W.P.(C).3386/2006 & Connected Cases

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.GIRI** ## **FRIDAY, THE 29TH FEBRUARY 2008 / 10TH PHALGUNA 1929** ## **WP(C).No. 3386 of 2006(C)** **-----------------------------------PETITIONERS:** - **------------------** **1. T.JALAJAMANY AMMA, SENIOR TO A (PHONES), KARIAVATTOM SUB DIVISION, B.S.N.L., THIRUVANANTHAPURAM SSA, KERALA CIRCLE.** ## **2. SHAJI.P.S,** **SENIOR TO A (PHONES), CSC, B.S.N.L., POTHENCODE, THIRUVANANTHAPURAM.** ## **3. LALITHA SKARIAH,** **SENIOR TO A (PHONES), RLU EXCHANGE, B.S.N.L., PARUTHIPPARA, THIRUVANANTHAPURAM.** **BY ADV. SRI.G.SASIDHARAN CHEMPAZHANTHIYIL SRI.S.VISHNU** ## **RESPONDENTS:** - **-----------------------** **1. CHIEF GENERAL MANAGER, BHARAT SANCHAR NIGAM LIMITED, KERALA CIRCLE, THIRUVANANTHAPURAM.** **2. THE CHAIRMAN AND MANAGING DIRECTOR, BHARAT SANCHAR NIGAM LIMITED, NEW DELHI.** **3. THE BOARD OF DIRECTORS, BHARAT SANCHAR NIGAM LTD., CORPORATE OFFICE, SANCHAR BHAVAN, NEW DELHI-1.** **4. THE SECRETARY, MINISTRY OF COMMUNICATIONS, NEW DELHI.** ## **BY ADV. SRI.S.K.BALACHANDRAN, SC, BSNL - R1 TO R3 ASST. SOLICITOR GENERAL - R4** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/02/2008, ALONG WITH WPC NO. 4141 OF 2006 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.3386/2006** ## **APPENDIX** ## **PETITIONERS EXHIBITS** **EXT.P1:- COPY OF THE JUNIOR TELECOM OFFICER RECRUITMENT RULES, 1996 ISSUED ON 8.2.96 (RELEVANT PORTION).** **EXT.P2:- COPY OF THE NOTIFICATION NO.RECTT/30-6/99 DT. 30.11.99 ISSUED BY THE IST RESPONDENT.** **EXT.P2(a):- COPY OF THE LETTER NO.RECTT/306/99 DT. 8.3.2000 ISSUED BY THE SIT RESPONDENT.** **EXT.P3:- COPY OF THE LETTER NO.RECTT/30-4/2000 DT. 20.3.2000 OSSUED BY THE IST RESPONDENT.** **EXT.P3(a):- COPY OF THE LETTER NO.RECTT/30-2000 DT. 12.6.2000 ISSUED BY THE SIT RESPONDENT.** **EXT.P4:- COPY OF THE ORDER NO.ST-III/2-5/POSTING/2002 /PT DT. 4.10.04 ISSUED BY THE IST RESPONDENT.** **EXT.P5:- COPY OF THE LETTER NO.5-4/2004/PERS.IV DT. 18.5.04 ISSUED BY THE IST RESPONDENT** **EXT.P5(a):- COPY OF THE LETTER NO./5-4/2001/PERS-14 DT. 8.01 ISSUED BY THE IST RESPONDENT.** **EXT.P5(b):- COPY OF THE LETTER NO.5-4/2002/PERS-4/1000 DT. 7.4.02 ISSUED BY THE IST RESPONDENT.** **EXT.P5(c):- COPY OF THE LETTER NO.5-4/2003/PERS-4/100 DT. 5.5.03 ISSUED BY THE IST RESPONDENT.** **EXT.P6:- COPY OF THE REPRESENTATION DT. 6.10.05 SUBMITTED BY THE IST PETITIONER.** **EXT.P6(a):- COPY OF THE REPRESENTATION DT. 10.9.05SUBMITTED BY the 2ND PETITIONER.** **EXT.P6(b):- COPY OF THE REPRESENTATION DT. 19.9.05 SUBMITTED BY THE 3RD PETITIONER.** **EXT.P7:- COPY OF THE JUNIOR TELECOM OFFICER RECRUITMENT RULES, 1999 ISSUED ON 31.8.99(RELEVANT PORTION).** ## **RESPONDENT'S EXHIBITS** **EXT.R1:- COPY OF THE GAZETTE NOTIFICATION CONTAINING JTO RECRUITMENT RULES 1996.** **EXT.R1(a):- COPY OF THE NOTIFICATION DT. 8.3.2000.** **EXT.R1(b):- COPY OF THE MOU PUBLISHED IN GAZETTE OF INDIA DT. 17.3.01.** _**/**_ **TRUE COPY/** **P.A. TO JUDGE** ## **V.GIRI, J** ------------------- W.P.(C)s. 3386/06, 9092/06, 4141/06, 1956/06, 18594/05, 21176/05, 36448/07 -------------------Dated this the 29[th] day of February, 2008 ## **JUDGMENT** Common issues arise for consideration in these writ petitions and therefore, they have been heard together and are disposed of by this common judgment. An issue of a slightly varying character arises in Writ Petition No.1956/2006 and 3386/2006. Reference to those two cases will be made separately at the appropriate stage. Writ Petition No.9092/2006 is taken as the leading case. 2. The petitioners are Telecom Technical Assistants (TTA) working in the various Secondary Switching Areas under the BSNL, Telecom, Kerala Circle. According to them, TTA is one of the eligible cadres for promotion to the post of JTO on the basis of screening test and seniority. As per Ext.P9 Recruitment Rules, (which is same as Ext.R1), appointment to the post of JTO is to be effected by direct recruitment through a competitive examination in accordance with the instructions issued by W.P.(C).3386/2006 & Connected Cases 2 the Department in this behalf and by promotion/transfer in the manner indicated thereunder. 50% of the vacancies are to be filled up by direct recruitment and 50% by promotion/transfer. In so far as 50% to be filled up by promotion/transfer of departmental candidates are concerned, the following is provided in the Recruitment Rules. “50% by promotion/transfer of departmental candidates referred to in item (ii) column 11 will be regulated as under: (i). 15% by promotion of departmental candidates through a competitive examination. (ii). 35% by promotion/transfer of Transmission Assistants/Wireless Operators/Auto Exchange Assistants/Phone Inspectors Teleco. Technical Assistants. 15% promotion through competitive examination, the following group 'C' employees in the Department whose scale of pay is less than that of Junior Telecome Officers shall be eligible, if such employees are: W.P.(C).3386/2006 & Connected Cases 3 (i). borne on the regular establishment and workiing in Telecom Engineering Branch of Department including those workoing in the office of Chief General Manager, Telecommunication Circles/Districts other than- (a).Transmission Assistants, Telephone Inspectors Auto Exchange Assistants and Wireless Operators and T.T.A. ## (b). Plumbers/Sanitary Inspectors/Conservancy Inspector. (ii).Working in Telecommunication Factory, other than those borne on industrial establishments. (iii).borne on the regular establishment and workoing as Accounts Clerks in the Accounts Wing under the Telecommunications circles. (iv).borne on the regular establishment and working as Clerks Grade I and II, Work Assistants, Draftsman, Junior Architects and Electricians in the Civil Wing under Telecom Circles” W.P.(C).3386/2006 & Connected Cases 4 3. It is contended that the official respondents had notified a qualifying screening test exclusively for SC/ST candidates' for the vacancies of JTO upto 31.8.1999, in the 35% departmental quota. But it was postponed. By Ext.P1 notification dated 30.11.1999, persons belonging to the SC/ST category were notified of the test. But by Ext.P2 notification, a second qualifying screening test was notified on 8.3.2000. By Ext.P2, applications were invited from the OC candidates also. Persons who had applied pursuant to Ext.R1(a) were directed to treat earlier application as sufficient for the purpose of Ext.P2 also. Apparently, a second qualifying screening test was held on 30.4.2000. Result of the screening test was declared on 19.9.2000 and according to the petitioners, 621 candidates were declared as having passed the same. Petitioners in some of the cases had participated in the test, some did not. There is controversy in some of the writ petitions that Ext.P1 had originally restricted response to the notification to SC/ST candidates and therefore, the W.P.(C).3386/2006 & Connected Cases 5 persons belonging to the OC did not apply. The fact of the matter is under Ext.P2, there was no such restriction and the second screening test was held on 30.4.2000. Persons belonging to the OC had participated as stated above and 621 candidates were successful therein. 4. Apparently, when it was found that there were inadequate vacancies to absorb persons who had qualified the screening test, under the 35% departmental quota, BSNL took a decision as evidenced by a communication handed over by Sri. Mathew K. Philip, to effect one time diversion of vacancies meant for direct recruits of JTO’s to the promotion quota of TTA’s. It was noted that number of TTA's, who qualified against 35% departmental quota in the screening test but who could not be sent for training for want of vacancies in the departmental quota, is more than four thousand. In the circumstances, BSNL decided to divert 500 posts of TTA’s, who had qualified in the screening test, for training every year, by diverting the post of direct 6 ## W.P.(C).3386/2006 & Connected Cases recruits to the promotion quota. Petitioners refer to Exts.P3 and P4, consequential orders in this regard for the years 2001-02 diverting as it were 49 posts of JTO from the direct recruitment quota in the year 2001 and an equal number of posts in 2002-03 for the Kerala Circle. Apparently, this has been continued till 2007, submits the learned Standing Counsel for the BSNL. According to the petitioners, number of vacancies in the post are mentioned in the Statutory Rules, Ext.P9, which is the 1996 Rules as also in Ext.P10 which are the Rules for 1999. Filling up of the vacancies in the post in question is to be done as per column 11 and 12. This contemplates 50% of the vacancies by direct recruitment and 50% by promotion. This 50% again is divided between certain categories of departmental employees under the 35% (out of 50%) quota and 15% for another set of departmental employees, through limited departmental competitive examinations. The diversion of the vacancies which are set apart for the direct recruits amounts to violation of statutory provision, it is W.P.(C).3386/2006 & Connected Cases 7 contended. It is further contended that had such vacancies not been diverted, it is quite possible that they would be available to be filled up with the 35% quota for the subsequent years in which case, persons like the petitioners would have stood a chance of again qualifying the screening test, and then be considered for promotion to the post of JTO. Another contention is that illegal diversion of vacancies has detrimentally affected the chances of the petitioners. 5. It is further contended that originally the Department had taken a stand that there were no vacancies in the 35% quota as is evidenced by Ext.P1. But later, after holding a screening test, vacancies were created by illegally diverting them from the quota that is available for direct recruits. There is also challenge against the participation of respondents 5 and 6, which I will deal with separately. Petitioners, therefore, prayed for a declaration that the diversion of the vacancies from the direct recruit quota should be declared as illegal and W.P.(C).3386/2006 & Connected Cases 8 against the statutory provisions. It is further prayed that a direction may therefore, be issued consequently to make available such vacancies to the common pool and then make available a proportionate number of vacancies for the subsequent years in such a manner as to enable the petitioners also to aspire for appointment by transfer, available in resultant vacancies, after qualifying in the written test. 6. It is also contended that the Recruitment Rules were amended in 1999 and many of the persons, who have now been promoted against 35% quota after diversion of the vacancies, are not qualified in terms of the 99 Rules and therefore, their promotion has to be set aside. It may be noted that notice of the writ petition has been taken out by publications in Writ Petition 9092/2006 and several persons, who were promoted against 35% quota, have got themselves impleaded as persons affected. W.P.(C).3386/2006 & Connected Cases 9 7. Counter affidavit and an additional counter affidavit has been filed by the respondents. Reply affidavits have been filed by the petitioners. Counter affidavit has been filed by some of the contesting respondents as well. There is also an impleading petition by certain persons who support the petitioners. 8. I heard learned counsel for the petitioners Mr.Jnanasekaran, Mr.Vishnu S. Chempazhanthiyil, learned Standing Counsel for the BSNL, Sri.Mathew K.Philip, Sri.A.Jayasankar and Mr.S.K.Balachandran, and counsel for the contesting respondents Mr.Govindaswamy, Mr.P.Sreekumar, and Mr.S.Dilip, the counsel who appeared for some other respondents who support the petitioners in writ petition No.9092/2006. 9. The first question to be considered is whether the so called diversion of the vacancies, which otherwise would have been available for the direct recruit quota, W.P.(C).3386/2006 & Connected Cases 10 in the post of JTO’s, is illegal and if so, whether the petitioners have any grievance in that regard. 10. Mr.Jnanasekaran contends that Ext.P9 statutory Rules provide the method for filling up the 50% of the vacancies of JTO’s, by promotion. A decision to divert the vacancies otherwise available for direct recruits, amounts to a tinkering with the statutory Rules and therefore, the entire exercise is illegal. Mr.Jnanasekaran further contends that Rule 7 of the Rules provides the Government with the power to relax the prescription in the statute, but such power could be exercised only by the Government. In the present case, a decision to divert the vacancies has been taken by the BSNL. The said decision is not preceded by a decision of the Central Government to relax the Rules. It is therefore, contended that what took place by way of diversion is illegal. W.P.(C).3386/2006 & Connected Cases 11 11. Argument that the diversion of the vacancies involved a statutory infraction would have merited a deeper scrutiny along with the ancillary argument that the power to relax is vested with the Central Government, which would have also merited a deeper scrutiny. But I refrain from doing so. It is the admitted case of the petitioners that they are persons who are working as TTA’s and therefore, are eligible to aspire for promotion to the post of JTO’s in the 35% departmental quota as provided in Rule 12 of Ext.P9 Rules. The decision of the BSNL to divert about 5000 vacancies from the quota that is available for direct recruits, and make them available for TTA’s and other eligible persons who are entitled to be considered for promotion under the 35% departmental quota is obviously a decision, in relation to which the petitioners cannot have any grievance. After all the petitioners can be permitted to challenge a decision taken by the respondents only if they are aggrieved by the same. In fact, the petitioners could also be in the category of W.P.(C).3386/2006 & Connected Cases 12 beneficiaries of the decision taken by the respondents to divert the vacancies from the direct recruitment quota. The chances available to the petitioners and persons similarly situated, to be considered for promotion to the post of JTO’s under the 35% departmental quota, stood enlarged by the decision taken by the respondents to divert the vacancies, as it were. In that perspective, I am of the view that the petitioners cannot be considered as aggrieved either by the decision taken by the BSNL in April, 2001, to divert the vacancies from the direct recruits quota or by Exts.P3 and P4, which are consequential orders passed subsequently. 12. There is also another factor which stands in the way of the petitioners. The specific stand taken by the respondents in the counter affidavit and additional counter affidavit is that the vacancies, which were diverted from the direct recruit quota, are vacancies which were in existence as on 31.8.1999. In other words, the diversion of vacancies was a one time W.P.(C).3386/2006 & Connected Cases 13 measure made applicable to the vacancies available in the direct recruit quota as on 31.8.1999. The petitioners were qualified to be considered for promotion to the post of JTO as against the vacancies which were in existence till 31.8.1999. Essential grievance of the petitioners seems to be either by failure on their part to participate in the screening test or a failure to pass the test in spite of having participated in it. Diversion of the vacancies obviously did not bring about any detriment to the petitioners. 13. There is yet another factor which has been highlighted by the respondents. This seriously disentitles the petitioners from invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Exts.P3 and P4 orders, which are consequential to the decision taken by the BSNL to divert the vacancies otherwise available to the direct recruits, were issued on 9.8.2001 and 7.5.2003. Though there is no frontal challenge to Exts.P3 and P4 in the writ W.P.(C).3386/2006 & Connected Cases 14 petitions, in the sense that the petitioners have not specifically sought to set aside Exts.P3 and P4. What is found to be significant is the fact that the cause of action of the petitioners arose on 30.4.2000 where screening test was held or at least on 9.8.2001. Ext.P3 is illustrative and it specifically refers to the decision taken by the BSNL. Writ petition in question was filed only in 2006, though earlier among the writ petitions were filed on 15.7.2005. In my view, there is delay or latches on the part of the petitioners and it also stands in the way of any reliefs being granted to them. Decisions of the Supreme Court in **S.S.Moghe and Others v. Union of India and Others (1981 (3) SCC 271),** and **Mohd. Siddiquali v. High Court of A.P. And Others (2005 (13) SCC 207)** cited by Mr.Sreekumar, counsel who appeared for some of the contesting respondents supports the said contention taken by the respondents. W.P.(C).3386/2006 & Connected Cases 15 14. Mr.Jnanasekaran contended that the selection of respondents 5 and 6 is illegal as they were not qualified in that regard. They were eligible to participate in the second screening test. I am afraid, I am not in a position to consider this contention on merits essentially for the reason that the participation of respondents 5 and 6 was pursuant to the orders passed by the CAT and upheld by the Division Bench of this Court as evidenced by Exts.R1(d) and R1(j). Even otherwise the factor of delay and latches as delineated above could obviously stand in the way of such a contention being considered. After all respondents 5 and 6 would have successfully participated in the screening test held on 30.4.2000 and frontal challenge against the participation is made more than five years later. They had been promoted in the meanwhile and they were entitled to rest assured that their promotions are regular and beyond challenge as such. W.P.(C).3386/2006 & Connected Cases 16 15. Mr.Jnanasekaran contended that holding of the second screening test in such a manner as to promote persons belonging to OC, should be treated as illegal in the light of the fact that Ext.P1 expressly confined the persons who were entitled to respond thereto, to the SC/ST category. But as a matter of fact, Exts.P2 and R1(a) would show that the respondents had permitted the applicants from the OC community also to participate in the screening test, originally notified by Ext.R1(a) and then again notified by Ext.P2. It is true that there is a stipulation in Ext.P2 that as regards the vacancy position, it was notified that then no vacancy existed under the OC category. But this does not mean that the persons who were entitled to respond to Ext.P2 were only the persons belonging to SC/ST community. In fact some among the petitioners had participated in the test but failed to pass. There was a challenge against the manner of conduct of the test vide several applications before CAT. The litigation had ultimately ended only in the Supreme Court after a number of litigations before W.P.(C).3386/2006 & Connected Cases 17 the Division Bench of this Court. A plea of estoppal, as noted, sought to be raised by Mr.Jnanasekaran does not seem to be specifically available from Ext.P2, in the context of Ext.R1(a). It is also not available for the reason that had there been a legitimate grievance that any person was prevented from applying pursuant to Ext.P2, a frontal challenge should have been made within a reasonable time of the holding of the screening test as such. That was not done. 16. For all these reasons, I do not find any merit in writ petition No.9092/2006. The findings made above are applicable to Writ Petition Nos. 36448/2007, 21176/2005, 18594/2005 and 4141/2006. This takes me to Writ petition No.1956/2006, 3386/2006. I heard learned counsel for the petitioners in the aforementioned two cases Mr.Vishnu S. Chempazhanthiyil and the learned Standing Counsel for the BSNL Mr.S.K.Balachandran. I refrain from embarking upon a detailed appraisal of the facts. But a difference in the W.P.(C).3386/2006 & Connected Cases 18 present case is that the petitioners are persons who are otherwise eligible to be considered for promotion in the 15% quota available to departmental candidates, who qualify in the limited departmental competitive examination. The main contention raised by the learned counsel for the petitioners is that having decided to divert the vacancies from the 50% quota available to direct recruits, Department should have made available the diverted vacancies to the two categories of departmental candidates in the proportion of 35(70) and 15(30). There was no reason why the BSNL had taken a decision to make available the diverted vacancies to one category of departmental candidates. After all the right to be considered for promotion is rested on the statutory Rules and if the decision is to give a chance to several persons in the Department who are otherwise qualified to be considered for promotion to the post of JTO, then there is no reason why 15% (30%) of departmental candidates should also not have been considered in that regard. 19 W.P.(C).3386/2006 & Connected Cases 17. Learned counsel for the BSNL submits that the BSNL had taken a decision to make available the diverted vacancies to 35% departmental candidates and if that be so, there cannot be any grievance for the petitioners as such. After all, the diverted vacancies were not vacancies which otherwise were available. 18. I am afraid, I am unable to accept this contention. In my view, once the BSNL took a decision to divert the vacancies otherwise available for direct recruits, for the departmental candidates, as a one time measure, confining the vacancies to those available upto 31.8.1999, then proportion of 35% to 15% as provided in column 12 of the Rules should have also been applied. The decision to make available the entire diverted vacancies to one set of departmental candidates smacks of an arbitrariness, which would be violative of Article 14 of the Constitution of India. W.P.(C).3386/2006 & Connected Cases 20 19. But I refrain from declaring the action taken by the BSNL in this regard as unconstitutional for two reasons. Firstly, petitioners have not frontally challenged the specific orders under which the eligible candidates in the 35% departmental quota were promoted. In other words, affected persons have not been brought on the party array. Consequently, most of the persons who were so promoted under the departmental quota have long since been absorbed into promoted posts and it would neither be fair nor reasonable to disturb such persons. In my view, interest of justices would be met, if the claim made by the petitioners are looked into by the BSNL. 20. In the result, writ petitions 1956/2006 and 3386/2006 are disposed of in the following terms: 21. First respondent shall ascertain the number of persons, who were eligible as on 31.8.1999, under the 15% departmental quota, to be considered for promotion W.P.(C).3386/2006 & Connected Cases 21 to the post of JTOs. After identifying those persons who are eligible as aforementioned, BSNL shall conduct a limited departmental competitive examination as undertaken under paragraph 8 of the counter affidavit and those persons who are successful in such examination shall be promoted to the post of JTOs deeming such promotion as one against the vacancies which were available on 31.8.1999. Whatever adjustment is to be done as regards the vacancies, for the purpose of giving effect to these directions, shall be done by the BSNL. It is declared that they shall be entitled to do so. Needful shall be done in the manner aforementioned within a period of six months from the date of receipt of a copy of this judgment. Mr.Vishnu S. Chempazhanthiyil contended that in so far as Writ petition No.1956/2006 is concerned, the prayer is only to consider the case of the petitioners for the vacancies which had arisen after 31.8.1999. In my view, respondents shall consider the case of the petitioners in Writ Petition No.1956/2006, as against the vacancies W.P.(C).3386/2006 & Connected Cases 22 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. It is made clear in this context that any process undertaken by the respondents as above, shall not affect the promotions already effected hitherto. **V.GIRI, Judge** mrcs