*THE HON’BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NOS : 20503 OF 2005 & 7443 OF 2008 % 02.07.2008 WRIT PETITION NO : 20503 OF 2005 Between: # Kumanduri Indira and others. …Petitioners And $ BSNL, rep by its Chairman and Managing Director and another. …Respondents ! COUNSEL FOR PETITIONER: Sri J.Sudheer ^ COUNSEL FOR RESPONDENTS: Smt C.Vani Reddy WRIT PETITION NO : 7443 OF 2008 # G.N.Mani Ravinder and others. …Petitioners And $ BSNL, rep by its Chairman and Managing Director and another. …Respondents ! COUNSEL FOR PETITIONER: Sri Sanka Rama Krishna Rao ^ COUNSEL FOR RESPONDENTS: Smt C.Vani Reddy < Gist: > Head Note: ? CITATIONS: IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SECOND DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION Nos : 20503 OF 2005 & 7443 OF 2008 WRIT PETITION NO : 20503 of 2005 Between: 1 Kumanduri Indira D/o K.S.V.V. G. Krishnamma charyulu (Official Language (Officating), O/o The Principal General Manager Hyderabad Telecom District,BSNL, Suryalok Complex, Gunfoundary, Hyderabad R/o 12-2-725, P&T Colony Rethi Bowli, Hyderabad 2 G.N. Mani Ravinder W/o Gaddam Ravinder (Official Language (Officiating) O/o The Chief General Manager, A.P. Cirlce, Doorsanchar Bhavan Abids, Hyderabad R/o 1-1-300/A/B, 1st Floor, Ashokngar Chikkadpally, Hyderaba 3 S. Venkat Ratnam D/o Late S. Venkateswarlu O/o The GMTC., Visakhaptnam R/o Visakhapatnam 4 N. Kunthi Devi W/o N. Madhu (Official Language (Officeiating) O/o GMTD., Mahaboobnagar, BSNL bhavan, Mahaboobnagar R/o Flat No. 103, I-Floor, Plot No. 1,12/13/588-A/25, STreet No. 14, Nagarjuna Nagar, Tarnaka, Secunderabad 5 B. Viswanadhachari S/o B. Balakrishna Chari (Official Language), Officiting), O/o The General Manager, Telecom District, West Godavari Eluru, R/o 7A-14-10/5, Sivaiah Badi Lane, Easter Street, Eluru 6 K. jayaprada Reddy D/o K. Tirupathaiah Director (Official Language) (OFficating) O/o the General Manager, Telecom District, BSNL Bhavan, Machavaram, Vijayawada, R/o 54-19-8/1B II-Lane, Jayaprakashnagar, Vijayawada 7 B. Geeta Srinivas S/o B. Krishna Rao (Official Language) (Officiating) O/o The General Manager, Telecom District, Ramnagar, BSNL, Ongole r/o 21-8-25, Subbaraju Street, Mutyalampadu, Vijayawada 8 K. Kamala W/o Y. Premnath O/o The General Manager (Projects), BSNL, Himayatnagar R/o Hyderabad 9 P. Sarojini D/o Late P. Nagaraju (official Language) (Officiating) O/o The General manager, Telecom District, BSNL, Vizianagaram R/o 50-121-18, Balaji Hills, Balayya sastry Layout Visakhapatnam 10 P. Kamala W/o Subhash Damle O/o The PGM HTD BSNL, Suryalok Complex Hyderabad R/o 12-11- 1267, Bouddha Nagar Secunderabad ..... PETITIONER(S) AND 1 Bharat Sanchar Nigam Limited rep by Chairman and Managing Director, BSNL Corporate Office, 102B, Statesman House 148, Bara Khamba Road, New Delhi-1 2 The Chief General Manager, Andhra Pradesh Telecom Circle, Door Sanchar Bhavan, Nampally Station Road, Abids, Hyderabad .....RESPONDENT(S) 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 a Writ, Order or direction(s) essentially in the nature ofWrit of Mandamus; a) Direct the Respondents herein to promote the petitioners herein as Hindi Officers/Assistant Directors (Official Language) Now redesignated as Raj Bhasha Adhikari with effect from the avaliability of vacancy and eligibility in accordance in the then existing law i.e. Instructions dated: 28-04-1994 with all consequentialbenefits and attendant benefits; b) Alternatively Direct the Respondnets herein to consider the case ofthe petitioenrs herein for promotion to the post of Hindi Officers/Assistant Directors (Official languagea0 now re-designated as Raj Bhasha Adhikari in accordance with 2002 Rules contained in F.No. 22-35/2001-pers-II, dated 424-12-2002 bysetting aside that portion of Rule which prescribes 8 years of service int he cadre of Hindi Translator Grade-II for promotion to the post of Assistant Director (Official Language) as bad, illegal arbitrary, discriminatory, irrational and unconstitutional; c) Direct the Respondents herein not to insist upon thepetitioenrs herein to appear for limited internal Competitive Examination (LICE) under 2005 Rules contained in No. 22-35/2001-Pers. II, dated 05-08-2005 d) Declare the Rules contained in No. 22-35/2001- Pers.II dated 05-08-2005 in so far as prescribing Limited Internal Competitive Examination (LICE) Test for promotion tot he post of Raj Bhasha Adhikari in so far as the petitioenrs herein are concerned and contemplating to fill up the said post by direct recruitment in the event ofnon-availability of qualified candidates as bad illegal, arbitrary, Lrrational, discriminatory and violative of Articles 14 and 15 of the Constitution of India; and pass any such otherorder or orders as this Hon'ble Court may deem fit proper and necessary int he circumstances of the case. Counsel for the Petitioner:MR.J.SUDHEER Counsel for the Respondent No.: SMT.C.VANI REDDY WRIT PETITION NO : 7443 of 2008 Between: 1 G.N. Mani Ravinder, W/o. Gaddam Ravinder, Rajabhasha Adhikari (Officiating), O/o. The Chief General Manager, A.P. Circle, Door Sanchar Bhavan, Abids, Hyderabad, R/o. H.No. 1-1-300/A/B, 1st Floor, Ashoknagr, Chikkadpally, Hyderabad - 500 020. 2 S. Venkat Ratnam, D/o. Late S. Venakateswarlu, Rajabhasha Adhikari (Officiating), O/o. The G.M.T.D, Visakhapatnam, R/o. Visakhapatnam. 3 N. Kunthi Devi, W/o. N. Madhu, Rajabhasha Adhikari (Officiating), O/o. The G.M.T.D., Mahaboobnagar, R/o. Flat No.103, 1st Floor, Plot No. 1, 12/13/533-A/25, Street No. 14, Nagarjuna Nagar, Tarnaka, Secunderabad - 500 017. 4 P. Sarojini, D/o. Late P. Nagaraju, Rajabhasha Adhikari (Officiating), O/o. The G.M.T.D, Vizianagaram, R/o. 50-121-18, Balaji Hills, Balayya Sastry Layout, Vizianagaram, R/o. 5-121-18, Balaji Hills, Balayya Sastry Layout, Vizag-53 ..... PETITIONER(S) AND 1 The Secretary to the Ministry of Communications, Department of Telecommunicatins, Sanchar Bhavan, 20, Ashoka Road, New Delhi - 100 001. 2 The Bharat Sanchar Nigam Limited, Rep. by its Chairman & Managing Director, B.S.N.L. Corporate Office, 102 B, Statesman House, 148, Barakhamba Road, New Dehi. 3 The Chief General Manager, Bharat Sanchar Nigam Limited, A.P. Telecom Circle, Door Sanchar Bhavan, Nampally Station Road, Abids, Hyderabad. .....RESPONDENT(S) 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 to issue a Writ or Orderor direction more particularly one in the nature of Writ of Mandamus, or any other appropriate Writ, order or Direction, directing the Respondents to consider the cases of the petitioners herein to promote them to the cadre of Raj Bhasha Adhikari on the basis of seniority-cum-fitness as per rules prevailing at the time the petitioners were due for such promotin duly setting aside the unconscionable condition of subjecting the petitioners to the Limited Internal Competitive Examination and set aside the panel of selected candidates issued vide Memo No. TA/RF/40-5/05/Conf./29, dated 26-03- 2008 pursuanct to the examination conducted in violation of interim orders of the Hon'ble Court in WPMP NO. 26154/2005 in WP No. 20503/2005, declaring the same as arbitrary, illegal, unwarranted, misconvceived and inviolation of Articles 14 and 16 of the Constitution of India, in the interest of justice, and be pleased to pass Counsel for the Petitioner:MR.SANKA RAMAKRISHANA RAO Counsel for the Respondent No.: MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) The Court made the following : THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION Nos : 20503 OF 2005 & 7443 OF 2008 COMMON ORDER: The step motherly treatment given to the experts in languages appears to be all pervasive. If the popularity of the Indian languages is on the decline, it is not without reason. These two writ petitions present a part of the scenario. The Department of Telecommunications thought it fit to have a separate wing or establishment for promotion of Hindi Language. The posts, such as Hindi Translator Grade-I, II and III, were created. The next higher post was Hindi Officer. The petitioners herein were appointed as Hindi Translators in different grades. Administrative Orders were issued, from time to time, stipulating the guidelines for promotion to the higher post. One such order was issued on 28.04.1994, which provided that Hindi Translators Grade-I, II and III, shall be entitled to be promoted automatically to the post of Hindi Officer, on completion of 3, 5, and 8 years of service respectively. Even before the petitioners were extended the benefit of promotion under the Administrative Order, dated 28.04.1994, the then Department of Telecommunications framed Statutory Rules on 24.12.2002 (for short ‘2002 Rules’). The post of ‘Hindi Officer’ was re-designated as ‘Assistant Director (Official Language)’. Promotion of Hindi Translators to higher post, was paid special attention and it was clearly mentioned that irrespective of the ratio between direct recruitment and promotion, all the 120 vacancies shall be filled, by promoting the eligible Hindi Translators. None of the petitioners was extended the benefit under these Rules. Then came, the new set of Statutory Rules, dated 05.08.2005 (for short ‘2005 Rules’). Under these Rules, the post of ‘Assistant Director (Official Language)’ was renamed as ‘Rajbhasha Adhikari’. A written test was prescribed for evaluating the eligibility for promotion. A further condition was added to the effect that in case, adequate number of candidates are not available for promotion, the corresponding vacancies shall be made available for direct recruitment. The petitioners feel aggrieved by the various conditions incorporated in 2005 Rules. The respondents filed a counter affidavit, admitting the sequence of events, referred to above. The justification pleaded by them for not promoting the petitioners under 2002 Rules is that the Finance Wing of the Department has taken objection for implementation thereof. It is also stated that the petitioners have to attend the examination, for being promoted to the higher post. Sri J.Sudheer and Sri Sanka Rama Krishna Rao, learned counsel appearing for the writ petitioners submit that ever since 1994, the petitioners have been subjected to gross injustice, by denying the benefit under the relevant provisions of law. They contend that the time bound promotion under the Administrative Order, dated 28.04.1994, as well as the automatic promotion under 2002 Rules were denied to the petitioners, without any basis. They contend that 2005 Rules, at the most, could have prospective effect and the rights, which have accrued to the employees, cannot be denied by making rules at a subsequent stage Smt. C.Vani Reddy, learned Standing Counsel for the respondents, on the other hand, submits that the petitioners do not have any fundamental right to be promoted. She contends that they have to comply with the conditions, that are stipulated under the relevant rules, from time to time. Reiterating the contents of the counter affidavit, learned counsel submits that though a provision was made under the earlier set of rules for promotion, it was not implemented for various reasons. The petitioners were appointed as Hindi Translators at various points of time, under different grades. It has already been mentioned that the next higher post used to be Hindi Officer. Several vacancies existed in that category and almost all the petitioners are officiating against the superior posts, on being qualified. Administrative Order, dated 28.04.1994, reads as under: “The post of Hindi Officer may be filed up from amongst the cadre of Hindi Translator Grade-I/Grade- II/Grade-III with 3/5/8 years service in the respective grades in the Circle/District concerned failing which the posts may be filled up from amongst all Group ‘C’ cadres based on the length of service in the grade possessing the education other qualifications prescribed for direct recruits in 7 of the Recruitment Rules.” It is well recognized that mere existence of a vacancy does not confer a right on the incumbent, to be promoted. Where, however, the rules themselves provide for promotion, on completion of a particular length of service, a valid right accrues to the employee. In the case of time bound promotions, neither one has to wait for the occurrence of the vacancy nor the conducting of any qualifying test. Such of the petitioners, who have completed the requisite length of service, ought to have been promoted, in accordance with the Administrative Order, dated 28.04.1994. The respondents do not appear to have taken the Language Wing, with the required amount of seriousness. Had they paid a fraction of attention on conferring temporary status on qualified persons or effecting promotions on technical side, even beyond the approved strength, the petitioners would not have been subjected to such a horrible plight. The respondents framed 2002 Rules. Normally, the service rules prescribe the relevant guidelines and leave the matter to be operated over the time. 2002 Rules paid special attention to the Hindi Translators and provided the mechanism for promotion also. The post of ‘Hindi Officer’ was re-designated as ‘Assistant Director (Official Language)’. Rule 10(3) of 2002 Rules reads as under: “There are many Sr. Hindi Translators/Jr. Hindi Translators and Group “C” officials who have been given adhoc promotions to the grade of AD(OL) in field formations of BSNL. In order to avoid legal and administrative complications as a one time measure, it is provided that all the vacancies in the grade of AD(OL) in the first year of recruitment, irrespective of vacancies earmarked for promotional quota or direct quota, shall be filled up by promotion on seniority-cum- fitness basis, by following due procedures, amongst those officials who have been officiating as AD(OL) in BSNL subject to their fulfilling the basic qualifications and experiences as prescribed in column 12 of the Schedule annexed to these Rules.” The Rule making authority recognized the gravity and urgency. However, no sincere attempt to enforce this rule was made. Almost all the petitioners were officiating against the superior posts since several years. A formal order of promotion of the petitioners would have served the purpose. The official apathy continued. Though the rule had recognized the extraordinary situation and even provided for filling up of the vacancies earmarked for direct recruitment by way of promotion, not a single promotion was effected and all the petitioners had to languish in their earlier position. Hardly within three years, Rules of 2005 were brought into existence with effect from 05.08.2005. These Rules virtually dealt a fatal blow to the petitioners in the context of their promotion. The post was renamed as “Rajabhasha Adhikari” and the promotion was subjected to the following conditions: “Promotion by Limited Internal Competitive Examination (LICE) for Sr.Hindi Translators with 3 years regular service including service rendered as Hindi Translator Grade-I (redesignated as Sr. Hindi Translator), Jr. Hindi Translator with 5 years regular service including service rendered as Hindi Translator Grade-II & III (redesignated as Jr.Hindi Translator): Group-C officials (non-executives) of BSNL who are working/have worked as Assistant Director (OL)/Rajabhasha Adhikari on local officiating/adhoc basis for 5 years.” It is always the prerogative of an employer to frame service rules from time to time. One recognized principle, however, is that the accrued rights of an employee cannot be taken away by enactment of a fresh set of rules. It can safely be observed that a valid right had accrued to the petitioners to be promoted, be it, under the Administrative Order of 1994, or 2002 Rules. It is not as if they were required to undergo any test or to acquire any further qualifications under those Rules. While the promotion under the former was time bound, the one under the latter was almost automatic. The fact that the petitioners were already officiating against the superior posts must have made the task of the respondents easy, just to put a seal of approval on existing position. However, on one pretext or the other, the respondents delayed and denied promotions to the petitioners and later on, created such a condition, as to make the chance of their promotion almost a nightmare. This Court does not approve such a conduct on the part of the respondents. The test prescribed under the Rules of 2005, or the consequences of non-availability of candidates for promotion do not apply to the petitioners. The writ petitions are, accordingly, allowed, and it is directed that the respondents shall consider the cases of the petitioners for promotion, without reference to the test prescribed under 2005 Rules, and on the basis of the rights that accrued to the petitioners, under the Rules that existed earlier thereto, and pass appropriate orders within a period of two (2) months from the date of receipt of a copy of this order. There shall be no order as to costs. _________ 02.07.2008 Note: L.R.Copy to be marked. (B/o) JSU ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{TRT} THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION Nos : 20503 OF 2005 & 7443 OF 2008 Date: 02.07.2008 JSU