Majority Recognised Association fails
to protect the Constitutional Rights of Open Category Candidates
Before, discussing the biased attitude of
BSNL Management and the failure of Majority Recognised Association to protect
the Constitutional Rights of Open Category Candidates, it is worth to recapitulate
the judicial and legislative history of Reservation in Promotion.
On 16.11.1992, the Hon’ble Supreme Court
in Indira Sawhney’s Case held that the Constitution of India doesn’t provide
for Reservation in Promotion and the existing practice of providing Reservation
in Promotion must be discontinued within 5 years. On 17.06.1995, 77th
Constitutional Amendment was passed to allow the Reservation in Promotion. On
10.10.1995, the Hon’ble Supreme Court in Virpal Singh Chauhan’s Case propounded
Catch-up Rule (i.e. the Reservation in Promotion would not provide
consequential seniority in the promoted cadre to SC/ST Candidates). Therefore,
the seniority of SC/ST Candidates vis-à-vis seniority of Open Candidates in
promoted cadre would remain the same which they had in substantive cadre. On
04.01.2002, 85th Constitutional Amendment was passed to allow the consequential
seniority to SC/ST Candidates in the promoted cadre.
77th and 85th Constitutional
Amendment came before Hon’ble Supreme Court for judicial scrutiny in M. Nagaraj’s
Case. On 19.10.2006, the Hon’ble Supreme Court in M. Nagaraj’s Case held that
the SC/ST Candidates can be given Reservation in Promotion with Consequential
Seniority in the promoted cadre (up to the quota earmarked for the SC/ST
Candidates, but within the over-all cap of 50% reservation) only with the
compliance of three riders namely, (i) Collecting Quantifiable Data w.r.t.
Backwardness of SC/ST Candidates, (ii) Ascertaining Over-all Inadequacy of Representation
of SC/ST Candidates in Public Services and (iii) Complying Administrative
Efficiency u/a 335. On 26.09.2018, the Hon’ble Supreme Court in Jarnail Singh’s
Case (i) imposed the concept of Creamy Layer for SC/ST Candidates (ii) removed
1st rider of M. Nagaraj’s Case and (iii) mandated the Pyramidic
Structure of Reservation (i.e. as one moves up in the hierarchy the element of
reservation has to come down) instead of Flat Vertical Structure of Reservation.
Based on the aforesaid judicial precedent,
Hon’ble Supreme Court and Hon’ble High Courts came to decide numerous cases
with directions that the State shall not follow the Reservation in Promotion
without the compliance of riders mentioned in M. Nagaraj’s Case and Jarnail Singh’s
Case. The Hon’ble Chandigarh CAT also passed interim/final orders with respect
to BSNL in following cases, -
Narender Singh vs
BSNL JAO to AO [OA No. 647/2012]
Prakashvir vs BSNL AO to CAO [OA No. 332/2017]
Anupam Yadav vs
BSNL AO to CAO [OA No. 1435/2018]
Naveen Sharma vs
BSNL JTO to SDE [OA No. 605/2015]
Swinderjit Singh
vs BSNL JTO to SDE [OA No. 504/2015]
Sukhvinder Singh
vs BSNL SDE to DE [OA No. 864/2015]
Ramesh Kumar vs
BSNL SDE to DE [OA No. 750/2018]
Arun Yadav vs BSNL JE to JAO [OA No. 977/2016]
Manoj Sheokand vs
BSNL JE to JAO [OA No. 864/2016]
Ashok Kumar vs
BSNL JE to JTO [OA No. 230/2018]
The Hon’ble Chandigarh Bench of CAT in its
orders have repeatedly directed BSNL (i) to make promotion without reservation
for SC/ST Category, (ii) to apply catch-up rule, and (iii) to review the
promotions made in violation of law. BSNL notably lost all the
reviews/revisions/appeals filed against these interim/final orders before the
Hon’ble Panjab and Haryana High Court.
The Parliamentary Committee on the Welfare
of Schedule Castes and Schedule Tribes, vides its OM dated 27.08.2019 directed
Secretary DOT and Chairman BSNL to seek the opinion of Department of Personnel
and Training and Attorney General of India and Ministry of Law and Justice on
the issues of Reservation in Promotion and Catch-up Rule. The Department of
Telecommunication accordingly took the opinion of Ld. Attorney General of India
and issued the following clarification on the contentious issues that, -
The judgment of Hon’ble Supreme Court in catena
of cases titled as M. Nagaraj vs UOI, Jarnail Singh vs Lachhmi Narain Gupta,
U.P. Power Corporation vs Rajesh Kumar, Paneerselvam vs Government of Tamil
Nadu, Suraj Bhan Meena vs State of Rajasthan, Ajit Singh (II) vs State of
Punjab, UOI vs Virpal Singh Chauhan has held that, -
i.
The reservation in promotion is not a fundamental
right for the SC/ST Candidates.
ii. The state is under
no obligation to implement the Reservation in Promotion for SC/ST Candidates.
However, if state wish to implement Reservation in Promotion for SC/ST Candidates,
it shall have, -
a.
to collect the quantifiable data w.r.t.
backwardness,
b. to ascertain the
inadequacy of representation,
c.
to honour the limit of maximum 50% reservation,
d. to show the
compliance of Article 335.
e.
to define the creamy layer.
iii. The Catch-up Rule
is applicable if any promotion is made in violation of judicial dictum.
Needless to
mention that Mrs. Sujata Ray (then Director HR/Finance BSNL) pigheadedly and
lawlessly made promotions in the cadre of AO, CAO and AGM, which the Hon’ble
Chandigarh Bench of CAT later on declared provisional in OA No. 332/2017 and OA
No. 750/2018. While directing BSNL to hold review DPC, the Hon’ble Chandigarh
Bench of CAT clarified that the candidates belonging to SC/ST Category, who got
accelerated promotions, shall not avail the benefit of seniority in promoted
cadre.
This is how the recalcitrant
and arbitrary approach of BSNL management is spoiling the career of several
thousand executives working in BSNL, whereby all the promotions across the
cadres have been illegally and intentionally stopped due to the biased and
vicious view obtained by BSNL management against the candidates belonging to
Open Category. Instead of following judicial dictum, the BSNL Management is itself
indulging in unnecessary litigation.
The misfortune of
Open Category Candidates is also coupled with the fact that the Majority
Representative Association is not pursuing their genuine and judiciously
decided case just for the sake of SC/ST Vote Bank Politics.
Therefore, in
light of DOT Clarification No. 10-01/2017-SCT(Vol.IV)Pt.II dated 13.10.2020,
BSNL Management is once more requested to recast the seniority in all the
cadres by applying catch-up rule and also by complying the orders passed in OA
No. 332/2017 and OA No. 750/2018.
Copy of BESA
Letter
Copy of DOT
Clarification