Case: Bharat Sanchar Nigam Limited and Ors Vs. Babu V. and Ors

1. Leave granted. By an order dated 18.05.2004 the Bharat Sanchar Nigam Limited (B.S.N.L.) had declared the existing cadres of Junior/Senior Accountants as Wasting Cadre with a view to amalgamate the multiple cadres in existence. Accordingly the cadres of Junior and Senior Accountants stood withdrawn and the posts in the cadre continued to be personal to the incumbents and were to be abolished as and when the same are vacated by way of retirement, promotions, resignation etc.2. In a challenge to the said order made before the learned Central Administrative Tribunal (for short, the Tribunal), the Tribunal interfered with the same and directed the B.S.N.L. authorities to complete the process of restructuring of the cadres providing avenues of promotion comparable to what was existing under the Assistant (Accounts)/Junior Accountant/Senior Accountant Recruitment Rules, 2002 (for short, 2002 Rules).3. The order of the learned Tribunal was based on two principal grounds/findings, namely, that the impugned order dated 18.05.2004 affected the rights of Junior Accountants for consideration of their cases for promotion to the cadre of Senior Accountants and secondly that the order of restructuring did not have the approval of the Board.4. Aggrieved, the Appellants (B.S.N.L.) challenged the said order of the learned Tribunal before the High Court of Kerala, which challenge was dismissed by Order dated 07.06.2012 of the High Court. The same has been impugned in the present appeals after exhausting the remedy of review in terms of the order of this Court in the first round of proceedings against the said order of the High Court dated 07.06.2012.5. We have heard the learned Counsels for the parties and have considered the facts and circumstances relevant to the issue.6. The order declaring the two cadres as Wasting Cadre and the additional affidavit dated 14.03.2018 filed by the Appellants before the Court makes it clear that the decision to declare the cadres in question as Wasting Cadre was taken to avoid multiplicity of cadres; to avoid continuance of isolated cadres in different streams and to have better efficiency in administration. This is a fundamental aspect that has to be borne in mind before proceeding any further coupled with the undisputed position in law that it is the right and prerogative of the employer to decide on the creation, continuance and abolition of cadres in the best interests of the administration. The role of Courts is limited and extends to ensuring that the rights of the incumbents are not abridged or tempered with by the executive decision that may be taken in this regard.7. It has already been noted earlier that by the decision dated 18.05.2004 the posts of Junior Accountants and Senior Accountants were declared to be personal to the incumbents and were to continue till such time that they fell vacant by retirement, promotions, resignation etc. In the aforesaid backdrop, the limited judicial exercise that would be called for would be to examine as to whether the rights of the incumbents in the said two cadres including the right for consideration of promotion has been affected in any substantial manner by the order dated 18.05.2004 declaring the two cadres as "Wasting Cadre".8. The norms in force governing the service conditions including promotional avenues of the two cadres on the date of the impugned order dated 18.05.2004 were regulated by the Assistant (Accounts)/Junior Accountant/Senior Accountant Recruitment Rules, 2002. The aforesaid Rules have been framed by the Board of the B.S.N.L. and are in the nature of a set of executive instructions.9. While Junior Accountants were eligible for consideration for promotion to the post of Senior Accountant on the principle of seniority-cum-fitness on completion of three years service, there was no channel of promotion from the post of Senior Accountant to the next higher post of Junior Accounts Officer on the criteria of seniority-cum-fitness. Instead, 40% of the cadre of Junior Accounts Officer under the 2002 Rules was to be filled up by eligible incumbents in the cadre of Junior and Senior Accountants by Limited Competitive Examination. Requirement of being a graduate and 10 years of service were conditions of eligibility prescribed by the 2002 Rules to enable a Junior Accountant/Senior Accountant to sit in the Limited Competitive Examination for filling up 40% of the posts of Junior Accounts Officer.10. Following the decision to declare the two cadres as Wasting Cadre dated 18.05.2004, the 2002 Rules were amended on 19th January, 2005 by giving an additional quota of 10% to the Junior and Senior Accountants for promotion to the post of Junior Accounts Officer. Insofar as this segment i.e. 10% is concerned, the requirement of being a graduate was dispensed with by the amendment and the stipulation with regard to 10 years of service was altered to 5 years. The requirement of passing the screening test also stood withdrawn. The 40% quota under the 2002 Rules continued in the same form both for the Junior and Senior Accountants. The remaining 50% of the posts of Junior Accounts Officer, like before, was required to be filled up by direct requirement.11. An analysis of the 2002 Rules and the amended Rules of 2005, details of which have been indicated above, would go to show that while the channel of promotion from Junior Accountant to Senior Accountant stood abolished, naturally, because the cadre of Senior Accountant was also declared to be a Wasting Cadre, the same was sought to be substituted by providing a 10% extra quota for promotion to the cadre of Junior Accounts Officer by Departmental Competitive Examination. To the said additional quota, the requirement of qualifying service of 10 years was relaxed to 5 years and the requirement of being a graduate was also dispensed with. The 40% quota available under the earlier Rules to both categories i.e. Junior and Senior Accountants continued to remain subject to the same eligibility conditions.12. Consequential changes following the declaration of Wasting Cadre was bound to follow. The question is whether such consequential changes are so adverse to the interests of the serving and continuing Junior Accountants and Senior Accountants that the same could offend the prospects and chances of fair consideration of their cases for career progression. If the matter is to be viewed in light of the consequential changes brought out by the Amended 2005 Rules, our response to the situation would be in the negative. What has been substituted by the amendment, in our considered view, is a fair measure of promotional avenues and prospects of career progression for the incumbents of the Wasting Cadre.13. An issue has been raised by the learned Counsel for the Respondents that the situation on the ground is quite different in view of the meagre number of posts that would be available against the additional 10% quota. While the same may be correct, from paragraph 5 of the additional affidavit dated 14.03.2018 of the Appellants it appears that for those Junior Accountants who may continue to remain in the said posts without any promotion, in view of the changed situation, Assured Career Progression by way of financial upgradation to the pay of the higher promotional post has been provided for on completion of a specified period of service. Such a Compensatory Package when promotion cannot be made due to want of posts is a normal feature of administrative redress.14. An issue has been struck by the learned Counsel for the Respondents as to whether the 2005 Rules amending the 2002 Rules could have been given effect to without the approval of the Board. From the materials on record it appears that the power of creation of posts which would, undoubtedly, include the power of abolition of posts, has been delegated to the Chairman-cum-Managing Director of B.S.N.L. From the pleadings of the Appellants before the High Court it appears that a statement had been made to the effect that the Order dated 18.05.2004 was circulated by the Assistant Director General (SEA) upon approval of the proposal of declaration of the Wasting Cadre by the Director(Human Resources)/Director(Finance) and finally by the Chairman-cum-Managing Director (CMD) of B.S.N.L. If the above is the position on facts, we do not see how the amended Rules can be said to be without authority of law.

Decision:
1[ds]6. The order declaring the two cadres as Wasting Cadre and the additional affidavit dated 14.03.2018 filed by the Appellants before the Court makes it clear that the decision to declare the cadres in question as Wasting Cadre was taken to avoid multiplicity of cadres; to avoid continuance of isolated cadres in different streams and to have better efficiency in administration. This is a fundamental aspect that has to be borne in mind before proceeding any further coupled with the undisputed position in law that it is the right and prerogative of the employer to decide on the creation, continuance and abolition of cadres in the best interests of the administration. The role of Courts is limited and extends to ensuring that the rights of the incumbents are not abridged or tempered with by the executive decision that may be taken in this regard7. It has already been noted earlier that by the decision dated 18.05.2004 the posts of Junior Accountants and Senior Accountants were declared to be personal to the incumbents and were to continue till such time that they fell vacant by retirement, promotions, resignation etc8. The norms in force governing the service conditions including promotional avenues of the two cadres on the date of the impugned order dated 18.05.2004 were regulated by the Assistant (Accounts)/Junior Accountant/Senior Accountant Recruitment Rules, 2002. The aforesaid Rules have been framed by the Board of the B.S.N.L. and are in the nature of a set of executive instructions9. While Junior Accountants were eligible for consideration for promotion to the post of Senior Accountant on the principle of seniority-cum-fitness on completion of three years service, there was no channel of promotion from the post of Senior Accountant to the next higher post of Junior Accounts Officer on the criteria of seniority-cum-fitness. Instead, 40% of the cadre of Junior Accounts Officer under the 2002 Rules was to be filled up by eligible incumbents in the cadre of Junior and Senior Accountants by Limited Competitive Examination. Requirement of being a graduate and 10 years of service were conditions of eligibility prescribed by the 2002 Rules to enable a Junior Accountant/Senior Accountant to sit in the Limited Competitive Examination for filling up 40% of the posts of Junior Accounts Officer11. An analysis of the 2002 Rules and the amended Rules of 2005, details of which have been indicated above, would go to show that while the channel of promotion from Junior Accountant to Senior Accountant stood abolished, naturally, because the cadre of Senior Accountant was also declared to be a Wasting Cadre, the same was sought to be substituted by providing a 10% extra quota for promotion to the cadre of Junior Accounts Officer by Departmental Competitive Examination. To the said additional quota, the requirement of qualifying service of 10 years was relaxed to 5 years and the requirement of being a graduate was also dispensed with. The 40% quota available under the earlier Rules to both categories i.e. Junior and Senior Accountants continued to remain subject to the same eligibility conditionsIf the matter is to be viewed in light of the consequential changes brought out by the Amended 2005 Rules, our response to the situation would be in the negative. What has been substituted by the amendment, in our considered view, is a fair measure of promotional avenues and prospects of career progression for the incumbents of the Wasting CadreWhile the same may be correct, from paragraph 5 of the additional affidavit dated 14.03.2018 of the Appellants it appears that for those Junior Accountants who may continue to remain in the said posts without any promotion, in view of the changed situation, Assured Career Progression by way of financial upgradation to the pay of the higher promotional post has been provided for on completion of a specified period of service. Such a Compensatory Package when promotion cannot be made due to want of posts is a normal feature of administrative redressFrom the materials on record it appears that the power of creation of posts which would, undoubtedly, include the power of abolition of posts, has been delegated to the Chairman-cum-Managing Director of B.S.N.L. From the pleadings of the Appellants before the High Court it appears that a statement had been made to the effect that the Order dated 18.05.2004 was circulated by the Assistant Director General (SEA) upon approval of the proposal of declaration of the Wasting Cadre by the Director(Human Resources)/Director(Finance) and finally by the Chairman-cum-Managing Director (CMD) of B.S.N.L. If the above is the position on facts, we do not see how the amended Rules can be said to be without authority of lawFrom the materials on record it appears that the power of creation of posts which would, undoubtedly, include the power of abolition of posts, has been delegated to the Chairman-cum-Managing Director of B.S.N.L. From the pleadings of the Appellants before the High Court it appears that a statement had been made to the effect that the Order dated 18.05.2004 was circulated by the Assistant Director General (SEA) upon approval of the proposal of declaration of the Wasting Cadre by the Director(Human Resources)/Director(Finance) and finally by the Chairman-cum-Managing Director (CMD) of B.S.N.L. If the above is the position on facts, we do not see how the amended Rules can be said to be without authority of