Bombay High Court
National Federation Of Telecom ... vs The Chief General Manager - Telecom ... on 13 March, 2025
2025:BHC-AS:12254
Sonali Mane 12-WP-1038-2009.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1038 OF 2009
National Federation of
Telecom Employees BSNL Union ... Petitioner
Versus
The Chief General Manager -
Telecom Factory - Bharat
Sanchar Nigam Ltd. And Anr. ... Respondents
Mr. Jaiprakash Sawant for the Petitioner.
Mr. A.S. Rao, for the Respondents.
CORAM : SANDEEP V. MARNE, J.
DATE : 13 MARCH 2025.
ORAL JUDGMENT:
1) The Petition challenges Award dated 10 July 2008
passed by the Central Government, Industrial Tribunal No.2,
(CGIT- 2) Mumbai rejecting Reference No. CGIT-2/30 of 2002, which
was registered at the instance of the Petitioner-Union. The Reference
was qua the employee Shri. T.C. Kamble in respect of his grievance
of non-promotion to the post of Inspector.
2) Petitioner was appointed in the Telecom Factory of
Bharat Sanchar Nigam Ltd. on the post of Mazdoor on 5 September
MANE
SONALI
DILIP 1997. He was promoted to the post of Fitter (Instrument) Grade II
with effect from 29 January 1981. He was further promoted to the
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post of Fitter (Instrument) Grade I with effect from 28 May 1985
after clearing the trade test. By Memorandum dated 31 January
1989, Shri. Kamble was transferred in the interest of service to
Inspection Shop No. 13 as Examiner with effect from 1 February
1989. Thus, there was a change in the trade of the Petitioner from
Fitter (Instrument) to Examiner. Such change was apparently in the
same payscale but was made in the interest of administration.
Petitioner belongs to scheduled caste category. He believed that since
he was subjected to trade change in the interest of administration,
he was not required to clear any further trade test for being
promoted to the post of Inspector. It appears that a trade test was
convened for effecting promotion in Inspector category and the
Petitioner was not permitted to participate in the said trade test. He
believed that it was not necessary for him to clear the trade test and
that he would be promoted as Inspector against post reserved for
scheduled caste category. Since the Petitioner was not promoted, the
Petitioner-Union raised demand for its promotion, which resulted in
making of a Reference to said CGIT-2, which was registered as
Reference No. CGIT-2/30 of 2002. The Reference was initially
rejected by the CGIT-2 by Award dated 25 April 2007. Petitioner-
Union challenged the said Award by filing Writ Petition No. 8489 of
2007, which came to be partly allowed and the Reference was
remanded for being decided afresh. In remanded Reference, the
Tribunal has again ruled against the Petitioner by rejecting the
Reference vide impugned Award dated 10 July 2008, which is subject
matter of challenge in the present Petition.
3) I have heard Mr. Sawant, the learned counsel appearing
for the Petitioner, who would submit that Shri. Kamble is
erroneously denied his right of promotion to the post of Inspector. He
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would invite my attention to the relevant portion of the instructions
issued regarding rationalization of trades in the Telecom Factories in
BSNL in support of his contention that upon transfer of an employee
from one trade to another in the interest of service, no trade test is
required to be conducted. He would submit that since the Petitioner
was transferred from the trade of Fitter (Instrument) to the trade of
Examiner, it was not necessary for him to appear in the trade test
for promotion to the post of Inspector. He would submit that the
CGIT has erroneously imported the concept of zone of consideration
in the remanded Reference, which was never BSNL's original case.
He would challenge the findings of the CGIT on the issue of zone of
consideration by inviting my attention to the report of inspection of
documents to demonstrate that Shri Kamble was senior to the five
employees, who were permitted to participate in the trade test.
Additionally, he would also rely upon a separate seniority list to
buttress his claim that Petitioner was not junior to the five
employees, who were permitted to participate of the trade test. Mr.
Sawant would further submit that Respondents-BSNL unnecessarily
subjected such junior employees to the trade test when none of them
could pass the same. Without prejudice to his submission that no
trade test was required to be passed, Mr. Sawant has contended that
it was a fault of Respondents-BSNL in not permitting Petitioner to
appear in the trade test and that therefore he cannot be made to
suffer for the mistake of the BSNL. He would submit that the CGIT
has not taken into consideration findings recorded by this Court in
Order dated 1 April 2008 while deciding the Writ Petition No. 8489
of 2007. He would pray for setting aside the impugned Award.
4) The Petition is opposed by Mr. Rao, the learned counsel
appearing for Respondents-BSNL. At the very outset, he would place
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on record copy of letter dated 12 December 2024 addressed to BSNL
by Petitioner-Union expressing desire to withdraw the present
Petition. He would submit that since the Union has decided to
withdraw the Petition, Shri. Kamble cannot insist that he must be
granted an opportunity to prosecute the Petition individually.
Mr. Rao would submit that even otherwise no interference is
warranted in fact finding exercise carried out by the learned CGIT
for arriving at a conclusion that Petitioner did not fit into the zone of
consideration for effecting promotion to the post of Inspector. He
would submit that passing of trade test was sine qua non for earning
promotion to the post of Inspector. He would accordingly pray for
dismissal of the Petition.
5) Rival contentions of the parties now fall for my
consideration.
6) So far as letter dated 12 December 2024 issued by
Petitioner-Union to the Respondents-BSNL is concerned, a clear
instruction was apparently given to Mr. Sawant to withdraw the
Petition. Mr. Sawant would however place on record another letter
dated 3 February 2025 of the Petitioner-Union clarifying that the
earlier letter dated 12 December 2024 was issued out of
inadvertence. By letter dated 3 February 2025, the Union has
expressed desire to continue to prosecute the Petition on behalf of
Mr. Kamble. This Court does not appreciate the conduct on behalf of
the Petitioner-Union in changing its stance. It initially decided to
withdraw the Petition by giving instructions to its advocate with a
copy thereof to the Respondents-BSNL. However instead of
withdrawing the Petition, they subsequently changed their stance
and have issued letter dated 3 February 2025 expressing desire to
prosecute the Petition. Be that as it may. Since the Petition is
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pending in this Court for the last 16 long years, I have proceeded to
decide the same merits thereon rather than rejecting the same on
technical ground of inconsistent stands adopted by the Petitioner.
7) Perusal of the Guidelines issued vide Memorandum
dated 10 March 1972 by the then Indian Post and Telegraph
Department, Telecom Factory Mumbai (which later got corporatized
into BSNL), would show that all changes in the trades in the same
scale of pay could be made through a trade test. The only exception
was to cases where the change in the trade was in the interest of
service, when passing of the trade test was dispensed with. However,
the Instructions specifically clarified that 'this test will be in addition
to the trade tests for the purpose of promotion'. Thus, the relaxation
from passing the trade test for horizontal/lateral movement from
one trade to other is dispensed with only when such movement is in
the interest in service. However, when the lateral movement takes
place on account of request made by an employee, passing of trade
test is compulsory. Whether one had to pass the trade test for lateral
movement from one trade to another trade or not, the Instructions
clearly clarified that 'this test will be in addition to trade tests for
the purpose of promotion'. Thus, whether the trade test is passed or
not for lateral movement from one trade to another, when it comes to
vertical movement by promotion to next higher grade/post, passing
of trade test was made compulsory. The Order passed by this Court
on 1 April 2008 while remanding the proceedings cannot be read to
mean as if a declaration is given by this Court that passing of trade
test was not necessary for Petitioner's promotion as Inspector. I am
therefore unable to accept submission on behalf of the Petitioner
that passing of trade test by the Petitioner was not required for his
promotion to the post of Inspector.
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8) There is no dispute to the position that the Petitioner
did not clear the trade test for promotion to the post of Inspector. He
seeks to blame Respondents-BSNL for non-grant of opportunity to
participate in the trade test. However, upon conduct of fact finding
exercise, the CGIT has come to a conclusion that for one SC post of
Inspector, five senior SC candidates were available and formed the
zone of consideration. Petitioner was apparently at Serial No. 6 and
accordingly fell outside the zone of consideration. Though Mr.
Sawant has strenuously attempted to demonstrate before me that
the zone was prepared contrary to the seniority list, I am not
inclined to delve deeper into this aspect. The Petitioner himself has
not produced seniority list alongwith the Petition. The entire
Petition revolves around the issue of non-inclusion of Petitioner's
name in the zone of consideration on account of his placement in the
seniority at Serial No.6. If this finding was factually wrong,
Petitioner ought to have produced copy of the relevant seniority list,
which was produced before and has been perused by the Labour
Court (Exhibit 13). Petitioner cannot be permitted to now produce
additional documents to demonstrate that he was senior over the
employees included in the zone of consideration.
9) After considering the overall conspectus of the case, I do
not find any valid reason to interfere in the impugned order passed
by the learned CGIT. Petition must fail. It is accordingly dismissed
without any order as to costs. Rule is discharged.
[SANDEEP V. MARNE, J.]
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