Central Administrative Tribunal - Delhi
Pawan Kumar vs M/O Communications on 22 December, 2022
1
OA No.4006 of 2015
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.4006/2015
Reserved on:16.12.2022
Pronounced on: 22.12.2022
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Pawan Kumar s/o Sh. Ishwar Singh,
Village and PO Lad Pur,
Delhi - 110 081.
...Applicant
(By Advocate: Mr. Pranay Nath Jha)
Versus
1. Mahanagar Telephone Nigam Limited ["MTNL")
Through its Director (HR),
M/o Communication and Information
Technology,
Mahanagar Door Sanchar Sadan,
9, CGO Complex, Lodhi Road,
New Delhi - 110 003.
2. Addl. GM (HR),
Mahanagar Telephone Nigam Limited
Mahanagar Door Sanchar Sadan,
9, CGO Complex, Lodhi Road,
New Delhi - 110 003.
-Respondents
(By Advocate: Mr. Amit Kumar Sinha)
ORDER
By Hon'ble Mr. Anand Mathur, Member (A):
Learned counsel for the applicant stated as under:-
1.1 This is the third round of litigation by the applicant.
Earlier, he had filed OA no.810/2012 which was decided on 13.12.2012 directing the respondents to 2 OA No.4006 of 2015 consider his representation. When the applicant did not receive the desired result, he filed yet another OA No.2728/2012, which was allowed vide order dated 25.03.2014 directing the respondents to "prepone the date of granting additional increment to the applicant from 06.05.2011 to 06.07.2003, i.e., the date on which he won the Silver Medal in Commonwealth Wrestling Championship held in Canada. As the applicant has also fulfilled all the conditions for out of turn promotion from 06.07.2006, the respondents shall reconsider his case for granting the same from the said date with all consequential benefits. The aforesaid directions shall be complied with within a period of two months from the date of receipt of a copy of this order. The respondents were also imposed cost of Rs.5000/-". 1.2 This time also, the respondents did not comply with the Tribunal's directions. Resultantly, the applicant had to file CP No.587/2014. However, during the pendency of the CP, the respondents passed order dated 21.10.2014 in compliance of the Tribunal's order, which reads as under:-
"Sub: Grant of out of turn promotion to Sh. Pawan Kumar, TOA(G), MTNL Delhi-Reg. decision of the Board of Directors in 301st meeting held on 9th Oct, 2014.
In continuation of this office letter no.MTNL/ CO/ Legal/ CAT/49 dated 24th July, 2014 (Copy enclosed), it is 3 OA No.4006 of 2015 informed that in the 301st meeting of the Board of Directors of MTNL held on 9th October, 2014, the Board deliberated on the issue of Out of Turn Promotion to Shri Pawan Kumar, TOA (G), MTNL Delhi. The Board did not find any merit in view of the performance over the period in service in MTNL and decided that case be defended accordingly. Extract of the Minute on the said item is enclosed for detail. This may be brought to the notice of the concerned."
1.3 In view of the response of the respondents by way of letter dated 21.10.2014, the CP was closed, vide order dated 05.02.2015, however, with liberty to the applicant to assail the decision of the Board of Directors, MTNL denying him out of turn promotion in fresh proceedings. Hence, the applicant has filed the instant OA seeking the following reliefs:-
"(i) May please direct the Respondents to forthwith grant out of turn promotion to the Applicant in terms of Rule 13.2 of Recruitment Rules of Sports Persons Group C &D;
(ii) May please direct the respondents to grant three additional increments in view of Applicant‟s medal winning performance from the date of winning performance in accordance with rule 10 and 11 of the Recruitment Rules of Sports Persons Group C & D; and
(iii) Pass any other order the Hon‟ble Tribunal may deem fit in the interest of justice."
1.4 Learned counsel for the applicant briefly stated that the applicant, who is a renowned wrestler and has won many medals in national and international competitions, was appointed as TOA (G) on 28.04.2003 by the respondents under Sports Quota.
1.5 According to the respondents' policy, those who represent the country in prestigious international meets 4 OA No.4006 of 2015 and win medals for country are entitled for out of turn promotion. In this regard, they have also framed the MTNL Sports Persons Recruitment Rules, 2001 [hereinafter referred to as Recruitment Rules]. Rule 13 of the Recruitment Rules is relevant in this case and the same is reproduced as under:-
"13. Out of turn promotion:
13.1 The first out of turn promotion, if any, shall be referred to Corporate Office with specific justification and recommendations of respective CGMS for approval of the CMD based on the following criteria.
13.2 Within Group C Sportspersons who:
(a) represent the country in International prestigious meets and perform creditably i.e. medal winning performance; or represent MTNL in the National meets on three occasions with medal winning performance in each.
(b) the sportspersons should have put in three years‟ service in the existing grade, where relaxation of this limit is required, the case is to be referred to the MTNL Board.
(c) Not more than one out of turn promotion will be given to the MTNL Board; and
(d) As far as possible, no out of turn promotion should be given. But in exceptional cases of implemented international achievement, out of turn promotion can be considered by MTNL Board on the recommendation of CGM".
In addition to the aforesaid rule for out of turn promotion, the applicant stated that Rules 10 and 11 of the Recruitment Rules, provide for incentives for medal winning performance, which reads as under:-
"10. INCENTIVE 10.1 Excellence in International Meets 10.1.1 International meets will be categorized as under
for award of increments:-
Category „A‟ Olympic Games 5 OA No.4006 of 2015 Category „B‟ World Championships, World Cup, Asian Games.
Category „C‟ Commonwealth Championships Commonwealth Games, Asian Championships.
10.1.2 Grant of incentives for medal winning performance in Olympics Category A will be considered on merits on receipt of results. For medal winning performance in other international events irrespective of the sportsperson winning Gold/Silver/Bronze medal up to three increments in games falling in Category „B‟ up to two increments for those coming in category „C‟ may be granted by Board.
These increments will, however, be in addition to those if any, granted on performance in national events.
11. Excellence at National Level 11.1.1 Two increments for gold medal winning performance during the National Championship.
11.1.2 One increment if found justified for silver or bronze medal winning performance during National Championships.
Note: The above increments may be granted by MTNL Corporate Office on the advice of RSCB." 1.6 It is stated that based on the aforesaid rules, the applicant was entitled for increments in July, 2003 itself as he had represented the Commonwealth Wrestling Championship during 5th -6th July, 2003 whereas he was given increment only once, that too belatedly w.e.f. 06.05.2011. However, even after two rounds of litigation, the applicant has not been granted the legitimate claim as per rules. His medal winning performances, which are not disputed by the respondents, read as under:-
"(i) Represented Commonwealth Wrestling Championship, 5th-6th July, 2003, Canada and secured Silver Medal.
(ii) Represented 49th Senior National Wrestling Championships, 8th January to 12th January, 2003, at Jharkhand and secured Gold Medal 6 OA No.4006 of 2015
(iii) Represented 50th Senior National Wrestling Championship, from 3rd December to 7th December, 2003 at Pune and secured Bronze Medal
(iv) Represented 6th Khashaba Jadhav Chashak Wresting Tournament, 17th to 20th March, 2004 at Maharashtra and securing First Place won gold medal".
1.7 It is added that even prior to joining the respondent department, the applicant had represented the respondent department i.e. MTNL in 49th Senior Men Free style, Greco Roman Style National Wrestling Championship held at Ranchi between 8.1.2003 and 12.1.2003 and won Gold Medal.
1.8 The applicant having participated and won Silver Medal in the aforesaid international event, became eligible for out of turn promotion as per rules w.e.f. August, 2003. He is also entitled to be granted five increments as per Rules 10 & 11 of the Recruitment Rules ibid, but the respondents have not granted the same, despite two rounds of litigation.
2. Per contra, learned counsel for the respondents stated as under:-
2.1 The applicant was appointed as TOA (G) w.e.f. 28.04.2003 under sports quota for the event of Wrestling by Delhi Unit. He has completed around 11 years of service in MTNL so far and is presently working in NE-7 grade w.e.f. 28.04.2010. His case is recommended by Secretary 7 OA No.4006 of 2015 (RSCB) for out of turn promotion which is duly approved by ED Delhi. This is his first out of turn promotion case.
2.2 As per merit certificates provided by the Secretary, RSCB and verified by the Asstt. Secretary, Wrestling Federation of India, the list of medals achieved by the applicant, in different Championships, after appointment in MTNL is given below:-
No. Championship Held at Period Position 1 16th Asian Wrestling 5.6.03 Participation Championship 8.6.03-
2 Commonwealth London, 5.7.03 - Second
Wrestling Canada 6.7.03
Championship
3 Senior National Puri, Orissa 3.12.03- Third
Wrestling 7.12.03
Championship
4 Khashba Jadhav Maharashtra 17.3.04- First
Chashak Wrestling 20.3.04
Championship
As per approval of MTNL Board in its 271st meeting held on 06.05.2011, two additional increments were given to the applicant, vide order dated 23.05.2011. The applicant was not satisfied with such additional increment and, therefore, approached the Tribunal by filing OA No.2728/2012 for ante-dating of such increments and for out of turn promotion, which was disposed of with certain directions, which have already been quoted above.8
OA No.4006 of 2015 2.3 It is stated that as per clause 3 of the appointment letter dated 28.04.2003, the applicant was required to keep himself high in sports activities in MTNL tournaments and other national tournaments while in service and if his performance in Sports is not found upto the mark within a period of three years, his services will be terminated. It is a fact that the applicant has not given any medal winning performance after March, 2004 whereas he was appointed in April, 2003.
2.4 The Board deliberated vide 301st meeting that the official has not won any medal in any international event as mentioned in the Recruitment Rules, after Silver Medal in July, 2003, Commonwealth Wrestling Championship and in the same year he was appointed under sports quota on 28.04.2003 and had not completed three years' of service in MTNL. It is further submitted that as per para 13.2(d) of the Rules ibid "as far as possible, no out of turn promotion should be given but in exceptional cases of implemented international achievements, out of turn promotion can be considered by MTNL Board on the recommendation of CGM". Based on that, the Board did not find any merit in awarding out of turn promotion to the applicant in view of his performance over the period in service in MTNL. 9 OA No.4006 of 2015
3. The applicant, in his rejoinder, rebutted the contention of the respondents stating that on the basis of his sports achievements and as per the Recruitment Rules, he is entitled to one out of turn promotion and five increments, as per chart given below:-
No. Event & Year Position held Entitlement 1 Commonwealth Games in Silver/Second Out of turn July 2003 in London, promotion as Ontario, Canada per Rule 13.2
(a) and 2 increments as per Rule 10.
2 50th Senior National Bronze/Third 1 increment as
Wrestling Championship per Rule 11
in December 2003 at
Puri, Orissa
3 Federation Cup Gold/First 2 increments as
(Khashaba Jadhav per Rule11.
Chashak) in March, 2004
at Dhule, Maharashtra
3.1 Learned counsel for the applicant stated that the respondents have granted out of turn promotions to other similarly placed employees under sports quota. The applicant came to know under RTI Act that one Ms. Alka Rani Tomar, who is a similarly situated employee, i.e., she was recruited in the same category during the year 2003, was given out of turn promotion under sports quota relaxing the condition of completing minimum three years in the existing NE-7 grade w.e.f. 11.02.2011. 10 OA No.4006 of 2015
4. We have heard Mr. Pranay Nath Jha, learned counsel for the applicant and Mr. Amit K. Sinha, learned counsel for the respondents and perused the material on records.
5. Having heard learned counsels for the parties, we find that the grant of incentives/increments is governed by Rules 10 and 11 of the Recruitment Rules, as reproduced in para 1.4 above, which clearly shows a direct co-relation between international/national meet achievements and the number of increments to be granted thereon. Rule 13 of the Recruitment Rules prescribes for out of turn promotion.
Here again, there is a direct co-relation between medal winning performances and grant of out of turn promotion. 5.1 In the impugned order dated 21.10.2014 (Annexure A-
1), the reason for rejection of the claim of the applicant for out of turn promotion has been given as "The Board did not find any merit in awarding out of turn promotion to Shri Pawan Kumar in view of the performance over the period in service in MTNL and decided that case be defended accordingly." As is clear from the language of the impugned order, the rejection is based on the performance over the period of service in MTNL and is not being linked to any achievement in a national/international event, which is the sole requirement of Rules 10, 11 and 13 of the Recruitment Rules. For his Silver Medal winning performance in 11 OA No.4006 of 2015 Commonwealth Games in July 2003 in Canada, whereas two increments have been granted to the applicant, but he has not been granted the out of turn promotion as per Rule 13 of the Rules ibid. For his Bronze medal winning performance in 50th Senior National Wrestling Championship in December, 2003 in Orissa and for Gold winning performance in Federation Cup (Khashaba Jadhav Chashak) in March, 2004 in Maharashtra, the increments, as due under Rules 11 of the Rules ibid, have not been granted to the applicant.
5.2 In the counter reply filed by the respondents and during the course of discussion with the learned counsel for the respondents, we have not been apprised of any plausible reason for denying the claim of the applicant as per rules on a subject. Further, learned counsel for the applicant has brought out in the rejoinder that Ms. Alka Rani Tomar, who is similarly placed as the applicant, was granted out of turn promotion vide letter dated 18.05.2011. She has got out of turn promotion by relaxing the condition of minimum three years' service whereas the case of the applicant is being rejected, which is a case of discrimination.
6. In view of the above discussion, we are of the considered opinion that the instant case has merit and, 12 OA No.4006 of 2015 therefore, the instant OA is allowed. The impugned order dated 21.10.2014 is quashed and set aside. The respondents are hereby directed to extend the benefit of out of turn promotion to the applicant and requisite number of increments for his medal winning performances in national/international events, from the due dates as per the Recruitment Rules, quoted above, with all consequential benefits arising therefrom. 6.1 The respondents are further directed to complete the exercise, as ordained above, within a period of two months from the date of receipt of a certified copy of this order.
7. No order as to costs.
(Manish Garg) (Anand Mathur) Member (J) Member (A) /na/