Central Administrative Tribunal - Delhi

Varun Kumar vs Bharat Sanchar Nigam Limited on 3 June, 2010

Central Administrative Tribunal

Principal Bench

OA 2854/2009
MA No.1952/2009
MA No.1105/2009
and
OA No. 3120/2009

New Delhi, this the 3rd day of June, 2010

Honble Dr. Ramesh Chandra Panda, Member (A)

Honble Dr. Dharam Paul Sharma, Member (J)

I. OA No.2854/2009

1. Varun Kumar,
Aged 30 years,
S/o Shri Ramnuj Shukla

Anchal Kumar
Aged 32 years,
S/o Shri Som Deo.

3. Akhilesh Kumar
Aged 30 years,
S/o Shri Ved Prakash Verma.

4. Manish Niranjan
Aged 29 years,
S/o Ram BIhari Niranjan.

5. Amit Chauhan
Aged 29 years,
S/o Shri Shyam Singh Chauhan. . Applicants.

All the Applicants are working as Junior Telecom Officers,

Bharat Sanchar Nigam Limited.

(By Advocates : Shri Amit Anand and Shri Ajay Kr. Bhatt)

Versus
1. Bharat Sanchar Nigam LImited
Sanchar Bhawan,
20, Ashoka Road,
New Delhi.
(Through Chairman-cum-Managing Director)

2. The Chief General Manager (NTR)

Bharat Sanchar Nigam Limited,
Government of India,
Kidwai Bhawan,
New Delhi 110 001.

3. The General Manager (Personnel)

Bharat Sanchar Nigam LImited,
BSNL Corporate Office,
Janpath,
New Delhi 110 001.

4. Union of India
Ministry of Communication,
Department of Telecommunication,
Sanchar Bhawan,
New Delhi 110 001
(Through the Secretary) . Respondents.

(By Advocate : Shri Rajnish Prasad)

II. OA No.3120/2009

Ram Kirpal Singh

Aged 32 years,
S/o Shri Ram Chandra Singh
Working as Junior Telecom Officer,
Bharat Sanchar NIgam Limited. . Applicant.

(By Advocates : Shri Amit Anand and Shri Ajay Kr. Bhatt)

Versus

1. Bharat Sanchar Nigam LImited

Sanchar Bhawan,
20, Ashoka Road,
New Delhi.
(Through Chairman-cum-Managing Director)
2. The Chief General Manager (NTR)
Bharat Sanchar Nigam Limited,
Government of India,
Kidwai Bhawan,
New Delhi 110 001.

3. The General Manager (Personnel)

Bharat Sanchar Nigam LImited,
BSNL Corporate Office,
Janpath,
New Delhi 110 001.

4. Union of India
Ministry of Communication,
Department of Telecommunication,
Sanchar Bhawan,
New Delhi 110 001
(Through the Secretary) . Respondents.

(By Advocate : Shri Rajnish Prasad)

: O R D E R :

Dr. Ramesh Chandra Panda, Member (A) :

By this common order and with the consent of the Counsel for the parties in both OAs,
we are deciding both OAs as the issues involved in both Applications are same and the
Respondents are common in both the cases.

2. In OA No.2854/2009, five Applicants have joined together. Brief facts of the case as
relevant to the issues and as presented by the Applicants would reveal that the
Respondents invited application through advertisement dated 14.03.2002 (Annexure-A)
for recruitment to 3,000 posts of Graduate Engineers (JTOs) prescribing therein that
candidates appearing in the final year examination of the Degree course in Engineering,
would also be eligible for being considered for appointment provided their result is
declared by the University on or before 31st July, 2002 and they are able to secure the
Degree in Engineering/Technology by 31st July, 2002. The competitive test for
recruitment was held on 06.06.2002 in which all Applicants competed. It is the case of
the Applicants that the results of their Degree examination was declared in
August/October, 2002 and all the Applicants were declared successful in the Graduate
Engineering Degree examination. The result of all India Competitive Test conducted by
the Respondents was declared on 09.09.2002. The Applicants were successful in the
said examination and call letters were received by them requiring the Applicants to
produce all the relevant documents for verification/scrutiny. The Applicants appeared
before the Competent Authority as notified by the Respondents for verification of their
documents on the dates mentioned in their respective call letters. But, the Respondents
rejected their candidature on the ground that their Degree result had been declared after
the cut-off date (31st July, 2002). Between December, 2002 to April, 2003, the
Applicants approached the Honble High Court of Delhi in Writ Petitions (CW
5181/2003, CW 9863/2003, CW 8125/2003, CW 113/2003 and CW 1954/2003)
challenging the decision of the Respondents whereby candidature of the applicants had
been rejected. By a common judgment dated 13.01.2004 (Annexure-C) all the above
Writ Petitions of the Applicants were allowed and the Respondents were directed to
consider the candidature of the Applicants for appointment to the post of JTOs as had
been done in the case of other similarly placed candidates. The Respondents preferred
Writ Appeals (WA 245/2004, WA 246/2004 and WA 248/2004) against the aforesaid
judgment before the Honble High Court of Delhi, which were considered by the Division
Bench of the High Court of Delhi and dismissed the Writ Appeals vide judgment dated
27.02.2004 (Annexure-D) by upholding the Single Bench judgment dated 13th January
2004. Being aggrieved, the Respondents filed Special Leave Petition against the order
passed by the Division Bench of the Honble High Court of Delhi in the Honble Supreme
Court of India, which were considered in Civil Appeal Nos.4835/2005, 1649/2006,
1836/2006, 4836/2005, 5099/2005 and 6420/2005 and dismissed the same by order
dated 30.01.2008 (Annexure-E). Consequently, the Respondents issued necessary
orders requiring the Applicants to make themselves available for the prescribed training
of 10+4 weeks before their absorption/appointment to the post of JTOs on the basis of
competitive examination held in the year 2002. It is the case of the Applicants that the
Respondents provided such benefit to a chosen few candidates but they did not give
effect to their appointments from the date the Respondents issued appointment letters
in the case of other similarly placed candidates. Further, the Respondents did not fix the
seniority of the Applicants vis a vis the candidates who were much lower in the order of
merit position of the successful candidates of the examination held in the year 2002.

3. In the meantime, it is stated that the Respondents issued Advertisement

No.2/2/2009-Rectt-(Annexure-G) inviting applications from candidates under open
quota to be filled through the selection process for appointment to 300 posts of
management trainees (MT), as per which the essential requirement fixed for internal
candidates is work experience of 4 years within BSNL on the date of receipt of
application by BSNL. The Applicants submitted detailed representations (Annexure-H)
to the Respondents pointing out their grievances and requesting for removal of
anomalies in the orders issued by the Respondents and for permission to
appear/compete in the selection process for appointment to the posts of Management
Trainee (MT) as internal candidates. The Applicants aver that their representations have
not been considered.

4. The Applicants being aggrieved by the acts of the Respondents in denying to give
effect to the appointment of Applicants from back date particularly from the date when
other similarly placed candidates had been appointed and furthermore action of
Respondents in rejecting the plea of the applicants to waive the precondition of 4 years
work experience as prescribed in Advertisement No.2-2/2009-Rectt., they have
approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985
with the following prayers :-

(a) allow this OA with costs;

issue appropriate directions or orders against the Respondents directing the

Respondents to accord appointments to the applicants from the year 2002-03 i.e. from
the date the applicants were eligible to be appointed as JTOs on the basis of their
qualifying the competitive written examination held on 9th June 2002;

issue appropriate directions or orders against Respondents directing the Respondents to

fix seniority of the applicants on the basis of their merit obtained in the competitive
written examination held on 9th June 2002 and particularly vis a vis the appointees
who, though lower in the order of merit as compared with the applicants, had been
appointed while ignoring the applicants;

direct the Respondents to refix the salary payable to the applicants in terms of the
recommendations of 6th Pay Commission by backdating the appointment of applicant
and treating the applicant as having been appointed from the date other similarly placed
incumbents (as per annexure B) figuring in the select/merit list in which the applicants
also figure, were appointed and/or w.e.f. the date persons lower in merit than the
applicants had been appointed and to allow notional benefits of such deemed
continuous appointment to the applicants;

direct the Respondents to waive the pre condition of 4 years work experience within
BSNL as notified vide No.2-2/2009-Rectt. in the case of applicants, thereby allowing the
applicants to appear as internal candidates in the selection process to be held for filling
up the vacancies of Management Trainee (MT) under open quota;
issue such other and further appropriate orders and/or directions as deemed just, fit
and proper in the circumstances of the case for meeting the ends of justice.

5. In OA No.3120/2009, Ram Kripal Singh is the Applicant. Compared to the facts in OA

No.2854/2009, there is some difference in this OA. Though, he is one of the successful
candidates for the JTO Post, the Applicant joined the Respondent-BSNL as Telecom
Technical Assistant in May 2003 and worked as such till November 2008 when he
joined the pre appointment training programme for 10+4 weeks vide order dated
25.11.2008 (Page 57) and was appointed as JTO in February 2009. Thus, this Applicant
having put in more than 4 years of work experience in BSNL, the Counsel for
Respondents submits that he would be eligible to compete as an internal candidate as
per the advertisement for the post of Management Trainees (MT). Except this relief (i.e.
prayer (e) in the OA No.2854/2009), all other prayers in OA No.2854/2009, are to be
considered and determined in the OA No.3120/2009.

6. The Applicants moved MA No.1105/2010 with a prayer that interim directions may be
issued to the Respondents to entertain the applications of the Applicants for competing
in the Limited Competitive Examination for promotion to the post of Sub Divisional
Engineers under 33% quota and also to entertain their applications as internal
candidates for the post of Management Trainees. Though the notice was issued to the
Respondents, on 26.04.2010 Counsel for the Applicant brought to the notice of the
Bench that all the Applicants have submitted their applications but the Respondents
have not accepted the same. In that background, the following orders were passed by the
Tribunal :-

Subject to the outcome of this OA, respondents shall accept the applications of the
applicants provisionally. Respondents should file their reply positively within two weeks
and rejoinder within one week thereafter so that the matter may be decided finally on
20.05.2010, i.e., before the date of examination, which is scheduled to be held in July,
2010.

7. Shri Amit Anand, learned counsel for the Applicant narrating the background of the
case submitted that the Applicants had been suffering as the Respondents were taking
vengeance against them since the case for their appointment was upheld right upto the
Honble Apex Court. He contends that the Respondents have found another way to
harass the Applicants by not allowing them to sit in the examination for Sub Divisional
Engineering (SDE) and MT inspite of the fact that they belong to 2002 batch of JTOs.
He submits that the Applicants are entitled for all the benefits which are applicable to
the batch 2002. He submits that the Applicants in this OA have been claiming the
eligibility to appear in the examination. He contends that as the Supreme Court upheld
the selection of the Applicants right from the year 2002, they are also entitled for
seniority and pay fixation from the date their juniors have joined as JTO.

8. Shri Anand further submitted that the respondents were trying to take advantage as
per their own wrong in as much as by not allowing the applicant to sit in the
examination on the pretext of not fulfilling the eligibilities criteria of 4 years of work
experience for the post of MT. In support of his arguments, he states that the Honble
High Court of Delhi as early as on 13.01.2004 has directed the Respondents to process
their case for appointment by scrutinizing their degree/mark sheet, but the Respondents
went on appeal to the Division Bench of the Honble High Court of Delhi and later to the
Honble Supreme Court where the Respondents failed and the offer of the appointment
came to them as late as 2009 and as such the Respondents denied the required work
experience of 4 years in BSNL.

9. Shri Anand further contends that as per the RRs of JTO, 2001 of BSNL, the offer of
appointment given to the Applicants, they would be placed en-block junior to these
JTOs who had already been appointed in the DOT and absorbed in BSNL and as such
the Applicant would be placed in 2002. Thus, the Respondents cannot turn back by
saying that the Applicants are not eligible for taking the MT examination because once
the applicants treated in batch of 2002 then all the benefits of the batch of 2002 have to
be extended to the Applicants. Shri Anand contended that the Applicants would be at
loss for no fault of their in as much as every time there would be examination for MT
posts they would not be eligible for the examination as they would be short of requisite
work experience in BSNL. On the other hand juniors in their batch would get selected to
the MT posts whereas the Applicants would remain short of the work experience for a
very long period.

10. In support of his contentions, Shri Amit Anand placed the reliance on the following
judgments/orders : (i) judgment of Honble Supreme Court in the case of Dalilah Sojah
Versus State of Kerala and Others (CA No.2967/1994, and CA No.8606/1997 arising out
of SLP NO.7645/1995 decided on 03.12.1997); (ii) Judgment of Honble Supreme Court
in Pillai Sitaram Patrudu Versus Union of India [1996 AIR (SCW) 4424]; (iii) Order of
this Tribunal in Dr. Pawan Kumar N. Mali and others Versus Secretary, Department of
Health and Family Welfare of Government of NCT of Delhi and Another [OA
No.183/2009 decided on 02.02.2010]; (iv) Judgment of Honble High Court of Delhi in
Union of India Versus Ramawatar [WP(C) 7331/2001 decided on 07.03.2007]; (v)
Judgment of Honble Supreme Court in Sanjay Dhar Versus J&K Public Service
Commission and Another [2000(8) SCC 182]
11. Per Contra, Shri Rajnish Prasad, the Learned Counsel representing the Respondents
very vehemently opposed the contentions raised by the Applicants Counsel. He raised
the preliminary objection on the grounds of maintainability. Shri Rajnish Prasad
pointed out that the OA had been filed by the Applicants concerning the matters which
were directly and substantially addressed by the Honble High Court of Delhi and as such
the OAs would be barred by the principle of constructive res judicata, and estoppel. His
contention was that the Applicants ought to have raised the issue of
backdating/antedating of their appointment as JTOs before the Honble High Court. But
those have been raised in the OA. Hence, their failure to do so then, attempt to raise
now would be hit by the Explanation IV to Section II of the Code of Civil Procedure.
Thus, his argument was that on this ground alone the OA should be dismissed. As the
prayers in the OAs are subsequent to their appointment as JTO, in our considered
opinion, the principles of res judicata and estoppel will not be applicable.

12. Drawing our attention to the CWP No.8125 of 2003 filed by some of the Applicants,
Shri Prashad submitted that two prayers in the Writ did not include the prayers made in
the present OAs. His contention is that the Applicants are estopped to raise these issues
in the OAs. Further, between 2002 when the Writ was filed and 2004 when the Writ was
decided, the Applicants did not make any prayer for antedating their appointment from
the same date on which their juniors in the select list were given appointment. It was
stated that the issue of Applicants appointment as JTO was adjudicated judicially twice
but no order was passed for ante dating their appointments. Shri Prasads contention is
that the Respondents have legal right to take up the issues for proper judicial
determination and such action of the Respondents cannot be termed as wrong action. As
the final judicial order came to be passed by the Honble Supreme Court on 30.1.2008,
the Resopndents stated the process of completing formalities towards the Applicants
and others as JTOs and after completion of 14 weeks training as per Rules, they were
appointed on different dates. It is stated that the Applicants have accepted the terms
and conditions of appointment as JTO and as such they cannot raise the issue of
antedating their appointment.

13. In respect of the prayer of the Applicant in OA No.3120/2009, the Respondents have
reported during the hearing that the Applicant has joined Telecom Technical Assistant
with BSNL from May 2003 and was appointed to the post of JTO in November, 2008
after accepting the technical resignation of the Applicant. Counsel for the Respondents
informed us that the Applicant Ram Kripal Singh having joined as TTA in May 2003 has
got work experience of more than 4 years in BSNL and the Respondents would consider
his case to compete in the selection process for the Management Trainees as internal
candidate. In the case of the Applicants in OA No.2854/2009, Counsel for the
Respondents contended that the Applicants have joined only in the year 2009 and they
do not have work experience to the extant of 4 years as prescribed for the candidates
who must have work experience of 4 years to be considered as internal candidate for
competing in the selection process for the post of Management Trainees. Learned
Counsel for the Respondents has placed reliance in the case of Union of India and
Others Versus Satya Prakash Vasisht 1994 Supp (2) SCC 52; State of Jammu & Kashmir
& Ors. Versus Javed Iqbal Balwan & Others 2009 (4) SCALE 410 and Uttaranchal Forest
RangersAssn. (Direct Recruit) and Others Versus State of U.P. and Others (2006) 10
SCC 346.

14. We have heard the rival contentions of the parties and with the assistance of their
counsels we also perused the pleadings as well. Two sets of issues come up for our
consideration and determination. (i) Whether the Applicants in both OAs are entitled to
get the seniority and associated benefits with effect from the year 2002 when their
juniors were appointed as JTOs in BSNL? (ii) In case such antedating is admissible what
service benefits would accrue to the Applicants and whether the period from that date
could be counted towards work experiencefor the purpose of eligibility criteria
prescribed for the internal candidates for the post of MT? As both the issues are inter-
related and inter-twined, we will address the issues together.

15. The genesis of the present issues can be safely traced to the recruitment process
initiated by the Respondent BSNL for filling up large number of JTO posts. We have
given the brief background of the case in earlier paragraphs. Suffice it to say that though
the Applicants were selected, they were not offered appointment for which they along
with others agitated before the Honble High Court in a batch of cases, which were
decided on 13.01.2004 in the following manner :-

12. By shifting the date of eligibility in the present case, it cannot be said that any third
party who could have applied, would have applied if he was aware that shifting would
take place. All candidates, who had acquired their graduation degrees and were desirous
of being appointed would have applied. Similarly all final year degree students, who
were desirous of being appointed would have applied. Admittedly, the respondent fixed
the date as 31.07.2002 on the assumption that it would be able to declare the result of
the examination conducted by it and would, therefore, require eligibility when it would
scrutinize the successful candidates. 31.07.2002 was, if one may , the conceived notional
date of scrutiny. This expectation did not materialize as a reality. Results were declared
on 09.09.2002. Even in the previous year, a somewhat similar situation had arisen
when admittedly the respondent gave employment to all those who were declared
successful in the competitive examination and had obtained the degrees by said date. I
find no reason as to why same be not done in the present case. After all, by so doing,
right of none is taken away and the best available talent is being attached in service. If
this process is not to be followed, petitioners, who are more meritorious would not only
be losing the job but the respondent would be inducting persons, who are less meritious.
This would come into conflict with the policy or the respondent to attract the best talent
by broad basing the competitive examination by attracting all final year students to take
the examination.

13. Writ petition is allowed. Mandamus is issued to the respondents to process the case
of the petitioners for appointment by scrutinizing their professional degrees/mark-
sheets provided the same were offered for scrutiny by the date prescribed in the letter
issued to the petitioners to raport to the respondent with their original documents
together writ attested copies for scrutiny. In the facts and circumstances of the case,
there shall be no order as to costs.On appeal by BSNL against the above order, the
Division Bench of the Honble High Court passed the following orders on 27.02.2004 :-

6. In our view the reasoning of the learned single Judge is absolutely unexceptionable
because the concept of extension of time in respect of the acquisition of the eligibility
with all its rigour could not be attracted to the present case. The respondentsresult were
declared beyond 31st July, 2002 but well before the date of the scrutiny and thus no
similarly situated aspirant has been or could have been left out from applying. The
Single Judge has thus rightly differentiated between relaxation of criteria which affect
similarly situated aspirants deprived from applying due to the terms of the
advertisement and the present case where no such deprived aspirants can and do exist.

7.The learned counsel for the appellant had questioned the reliance by the learned
Single Judge on Ashok Kumar Sharma Vs. Chander Shekhar and Anr., 1993 Supp (2)
SCC 611, wherein it was held as follows :-

It was in the public interest that better candidates who were fully qualified on the dates
of selection were not rejected notwithstanding that the results of the examination in
which they had appeared had been delayed for no fault of theirs.

8. The learned counsel for appellant contended that this Judgment was referred to a
larger bench by the Honble Supreme Court. We need not go into that issue as we are of
the view that even dehors the reliance on this judgment the view taken by the learned
Single is unassailable. The judgment rendered by the learned Single Judge advances
public interest as it permits the more meritorious candidates such as the respondent to
join public service. The learned counsel for the appellant has finally relied on 2004 (i)
SCALE 149, Ramrao and Others vs. All India Backward Class Bank Employees Welfare
Association and Ors. where in paragraphs 342 and 33, the following position of law has
been laid down :-

32.If a cut off date can be fixed, indisputably those who fall within the purview thereof
would form a separate class. Such a classification has a reasonable nexus with the object
which the decision of the Bank to promote its employees seeks to achieve. Such
classifications would neither fall within the category of creating a class within a class or
an artificial classification so as to offend Article 14 of the Constitution of India.

33.Whenever such a cut off date is fixed, question may arise as to why a person would
suffer only because he comes within the wrong side of the cut-off date but, the fact that
some persons or a section of society would face hardship, by itself cannot be a ground
for holding that the cut off date so fixed is ultra vires Article 14 of the Constitution.

9. In our view this judgment will not apply to the facts of the present case as there is no
other wrong side of the cut off date as no such class of persons who would have but did
not apply on account of the relaxation can be said to exist on the facts of the present
case. Accordingly there is no merit in these appeals which are therefore dismissed.The
Respondents BSNL did not leave at that and they appealed before the Honble Supreme
Court. Though SLP was admitted but the Civil Appeals were dismissed and the order
reads as follows :-

Heard learned counsel for the parties.

In the facts ad circumstances of the case, we are not inclined to interfere with the
impugned orders.

The civil appeals are, accordingly, dismissed.

16. Once the controversy was finally settled, the BSNL had no other option but to send
the Applicants for 10 weeks Phase I and 4 weeks of field Training and on their successful
completion, they were appointed as JTO in the year 2009. The Clause 2 of the terms and
conditions of the appointment letter stipulates: 02) The executive will be placed en-bloc
junior to those JTOs who had been already appointed by the Department of
Telecommunications and absorbed in BSNL. Obviously, the Respondents have not
indicated for the Applicants what is the year of appointment, what are their seniority
among the JTOs. While the Applicants feel that they belong to 2002 batch and should be
given seniority in the year 2002 according to their rank in the select list but the
Respondents maintain that they were issued appointment letter in 2009 and no ante
dating would be possible. The controversy continued and has reached this Tribunal.
17. In the above backdrop of the controversy, we examine some of the judgments which
are considered relevant. Though, both counsel have relied on many judgments, we are
not burdening this order by referring to each and every judgment.

18. In the backdrop of the judicial pronouncements finally deciding and directing the
Respondent BSNL to appoint the Applicants which they did but in 2009, the question
comes up for our consideration and determination is whether the Applicants in both
OAs are entitled to get the seniority and associated benefits with effect from the year
2002 when their juniors were appointed as JTOs in BSNL? We take up the legally
settled position in the subject of antedating of appointments and service benefits which
would accrue in such an event.

19. We find convincing argument advanced by the counsel for the Applicant in placing
his reliance in the dicta of Honourable Supreme Court in the case of Pilla Sitaram
Patrudu Versus Union of India[1996 (8) SCC637] that when the appointment was
delayed for no fault of the employee it was held that he was entitled to the ranking given
in the select list of the concerned year.In Pilla Sitaram Patrudu case (supra) the 5th
respondent, K. R. Ramanandan, was selected by direct recruitment in the year 1997 as
Assistant Executive Engineer and all the direct recruits except the respondent were
appointed in the year 1978, and challenging his exclusion, he had filed O.A. No. 7226/85
in the Ernakulam Bench of this Tribunal. The same was decided by order dated 31-1-
1990 holding that his appointment was delayed due to laches on the part of the Railway
Administration. After his appointment in the year 1981, within two years he passed his
test. When his case was not considered for promotion as Executive Engineer, he filed the
O.A. The Tribunal without deciding the inter se seniority in the cadre of Assistant
Executive Engineers, directed the Railway Administration to consider his case for
promotion as Executive Engineer for the years 1984, 1985 and 1986 and if found fit for
promotion in any of the posts, to give him promotion for that year and to fix seniority
among Executive Engineers accordingly. Pursuant thereto, the respondent was
considered and promoted as Executive Engineer. After the above order came to be
made, the Railway Administration did not carry the matter in appeal to the Honourable
Apex Court but some of the employees aggrieved against the direction filed a review
petition which was dismissed and that order became final. The petitioners thereafter
challenged the self same order by filing separate O.A. and in the order of the Tribunal
dated October 19, 1995 the Tribunal has confirmed its earlier order. Thus they filed the
Special Leave Petition before Honourable Supreme Court. It is contended by the learned
Counsel for the petitioners that the inter se seniority as Assistant Engineers were left
open in the order, the directions given by the Tribunal to consider the case as Executive
Engineer and determine his seniority in law. The Tribunal did not find force in the
contention and held that once he is found to be eligible according to the rules, then his
seniority is required to be determined as per the procedure prescribed in the rules in
vogue. It is further contended that the fifth respondent was not qualified since he had
not completed 8 years of required service. The Tribunal has recorded a finding that two
years period is relaxable in the case of the reserved candidates. The inter se seniority as
Assistant Executive Engineers is required to be determined; he joined service in 1981
and, therefore, he did not have the requisite service. It was held that since he was
selected by direct recruitment, he was entitled to be appointed according to rule. His
appointment was delayed for no fault of his and he came to be appointed in 1981, he
was, therefore, entitled to the ranking given in the select list and appointment made
accordingly. Honourable Supreme Court did not find any illegality in the order of the
Tribunal.

20. Drawing our attention to the judgment of Honourable Supreme Court in Sanjay
Dhar Versus J. and K. Public Service Commission[2000(8)SCC182] Shri Amit Anand
submitted that the case was similar to the OA.The facts in Sanjay Dhar case (supra)
reveal that the appellant having been appointed a Munsif in the judicial service of J and
K, the issue raised by him for adjudication as the appellant has been wrongfully denied
appointment in the year 1995 pursuant to the 1992-1993 selections and if in spite of his
having been selected, the appointment was wrongfully withheld then the relief sought
for by him ought not to be denied to him and if the appellant be found entitled to
appointment in the year 1995 then his seniority in the cadre of Munsif should be
calculated from the date with which other incumbents figuring in the select list, in which
the appellant also figured, were appointed. Honourable Supreme Court found merit in
this case and while allowing the appeal decided as follows:

"16. For the foregoing reasons the appeal is allowed. The judgment under appeal is set
aside. It is directed that the appellant shall be deemed to have been appointed along
with other appointees under the appointment order dated 6-3-1995 and assigned a place
of seniority consistently with his placement in the order of the merit in the select list
prepared by J and K PSC and later forwarded to the Law Department. During the course
of hearing the learned senior counsel for the appellant made a statement at the Bar that
the appellant was interested only in having his seniority reckoned notionally in terms of
this order and was not claiming any monetary benefit by way of emoluments for the
period for which he would have served in case he would have been appointed by order
dated 6-3-1995. We record that statement and direct that the appellant shall be entitled
only to the benefit of notional seniority (and not monetary benefits) being given to him
by implementing this order. The appeal is disposed of accordingly. The contesting
respondents shall pay the appellant costs quantified at Rupees 5,000/-."
21. With regard to the ante dating of appointment due to judicial interventions as is the
case in the present OAs, the Honourable Supreme Court considered the issue and laid
the law in Union of India Versus Ishwar Singh Khatri [1993 (2) Scale 730]. The facts of
the case are that Appellants have 654 vacancies for teachers and Employment exchange
sponsored 4000 candidates out of which they appointed 527 candidates, later on 127
more were appointed, remaining selected candidates waited in vain only to see an
advertisement. At that stage they moved the HighCcourt with writ petition inter alia
contending that they have a right to be appointed till the panels are exchausted and the
High Court allowed Writ. Appeal challenging the judgment of High Court was filed
before the Honourable Supreme Court which was decided by directing that the
candidates in the panel when appointed must get their seniority as per their ranking in
the select panel. The judgment reads " Needless, however, to state that the candidates in
the panels when appointed pursuant to our order must get their seniority as per their
rankings in the select panels over the persons appointed in the interregnum" The
current OA deals with the case where the Applicants were appointed by the directions of
the Honourable Apex Court and as such the Applicants are entitled to get their seniority
as per their respective rank in the select list of the examination year 2002.

22. The issue of granting notional benefit in place of back wages was considered by the
Honourable Supreme Court in Paluru Ramkrishnaiah Versus Union of India[1989
STPL(LE) 14929 SC] and while agreeing with the decision of the Honourable Madhya
Pradesh High Court, it quoted the High Court dicta thus :-

"It is the settled service rule that there has to be no pay for no work i.e. a person will not
be entitled to any pay and allowance during the period for which he did not perform the
duties of a hither post although after due consideration he was given a proper place in
the gradation list having deemed to be promoted to the higher post with effect from the
date his junior was promoted. So the petitioners are not entitled to claim any financial
benefit retrospectively. At the most they would be entitled to refixation of their present
salary on the basis of the notional seniority granted to them in different grades so that
their present salary is not less than those who are immediately below them."

23. The issue of back wages after re-fixation of seniority was considered in
Telecommunication Engineering Service Association India Versus Union of India
[JT1994(7) SC58] by the Honourable Apex Court in the background of this Tribunal
order dated 29/6/1992 in Review Application No. 195 of 1992 in OA No. 2667 of
1991.over a conflict of decision on two basic issues namely (1) whether the applicants
and persons similar to them are entitled to promotion from the grade of Jr. Engineers to
the next higher grade in the Telegraph Engineering Service Group B (Assistant
Engineers and equivalent post) on the basis of the year of passing the qualifying
Departmental Examination envisaged in Para 206 of the P&T Manual and not on the
basis of their respective seniority as had been adopted and followed by the respondents;
and (2) whether in the facts and circumstances, they are entitled to re-fixation of inter se
seniority on the said basis and promotions with retrospective effect together with back
wages. After considering the judgment of the Honourable High court of Allahabad
(Parmanand Lal and Brij Mohan v. Union of India ) and decisions of various benches of
the Tribunal, the Honourable Supreme Court concluded that the applicants were
entitled to promotion, re-fixation of inter se seniority and consequential benefits as
claimed by them and have decided the above-said two issues in their favour. The
relevant part of the judgment reads as follows:-

"6. So far as the first point is concerned, it appears that the interventionists filed parallel
proceedings through Junior Telecom Officers' Forum v. Union of India and this court
(J.S. Verma and Anand, JJ.) in an elaborate judgment took the same view as that of the
Allahabad High court noticed by the Principal bench of the tribunal in the aforesaid case
of Parmanand Lal and Brij Mohan which has become final and has been upheld by this
court on merits. It is thus not necessary to dwell on the first question decided by the
Principal bench any further."

............... .......................... ........................

8. It would be noticed that the judgment of the Allahabad High court was delivered in
writ petitions which were filed by two individuals as far back as 1981 and the judgment
was delivered in 1985 which was affirmed by this court on 8/4/1986. Most of the
petitioners before the tribunal filed their applications claiming promotion from earlier
date on the basis of the Allahabad High court judgment only in 1988. They will get
refixation of their seniority and notional promotion with retrospective effect and would
be entitled to fixation of their present pay which should not be less than to those who
are immediately below them and the question is only whether they would be entitled to
back wages from the date of notional promotion. We are of the view that the tribunal
was justified...."

24. In view of the above, the issue is decided by us in favour of the Applicants in the
sense that the Applicants would be entitled to get their seniority w.e.f. the date their
juniors in rank got the appointment on notional basis and as such no back wages would
be admissible but the increments would be calculated to fix their pay on the actual date
of joining.
25. Now we advert to the issue whether the notional seniority allowed from 2002-03
would count for the purpose of work experience to make them eligible for consideration
to compete for the MT posts.

26. The Respondent BSNL issued the circular dated 14.10.2009 (Annexure-G) calling for
applications from external and internal candidates to fill up 300 vacancies of
Management Trainee (MT) under open quota through a selection process. Apart from
outside (external) candidates BSNL regular executives (Internal Candidates) at or above
JTO, JAO and equivalent level possessing the prescribed eligibility conditions detailed
in Annexure II to the circular, would be eligible to apply. The threshold eligibility
criteria for the internal candidates reads as follows :

(B) ESSENTIAL QUALIFICATIONS FOR INTERNAL CANDIDATES Functional

streams Essential Qualification for Internal Candidate Telecom Operations Bachelor of
Engineering/Bachelor of Technology Degree or equivalent Engineering Degree in any of
the following disciplines:

Telecommunication Electronics Computer/IT Electrical PLUS 4 years work experience

within BSNL on the closing date of receipt of application by BSNL

27. In the matters of appointment and promotion, the Recruitment Rules provide inter
alia the eligibility criteria/conditions, as the fulfillment of which a candidate/employee
becomes suitable/eligible for consideration. Generally, the terms like qualifying service,
regular service and work experience are used as one of the eligibility criteria. In the
service jurisprudence, each of such phraseology has distinct and specific connotations.
The Department of Personnel and Training (DOPT) OM dated 10.04.1989 issuing
instructions on promotion provides how to reckon the service of officers who are
granted notional promotion from back date as a result of review Departmental
Promotion Committee (DPC). The Para 18.4.3 of the said OM is relevant and the same
guides that if a minimum period of qualifying service is prescribed for promotion to
higher grade, the notional period can be counted towards qualifying service. In Union of
India and Others Versus K. B. Rajoria [2000 (3) SCC 562] the Honble Supreme Court
treated service and qualifying service as synonymous but observed that regular service
different from ad hoc service. In the backdrop of the above judicial dicta, if we try to find
out the meaning of the term work experience, we could not get the definition and as
such we refer to the dictionary meaning.

28. Work and experience have been separately defined in Blacks Law Dictionary (Fifth
Edition).
Work has been defined as follows :-

Work. To exert ones self for a purpose; to put forth effort for the attainment of an object;
to be engaged in the performance of a task, duty, or the like. The term covers all forms of
physical or mental exertions, or both combined, for the attainment of some object other
than recreation or amusement. Tennessee Coal, Iron & R.Co. v. Muscoda Local No.123,
Ala., 321 U.S. 590, 64 S.Ct. 698 703, 705, 88 L.Ed. 949. Experience has been defined as
follows :-

Experience. A state, extent, or duration of being engaged in a particular study or work;

the real life as contrasted with the ideal or imaginary. A word implying skill facility, or
practical wisdom gained by personal knowledge, feeling, and action, and also the course
or process by which one attains knowledge or wisdom.

29. Taking a purposive and constructive interpretation of both words Work and
Experience we would construe that there should be actual experience
physically/mentally in a specific position. In the present case, the Applicants in OA
No.2854/2009 joined as JTOs in the year 2009 and though we are directing the
Respondents to treat their appointment retrospectively w.e.f. the date on which their
juniors in the select list were appointed, they do not have physical/mental work
experience in the position of JTO from that date. Therefore, the prayer to consider and
direct the Respondents for interpreting the notional period also towards the work
experience or to direct the Respondents to waive/relax the provisions of minimum
period of 4 years of work experience, the Applicants could not establish the rationality
and basis for us to interfere in the matter. Therefore, all the Applicants in OA
No.2854/2009 would not have work experience from the retrospective date but would
only have from prospective date, the date from which they actually worked in the BSNL.
On the other hand, Applicant in OA No.3120/2009 has joined as TTA way back in 2003
and has got work experience in BSNL. Therefore, he would be entitled to consider as per
the eligibility criteria of 4 years work experience to be considered for competing to the
post of Management Trainees.

30. In the light of the above discussions, well settled position in law, we direct the
Respondents (i) to fix the seniority of the Applicants as per their respective ranks in the
select list of the examination held in the year 2002 for the post of JTOs; (ii) to re-fix
their pay at the time of joining as JTO. Though the Applicants would not be eligible for
back wages, but the period would be counted for increments and their pay would be
fixed at the time of their joining by addition of their increments which they would have
earlier during the interregnum period had they joined service then; and (iii) to pay the
differential salary and allowances as per refixation of pay indicated in (ii) above. We are
of the considered opinion that the antedating of the appointment would not entitle the
Applicants to count the interregnum period towards work experience for the purpose of
consideration of their candidature for the post of Management Trainees. The Applicant
in OA No.3120/2009 having joined in BSNL as TTA with effect from May, 2003, he
would have 4 years of work experience for the said purpose and thus, he would be
eligible for consideration if other wise suitable.
31. With the above directions, the Original Applications are disposed of. A copy of this
order shall be placed in each of the OAs. In view of the typical nature of the case, we do
not pass any order on costs.

(Dr. Dharam Paul Sharma) (Dr. Ramesh Chandra Panda)

Member (J) Member (A)

/pj/