IN THE HIGH COURT OF DELHI AT NEW DELHI $~1 * + W.P.(C) 1785/2016 and CM APPL7634/2016 (Stay) Date of Decision :
17. h November, 2016 RITU RAJ BASANT ........ Petitioner
Through Mr. Amit Anand, Advocate versus UNION OF INDIA & ORS. ........ RESPONDENTS
Through Mr. Puneeet Taneja and Mr. Shaheen Advocate for BSNL CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE CHANDER SHEKHAR SANJIV KHANNA, J.
(ORAL) 1. The petitioner Ritu Raj Basant is an employee of Bharat Sanchar Nigam Ltd. (BSNL). Having qualified the Limited Departmental Competitive Examination held on 04.03.2012, he was offered promotion as Sub Divisional Engineer and posted in North East I Circle, on tenure posting for two years.
2. By the promotion and posting office order dated 02.07.2013, all officers promoted as Sub Division Engineer were asked to join their promotional postings within the prescribed period of 40 days or they would not be relieved or allowed to join thereafter. Their promotional orders shall become inoperative. For transparency, names of the successful candidates, their roll numbers, category and year of eligibility and marks obtained were enclosed as an Annexure. WP(C) No.1785/2016 Page 1 of 6 3. It is obvious that the BSNL was facing difficulty for officers who were promoted were resisting and unwilling to join the hard or inconvenient postings.
4. The petitioner being one of them filed OA No.4364/2013 against his posting to North East-I Circle. Interim stay order was passed and had remained operative till the parties were heard and the O.A. has been dismissed on merits by the impugned order dated 21.01.2016.
5. The petitioner relies on the working spouse clause as his wife is a Teacher with the Government of NCT of Delhi. Reliance is placed on paragraph 6(g) of the BSNL’s Employees Transfer Policy dated 07.05.2008, which reads:-
"“6. General Principles (g) As far as possible and within the constraints of administrative feasibility, requests for posting of husband and wife at the same station shall be considered if the employee’s spouse is serving in Central/State Government or a Public Sector Undertaking (PSU)”.
6. However, for promotions to the post of Sub Divisional Engineer (SDE) pursuant to the Limited Departmental Competitive Examination held on 04.03.2012, BSNL had issued separate transfer posting guidelines vide file No.2-16/LDCE/2012-Pers.II (transfer guidelines for short). It is stated and we would accept that the transfer guidelines would be applicable and 2008 policy which is general in nature would not apply. WP(C) No.1785/2016 Page 2 of 6 7. The petitioner has drawn our attention to sub-paragraph 5 of the transfer guidelines, which reads:-
"“5. Cases of transfer request on medical ground or where spouse is working in State Government/Central Government/PSUs etc. and requests received for transfer/posting including VIP references will be dealt with separately and subsequently on merits and prevalent instructions as per administrative feasibility by the Competent Authority”. The respondent BSNL on the other hand relies on clause 8.1 of 8. the same guidelines, which stipulate the following:-
"8 (i) The requests of such officers, who are earmarked for posting to tenure circles/shortage facing circles as per the criteria proposed in para 1 & 2 above, may not be acceded to. Clause (i) of paragraph 8 specifically stipulate that the criteria in paragraphs 1 and 2 of the said guidelines would apply to tenure circles or shortage facing circles. Requests for cancellation of transfer in these circles would not be accepted. The selected officers lower down in the merit list of LDCE were posted in the tenure circles to bring down shortage of manpower.
9. The petitioner nevertheless submits that his juniors have been granted the benefit under the spouse clause. The Tribunal has distinguished Vasant Kumar R.C case on the ground that Vasant WP(C) No.1785/2016 Page 3 of 6 Kumar R. C. had not been given tenure posting. Learned counsel for the respondent/BSNL submits that Vasant Kumar R. C. belongs to category A i.e. he was appointed against backlog of 271 vacancies upto 2005-2006 which were carried forward to 2006-2007. The petitioner’s promotion was against the regular vacancies from 2006- 2007 to 2009-2010 which were 3024 in number. The contention of the petitioner does not have merit and therefore, should be rejected. The petitioner before us has not specifically referred to or claimed discrimination relying on Vasant Kumar R. C. posting. Paragraph B of the posting guidelines relating to vacancies against 2006-2007 to 2009-2010, reads: “B. For Regular vacancies against 2006-07 to 2009- 2010 (3024):-
"Following are the guidelines/circles:-
"1. It has been the practice in past to post some SDEs(T) on promotion to tenure circles such as AS, A&N, J&K, NE- I, NE-II and NETF to bring down the man power shortage after formulating certain guidelines/criteria. Hence, following the same foot steps of the past, it has been proposed to bring down the shortage in tenure circles to 0 (zero)%. For this purpose it will be necessary to retain all the promoted JTOs in their respective tenure circles. Even after retaining such promoted officers in their respective tenure circles, if the requirement as referred to is not met and the shortage does not come down up (sic.) to 0 (zero)% , the said shortfall may be WP(C) No.1785/2016 Page 4 of 6 met by transferring the junior most candidates in each category i.e. OC/SC/ST. In other words candidates from amongst the promoted JTOs in the order of their merit/rank in LDCE starting from the bottom of the list, will be transferred to tenure circles. As bulk of SC/ST officers normally stand in the bottom of the list selected against the reservation norms and are likely to be subjected to large scale transfer under the above criteria, it has been proposed as a safely measure to effect transfer from the junior most candidates in each category i.e. OC/SC/ST only as per percentage prescribed in reservation norms of Govt. of India i.e. 77.5%, 15% and7.5% respectively for transfer to tenure circles so that transfer of SC/ST candidates are kept to the minimum and do not go beyond the level prescribed in reservation policy.” The said paragraph highlights and elucidates the reason and cause for not accepting the petitioner’s request.
10. The petitioner has filed an additional affidavit referring to cases which he perceives and believes are of those officers who have been granted exemption or favourable posting contrary to the transfer/posting guidelines. We would not like to go into the said assertions and allegations for the reason that in case there is any violation, the same have to be corrected and cannot be relied for non- compliance. WP(C) No.1785/2016 Page 5 of 6 11. We would accordingly dismiss the present writ petition, albeit with the direction to BSNL to examine the allegations made by the petitioner and send him a written response or reply within eight weeks from the date of receipt of this order. Required and necessary action as per law would be taken in case there is violation of the transfer guidelines.
12. The petitioner, it is stated, has already joined the place of posting.
13. We hope and trust that the respondent would accept the joining report of the petitioner. Costs of Rs.20,000/- imposed on the petitioner by the Tribunal is made easy. It is waived. The writ petition is disposed of. NOVEMBER17 2016 b SANJIV KHANNA, J CHANDER SHEKHAR, J WP(C) No.1785/2016 Page 6 of 6