Full Judgment
Hon'ble Mrs. K. Noorjehan, Administrative Member
The applicants challenge the filling up of all the diverted vacancies of JuniorTelecom Officers by 35% promotion quota against the Recruitment Rules.
2. The applicants are working as Senior Telecom Office Assitants (STOA for short) in the various offices under the 3rd respondent. According to them, the next promotion post is that of the Junior Telecom Officer. Under the relevant Recruitment Rules, 50% of the posts are filled by direct recruitment and 50% by promotion/transfer. Out of the 50% departmental quota, 35% is filled by promotion/through screening test on the basis of seniority and the remaining 15% by promotion through competitive examination. The applicants appeared in the examination in the 15% category during 1999 and 2000 (P-1). The examination for the year 1999 was conducted for filling up the vacancies of the years 1995, 1996, 1997 and 1998. According to the applicants, upto 1997 there were 88 vacancies earmarked for Unreserved category. Even though the applicants scored high marks they were not promoted. On 12.6.2000 another notification for 15% departmental quota examination for vacancies upto 31.8.1999 were published.(Ext. P-3), the vacancy was shown as one with a rider that vacancies are subject to change. Though all the applicants appeared and scored good marks they were not given promotion. While so, on 2.8.2001 57 vacancies of JTOs from direct recruitment quota were diverted to the Departmental quota and distributed to the Kerala Circle. All these posts were arbitrarily allotted to the 35% seniority quota category. Immediately another 49 vacancies of JTO posts were diverted from direct recruitment quota to the departmental quota in the Kerala Circle (Ext P-5) which were also allotted to the 35% seniority quota. They also submitted that the condition for obtaining the minimum marks were relaxed for 15% competitive examination(Ext. P-6). The applicants represented (Ext. P-7). According to them the respondents have not taken any action even though posts were lying vacant. Therefore, they filed this O.A. on the grounds that while filling up the posts the quota earmarked for seniority and examination were not followed though there were several vacancies available to be filled up, in Ext. P-3 notification they declared only 1 vacancy for UR category, there are large number of vacancies existing in the Kerala Circle, Some of the applicants did not appear in the 2000 examination because only one vacancy was notified whereas there were several vacancies existing, in the interest of justice and fair play, the applicants are also entitled to be promoted and posted as JTO to the vacancies available in 1999 examination. Hence they filed this O.A. to quash Ext. P-4 and P-5, to promote the applicants as JTOs, to revise the result of the examinations as per Ext. P-2 and P-3 in the light of Ext. P-6, to reckon the vacancies of JTOs in the Kerala Circle as on today and to further direct the respondents to allot 30% of such vacancies to the 15% examination quota.
3. The respondents in their reply denied the averments in the O.A. and submitted that the 35% of the vacancies are to be filled up from cadres like Phone Inspector, Transmission Assistant, Wireless Operator, Auto Exchange Assistant and Telecom Technical Assistant. This implies that all those officials who have qualified in such a screening test are enlisted in accordance with the service in the eligible cadres mentioned above. Vacancies for screening test under 35% quota is not notified. They submitted that thousands of qualified officials in the 35% quota had been eagerly waiting for promotion throughout the country. Since recruitment against this quota was valid only upto 31.8.99, BSNL taking a sympathetic view decided to transfer a few direct recruitment vacancies upto 31.8.99 which were created on account of assets added prior to 31.8.99. Thus, during the last three years 500 vacancies each were transferred to this 35% departmental quota throughout the country so that every year a few seniors from the list of qualified officials can be promoted. Kerala Circle got its share of 147 vacancies.
As regards 15% competitive examination quota, the vacancies were always specified, the vacancies remaining unfilled were carried forward. It may be noted that in the 1999 examination there were 114 vacancies for OC whereas in the 2000 examination there was only 1 vacancy earmarked for OC. As vacancies were remaining unfilled in many Circles, BSNL issued orders to review the results of 1999 and 2000 examinations by dispensing with the requirement of separate minimum marks for each subject and fixing 30% aggregate for OC candidates and 20% for SC/ST candidates to the extent of available unfilled vacancies. There is no waiting list for further selection.
They submitted that the diversion of direct recruitment vacancy was resorted to as a policy decision by the BSNL only to accommodate candidates who qualified in 35% seniority quota. Concession made in a particular context by the competent authority cannot be forced to be made applicable as a matter of right. It does not violate provisions in the recruitment rules. Fifteen per cent Limited Departmental examination is conducted every year for declared vacancies specified clearly in the notification issued for every examination. There is no waiting list with validity beyond the particular examination.
On the other hand, 35% screening test is not conducted every year generally to fill lup vacancy available. All candidates obtaining qualifying marks are declared qualified and the eligibility list of the qualified candidates remain valid until a vacancy arises to accommodate each one of them. Thousands of qualified candidates were waiting for their turn in anticipation through out the country. The new recruitment rules 1999 was effective from 1.9.99 does not provide for extending the validity of this list. Hence there were scores of representations from employees, unions and associations. The Corporate office considered them sympathetically and issued orders to make some vacancies available every year to accommodate as many of them as possible. This concession given under a particular circumstances cannot be insisted upon to be applied as a matter of right universally. Even if any additional vacancy arises subsequently after the examination is notified under 15% examination quota, they can be filled only through a fresh examination duly notified and conducted. Hence they prayed for dismissal of the O.A.
4. The applicants filed rejoinder reiterating their stand that the diversion of the posts from direct recruitment quota is against then existing 1996 recruitment rules 1996 and it is discriminatory.
5. The respondents filed additional reply statement and reiterated their stand in the reply statement.
6. We have heard the learned counsel on either side and perused the records produced before us.
7. The learned counsel for the applicants argued that the applicants appeared for the 1999 and 2000 examinations under 15% quota (excluding few applicants), but they could not get promotion as there were not enough vacancies. The case of the applicants is that though vacancies were diverted to the 35% quota from direct recruitment proportionate share of vacancies was not diverted to the 15% examination quota. The counsel also argued that separate merit list for unfilled vacancies were to be drawn up by applying the relaxed standard as envisaged in Ext. P-6 dated 10.3.2003. The learned counsel for the applicants has also argued that though large number of vacancies of JTOs were existing in the Kerala Circle but the examination conducted in the year 2000 only one vacancy was notified in the Unreserved category. The respondents are therefore liable to reckon the number of vacancies and to appoint those qualified in the 15% examination quota in the year 1999.
The learned counsel for the applicants relied on the following cases in support of his argument:
(i) Keshav Chandra Joshi and Ors Vs. Union of India and Ors (1992 Suppl (i)SCC 272) (ii) D Ganesh Rao Patnaikl and Ors Vs. State of Jharkhand aand Ors (2005 (8) SSCC 454)
(iii) Suraj Parkash Gupta and Ors (2000 (7)SCC 561)
(iv) AIR 2002 SC 1633
(v) AIR 2001 SC 1769
8. The learned counsel appearing for the respondents on the other hand stated that diversion of posts to the 35% seniority quota is a policy decision taken by the BSNL corporate office to mitigate the grievance of the large number of employees who were in queue for promotion after passing the screening test and pre-promotion training.
9. According to the recruitment rules, out of the 50% promotion quota, 35% is to be filled up through qualifying screening test based on service seniority and after successful completion of the pre-appointment training. The balance of 15% is filled up through a competitive examination conducted to fill up specified number of vacancies. While issuing notification for conducting examination there is no declaration of vacancies in the 35% seniority quota because selection of qualified candidates is not restricted to the vacancies in any specific year. The list is valid as long as the qualified official is in service and will be promoted to the cadre as and when vacancies arise in the 35% quota based on their service length. Thousands of qualified officials in the 35% quota had been eagerly waiting for promotion. The rules which provide for recruitment against this quota was valid only upto the crucial date of 31.8.1999. With effect from 1.9.1999 onwards, the Recruitment Rules of Junior Telecom Officer were amended which do not permit a waiting list.
10. The issue raised in this O.A. is whether the decision taken by the BSNL for diversion of direct recruitment vacanices to the 35% seniority quota alone and not to 15% competitive examination quota is valid in the eye of law. It is an admitted fact that large number of eligible employees selected through screening test in the queue to be promoted to the post of JTO are waiting for undergoing the pre-appointment training and that opportunity would be lost after the implementation of the amended Recruitment Rules from 1.9.1999. Hence, 147 vacancies were diverted from direct recruitment quota to 35% promotion quota in Kerala Circle and had the vacancies been distributed as per the then existing Recruitment Rules at least a few vacancies should have been earmarked for 15% examination quota. The contention of the respondents that it is a policy decision taken by the BSNL corporate office is rebutted by the applicants. The argument of the learned counsel for the applicants is that diversion of the vacancies amounts to tinkering with the statutory rules and therefore the entire exercise is illegal. The learned counsel argued that such a power could only be exercised by the Government of India and that nothing has been produced by the respondents to show that the decision of the BSNL is preceded by a decision of the Government of India. The right to be considered for promotion rests on the statutory Rules and there is no reason why 15% of departmental candidates should also not be considered in that regard. The decision to make available the entire diverted vacancies to one set of departmental candidates is arbitrary which would be violative of Article 14 of the Constitution of India.
11. It is seen that there have been many rounds of litigation before the Hon'ble High Court since BSNL was under the jurisdiction of the Hon'ble High Court till recently. The cause of action has arisen on 31.8.1999 on the eve of amendment of recruitment rules according to which waitlisted candidates through 35% screening test cannot be trained/promoted after 31.8.1999. The contentious issues were about diversion of posts from direct recruitment quota to 35% promotion quota and irregularities in the manner of selection under 35% quota and non-diversion of any posts to 15% of limited departmental competitive examination quota. Following are the WPs, to cite a few :- WP Nos. 3386/06, 9092/06, 4141/06, 1956/06, 18594/05, 21176/05 and 36448/07. The relevant portions of the common judgment of the Hon'ble High Court of Kerala dated 29.2.2008 of WP(C) Nos 3386/06, 9092/2006,etc. are extracted below:
14. Mr. Jnanasekaran contended that the selection of respondents 5 and 6 is illegal as they were not qualified in that regard. They were eligible to participate in the second screening test. I am afraid, I am not in a position to consider this contention on merits essentially for the reason that the participation of respondents 5 and 6 was pursuant to the orders passed by the CATand upheld by the Division Bench of this Court as evidenced by exts. R1(d) and R1(j). Even otherwise the factor of delay and latches as delineated above could obviously stand in the way of such a contention being considered. After all respondents 5 and 6 would have successfully participated in the screening test held on 30.4.2000 and frontal challenge against the participation is made more than five years later. They had been promoted in the meanwhile and they were entitled to rest assured that their promotions are regular and beyond challenge as such.
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18. I am afraid, I am unable to accept this contention. In my view, once the BSNL took a decision to divert the vacancies otherwise available for direct recruits, for the departmental candidates in a one time measure, confining the vacancies to those available upto 31.8.1999, then proportion of 35% to 15% as provided in column 12 of the rules should have also been applied. The decision to make available the entire diverted vacancies to one set of departmental candidates smacks of an arbitrariness, which would be violative of Article 14 of the Constitution of India.
19. But I refrain from declaring the action taken by the BSNL in this regard as unconstitutional for two reasons. Firstly, petitioners have not frontally challenged the specific orders under which the eligible candidates in the 35% departmental quota were promoted. In other words, affected persons have not been brought on the party array. Consequently, most of the persons who were so promoted under the departmental quota have long since been absorbed into promoted posts and it would neither be fair nor reasonable to disturb such persons. In my view, interest of justice would be met if the claim made by the petitioners are looked into by the BSNL.
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21. First respondent shall ascertain the number of persons, who were eligible as on 31.8.1999 under the 15% departmental quota, to be considered for promotion to the post of JTOs. After identifying those persons who are eligible as aforementioned, BSNL shall conduct a limited departmental competitive examination as undertaken under paragraph 8 of the counter affidavit and those persons who are successful in such examination shall be promoted to the post of JTOs deeming such promotion as one against the vacancies which were available on 31.8.1999. Whatever adjustment is to be done as regards the vacancies, for the purpose of giving effect to these directions, shall be done by the BSNL. It is declared that they shall be entitled to do so. Needful shall be done in the manner aforementioned within a period of six months from the date of receipt of a copy of this judgment. Mr. Vishnu S. Chempazhanthiyil contended that in so far as Writ Petition No. 1956 is concerned,the prayer is only to consider the case of the petitioners for the vacancies which had arisen after 31.8.1999. In my view respondents shall consider the case of the petitioners in Writ Petition No. 1956/2006 as against the vacancies which had arisen subsequent to 31.8.1999 in accordance with law and in accordance with Rules which were prevailing on the date of occurrence of the vacancies."
The respondents might have implemented the above directions of the High Court by conducting departmental competitive examination and the applicants too might have participated in the examination. In this view of the matter, we are of the considered view that nothing survives in this application which is filed on 17.10.2003 well before the judgment of the High Court dated 29th February, 2008. The T.A. is accordingly closed.
No order as to costs.