Bharat Sanchar Nigam Limited vs A. Tirumal Raj
2022 Latest Caselaw 620 Tel

     IN THE HIGH COURT OF JUDICATURE FOR THE STATE OF
                        TELANGANA
                           ********

WRIT PETITION No.9450 OF 2019

Between:

Bharat Sanchar Nigam Limited, Rep.by its Chairman-cum-Managing Director, Bharat Sanchar Bhavan, H.C.Mathur Lane, Janpath, New Delhi and others.

.... Petitioners And

A.Tirumal Raj, s/o. A.Shiva Raj, Aged 45 years, occu:Ex-Junior Telecom Officer(Civil), (under the order of dismissal), O/o. the Sub-Divisional Engineer (Civil), Bharat Sanchar Nigam Limited, Mahaboobnagar and another.

                                                   .... Respondents



DATE OF JUDGMENT PRONOUNCED                  :       14.02.2022


            THE HON'BLE SRI JUSTICE P.NAVEEN RAO
                              &
            THE HON'BLE DR JUSTICE G.RADHA RANI


1.      Whether Reporters of Local Newspapers :      No
         may be allowed to see the Judgments ?


2.      Whether the copies of judgment may be :      Yes
        marked to Law Reporters/Journals


3.     Whether Their Lordship wish to            :   No
       see the fair copy of the Judgment ?
                                                          PNR,J & GRR,J
                                                      WP No.9450 of 2019




          *THE HON'BLE SRI JUSTICE P.NAVEEN RAO
                            &
          THE HON'BLE DR. JUSTICE G.RADHA RANI


+ WRIT PETITION NO.9450 of 2019


% 14.02.2022

# Bharat Sanchar Nigam Limited,

Rep.by its Chairman-cum-Managing Director, Bharat Sanchar Bhavan, H.C.Mathur Lane, Janpath, New Delhi and others.

.... Petitioners Vs.

$ A.Tirumal Raj, s/o. A.Shiva Raj, Aged 45 years, occu:Ex-Junior Telecom Officer(Civil), (under the order of dismissal), O/o. the Sub-Divisional Engineer (Civil), Bharat Sanchar Nigam Limited, Mahaboobnagar and another.

.... Respondents

!Counsel for the petitioners : Ms.P.Sarada, standing counsel for BSNL for petitioners

Counsel for the Respondents : Mr. K.R.K.V. Prasad, counsel for 1st respondent

<Gist :

>Head Note:

? Cases referred:

(1979) 4 SCC 289 (2011) 7 SCC 789 PNR,J & GRR,J WP No.9450 of 2019

HON'BLE SRI JUSTICE P.NAVEEN RAO AND HON'BLE DR. JUSTICE G.RADHA RANI

WRIT PETITION No.9450 OF 2019

ORDER: (Per Hon'ble Sri Justice P.Naveen Rao)

The first respondent was working as Junior Telecom Officer

(Civil) at the relevant point of time. On 26.03.2007, he was

arrested and was in custody for three days. His arrest was

consequent to the complaint filed against him alleging that he

indulged in bigamous marriage. On investigation, police filed

charge sheet against the 1st respondent. The criminal Court took

cognizance of the offence alleged and he was placed on trial in

C.C.No.524 of 2007 in the Court of XIII Additional Chief

Metropolitan Magistrate (Mahila Court), Nampally at Hyderabad.

2. Disciplinary proceedings were also initiated against him by

framing charges on 31.10.2007. The charge sheet contained two

charges. Firstly, it was alleged that he suppressed about his arrest

and detention and secondly he contracted second marriage, which

is in violation of Conduct Rules. The enquiry officer held both the

charges proved.

3. While so, by judgment dated 10.06.2011, the trial Court

convicted the first respondent on the offence alleged and was

sentenced to undergo three years rigorous imprisonment and fine

of 3,000/-. By order dated 10.10.2012, the first respondent was

dismissed from service based on the charges proved in the

domestic enquiry and that he was convicted and sentenced by PNR,J & GRR,J WP No.9450 of 2019

criminal Court. The appeal preferred by the first respondent to the

Chief General Manager was rejected on 01.08.2013.

4. In the meanwhile, challenging the conviction and sentence

imposed by the trial Court, the first respondent preferred

Crl.A.No.296 of 2011. The first appellate Court allowed the said

Criminal Appeal setting aside the conviction and sentence by the

judgment dated 14.03.2013. The Court is informed that estranged

wife preferred Crl.R.C.No.1025 of 2014 before this Court

challenging the acquittal granted by the first appellate Court and

the said Crl.R.C. is pending consideration of this Court.

5. Challenging the order of dismissal from service, the first

respondent filed O.A.No.1382 of 2013 before the Central

Administrative Tribunal, Hyderabad Bench. Before the Central

Administrative Tribunal, the first respondent contended that the

order of dismissal from service is vitiated on the ground that

incompetent authority passed the order and, therefore, the order is

vitiated on that ground alone. According to the first respondent,

the Chief General Manager is the appointing authority, and he

alone is competent to dismiss him from service, whereas the order

of dismissal was passed by the Chief Engineer, who is subordinate

to the appointing authority. The order of dismissal was also

assailed on the ground that the appellate Court granted acquittal

and therefore the order of dismissal could not have been made by

referring to the conviction accorded by the trial Court and the

findings in departmental proceedings are also not valid in view of

the judgment of the appellate Court.

PNR,J & GRR,J WP No.9450 of 2019

6. With reference to the second aspect, the Tribunal rejected

the contention of the first respondent and upheld the disciplinary

action taken against the first respondent even though he was

acquitted by the appellate Court. This finding of the Tribunal has

become final, as the first respondent has not assailed the said

finding.

7. On the first aspect, the Tribunal agreed with the contention

of the first respondent and held that the order of dismissal was

passed by an authority lower in rank to that of the Chief General

Manager. The order is vitiated on that ground and accordingly the

order of punishment, as affirmed by the appellate authority, was

set aside with a direction to reinstate the first respondent into

service. The Tribunal further directed the second respondent to

pass final order after serving the copy of enquiry report and

affording opportunity of hearing. Aggrieved thereby, the Bharat

Sanchar Nigam Limited (BSNL) is before this Court.

8. According to learned counsel for the petitioners - BSNL, by

order dated 05.02.1998, the first respondent was appointed as

Junior Engineer by the Superintending Engineer, whereas the

order of dismissal from service was passed by the Chief Engineer,

the authority higher in rank to that of the appointing authority and

therefore the Tribunal erred in setting aside the punishment.

8.1. It is further contended that the disciplinary action of

employees working in BSNL is governed by separate set of Rules

called 'BSNL Conduct, Disciplinary and Appeal Rules, 2006' (CDA

Rules). Rule 34 of the CDA Rules specified the authorities

competent to impose punishment and appellate/reviewing PNR,J & GRR,J WP No.9450 of 2019

authorities as listed in Annexure appended to the Rules. As per

the Annexure, against the major penalty, the disciplinary authority

is shown as General Manager/Equivalent Officer dealing in Human

Resources and the Director/Chief General Manager/equivalent

authority as appellate authority. The Table also mentions that

General Manager or equivalent Officer dealing with Human

Resources in the Circle Office as the appointing authority. Learned

counsel contends that the General Manager is equivalent to that of

Chief Engineer and the Chief Engineer passed the order of

punishment against which the first respondent preferred appeal to

the Chief General Manager as envisaged by the Annexure

appended to the Rules. That being so, she would contend, it is no

more permissible for the first respondent to contend that

incompetent authority passed orders of dismissal from service.

9. In response to this contention, learned counsel for the

first respondent Sri K.R.K.V.Prasad submits that the first

respondent was appointed as Draftsman by the proceedings dated

25.11.1991 issued by the Deputy General Manager (Admn.) on

behalf of the Chief General Manager, Telecom. Further, the order of

absorption absorbing in BSNL was passed by the Director, who is

equivalent in rank to that of Chief General Manager and therefore,

the Chief General Manager being the appointing authority, an

Officer lower in rank to that of the Chief General Manager cannot

pass the dismissal order and therefore the order is ex facie illegal.

9.1. He further submits that BSNL has formulated Recruitment

Rules on 14.08.2001. According to the schedule appended to these

Recruitment Rules, for the post of Junior Engineer, the Chief PNR,J & GRR,J WP No.9450 of 2019

General Manager is treated as appointing authority and therefore

an authority lower in rank to that of Chief General Manager cannot

dismiss the Junior Engineer (which is now called as Junior

Telecom Officer) from service. He therefore submits that the

Tribunal has come to the right conclusion and does not warrant

interference.

9.2. Learned counsel for respondent submitted that in

supercession of the 2001 Recruitment Rules, new Recruitment

Rules i.e., Recruitment Rules of Junior Telecom Officer (Telecom)

were notified in the year 2015 and Note-2 appended to the

schedule, reiterates that the Chief General Manager shall be the

Appointing Authority. Thus, consistently, BSNL has recognized

the Chief General Manager alone as Appointing Authority.

9.3. He further submitted that as clarified by letter No.28-1/89-

CSE dated 09.03.1989 by the Department of Telecommunications,

the Chief General Manager continues to be the Appointing

Authority and therefore, by the time the respondent was appointed

as Junior Telecom Officer, the Chief General Manager is designated

as Appointing Authority and since the order of dismissal was

passed by an authority lower than the Appointing Authority, same

is illegal. In support of said contention, learned counsel for

respondent placed reliance on the judgment of the Supreme Court

in Krishna Kumar Vs Divisional Assistant Electrical Engineer

and others1.

10. In response to the submissions that the first respondent was

initially appointed as Draftsman by the Chief General Manager and

(1979) 4 SCC 289 PNR,J & GRR,J WP No.9450 of 2019

that his absorption order was issued by the Director, learned

counsel for the petitioners submits that the first respondent was

appointed in February, 1998 as Junior Engineer and this order of

appointment was issued by the Superintending Engineer.

She further submits after the formation of BSNL, all the orders of

absorption were signed by the Director, that the order of

absorption was not an appointment, but it is only the

acknowledgment of bringing the services of employees either to

belonging to the DoT into the service of BSNL, a corporate entity.

Therefore, it does not take the status of orders of appointment.

10.1. Learned standing counsel for BSNL clarified that

proceedings No.4-6/86-CSE dated 28.10.1986 clearly demarcates

the authority competent to make recruitment and authority

competent to make appointment. While the Superintendent

Engineer (Civil) is designated as Appointing Authority, the Chief

General Manager of the Telecommunication Circle was designated

as Recruiting Authority. The Memo dated 09.03.1989 retains the

Superintending Engineer (Civil) as Appointing Authority, entrusted

the entire recruitment to the Chief General Manager. She therefore

submitted that as on the date of appointment of the respondent,

the Superintending Engineer (Civil) was Appointing authority to

the post of Junior Telecommunication Officer and he has

appointed the respondent.

11. Two issues arise for consideration. Firstly, whether the

order of absorption on 07.02.2002 signed by the Director would

amount to an order of appointment superseding the order of

appointment issued in February, 1998 in the name of PNR,J & GRR,J WP No.9450 of 2019

Superintending Engineer in order to hold that an authority lower

in rank than the appointing authority has passed the order of

dismissal. Secondly, even if absorption is an order of appointment,

having regard to the specific provision in the CDA Rules, which

clearly envisage the appointing authorities and the disciplinary

authorities merely because an order of absorption was issued in

the name of Director, will the order of dismissal from service by the

Chief Engineer would vitiate.

12. The first respondent was appointed as Junior Engineer

(Junior Telecom Officer) vide proceedings issued by the

Superintending Engineer dated 05.02.1998. On the date of

dismissal, he was working in the said capacity. On the date of his

appointment, he was in the service of Department of

Telecommunications (DoT). Later, Bharat Sanchar Nigam Limited

(BSNL) was established transferring the Telecom services to BSNL.

Employees of Government of India were permanently transferred to

BSNL and BSNL became employer. At the stage of transfer of

services, the orders of absorption were issued by the Director. By

relying on the order of absorption, it is vehemently contended that

appointing authority is Director/Chief General Manager.

13. This contention is stated to be rejected. Order of absorption

does not amount to order of appointment. By order of absorption

into BSNL, first respondent has not acquired a new status. He

continued to be Junior Telecom Officer to which post he was

appointed by the Superintending Engineer. What is changed is

only status of employment, from Government of India service to

BSNL service.

PNR,J & GRR,J WP No.9450 of 2019

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14. It is appropriate to note at this stage that BSNL is corporate

entity. The first respondent, on absorption in BSNL, lost the status

of the Government servant and, therefore, the protective shield

under Article 311 of the Constitution of India is no more available.

The first respondent, being an employee of statutory corporation,

shall be governed by the Rules formulated by the employer.

15. There are two kinds of Rules, which require consideration.

The first set of Rules were notified on 14.08.2001, called 'The

Junior Telecom Officer (Civil) Recruitment Rules, 2001 (the Rules,

2001), which are the rules concerning the recruitment to the post

of Junior Telecom Officer, and the 'BSNL Conduct, Disciplinary

and Appeal Rules, 2006' (CDA Rules), which specifically deal with

the conduct and discipline of the employees, punishments that can

be imposed, the authorities competent to impose minor/major

punishments and appellate authorities. It also specifies appointing

authorities.

16. Rule 33 of the CDA Rules specified penalties that can be

imposed on an employee divided into: (A) Minor penalties and (B)

Major penalties. Rule 342 deals with the Disciplinary Authority as

specified in the Schedule. Rule 433 clearly specifies that DoT

employees on absorption are governed by those Rules. Rule 45

Rule 34. Disciplinary Authority: (1) The Disciplinary Authority, as specified in the schedule or any authority higher than it may impose any of the penalties specified in Rule 33 on any employee. (2) The Disciplinary authority competent to impose any of the penalties specified in Rule 33 can institute disciplinary proceedings against the employee. Any authority higher than the Disciplinary Authority can direct the Disciplinary Authority to institute disciplinary proceedings against any employee. (3) The Disciplinary Authority competent to impose penalties specifies in clause (a) to (e) of Rule 33 can institute disciplinary proceedings against any employee for the imposition of any of the penalties in clause (f) to (j) of Rule 33.

3 Rule 43. Special provisions in respect of D.O.T staff on permanent absorption in BSNL -

Conferring safeguards relating to security of service on dismissal/removal:

The D.O.T. employees on absorption in BSNL shall be governed by these rules from the date of their absorption in the company/date of issue of these rules. However, dismissal/ removal from the service of BSNL after absorption, for any subsequent misconduct shall not amount to forfeiture of his retirement benefits for the service rendered in the Central Government. Also in the event of dismissal/removal of such an employee from BSNL (i.e. D.O.T. staff permanently absorbed in BSNL), the employee concerned will be allowed protection to the extent that D.O.T. will review such order before final decision is taken by BSNL.

PNR,J & GRR,J WP No.9450 of 2019

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provides remedy of appeal and Rule 464 specifies appellate

authorities, as listed in the table in the schedule.

17. According to Rule 10 of the Rules 2001, initial constitution

of the cadre comprises of Officers absorbed in BSNL. Schedule

appended to the Rules, 2001 specifies eligibility criteria and

appointing authority. According to column-13 of the Schedule, the

Chief General Manager is the appointing authority.

18. The CDA Rules specify the General Manager or equivalent

cadre Officer as appointing authority and disciplinary authority

and the Director/Chief General Manager as appellate authority.

Vide proceedings No.10-5/2012-WS&I, dated 24.01.2013, it is

clarified that "equivalent means equivalent Officer in the concerned

wing, i.e., BSNL Finance, Civil, Electrical, Architecture, etc.". First

respondent belong to Civil wing and in Civil wing, the Chief

Engineer is equivalent in rank to General Manager.

19. It is interesting to note that CDA Rules were amended

making changes in the texture of few provisions, one of which is

Rule 37(5) of the CDA Rules. Addition to the sub-rule by way of

amendment reads as, "Disciplinary Authorities specified in BSNL CDA

Rules, 2006 can initiate major penalty proceedings but before imposing

any major penalty prior approval of the appointing authority is

4 Rule 46. Appellate Authority:

(1) An employee, including a person who has ceased to be in Company's service, may prefer an appeal against all or any of the orders specified in Rule 45 to the authority specified in this behalf in the Schedule.

(2) Notwithstanding anything contained in sub-rule (1) --- (i) an appeal against an order in a common proceeding held under Rule 39 shall lie to the authority to which the authority functioning as the Disciplinary Authority for the purpose of that proceeding is immediately subordinate;

(ii) where the person who made the order appealed against becomes, by virtue of his subsequent appointment or otherwise, the Appellate Authority in respect of such order, an appeal against such order shall lie to the authority to which such person is immediately subordinate. (3) An employee may refer an appeal against order imposing any of the penalties specified in Rule 33 to the Director (HRD), BSNL Board where no such appeal lies to him under Sub-Rule 1, or Sub- Rule 2, if such penalty is imposed by any authority other than the Director (HRD) BSNL Board on such employee in respect of his activities connected with his work as an office bearer of the recognized union/association.

PNR,J & GRR,J WP No.9450 of 2019

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necessary". Thus, in case an authority lower in rank to the

appointing authority acts as the disciplinary authority, he must

seek approval of the appointing authority before imposing major

penalty. In the instant case, first respondent was appointed as

Junior Telecom Officer by the Superintending Engineer, who is

subordinate to the Chief Engineer. Further, in CDA Rules, the

General Manager (i.e., Chief Engineer) is shown as Appointing

Authority and as Disciplinary Authority. Therefore, if punishment

is imposed by General Manager (i.e., Chief Engineer), there is no

need to seek approval from any authority.

20. It is also necessary to note one other crucial aspect. First

respondent was appointed as Junior Engineer (Junior Telecom

Officer) in the DoT before formation of BSNL and absorbed in

BSNL. To safeguard the interests of all such employees, the

procedure evolved by the Government of India also required

ratification of decision by the competent authority of BSNL to

impose major penalty, as employee was appointed in Government

of India service before absorption in BSNL. In the instant case, the

proposal to impose punishment of dismissal was ratified by the

Deputy Secretary, DoT, vide his letter No.68-25/2012-Vig.II dated

16.07.2012. Only after the ratification, the punishment of

dismissal was imposed. Order of dismissal from service refers to

ratification granted by the competent authority in DoT. It is not

the case of the first respondent that the Deputy Secretary, DoT

was incompetent to ratify the decision.

21. Since learned counsel for first respondent placed heavy

reliance on Rules, 2001 to contend that Chief Engineer is not PNR,J & GRR,J WP No.9450 of 2019

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competent, it is necessary to consider both rules carefully to

ascertain whether there is any conflict in the provisions and

whether they can be reconciled.

22. The fundamental principle of interpretation of statutes is to

ascertain the intendment of rule making authority to see whether

there is any conflict and whether they can be reconciled. Further,

if there is an apparent conflict, to assess which provision would

prevail. It is necessary to reconcile/harmonize two sets of rules to

bring out true intent of the rule making authority.

23.1. In Balwant Singh Vs Jagdish Singh5, the Hon'ble Supreme

Court held as under:

"33. Furthermore, it is also a well-settled canon of interpretative jurisprudence that the Court should not give such an interpretation to the provisions which would render the provision ineffective or odious........."

23.2. In Ajoy Kumar Banerjee Vs. Union of India6, the Hon'ble

Supreme Court held as under:

"26.............Interpretation of a provision or statute is not a mere exercise in semantics but an attempt to find out the meaning of the legislation from the words used, understand the context and the purpose of the expressions used and then to construe the expressions sensibly.

xxxx

39. From the text and the decisions, four tests are deducible and these are: (i) The legislature has the undoubted right to alter a law already promulgated through subsequent legislation,

(ii) A special law may be altered, abrogated or repealed by a later general law by an express provisions, (iii) A later general law will override a prior special law if the two are so repugnant to each other that they cannot co-exist even though no express provision in that behalf is found in the general law, and (iv) It is only in the absence of a provision to the contrary and of a clear inconsistency that a special law will remain wholly unaffected by a later general law. See in this connection, Maxwell on the Interpretation of Statutes, Twelfth Edn., pp. 196-198."

23.3. In Maya Mathew Vs. State of Kerala and others7, the

Hon'ble Supreme Court held as under:

(2010) 8 SCC 685

(1984) 3 SCC 127 PNR,J & GRR,J WP No.9450 of 2019

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"20. What logically follows from the principle enunciated in the two decisions is that if any special rule is subsequent to the general rule, then the question of examining whether the prior general rule will prevail over a later special rule will not arise at all having regard to the categorical provision contained in Rule 2 of the General Rules. The principle laid down in those decisions will not apply where the special rule is made subsequent to the general rule."

(emphasis supplied)

23.4. In Jairaj Ispat Ltd Vs. A.P. Regulatory Commission8, this

Court held as under:

"27. The latin maxim Generalibus specialia derogant means that special things derogate from general things. One of the applications of the Rule of Harmonious Construction is that when there is a law generally dealing with a subject and another dealing particularly with one of the topics comprised therein, the general law is to be construed as yielding to the special in respect of the matters contained therein. The principle that the particular or special rule must control or cut down the general rule is however inapplicable where the two provisions do not relate to the same subject [See Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661].

xxx

38. The general rule to be followed in the case of a conflict between two provisions is that the later abrogates the earlier one (Leges posteriors priores contrarias abrogant). To this general rule there is a well known exception, namely, Generalia specialibus non derogant (general things do not derogate from special things). In other words, a prior special law would yield to a later general law, if either of the two following conditions are satisfied:

(i) The two are inconsistent with each other.

(ii) There is some express reference in the later to the earlier enactment."

(Emphasis supplied)

24. Guided by the law enunciated in above decisions, it is

necessary to examine the width and scope of two sets of rules and

to assess whether there is any conflict. To this extent, it is

necessary to note following aspects:

(i) The Rules, 2001 deal with recruitment of a Junior

Telecom Officer and the CDA Rules deal with particular aspect of

service conditions of Junior Telecom Officer, namely, conduct and

discipline of a Junior Telecom Officer. Thus, in the field of conduct

(2010) 4 SCC 498

2012 (2) ALD 739 PNR,J & GRR,J WP No.9450 of 2019

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and discipline, the CDA Rules are Special Rules and they shall

prevail even if there is inconsistency vis-à-vis Rules, 2001;

(ii) CDA Rules are notified later to Rules, 2001. The CDA

Rules also specify the appointing authority to the post of Junior

Telecom Officer as General Manager (i.e., the Chief Engineer in

Civil branch). Thus, if there is a conflict, the later Rules shall

prevail. Further, it cannot be assumed that when BSNL notified

CDA Rules specifying the disciplinary authorities, it was not aware

that 2001 Rules specified the Chief General Manager as appointing

authority;

(iii) first respondent was appointed as Junior Telecom

Officer by the Superintending Engineer, whereas order of dismissal

was made by the Chief Engineer. He was not appointed after

2001 Rules were notified. Thus, though protective shield of Article

311 of the Constitution of India is not available to first respondent

after his absorption in BSNL, even assuming that underlying

principle of Article 311 of the Constitution of India applies to

BSNL, the authority who dismissed first respondent is higher in

rank to the authority who appointed him;

(iv) and most important to note is that first respondent was

appointed in the Department of Telecommunications before his

services were absorbed in BSNL. The Department of

Telecommunications mandated the BSNL to seek its ratification of

decision of BSNL to dismiss/remove an employee, who was

appointed in the Government of India and later absorbed in BSNL.

Accordingly, ratification was sought and the competent authority

of the Department of Telecommunications ratified the proposal to PNR,J & GRR,J WP No.9450 of 2019

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dismiss first respondent from service and then only order of

dismissal was notified.

25. From the above analysis, it is clear that CDA Rules 2006

govern the disciplinary aspects of first respondent employment.

CDA Rules, 2006 are later to 2001 Rules. CDA Rules designate the

Chief Engineer as competent to dismiss a Junior Telecom Officer.

26. We have gone through the proceedings dated 28.10.1986

and letter dated 09.03.1989. From the reading of paragraph-2.1 of

the proceedings dated 28.10.1986, it is clear that "The concerned

Superintending Engineer (Civil) will remain the appointing authority

while a designated General Manager of the Telecommunications

Circle will be the recruiting authority".

27. While so, it appears there was some kind of inconvenience

caused in resorting to recruitment various cadres because of

several authorities were authorized to make recruitment. In order

to overcome this problem and also to ensure timely filling up of

posts, a decision was taken to entrust the responsibility to make

recruitment to Non-Gazetted posts, including Junior Engineer,

which was later re-designated as Junior Telecom Officer, by the

Chief General Manager of the concerned State. From the reading

of paragraph-2 of letter dated 9.3.1989, it is clear that Appointing

Authority remains unchanged i.e., Superintending Engineer (Civil).

These two documents amplifies the stand of standing counsel for

petitioners that on the day when first respondent was appointed as

Junior Telecom Officer, the Superintending Engineer was the

appointing authority and he made the appointment.

PNR,J & GRR,J WP No.9450 of 2019

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28. It is not necessary that the appointing authority alone

should make recruitment. A different authority can be a recruiting

authority, some times even an outsider can be entrusted to make

recruitment. For example, in all higher cadre posts in the State of

Telangana, the Telangana State Public Service Commission is the

Recruiting Authority. On an indent placed by the Appointing

Authority or higher authority, the Public Service Commission

initiates the process of recruitment, makes selections and sends

list of selected candidates to the Appointing Authority, who in-

turn, on due verification of the antecedents and eligibility of the

candidates recommended for appointment, makes the

appointments. Thus, it is always permissible for the employer to

designate different authorities for different purposes. Therefore,

merely because Chief General Manager of concerned State/Circle/

Zone is designated as Recruiting Authority, he cannot per se

become an Appointing Authority, unless it is otherwise specifically,

indicated as is evident from the 2001 Rules and subsequent Rules.

Thus, as on the date of appointment of respondent as Junior

Telecom Officer, the Superintending Engineer (Civil) was

Appointing Authority and he appointed the respondent. Therefore,

the contention of the learned counsel for respondent that Chief

General Manager is Appointing Authority by referring to the

correspondence dated 28.10.1986 and dated 09.03.1989 is not

valid.

29. The decision of the Hon'ble Supreme Court in Krishna

Kumar (supra) does not come to the aid of the first respondent for

two reasons. Firstly, in the said case, though, subsequently, the

Divisional Assistant Electrical Engineer was designated as the PNR,J & GRR,J WP No.9450 of 2019

- 18 -

Appointing Authority to the post of Train Lighting Inspector, the

employee therein was appointed by the Chief Electrical Engineer

and was working in the said position when order of removal was

passed. The Divisional Assistant Electrical Engineer is subordinate

to the Chief Electrical Engineer. The Hon'ble Supreme Court held

that as the employee was appointed by the Chief Electrical

Engineer, merely because there is change in the designation of the

Appointing Authority and a lower rank officer is authorized to

make appointment to the post of Train Lighting Inspector, the

employee cannot be removed by an authority lower in rank to that

of the Chief Electrical Engineer. Secondly, the concerned employee

was in employment of Department of Railways, Union of India and

said employee has the protection of Article 311 of the Constitution

of India. In case on hand, respondent ceased to be a Government

servant on his absorption into the services of BSNL and thereafter

the protection of Article 311 is not available to him. We are not

shown any other decision that envisages that even an employee of

a statutory corporation cannot be removed/dismissed from service

by an authority lower in rank to that of designated Appointing

Authority or authority who appointed the employee in the post. At

any rate, in the instant case, respondent was appointed by

Superintending Engineer, whereas, order of dismissal from service

was passed by the Chief General Manager an authority higher in

rank to that of initial appointing authority.

30. Learned counsel for respondent also placed reliance on

judgment of the Supreme Court in Jagdish Prasad Vs State of PNR,J & GRR,J WP No.9450 of 2019

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Rajasthan9 to contend that schedule appended to a statute cannot

in any way wipe out main provisions of the Rules in effect and

spirit. It is settled principle of law, as held by Hon'ble Supreme

Court in Jagdish Prasad (paragraph-26) that a schedule to Rules

cannot abrogate, reduce or alter the scheme of the main provisions

and shall have to be in conformity with intendment of the Rule

making authority. It is not the case of the learned respondent

counsel that schedule appended to CDA Rules, 2006 is in conflict

with the main provision in the CDA Rules, 2006. Hence, we fail to

see how this judgment is relevant for the case on hand.

31. Thus, the order of dismissing the first respondent from

service is not vitiated as the Chief Engineer of BSNL is the

competent authority to dismiss the Junior Telecom Officer and this

order was preceded by ratification by the Deputy Secretary,

Government of India. The Tribunal has misdirected itself in

considering the issue and grossly erred in holding that the order of

dismissal was passed by incompetent authority.

32. Before parting with this case, we intend to place on record

the fact that case was argued extensively and was directed to be

listed for judgment on 08.02.2022. A day before the case was

coming up for judgment, learned counsel for first respondent filed

Memo enclosing certain administrative orders and decisions and

requested the court to permit him to make further submissions.

Though we expressed our displeasure to make such request,

however, in order to give a fair opportunity, we heard again

extensively.

(2011) 7 SCC 789 PNR,J & GRR,J WP No.9450 of 2019

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33. For the aforesaid reasons, the order of Tribunal cannot be

sustained. It is accordingly set aside. The Writ Petition is allowed.

Pending miscellaneous petitions if any shall stand closed.

___________________________ JUSTICE P.NAVEEN RAO

___________________________ JUSTICE G.RADHA RANI Date: 14.02.2022 KH/KKM/tvk

Note: LR copy to be marked: Yes PNR,J & GRR,J WP No.9450 of 2019

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HON'BLE SRI JUSTICE P.NAVEEN RAO AND HON'BLE DR. JUSTICE G.RADHA RANI

WRIT PETITION No.9450 OF 2019

Date: 14.02.2022 Kh/kkm