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Judgment
K.N. Phaneendra, J.—1. The litigation in these Writ Petitions arises out of the common order passed by the Central Administrative Tribunal in OA Nos. 227, 309, 399 and 440 of 2009 vide Order dated 25.1.2012. The Central Administrative Tribunal by the impugned order has directed the Department (BSNL) that the date of recruitment of the applicants therein, should be compared with the dates of recruitment of 68 Officers in Annexure-A3 and strictly as per that comparison, the seniority of the 16 applicants should be adjusted vis-�-vis with 68 Officers, and the seniority maintained by the department has to be modified to that extent. The department shall also carry out the exercise within two months from the date of the order and give the applicants a notional seniority and consequential financial benefits from the date of the order.
We have in fact heard the arguments of the learned counsel for the petitioners and the respondents in the above said Writ Petitions. We have also carefully perused the materials placed before the court.
Before adverting to the merits of these cases, it is just and necessary to advert to the facts of these cases in brief to understand the nature of the dispute between the parties.
On analysis of the materials on record, it is seen that it is a dispute between two groups of Junior Telecom Officers (''JTOs.'' for short) of BSNL., who are eligible for promotion to Sub Divisional Engineers; where one group/first group was promoted from JTO cadre to the next higher cadre of Sub Divisional Engineers in accordance with 1981 rules on 21.10.1998 and another group/second group was promoted on 29.4.2000 in accordance with 1996 Rules. The JTOs. of the department of the Telecom (Now BSNL) is the feeder cadre to the promotional post of Sub Divisional Engineers in the Telecom Department. As we observed, it is the dispute between the two groups of JTOs. who were promoted to the higher grade.
It is the contention of the second group of Junior Telecom Officers who were promoted as Sub Divisional Engineers that their promotion shall be re-fixed according to their seniority and it should date back to the date of 21.10.1998, as the first group of Junior Telecom Officers were promoted on 21.10.1998. It is contended, that thereafter, considering the seniority amongst the first group and the second group, the promotion list has to be prepared as on 21.10.1998.
On 15.6.1966, the Department framed recruitment Rules 1966. According to these rules, the Engineering Supervisors who are now called as Junior Telecom Officers, who have put in five years of regular service in that cadre, if they pass a qualifying departmental examination, they are eligible for promotion. The said promotional cadre is filled-up fully by way of promotion (i.e. 100%) from the cadre of Engineering Supervisors. We are not concerned in this matter with 1966 Rules, because, no promotion was given in accordance with 1966 Rules either to first group or second group.
In the year 1981, precisely on 7.5.1981, the department has brought 1981 Rules (Annexure-E), which superseded the earlier 1966 rules. According to these rules, 66.66 1/2% of Sub Divisional Engineer posts have to be filled-up by way of promotion from the cadre of Junior Telecom Officers with five years of regular service by selection on the basis of departmental qualifying examination. The remaining 33.33 1/2% of the quota shall be filled-up by means of selection on the basis of departmental competitive examination from the cadre of Junior Telecom Officers with five years of regular service.
Again, the said Rules of 1981 has been superseded by 1996 Recruitment Rules, which were brought into force from 23.7.1996 (Annexure-G). As per these Rules, 75% of Sub Divisional Engineer posts have to be filled up by way of promotion from amongst the Junior Telecom Officers with three years regular service in the cadre, on the basis of seniority cum fitness. The remaining 25% from amongst the candidates of the said cadre, with three year regular service on the basis of the departmental competitive examination.
On plain reading of these two rules, it is clear that, by way of 1996 rules, passing of the departmental qualifying examination prescribed under 1981 rules, so far as it relates to 75% promotional quota has been done away with. Such 75% promotional quota according to 1996 rules, has to be filled up from amongst Junior Telecom Officers with three years regular service in the cadre purely on the basis of seniority-cum-fitness and there is no question of selection on the basis of departmental qualifying examination.
In order to promote all the qualified candidates who were qualified as per 1981 rules, and awaiting for promotion prior to coming into force of 1996 rules, the department of Telecom has taken a policy decision to create 1966 posts to accommodate such qualified Junior Telecom Officers awaiting for promotion. This decision was taken on 15.10.1998 and accordingly, the first batch of Junior Telecom Officers were promoted and orders were issued on 21.10.1998 which actually led to the litigation so far as the applicants and the respondents (before the CAT) are concerned. The second group of promotion was given to the Junior Telecom Officers (Respondents before CAT) to the cadre of Sub Divisional Engineers on 29.4.2000 in accordance with the seniority-cum-fitness as per 1996 rules.
The aggrieved second group of Junior Telecom Officers who were later promoted, challenged the promotions given to the first group of Junior Telecom Officers vide order dated 21.10.1998, before the Central Administrative Tribunal, Bengaluru in OA No. 946/1998 by seeking quashing of the action of the department in creating 1966 posts of Sub Divisional Engineers retrospectively from 1993 and consequently seeking quashing of the promotions given to the first group of Junior Telecom Officers with effect from 21.10.1998. In the said Original Application, the Tribunal has quashed the order dated 15.10.1998 creating 1966 posts with effect from 1993, by making an observation that the respondent-Department should review the promotions done on 21.10.1998 to the first group of Junior Telecom Officers pertaining to the Karnataka Circle to verify as to whether the first batch Junior Telecom Officers are entitled to be promoted against the existing vacancies in Karnataka Circle i.e., 61 posts existed prior to 23.7.1996 and thereafter revert the remaining 68 Junior Telecom Officers promoted under Karnataka Circle, as only 129 posts were allocated to Karnataka Circle.
The Department, on 29.4.2000 has promoted the second group of Junior Telecom Officers on the basis of seniority-cum-fitness in accordance with 1996 rules and subsequently, in obedience to the order passed in Original Application No. 946/1998 considering the promotions given so far as 129 posts are concerned, the department has passed an order on 19.10.2000 reverting 68 officers in Karnataka Telecom circle.
The order dated 19.10.2000 of the department was again called in question by the reverted officers before the Central Administrative Tribunal, Bengaluru, in OA No. 1664/2000 with other connected matters. In the said Original Application, the respondents therein have filed their additional reply statement dated 29.08.2001 and they have admitted in the said reply statement in the following manner:
"It is stated that the interse seniority list is still not in final shape. The applicants position in the seniority list cannot be confirmed at this stage. However, the applicants are entitled for continuity of service with other benefits in the promoted cadre if they are found senior enough not to be reverted as a consequence of abolition of 1966 posts."
From the above said statement made by the respondents, the Tribunal has come to the conclusion that the entire matter of inter se seniority of the reverted officers are still indeterminate and the same is in process of being finalised.
It is also observed that the said applicants (reverted officers) have since been promoted to the higher post of TES Group-B from which they were reverted earlier. In view of the undertaking given by the department that they have taken up the interse seniority matter and they are going to finalise the interse seniority position, the Tribunal has in fact kept in tact the promotion given to the applicants therein along with all consequential benefits etc., The Tribunal has made it abundantly clear and directed the respondents to finalise the concerned seniority list of TES Group-B officers within a period of three months by observing that the order of reversion passed by the department dated 19.10.2000 shall stand automatically quashed and the respondents are directed to examine the situation to treat the applicants therein as eligible for the benefits in the promoted post in accordance with their interse seniority posts.
The Tribunal has passed an order dated 8.10.2001 and gave some directions to the department. The said directions are as follows:
"(1) The respondent shall finalise the concerned seniority list of TTT-A Group-B Officers within a period of three months.
(2) If in the said seniority list, the applicants are senior enough not to be included in the Group officers will have to be reverted to the lower post as a consequent of the abolition of 1966 posts in the promoted category of Group-B Officers as per the order at Annexure-A9. The order of reversion which has been impugned in the case shall stand automatically quashed.
(3) In the event of occurrence of the situation mentioned in the direction No. 2 above, the respondent shall treat the applicants as eligible for the benefits under the promoted post in accordance with their interse seniority position in the list finalised under the direction No. (1) above."
In the said Original Applications, there was a direction issued to the department to finalize the concerned seniority list of second Group Officers and if in the said seniority list, the applicants therein are seniors enough and who are not to be included in the group of officers, will have to be reverted to the lower post. It is also observed by CAT that, in view of the abolition of 1966 posts in the promoted category of Officers, the order of reversion, which has been impugned, shall stand automatically quashed. In the event of the occurrence of the situation mentioned in the direction, the respondent shall treat the applicants as eligible for the benefit of the promoted post in accordance with their inter-se seniority position, in the list finalized on the direction (in O.A. 946/98) of the Central Administrative Tribunal. Therefore, by virtue of this, the reverted officers have to be considered in accordance with 1996 rules strictly in accordance with their inter-se seniority.
Thereafter the department has considered further and passed an order on 11.11.2004. In the said order, the seniority assigned to the first group of Junior Telecom Officers particularly in respect of 68 reverted officers referred to above, was disturbed and the order of reversion was passed once again with a rider that the same is subject to the out come of the cases pending before the Kerala High Court.
Subsequently, the department on the basis of Kerala and Delhi High Court decisions, has passed an order on 9.3.2009 taking a decision not to disturb the promotion of the Junior Telecom Officers belonging to the first group.
The said order dated 9.3.2009 in No. 1548/2005 PERS(DPC) was challenged before the CAT by the second group and vide order dated 25.1.2012, the Tribunal has passed the impugned order.
The second group Junior Telecom Officers who were promoted as Sub-Divisional Engineers on 29.04.2000 have sought before the Tribunal not only to quash the order dated 9.3.2009 but also prayed the Tribunal to direct the respondents to pre-pone the date of their promotion as on 21.10.1998 instead of 29.04.2000, and also to extend consequential benefits and also for assigning their inter-se seniority in accordance with the 1996 Rules. The Tribunal has passed the orders as referred supra.
The factual aspects and various proceedings as we have referred supra, it clears the doubt in OA No. 624/1997 itself, the Central Administrative Tribunal has considered the rival contentions of the parties in detail. It is worth to note here the order passed in OA No. 624/1997, wherein, the Central Administrative Tribunal has specifically considered the dispute between the parties at paragraph 3, which we feel it worth to refer here in the following manner:
"3. The grievances of the applicants in the case is that in spite of the above undertaking given by the department in spite of the prescription in the new Recruitment Rules, the 1st respondent had filled up many vacancies which arose after 23.7.1996 not on the basis of seniority cum fitness but by candidates who had passed the qualifying examination as per the earlier Rules and that this has affected the interests of the applicants who are expecting promotion under the new Recruitment Rules. The applicants have, therefore, sought for a direction to the 3rd respondent to effect regular promotion against the vacancies which arose on or after 23.7.1996 after recasting the seniority list as per the provisions of the 1996 Recruitment Rules."
The Central Administrative Tribunal, at paragraph 4 of its order has also observed in the following manner:
"4. The respondents in their reply have not disputed the position that the vacancies which arose after 23.07.1996 will have to be filled up only on the basis of seniority-cum-fitness. It is the case of the respondents that in Karnataka circle only 61 vacancies existed prior to 23.07.1996. It is further not disputed by the respondents that by some misinterpretation of the departmental letter, the 1st respondent had filled up some vacancies which arose after 23.07.1996 by promoting the qualified candidates on a temporary ad hoc basis for the purpose of local arrangement. It is this action of the 1st respondent which has compelled the applicants to approach this Forum. Now, the respondents have given an undertaking that once the period of that ad hoc arrangement comes to an end, they would not extend the promotion for a further period; that only 61 vacancies would be allocated to the candidates who have passed the qualifying examination and that even if they have to make any local or officiating arrangement in respect of the vacancies which arose after 23.07.1996 they would do so only on the basis of seniority cum fitness as reflected in the combined circle gradation list. In view of this clear undertaking, we do not find that there is any need to continue this application."
By making such observations and in view of the undertaking given by the department, the said application was disposed of.
Looking to the above said observations, which is binding on the department and in fact, the department has taken time for the purpose of implementing the said order in view of their admission, it is crystal clear that there is no dispute that from the date the vacancies have to be filled up on the basis of seniority cum fitness, as per 1996 Rules, and not under 1981 rules at any stretch of imagination, the department has in unequivocal terms clarified the situation that the vacancies which arose after 23.7.1996, would be filled up on the basis of seniority cum fitness and not on the basis of 1981 Rules.
It is clear from the above said clarification given by the department, that the Karnataka Circle had only 61 vacancies prior to 23.07.1996 that could have been filled up as per the 1981 Rules. But promotion was given even after 23.07.1996 to additional 68 Junior Telecom Officers of Karnataka Circle. Therefore, the department has directed to revert the remaining 68 Junior Telecom Officers. But the said order was also not proper as this court has noted that the Central Administrative Tribunal has set aside the said order and directed not to revert those officers. The promotions given to the reverted Officers were restored and their promotions were safeguarded by the orders of the Central Administrative Tribunal in OA No. 624/1997 and as noted supra. Therefore, it is clear that the promotions given to the first group and the second group have been kept intact, but the inter-se seniority has not been clarified by the department.
The Central Administrative Tribunal under the impugned order has observed that irrespective of creation of 1966 posts or 1369 supernumerary posts after BSNL and MTNL have shared the posts, the department on its own has taken the stand that, some posts have been created with effect from 21.10.1998 to 25.02.2000. This obviously shows that an effort was made to settle the second group officers also who received their promotion as on 26.4.2000.
The arguments of the learned counsels also disclose that many of the Officers who were promoted on 21.10.1998 were juniors to the Officers promoted on 26.04.2000. Though the promotion was not disturbed by any of the orders of the courts and Tribunal, nevertheless, it goes to show that the seniority interse has been disturbed. For that reason only, the Central Administrative Tribunal has directed by passing the impugned order.
Be that as it may, if 1981 Rules and 1996 Rules are compared with each other, 1981 Rules envisaged the promotion of Junior Telecom Officers to the cadre of Sub-Divisional Engineers i.e., to the extent of 66 2/3rd % by promotion from the cadre of Junior Telecom Officers with five year regular service by selection on the basis of departmental qualifying Examination and 33 1/3rd % by selection on the basis of limited departmental competitive Examinations. According to 1996 Rules, which came in to force on 23.07.1996, the promotion percentage is increased from 66 2/3rd to 75% and qualification prescribed is the Junior Telecom Officers, having three years regular service in the grade on the basis of seniority-cum-fitness and there is no question of conducting any departmental qualifying examination. The rest of 25% to be filled-up on the basis of departmental competitive examination for which we are not concerned. Therefore, 1996 Rules only prescribe the promotion on the basis of seniority cum fitness.
Though the department has made all its efforts to satisfy its employees, by creating some posts, interse seniority ought to have been fixed under 1996 rules and not under 1981 Rules inasmuch as promotions were given to them after coming into force of 1996 Rules. So far as the second group of Officers are concerned, there is no dispute that the promotions were given to them in accordance with 1996 Rules on 29.04.2000. Therefore, it goes without saying that the promotions given to the first group under 1981 Rules, after coming into force of 1996 Rules, is not correct and proper.
Though the learned counsel Sri Kulkarni made attempts to convince us that promotions were given correctly according to 1981 Rules on the basis of the posts being created prior to the coming into force of 1996 Rules and therefore, those Officers were accommodated under 1981 Rules, but we are unable to accept the said argument of the learned counsel for the simple reason that, 1981 Rules have been superseded by 1996 Rules. Therefore what ever the acts done by the department under the 1981 Rules till 23.07.1996 only are valid. In the absence of any saving clause in 1996 Rules, the department cannot give any promotion to any of the Junior Telecom Officers to the Karnataka Circle to the extent of 68 posts under 1981 Rules, in contravention of 1996 rules, on the guise of policy decision.
We have carefully perused the 1996 Rules. 1996 Rules (Item No. 8 of Gazette) came into force on 22nd July 1996. At Rule 8, it prescribes the savings clause which reads thus:
"Savings - nothing in these Rules shall affect the reservation, relaxation of age limit and other concession required to be provided for the SC/ST, Ex-serviceman and other Special categories of persons in accordance with the order issued by the Central Government from time to time in this regard."
If the above said saving clause is read in its proper perspective, it is clear that there is absolutely no mention that the policy decision was taken by the department to give promotion to the qualified JTOs to the promotional post of Sub-Divisional Engineer under 1981 Rules and that the same would be saved.
What it saved is with reference to the relaxation of age limit and other concessions provided for SC, ST and etc., but not the act done by the department under 1981 Rules. 1996 Rules specifically say that they are in super session of 1981 Recruitment Rules. Admittedly as on the date of promotion given to the first group, the 1996 Rules were in vogue and 1981 Rules had been extinguished.
In view of the above, we are of the considered opinion that promotions given, ignoring the inter-se seniority between the Junior Telecom Officers under the first and the second group is not in accordance with 1996 Rules. Both the first and the second group Officers are coming under the common category i.e., under 1996 Rules which say that the promotions shall be given only on the basis of seniority-cum-fitness and not on the basis of selection on the basis of departmental qualifying examination. Therefore, we do not find any reason to interfere with the judgment passed by the Central Administrative Tribunal. Hence, the following order:
The Writ Petitions are dismissed.
The directions given by the Central Administrative Tribunal at paragraph 27 has to be complied by the department within four months from the date of receipt of the copy of this order.
Further, we make it clear that the promotions given to Junior Telecom Officers of first and second group to the post of Sub-Divisional Engineers cadre, shall not be disturbed and there shall not be any reversion. However, the department is directed to fix the inter-se seniority of the Officers in the said cadre and place them in accordance with their seniority.