Employer's prerogative in cadre decisions and fairness of promotional avenues under the amended Rules of 2005.

ORDER :

1. Leave granted.

2. By an order dated 18.05.2004 the Bharat Sanchar Nigam Limited (B.S.N.L.) had declared the existing cadres of Junior/Senior Accountants as ‘Wasting Cadre’ with a view to amalgamate the multiple cadres in existence. Accordingly the cadres of Junior and Senior Accountants stood withdrawn and the posts in the cadre continued to be personal to the incumbents and were to be abolished as and when the same are vacated by way of retirement, promotions, resignation etc.

3. In a challenge to the said order made before the learned Central Administrative Tribunal (for short, the Tribunal), the Tribunal interfered with the same and directed the B.S.N.L. authorities to complete the process of restructuring of the cadres providing avenues of promotion comparable to what was existing under the Assistant (Accounts)/Junior Accountant/Senior Accountant Recruitment Rules, 2002 (for short, ‘2002 Rules’).

4. The order of the learned Tribunal was based on two principal grounds/findings, namely, that the impugned order dated 18.05.2004 affected the rights of Junior Accountants for consideration of their cases for promotion to the cadre of Senior Accountants and secondly that the order of restructuring did not have the approval of the Board.

5. Aggrieved, the appellants (B.S.N.L.) challenged the said order of the learned Tribunal before the High Court of Kerala, which challenge was dismissed by Order dated 07.06.2012 of the High Court. The same has been impugned in the present appeals after exhausting the remedy of review in terms of the order of this Court in the first round of proceedings against the said order of the High Court dated 07.06.2012.

6. We have heard the learned counsels for the parties and have considered the facts and circumstances relevant to the issue.

7. The order declaring the two cadres as ‘Wasting Cadre’ and the additional affidavit dated 14.03.2018 filed by the appellants before the Court makes it clear that the decision to declare the cadres in question as ‘Wasting Cadre’ was taken to avoid multiplicity of cadres; to avoid continuance of isolated cadres in different streams and to have better efficiency in administration. This is a fundamental aspect that has to be borne in mind before proceeding any further coupled with the undisputed position in law that it is the right and prerogative of the employer to decide on the creation, continuance and abolition of cadres in the best interests of the administration. The role of Courts is limited and extends to ensuring that the rights of the incumbents are not abridged or tempered with by the executive decision that may be taken in this regard.

8. It has already been noted earlier that by the decision dated 18.05.2004 the posts of Junior Accountants and Senior Accountants were declared to be personal to the incumbents and were to continue till such time that they fell vacant by retirement, promotions, resignation etc. In the aforesaid backdrop, the limited judicial exercise that would be called for would be to examine as to whether the rights of the incumbents in the said two cadres including the right for consideration of promotion has been affected in any substantial manner by the order dated 18.05.2004 declaring the two cadres as “Wasting Cadre”.

9. The norms in force governing the service conditions including promotional avenues of the two cadres on the date of the impugned order dated 18.05.2004 were regulated by the Assistant (Accounts)/Junior Accountant/Senior Accountant Recruitment Rules, 2002. The aforesaid Rules have been framed by the Board of the B.S.N.L. and are in the nature of a set of executive instructions.

10. While Junior Accountants were eligible for consideration for promotion to the post of Senior Accountant on the principle of ‘seniority-cum-fitness’ on completion of three years service, there was no channel of promotion from the post of Senior Accountant to the next higher post of Junior Accounts Officer on the criteria of ‘seniority-cum-fitn