Central Administrative Tribunal - Lucknow
Abdul Islam Siddiqui Died Substituted ... vs Union Of India on 8 February, 2023
CAT LKO BENCH OA No. 539-2015- Mehrunnisha v. UoI & Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH
Original Application No. 332/00539/2015
Order reserved on : 04.01.2023
Order pronounced on : 08.02.2023
CORAM
HON'BLE MR. JUSTICE ANIL KUMAR OJHA, MEMBER (J)
HON'BLE MR. DEVENDRA CHAUDHRY, MEMBER (A),
Abdul Islam Siddiqui (Dead) substituted by
1. Smt. Mehrunnisha wife of Late Abdul Islam Siddqui.
2. Abdul Muqeem
3. Abdul Aleem
4. Abdul Muzeeb
5. Abdul Haleem
6. Gufran Siddiqui sons of Late Adbul Islam Siddiqui
All Residents of Village- Akohari, Post Office-Bakshi Ka Talab,
District- Lucknow.
..Applicants
By Advocate: Mohd. Shameem Khan
VERSUS
1. Union of India through, tis Secretary Minsitry of
Telecommunication Govt. of India 'Sanchar Bhawan' New Delhi.
2. The Director General Department of Telecommunication
Government of India, 'Sanchar Bhawan' New Delhi.
3. The Chief General Manager, Telecom U.P. East Circle Department
of Telecommunication, Govt of India, Lucknow.
4. The Dy. General Manager (R), in the office of Chief General
Manager U.P. Estate Telecom Circle Bharat Sanchar Nigam
Limited, Lucknow.
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CAT LKO BENCH OA No. 539-2015- Mehrunnisha v. UoI & Ors.
5. The Principal General Manager, Telecom District, Lucknow
Gandhi Bhawan, Lucknow.
..Respondents
By Advocate: Shri Moti Chand Yadav, Shri G. S. Sikarwar
ORDER
Per Hon'ble Mr. Devendra Chaudhry, Member (A) The present Original Application (OA) has been filed seeking quashing of the order dated 10.07.2015 passed by Respondent No. 3 as also order dated 20.11.2002 passed by respondent no. 2 (Annexures-1 and 2 respectively). It is further prayed that direction be given to respondent-3 and respondent-4 to pay arrears of salary and pension arising out of the promotion order dated 02.12.1998.
2. Facts in brief are that the applicant Abdul Islam Siddiqui who is now dead and substituted by his successors, retired from service on 31.12.2001 from the post of Senior TAO (P) in the Department of Telecommunication, Government of India.
During service he was promoted by the competent authority under a Biennial Cadre Review (BCR) Scheme from the post of Grade-III to Grade-IV as in the case of several other similarly placed persons. However, later this promotion was cancelled alongwith several other similarly placed persons. Aggrieved by the orders, five OAs were filed in the CAT, Lucknow Bench of which in one numbered as 381/1999- R P Singh and Anr. vs. UoI & Ors. in which applicant Shri Siddiqui was also arrayed as Page 2 of 17 CAT LKO BENCH OA No. 539-2015- Mehrunnisha v. UoI & Ors.
applicant in the said OA. In a common judgment for all the three O.As, the CAT, Lucknow Bench vide its order dated 15.01.2001 (Annexure -4) quashed the concerned orders in light of the view held in an earlier order dated 17/8/200 by CAT Allahabad Bench in O.A No. 1005/1999 and directed rehearing.
2.1 In pursuance of same, the respondents issued show cause dated 21.03.2001 to which the applicant replied vide 30.05.2001. However, after reply, the respondents vide order dated 20.11.2002 again cancelled the promotion order dated 17.11.1998 stated in the order of 20/11/2002. Same was the fate of several other equally placed employees who were part of five OAs filed in the CAT, Lucknow Bench. A number of applicants in similar orders challenged the same by way of Writ Petition No. 48717(SS) of 2002 - Magghu Prasad Tiwari and other vs. UoI & others, W.P. No. 18265(SS) of 2003- Sheo Ram Upadhyay & others v. UoI & others in the Hon'ble Allahabad High Court which vide its order dated 22.08.2005 allowed the same and quashed the orders passed against the applicants therein by respondent no. 4 (Annexure-6). The Special Appeal No. 1195 of 2005 in the Division Bench of Allahabad High Court filed by the respondents was dismissed vide order dated 10.10.2006 (Annexure-7). The respondents challenged this Division Bench order of Hon High Court passed in Special Appeal through a Civil Appeal No. 7946 of 2013 (arising out of SLP (C) No. 4511 of 2007) BSNL vs. Magghu Prasad Tiwari Page 3 of 17 CAT LKO BENCH OA No. 539-2015- Mehrunnisha v. UoI & Ors.
(Dead) which also dismissed the vide Hon Apex court order dated 10.09.2013 confirming the order passed by the Hon'ble High Court (Annexure- 8). Later, when similarly situated persons also filed writ petition before the Hon'ble High Court No. 6953(S/S) of 2002 and writ petition no. 335 (S/S) of 2003, the Hon'ble High Court vide order dated 10.03.2014 allowed the same and quashed the impugned orders in pursuance of the order dated 10/9/2013 [supra] of the Hon'ble Apex Court in CA No. 7946 of 2013 (Annexure-9). The respondent nos. 4 resultantly thereupon passed orders in compliance thereof, to pay the amounts withheld from the Gratuity / DCRG claimed in the Writ petitions as arrears vide their order dated 06.08.2014 (Annexure-10).
2.2 Soon after, the wife of the applicant submitted application dated 07.11.2014 [Annexure -11], (as the applicant himself was under paralytic attack), pleading for grant of arrears as had been done to the other similarly placed persons. Reminder was also made on 26.11.2014 (Annexure-12). However, as no payments were given and as by then the Department of Telecommunication had transformed into BSNL, the applicant filed Writ Petition No. 6083(S/S) of 2015 in which the Hon'ble High Court directed the matter to taken up by the Central Administrative Tribunal vide its order dated 15.10.2015 which is how the applicant is now before this Tribunal on the issue challenging the order dated 10/7/2015 [impugned order Page 4 of 17 CAT LKO BENCH OA No. 539-2015- Mehrunnisha v. UoI & Ors.
Annexure-1] passed by the respondents in the meanwhile on her representation for grant of payments. It is the submission now, that the respondents should be directed to grant the same benefit as made available to similarly placed persons per directions of the Hon' Supreme Court/Hon High Court and not deny the same on the ground that the applicant is not party in the said orders of the Hon Apex court /Hon High Court specifically.
3. The respondents have denied any illegality in the order and submitted that the applicant was not a party in the order passed by the Hon'ble High Court and the Hon'ble Supreme Court cited therein and therefore the respondents cannot grant the benefits claimed. Thus the OA hence lacks merits and is worthy of being dismissed.
4. Heard learned counsels for the parties at length and perused the records and all the pleadings filed carefully.
5. The key issue is the grant of the same benefit to the applicant in the context of the orders of the Hon High Court and the Hon Apex court in similar matters and the subsequent grant of benefit to such similarly placed persons by way of compliance of the orders of the Courts.
6. The issue is thus in a short compass requiring the examination of the impugned orders in the context of the orders passed by the Hon Apex court / Hon High Court. Therefore, in Page 5 of 17 CAT LKO BENCH OA No. 539-2015- Mehrunnisha v. UoI & Ors.
order to decide the rival contentions, it would be well to examine firstly the order dated 20.11.2002 of cancellation of promotion granted vide date 17.11.1998 [Annexure-2] and then the order Annexure-1 dated 10.07.2015, passed in the latest representation followed by the order of Hon Apex court in similar matters. Relevant portions of the same are extracted below: -
Annexure-2: Order dated 20/11/2002:
BHARAT SANCHAR NIGAM LIMITED (A GOVT. OF INDIA ENTERPRISE) OFFICE OF THE CHIEF GENERAL MANAGER, U.P.(EAST) TELECOM CIRCLE, LUCKNOW-226001.
Sh. A. J. Siddiqni Vill Akohari Po. Bakshi-ka-Talab Retired Sr.Supr.(Phones) (Through PGMTD/GMTOTTOM Lucknow) Lucknow.
No Staff / DPC Cell/BCR 10%/TO/95-96 dated at Lucknow the :20.11.2002.
SUB-Issue of Show Cause Notice In Compliance with the judgement and order dated 17.08.2000 of Hon'ble CAT Allahabad in O.A. No. 1005 of 1999 & other Connected O.As.
Ref: Your reply dated 30-5-2001 in response to the Show Cause Notice of even No. Dated: 21-3-2001.
The Department of Telecom, New Delhi through it's letter dated 16-10-90 had introduced a promotional scheme known as Biennial Cadre Review Scheme and according to the said scheme the officials having twenty six years of regular service in the cadre are promoted in Grade-Ill in the pay scale of Rs-1600-2660 revised to Rs. 5000---8000. In the said scheme, it was also provided that the 10% officials of Grade - Ill would be promoted to Grade - IV in the pay scale of Rs. 2000-3200 revised to Rs.6500-10,500. Accordingly the office of the erstwhile CGMT, U.P. Circle, Lucknow had promoted a number of officials in gr.-IV (10%) of BCR Scheme on the basis of inter-se-seniority of Gr.-III.
2. The Department of Telecom, New Delhi through it's circular dated Page 6 of 17 CAT LKO BENCH OA No. 539-2015- Mehrunnisha v. UoI & Ors.
16-10-90 had restructured the cadres existing in the Department and had introduced senior Telecom Office Assistants (Phones)/ (General)/(Telegraphy) cadres.
3. The Department of Telecom, New Delhi through it's circular Letter No. 27-4/87-TE-11(Pt) dated 22-10-93 had restrained those officials for their promotion to Grade - IV under BCR who had opted for the restructured cadre.
4. Subsequently the Department of Telecom, New Delhi through it's letter no. 27-4/87-TE-11 (PI) dated 16-06-97, lifted the ban which was imposed through circular dated 22-10-93 and had directed to grant promotion in Gr.-IV under BCR to those officials also who had opted the restructured cadre. The benefit of promotion to GR.-IV to the officials working in the restructured cadres would also be given from the date from which it was given to their juniors in the old cadre as per their seniority in the basic grade of the old cadre i.e. to the extent of 10%.
5. The Department of Telecom, New Delhi through it's Letter No. 27-4/87-TE-II(PI) dated 02-09-98, had directed for creation of supernumerary posts to accommodate the officials in Grade-IV under BCR who are promoted to Gr.-IV in pursuance of circular dated 16-06-97.
6. It is pertinent to mention here that after introduction of BCR scheme and its implementation in respect of grant of promotion to the officials in Grade - IV under BCR on the basis of their...
...............
(xii). Adequate opportunity of presenting your case was given to you but through your representation you have not been able to give any valid or logical ground which may justify the maintainability of the erroneous promotion order dated 17-11-98 (issued due to misinterpretation), as per rules and instructions on the subject.
(xiii) In view of the reasons and grounds mentioned in the preceding paras the undersigned holds that the promotion order of even No. dated 17-11-98 does not deserve to be maintained as it is not in conformity with the spirit of the rules and instructions as quoted above.
ORDER The undersigned is, therefore, left with no option but to hereby cancel your promotion orders to Gr. - IV under 10% BCR as issued vide this office order of oven No. dated 17-11-98. Consequent upon cancellation of the said promotion order the promotional benefits Page 7 of 17 CAT LKO BENCH OA No. 539-2015- Mehrunnisha v. UoI & Ors.
including the arrears of enhanced pay and allowances paid to you will be completely withdrawn. Since you have already retired from service the action in your case will be taken in accordance with Para-3 of the Show-cause Notice issued on the subject.
Please acknowledge the receipt of this letter.
Sd/-
(M. Pant) Dy. G.M.(Admn) Annexure-1: order dated 10/7/2015:
भारत संचार निगम निनमटे ड (भारत सरकार का उद्यम) प्रेषक मुख्य महाप्रबन्धक दू रसंचार उ०प्र० (पूर्व) पररमण्डि हजरतगं ज िखिऊ सेर्ा में श्रीमती मेहरूि निशा पत्नी श्री अब्दु ि इस्लाम नसद्दीकी सेर्ानिर्ृत्त सीनियर टी०ओ०ए०(पी) ग्राम- अकोहरी, पत्रािय बक्शी का तािाब जिपद िखिऊ-22620 क्रम संख्या/ स्टाम/ डी०पी० सेि / नर्निक / 2014 िखिऊ नदिांक 10.07.2015 नर्षय- श्री अब्दु ि इस्लाम नसद्दीकी सेर्ानिर्ृ त्त सीनियर टी०ओ०ए० (पी) कायाव िय प्रिाि महा प्रबन्धक दू र संचार नजिा िखिऊ के बकाया पदोन्ननत र्े तिमाि एर्ं अन्य सेर्ानिर्ृ नत्त िाभा के भुगताि के संबंि में।
संदभव- आपका प्रार्विा-पत्र नदिांक 07.11.2014 एर्ं अिुस्मारक नदिां क - 26.11.14 आपके उपयुव क्त पत्र संबंि में सूनचत नकया जाता है नक नसनर्ि अपीि संख्या 7946 र्षव 2013 के संबंिमें बी०एस०एि०एि० एर्ं अन्य बिाम स्व० भग्गू प्रसाद नतर्ारी के संबंि में दायर एि०एि०पी० संख्या 4511/2007 के संबंि में माििीय उच्चतम न्यायािय के आदे श (निर्वय) नदिांक 10.09.2013 के संदभव में बी०एस०एि०एि० मुख्यािय, िई नदल्ली से प्राप्त निदे शािुसार उन्ीं िोगो को बी०सी०आर० ग्रे ड चतु र्व पदोन्ननत के बकाया र्े तिमाि एर्ं अन्य सेर्ानिर्ृनत्त िाभ का भुगताि नकया जािा है जो माििीय उच्चतम न्यायािय की उक्त एस०एि०पी० में प्रार्ी (Applicant ) र्े।
हं .अ.
प्रिाि महाप्रबन्धक दू रसंचार नजिा सहा० महा० प्र० (प्रज्ञा०) िखिऊ प्रनतनिनप सूचिार्व प्रेनषत Page 8 of 17 CAT LKO BENCH OA No. 539-2015- Mehrunnisha v. UoI & Ors.
6.1 As is clear, the benefit of the BCR Scheme has been denied very simply because the applicant was not a party in the order of the Hon'ble Apex Court dated 10/9/2013. This plea is not tenable as it is no longer res-integra that similarly placed persons have to be given the same benefits. The order in case of Maggu [supra] reads as under:Civil Appeal No. 7946/2013
(SLP (C) No. 4511 of 2007) - judgment dated 10/9/2013:
BSNL Ltd. & Ors. Vs. Magghu Prasad Tiwari (Dead) & Anr.
....Our attention was drawn by Mr. R.D. Agrawal, learned senior counsel for the appellant-Corporation, to the decision of this Court in Bharat Sanchar Nigam Limited v. Ghanshyam Dass (2) and others - (2011) 4 SCC 374 who contended that the benefit of protection against ouster was available to only such of employee who are parties to the first round of litigation. The same could not therefore be extended to the respondents in the present case. Two considerations which have primarily weighed with the High Court in quashing the cancellation orders have been noticed by us above. Both of them are independently of each other sufficient to justify the reversal of the view taken by the appellant-Corporation. It is common ground that the respondents were in no way responsible for their promotions to the next higher grade. The High Court in State of Orissa v. Adwait Charan Mohanty- (1995) Supp. 1 SCC 470, Union of India v. Sita Ram Dheer- 1994 SCC (L&S) 1445, Nand Kishore Sharma v. State of Bihar
- (1995) Supp. 3 SCC 722 and State of Karnataka v. Mangalore University Non Teaching Employees' Assn. - (2002) 2 SCC 302 to hold that the respondents having worked in the higher grade could not be reverted from the same without a lawful justification or any allegation that they had secured an underserved benefit by fraud or misrepresentation. It was also correct in holding that the appellant-Corporation having granted promotion to the respondents with effect from the date their juniors in the basic Grade I were promoted to the Grade IV, there was no reason to undo the promotions. The grant of promotion and the creation of supernumerary posts was rightly held to be a step taken with a view to preventing miscarriage of justice which was evident if a junior was picked up for promotion ignoring the claims of the senior. Reliance upon decision in Ghanshyam Dass's case does not in the facts and circumstances of the case at hand lend any assistance to the appellant.
So also the fact that most of the respondents, if not all, have already retired and some of them have even passed away is another Page 9 of 17 CAT LKO BENCH OA No. 539-2015- Mehrunnisha v. UoI & Ors.
reason why the order passed by the High Court does not call for any interference from this Court in exercise of our powers under Article 136 of the Constitution of India.
In the result these appeals fail and are, hereby, dismissed but in the circumstances without any orders as to costs.
Relevant portions of the order of Hon High Court dated 22/8/2005 read as under:
"The Department of Telecom., vide its circular dated 16.10.1990 re-structured the existing cadres in the department and introduced the posts with the nomenclature of Senior Telecom Office Assistants (Functions)/(General)/(Telegraphy). By a Circular dated 22.10.1993 the promotions of those officers, who had opted for the re-structured cadre were restrained. Subsequently the department by its letter dated 16.6.1997 lifted the ban imposed through Circular dated 22.10.1993, and directed the promotions under BCR Scheme to Grade IV to even those officials, who had opted for re-structured cadre. This benefit of promotion in the re-structured cadres was also to be given from the date, from which it was given to the juniors in the old cadre as per their seniority in the basic grade of the old cadre subject to the overall limit of 10% in Grade IV, as prescribed in the BCR Scheme. The department thereafter issued a circular dated 2.9.1998 for creation of supernumerary posts to accommodate officials in Grade IV under BCR Scheme. Aggrieved by the accelerated promotions of their juniors, those who had completed 26 years of service filed a Claim Petition OA No. 14/55 of 1991 Smt. Santosh Kapur and others vs. Union of India. The Principal Bench of the Central Administrative Tribunal decided the original applications on 7.7.1992. The operative portion of the order of the Central Administrative Tribunal, New Delhi is quoted as below;
"7. Analysing facts and arguments in the case, we find that the scale of Rs. 2000-3200 is clearly a part of the BCR scheme 10% of the post in 1600-2660 are placed in the scale of 2000-3200. It appears that BCR provided for this since those coming under BCR would hardly have any opportunity to go to the higher scale of Rs. 2000-3200 by virtue of seniority. The promotion to 2000-3200 should be based on seniority of officials maintained with reference to basic cadres vide clarification in Telecommunication Deptt's letter of 11.3.91. Basic cadre in various posts are shown in para 2 (vi) of the BCR Scheme of 16th Oct, 1990. The scale of Rs. 2000-3200 in like a non functional scale, under BCR and the more drawal of this scale will not entitle the drawee to any preferential seniority in the scale of Rs. 1600-2660.
8. In the above view of the matter, We direct that the promotions to 10% posts in scale 2000-3200 would have to be based on seniority in basic cadres subject to fulfilment of other conditions in the BCR viz. those who were regular employees on 1.1.1900 had completed 26 years of service in basic higher scales. The respondents are directed to consider applicants accordingly from due date with consequential benefits. The employees who may be senior to applicants in the scale of 1600-2660 and who have already been given the scale Rs. 2000-3200 at the cost of those senior in basic grades Page 10 of 17 CAT LKO BENCH OA No. 539-2015- Mehrunnisha v. UoI & Ors.
by any different interpretation of the BCR scheme, may in the discretion of the respondents instead of being reverted, be considered for promotion to scale of Rs. 2000-3200 by suitable adjustments in the number of posts by upgradation as necessary.
With the above direction and observation, the case is disposed of with no order as to costs.
Sd/- Sd/-
(I.P. Gupta) (Ram Pal Singh) Member (A) Vice Chairman (J)"
The Union of India, through its Secretary, Department of Telecommunications filed a Civil Appeal No. 3201 of 1993 which was dismissed by Hon'ble Supreme Court, on 9.9.1993 with following orders;
"In view of the clear provision in the letter dated 3.4.1991 (at page 116 of the paper book) read with the letter dated 18.10.1990 (at page 119 of the paper book) that completion of 26 years service on the crucial date along with the fact of being a regular employee on 1.1.1990 are essential requirements for obtaining the benefit under the Biennial Cadre Review Scheme, the direction given, by the Tribunal in the impugned order in favour of the respondent can not be faulted. On this conclusion, it is obvious that no case for interference in this appeal is made out. The appeal is dismissed. No costs New Delhi sd/-
September 9, 1993 (J.S. Verma)"
It appears that the department continued to make promotions during the pendency of the OA No. 1455/1999, before the Principal Bench of Central Administrative Tribunal at New Delhi, and even thereafter until the decision of the Supreme Court dated 9.9.1993. The Central Administrative Tribunal had given liberty to the department only to protect those, who were wrongly promoted. It was left to the discretion of the respondents, that instead reverting them, they may be considered for promotion in the scale of Rs. 2000-32000 by suitable adjustment in the number of posts, by up gradation as necessary. The department, however, chose to exercise this discretion in favour of all the persons, who were already promoted and issued a Circular dated 10.5.1996 directing not to revert them, and to create supernumerary posts in order to accommodate these persons. The petitioners, inspite of the above orders were not given the benefits of promotion to Grade IV. They were aggrieved by promotion of persons junior to them and the exercise undertaken by the Department to allow them to continue on such posts. The CJM, (Eastern) Lucknow issued a Circular Letter on 11.7.1996 communicating the revised procedure for promotion to Grade IV against 10% posts in BRC Scheme to be followed in respect of employees under the circle. By a Circular Letter dated 13.2.1997 the Department of Telecom. further protected those promotees, who were rendered ineligible for promotion from reversion by creating supernumerary posts, and for rest of the employees the procedure for promotion in accordance with the judgement and the order dated 13.11.1995 was required to be followed. In the meantime the Ahmedabad Bench of the Central Page 11 of 17 CAT LKO BENCH OA No. 539-2015- Mehrunnisha v. UoI & Ors.
Administrative Tribunal in O.A. No. 623/1996 between All India Non-Scheduled Castes/Scheduled Tribes Telegraphy/Telecom Employees Association and another vs. Union of India decided on 11.4.1997, held that the benefits of reservation/roster scheme should not be applied to these promotions as the selections were not involved and that the promotions were in fact up gradation to Grade IV. The respondents, however, chose to follow the order of the Tribunal only with effect from 11.4.1997. The other directions were issued by the Department by its Circular Letter dated 2.9.1998, for creating supernumerary posts to accommodate the officers in Grade IV for the purpose of giving benefit under the Circular dated 16.6.1997. In this back drop the petitioners were considered for promotion and were promoted by orders issued in the year 1998 by Additional General Manager (Administration) promoting them in the pay scale of Rs. 6500-10500 in the writ petition No. 18265 of 2003, vide orders dated 30.11.1998. These orders were subject to the approval of the Departmental Promotion Committee, which was held on 7.1.1998 and approved these promotions. The petitioners have since thereafter discharged their duties on the post of Chief Telecom Supervisor in Grade IV and have been paid their salary and allowances since 1992-93. The Department however by orders dated 20.4.1999 cancelled these promotions, and it was provided that the service rendered by these persons in pre-structured cadre shall not be counted for computing the period of 16 years necessary for giving the revised pay scales. The amounts paid in excess was also directed to be recovered from them. Aggrieved by the reversion orders, some of the petitioners approached the Central Administrative Tribunal, Allahabad by O.A. No. 1228 of 1998 which was allowed by judgement dated 17.8.2000 holding that the reversion orders were in violation of the principle of natural justice. While setting aside the orders respondents were directed to pass fresh orders after giving them an opportunity of hearing. Show cause notices were issued, to which petitioners filed their replies and that by impugned orders dated 20.11.2002 and 10.9.2002 the Department has again decided to cancel these promotions, and to withdraw the benefits..."
..The promotional scheme known as Biennial cadre Review Scheme was introduced to avoid stagnation by providing promotional avenues. The scheme further provided that 10% officials of Grade III would be promoted to Grade IV in the pay scale of Rs. 2000-3200 revised to Rs. 6500-10500. The department accordingly promoted officers on Grade III in 10% of BCR scheme on the basis of inter-se seniority of Grade III. By Circular Letter dated 10.10.1990 the department restructured the cadres and introduced the cadre of Senior Telecom. Assistants (Functions/General/Telegraphy) and by Circular Letter dated 22.10.1993 restricted those officials for their promotion to Grade IV under BCR Scheme, who had opted in the re-structured cadre. The ban imposed by Circular Letter dated 22.10.1993 was lifted by the Circular Letter dated 16.6.1997. Consequently even those officials, who had opted for re-structured cadre, became eligible for promotion in Grade IV under BCR scheme. The benefit of promotion was also provided to be given from the date from which it was given to the juniors in the old Page 12 of 17 CAT LKO BENCH OA No. 539-2015- Mehrunnisha v. UoI & Ors.
cadre as per their seniority in the basic grade of the old cadre subject to overall limit of 10% in grade IV.
After the judgement of the Principal Bench of the Central Administrative Tribunal, New Delhi dated 7.7.1992 was affirmed by Supreme Court on 9.9.1993, the department by its Circular Letter dated 2.9.1998 directed for creation of supernumerary posts to accommodate the officials, who were promoted in pursuance of Circular Letter dated 16.6.1997. The Central Administrative Tribunal as well as Supreme Court did not extend the limit of 10% promotions in BCR scheme. The department instead of reverting those juniors, who were promoted, exercised its discretion in terms of the liberty granted by the Central Administrative Tribunal by creating supernumerary posts. It is at this stage that the department committed a mistake by Circular Letter dated 13.12.1995 to grant promotions to the officials in Grade IV under the BCR scheme on the basis of their seniority and to review the cases of all the officials. By the impugned order dated 5.9.2002 passed after issuing show cause notice in pursuance of directions issued by Central Administrative Tribunal, Allahabad the department has considered the cases individually and found that the petitioners were not promoted to Grade IV at circle level on the basis of their inter-se seniority in Grade III. The petitioners could not be promoted in Grade IV (10%) of BCR scheme prior to 13.12.1995 and even after 13.12.1995 they were not eligible to be promoted to Grade IV on the basis of their seniority in the basic grade. The department, however, admits in the impugned order that the persons junior to the petitioners in the basic grade seniority, were promoted in Grade IV. They were, however, not reverted as supernumerary posts were created by its Circular Letter dated 10.5.1996, to accommodate those who became ineligible. The Department, however, subsequently in the year 1995, decided to abolish supernumerary posts and cancelled the promotions as these persons had become ineligible for promotion by virtue of their seniority in the basic grade. The department found that the promotions orders in favour of the petitioners were issued due to misinterpretation by the department of telecommunication's instructions dated 16.6.1992 and 2.9.1998 without observing the prescribed limit of 10% and were consequently cancelled on 20.7.1999. In fact, these letters were issued to provide promotions to the eligible staff working only in re-structured cadres and were not applicable to the petitioners. Since the petitioners were not eligible for being accommodated against the supernumerary posts, they could not be promoted. In substance and basically the objections taken to petitioners promotion are that the department decided to protect all those, who were promoted and had to be reverted in terms of the orders of the Principal Bench of the Central Administrative Tribunal, New Delhi dated 7.7.1992. In the process the restriction of 10% was diluted. Now the interpretation of the department is that since prescribed limit of 10% would neither be relaxed/extended by the department nor by the Central Administrative Tribunal, the petitioners' promotion found to be wrongly made in order to remove the discrimination requires to be cancelled. The department admitted that the promotions granted to the petitioners vide office order dated 23.11.1998 was issued due to misinterpretation of department instruction dated 16.6.1997 and 2.9.1998.
Page 13 of 17CAT LKO BENCH OA No. 539-2015- Mehrunnisha v. UoI & Ors.
There are no statutory rules regulating the promotions. All these promotions were provided by executive orders. The department may have made a mistake by promoting ineligible persons namely those who were not senior to the petitioners in gradation list on account of their opting in restructured cadres. However, once the department decided to protect their promotion by creating supernumerary posts and consequently provided for promotions of all those who were senior to senior promoted persons, the Rule of 10% of the BRC scheme for promotions stood relaxed. It is well known principle of law that where there are no statutory rules governing the service conditions, executive orders can be issued and that such executives orders can be amended or modified by subsequent executive orders. The department at the time of protecting the promotions of those who were not found eligible by the Principal Bench of Central Administrative Tribunal, New Delhi in its order dated 7.7.1992 confirmed by Supreme Court on 9.9.1993 decided to protect their promotions by creating supernumerary posts and further decided to remove the discrimination by providing promotions to all those who were senior to such persons, exempted 10% limit of BCR Scheme in promotion. The respondents have not brought to the notice of the court any violation of the service rules in giving promotions to the petitioners except that the petitioners were promoted by way of mistake as they were above the 10% limit of BCR Scheme. The department, however, has not been able to justify the discrimination which was sought to be remedied by promoting the petitioners. It is admitted that some of the juniors were promoted and that the department has protected their reversion by creating supernumerary posts. The department should have realized that such a decision will necessarily cause discrimination to the seniors in the basic cadres and will call for a further remedial action.
The petitioners were promoted subject to their selection through the Departmental Promotion Committee, which was thereafter held approved promotions of all the petitioners. The merit as such has not been compromised in making such promotions.
The Court further find that the equity also supports the petitioners. Almost all the petitioners except a few have retired. It would be unjust and inequitable to withdraw the benefits drawn by the petitioners much before their retirement from their death-cum-retiral gratuity. The fact that they have been given benefit of promotion retrospectively and have actually worked about one year also does not take away the equity which has come into play after the petitioners have retired.
It has been held by the Hon'ble Supreme Court in State of Orissa v. Adwait Charan Mohanty, 1995 Supp (1) SCC 470: 1995 SCC (L&S) 522; Union of India v. Sita Ram Dheer, 1994 SCC (L&S) 1445; Nand Kishore Sharma v. State of Bihar, 1995 Supp (3) SCC 722: 1996 SCC (L&S) 124; Stqte of Karnataka v. Mangalore University Non-Teaching Employees' Assn., (2002) 3 SCC 302 : AIR 2002 SC 1223 that if any additional payment, has been made to the employees for no fault of theirs they should not be penalized for this.
Both the writ petitions are consequently allowed. I find that the orders dated 6/12.9.2002 and the orders dated 5/16.9.2002 in Writ Petition Page 14 of 17 CAT LKO BENCH OA No. 539-2015- Mehrunnisha v. UoI & Ors.
No. 48717 of 2002 and the orders dated 20.11.2002 and 10.9.2002 in writ petition No. 18265 of 2003 reverting the petitioners to Grade III posts can not be sustained, and are accordingly quashed. The respondents are restrained from giving effect to these orders and to recover any benefits drawn by the petitioners.."
In the Special Appeal No. 1195 of 2005 viz: - The Chairman
-cum-Managing Director (Bharat Sanchar Nigam Limited) & Ors. Vs Magghu Prasad Tiwari the Division Bench of the Hon High Court vide its order 10/10/2006 upheld the judgment of Single Bench of the Hon High Court which was challenged in the Hon Apex court which held as per extracts above in its judgment of 10/9/2013.
6.2 As may be seen very clearly that the Hon'ble Apex Court has upheld the order of Hon'ble High Court and the Civil Appeal No. 7946 of 2013 arising out of SLP (C) No. 4511 of 2007 BSNL vs. Magghu Prasad Tiwari (Dead) and others alongwith number of Civil Appeals which are stated in the order of the Hon'ble Apex Court (Annexure-8 filed by the applicant). The circumstances and facts are identical as also stated in an elaborate manner in the order of the Hon High Court dated 22/8/2005 and the only reason admittedly is that the applicant was not party in case of Maggu [supra] and orders in similar cases by the Hon High Court Allahabad. This Tribunal in the judgement dated 15.01.2001 in the bunch of 5 OAs which included OA 381/1999 in which the applicant mentioned as Applicant at Sl. No. 25 clearly shows that this Tribunal had also directed quashing of the impugned orders, which favour of the Page 15 of 17 CAT LKO BENCH OA No. 539-2015- Mehrunnisha v. UoI & Ors.
petitioner but show cause notices were to be issued to the applicants therein which resulted in the impugned order. The relevant portion of the order is reproduced hereunder:
"11. For the reasons given above and in the order of Allahabad Bench of the Tribunal in O.A. No. 1005/99, we are of the view that the present O.As are fully covered with the decision of the Allahabad Bench of the Tribunal in O.A. No. 1005/99. The orders dated 20.7.99, 10.8.99 and 16.9.99 impugned in the present O.As have already been quashed by the Allahabad Bench of the Tribunal. They are accordingly held not valid in the present O.As also. The order dated 21.9.99 impugned in O.A. 418/99 also stands on the same footing and the same is quashed. The present O.As are also decided in terms of the order passed in O.A. No. 1005/99 dated 17.8.2000 and it is left open to the respondents to pass an order in accordance with law after affording adequate opportunity of hearing to the applicants. It is also provided that if during the pendency of these O.As nay recovery has been made from the applicants, the applicants are entitled to get the said amount back within a period of 3 months from the date of receipt of copy of this order.
12. All the O.As stand decided accordingly as above. No order as to costs. A copy of this order be placed in all the above O.A. files."
As may be seen, this Tribunal order has straight nexus with the orders of CAT, Allahabad Bench, Hon'ble High Court, Allahabad and Hon'ble Apex Court as discussed above. The ld applicant counsel has also filed judgment of CAT Allahabad, Bench dated 06/9/2018 in O.A 449/2015 wherein on the same issue, the Tribunal has directed grant of benefits to the applicant therein.
In such factual and legal matrix, there is no reason why the applicant cannot be given the benefit as given by the Hon'ble Apex Court in the similar matters.
7. Hence, without further ado, it is directed that:
Page 16 of 17CAT LKO BENCH OA No. 539-2015- Mehrunnisha v. UoI & Ors.
a. The order dated 10.07.2015 and connected order 20.11.2002 are hereby quashed.
b. The fixation of pay and pension thereof be done as per the earlier promotion order.
c. The respondent nos. 3 & 4 shall pay the arrears of salary and fix the salary appropriately for pension matter and give the arrears of the pension also from the date the pension was due in the first place.
d. There shall be no payment of interest.
e. The compliance of above directions shall be done within a period of three months from the date of receipt of a certified copy of this order.
The OA is allowed accordingly on these terms.
8. No Costs.
(Devendra Chaudhry) (Justice Anil Kumar Ojha)
Member (A) Member (J)
JNS
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