Page 58 - TELEWAVE JUNE-2016

Purportedly, taking cover under order in the Contempt Case, the 147 merit based candidates approach the BSNL which recast the seniority as sought for by the merit based candidates. Effectively, the merit based rd candidates were sought to be accommodated in the vacancies arising in the 1/3 quota from the year 1990 onwards. This was on the premise that the promotions made filling up all the vacancies in the higher cadre rd were made from the seniority based candidates who had cleared the DQE and that as against the 1/3 quota, the appointments / promotions made were only adhoc. The entire seniority list was recast and though the list originally published and also that recast have been produced herein, we are not expected to go into the individual seniority of persons shown therein. The dispute boils down to whether the seniority prior to 1994-95 could be upset. Para 29. The suspension of examinations resulted in a challenge being made by certain officers in the Kerala Circle of the Telecommunication Department, culminating in judgment dated 01.05.1998. (CAT, ERK – OA 1497/1996, OA 629/1997, OA 1186/1997, OA 297/1998). Para 30. It is to be specifically noticed that none of the 147 LDCE candidates challenged the action of the respondent department, the then employer, in suspending the examination as also accommodating the qualified candidates in the promotion posts. Para 31. The Tribunal (CAT, ERK – OA 1497/1996/01.05.1998) identified two distinct groups. The first group comprised of those JTOs who have already qualified at the prescribed qualifying examinations up to 1991. They claimed that they are entitled to be promoted to all the vacancies arising in the promotion post up to 22.07.1996. This was on the premise that in an earlier litigation (para 206) the Hon’ble Supreme Court had affirmed the decision that the seniority is determined by the year of qualification and not on the initial year of recruitment. All persons in the first group having qualified prior to 1991 and the similarly placed qualified candidates being larger in number than the available vacancies in the promotion posts, it was contended that accommodating them in order of the year in which they qualified would amply result in compliance of the undertaking of the department that prior to 1996, the promotions would be made as per the then existing rules. (Para 32 – The department endorses the view of the first group) Para 32. The department was found to have taken different positions at different point of time before different judicial forums in the past and that happens to be the case even at present. Para 36. a. It is also pertinent that the candidates who qualified prior to 1991 were held to be admitted seniors of those qualifying later on. Para 36. b. A candidate qualifying in the examination acquires a right to be promoted to the available vacancy and assignment of seniority only with respect to the year of qualification. Para 36. c. Can a person who qualified in the DQE and came out meritorious in the LDCE of a particular year, said to have acquired a right to a position prior to the year of qualification? In the absence of any such specific rule we are unable to answer the question in the affirmative. (Surprisingly, it is the only and normal practice in DoT, only for LDCE candidates, resulting number of court cases. Persons are taken back to such vacancies may be created before the birth of the officer. Retrospective seniority of any number of years only to LDCE candidates is a birth right in DoT/BSNL.) Para 40. a. Even in the year 1994 the prior existing vacancies were filled up by the qualifying hands (DQE). Neither the department at the time of SLP dated 25.10.1996, intended that such appointments could be upset, nor had the Tribunal directed the recasting of vacancies existing prior to 1994. Para 40. b. Hence, the significance of the specific direction that the vacancies existing prior to 1996 would be filled up in accordance with the pre-1996 rules. That can only be understood as being for the years 1994-95, 1995-96 and 1996-97 (up to 22.07.1996). This was the specific condition of the notifications of LDCE 2000/2003. Para 40. c. None of the review applicants before the Tribunal nor the other persons coming within the 147 competitive candidates challenged these specific conditions. In the said circumstances, there cannot be any recasting of seniority prior to 1994. TELEWAVE 58 JUNE-2016