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N. Paul Vasanthakumar, J.—W.P. No. 12092 of 2011 is filed by the BSNL challenging the order of the Central Administrative Tribunal,
Madras Bench, made in O.A. No. 246 of 2010 dated 23.3.2011, wherein the original application filed by the second respondent therein was
allowed. W.P. Nos. 20679 and 20680 of 2011 are filed by seven aggrieved Junior Accounts Officers (JAOs/External candidates, who were
absorbed permanently), challenging the very same order of the Tribunal dated 23.3.2011 in O.A. No. 246 of 2010 after obtaining leave to file writ
petitions, as they were subsequently made as parties in the O.A.
The brief facts necessary for disposal of these writ petitions are as follows:
(a) The second respondent in W.P. No. 12092 of 2011 filed the Original Application before the Central Administrative Tribunal challenging the
common seniority list of Assistant Accounts Officers (AAO) and Junior Accounts Officers (JAO) employed in BSNL dated 17.5.2007 and the
clarification issued on 27.2.2009.
(b) The second respondent in W.P. No. 12092 of 2011 was recruited as JAO directly in the year 2003 and he has been working in the office of
the second petitioner''s office from 25.4.2004.
(c) Bharat Sanchar Nigam Limited (BSNL) was formed on 1.10.2000 and prior to the said date the Telephones and Telegrams services were
under the control of the Department of Telecommunication Services, Government of India (DOT). Due to shortage of officers in the cadre of
JAOs, at the time of incorporation, the erstwhile Officers in the Department of Telecommunication at lower cadre and from other departments such
as Department of Posts, Railways, etc., were posted on deputation to work as JAOs on adhoc basis (deputed employees).
(d) On 30.9.2000 erstwhile Department of Telecommunication decided to absorb all such deputed employees as JAOs as one time measure after
conducting special examinations for them on certain terms and conditions, subject to approval of the Department of Personnel and Training and
they were asked to sign an undertaking agreeing the said conditions.
(e) On 31.8.2001 Recruitment Rules were framed, which provide for recruitment in the cadre of JAOs by direct recruitment as well as by
promotion. As per the said Rules, 50% quota was reserved for the said category i.e., by direct recruitment and by promotion. BSNL directly
recruited several JAOs in the year 2003.
(f) The second respondent/applicant in the Original Application is one such recruit, who is working from 24.5.2004. Special examination for the
external (deputed) employees was conducted in December, 2000 and the results were declared on 29.8.2002. Approval of absorption was
sanctioned on 24.1.2003 by BSNL and the deputed employees were asked to exercise their option for absorption on 5.11.2004. The basic
training to such deputationists started on 14.2.2005 and they were absorbed on 7.3.2005 and the said date is the actual joining of JAOs on
substantive basis in BSNL.
(g) According to the second respondent, the directly recruited JAOs were seniors to the deputed employees/external candidates, as they were
already employed as regular JAOs on substantive basis before 7.3.2005. It is the contention of the second respondent that if external candidates
were taken on deputation and absorbed later, their seniority can be counted only from the date of their absorption and only exception is, if
deputationist was holding equivalent post on regular basis in their parent department, such regular service shall also be taken into account while
fixing seniority from the date of their deputation or on the date from which they have been appointed on regular basis in the same or equivalent
grade in the parent department, whichever is earlier.
(h) The case of the second respondent is that the above said Government Notification bearing No. 22091/3/86 dated 3.7.1986 was violated and
the seniority list was published on 17.5.2007 including the deputationists, who were substantively appointed later on, above the direct recruits,
even though none of the external candidates were employed in identical or equivalent post in their parent department and all of them were
employed in lower cadre in their parent department and therefore their seniority could only be calculated from 7.3.2005, the date on which they
were absorbed in substantive vacancies in the said seniority list.
(i) It is contended that the seniority list has to be brought to the notice of all concerned officers, but the same was not intimated to the direct
recruits, and the second respondent came to know the seniority position from one of his college working in Madhya Pradesh. Thereafter the
second respondent made enquiries and obtained the order dated 17.5.2007 and thereafter similarly placed persons all over the country like second
respondent sent representations, which were rejected, pursuant to which the OA was filed by contending that the direct recruits are entitled to be
ranked en bloc seniors to those deputed employees (external candidates), whose names are contained in the seniority list released on 17.5.2007 as
they were substantively appointed only after the appointment given to the direct recruits and their joining in regular service and the action of the
BSNL is contrary to the established procedure in placing the deputationists below the direct recruits. The period of service of the deputed
employees prior to their permanent absorption on 7.3.2005 cannot be taken into account for the purpose of seniority, as they were not working in
the lower cadre or as JAOs on adhoc basis and the decision of the BSNL is contrary to the judgment of the Supreme Court reported in The
Director, Central Bureau of Investigation and Another Vs. Shri D.P. Singh, .
The said claim of the second respondent was opposed by the BSNL by filing a counter affidavit and after considering the rival contentions, the
Tribunal allowed the original application against which the BSNL filed W.P. No. 12092 of 2011. After getting leave, some of the persons, who
were placed seniors than the second respondent/external candidates, filed other writ petitions in W.P. No. 20679 and 20680 of 2011.
Mr. A.L. Somayaji, learned Senior Counsel appearing for BSNL submitted that the cadre strength of JAOs in the Telecom Department, before
formation of BSNL was 5,472, however the working strength was 2,984. There was a shortage of 2,488 and external candidates numbering 490
were in service. After incorporation of BSNL, the posts were filled up through three sources viz.,
(i) Internal candidates, i.e., from erstwhile Telecom Department;
(ii) External candidates (deputed from other departments like Railways, Posts and Telegraphs, etc.)
(iii) Direct recruits.
For direct recruitment applications were invited in December, 2003, specifically stating that they will be placed en bloc juniors to the external
candidates (deputationists), who have already passed the special examination as the BSNL at the time of its incorporation decided as a policy to
absorb the external candidates (deputationists) after conducting a special examination. There was some delay in the process, which resulted in
issuing formal order of substantive appointment to the external candidates, which cannot be taken advantage of by the second respondent, who is a
direct recruit. The second respondent applied in terms of the notification and gave a declaration undertaking to be junior en bloc to the external
candidates at the time of joining. Common seniority list was published on 17.5.2007 and the rank of the second respondent is 5,564 and no
objection was made by the second respondent regarding fixation of his seniority and persons submitted objection were given reply. The second
respondent has not chosen to implead the external candidates, who were placed above him and without impleading the persons likely to be
affected, the seniority already fixed can be altered and placing of the external candidates above the direct recruits was based on a policy decision
taken by the Department of Telecommunications, Government of India, as early as on 30.9.2000. The learned Senior Counsel further submitted
that there was three years delay in challenging the seniority list published on 17.5.2007, and the policy decision has not been challenged and the
said policy decision was already considered by the Supreme Court in the decision reported in M. Jagdish Vyas and Others Vs. Union of India
(UOI) and Others, and the decision relied on by the Tribunal to allow the O.A. viz., The Director, Central Bureau of Investigation and Another Vs.
Shri D.P. Singh, has no application to the facts of the case.
Mr. N.G.R. Prasad, learned counsel appearing for some of the external candidates supported the above arguments of Mr. A.L. Somayaji,
learned Senior Counsel and contended that the external candidates appeared for special test in the year 2000 and results were published prior to
the notification issued calling for direct recruitment and due to the delay in completing the training of the external candidates and certain procedural
formalities, they could be appointed only in the year 2005 and merely because the direct recruits were selected and appointed in the year 2004,
they cannot claim seniority over the external candidates, who were in service even before the issue of notification inviting applications for direct
recruitment. The second respondent having submitted application based on the notification and having given an undertaking/declaration at the time
of joining to be junior en bloc to the external candidates, is not entitled to challenge the inter se seniority fixed by the BSNL and prayed for
allowing the writ petition.
Mr. Vijay Narayan, learned Senior Counsel appearing for the second respondent supported the order of the Tribunal and contended that even
though the external candidates appeared for the special examination in December, 2000 and their results were declared on 29.8.2002, approval of
provisional absorption was granted only on 24.1.2003 and they have been appointed as JAOs in BSNL on substantive basis only from 7.3.2005,
whereas the application for direct recruitment was issued in March, 2003 and all the direct recruits, including second respondent were appointed in
the year 2004 itself, long prior to the substantive appointment of the external candidates. Therefore, the date of joining in substantive post has to be
taken as criteria for fixing the common seniority and placing the external candidates en bloc seniors, who were actually appointed in substantive
post on 7.3.2005 was rightly interfered with by the Tribunal. The learned Senior Counsel further submitted that all the external candidates were not
in service as JAOs/Assistant Accounts Officers and some of them served in the lower cadre as deputation basis. Therefore treating all the external
candidates as seniors to the direct recruits has no basis. The learned Senior counsel further submitted that the notification as well as the undertaking
given by the second respondent will not preclude the second respondent from contesting the common seniority fixed as the same is contrary to law.
The learned Senior Counsel relied on the judgments reported in M. Jagdish Vyas and Others Vs. Union of India (UOI) and Others, and The
Director, Central Bureau of Investigation and Another Vs. Shri D.P. Singh, and prayed for dismissing the writ petitions.
We have considered the rival submissions.
The operation of the Department of Telecommunication (DOT), Government of India was incorporated as Bharat Sanchar Nigam Limited
(BSNL) with effect from 1.10.2000 and all the employees working in DOT were transferred enmass to BSNL. The absorption process was
initiated and all the employees opted for BSNL were absorbed retrospectively with effect from 1.10.2000. BSNL framed Recruitment Rules for
JAOs on 31.8.2001. In the policy announced by the Government of India, Department of Telecommunication, dated 30.9.2000 it was clearly
stated that the common seniority between the JAOs in the internal examination and direct recruits would be fixed as per the guidelines decided by
the Government separately. It is stated therein that the persons of the Telecommunication Department, who have passed Part-I and Part-II of JAO
examination conducted by DOT have not been appointed as JAOs before the notified date, shall be appointed as JAOs in BSNL according to
their ranks. The officials, who were holding the post of JAOs on regular basis in the erstwhile department before the notification of Recruitment
Rules and those who were absorbed in BSNL were deemed to have been appointed as JAOs in BSNL. There were also employees working as
JAOs, who were on deputation from other Ministries and as per the decision taken by the Department of Telecommunication dated 30.9.2000,
those candidates appearing for the special examination to be conducted by the DOT/BSNL in December, 2000 who are called external
candidates/deputationists have to qualify only in Telecom Revenue Accounts examination and they are required to appear for Part-VII and Part-
VIII of JAO Part-II Examination. Those external candidates, who were serving as JAOs on deputation in various wings of Department of
Telecommunication continued as JAOs even after formation of BSNL, who came out successful in the special examination conducted by BSNL in
December, 2000 and they commenced their service long prior to the direct recruitment of the second respondent on 24.5.2004.
The absorption process was delayed as the number of employees served in the erstwhile Department of Telecommunication was over 3.50
lakhs, who were to be absorbed in BSNL. The process was to be done stage by stage, i.e., like framing of relevant rules, obtaining of options
from the employees, verification of service records, finalising pay package of employees in consultation with the Trade Unions, getting vigilance
clearance, issuance of Presidential Orders, etc. The absorption of non-executives viz., Group ''C'' and ''D'' was taken up earlier and after
completion of the same, the absorption of Group ''A'' and ''B'' were carried out. The JAOs come under Group ''B''. The absorption process of
external candidates i.e., deputationists was initiated by seeking willingness from the external candidates, after getting approval from the competent
authority in terms of the policy decision taken in December, 2000 and those who have passed special examination held in December, 2000. The
results of the special examination held in December, 2000 were declared in August/September, 2002 and the external candidates were appointed
after following all the formalities by order dated 7.3.2005 and they were placed at Sl. Nos. 1893 to 2133 in the seniority list released on
17.5.2007. The decision to place external candidates above the direct recruits was made clear in the office memorandum dated 24.1.2003. The
relevant portion of the order reads as follows:
(III) It has already been approved by the Competent Authority, that these external candidates will continue to be on deputation in the interim
period.
(IV) The proposed appointment will be made against the vacancies, now in BSNL, but that existed on the date of notification of SEA-DOT letter
No. 18-11/2000-SEA. II, dated 30.9.2000 and as per the RRs provisions read with the notification in this regard.
(V) These external candidates will stand en-block junior to the internal candidates of JAO Part-II examination held in December, 2000 and its
supplementary, (as notified by the DE Branch vide their letter dated 23.7.2002) as well as to those JAO/AAOs of DOT/DTS/DTO, who are yet
to be formally absorbed in BSNL. However, these external candidates will rank en-block senior to all the JAOs who would be appointed by
direct recruitment/departmental (JAO Part-II) Exams held, subsequently (even though these external candidates may get formally appointed at a
later date).
It is to be noted at this juncture that after taking Policy decision to absorb the external candidates by conducting special examination and after
declaration of their results, the same could not be implemented due to certain technicalities in obtaining orders of absorption and by Office
Memorandum dated 24.1.2003 BSNL resolved to absorb the external candidates, whose absorption were already approved by the competent
authority and promote them to continue on deputation in the interim period i.e., till the formal absorption orders are to be issued. The delay in the
said process of giving substantive appointment has happened due to the delay in sending the external candidates for training, who have passed the
examination conducted by the Department.
After the said decision was taken to absorb the external candidates on permanent basis, notification was issued inviting applications for direct
recruitment with specific condition that those who are to be selected will be placed en bloc juniors than the external candidates to be absorbed
permanently in JAO cadre. The second respondent applied in terms of the said advertisement knowing fully well that in the event of his selection,
his name will be placed below the external candidates, who are to be absorbed, for which the process of absorption was initiated in the year 2000.
The second respondent applied for selection pursuant to the said notification issued in March, 2003 knowing fully well that if he will be placed
below the external candidates, who have already passed special examination conducted for permanent absorption in BSNL. The declaration given
by the second respondent in his application form reads as follows:
I also understand that if appointed, I would rank junior to any JAO who had been appointed earlier by the erstwhile DOT/DTS/DTO or BSNL or
any other candidate who had already qualified in the JAO Examination but not appointed as JAO by BSNL so far. Similarly candidates of JAO
Examination held prior to my appointment will also rank en-block senior to me.
The second respondent signed such undertaking once again at the time of joining.
The second respondent was given an appointment order dated 11.5.2004. Clauses 3 to 5 of the terms and conditions of the order of the
appointment reads as follows:
The appointment is on provisional and on purely temporary basis and subject to the terms and conditions laid down in Recruitment Rules of
JAOs in BSNL. They will be governed by all the relevant rules and orders as issued by CO, BSNL from time to time.
They shall rank en-block juniors to all the existing JAOs/AAOs who have already been appointed as JAOs/AAOs by the
DOT/DTS/DTO/BSNL and who may be absorbed in BSNL, at a later date.
They will be ranking en-block junior to Internal Candidates who have already qualified the JAO Part-II exam and the External candidates of the
Special Exam of December 2000, i.e., the exams that were held before Direct Recruit Exam of 2003, but not yet appointed as ""JAO on
probation"" in BSNL because of the administrative reasons.
The second respondent accepted the said terms and conditions and joined as JAO along with other direct recruits, without any demur. The
undertaking given by him on 4.9.2003 reads as follows:
UNDERTAKING
I, Surinder Kumar, S/o. Sh. Om Prakash, hereby undertake that,
I shall rank en-block junior to all the existing JAOs/AAOs, who are already appointed as JAOs/AAOs by the DOT/DTS/DTO/BANL and
who may be absorbed in BSNL at a later date.
I shall also be ranking en-block junior to those JAOs who have already qualified the JAO Part-II exam before me, and those who will qualify
the JAO part-II exam already held earlier but not yet appointed as ""JAO on Probation"", by BSNL because of some administrative reasons.
On my appointment as ""JAO on Probation"" in BSNL I will be liable to serve and be posted anywhere in India.
I will draw stipend as fixed by CO BSNL during the entire period of 14 weeks pre appointment training and will not demand for the pay scale.
My pay on appointment on joining as ""JAO on Probation"" will be fixed in the CDA pay scale Rs. 6500-200-10500/- (to be equivalent IDA pay
scale as and when finalized and extended to the JAOs/AAOs who are seniors to me).
I shall undergo the prescribed pre-appointment training of 14 weeks before my appointment as ""JAO on Probation"".
All the statements made by me and the documents furnished by me are true, complete, correct and genuine to the best of my knowledge and
belief. In case, anything is found to be false or incorrect or if I am found ineligible on any account even after my appointment, my services will be
liable to be terminated without any notice to me.
I shall not bring any political or other outstanding influence for change of my training circle/center or station of my posting/allotment.
My appointment to the cadre of JAO in BSNL is subject to the successful completion training (as per training schedule laid down by NATFM,
Hyderabad) and probation of two years.
I shall join in my allotted circle immediately after receipt of appointment as ""JAO on Probation"", after successful completion of pre-training of
14 weeks.
BSNL reserve the right to withdraw my candidature/terminate my appointment forthwith, without assigning any reason whatsoever.
Date: 4.9.2003 Sd/- xxxxxxxx
Place: ABOHAR"" SURINDER KUMAR
The second respondent having applied for JAO post in BSNL in terms of the advertisement by signing an undertaking in his application form, is
bound by the undertaking. Based on the said factual aspects the BSNL prepared the common seniority list and published the same on 17.5.2007,
wherein the external candidates, who were absorbed as per the policy decision taken before inviting application for direct recruitment were placed
below the internal candidates, who were already in service of the telecom and absorbed in BSNL, and above the direct recruits, from Sl. Nos.
1893 to 2133.
In view of the above, the second respondent is estopped from now contending that he should be given seniority over external candidates
absorbed as per the policy of the Central Government and BSNL.
The Hon''ble Supreme Court in the decision reported in U.P. Awas Evam Vikas Parishad and Others Vs. Rajendra Bahadur Srivastava and
Another, considered the said principle and in paragraph 5 held thus,
In view of the unequivocal undertaking given by the first respondent, it is no longer open to him to contend that his dismissal (sic termination) order
of 1971 was illegal. He approached the High Court in 1991 seeking to quash his termination order of 1971 after securing conditional
reinstatement. His challenge after his appointment on his representation and acceptance of conditions subject to which he was to be appointed is an
attempt to overreach his goal in a circuitous route. ........
The said position is reiterated in Vijendra Kumar Verma Vs. Public Service Commission, Uttarakhand and Others, . Thus, the second respondent
is estopped from challenging the seniority list. The policy of BSNL was already upheld by the Hon''ble Supreme Court in the decision reported in
M. Jagdish Vyas and Others Vs. Union of India (UOI) and Others, . In the said judgment treating the deputationist as a class, apart from
departmental candidates as well as the conduct of special examination for absorption of external candidates in BSNL was also upheld.
The second respondent is assigned seniority No. 2699 and above the second respondent there are 564 seniors, who were also selected
through direct recruitment along with the second respondent. Thus, it is evident that if seniority as claimed by the second respondent is to be
altered the seniority of the persons placed above the second respondent, who are numbering more than 805 candidates, would be altered.
The said persons who are likely to be affected by virtue of change of seniority if ordered as prayed by the second respondent are not
impleaded as party respondents. It is well settled principle of law that while claiming seniority over and above any person/persons, the persons
who are likely to be affected, if the claim is sustained, are to be necessarily made as party respondents and in their absence no order can be
passed by any Court as audi alteram partem will be violated. In the original application, the second respondent impleaded only two persons in their
individual capacity and not impleaded on representative capacity. Hence the second respondent''s claim cannot be considered even assuming that
he has got any right to claim seniority in the absence of proper and necessary parties. The said issue is made clear in the following decisions.
(a) In the decision reported in Girjesh Shrivastava and Others Vs. State of M.P. and Others, the Apex Court in paragraphs 20 to 23 followed its
earlier decisions and held as follows:
The next point urged by the appellants, that they had never been impleaded in the two petitions, even as orders passed by the High Court had
a direct effect on their livelihood, also goes to the root of the matter as it violates the principle of audi alteram partem.
This Court in Prabodh Verma and Others Vs. State of Uttar Pradesh and Others,
A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its
judgment being before it as respondents.
Similarly, this Court in Ramrao and Others Vs. All India Backward Class Bank Employees Welfare Association and Others,
An order issued against a person without impleading him as a party and, thus, without giving him an opportunity of hearing must be held to be
bad in law. The appellants herein, keeping in view the fact that by reason of the impugned direction, the orders of promotion effected in their favour
had been directed to be withdrawn, indisputably, were necessary parties. In their absence, therefore, the writ petition could not have been
effectively adjudicated upon.
Also in B. Ramanjini and Others Vs. State of Andhra Pradesh and Others, , where selection of certain teachers was challenged without
impleading them, this Court held: (SCC pp. 542-43, para 19)
Selection process had commenced long back as early as in 1998 and it had been completed. The persons selected were appointed pursuant to
the selections made and had been performing their duties. However, the selected candidates had not been impleaded as parties to the proceedings
either in their individual capacity or in any representative capacity. In that view of the matter, the High Court ought not to have examined any of the
questions raised before it in the proceedings initiated before it. The writ petitions filed by the respondents concerned ought to have been dismissed
which are more or less in the nature of a public interest litigation.
(b) In the decision reported in Vijay Kumar Kaul and Others Vs. Union of India (UOI) and Others, , the Hon''ble Supreme Court held thus,
Another aspect needs to be highlighted. Neither before the Tribunal nor before the High Court, Parveen Kumar and others were arrayed as
parties. There is no dispute over the factum that they are senior to the appellants and have been conferred the benefit of promotion to the higher
posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have not been
impleaded as parties such a relief is difficult to grant.
From the aforesaid enunciation of law there cannot be any trace of doubt that an affected party has to be impleaded so that the doctrine of
audi alteram partem is not put into any hazard.
The decision cited by the learned Senior counsel for the second respondent has no application to the facts of this case as the policy decision
taken in the year 2000 and 2003 as stated supra were implemented by BSNL, which is borne out by records. The Tribunal has not considered the
above aspects in proper manner and relied on the judgment of the Supreme Court reported in Dakshinamurthy Vs. B.K. Das I.A.S. and Others, ,
which has no application to the facts of this case. In the said judgment the deputationist absorbed permanently was purely on adhoc basis and his
selection was found to be not in accordance with the Rules and in this case the external candidates were serving prior to the formation of BSNL
and as a policy they were absorbed with seniority over direct recruits. It is a well settled proposition of law that while applying the judgment of the
Supreme Court, the facts and circumstances under which the said judgment was rendered, has to be borne in mind. For the reasons stated above,
we are not inclined to sustain the order of the Tribunal and the same is set aside. Consequently the writ petitions are allowed. No costs.