Central Administrative Tribunal - Ernakulam
Mr.M.R.Sasidharan Nair vs Bharath Sanchar Nigam Limited on 28 September, 2016
Author: P.Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION NO. 180/00699/2014
Wednesday this the 28th day of September, 2016.
CORAM
HON'BLE MR. JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE MRS. P. GOPINATH, ADMINISTRATIVE MEMBER
Mr.M.R.Sasidharan Nair, S/o P.K. Raman Nair,
57 years, Telecom Mechanic,
H.R.No.198114824, BSNL, Chelad, residing at Ashwathy Bhavan,
Thrikkariyoor P.O.,
Kothamangalam, Pin 686 692. . . . Applicant.
(By Mr. C.A. Joy, Advocate)
1. Bharath Sanchar Nigam Limited, Rep. by The
Chairman & Managing Director,
Corporate Office,
Statesman House,
Barakhama Road,
New Delhi.
2. The Principal General Manager,
BSNL Bhavan,
Ernakulam SSA,
Ernakulam, Cochin 16.
3. The Accounts Officer, ESTT.
Office of TGMP,
BSNL Bhavan, Ernakulam,
Cochin 16. . . . Respondents
(By Mr.Pradeep Krishna, Advocate )
This application having been finally heard on 02.09.2016 and Reserved for Orders, the
Tribunal on 28 .09 .2016 delivered the following.
ORDER
Per:Mrs.P.Gopinath , Administrative Member:
The applicant commenced his service in the Department as Lineman in 1981.
The applicant was promoted to the post of Telecom Mechanic in February 2002. He was given BCR fixation on 25.07.2007. Based on Annexure A3 the BCR fixation given to the applicant on 25.07.2007 is liable to be withdrawn and by treating his promotion as TM on 20.02.2002 as the Ist upgradation in the NEPP Scheme, the 2 nd upgradation ought to have been given on 20.02.2009 on completion of seven years of service. The above has been adopted while fixing the pay of the colleagues of the applicant, Mr. Asokan Nair M.K., HR No. 198114929 and Mr.Rajasekharan K.T. , HR No. 198114831 and in the case of the junior of the applicant, Sivan T.K., HR No.1989318190 also.
2. The pay of the applicant as on January 2014 is Rs.20,380.00 in the pay scale 12,520-23440.00. Whereas his colleagues namely Asokan Nair M.K., having HR No.198114929 and Rajasekharan K.T. Having HR No.198114831 are drawing the basic pay of Rs. 21,430.00 in the month of January 2014 in the pay scale 13,600- 25420.00. The junior of the applicant, Sivan T.K. Having HR No. 198318190 is drawing a basic pay of Rs.20.880.00 for the month of January 2014 in the pay scale 13600-25,420.00. From 2002 onwards the applicant's pay is lesser than the pay of his colleagues namely Asokan Nair and Rajasekharan K.T. as well as his junior, Sivan T.K. The NEPP Scheme though promulgated in the year 2010, has been implemented w.e.f 01.10.2000, the date of formation of BSNL. The Scheme provides 1 st upgradation for the non-executive absorbed in the service of the BSNL in the year 2004 and the 2 nd upgradation in the year 2011. As per clause 6.4 of the scheme any upgradation in pay scale availed by a non-executive employee after 01.10.2000 and before notification of the new policy will be treated as the 1st upgradation. It is submitted that based on Annexure A3 unless an option is exercised to continue in the existing promotion policy existing prior to 01.10.2000, the new promotion policy will automatically and uniformly be applied to all the non-executive employees in the BSNL. If no option is exercised also, it would be concluded that the non-executive has opted for the present promotion policy. Scheme also stipulated that all the concessions given by the BSNL to non-executive in relation to OTBP/BCR/Grade IV/ACP etc. after 01.10.2000 stands withdrawn with immediate effect.
3. Applicant was promoted as Telecom Mechanic w.e.f 20.02.2002 and he was given BCR fixation on 25.07.2007. Therefore based on Annexure A3 the BCR fixation given to applicant on 25.07.2007 is liable to be withdrawn. By treating his promotion as TM on 20.02.2002 as the 1 st upgradation in the NEPP Scheme, the 2 nd upgradation ought to have been given on 20.02.2009 on completion of seven years of service. A second option is to give the applicant the 1st upgradation notionally on 01.10.2004 on completion of four years of service and the 2 nd upgradation in the year 2011. In the case of the junior of the applicant, Sivan T.K. H.R. No.198318190 the BCR fixation given on 27.10.2009 has been withdrawn and he had given the 1 st upgradation on 01.10.2004 on completion of 4 years and 2 nd upgradation on 01.10.2011 on completion of 11 years. Accordingly the pay fixation and non- implementation of NEPP Scheme in the case of the applicant is liable to be re- considered. The applicant is entitled for stepping up of his pay at par with his colleagues and entitled for a pay of Rs.21440.00 in the month of January 2014 instead of the present pay of Rs.20,380.
4. The applicant filed O.A. No.259/2014 and this Tribunal pleased to dispose the above Original Application as per order dated 09.04.2014 to consider and pass orders on the representation within a period of 2 months from the date of receipt of the copy of the order. Based on the above direction the applicant submitted a representation along with the copy of the judgement to the 2nd respondent. Thereafter Annexure A1 impugned communication has been issued. Annexure A/3 scheme contemplates only to treat one upgradation between 2000-2004 as the 1 st upgradation under the scheme and the 2nd upgradation has to be based upon the NEPP Scheme only. Accordingly the version of the respondent that the promotion of the applicant on 20.02.2002 is treated as 1st upgradation and BCR on 25.07.2007 is treated as 2 nd upgradation is contested by applicant. As per the provisions contained in the Non-Executive Promotion Policy the applicant is entitled for Upgradation of his pay on the completion of 4 & 7 years of service.
5. Relief sought by the applicant is to declare that the applicant is entitled for re- fixation of his pay by providing the pay applicable to his colleagues namely Asokan Nair M.K. or Rajasekaran K.T., as evidenced by Annexure A5 or to that of his junior Sivan T.K. as evidenced by Annexure A6 and issue an order directing the respondents to disburse the arrears of salary and other benefits within a time limit fixed by this Tribunal.
6. Respondent contests the prayer of the applicant that he is eligible for two promotions on 01.10.2004 and 1.10.2011 under Non Executive Policy. It is submitted that as per option dated 20.01.2010, he has opted for NEPP policy. Applicant has exercised a further option dated 20.10.2010 for treating the promotion granted to him under erstwhile OTBP/BCR/Grade IV/ACP promotion schemes etc as his first financial upgradation under NEPP. Hence the post based promotion on 20.02.2002 as TM was treated as first upgradation and BCR promotion on 25.07.2007 was treated as 2nd promotion under NEPP. As such the promotions on 20.02.2002 and BCR promotion on 25.07.2007 were treated as 1st and 2nd upgradations under NEPP. Para 6.3 of BSNL Head Quarter NEPP Order dated 23.03.2010 is reproduced below:
'Time Bound IDA pay scale upgradations are personal to Non Executive concerned and no claim what-so-ever can be made by comparison on grounds of seniority, class, community, cadre, stream etc. Further, except as provided in the instant guidelines, there will be no claim on account of any of the other provisions of FRSR in the context of pay scale, pay fixation, substantive status etc.'
7. The pay of the applicant was fixed at R.6500/- in the scale of pay Rs.5700-160- 8100 with one advance increment on his promotion to the cadre of Telecom Mechanic on 20.02.2002. Further, it got converted to the corresponding IDA scale of Rs.10,900- 20400 as on 01.01.2007 (II PRC) at Rs.15670/- and the next increment was drawn on 01.07.2007 at Rs.16140/-.
8. Heard the learned counsel for Applicant and Respondent and perused the written submissions made.
9. Based upon the Non Executive Promotion Policy (NEPP), a non executive recruited by DOT prior to 01.10.2000 will be considered for four upgradations on completion of 4 years of service in the IDA pay scale from 01.10.2000 and 7 years service after the 1st upgradation, and eight years each for 3rd and 4th upgradations. As per Para 5.5.(1) of the rules, all the Non-Executive Employees will automatically and uniformly be covered by this promotion policy. Existing OTBP/BCR/Grade IV/ACP policy will cease to exist from the date of notification of this Non-Executive Promotion Policy as a general measure. It is further submitted that the applicant has submitted an option dated 20.10.2010 in which he opted NEPP and a second option for treating the promotion granted to him under his erstwhile OTBP/BCR/Grade IV/ACP promotion schemes etc. by way of conversion/restructuring/pay scale upgradation etc as his first financial upgradation under Non Executive Promotion Policy. Since the two options were contradictory the respondent should have addressed applicant to withdraw one option. However the respondent exercised his option of choice and chose the 2nd option of treating OTBP/BCR/ACP upgradation as his chosen career course. This course is contradictory to the NEPP Scheme which in para 5.1 of the Scheme stipulates as follows:
'5.1 All the non-executive employees will automatically and uniformally be covered by this promotion policy. Existing OTBP/BCR/Grade IV/ACP policy will cease to exist from date of notification of this Non-Executive Promotion Policy, as a general measure. An individual non-executive employee may, however, opt to remain out of the purview of this scheme to continue in his erstwhile time bound promotion scheme. Such option to remain out of the purview of this policy will have to be exercised within one month from the date the circle authority/SSA Head asks for such option at the time of implementation of the policy with reference to the first review date. If option is not exercised within the stipulated time period, it would be construed as if the concerned Non-Executive has opted for this Non-Executive Promotion Policy and accordingly he/she will be governed by the provisions of the Non-Executive Promotion Policy. The Option Form is annexed herewith.
5.2 b�&.................... All the concessions given by BSNL to Non-Executive in relation to OTBP/BCR/Grade-IV/ACP etc. after 01.10.2000 stands withdrawn with immediate effect.
However, the cases settled prior to the issue of this order, need not be reopened unless the employees himself opts for this Non-Executive Promotion Policy. The applicant's counsel argues that the non-executive without a proper understanding of the new policy may have exercised multiple options. In such a situation the multiplicity should have been pointed out and applicant should have been asked to choose one. However the respondent chose to treat the promotions on 20.02.2002 and BCR promotion on 25.07.2007 as 1st and 2nd promotions under NEPP.
10. Applicant was promoted as TM with effect from 20.02.2002 which is a post based promotion. As per the NEPP policy, post based promotion will continue along with the Non-Executive Time Bound promotion policy. If a post based promotion occurs in between 01.10.2000 and 01.10.2004, the same has been treated as 1 st upgradation without seeking any option from the concerned official. If a Non- Executive opted for Non-Executive Promotion Policy and no post based promotion was granted in between 01.10.2000 and 01.10.2004, he is entitled for two promotions on 01.10.2004 and 01.10.2011. If there is any promotion in between 01.10.2000 and 01.10.2004, it will be taken as 1st promotion under NEPP and he should get 2 nd promotion after 7 years.
11. Respondent argues that Ashokan Nair and Rajashekharan K.T., opted to forgo their BCR promotions on 27.07.2007 and 29.10.2007 respectively. Hence they got two upgradations under NEPP on 01.10.2004 and 01.10.2011 since they were granted no promotion in between 01.10.2000 and 01.10.2004. Shri Sivan, T.K. was appointed as Line man on 04.05.1983 as junior to the applicant and became TM on 07.07.1997. He got OTBP and BCR promotions on 27.10.1999 and 27.10.2009 respectively. He has submitted the option to forgo the BCR promotion received on 27.10.2009. He has not received any promotion in between 01.10.2000 and 01.10.2004. Hence he got two promotions on 01.10.2004 (12520-23440) and on 01.10.2011 (13600-25420). Shri T.K.Sivan entered in the Department as junior to Shri M.R.Sasidharan Nair but he became TM earlier on 07.07.1997 and whereas the applicant was promoted as TM earlier only later on 20.02.2002. The seniority of the applicant vis-a-vis Shri T.K.Sivan in the erstwhile cadre i.e. before becoming Telecom Mechanic, has no impact on the seniority position in the cadre of Telecom Mechanic and a fresh seniority list of TM becomes operable. Applicant was promoted as Telecom Mechanic on regular basis as personal upgradation, whereas his junior was promoted to the restructured cadre of TM by qualifying in the screening test/walk in group. Since Sri M.R. Sasidharan Nair is junior to Sri. T.K.Sivan in the TM cadre, the question of stepping up does not arise as per rules as stepping up is done with reference to junior.
12. Respondent has submitted comparative pay statements of Shri T.K.Sivan and Shri M.K.Asokan Nair as Annexure R5 and R6 respectively. Comparison statement with the pay of Shri T.K.Rajasekharan is not prepared since the service book is with CCA, DOT as he is retiring on 31.01.2016. All other employees pointed out in the OA are seniors to the applicant and hence drawing higher pay if any should not be a source of grievance or a cause for stepping up.
13. This is a case where the applicant vide Annexure R1(i) and R1(ii) has exercised two options of OTBP/BCR also treating him as covered under NEPP being considered for being covered under the NEPP Scheme and option of his post based promotion as Telecom Mechanic in February 2002 which occurred between 2000 and 2004 be treated as the first upgradation as requested by him vide Annexure R1(ii). His upgradation under BCR in 2007 should have been ignored as he had opted for NEPP. And applicant be given 2 nd upgradation under NEPP on completion of 11 years.
14. Having opted for NEPP, applicant is entitled to all upgradation under NEPP Scheme. Hence applicant be given second upgradation under NEPP after treating the promotion as Telecom Mechanic which occurred between 2000 and 2004 as first promotion under NEPP.
15. The O.A. is allowed accordingly. No order as to costs.
(MRS. P.GOPINATH) (N.K.BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER sj/*