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Anil Kumar Bansal v/s The Union of India, rep. by the Ministry of Communication & Information Technology & Others


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    Original Application No.040/00315 of 2014

    Decided On, 20 February 2015

    At, Central Administrative Tribunal Guwahati Bench Guwahati

    By, THE HONOURABLE MRS. MANJULA DAS
    By, JUDICIAL MEMBER & THE HONOURABLE MR. MOHD. HALEEM KHAN
    By, ADMINISTRATIVE MEMBER

    For the Applicant: Dr. J.L. Sankar, M. Chanda, S. Begum, Advocates. For the Respondents: B.C. Pathak, BSNL Standing Counsel.



Judgment Text

Manjula Das, Judicial Member:

1. Being aggrieved by the non-inclusion of the name of the applicant in the zone of consideration for promotion to the grade of Principal Chief Engineer (C) at par with the fifteen persons named in the letter dated 19.08.2014, the applicant has approached this Tribunal claiming the following reliefs:

'8.1 That the Hon’ble Tribunal be pleased to declare that the applicant is Entitled to get regular promotion to the Grade of Principal Chief Engineer (C) alongwith his juniors named in the impugned letter No.3(1) Pro/PCE(C)/Reg/M (BW-III)/2014 dated 19.08.2014.

8.2 That the Respondents be directed to include the applicant in the zone of consideration for promotion to the grade of Principal Chief Engineer (C) at par with the fifteen persons named in the impugned letter dated 19.08.2014 (Annexure-VII) and incorporate his name in the proposed list contained in the letter dated 19.08.2014 as per his seniority in the feeder cadre of CE (C).

8.3 That the Hon’ble Tribunal be pleased to declare that the applicant is eligible for consideration or promotion to the Grade of Principal Chief Engineer (C).

8.4 Costs of application.

8.5 Any other relief (s) to which the applicant is entitled to, as the Hon’ble Tribunal may deem fit and proper.'

2. Brief facts of the case are that: the applicant is presently serving as regular Chief Engineer (C) and posted at Bharat Sanchar Nigam Limited (BSNL for short), N.E.-1 Civil Zone, Shillong. The next avenue of promotion of the applicant is to the grade of Principal Chief Engineer (C). The applicant and his juniors have been promoted on regular basis in the grade of Chief Engineer on 10.06.2013. In the final seniority list published as on 15.12.2013 in the grade of Chief Engineer (C), the name of the applicant is placed at serial NO.16 and his juniors are placed at serial Nos.17, 18, 19 and 20. According to the applicant, even though he was placed at serial NO.16 in the seniority list, his name was not included in the list dated 19.08.2014 for being considered for promotion to the grade of Principal Chief Engineer (C) whereas, his juniors were included in the said list at serial Nos.12, 13, 14 and 15 and the department sought for their vigilance clearance for regular promotion excluding the case of the applicant.

3. The applicant further stated that no disciplinary proceedings/criminal case was pending against him, as such, it was obligatory on the part of the respondents to consider his case for promotion to the post of Principal Chief Engineer (C) alongwith his juniors. According to the applicant, exclusion of his name in a selective manner from the zone of consideration for promotion to the cadre of Principal Chief Engineer (C) as is evident from the impugned letter dated 19.08.2014 and inclusion of persons junior to him is arbitrary, malafide, unfair, discriminatory and violative of the principles of natural justice and opposed to provisions under Articles 14 and 16 of the Constitution of India.

4. The respondents have contested the case by filing their written statement. The respondents have stated that non-inclusion of the applicant was not an omission but a considered decision based on the rules and recorded reasons. The respondents have further stated that the DOPT had issued guidelines to determine the number of officers to be considered by the DPC (CPC as per Recruitment Rules of BSNL) based on the clear regular vacancies proposed to be filled. The officers who are taken from and out of the eligible officers in the feeder grade (Chief Engineer in the present case), restrict the field of choice. According to the respondents this field of choice is referred to as ‘zone of consideration’. Respondents have further stated that, as per DOPT guidelines the zone of consideration is made from the eligible officers in the order of seniority list who fulfill the eligibility criteria as per the BSNL Management Services (BSNLMS for short) Recruitment Rules, 2009, which, inter alia includes minimum qualifying service i.e. length of service in the lower grade. As per guidelines issued by the DOPT vide O.M. dated 24.03.2011, service records and Vigilance Clearance in respect of the eligible officers are to be submitted to the DPC for submission of proposal to DPC. Respondents further stated that, Vigilance Clearance/APAR of the applicant had not been called as he was not eligible in terms of qualifying service required for promotion to the grade of Principal Chief Engineer (C). According to the respondents the action taken was as per the rules/guidelines. The respondents further stated that, as per Rule 12 of BSNLMS: 'In case of juniors who have completed their qualifying/eligibility service are being considered for promotions, their seniors would also be considered provided they are not short of the requisite qualifying/eligibility service by more than one year on the date of reckoning for promotion to the next higher grade along with their juniors who have already completed such qualifying/eligibility service'. According to the respondents, the applicant is more than two years short of the required qualifying service and hence not qualified. It was further stated that as per eligibility conditions prescribed under BSNLMS a Chief Engineer can be considered for promotion to PCE grade if he has completed 3 years of regular service in the grade of Chief Engineer as on 1st January of the year. Accordingly, the crucial date for checking the eligibility of officers in terms of qualifying service of 3 years for promotion is 1st January. According to the respondents, after the applicant’s promotion to CE (C) vide order dated 10.06.2013 he had completed only 5 months of service on 1st January 2014. As regards the eligibility of other officers, whose Vigilance Clearance had been called for, the respondents have stated that they were promoted on ad hoc basis prior to the date BSNLMS came into effect and became eligible by counting their ad hoc service as per recruitment rules. Respondents further stated that Note 3 of schedule IB of BSNL Recruitment Rules called the BSNLMS, provides that: 'After publication of this BSNL MS RRs, eligible absorbed Group ‘A’ officers shall be promoted/regularized on the vacancies, of their quota as per provisions of these RRs. Those who are working on ad hoc basis may be given next promotion, by relaxing the eligibility service conditions as a one-time measure'. According to the respondents, extension of the aforesaid relaxation in the present case was approved by the Management Committee of BSNL.

5. The respondents further stated that the applicant was absorbed in BSNL after his promotion to the grade of CE (C) on ad hoc basis. According to the respondents, the applicant’s order for absorption was not issued by the DOT, since a disciplinary case against him was under progress, which resulted in a penalty of censure vide order dated 18.03.2009. His order for absorption in BSNL was issued on 16.06.2009. The respondents further stated that, the promotion order in respect of other officers to the grade of CE (C) on ad hoc basis was issued by BSNL vide order 18.03.2008 after considering the executives who were absorbed in BSNL as per BSNLMS provisions. The respondents further stated that as per guidelines, when a penalty is imposed, the concerned executive cannot be considered for deemed date of notional promotion with reference to his juniors and his promotion may be considered in the next DPC in normal course. According to the respondents, since the applicant was not an absorbed officer in the BSNL strength on the date of promotion to CE (C) on ad hoc basis, he was not considered for promotion to SE (C) grade. The respondents further stated that the applicant’s name was not considered for promotion to CE (C) in 2008 as he was not absorbed in BSNL. Moreover, the order for the applicant’s absorption in BSNL was not issued because of pending disciplinary proceedings against him which ultimately resulted in a penalty of censure vide order dated 18.03.2009. On conclusion of the disciplinary proceedings, the order for absorption of the applicant in BSNL was issued by DOT on 16.06.2009. The respondents further stated after settling of various court cases, promotion in the grade of CE (C) on regular basis was issued vide order dated 10.06.2013 the seniority of the applicant in the grade of CE (C) was issued vide order dated 23.05.2014 where, the applicant’s seniority was placed above his junior Shri S.S. Oahiya.

6. The respondents further stated that there were only 5 vacant posts for which process of promotion had been initiated and Vigilance Clearance and ACR of 15 executives had been called for as per DOPT guidelines for making required zone of consideration. The respondents further stated that, though Vigilance Clearance was called for in respect of 15 executives, there were only 5 vacancies to be filled up. The respondents stated that the applicant’s position was at serial NO.16 in the seniority list as on 15.12.2013 (12th position, considering the 4 executives above him who had since retired). According to the respondents, considering the track record of the first five officers, chances of any officer junior to the applicant or beyond 10th position getting promotion are very remote and negligible although their Vigilance Clearance and ACRs had been called for and thus the applicant’s apprehension was without any cogent and reasonable basis.

7. We have heard the learned counsel for the parties, perused the pleadings and material placed on record.

8. Dr J.L. Sarkar, learned counsel for the applicant mainly advanced two fold arguments namely, (a) that the impugned order dated 19.08.2014 has caused serious prejudice to the applicant inasmuch as, in the event of implementation of the said order, name of the applicant would be excluded for consideration from the purview of ‘Zone of Consideration’ though he was a senior employee in the cadre of Chief Engineer. Further, respondents authority had considered the case of the juniors for promotion to the grade of Principal Chief Engineer ignoring the seniority position of the applicant; (b) that the respondents authority had deliberately denied the applicant even ad hoc promotion to the cadre of CE (C) even after the currency of penalty of Censure imposed by the respondents vide order dated 18.03.2009 was over.

9. In the other arguments, Dr Sarkar referred to the office order dated 10.06.2013 promoting 46 Superintending Engineers in BSNL to the grade of CE (C) and submitted that in the said order, the applicant’s name figured at serial No.19 and S/s S.S. Dahiya, Mukesh K. Jain and D.S. Deshwal who were junior to the applicant figured at serial Nos.20, 21 & 22 respectively. As per the aforesaid order, the promotion to the said grade was made effective from 03.06.2013 or from the date of assumption of charge of the post whichever was later. The learned counsel next referred to O.M. dated 23.05.2014, which is the final seniority list in the grade of CE (C) as on 15.12.2013 in respect of executives absorbed in BSNL where, the name of the applicant appeared at serial No.16 and his juniors namely, S/s S.S. Dahiya, Mukesh K. Jain, M.K. Bhargava and D.S. Deshwal were placed at serial Nos.17, 18, 19 and 20 respectively. It was submitted by the learned counsel that the applicant came to know from reliable source, that the BSNL Management had decided to consider promotion to the Grade of PCE (C) from amongst the executives working in the grade of CE (C) by relaxing the required 3 years residency period in the grade of CE (C) and also taking into consideration the service rendered on ad hoc basis in the grade of CE (C) and that many of his juniors in the grade of regular CE (C) were being considered ignoring his case. Accordingly, the applicant submitted a representation on 07.08.2014 with a prayer for consideration of his case for promotion to the grade of PCE (C) on regular basis by granting him deemed date of notional promotion w.e.f. the date he was free from vigilance angle i.e. March 2009 and due for promotion to the SAG grade. According to the learned counsel, without disposing of his representation, the respondents authority, vide letter dated 19.08.2014, sent the names of some of the juniors of the applicant i.e. S/s S.S. Oahiya, Mukesh K. Jain, M.K. Bhargava and O.S. Deshwal calling for their Vigilance Clearance for consideration by the CPC for grant of regular promotion to them to the grade of PCE (C) ignoring the case of the applicant.

10. Or Sarkar further submitted that as per the BSNL Recruitment Rules called as ‘BSNL Management Services’ (BSNLMs for short) Recruitment Rules, 2009, against point 12 i.e. 'Consideration of promotion of seniors with less qualifying service' it is provided that- In case of where juniors who have completed their qualifying/eligibility service are being considered for promotions, their senior would also be considered provided they are not short of the requisite qualifying/eligibility service by more than one year on the date of reckoning for promotion to the next higher grade along with their juniors who have already completed such qualifying/eligibility service'. Dr Sarkar further submitted that as per the Recruitment Rules, for promotion to the grade of PCE from GM or Senior GM grade, 3 years of regular service as on 1st January of the year is required. Dr Sarkar submitted that there is, however, a Note which provides that those who have been working on ad hoc promotion may be given next promotion by relaxation of the eligibility service conditions as a one-time measure. According to the learned counsel, as per Recruitment Rules of BSNL, applicant is also entitled to get his name included in the list to be forwarded for vigilance clearance as has been done !h the case of junior officers in the grade of CE (C).

11. Mr B.C. Pathak, learned Standing counsel for the BSNL, admitted that the representation made by the applicant on 07.08.2014 has not yet been considered by the respondents authority and is still pending disposal. On our query, Mr Pathak also admitted that from 2010 till 2013 no DPC had been convened for promotion for the concerned post. Learned counsel further submitted that the officers whose vigilance clearance has been called were promoted on ad hoc basis prior to the date of effect of BSNLMS and, accordingly, they became eligible for their ad hoc service to be counted as per Recruitment Rules. Learned counsel further submitted that as per Note 3 of Schedule IB of BSNLMS Recruitment Rules- '……Those who are working on ad hoc basis may be given next promotion, by relaxing the eligibility service conditions as a one-time measure'. Learned counsel further submitted that though the vigilance clearance had been called in respect of 15 executives, the number of vacancies to be filled was only 5. The applicant is at serial NO.16 in the seniority list as on 15.12.2013. According to the learned counsel, considering the service record of the first 5 officers, chances of any executive junior to the applicant getting promotion are remote and non-existent. Learned counsel further submitted that the promotion of officers to the grade of eE (e) on ad hoc basis was issued by BSNL vide order dated 18.03.2008 and this order was issued by BSNL after considering the executives who were absorbed in the BSNL whereas, the applicant was absorbed in the BSNL vide order dated 16.06.2009 i.e., after the aforesaid order of promotion on ad hoc basis was issued. According to the learned counsel, the order of absorption of the applicant in BSNL was not issued by DOT because of a pending disciplinary proceeding case against the applicant which, ultimately resulted in a penalty of ‘censure’ vide order dated 18.03.2009.

12. Mr B.C. Pathak vehemently argued that as per guidelines, when a penalty is imposed, the concerned executive cannot be considered for deemed date of notional promotion with reference to his junior and his promotion has to be considered in the next DPC in normal course. It was further submitted that after the disciplinary proceedings against the applicant was concluded vide order dated 18.03.2009, his case was considered in the next CPC held in normal course in 2013. According to the learned counsel, the executives absorbed in BSNL can only be considered under BSNLMS for promotion. Since the applicant was not absorbed in BSNL when others were considered for promotion to the grade of CE (C) on Ad hoc basis in 2008, he was not considered. Learned counsel further submitted that, all the 15 executives whose names appeared in the impugned letter dated 19.08.2014 were similarly placed so far as the period of regular service in the feeder grade of CE (C) was concerned by fulfilling the eligibility criteria. According to the learned counsel, the applicant did not disclose before the Tribunal the fact that the other executives were working in CE (C) grade on ad hoc basis since the order dated 22.08.2008 and that the period of their ad hoc service had been counted as per provisions of BSNLMS and approval of the Management Committee of BSNL towards the qualifying service of 3 years for promotion to PCE (C) grade and also that they were absorbed in BSNL service for the said required period. Learned counsel submitted that the applicant had not worked on ad hoc basis prior to his promotion to CE (C) on regular basis and had not been absorbed in the BSNL for the relevant period as required under the BSNLMS. Therefore, according to the learned counsel, his case was different from the 15 executives listed in the impugned letter dated 19.08.2014 and hence he was not stmilarly situated. It was further submitted by the learned counsel that the relaxation available in the BSNLMS is not applicable to the applicant as he did not fUlfill the conditions required under BSNLMS, as provided under Note 3 of Schedule IB of BSNLMS.

13. Learned counsel for the respondents submitted that, the disciplinary proceedings against the applicant were initiated under the rules and sealed cover procedure was adopted in his case for promotion. The disciplinary proceedings against the applicant concluded and a penalty of censure had been imposed on him. Therefore, as per guidelines, the sealed cover proceeding was not required to be opened and applicant’s case for promotion was required to be considered in normal course, which was followed by the respondents. To substantiate his argument, learned counsel cited the decision of the Hon’ble Supreme Court in Union of India vs. K. V. Jankiraman, (1991) 4 SCC 109, wherein it was held that: 'If employee is visited with any penalty in disciplinary proceedings or found to be guilty by criminal court, the sealed cover shall not be acted upon and his case for promotion may be considered in usual manner by next DPC'. Learned counsel further relied on the decision of the Hon’ble Supreme Court in R. Prabha Devi & Ors. vs. Government of India, through the Secretary, Ministry of Personnel, 1988 AIR 902, wherein it was held that: 'Seniority in a particular cadre does not enable a public servant for promotion to a higher post unless he fulfills the eligibility condition prescribed by the relevant rules'.

14. In reply to the arguments advanced by Mr B.C. Pathak, Dr J.L. Sarkar, learned counsel for the applicant submitted that it is settled position of law that as soon as the currency of penalty is over, an employee is entitled for being considered for promotion immediately after the date of expiry of the penalty. I support of his contention, Dr Sarkar cited the decision of the Hon’ble Supreme Court in Union of India vs. K. Krishnan, 1992 (Supp-3) SCC 50, wherein it was held that: '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 September 14, 1990. In that view he may be promoted immediately thereafter with effect from September 15, 1990, provide he is not otherwise disqualified for promotion by incurring some other disqualification. The appeal is accordingly allowed………'. Learned counsel further cited the decision of the Hon’ble Gauhati High Court in Bina Kakoti vs. State of Assam, W.P. (C) No.4455/2012, wherein it was held that: 'Learned counsel for the petitioner placing reliance on the decision of the Apex Court reported in 1992 Supp (3) SCC 50 (Union of India Vs. K. Krishnan) submits that a direction may be issued to consider the case of the petitioner upon expiry of the period of penalty, which will expire on 20.10.2014.

'In view of the above, the writ petition is disposed of without interfering with the promotion of the juniors to the petitioner. However, her case may be considered upon expiry of the penalty on 20.10.2014 as expeditiously as possible'.

15. Learned counsel for the applicant submitted that when juniors have been promoted to the post of Chief Engineer on ad hoc basis in the year 2008 and the penalty of censure was imposed on the applicant only on 18.03.2009, the applicant could not have been denied ad hoc promotion during the recruitment years 2009-10; 2010-11; 2011-12 as well as during the year 2012-13. Dr Sarkar further submitted that the applicant had repeatedly prayed before the authority vide his representations dated 08.04.2009 and 21.04.2010 for consideration of his case for promotion, but to no avail. According to the learned counsel, the applicant being senior he ought to have been promoted. In support of his contentions, learned counsel relied upon the decision of the Hon’ble Supreme Court in 'Shri A.Sagavanathan & Others vs. D.P.O. SBC Division, Southern Railway, Bangalore, 1992 Supp. (II) SCC 172, wherein it was held as follows:

'It is not disputed that the juniors of the appellants had been promoted. However, respondent’s counsel submits that the juniors were promoted for justifiable reasons. Whatever may be the reasons which prompted the respondent to promote the juniors in preference to the appellants, the fact is that the appellants had a genuine grievance insofar as they had been superseded by their juniors. This was precisely the dispute, which the Tribunal ought to have considered '

16. Dr Sarkar further submitted that ad hoc appointment/promotion shall automatically cease on the expiry of the one year term without approval of the DOPT and all ad hoc appointments are required to be reviewed at least once a year. According to the learned counsel, in the instant case, the BSNL authority, without holding any periodical review of the ad hoc promotion to the grade of Chief Engineer allowed the juniors of the applicant to continue on ad hoc promotion in total violation of the statutory instructions. The learned counsel submitted that the respondents have thereby deliberately ignored and overlooked the claim of the applicant who was senior to many of such ad hoc promotees and they were allowed to continue as such even after the currency of penalty of censure imposed upon the applicant had expired in an illegal an arbitrary manner. Learned counsel further submitted that in similar facts and circumstances for the purpose of promotion, the respondents authority in the case of Superintending Engineer (Civil) granted/extended the benefit of deemed date of notional promotion w.e.f. 30.12.2004/28.03.2005 to as many as six Superintending Engineers of the BSNL authority, for the purpose of covering the shortfall in reckoning the eligibility for promotion to the grade of Chief Engineer (C), even though the said Superintending Engineers namely, A.K. Ram, M.S. Siddiqui, S. Chelapan, S.P. Ram, S.K. Bhardwaj and S.K. Koul had not rendered any ad hoc service in the grade of Superintending Engineer, but the benefit of deemed promotion/notional promotion was granted to them only to facilitate their promotion to the grade of Chief Engineer (C). Learned counsel vehemently argued that, the penalty of censure imposed upon the applicant vide order dated 18.03.2009 had lost its force on 18.03.2010, but even thereafter, the case of the applicant was not considered for ad hoc promotion to the grade of CE (C). Learned counsel submitted that, admittedly, there was no DPC meeting held for ad hoc promotion since 2008 to 2012-13, due to administrative error and lapses and, therefore, the applicant cannot be made to suffer for the same.

17. Heard the learned counsel for the parties, perused the pleadings and material placed on record and the precedents relied upon.

18. The main issue involved in this case apropos depriving the applicant by not forwarding his name for regular promotion to the grade of PCE (C) for Which the department had called for Vigilance Clearance in respect of 15 officers in the grade of CE (C) excluding the name of the applicant. Rather, names of four officers in the grade of CE (C) namely, S/s S.S. Dahiya, Mukesh K. Jain, MK Bhargava and D.S. Deshwal, who were junior to the applicant, were forwarded calling for their Vigilance Clearance for their regular promotion to the post of Executive in the grade of PCE (C) in BSNL.

19. The applicant initially joined as Assistant Executive Engineer (Group ‘A’ post) in the Department of Telecommunication (DOT) on 18.03.1980 after qualifying in the 1978 UPSC Engineering Services Examination. In December 1988 he was promoted to the post of Executive Engineer and thereafter to the post of Superintending Engineer in November 1995. Pursuant to the creation of Bharat Sanchar Nigam limited (BSNL) in the year 2000, the services of Executives working In the DOT were transferred to BSNL w.e.f. 01.10.2000 and they were subsequently absorbed in BSNL. On 04.01.2005, the applicant was regularized in the cadre of Superintending Engineer (C) in the Junior Administrative Grade (JAG). In the seniority list of JAG officers, the name of the applicant was at serial No.56. Vide order dated 22.08.2008, some JAG officers junior to the applicant whose names appeared upto serial Nos.80 in the aforesaid seniority list of JAG officers were promoted to the grade of CE (C) on ad hoc basis w.e.f. 18.03.2008. Though the applicant was placed at serial No.66 in the said seniority list, he was not granted ad hoc promotion to the grade of CE (C) whereas, his juniors in the list placed at serial Nos.67 to 80 had been granted ad hoc promotion. The reason cited by the respondents is that there was a disciplinary proceeding case pending against the applicant, which was initiated in the year 2004. In March 2009, the disciplinary proceedings initiated against the applicant was concluded and a minor penalty of censure was imposed upon the applicant by the UPSC. Vide order dated 16.06.2009, the applicant was absorbed in BSNL as Executive (Civil). Subsequently, the applicant was granted upgradation to the Non-Functional scale of Rs.62,000-80,000/- and then on, 10.06.2013 the applicant was promoted to the grade of CE (C).

20. The crux of the matter is that names of 15 officers including some juniors of the applicant, as per the final seniority list as on 15.12.2013 in the grade of CE (C), were forwarded calling for their Vigilance Clearance for consideration for promotion to the grade of PCE (C). In the said seniority list (Annexure IV to the O.A.) dated 23.05.2014, the name of the applicant appears at serial NO.16 whereas, some junior officers namely, S/s S. S. Dahiya, Mukesh K. Jain, M.K. Bhargava and D.S. Deshwal are placed below the applicant at serial Nos.17, 18, 19 & 20 respectively but their names were included in the impugned letter dated 19.08.2014 calling for their Vigilance Clearance for consideration for regular promotion to the grade of PCE (C). In the said letter dated 19.08.2014 the applicant’s name was left out and the reason assigned by the respondents is that, Vigilance Clearance was called for in respect of officers who had been promoted on ad hoc basis prior to the date BSNLMS came into effect and thereby they had become eligible by taking into account their ad hoc service as per the Recruitment Rules. We would refer to the BSNLMS Recruitment Rules, 2009 where the method of recruitment, field of promotion etc. to various posts including the post in question i.e., PCE(C) have been prescribed. For the post of PCE (C) the minimum qualification required for promotion is prescribed as under:

'Executives in General Manager or Senior General Manager’s Grade who have completed 3 years of regular service in General Manager/Senior GM’s grade as on 1st January of the year.'

To make it clear we would refer to serial NO.5 under Schedule-IB of BSNLMS Recruitment Rules 2009 where, General Manager/CE/CA is shown as equivalent to SAG. Further, Note 3 of Schedule-IB provides as hereunder:

'After publication of this BSNLMS RRs, eligible Absorbed Group A officers shall be promoted/regularized on the vacancies of their quota as per provisions of these RRs. Those who have been working on ad hoc basis may be given next promotion, by relaxing the eligibility service conditions as a one-time measure'.

21. The respondents authority on the basis of Note 3 of Schedule-IB of the BSNLMS Recruitment Rules, quoted above, forwarded the names of 15 officers including the names of the aforementioned four officers who were junior to the applicant vide the impugned letter dated 19.08.2014 by giving relaxation in respect of requisite qualifying service of 3 years as GM/GE.

22. In bur opinion, the applicant was placed at serial No.16 of the final seniority list above the aforementioned four junior officers and, therefore, the said junior officers, in respect of whom Vigilance Clearance had been called for, ought not to have been brought within the zone of consideration for promotion to the grade of POE (G) ignoring the case of the applicant. The disciplinary proceedings against the appellant were initiated in the year 2004 and the proceedings were concluded in the year 2009 by imposing a minor penalty of censure vide order dated 18.03.2009. The applicant was absorbed thereafter vide order dated 16.06.2009. The applicant could not be considered for further promotion/ad hoc promotion only because DPCs Were not convened in a regular manner despite junior officers being considered for promotion to CE (C). In Premachandran vs. State of Kerala and others, (2004) 1 SCC 245, the Hon’ble Apex Court has held that: 'Delay in convening the DPC being administrative lapse, promotees cannot be made to suffer for no fault on their part'. Similarly, in State of Maharashtra vs. Jagannath Achyut Karandikar, 1989 Supp (1) SCC 393, the Hon’ble Apex Court has held that: 'Making employees to suffer adversely for the default or lapse on the part of the Government itself, would be unjust, unreasonable and arbitrary'. Admittedly, as per the seniority list in the grade of CE (C), the applicant is senior and placed above the four officers mentioned above whose names were forwarded vide impugned letter dated 19.08.2014 calling for their Vigilance Clearance for consideration for regular promotion to the grade of PCE (C).

23. In Shri A. Sagavanathan & Others vs. D.P.O. SBC Division. Southern Railway, Bangalore (supra), the Hon’ble Apex Court held that: 'It is not disputed that the juniors of the appellants had been promoted. However, respondent’s counsel submits that the juniors were promoted for justifiable reasons. Whatever may be the reasons which prompted the respondent to promote the juniors in preference to the appellants, the fact is that the appellants had a genuine grievance insofar as they had been superseded by their juniors'.

24.

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In the instant case, even though the reason cited by the respondents is that the applicant was more than two years short of the required qualifying service, he not being an ad hoc appointee like his juniors, the applicant ought to have been considered by the respondents authority as he was senior to the officers whose names were forwarded for promotion to the grade of PCE. Therefore, the ground taken by the respondents is not acceptable inasmuch as, in a similar situation like that of the present applicant that arose in case of promotion of six Superintending Engineers (Civil) of the BSNL, the respondents authority vide Office Order dated 27.08.2012, granted/extended them the deemed date of notional promotion for the purpose of covering the shortfall in reckoning their eligibility for promotion to the grade of CE (C). 25. We have given our thoughtful consideration to the Office Order dated 27.08.2012 (Annexure D to the Rejoinder of the applicant) which reflects the logical approach adopted by the BSNL in case of promotion of the aforementioned six officers in the grade of Superintending Engineer (Civil) of BSNL to the grade of Chief Engineer (Civil). The respondents authority vide the aforesaid order dated 27.08.2012 conveyed the approval of the competent authority to grant deemed date of notional promotion to the six BSNL absorbed officers namely, AK Ram (SC), M.S. Siddiqui, S. Chelapan (SC), S.P. Ram (SC), S.K. Bhardwaj and S.K. Koul working in the BSNL as Superintending Engineers (Civil) for the limited purpose of covering the Shortfall in reckoning their eligibility for promotion to the grade of CE (C). The BSNL authorities had granted/extended the benefit of deemed date of notional promotion to S/s A.K. Ram, M.S. Siddiqui, S. Chelapan w.e.f. 30.12.2004 and to S/s S.P. Ram, S.K. Bhardwaj and S.K. Koul w.e.f. 28.03.2005 retrospectively even when they had not rendered any ad hoc service in the grade of Superintending Engineer (SE). It appears that the benefit was granted to them only to facilitate their promotion to the Grade of CE (C) for which the eligibility criteria as per BSNLMS Recruitment Rules 2009 is 5 years service in the grade of SE. 23. Considering the arguments advanced by the learned counsel for the parties at the time of hearing and taking into consideration the entire conspectus of the matter and the discussions made above as well as the ratio laid down by the courts, we are of the view that, as some officers junior to the applicant in the seniority list had already been considered by counting their ad hoc service in the grade of CE for promotion to the grade of PCE as a one-time measure on the basis of Note 3 of Schedule IB of the BSNLMS Recruitment Rules 2009, for which their Vigilance Clearance had been called for, the applicant’s name ought to have been forwarded for placing him in the zone of consideration and for calling his Vigilance Clearance along with his juniors by granting him deemed date of notional promotion in the grade of CE (C) for the purpose of covering the Shortfall for consideration of his eligibility for promotion to the post of PCE, Accordingly, we direct the respondents authority to forward the name of the applicant along with the officers who are junior to him in the grade of CE by granting him deemed notional promotion for consideration of his case for promotion to PCE for which Vigilance Clearance of his juniors had already been called for. 24. With the above observation and direction, the O.A. stands disposed of. No order as to costs.
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