Full Judgment
HON'BLE MR. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
1. The applicants joined Telecom Department as Assistant Superintendents, Telegraph Traffic in 1981 and 1982 respectively. The respondents joined the same department as Junior Telecom Officers in 1982 and later. The applicants opted for merger with the cadre of Junior Telecom Officer which was accepted by the department. The cadre of Assistant Superintendent, Telegraph Traffic, was merged with the cadre of Junior Telecom Officer with effect from 01.04.1994. In the integrated provisional All India gradation list of JTOs, the first applicant was ranked above all the respondents and the second applicant was ranked above some of the respondents. The promotion of Junior Telecom officer is to TES Group-B. The respondents had passed the qualifying examination in accordance with the Recruitment Rules, 1981, and being eligible for promotion to TES Group-B were promoted on 21.10.1998. The applicants were not eligible for promotion in accordance with Recruitment Rules, 1981; they were eligible for promotion in accordance with Recruitment Rules, 1996 which came into force on 23.07.1996 and were promoted to TES Group-B on 26.04.2000.
2. The respondents were promoted on 21.10.1998 to the vacant posts in TES Group-B prior to 23.07.1996. A total of 3629 Junior Telecom Officers were promoted to TES Group-B on 21.10.1998. Those promotions were against the posts which included 1966 posts created vide order dated 15.10.1998 with retrospective effect from 15.10.1993. The Bangalore Bench of the C.A.T. in OA No. 946/1998 and connected cases quashed creation of 1966 posts with retrospective effect. The said order of the C.A.T. was upheld by Karnataka High Court. Consequent upon the decision of Karnataka High Court, 1966 posts created vide order dated 16.10.1998 were cancelled on 06.10.2000. Vide order dated 11.11.2004, 1966 Junior Telecom Officers were reverted. The respondents challenged the reversion before Hon'ble High Court of Kerala in W.P.(C) No. 19129/2005, which was allowed vide order dated 01.02.2008 upholding the contention that they were not promoted against the 1966 posts now cancelled.
3. The seniority list of TES Group-B was issued on 12.01.2005 which included the respondents as if they were not reverted. By order dated 09.03.2009, 1369 supernumerary posts of TES Group-B were created. The respondents were promoted vide order dated 10.06.2009 to officiate as Assistant General Managers/Divisional Engineers in the higher grade of TES Group-A. The applicants filed the present O.A. on 14.09.2009 challenging the promotion of the respondents, creation of supernumerary posts and the seniority list dated 12.01.2005 and prayed for an order to quash the same and to direct the respondents to promote the applicants to the category of Executives in accordance with seniority in Annexure A-9.
4. The applicants contend that Annexure A-11 seniority list No.6 for TES Group-B officers dated 12.01.2005 is illegal as Annexure A-5 order creating 1966 posts was set aside by the Bangalore Bench of CAT. They are not eligible to be maintained in the promoted posts as the posts against which they were promoted have been set aside. Hence their inclusion in the said seniority list and their promotions are per se illegal. Annexure A-10 judgment cannot be understood as validating the promotions of the respondents No. 4 to 17 and others. There was a direction in the judgment to reassess the actual vacancies and to accommodate promotees to the extent of available vacancies. Thereupon the 2nd respondent issued Annexure A-12 order creating 1369 supernumerary posts for the period from 20.01.1998 to 20.04.2000 to retain the illegal excess promotees. A-12 order is illegal because it nullifies the order of the Bangalore Bench in OA No. 946/1998. Even assuming that the A-12 order is valid, the persons accommodated against supernumerary posts have no right to be assigned seniority over the applicants as they are not promoted in regular vacancies. Reliance is place on the judgment of Hon'ble High Court of Kerala in ILR 2009 (4) KLA 469 in which it held that the persons accommodated in supernumerary posts can be assigned seniority only from the date they are accommodated on regular posts in accordance with the Recruitment Rules.
5. The respondents No. 2 and 3 contend that Annexure A-11 seniority list was published in the year 2005 and, therefore, the O.A. is highly belated. The contention of the applicant that the said seniority list was not circulated is against the facts and is denied. The respondents had passed the prescribed qualifying examination in accordance with the Recruitment Rules of 1981 and were eligible for promotion against the vacancies which arose prior to 23.07.1996 when the Recruitment Rules of 1996 which is applicable to the applicants, came into force. The respondents were promoted in 1998 when to rectify a factual error in assessing the actual requirement of posts of TES Group-B posts for implementing the judgment dated 20.02.1986 in P.N. Lal's case to avoid reversion of 550 officers, 1966 posts of TES Group-B were created with retrospective effect from 15.10.1993. The applicants were promoted to TES Group-B in the year 2000 as per Recruitment Rules 1996. Respondents No. 4 to 17 who were qualified before introduction of Recruitment Rules, 1996, were promoted with effect from 21.10.1998. In pursuance of the Court order directing no reversion pursuant to the order dated 11.11.2004, the reversion of 1966 TES Group-B officers was cancelled vide order dated 09.03.2009 and their seniority vide list Nos. 3 to 5 was restored and their promotion ordered on 21.10.1998 was regulated. There is no illegality in the orders passed by the respondents. Hence the claim of the applicants to place them in seniority above the private respondents is without any merit and the OA is liable to be dismissed.
6. It was further contended by the respondents 4,5,7 to 11,and 17 to 19 that the promotion of the respondents 4, 5, 7 to 11 and 17 to 19 have become final as the judgment of Hon'ble High Court and orders passed by the CAT did not have any direct bearing on their promotions. Anenxure R-4(c) seniority list is issued in compliance with the directions of the Apex Court in CA No. 4439 of 1995, (2000) 9 SCC 71. As per the Affidavit filed by Shri S. Sthanukakumaran Thampi, Dy. General Manager (Admn.), Office of the Chief General Manager, Kerala Telecommunications, Trivandrum, on 25.08.1998 in O.A. No. 297/98, the vacancies to be filled up according to 1981 Recruitment Rules were worked out and determined as 4200 against which 3629 officers were promoted vide order dated 21.10.1998. Respondents No. 4,5,7 to 11 and 17 to 19 were not made parties to the OA No. 946/1998 filed before the Bangalore Bench of the Tribunal. and hence the order of Bangalore bench cannot bind them. The respondents 4,5,7 to 11 and 17 to 19 do not come under the purview of 3629 supernumerary posts created as per Annexure A-12 order as they were promoted to the vacancies that existed prior to 23.07.1996 and not against the 1966 posts which were cancelled.
7. We have heard Mr. K.R.B. Kaimal (Sr.) with Mr. Unnikrishna Kaimal, learned counsel for the applicants, Mr. Sunil Jacob Jose, SCGSC for respondent No.1, Mr. T.C. Krishna for respondents No. 2 and 3 and Mr. O.V. Radhakrishnan (Sr.) with Ms. K. Radhamani Amma, learned counsel for the respondents No. 4, 5, 7 to 11 and 17 to19 and perused the records.
8. Annexure A-5 order dated 15.10.1998 created 1966 posts in TES Group- B with effect from 15.10.1993 in addition to 2636 posts created on 15.10.1993 to avoid reversion of 550 TES Group-B Officers. The Bangalore Bench of CAT observed in O.A. No. 946/1998 that "From the way the impugned order dated 15.10.1998 has been passed, the inference that the decision is taken on a superficial basis and to suit a particular situation without realising the implications in that regard is inescapable. The file shows that even though financial indiscipline was noticed by promotions having been effected without there being promotional posts, without first investigating that matter a decision to create new posts has been taken. Unless the administration is toned up, the department would invite serious problems in the management of the establishment." By order dated 31.08.1999, the Bangalore Bench of the Tribunal quashed Annexure A-5 order dated 15.10.1998. The promotions effected in excess of 61 vacancies in TES Group-B in the Karnataka Circle which existed prior to 20.02.1996 were quashed. It did not quash the order of dated 21.10.1998 promoting the respondents and others who were not a party to O.A. No. 946/1998, 1044/1988 and 94/1999. Annexure A-6 order dated 21.10.1998 promoting the respondents remained intact. It is an administrative lapse that the creation of 1966 posts with effect from 15.10.1993 is linked with the promotions of qualified JTOs in 1998 against the vacancies prior to 23.07.1996. This will not confer any right on the applicants to claim seniority over the party respondents or provide valid ground to challenge the promotions of the respondents in 1998 because the respondents were qualified for promotions under the Recruitment Rules of 1981 whereas the applicants became eligible for promotion in 2000 only under the Recruitment Rules of 1996. The only constraint on the promotion of the respondents is the availability of the vacancies prior to 23.07.1996. As per the affidavit dated 25.08.1998 in O.A. No. 279/1998 filed by Shri S. Sthanukakumaran Thampi, Dy. General Manager (Admn.), Office of the Chief General Manager, Kerala Telecommunications, Trivandrum, the total number of existing vacancies was determined to be 4200 as on 22.07.1996 out of which only 3629 vacancies were filled up by order dated 21.10.1998. Therefore, the creation of 1966 posts or abolition of those posts does not affect the promotion of party respondents.
9. Annexure A/8 order dated 11.11.2004 cancelling promotions of 1966 officers TES Group-B promoted on 21.10.1998 which included the respondents were subject to final outcome of certain writ petitions pending before the Hon'ble High Court of Kerala. However, the respondents No. 4 to 17 filed W.P. (C) No. 19129/2005 and connected writ petitions before Hon'ble High Court of Kerala challenging their reversion. Their contention that they were not promoted against 1966 posts created by Annexure A-5 order was not controverted. The Hon'ble High Court quashed the order of reversion vide judgment dated 01.02.2008, the operative part of which is reproduced as under :
"5. In view of the contentions raised by the writ petitioners that the reduction of 1966 vacancies in the cadre of SDOT will not affect their promotion, which is not seriously controverted, I am of the view that there is no justification from cancelling Ext.P1 by Ext. P12 order. Accordingly, Ext. P12 is quashed. But the respondents 2 and 3 will be free to review the promotions granted to the vacancies which were available on 22.07.1996 with reference to the actual vacancies available and publish the seniority list with opportunity to affected persons to object to the same. In view of the quashing of Ext.P12, Exts. P14 and P15 cannot survive. Further, those lists are being replaced by a fresh list as submitted by the learned Standing Counsel for the BSNL. Therefore, Exts. P14 and P15 are also quashed. It is clarified that if there is dearth of vacancies as on 22.07.1966 to accommodate all promotees, the excess junior hands can be reverted. Writ Petition (c) Nos. 9634/05, 19129/05 and 13155/06
6. The judgment in Writ Petition (C) No. 8245/05 shall be treated as the judgment in these cases also."
The specific direction therein to revert the juniors if sufficient number of posts to accommodate all promotees became infructuous as there were 4200 posts against the 3629 promotees. Thus, the promotion given to respondents No. 4 to 17 vide order dated 21.10.1998 as per Recruitment Rules, 1981 against the vacancies that existed prior to 23.07.1996 is not assailable on the ground of not having enough regular vacancies.
10. As the promotion of the respondents to TES Group-B is valid, the Annexure A-11 seniority list dated 12.11.2005 containing the names of the private respondents remained intact. The grievance of the applicants is that the said seniority list though directed to be circulated was not in fact, circulated among officers and they had no occasion to see the list before issuance of Annexure A-13 order of promotions to the respondents No. 4 to 17 in Kerala Circle based on their inclusion in the seniority list. The official respondents lay emphasise on the direction to circulate the seniority list. Whether it was circulated as per direction or not is a question of fact to be ascertained. The validity of seniority list as far as the party respondents are concerned is not affected by the circulation or non-circulation of the list among officers. If the applicants have any grievance regarding non circulation of Annexure A-11 seniority list, they can still approach the appropriate authority for redressal and seek justice. The applicants have no case that they were not aware of Annexure R-4(c) seniority list of TES Group-B dated 02.07.2001 issued in compliance of Apex Court order dated 26.04.2000 in C.A. No. 4339 of 1995 which contains the names of the party respondents and their seniors who are subsequently promoted to the higher posts of Divisional Engineer as per Annexure R-4(n) in the higher grade of TES Group-A.
11. It is seen from Annexure A-12 order dated 09.03.2009 that the respondents No. 4 to 17 are shown against supernumerary posts created for Kerala Circle. It is also seen that the list No.6 of TES Group-B officers includes the respondents 4, 5, 7 to 11 and 17 to 19. The necessity of including the party respondents in the above list is not unambiguously explained by the official respondents. The utter chaos in the department with regard to management of the establishment division noticed by the Bangalore Bench of the Tribunal in its order dated 31.08.1999 still continues. The mismanagement of the establishment in the wake of merger of Telegraph Traffic with the Telecom Engineering does not result in an enforcible right of seniority and promotion to the applicants who were not eligible for promotion when party respondents were promoted in accordance with the Recruitment Rules, 1981. The party respondents are not liable to be reverted or counted against the supernumerary posts as their promotion to TES Group-B on 21.10.1998 against vacancies prior to 23.07.1996 remains valid. As the respondents are promoted against regular vacancies prior to 23.07.1996, their questionable accommodation in supernumerary posts does not confer any benefit on the applicants, none of whose rights was adversely affected in the year 1998 by the promotion of respondents on 21.10.1998. The applicants entered late the cadre of JTO quite willingly exercising their option to join it or not. There is an element of fairness on the part of the respondents in attempting howsoever clumsily to secure promotion for the respondents who are eligible to get it, in the face of them getting pushed down by the late entrants. The official respondents could have introduced the Recruitment Rules, 1996, after promoting those JTOs to the TES Group-B, who are eligible for promotion in accordance with Recruitment Rules, 1981.
12. The applicants rely on the judgment of Hon'ble High Court of Kerala reported in ILR 2009 (3) Kerala 155 to contend that the party respondents, for having been accommodated against the supernumerary posts, have no right to be assigned seniority from 28.10.1998 when they were promoted. In the said judgment, the Hon'ble High Court of Kerala held in respect of direct recruits that "Their appointments being contrary to law, they can claim only seniority from the date their turn arose under the direct recruitment quota". The party respondents herein were not appointed for the first time on 28.10.1998 but were promoted. Their promotion on 28.10.1998 was in accordance with Recruitment Rules, 1981; it was not contrary to any law. The Annexure A-8 order dated 11.11.2004 cancelling the promotion was quashed by the Annexure A-10 order of the Hon'ble High Court of Kerala dated 01.02.2008. Facts of the present case being entirely different from those in the case reported in ILR 2009 (supra), the reliance on the finding in that judgment is misplaced and that judgment is not applicable to the party respondents. The creation of the supernumerary posts whether necessary or not, whether improper or not does not affect, just as the promotion of the respondents in 1981, the rights of the applicants. The focus of the present O.A., it appears, is not so much on securing the rights of the applicants as on denying the rights of the respondents somehow.
13. The utter failure to ascertain the actual number of vacancies at any given point of time and the clumsy creation of posts as an easy way out, do not bring any credit to the official respondents. Such mismanagement in the wake of merging the cadre of Assistant Superintendent of Telegraph Traffic with the cadre of Junior Telecom Officer for improvement of Telecom services resulted in long-drawn avoidable litigations. The instant case is built upon the assumption that there were no regular vacancies against which the respondents could be promoted to TES Group-A in accordance with Recruitment Rules, 1981. This assumption not having been proved, the O.A. fails.
14. Accordingly, the O.A. is dismissed. No order as to costs.