Delhi High Court
Pawan Kumar Garg And Ors. vs Bharat Sanchar Nigam Ltd. And Ors. on 14 July, 2014
Author: Vipin Sanghi
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 14.07.2014
% W.P.(C) 2424/2012 & C.M. No.5207/2012
PAWAN KUMAR GARG AND ORS
..... Petitioner
Through: Mr. C. Hari Shankar with Mr.
Pushkar Kumar Singh, Advocates
versus
BHARAT SANCHAR NIGAM LTD AND ORS
..... Respondent
Through: Mr. Rajnish Prasad, Adv. for R-1 to
R-4
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
S. RAVINDRA BHAT, J. (OPEN COURT)
1. The petitioners are aggrieved by the order of the Central
Administrative Tribunal ("CAT/Tribunal") dated 16.01.2012,
whereby the applications of the petitioners were dismissed.
2. The short question sought to be agitated before the Tribunal
was whether vacancies in the post of Executive Engineer (Civil) - the
nomenclature of which was at different points Assistant Engineer or
Sub Divisional Engineer - had to be filled only from amongst the in-
house degree holder candidates/graduate junior engineers, or the
regular diploma holder Assistant Engineers as on 06.08.1994 also had
the right to be considered for the post of Executive Engineer (Civil).
3. The petitioners and the contesting respondents were originally
employed by the Department of Telecommunication (DoT) as junior
engineers. Subsequently, they were promoted as Assistant Engineers.
The petitioners were graduate civil engineers. The contesting
respondents are diploma holders. The conditions of service prevalent
at the time of their initial entry were regulated by the recruitment rules
of 1976 framed under Article 309 of the Constitution. These were
amended with effect from 06.08.1994. The rules, inter alia, provided
for promotion to the post of Executive Engineer (Civil) in the
following manner:
"(i) 50% from Asstt. Executive Engineer (Civil) who
have completed probation and have rendered not less
than 4 years regular service in the grade on the basis of
seniority-cum-fitness.
(ii) 50% from Asstt. Engineer (Civil)/Asstt. Surveyor of
Works (Civil)/Engg. Asstt. (Civil) who have completed
probations and have rendered not less than 8 years
regular service in the grade and possess a degree in
engineering or equivalent".
Note: However, the existing incumbent holding the post
of Assistant Engineer (Civil) on a regular basis on the
date of notification of these rectt. Rules shall continue to
be eligible for promotion to the post of Executive
Engineer if they possess a Diploma in Civil Engg from a
recognised University/Institution or equivalent and 8
years regular service in the grade".
4. With the re-organisation of DoT and its functioning being
corporatized in the form a new entity i.e. Bharat Sanchar Nigam
Limited ("BSNL"), its activities and employees were transferred to
the said BSNL with effect from 01.10.2000.
5. It is not in dispute that till 14.07.2009, the BSNL did not
formulate any rules nor modify any prevailing conditions of service.
On that date, i.e. 14.07.2009, for the first time, the BSNL published
what is known as BSNL Management Services Recruitment Rules,
2009 (hereafter referred to as "2009 Rules"). These, inter alia,
provided that the post of Executive Engineer would be filled in the
following manner:
"Sl Grade Method of Whether Field of selection
. (Equivalent) IDA Recruitme selection and the minimum
No Pay Scale in Rs. nt by Merit qualifying service
. or for promotion
Selection
cum
seniority
or non-
selection
post
1. Assistant Promotion Selection (a) From JTS
General from -cum- grade having 4
Manager/EE/Arc SDE/AE seniority years of regular
h (Equivalent to Level service in the
STS i.e. E4) executives grade.
14,500-350- (b) From regular
18,700 (post SDE/AE or
based equivalent grade
of concerned
promotion) discipline, who
are graduate (as
detailed at note 2
below) from an
Indian
Institute/Universi
ty recognised
under Indian
Laws in
prescribed
discipline, with
total qualifying
service of 7 years
as on 1st January
of the year.
xxxx xxxxx xxxxx
xxxx xxxxx xxxxx
Note:
1. xxxx xxxxx xxxxx
2. Educational qualification for executives to be
promoted to the grade of Assistant General
Manager/EE/Arch (see serial no.1, column no.5)
shall be degree in engineering or equivalent in
respect of Civil & Electrical Disciplines whereas
degree in Architecture or equivalent and valid
registration as Architect with the Council of
Architects for Architectural Discipline".
(Emphasis supplied)
6. The existing diploma holders/Assistant Engineers were
therefore sought to be deprived of their promotional avenue. This
apparently led to some dissatisfaction within the organisation,
resulting in representations by them. Eventually, on 02.07.2010, the
BSNL notified an amendment to the recruitment rules, by which it
was clarified that those holding the post of Sub Divisional Engineer or
equivalent (such as Assistant Engineer) on regular basis as on
06.08.1994 would continue to be eligible for promotion for the post of
Executive Engineer. The amended rule read as follows:
"However the existing incumbent holding the post of Sub
Divisional Engineer or equivalent on a regular basis on
the date of notification of P&T BW (Group A) Service
Rules 1994 i.e. 06.08.1994 shall continue to be eligible
for promotion to the post of Executive Engineer or
equivalent STS level post in BSNL, if they possess a
Diploma in Engineering in their respective branch from
a recognised University/Institution or equivalent".
7. BSNL's subsequent move to consider diploma holders for
promotion to the post of Executive Engineer was challenged by the
petitioner/degree holders before the Tribunal. The petitioners
contended that the contesting respondents were ineligible to hold the
post of Executive Engineer. It was submitted that the said issue had
been decided by the Jaipur Bench of the CAT, which had held that
since the norms were formulated by BSNL for the first time in 2009,
they were binding upon the parties and that diploma holders were not
eligible to hold the post of Executive Engineers due to their lack of
qualification. The degree holders further argued that once the BSNL
formulated its recruitment rules and made a conscious departure from
the pre-existing rules as of 1994, the diploma holders did not have any
vested right to contend that the vacancies which arose during the time,
atleast after the transfer of the employees of DoT to BSNL, had to be
filled by them.
8. Counsel for BSNL urges that the impugned order should not be
interfered with. With respect to the Jaipur Bench ruling, it was
submitted that the order was made at a point of time when the 2010
amendment had not been made by the BSNL. Stressing the
importance of this event, learned counsel urged that the BSNL was
alive and sensitive to the large scale dissatisfaction, which ensued as a
consequence of the 2009 Rules. Once the BSNL decided to roll back
the 2009 Rules, the petitioner and the other such degree holders could
not contend that diploma holders were not eligible to be considered
for promotion to the post of Executive Engineers.
9. It was argued that an important aspect which this Court should
take note of is that between 2009 and 2010, no vacancies in the post
of Executive Engineer were, in fact, filled and that consequently there
would be no adverse impact on either section of the employees.
Learned counsel submits that, in fact, promotions were made
subsequently after the 2010 amendment.
10. It is evident from the above narrative that the 1994 Rules
clearly visualised the promotion of not only the existing regular
Assistant Engineers who were degree holders, but also those who held
diploma qualifications. There could be no getting away from the fact
that the DoT functions were handed over to the BSNL when the latter
was incorporated in 2000. But the important aspect which this Court
- for that matter any other forum - cannot ignore is that for the period
2000-2009, the BSNL did not frame any rule or regulation contrary to
the 1994 Rules. The Tribunal has termed this 'no rule period' as an
omission. Whatever be the nomenclature, the fact remains that
employees and officials who worked with the DoT were placed at the
disposal of the BSNL, and they enjoyed such of the terms and
conditions that were prevalent till the rule or regulation were
formulated to the contrary, or otherwise, by the BSNL. In this regard,
it is submitted by BSNL that there was a departure in the pay scales
and industrial scale were granted over later. Likewise, the
recruitment rules were formulated for the first time in 2009. This
leads to conclusion between 2000-2009 i.e. 'no rule period', that the
terms and conditions which applied when the officials were in the
DoT, were applicable..
11. It could not be otherwise considered, as the BSNL is subjected
to public control and also bound by Article 14. If the petitioners
submission that the 2009 norms were to be impliedly applied,
retrospectively from the year 2000 were to be accepted, serious
repercussions would follow, in that the BSNL would be invested with
the power to frame terms and conditions retrospectively, despite it not
being a statutory corporation or possessing power to make any
retrospective regulation.
12. It is settled law that regulations or rules cannot operate from a
date anterior to their framing and publication (Ref. Income Tax
Officer Vs. M.C. Ponnoose, AIR 1970 SC 385; State Bank of India
Vs. Yogendrakumar Shrivastava, 1987 (3) SCC 10). BSNL, in this
case is a company and cannot therefore make rules which operate
retrospectively.
13. So far as the period of 2009-2010 is concerned, even though the
BSNL had made provision barring diploma holders the right to be
promoted as Executive Engineers, an important aspect which appears
to have persuaded the Tribunal to rule against the petitioner is that no
vacancy was, in fact, filled in during that period. The vacancies were
filled subsequently after the amendment in 2010. The 2010
amendment, in these circumstances, acquires greater primacy as it
sought to extend the protection of a promotional avenue to existing or
transferred employees of BSNL, serving as diploma holder Assistant
Engineers - which class of employees are virtually a vanishing tribe.
14. In these circumstances, this Court finds no infirmity with the
impugned order of the Tribunal. The writ petition is, therefore,
dismissed.
S. RAVINDRA BHAT, J
VIPIN SANGHI, J
JULY 14, 2014
sr
