Dismissed

Shantaram Mahadev Khule v. the Union of India through the Chairman and Managing Director and Ors.

Bombay HC29 Feb 2016WP/2835/2015

Case brief

AI extract

What is this about?

Petitioner, a Work Assistant who passed the qualifying exam for Telephone Mechanic but failed to attend training due to suspension, sought ad-hoc promotion. The High Court upheld the dismissal of his original application, holding that failure to complete training disqualified him from promotion and the requirement to re-examine was reasonable due to technological changes.

What did the court decide?

No relief granted; the original application was dismissed.

Shantaram Mahadev Khule Vs the Union of India… — Pension and Retirement Benefits | Bombay HC (2016)

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RMA

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 2835 OF 2015

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Shantaram Mahadev Khule

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Petitioner

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Versus

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Union of India & Ors.

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.. Respondents

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Appearances
Mr. Rajeshwar G. Panchal	Advocate for the Petitioner
Mr. SandeepV. Marne	Advocate for Respondent Nos. 1 to 4

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CORAM : D.H. WAGHELA, CHIEF JUSTICE &

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SMT. V.K. TAHILRAMANI, J.

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DATE : FEBRUARY 29, 2016.

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ORDER [PER SMT. V.K. TAHILRAMANI, J.] :

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Heard learned counsel for the petitioner and learned counsel for the respondents.

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The petitioner, being aggrieved by the order dated

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14.2.2013 passed in Original Application No. 807 of 2011 by

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the Central Administrative Tribunal, Bombay Bench, Mumbai

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("the Tribunal" for short) has preferred the present petition.

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By the said order, the said O.A. came to be dismissed by the

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Tribunal. The prayer made in the said O.A. by the petitioner was for direction to the respondents to grant ad-hoc officiating promotion in the cadre of Telephone Mechanic.

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The brief facts of this case are as under:-

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(a) The petitioner was working as Work Assistant

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under DGM (ANC-I)-HQ, MTNL. The petitioner appeared in the qualifying examination for the post of Telephone Mechanic during 1993-94 and passed the said examination. The petitioner was selected for training of Phone Mechanic. The training batch was from 4.11.1996 to 27.12.1996. In view of the selection, the petitioner was given ad hoc officiating promotion in the cadre of Phone Mechanic w.e.f. 25.4.1996 vide order dated 14.6.1996. The petitioner, admittedly did not attend training since he was suspended from 11.9.1995 and a criminal case was initiated against him.

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(b) As the petitioner was placed under suspension

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from 11.9.1995, he was not sent for training and he was not granted ad hoc officiating promotion to the post of Phone Mechanic. The petitioner's suspension was revoked vide order dated 13.3.2003. The said criminal case i.e Special Case No. 71/1995 was decided on 15.1.2009 by the Special Judge for C.B.I. and the petitioner came to be acquitted in the said case. Thereafter, the petitioner submitted two representations dated 17.6.2009 and 21.6.2009 requesting for considering his case for ad hoc officiating promotion in the cadre of Phone Mechanic w.e.f. 14.6.1996 and to send him for training meant for Phone Mechanic.

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(c) The respondents thereafter issued the order dated 17.9.2009 wherein it was stated by the DGM (HR) after considering number of representations regarding sending for Telephone Mechanic Training that they would have to reappear for the qualifying examination which was going to be conducted for recruitment of Telecom Mechanics. The petitioner has challenged this order dated 17.9.2009 in his

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O.A. In the said O.A., the petitioner had also challenged the

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communication dated 23.10.2009 addressed to all A.G.M.,

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ADMN/CEBW, MTNL, Mumbai. The said communication

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states as follows:-

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" As per MTNL, CO's letter No. MTNL/CO/Pers/R7E/3(5)/2006/171 dated 17.9.2009, those candidates who had passed Telecom Mechanic Examination earlier, but could not be sent for training for the various reasons will have to reappear in the coming Telecom Mechanic Examination if they wish to do so.

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Hence, you are requested either not to entertain any such type of representation from any official or to forward to this office for further consideration."

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Admittedly, there is an order dated 13.11.1997 of the Department of Telegraph. From this order, it is clear that the training in the cadre of Phone Mechanic was a preappointment training and last chance was given to the officers whose names appeared in the enclosed list. It was further mentioned in the said order that failure on the part of any of the officials either to report for or complete the training successfully as per allotted schedule will result in

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removal of his/her name from the selected panel and reversion to respective cadre wherever applicable in case of officials for officiating as Phone Mechanic. In fact, this order was annexed by the petitioner to his O.A. Based on this order, admittedly, the petitioner along with 54 officiated Telephone Mechanic were reversed to their basic cadres.

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Moreover, it is seen that the officials in the Group 'D'

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who were in the eligibility list for getting into the restructured cadre of Phone Mechanic were ordered to officiate as Phone Mechanic purely on temporary and ad hoc basis on certain terms and conditions. The said terms and conditions inter alia included that no claims regarding seniority on the basis of enclosed list will be entertained and also before implementation of the order it would be ensured that "no vigilance / disciplinary case" was pending or contemplated against the official in the enclosed list.

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The petitioner was placed under suspension from

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11.9.1995, hence, he was not sent for training and he was

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not granted ad hoc officiating promotion to the post of Phone

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Mechanic. It is an admitted fact that the petitioner was not sent for training. It is to be borne in mind that the undisputed fact is that though the petitioner passed in the qualifying examination for Phone Mechanic and became eligible for training for the promotional post of Phone Mechanic, he did not undergo the training. The order of ad hoc officiating promotion was issued on 24.7.1996 and the petitioner was suspended w.e.f. 11.9.1995, therefore, situation never occurred for sending the petitioner for training or giving effect to the order of ad hoc officiating promotion. As such, the petitioner failed to undergo training which is precondition for appointment in the promotional post of Phone Mechanic. The petitioner qualified in the examination for the eligibility for such training in the year 1993-94. The petitioner, admittedly, for the reason of being under suspension and pendency of the criminal proceedings

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against him, did not take part in the training which was from

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4.11.1996 to 27.12.1996 and such failure to take part in the

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training for whatsoever reason will amount to his nonqualifying for promotion to the post of Phone Mechanic. This is clear from Order dated 13.11.1997 of the Department of Telegraph. We also find considerable force in the argument on behalf of the respondents that there has been a sea change in the telecommunication technology from the year 1996 when the petitioner was enlisted for such training. New technology has been introduced in the telecom field and the telecommunication technology of 2012 is completely different from that of the year 1993-1994 or 1996-1997.

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On perusal of the two letters dated 17.9.2009 and 23.10.2009 impugned before the Tribunal, it is seen that they are general communications regarding representations of number of employees, it appears that the M.T.N.L. Authority laid down a policy that aspiring employees for the promotional post of Phone Mechanic / Telecom Mechanic

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have to reappear in the coming Telecom Mechanic

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Examination. As such, this is not a case that the petitioner

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has been denied promotion or any discrimination has been made. On the contrary, fact remains that these two communications apply to all those persons including the petitioner, who passed the earlier qualifying examination but failed to successfully complete the training and would be required to appear in the ensuing qualifying examination in

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view of changed technology in the Telecom Sector.

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It is well settled that promotion is not a matter of right but an employee has a right to be considered fairly. In the instant case, we do not find that the petitioner has made out a case of unfair or arbitrary action on the part of the respondents in denying him promotion. On the contrary, in view of the pendency of the criminal case and consequent failure on his part to participate in the training and also in view of changed circumstance, i.e gross change in the telecom technology from the year 1993-1994 to 2009, the petitioner was asked to reappear in the examination and

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qualify for such promotion. This decision of the authorities does not appear to be unreasonable or unfair or discriminatory. In view of evolving advancement in telecom technology, the employer was within his right to ask the candidates who passed Telecom Mechanic examination earlier but could not be sent for training for various reasons to reappear in the coming Telecom Mechanic examination if they so wished. It is well settled that it is open to the appointing authority to lay down requisite qualifications for recruitment to Government Service since the same pertains to the domain of policy. It is well settled that there must be a reasonable relation of the prescribed test to the suitability of the candidate for the post or the employment to public service as such.

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The Supreme Court in the case of M. Rathinaswami

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Vs. State of Tamil Nadu¹ held that it is for the Government to decide whether qualifications have a reasonable relation

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to the nature of duties and responsibilities of a promotional

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1 2009(5) SCC 625

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post and the Court, not being an expert in administrative

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matters, cannot sit in appeal over decisions of executive authorities unless they are arbitrary and shocking. However, it is the privilege of the employer to decide the relevance of

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the requisite qualifications vis-a-vis the post. Therefore, under the given situation, in view of advancement in Telecom technology, the respondents were competent to ask

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the aspiring Telecom Mechanics to appear for the coming qualifying examination and to undertake the requisite training for the post of Telecom Mechanic earlier designated as Phone Mechanic.

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That apart, the ad hoc list which was prepared for the aspiring Phone Mechanics in 1997 for undergoing training was not kept alive for those who failed to report for training or failed to complete the training successfully as per allotted schedule. Such failure, for whatsoever reason, resulted in removal of the name from the select panel and reversion to

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respective parent cadre. Such order was issued as early as

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in the year 1997 and a reversion order was also passed in

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It is also well settled that a select list does not survive for years together and inclusion of name in the select panel does not confer an indefeasible right to the candidate for appointment.

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In the present case, it is seen that the prerequisite for

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promotion to the post of Phone Mechanic was successful completion of training. The petitioner, admittedly, has not undergone the requisite training. On account of this, his name was removed from the select panel. The Tribunal has taken into consideration all these aspects and thereafter dismissed the O.A. The said order is perfectly just, legal and proper and hence, no interference is called for. Writ Petition

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is dismissed.

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[ SMT. V.K. TAHILRAMANI, J. ] [ CHIEF JUSTICE ]

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Shantaram Mahadev Khule v. the Union of India through the Chairman and Managing Director and Ors.

Case brief

What is this about?

What did the court decide?

Shantaram Mahadev Khule v. the Union of India through the Chairman and Managing Director and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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