IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRTIETH DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION Nos. 18870, 18875, 19479, 19527 and 24152 of 2007 W.P.No.18870 of 2007 Between: M.Shanti W/o.T.M.Ranganathan R/o.No.2A, DV Deluxe Enclave, Vimaladevi Nagar, Malkajgiri, Hyderabad - 500 047. ..... PETITIONER AND 1 Bharat Sanchar Nigam Limited, a Government of India Enterprise, rep. by its Chairman & Managing Director, having its Corporate Office at Statesman House, Barakhamba Road, New Delhi - 110 001. 2 The Chairman & Managing Director, Bharat Sanchar Nigam Limited, Statesman House, Barakhamba Road, New Delhi - 110 001. 3 The Chief General Manager, Bharat Sanchar Nigam Limited, Andhra Pradesh Circle, having office at Doorsanchar Bhavan, Nampally Station Road, Hyderabad 500 001. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ, order or direction more particularly in the nature of Writ of Mandamus declaring the decision of the 2nd respondent in fixing the cut-off date as 01-01- 2006 for deciding the service eligibility of 5 years for appearing in the Limited Internal Competitive Examination for promotion to the grade of Personal Assistant issued vide Lr.No.25-1/2007/Pers.II, dated 2nd August, 2007, as arbitrary, without justification, in violation of Articles 14 & 16 of the Constitution of India, the principles of natural justice, and consequently direct the 2nd respondent to fix the cut-off date for deciding the service eligibility as 01-07-2007, and pass such other order or orders. Counsel for the Petitioner: Sri Venkateswarlu Posani Counsel for the Respondents: MS.T.Bala Jayasri WRIT PETITION No 18875 of 2007 Between: Vijaya Bhaskar Arja S/o.Gurunadham R/o.S-4, Gummadi Enclave Apartments, Sakhamuri Sivaiah Street, Currency Nagar, Vijayawada - 520 008. ..... PETITIONER AND 1 Bharat Sanchar Nigam Limited, a Government of India Enterprise, rep. by its Chairman & Managing Director, having its Corporate Office at Statesman House, Barakhamba Road, New Delhi - 110 001. 2 The Chairman & Managing Director, Bharat Sanchar Nigam Limited, Statesman House, Barakhamba Road, New Delhi - 110 001. 3 The Chief General Manager, Bharat Sanchar Nigam Limited, Andhra Pradesh Circle, having office at Doorsanchar Bhavan, Nampally Station Road, Hyderabad 500 001. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ, order or direction more particularly in the nature of Writ of Mandamus declaring the decision of the 2nd respondent in fixing the cut-off date as 01-01- 2006 for deciding the service eligibility of 5 years for appearing in the Limited Internal Competitive Examination for promotion to the grade of Personal Assistant issued vide Lr.No.25-1/2007/Pers.II, dated 2nd August, 2007, as arbitrary, without justification, in violation of Articles 14 & 16 of the Constitution of India, the principles of natural justice, and consequently direct the 2nd respondent to fix the cut-off date for deciding the service eligibility as 01-07-2007, and pass such other order or orders. Counsel for the Petitioner: Sri Venkateswarlu Posani Counsel for the Respondents: MS.T.Bala Jayasri WRIT PETITION No. 19479 of 2007 Between: K.Sairaj Kumar, S/o.Venkateswara Rao, o/o.Divisional Engineer(Mtce),Telephone, Exchange,Nidadavolu 534301, W.G Dist ..... PETITIONER AND 1 B.S.N.L, a Government of India Enterprise, Rep.by its Chairman& Managing Director,having its Corporate Office,at Staesman House,Barakhamba Road, New Delhi-110001 2 The Chairman & Managing Director,B.S.N.L, Statesman House, Barakhamba Road New Delhi-110001 3 The Chief General Manager,B.S.N.L, Andhra Pradesh Circle, having Office at Doorsanchar Bhavan,Nampally Station Road,Hyderabad- 500001 .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ, order or direction more particularly in the nature of writ of Mandamus declaring the decision of the 2nd respondent in fixing the cut-off date as 01-01- 2006 for deciding the service Eligibility of 5 years for appearing in the Ltd internal Competitive Examination for promotion to the grade of Personal Assistant issued vide Lr.No.25-1/2007/Pers.II dated 2nd Auguest,2007 as arbitrary, without justification, in violation of Articles 14&16 of the Constitution of India, the principles of natural justice, and consequently direct the 2nd respondent to fix the cut-off date for deciding the service eligibility as 01-07-2007. Counsel for the Petitioner: Sri Venkateswarlu Posani Counsel for the Respondents: MS.T.Bala Jayasri WRIT PETITION No. 19527 of 2007 Between: 1 K.V.Sivaramu, s/o Satyanarayana Murthy, R/o D.No.61-8-9-1, First Lane, Satyanarayana Nagar, Krishna Lanka, Vijayawada. 2 A.Gopi Chand, s/o Kotaiah, r/o D.No.40-25-16, 8th Portion, Valluri Subba Rao Compound, Padamatilanka, Vijayawada. 3 H.V.N.Sarma, s/o H.V.Subrahmanyam, R/o D.No.40-1/1-16, Laxmipuram Road, Moghalrajpuram, Vijayawada. 4 K.Satyanarayana, s/o Sydulu, r/o HRD Room No.201, II Floor, Gunfoundry, Suryalok Complex, Hyderabad-1. 5 K.Hanumantha Rao, s/o Mohan Rao, r/o D.No.4-47-3, P&T Colony, Tadepalligudem, West Godavari District. ..... PETITIONERS AND 1 Bharat Sanchar Nigam Limited, a Government of India Enterprises represented by its Chairman & Managing Director, having its Corporate Office at Statesman House, Barkakhamba Road, new Delhi-110 001. 2 The Chairman & Managing Director, Bharat Sanchar Nigam Limited, Statesman House, Barkakhamba Road, New Delhi-110 001. 3 The Chief General Manager, Bharat Sanchar Nigam Limited, Andhra Pradesh Circle, having its office at Doorsanchar Bhavan, Nampally Road, Hyderabad-500 001. 4 The District General Manager, Vijayawada Telecom District, BSNL, Bhavan, Chuttugunta, Vijayawada. 5 The Prl.General Manager, Hyderabad Telecom District, Doorsanchar Bhavan, Nampally Road, Hyderabad-500 001. 6 The District General Manager (Operations) BSNL, Bhimavaram- 534 202. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ, order or direction more particularly in the nature of writ of mandamus declaring the decision of the 2nd respondent in fixing the cut-off date as 01-01- 2006 for deciding the service eligibility of 5 years for appearing in the Limited Internal Competitive Examination for promotion to the grade of Personal Assistant issued vide Lr.No.25-1/2007/Pers.II dated 2nd August, 2007, as arbitrary, without justification, in violative of Articles 14, & 16 of the Constitution of India the principles of natural justice, and consequently direct the 2nd respondent to fix the cut-off date for deciding the service eligibility as 01-07-2007 and pass such other order or orders as the Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner: Sri Sai Gangadhar Chamarty Counsel for the Respondents: MS.T.Bala Jayasri WRIT PETITION NO : 24152 of 2007 Between: 1 K.Sree Laxmi Andal, W/o.K.V.Ramakrishna, o/o. Chief General Manager(BSNL),A.P Telecom,Hyd 2 P.Madhavi W/o.P.Ashok Babu, on Deputation to % Director VTM CEll Dot,at Quarter No. D- II,Telecom Officers Quarters,Tikkle Road, Mogulrajpuram,Vijawada,Krishna Dist-5200010 ..... PETITIONERS AND 1 Union Of India, Rep.by its Secretary,Department of Telecom,20 Ashoka Road,New Delhi-1 2 The Chairman-Cum-Managing Director, B.S.N.L Statesman House, Barakhamba Road, New Delhi-1 3 The Chief General Manager,Telecom(BSNL), A.P.Telcome Circle,Door Sanchar Bhavan, Nampally Station Road,Abids,Hyderabad .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue order or orders, direction or directions, writ or writs more particularly one in the nature of WRIT OF MANDAMUS by holding the action of the respondents in laying down a condition No.vii in proceedings F.No.109-7/2002-CSS dated 13.07.2004 and consequent order No.TA/STB/49-19/2004 dated 23.07.2004 on transfer under Rule 38 of P & T Mandal Vol.IV and the condition No.8 in clarificatory order No.25-1/2007-Pers.II dated 02.08.2007 issued in connection with the Limited Internal Competitive Examination (LICE) to be held on 20.11.2007 or on any subsequent date as illegal, arbitrary, violative of the principles of natural justice and of Article 14 & 16 of the Constitution of India and also contrary to Rule 38 of P & T Manual Vol.IV and consequently declare that the petitioners are entitled to appear of LICE to be held on 20.11.2007 or any subsequent date including their service rendered from 15.07.1997 and 29.07.1997 respectively to 23-07-2004 and 31-08-2004 respectively in Delhi in Department of Telecom and in A.P.Telecom Circle under temporary transfer for the purpose of counting 5 years regular service. Counsel for the Petitioners: DR.A.Raghu Kumar Counsel for the Respondents: Sri A.Rajashekar Reddy (ASST SOLICITOR GEN) The Court made the following COMMON ORDER: A common question arises for consideration in all these writ petitions. Hence, they are disposed of through a common order. The petitioners are working as Stenographers in A.P. Circle of Bharat Sanchar Nigam Limited. All of them have been initially working in other Circles, but were transferred to A.P. Circle on various dates. The post superior to that of Stenographer is the Personal Assistant. The appointment to that post is made on the basis of performance of the candidates in the written test (part-A) and skill test (Part-B). While 50% of the vacancies of that post are earmarked exclusively for the category of Stenographers in the Circle, the balance are for the other categories of the employees in the Circle. The third respondent issued a notification, dated 17.05.2007, proposing to conduct the written test for the post of Personal Assistants. On the basis of the relevant rules, it was mentioned that the Stenographers with five years of regular service in the Grade as on 01.07.2007 will be permitted to appear in the test. This was preceded by clarification, dated 02.08.2007, wherein it was mentioned that the cut-off date for calculating the vacancies would be 01.01.2004 and the cut-off date of deciding the eligibility with reference to five years regular service would be 01.01.2006. Another clarification was about the computation of service of the candidates, who were transferred from other Circles under Rule 38 of P & T Manual, Volume-IV. It was mentioned that the regular service must be in the new Circle to which the candidates are transferred and that the service rendered by them in other Circles cannot be reckoned. The petitioners feel aggrieved by the action of the respondents in stipulating the dates as mentioned above with reference to the determination of their eligibility. They contend that though an employee may forego his seniority when he is transferred to another Circle on request, he cannot be denied the benefit of the past service in the context of reckoning the eligibility. It is also stated that the clarification given vide proceedings, dated 02.08.2007, is opposed to the Recruitment Rules of Personal Assistants in the Field Units of B.S.N.L., published in February, 2004 (for short ‘the Recruitment Rules’). The respondents filed a counter-affidavit stating that the Recruitment Rules are silent as to the date, with reference to which the eligibility of Stenographers must be reckoned and the departmental circulars have clarified the same. It is urged that the petitioners themselves have agreed to forego the benefit of seniority in the previous Circles even with reference to the eligibility to appear in the competitive examinations. Heard, Sri Venkateswarlu Posani, Sri Sai Gangadhar Chamarty and Sri Dr.A.Raghu Kumar, the learned counsel for the petitioners and Ms.T.Bala Jayasri, the learned Standing Counsel for the respondents. According to the schedule appended to the Recruitment Rules, the appointment to the post of Personal Assistant is non-selection in nature and holding of written test and skill test appear to be to assess the eligibility of the candidates. That having been done, the appointment would be guided by the seniority of the candidates in the feeder cadre. Two questions arise for consideration on the basis of the submissions made by the petitioners. The first is about the date with reference to which the eligibility of five years standing in the feeder category must be reckoned; and the second is about the insistence on the length of service, being rendered in the Circle at which they are working at present. As regards the first, the Recruitment Rules and its schedule are, no doubt, silent. However, column No.6 of the schedule with reference to the post of Personal Assistant provides ample guidance. It relates to the age limit for the direct recruits. Having stipulated 28 years as the age limit, and relaxing to the extent of five years, in accordance with the instructions, the column reads as under: “The crucial date for determining the age limit shall be the closing date of receipt of application from candidates in India”. The Rule does not put any embargo on the candidates for the purpose of calculating their eligibility. When the Rule is silent as to any specific date for reckoning the five years service, obviously, the date of notification, if not the last date of receipt of applications, must be taken into account. The various clarifications issued by the Department or the Corporate Office cannot defeat the very spirit of the Recruitment Rules. Therefore, whatever may be the justification for the respondents in stipulating a date for reckoning the vacancies, they cannot disable the candidates by stipulating any date anterior to the one on which the notification was published or the one fixed as last date of receipt of the applications. Now, it remains to be seen as to how the insistence on the service being rendered in the same Circle is correct or in accordance with the relevant Rules. Column 12 of the schedule referred to above reads as under: “50% by promotion by Limited Internal Competitive Examination (LICE) from amongst Steno of the respective field cadre with five years regular service in the grade and 50% by separate LICE (Open for internal candidates only) from amongst regular Group ‘C’ and Group ‘D’ employees in the pay scale below the pay scale of 6500-10500 and having required qualifications as prescribed for direct recruitment in column 8 of the schedule, failing which by direct recruitment through examination.” The Rule is clear to the effect that five years of regular service is to be in the “Grade” and it has no reference or relevance to the place at which the individual is working. It is no doubt true that whenever an employee is transferred from one unit to another, he had to forego the benefit of seniority in the previous unit. That, however, is different from indicating that he must forego the benefit of his entire service. It hardly needs any emphasis that the seniority of the employee, in a unit, is totally different from the length of service, which is to his credit. While the former depends upon the place, which they take after transfer, the latter remains constant irrespective of the place where he works. Therefore, the respondents cannot deny to the petitioners, the benefit of service and the insistence of five years of service must be in the Circle, where they are working at present, is not supported by the Recruitment Rules. This view is supported by the judgment of the Hon’ble Supreme Court in RENU MULLICK v UNION OF INDIA. It was held as under: The transferee is to be treated as a new entrant in the collectorate to which he is transferred for the purpose of seniority. It means that the appellant would come up for consideration for promotion as per her turn in the seniority list in the transferee unit and only if she has put in two years service in the category of UDC. But when she is so considered, her past service in the previous collectorate cannot be ignored for the purpose of determining her eligibility as per Rule 4 aforesaid. Her seniority in the previous collectorate is taken away for the purpose of counting her seniority in the new charge but that has no relevance for judging her eligibility for promotion under Rule 4, which is a statutory rule. The eligibility for promotion has to be determined with reference to Rule 4 alone, which prescribes the criteria for eligibility. There is no other way or reading the instructions aforementioned.” Therefore, the petitioners shall be entitled to reckon their services in the ‘Grade’ of Stenographer as opposed to the service in the Circle with reference to the date of notification. The writ petition is accordingly allowed, directing that the respondents shall reckon the eligibility of the petitioners i.e. 5 years of service in the “Grade” and not in the “Circle”, with reference to the date of notification, dated 17.05.2007. There shall be no order as to costs. __________________ L.NARASIMHA REDDY,J Dt:30.04.2008. kdl ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{BMR} The Court made the following : ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{KURR}