Central Administrative Tribunal - Delhi
Arun Kumar Sharma (Aged About 58 Years) vs Union Of India And Another on 21 January, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 1708/2012 New Delhi this the 21st day of January, 2013 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Arun Kumar Sharma (aged about 58 years) S/o Shri Som Datt Sharma R/o B-1/144, Paliav Puram, Phase-, Meerut. ..Applicant (By Advocate Shri M.K. Bhardwaj) Versus Union of India and Another Through 1. Secretary, Ministry of Tele-Communication, Sanchar Bhawan, New Delhi. 2. The Chairman and Managing Director, Bharat Sanchar Nigam Limited, 3rd Floor, Bharat Sanchar Bhawan, Janpath, New Delhi. 3. The Principal General, Manager (B/W), BSNL, Telegraph Office Building, Kashmere Gate, Delhi-110006. ..Respondents (By Advocate Shri M.M. Sudan) O R D E R (ORAL)
Shri G. George Paracken:
The respondents have introduced the IDA scales with effect from 01.10.2000 and the applicant was also granted the said scale. The respondents have also introduced the Time Bound Promotion/Scale Upgradation (TBP for short) Scheme in place of Assured Career Progression (ACP for short) Scheme introduced by the Government of India. The applicant, who was in E-4 grade was eligible for consideration for grant of E-5 grade. Accordingly, his case was also considered by the Selection Committee on 18.12.2009. Later on, on the basis of the recommendations of the Selection Committee, he was given the financial upgradation to E-5 grade from the existing E-4 grade with effect from 6.2.2010. As the applicant had become eligible for financial upgradation from E-5 to E-6 grade in 2009 on completion of 4 years of service in E-5 grade, he submitted a detailed representation for the grant of the said grade in March, 2010. He also requested to the Chief General Manager, UP (West) Telecom Circle, Meerut on 13.4.2012 to expedite the process for grant of the upgraded scale in E-6 grade which has become due with effect from 1.10.2009 as the delay was causing him lot of mental agony. He has, however, stated that the Sr. G.M. (HR), UP (West) Circle was working against his legitimate interest due to prejudice and was, therefore, deliberately delaying his case. He has, therefore, written to the Chief General Manager, UP West Telecom Circle, Meerut on the same date, that he came to know that Sr. GM (HR), out of his deep rooted ill-will to him, is putting pressure on his subordinates to put up his case for grant of TBP from E-4 to E-5 for review. He requested the Chief General Manager to examine his case at his level personally so that no injustice is caused to him. He has also requested to refer his case to BSNL Headquarters for seeking clarifications, if necessary. Since the respondents were not taking any action, he again made Annexure A-9 representation dated 26.04.2012 to the CMD, BSNL, New Delhi requesting him to get his case for grant of TBP from E-5 to E-6 with effect from 01.10.2009 expedited as it has become long overdue. He also requested to get the working of Sr.GM (HR), UP (West), Meerut investigated so that such brazen misuse of power, which is demoralizing the employees of the circle, is arrested. As no action was being taken on his representations, he made a detailed representation to Respondent No.2, i.e., the Chief General Manager, UP (West) Telecom Circle, BSNL, Meerut and the said respondent directed to maintain status quo in his case. However, the CGM, BSNL ignoring the order of respondent No.2, withdrew the upgradation granted to him.
2. Applicant made the Annexure A-11 representation dated 5.5.2012 against the said wrongful review and withdrawal of upgradation. He has also repeated his request for grant of second scale upgradation with effect from 1.10.2009. However, by the impugned Annexure A-1 letter dated 7.5.2012, the respondent-the Chief General Manager, UP (West) Telecom Circle, BSNL, Shastri Nagar, Meerut informed the applicant that steps in respect of review taken by UP (Est) Circle for effecting his Time Bound Promotion w.e.f. 7.8.2009 instead of 01.10.2004 is as per BSNL Corporate Office Instructions issued in accordance with DOP&T guidelines. Relying upon the aforesaid decision dated 7.5.2012, the CGM, UP (West) Telecom Circle, BSNL, Shastri Nagar, Meerut revised the grant of Time Bound IDA scale upgradation from E-4 to E-5 w.e.f. 7.8.2009 instead of 1.10.2004 vide Annexure A-2 letter dated 8.5.2012. The said order reads as under:-
BHARAT SANCHAR NIGAM LIMITED (A Govt. of India Enterprise) OFFICE OF THE CGMT UP (WEST) Telecom Circle, Shastri Nagar Meerut No.UPW/CR-Cell/TBP/AKS/09-10/CO.MT/ 16 Dated:08.05.2012 NOTIFICATION Consequent upon review of Time Bound IDA Scale up-gradation by review DPC and with the approval of competent authority the date of Time Bound IDA Scale up-gradation granted to Shri Ashok Kumar Sharma, AGM(L&B)(HRMS No.197403223) O/o CGMT UP (West) Meerut, is hereby revised as under:-
S.No. Name of Executive Designation HRMS No. Level of upgradation Date of effect earlier granted Date of effect now revised
1. Arun Kumar Sharma AGM(L&B) 197403223 E-4 to E-5 1.10.
2004 7.8.
2009The Time Bound IDA Scale u-gradation from scale E-4 to E-5, granted to officer with effect from 1.10.2004 vide this office order No.UPW/CR-Cell/TBP/AKS/SDE/09-10/COMT/8 Dated:06.02.2010 may be treated as cancelled.
All other contents of the letter referred above will remain same.
Sd/-
(B.K. Agarwal) Dy. General Manager (HR &A) Copy for information and n/action to:
1. The Additional G.M. (CFA-NWP) O/o CGMT UP (West) Circle, Meerut.
2. AO (Cash) UP (West) Circle, Meerut for necessary fixation & entry in S/Book.
3. The officer concerned.
3. The applicant has challenged the aforesaid Annexure A-1 and A-2 orders on the grounds that he was granted the TBP E-4 to E-5 by the competent authority on the basis of the recommendations of the duly constituted Screening Committee held in December, 2009 and the said Committee headed by CGM, UP (West) had considered all the relevant record including the punishment of censure imposed upon the applicant in the year 2007. Since the punishment of censure was not considered as a bar in promotion/financial up-gradation and the record of the applicant was otherwise outstanding, the said Committee had recommended his case for grant of TBP E-4 to E-5 from due date, i.e., 01.10.2004. He has also challenged the aforesaid impugned orders on the ground that it was passed in violation of principles of natural justice as he has not been given any show cause notice or opportunity of hearing before withdrawing his financial upgradation, i.e., E-4 to E-5 w.e.f. 1.10.2004. Further, according to the applicant, neither on the date of holding of the DPC nor on the due date of grant of financial upgradation, i.e., from E-4 to E-5, he was facing any disability, i.e., disciplinary proceedings, criminal case etc.
4. The applicant has also submitted that the action of the respondents was in violation of para 16.5.1 of DOP&T OM dated 29.04.1989 wherein it has been provided that the competent authority has to take a decision on the recommendation of DPC within 3 months. It is also stated that when the decision is taken on the recommendations of DPC, the same is final and no further review of such decision is permissible. Further, the respondents have reviewed the decision of the competent authority taken in 2010 on the basis of recommendations of duly constituted DPC without any authority in law. He has also relied upon the judgment of the Apex Court in the case of Mir Gulam Hussain Vs. U.O.I. 1973 (4) SCC 133 wherein it has been held that the recommendations of the DPC cannot be questioned, being an independent body. Further, according to him, similar view was taken by this Tribunal in the case of G. Sudhakar Rao Vs. State of Orissa 1991 (1) SLJ (CAT) 431. He has, therefore, sought the following reliefs in this OA:
(i) To quash and set aside the impugned order dated 7.5.2012 and consequential order dated 8.5.2012.
(ii) To declare the action of respondents in modifying financial upgradation from E-4 to E-5 and ordering recovery as illegal, arbitrary and unconstitutional and direct the respondents to grant to the applicant TBP IDA sale upgradation from E-5 to E-6 from 1.10.2009.
(iii) Pass such other and further orders which their Lordships of this Honble Tribunal deem fit and proper in the existing facts and circumstances of the case.
(iv) To allow the OA with cost.
5. However, the learned counsel for the respondents Shri M.M. Sudan submitted that this case is squarely covered by the order of this Tribunal in OA No. 1868/2012 S.K. Singh Vs. B.S.N.L. and Others disposed of on 3.1.2013. The operative part of the said order reads as under:-
In view of above, We dispose of this OA of with the direction to the respondents to take appropriate action in the matter under intimation to the applicants within a period of two months from the date of receipt of a copy of this order. We hope that the respondents deem action in the matter is justifiable and the applicants will be satisfied by it. However, if any case, they are not satisfied with the decision taken by the respondents, they are at liberty to revive this OA for further adjudication.
6. As the learned counsel for the applicant has also agreed with the contentions of the learned counsel for the respondents, we dispose of this OA with the same directions as contained in OA No. 1868/2012 (supra). There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
`Rakesh