Central Administrative Tribunal - Ernakulam
Mr.S.V Mohandas vs The Controller Of Communication ... on 19 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.999 of 2010
Friday, this the 19th day of August, 2011
CORAM:
Hon'ble Dr. K.B.S Rajan, Judicial Member
Mr.S.V Mohandas
Retired Assistant General Manager, BSNL
Residing at T.C 9/691-I 'Sreesankaram'
Madankovil Lane, Vellayambalam
Sasthamangalam P.O
Thiruvananthapuram- 695 010 ...... Applicant
(By Advocate - Mr.Vishnu S Chempazhanthiyil)
V e r s u s
1. The controller of Communication Accounts
Kerala Circle, Thiruvananthapuram - 695 033
2. Union of India, represented by the Secretary
Department of Telecommunications
Sanchar Bhavan, New Delhi
3. The Chief General Manager
Office of the CGMT, BSNL
Thiruvananthapuram - 695 033 ........ Respondents
(By advocate - Mr.Sunil Jacob Jose, SCGSC for R1&2 &
Mr.N Nagaresh for R3)
This Original Application having been heard on 11.08.2011, the
Tribunal on 19-08-2011 delivered the following :
O R D E R
By Hon'ble Dr.K.B.S Rajan, Judicial Member -
1. The applicant was initially recruited in the department of Telecommunication and on the corporatisation of a part of DOT into BSNL, he was given an option to switch over to BSNL and he became a permanent employee of BSNL. After entering 38 years plus of service, the applicant retired from the service of BSNL on 31.01.2009. On his retirement he was governed by Rule 37(A) of the CCS (Pension) Rules. At the time of his retirement, the applicant was placed in the pay scale of Rs.14500-18500 with a basic pay as Rs.18350/-. In the revised pay, his basic pay was fixed at Rs.41,640/-. Accordingly, he was accorded pension at the monthly rate of Rs.28,820/-.
2. Sometime, in 2000, on the application of the applicant there was a stepping up of his pay at par with his junior Mr.Ramrupe (Annexure A-1 refers). At that time, the applicant was functioning as SDE whose feeder post is JTO. The post of JTO was governed by certain seniority while SDEs under All India seniority. Sometime in May 2009, the office of the Controller of Communication Accounts informed the applicant that since earlier seniority list of JTO's was on certain basis and the applicant belonging to a circle different from one to which Shri Ramrupe belongs, the case was referred to DOT Headquarters for clarification and case of the applicant was rejected in respect of his stepping up of pay. The BSNL gave the details of the applicant as well as his juniors to the Controller of Communication Accounts vide letter dated 11.02.2009 itself. Again in April 2009, the BSNL informed the Controller of Communication Accounts that there is no annomally in considering the stepping up of pay in the grade of SDE under the CCS Revised Pay Rules with reference to such Annexure A-1 seniority list in the grade of JTO's. The Controller was further informed that in other circles also, in similar cases, stepping up of pay was accordingly allowed.
3. Despite the above, Communication Accounts Officer (Pension) has informed that the applicant is not entitled to stepping up of pay at par with his junior Shri. Ramrupe. This decision was taken on the basis of the clarification received from the DOT Headquarters that JTO cadre was a circle prior to corporatisation of BSNL (Annexure A-8 (impugned) order refers) . Hence this Original Application.
4. M.A 917/2010 has been filed for condonation of delay involved in filing this Original Application. There is a delay of 141 days in filing the Original Application and the applicant has spelt out the reasons for the delay. The reasons being justified, the delay is condoned. It is also pertinent to mention here that the cause of action is reckoning in this case and as such the decision of the Apex Court in the case of Union of India versus Mr.M.R Gupta, applies.
5. Respondents have contested the O.A. According to R3 as the Headquarters obtained clarification that JTO cadre is a circle cadre, the stepping up of pay granted for the applicant in 2000 was not in order. Thus the first respondent finalised the pension and other pensionary benefits after ignoring the benefits on account of the stepping up of pay.
6. R 1 & R2 filed a seperate reply statement. Vide para 8 of their counter the said respondents have stated as under:-
" 8. As regards para 9, 10, 11, 12, 13, 14 & 15 it is submitted that the order issued by BSNL was not in accordance with the instructions issued by DG P&T regarding stepping up of pay and the BSNL erred in confirming the stepping up pay disregarding the instruction issued by Govt of India. Stepping up of pay of the applicant with reference to the pay of one Shri Ramrupe a SDE of MTNL who does not belong to the Kerala cadre is highly irregular. DG P&T clarified that in the case of SDE the seniority list was maintained on All India basis while the lower post, viz, JTO cadre it is circle wise. As such, the stepping up of pay of a SDE can only be considered with reference to juniors of the same circle. The action of CGMT to step up the pay with reference to the pay of a junior in the All India seniority list of JTO cadre, which in turn, was prepared only for the limited purpose of the promotion, is also irregular. This irregular stepping up was also brought to the notice of the CGMT and DOT(HQ) for clarification. DOT clarified that JTO is a circle level cadre and not an All India cadre as claimed by CGMT. Based on this clarification the confirmation of stepping up of pay of a SDE cadre with reference to the pay of an officer of other circle is highly irregular. This also brought to the notice of the CGMT in Jul 2009. "
7. By Annexure R-1, it has been stated that case of stepping up of pay should be considered with reference to the juniors of the same circle.
8. Counsel for the applicant argued that the following leads to serious legal flaws in the impugned order.
(a ) When stepping up of pay was granted in 2000. the same can not be modified as late as in 2009 as, in accordance with the provisions of Rule 59(1)(a) of CCS Pension Rules, modification can take place only with respect to the period of 2 years anterior to the date of retirement.
(b) The authority competent to effect any such modification cannot be the Controller of Communication Accounts, but only the BSNL. The BSNL however, does not disapprove the stepping up of pay.
9. Counsel for the R3 argued on the same lines as contained in the counter while counsel for BSNL did support the case of the applicant.
10. Arguments were heard and documents perused. Rejoinder was filed after the O.A was reserved for orders. Hence the same is not considered.
11. The basis for stepping up of pay was that promotion of the applicant from JTO to SDE took place in 1994 while that of his junior Shri Ramrupe in 1998 only. In between the 5th pay Commission recommendations came into force with effect from 01.01.1996. As regards stepping up of pay, the Revised Pay Rules 1997 inter-alia provide as under:-
" Note 9. In cases where a senior Government servant promoted to a higher post before the 1st day of January, 1996, draws less pay in the revised scale than his junior who is promoted to the higher post on or after the 1st day of January, 1996, the pay of the senior Government servant should be stepped up to an amount equal to the pay as fixed for his junior in that higher post. The stepping up should be done with effect from the date of promotion of the junior Government servant subject to the fulfilment of the following conditions, namely:-
(a) both the junior and the senior Government servants should belong to the same cadre and the posts in which they have been promoted should be identical in the same cadre.
(b) the pre-revised and revised scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical.
(c) the senior Government servants at the time of promotion have been drawing equal or more pay than the junior
(d) the anomaly should be directly as a result of the application of the provisions of Fundamental Rule 22 or any other rule or order regulating pay fixation on such promotion in the revised scale. If even in the lower post, the junior officer was drawing more pay in the pre-revised scale than the senior by virtue of any advance increments granted to him, provisions of this Note need not be invoked to step up the pay of the senior officer. "
12. Government of India orders (18) under FR 22 provides for the contingencies/conditions for grant of stepping up of pay and the same are as under:-
"18. (a) Both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre;
(b) The scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical;
(c) The anomaly should be directly as a
result of the application of FR 22-C. For
example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer.
The orders refixing the pay of the senior officers in accordance with the above provisions shall be issued under FR 27. The next increment of the senior officer will be drawn on completion of the requisite qualifying service with effect from the date of refixation of pay.
13. The question for consideration is whether the applicant's claim should be dismissed on the sole ground that the seniority of the feeder post at the time of his promotion was of circle basis. In the instant case, need to step up of the pay of the applicant arose more on account of the situation which arose on the implementation of revised Pay Rules 1997 and there is no stipulation therein that the seniority should be with reference to the same circle. When the date of promotion of the applicant is in 1994 and that of his junior is in 1998, that the applicant is senior is apparent and the applicant's claim for stepping up of pay is not with reference to his position as SDE which has A-! seniority. As such, the respondents have fall into grave error in assuming that the applicant is not eligible for stepping up of pay and as such the benefit of stepping up of pay granted to him in 2000 should be withdrawn. Apart from the above, as per Rule 59(1)(iii) of the CCS Pension Rules a time limit has been stipulated for verification of pay particulars and this being a statutory provision the same should be adhered to. The said Rule is as under:-
Rule 59 - Authorisation of pension and gratuity (1) The Head of Office shall divide the period of preparatory work of two years referred to in Rule 58 in the following three stages:-
(a) XXXXXXXXXXXXX
(b) Second stage - Making good omission in the
Service Book:-
(i) xxxxxxxxxx
(ii) xxxxxxxxxx
(iii) Calculation of average emoluments.-
For the purpose of calculation of average
emoluments, the Head of Office shall verify from the Service Book the correctness of the emoluments drawn or to be drawn during the last ten months of service. In order to ensure that the emoluments during the last ten months of service, have been correctly shown in the Service Book, the Head of Office may verify the correctness of emoluments for the period of twenty four months only preceding the date of retirement of a Government servant, and not for any period prior to that date. "
14. From the above point of view also rectification of the so called assumed mistake is impermissible.
15. The counsel for the applicant has referred to a decision in O.A 05/2009 of this Tribunal in support of his case.
16. Taking into account all the above facts, it is clear that the applicant has made out a cast iron case in his favour. The reason given by the respondents for withdrawing the benefit of stepping up is untenable, illegal and unsustainable. If the contention of the respondents is allowed, it would go diagnally opposite to the very principle of grant of stepping up of pay and as also the statutory provisions prescribing certain limitation for rectification of service book.
17. In view of the above, the original application is allowed. The impugned order at Annexure A-8 is quashed and set aside. It is declared that the applicant's pension shall be based on the pay last drawn by him without any truncation. Necessary orders shall be passed by the respondents without any reduction on the ground of withdrawal of the stepping up benefit granted.
(Dated this the 19th day of August 2011) (Dr.K.B.S Rajan) Judicial Member sv