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SYNOPSIS AND LIST OF DATES Subject matter of this WP refers to fixation of seniority of SubDivisional Engineers (Telecom Engineering Service Group B) of the Department of Telecom now absorbed in BSNL a Government Company established by Government of India. Date of establishment of BSNL is 1.10.2000 and the absorption of these Officers in BSNL is also from the same date although the absorption orders came to be issued subsequently. Recruitment to the cadre of Sub-Divisional Engineer (SDE) as per the Cadre and Recruitment Rules framed by the

Department of Telecom is 100% by way of promotion from the feeder cadre of Junior Telecom Officer (JTO). Initially

recruitment rules 1966 framed under Article 309 came into force on 15.6.1966. These rules came to be replaced by 1981 Rules notified on 7.5.1981. Thereafter 1996 Rules came to be notified on 23.7.1996 replacing 1981 Rules. BSNL frames its own rules in this regard only on 28.2.2002. However, in respect of the subject matter of this WP Recruitment Rules of 1981 and 1996 are relevant. As per 1981 Rules, promotion to this cadre is done from the feeder cadre of JTO by selection on the basis of departmental qualifying examination to the extent of 66 2/3% and by selection on the basis of LDCE to the extent of 33 1/3% and their inter-se-seniority is to be fixed in 2:1 ratio. In the 1996 Rules the quota is changed from 66 2/3% to 75% and 33 1/3%

to 25% quota and qualifying examination prescribed for 66 2/3% quota is done away. Further while the quota of 75% is to be filled on the basis of seniority-cum-fitness the quota of 25% is filled on the basis of departmental competitive examination. Department has followed the method prescribed under 1981 rules for fixation of inter-se-seniority of these two categories even after coming into force of 1996 rules and in 3:1 ratio in place of 2:1 ratio since the quota is revised to 75:25 under 1996 Rules. Seniority list of this cadre is released by the authority in 7 parts called as list No.1 to 7. Names of the petitioners are appearing in list No.6 and 7.

Those who came to be promoted in the year 2000-2001 under 75% quota in respect of the vacancies pertaining to the vacancy years 1996-1997 to 2000-2001 are questioning the method followed by the department for fixation of seniority of the promotes of the 25% quota in respect of the said vacancy years who came to be promoted actually in the year 2004 mainly on the ground that those who came to be promoted in the year 2004 cannot become seniors to them as they were promoted in the year 2000-2001.

CAT Chandigarh Bench in this connection has held that if the recruitment takes in a single process in respect of 75% and

25%, then it is permissible to follow the rule of rotation of vacancies for fixation of inter-se-seniority of incumbents appointed through both the sources. On the other hand, if the recruitment is not made in one process in respect of both the quota, the seniority has to be fixed on the basis of dates of joining of incumbents in the promotional grade. Tribunal holds that facts of the case before it are similar to the facts in case of Central Provident Fund Commissioner and Another Vs N.Raveendran and others (1995) Supplementary (4) SCC page 654= 1995 (8) SLR page 827 decided by this Honble Court and as such the ruling in that case is applicable.

CAT Ernakulum Bench and CAT Bombay Bench following the judgment of CAT Chandigarh Bench have taken similar view resulting in quashing of the seniority list No.6 and 7 wherein seniority of the petitioners was settled by the department by following 3:1 ratio in fixation of inter-se-seniority of promotes of both the quota without reference to their date of promotion. The stand taken by these benches receive the affirmation from the Kerala High Court and Bombay High Court.

However, Karnataka High Court has affirmed the view taken by CAT Bangalore Bench which directs the authority to assign notional date of promotion in respect of the promotes under 25% quota like the petitioners herein on par with date of

promotion of the Officers under 75% quota with reference to the vacancy years in question. Andra Pradesh High Courts view on such issue is that the seniority has to be fixed in accordance with the ratio meant for both quota as has been done by the BSNL while preparing the seniority list No.6 and 7.

Under the circumstances, petitioners have invoked Article 32 jurisdiction of this Honble Court for a ruling of this Honble Court in respect of the issue on hand for the reasons and grounds urged in this WP. Petitioners are also not parties in the cases before the three forums referred to above as they are working in Karnataka Telecom Circle.

07.05.1981:

Ministry of Communication of Union of India notifies the Telegraph Engineering Service (Group B) Recruitment Rules 1981 framed under Article 309 of the Constitution of India. Copy of the rules is annexed as ANNEXURE P-1. As per these rules an Engineering

Supervisor (now called as Junior Telecom Officer) with five years regular service is eligible for promotion to the grade of

Assistant Engineer (now called as SubDivisional Engineer) after passing the

prescribed qualifying examination on the basis of seniority-cum-fitness selection of which is made on the recommendation of a duly constituted DPC. Quota for such

promotion is 66 2/3%. An Engineering Supervisor (now called as Junior Telecom Officer) with five years regular service is also eligible for promotion to the grade of Assistant Engineer (now called as Sub-Divisional Engineer) through a limited departmental competitive

examination (LDCE) on the basis of relative merit. Quota for such promotion is 33 1/3% These rules envisaged normally one

examination consisting of two parts called qualifying-cum-competitive examination for promotion to this service and is supposed to held at least once in a calendar year. Rule 2 (iii) of these rules provide for fixation of inter-se-seniority of the officials who have qualified in the departmental qualifying

examination (66-2/3% quota) and those who have qualified in the limited departmental competitive examination (33-1/3% quota) in the ratio of 2:1 starting with the Officers under 66-2/3% quota. 22.07.1996: 1981 Rules are replaced by 1996 Rules. Copy of said rules is annexed as ANNEXURE P-2. In these rules respective quota is changed to 75% and 25% in place of 662/3% and 33-1/3%. Eligibility condition of 5 years in the cadre of Junior Telecom Officer is changed to 3 years for both quota and the requirement of passing qualifying

examination for seniority-cm fitness quota is removed. Particulars regarding syllabus and

specific seniority

mention of

of

fixation quota in

of

inter-se2:1 ratio

both

mentioned in 1981 Rules are not indicated. However, Respondent-Authority has

continued the existing practice of fixation of inter-se-seniority in 3:1 ratio in place of 2:1 ratio on account of both the quota changing from 66-2/3% and 33-1/3% to 75% and 25%. On the other hand taking advantage of the missing elements in 1996 Rules as listed above, the promotes under 75% quota have taken objection for fixation of inter-se-

seniority in 3:1 ratio and contend that date of entry into the promotional grade should be the criteria for fixation of inter-se-

seniority. 26.04.2000/ 03.05.2000:

Department

issues

promotion

orders

in

respect of 75% quota for the vacancy years 1996-97, 1997-98, 1998-99, 1999-2000 and 2000-2001. 01.10.2000: Formation of BSNL and absorption of

petitioners in BSNL.

20.4.2001:

Department issues notification initiating the exercise to fill up the vacancies under 25% quota in respect of the above mentioned vacancy years 1996-97, 1997-98, 1998-99, 1999-2000 and 2000-2001.

07.12.2001:

Department

issues

one

more

promotion

order in respect of 75% quota for the vacancy years 1996-97, 1997-98, 1998-99, 1999-2000 and 2000-2001. 28.02.2002: BSNL with the approval of its Board makes the rules called as Sub-Divisional Engineer (Telecom) Recruitment Rules, 2002. Copy of the rules is annexed as ANNEXURE P-3. Since the issue involved in this WP is regarding fixation of inter-se-seniority of promotes under 75% quota vis--vis 25% quota in respect of the vacancy years above mentioned, petitioners submit that

Recruitment Rules 2002 are not relevant for resolving the issue on hand. 01.12.2002: Limited Departmental Competitive

Examination (LDCE) notified on 20.4.2001 as explained above came to be held and the

petitioners examination. 15.12.2003:

appeared

in

the

said

Results of the above examination came to be notified and petitioners herein are declared successful.

26.05.2004:

BSNL

pursuant

to

R-2

Department

of

Telecom order No:2-48/2000-STG-II dated 27.4.2004 is pleased to issue office order promoting 1509 officers to the grade of SubDivisional Engineer to fill up the 25% quota vacancies for the vacancy years above mentioned. This order is annexed as

ANNEXURE P-4. Petitioners herein are the part of this 1509 batch of promotes. 28.07.2004: BSNL publishes provisional seniority list No.6 following the method of fixing the inter-seseniority of promotes under 75% quota vis-vis promotes under 25% quota in the ratio of 3:1. 15.11.2004: Similarly BSNL publishes provisional seniority list No.7. Names of the petitioners are appearing in these two lists and their seniority is fixed in the above manner.

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12.01.2005:

BSNL notifies revised seniority list No.6 for circulation among all concerned. This list is annexed as ANNEXURE P-5.

01.03.2005:

BSNL notifies finalized seniority list No.7 for circulation among all concerned. This list is annexed as ANNEXURE P-6.

02.04.2009:

Petitioners and others file OA 181/2009 before the Honble CAT Bangalore Bench seeking directions to the Department to assign the notional date of promotion on par with the date of promotion of 75% quota promotes of the concerned vacancy years with all consequential benefits like notional fixation of pay etc., on the ground of departments failure to cause simultaneous promotion for both quota.

25.08.2009:

Shri.Dewan Chand and others working as Sub-Divisional Engineers in Punjab and

Haryana claiming that they came to be promoted as Sub-Divisional Engineers on officiating basis in the year 1999 and got regular promotion on 16.9.2004 against

seniority-cum-fitness quota (75% quota), file Original Applications Numbered as TA 84-HR-

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2009 & TA 85-HR-2009 under Section 19 of the Administrative Tribunals Act, 1985

before the Honble Central Administrative Tribunal Bench at Chandigarh challenging the seniority list No.6 and 7 contending that procedure followed by the authority in fixing the inter-se-seniority in the ratio of 3:1 is bad in law and it is required to be done with reference to the date of entry into to the promotional cadre of SDE as the criterion. Accepting this contention CAT Chandigarh Bench allows these applications by quashing the impugned seniority list No.6 and 7 with a further direction to the authority to re-draw the seniority list of Officers on the basis of dates of joining of incumbents in the

promotional cadre of SDE. Copy of the CAT Chandigarh Bench order is annexed as ANNEXURE P-7. BSNL has challenged this order before the Punjab and Haryana High Court in CWP 5111/2010 and the same is pending. 23.02.2010: Sri.Thomas Zachariah Munjattu Karingattil working in Kerala Telecom Circle files similar OA 16/2009 challenging the seniority list

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No.6 and 7 before the CAT Ernakulum Bench contending that he having been promoted under 75% quota on 7.12.2001 cannot be shown as junior to those promotes under 25% quota who came to be promoted during 2004. CAT Ernakulum Bench follows the CAT Chandigarh Bench order to quash the

seniority list No.6 and 7. Copy of this order is annexed as ANNEXURE P-8. 04.03.2010: Andra Pradesh High Court in a case involving similar issue concerning the Department of Science and Technology of Union of India in WP No.15053/2009 in case of P.V.Shobha and others Vs UOI and others is pleased to uphold the view taken by the CAT Hyderabad Bench that inter-se-seniority in such

situation is to be fixed on the basis of the percentage of quota fixed for each category. 26.04.2010: CAT Bangalore Bench allows the OA

181/2009 filed by the petitioners herein relying on the Apex Court decision in similar matter rendered in case of Union of India and another Vs J.Santhanakrishnan and

others Civil Appeal No.1655/1997 decided on 27.2.2003 reported in (2007) 15 SCC 694.

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The Honble Tribunal is pleased to direct the authority to assign the notional date of promotion on par with the date of promotion of 75% quota promotes of the concerned vacancy years with all consequential

benefits like notional fixation of pay etc., Copy of this order is annexed as ANNEXURE P-9. 25.11.2010: One Sri.S.Sadasivan who is working as SDE under Maharashtra Telecom Circle files

Application numbered as TA 06/2009 before CAT Bombay Bench Mumbai challenging the seniority list No.6 and 7 contending that as he came to be promoted to the grade of SDE on 7.12.2001 against 75% seniority-cumfitness quota, he cannot be shown as junior to those promotes of 25% quota who came to be promoted in the year 2004. This is one another similar case as that of Chandigarh Bench and Ernakulum Bench. CAT Bombay Bench following the is judgment pleased of to CAT quash

Chandigarh

Bench

seniority list No.6 and 7 with a direction to publish the revised provisional seniority list on the basis of the order given by the

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Chandigarh Bench. Copy of this order is annexed as ANNEXURE P-10. 21.04.2011: BSNL files WP No.37322/2011 before the Karnataka High Court challenging the CAT Bangalore Benchs order passed in

petitioners OA 181/2009 referred to above and Karnataka High Court is pleased to dismiss said WP by affirming the order of the CAT Bangalore Bench. Copy of this order is annexed as ANNEXURE P-11.

21.06.2011:

Aggrieved by the CAT Bombay Bench order referred to above, BSNL files WP 3735/2011 before the Bombay High Court and the same came to be dismissed. Bombay High Court is pleased to hold that view taken by the Tribunal that the date of entry into the promotional cadre shall be the criterion for fixation of inter-se-seniority of promotes under both the categories, does not suffer from any infirmity. Copy of this order is annexed as ANNEXURE P-12.

25.8.2011:

BSNL prefers SLP (C) 22720/2011 before this Honble Court against the Karnataka High Court order dated 21.4.2011 passed in WP

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37322/2011 and this honble court is pleased to dismiss the said SLP upon mentioning by stating that Taken on board. We find no merit in the Special Leave Petition. The SLP is dismissed. We direct the petitioners to comply with the orders within two months from today. A copy of this order is annexed as ANNEXURE P-13. 02.03.2012: During the pendency of its SLP, BSNL files Review Petition 315/2011 before Karnataka High Court seeking review of its order passed in WP 37322/2011. Honble High Court of Karnataka is pleased to dismiss this review petition. A copy of this order is annexed as ANNEXURE P-14. As the judgment of the CAT Bangalore Bench passed in OA 181/2009 filed by the present petitioners and others directing the BSNL to assign the notional date of promotion on par with the date of promotion of 75% quota promotes of the concerned vacancy years with all consequential benefits like notional fixation of pay etc., attained finality, BSNL complies with the direction of CAT Bangalore Bench in case of the petitioners and others

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(124 in total) by assigning the notional date of promotion from 26.5.2004 to 23.1.2002 with the benefit of notional fixation of pay and actual monetary benefits flowing there from w.e.f 1.4.2008. 12.04.2012: CAT Ernakulum Bench judgment in OA

16/2009 referred to above came to be questioned by few officers who came to be promoted under 25% quota in OP (CAT) 175/2010 (S) and High Court of Kerala is pleased to dismiss the same by upholding the CAT Ernakulum Bench judgment. It is held by Kerala are High Court that when

appointments

made

from

different

streams one after another, those who are subsequently appointed are not entitled to seniority over those who are appointed earlier so long as no such condition is stated in the earlier appointment order. A copy of the Kerala High Court order is annexed as ANNEXURE P-15.

22.06.2012:

BSNL prefers review petition 69/2012 before the Bombay High Court seeking review of its order passed in WP No.3725/2011 passed in Sri.S.Sadasivans case referred to above.

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This review petition is dismissed. While dismissing the review petition Bombay High Court is pleased to observe that

significantly, none of the affected persons had challenged the decision of the Tribunal. They have not challenged the decision of the Tribunal by way of substantive remedy either before this Court or elsewhere. They have only chosen to get themselves

impleaded as interveners in the present application filed by the BSNL. A copy of the order of the Bombay High Court passed in review Petition is annexed as ANNEXURE P16. .08.2012: Petitioners file WP.

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