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Judgment
T.S. Thakur, J.—These Letters Patent Appeals arise out of a common order passed by a learned single Judge of this Court whereby a
batch of petitions filed by the appellants challenging the validity of Rule 5 of the Recruitment Rules framed by the Respondent BSNL have been
dismissed and the notifications issued by the latter proposing to hold a limited internal competitive examination (LICE), upheld.
The appellants were employees of the Department of Telecommunications (DoT). With the formation of the respondent BSNL in the year
2000, they were placed on deputation with BSNL, pursuant to a broad understanding regarding protection of the terms and conditions of their
service, as employees of the BSNL. One of the conditions to which the parties had agreed, was incorporated at Serial No. 11 of the agreement
arrived at between the office bearers of the employees and the officers of the DoT and read as under :
Channels of promotion would be maintained for those employees who get absorbed in BSNL.
The above agreement was followed by an office memorandum issued on 7th August, 2001 by BSNL stipulating the following :
i) BSNL service rules are to be finalised after discussion with the recognised union formed by the optees of BSNL and the standing orders of
Industrial Employment Act, 1946.
ii) In the meantime, it was agreed that Government will continue to apply existing rules/regulations. This is in line as per the provisions of Rule 13B
of Standing Orders of Industrial Employment Act, 1946. However, certain provisional terms and conditions for absorption are enclosed at
Annexure 1.
iii) After absorption there will be negotiations with the newly formed recognized union(s) regarding promotional avenues. Pending adoption of
Standing Orders on promotional policy, the present promotion policy will continue to be followed by BSNL. Same rules relating to promotion
would apply to the Secretariat staff as to the other BSNL employees.
In July 2003, BSNL framed what are known as Assistants'' Recruitment Rules, 2003 governing recruitment to the post of Assistants and other
categories of employees. The said Rules, inter alia, provided for filling up 50% of the vacancies in the cadre on the basis of a limited internal
competitive examination (LICE) with the remaining 50% to be filled up by direct recruitment. UDCs with five years service were eligible to appear
in the LICE.
It was in furtherance of the above Rules that BSNL notified in August 2005 the scheme and syllabus for LICE. This was followed by a
notification in October 2005 proposing to hold LICE for promotion of UDCs to the grade of Assistants. Aggrieved by the Rules as also the
notifications mentioned above, the petitioners filed a batch of writ petitions before this Court challenging the same on two distinct grounds. The first
limb of the challenge mounted by the appellants was based on the alleged assurance extended to the appellants regarding the protection of their
existing service conditions and the agreement arrived at between the parties in that regard. The second limb of the challenge was based on the plea
that vacancies existing before the framing of the Rules ought to be filled up only in accordance with the Rules that existed at the time the vacancies
occurred.
Both the contentions mentioned above were examined by the learned single Judge and repelled in terms of the common order impugned in these
appeals. The learned single Judge held on the authority of the decisions of the Supreme Court in State of Maharashtra and another Vs.
Chandrakant Anant Kulkarni and others, and All India State Bank Officers'' Federation and Others Vs. Union of India (UOI) and Others, that
''chances of promotion'' did not constitute conditions of service so as to justify interference by the Court on a mere reduction in such chances due
to change of conditions. Reliance was also placed upon the decision of the Supreme Court in P.U. Joshi and Others Vs. The Accountant General,
Ahmedabad and Others, and State of Jammu & Kashmir Vs. Shiv Ram Sharma and Others, to hold that a reduction in the chances of promotion
by itself did not constitute an actionable wrong warranting the intervention by the writ Court in exercise of its powers of judicial review. The Court
held that merely because the petitioners, appellants herein, had been given some assurance about the continuation of their service conditions did not
fetter the power of BSNL to follow the new recruitment or promotion policy.
Having heard learned Counsel for the appellants, we find no reason to take a view different from the one taken by the learned single Judge. The
decisions of the Apex Court referred to above clearly recognise the competence of the State to change rules relating to service of its employees
and alter, amend or vary, by addition or subtraction, the qualifications, eligibility criteria and other conditions of their service including avenues of
promotion from time to time. The power of the State to amalgamate or bifurcate Departments and to constitute different categories of posts or
cadres as also to suitably provide for the method of promotion in order to utilise the talent available in the organisation, has been unequivocally
acknowledged in the judgments referred to above.
Framing of rules or regulations or their modification considered expedient by the employer resulting in reduction in chances of promotion of the
employees, Therefore, does not provide a reasonable basis for the Court to interfere or a valid ground for the employee to complain against the
same. This is particularly so when the formulation of the framing of rules and the regulations governing service conditions of employees including
their promotion is done in a bona fide exercise of the power vested in the employer and the rules so formulated apply uniformly to the employees
falling in a class or category.
Suffice it to say that except in situations where the rules framed by the employer are found to be vocative of the guarantees enshrined in Articles
14 and 16 of the Constitution, a writ court would be loathe to interfere, if the grievance of the employee against such rules is limited only to
reduced chances of promotion.
The rules framed by BSNL, in the instant case, do not render any one of the petitioners ineligible for consideration nor is it the case of the
appellants that they have, by reason of prescription of any qualification not earlier prescribed, been rendered ineligible for consideration. What Mr.
Rai argued on behalf of the appellants was that as per the scheme of promotion prevalent in the DoT from where the appellants have been
absorbed, the promotion to the next higher post was by seniority. That is not, however, so under the rules framed by BSNL in as much as the said
rules envisage a limited internal competitive examination for any such promotion. There is, however, nothing arbitrary, irrational or unconstitutional
about the prescription of any such competitive examination which is intended to encourage merit in the matter of career progression of the existing
employees. Just because the rules provide a mechanism in which the meritorious can steal a march over Ors. who were not equally good, does not
render the rules bad or make out a case for interference by the Court with the scheme underlying the same.
That apart, the appellants'' case that the rules were in negation of the assurances given to them regarding the continuance of the promotion
scheme applicable in the DoT has not impressed us. No such assurance is in our opinion discernible from the agreement and the office
memorandum relied upon by the appellants. The stipulation contained in the agreement that channels of promotion would be maintained for
employees who get absorbed in the BSNL does not necessarily mean that the promotion shall be granted only on the basis of seniority. What is
assured is that channels of promotions would be maintained. It is nobody''s case that the recruitment rules framed by BSNL blocks such channels
of promotion. The channels of promotion remain open for UDCs even under the impugned rules. All that has happened is that such channels do not
envisage promotion based only on seniority. Career progression under the rules is by reference to merit more than seniority. That does not in any
way violate the stipulation contained in the agreement relied upon by the appellants or the stipulation contained in the office memorandum, which
cannot be interpreted or understood to mean that the promotion policy which BSNL was entitled to formulate could not provide for an internal
competitive examination. The emphasis in the office memorandum is in fact more on negotiations with the recognised unions which have not been
precluded and which the unions can continue to hold if so advised to seek such alterations as may be acceptable to both the parties. Suffice it to
say that neither in law nor on facts, does the challenge to Rule 5 of the impugned rules survive a closer scrutiny.
That brings us to the only other issue raised by Mr. Rai. It was contended that vacancies that existed before the framing of the impugned rules
could be filled up only in accordance with the promotions scheme applicable to DoT employees. A similar contention raised before the learned
single Judge has been repelled relying upon the decision of the Supreme Court in Delhi Judicial Services Assn. and Others Vs. Delhi High Court
and Others, Their lordships have in that case held that where the process of selection has not started, it cannot be argued that the available
vacancies can be filled up only as per the amended rules, merely because the vacancies occurred at a time when the amended rules had not come
into force. The Court observed :
Mr. P.N. Mishra, relying upon the decision of this Court in the case of Y.V. Rangaiah V. J. Sreenivasa Rao and the decision of this Court in B.L.
Gupta V. MCD vehemently contended that the posts being available prior to the amendment coming into force, it was obligatory for the authority
to fill up those posts in accordance with the Rules then in force and even after the amendment those posts could be filled up only in accordance
with the unamended rules. Mr. Mishra contends that the rights of the members of the Delhi Judicial Service to get promotion to the Delhi Higher
judicial Service in respect of posts created prior to the amendment of the Rules, cannot be taken away by inaction on the part of the authority
concerned in not filling up the same and issuing advertisement only after the Rules having come into force. In Rangaiah case, this Court on a
consideration of the relevant rules as well as the instructions issued by the Government, came to hold that a list of approved candidates was
required to be prepared as of 1-9-1976 for making appointments to the grade of Sub-Registrar Grade II by transfer, but no such list having been
prepared and instead, the same having been drawn up in 1977, by which time the amended rules had come into force, it was held that the
legitimate right and expectations of those who were entitled to be included in the list which ought to have been prepared in September 1976 cannot
be frustrated on account of the fact that the panel had not been prepared and it was so prepared only in the year 1977. It is on this conclusion, the
Court had held that the vacancies available prior to 1-9-1976 ought to be filled up under the unamended rules. The aforesaid decision will have no
application to the case in hand inasmuch as in the Delhi Higher Judicial Service there is no requirement of preparation of any panel or list of
candidates eligible for promotion by any particular date. Then again, merely because posts were created under Rule 16, it was not obligatory for
the appointing authority to fill up those posts immediately.
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That apart, the process of selection not having been started and even the advertisement itself not having been issued and such advertisement having
been issued only subsequent to the amendment of the Rules, it is futile to contend that the posts could be filled up under the pre-amended rules,
merely because the posts had been created while the amended rules had not come into force. We, Therefore, do not find any substance in the first
submission of Mr. Mishra, the learned Senior Counsel appearing for the Association.
In the light of the above, it is difficult to see how the appellants can insist on the vacancies being filled up otherwise than in accordance with the
rules framed by the BSNL especially when neither were the vacancies notified nor any other steps taken for filling up the same before framing the
impugned rules.
In the result, these appeals fail and are hereby dismissed but in the circumstances without any orders as to costs.