IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.07.2008 CORAM THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN AND THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA W.A.NO.1331 of 2007 & M.P.Nos.1 & 2 of 2007 P.Narayanan ... Appellant Vs. Bharat Sanchar Nigam Limited, rep. by its Chief General Manager, Tamil Nadu Telecom Circle, No.80, Anna Salai, Chennai-600 002. ... Respondent For Appellant : Mr.Balan Haridas For Respondent : Mr.S.Udayakumar, S.C.G.S.C., Writ Appeal filed under Clause 15 of the Letters Patent against the order dated 08.10.2007 passed by the learned single Judge in W.P.No.32320 of 2007 to issue a writ of declaration to declare the action of the respondent to conduct the supplementary examination pursuant to the letter dated 26.07.2007 bearing No.RET/301-5/2007 for promotion to the post of Telecom Technical Assistant only for the failed candidates of previous LDCE held on 18.12.2005 as illegal arbitrary and in violation of Articles 14 and 16 of the Constitution of India to conduct fresh selection calling for application from all eligible candidates like the Petitioner for promotion from the post of Telecom Mechanic to Telecom Technical Assistant. JUDGMENT P.P.S.JANARTHANA RAJA.J. The above writ appeal is filed against the order of the learned single Judge dated 08.10.2007 in W.P.No.32320 of 2007. 2. The brief facts are as follows: The appellant joined the service of the Bharat Sanchar Nigam Limited, the respondent herein, as regular Mazdoor on 12.08.1996. Later on, he was promoted as Telecom Mechanic on 30.12.1999. The next avenue of promotion from the post of Telecom Mechanic is to https://hcservices.ecourts.gov.in/hcservices/ the post of Telecom Technical Assistant. He belongs to Scheduled Tribe Community. The eligibility for promotion for the post of Telecom Technical Assistant is as follows: "(a) (i) Telecom Operating Assistant (TOAs) with 5 years regular service holding 10+2 standard certificate or equivalent or (ii) Senior Telecom Operating Assistant (Sr. TOA) with 5 years regular service (including the service rendered as Telecom Operating Assistant) holding 10+2 Standard Certificate or equivalent. (b) Officials working in Telegraph Office i.e. TOA (T), Sr. TOA (T), TOA(TG) & Sr. TOA(TG) are treated on par with the officials of engineering wing and such are eligible. (c) (i) Telecom Mechanic with 5 year regular service in the respective cadres holding 10+2 standard certificate or equivalent and (ii) Technicians, other than Technicians referred to in item A of schedule of Recruitment Rules with 5 years regular service in the respective cadres. (d) Officials of the prescribed cadres employed should not be in higher or same scale than that of TTA." The respondent had called for applications for the post of Telecom Technical Assistant (under 40% quota) which held on 21.08.2005. The notified vacancies for the Scheduled Tribe was 15. As per the above notification, the crucial date for deciding the eligibility for the regular service was 01.07.2004 i.e., the person should have completed five years of regular service in the respective cadre. The appellant was promoted as Telecom Mechanic only on 30.12.1999 and therefore, as on 01.07.2004, the appellant had not put in regular service of five years. In view of the same, the appellant was not called for the written examination. Subsequently, he made several representations to the respondent to consider his case as a special one by relaxing the period of service. But there was no response from the respondent. In the meanwhile, the respondent also called for applications for recruitment by another notification dated 13.12.2006 for the post of Telecom Technical Assistant (under 40% quota) for the year 2006 for the test to be held on 26.03.2007. But the respondent did not proceed with the selection process and due to some unavoidable reasons, no written test was conducted. However, the respondent, by its letter dated 26.07.2007 bearing ref. No.RET/301-5/2007, has called for supplementary examination for https://hcservices.ecourts.gov.in/hcservices/ the recruitment year 2004 and has further stated that all conditions as per the notification for the recruitment year 2004 would apply. It is stated that the above supplementary examination was to be conducted at the instance of the Employees' Union. The said Employees' Union made the representation to the respondent to conduct supplementary examination for the failed candidates with the same conditions prescribed in the notification for the recruitment year 2004 and also it is brought to our notice that a Minutes of the meeting was held on 2nd, 3rd and 5th March, 2007 between the respondent and the Employees' Union and paragraph 6 of the Minutes reads as follows: "6. Conduct Department Examinations, Reduce qualifying service, educational qualification and liberal valuation (allow non 10+2 officials for TTA exam): The staff side demanded that (a) TTA 40% quota exam should be conducted by allowing non 10+2 candidates also as was done on previous occasion. (b) Candidates failed in previous exam should be given another chance. (c) the ensuing exam may be postponed till decision/action on these demands is taken. Sr. DDG (F.Stt) explained that it would not be possible under the provisions of RRs. However, keeping in view the result background of previous LDCE possibility of holding a supplementary exam can be examined to fill the unfilled vacancies for which earlier exam was conducted, only for those candidates who had appeared in the previous LDCE exam and failed. Based upon the outcome of supplementary exam proposal, further course of action shall be decided. As circles are at advanced stage of holding LDCE against 40% quota for the year 2006, if such a possibility is to be explored, it would need immediate postponement of the ongoing process. GS BSNLEU agreed to give a letter in confirmation of this." In view of the above meeting, the respondent has accepted the suggestion of the Union and called for the Supplementary examination. Immediately, the appellant made a representation to the respondent to include his name for attending the supplementary examination. But the respondent has not replied for the same. Therefore, the appellant has filed a writ petition in W.P.No.32320 of 2007 to declare the decision of the respondent to conduct the supplementary examination for promotion from the post of Telecom Mechanic to the post of Telecom Technical Assistant pursuant to the letter dated 26.07.2007 bearing No.RET/301-5/2007 only for the failed candidates of previous LDCE held on 18.12.2005 as illegal, arbitrary and in violation of Article 14 and 16 of the Constitution of India and to conduct fresh selection calling for applications from all eligible candidates like the petitioner for promotion from the Post of Telecom https://hcservices.ecourts.gov.in/hcservices/ Mechanic to Telecom Technical Assistant. When the said writ petition came up on 08.10.2007, the learned single Judge has dismissed the writ petition with the following direction: "2.Though the petitioner has prayed for the above relief, considering the facts and circumstances of the case and in view of the fact that the petitioner has already sent a representation dated 30.08.2007 to the respondent, it would be suffice to direct the respondent to consider the grievance of the petitioner, as put forth by him in his representation dated 30.08.2007, and pass orders on merits and in accordance with law, within four weeks from the date of receipt of a copy of this order." Aggrieved by that order, the appellant has filed the present appeal. 3. Learned counsel appearing for the appellant vehemently contended that the power to call the supplementary examination only for the failed candidates is not found in any Recruitment Rules. He further contended that the conditions prescribed for writing the supplementary examination is that all the conditions prescribed in the notification for the recruitment year 2004 is applicable and hence, it is illegal. Further, in this process, the appellant's claim that his name should be considered for the post of Senior Technical Assistant is curtailed. There would not be any further recruitment for another seven years and thus, the interest of the employees like the appellant, who has subsequently qualified, is at jeopardise. It is also further submitted that the eligibility for consideration of an employee should be based on the date of the selection and not anterior to the same and that when once the selection for the post of Telecom Technical Assistant for the year 2004 was undertaken and the same is over, then for subsequent selection, it should not be restricted only to the failed candidates, which is in violation of Article 14 of the Constitution of India. It is also further submitted that none of the candidates of Scheduled Tribe like the appellant, were qualified for the written test for the recruitment year 2004 and, therefore, the vacancy for the Scheduled Tribe should be carried forward to the subsequent years. The appellant should be allowed to participate in the selection process and failure on the part of the respondent amounts to violation of Article 16 of the Constitution of India. There is no rule under any Recruitment Rules of the respondent to conduct the supplementary examination for the failed candidates alone. In support of his contention, he relied on the decisions of the Supreme Court reported in 1997 (10) Supreme Court Cases, 264( Vice Chancellor, University of Allahabad and others Vs. Dranand Prakash Mishra and others), 2008 (1) Supreme Court Cases (L&S) 21 (S.B.Bhattacharjee Vs. S.D.Majumdar and others) and also this Court Judgment reported in 1967 (1) LLJ page 802 (Vijayarangam Vs. Southern https://hcservices.ecourts.gov.in/hcservices/ Railway (by General Manager) and others). Hence, the order passed by the learned single Judge is not in conformity with law and the same has to be set aside. 4. Learned counsel appearing for the respondent vehemently contended that the respondent called for the supplementary examination only for the candidates, who have failed in the examination conducted on 18.12.2005. The respondent has proposed to conduct the same only at the instance of the Union, which made representation to the respondent. It is also further submitted that since the appellant had not written the examination held on 18.12.2005, he is not eligible for writing the supplementary examination. He further submitted that the writ petition filed by the appellant has been disposed of at the admission stage itself and hence, the respondent has no opportunity to file a counter affidavit. In this appeal, the respondent has filed counter affidavit and also an additional counter affidavit denying all the allegations. The learned counsel appearing for the respondent also relied on the unreported judgment dated 04.04.2008 of the Andhra Pradesh High Court in W.A.No.363 of 2008 relating to its own case wherein the Andhra Pradesh High Court has dismissed the similar claim of the employees of the BSNL. He further submitted that conducting supplementary examination is nothing but the policy of the respondent and hence, this Court should not interfere with the same. Therefore, the learned single Judge is correct in dismissing the writ petition on 08.10.2007 with a direction to the respondent to consider the representation dated 30.08.2007 made by the appellant within a period of four weeks from the date of receipt of a copy of the order. 5. Heard the learned counsel appearing on either side. The appellant belongs to Scheduled Tribe Community and the notified vacancies for Scheduled Tribe is 15. The respondent called for the Limited Departmental Competitive Examination for Telecom Technical Assistants (under 40% quota) for the recruitment year 2004 and the same was conducted on 18.12.2005 in Tamil Nadu. There is no dispute that since the appellant has not completed the prescribed length of five years of service on the cut off date stipulated for that examination, he was not permitted to appear for the Limited Departmental Competitive Examination scheduled to be held on 18.12.2005. In the said examination, most of the candidates were not qualified for promotion. Hence, the Employees' Union requested the respondent to give an opportunity to the failed candidates, who have already appeared for the Limited Departmental Competitive Examination held on 18.12.2005 for filling up of the vacancies. Hence, the respondent, by a letter dated 26.07.2007, called for the supplementary examination for the candidates, who have failed in the examination conducted on 18.12.2005 prescribing the same condition as per the earlier notification. It is clear that the said supplementary examination was to be conducted at the instance of the Employees' Union of the respondent, only for the failed candidates. https://hcservices.ecourts.gov.in/hcservices/ 6. We have gone through the Recruitment Rules of 1998 and 2001. There is no specific clause in the Recruitment Rules to conduct supplementary examination by the respondent. The learned counsel appearing for the respondent has failed to point out any rules, regulations or bye-law enabling the respondent to conduct supplementary examination. Therefore, calling for the applications for conducting supplementary examination is not supported by any rules or bye-laws and it was merely conducted at the instance of the Union of the respondent. In such circumstances, we can safely conclude that as per the Recruitment Rules, the power is not vested with the respondent to conduct the supplementary examination for the failed candidates. It is also seen from the records that no examination was conducted for Limited Departmental Competitive Examination for Telecom Technical Assistants under 40% quota for the recruitment year 2006 due to certain administrative reason. Giving an opportunity to the failed candidates for writing the examination would certainly affect the rights of the appellant. The Recruitment Rules does not contemplate the same. It is not in dispute that the appellant has completed five years of service as on the date of calling for the supplementary examination. The respondent ought to have permitted others also to appear for the supplementary examination, if they are eligible on the date of examination. Even though the appellant has made representation, he was not called for the examination. Therefore, we are of the view that when there are no rules to enable the respondent to conduct the supplementary examination, the respondent ought not to have called for the same. The Supreme Court in this context, in the case of S.B.Bhattacharjee Vs. S.D.Majumdar and others (2008 (1) Supreme Court Cases (L&S) 21) held as follows: "13. Although a person has no fundamental right of promotion in terms of Article 16 of the constitution of India, he has a fundamental right to be considered therefore. An effective and meaningful consideration is postulated thereby. The terms and conditions of service of an employee including his right to be considered for promotion indisputably are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India." 7. In the case of VICE CHANCELLOR, UNIVERSITY OF ALLAHABAD AND OTHERS VS. DR.ANAND PRAKASH MISHRA AND OTHERS (1997) 10 Supreme Court Cases 264), the Supreme Court has held as follows: "11.It is, thus, settled law that the process of selection must be in accordance with the law existing as on the date of selection. Keeping a candidate in the waiting list does not confer any vested right in his favour much less indefeasible right. The appropriate https://hcservices.ecourts.gov.in/hcservices/ appointing authority is not obliged to fill up the vacancies or to appoint any candidate/candidates waiting in the list to any resultant vacancy, due to the operation of law under the Act. The Vice-Chancellor, therefore, was obliged under the Act and vested with duty and right in taking action to have the vacancies notified applying Section 3(1) of the Act for recruitment in accordance with law." 8. This Court in the case of VIJAYARANGAM(T.N.) VS. SOUTHERN RAILWAY (BY GENERAL MANAGER) AND OTHERS (1967 (1) LLJ 802) at page 809 has held as follows: "The policy has the sanction of the President. The General Manager of the Indian Railways carried out the policy, and made even promotions and confirmations. The policy of the Board was working smoothly. But the policy of the Board underwent a drastic change, when the National Federation of Railwaymen intervened in the matter. In fact, the Railway Board explained that the resolution of the federation, were directly recruited for the grain shop and absorbed in alternative posts should be regulated on the basis of their joining the alternative posts, would have an undesirable effect. But the Board yielded to pressure and accepted the resolution and even directed its implementation. The Union was interested only in the welfare of the section of the railway employees. It would be a dangerous policy if the members of the Railway Board allowed themselves to be influenced by pressure tactics of a railway union which is not interested in the general welfare of the employees. In the interests of the country and the railway administration, the Board should evolve a policy which would provide for the smooth and harmonious working of the railway personnel. It was only with this object the Railway Board took the human view that all the personnel of the grain shop department should be absorbed in other departments of the railways and it was provided that the temporary grain shop staff could reckon their period of service in the grain shop department at the time of absorption in the other departments "right from the beginning of service". But yielding to pressure, the Railway Board deviated from their original policy and directed that the staff directly recruited by the head of the grain shop organization could not tack on their period of service in the grain shop department at the time of their absorption in other departments whereas those temporary persons appointed to other departments and https://hcservices.ecourts.gov.in/hcservices/ transferred to the grain shop establishment and those recruited by the Selection Board and kept in the waiting list but subsequently posted to grain shop establishment could reckon their service in the grain shop department at the time of their absorption in the other departments. This is certainly an artificial differentiation in classification." Following the above principles enunciated in the judgments of the Supreme Court as well as this Court, we are of the view that the respondent has no power to call for the supplementary exam for the failed candidates since there is no provision under the Recruitment Rules to enable the respondent to conduct the supplementary examination. Hence, giving one more chance to the failed candidates for attending the supplementary examination for the same year, is arbitrary and in violation of Article 14 of the Constitution of India. Therefore, the applications called for by the respondent for conducting supplementary examination is not justifiable and it is against the Recruitment Rules. 9. The learned counsel appearing for the respondent heavily relied on the judgment of the Andhra Pradesh High Court in W.A.No.363 of 2008 dated 04.04.2008. In that case, W.P.M.P.No.32012 of 2007 in W.P.No.24593 of 2007 has been filed praying that the petitioners may be permitted to appear for supplementary examination for the Limited Departmental Competitive Examination proposed to be held on 03.02.2008 or any other subsequent date and consider their claims for promotion along with other eligible candidates to the post of Telecom Technical Assistants. The learned single Judge has granted permission and directed the BSNL to permit the petitioners to appear for the Limited Departmental Competitive Examination. Aggrieved by that order, BSNL preferred the appeal, in which, the Division Bench of Andhra Pradesh High Court has set aside the order of the learned single Judge and allowed the appeal and held as follows: "Having considered the submissions made and on perusal of the material available on record, we are of the view that admittedly the respondents-writ petitioners have become eligible for the year 2006 was earlier and the examination, which is being conducted for which direction has been given is only supplementary one for those failed candidates, who were found eligible for the earlier year of 2004 and therefore, we do not find any justification for the respondents to seek any such direction for permitting them to appear for the examination. More so, the appellants have already initiated proceedings of conducting examination on 11.03.2007 for such of those eligible in the year 2006. Learned Standing Counsel submitted that such examination https://hcservices.ecourts.gov.in/hcservices/ has been postponed due to the interim order in those proceedings, and now, a fresh date will be given for such examination where the respondents can appear. Recording the same, we do not find any merits in the submissions made by the writ petitioners and the directions given by the learned single Judge is wholly unsustainable." From reading of the above, it is clear that the Andhra Pradesh High Court has not considered the following relevant issues: "(i) whether the BSNL has power to call for the applications for supplementary examination for the failed candidates alone or not? (ii)Giving one more opportunity to the failed candidates would affect the rights of the others." Without considering the same, the Andhra Pradesh High Court merely held that the writ petitioners are not eligible to write the supplementary examination for the year 2004 since they have already become eligible for the examination for the year 2006. In view of above with respect to the learned Judges, we are not in agreement with the said judgment. 10. There is no provision in the Recruitment Rules of BSNL giving power to the respondent to conduct the supplementary examination. In the absence of any specific power or explanation or provision under the Rules or regulations, the BSNL has no right to call for the supplementary examination. Hence, for the foregoing reasons, we are of the view that calling for applications from the failed candidates for the supplementary examination by the respondent in pursuance of the letter dated 26.07.2007 bearing No.RET/301-5/2007 for promotion to the post of Telecom Technical Assistant is illegal and wrong and therefore, it is liable to be quashed and accordingly, the same is quashed. The order of the learned single Judge is set aside and the writ appeal is allowed. No costs. Consequently, M.P.Nos.1 and 2 of 2007 are closed. Sd/ Asst. Registrar /true copy/ Sub Asst. Registrar raa https://hcservices.ecourts.gov.in/hcservices/ To 1) The Chief General Manager, Bharat Sanchar Nigam Limited, Tamil Nadu Telecom Circle, No.80, Annasalai, Chennai-600 002. +1 cc to Mr.K. Balan Haridas, Advocate, SR.No.36267 +1 cc to Mr.S.Udayakumar, S.C.G.S.C., SR.No.36544 Judgment in W.A.No.1331 of 2007 SGL (CO) SMK/24.7.08 https://hcservices.ecourts.gov.in/hcservices/