Research › Search › Judgment

Patna High Court · body

2014 DIGILAW 1083 (PAT)

Bharat Sanchar Nigam Limited v. Union of India

2014-10-21

ANJANA MISHRA, I.A.ANSARI

body2014
ORDER : ANJANA MISHRA, J. The present writ application puts to challenge the order, dated 30.05.2013, passed, in O.A. No. 64 of 2013, by the learned Central Administrative Tribunal, Patna Bench, Patna (hereinafter referred to as “the learned Tribunal”), whereby the learned Tribunal has directed the petitioners herein (i.e., the respondents in O.A. No. 64 of 2013) to proceed with the recruitment process expeditiously fixing a period of three months to complete the said exercise. The learned Tribunal has also clarified that promotions, if any, will remain subject to the final outcome of the Special Leave to Appeal (Civil) No. 6488 of 2008, which is still pending. The learned Tribunal has further directed the petitioners herein shall fill up the available vacant posts without any further delay as the matter has been delayed beyond normal human comprehension. 2. Against the aforementioned directions, the respondents, in O.A. No. 64 of 2013, had preferred a review application bearing R.A. No. 55 of 2013 in the learned Tribunal, but the same was dismissed by order, dated 08.02.2014 upholding, thus, the order passed, on 13.05.2013, aforementioned, in O.A. No. 64 of 2013. The petitioners herein (i.e., the respondents in O.A. No. 64 of 2013), therefore, seek, now, to get set aside the order, dated 08.01.2014, passed in R.A. No. 55 of 2013 and also the order, dated 13.05.2013, passed in O. A. No. 64 of 2013. 3. The factual matrix of the writ application can be set out as under:- (i) The petitioner no. 1 herein, namely, Bharat Sanchar Nigam Limited, is a Government of India Enterprise and petitioner Nos. 2 to 5 are officials of petitioner no. 1, who were respondents before the learned Tribunal. (ii) Respondent Nos. 3 and 4 herein, being employees of Bharat Sanchar Nigam Limited (hereinafter referred to as “BSNL”), were appointed on the posts of Stenographer and have been working, in the said capacity, till date. (iii) The Bihar Telecom Circle, Patna, called for applications, vide letter No. Rectt/PA(B)/Exam/07, dated 17.5.2007, for recruitment of Personal Assistants under 50 per cent quota from amongst the Stenographers through Limited Internal Competitive Examination (hereinafter referred to as “LICE”) with instructions contained in the Recruitment Rules of Personal Assistant circulated by BSNL Corporate Office, New Delhi, vide letter no. 66-1/07-BE-2, dated 12.04.2007, to all Telecom Circles of the BSNL. 66-1/07-BE-2, dated 12.04.2007, to all Telecom Circles of the BSNL. The examination (i.e, LICE )for the same was to be held in two parts, namely, Part A (written test) and Part B (Typing and Shorthand). (iv) As many as 12 Stenographers of Telecom Bihar Circle applied for the LICE seeking promotion to the grade of Personal Assistant. All eligible candidates were issued Admit Cards to appear in Part A examination (written test) of the said LICE, which was to be held on 05.08.2007. (v) However, on 04.08.2007, three candidates, namely, Akhilesh Kumar, Sanjeev Kumar and Mukesh Kumar, were debarred from appearing, in the LICE, by the Bihar Telecom Circle as per instructions of the BSNL Corporate Office, New Delhi, vide letter No. F. No. 25-1/2007-Pers. II, dated 02.08.2007, on the ground that they had not completed five years of service, in the Bihar Telecom Circle, as stipulated in Rule 38 of the Posts and Telepraphs Manual. (vi) Part A examination was held, on 05.08.2007, in respect of nine eligible candidates and it result was declared, vide letter No. Rectt/PA (D)/Exam/2007, dated 12.10.2007, which revealed that only six candidates had qualified in the written test. (vii) Out of the three candidates so debarred from appearing in the LICE, Akhilesh Kumar moved this Court against rejection of his candidature and vide order, dated 09.10.2007, passed in CWJC No. 11134 of 2007, a learned single Judge of this Court quashed the order of rejection and directed BSNL to hold special examination for the writ petitioner, namely, Akhilesh Kumar, and if he qualifies in the same, his case will be considered with the rest of the candidates, who had participated in the examination already held. The said order was put to test in LPA No. 314 of 2008, but the LPA, filed by the BSNL, was dismissed on 30.04.2008 and accordingly, the matter was carried, in appeal, to the Supreme Court. The appeal so filed, gave rise to SLP ( C) No. 26078 of 2008, wherein notices have been issued to the respondents herein and, later on, the said SLP came to be tagged along with one SLP ( C) No. 6488 of 2008 and the matter is, now, to be taken up, for hearing, in due course. The appeal so filed, gave rise to SLP ( C) No. 26078 of 2008, wherein notices have been issued to the respondents herein and, later on, the said SLP came to be tagged along with one SLP ( C) No. 6488 of 2008 and the matter is, now, to be taken up, for hearing, in due course. (viii) Later on, six of the part A examinees, including the respondents herein, as well as the said Akhilesh Kumar gave an application to cancel the previous result of Part A examination and requested to conduct Part A examination afresh. However, respondent No. 3 herein, namely, Asrarul Haque, later on, withdrew his consent for holding fresh examination. (ix) Thereafter, Asrarul Haque and two others filed an Intervention Petition in SLP ( C ) No. 26078 of 2008, in Supreme Court, seeking to be impleaded as parties in the case; but the Supreme Court, vide order, dated 27.02.2012, declined to implead them on the ground that they would not, in any way, be affected by the impugned order to be passed by this Court and further directed that the case would be heard as and when the matter is listed. (x) Consequent upon the order, so passed by the Supreme Court, the respondents herein filed O.A. No. 64 of 2013 with a prayer for issuance of a direction to the respondents in the O.A. (i.e. the BSNL) to conduct Part B examination, namely, Typing and Shorthand Test for promotion of applicants to the posts of Personal Assistant, in the Bihar Telecom Circle, at the earliest and, thereafter, to finalize the case of promotion of the applicants with all consequential benefits. (xi) The writ petitioners, as respondents in the O.A., contested the proceedings and, upon hearing, the learned Tribunal allowed the said O.A., vide order, dated 30.05.2013, with a direction to complete the recruitment process, at the earliest, within a period of three months from the date of receipt of a copy of the order. (xii) Aggrieved by the order aforementioned, the BSNL preferred a review application bearing R.A. No. 55 of 2013 for review of the said judgment and order, dated 30.05.2013, passed in O.A. No. 64 of 2013; but the same was dismissed on 08.01.2014. (xii) Aggrieved by the order aforementioned, the BSNL preferred a review application bearing R.A. No. 55 of 2013 for review of the said judgment and order, dated 30.05.2013, passed in O.A. No. 64 of 2013; but the same was dismissed on 08.01.2014. (xiii) It is in the background of the above facts situation that the writ petitioners have assailed the order, dated 30.05.2013, as well as the order, dated 08.01.2014, passed, in O.A. No. 64 of 2013 and R. A. No. 55 of 2013, respectively. 4. The contention raised by the petitioner BSNL before this Court is that the learned Tribunal has seriously erred inasmuch as it has failed to appreciate that the entire matter, regarding recruitment of Personal Assistants on the basis of LICE from amongst Stenographers, was before the Supreme Court and until and unless the matter, pending in the Supreme Court, is decided, the BSNL cannot proceed to conduct Part B examination. The BSNL also submits that since the High Court’s order, dated 09.10.2007, is under consideration before the Supreme Court, wherein notices have already been issued, the BSNL could not have proceeded to conduct Part B examination. 5. The learned Tribunal, however, upon hearing the candidates, who had passed the Part A examination (O.A. applicants) and also the BSNL, viewed the matter in its entirety and came to the conclusion that there were eight posts to be filled up and it was an admitted position that only six persons had qualified in the Part A examination and, therefore, there was no impediment, on the part of the BSNL, to the process of completing the Part B examination by taking necessary Shorthand test as was required. The learned Tribunal noted that the result of Part A examination had been published way back on 05.08.2007 and since there had neither been any stay in force thereafter nor any restriction imposed on the BSNL to proceed with the recruitment process, the inaction, on the part of the Department, was not only inexplicable, but also unjustified. 6. The learned Tribunal further observed that due to non-filling up of promotional posts, there was an all pervasive demoralizing effect on the employees, who were entitled to be so promoted, and has also caused and affected the smooth and efficient running of the administration. 6. The learned Tribunal further observed that due to non-filling up of promotional posts, there was an all pervasive demoralizing effect on the employees, who were entitled to be so promoted, and has also caused and affected the smooth and efficient running of the administration. It was also stated, in the order of the learned Tribunal, that even though there was no stay order, either by this High Court or by the Supreme Court, restraining the BSNL, in any manner, to proceed further and complete the recruitment process, BSNL had failed to go ahead with the recruitment process without any justifiable reason. 7. However, in view of the fact that the Special Leave to Appeal was pending, the learned Tribunal directed that the recruitment process or promotional order would be subject to the final outcome of the Special Leave to Appeal, but directed that to the extent the vacant posts are available, the same shall be filled up as early as possible without any further delay as the matter has been delayed beyond normal human comprehension. 8. The review application, seeking to get set aside the order passed in O.A. No. 64 of 2013, has also been rejected by the learned Tribunal, vide order, dated 08.01.2014, passed, in R.A. No. 55 of 2013, wherein the learned Tribunal, while addressing itself to the issue, has observed that the scope of review is very limited and a Tribunal is not permitted to re-appreciate a fact, which can only be undertaken by the higher forum and agitated in appropriate writ petition before the High Court and, thus, dismissed the review application. 9. We have heard Mr. Harendra Prasad Singh, learned Counsel for the BSNL, and Mr. Md. Anis Akhtar, learned Central Government Counsel. We have also heard Mr. Rudal Prasad, learned Counsel appearing on behalf of respondent Nos. 3 and 4, and perused the various orders passed by the Supreme Court and also the orders passed by this Court. 10. It transpires from a perusal of all relevant orders that at no point of time, was the BSNL restrained, in any manner, from proceeding with the recruitment process and though the results of the Part A examination of LICE was declared as far back as in August, 2007, the matter has been kept pending on the ground of pendency of the Special Leave Petition. 11. 11. It is well settled that unless and until there is a specific restraint order passed by a court of law, the recruitment process, which has already been set into motion, cannot be lingered and kept hanging to the detriment of those, who are entitled to succeed in the same. The BSNL, petitioners herein, have not brought on record anything before this Court to persuade to think otherwise. 12. It is evident from the perusal of the records and also from due consideration of the orders passed by the learned Tribunal that the matter, regarding recruitment of Personal Assistants on the basis of LICE, which was started in 2007 and in respect whereof, results of the written examination were published in August, 2008, have been kept pending and Part B examination has not been conducted till date so as to complete the recruitment process for reasons, which cannot be accepted by any Court of law. The learned Tribunal has rightly asserted that the delay caused is not only inexplicable, but also not justified. We have also observed that the learned Tribunal has proceeded to exercise abundant caution by directing that the results of the promotion would be subject to the decision in the Special Leave to Appeal. 13. Under the aforementioned circumstances and for the reasons indicated above, we find ourselves in full agreement with the order passed by the learned Tribunal in O.A. No. 64 of 2013. Further-more, we are also of the view the learned Tribunal has rightly rejected the application for review as no good grounds had been made out for reviewing the order passed in O.A. No. 64 of 2013. 14. In the result, the orders, dated 30.05.2013, passed in O.A. No. 64 of 2013 as well as the order, dated 08.01.2014, passed in R. A. No. 55 of 2014, are hereby affirmed and the petitioners herein are directed to proceed in accordance with the directions issued in O.A. No. 64 of 2013 15. The writ petition is, thus, dismissed. 16. No order as to costs.