HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
WRIT APPEAL Nos. 1130 and 1131 of 2008
COMMON JUDGMENT: (Per the Hon'ble Sri Justice Abhinand Kumar Shavili)
Both these Writ Appeals are being taken up for hearing as
the issue raised in these writ appeals is one and the same.
2. Both these Writ Appeals are filed by the appellants
assailing the common order passed by learned Single Judge in
WP.Nos. 20503 of 2005 and 7443 of 2008 dated 02.07.2008,
respectively.
3. Heard Sri Radhakrishna, learned Standing Counsel, for the
appellants and Sri. J.Sudheer, learned counsel for the
respondents.
4. For the sake of convenience, the facts in the W.A.No. 1130 of 2004 is discussed hereunder.
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5. It has been contended by the learned counsel for the appellants-Department that the respondents were appointed as Hindi Translators in various cadres such as Grade-1, 2 and 3. The respondents have contended that they were eligible for promotion to the post of Hindi officers and were later designated as Assistant Director and further re-designated as Rajabhasha Adhikari. The appellants further contended that statutory rules were framed on 24.12.2002, which are commonly known as Assistant Director (Official Language) Recruitment rules, 2002. As per the said rules, the post of Rajabhasha Adhikari was liable to be filled up by way of promotion with the persons who have put in three years of service as Senior Hindi Translators. As per the rule 10(3) of 2002 Rules, the post of Rajabhasha Adhikari is eligible to be filled up in the following manner:-
3 AKS,J & RRN,J W.A.No.1130&1131 of 2008 "There are many Sr. Hindi Translators/Jr. Hindi Translators and Group "C" officials who have been given adhoc promotions to the grade of AD(OL) in field formations of BSNL. In order to avoid legal and administrative complications as a onetime measure, it is provided that all the vacancies in the grade of AD(OL) in the first year of recruitment, irrespective of vacancies earmarked for promotional quota or direct quota, shall be filled up by promotion on seniority-cum-fitness basis, by following due procedures, amongst t hose officials who have been officiating as AD(OL) in BSNL, subject to their fulfilling the basic qualifications and experiences as prescribed in column 12 of the Schedule annexed to these Rules".
Some of the respondents were already promoted as Rajabhasha Adhikari on adhoc basis. However, fresh Rules were again issued in 2005, wherein, the post of Rajabhasha Adhikari was eligible to be filled up by way of promotion by conducting limited internal competitive examination. The respondents have challenged the said rule by filing writ petitions aggrieved by the prescription of limited internal competitive examination for promotion to the post of Rajabhasha Adhikari contending that they were eligible for promotion to the post of Rajabhasha Adhikari as per the 2002 Rules. All the respondents were 4 AKS,J & RRN,J W.A.No.1130&1131 of 2008 employed as Hindu Translators prior to 1994 and as per the executive instructions prevailing as on 28.04.1994, the respondents were eligible to be promoted without subjecting to any examination and even as per the 2002 Rules also, there was no prescription of any examination. As admittedly the vacancies have arisen, prior to promulgation of new rules in 2005, the respondents should be promoted without subjecting to any examination. When the case of the respondents were not considered for promotion to the post of Rajabhasha Adhikari, they have approached this Court by filing WP.Nos. 20503 of 2005 and 7443 of 2008. By common order dated 02.07.2008, the learned Single Judge allowed the writ petitions and directed the appellants to consider the case of respondents for promotion to the post of Rajabhasha Adhikari, without reference to the test preferred under 2005 Rules.
6. The learned counsel for the appellants had further contended that when statutory rules are holding the field, 5 AKS,J & RRN,J W.A.No.1130&1131 of 2008 learned Single Judge could not have directed the appellants to consider the case of the respondents for promotion to the post of Rajabhasha Adhikari without subjecting them to any examination. Learned counsel for the appellants has relied upon a judgment of the Supreme Court in CMD/Chairman, B.S.N.L. and others v. Mishri Lal and others 1 and contended that the Supreme Court has set aside the orders passed by the Allahabad High Court with the following observation:-
"We are of the opinion that the above observation are not sustainable. When Rules are framed under Article 309 of the Constitution. No undertaking need be given to anybody and the Rules can be changed at nay time. For instance, if the retirement age is fixed by rules framed under Article 309, that can be changed subsequently by an amendment even in respect of employees appointed before the amendment. Hence, we cannot accept the view taken by the High Court. There is no question of equity in this case because it is well settled that law prevails over equity if there is a conflict. Equity can only supplement the law, and not supplant it. As the Latin maxim states "Dura lex sed lex" which means "The law is hard, but it is the law".1
Civil Appeal No.1405 of 2007 dated 15.04.2011 6 AKS,J & RRN,J W.A.No.1130&1131 of 2008 For the aforementioned reasons, the appeal is allowed. The impugned judgment and order of the High Court is set aside. There shall be no order as to costs".
7. Learned counsel for the appellant had further contended that the Allahabad High Court was pleased to set aside the 2005 Rules on the ground that the Rules are causing inconvenience and hardship to the employees who are already working in the feeder category and prescription of any examination to such of those individuals would cause hardship and inconvenience and Supreme Court has set aside the said orders passed by Allahabad High Court holding that the Rules have to be implemented and there cannot be any equity against the Rules and therefore, following the judgment of the Supreme Court, the orders passed by the learned Single Judge are liable to be set aside and the writ appeals are liable to be allowed.
8. Learned counsel for the respondents contended that admittedly in the instant case, the respondents were appointed 7 AKS,J & RRN,J W.A.No.1130&1131 of 2008 as Hindi translators prior to issuance of Rules and they were eligible for promotion to the post of Rajabhasha Adhikari even as per the executive instructions dated 28.04.1994 and also as per the 2002 Rules. The learned counsel for the respondents had further contended that some of the persons who were working as Rajabhasha Adhikari in Kerala State were reverted from the post of Rajabhasha Adhikari on the ground that they have not cleared the examination as prescribed in 2005 Rules. The said individuals have approached the Central Administrative Tribunal (for short 'the Tribunal') by filing an OA before the Tribunal and the Tribunal was pleased to allow the cases filed by the employees and aggrieved by the orders passed by the Central Administrative Tribunal, the B.S.N.L has preferred writ petitions before the Kerala High Court. Kerala High Court was pleased to dismiss the WP.No.29029 of 2010 vide order dated 04.11.2011 and later the Kerala High Court has entertained review petitions, restored the writ petition No. 8 AKS,J & RRN,J W.A.No.1130&1131 of 2008 29029 of 2010 and set aside its earlier order dated 04.11.2011 and later allowed the writ petition vide order dated 10.10.2019 by setting aside the orders passed by the Tribunal. Thereafter, the original applicants before the Central Administrative Tribunal have approached the Supreme Court challenging the orders passed by the Kerala High Court in WP.No.29029 of 2010 and Hon'ble Supreme Court was pleased to allow the SLPs preferred by the employees i.e., Civil Appeal No.5811-5814 of 2021 vide orders dated 21.09.2021 and set aside the orders passed by the Kerala High Court dated 10.10.2019 and was pleased to restore the orders passed in Kerala High Court earlier on 04.11.2011 which would mean the orders passed by the Kerala High Court on the earlier occasion in WP.No. 29029 of 2010, dated 04.11.2011 were upheld by the Supreme Court. The Supreme Court has also examined the case by applying the judgment of the Supreme Court in Y.V.Rangaiah and other 9 AKS,J & RRN,J W.A.No.1130&1131 of 2008 v. J.Sreenivasa Rao and others2 and held that the vacancies which arose prior to the promotion of new Rules are liable to be filled up as per the old Rules only. Admittedly, in the instant case all the vacancies have arisen prior to 2005 and the new Rules have come in 2005 prescribing a test for the candidates to be eligible for promotion of Rajabhasha Adhikari and the learned Single Judge rightly directed the appellants to consider the case of respondents for promotion to the post of Rajabhasha Adhikari upon the rules which were in existence at that point of time.
9. Learned counsel for the respondents had further contended that the Judgment relied upon by the counsel for the appellants in Mishri Lal's case (1 Supra) and others in Civil Appeal No.1405 of 2007 dated 15.04.2011 has no application in the instant case as admittedly the learned Single Judge has not set aside the Rules framed by the appellants. Learned Single 2 AIR 1983 Supreme Court 852 10 AKS,J & RRN,J W.A.No.1130&1131 of 2008 Judge has merely directed the appellants to consider the case of respondents by applying the old rules. The judgment rendered by the Supreme Court in Civil Appeal No.5811-5814 of 2021 vide orders dated 21.09.2021 has to be applied in the instant case. Therefore the writ appeals are liable to be dismissed.
10. This Court having considered the rival submissions made by both the parties is of the considered view that the learned Single Judge is rightly justified in allowing the writ petitions preferred by the respondents by holding that as the vacancies have arisen prior to issuance of new rules, the said post has to be filled up as per the rules which were in existence and by following the Supreme Court orders in Civil Appeal No.5811- 5814 of 2021 vide orders dated 21.09.2021 both the Writ Appeals are liable to be dismissed.
11. Accordingly, both the writ appeals are dismissed. No costs.
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12. Miscellaneous applications pending, if any, shall stand closed.
_______________________ ABHINAND KUMAR SHAVILI`, J __________________________ NAMAVARAPU RAJESHWAR RAO, J Date: 12.12.2022 Pss