Mahanagar Telephone Nigam Ltd. vs Shri S.M.Lal & Ors.
2011 Latest Caselaw 1157 Del

*                    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                 W.P(C) No.4936/2010

%                           Date of Decision: 25.02.2011

Mahanagar Telephone Nigam Ltd.                               ...... Petitioner

                        Through     Mr.V.K.Rao, Sr.Advocate with Ms.Neha
                                    Bhatnagar, Advocate

                                      Versus

Shri S.M.Lal & Ors.                                        ...... Respondents

                        Through     Sh.S.P.Pandey, Respondent No.2         in
                                    person.
                                    Mr.Ram Bilas Gupta, Advocate          for
                                    respondent Nos.4, 6 & 7.
                                    Sh.R.B.Gupta,   Respondent No.5        in
                                    person.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether reporters of Local papers may be                     YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                        NO
3.     Whether the judgment should be reported in                    NO
       the Digest?


ANIL KUMAR, J.

*

CM No.9759/2010

Respondent No.5 who appears in person seeks to discharge his

counsel. Consequently, Mr.Narendra Kumar Sharma is discharged as

counsel for respondent No.5.

Learned counsel for respondent Nos.4, 6 & 7, on instructions and

respondent no.5 state that no reply to the application is to be filed on

behalf of the respondents.

This is an application by the petitioner to file annexure P-2, P-4 to

P-9 along with the writ petition. The documents sought to be produced

by the petitioner are relevant for the determination of controversies

between the parties and the respondents have also not opposed the

production of said documents. Though these documents ought to have

been filed by the petitioner before the Tribunal, however, for the reasons

detailed in the application the petitioner is allowed to file these

documents and the application is disposed of.

W.P(C) No.4936/2010

1. The petitioner, MTNL has challenged the order dated 20th

January, 2010 passed by Central Administrative Tribunal, Principal

Bench, New Delhi in T.A No.220/2009 titled Sh.S.M.Lal & Ors v.

Mahanagar Telephone Nigam Ltd allowing the original application of the

respondents and holding that the respondent be considered to be

promoted to ITS Group „A‟ service in senior time scale at the time of

their absorption on 1st October, 2000 in MTNL and granting them all

the consequential benefits.

2. The respondents were aggrieved by their absorption in the

services of the petitioner in the cadre of Telecom Engineer Service (TES)

Grade „B‟ by order dated 24th January, 2004 with effect from 1st

October, 2000 though they had been working in senior time scale (STS)

of the Indian Telecommunication service (ITS) as group „A‟ officers since

1966 though on adhoc basis on account of regular DPC not conducted

by the petitioner. Though their selection on adhoc basis was against the

post and a detailed process of selection through DPC was followed and

they had even been drawing the increment applicable to the post.

3. The respondents were initially appointed as Engineering

Supervisor in the erstwhile Indian Post and Telegraph Department,

Government of India, New Delhi which post was re-designated as Junior

Engineer and again as Junior Telecom Officers. The respondents were

specifically promoted to the post of Assistant Engineer (TES) Group „B‟

and were re-designated as sub Divisional Engineer.

4. On creation of MTNL, the staff of Indian Post and Telegraph

Department was transferred to the petitioner on deemed deputation

without any deputation allowance. The respondents were also promoted

to the post of Assistant Engineer (TES) Group „B‟ and were appointed

Divisional Engineer in STS (Group „A‟) by the orders issued by

Telecommunication Headquarters (TCHQ).

5. Appointment of the respondents to the post of Divisional Engineer

in STS (Group „A‟) was on the basis of consideration and

recommendation by a Departmental Promotion Committee which

considered the common seniority and assessed their performance.

Though UPSC was not consulted, however, the promotion was with the

approval of the concerned Minister.

6. The terms and conditions on the basis of which the employees

were to be absorbed with the petitioner or for reversion to the services of

the DOT, were circulated and on the basis of the option exercised by the

respondents pursuant to the order dated 24th January, 2004 issued by

Department of Telecommunication, they were permanently absorbed

from 1st October, 2000 as TES (Group „B‟) officers although they were

working as Divisional Engineers in STS of ITS, Group „A‟.

7. On respondents‟ absorption on 1st October, 2000, the petitioner

on the same day promoted them as Divisional Engineers but on adhoc

basis and the respondents are continuing as such since then. Aggrieved

with this the respondents had made a representation on 8th March,

2004 for treating them as officers in STS (Group „A‟) as Divisional

Engineers. Though the representation of the respondents was not

replied, however, by order dated 12th April, 2006 they were appointed to

the post of Deputy General Manager on current duty charge without

any extra remuneration. The respondents also alleged discrimination

vis-à-vis other officials one of them being Sh.Manoj Kumar who had

been working in junior time scale (Assistant Divisional Engineer) till

25th May, 1999 but who was promoted to STS of ITS Group „A‟

(Divisional Engineer) and he had also been promoted to Junior

Administrative Grade (JAG) as Deputy General Manager on adhoc basis

with effect from 2nd May, 2003. The respondents, therefore, contended

that even a junior officer had been promoted in the Department of

Telecommunication, however, they have been made to languish as

adhoc Divisional Engineers for more than a decade.

8. As the grievances of the respondents were not rectified, they filed

a writ petition in the High Court being WP (C) 16701-07 of 2006 titled

S.M.Lal and Ors seeking a direction to petitioner to treat them as

regular Divisional Engineers with effect from the date of their adhoc

promotion and to direct the petitioner to promote the respondent to

next higher post on time bound basis. The respondents relied on a

circular dated 8th May, 2000 of DOT which contemplated that the

officers opting for MTNL will strictly be on the basis of their seniority in

their respective cadre. It further stipulated that all the officers promoted

by Telecommunication Headquarters will be treated in promoted cadre

provided they had assumed the charge of higher cadre post though due

to various reasons DPC in some of the services could not be conducted

for quite long time. In paragraph 3 of the said circular, it has been

observed as under:

"....3. Selection of officers opting for MTNL will be strictly on the basis of their seniority in their respective cadre. Since due to litigation, DPC in some of the services could not be conducted for quite long time, hence all the officers promoted on TCHQ orders will be treated in promoted cadre provided they have assumed the charge of higher cadre...."

9. The plea of the respondents was that their selection was against

the vacant posts and by a detailed process of selection through a DPC,

though a regular DPC could not be constituted because of

administrative problems. The respondents asserted that since they have

been working on regular basis on the post of Divisional Engineers and

have also been drawing increments in that post although on adhoc

basis, they be treated as regular Divisional Engineers. Reliance was also

placed on behalf of respondents on N.S.K.Nayar v. Union of India and

Ors, AIR 1992 SC 1574 where the Supreme Court had held that the

number of posts in junior time scale (JTS) are limited, whereas number

of posts in the grade of STS (Senior Time Scale) is substantial and

considering the facts and circumstances the grade structure of group „A‟

service is that of an inverted pyramid and it would not be possible to fill

up all the posts of STS from the JTS officers and, therefore, there is an

administrative compulsion to fill up STS post with a frog leap by

appointing TES Group „B‟ officer bypassing the JTS. In the

circumstances, on behalf of respondents it was pleaded that denial of

right of regularization of their services was wholly arbitrary and in

violation of Articles 14 & 16 of the Constitution. It was also asserted

that since the respondents have worked in STS for almost a decade,

therefore, they be deemed to be regular members of Group „A‟ service in

STS. Reliance was also placed on the decision of Bombay High Court

dated 27th April, 2005 where the Court had held that there was no

reason to keep the Divisional Engineers on adhoc basis for long period

of time. Reference was also made on behalf of the respondents to the

fact that those officials who continued with DOT and who were working

as Assistant Engineers till 1999, when the respondents were working

as Divisional Engineers, officers working in DOT have been promoted

whereas the respondents have been denied this opportunity.

10. The writ petition filed by the respondent was transferred to the

Central Administrative Tribunal, Principal Bench and was registered as

T.A No.220/2009 titled S.M.Lal & Ors v. MTNL. The writ petition was

contested by the petitioner contending inter-alia that the respondents

have no grounds to seek regularization as Divisional Engineers because

they had been promoted only on adhoc basis and adhoc promotion does

not give them any right of seniority for future promotion. Reliance was

also placed on the terms and conditions of absorption, stipulating that

the absorption of officers would be in their substantive grades/posts

and not on the post on which they were working on officiating/adhoc

post. According to the petitioner the respondents were promoted on

adhoc post to STS of ITS Group „A‟ in the interest of service as sufficient

number of JTS officers were not available, however, the substantive

grade of the respondent remained TES group „B‟. The relaxation was

also denied on the ground that as per the recruitment rule of ITS Group

„A‟, only the officers of JTS of ITS group „A‟ with four years regular

service are eligible for regular promotion to STS of ITS group „A‟. As the

respondents substantive grade continued to be TES Group „B‟ they

could not be considered for promotion to the post of STS of ITS group

„A‟. The petitioner also asserted that Group „A‟ officers have not been

absorbed yet in MTNL in view of various cases pending before various

Courts and Tribunals and this matter for absorption in Group „A‟ of the

respondents could be resolved only after the decision in other cases. In

any case it was contended that the respondents have been promoted as

Deputy General Manager but only given current duty charge to look

after the work of such post without extra remuneration.

11. The Tribunal after considering the respective pleas and

contentions of the parties relied on the decision of the Supreme Court

in N.S.K.Nayar (Supra). The Tribunal noticed that in N.S.K.Nayar the

claimants were the promotee members of ITS Group „A‟ who had been

officiating as Divisional Engineers in STS grade. It was also noticed that

the rules contemplated appointment to JTS in ITS Group „A‟ by

selection on merit from amongst the officers of TES Group „B‟ with not

less than 8 years regular service in group „B‟ on the recommendation of

duly constituted DPC and approval of the recommendation by UPSC.

The Tribunal also noted that though a directly recruited Assistant

Divisional Engineer would not ordinarily be promoted as Divisional

Engineer unless he had put in five years of service, however, under the

rules the post in STS could be filled up on temporary measure in an

officiating capacity to hold charge by promotion of permanent members

of TES Group „B‟. In these circumstances, the Tribunal considered the

question whether the services rendered by the respondents in senior

time scale for over a decade entitled them to claim that they were

regular holders of the post in STS of ITS grade. The Tribunal

categorically relied on the judgment of N.S.K.Nayar where in paras 5 &

6 it was held as under:-

"5. We have heard learned counsel for the parties at length. It is no doubt correct that the regular channel of promotion to Group A Service provided to the officers of the Telegraph Engineering Service Class II under the Rules is to the JTS and their promotions under Rule 27(b) are only to meet the administrative exigency of short-tenure. We are of the view that Rule 27(b) of the Rules has been made to enable the Government to meet an ad hoc shortage of officers to man the posts in STS. The Class II officers have long experience to their credit and the nature of their work is almost identical to that of the posts in JTS. The direct recruits to JTS are deputed to work in Class-II posts to acquire experience. It is also not disputed that a class-II officer who is on the approved list for promotion is competent and eligible to work in JTS and STS. It is in this background that Rule 27(b) has been enacted to enable the Government to fill the large number of vacancies in STS by appointing Class-II officers with a frog-leap from class-II to STS by- passing the JTS. The object of having Rule 27(b) of the Rules is to provide a source of appointment to meet an administrative exigency of short tenure. It could never be the intention of the framers of the Rule to permit the appointments under the said Rule to go on for 10 to 15 years. The appointments for such a long period cannot be considered to be purely temporary/ officiating or to hold charge. Taking work out of the petitioners in the STS posts for 10/ 15 years and denying them the right of regularization and the consequent benefits in the said grade, is wholly arbitrary and is violative of Article 16 of the Constitution of India.

6. We have given our thoughtful consideration to the question as to what relief under the circumstances can be given to the petitioners and other officers similarly situated. While doing justice to the petitioners we do not wish to cause any prejudice to the direct recruits. Rule 27(a) of the Rules provide that a direct recruit to JTS shall not ordinarily be promoted to STS unless he has put in five years' service in JTS. Taking clue from the said Rule we hold that the promotee officers who have worked in STS for a continuous period of five years and are

holding the posts to-date shall be deemed to be regular members of Group A Service in STS. They shall be entitled to count their seniority in the STS from the date of completing the said period of five years and shall be entitled to be considered for further promotion to JAG and SAG on the basis of the said seniority."

12. Comparing the cases of the respondents it was observed that they

had also been working in the STS of Group „A‟ for over a decade and

even after absorption in MTNL they had been appointed as Divisional

Engineers although on adhoc basis and, therefore, the ratio laid down

by the Supreme Court in N.S.K.Nayar (supra) is categorically applicable

in the case of the respondents. Reliance was also placed on the circular

dated 8th May, 2000 contemplating that when DPC could not be

conducted for quite long, the officers promoted by the

Telecommunication Headquarter (TCHQ) will be treated in promoted

cadre provided they had assumed the charge of higher cadre. Since this

was not disputed that the respondents had been promoted by

Telecommunication Headquarter (TCHQ) and they had assumed the

charge of the higher cadre in which they had worked for long time, in

the circumstances, the relief as claimed by the respondents was granted

by order dated 20th January, 2010.

13. We have heard the learned counsel for the parties and some of

the respondents in person in detail and have perused the record. The

emphasis of the learned counsel for the petitioner is that the

respondents had been absorbed according to the terms and conditions

and the option exercised by them. Once the option had been exercised

by the respondents and they had been absorbed, they would be

governed by the rules applicable to MTNL and as such once they

accepted their absorption in MTNL as TES Group „B‟ officer, they were

estopped from agitating any grievance regarding their absorption.

According to the learned counsel such a relief as has been granted by

the Tribunal would have far reaching implications, as petitioner will

have to create post to accommodate all similar placed officers which is

not within the domain of petitioner‟s organization and as such not only

the functioning of the petitioner‟s organization will be impacted but it

will also have ramification on the other organizations e.g BSNL. The

learned counsel has also contended that the ratio of the precedent

N.S.K.Nayar (Supra) is not applicable in the facts and circumstances of

the present case as after the said case there have been other cases of

the Supreme Court especially State of Karnataka v. Uma Devi.

14. The respondents and their counsel have relied on DOT order

No.400-41/98-STG-III dated 8th May, 2000 stipulating that the selection

of officer opting for MTNL will be on the basis of their seniority in their

respective cadre. Since due to litigation, DPC in some of the services

could not be conducted for quite long time thus all the officers

promoted on TCHQ order (Telecommunication Headquarter) would be

treated in promoted cadre provided they had assumed the charge of

higher cadre. According to the respondents all of them had already

worked for 3 to 4 years on promoted cadre of Divisional Engineer after

getting promotion on TCHQ orders. Even after absorption in cadre of

TES Group „B‟ on the same day they were promoted as Divisional

Engineer on adhoc basis and they have continued to work on the

promoted post of Divisional Engineer and they had worked even prior to

absorption, on the cadre of Divisional Engineer for considerable period.

After absorption they have kept the charge of higher post and have also

drawn all the incremental benefits in the pay scale of the said post.

15. Perusal of the options exercised by the respondents it is apparent

that the options were exercised in reference to DOT office memorandum

No.400-41/98-STG-III dated 8th May, 2000. Para 3 of the said order is

as under:-

"Selection of officers opting for MTNL will be strictly on the basis of their seniority in their respective cadre. Since due to litigation, DPC in some of the services could not be conducted for quite long time, hence all the officers promoted to TCHQ orders will be treated in the promoted cadre provided they have assumed the charge of higher cadre."

16. In the facts and circumstances it could not be disputed that all

the respondents have been promoted on TCHQ orders and they had

worked for 3-4 years on the promoted cadre of Divisional Engineer on

the date of absorption that is 1st October, 2000. This is also not

disputed that though regular DPC was not held, however, the adhoc

promotion to the post of Divisional Engineer in STS (Group „A‟) was on

the basis of consideration and recommendation by DPC which

considered the common seniority and assessed their respective

performance. Though UPSC was not consulted but this has not been

denied that the concerned Minister‟s approval was taken. Another

significant factor is that the selection of the respondents was against

the vacant posts. After selection on the basis of the recommendation of

a properly constituted DPC they have not only been drawing the

emoluments of the said post but also the increment in the said post.

17. If that be so then the plea of the respondents that they should

have been absorbed as Divisional Engineer rather than TES Group „B‟

cannot be faulted and the reasoning and rationale of the Tribunal

cannot be held to be illegal. The relief which is available to the

respondents cannot be denied to them on the ground that this may lead

to grant of similar relief to many other similarly situated officials who

had been absorbed in MTNL or BSNL. If the respondents are entitled for

certain relief in accordance with rules and regulations and under law

the grounds envisaged by the petitioner that it will impact many

officials cannot be the basis for declining the relief in accordance with

rules and regulations to the respondents. The petitioner had also issued

an office memorandum dated 11th September, 1997 pertaining to time

bound/post based promotion policy for group „B‟ level executive/officers

of MTNL. Rule 3(i) contemplates consideration for upgradation of the

IDA scale of individual executive on completion of 4 years of service in

the current IDA scale. The said rule also stipulates that no upgradation

will be granted to any executive by virtue of any local officiating

arrangement. The respondents have contended that even the petitioner

has accepted the regular and continuous service of the respondents in

the Divisional Engineer (STS of ITS group A-E5 Grade of MTNL) with

effect from 1st October, 2000 and have promoted them to E-6 grade with

effect from 1st October, 2004. Had the petitioner accepted absorption on

1st October, 2000 only in TES Group „B‟, the petitioner would not have

given promotion to the respondent to E-6 grade with effect from 1st

October, 2004. This is further augmented by the fact that in reply dated

22nd January, 2007 to a RTI query the petitioner has denied any

provision of adhoc promotion in MTNL. The query raised was:-

"4. Does ITS rules permit for provision of adhoc promotion or not? If provision does not exist in ITS rules then under what rule of DOT, the adhoc promotion in STS Grade was given.

Comment: There is no provision in ITS Recruitment Rules for adhoc promotion from TES Group „B‟ to STS of ITS Group „A‟. However, the adhoc promotions from TES Group „B‟ to STS of ITS Group „A‟ were made in public interest in accordance with the guidelines of DOPT on the subject issued vide O.M No.28036/8/87-Estt.(D) dated 30th March, 1988."

18. This is also apparent from the pleas and contentions of the

parties that promotion in STS of ITS Group „A‟ by DOT was given by

considering respondents‟ all India seniority in accordance with the

eligible rules. Though the petitioner has termed the DPC as Screening

Committee whereas the respondents contends that it was a DPC

consisting of two officers of Telecom Commission and one DDG and all

the formalities of DPC were observed. Regarding not getting the opinion

of UPSC it has been contended that MTNL being a Public Sector

Undertaking the opinion of UPSC was not required for promotional

purposes to the Divisional Engineer cadre. The petitioner has also not

been able to show any cogent reason for not holding the regular DPC.

The Supreme Court in N.S.K.Nayar (Supra) had also held that in view of

the plea of the officer that it was never the intention of the framers of

the rule to permit the adhoc appointment to go on for 10 to 15 years

which will tantamount to denial of right of regularization of their

services and would be arbitrary and in violation of Articles 14 or 16 of

the Constitution by holding that the Courts see no reason as to why the

officials had to be kept on adhoc basis for such a long period and it

directed the department to file an affidavit as to why the officials were

not regularized against the post, if the officials were eligible for

regularization. In the circumstances the plea of the learned counsel for

the petitioner that the ratio of the precedent N.S.K.Nayar (Supra) is not

applicable in the present facts and circumstance of the case cannot be

accepted.

19. Perusal of ITS Rules, 1965 and ITS Rules, 1992 also reveal that

they are similar except Rule of 1965 contemplated officiating promotion

on hold charge basis whereas ITS Rule, 1992 does not stipulate that

officiating promotion shall be on hold charge basis. If that be so the plea

of the learned counsel for the petitioner about the non applicability of

the ratio of N.S.K.Nayar (Supra) cannot be sustained. No other grounds

have been raised on behalf of petitioner impugning the order of the

Tribunal dated 20th January, 2010 holding that the ratio of N.S.K.Nayar

(Supra) is applicable in the facts and circumstances of the case and,

therefore, allowing the respondents petition and directing the petitioner

to consider them as having been promoted the respondents to ITS

Group „A‟ service in senior time scale at the time of their absorption in

respondent MTNL and also granting all consequential benefits.

20. The case of the respondents would be different from those officers

from whom the posts have to be created though they have been

promoted as Divisional Engineer Group-A from those who had been

promoted on ad-hoc basis despite having posts for them and who were

not appointed to the regular posts as regular DPC was not held. In the

circumstances, the plea of the petitioner that such relief as has been

granted by the Tribunal will impact the functioning of the petitioner and

even other organization cannot be sustained nor on such a ground the

relief which the respondents are entitled for can be denied to them.

21. For the foregoing reasons we do not find any illegality or

perversity in the order of the Tribunal impugned before us which will

impel us to exercise this Court‟s writ jurisdiction. In the circumstances,

the writ petition is without any merit and it is, therefore, dismissed.

Parties are, however, left to bear their own cost.

ANIL KUMAR, J.

February 25, 2011. MOOL CHAND GARG, J.

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