THE HON'BLE SMT. JUSTICE T. MEENA KUMARI AND THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA W.P. No.4776 of 2000 AND W.P.No.4779 of 2000 COMMON ORDER: (Per. Hon’ble Smt. Justice T. Meena Kumari) Both these Writ Petitions are filed seeking to quash the common order passed by the Central Administrative Tribunal, Hyderabad Bench, dated 11.11.1999 in O.A.Nos.825 of 1998 and 1405 of 1998 respectively. The case of the respondent, who is the applicant in the aforesaid O.As., is that he was appointed as Telecom Operating Assistant by direct recruitment with effect from 19.11.1980. Subsequently, he appeared and qualified in the competitive examination held on 24th and 25th April, 1990 for promotion to the post of Phone Inspector. Accordingly, he was deputed to undergo Phone Inspector’s theoretical training at Circle Telecom Training Centre, Kakinada, from 28.01.1991 to 26.07.1991 and on completion of the said training, he was deputed for practical training at Telephone Exchange, Bhongir from 26.07.1991 to 28.09.1991. While he was undergoing the said training, a major penalty charge memo dated 10.07.1991 was served on him on 12.07.1991 alleging contributory negligence in the performance of the duties. As a result, he was directed to report as Telecom Operating Assistant (G) in the office of SDOT, Bhongir and accordingly he reported as Telecom Operating Assistant. Thereafter, on 09.09.1992, the 4th respondent informed that the case of the applicant for promotion to the cadre of Phone Inspector will be considered by the DPC as per rules. Since there was no response from the respondents to the representations dated 14.11.1992 and 23.09.1993, the applicant filed O.A.No.1409 of 1993 seeking a direction to the respondents to issue an order promoting him as Phone Inspector notwithstanding the pendency of the charge memo dated 10.07.1991. While the said O.A. was pending, the respondents issued a notification for holding examination on 29.01.1995 for promotion of Phone Inspectors to the cadre of J.T.Os. Then the applicant filed M.A.No.33 of 1995 in O.A.No.1409 of 1993 seeking a direction to the respondents to permit him to appear for the said examination and the same was allowed by the Tribunal by an order dated 25.01.1995 directing the 2nd respondent to allow the applicant for the said examination, but, however, result in regard to the applicant should not be published until further orders. In pursuance of the said order, the applicant was permitted to appear for the said examination held on 29.01.1995. Subsequently, the Tribunal disposed of the said O.A.No.1409 of 1993 by an order dated 26.09.1995 with the following directions: “If the final order is not going to be passed by 31.10.1995, the case of the applicant has to be considered for adhoc promotion as envisaged in clause (iv) of Para 3 of the O.M.No.22011/1/79-Estt. (A) dated 30.1.1982”. Thereafter, the respondent authorities passed final order dated 11.10.1995 on the charge memo dated 10.7.1991/12.7.1991 imposing penalty of withholding the increment due to the applicant on 1.11.1995 for a period of one year. The applicant underwent the said penalty. Subsequently, the applicant was promoted to the cadre of Phone Inspector on 1.11.1996 with effect from the date subsequent to the date of completion of the punishment in accordance with Rule 156 and 157 of P & T Manual Volume-III. Thereafter, the applicant filed O.A.No.825 of 1998 seeking a direction to the respondents to declare the result of the applicant of the examination held on 29.1.1995 for promotion to the post of Junior Telecom Officers cadre with all consequential benefits such as promotion to the post of Junior Telecom Officer, seniority, arrears of pay and allowances etc., if he was found qualified. The Tribunal by an order dated 21.07.1998 disposed of the said O.A.No.825 of 1998 with the following directions: “It would be adequate in the present O.A. to direct the respondents to declare the results of the applicant within two weeks from the date of receipt of a copy of this order. In case he has been successful in the examination the applicant’s claim for future benefits, like training and promotion to the cadre of JTO shall be considered in accordance with rules, and keeping in view the submission recorded in para-4 above, provided he is found eligible for such consideration in all respects. In that event, whatever follow-up action is required, including deputing him on training, shall be taken as per rules. If the applicant is declared to have passed the examination, and if any of his juniors in the feeder cadre, or in the merit list of successful candidates, have already been sent for training, then it shall be necessary for the respondents to send him for similar training in the next batch after this date. If, however, none who is junior to him has been sent for such training, and his turn is yet to come in order of seniority, then he shall be sent in the normal course in his turn. On the contrary, if the applicant is revealed to have not succeeded in the promotional examination, no further action is necessary” Against the aforesaid order, the review application i.e., R.A.No.41 of 1998 filed by the respondent authorities was dismissed. Thereafter, the respondents declared the result of the applicant of the J.T.Os examination held on 29.01.1995 and the 1st respondent by his proceedings dated 16.10.1998 passed the following order: “As Sri B.Alfred (respondent herein) was not promoted to the cadre of Phone Inspector on 29.1.1995 i.e., on the date of qualifying screening test for promotion of PI/AEA/WO/TOA to the cadre of Junior Telecom Officer, and as disciplinary proceedings were pending against him on that date which resulted in awarding a penalty, the official is not eligible for deputation to pre- appointment training to the cadre of Junior Telecom Officer”. The applicant being aggrieved by the aforesaid impugned proceedings dated 16.10.1998 filed O.A.No.1405 of 1998 seeking to declare the Memo dated 16.10.1998 issued by the 1st respondent as illegal and arbitrary. The Tribunal, while admitting the said O.A., on 23.10.1998, granted interim order directing the respondents to relieve the applicant forthwith to enable him to join the pre-appointment training course for promotion to JTO cadre, which is stated to be due to commence on 26.10.1998 at RTCC, Mysore. However, the said direction is subject to the final outcome of the said O.A. and also on a clear understanding that any training that will have been acquired during the pendency of the said O.A shall not confer any automatic or untested right on the applicant and his further service interest in the matter shall have to be determined only on the basis of the result of the said O.A. Thereafter, the respondents filed Writ Petition No.33524 of 1998 challenging the final order dated 21.07.1998 in O.A.No.825 of 1998 and also the order in R.A.No.41 of 1998. They also filed Writ Petition No.30785 of 1998 against the interim order dated 23.10.1998 passed in O.A.No.1405 of 1998. This Court by its common order dated 17.03.1999 disposed of both the writ petitions remitting the cases back to the Tribunal and directing the respondents-Department to file counters in the said O.As. Accordingly the respondents- department filed its replies in both the O.As. Thereafter, the Tribunal disposed of the O.As with the following directions: (1) Both the applications are hereby allowed. The impugned order dated 16.10.1998 is hereby set aside. (2) The respondents shall depute the applicant to the pre-promotional training for the post of JTO forthwith. (3) After completion of the pre-promotional training the respondents shall consider the case of the applicant for posting as JTO as per his seniority in the cadre of phone Inspectors. If any of his juniors have already been promoted to the cadre of JTO, he should be promoted immediately on completion of the pre- promotional training. If not, his case for promotion to the post of JTO shall be considered as per his turn, as per his seniority. The actual position shall be communicated to the applicant. (4) Time for compliance is four months from the date of receipt of a copy of this order. Questioning the aforesaid orders of the Tribunal, the respondents-department filed the present writ petitions. Learned Counsel for the petitioners-department submits that as per the recruitment rules of JTO cadre, both prior to modification of recruitment rules in February, 1996 and after modification in February, 1996, the officials in the cadre of Phone Inspectors/Transmission Assistant/Wireless Operator/Auto Exchange Assistant who have put in 3/5 years of service are eligible to write the 35% quota screening test or examination. She further submits that the respondent herein filed O.A.No.1409 of 1993 before the Tribunal seeking appointment as Phone Inspector pending disciplinary proceedings and that the Tribunal by its order dated 26.09.1995 disposed of the said O.A. directing the department to finalise the disciplinary proceedings by 31.10.1995 and that if the disciplinary proceedings are not finalised by that day, the case of the respondent herein has to be considered for ad-hoc promotion to Phone Inspector cadre. She further submits that the petitioners herein implemented the orders of the Tribunal by passing the final orders in the disciplinary proceedings on 11.10.1995 and the punishment of stoppage of one increment for a period of one year without cumulative effect was imposed on the official. The official did not oppose the orders of the Tribunal and as such the orders have become final. She further submits that the Tribunal while passing the orders in O.A.Nos.825 and 1405 of 1998 did not take into consideration, the condition laid down by the Tribunal in its orders dated 25.01.1995 in M.A.No.33 of 1995 in O.A.No.1409 of 1993. She further submits that the Tribunal in its order dated 11.11.1999 has not taken into consideration the fact that disciplinary proceedings were already challenged before the same Tribunal vide O.A.No.1409 of 1993 and after taking into consideration all aspects of the case, the Tribunal ordered that if final orders are not passed before 31.10.1995, in the disciplinary proceedings, the applicant case for ad-hoc promotion as Phone Inspector has to be considered. The said order of the Tribunal also was not challenged by the respondent herein. Having satisfied with the orders of the Tribunal, the respondent herein cannot question the same again and the Tribunal cannot re-examine the same issue as the same is barred by res judicata. As such he cannot regain his seniority since 1991 and has to be considered as appointed as Phone Inspector on 1.11.1996 only. She further submits that an appeal and the review petition filed by the respondent herein against the disciplinary proceedings have been disposed of upholding the orders of the disciplinary authority and as such the punishment imposed on the respondent also has become final. She further submits that in view of the punishment imposed, the respondent herein was not Phone Inspector on the date of screening test i.e., on 29.01.1995 and as such he is not eligible to write the examination. She further submits that as per Rule 156 (I & II) P & T Manual Volume III if the disciplinary proceedings are pending, the promotion of the respondent cannot be considered and the respondent becomes eligible for consideration for the said promotion only on expiry of the punishment order. As such the respondent was appointed as Phone Inspector on 1.11.1996 after expiry of the punishment order and he becomes eligible to appear for the said screening test on completion of minimum service in the cadre of Phone Inspector to be counted from 1.11.1996. Hence, the petitioners-department prayed that the writ petitions be allowed and the impugned orders be set aside. On the other hand, learned Counsel for the respondent –applicant while supporting the impugned orders passed by the Central Administrative Tribunal submits that the Tribunal, after assessing the entire evidence available on record, rightly allowed the applications filed by the applicant and as such no interference is called for by this Court and that the writ petitions are liable to be dismissed. There is no dispute about the fact that the respondent-applicant joined the department as Telecom Operating Assistant (TOA). While so on the ground that the respondent indulged himself in certain irregularities, disciplinary proceedings were initiated against him. On conclusion of the enquiry, the disciplinary authority imposed the punishment of stoppage of one increment for a period of one year without cumulative effect, which was confirmed in appeal by the appellate authority. However, on expiry of the period of punishment, he was promoted as Phone Inspector with effect from 1.11.1996. In view of the fact that the respondent-applicant was not Phone Inspector as on 29.1.1995, on which date, the screening test was conducted, he was not eligible to be appointed as J.T.O. Even as per Rule 156 (I & II) P & T Manual Volume –III where the disciplinary proceedings are pending against an incumbent, promotion cannot be effected. Admittedly, in the instant case, the disciplinary proceedings were pending against the respondent- applicant as on the date of conducting of screening test; that after conclusion of the enquiry, punishment was imposed against the respondent-applicant and that the said punishment expired on 1.11.1996. Hence, the respondent-applicant was appointed as Phone Inspector and he would be eligible for writing the examination of J.T.Os. only on completion of three/five years, which is the minimum qualifying service. Since the respondent- applicant was not appointed as Phone Inspector as on the date on which the screening test was conducted, he was permitted to write the examination of J.T.O. consequent to the interim orders granted by the Tribunal in M.A.No.33 of 1995 in O.A. No.1409 of 1993 and since the respondent has not completed the minimum qualifying service of three years in the cadre of Phone Inspector, he is not entitled to appear for the screening test. Under the circumstances, we are of the opinion that the Tribunal was not justified in allowing the O.As. through the impugned orders. Accordingly, the Writ Petitions are allowed and the impugned orders dated 11.11.1999 passed by the Central Administrative Tribunal, Hyderabad Bench are hereby quashed. No costs. _______________________ Justice T. Meena Kumari _____________________________ Justice Gopala Krishna Tamada 16.08.2010 Gsn.