S. Sadasivan v. Bharat Sanchar Nigam Limited & Union of India

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 25TH DAY OF JANUARY 2018 / 5TH MAGHA, 1939** **OP (CAT).No. 18 of 2018** **R.A.NO.73/2017 IN O.A.NO.703/2015 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM** **--------** ## **PETITIONER(S) :** **S.SADASIVAN, SUBDIVISIONAL ENGINEER(CAF), O/O PRINCIPAL GENERAL MANAGER TELECOM, BSNL, CTO BUILDING, STATUE, TRIVANDRUM-695 001,** **R/AT D-3 BSNL OFFICERS QUARTERS, KAILAS NAGAR, KESAVADASAPURAM, THIRUVANANTHAPURAM- 695 004** ## **BY S.SADASIVAN (PARTY IN PERSON)** ## **RESPONDENT(S):** **1. BHARAT SANCHAR NIGAM LTD.,** - **A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956,** - **THROUGH CHAIRMAN AND MANAGING DIRECTOR,** - **CORPORATE OFFICE, BHARAT SANCHAR BHAVAN,** - **JANPATH, NEW DELHI- 110 001.** **2. UNION OF INDIA REPRESENTED BY SECRETARY,** - **DEPARTMENT OF TELECOM, SANCHAR BHAVAN, ASOKA ROAD,** - **NEW DELHI- 110 001** **3. CHIEF GENERAL MANAGER TELECOM,** - **BHARAT SANCHAR NIGAM LIMITED,** - **KERALA TELECOM CIRCLE, BSNL BHAVAN, PMG JUNCTION, TRIVANDRUM- 695 033.** ## **RESPONDENTS(IMPLEADED IN THE O.A) :** **4. LEENA ROSE THOMAS, DIVISIONAL ENGINEER (LA), REGIONAL TELECOM TRAINING CENTRE, KAIMANAM P.O., TRIVANDRUM- 695 040.** **..2/-** **..2..** ## **OP (CAT).No. 18 of 2018** **5. JAYASREE SREEDHARAN, SDE(COML), OFFICE OF GENERAL MANAGER, BSNL, VELLAITHAMBALAM, KOLLAM- 691 012.** **RESPONDENTS (ORIGINAL APPLICANTS NO.2 & 3) :** **6. THOMAS ZACHARIA, DIVISIONAL ENGINEER TELECOM MUNJATH KARINGATTIL, PERISSERY P.O., CHEGANNUR, ALAPUZHA- 689 121.** **7. JOHN V.DANIEL, SDE(PHONES), VALIYAPARAMBIL, ELAKALLUR (P.O), KONNI, PATHANAMTHITTA DISTRICT- 689 691.** **R1 & R3 BY ADV. SRI.T.SANJAY, S.C BY ADV. SRI.RAJIT, S.C BY ADV. SRI.T.R.RAVI** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 25-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** **OP (CAT).No. 18 of 2018 (Z)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE SAID COMMON ORDER DATED 16-11-2017 PASSED BY THE HON'BLE C.A.T IN O.A. NO.703/2015. EXHIBIT P2 A TRUE COPY OF THE FINAL ORDER DATED 12-12-2017 PASSED BY THE HON'BLE CAT IN R.A. NO.73/2017 IN O.A.NO.703/2015. EXHIBIT P3 TRUE COPY OF O.A NO.703/2015 FILED BY THE PETITIONER BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P4 A TRUE COPY OF THE MISCELLANEOUS APPLICATION NO.914/2015 IN O.A NO.703/2015. EXHIBIT P5 A TRUE COPY OF THE REPLY STATEMENT DATED 01-01-2016 FILED BY THE OFFICIAL RESPONDENTS EXHIBIT P6 A TRUE COPY OF THE REJOINDER DATED 01-02-2016 TO THE SAID REPLY STATEMENT. EXHIBIT P7 A TRUE COPY OF THE REPLY STATEMENT FILED BY RESPONDENT 4 & 5 DATED 12-7-2016. EXHIBIT P8 A TRUE COPY OF THE MISCELLANEOUS APPLICATION NO.331/2017 FOR PRODUCTION OF DOCUMENT. EXHIBIT P9 A TRUE COPY OF THE REJOINDER DATED 2-8-2017 TO THE SAID REPLY STATEMENT. EXHIBIT P10 A TRUE COPY OF THE REVIEW APPLICATION NO.73/2017. EXHIBIT P11 A TRUE COPY EACH OF THE SAID GRADATION LIST DATED 1-5-1995 IMPUGNED IN OA NO.488/1996. EXHIBIT P12 A TRUE COPY OF THE DOT INSTRUCTIONS DATED 29-9-2000 ISSUED BY THE RESPONDENT NO.2 TO CALL FOR THE GRADATION LIST OF JUNIOR TELECOM OFFICERS.** **EXHIBIT P13 A TRUE COPY OF THE SAID PROMOTION ORDER DATED 26-5-2004 OF SDES UNDER 25% QUOTA ISSUED BY RESPONDENT NO.1.** **EXHIBIT P14 A TRUE COPY OF THE SDE SENIORITY LIST NO.6 DATED 28-7-2004 AND SENIORITY LIST NO.7 DATED 2-12-2004 PASSED BY THE RESPONDENT NO.1 & 2 UNDER SENIORITY-CUM-METHOD.** **RESPONDENT(S)' EXHIBITS : NIL** **//TRUE COPY//** **Msd.** **P.S.TO JUDGE** # **P.R.RAMACHANDRA MENON &** ## **DEVAN RAMACHANDRAN, JJ.** **=========================== OP(CAT) No.18 of 2018** **============================ Dated this the 25[th] day of January, 2018** ## **J U D G M E N T** Devan Ramachandran, J The petitioner in this original petition is the applicant in O.A No.703 of 2015, before the Central Administrative Tribunal, Ernakulam Bench (for short 'the CAT'). 2. The petitioner had filed the original application, challenging Annexures-A1 and A2 orders issued by the Bharat Sanchar Nigam Limited (for short 'BSNL'), whereby the revised the provisional seniority list Nos. 6 and 7 of Telecommunication Engineering Services Group 'B', equivalent to SDEs, which were published, in implementation of the judgment of the CAT, Chandigarh Bench dated 25.08.2009. The petitioner challenges the seniority list so published, essentially on the contention that the said seniority list is not 2 OP(CAT) No.18 of 2018 in compliance with the earlier order that he had obtained from the CAT Mumbai Bench in O.A No.488 of 1996. According to the petitioner, in the order issued by the CAT Mumbai, the question that was raised by him was, whether candidates who had undergone training at different points of time should be placed in the seniority as per the date of their joining or by reckoning the percentile of marks obtained by them in such departmental test. The petitioner asserts that in Annexure-A3, the learned Tribunal had concluded that the candidates have to be placed in the seniority list taking into account the date of their initial appointment order, without referring to the date on which they have completed the training subsequently. 3. It appears that much after Annexure-A3 order was issued by the CAT, Mumbai, the competent Authorities of the BSNL had recalled the seniority list, in purported compliance of the directions in the said order and had issued a new seniority list in the year 2005. The pleadings show that this seniority list was then challenged by the petitioner 3 OP(CAT) No.18 of 2018 initially in a writ petition filed before the Hon'ble High Court, Bombay, which was thereafter transferred to the CAT, Mumbai Bench and numbered as Transfer Application No.6 of 2009. The learned Tribunal considered the contentions raised by the petitioner and held that the ratio of 75:25, mandated by the applicable Rules for appointment to the post of SDE through the channels of promotion and direct recruitment respectively, was valid in law and thus approved the seniority list that was impugned before it. This order of the learned Tribunal has been placed on record as Annexure-A14. It transpires that this order was challenged by several persons before the Hon'ble Supreme Court, which finally culminated in AnnexureA15 order, wherein, the Hon'ble Court unequivocally found the directions given in the order of the Tribunal to be legal and valid and thus dismissed all such SLPs. 4. After all these proceedings had finally completed through Annexure-A15 order, the BSNL issued Annexures-A1 and A2 orders also taking note of certain other directions of the CAT, Chandigarh Bench, as we have noticed above. The 4 OP(CAT) No.18 of 2018 petitioner challenges Annexures-A1 and A2, not because they are in violation of the directions of the Hon'ble Supreme Court or of the order issued by the learned Tribunal in Mumbai, namely Annexure-A14, but on the ground that they have been issued in violation of the earlier Annexure-A3 order issued by the CAT, Mumbai. 5. The CAT, Ernakulam Bench considered the original application quite in detail and concluded that all the issues raised by the petitioner against the seniority list published on 2005 and thereafter had been answered by the Mumbai Bench of the CAT through Annexure-A14 order. This order was, as we have observed above, confirmed by the Hon'ble Supreme Court through Annexure-A15 order and hence any dispute with respect to the seniority list normally should have been concluded. However, what the petitioner is now attempting, according to the learned Tribunal, is to wake up a contest against the seniority list, which was prepared at least 10 years later after Annexure-A3 order was issued, not on the grounds that were raised earlier before the learned 5 OP(CAT) No.18 of 2018 Tribunal, Mumbai or before Hon'ble Supreme Court, but on a completely tangential contention that it has been issued in violation of Annexure-A3 order obtained by him as early as in 2001. The learned Tribunal therefore, dismissed the original application finding that in the absence of any challenge to Annexures-A1 and A2 on the ground that they violated any of the directions contained in Annexures-A14 or A15 orders, the original application lacks merits. The petitioner calls into the question the validity of this order before us. 6. We had considered the submissions made by Sri. S.Sadasivan, the petitioner, who appeared party-in-person before us and the learned Standing Counsel for the respondents Sri.T. Sanjay. 7. We see that a reply statement has been filed by the learned counsel on behalf of respondents 1 to 3 before the CAT, wherein, they specifically contended that since the petitioner had not challenged the earlier seniority list, prepared and published in the year 2005 and subsequently, contending that it had violated the directions contained in 6 OP(CAT) No.18 of 2018 Annexure-A3 order, while subjecting the said lists, to challenge before the CAT, Mumbai and the Hon'ble Supreme Court, which led to Annexures-A14 and A15 orders respectively, all such contentions are taken as being given up and, therefore, cannot be now allowed to be raked up again by the petitioner. The respondents specifically assert that a seniority list cannot be subjected to challenge by a person piece-meal and that he ought to have challenged the same on the grounds that are raised by him now, while he had earlier approached the CAT, Mumabi, which led to AnnexureA14 order, which was confirmed by the Hon'ble Supreme Court in Annexure-A15. 8. In effect, the submission of the learned Standing Counsel for the BSNL is that in the absence of a challenge, having been mounted by the petitioner in the manner that he has now done, to the seniority list of the year 2005 and subsequent, which were, in fact, issued after Annexure-A3 order had been passed by the learned Tribunal, a further challenge on such contentions cannot be now entertained at 7 OP(CAT) No.18 of 2018 all. 9. To the objections raised by the BSNL as above, the petitioner appearing in-person, Sri.S.Sadasivan, submits that he has approached this Court because he gets a fresh cause of action on account of Annexure-A21 order now issued by the BSNL. He says Annexure-A21 has been issued by the competent authorities, rejecting his subsequent representations, wherein he has raised all his claims. He asserts that he has a fresh cause of action, which entitles him to file this original application. 10. We have considered the submissions of the parties as above. It is ineluctable from the pleadings on record that after the petitioner obtained Annexure-A3 order, a seniority list was drawn up in the year 2005 and that, it was also made subject to a challenge before the learned Tribunal, Mumbai at the hands of the petitioner himself. In the said original application, it appears that the petitioner had challenged only the ratio of 75:25, mandated by the Recruitment Rules for appointment to the post of SDE, but he 8 OP(CAT) No.18 of 2018 had conveniently not chosen to make any contention regarding the non-implementation of Annexure-A3 order. The learned Tribunal, Mumbai considered the specific challenge raised by the petitioner before it and answered it in a manner as is discernible from Annexure-A14, and held that the Recruitment Rules do not suffer from any infirmity. The petitioner did not challenge the seniority list on the ground that it violated Annexure-A3, but chose to challenge it on another ground, which was answered against him through the said order. This order of the learned Tribunal, was confirmed by the Hon'ble Supreme Court. 11. Obviously therefore, the validity of the seniority list of the year 2005 and thereafter has attained complete finality and has concluded, which does not thereafter entitle the petitioner to challenge the same in any manner. Merely because the petitioner thereafter continued to make representations to the Authorities making objections and allegations, which were not raised by him earlier, it does not mean that the Authorities were obligated in law to consider 9 OP(CAT) No.18 of 2018 the same or to pass fresh orders. However, it is on record that the Authorities issued Annexure-A21, rejecting all these representations of the petitioner, perhaps to ensure that the petitioner did not have a case that his request went unheeded and was not considered by the authorities in terms of law. 12. The question before us is whether, merely because Annexure-A21 order had been issued by the competent Authority, would that give him or entitle him to a fresh cause of action to raise a contest, which were not raised by him earlier and which was concluded against him through Annexures-A14 and A15 orders. We are certainly of the view that this is impermissible and we draw support from the judgment of the Hon'ble Supreme Court reported in **S.S. Rathore v. State of Madhya Pradesh [AIR 1990 SCC 10]** , wherein, the Hon'ble Supreme Court had declared the law unequivocally that repeated representations cannot enure any benefit to a petitioner to obtain fresh causes of action when his earlier challenge to the orders had attained finality. 10 OP(CAT) No.18 of 2018 13. The present case is not different. The petitioner had impugned the seniority list published in the year 2005 and subsequently, which had attained finality through Annexures-A14 and A15 orders of the CAT, Mumbai and the Hon'ble Supreme Court respectively. There was no reason for the petitioner, thereafter, to represent to the Authorities and the said Authorities could not have stated anything contrary to what had been found by the learned Tribunal or the Hon'ble Court in the orders afore mentioned. Obviously, therefore, merely because Annexure-A21 order has now been passed, the petitioner cannot claim to have a fresh cause of action to challenge the seniority list, prepared more than 15 years after Annexure-A3 order had been issued, on the ground that it violates the said order. We cannot find this contention of the petitioner to be justifiable at all and we, therefore, find no favour with him to interfere in any manner in this original petition. 14. There is an adscititious reason why we cannot interfere with the matter at this stage at all. This is because 11 OP(CAT) No.18 of 2018 none of the parties who are admittedly promoted through the lists of the year 2005 and thereafter are before us and they have all now obtained a vested right through such promotions, which remain unchallenged even now. The petitioner's attempt, by launching his present challenge before the the learned Tribunal, Ernakulam through this original application, therefore, guides us to a legitimate suspicion that his attempts are to unsettle the seniority list that was settled years ago, thus interfering with the vested rights of the promotees, without bringing them on the party array and then obtaining an order on the ground that Annexure-A3 has not been implemented. These contentions could not have been raised by the petitioner before the learned Tribunal or before this Court and if he had been aggrieved in any manner, he ought to have raised this while he moved the CAT, Mumbai and obtained Annexure-A14 order from it, especially because it was the said Tribunal, which had earlier issued Annexure-A3 order. His refusal or failure to do so can only mean that he had no case of that nature against 12 OP(CAT) No.18 of 2018 the seniority list published in the year 2005. We must also remind ourselves what the Hon'ble Supreme Court has said in several judgments in the past that settled positions and vested rights cannot be unsettled at a later stage, merely because somebody chooses to wake up and make a challenge at his own convenience. We draw support in this regard from the judgment of the Hon'ble Supreme Court in v. **P.N.Subramanyan Reddy A.P. State Road Transport** . **Corporation and Others [AIR 1992 SCC 142]** 15. We, therefore, are certainly of the firm view that the learned Tribunal was justified in issuing the order impugned herein and that there are no reasons before us, in any manner, to interfere with the same. The original petition is thus dismissed. Sd/- ## **P.R.RAMACHANDRA MENON JUDGE** Sd/- ## **DEVAN RAMACHANDRAN JUDGE** P.A to Judge SB/27/01/2018 // true copy //