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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
N. UNNI KRISHNAN NAIR, C.J.
The Chairman Cum Managing Director BSNL And 2 Ors – Appellants
Versus
Shashi Kant And 3 Ors – Respondents
WP(C) 4531 of 2024
Decided on : 12-11-2024
(A) BSNL Management Services-Telecom Operations Stream-Recruitment Rules-2023 - The petitioners challenged the orders of the Central Administrative Tribunal regarding the empanelment and posting of the respondent as Chief General Manager (CGM) in BSNL, asserting that the empanelment was not a promotion but a transfer. The Tribunal's failure to consider the petitioners' contentions led to the conclusion that the orders were unsustainable. (Paras 21, 22, 23)
(B) Administrative Law - The Tribunal must consider all relevant contentions before drawing conclusions; failure to do so renders its orders liable to be set aside. (Paras 21, 22)
Facts of the case:
The petitioners challenged the Tribunal's orders regarding the empanelment of the respondent as CGM, arguing it was not a promotion but a transfer, and that the Tribunal failed to appreciate their contentions.
Findings of Court:
The Tribunal's orders were set aside due to its failure to consider the petitioners' arguments.
Issues: Whether the empanelment of the respondent as CGM constituted a promotion or merely a transfer.
Ratio Decidendi: The court emphasized the necessity for the Tribunal to consider all arguments before reaching a conclusion, which was not done in this case.
Result: The writ petition was allowed.
JUDGMENT :
(N. Unni Krishnan Nair. J)
Heard Mr. K. N. Choudhury learned Senior Counsel assisted by Mr. G. Goswami, learned counsel appearing for the petitioners. Also heard Mr. S. Samantha, learned counsel and Mr. G. J. Sharma, learned counsels appearing for the respondent no. 1.
2. The present proceeding was instituted towards presenting a challenge to an order dated 30.07.2024, passed by the learned Central Administrative Tribunal, Guwahati Bench in Original Application No. 182/2024. The petitioners had also assailed an order dated 13.08.2024, passed in Miscellaneous Application No. 95/2024, by which the application so preferred by the petitioners, herein, before the learned Tribunal for vacation of the interim directions passed vide the order dated 30.07.2024, in the connected Original Application was not finally considered and was adjourned for hearing on a later date.
3. At the outset, it is to be noted that this Court vide order dated 06.09.2024, while fixing the matter for admission hearing on 11.09.2024, had provided that notwithstanding the pendency of the present writ petition, it would be open for the learned Tribunal to proceed to hear the M.A. No. 95/2024 on 09.09.2024 and pass final order(s) thereon in accordance with law. Accordingly, the learned Tribunal had heard the said M.A. No. 95/2024 on 09.09.2024 and thereafter, had rejected the same vide an order dated 01.10.2024, which has been brought on record by the petitioners, by way of filing an additional affidavit.
4. Mr. K. N. Choudhury, learned Senior Counsel appearing for the petitioners by referring to the provisions of the “BSNL Management Services-Telecom Operations Stream-Recruitment Rules-2023” has contended that with regard to the Telecom Operations Stream, the post of CGM/PGM (E9) is to be filled up by way of promotion from amongst executives in the grade of Sr. General Manager (SGM) with three years regular service in the grade. The said Rules also provide that for selection of officers for holding the post of Chief General Manager (CGM), a separate executive instruction would be issued with the approval of the competent authority. Accordingly, Mr. Choudhury submits that in terms of the provisions of the said Rules of 2023, the BSNL authorities had on 20.04.2023 issued a guideline for empanelment of officers for holding the posts of CGM in BSNL. In terms of the said guidelines, even the absorbed/BSNL recruited PGM grade officers were also made eligible for empanelment for appointment against the post of CGM. Mr. Choudhury further submits that in terms of the provisions of the said guidelines dated 20.04.2023, a second round of empanelment of officers for holding the post of CGM in BSNL was so undertaken and accordingly, vide a communication dated 01.06.2024 along with other officers, the respondent no. 1, herein, was so empanelled for holding the post of Chief General Manager in BSNL. In terms of the empanelment made vide the communication dated 01.06.2024, posting orders in respect of the empanelled officers came to be issued vide an order dated 07.06.2024 and the petitioner, herein, was transferred and posted as CGM, NE-II Circle. It was highlighted that the respondent no. 1 took over charge of his transferred post on 15.07.2024.
5. Mr. Choudhury, learned counsel for the petitioners has further submitted that the guidelines for empanelment of officers for holding the post of CGM in BSNL as circulated vide the communication dated 20.04.2023 was subsequently reviewed by the BSNL authorities on directions from the authorities of the Department of Telecommunication. On such review, the BSNL authorities vide communication dated 19.07.2024, had by holding that the empanelment process adopted by the BSNL is not tenable for ITS cadre post being operated in BSNL as per the cabinet approval, proceeded to relieve the officers mentioned in Annexure-A thereto from the post of CGM, with immediate effect and directed the officers so relieved to join their duties agains
The Tribunal must consider all relevant arguments before making a decision; failure to do so invalidates its orders.
Point of law: Schedule appended to a statute cannot in any way wipe out main provisions of the Rules in effect and spirit.
Point of law: Schedule appended to a statute cannot in any way wipe out main provisions of the Rules in effect and spirit
The Court reaffirmed that prior judicial decisions regarding promotions are binding, and claims for absorption must align with established legal standards.
When comparing ACRs for promotion, upgrade gradings by one level for officer's periods on higher post versus lower post to enable fair assessment; petitioner qualifies post-upgrade.
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