The respondent no. 4 was already transferred and he had to join in the transferred post within 10/12 days from such transfer. In utter disobedience with the order of the superior authorities, the respondent no. 4 was allowed to remain at Allahabad. Assuming the post of General Manager (Operation) has created it should have been filled up by said Sri Radhey Shyam, respondent no. 4, but not by the petitioner who has been posted by a valid departmental order. Therefore, posting of the petitioner on the newly created post was meant to oblige the respondent no. 4 and, therefore, it is clearly illegal and unjustified. When one is retained in a particular post beyond the capacity, he should be: retained in a post which is not regular otherwise the interest of the regular incumbent would be vitiated.

(3.) According to the respondent no. 4, the writ petitioner belongs to Indian Telecom Service (ITS) . He is of 1984 batch wife the respondent no. 4 is of 1978 batch. The Bharat Sanchar Nigam Limited (hereinafter called as BSNL) has been created w.e.f. 01st October, 2000. As per the circular of the Government of India dated 15th April, 2005 both the petitioner and the respondent no. 4 have to submit their option for absorption in BSNL from department of Telecommunication, Ministry of Communication & Information Technology, Government of India. Since both belong to same service of Government of India, their cases are covered by Section 14 of the Administrative Tribunals Act, 1985 with the interpretation of the Supreme Court in the case of L. Chandra Kumar v. Union of India and Ors. Reported in AIR1997 SC 1125 , 1997 (1) BLJR735 , (1997) 1 CALLT55 (SC) , 1997 (92) ELT318 (SC) , [1997] 228 ITR725 (SC) , JT1997 (3) SC 589 , 1997 (1) MPLJ621 , 1997 (I) OLR(SC) 408 , 1997 (3) SCALE40 , (1997) 3 SCC261 , [1997 ]2 SCR1186 , [1997 ]105 STC618 (SC) , (1997) 1 UPLBEC712 . In view of L. Chandra Kumar (supra) Central Government employees will approach the Central Administrative Tribunal first and then before a Division Bench of High Court but not directly. The Tribunal is the Court of first instance. Moreover, the petitioner was a party petitioner before the Tribunal similarly with respondent no. 4 for a common interest under Original Application No. 1011 of 2005. The petitioner is in the serial no. 38 therein, whereas, the respondent no. 4 is at serial no. 37. The respondent has also annexed a copy of the application to establish that this writ petitioner has submitted to the jurisdiction of the Tribunal.