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2006 DIGILAW 506 (GAU)

Ambikka Bezbaruah v. Union of India

2006-05-26

I.A.ANSARI

body2006
JUDGMENT I.A. Ansari, J. 1. I hava heard Mr. J.L. Sarkar, learned Counsel for the petitioners, and Mr. M. Singh, learned Counsel, appearing on behalf of the respondents. 2. The petitioners herein were appointed, on different dates, in the year 1993-1994, as Telephone Mechanic/Tele-Communication Mechanic. In terms of the Telecom Technical Assistant Recruitment Rules, 1998, ('the Rules of 1998'), which came into force on 6.2.1999, a Telephone Mechanic/Tele-Communication Mechanic was eligible for consideration for promotion to the post of Telecom Technical Assistant ('the TTA') on completing five years of regular service in the grade of Telephone Mechanic/Tele-Communication Mechanic. 3. The grievance of the present petitioners is that in terms of the Rules of 1998, the petitioners, having put in requisite period of service of five years in the grade of Telephone Mechanic/Tele-Communication Mechanic, had become eligible for promotion to the post of TTA as far back as in the year 1999, and though vacancies were available in the posts of TTA, the petitioners wore not considered for promotion and the qualifying screening test, as envisaged under the Rules of 1998, were not held; whereas similarly situated employees, working in the cadre of Telephone Mechanic/Tele-Communication Mechanic in other circles of the respondent department, including the North Eastern Circle, Shillong, have been considered and promoted to the cadre of the TTA, in the year 2000, by holding screening tests in terms of the Rules of 1998. It is also the grievance of the petitioners that the Rules of 1998 were amended by bringing into force, on 27.7.2002, the Telecom (Technical) Assistant Recruitment Rules, 2001 ('the Rules of 2001'), whereby promotional avenues of the Telephone Mechanic/Tele-Communication Mechanic has been drastically reconstructed by making 10+2 standard certificate or equivalent certificate as the minimum educational qualification for promotion to the post of the TTA from the grade of Telephone Mechanic/Tele-Communication Mechanic. The Rules of 2001 also envisage holding of limited departmental competitive examination for promotion to the post of TTA from the group-C employees, which consists of Telephone Mechanic/Tale-communication Mechanic too. The Rules of 2001 also envisage holding of limited departmental competitive examination for promotion to the post of TTA from the group-C employees, which consists of Telephone Mechanic/Tale-communication Mechanic too. Though under the Rules of 1998, there was no provision for holding limited departmental competitive examination and though the petitioners, having become eligible for consideration for promotion to the post of TTA long before the Rules of 2001 came into force, were not required to appear in any limited departmental competitive examination and though the respondents/authorities concerned ought to have held qualifying screening test in terms of the Rules of 1998 for deciding the question of promotion of the petitioners to the post of TTA, the respondents/ authorities concerned have been insisting upon the petitioners and other group-C employees to appear in the limited departmental competitive examinations as envisaged under the Rules 2001. Such insistence by the respondents/authorities concerned is, according to the petitioners, unreasonable and impermissible in law inasmuch as the Rules of 2001 are, contend the petitioner, prospective in nature and their cases ought to have been considered, plead the petitioners, in terms of the provisions of the Rules of 1998, particularly, because there were, according to the petitioners, vacant posts available for considering the cases of the petitioners for promotion to the posts of TTA long before the Rules of 2001 came into force. 4. Opposing the petitioners' case, the case, which the respondents have set up, is, in brief, thus: With the change in the standard of working of the entire Tele-Communication system, sophisticated equipments are required to be handled by the TT As and keeping in view this fundamental requirement of the service, which the respondents provide, the respondents have made, under the Rules of 2001, educational qualification of 10+2 standard certificate mandatory for a Group-C employee to be considered for promotion to the post of TTA. In view of the changes, which the Rules of 2001 have so introduced, those petitioners, who are not holding the minimum educational qualification of 10+2 standard certificate, are not even eligible for being considered for promotion, and even those, who have minimum educational of 10+2 standard certificate are required to participate in the limited departmental competitive examination so that their suitability for promotion to the posts of TTA can be correctly judged and evaluated. 5. 5. While considering the present writ petition, it is, now, essential to note that in terms of the letter, dated 12.12.2001, issued by the Bharat Sanchar Nigam Limited ('the respondent Corporation'), the first limited departmental competitive examination for promotion to the post of TTA, under the Rules of 2001, in respect of the Group-C employees of Assam Telecom Circle, was to be held on 24.2.2002. This limited competitive examination was, however, postponed by the respondent Corporation by letter, dated 12.2.2002. As the controversy with regard to the petitioners' promotion to the posts of TTA could not be resolved by the parties concerned, the petitioners, who are altogether eleven in number, have come to this Court with the help of the present application, made under Article 226 of the Constitution of India, seeking, inter alia, issuance of appropriate writ(s) directing the respondents to hold the screening test/limited departmental competitive examination under the Rules of 1998. 6. Before entering into the merit of the present writ petition, what may be pointed out is that as the process for holding of the limited departmental competitive examination, under the Rules of 2001, had already been initiated, though kept postponed at the time, when writ petition was filed, the respondent Corporation, with the leave of this Court, held a limited departmental examination in terms of the Rules of 2001. Subsequent thereto, the respondent Corporation has also announced, with the leave of the court, the result of the competitive examination so held. Out of the present eleven petitioners, two of the petitioners, namely Gyanendra Singh, (i.e., the petitioner No. 3 herein) and Debasish Bhattacharjee, (i.e., the petitioner No. 7 herein) had appeared in the said limited departmental competitive examinations conducted under the Rules of 2001 and in this examination, while Debasish Bhattacharjee has succeeded, Gyanendra Singh has failed. 7. While considering the present writ petition, what is crucial to note is that the fact that the petitioners were appointed, on different dates, in the year 1993-94, as Telephone Mechanic/Tele-Communication Mechanic is not in dispute. The Tele-Communications Phone Mechanic Recruitment Rules, 1991 (the Rules of 1991) which came into effect on 22.7.1991, makes it clear that all the posts of Telephone Mechanic/Tele-Communication Mechanic have to be filled up by promotion. The Tele-Communications Phone Mechanic Recruitment Rules, 1991 (the Rules of 1991) which came into effect on 22.7.1991, makes it clear that all the posts of Telephone Mechanic/Tele-Communication Mechanic have to be filled up by promotion. These promotional appointments are divided into two categories; half of the strength of the cadre of Telephone Mechanic/Tele-Communication Mechanic are to be filled up by way of promotion from amongst linemen/wiremen (belonging to the Tele-Communication Engineering wing of the department), who have passed 10th standard qualification, and the other half of the cadre of the Telephone Mechanic/Tele-Communication Mechanic are to be appointed through competitive examination from amongst the cadres of linemen/wiremen and also from regular Mazdoors and casual Mazdoors. Since the petitioners have not been promoted to the post of Telephone Mechanic/Tele-Communication Mechanic through any competitive examination, it is clear that in order to hold the promotional post of Telephone Mechanic/Tele-Communication Mechanic, the minimum educational qualification is passing of the 10th standard examination. In other words, in order to receive promotion to the post of TTA, the incumbent is required to have the minimum educational qualification of 10th standard. 8. Bearing in mind what have been indicated above, when I turn to the Rules of 1998, which came into effect on 25.1.1999. I notice that there were two modes of appointment to the post of TTA, namely, by promotion and by direct recruitment. According to the Rules of 1998, the Telephone Mechanic/Tele-Communication Mechanic with five years of regular service in grade-C were eligible for consideration for promotion to the post of TTA through qualifying screening test. There is no dispute before this Court that before the Rules of 2001 came into force on 27.7.2001, the petitioners had satisfied the minimum eligibility criteria for being considered for promotion to the posts of TTA and vacancies in the posts of TTA existed before the Rules of 2001 came into force and had the respondent/authorities concerned desired, the petitioners, having satisfied the eligibility criteria, could have been considered for promotion to the posts of TTA. 9. What is, however, of immense importance to note is that when a person satisfies the eligibility criteria of promotion and the authorities concerned decide to fill up the promotional post, such a person has the fundamental right to be considered for promotion if he fails within the zone of consideration. 9. What is, however, of immense importance to note is that when a person satisfies the eligibility criteria of promotion and the authorities concerned decide to fill up the promotional post, such a person has the fundamental right to be considered for promotion if he fails within the zone of consideration. It is also trite that the promotion of a Government servant shall be considered in accordance with the rules, which were in force on the date, when the Government servant had fallen within the zone of consideration for promotion. Reference may be made, in this regard, to the decision of a Division Bench of this Court in M. Laitphlang (Dr.) (Ms.) and Ors. v. Staten of Meghalaya and Ors. wherein this Court has observed and held as follows: 35. To be considered for promotion, when a person becomes so eligible, is his fundamental right and denial of such right, if discriminatory, cannot be permuted by a writ court. In the case of Delhi Jal Beard v. Mahinder Singh (2000) 7 SCC 210 , the Apex Court, held, "The right to be considered by DPC is a fundamental right guaranteed under Article 16of the Constitution of India, provided a person is eligible and is within the zone of consideration." 40. It is trite that promotion of a Government servant should be considered in accordance with the rules, which were in force on the date, when he had fallen within the zone of consideration for promotion. In the present case, since the writ petitioners had become eligible for promotion under the 1982 Rules and the vacancies were, admittedly available, they ought to have been considered for promotion under the 1982 Rules itself. 10. Bearing in mind the fundamental principle governing promotion of a Government servant, when I turn to the Rules of 2001, what becomes evident is that the Rules of 2001 is prospective in nature. Hence, the Rules of 2001 cannot divest the petitioners of their rights, which the petitioners have already acquired under the Rules of 1998. 10. Bearing in mind the fundamental principle governing promotion of a Government servant, when I turn to the Rules of 2001, what becomes evident is that the Rules of 2001 is prospective in nature. Hence, the Rules of 2001 cannot divest the petitioners of their rights, which the petitioners have already acquired under the Rules of 1998. As a corollary thereto, it is not difficult to hold that on completing the eligibility criteria under the Rules of 1998, since the petitioners became eligible for consideration for promotion to the costs of TTA, their cases cannot be considered in terms of the minimum qualifications, which have been imposed by the Rules of 2001; rather, the cases of the petitioners ought to have been considered for promotion in terms of the Rules of 1998. While the Rules of 2001 make 10+2 standard certificate as the minimum qualificational qualification to promotion to the post of TTA, the Rules of 1998, read with the Rules of 1991, make it clear that a Telephone Mechanic/Tele-Communication Mechanic, having passed 10th standard examination and having put in five years of regular service in the cadre of Telephone Mechanic/Tele-Communication Mechanic, is eligible for consideration for promotion to the post of TTA. When the petitioners had attained the requisite eligibility criteria for the purpose of being considered for promotion to the post of TTA, before the Rules of 2001 came into force, their cases ought to have been considered in terms of the Rules of 1998, when their turn for being considered for promotion had arisen. 11. Because of what have been discussed and pointed out above, it is abundantly clear that the respondent Corporation cannot insist, upon the writ petitioners that the petitioners shall satisfy the eligibility criteria for promotion to the post of TTA under the Rules of 2001 and/or insist upon the petitioners to appear in any competitive examination except what the Rules of 1998 envisage. 12. As has already been pointed out above, even the Rules of 1998 perceive of holding of qualifying screening test. The syllabus for such test has not been spelt out in the Rules of 1993. However, the respondent Corporation shall have, in terms of the Rules of 1998, liberty to prescribe the syllabus for the screening test. 12. As has already been pointed out above, even the Rules of 1998 perceive of holding of qualifying screening test. The syllabus for such test has not been spelt out in the Rules of 1993. However, the respondent Corporation shall have, in terms of the Rules of 1998, liberty to prescribe the syllabus for the screening test. Such qualifying screening test cannot, however, be of the same standard as has been conceived under the Rules of 2001, for, while the Rules of 2001, as already indicated hereinabove, require minimum educational qualification of 10+2 standard certificate, the Rules of 1998 require educational qualification of 10th standard as the minimum qualification for promotion to the post of TTA. 13. In the result and the reasons discussed above, this writ petition partly succeeds. While the respondents are left at liberty to prescribe the syllabus and prepare scheme for holding qualifying screening test in terms of the Rules of 1998, it is made clear that the cases of each of the present writ petitioners shall be considered by the respondents, in terms of the Rules of 1998 for promotion to the posts of TTA. The whole exercise, so directed, shall be completed within a period of 4(four) months from to-day. Whatever decision is reached on the question of promotion of the petitioners by the respondents/authorities concerned shall be communicated, in writing, to the petitioner concerned. If any of the petitioners feel aggrieved by the decision that may be taken by the respondents/authorities concerned, while carrying out the directions given hereinbefore, the petitioner concerned, who may be so aggrieved, shall be at liberty to approach this Court for appropriate directions. 14. Before parting with this writ petition, it is made clear that the directions, which have been given hereinabove, in respect of the petitioners, may not be extended by the respondent/authorities concerned to anyone other than the present petitioners. 15. With the above observations and directions, this writ edition shall stand disposed of. 16. No order as to costs.