IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09 - 9 - 2011 CORAM THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO and THE HONOURABLE MR. JUSTICE M. VENUGOPAL Writ Petition Nos. 28269 and 28270 of 2010 1. The Chief General Manager Bharat Sanchar Nigam Limited Tamil Nadu Circle No. 80, Anna Salai Chennai – 2 2. The Chairman & Managing Director Bharat Sanchar Nigam Limited Corporate Office Harish Chandra Mathur Lane Janapath New Delhi ... Petitioners in both W.Ps. Vs 1. Prema Govindarajan 2. V. Athigaman 3. S. Girija 4. K.R. Ravinarayanan 5. Surekha Naresh 6. N.P. Naganathan 7. S.R. Jayanthi 8. B. Banurekha 9. S.R. Jayanthi 10. N. Nagarajan 11. R. Jayashree 12. T. Ramachandran 13. Kalavathy Mohan 14. S. Vidya 15. B. Kalaiselvi 16. V. Ramaa 17. J. Sasikala 18. G. Prema 19. A. Priyavadhani 20. V. Savithri 21. The Registrar Central Administrative Tribunal Madras Bench, City Civil Court Building, Chennai-600 104. .. Respondents in both W.Ps. https://hcservices.ecourts.gov.in/hcservices/ Petitions filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari calling for the records of the 21st respondent made in T.A. Nos. 70 of 2009 and 71 of 2009 respectively dated 07.4.2010 and quash the same. For Petitioners : Mr. S. Udayakumar, SCCG For RR 1 to 16 : Mr. Karthik For RR 17 to 20 : No appearance COMMON ORDER (made by ELIPE DHARMA RAO, J.) The Bharat Sanchar Nigam Limited has come with the present writ petitions aggrieved by the common order dated 07.4.2010 passed by the Central Administrative Tribunal, Madras Bench, Chennai, (in short "the Tribunal"), whereunder the Original Applications filed by the Respondents were disposed of with a direction to fill up the vacancies as per the old Recruitment Rules. 2. Since the issue involved in these two writ petitions are inter-connected and the parties are same, they are heard together and disposed of by this common judgment. 3. The facts leading to filing of the Original Applications and the writ petitions, in brief, are as follows :- The respondents are working as Stenographers in Bharat Sanchar Nigam Ltd (BSNL). There are four grades in Stenographers cadre viz., Stenographer Grade-III, Stenographer Grade-II, Stenographer Grade-I and Senior PA. Stenographer Grade III is the feeder cadre and promotions were made on the basis of seniority-cum-fitness method to the next higher grade till 31.12.2003. The Posts would be filled up by convening DPC Meetings. According to the respondents, promotion has to be given first in the cadre of Senior PA from the post of Grade-I Stenographer, thereby the vacancy created in the Grade-I would be filled from Grade II and the vacancy arose in Grade II would be filled from among Grade III Stenographers. This is a chain of process of promotion from one grade to the other. While so, promotions were made to the post of Grade-I from Grade-II stenographers on 06.2.2004 without considering the vacancies in the cadre of Senior PA. On 17.02.2004, 7 Grade-I stenographers were promoted to Senior PA. However, no DPC was convened to fill up the vacancies in Grade II and Grade III from 2000 till 2002. While the matter stood thus, restructuring of Stenographers cadre and re- designation were made by the BSNL vide order dated 20.02.2004 and, in accordance with the new Rules after restructuring, issued the impugned notifications dated 22.8.2007 to conduct Limited Internal Competitive Examination for promotion to the grade of PA and to fill https://hcservices.ecourts.gov.in/hcservices/ up the post of stenographers. The grievance of the respondents is that without filling the vacancies as on 31.12.2003, the BSNL ought not to have issued the impugned notifications. 4. The Tribunal, while considering the Original Applications challenging the impugned notifications dated 22.8.2007, directed to fill up the vacancies, which arose prior to 31.12.2003 in the cadre of Senior PA from among the eligible candidates and thereafter the resultant vacancies as per the old Rules. This direction is under challenge in the present writ petitions at the instance of BSNL. 5. Learned Standing Counsel for the petitioners submitted that while filling up the vacancies, initially, the vacancies in the lower category were filled subsequent to the filling up of vacancies in the higher category and hence, the finding of the Tribunal that promotions were given in the reverse manner is not correct. He further submitted that the resultant vacancies in Grade II were about to be filled up during 2004 by which time the restructuring orders have been received and, therefore, the notifications were issued as per the new Rules. He further submitted that since the respondents have failed to challenge the Recruitment Rules which came into force from 01.4.2004, they have no right to question the notifications dated 22.8.2007. 6. Learned counsel also submitted that once the Recruitment Rules were framed restructuring the cadre and reducing the length of service from 7 years to 5 years, the decision of the Department is correct. In this regard he placed reliance on the decision of the Hon'ble Supreme Court in High Court of Delhi and another v. A.K. Mahajan and others [(2009) 12 SCC 62]. 7. Learned counsel for the Respondents submitted that since the vacancies were not filled up from the higher category to the lower category, the Tribunal had observed that promotions were made in a reverse manner and, therefore, a positive direction was given to fill up the posts as per the old Rules in consonance with the decision of the Supreme Court in Arjun Singh Rathore and others v. B.N. Chaturvedi and others [(2007) 11 SCC 605]. He also submitted that the vacancies which had arisen in the relevant year have to be filled up at the end of that year by holding DPC and the vacancies arose in one particular year should not be carried on to the next year. In this regard, he sought the support from the decision of the Supreme Court reported in Union of India and others v. N.R. Banerjee and others [(1997) 9 SCC 287]. 8. He further submitted that the SC candidates cannot made senior over the OC candidates, for which he relied on the decision of the Supreme Court in Shiv Nath Prasad v. Saran Pal Jeet Singh Tulsi and others [(2008) 3 SCC 80]. 9. The short question which falls for consideration in these writ petitions is as to whether the vacancies which had arisen prior to 31.12.2003 are to be filled up by the old Rules or the new Rules ? https://hcservices.ecourts.gov.in/hcservices/ 10. The aforesaid question has been substantially answered by the Hon'ble Supreme Court in Arjun Singh Rathore and others v. B.N. Chaturvedi and others [(2007) 11 SCC 605]. The facts of the aforesaid case are as under: On 28-9-1988, the Department of Economic Affairs (Banking Division), Ministry of Finance, Government of India, after consultation with National Bank for Agriculture and Rural Development and in exercise of the powers conferred by Section 29 of the Regional Rural Banks Act, 1976 notified the Regional Rural Banks (Appointment and Promotion of Officers and Other Employees) Rules, 1988 (hereinafter called “the Rules of 1988”) which came into force w.e.f. 28-9-1988. The Second Schedule of these Rules provided for the mode of appointment to different categories of officers. The appellants before the Apex Court fell in Category 6 whereas Category 7 dealt with the appointment of Area Managers or Senior Managers by promotion of officers from Category 6 and inter alia provided that all the vacancies were to be filled in by promotion from qualified and eligible persons working in the Bank and that the mode of selection would be interview and assessment of performance reports for the preceding three years' period. The Board of Directors of the respondent Kshetriya Gramin Bank adopted the Rules in a meeting held on 26-9-1988. It is the case of the appellants that by the first day of April, 1999, 15 posts in all had become available for promotion under Category 7 as no appointments had, in fact, been made for several years. While the vacancies still existed, the Rules of 1998 were framed and published in the Official Gazette on 29-7-1998. The Board of Directors of Kshetriya Bank adopted these Rules and issued a Circular dated 15-5-1999 conveying the information that the Rules of 1988 had been superseded and that henceforth the Rules of 1998 alone would form the basis for promotion, etc.. Bank of Baroda which was the sponsoring Bank under the Regional Rural Banks Act of 1976 thereafter made an enquiry from the quarters concerned and on 15-10-1999 addressed a letter to the Regional Rural Banks that in view of the judgment of the Supreme Court in State of Rajasthan v. R. Dayal, “any post which had fallen vacant prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules” and in order to make matters more explicit repeated the directive by reiterating that the “posts which fell vacant prior to the publication of the amended Rules i.e. Rules of 1998 would be governed by the old Promotion Rules and not by the amended Rules”. The respondent, Kshetriya Bank thereupon issued a Circular dated 13-6-2000 directing that all the vacancies which were available as on 31-3-1998 be filled in under the Rules of 1988. 15 persons, the appellants herein, were thereafter interviewed on 18-9-2000 and were found fit for promotion and the said list was also approved by the Board of Directors and all 15 appellants were accordingly promoted to Scale II under order dated 18-9-2000. Respondents 1 to 5 herein however preferred a joint Writ Petition No. 3641 of 2000 in the High Court which was dismissed by the learned Single Judge on 25- https://hcservices.ecourts.gov.in/hcservices/ 9-2002 vide judgment appended as Annexure P-2. An appeal was thereafter taken to a Division Bench which reversed the order of the Single Judge thus allowing the writ petition and directing that the promotions and the Circulars dated 13-6-2000 and 18-9- 2000 respectively be quashed and further directing Kshetriya Bank to make the promotions of Scale II officers as per the Rules of 1998. It is in this circumstance the Special Leave Petition came before the Apex Court. 11. While considering the contention with regard to filling up of vacancies arose under the old Rules, the Apex Court relied on an earlier decision in Y.V.Rangaiah v. J. Sreenivasa Rao [(1983) 3 SCC 284], wherein it was held as follows :- “8. … This Court has specifically laid (sic) that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in in accordance with the law existing as on the date when the vacancies arose.” 12. Keeping in view the aforesaid decision, the Apex Court ultimately, in paragraph 6 of the judgment observed as follows :- "The above legal position has not been seriously disputed by the learned counsel for Respondents 6 and 7. We are therefore of the opinion that the vacancies which had occurred prior to the enforcement of the Rules of 1998 had to be filled in under the Rules of 1988 and as per the procedure laid down therein. We are therefore of the opinion that the judgment of the learned Single Judge needs to be restored. We order accordingly." 13. The aforesaid decision makes it clear that the vacancies which had occurred prior to the enforcement of the Rules in 2004 had to be filled in under the old Rules. 14. The allied question which arises for consideration is whether the convening of DPC has to be done every year or it can be conducted as to the convenience of the Department. 15. In the present case, according to the respondents, for promotion to Grade-II Stenographers, no DPC had been convened from 2000 till 2003. https://hcservices.ecourts.gov.in/hcservices/ 16. The methodology in convening the DPC has been elaborately considered by the Hon'ble Apex Court N.R.Banerjee's case (cited supra) in the following words:- "6. DPCs should be convened every year, if necessary, on a fixed date, i.e. 1st of April or May. In the middle of the para, by way of amendment brought on 13-5-1995, it postulates that very often action for holding DPC meeting is initiated after the vacancy has arisen. This results in undue delay in filling up of vacancies and causes dissatisfaction among those who are eligible for promotion. It may be indicated that regular meeting of DPC should be held every year for each category of posts so that approved select panel is available in advance for making promotions against vacancies arising every year. Under para 3.2, the requirement of convening annual meetings of the DPC should be dispensed with only after a certificate has been issued by the appointing authority that there are no vacancies to be filled by promotion or no officers are due for confirmation during the year in question. It would, thus, be seen that DPCs are required to sit every year, regularly on or before 1st April or 1st May of the year to fill up the vacancies likely to arise in the year for being filled up. The required material should be collected in advance and merit list finalised by the appointing authorities and placed before the DPCs for consideration. This requirement can be dispensed with only after a certificate is issued by the appointing authority that there are no vacancies to be filled by promotion, or that no officers are due for confirmation, during the year in question." 17. It has to be seen whether the aforesaid decisions have any applicability to the facts of the present case. From the information sought by the respondents under the Right to Information Act and the particulars given by the respondents in their additional counter, it is seen that as on 31.12.2003, no promotion had taken place during the year 2003 and for Grade II stenographers, 10 posts were vacant. This vacancy position and the fact of posts lying vacant before 2003 is not seriously disputed by the BSNL. Therefore, by applying the principle laid down in Arjun Singh Rathore's case (cited supra), it has to be held that the vacancies which had arisen prior to 31.12.2003 have to be filled up as per the old Rules in force and not as per the new Rules which came into force with effect from 01.4.2004. As the Tribunal has rightly held that the vacancies have to be filled up by following the old Rules, we have no hesitation in rejecting the contention of the petitioners in this regard. 18. While filling up the posts by convening the DPC, the Department has to bear in mind the methodology evolved in the decision of the Supreme Court in N.R.Banerjee's case. Further, the decision of the Supreme Court in Shiv Nath Prasad's case (cited https://hcservices.ecourts.gov.in/hcservices/ supra), relied on by the learned counsel for the respondents, relating to promotion of General candidates over Scheduled Castes candidates should also be kept in mind. 19. Learned Standing Counsel representing the Department has vehemently relied on the decision of the Hon'ble Supreme Court in High Court of Delhi and another v. A.K. Mahajan and others [(2009) 12 SCC 62] in order to contend that the new Rules have to be taken into consideration, though the vacancies had occurred before the coming into existence of the new Rules. He relied on paragraph 41 of the aforesaid decision which reads as follows:- "41. In the decision in N.T. Devin Katti v. Karnataka Public Service Commission7 the Court was considering the right of the candidates to be considered. The question in that case was that as to which Rules were applicable, particularly, when there were amendments in the Rules after the advertisement was issued. The Court clearly held that under such circumstances, normally the existing Rules on the date of advertisement would be applicable, however, if there is an amendment in the Rule with retrospective effect, then it would be the amended Rules, which would be applicable. The Court observed that it was on the date of the advertisement that the right of the candidate crystallises. However, the Court observed that he had no absolute right in the matter." 20. With respect, the aforesaid decision is not applicable to the facts of the present case inasmuch as in the said case the new Rule which was brought into existence had retrospective operation, whereas, in the present case, such retrospective operation was not there and it was also not the case of the petitioners that the new Rules of 2004 has retrospective effect. Therefore, the decision relied on by the learned Standing Counsel in A.K. Mahajan's case is not applicable to the facts of the present case. 21. Further, the other decision of the Hon'ble Supreme Court relied on by the learned Standing Counsel in C.A. No. 1405 of 2007 dated 15.4.2011 is also not applicable to the facts of the present case as the subject matter in that case is with regard to promotion of persons worked on officiating basis, whereas, in the case on hand, the respondents are not working on officiating basis. 22. Considering the above and following the judgments referred to by the learned counsel for the respondents, though DPC was conducted for promotion of PA from Stenographer Grade I and for promotion of Stenographer Grade I from Stenographer Grade II, not conducting DPC for promotion of Stenographer Grade II from Stenographer Grade III is illegal, arbitrary and detrimental to the interest of the respondents. In the absence of any answer except saying restructuring, which was not in operation as on 31.12.2003, the respondents are entitled to the relief granted by the Tribunal https://hcservices.ecourts.gov.in/hcservices/ for promotion to the existing vacancies and chain of vacancies arose due to promotion of persons to PA from Grade I and to Grade I from Grade II respectively on or before 31.12.2003. Though the learned Standing Counsel for the petitioners submitted that there are two regular vacancies meant for OC candidates, as per the information received under RTI Act, there are 18 vacancies. 23. With regard above said disputed question of fact, we consider it appropriate that it has to be decided in the presence of the respondents for effecting promotion, after constituting DPC to fill up the existing vacancies and chain of vacancies for promotion to Stenographer Grade II from Stenographer Grade III as admitted by the learned cousnel representing the Department and pass appropriate orders. The authorities are directed to complete the said exercise within a period of eight weeks from the date of receipt of a copy of this order. The Writ Petitions are disposed of accordingly. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar gri To The Registrar Central Administrative Tribunal Madras Bench, City Civil Court Building, Chennai. + 1 cc to Mr. Karthik, Advocate Sr.56634 + 1 cc to Mr.S. Udayakumar, SR.56199 W.P. Nos. 28269 and 28270 of 2010 SS(CO) eu 27.9.11 https://hcservices.ecourts.gov.in/hcservices/