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Himachal Pradesh High Court · body

2012 DIGILAW 92 (HP)

Bharat Sanchar Nigam Limited v. Prem Chand Premi

2012-03-13

DEEPAK GUPTA, V.K.AHUJA

body2012
JUDGEMENT Per Deepak Gupta, J (oral) 1. This Letters Patent Appeal has been filed by Bharat Sanchar Nigam Limited (BSNL) and is directed against the judgement of a learned Single Judge of this Court dated 5.10.2007 passed in CWP No. 583 of 2004. The original writ petitioners have also filed Cross Objection in so far as the judgement goes against them. 2. Briefly stated the facts of the case are that the original writ petitioners i.e. respondents No.1 and 2 were appointed as Technician in the erstwhile Department of Telecommunication of the Government of India, in the Himachal Telecom Circle on 11.9.1995 and 18.6.1996 respectively. It would be pertinent to mention that on 1st October, 2000 BSNL was incorporated and the services of the writ petitioners alongwith other employees were taken over by the BSNL. The claim of the petitioners basically is that they should be sent for training for the post of Junior Telecom Officer (JTO). 3. It would be relevant to give background of the rules to decide the matter. 4. Earlier, the service conditions for the post of J.T.O in the B.S.N.L were governed by the statutory rules called Junior Telecom Officers’ Recruitment Rules, 1996 (hereinafter referred to as ‘the Rules of 1996’). Under the Rules of 1996, 50% posts of J.T.Os were to be filled up by way of direct recruitment from open competition and 50% by way of promotion from internal eligible candidates. Out of this internal 50% quota, 15% vacancies were to be filled up by promotion through Departmental Competitive Examination and remaining 35% vacancies were to be filled up through the Screening Qualifying Examination from amongst the eligible departmental candidates. Qua 35% vacancies to be filled up through Screening Qualifying Examination i.e internal promotions quota, the following candidates were eligible:- i) The Phone Inspectors/Auto Exchange Assistants/ Transmission Assistants/Wireless Operators who possess the qualification of degree in Engineering and have completed five years’ regular service in the Cadre of Phone Inspectors/Auto Exchange Assistants/ Transmission Assistants/Wireless Operators. OR ii) Phone Inspectors/ Auto Exchange Assistants/ Wireless Operators/ Transmission Assistants//Telecom Technical Assistants who possess the High School/Matriculation Qualifications and who have completed six years of regular service. 5.Apart from the above qualifications, the candidates had also to qualify the Screening Test. 6. OR ii) Phone Inspectors/ Auto Exchange Assistants/ Wireless Operators/ Transmission Assistants//Telecom Technical Assistants who possess the High School/Matriculation Qualifications and who have completed six years of regular service. 5.Apart from the above qualifications, the candidates had also to qualify the Screening Test. 6. With effect from September 01, 1999, the Rules of 1996 were replaced by the Rules called Junior Telecom Officers’ Recruitment Rules, 1999 (hereinafter referred to as the Rules of 1999). Under the Rules of 1999, 50% posts of J.T.Os are to be filled up by direct recruitment and remaining 50% by way of promotion through Limited Departmental Competitive Examination of B.S.N.L. Out of these 50 % departmental quota, 35% posts are to be filled up by way of promotion from the following eligible candidates:- i) Group -C employees below 50 years of age as on the date of such examinations of the Engineering Wing namelyPhoneInspectors/AutoExchange Assistants/Wireless Operators/Transmission Assistants/TelecomTechnical Assistants/Senior Telecom Office Assistants and possessing the following essential experience:-a) Bachelor of Engineering, Bachelor of Technology or equivalent Engineering Degree in any of the disciplines viz. Telecommunication/ Electronics/ Electrical/ Radio/ Computer OR Bachelor of Science with Physics and Mathematics OR 3 years diploma in Telecom/ Electronics/ Electrical/ Radio/ Computer AND c) 10 years regular service on the post in Group -C. 7. As per letter dated November 10, 1999 issued by the Government of India, Ministry of Communications, Department of Telecommunications, New Delhi, to all the Heads of Telecom Circles/Telecom Districts etc., vacancies of J.T.Os upto August 31, 1999 were to be filled up as per the Rules of 1996 and the vacancies after August 31, 1999 were to be filled up according to the Rules of 1999. It was further mentioned in letter Annexure P-1 that all eligible candidates upto August 31, 1999 under 50 % quota may be permitted to appear in J.T.Os Screening Test to be held shortly. 8. J.T.Os Screening Test was held on April 23, 2000 and an undertaking was taken from all the candidates who had appeared in the test that they would not claim appointments qua the vacancies available after August 31, 1999. 9. The petitioners were not eligible to appear in the test since both of them had not completed six year service at the relevant time. 9. The petitioners were not eligible to appear in the test since both of them had not completed six year service at the relevant time. A petition was filed before the Central Administrative Tribunal, New Delhi and during the pendency of the petition it was ordered that the applicants should be permitted to sit in the screening test against 35% quota and on this basis the petitioners appeared and qualified the test. The petitioners, however, were not sent for training mainly on the ground that they did not fulfill the essential qualification at the time when the test was conducted and hence could not have been permitted to sit in the test and their qualifying the test was of no avail to them. 10. It would be pertinent to mention that BSNL from time to time diverted posts from 50% quota which were meant to be filled up by direct recruitment. From the year 2001 to 2005 each year five hundred vacancies which were to be filled up by the direct quota were diverted to the departmental quota and the persons in the waiting list of promotees were accommodated. The petitioners, therefore, claimed that once diversion has been done, since they had qualified the test they should also be sent for training against the seat diverted from the direct quota to the departmental quota. 11. The learned Single Judge after hearing the arguments passed a detailed order on 5.7.2007, which reads as follows:- “It is not disputed that the quota meant for direct recruits with effect from 2001 to 2006 has been diverted to departmental quota. The resultant vacancies have been filled up by way of promotion. In the rules there is no provision for diversion of the posts, but today the copy of the minutes of 23rd meeting of the Board of Directors of BSNL held on 30th March, 2001 has been produced by Mr. Ashok Sharma, Advocate. It is not evident from the decision under what authority of law the posts have been diverted. The posts in question could only be diverted if the advertisement had been issued and the sufficient numbers of candidates were not available pursuant to the advertisement, that too, for making ad hoc promotions. The decision appears to have been taken in contravention of the mandatory provisions of recruitment and promotion rules. The decision prima facie is bad in law. The posts in question could only be diverted if the advertisement had been issued and the sufficient numbers of candidates were not available pursuant to the advertisement, that too, for making ad hoc promotions. The decision appears to have been taken in contravention of the mandatory provisions of recruitment and promotion rules. The decision prima facie is bad in law. The respondents are directed to file supplementary affidavit giving therein the details of number of posts which have been diverted from direct recruitment quota to departmental quota, the number of advertisements which had been issued by the department calling applications for filling up the posts of direct recruitment quota and the authority under which the posts of direct recruitment quota have been diverted to departmental quota. The entire record pertaining to the case w.e.f. 2001 will also be placed before this Court for perusal. The supplementary affidavit be filed within three weeks.” 12. Thereafter the matter was heard and the learned Single Judge held as follows:- “The upshot of the above discussion is that: i. the petitioners were not eligible for being promoted to the post of JTO from the feeder category of TTA since they had not put in six years of service as per the Junior Telecom Officer Recruitment Rules, 1996 notified on 8th February, 1996; ii. the petitioners were also not eligible as per the Junior Telecom Officer Recruitment Rules, 1999 notified on 31st August, 1999; iii. the petitioners have now become eligible since they have completed ten years of regular service in group ‘C’ as per the Junior Telecom Officer Recruitment Rules, 2001 notified on 26th September, 2001; iv. the petitioners have qualified the screening test though they were permitted to appear provisionally as per the result declared on 18th April, 2001 and are entitled to be sent for the training of JTO if the vacancies are available in 35% quota. Accordingly the writ petition is disposed of in view of the observations made hereinabove with the directions to the respondents to send the petitioners for training of JTO on the basis of their qualifying the screening test held on 25th April, 2001 since they have now acquired ten years qualifying service. There shall be no order as to costs.” 13. Accordingly the writ petition is disposed of in view of the observations made hereinabove with the directions to the respondents to send the petitioners for training of JTO on the basis of their qualifying the screening test held on 25th April, 2001 since they have now acquired ten years qualifying service. There shall be no order as to costs.” 13. The appellant BSNL is aggrieved against the direction that the petitioners had now become eligible since they had completed 10 years of service they should be sent for training of JTO if vacancies are available in 35% quota. On the other hand the petitioners contended that their petition should have been allowed. At this stage, it would be pertinent to mention that the Punjab and Haryana High Court dealt with a matter wherein the same issues were directly involved. In that case the challenge was to the diversion of the post from the direct quota to the departmental quota and the petitioners claimed that the policy of the BSNL diverting the posts was absolutely wrong. It was also pleaded that only the vacancies upto 1999 could be filled up on the basis of the screening test held on April, 2000 and all those employees who may have qualified the test had no right to be appointed qua the vacancies which occurred and were available after September, 1999. The Division Bench of the Punjab and Haryana High Court came to the conclusion that the diversion of posts was totally illegal and wrong and it could not be said that this diversion was made for the smooth functioning of the administration. It was also pointed out that the Government of India did not approve the diversion of the posts. The Division Bench of the Punjab and Haryana High Court upheld the contention of the petitioners and directed the respondent-BSNL to restore the posts diverted from direct recruitment quota to 35% departmental quota. It would be pertinent to mention that this judgement of the Punjab and Haryana High Court has been upheld by the Apex Court and the Special Leave to Appeal filed by the BSNL was dismissed on 12.7.2010. 14. From the above discussion, it is clear that the practice of the BSNL to divert the post from direct quota to the departmental quota has been held to be illegal, wrong and has been set-aside. 14. From the above discussion, it is clear that the practice of the BSNL to divert the post from direct quota to the departmental quota has been held to be illegal, wrong and has been set-aside. Therefore, no diversion of posts can be done. The learned Single Judge in this case has also given similar directions in his earlier order. The learned Single Judge also held that the petitioners were not even eligible to sit for the screening test in the year 1999. If they were not eligible to sit in the screening test, merely because they were permitted to sit on the basis of the interim order of the Tribunal they cannot be sent for training on the basis that they had qualified a test which admittedly they were not eligible to appear. Therefore, we are of the considered opinion that the learned Single Judge erred in issuing the last direction that the original writ petitioners be sent for training of JTO, if vacancies are available in 35% quota. The appeal is, therefore, allowed and the cross objections are rejected. It is, however, made clear that the dismissal of this case will not come in the way of the consideration of the case of the petitioners for promotion/sent for training in accordance with the existing rules, if vacancies in the departmental quota are available. No costs.