Bharat Sanchar Nigam Ltd. & Ors vs Mridul Kumar Verma & Ors

This writ petition has been filed by Chief General Manager, Telecom, NE-I Circle, Bharat Sanchar Nigam Limited [BSNL] challenging the judgment of Central Administrative Tribunal, (for short Tribunal) Guwahati Bench dated 03.12.2014. The Tribunal thereby allowed the Original Application filed by the respondent No.1 and directed the appellants (petitioners) to grant deemed notional promotion to the Superintending Engineer (Civil) immediately after the currency of penalty is over i.e. 30.09.2006.

The facts of the case are that the respondent No.1 was appointed as Assistant Executive Engineer (Civil) in P&T (Building) Group "A" Service in P&T department in 1983 through Engineering Services Examination conducted by Union Public Service Commission (UPSC 1981 batch). He was then promoted as Superintending Engineer on adhoc basis in the year 2000. He was continuously working since then in the NE I Zone of BSNL on his tenure posting of two years since August 2011. He, a part from his own duty was also looking after the office of Chief Engineer (Civil). During the period respondent No.1 was working on the post of Superintending Engineer (Civil) on adhoc basis from 03.05.2000 till November 2004, no regular Departmental Promotion Committee [DPC] was convened despite availability of large number of vacancies. While he was working as Executive Engineer, the respondent No.1 was served with the memorandum of charge sheet dated 18.05.2004, proposing to impose minor penalty on the charge of supervisory negligence for various lapses on the part of his subordinate Assistant Engineer (AE). Finally, the respondent vide order dated 30.09.2005 awarded penalty of reduction of one stage in the time scale of pay for a period of one year without cumulative effect. When the Disciplinary Proceeding was pending against the respondent No.1, the petitioner-department initiated process for regularization of the adhoc service of Superintending Engineer in the year 2004-05 consisting of the officers of UPSC batches from 1971 to 1985 (14 batches and above 100 officials). Accordingly, the DPC was held in the month of December, 2004 and on the basis of the recommendation of the DPC, petitioners vide order dated 04.01.2005 promoted as many as 94 Superintending Engineer (Civil) on regular basis w.e.f. 30.12.2004 and 14 Superintending Engineer (Civil) w.e.f. 28.03.2005.

According to the case set up by the respondent No.1 before the Tribunal, many of his juniors were also promoted on regular basis to the post of Superintending Engineer (Civil) vide orders dated 04.01.2005 and 19.04.2005, although their promotion orders was made subject to the outcome of the SLPs, Writ Petitions and Original Applications pending in various Courts and Tribunal.

As is evident from the impugned judgment, the respondent No.1 approached the Tribunal with various prayers but ultimately confined his claim to the prayer made in para 8.2A praying for a direction to the petitioner-department to antedate his promotion to the grade of Superintending Engineer, at least with effect from 31.12.2004 or latest by November, 2006 by way of modification of the impugned promotion order dated 16.10.2012. The contention of the learned counsel for respondent No.1 before the Tribunal was that since the penalty of reduction of one stage in the time scale of pay for a period of one year is over, the petitioners should have been granted promotion to him.

Mr. B Pathak, learned counsel for the petitioners has contended that the respondent No.1 has not impleaded the Department of Telecommunications as party respondent inasmuch as the respondent No.1 was absorbed in BSNL only on 31.08.2006 and the seniority list produced before the Tribunal pertains to the period when he was working in the Department of Telecommunications. At the time when regular exercise of promotion was undertaken in the Department of Telecommunications, the respondent No.1 was facing Departmental Proceedings and therefore he could not be promoted. Subsequently, he was absorbed in BSNL vide order dated 31.08.2006. Thereafter, DPC was not convened up to 2012 i.e. 2006 to 2012.

The learned Tribunal, however, relying upon the judgment in the case of Union of India & ors v. K.V. Jankiraman & ors: AIR 1991 SC 2010 held as under:-

"7. Since the regular promotion orders to the post of Superintending Engineer as well as to Chief Engineer have been placed before us, we will restrict ourselves only to relief prayed for at 8.2A apropos antedated promotion to the post of Superintending Engineer w.e.f. immediately after the penalty is over or at least from November, 2006. It was contended by the learned counsel for the applicant that applicant was absorbed in BSNL on 31.08.2006. In the case of the K. Krishnan (supra), it is held as under:-

"5. It has been stated by the learned Counsel for the parties that except for the above punishment, the respondent is fit for promotion and that the currency of the penalty will expire on 14-9-1990. In that view he may be promoted immediately thereafter with effect from 15-9-1990, provided he is not otherwise disqualified for promotion by incurring some other disqualification. The appeal is accordingly allowed but without costs."

In view of the ratio laid down in the above decision as well as the decision in K.V. Jankiraman (supra), we are of the considered view that applicant ought to have been given the benefit of deemed notional promotion to the grade of Superintending Engineer immediately after the penalty is over i.e., 30.09.2006. Accordingly, we direct the respondents to grant deemed notional promotion to the applicant immediately after the currency of the penalty is over i.e., 30.09.2006. The exercise shall be carried out by the respondents, as expeditiously as possible not later than two months from the date of the receipt of this order."

We do not find any reason to differ with the view taken by the Tribunal. Merely because the Department of Telecommunications was not impleaded as respondent before the Tribunal, the respondent No.1 cannot be deprived of his lawful entitlement. It is not in dispute that all the employees of the petitioner-department have been absorbed with the BSNL. This includes not only the respondent No.1 but also his juniors with whom he is claiming parity. Non impleadment of the Department of Telecommunications would not cause any prejudice to the petitioner-department because the Tribunal has only directed for granting deemed notional promotion to the respondent No.1 to the grade of Superintending Engineer immediately after expiry of penalty w.e.f. 30.09.2006 and no actual benefits have been granted.

There being no infirmity in the impugned judgment, the present writ petition fails and is accordingly dismissed.