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2013 DIGILAW 505 (GAU)

Umesh Chandra Kalita v. Union of India

2013-07-31

I.A.ANSARI, INDIRA SHAH

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. This writ petition, made under Article 226 of the Constitution of India, has put to challenge the order, dated 31.08.2010, passed, in Original Application (in short, OA") No. 59 of 2010, by the learned Central Administrative Tribunal, Guwahati Bench, dismissing the OA, which the petitioners had filed seeking directions to be issued to the respondents to make the promotion of the respondents to the cadre of Telephonic Technical Assistant (hereinafter referred to as 'TTA'), with effect from the year 1999-2000. We have heard Mr. PP Boruah, learned counsel, for the petitioners, and Mr. MR Das, learned counsel, appearing on behalf of the respondents. 2. The material facts, giving rise to the present writ petition, may, in brief, be set out asunder: A. Altogether 11 persons including the present 8 petitioners came to this Court with a writ petition made under Article 226 of the Constitution of India, which gave rise to W.P. (C) No. 620 of 2004, their case being briefly stated thus: (i) The petitioners herein were appointed, on different dates, in the year 1993-1994, as Telephone Mechanic/telecommunication Mechanic. In terms of the Telecom Technical Assistant Recruitment Rules, 1998, (in short 'the Rules of 1998'), which came into force on 06.02.1999, whereunder a Telephone Mechanic/telecommunication Mechanic was eligible for consideration for promotion to the post of TTA on completing five years of regular service in the grade of Telephone Mechanic/telecommunication Mechanic. (ii) The grievance of the present petitioners, in W.P. (C) No. 620 of 2004, was 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/telecommunication 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 were 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/telecommunication Mechanic in other Circles of the respondent department, including the North Eastern Circle, Shillong, had already 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. (iii) The further grievance of the writ petitioners, in W.P. (C) No. 620 of 2004, was that the Rules of 1998 were amended by bringing into force, on 27.07.02, the Telecom (Technical) Assistant Recruitment Rules, 2001 (in short, 'the Rules of 2001'), whereby promotional avenues of the Telephone Mechanic/telecommunication Mechanic had 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/telecommunication Mechanic. This apart, the Rules of 2001 also envisaged holding of limited departmental competitive examination for promotion to the post of TTA from the Group-C employees, which consisted of Telephone Mechanic/telecommunication Mechanic too. Under the Rules of 1998, there was no provision for holding limited departmental competitive examination and, hence, 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. Consequently, 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 posts of TTA. (iv) However, the respondents/authorities concerned had 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 was, according to the petitioners, in W.P. (C) 620/2004, unreasonable and impermissible in law inasmuch as the Rules of 2001 were, contend the petitioners, prospective in nature and their cases ought to have been considered, pleaded the petitioners, in terms of the provisions of the Rules of 1998, particularly, because there had been, 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. B. Opposing the petitioners' case, the case, which the respondents had set up, in W.P. (C) 620/2004, was, in brief, thus: With the change in the standard of working of the entire telecommunication system, sophisticated equipments were required to be handled by the TTAs and keeping in view this fundamental requirement of the service, which the respondents provide, the respondents had 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 had, so introduced, those petitioners, who were not holding the minimum educational qualification of 10+2 standard certificate, were no longer eligible even for being considered for promotion and even those, who had minimum educational of 10+2 standard certificate, were required to participate in the limited departmental competitive examination so that their suitability for promotion to the posts of TTA could be correctly judged and evaluated. 3. Hearing the parties to the writ petition, this Court pointed out in its judgment and order, dated 26.05.2006, passed in W.P. (C) 620/2004, as under: 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/telecommunication Mechanic is not in dispute. The telecommunications Phone Mechanic Recruitment Rules, 1991 (in short, the Rules of 1991) which came into effect on 22.07. 91, makes it clear that all the posts of Telephone Mechanic/telecommunication 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/telecommunication Mechanic are to be filled up by way of promotion from amongst linemen/wiremen (belonging to the telecommunication Engineering wing of the department), who have passed 10th standard qualification, and the other half of the cadre of the Telephone Mechanic/telecommunication Mechanic are to be appointed through competitive examination from amongst the cadres of lineman/wireman and also from Regular Mazdoors and Casual Mazdoors. Since the petitioners have not been promoted to the post of Telephone Mechanic/telecommunication Mechanic through any competitive examination, it is clear that in order to hold the promotional post of Telephone Mechanic/telecommunication Mechanic, the minimum educational qualification is passing of the 10th standard examination. Since the petitioners have not been promoted to the post of Telephone Mechanic/telecommunication Mechanic through any competitive examination, it is clear that in order to hold the promotional post of Telephone Mechanic/telecommunication 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 25.01.99, 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/telecommunication 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 27.07.01, 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 falls 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. State of Meghalaya and Ors., reported in 2004 (1) GLT 308 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 permitted by a Writ Court. v. State of Meghalaya and Ors., reported in 2004 (1) GLT 308 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 permitted by a Writ Court. In the case of Delhi Jal Board v. Mahinder Singh reported in (2000) 7 SCC 210 , the Apex Court held, "the right to be considered by DPC is a fundamental right guaranteed under Article 16 of 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. 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 posts 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 educational qualification for promotion to the post of TTA, the Rules of 1998, read with the Rules of 1991, make it clear that a Telephone Mechanic/telecommunication Mechanic, having passed 10th standard examination and having put in five years of regular service in the cadre of Telephone Mechanic/telecommunication 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 1998. 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 (s) concerned, who may be so aggrieved, shall be at liberty to approach this Court for appropriate directions. 14. 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 (s) 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. (Emphasis added) 4. Following the directions with which the W.P. (C) No. 620 of 2004, had been disposed of by judgment and order, dated 26.05.2006, aforementioned, the present petitioners were promoted to the cadre of TTA, but as their promotions had been made effective from 28.02.2009, the petitioners came to this Court, again, with a writ petition, made under Article 226 of the Constitution of India, seeking directions to be issued to the respondents to promote the petitioners with effect from the year 1999-2000 on parity with other similarly situated persons and also to give them all consequential benefits. The later writ petition gave rise to W.P. (C) No. 5753/2009. 5. As the subject matter of the writ petition involving petitioners' claim for promotion fell within the jurisdiction of the Central Administrative Tribunal under the Administrative Tribunal Act, 1995, the Court ordered, on 03.02.2010, the petitioners to approach the Central Administrative Tribunal, Guwahati Bench, for remedy of their grievances. 6. It was in the above background of the facts that the OA No. 59 of 2010 aforementioned came into existence. While dismissing the OA by its order, dated 31.08.2010, aforementioned, which stands impugned in the present writ petition, the learned Central Administrative Tribunal, Guwahati Bench, has pointed out that since the present petitioners had sought for promotion to the posts of TTA, with effect from the date on which the posts fell vacant, this Court, while directing the respondents to consider the petitioners' cases for promotion to the cadre of TTA, had not directed the promotion to be made effective from 1999, it shall be treated that their cases were barred by res judicata under Explanation V to Section 11 of the Code of Civil Procedure, which makes it clear that if any relief claimed in a plaint, which is not expressly granted by the decree, shall be deemed to have been refused. The learned Tribunal, therefore, concluded that as this Court had declined the petitioners' prayer for making their promotions retrospective in nature with effect from the date, when the post of TTA fell vacant, the writ petition, namely, W.P. (C) No. 620 of 2004 aforementioned, ought to be treated as partly allowed. Based on these reasonings, the learned Tribunal has dismissed the OA No. 59 of 2010. Aggrieved by its order, dated 31.08.2010, the petitioners are, as already indicated above, present before us. 7. While considering the present writ petition, it needs to be noted, now, that this Court, while disposing of the writ petition, namely, WP (C) No. 620 of 2004, aforementioned, by judgment and order, dated 26.05.2006, did not express any opinion as to whether the promotion of the petitioners shall be retrospective or prospective in nature. What it directed was 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 and the whole exercise, so directed, was to be completed within a period of 4(four) months from the date of the order and, further, whatever decision was reached on the question of promotion of the petitioners by the respondents/authorities concerned ought to be communicated, in writing, to the petitioner concerned and if any of the petitioners felt aggrieved by the decision that might have been taken by the respondents/authorities concerned, while carrying out the directions given hereinbefore, the petitioner (s) concerned, who might be so aggrieved, would be at liberty to approach this Court for appropriate directions. 8. Considering the fact that this Court had made it clear that the qualifying screening test were to be held by the respondents in terms of the Rule, 1998, and not the Rules of 2001, it logically follows that the petitioners were to be considered for promotion for the posts, which had fallen vacant before Rules of 2001 came into force, and those petitioners, who have been found fit for promotion, ought to have been granted, unless shown otherwise, their promotion with effect from the date(s), when the posts, in question, had fallen vacant. 9. 9. Thus, the subsequent claim made by the writ petitioners, in OA No. 59 of 2010, was not barred by res judicata, particularly, when this Court, while leaving the respondents to take a decision in the matter of promotions of the petitioners, had made it abundantly clear that if any of the petitioners felt aggrieved by the decision, which might be taken by the respondents, while carrying out the directions, so given, would remain at liberty to approach this Court for appropriate directions. It is also necessary to note that this Court had clearly directed that the case of each of the petitioners shall be considered for promotion to the posts of TTA in terms of Rule 1998 within the specified period of 4 months; hence, in such circumstances, unless the respondents can show otherwise, the promotions ought to have been given with effect from the date(s), when the posts, in question, had fallen vacant. Considered in this light, it is clear that the learned Tribunal seriously erred in law in treating the grievances of the petitioners, expressed in OA No. 59 of 2010, as barred by res judicata and cannot, therefore, be sustained. 10. In the result and for the reasons discussed above, this writ petition partly succeeds. The impugned order, dated 31.08.2010, passed by the learned Tribunal, is hereby set aside and the proceeding is remanded to the learned Tribunal for a decision in accordance with law. 11. With the above observations and directions, this writ petition shall stand disposed of. No order as to costs.