ONE OF THE CAT JUDGEMENT IN FAVOUR OF US FROM EARNAKULAM
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
T.A. NO. 11/2008
Wednesday, this the 27th day of May, 2009.
C OR A M :
HON'BLE MR. GEORGE PARACKEN, JUDICIAL MEMBER
HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER
P.V. Babu
Telecom Technical Assistant
RLV Exchange, Alappuzha. ..Applicant
By Advocates Mr. G. Sasidharan Chempazhanthiyil &
Mr Vishnu S. Champazhanthiyil
Vs.
1 The Chief General Manager
BSNL, Kerala Circle,
Thiruvananthapuram.
2 The Director General
Telecom Department
New Delhi.
3 The Chairman
BSNL
New Delhi.
4 Union of India represented by
the Secretary to Government
Ministry of Communications,
New Delhi.
5 N.J. Peethambaran
Telecom Technical Assistant
Telephone Exchange,
Pallikathode, Kottayam .. Respondents.
By Advocate Mr. Mathews K Philip, for R 1-3
Advocate Mr. TCG Swamy for R-5
The Application having been heard on 29.4.2009 the Tribunal delivered
the following :
O R D E R
HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER
This application is filed by the applicant aggrieved by the action
of the respondents in filling up the vacancies of JTO during 2003-04 under
the old 1996 Recruitment Rules.
2. The short facts are as follows. The applicant belonging to S.C
community was appointed as Technician under the 1st respondent w.e.f.
25.1.1993, promoted as Telecom Technical Assistant w.e.f. 28.9.1996.
All the promotion quota vacancies of JTO before 31.8.1999 were filled up in
accordance with the old Rules except vacancies reserved for SC/ST. As
per the JTO Recruitment Rules 1999, which came into effect w.e.f.
31.8.1999, 50% promotion quota is filled up (i) 35% through screening
test from specified categories possessing Degree of Engineering or in
Science with Physics and Chemistry or Diploma in certain subjects in
Engineering with 10 years regular service in a Group-C post and (ii) 15%
through competitive examination from candidates other than
PI/AEA/WO/TA /TTA/Sr. TOA with plus two and Diploma in Engineering on
specified subjects. In order to fill up the backlog vacancies remaining in
the 35% quota, a screening test was conducted on 30.4.2000. Even
though there was no vacancy for general category candidates in 35% quota
upto 31.8.1999, the 1st respondent permitted general category candidates
to appear in the qualifying test. The 5th respondent is one of the candidates
who qualified in the qualifying test conducted on 30.4.2000. It is
apprehended that the respondents are going to depute the candidates who
qualified under the 35% departmetnal quota (Ext. P-11) for training which
will cause irreparable injury to the applicant and others like him. The
applicant filed this Application on the grounds that there was no vacancy
notified under the general category, the examination on 30.4.2000 was
conducted without inviting application from general category candidates,
the general category candidates who qualified in the test conducted on
31.4.2000 are not eligible to appear in the test for want of educational
qualifications and the applicant and other similarly situated persons have a
right to participate in the examination. Hence he filed this O.A. for a
declaration that the candidates who qualified in the 35% qualifying quota of
1996 Recruitment Rules are not eligible to be appointed to the JTO
vacancies of 2003-04, to conduct a fresh examination under the
appropriate Recruitment Rules and to comply with the reservation rules
before filling up the vacancies.
3. Per contra, the respondents submitted that though the notification
for the screening test was issued on 10.11.1998 as per the 1996
Recruitment Rules, but due to some administrative reasons it was
postponed thrice and finally held on 30.4.2000. They submitted that the
vacancies upto 31.8.1999 were only notified and 41 vacancies for SC, 25
vacancies for ST were reserved. However, OC candidates were also
permitted to appear for the test on the condition that their selectiion will be
provisional and subject to availability of vacancies arising on the outcome
of the decision of various pending court cases. Out of the 621 candidates
qualified, 20 belonged to SC and none to ST. All the 20 SC qualified
candidates were promoted as JTO after training. As a number of posts
remained unfilled due to non-availability of sufficient number of qualified
hands and that large number of qualified candidates were in queue
waiting for their turn for training and posting, the BSNL took an
administrative decision to divert each year 500 vacant posts of JTOs from
direct recruitment quota upto 31.8.1999 to 35% departmental quota on all
India basis. All these posts were sanctioned exclusively for giving
promotion to the qualified candidates in the screening test held on
30.4.2000. The applicant appeared for the screening test held on
30.4.2000 but could not qualify. He along with other failed candidates
filed WA NO. 17292/03 before the High Court to review the results
applying relaxed standard which is still pending. There was no qualified
SC/ST candidate waiting for appointment and that the vacancies
earmarked for SC/ST are still lying vacant.
4 The applicant filed rejoinder reiterating that the new Rules came
into force w.e.f. 1.9.1999 and that the diversion of vacancies is against the
Recruitment Rules. The applicant submitted that filling up of the diverted
vacancies of 2003-04 with those not having the minimum educational
qualification without conducting fresh examination is violative of Articles 14
and 16 of the Constitution.
5 We have heard the learned counsel for the parties at length and
gone through the pleadings carefully.
6 The thrust of the argument of the learned counsel of the applicant
is that, had the examination held on 30.4.2000 was conducted in
accordance with the new Recruitment Rules of 1999, the reservation rules
are followed and had the applicant and similarly situated candidates been
given another opportunity to appear in the examination, the applicant
would have got a chance of qualifying the screening test.
7 The sum and substance of the argument of the learned counsel of
the respondents is that the notification was published on 10.11.1998 for the
vacancies from 1995 to 1998 before the new Recruitment Rules 1999
came into force but the examination could be held only on 30.4.2000
because of administrative reasons and that 21 SC and 25 ST posts are
lying vacant for want of qualified candidates, the applicant participated in
the screening test held on 30.4.2000 but did not qualify and that as large
number of qualified hands are remaining in queue waiting for their turn for
training the BSNL took a policy decision to divert each year 500 posts per
year for three years from direct recruitment quota vacancies to 35%
departmetnal quota on all India basis.
8. We notice that the question of diversion of direct recruitment
quota vacancies to 35% promotion quota has been challenged in various
courts/tribunals and that all the appointments have been made
provisionally subject to the outcome of decisions of the cases. It is also
brought to our notice that employees who are otherwise eligible to be
considered for promotion in the 15% promotion quota available to
departmental competitive examination quota have challenged the decision
of the BSNL to make available the entire diverted vacancies to one set of
departmental candidates only ie. 35% promotion quota, as arbitrary and
violative of Article 14 of the Constitution of India. Writ Petition No.
1956/2006 which was filed with a prayer to consider the petitioners for the
vacancies which had arisen after 31.8.1999 under the 15% departmental
competitive examination quota was disposed of by the High Court of Kerala
in February, 2008 directing the respondents to consider the case of the
petitioners therein 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. During argument,
the learned counsel for the respondents submitted that in view of the
decision of the High Court of Haryana and Punjab in CWP No. 5608/2007
the BSNL re-considered the matter and decided to do away with diversion
of vacancies under the 50% direct recruitment quota to 35% promotion
quota and the direct recruitment quota posts already stood re-diverted to
direct recruitment quota and that as a special measure decided to adjust
those officials who have already been promoted against the above said
diverted posts in supernumerary posts and would be kept as a separate
group and will not be a part of the regular sanctioned strength of JTOs.
Therefore, promotional aspects of those officials who are eligible for
consideration under the Recruitment Rules of JTO 2001 are not diminished
in any manner. The whole matter is now pending before the Apex Court
in SLP.
9. In this view of the matter, we record the submission of the learned
counsel for the respondents at the bar that as things stand now, the
challenge against filling up of vacancies diverted from direct recruitment
quota will not survive. The promotional aspects of those officials who are
eligible for consideration under the new Recruitment Rules will not be
affected adversely. In the facts and circumstances of the case, we are of
the view that nothing survives in this application. Accordingly we close
the TA. No costs.
Dated 27th May, 2009
K. NOORJEHAN GEORGE PARACKEN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
