Judgment:
HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER
Writ Petition (C) No. 28953 of 2006 filed before the High Court of Kerala was transferred to this Tribunal and renumbered as TA N0. 64/08.
2. The applicants are aggrieved by the failure on the part of the respondents to assign them appropriate year of recruitment and consequential fixation of seniority in the light of the decision of the Apex Court in Union of India Vs. Madras Telecom SC and ST Social Welfare Association(2000 SCC (LandS) 835)
3. The applicants entered service as Junior Telecom Officers under the respondents in the year 1974, 1972, 1973 and 1978 respectively. According to them the next promotion post is TES Group-B. As per the Recruitment Rules 66 2/3% of the vacancies are to be filled up on the basis of seniority-cum-fitness subject to qualifying departmental examination and the remaining 33 1/3% through LDCE. As a result of directions pursuant to several litigations on the subject, it was decided that those who pass the qualifying examination earlier, are to be placed en-bloc senior to those who qualify later irrespective of the seniority. The recruitment rules were amended during 1987 to permit promotion based on seniority only. Due to such developments no departmental qualifying examination was conducted from 1992 onwards. The Recruitment Rules were amended in 1996 (Ext. P-3). One of these issues Union of India Vs. Madras Telecom SC andST Social Welfare Association went upto Supreme Court and the Apex Court held that the vacancies which arose prior to 22.7.1996 would be filled up in accordance with the pre-amended Rules and that the vacancies that arose after 22.7.1996 would be filled up in terms of the post amended Rules. (Ext. P -4). Notwithstanding Ext. P-4 judgment, the respondents did not conduct qualifying examination for the vacancies for the years 1992 to 1996 resulting in further litigations on the subject. In O.A. 1497/96 and connected cases the Tribunal directed to conduct departmental qualifying examinations for the vacancies of the years 1992 to 1996 (Ext. P-5). In compliance with the above order the respondents notified the examination but the participation was restricted to SC/ST communities alone. Aggrieved by the restriction O.A. 91/99 filed before the Tribunal was allowed directing the respondents to conduct a supplementary departmental qualifying examination allowing all willing and eligible candidates for the vacancies of the years 1992-96 (Ext. P7) The order was challenged before the High Court in OP 21656/2001 and during the pendency of the OP by an interim direction the respondents were directed to conduct fresh examination (ext. P-8). The applicants in this T.A. participated in the examination and qualified and were promoted to Telcom Engineering Service Group-B under the new Recruitment Rules. While so, the judgment of Apex Court (Ext. P-4) categorically held that the seniority is to be prepared based on the year of recruitment of the candidates who had cleared the qualifying examination only in the order of year of recruitment as JTO. The respondents published seniority list soon after the judgment in which the vacancies for the years 1992 to 96 were not taken into consideration. The applicants submitted representations (Ext. P-9 and P-10). But there is no action so far. Hence they filed this Application for a direction to the respondents to conduct a review DPC for promotion to the post of TES Group-B for the vacancies between 1992 to 1996 in the light of Ext. P-4 judgment, fitment and other consequential benefits.
4. The main grounds raised by the applicants are that they volunteered for participating in the departmental qualifying examination conducted in the year 1992 to 22.7.96 as per the Recruitment Rules in force, but the examination was kept in abeyance and finally conducted only in 2003 (ii) The respondents were bound to conduct a review DPC for considering all the eligible candidates in the vacancies that arose between 1992 and 1996, the applicants are entitled to consequential seniority and promotion to the ITS Group-A on par with their juniors.
5. The respondents opposed the Application by filing reply statement. At the outset, they submitted that the TA is liable to be dismissed for nonjoinder of parties. On merit they submitted that pursuant to the judgment of the Supreme Court in SLP (C) No. 26071/95 dated 1.5.98 in O.A. 1497/96 and connected cases, the examination was held allowing SC/ST officers to appear in both the qualifying and competitive examinations and OC category officers were allowed to appear in the competitive part of the examination. A supplementary qualifying cum competitive examination was held in 2003 in compliance of interim order dated 28.1.02 in CMP No. 3525 6/2000 in OP NO. 21656/01 of High Court of Kerala. In the supplementary examination, OC candidates were allowed to appear in the qualifying cum competitive part. They submitted that in the case of applicants they have only passed the qualifying part of the Examination but failed in the competitive part.
Therefore, the applicants do not have any claim for promotion under the competitive quota vacancies. They were promoted as SDE(T) under promotion quota vide order dated 26.4.2000 and their seniority has been rightly fixed as per their position in the select panel.
6. We have heard learned counsel appearing for both the parties and perused the documents produced before us. Col. 12 of The Telegraph Engineering Service (Class II Recruitment Rules), 1981 is the relevant Rule applicable to the applicant. It is extracted below for reference:
(i) 66 2/3 per cent of the promotion quota:
By selection on the basis of Departmental Qualifying Examination conducted in accordance with provisions laid down in Appendix I,Appendix II and Appendix III to these rules
(ii) 33 1/3per cent of the promotion quota:
By selection on the basis of limited Departmental Competitive Examination conducted in accordance with provisions laid down in Appendix I Appendix II and
Appendix III to these rules
Appendix-I
.......2(i) 2/3 per cent by a duly constituted Departmental Promotion Committee from the officials who have qualified in the Departmental Qualifying Examination.
7 The Department of Telecommunications by Notification dated 4th February, 1987 amended the Recruitment Rules. The relevant portion of the amended rule is extracted below:
"Appointment to the 66 2/3 per cent of the promotion quota shall be on the basis of seniority-cum-fitness on the recommendations of the Departmental Promotion Committee from amongst the employees belonging to the cadre mentioned in paragraph 2 who qualify in a Departmental Qualifying Examination."
From the above it is evident that one has to qualify the Qualifying Examination for promotion under 66 2/3 % quota. The promotion shall be made by the DPC on the basis of seniority-cum-fitness. Therefore, the qualified hands will be arranged on the basis of their seniority in the feeder category.
8. The grievance of the applicants is that the respondents are not assigning them appropriate year of recruitment and consequential fixation of seniority in the light of the judgment of the Supreme Court in Union of India V. Madras Telephone SC and ST Social Welfare Association (2000 SCC (LandS) 535). The relevant portion of the judgment is extracted below:
".........In view of the amendment to the Rules made on 4.2.1987, the criterion for selection is seniority-cum- fitness. In accordance with the prescribed procedure for preparation of eligibility list, notified by the Government on 28.6.1966, the Departmental Promotion Committee has to prepare separate lists for each year of recruitment in the feeder category. In other words, if in 1958 the Departmental Promotion Committee is recommending people for promotion to Class II, then all the eligible candidates who had passed the departmental examination and who had been recruited in 1950, are to be listed separately from those officers who also have qualified the departmental examination and were recruited in the year 1951 and soon and so forth. Once separate lists are prepared by the Departmental Promotion Committee of the officers recruited in different recruitment year in the feeder category and the criterion for promotion being seniority-cum-fitness,then it would create no problem in promoting the officers concerned. As to the inter se position of the officials belonging to the same year of recruitment in the feeder category,the procedure to be adopted has been indicated in para (iii) of the memorandum dated 28.6.1966. In this view of the matter, we are of the considered opinion that the judgment of this Court in Civil Appeal No. 4339 Of 1995 has rightly been decided in interpreting the relevant provisions of the Recruitment Rules read with the procedure prescribed under the memorandum dated 28.6.1966. We however, make it clear that the persons who have already got the benefit like Parmanand Lal and Brij Mohan by virtue of the judgments in their favour, will not suffer and their promotion already made will not be affected by this judgment.
9. The High Court in OP No. 21656/01 and another, held as follows:
"5. The Tribunal below found that in the light of the order of the Supreme Court, the department could not have avoided a competitive examination for filling up of 33 1/3% of the vacancies that has arisen before 22.7.96 and that in the light of the order contained in O.A. No. 1497/96 and connected cases department could not have contended that directions therein were confined to SC and ST candidates. As the matter was thus concluded by the pronouncement of the Supreme Court as well as the Central Administrative Tribunal, it was directed that a qualifying cum competitive examination should be conducted for the candidates like the applicants before the tribunal below for being considered against the vacancies that had occurred before the enforcement of Annexure A1, namely, 22.7.1996. A qualifying and competitive examination was directed because a competitive examination could have been undertaken only by those who have passed the qualifying examination. In the light of the pronouncement of the Supreme Court as well as the Tribunal referred to in the impugned order of the CAT, it cannot any more be contended that the impugned order would affect anyone else, because in effect, it directs only the implementation of the directions from the Supreme Court or the earlier direction of the CAT, which has not been impugned by any one. If at all anyone else would have been affected that would have been by reason of the pronouncement of the Supreme Court mentioned above, wherein the Government of India made it clear that the vacancies that had arisen after the enforcement of Annexure A3 would have been filled up following that order and those arisen prior to that on the basis of Annexure A-1 and A2. After being bound by that pronouncement, the administration cannot any more avoid filling up of the vacancies as directed therein on the ground that it would affect any one else. It was thereafter, in the same lines a detailed pronouncement had been made by the CAT as per the order in O.A. No.1497/96. The impugned order is only a clarification of this pronouncement. Therefore, the impugned order as such cannot be stated to be passed without the juncture of the necessary parties.
10. In O.A. 1497/96 and connected cases the Tribunal held as follows:
In sum, we direct that the Department shall fill up the vacancies arising upto 22.7.96 only with the officials of JEs/JTOs cadres who have qualified and may qualify themselves in the Qualifying Examination part of the Combined Departmental Examination for the quota of SC/ST vacancies for the TES Group-B cadre earmarked for the Qualified Officers and fill up 1/3rd quota earmarked for the Competitive Officers who have qualified themselves or may qualify themselves at the same Combined Departmental-cum-Competitive Examination. The posts earmarked for SC/STs in the promotional cadre of TES Group-B are directed to be filled up appropriately with the qualified SC/ST officials from the feeder cadre of JEs/JTOs based on the results of this examination. as we have already directed, the combined Departmental Examination shall be held by the DOT within six months from the date of receipt of a copy of this order.
11. In O.A. 91/99 among other reliefs, the applicants' prayed for the following reliefs also:
"(e) Declare that the applicant is eligible to be considered for promotion against 66 2/3% quota and 33 1/3% quota of vacancies which existed prior to 22.7.1996 in the event of his qualifying in the qualifying-cum-competitive examination on the basis of seniority- cum-suitability or relative merit as the case may be and as provided in Annexures A-1 and A-2.
The Tribunal in the judgment in O.A. 91/99 held as follows:
"16 According to the respondents as per the directions of the Hon'ble Apex Court the department was in the process of finalisation of promotions in TES Group-B and the same was nearing completion. They further submitted that as a result of the judgment the department had to create large number of vacancies in the cadre of JTOs who had qualified in the qualifying examination upto the year 1991 and promoted to the TES Group-B in accordance with the pre-1996 Recruitment Rules and the seniority list of TES Group-B employees would be subject to further reshuffling. While we note the above, as the department had conducted the examination notified under A-7 in November, 2000 after the judgment of the Hon'ble Apex Court dated 26.4.2000 and the applicant had not been permitted to appear in the same in spite of the interim direction of this Tribunal and there are unfilled vacancies against Competitive Examination quota the above development should not stand in the way of disposing of this O.A. As we have already held that not permitting the applicant and others similarly placed like him in the Departmental Examination had deprived them from effectively participating in the Competitive quota part of the Examination, we direct the respondents to conduct a special Supplementary Qualifying cum Competitive Examination in continuation of the one conducted as per A-7. In this Examination the applicant and other employees similarly placed like him who apply for the same should be allowed to participate. If they pass in the qualifying part of the examination they shall be considered for promotion against the 33 1/3% Limited Departmental Competitive Examination quota vacancies. We make it clear that the above direction shall in no way affect the rights if any which have accrued to the applicant and others similarly placed by virtue of the judgment of the Hon'ble Apex Court dated 26.4.2000 in implementation of which action is stated to be under process by respondents."
12. With regard to the request of the applicant under relief(e) i.e. filling up of total 1966 vacancies created in 1998 with retrospective effect from 1993 in accordance with the pre-amended Recruitment Rules for the vacancies upto 22.7.96, the Department issued an order dated 6.10.2000 according to which the Department had decided as follows:
"In compliance of CAT, Bangalore Bench judgment dated 31.8.99 subsequently upheld by Bangalore High Court it has been decided to cancel the order for creation of 1966 posts of TES Group-B issued vide DOT No. 5-1/93-TE-II dated 15.10.98."
In the light of the above decision, the question of any direction to the respondents to fill up non-existent posts would not arise.
From the above orders of the Tribunal, it is crystal clear that the direction was only to fill up the vacancies in the 33 1/3% quota alone as there was no vacancy under the promotion quota from the year 1992 onwards because a large number of officials were waitlisted till 1991. The absence of vacancy is the reason quoted by the Department for not holding examination from 1992 to 1996. It is stated only in year 2000 more than 3000 posts were created to afford promotion under 75% quota on seniority cum fitness. The applicants were considered against these vacancies in 2000. The applicants have not pointed tout the case of any of their juniors in JTO cadre, who have been promoted to their disadvantage.
13. The T.A. is therefore, dismissed as devoid of merits. No costs.