Central Administrative Tribunal - Ernakulam
P.S.Hassan vs Bharath Sanchar Nigam Limited on 17 June, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/01056/2014
Friday, this the 17th day of June, 2016
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
1. P.S.Hassan,
S/o.Syed Muhammed,
Telecom Mechanic,
H.R.No.198114860, BSNL,
SDE External, Thodupuzha.
Residing at Puthenveettil House,
Edavetty P.O., Thodupuzha - 685 584.
2. Harindranathan.N.,
S/o.Narayanan Nair,
Telecom Mechanic,
H.R.No.198114859, BSNL,
SDE External, Thodupuzha.
Residing at Rahul Nivas,
Kallaparambil House, Olamattom,
Thodupuzha P.O. - 685 584. . . . . . Applicants
(By Advocate Mr.C.A.Joy)
Versus
1. Bharath Sanchar Nigam Limited,
represented 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 Advocate Mr.George Joseph)
This application having been heard on 8th June 2016, the Tribunal on
17th June 2016 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER The applicants are aggrieved by the improper pay fixation and non extension of the pay fixation benefits under the Non Executive Promotion Policy (NEPP) Scheme and consequent anomaly of juniors drawing higher pay than the applicants. The applicants are entitled, on completion of 4 and 7 years of service, for the first upgradation of pay in the year 2004 and second upgradation of pay in the year 2011. Based on Annexure A-4 the BCR fixation given to the applicants on 25.7.2007 and 1.8.2007 is to be withdrawn and applicants have to be given the 1 st upgradation on 1.10.2004 on completion of 4 years of service and the 2 nd upgradation in the year 2011. The above stated method was adopted while fixing the pay of a colleague of the applicants, Shri.Rajasekharan K.T., H.R.No.198114831. The pay of the applicants as on October 2014 is Rs.19910/- in the pay scale Rs.12520- 23440/-. Whereas Rajasekharan.K.T., is drawing the basic pay of Rs.21430/- in the month of January 2014 in the pay scale Rs.13600-25420/-. It is submitted that from 2004 onwards the applicants' pay is less than the pay of their colleagues, namely, Rajasekharan.K.T and Jose.P.K. Therefore the applicants are entitled for stepping up of their pay at par with their colleagues and entitled for a pay of Rs.21430/- in the month of October 2014 instead of the present pay of Rs.19910/-. It is stipulated in the policy that if an option is not exercised to continue in the existing time bound promotion scheme, it would be construed as if the concerned non-executive has opted for the non-executive promotion policy and accordingly he/she will be governed by the provisions of the non-executive promotion policy. It is submitted that as per Annexure A-4 scheme, all the concessions given by the BSNL to non-executives in relation to OTBP/BCR/Grade IV/ACP etc. after 1.10.2000 stands withdrawn with immediate effect. Accordingly the BCR fixation given in the year 2007 is liable to be withdrawn and 1 st upgradation has to be given in the year 2004 and 2 nd upgradation in the year 2011 under the NEPP Scheme. In the case of the colleagues of the applicants, namely, Rajasekharan.K.T and Jose P.K as well as the junior of the applicant, Balachandran Pillai, Madhusoodanan Nair.P.R the respondents treated the BCR fixation given to the said employees as forgone by the said employees and were given 1 st and 2nd upgradations as contemplated under Annexure A-4 Scheme. Relief sought by the applicants is to declare that they are entitled for refixation of their pay under NEPP Scheme and grant them stepping up of pay to the pay of their colleagues, namely, Rajasekharan.K.T or Jose.P.K or to that of their juniors Balachandran Pillai, Madhusoodanan Nair.P.R and issue an order directing the respondents to disburse the arrears of salary and other benefits within a time limit fixed.
2. In the rejoinder the applicants argue that Annexure A-4 Scheme specifically contemplates that on coming into force of the above scheme any post based promotion on or after 1.10.2000 and before 1.10.2004 alone can be treated as 1st upgradation (Clause 6.5). Identically all the concessions given by the BSNL to non-executives in relation to OTBP/BCR/Grade IV/ACP etc. after 1.10.2000 stands withdrawn with immediate effect (Clause 5.2). Therefore BCR fixation given to the applicants in the year 2007 cannot be considered as any post based promotion and the respondents ought to have adopted the beneficial fixation to the applicants permitting them to forgo the BCR fixation given in the year 2007. Instead the respondents adopted the BCR fixation given to the applicants in the year 2007 as 1 st upgradation as per the NEPP Scheme. Applicants also argue that they never come across an opportunity to submit revised option.
3. Respondents in their reply statement submit that 1 st applicant was appointed as Line Man on 25.7.1981 and got the promotions of Telecom Mechanic, OTBP & BCR on 28.4.1997, 1.12.1998 and 25.7.2007 respectively. 2nd applicant was appointed as Line Man on 1.8.1981 and got the promotions of Telecom Mechanic, OTBP & BCR on 3.3.1997, 1.12.1998 & 1.8.2007 respectively. Jose P.K was appointed on 20.4.1983, and got the promotions of Telecom Mechanic on 5.7.1997, OTBP on 20.4.1999 & BCR on 20.4.2009. Rajasekharan.K.T was appointed on 29.10.1981, and got the promotions of Telecom Mechanic on 12.5.1997, OTBP on 1.12.1998 & BCR on 28.11.2007. Based upon the Non-Executive Promotion Policy a non-executive recruited by DOT prior to 1.10.2000 will be considered for two upgradations on completion of 4 years of service in the IDA pay scale from 1.10.2000 and 7 years service after the 1 st upgradation, if he has not availed any promotion after 1.10.2000. Upgradation in pay scale availed by a non-executive employee on the basis of existing OTBP/BCR/Grade-IV/ACP Scheme etc. or by way of conversion/restructuring/payscale upgradation etc. after 1.10.2000 and before notification of the policy will be treated as the 1 st upgradation under the policy if so opted for. The employee may however opt for 1 st upgradation as per this policy by forgoing the promotion already availed under the erstwhile OTBP/BCR/Grade-IV/ACP schemes or by way of conversion/restructuring/pay scale upgradation. In the case of an official who got a post based promotion on or before 1.10.2004, other promotions received afterwards will be withdrawn and 2 nd NEPP will be after 7 years. Jose P.K and Rajasekharan K.T had submitted the option, unlike the applicants, to forgo the BCR promotions on 20.4.2009 and 28.11.2007 respectively. Hence they got two upgradations NE-8 (Rs.12520-23440) on 1.10.2004 and NE-9 (Rs.13600-25420) on 1.10.2011. Applicants submitted an option on 18.10.2010 to treat the BCR promotion received on 25.7.2007 and 1.8.2007 respectively as their first financial upgradation under NEPP. Their second promotion under NEPP would be after 7 years and is under process. Madhusoodanan Nair.P.R also opted to forgo the BCR promotion received on 27.10.2009 and hence two upgradations on 1.10.2004 and 1.10.2011 whereas Balachandran Pillai had opted to treat the OTBP promotion received on 11.2.2006 as his 1 st upgradation (Rs.10900- 20400). The anomaly in pay fixation of applicants are, therefore, due to the option exercised to treat BCR promotion as the first upgradation under NEPP. A letter from Corporate Office No.13-2/2010-TE dated 28.9.2011 had been circulated instructing to give a second chance to all the officials who want to change their initial options under NEPP within 30 days from the date of issuance of the Corporate Office letter vide AGM (Admn.) letter No.ST-1/EK-377/2011/Vol-II/8 dated 1.10.2011. Despite two opportunities afforded, no option were submitted by the applicants. Both the applicants submitted Annexure A-10 and Annexure A-11 representations for cancellation of BCR and option of NEPP in 2004 and 2011 on 20.7.2012, much after the respondents offer of second chance to exercise option. They, therefore, failed to utilize the second option offered by the respondents.
4. Respondents have produced Annexure R-2 clarification issued by the BSNL which states as follows :
' In this regard, kind attention is invited to para 5.1 of this office letter No.27-7/2008-TE-II dated 23.3.2010, which provides for the exercise of option under the NEPP Scheme. The said para, inter-alia, states that '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. This provision remains unchanged vide para 3 of this office letter No.27-7/2008-TE-II (upgradation) dated 11.9.2012 vide which new NE-12 IDA scale of Rs.16390-33830/- has been introduced with effect from 22.2.2012. It, therefore, follows that if option is not exercised within the stipulated time period, it has to be construed as if the concerned non-executive has opted for NE-12 IDA pay scale introduced vide this office letter dated 11.9.2012, quoted above.'
5. Thus the applicants could have come under NEPP Scheme had they not exercised the option to remain in the erstwhile OTBP Scheme. However, the applicants had submitted an option on 18.10.2010 to treat their BCR promotions on 25.7.2007 (1st applicant) and 1.8.2007 (2nd applicant) as their first financial upgradation under NEPP, without realising that the two upgradations on completion of 4 years of service and 7 years of service may have been more beneficial. Having committed the error of judgment in exercising the more beneficial option, the applicants are before us for stepping up their pay with that of their juniors Balachandran Pillai and Madhusoodanan Nair P.R. The applicants draw our attention to para 5 of the implementation order of NEPP dated 23.3.2010 wherein the withdrawal of concession to Non-Executives in relation to OTBP after 1.10.2000 stands withdrawn with immediate effect. The para is reproduced below :
5. Option to continue in erstwhile time bound promotion schemes :
5.1 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. 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 The promotion of such person who opts to continue in his/her erstwhile time bound promotion scheme viz. OTBP/BCR/Grade-IV/ACP etc. will be governed by the provisions of such schemes as existed on 1.10.2000 ie. the date on which BSNL was formed, unless any change is specifically ordered or agreed to by the BSNL Management after issue of this policy. All the concessions given by BSNL to Non-Executives in relation to OTBP/BCR/Grade-IV/ACP etc. after 1.10.2000 stands withdrawn with immediate effect. However, the cases settled prior to the issue of this order, need not be reopened unless the employee himself opts for this Non-Executive Promotion Policy.
(emphasis provided)
6. The para 5.1 clearly states, that if option is not exercised within stipulated time period, it would be construed that official has opted for NEPP and will be governed by the provisions of NEPP. Applicant has exercised the option and hence this provision is not applicable. A second opportunity to exercise option was provided, to opt out of the purview of this scheme, and continue in the erstwhile OTBP Scheme. An option form was also annexed. Applicants did not avail this opportunity also. The applicants had exercised option vide option form dated 18.10.2010 for BCR and, therefore, their consideration for NEPP was closed. However, the statement in para 5.2 of respondent O.M that all concessions given by BSNL to Non-Executives in relation to OTBP/BCR/Grade-IV/ACP etc. after 1.10.2000 stands withdrawn with immediate effect, is confusing as the applicants received BCR on 25.7.2007 and 1.8.2007 and hence if it stood withdrawn then the BCR benefits should have been replaced with some other benefit, namely NEPP in the 4 th year. Further if the benefit was withdrawn why was an option form for option for BCR annexed as indicated in para 5.1 above. The respondents appear to be confused about the benefit proposed to be extended to its employees or failed to word their proposal properly. Applicants would like to draw the benefit of the statement in para 5.2 above that all concessions given by BSNL to Non- Executives in relation to OTBP/BCR/Grade IV/ACP etc. after 1.10.2000 stands withdrawn with immediate effect and hence argue that they are eligible for the benefits under NEPP Scheme. As per this statement the BCR benefit given to applicants on 25.7.2007 and 1.8.2007 stood withdrawn despite their exercising an option for BCR. If BCR benefits stood withdrawn applicants become eligible for NEPP financial upgradation on completion of 4 and 11 years. Hence the prayer of the applicants to fix their pay under NEPP Scheme is allowed. However, arrears will be restricted to three years prior to the date of filing of this O.A as laid down by Hon'ble Supreme Court in Union of India & Ors. vs. Tarsem Singh (2008) 2 SCC (L&S) 765). No order as to costs.
(Dated this the 17th day of June 2016)
(P. GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp