Shaji Abraham v. Telecom Regulatory Authority of India

1. The petitioners assail the common order dated 18.01.2018 by the Central Administrative Tribunal, Principal Bench, New Delhi (in short 'Tribunal') passed in OA No.1540/2015 and 1564/2015. By the said common order, the Tribunal has rejected the said Original Applications preferred bythe petitioners. 2018:DHC:8997-DB •s Q-

2. The petitioners, at the relevant time, were serving as a Deputy Advisors in the Telecom Regulatory Authority of India (in short 'TRAI'). They were governed by the Telecom Regulatory Authority of India (Salary, Allowances and other conditions of Service of the Officers and Employees) Rules, 2002 notified by the Department of Telecommunication on 25.10.2002. Subsequently, they were permanently absorbed in the TRAI on the post of Deputy Advisor on acceptance of their resignation from the parent cadre. The next promotional post in TRAI was Joint Advisor under theTelecom Regulatory Authority ofIndia (Officers andStaffAppointment) Regulations, 2001 (2001 Regulations for short). For the promotion to the post of Joint Advisor, four years of regular service in a grade immediately below was prescribed as eligibility criteria. Since the petitioners were eligible, their cases were considered for promotion as Joint Advisors. The TRAI issued Office Order dated 24.12.2008 approving the promotion of the two petitioners as Joint Advisors "with effect from the assumption of office on or after 01.01.2009". Consequently, the petitioners joined the posts of Joint Advisors on 01.01.2009. In the meantime, the Telecom Regulatory Authority of India (Officers and StaffAppointment) (Seventh Amendment) Regulations, 2008 (hereinafter referred to as 'Seventh Amendment Regulations, 2008') was notified in the Gazette of India on 31.12.2008. By virtue of the Seventh Amendment Regulations, 2008 changes were made with regard to the mode of recruitment to the posts of Secretary, Principal Advisor, Advisor and Joint Advisor and these were to be filled by deputation/absorption/direct recruitment instead of promotion. It was stipulated thatJoint Advisor, interalia, shall beeligible forconsideration for appointment to the said posts along with the outside candidates for appointment on deputation/absorption/ direct recruitment on the basis of combined evaluation of the candidate'sperformance in interview and his/her qualifications/job experience by the Selection Committee. Note 4 below Schedule-I was also appended with the Seventh Amendment Regulations, 2008, which reads as under:- "Note 4.—The persons appointed before the commencement of the Telecom Regulatory Authority of India (Officers and Staff Appointment) (Seventh Amendment) Regulations, 2008, and holding post in the feeder grade, shall continue to be consideredfor promotion to such next higherpost and all other provisions of the Telecom Regulatory Authority of India (Officers and StaffAppointment) Regulations, 2001 (2 of2001) as they stood before such commencement, shall continue to apply to suchpersons appointed beforesuch amendment. "

3. The petitioners offered their candidatures for the post of Advisor in response to circulars dated 06.12.2012 and 12.02.2015. They were interviewed but not selected. In respect of another circulardated04.02.2013, though applications were made by the petitioners for the post of Advisor/Principal Advisor (Administration) on the deputation basis, they were not called for interview. The petitioners however did not challenge this selection made for the post of Advisor (Economic/Financial and Economic Analysis) inthe year 2012 or 2013. It was only when respondent No.2 and 3 were selected andappointed as Advisors pursuant to the circular dated 12.02.2015, their appointments were challenged.

4. The petitioners contended before the Tribunal that the Office Order dated 24.12.2008 directing their promotion as Joint Advisors with effect from the assumption of office on or after 01.01.2009 was illegal and that they should be treated as promoted as Joint Advisors on 24.12.2008 itself since vacancies in the post of Joint Advisors were available on the said date. The reason for the petitions' contention, as aforesaid, was that on 31.12.2008 the Seventh Amendment Regulations, 2008 came into force which deprived the Joint Advisors from getting promoted as Advisors since the mode of the recruitment of Advisors under the Seventh Amendment Regulations, 2008 did not provide promotion as a source of recruitment. The Tribunal rejected the said submission on the premise that the petitioners accepted the order dated 24.12.2008 and joined the post of Joint Advisor on 01.01.2009 without any grievance at the relevantpoint oftime, and they had even participated in the selection process, as aforesaid, in response to the circulars issued on 06.12.2015, 04.02.2013 and 12.02.2015, which were issued in pursuance to the Seventh Amendment Regulations, 2008 brought into force on 31.12.2008. Thus, the belated challenge to the condition that the petitioners shall stand promoted as Joint Advisors from 01.01.2009 was rejected. Reliance placed by the petitioners on Note 4, taken note hereinabove, was also answered by the Tribunal by observing that since the petitioners were not serving as Joint Advisors prior to coming into force of the Seventh Amendment Regulations 2008, the said note was of no avail to them.

5. Before us, the submission of learned counsel for the petitioners is that sincethe vacancies existed for the post of Joint Advisorprior to 01.01.2009, and the promotionorders were also issuedconsequent upon holding of DPC prior to 31.12.2008, their promotions took effect on 24.12.2008 and the same could not have been postponed to 01.01.2009. We do not find any merit in this submission.

6. Firstly, the petitioners could have raised the said grievance contemporaneously when the Office Order dated 24.12.2008 was issued. However, they did not choose to do so and accepted their promotions as Joint Advisors from 01.01.2009. They preferred the Original Application only in 2015 i.e. after a lapse of nearly 6 years. Secondly, it is obvious that the TRAI issued the Office Order consciously, observing that the promotions of the petitioners as Joint Advisors shall take effect from 01.01.2009—being mindftil of the fact that the Seventh Amendment Regulations, 2008 were in the process of being implemented and that it will come into force before 01.01.2009. Nothing prevented the respondents from issuing the Office Order regarding the promotion of the petitioners as Joint Advisors on 01.01.2009 itself Merely, on account of the office orders having been issued on 24.12.2008, the petitioners cannot claim that their promotions took effect from the said date. As observed to by the Tribunal, mere existence of vacancy in the promotional post does not vest any right in the promotee to claim promotion from the date when the vacancy arises, or the DPC is held. The petitioners are bound by the terms ofthe Office Order dated 24.12.2008 in its entirety and cannot seek to rely upon that portion whichgrants thempromotion as Joint Advisors, while claiming that the date on whichtheir promotion was to take effect, be ignored.

7. The Note-4 has rightly been held by the Tribunal to be not applicable, since the petitioners were not in the feeder cadre of Joint Advisor when the 2001 Regulations were in force-which provided for the promotional channel to the Joint Advisors or Advisors. In P. U. Joshi & others vs. Accountant General, Ahmedabad & others, (2003) 2 SCC 632, the Supreme Court observed; "We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to befulfdledfor such promotions pertain to thefield ofpolicy is within the exclusive discretion andjurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method ofrecruitment or eligibility criteria or avenues of promotion or impose itself by substituting its viewsfor that ofthe State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substraction the qualifications, eligibility criteria and other conditions of service including avenues ofpromotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories ofservice, as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should beforever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority ofthe State to amend, alter and bring into force new rules relating to even an existing service. "

8. The petitioners are, in fact, approbating and reprobating at the same time. After getting promoted as Joint Advisors on 01.01.2009, they have availed ofthe Seventh Amendment Regulations, 2008 by participating in the ?selection process for appointment of Advisor in 2012 and 2015. They cannot, now, having failed in that selection process claim that those Regulations are not applicable to them. Thus, we find no merit in the present petition and the same is hereby dismissed.

VIPIN SANGHI, J fir

A. K. CHAWLA, J

DECEMBER 14,2018 nn