IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 28TH JANUARY 2008 / 8TH MAGHA 1929 WP(C).No. 33509 of 2003(L) -------------------------- PETITIONER: ------------ 1. UNION OF INDIA, REPRESENTED BY SECRETARY IN THE MINISTRY OF COMMUNICATIONS, SANCHAR BHAVAN, NEW DELHI. 2. THE CHAIRMAN AND MANAGING DIRECTOR, BHARAT SANCHAR NIGAM LIMITED, NEW DELHI. 3. THE CHIEF GENERAL MANAGER, TELECOMMUNICATIONS, KERALA CIRCLE, BSNL, THIRUVANANTHAPURAM BY ADV. SRI.P.VIJAYAKUMAR, SC, BSNL RESPONDENTS: ------------- 1. BHARAT SANCHAR NIGAM LIMITED PERSONAL STAFF ASSOCIATION, KERALA CIRCLE UNIT, REPRESENTED BY ITS PRESIDENT, A.D.THOMAS, WORKING AS P.A.GRADE-II TO ASSISTANT GENERAL MANGER (ADMINISTRATION) O/O GENERAL MANAGER, TELECOMMUNICATIONS, KOTTAYAM. 2. N.AYYAPPAN NAIR, PRIVATE SECRETARY TO GENERAL MANAGER, TELECOM TRANSMISSION PROJECT, ERNAKULAM. 3. THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, REPRESENTED BY ITS REGISTRAR BY ADV. SRI.G.D.PANICKER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 33509 of 2003(L) APPENDIX PETITIONERS' EXTS:- Ext.P1 True copy of O.A NO.154/02 with Annexures, filed by respondents 1 and 2 (Petitioners in the OA) before the 3rd respondent Tribunal. Ext.P2 True copy of the reply statement filed by petitioners (respondents in O.A) in O.A.No.154/02 Ext.P3 True copy of the rejoinder filed by respondents 1 and 2 (Petitioners in OA) O.A.No.154/02 Ext.P4 True copy of the additional reply statement filed by petitioners (respondents in OA) in O.A.No.154/02 Ext.P5 True copy of the order dated 04/07/2003 in O.A.No.154/02 of the 3rd respondent. Ext.P6 True copy of the letter dated 26/09/2003 issued from office of the Director General. Ext.P7 True copy of the relevant portion of Swamy's compilation on Seniority and Promotion. \\True copy// K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Writ Petition (Civil) No. 33509 of 2003 (S) ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 28th day of January, 2008 J U D G M E N T BALAKRISHNAN NAIR, J. The respondents in O.A.No.154/2002 are the writ petitioners. The applicants are respondents 1 and 2. They approached the Central Administrative Tribunal feeling aggrieved by Annexure A5 order of the competent authority to the extent it promoted the second applicant and others as Senior Personal Assistants on a regular basis, only with effect from the date of that order, i.e. 12/02/2001. They wanted retrospective effect to that promotion from 18/12/1999. 2. The second applicant, while working as Stenographer Grade-I, was promoted on ad hoc basis as Senior Personal Assistant by Annexure A2 proceedings dated 28/12/1994. As evident from Annexure A1, the said promotion was preceded by D.P.C proceedings in which the suitability of the applicant was assessed and he was promoted. The said promotion, according to the applicant, happened to be ad hoc promotion because his service in the feeder category, namely, Stenographer Grade-I was W.P.(C).No.33509 of 2003 (S) -: 2 :- not regularised. The second applicant's promotion in the cadre of Stenographer Grade-I was regularised by Annexure A6 order dated 10/08/1999 with retrospective effect from 18/12/1996. The second applicant submits that on completion of three years' service from 18/12/1996, he is eligible to be considered for regular promotion to the post of Senior Personal Assistant. But, the D.P.C took its own time and met only in 2001 and decided to promote him by Annexure A5 order dated 12/02/2001, mentioned earlier. The second applicant further submitted that he was liable to be promoted with effect from the date he completed three years' regular service in the feeder category, that is 18/12/1999. Since the said claim was not accepted by the competent authority, the Original Application was filed. The respondents therein/writ petitioners, filed Ext.P2 reply statement. It was stated in the said reply statement that promotion can be ordered only prospectively and cannot be ordered to take effect from the date of occurrence of the vacancies. The Tribunal, after hearing both sides, allowed the application. The Tribunal took the view that the second applicant was continuing as Senior Personal Assistant from 1994 W.P.(C).No.33509 of 2003 (S) -: 3 :- on ad hoc basis. He became eligible for regular promotion with effect from 18/12/1999. He is not responsible for the delay from the part of the D.P.C to meet. Therefore, it was held that he should be given promotion with retrospective effect. The Tribunal directed the writ petitioners to consider the claim of the second applicant for promotion with retrospective effect. It was positively held that the second applicant's claim should have been considered for promotion with effect from 17/12/1999. The operative portion of Ext.P5 order of the CAT reads as follows:- “8. In the light of the above findings, the application is allowed. Respondents are directed to allow the 2nd applicant his promotion to the grade of Sr.PA with effect from the date on which he completed three years of qualifying service in the grade of Steno Grade-I. A-5 orders shall be modified in relation to the 2nd applicant to harmonise with the findings given above. Consequential orders in that regard shall be passed within a period of two months from the date of receipt of a copy of this order. No order as to costs.” Attacking the above direction this writ petition is filed. W.P.(C).No.33509 of 2003 (S) -: 4 :- 3. The learned counsel for the petitioners submitted that the recruitment rules were amended in 2000 and soon thereafter the D.P.C met and considered the claim of the second applicant for promotion. As per the existing guidelines, promotion can be ordered only prospectively and there is no delay in the meeting of the D.P.C., it is submitted. 4. We heard the learned counsel for respondents 1 and 2 also. Going by the facts of the case, it is clear that there was a vacancy of Senior Personal Assistant in existence from 1994. The second applicant was occupying that post and he was discharging the duties. He became eligible for promotion with effect from 18/12/1999. Unless there are some disqualifying circumstances like the initiation of any disciplinary action etc., there is no reason why he should not be promoted with effect from that date. The petitioners do not have a case that the second applicant is otherwise ineligible for promotion with effect from 1999. Their only defence is that the D.P.C met only in 2001. Therefore, he can be promoted only prospectively. We feel that it is a poor defence. The promotion due to the second applicant has been delayed for no fault of his. If direction in the W.P.(C).No.33509 of 2003 (S) -: 5 :- Original Application is interfered with, it will be an injustice done to him. So we find no reason to interfere with the same. Accordingly, the writ petition is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (P.N.RAVINDRAN, JUDGE) ms