Status quo on Assistant Director (Official Language) Recruitment Rules, 2002 notified by BSNL, which provides for vacancies on officiating basis: Apex Court

Read Judgment: Medini. C & Ors vs. Bharat Sanchar Nigam Limited & Ors

Pankaj Bajpai

New Delhi, September  23, 2021 : While clearly distinguishing the facts from the decision in the case of BSNL vs. Mishri Lal & Ors, the Supreme Court has opined that ratio of any case should not be applied in a straight-jacket manner without being mindful of the crucial aspects and hence, regular appointees have vested right for promotion as compared to non-regular appointees.

The Three Judge Bench of Justice L. Nageswara Rao, Justice B.R. Gavai and Justice B.V. Nagarthana observed that the present appellants were provisionally promoted while in the Telecom Department as Assistant Director (OL) as early as on May 15, 1994 but they were not regularized.

The background of the case was that the appellants were promoted as Assistant Director (Official Language) on ad hoc basis and officiating basis during the year 2000. Later, Assistant Director (Official Language) Recruitment Rules, 2002 came to be notified, which provided that as a “one- time measure”, all vacancies in the grade of Assistant Director (OL) on officiating basis were to be filled up by Senior Hindi Translators/Junior Hindi Translators and Group C officials who were to be given ad hoc promotions to the grade of Assistant Director (OL) on officiating basis.

The same was by promotion on seniority-cum-fitness basis as was the procedure followed for the officials who had been officiating as Assistant Director (OL). Later, a Corrigendum was issued revising eligibility criteria and for removing restriction of pay under FR-35 as per the 2002 Rules.

Subsequently, Rajabhasha Adhikari Recruitment Rules, 2005, were notified wherein it was stated that the local officiating arrangements/promotions on ad hoc basis which had already been made may not be disturbed till regular incumbents to such posts become available.

Aggrieved by the inaction of the respondent-BSNL in promoting the appellants on regular basis, the appellants approached Kerala High Court, which transferred the same to the Central Administrative Tribunal, which directed the appellants to be promoted in accordance with the 2002 Rules.

This came to be challenged before the High Court contending that the 2002 Rules were never in operation at any point of time. But the High Court found that there was no plea raised that the 2002 Rules had never come into force before the Tribunal and it was taken up first time before the High Court.

After considering the arguments, the Bench found that it was not the case of the respondent-BSNL that the appellants were not eligible to be promoted on ad hoc basis or they were lacking in requisite qualification and merit when they were so promoted even prior to the 2002 Rules were enforced.

Accordingly, the Tribunal by its order observed that the 2002 Rules remained in force and were implemented for more than three years till the “Rajbhasha Adhikari Recruitment Rules, 2005” was issued in supersession of all the relevant Recruitment Rules in force, noted the Bench.

Therefore, the Bench held that the order of the Tribunal that appointment/promotion of the employees are to be based on the existing rules and hence the directions for promotions were given under the 2002 Rules and consequently, direction to the respondent – BSNL to promote the eligible candidates as Assistant Director (OL) against the vacancies which had arisen prior to the promulgation of the 2005 Rules, was justified.

“Rule 10(3) of 2002 Rules categorically stated that as a “one time measure” all the vacancies in the grade of Assistant Director (OL) in the first year of promotional quota or direct vacancies had to be filled by direct quota by following due procedure from amongst the officials who had been officiating as Assistant Director (OL) in the respondent-BSNL subject to their filling the basic qualifications and experience as prescribed. Despite promulgation of the 2002 Rules, no order for regularization of promotion was issued”, observed the Bench.

The Top Court found that during the said period, the 2005 Rules were issued but by then the appellants had already enforced their vested rights regarding their regularization in their respective posts as per the 2002 Rules on the basis of one time measure that was envisaged under the said Rules, which relief was granted by the Tribunal.

The three Judge Bench further found that subsequent to the orders of promotions on ad hoc or officiating basis, the clause regarding ‘restriction of pay under FR-35’ was deleted by issuance of corrigendum and on the basis of the said factual developments, the High Court had rightly sustained the order of the Tribunal.

Accordingly, the Apex Court allowed the appeals and directed for extending monetary benefits to the appellants and thereafter, to consider their cases under the Voluntary Retirement Scheme (VRS) if they have so applied.