Judgment · High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDate:- 29.08.2007 CoramThe Honourable Mr. Justice M. CHOCKALINGAMW.P. Nos.45751 to 45754 of 2006andM.P. Nos.2+2+2+2 and 3+3+3+3 of 2007C. Kamakala... Petitioner in W.P.No.45751/2006Jayalakshmi Natarajan... Petitioner in W.P.No.45752/2006Usharani Natarajan... Petitioner in W.P.No.45753/2006K. Malathi... Petitioner in W.P. No.45754/2006..vs..

The Chairman and ManagingDirector, Bharat Sanchar Nigam Ltd., B.201, Statesman House, New Delhi – 110 001.

Assistant Director General(Training Finance), Bharat Sanchar Nigam Ltd., Training Finance Section, B.201, Statesman House, New Delhi – 110 001.

The Chief General Manager, Bharat Sanchar Nigam Ltd., Chennai Telephones, No.78, Purasawalkam High Road, Chennai – 600 078.

The Chief Accounts Officer(Finance Coordination), Bharat Sanchar Nigam Ltd., Chennai Telephones, 78, Purasawalkam High Road, Chennai – 600 078. https://hcservices.ecourts.gov.in/hcservices/

The Deputy General Manager(Admn.), Bharat Sanchar Nigam Ltd., Chennai Telephones, No.89, Millers Road, Chennai – 600 010.

Mrs. Lalitha Ravi, Junior Accounts Officer (TR) Central, O/o. Deputy General Manager, Chennai Telephones, 146, Greams Road, Chennai – 600 006.

Mrs. Hemalatha Umesh Naig, Junior Accounts Officer (TR), South West, Chennai Telephones, Panagal Buildings, Saidapet, Chennai – 600 015.... Respondents in all W.Ps.Petitions under Article 226 of the Constitution of India, prayingto issue a writ of certiorarified mandamus, to call for the recordspertaining to the proceedings of the second respondent bearing F.No.29-5/2006 (Trg. Fin.) dated 1.11.2006 and quash the same insofar as it relatesto inclusion of the names of 6th and 7th respondents and consequently directrespondents 2 and 5(W.P. Nos.45751 and 45752 of 2006) and respondents 1and 2 (W.P. Nos.45753 and 45754 of 2006) to include the names of thepetitioners in the JAO's Induction Training Phase – 1 (4 weeks) scheduledto commence from 13.11.2006 and on subsequent dates. For Petitioner : Mr. V. KalyanaramanFor Respondents : Mr. S. Udayakumar, S.C.G.S.C.COMMON ORDERThe present writ petitions have been brought forth by thepetitioners seeking to issue a writ of certiorarified mandamus, to callfor the records pertaining to the proceedings of the second respondentbearing F.No.29-5/2006 (Trg. Fin.) dated 1.11.2006 and quash the sameinsofar as it relates to inclusion of names of 6th and 7th respondents andconsequently direct respondents 2 and 5 (W.P. Nos.45751 and 45752 of 2006)and respondents 1 and 2 (W.P. Nos.45753 and 45754 of 2006) to include thenames of the petitioners in JAO's Induction Training Phase – 1 (4 weeks).2. Affidavits filed in support of the writ petitions are perused. The Court heard the learned counsel appearing on either side. https://hcservices.ecourts.gov.in/hcservices/

3. The case of the petitioners in short is that they wereoriginally appointed as Telegraph Assistants and they were working as Junior Accounts Officer (Officiating) in the respondent-Company. Thosepersons, who have completed three years of service in class III posts, areeligible to write the departmental examination for being considered forpromotion to the post of Junior Accounts Officer. The petitioners wrotethe departmental examination for Junior Accounts Officers Part – I andpassed the said examination and thereby became eligible for writing PartII examinations. The departmental examination for Junior AccountsOfficer, Part II was held from 27.3.2006 to 29.3.2006. All thesepetitioners wrote the examination. Along with these petitioners, fiveothers also wrote the examination. The results were declared with regardto third and fourth respondents only in May, 2006 who became qualified in Junior Accounts Officer Part II examination, but the results of thepetitioners were not declared.

Following the representations made by thepetitioners, the results were announced that the petitioners alsoqualified in Part II examination. 4. After passing examination in Part II, induction training wasto be imparted. In order to fix the inter se seniority of the JuniorAccounts Officers, the said training program was held in three phases. While the first phase training was for a period of four weeks, the secondand third phase training was also for equal time. The petitioners wereunder the impression that they would also be sent for induction trainingPhase – 1. But when the impugned proceedings were issued on 1.11.2006announcing the candidates, the names of 6th and 7th respondents wereincluded, but not that of the petitioners. Under such circumstances, arepresentation was also given to the General Manager(O) of the respondentherein, but the same was not yet considered. Hence the proceedings, whichis the subject matter of challenge in these writ petitions, issued by thesecond respondent is arbitrary and unreasonable and it has got to bequashed.5.

Learned counsel appearing for the petitioners would submitthat it is not in controversy that all the petitioners have passed Part Iof the examination and only on getting qualification, they were allowed towrite Part II examination, which took place from 27.3.2006 to 29.3.2006.The results were originally not announced and subsequent to therepresentation, it was announced. In the list of induction trainingprogram, though their names were not included, the names of sixth andseventh respondents were included. Challenging the same, the presentwrit petitions have been filed.6. In answer to the above, learned counsel appearing for BSNLrelied on Junior Accounts Officer Recruitment Rules, 2001 (hereinafterreferred to as "Rules") and submitted that the appointments for JuniorAccounts Officer could be made only according to their ranks obtained bythem in the list of qualified candidates. 50% of the vacant posts in thecircle by direct recruitment through open competitive examination and 40% https://hcservices.ecourts.gov.in/hcservices/ of the vacant posts in the Circle by promotion from the employees workingin BSNL through internal competitive examination and 10% of the vacantposts in the circle by promotion from Senior Accountants working in BSNLthrough internal competitive examination.

As per the Rules, it was onlycompetitive examination. 7. Apart from these petitioners, three others also wroteexamination, who are respondents 5 to 7. Insofar as fifth respondent isconcerned, he fell under the category of 10% through internal competitiveexamination. These petitioners fell in the category of 40% of the vacantposts in the Circle by promotion from the employees working in BSNLthrough internal competitive examination. As per the Rules, it was onlycompetitive examination. The tabular column clearly indicates thatrespondents 6 and 7 got more marks than these petitioners in theexamination. Only three vacancies were available at the time of fillingof vacancies. The remaining vacancies, except 10% category, have to befilled up by respondents 6 and 7, since they got more marks than thesepetitioners and thus, no more vacancy was available. The vacancies werefilled up after following the Rules strictly. Apart from this, it is thecompetitive examination. Hence the writ petitions have got to bedismissed.

It is brought to the notice of this Court that insofar aspetitioners in W.P. Nos.45752 to 45754 of 2006 are concerned, they havepassed Part II examination and petitioner in W.P. No.45751 of 2006 isconcerned, he has also passed the examination by awarding grace marks bymistake.

The Court paid its anxious consideration on the submissionsmade by either side. It is not in controversy that these petitioners, whopassed Part I of examination, were allowed to write the examination of Part II, which took place from 27.3.2006 to 29.3.2006. It is also not incontroversy that originally the results of these petitioners were notdeclared. After submitting representation only, the results of thepetitioners were declared. Thereafter, BSNL came forward to submit thatpetitioners in W.P. Nos.45752 to 45754 of 2006 have passed the examinationand petitioner in W.P. No.45751 of 2006 has also passed the examination byawarding grace marks by mistake. The said contention cannot becountenanced and the BSNL cannot be permitted to say that the petitionerin W.P. No.45751 of 2006 has not passed the examination.

The question is whether the deletion of these petitioners andinclusion of respondents 6 and 7 is proper or not, for which, thecontention of petitioners' side is that it is the departmental examinationand not competitive examination. Under the circumstances, once they havepassed the examination, they should be sent for training. But, BSNL cameforward to say that as per the Rules, it was not competitive examination. The Court has to find out the examination conducted was departmental ascontended by the petitioners or competitive as put forth by therespondents. After going through the materials placed before this Court, https://hcservices.ecourts.gov.in/hcservices/ it is quite evident that the examination was only competitive. As per the Rules, which came into force on 31.8.2001, the examination was onlycompetitive. For reference Rule 13 of the Rules reads as follows:-"13. Certain categories of persons eligible forappointment as Junior Accounts Officers in the BharatSanchar Nigam ltd.: Persons of the Deptt. OfTelecommunication/Deptt. Of Telecom Services/Deptt. of Telecom Operations who have passed Part-I and Part-IIof the Examination conducted by the Department of Telecom/DTS/DTO and have not been appointed as JuniorAccounts Officers before the notified date, shallafter such date be appointed as Junior AccountsOfficers in BSNL, according to the ranks obtained bythem in the list of qualified candidates. "

From the above, it would be quite clear that the persons havegot to be appointed according to their ranks obtained in the list ofqualified candidates. Further, it could be well seen from the Schedulethat the period of probation was two years. As per Clause (A) of Schedule, 50% of the vacant posts in the circle by direct recruitmentthrough open competitive examination and 40% of the vacant posts in the Circle by promotion from the employees working in BSNL through internalcompetitive examination and 10% of the vacant posts in the circle bypromotion from Senior Accountants working in BSNL through internalcompetitive examination.

From the above, it is quite clear that all the threecategories have to be filled in only by the competitive examination. Thus, it is no doubt that even though the petitioners fell in the categoryof 40%, the vacancy was only three. As could be seen from the availablematerial, it is clear that out of total persons, who wrote theexamination, three could be appointed and fifth respondent was to beappointed since he fell under 10% of the vacant posts from the persons tobe promoted from Senior Accountants working in BSNL. Then, only twoposts to be filed in by B.S.N.L. From the tabular as to the marks securedin the competitive examination, it could be seen that respondents 6 and 7secured more marks than the petitioners. Hence, as per the Rules, respondents 6 and 7 have to be appointed, which has been doneaccordingly.

Now the learned counsel for the petitioners took the Courtthat in all the communications, nowhere it is found it was a competitiveexamination, but only in respect of 10% vacancy it is found that it wascompetitive examination. It is true that the competitive examination isnot found in the communications. Even then, the Court is of theconsidered opinion that once appointment to the post of Junior AccountsOfficers was to be done, it has got to be done strictly in accordance withthe Rules framed. In the instant case, the Rules framed in 2001. Once https://hcservices.ecourts.gov.in/hcservices/ the examination has been conducted pursuant to the Rules, which alreadycome into force in August, 2001, it cannot be said that any deviation ismade. Merely because at the time of examination, it was not declared orit was not stated that the examination was either competitive ordepartmental, that did not mean that the Rules were not followed. Following the Rules only, the examination was conducted. If thecontention put forth by the learned counsel for the petitioners has got tobe accepted, it is nothing but permitting the respondents to go bybreaching the Rules already in force, which cannot be done.

Further in the instant case, learned counsel brought to thenotice of this Court, subsequently examination for Part I has beenconducted. If there is no vacancy, no need to conduct Part I examination, for which, learned counsel for BSNL would submit that the vacancies havegot to be found out through different States. What is actually found is Tamil Nadu circle. After making Notification, procedural formalities haveto be followed. Hence the case of the petitioners cannot be considered.