## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V.**
**THURSDAY, THE 8TH DAY OF JUNE 2017/18TH JYAISHTA, 1939**
**OP (CAT).No. 1484 of 2011 (S) ------------------------------**
**AGAINST THE ORDER IN OA 585/2010 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 22.12.1999**
**PETITIONER:**
**-------------**
**S.VENUGOPAL, AGED 45 YEARS, S/O.M.N. SIVARAMAN NAIR, TELECOME MECHANIC, SALES ASSOCIATE, PROJECT UDAAN, BSNL BHAVAN, ERNAKULAM, RESIDING AT, MEPPANATH HOUSE, KANINADU P.O., ERNAKULAM DISTRICT**
## **BY ADV. SRI.M.A.SHAFIK**
**RESPONDENTS:**
**--------------**
**1. UNION OF INDIA, REPRESENTED BY THE CHAIRMAN CUM MANAGING DIRECTOR, BHARAT SANCHAR NIGAM LIMITED, SANCHAR BHAVAN, NEW DELHI.**
**2. THE CHIEF GENERAL MANAGER, TELECOME, BSNL KERALA CIRCLE, TRIVANDRUM.**
**3. THE ASSISTANT GENRAL MANAGER(R&e), OFFICE OF THE PGMT, BSNL, ERNAKULAM.**
**R BY ADV. SRI.P.J.PHILIP,SC,BSNL(BHARAT SANCHAR N R BY SRI.MATHEWS K.PHILIP,SC, BSNL**
**THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 08-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **OPCAT 1484/2011**
## **PETITIONER'S EXTS:**
**P1: COPY OF THE ORIGINHAL APPLICATION NO. 585/2010 FILED BEFORE THE CAT**
**P2. COPY OF THE ORDER DT. 12.11.2010 IN MA 845/2010 OF THE CAT**
**P3: COPY OF THE MA NO 982/2010 FILED BY THE PETITIONER BEFORE THE CAT**
**P4: COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN OA 585/2010 BEFORE THE C.A.T.**
**P5. COPY OF THE ORDER DATED 6.1.2011 OF THE CAT IN OA 585/2010.**
**P6: COPY OF THE ORDER DATED 22.12.1999 IN OA 505/99 OF THE CAT ERNAKULAM BENCH.**
**P7: TRUE COPY OF THE JUDGMENT DATED 18.7.2005 OF THIS COURT IN OP 13149/2000.**
## **RESPONDENTS EXTS:**
**R1(A) COPY OF THE ORDER DT. 2.8.2012.**
**R1(B) COPY OF THE LETTER DATED 4.8.2012.**
**KS.**
## **True copy**
**P.S. (Hr.Gr.)To Judge**
## **P.R. RAMACHANDRA MENON & SHIRCY V.,JJ.**
**============================== O.P. (CAT)No. 1484 OF 2011**
**============================== Dated this the 8[th] day of June, 2017**
## **JUDGMENT**
## **P.R. Ramachandra Menon, J.**
The point mooted for consideration is whether the officiating service rendered by the petitioner as a Telecom Mechanic prior to regularisation could be reckoned for the purpose of qualifying service for making him eligible to be permitted to participate in the Limited Departmental Competitive Examination, (hereinafter referred to as 'LDCE' for promotion to the next post in the hierarchy i.e. Telecom Technical Assistant (TTA).
2. Heard the learned counsel appearing for the
petitioner as well as the learned Standing counsel appearing
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for the respondents.
3. The essential facts revealed show that the petitioner served the Bharat Sanchar Nigam Limited (BSNL) under various capacities as Mazdoor, Mechanic, etc. and finally he was appointed as officiating in the post of Telecom Mechanic with effect from 23.1.2003 as per Annexure A-2 and the said appointment was regularised on 7.1.2004 as per Annexure A-3. While so, Annexure-A5 notification was issued by the respondents inviting applications for participating in the LDCE scheduled to be held on 31.1.2010. The notification also stipulated that the petitioner/applicant who satisfied the minimum academic qualification and 5 years regular service would be permitted to participate in the said examination. In the instant case, the petitioner is having the qualification of 10+2. Contending that he was having more than 5 years of service as on the cut off date, i.e. 1.7.2008, he also applied for the test. But the claim of the petitioner was not considered
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favourably by the Department which made the petitioner to approach the Tribunal seeking for appropriate directions to permit him to participate in the test, with the following prayers:
## _Relief's sought:-_
_In view of the facts mentioned in paragraph IV and V above, the applicant prays for the following reliefs:-_
_i) To call for the records relating to Annexure A-1 to A-8 and to quash Annxure A-1_
_ii) To declare that the applicant is eligible and entitled to be included in A-7 list in order to permit him to take part in the LDCE scheduled on 11.7.2010._
_iii) To direct the respondents to reckon the service rendered on adhoc/officiating basis as Telecom Mechanic as evidenced by A2 & A-3 as regular service for all purposes with all consequential benefits._
_iv) To issue such other appropriate orders or directions this Hon'ble Tribunal may deem fit, just and proper in the circumstances of the case._
_And_
_(v) To grant the costs of this Original Application.”_
## 4. The relief sought for was opposed by the
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Department stating that the Rules were categoric to the effect that the requirement of 5 years' regular service was not possessed by the applicant as he was regularised in service as per Annexure-A3 dated 7.1.2004. The contention of the petitioner/applicant was that, he was appointed to officiate in the post of Telecom Mechanic as per Annexure A- 2 dated 23.1.2003, on being successful in a due process of selection in accordance with the relevant Rules. AnnexureA2 was followed by Annexure-A3 order of regularisation and the delay in regularisation of service of the petitioner/applicant was not attributable to the applicant. It was contended that, on counting the 'officiating service' prior to the date of Annexure-A2, the petitioner satisfied the requirement of 5 years' regular service and was eligible to participate in the examination.
5. After hearing both the sides, the Tribunal repelled the contention raised by the petitioner and held that as per the Relevant Rules, the stipulation was 5 years' regular
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service, which was not possessed by the petitioner; having been regularised only in January 2004. It was accordingly that, the O.A. was dismissed which made the petitioner to approach this Court by filing this petition.
6. During the course of hearing, learned counsel for the petitioner submits that the observation made by the Tribunal with reference to the dictum laid down by the Constitution Bench of the Apex Court in **Rudra Kumar Sain v. Union of India** [(2008) 8 SCC 25] is not correct and that the dictum therein actually intends to give benefit to the persons as similarly situated like the petitioner herein. The learned counsel points out that there was no case for the Department that the appointment of the petitioner as per Annexure-A2 was contrary to the Rules or that it was merely fortuitous or by way of stop gap arrangement, to have vacated the seat on appointment of somebody else by way of any other mode of selection. As a matter of fact, there is no break of service in the case of the petitioner and
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without any further process of selection, based on the selection and merit-rating which led to Annexure-A2 order of officiating appointment and subsequent regularisation of his service as per Annexure-A3. This being the position, according to the petitioner, the said service is liable to be counted, particularly in the light of the observations made by the Apex Court in **Rudra Kumar Sain's case** (supra); paragraph 20 of which reads as follows:
“20. In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be “stopgap or fortuitous or purely ad hoc”. In this view of the matter, the reasoning and basis on which the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be fortuitous/ad hoc/stopgap” are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous.”
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7. Learned Standing Counsel appearing for the respondents submit that the idea and understanding of the petitioner is thoroughly wrong and misconceived. It is stated that the Apex Court has never held that the abovesaid officiating service has to be reckoned for the purpose of deciding the qualifying service. Under certain specified/exceptional circumstances, as dealt with in the concerned cases, it has been ordered to be reckoned for the purpose of fixing the seniority and that is all. In the instant case, the rule is quite categoric to the effect that, to make a person eligible to compete in the LDCE, he should have a minimum 5 years of regular service and admittedly, since he was regularised only in the year 2004 vide Annexure-A3, the petitioner does not meet the requirement.
8. It is brought to the notice of this Court by the learned counsel for the petitioner that by virtue of the interim order passed by the Tribunal, the petitioner was permitted to take part in the examination and by virtue of
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the proven merit and credentials, he came out successful in flying colours and obtained the 2[nd] rank in the District. This being the position, the verdict passed by the Tribunal in sending him out quite unceremoniously, without appreciating the actual facts and circumstances but for making vague observations as to the scope of the verdict of the Apex Court as above, requires interference of this Court, submits the learned counsel.
9. The question to be considered by this Court gathers momentum in the light of the observations made by the Constitution Bench of the Apex Court in **Direct Recruit Class II Engineering Officers Association v. State of Maharashtra [1990 (2)SCC 715].** The Apex Court held that, if the appointment is made on the basis of the qualification and in conformity with the rules, though only to officiate, followed by regularisation, such continuous service for long tenure in the officiating capacity cannot be simply turned down as fortuitous. But this is for the
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purpose of fixation of seniority and not with regard to the eligibility to participate in the qualifying examination. The
relevant rules for making a person eligible to participate in the LDCE, as it appears from Annexure-A4, is as given below:
_“B) Promotion_
_Through Limited Departmental competitive Examination from amongst the following Group C employees of Telecom engineering:_
_(a) i) Telecom Operating Assistant(TOA) with five years regular service or_
_ii) Senior Telecom Operating Assistant (Sr.TOA) with five year regular service (including the service rendered as Telecom Operating Assistant),_
_holding 10+2 standard certificate or equivalent._
_“ (b) i) Telecom Mechanic holding 10+2 standard certificate or equivalent and_
_ii)Technicians other than Technicians referred to in item (A) relating to absorption above with 5 years regular service in the respective cadres.”_
10. There is no challenge against the said Rule. There is no case of the petitioner at any point of time, that he was
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liable to be regularised with effect from a prior date, or that Annexure-A4 was to be given effect from the date of officiating conferred as per Annexure-A2. The grievance sprung up only on issuance of Annexure-A4 Notification in the year 2008; when the contention was that the 'officiating service' was also liable to be counted as part of the regular service to make him eligible. We find it difficult to accept the said proposition as the rule which clearly says that it should be 5 years' regular service, which cannot be anything else. This Court cannot rewrite the rule, which says that only those candidates having 5 years of regular service alone to be considered as qualified for participating in the test. There may be several other persons as well, who are not having the 5 years' regular service, but occupying the same level as in the case of the petitioner herein, in an 'officiating capacity', who by virtue of the categoric Rule position did not find themselves eligible to make an application for participating in the LDCE. Reckoning of
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'officiating service' for the purpose of seniority, as it may be in appropriate cases, stands on different pedestal. When it comes to reckoning of such service for the purpose of qualifying service, the Rule cannot be watered down. This being the position, the finding and reasoning rendered by the Tribunal as per Ext.P5, declining interference, is not liable to be interfered with.
The Original petition fails and it is dismissed accordingly.
Sd/- **P.R. RAMACHANDRA MENON JUDGE**
Sd/- **SHIRCY V. JUDGE**
ks
True copy
P.S. (Hr.Gr.)To Judge
