Per Justice Rameshwar Vyas :

1. Being aggrieved by his reversion order dated 16.06.2011 (Annex.A/2), applicant has approached this Tribunal to quash and strike down the impugned order as also the clarification dated 11.05.2007 (Annex.A/1), based upon which he was reverted as a STS regular, from the post of Dy. General Manager (ad hoc).

2. Facts of the case in brief are as under :

Vide order dated 29.09.2010 (Annex.A/3), after approval from the competent authority, promotions to 71 STS, including applicant (who is at serial No. 18), were accorded to officiate purely on temporary and ad hoc basis in the grade of Dy. General Manager which is at par & equivalent to JAG as per the BSNL Management Service Recruitment Rules.

3. That after a gap of about four months, he was ordered to be reverted vide order dated 15.02.2011 which was challenged by him before this Tribunal at Jaipur Bench in OA No. 87 of 2011 and the same was disposed of vide order dated 28.04.2011 (Annex.A/4) setting aside the reversion order. The Jaipur Bench of this Tribunal in para No. 5 observed as under :

It is not disputed by the learned counsel appearing for the respondents that till date no chargesheet has been issued. The learned counsel only refers letter dated 28.1.2011 regarding initiation of disciplinary proceedings against the applicant wherein It was further observed that.

It was further observed by the Tribunal as under :-

Admittedly, till filing of the instant O.A., no inquiry, as advised by the DoT(Vigilance), is initiated against the applicant thus, in view of the ratio laid down by the Hon’ble Apex Court in K.V. Jankiraman, the order impugned (Annex.A/1) dated 15.02.2011, is premature. The Tribunal further observed that this order could have been passed by the respondents only when the inquiry is initiated against the applicant and we are of the view that it is the domain of the respondents to initiate inquiry and in such eventuality if the inquiry is initiated against the applicant. The respondents may have passed the reversion order, as the applicant is given promotion on the post of Dy. General Manager on ad hoc basis but this cause is not made available during contemplation of the inquiry.

With the above observation, the reversion order dated 15.02.2011 was quashed and set aside with liberty to the respondents that as and when inquiry is initiated against the applicant they may pass a fresh order in accordance with law.

5. It is the averment of the applicant that the 3 rd respondent in order to fill up the lacuna in their action, issued a chargesheet for major penalty under rule 36 of the BSNL (CDA) Rules, 2006 [hereinafter referred as “the Rules of 2006”], vide Memo dated 26.04.2011 (Annex.A/5). The applicant has already challenged the said disciplinary proceedings before this Bench in OA No. 141/2011. The applicant further averred that the BSNL Rules were notified on 14.07.2007 (Annex.A/6). The respondents have issued seniority list in respect of STS cadre vide letter dated 27.04.2010 wherein, name of the applicant finds place at Sl. No. 358. Vide order dated 16.06.2011 (Annex.A/2), applicant has been ordered to be reverted from the post of Dy. General Manager (Finance) JAG to the post of STS i.e. Chief Accounts Officer. Being aggrieved by the above reversion order, the applicant has challenged the same on the following grounds :

6. It has been pleaded by the applicant that he was promoted from the post of CAO STS grade to the post of Dy. General Manager in JAG cadre after fulfilling due procedure and according to the recruitment rules in force. All the persons in consideration zone were considered for the promotion by the DPC. The use of words temporary & ad hoc, is, in fact a mis description and, the applicant has been promoted on regular basis, thus, he had vested right to hold the promotional post, as alleged.

The applicant has not been given any prior notice or hearing before passing the impugned order of reversion which cannot be sustained as per the verdict of Hon’ble Apex Court in case of H. L. Trehan & Ors. Vs. UOI & Ors. [AIR (1989) SC 568 [LQ/SC/1988/579] ]. The applicant has been holding the promotional post on substantive basis and could be reverted to a lower post only as a measure of penalty which can be imposed after following the due procedure established by law, however, no such procedure has been followed in the instant case. The impugned order is stigmatic and the same cannot be sustained as per law propounded by Hon’ble Apex Court in the case of Purshottam Lal Dhingra [AIR (1958) SC 826]. Thus, the impugned order is not at all in consonance with the rule of law, principles of natural justice or the doctrine of fair play.

7. One of the reason of reversion mentioned in the impugned order was, as “in compliance with order dated 28.04.2011 of CAT Jaipur Bench” whereas, there was no such direction and otherwise also, the Court would not give such direction since such orders are to be passed by the executives and that too, in accordance with the rules in force. The main reason is initiation of disciplinary proceedings and impugned clarification which is otherwise not valid.

The impugned clarification dated 11.05.2007 (Annex.A/1) has become redundant since the same was conditional specifically narrating in words like, “till the time ad hoc promotions are being made in BSNL”. It is averred that ad hoc promotions were being made so long the recruitment rules for management services were not framed. The clarification became redundant soon after the rules were promulgated and given effect to. It is submitted that the rules does not provide for ad hoc promotion as such.

The clarification is superfluous for the reason that there is no ambiguity in the Clarification No.(iv) which is needed when there is some ambiguity or confusion. The explanation is very clear and bare reading of it gives only one meaning.

8. It is also the ground of challenge that the impugned clarification cannot expand the scope of the main provision in asmuch as the clarification A/1 goes diametrically opposite to the main provision. No executive order, notification or the circular, can be a substitute of the statutory rule. As per main provision, one could be reverted on the ground of unsuitability or on administrative ground, unconnected with the conduct but, the clarification prescribes for reversion on the ground of institution of disciplinary case, which is based on alleged misconduct / misbehaviour. It is also one of the ground raised by the applicant to assail the order that the one, who is officiating on ad hoc basis for a period of more than one year, need not be reverted on institution of disciplinary case. But in case, one has not completed one year as ad hoc, he could be reverted on the ground of institution of disciplinary proceedings. There is no intelligible differentia for such separate classifications and there is no nexus with the object sought to be achieved. The classification is ex facie, arbitrary and whimsical.

The impugned clarification is also not in consonance with the rules of sealed cover procedure. The implication of the clarification would be that one would be deprived of his fundamental right to consideration of promotion as enshrined under Article 16 of the Constitution. Even, the sealed cover procedure is to be adopted when a disciplinary proceeding is pending i.e. a chargesheet is issued at the time of consideration of promotion. If a person, who is duly promoted can be reverted like this, in this way, the provisions of sealed cover procedure would be rendered redundant.

9. It is also pleaded that the impugned clarification has not even been issued by the competent authority i.e. the Board, which is required as per paras 59 and 60 of the BSNL Rules, 2009. With the above grounds, the applicant has challenged the validity of the clarification dated 11.05.2007 (Annex.A/1) and the order dated 16.06.2011 (Annex.A/2), reverting the applicant from the post of Dy. General Manager to the post of STS Regular.

10. In reply filed by the respondents, it has been averred that according to the directions of the Vigilance Branch of the Department of Telecom, a decision was taken in the BSNL for initiation of disciplinary proceedings against applicant vide order dated 28.01.2011. As per clarification contained in Annex.A/1 dated 11.05.2017, in case an employee promoted on ad hoc basis, held the post for a period of less than one year, the BSNL employee shall be reverted to the post held by him substantively or on a regular basis, when a disciplinary proceeding is initiated against the officer. It is the reply of the respondents that vide order dated 28.04.2011, Jaipur Bench of this Tribunal has given liberty to the Department to pass fresh orders after initiation of disciplinary proceedings against the officer. A fresh reversion order was issued on 16.06.2011 after issuance of the chargesheet on 26.04.2011 impugned herein. It is the defense of the respondents that it is nowhere mentioned in the rules that the said promotion of the applicant was on regular or substantive basis.

It is the averment of the respondents that after coming into force the recruitment rules, the STS can be given ad hoc promotions in certain circumstances. Regarding clarification to Explanation No.(iv) to Rule 33 (B) of the Rules of 2016, it is the averment of the respondents that clarification was issued with approval of the CMD, BSNL, who has been empowered to approve the clarifications on BSNL CDA Rule, 2006 by BSNL Board. A copy of the extracts of the minutes of the meeting of the Board held on 18.09.2006, has been annexed as Annex. R/4. The clarification is well within the rule 59 of the Rules, 2006 and, also as per Rule 11(4) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965. It is also reply of the respondents that question of adopting sealed cover procedure has not arisen in this case and the applicant was reverted as per the prescribed guidelines. On conclusion of the disciplinary proceedings initiated against him, if the same resulted in exoneration, necessary action will be taken by the respondents regarding his promotion to Dy. General Manger level on the basis of extant guidelines on the subject. As per the Department of Personnel & Training guidelines when an appointment is made purely on ad hoc basis and the officer has held the post for a period of less than one year, the Government servant shall be reverted to the post held by him substantively or on a regular basis, when a disciplinary proceedings is initiated against him. Clarification to Explanation to Rule 33 – B of the BSNL CDA Rules, 2006 is not in contradiction with BSNL CDA Rule 2006.

It is also the averment of the respondents that as per DoP&T guidelines in O.M. dated 24.12.1986 (Annex.R/4) when an appointment has been made purely on ad hoc basis and the officer has held the post for a period of less than one year, the Government servant shall be reverted to the post held by him substantively or on regular basis when a disciplinary proceeding is initiated against him. Contradicting the grounds raised by the applicant, respondents prayed to dismiss the O.A.

11. Applicant has filed a rejoinder reiterating the stand taken by him in his O.A.

12. In the additional affidavit filed on behalf of the respondents, their stand has been clarified with regard to the submissions made by the applicant in his rejoinder.

13. Applicant also filed an additional affidavit to apprise this Bench regarding the fact that the appeal filed by him against the order of the disciplinary authority was allowed exonerating him from the charges. In this regard, a copy of the order dated 20.03.2017 communicated to him vide letter dated 17.04.2000, is placed on record.

14. In further counter to additional affidavit filed by the applicant, it has been pleaded that exoneration order extends no support to the applicant as the reversion order was from ad hoc promotion on account of initiation of disciplinary proceedings within a year and ad hoc promotion cannot be given retrospectively and it can be affected only from the date of assumption of the charge of the post.

15. Heard learned counsel for the parties and perused the material available on record.

16. It is contended by learned counsel for the applicant that applicant was accorded promotion though on ad hoc basis after following the procedure applicable for regular promotion. The said promotion is misnomer. The applicant got ad hoc promotion on his merit. In the first round of litigation vide O.A. no. 141/2011, the reversion order was quashed. To fill up the lacuna in the reversion order, the respondents issued another reversion order after serving chargesheet to the applicant. It is incorrect to say that there was any direction of Jaipur Bench of this Tribunal to issue chargesheet to the applicant. It is also the contention of the learned counsel for applicant that clarification dated 11.05.2007 (Annex.A/1) was not warranted. The CMD, BSNL was not authorised to add any clarification to provision of BSNL CDA Rules, 2006. It is also the argument of learned counsel for applicant that the reversion order is punitive in nature which cannot be passed without adopting the due process of law. The respondents cannot discriminate the applicant with the employees who get chargesheet after completion of one year of their service on ad hoc promotion .The BSNL CMD Rules does not provide such discrimination. It is also the contention of learned counsel for applicant that he has been exonerated from the charges by the appellate authority in the year 2017, therefore, his case should be treated in a manner where promotion committee follows the rule of sealed cover till the completion of the inquiry.

17. On the contrary, learned counsel for respondents submitted that as per clarification dated 11.05.2007 (Annex.A/1), in case an employee is promoted on ad hoc basis and held a post for a period less than one year, the BSNL employee shall be reverted to the post held by him substantively or on a regular basis, when a disciplinary proceeding is initiated against the officer. It is contended by the respondents’ counsel that this clarification has been issued by the CMD who was authorised by the Board of Directors in its 84th meeting held on 18.09.2016, Minutes of which as Annex. R/4, has been placed on record. It is contended that the promotion of the applicant cannot be treated as a regular promotion in absence of any rule. Otherwise also, rule 59 of the Rules of 2006 gives power to interpret the question relating to interpretation of these rules. It is the contention of the learned counsel for the respondents that the reversion order cannot be treated as a penalty in terms of Explanation No.(iv) to Section 33-B of the said Rules. It is reiterated by the respondents that the reversion was on account of administrative ground.

18. Having regard to the submissions made by the learned counsel for the parties and the material available on record, it would be appropriate to first peruse the provisions of Section 33 of the BSNL(Conduct, Discipline & Appeal) Rules, 2006. Rule 33 of these said rules speaks about minor and major penalties. Major penalty has been provided under Rule 33 –B. Reduction to a lower time scale of pay, grade, post or service is one of the major penalty provided under these rules.

19. As per the Explanation (iv) to this rule, reversion of an employee officiating in a higher grade or post to a lower grade or post on the ground that he is considered, to be unsuitable for such higher grade or post or on any administrative grounds unconnected with his conduct, shall not amount to a penalty within the meaning of the aforesaid rule.

As per the amended Rule 59 of the Rules of 2006, in case of any doubt in application such rules, the relevant G.o.I. decisions / Instructions, Model CDA guidelines issued by the DPE, Fundamental Rules/Supplementary Rules, Central Civil Services (Conduct) Rules 1964, and Central Civil Services (Classification, Control & Appeal) Rules, 1965 as amended/ modified from time to time shall be referred to, so long as these are not in contradiction with the BSNL CDA Rules, 2006 as amended from time to time. If any question arises relating to the Interpretation of BSNL CDA Rules, it shall be referred to the Board, whose decision shall be final.

Perusal of the Rules 2006 discloses that there is no provision in the the rules regarding reversion of an official promoted on ad hoc basis on account of subsequently filing chargesheet against him.The respondents seems to have taken guidance from the O.M. dated 24.12.1986 issued by the DoP&T as they specifically referred the provisions of the above O.M., copy of which has been filed as Annex. R/6.

20. It is averment of the applicant in rejoinder that this O.M. is in contradiction to the specific proviso (iv) to Rule 33 of the Rules of 2006. In our view to answer the applicability of the above O.M., reference of Rule 59 of the BSNL CMD Rules, 2006, shall be appropriate which provides that in case of any doubt in application of the Rules of 2006, the relevant GoI decisions/instructions in Model CDA guidelines issued by the DPE fundamental / supplementary rules, CCS (Conduct) Rules, 1964 and the Central CCS (CCA) Rules, 1965, as amended/modified from time to time, shall be referred so long as these are not in contravention with the BSNL CDA Rules, 2006 as amended from time to time.

21. In view of the provisions of the above rule, we find that the O.M. issued by the DoP&T can be referred, if it is not in contradiction with the BSNL CDA Rules, to decide the question whether reversion amounts to penalty or not. We find that rule 33of the Rules of 2006, is analogous to rule 11 of the CCS (CCA) Rules, 1965. Explanation (iv) of rule 11 of CCS Rules is also similar to Explanation (iv) of the rule 33 of the BSNL CMD rules. In view of this any OM issued by the DoP&T on the question whether reversion of punishment order amount to punishment or not , is relevant for the BSNL employees also. Rule 59 of the Rules of 2006 in specific terms allow BSNL authorities to refer the GoI orders.

22. The respondents have also in the reply relied upon the above referred OM to justify the validity of the impugned order. We find no contradiction between the provisions of Explanation (iv) of rule 33 of the BSNL CMD rules with the provisions of OM dated 24.12.1986 (Annex.R/6). Explanation (iv) to rule 33 of BSNL Rules describe a situation where reversion of an employee officiating in a higher grade, pay or post to a lower grade, pay or post, does not amount to penalty within the meaning of this rule. We note that there is no provision in the Rules of 2006 to deal with the situation as arisen in the present matter. The OM dated 24.12.1986 speaks about the question whether a government servant appointed to a higher post on ad-hoc basis should be allowed to continue in the ad - hoc appointment when a disciplinary proceedings is initiated against him. In this regard after considering this issue, the department decided to follow the following procedure in this regard :

“(i) Where appointment has been made purely on ad hoc basis against a short term vacancy or a leave vacancy or if the government servant appointed to officiate until further orders in any other circumstances has held the appointment for a period less than 1 year, the government servant shall be reverted to the post held by him substantively or on regular basis when disciplinary proceeding is initiated against him.

(ii) Where the appointment was required to be made on ad hoc basis purely for administrative reasons (other than against a short term vacancy or a leave vacancy) and the government servant has held the appointment for more than 1 year, if any disciplinary proceeding is initiated against the government servant, he need not be reverted to the post held by him only on the ground that disciplinary proceedings have been initiated against him.”

After perusing the above procedure, we find that promotion made on ad hoc basis for administrative reasons may be undone if any disciplinary proceeding is initiated against a government servant within a period of one year from his appointment and he may be reverted to his original post.

23. We note that in the first round of litigation, the Jaipur Bench of this Tribunal in OA No. 87/2011, observed that reversion order could have been passed by the respondents only when the inquiry is initiated against the applicant which is in the domain of the respondents. The Bench also observed that if the inquiry is initiated against the applicant, the respondents may have passed the reversion order as the applicant is given promotion on the post of the Dy. General Manager on ad hoc basis.

24. It would be appropriate to mention that the O.A. was allowed on the ground that contemplation of the inquiry does not give right to the respondents to revert the applicant.

25. Perusal of the impugned order reveals that on account of order passed by the Jaipur Bench, the respondents passed a fresh order of reversion after initiation of disciplinary proceedings against the applicant.

26. Coming to the issue of applicability of the provisions of the OM issued by the DoP&T, we are of the view that the same is not in contradiction with the provisions of the Explanation (iv) to rule 33 of the Rules of 2006, therefore, the respondent was correct in referring the provisions of the O.M. issued by the DoP&T. As stated earlier, rule 59 of the Rules, of 2006, allows applicability of the government orders, if it is not in contradiction with the said rules.

27. In the present case, it is not in dispute that promotion of the applicant was purely on temporary and ad hoc basis in the grade of Dy. General Manager. The promotion order dated 29.09.2010 (Annex.A/3), in clear terms says that the promotion was approved to officiate on purely temporary and ad hoc basis. It is also not in dispute that after grant of promotion, a charge memo dated 26.04.2011 (Annex.A/5) was issued to the applicant. Apparently, at the time of issuance of the impugned charge memo, he was not holding the higher post for more than one year and in view of this, the case of applicant is squarely covered by the procedure number (ii) as mentioned in O.M. dated 24.12.1986. The contention of the respondents that the O.M. is not applicable, cannot be allowed in view of the provisions of rule 59 of the Rules of 2006.

28. So far as the validity of the clarification dated 11.05.2007 (Annex.A/1) is concerned, we are of the view that the same is analogous to the OM dated 26.12.1986.As per the provisions of rule 59 of the Rules of 2006, if any question arises relating to interpretation of BSNL CDA rules, it shall be referred to BSNL Board. In the present matter, question of interpretation of these rules did not arise at all. Rather, the real and crucial question was regarding applicability the DoP&T OM while applying the provisions of the Rules of 2006, which has been answered in favour of the respondents, as discussed above.

29. We are not in agreement with learned counsel for applicant that the ad hoc promotion granted to the applicant was misnomer whereas it was a regular promotion. In view of the fact that in promotion order dated 29.09.2010 (Annex.A/3) itself, it has been specifically mentioned that it was promotion purely on temporary and ad hoc basis, we cannot give different meaning to the promotion granted to the delinquent, resultantly, the contention raised by the applicant in this regard, is not tenable in the eyes of law.

So far as giving prior notice or opportunity of hearing before passing the impugned order is concerned, we are of the view that the impugned order is not stigmatic in nature as it was passed in compliance of the directions issued by the DoP&T, therefore, prior notice was not necessary. The respondents after due consideration, issued the impugned order in compliance of the procedure set by the DoP&T. Furthermore, it would be relevant to mention here that the validity of the provisions of the O.M. dated 24.12.1986, cannot be examined in the OA in hand, in absence of challenge to the above provision after impleading the UOI as a party-respondent. We are also of the opinion that in the present matter, provisions pertaining to sealed cover, is not applicable since the issue is not regarding with- holding of promotion on account of pendency of disciplinary proceedings.

30. In the conclusion, we find no merit in this O.A., hence, it is hereby dismissed.

31. While deciding this OA, we note that applicant has been exonerated in the departmental inquiry during the pendency of this O.A. on 20.03.2017, therefore, respondent Department are directed to consider his case for regular promotion from the same date when the name of similarly situated persons were considered and granted promotion, if the applicant is otherwise found suitable. However, pay fixation may be made notionally as he has already retired without actual performing on the promotional post. In the circumstances of the case, there shall be no order as to costs.