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2008 DIGILAW 510 (AP)

Y. Mohana Rao v. Bharat Sanchar Nigam Limited

2008-07-15

L.NARASIMHA REDDY

body2008
JUDGMENT Bharat Sanchar Nigam Limited (BSNL), the 1st respondent herein, issued an amended Transfer Policy, on 07-05-2008, for being followed, while effecting transfers of different categories of employees. The petitioners are employees of Group-B category of the BSNL. They feel aggrieved by Clauses 11 (d) and 12(i) of the Transfer Policy. 2.The petitioners were initially working in Group-C category. In the recent past, they were promoted to Group-B, for which the unit of appointment and seniority is Secondary Switching Area (SSA). SSAs are said to be almost co-extensive with the revenue districts in the State. All of them were given postings in Group-B, within the same SSAs. 3. The stay, or tenure of an employee at a particular unit of appointment, such as SSA circle, becomes an important factor, to identify an employee, for transfer to another place or unit. Clauses 11 (d) and 12(i) of the Transfer Policy direct that while reckoning the tenure of an employee at SSA, the service rendered by him in the previous cadre would also be taken into account. This has resulted in the service of the petitioners, rendered in Groups C and B categories, being clubbed for determining the tenure, in the context of deciding their transferability. The grievance of the petitioners is that while the tenure of the direct recruit Group-B employees is reckoned from the date of his posting in the SSA, a discriminatory treatment is accorded to them, by ,adding the service in the feeder category also. 4. The respondents filed a counter-affidavit, denying the averments made by the petitioners. It is stated that several employees were found to be working in the same station, for a fairly long period, though in different capacities, and it was felt desirable to shift them to other stations. It is pleaded that the direct recruit Group-B employees stand on a different footing, constitute a separate class and that the petitioners cannot draw comparison with them. 5. Sri J. Sudheer, learned counsel for the petitioners, submits that once an employee is promoted to a higher category, he discharges a totally different kind of duties, and by no stretch of imagination, the service in a superior post can be treated as the extension of the one, in the feeder category. 5. Sri J. Sudheer, learned counsel for the petitioners, submits that once an employee is promoted to a higher category, he discharges a totally different kind of duties, and by no stretch of imagination, the service in a superior post can be treated as the extension of the one, in the feeder category. He contends that petitioners were posted in the same SSA, even after promotion, as per the convenience or requirement of the respondents, and such a circumstance cannot be cited against the petitioners. He further submits that the discriminatory nature of the provisions challenged in these writ petitions is evident from the fact that superior categories of posts were exempted from such a process. 6. Sri D. Prakash Reddy, learned Senior Counsel, who appeared for the respondents, on the other hand, submits that the petitioners do not have any fundamental or legal right to insist that they be posted, at a particular place, and that a policy formulated for internal guidance of the respondents cannot be challenged in a writ petition. He contends that though the duties, attached to the posts of Groups Band C are different from each other, continuous stay of an employee, at the same place, in these two capacities, would have its own impact on the efficiency or functioning, and that no exception can be taken to the impugned Clauses. Learned Senior Counsel submits that even an employee, who, on being promoted to Group-B, to a different place, is also subject to transfer, and the petitioners cannot insist that they cannot be shifted by drawing comparison with direct recruit Group-B officers. 7. To ensure objectivity in the matter of effecting transfer of its large number of employees, the 151 respondent evolved policies. Over the time, either new policies were framed, or existing ones were amended. It issued such a policy on 07-05-2008. The scope of these writ petitions is, limited to the method of reckoning the tenure or period of stay, of certain categories of employees. Section-B of the Transfer Policy had stipulated the tenures, up to which an employee can be continued at a station, SSA or circle, and his correspondence becoming ripe, for being transferred. Different tenures are prescribed for various categories. Section-B of the Transfer Policy had stipulated the tenures, up to which an employee can be continued at a station, SSA or circle, and his correspondence becoming ripe, for being transferred. Different tenures are prescribed for various categories. Clauses (11) and (12) of the Transfer Policy, to the extent they are necessary for the purpose of these writ petitions, read as under: "Clause (11): (a) Transfer Tenure: Annual poor of qualifying employees eligible for transfer shall be drawn on the basis of following tenure: ________________________________________________________________________ SI. No. Executive Level Post tenure Station/SSA tenure Circle tenure 1. SAG or equivalent 4 6 8 2. JAG or equivalent 4 8 12 3. STS or equivalent 4 10 15 4. TES Gr.B/JTS or 4 10 18 quivalent (b) Minimum period of three years at a location shall be maintained as far as possible in order to avoid hardship to the employees. (c) Tenure at a particular location shall include consecutive postings in different field units in the same location. (d) For counting Station/SSA tenure, the period of service rendered in the previous cadre(s)/grade(s) would be counted. For Inter Circle transfer, stay will be counted from the date of regular promotion/recruitment into the grade of JTO/JAO and others equivalent to the first level of Executive Hierarchy. Inter circle tenure based transfer in respect of Executives will continue to be restricted for SDE/Other equivalent levels and above..." (Clauses (e) to (k) are not necessary) Clause (12): While the transfers on Administrative grounds and Request transfers shall be governed by Rule 7 and Rules 8 and 9 above respectively, following guidelines shall also be applicable for transfer of executives within recruiting Circle: (i) Such of those executives who have completed 4 years of stay on a post or 10 years of stay in a station/SSA may be transferred to another post/another station/SSA within the Circle's jurisdiction. For intra-circle transfers, total stay of the executives shall be counted including that belonging to previous cadre(s)/grade(s) irrespective of category (non-executive/executive). In case of executives of non-territorial circles, posting within territorial jurisdiction of recruiting circle shall be counted towards stay tenure purpose" (Clause (ii) is not necessary). 8. From the above, it is clear that while reckoning the tenure of an employee in the SSA, the service rendered in the previous cadre, would also be added, to decide the transferability of the employees in the relevant cadre. 8. From the above, it is clear that while reckoning the tenure of an employee in the SSA, the service rendered in the previous cadre, would also be added, to decide the transferability of the employees in the relevant cadre. To demonstrate it, let it be assumed that 'P' was working in SSA-X, in Group-C, from the year 1995. He earned promotion to the post in Group-B, in the year 2005, and was posted in the same SSA. In the same SSA, a direct recruit Group-B employee, namely 'Q' was posted in the year 2000. If their tenure or stay in the SSA is to be counted to effect transfers, in the year 2007 for 'Q', it will be 7 years, whereas for 'P' it would be 12 years, though his tenure in the Group-B post was just two years. On account of this, 'P', whose stay in the concerned post was less by 10 years than that of 'Q', would be identified for being transferred. 9. Another facet of this, is, that within the SSA-X, 'P' may have been shifted to a different place on promotion to Group-B. For example, in SSA Khammam, 'P' may have worked in Group-C at Madira, and posted to Khammam on promotion to Group-B. Still, the entire period is reckoned as one unit. 10. It hardly needs any mention, that the nature of duties and conditions of service for each category of post, are different from the other. The mere fact that the employee worked in the same place, but in different capacities, cannot wipe 'away the functional and qualitative difference. Even in the limited context of transfers, what becomes relevant is, the continued functioning of an employee in the same capacity. The unification of the tenures in different categories of posts, at the reductio ad absurdum, makes the place of residence, as the deciding factor. In these days of improved communication, it is not difficult, that one would have his residence at a particular place, and/but discharges the duties at a place, which is fairly distant. If he worked at different places, even while continuing his residence at the same place, he cannot be made to suffer any disadvantage in the matter of transfers. In these days of improved communication, it is not difficult, that one would have his residence at a particular place, and/but discharges the duties at a place, which is fairly distant. If he worked at different places, even while continuing his residence at the same place, he cannot be made to suffer any disadvantage in the matter of transfers. If the apprehension is that the employee resorted to any acts, comparable to misconduct, on account of his continued stay, be it working or residence, he is always liable to be shifted on administrative grounds. Clubbing of the tenure of two different posts is difficult to be sustained in law. 11. Another way of looking at the matter is that on being promoted to Group-B, while some were retained in the same SSA, others were transferred to different SSAs, depending on the exigencies of service or need. The employee hardly has any say, in the matter of being retained in, or shifted out of the SSA, on promotion. The tenure of the person, who was transferred to another SSA, is restricted to the one, at that station, as an employee in Group-B whereas for the employee, who was retained in the same SSA, his stay in the post of Group is also reckoned. It has already been pointed out that even if he worked in different stations in the SSA, while in Group-C, all the period is reckoned, and tagged on to the one, in Group-B. 12. It is not uncommon that when an employee from Group-B is promoted to a superior post of circle cadre and posted in the same circle. The policy does not provide for tagging on the service in Group-B, to the circle cadre post. Such a phenomenon is typical, only to the tenure in SSA. Therefore, the discrimination is writ large, in this context. 13. It is true that the transfer of an employee is an incidence of service, and the Courts would be slow, to interfere with the orders of transfer. We are not concerned with the individual transfers. When the respondents themselves evolved a policy, to be followed in the transfers, it must satisfy the test of reasonableness, and should not be arbitrary and discriminatory. Though it is sought to be argued that direct recruit officers of Group-B are a distinct class, from those on promotion, it is difficult to accept it. When the respondents themselves evolved a policy, to be followed in the transfers, it must satisfy the test of reasonableness, and should not be arbitrary and discriminatory. Though it is sought to be argued that direct recruit officers of Group-B are a distinct class, from those on promotion, it is difficult to accept it. The reason is that such a classification has no nexus with the object sought to be achieved. 14. Viewed from any angle, this Court does not find any basis for the discriminatory treatment accorded to the employees of Group-B, who were promoted to (sic. from) Group-C and posted in the same SSA, in the context of reckoning their tenure for identifying their transferability. Therefore, Clauses 11 (d) and 12(i), in so far as they provide for tagging on the service rendered in previous cadre/grade, while counting the tenure at a station/SSA, is held to be arbitrary and discriminatory, and thereby violative of Article 14 of the Constitution of India. 15. The writ petitions are allowed. There shall be no order as to costs.