Central Administrative Tribunal - Ernakulam
Daniel P. Varghese vs Union Of India on 16 February, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 964 of 2010
Original Application No. 979 of 2010
Original Application No. 986 of 2010
Thursday, this the 16th day of February, 2012
CORAM:
Hon'ble Dr. K.B.S. Rajan, Judicial Member
Hon'ble Ms. K. Noorjehan, Administrative Member
1. Original Application No. 964 of 2010 -
1. Daniel P. Varghese, aged 56 years,
S/o. (Late) P.V. Varghese,
Accounts Officer, Telecom Revenue-I,
Bharat Sanchar Nigam Limited (BSNL),
Office of the General Manager (Telecom),
Thiruvalla - 689 101,
Residing at : Bethel House, Nellimukal P.O.,
Manakala, Adoor-691 551.
2. Jagadish P, aged 47 years, S/o. Purushothaman Nair C.R.,
Accounts Officer, Bharat Sanchar Nigam Limited (BSNL),
Office of the Executive Engineer,
Civil Division, Kottayam, Residing at : Chirakkunnel House,
Kangazha P.O., Kottayam District, Pin - 686 541.
3. G. Prakash, aged 47 years, S/o. K. Gopikutta Nair,
Accounts Officer, Bharat Sanchar Nigam Limited (BSNL),
Office of the General Manager (Telecom), T.R. Computer Section,
Thirunakkara, Kottayam-686 001, Residing at : Pranavam, Pallom PO,
Kottayam-686 007.
4. Jaya Preman, aged 49 years, W/o. Preman V., Accounts Officer,
Bharat Sanchar Nigam Limited (BSNL), Office of the General
Manager (Telecom), Thiruvalla, Residing at : Sivadom,
SNRA-124-B, TC10/111(4), Swathi Nagar Lane 1C,
Paippinmoodu, Shastamangalam, Trivandrum - 695 005
5. K.S. Sankaran Namboothiri, aged 55 years, S/o. N. Sankaran,
Accounts Officer, Bharat Sanchar Nigam Limited (BSNL),
Office of the General Manager (Telecom), Thiruvalla,
Residing at : TC.55/25, Chaithram, Vishu Nagar,
Kaimanam, Pappanamcode P.O., Trivandrum. ..... Applicants
(By Advocate - Mr. T.C.G. Swamy)
V e r s u s
1. Union of India, represented by the Secretary,
to the Government of India, Ministry of Communications,
(Department of Telecommunication), New Delhi.
2. The Chairman-cum-Managing Director,
Bharat Sanchar Nigam Ltd., New Delhi.
3. The Member (Finance), Department of Telecommunications,
Ministry of Communications, Sanchar Bhavan, 20,
Ashoka Road, New Delhi - 110 001. ..... Respondents
[By Advocates - Mr. George Joseph, ACGSC (R1&3) &
Mr. George Kuruvilla (R2&4)]
2. Original Application No. 979 of 2010 -
1. Salarenjan K.K., aged 48 years,
S/o. Karunakaran T.K., Accounts Officer,
Bharat Sanchar Nigam Limited (BSNL),
Office of the General Manager (Telecom),
Alappuzha-11, Residing at : Jaishnavam,
Kalappura, Alappuzha-7.
2. Beena Jayakumar, aged 47 years, W/o. Jayakumar K.S.,
Accounts Officer, Bharat Sanchar Nigam Limited (BSNL),
Office of the General Manager (Telecom),
Alappuzha-7, Residing at : Sreehari, Maruthorvattom P.O.,
Cherthala.
3. Benzy John, aged 46 years, W/o. John Pothen,
Accounts Officer, Bharat Sanchar Nigam Limited (BSNL),
Office of the General Manager (Telecom), Alappuzha,
Residing at : Vadakkekalam, Thirumala Ward, Alleppey.
4. Alphonsa K. Sebastian, aged 50 years, W/o. P.T. Jose,
Accounts Officer, Bharat Sanchar Nigam Limited (BSNL),
Office of the Accounts Officer (TR), Thodupuzha-685 584,
Residing at : Padinjarayil House, Karikode,
Thodupuzha East PO, Pin - 685 585.
5. K.K. Sukumaran, aged 48 years, S/o. Krishna Poduval,
Accounts Officer, Bharat Sanchar Nigam Limited (BSNL),
Office of the PGM/TD, Trichur, Residing at : Jyothis, Mookoni House,
Adiyatt Lane, Poothole, Trichur - 680 004. ..... Applicants
(By Advocate - Mr. T.C.G. Swamy)
V e r s u s
1. Union of India, represented by the Secretary,
to the Government of India, Ministry of Communications,
(Department of Telecommunication), New Delhi.
2. The Chairman-cum-Managing Director,
Bharat Sanchar Nigam Ltd., New Delhi.
3. The Member (Finance), Department of Telecommunications,
Ministry of Communications, Sanchar Bhavan, 20,
Ashoka Road, New Delhi - 110 001.
4. The Chief General Manager, (Telecom),
Bharat Sanchar Nigam Ltd., Kerala Telecom Circle,
Trivandrum. ..... Respondents
[By Advocates - Ms. Deepthi Mary Varghese, ACGSC (R1) - Not
present & Mr. George Kuruvilla (R2&4)]
3. Original Application No. 986 of 2010 -
1. Joseph T, aged 55 years, S/o Thobias Johnson,
Accounts Officer, Bharat Sanchar Nigam Limited (BSNL),
Office of the General Manager (Telecom),
Kollam, Residing at : Sankeerthanam, Mukad,
Kvanad PO, Kollam-691 003.
2. K. Jayalakshmi, aged 51 years, W/o. R.V. Krishnan,
Accounts Officer, Bharat Sanchar Nigam Limited (BSNL),
Office of the General Manager (Telecom), Kollam,
Residing at : Jayalakshmi Bhavan, South Kalari Puraidom,
Kottmukku, Kollam.
3. V.J. Paul, aged 61 years, S/o. V.O. John (late),
Accounts Officer (Retd.), Bharat Sanchar Nigam Limited
(BSNL), Residing at : TC 13/550, House No. K.V.30-A,
Kalavihar, Vanchiyoor P.O., Trivandrum-695 035.
4. Sathi P. Nair, aged 50 years, W/o. D. Purushothaman Nair,
Accounts Officer, Bharat Sanchar Nigam Limited (BSNL),
Office of the Chief General Manager (Telecom),
Kerala Circle, Trivandrum-695 033, Residing at : Apsara,
TC. 522/2296, Kalyanamandapam Lane, Nemom P.O.,
Trivandrum-695 020.
5. Bharathy E, aged 47 years, W/o. Anil Kumar V.K.,
Accounts Officer (Banking Operations), Bharat Sanchar
Nigam Limited (BSNL), Office of the Chief General Manager
(Telecom), Kerala Circle, Trivandrum-695 033, Residing at :
Bhartheeswaram-3, Poornima Lane, Kochar Road, Sasthamanglam,
Trivandrum-695 010.
6. K.S. Kumari Girija, aged 53 years, W/o. D. Vijaya Kumar,
Accounts Officer (TR-3), Bharat Sanchar Nigam Limited (BSNL),
Office of the Chief General Manager (Telecom),
Kerala Circle, Trivandrum-695 033, Residing at : VLRA 26,
Sreemanglam, Valiya veedu Lane, Vattioorkavu, Trivandrum.
7. N. Laila, aged 46 years, W/o. S. Sulaiman,
Accounts Officer (TR), Bharat Sanchar Nigam Limited (BSNL),
Office of the Chief General Manager (Telecom),
Kerala Circle, Trivandrum-695 033, Residing at :
Shalimar, Arasuparambu, Nedumangad,
Trivandrum. ..... Applicants
(By Advocate - Mr. T.C.G. Swamy)
V e r s u s
1. Union of India, represented by the Secretary,
to the Government of India, Ministry of Communications,
(Department of Telecommunication), New Delhi.
2. The Chairman-cum-Managing Director,
Bharat Sanchar Nigam Ltd., New Delhi.
3. The Member (Finance), Department of Telecommunications,
Ministry of Communications, Sanchar Bhavan, 20,
Ashoka Road, New Delhi - 110 001.
4. The Chief General Manager, (Telecom),
Bharat Sanchar Nigam Ltd., Kerala Telecom Circle,
Trivandrum. ..... Respondents
[By Advocates - Mr. George Joseph, ACGSC (R1&3) &
Mr. George Kuruvilla (R2&4)]
These applications having been heard on 01.02.2012, the Tribunal on
16.02.2012 delivered the following:
O R D E R
By Hon'ble Dr. K.B.S. Rajan, Judicial Member-
As the issue involved in these three OAs is one and the same thus have been dealt with together and this common order is passed. For the purpose of reference OA No. 964 of 2010 has been taken as the leading case.
2. Through this application the applicants have sought the following reliefs:-
"(i) Direct the respondents to grant the applicants the benefit of promotion as AAO in scale Rs. 11875-18250 with effect from 1.1.2004 or in the alternative direct the respondents to consider and grant the applicants the benefit of the up-gradation to the scale of pay of Rs. 11875-18250 with effect from 1.1.2004 in terms of A11 promotional policy with all its consequential benefits arising there from;
(ii) Direct the respondents to grant the applicants the benefit of arrears of pay and allowances arising out of the directions in para 8(i) above within a time frame as may be found just and proper by this Hon'ble Tribunal;
(iii) Award costs of and incidental to this application;
(iv) Pass such other orders or directions as deemed fit and necessary in the facts and circumstances of the case."
3. Briefly stated, the applicant qualified in the Junior Accounts Officer examination and were promoted in the said post in May, 2000. Provision exists in the Recruitment Rules of Department of Telecommunications (DOT for short) for promotion to the post of Assistant Accounts Officer on completion of three years of service as JAO subject however to the availability of the vacancies.
4. On 1.10.2000, Bharat Sanchar Nigam Limited (BSNL for short) came into existence, the parent ministry of the same being the DOT. The said BSNL followed all the terms and conditions, norms and guidelines etc. framed by DOT/DOP&T. As early as in 1987 the DOT had upgraded 80% of the cadre strength of JAO as AAO. Thus many posts of AAO on account of non-availability of incumbents had to remain vacant from a particular point of time onwards. Hence, it became necessary for the BSNL to promote the JAOs on adhoc basis even before such JAOs could complete three years of service required for regular promotions as AAO.
5. After the constitution of BSNL options were called for from all the incumbents to the post in BSNL either to switch over to BSNL or to remain in DOT, in October, 2002. It was sometime in May, 2004 that such options were finalized, however with retrospective effect from October, 2002.
6. The Department of Personnel scheduled a model calender for DPC's and related matters vide order dated 13th October, 1998. According to the said calender as intimated, for non-ACC cases, while calculating the eligibility conditions, the requisite years of service in the feeder grade were reckoned from the first day of the panel year. Thus, for the year 2004 those who have completed 3 years of service as on 1.1.2004 would be considered for promotion. In respect of the applicants who had joined as JAO in the year 2000, the said period of three years would be completed as on 1.1.2004 and as such the DPC ought to have considered the case of the applicants for promotion as AAO from 1.4.2004 onwards subject to availability of vacancies. As a matter of fact by 2003 itself, the earlier batch of JAOs were considered and promoted as AAOs and the applicants' batch alone was not so considered.
7. With effect from 12.4.2004 the cadre of AAO was declared as wasting cadre consequent to which, vide Annexure A-10 order dated 12.4.2004 it was decided that no promotion from JAO to AAO on local officiating/adhoc/regular basis was to be given in BSNL. Thus for the applicants, promotion were stalled as by that time and these applicants were not considered for promotion.
8. The post of JAO was carrying a pay scale of Rs. 5500-9000/- while that of AAO it was Rs. 6500-10500/- with effect from 1.1.1996. The pay scale of JAO and AAO underwent the change whereby the JAOs entry pay scale was Rs. 6500-10500/- while AAOs carried with them the pay scale of Rs. 7450-11500/- (effectively from 19.2.2003).
9. Since the BSNL is different from DOT, it followed the IDA pattern whereby the scale in the IDA scale applicable to the applicants was Rs. 9850-14600/- effective from 1st October, 2000.
10. The pay scale under the IDA pattern for AAO is Rs. 11875-18250/-. The claim of the applicant is that the respondents should grant them the benefit of promotion as AAO in the scale of Rs. 11875-18250/- with effect from 1.1.2004 and in the alternative to revise the pay scale of all the applicants in terms of Annexure A-11 promotion policy with all consequential benefits arising there from.
11. The respondents have contested the OA. They have contended that the applicants were promoted as Junior Accounts Officers (JAO) in May 2000 and are eligible to be promoted as Assistant Accounts Officers (AAOs) on the basis of Annexure A-2, the then existed Recruitment Rules, on completion of 3 years of regular service in the said Post. However, by the formation of BSNL on 01-10-2000 separate Recruitment Rules were framed on 31-08-01 and as per the said Rules, there is no post of AAOs in BSNL. In Department of Telecommunication (DOT) out of the total sanctioned strength of JAO posts, 80% were kept in a higher pay scale of Rs 6500 - 200 - 10500 and 20% of the posts were kept in a lower pay scale of Rs 5500 - 175 - 9000. The posts in the lower scale were that of the JAOs and he posts in the higher scale were that of AAOs. Whereas in BSNL, the post of JAO carries a pay of Rs 6500 - 200 - 10500 which is equivalent to the pay scale of AAO in DOT and therefore, AAO cadre was declared as a Wasting Cadre by BSNL in 2004. Since there is no post of AAO in BSNL, the Applicants who are governed by the BSNL Rules are not entitled to be promoted to the post of AAO. The further plea of the applicants that even after the formation of the BSNL, promotions were made from JAOs to AAOs in the year 2001 and 2003 on completion of 3 year service as JAOs, is also of no help to them, as the said promotions were issued by the DOT who was the Cadre Controlling Authority then, as the process of absorption of these officers in BSNL was not completed. Further the JAOs thus promoted as AAOs during the years 2001 and 2003 were also absorbed in BSNL as JAOs only and not as AAOs. Hence, the applicants who have now been granted first up-gradation w.e.f. 01-10-2006 as per Annexure Annexure A-11 Promotion Policy cannot have any grievance at all.
12. The respondents have further stated that as per Annexure A-11 Executive promotional policy, the first up-gradation of IDA scale of individual Executive will be due for consideration on completion of four years of Service in the current IDA scale subject to the condition that the Executive's basic pay in the current IDA scale has crossed/touched the lowest of the higher IDA scale for which his/her up-gradation is to be considered or he has completed six years of service in the current IDA scale whichever is earlier.
13. The applicants have filed the rejoinder in which they have stated that the absorption of persons like the applicants and others who were continuing as JAOs in Group 'B' scale of pay came into actual effect only during the year 2004, though such absorption was given retrospective effect from 01-10-2000. In the meantime, those who were continuing as JAOs were being promoted from time to time as AAOs in the quota meant for them. It is not correct to say that JAO and AAO were granted the same IDA scale of pay with effect from 01-10-2000. In this regard, the applicants have annexed Annexure A-19 OM dated 01-04-2003 issued by the BSNL HQ, revising the scale of pay with effect from 01-01-1996 with the actual benefit from 19-02-2003. In the said Memorandum, JAOs were given the CDA Scale of Pay of Rs 6500 - 10500 while the AAOs were given the CDA scale of Pay of Rs 7450 - 11500. Replacement scale of AAO in the IDA scale was Rs 11875 - 17275 as could be evidenced by letter dated 15- 09-2008, vide Annexure A-20. The IDA pay scale of JAO is only Rs 9850
- 14600. And, up to 2004, there were AAOs continuing in operation, as could be seen from Annexure A-21.
14. The applicants further contended that they are entitled to be granted the same scale of pay with effect from 01-04-04 or at least entitled to be granted the same scale of pay with effect from 01-04-2004 on par with their colleagues and juniors in the rank list working in other Circles of BSNL. The applicants are entitled to be granted the second up-gradation also with effect from 01-04-2009. The applicants further submitted that it is only in Kerala Circle that this kind of injustice has permeated.
15. In their additional reply, the respondents have stated that since the applicants have become regular employees of BSNL with effect from 01- 10-2000, they are governed by Recruitment Rules of BSNL which were notified on 31-08-2001, as per which, there is no post of AAO in BSNL. The scale of JAO in BSNL is identical to the pay scale of AAO in the DOT. BSNL has taken the decision of declaring the post of AAO as a wasting cadre and it is a policy decision of the BSNL. The respondents have also annexed a copy of order dated 14-07-2010 in OA No. 44 of 2009 of the Madras Bench of the Tribunal, in which the claim of the applicants was for quashing of the proceedings No. 4-82/2003 SSEA (Part I) dated 12-04-2004 and for a direction to the respondents to grant regular promotion to the applicants in accordance with the AAO Recruitment Rules, 1991 with effect from 01-04-2004. This OA was dismissed by the Madras Bench.
16. Counsel for the parties argued on the basis of the aforesaid contentions raised in the respective pleadings.
17. Arguments were heard and documents perused. Admittedly, the applicants have become employees of the BSNL w.e.f. 01-10-2000 by an order passed in 2004. As such they are guided only by the Recruitment Rules of the BSNL and not DOT.
18. The Madras Bench has analysed the entire case and held as under:-
"From the submissions made, it is clear that the applicants were all absorbed as employees of BSNL with effect from 01-10-2000 by order dated February/March 2004. Therefore, those Junior Accounts Officers who were promoted as Assistant Audit Officers during the year 2001 and 2003 were to be considered as deputationists only as the orders of absorption were issued during February/March 2004 only. Therefore, the promotion orders were issued by the Department of Telecommunications as per the rules of the Department. The department did not hold the DPC subsequently for considering promotion with effect from 01- 01-2004 as the process of absorption into BSNL was in progress and orders of absorption were also issued during February/March 2004. Since the applicants have become regular employees of BSNL with effect from 1-10-2000, they are governed by the Recruitment Rules of BSNL. It is pertinent to note that the pay scale of Junior Accounts Officer in BSNL is the same as that of Assistant Accounts Officer in the Department. Since the Junior Engineers in BSNL themselves have granted the scale of Assistant Accounts Officer, BSNL has taken the policy decision of declaring that most of the Assistant Accounts Officer as a Wasting Cadre and there is no valid ground to interfere with the policy decision of the BSNL. Since there is no post of Assistant Accounts Officer in the Recruitment Rules of BSNL, there is no scope for giving a direction to the BSNL for considering the applicants for promotion to the post of Assistant Accounts Officer as requested by them.
9. Therefore, the only remaining question to be considered is whether there is any ground for giving a direction to the first and second respondents for promoting the applicants as Assistant Accounts Officer as per the Recruitment Rules of the Telecommunication Department. But the applicants have already been absorbed as BSNL employees with effect from 1- 10-2000 and the orders of absorption were also issued during February/March 2004. Therefore, the first and second respondents cannot now conduct a DPC for considering promotion with effect from 01-04-2004. As a result, we find that the applicants have not made out any valid ground for issuing a direction as sought by them in this T.A. Hence, the T.A is accordingly dismissed."
19. We respectfully agree with the decision of the Madras Bench and hold that the applicants cannot be considered for promotion as AAO under the Rules prevailing in DOT.
20. As to the alternative prayer, i.e. to direct the respondents to consider and grant the applicants the benefit of the up-gradation to the scale of pay of Rs. 11875-18250 with effect from 1.1.2004 in terms of A11 promotional policy with all its consequential benefits arising there from not much of discussion is required as the claim of the applicants is not based on any of their existing rights but they want to create a new right. None of their vested rights have been violated which could be rectified by granting the relief they claim in the alternative prayer. Again, revision of pay scale or up-gradation of pay scale is not within the jurisdiction of the Tribunal as held by the Apex Court in a catena of cases. To cite an example, in the case of Food Corpn. of India v. Ashish Kumar Ganguly,(2009) 7 SCC 734, the Apex Court has held as under:-
21. There is no dispute nor can there be any to the principle as settled in the above cited decisions of this Court that fixation of pay and determination of parity in duties is the function of the executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well settled that the courts should interfere with the administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors. (See K.T. Veerappa v. State of Karnataka)"
21. Thus, keeping in view the above decisions and the facts of the case, it is evident that no case has been made out by the applicants to justify their claim.
22. The only point that may merit consideration is that applicants have claimed that they are entitled to be granted the same scale of pay with effect from 01-04-2004 on par with their colleagues and juniors in the rank list working in other Circles of BSNL and the applicants are entitled to be granted the 2nd up-gradation also with effect from 01-04-2009. Para 13 of the rejoinder refers. This specific contention has not been addressed by the respondents in their reply. All that they have stated is as extracted in para 15 above. Of course, no material has been placed by the applicants to substantiate their contentions. Normally, promotion chances vary from Circle to Circle due to certain variable factors occurring in different circles which need not be uniform in all the Circles. But, the policy or the rules adopted should be identical. This aspect has not been duly analysed by the respondents or at least has not been highlighted in their additional reply.
Respondents may verify this aspect and inform the applicants of their decision. Otherwise, no case has been made out by the applicants in these O.As.
23. With the above observation, the OAs, being devoid of merits, are hereby dismissed. No costs.
(K. NOORJEHAN) (DR. K.B.S. RAJAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER "SA"