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BRIEF OF 270 CASE
L D C Es 1986, 1987, 1988 & 1989.
DOT had submitted the facts in a table form in CAT, Madras Bench as Annex.-R1
a. LDCE was held in May 1986 for 150, 220 and 102 vacancies for the years 1983, 1984, 1985 respectively and 129, 137 & 99 against the same years had qualified and promoted from various dates retrospectively.
b. LDCE May’1987 was held for 94 vacancies and all 94 qualified candidates promoted in May 1988.
c. LDCE Nov’1988 was held for 118 vacancies and only 113 qualified and promoted in Aug.1989. 5 posts remain unfilled as qualified candidates were not available.
d. LDCE was held in 1989 and all qualified candidates promoted.
Court Cases:
1. Some aggrieved candidates of LDCE 1986 filed OA No.1982 of 1995 in CAT, Ernakulam Bench which directed the following on 03.02.1998 :
Unfilled vacancies against the 33-1/3% quota ought to be carried forward from year to year till they are filled by eligible LDCE qualified candidates.
2. Following the CAT, Ernakulam Bench direction, one Shri K S Hegde, claimed to have qualified at the LDCE Nov’1988 has been promoted against one of the carried forward vacancies as per the direction of CAT, Bangalore Bench in OA No. 961 of 1999 dated 30.06.2000. Similar case had came up in CAT, Chandigarh and the Bench directed to consider the case in the light of CAT, Ernakulam and CAT, Bangalore.
3. DOT taking the direction from CAT, Ernakulam Bench, declared additional 270 candidates successful in LDCE (64 from 1987 & 206 from 1988 LDCE ) vide order no.15-78/99-STG-II dated 01.02.2001 and issued promotion order on 01.02.2001 but, allowed them retrospective seniority of 13 years i.e. seniority from 1987 and 1988.
( Our observation- Pls refer ‘c’ above : If, 113 qualified and promoted against 118 vacancies of LDCE 1988 in Aug’1989 then, what made DOT not to promote the rest 5 who were subsequently made qualified on 01.02.2001 and promoted on the same day with retrospective seniority of 13 years ?)
( Suppose, the result of one High School (10th) student is declared to-day after a gap of five years, can the student be allowed to join in the Post Graduate class?)
( Promotions and seniority under qualifying quota is counted from the date of DPC irrespective of the creation of vacancy, so, why the same should not be adopted in LDCE quota promotions. Otherwise, retrospective date of seniority be allowed to promotions under qualifying quota.) 4. Aggrieved by DOT order no.15-78/99-STG-II dated 01.02.2001, OA No. 305 of 2001was filed in CAT, Madras Bench which had observed and directed the following on 28.09.2001:
Para 22- On the basis of the result of LDCE of 1987, 91 candidates had already been selected and appointed in May and September 1988. Similarly on the basis of LDCE held in 1988, 108 candidates had already been selected and appointed in August and December 1989. Declaration in February 2001 that further 270 candidates are successful on the basis of those LDCEs held in 1987 and 1988 consequent publication of a fresh seniority list give rise different cause of action.
Para24- They were also promoted against the 66-2/3% vacancies in the promotion quota in 1993 & 1994 and they have never challenged their non promotion in the 33-1/3% LDCE quota when LDCE 1987 and 1988 successful candidates were promoted in the years 1988 and 1989.
Para 26- “The respondents submit that there is no illegality in declaring and promoting the said 270 officers in the DOT orders dated 1.2.2001 for the vacancy years 1986 and 1987 retrospectively and giving them seniority”. (
Para 32- When the impugned order itself does not state that the appointment is retrospective, it cannot be assumed that the appointments are retrospective.
Para 32 a.- When direct recruits are appointed long after occurrence of vacancies even in their quota, it is well settled that their appointments cannot be taken to be retrospective. This issue came up for specific consideration of the Honorable supreme court in the case of Suraj Parkash Gupta and others vs. State of J&K & others(2000 SCC (L&S) 977). Paragraph 80 and 81 of the said judgment are relevant.
( Eleven similar Judgments of Apex Court and one from Tribunal are readily available.
i. 01.11.1976 - N.K. CHAUHAN vs. STATE OF GUJARAT 1977AIR 251,
1977(1) SCR1037, 1977(1)SCC 308..
ii. 26.04.1983 - A. JANARDHANA vs. UNION OF INDIA 1983 (2) SCR 936.
iii. 23.05.1984 - P. S. MAHAL vs. UNION OF INDIA 1984 AIR 1291.
iv. 12.02.1987 - A.N.PATHAK vs. Ministry of Defence: WP(C) 1889 of 1978
1987AIR716.
v. 02.05.1990 - Direct recruit class II Engg. Officers association vs. State of Maharashtra
1990 AIR 1607 ,1990 SCR (2) 900, 1990 SCC (2) 715.
vi. 26.08.1996 - KUTTIYAPPAN vs. UNION OF INDIA SLP (C) No. 18584 of 1996.
vii. 07.04.1998 - JAGDISH CHANDRA PATNAIK, NALINIKANTA MOHAPATRA
vs. STATE OF ORISSA 1998 AIR 1926.
v. 28.04.2000 - SURAJPARKASH GUPTA vs. STATE OF J & K 2000 SCC (L&S )
977 CA (C) 3034 of 2000.
x. 25.09.2002 - Sanjiv Mahajan, Pankaj Saxena, Kamal Khanna vs. UNION OF INDIA.
viii.25.09.2006 - UTTARANCHAL FOREST RANGERS’ ASSOCIATION (Direct
Recruit) vs. STATE OF U.P CA No.4249 of 2006 (Arising out of SLP (C)
No.7375/2005) & CA No.4250 of 2006 (Arising out of SLP(C) No.1860/2006)
2006(6) Supp SCR609,
vii. 16.05.2007 - NANI SAH vs. STATE OF ARUNACHAL PRADESH 2007 AIR 2356,
2007(6) SCR1027, CANo.2665 OF 2007 (Arising out of SLP (C) No.19542 of 2005).
xii. 05.03.2009 - C A T Principal Bench OA No. 911 of 2007. )
Para 32 d.- However, they were first appointed in the LDCE quota by only order dated 1.2.2001. Therefore, appointment dates cannot relate back to vacancy dates or event to 1987 or 1988 in the LDCE quota.
Para 36- It needs hardly to be said the pre-requisite for counting of seniority is appointment. Seniority follows appointment.
….. Whatever be the position, seniority is tied up with the date of appointment.
.......there is no declaration in the impugned order that the promotions take effect from a date prior to 1.2.2001.
…. we have held that the promotion of 270 officers in LDCE quota took effect from only 1.2.2001.
Para 50- In the result, while we do not interface with the declaration of result of the 270 candidates as per order dated 1.2.2001, we are unable to endorse the seniority assigned to them in the provisional seniority list dated 1.2.2001 and the final seniority list dated 20.3.2001. In other words, they cannot be assigned seniority as per rule 2(iii) with reference to the date of occurrence of the vacancy in the LDCE quota, dehors their actual date of appointment in the promoted post in that quota.
Para 52- For the foregoing reason, we set aside the seniority assigned to the candidates covered by the impugned order dated 1.2.2001
5. Aggrieved by order dated 28.09.2001in OA No. 305 of CAT, Madras Bench, DOT and some private respondents in Tribunal has filed WP No. 21961 and WP No. 22087 of 2001in the High Court of Madras. The High Court in its judgment dated 02.04.2008 directed the following :
Para 17- Keeping in view the peculiar facts and circumstances of this case, which have been noticed earlier, we do not find there is any scope to interfere with the decision of the Central Administrative Tribunal. The writ petitions are therefore dismissed. No costs. Consequently, the connected miscellaneous petitions are closed.
6. Aggrieved by order dated 02.04.2008 of the High Court of Madras in WP No. 21961 and WP No. 22087 of 2001 some private respondents has filed CA No. 3149 of 2009 arising out of SLP ( C ) No.11339 of 2008 which is pending in the Apex Court since 2008.
4. Brie of 147 Case - Combined Qualifying-cum- Competitive Examination 2000 and Special Supplementary LDCE 2003 .
a. DOT through an affidavit in OA no. 297 of 1998 before CAT Ernakulam Bench has submitted the following :
i. In the year 1990 the Dept. created 3200 SDE posts by up gradation with matching savings. The up gradation was done considering huge stagnation in the cadre of J T Os. The Dept. in order to promote senior and eligible J T Os took decision for suspending the “LDCE.” for 3years, that is for the years, 1990-91, 1991-92, and 1992-93. Consequently all the vacancies available against these 3years were filled up as per “Seniority-cum-fitness” basis only.
ii. Subsequently in the year 1993 the Dept. created 2636 SDE posts by up-gradation with matching savings to avoid reversion of about 550 SDEs promoted and working on regular basis. The Dept. in order to overcome the problem of reversion to restrict the up-gradation of JTO posts to minimum and also to meet the request made by the J T O Association India), had decided to further suspend the competitive exam. For three more years, i.e., for 1993-94, 1994-95, and 1995-96. Accordingly the Dept. held the DPC for the year 1993-94 and filled up all the vacancies by “Seniority-cum-fitness” basis only. The DPCs for the year 1994-95 and 1995-96 are yet to be held and according to the decision already taken by the Dept. no vacancy is required to be kept for 1/3rd competitive exam. However the Dept. has to keep 1/3rd portion of the vacancies available for the period 1.4.1996 to 22.7.1996 for competitive exam.
iii. Thus during the period 1.4.1990 to 31.3.1994 S D E posts were filled up only on seniority from among the Junior Engineers who passed the qualifying exam. Basis without holding competitive exam. The Dept. therefore proposes to take the following actions:-
iv. The Dept. will hold one qly. exam. as directed by the court and promote eligible SC/ST JTOs to the extent of their quota.
v. The Dept. will fill up all (100%) the vacancies available for the years 1994-95 and 1995-96 and 2/3rd vacancies for the period 1.4.1996 to 22.7.1996 from amongst eligible JTOs only by seniority-cum-fitness. This is as result of the dept.’s decision to suspend the competitive exam. which was for all purposes a bi-lateral understanding with the JTO Association (I).
vi. The Dept. will hold competitive exam. for 1/3rd vacancies for the period 1.4.1996 to 22.7.1996.
b. In compliance of CAT, Ernakulam order dated 3.4.2002 in OA no. 213/2002, the Dept. has informed Shri T Bennet and Shri T V Mathews that the Supplementary Qly-cum-Comp exam was being conducted against the vacancy year 1994-95, 1995-96 and 1996-97 (up to 22.7.1996) and since they have been promoted against the vacancy year 1993-94, they will not get any benefit of seniority even if they are allowed to appear in the said exam and, therefore, they are not entitled to the said exam.
a. C G M , Kerala vide letter nos. Rectt/22-2/98 dated 23.3.1999 has circulated the names of 9 & 5 ineligible applicants for the Combined Qualifying-cum-Competitive exam held in 2000 as they were already promoted within 1994 DPC.
e. In spite of this clear instruction, some of the ineligible Officers appeared and the seniority list published Vide DOT No. 2-32 /2001-STG-II dated 27.03.2008 contains the names of all such ineligible Officers who were promoted to TES Gr-B in 1990 , 1993 & 1994DPCs . As per the above revised seniority list most of the Officers are becoming very senior to all such Officers who were promoted through DPCs up to 1994 in violation to the conditions contained in the notification for holding of LDCE .
f. DOT has all along involved in all the above activities but, issued the seniority list for 147 officers violating all norms.
Possible Solutions
1. The present TES Grp-B seniority list consists of promotes consists of :
a. As per Para 206 through court orders,
b. R/R 1966,
c. R/R 1981 (with seniority from 12.9.1982 as one time relaxation allowed by court. ),
d. R/R 1981 (with seniority from different retrospective dates without carrying forward unfilled competitive vacancies. ),
e. R/R 1981 (seniority with merit),
f. R/R 1981 (year wise seniority without merit ).
2. DOT / BSNL should finalize and follow either Para 206 or Recruitment Rule 1966 . Recast the entire seniority list of officers promoted up to 22.07.1996 accordingly. Most of the judgments except one are in favour of para 206.
3. Officers promoted through Comp.Exam.1981 be allowed seniority w.e.f 12.09.1982 as a one time relaxation by the courts.
4. Officers promoted through Qualifying Exams. are allowed seniority w.e.f the date of their respective DPCs. Officers promoted through Competitive Exams. 1986, 1987, 1988, 1989, 2000/2003 be allowed seniority w.e.f the date of their respective DPCs. Retrospective date of promotion and seniority is not allowed in the eyes of law.
5. Officers qualified through Competitive Exam. 1987 and 1988 but, promoted on 01.02.2001 be allowed seniority w.e.f 01.02.2001 only as retrospective date of promotion and seniority is not allowed in the eyes of law.
6. Officers qualified through Combined Qualifying-cum-Competitive Exam. 2000 and Special Supplementary Exam. 2003 be allowed seniority only for the competitive vacancies arising during 01.04.1996 to 22.07.1996. This should be done after excluding the in-eligible officers allowed to appear at these exams. .
7. The affidavit submitted by DOT in CAT, Ernakulam Bench in O A No. 297 of 1998 be given due importance and the intention of the Dept. expressed therein should be implemented with letter and spirit to end the long pending seniority problem of the Telecom Engineering Stream officers.
8. Carryover of unfilled vacancies to the next and subsequent years and seniority from the date of joining should be considered, as the natural justice which has already been reflected in several judgments of the Apex court.
9. Association should take up with BSNL in 147 case in the light of the affidavit submitted by DOT in OA no. 297 of 1998 before CAT Ernakulam Bench, the submission by DOT in CAT, Ernakulam order dated 3.4.2002 in OA no. 213/2002, letter circulated by CGM, Kerala de-barring JTOs to sit for the exam as they were already promoted in 1990, 1993 and 1994 DPCs.
10. Association should take up with BSNL and Ministry of Law in the light of the National Litigation Policy and try for a permanent settlement as the cases are lingering as given below.
i. The seniority cases as per para 206 are continuing for the past 30 years since 1981 in spite of the affidavit submitted by the Dept. in court of law that para 206 was abrogated on 23.7.1996.
ii. The promotion to 270 JTOs on 1.2.2001 under competitive quota allowing seniority for 13 (thirteen) retrospective years is pending for the past 11 years.
iii. The seniority case of 147 JTOs promoted through Combined Qualifying-cum-Competitive exam. 2000 & 2003 is pending in several courts since three years.
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