Gauhati High Court
Page No.# 1/12 vs Shashi Kant And 3 Ors on 12 November, 2024
Author: Chief Justice
Bench: Chief Justice
Page No.# 1/12
GAHC010183012024
2024:GAU-
AS:11019-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4531/2024
THE CHAIRMAN CUM MANAGING DIRECTOR BSNL AND 2 ORS
CORPORATE OFFICE , 4TH FLOOR, BHARAT SANCHAR BHAWAN,
JANAPATH, NEW DELHI-01
2: THE DEPUTY GEN. MANAGER (PERS-I)
BSNL
CORPORATE OFFICE
4TH FLOOR
BHARAT SANCHAR BHAWAN
JANAPATH
NEW DELHI-01
3: THE DEPUTY GEN. MANAGER ( PERS II)
BSNL
CORPORATE OFFICE
4TH FLOOR
BHARAT SANCHAR BHAWAN
JANAPATH
NEW DELHI-0
VERSUS
SHASHI KANT AND 3 ORS
S/O - LATE RAMESHWAR PRASAD,
EX CHIEF GENERAL MANAGER , BSNL, NE II CIRCLE, DIMAPUR,
NAGALAND, PIN-797112
2:THE UNION OF INDIA
THROUGH THE SECRETARY
MINISTRY OF COMMUNICATION AND IT
Page No.# 2/12
DEPTT. OF TELECOMMUNICATION
SANCHAR BHAWAN
ASHOKA ROAD
NEW DELHI-01
3:SATISH KUMAR
THE DEPUTY GEN. MANAGER (PERS-I)
BSNL
CORPORATE OFFICE
4TH FLOOR
BHARAT SANCHAR BHAWAN
JANAPATH
NEW DELHI-01
4:G.P VISHNOI
THE DEPUTY GEN. MANAGER (PERS-II)
BSNL
CORPORATE OFFICE
4TH FLOOR
BHARAT SANCHAR BHAWAN
JANAPATH
NEW DELHI-0
Advocate for the Petitioner : MR. K N CHOUDHURY, N GAUTAM,MR G GOSWAMI
Advocate for the Respondent : DY.S.G.I., MS. K BHATTACHARYYA(R-1),DR G J SHARMA (R-
1),MR K BISWAKARMA (R-1)
Page No.# 3/12
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
Date : 25-10-2024
Date : 12-11-2024
JUDGMENT & ORDER (CAV)
(N. Unni Krishnan Nair. J)
Heard Mr. K. N. Choudhury learned Senior Counsel assisted by Mr. G. Goswami,
learned counsel appearing for the petitioners. Also heard Mr. S. Samantha, learned
counsel and Mr. G. J. Sharma, learned counsels appearing for the respondent no. 1.
2. The present proceeding was instituted towards presenting a challenge to an
order dated 30.07.2024, passed by the learned Central Administrative Tribunal,
Guwahati Bench in Original Application No. 182/2024. The petitioners had also
assailed an order dated 13.08.2024, passed in Miscellaneous Application No. 95/2024,
by which the application so preferred by the petitioners, herein, before the learned
Tribunal for vacation of the interim directions passed vide the order dated 30.07.2024,
in the connected Original Application was not finally considered and was adjourned for
hearing on a later date.
3. At the outset, it is to be noted that this Court vide order dated 06.09.2024, while
fixing the matter for admission hearing on 11.09.2024, had provided that
notwithstanding the pendency of the present writ petition, it would be open for the
learned Tribunal to proceed to hear the M.A. No. 95/2024 on 09.09.2024 and pass
final order(s) thereon in accordance with law. Accordingly, the learned Tribunal had
heard the said M.A. No. 95/2024 on 09.09.2024 and thereafter, had rejected the same
vide an order dated 01.10.2024, which has been brought on record by the petitioners,
by way of filing an additional affidavit.
4. Mr. K. N. Choudhury, learned Senior Counsel appearing for the petitioners by
referring to the provisions of the"BSNL Management Services-Telecom Operations
Page No.# 4/12
Stream-Recruitment Rules-2023" has contended that with regard to the Telecom
Operations Stream, the post of CGM/PGM (E9) is to be filled up by way of promotion
from amongst executives in the grade of Sr. General Manager (SGM) with three years
regular service in the grade. The said Rules also provide that for selection of officers
for holding the post of Chief General Manager (CGM), a separate executive instruction
would be issued with the approval of the competent authority. Accordingly, Mr.
Choudhury submits that in terms of the provisions of the said Rules of 2023, the BSNL
authorities had on 20.04.2023 issued a guideline for empanelment of officers for
holding the posts of CGM in BSNL. In terms of the said guidelines, even the
absorbed/BSNL recruited PGM grade officers were also made eligible for empanelment
for appointment against the post of CGM. Mr. Choudhury further submits that in terms
of the provisions of the said guidelines dated 20.04.2023, a second round of
empanelment of officers for holding the post of CGM in BSNL was so undertaken and
accordingly, vide a communication dated 01.06.2024 along with other officers, the
respondent no. 1, herein, was so empanelled for holding the post of Chief General
Manager in BSNL. In terms of the empanelment made vide the communication dated
01.06.2024, posting orders in respect of the empanelled officers came to be issued
vide an order dated 07.06.2024 and the petitioner, herein, was transferred and posted
as CGM, NE-II Circle. It was highlighted that the respondent no. 1 took over charge of
his transferred post on 15.07.2024.
5. Mr. Choudhury, learned counsel for the petitioners has further submitted that the
guidelines for empanelment of officers for holding the post of CGM in BSNL as
circulated vide the communication dated 20.04.2023 was subsequently reviewed by
the BSNL authorities on directions from the authorities of the Department of
Telecommunication. On such review, the BSNL authorities vide communication dated
19.07.2024, had by holding that the empanelment process adopted by the BSNL is not
tenable for ITS cadre post being operated in BSNL as per the cabinet approval,
proceeded to relieve the officers mentioned in Annexure-A thereto from the post of
Page No.# 5/12
CGM, with immediate effect and directed the officers so relieved to join their duties
against the post as mentioned in the said Annexure against their names. It was
further contended that the respondent no. 1 in terms of the said order dated
19.07.2024, was posted as PCE (C), Chennai, TN Circle i.e., against the post earlier
held by him. Mr. Choudhury has further submitted that both the post of CGM/PGM are
placed at the same scale of pay and accordingly, on the transfer of the petitioner as
PCE (C) TN Circle, no financial loss had occasioned to the respondent no. 1, herein,
and accordingly, his empanelment being in violation of the provisions of the Rules
holding the field, the decision arrived at by the authorities for cancelling such
empanelment did not visit the petitioner with any civil consequences.
6. Mr. Choudhury has submitted that in pursuance to the order dated 19.07.2024;
the respondent no. 1 had relinquished the charge of the post of CGM held by him at
Dimapur, on 20.07.2024 and the charge of the post was also taken over by the officer
who was directed to take over charge of the post in question from the petitioner. Mr.
Choudhury further submits that the respondent no. 1 after having relinquished his
charge had approached the learned CAT, Guwahati Bench by way of instituting O.A.
No. 100/2023 before the CAT, Guwahati Bench. The Tribunal, on consideration of the
matter was pleased vide the order dated 30.07.2024 to stay the operation of
impugned order dated 19.07.2024, insofar as; it concerns the respondent no. 1,
herein. Mr. Choudhury, also submits that the BSNL authorities by setting out all facts
leading to the issuance of the said orders dated 19.07.2024, had filed a Miscellaneous
Application being M.A. No. 95/2024 before the learned Tribunal praying for vacation of
the interim directions passed by it vide order dated 31.07.2024 in O.A. No. 182/2024.
7. Mr. Choudhury, learned Senior Counsel has submitted that the petitioners have
by way of filing an additional affidavit brought on record of the present proceedings, a
copy of the order dated 01.10.2024, passed by the learned Tribunal in M.A. No.
95/2024 and prays that with a view to prevent multiplicity of proceedings, the same
be also considered to be a part of the writ petition, inasmuch as, the said order was so
Page No.# 6/12
passed by the learned Tribunal in consideration of the prayer of the present petitioners
for vacation of the interim directions passed by it, vide the order dated 30.07.2024
which is already under challenge in the present proceedings.
8. Mr. Choudhury, learned counsel for the petitioners by referring to the orders
dated 30.07.2024, passed by the learned Tribunal in O.A. 182/2024 and the order
dated 01.10.2024, passed by the learned Tribunal in M.A. No. 95/2024 has submitted
that the background facts leading to the issuance of the orders dated 19.07.2024 and
the communication dated 22.07.2024, issued by the BSNL authorities although being
brought on record by the learned Tribunal, the learned Tribunal failed to appreciate
the same while considering the M.A. No. 95/2024. Mr. Choudhury, has further
submitted that given the provisions of the Rules holding the field, the empanelment
and consequential posting of the respondent, herein, as CGM, NE-II, Circle, Dimapur,
cannot be deemed to be a promotion. It is further contended by Mr. Choudhury that
the learned Tribunal, clearly erred in proceeding to consider the issue involved by
deeming the empanelment and posting of the sole respondent as CGM NE-II Circle,
Dimapur, to be promotion, which has vitiated the orders dated 30.07.2024 and
01.10.2024. Mr. Choudhury, in the above premises submits that the order dated
30.07.2024 along with the order dated 01.10.2024, would call for an interference by
this Court.
9. Per contra, Mr. S. Samantha, learned counsel appearing for the respondent no. 1
has submitted that the respondent no. 1 in pursuance to a notification dated
25.01.2024, submitted his candidature for being considered for empanelment for
holding the post of CGM BSNL in the second round of CGM empanelment. The
respondent no. 1 was thereafter, subjected to a process of selection including a
Psychometric Test and on conclusion of the process of selection involved, the name of
the respondent no. 1 was empanelled for holding the post of CGM in BSNL vide a
communication dated 01.06.2024. It was further submitted that the respondent no. 1
was promoted on regular basis to the post of PGM in the year 2022. Mr. Samantha,
Page No.# 7/12
further submits that the respondent no. 1 having been so empanelled for holding the
post of CGM by following the process as was prevalent at the relevant point of time
and he on his such posting, having taken over the charge of the post CGM NE-II
Circle, the BSNL authorities could not have unilaterally proceeded to issue the orders
dated 19.07.2024, cancelling the empanelment so made and relieving the respondent
no. 1 from the post of CGM NE-II Circle and further transferring him to his earlier post
i.e., the post of PCE(C), TN Circle, which infact was a reversion to a post with lower
status.
10. Mr. S. Samantha, learned counsel for the respondent no. 1 by referring to the
orders dated 19.07.2024 has submitted that the same was made applicable only in
respect of CGMs, who had joined against the post after 20.06.2024 and the persons
who had joined prior thereto, have not been subjected to such reversion. Mr.
Samantha has submitted that given the manner of empanelment for holding the post
of CGM as laid down in the guidelines as contained in the communication dated
20.04.2023, the same is a promotion and accordingly, the orders dated 19.07.2024
having the effect of causing a reversion of the respondent no. 1 to his earlier post,
could not have been so done by the authorities without affording to the petitioner an
opportunity of hearing in the matter.
11. In the above premises, Mr. Samantha submits that the order dated 30.07.2024,
passed by the learned Tribunal in O.A. No. 182/2024 and the order dated 01.10.2024,
passed in the M.A. No. 046/0095/2024 would not call for an interference by this Court.
12. We have heard the learned counsel appearing for the parties and also perused
the materials available on record.
13. At the outset, it is to be noted that this Court vide order dated 06.09.2024,
passed in the present proceeding, had granted liberty to the learned Tribunal to
proceed to hear the M.A. No. 95/2024 filed by the petitioners, herein. The said
application was filed by the present petitioners for vacation of the interim directions
Page No.# 8/12
passed vide order dated 30.07.2024 in O.A. No. 182/2024. The learned Tribunal in
terms of the liberty as granted by this Court vide the said order dated 06.09.2024,
proceeded to hear the M.A. 95/2024 on 09.09.2024, and orders, on conclusion of the
hearing thereon, came to be reserved.
14. The learned Tribunal vide the order dated 01.10.2024, proceeded to dismiss the
said Miscellaneous Application filed by the petitioners, herein. The petitioners have by
way of filing an additional affidavit brought on record, in the present proceeding, the
order dated 01.10.2024 passed by the learned Tribunal in M.A. No. 95/2024 with a
further prayer that the said additional affidavit be treated as a part of the writ petition.
Considering the fact that the order dated 01.10.2024 was so passed by the learned
Tribunal, in terms of the liberty granted by this Court and also appreciating that vide
the said order dated 01.10.2024, the interim directions passed vide the order dated
30.07.2024, has been maintained, with a view of prevent multiplicity of the
proceedings, the order dated 01.10.2024 as passed by the learned Tribunal is also
being considered in the present order.
15. As projected by the petitioners, herein, the provisions of the "BSNL Management
Services-Telecom Operations Stream Recruitment Rules-2023" which had come into
effect w.e.f. 31.12.2022, provides for the manner of recruitment to the various post in
the service so covered by the provisions of the said Rules. It was contended by the
petitioners that the post of CGM and PGM were placed at the same level and
authorized the same scale of pay.
16. On perusal of the said Rules, it is seen that Schedule-I of the said Rules provide
for the method of recruitment/promotion to the various cadres of the Telecom
Operation Streams. The said Rules insofar as, the holding of the post of CGM is
concerned, provided that selection of officers for the post of CGM shall be as per
separate executive instructions to be issued with the approval of the competent
authority. The Schedule to the said Rules also mandate that the post of CGM/PGM,
Page No.# 9/12
GM, DGM level posts, to the extent mentioned in the cabinet approval, shall be filled
up in terms of Cabinet decision communicated vide DOT O.M. dated 03.08.2022. It
further provides that the GM level posts will be filled from DOT SAG officers/DOT SAG-
NF officers who have completed the prescribed requisite length of service. It further
provides that the post of CGM/PGM shall be filled up from regular ITS HAG and HAG
NF level ITS officers deployed in BSNL who have completed the prescribed years of
service.
17. From the materials available on record, it is further seen that in terms of the
provisions of the said Rules of 2023, the BSNL authorities vide communication dated
20.04.2023, notified the guidelines for empanelment of officers for holding the post of
CGM in BSNL. In terms of the said guidelines, inter alia, the ITS Gr. 'A' regular HAG
and HAG (NFU) officers, the serving absorbed/BSNL recruited PGM grade officers were
made eligible for holding the post of CGM. In the terms of the said guidelines dated
20.04.2023, the process of empanelment for persons holding the post of CGM in BSNL
was carried out. In the second round of such empanelment, the case of the
respondent was considered and on being found to be suitable, he was along with
others empanelled for holding the post of CGM in BSNL vide communication dated
01.06.2024. In pursuance to the said empanelment of the respondent, he was vide
order dated 07.06.2024, transferred and posted against the post of CGM NE-II Circle,
Dimapur. The respondent, in compliance with the said order of transfer, assumed the
charge of the post of CGM NE-II, Circle Dimapur on 15.07.2024. The petitioners,
herein, have contended that basing on the provisions of the Rules noted above and
holding the field, the said transfer and posting of the petitioner to the post of CGM NE-
II Circle, Dimapur was not a promotion but, a case of transfer and posting only.
18. The contentions raised by the petitioners in the matter, would go to further
reveal that the guidelines as formulated by the BSNL authorities vide the
communication dated 20.04.2023, for empanelment of executive/officers for holding
the post of CGM was examined by the Department of Telecommunication and the
Page No.# 10/12
Department of Telecommunication vide the Note dated 20.06.2024, had intimated the
BSNL authorities that the said empanelment process adopted by BSNL is not tenable
for ITS cadre post being operated in BSNL, as per cabinet approval. It was also
intimated by the DoT authorities that the sanctity of the HAG promotion granted to
ITS officers after DPC conducted by UPSC and with approval of ACC was inviolable for
cadre posts and directed BSNL to comply with its directions conveyed therein with
immediate effect. Accordingly, it is contended by the BSNL authorities that they were
required to issue the orders both dated 19.07.2024 to relieve the Officers as
mentioned in Annexure-A of the said orders from the post of CGM held by them with
immediate effect. The name of the sole respondent figured at Serial No. 3 of the
Annexure to the orders both dated 19.07.2024; and he on being relieved, was posted
on transfer as PCE(C), TN Circle, i.e., the post earlier held by him, before he had been
transferred and posted as CGM, NE-II Circle Dimapur. Thereafter, the BSNL authorities
vide communication dated 22.07.2024, on review of the guidelines for empanelment
of officers for holding the post of CGM, as notified vide the communication dated
20.04.2023, decided to withdraw the existing guidelines dated 20.04.2023 and
26.05.2023. Further the existing panel of officers empanelled for holding the post of
CGM in BSNL was decided to have lapsed.
19. The petitioners have contended that the transfer and posting effected in respect
of the sole respondent vide the order dated 19.07.2024, was so effected to an
equivalent post without subjecting the respondent to any loss of pay or allowances
and as such, the said transfer and posting as effected vide the orders both dated
19.07.2024, cannot be deemed to be a reversion so effected in respect of the sole
respondent.
20. The above noted background facts leading to the issuance of the orders dated
19.07.2024, were highlighted by the petitioners, herein, in the M.A. No. 95/2024
preferred by them before the learned Tribunal, praying for vacation of the interim
directions passed vide order dated 30.07.2024. The learned Tribunal, vide the order
Page No.# 11/12
dated 01.10.2024; had proceeded to dismiss the M.A. being 95/2024 thereby,
maintaining the interim directions passed vide the order dated 30.07.2024.
21. A perusal of the order dated 01.10.2024, as passed by the learned Tribunal in
M.A. No. 95/2024, would reveal that the learned Tribunal had not considered the
contentions raised by the present petitioners before it in the said Miscellaneous
Application. The learned Tribunal while proceeding to draw conclusions in its order
dated 01.10.2024 to the effect that the posting of the sole respondent as CGM, NE-II
Circle vide order dated 07.06.2024 was on promotion, had failed to consider the
contention as raised by the petitioner, herein, in M.A. No. 95/2024 that the posting of
the sole respondent as CGM, NE-II circle was not on account of promotion, but was a
case of transfer and posting. Similarly, the learned Tribunal while proceeding to draw
conclusion that the orders dated 19.07.2024, posting the sole respondent against the
post of PCE(C), Chennai, TN Circle, amounted to a reversion being effected in his
case, failed to consider the contentions made in the M.A. No. 95/2024 by the
petitioners herein, highlighting the facts existing leading to issuance of the said orders
dated 19.07.2024. The learned Tribunal was called upon to consider the said
contentions as raised by the petitioners, herein, before it and only thereafter, it would
have been permissible for the learned Tribunal to proceed to draw conclusions that the
transfer and posting of the respondent, vide order dated 07.06.2024 was as CGM NE-
II, Circle, Dimapur, was actually a promotion and a reversion had occasioned in his
case vide the orders dated 19.07.2024. However, the learned Tribunal admittedly failed
to take into consideration the contentions raised by the BSNL authorities before it and
ignoring the same, proceeded to draw conclusions contrary to the above position in its
order dated 01.10.2024.
22. Having concluded that the learned Tribunal had not appreciated the contentions
of the petitioners, herein, while passing the order dated 01.10.2024 in M.A. 95/2024,
we do not propose to consider the contentions raised by the petitioners, herein, on
merits by appreciating the fact that the O.A. No. 182/2024 is pending final
Page No.# 12/12
consideration before the learned Tribunal. However, considering the fact that the
interim directions as well as the conclusions drawn by the learned Tribunal, in the
order dated 01.10.2024 being so drawn without first appreciating and thereafter,
drawing conclusions with regard to the contentions raised before it by the petitioners,
herein, we are of the considered view that the said orders dated 30.07.2024 and
01.10.2024, passed by the learned Tribunal cannot be sustained and would call for an
interference.
22. At this stage, a representation dated 10.06.2024 available in the records of the
present proceedings, preferred by the sole respondent against the order dated
07.06.2022, by which he was transferred and posted as CGM, NE-II Circle, Dimapur, is
noticed. A perusal of the said representation would go to reveal that while the sole
respondent therein, has prayed for a posting as a Circle Head in any one of the circles
indicated therein, projecting himself to be a regular incumbent in the cadre of PGM,
had not made any contention that he was infact promoted to the post of CGM vide the
order dated 07.06.2024.
23. In view of the above discussions and conclusions reached by us herein above,
the interim directions passed by the learned Tribunal vide order dated 30.07.2024, in
O.A. No. 182/2024 and the order dated 01.10.2024, passed by the learned Tribunal in
M.A. No. 95/2024 stand set aside.
24. With the above directions and directions, the writ petition stands allowed.
JUDGE CHIEF JUSTICE
Comparing Assistant
