1

BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL PATNA BENCH AT PATNA

C.C.P.A NO.

OF 2012

ARRISING OUT OF O.A. No. 10 OF 2010

{UNDER SECTION 17 OF Central Administrative (procedure) Rule, 1987} In the matter of D.P.SINGH
. APPLICANT VERSUS 1. Shri P.K.Panigrahi The Senior D.D.G. (BW), Department of Telecommunications, Sanchar Bhawan, 20, Ashoka Road, New Delhi 110 001 2. Shri A.K.Gupta, The Principle General Manager (BW), Bharat Sanchar Nigam Limited, Central Telegraph Building, Kashmere Gate, Delhi 110006 . PROPOSED CONTEMNOR
1. The applicant in original application in OA 10/2010, submits that after hearing all the parties, this Honble Tribunal was pleased to pass the following orders : 59. The Applicant who has now long been a BSNL employee, cannot, however, claim the relief 8(i) praying for a direction or command to the Respondent No.3 representing Union Of India to convene a review DPC on the basis of so called final seniority list dated

26.08.2009(Annexure A/3),and for the Respondent No. 3 representing Union Of India to grant regular promotion to the applicant w.e.f. 30.12.2004,from the DOT, while he had ceased to an officer on the rolls of DOT on 31.03.2004,with retrospective effect from 1.10.2000,the prayer at 8(i) is therefore rejected.

2 60. The prayer at Para 8(ii) flows from the prayer in Para 8(i) & since applicant can pray for Respondent No.1&2 BSNL to prepare a fresh seniority list as on 1.10.2000, and then seek promotion from within BSNL thereafter on the basis of his standing in the list of officers permanently transferred irrevocably to BSNL w.e.f. 1.10.2000, and then seek his promotion from Respondents 1&2, within the organization of BSNL, he cannot be allowed to make any prayer as against Respondent No.3 DOT. In holding this, we totally concur with the findings arrived at by the Earnakulam Bench in S.Chellappan(supra),which have been reproduced in Para 56 above. 61. The prayer of the applicant at para 8(iii) is for direction to the Respondents to hold DPC for regular promotion to the post of Chief Engineer ( c ) only after the exercise of review DPC and the preparation of seniority list in the grade of SE ( C)is completed. As has been observed above ,the BSNL is obliged to prepare independent of DOT, a list of officers on its rolls either as on 1.10.2000 or as on 1.04.2004 for all levels of post. Needless to state that promotion from level of EE (C) to SE (C) on the basis of such seniority list prepared within BSNL will have to precede before the subsequent promotion from SE (C) to CE (C) level are considered or under taken .Therefore the prayer of the applicant at Para 8(iii) is rejected vis--vis Respondent No.3, but is granted as against Respondent 1&2 BSNL. Thus this prayer is partially allowed. 62. In the result, it is made clear that, subject to the

pendency of other cases filed in this regards, in no way shall any promotions in the residual cadres of Executive Engineers, Superintending Engineers and Chief Engineers within DOT, under Respondent No.3, be subject to any of delay in compilation or preparation of such seniority lists of BSNL, and any delay arising out of the parallel process of promotions at all levels which has to be undertaken within the BSNL on the seniority lists in the organization as on 1.10.2000 or 01.04.2004 or any other date thereafter. We

3 understand that this does not in any manner impact upon the stay granted by the principle bench on the prayer of other officers of BSNL. 63. The official Respondent 1 & 2 BSNL had filed Annexure R/2 by which the BSNL Management Services Recruitment Rules, 2009 had been notified on 14.07.2009, but it had been stated in para Rule 1.2 that those Rules shall be effective from 11.6.2009. 64. The question therefore now remains as to what shall be the Rules for promotion to be accorded by BSNL within the corporation at various levels, in between the period from the date of Constitution of BSNL on 1.10.2000,upto

10.06.2009,before its fresh Rules became effective from 11.06.2009,since all officers concerned ,except the newly recruited persons who may have been recruited in BSNL after 1.4.2004,have been inherited by corporation from DOT, it is made clear that in our opinion all promotions for the interregnum period from1.10.2000 to 10.06.2009,before the BSNL MS RRs came into effect from 11.6.2009,should be accorded by operating mutatis mutandis the Rules which were earlier in operation in respect of the respective cadres for promotions under the DOT 65. In this context, it is further opined that for computing

service for the purpose of determination of seniority list, the principle enunciated by the Honble Apex Court in the following cases shall be observed by BSNL :1. Keshav Chandra Joshi Vs. Union of India ; AIR 1991

SC 284 2. Chief of Naval Staff & ors. Vs Gopalakrishna Pillai & Ors. (1996) 1 SCC 521 3. State of Bihar & ors. Vs. Bateshwar Sharma (1997) 4SCC 424

4 2 The applicant in original application in OA 10/2010

respectfully submits that this Honble Tribunal was pleased to allow the O.A. partially as per para.61 of the order dated 6-12011 wherein direction is issued to Respondents No.1 & 2 to prepare, independent of DOT, a list of officers on its rolls either as on 1-10-2000 or as on 1-4-2004, of all levels of posts. Accordingly BSNL have issued a final seniority list of his employee in the grade of Executive Engineer as per OFFICE ORDER DATED 02.12.2011 (Annexure 3 )Of applicant filed present contempt petition 3. Needless to state that promotion from the level of EE (C) to SE (C) on the basis of this seniority list dated 02.12.2011 prepared within BSNL have also initiated based on order dated 13.02.2012 by BSNL (annexure 3 enclosed by applicant in contempt petition) as per the order in Para 61 before ordering Chief Engineer promotions within BSNL. 4. The applicant in original application in OA 10/2010 further submits that this Honble Tribunal has also held in para 60 of the order that the prayer at 8(ii) flows from the prayer at para 8(i) and since the Applicant can only pray that Respondents 1 and 2 of BSNL to prepare a fresh seniority list as on 1-102000 and then seek promotion from within BSNL thereafter on the basis of the standing in the seniority list of officers permanently transferred irrevocably to BSNL with effect from 1-10-2000 and then seek promotion from Respondents 1 and 2, within the organization of BSNL, he cannot be allowed to

5 make any prayer as against Respondent No.3 DOT. In

holding this, we totally concur with the findings arrived at by the Ernakulam Bench in S. Chellappan (supra), which have been reproduced in Para 56 above. 5. The applicant in original application in OA 10/2010 further submits that this Honble Tribunal has also been pleased to hold that under para 59 of the order that the Applicant who has now long been a BSNL employee, cannot, however, claim the relief 8(i) praying for direction or command to the Respondent No.3 representing Union of India to convene a Review DPC on the basis of so-called final seniority list dated 26-8-2009 and for the Respondent 3 representing Union of India to grant any regular promotion to the Applicant with effect from 30-12-2004, from the DOT while he had ceased to be an officer on the rolls of DOT on 31-3-2004, with retrospective effect from 1-10-2000. The prayer at 8(i) is,

therefore rejected. The Honable tribunal have rejected the prayer but not stopped to Respondent no.1 i.e. Secretary DOT not to act on the findings of Ernakulum Bench in S. Chellappan (supra), which have been reproduced in Para 56 , which has been totally concurred . 6. The applicant in original application in OA 10/2010 further submits that, this Honble CAT has reproduced the order Dated 28.07.2009 of Ernakulam Bench in S. Chellappan (supra), in Para 56 as extracted below the relevant final order.

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In view of the discussion above, we are of the

opinion that that following the judgments of the Apex Court supra the Applicant is entitled to reliefs prayed for in the .A.. Accordingly we allow the O.A.with the following directions: (i) permit the applicant to exercise option for

absorption in BSNL as EE consequent on his notional promotion as EE w.e.f. 1.10.1994 (ii) direct the respondents to review/modify Ext. P-

4 on the basis of the option exercised by the applicant. (iii) Consequential benefit flowing out of the re-

option and absorption as EE as ordered above, is to be granted to the applicant within four months from the date of receipt of this order. (iv) the seniority of the applicant as EE in the DOT

shall be maintained in BSNL as on the date of absorption. (v) the consequential promotion of the applicant in

the BSNL shall be granted in his turn on the basis of seniority fixed in the BSNL which shall be prepared maintaining the seniority in the DOT. 7. The applicant in original application in OA 10/2010 further submits that the above said direction passed by

CAT,Ernakulam was totally concurred by this Honable Tribunal, this is in conformity to the Apex Court order in S.I. Rooplal v/s Governor through Chief Secretary Delhi

,equivalent citations : AIR 2000 SC 594,JT 1999 (9) SC 597 etc,relevant Para 12 of said judgment is reproduced as below:-

7 12. At the outset, we must express our serious dissatisfaction in regard to the manner in which a coordinate Bench of the tribunal has overruled, in effect, an earlier judgment of another coordinate Bench of the same tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the tribunal was of the opinion that the earlier view taken by the coordinate Bench of the same tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedents. Precedents which enunciate rules of law from the foundation of administration of justice under our system. This is a fundamental principle which every Presiding Officer of a Judicial Forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate court is bounded by the enunciation of law made by the superior courts. A coordinate Bench of a Court cannot pronounce judgment contrary to sdeclaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement. This Court in the case of Tribhuvandas Purshottamdas Thakur v. Radial Motilal Patel while dealing with a case in which a Judge of the High Court had failed to follow the earlier judgment of a larger Bench of the same court observed thus: The judgment of the Full Bench of the Gujarat High Court was binding upon Raju, J. If the learned Judge was of the view that the decision of Bhagwati, J., in

8 Pinjare Karimbhai's case and of Macleod, C.J., in Haridas's case did not lay down the correct Law or rule of practice, it was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it. Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by Courts of coordinate authority or of superior authority. Gajendragadkar, C.J., observed in Lala Shri Bhagwan and Anr. v. Shri Ram Chand and Anr. It is hardly necessary to emphasis that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be re-considered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. By concurring the finding of coordinate bench & not

referring it to larger bench by this tribunal was a conscious decision because judgment of earlier point of time if not over ruled by higher courts are to be followed in true spirit by similar jurisdiction bench as per judicial discipline as decided by apex court. 8. The original applicant in OA 10/2010 further submits that CAT, Ernakulum order dated 20.10.2011 passed in O.A. 7349(Annexure-2 by applicant in present contempt petition) is

9 a clear direction as brought in detail in para 9 of said application, considering the findings concurred by this Honable Tribunal in Para 56, as the said judgment was also referred by the CAT, Ernakulum before pronouncing the final order. As order of S.Chellapan became supra because it was neither challenged by any party nor quashed by any court. 9. The applicant in original application in OA 10/2010 further submits that applicant filed contempt petition devoid of merit & cant asked to overrule the order passed by this Tribunal in Contempt petition ,which have been concurred in Para 56. Things remains to be done have to be done by the authority i.e. Secretary DOT, as BSNL was also party to the said judgment referred in Para 56, which still remains to be complied because of fraudulent applications are being filed by similarly placed persons in various courts to stop the process of law after the final order passed by Madras High Court in WP 17643/2003 on 17.08.2006, which has became law of land after expiry of limitation period. A order which became final is being tried to over ruled by filing such petitions. This contempt petition is also a tool used to threaten or demoralized to the authorities who have to complied the orders of courts in true spirit, which have been pronounced in earlier point of time & have became final have to be complied by DOT, which was cadre controlling authority at relevant time.

10 10. The applicant in original application in OA 10/2010 reserved the rights to submits the detail Para wise reply if requires in due course. Therefore this petition has to be dismissed with COSTS