Central Administrative Tribunal - Ernakulam
Paulson George vs Bharat Sanchar Nigam Limited on 22 January, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00826/2017
Monday, this the 22nd day of January, 2024
CO RAM :
Hon'ble Mr. Justice Sunil Thomas, Judicial Member
Hon'ble Mr. K. V. Eapen, Administrative Member
1. Paulson George, S/o. George, aged 39 years,
JTO Kannur, O/o. Telephone Exchange, BSNL,
Kelakam, Kannur District,
residing at Kallupalathinkal (H), Ambayathode P.O,
Kandappunam, Kannur- 670 651.
2. Nisanth P, S/o. Govindan P., aged 39 years,
JTO (TIM), Telephone Bhavan, BSNL, Kannur- 670 001.
residing at Pothan (H), Kadalayi Theru, Chirakkal P.O,
Kannur- 670 011.
3. Binil C, S/o P. Chandrasekharan, aged 40 years,
JTO, Southern Telecom Region, OFOD, BSNL, Palakkad,
residing at Santhiniketan (H), Kodunthirapully P.O,
Palakkad- 678 004.
4. Sajith Kumar K.T, S/o. Padmanabhan K.T, aged 40 years,
JTO, Southern Telecom Region,
Digital Transmission Station,
BSNL, Ernakulam-682016,
residing at Kizhakke Thaayyil House, Chorode Post,
Vadakara, Kozhikkode- 673 106. -Applicants
[By Advocates : Mr. M.R. Hariraj, Mr. P.A. Kumaran, Mr. K.
Rajagopal, Ms. Bindu G & Mr. M.V. Balagopal]
Versus
OA No.180/00826/2017
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1. Union of India, represented by Secretary
Ministry of Communication, New Delhi- 110001.
2. Bharath Sanchar Nigum Limited represented by its C&MD,
New Delhi- 110001.
3. Chief General Manager Telecom, Kerala Circle,
BSNL, Thiruvananthapuram- 695033 -Respondents
[By Advocates : Mr. N. Anil Kumar, SPC for R-1, Mr. George
Kuruvilla for R-2 & R-3 ]
This Original Application having been heard on 04.12.2023, the
Tribunal on 22.01.2024 delivered the following :
ORDER
Per: Mr. K.V. Eapen, Administrative Member The four applicants in this OA are Junior Telecom Officers(JTOs) in the Bharat Sanchar Nigam Limited (BSNL) who are, as submitted by them, aggrieved by the refusal of the respondents (Department of Telecommunication(DoT)/BSNL to fix their pay in the cadre of JTO, by permitting them to have an option for fixation under the revised pay scheme from their dates of appointment as JTO. All the 4 applicants had commenced service in the BSNL as Telecom Technical Assistants (TTAs). As on 01.01.2007, they were drawing a pay of Rs.7,700/- in the OA No.180/00826/2017 -3- pre-revised pay scale applicable to TTAs. While working as TTAs, it is submitted that they had applied for direct recruitment as JTOs through proper channel. It is further submitted that, after competing with open market candidates, all the applicants had been selected for appointment as JTO. They were then sent for training as JTO on various dates in 2009 and during the said period of training they were paid the salary applicable for TTAs.
2. Applicant Nos. 1, 3 and 4 were appointed after training as JTO with effect from 25.05.2009. The Applicant No.2 was appointed at JTO on 20.07.2009. When they were appointed as JTOs, the pay scale of the post had already been revised to Rs.16,400- 40,500/-, with effect from 01.01.2007. Hence, on their appointment they were given a fixation at the stage of Rs.16,400 in this revised pay scale. Further, it is submitted that the period of service for increment was taken as starting from the date of commencement of training as JTO, in respect of applicants-1 & 2. However, for the other applicants the period of service was reckoned only from their date of appointment as JTO. It is also submitted that the pay scale of TTAs was also revised to Rs.13,600- 25,420/-, with effect from 01.01.2007 as per order dated 07.05.2010 produced at Annexure A-1. In OA No.180/00826/2017 -4- Annexure A-1 the IDA neutralisation was at the rate of 68.8% on basic pay scale, which later was revised to 78.2%. It is further submitted that as per paragraph 3.3 of the office order at AnnexureA1 notional increment on promotion is to be given at the rate of 3% per annum on the existing basic pay and pay is to be fixed in the revised pay scale of Rs.16,400-40,500. Further, the same order, which relates to fixation of pay scale of non -executive employees in BSNL with effect from 01.01.2007, also has a provision in paragraph 3.6 that non-executives of BSNL can opt for revision of pay (i) after 01.01.2007 or ,(ii) from the date of promotion after 01.01.2007 or, (iii) from the date of next increment in the existing scale. Further it is also provided that the option under this shall be exercised in writing in the form as per annexure -II of the order, so as to reach the authorities concerned within 3 months from the date of issue of this order.
3. The applicants as stated earlier are aggrieved by the fact that they were not given the option to defer their pay fixation as per Annexure A-1 option in the revised scales to the date of their appointment as JTO. It is submitted by them that a similar provision is provided in another office circular dated 31.03.2009 which deals with the revision of scale of pay OA No.180/00826/2017 -5- with effect from 01.01.2007 of Board level and below Board level executives of BSNL, produced at AnnexureA2. They point out that in clarification to the query at paragraph 5 of the circular as to whether the executives who have been promoted to the higher grades of Executives or granted time bound upgradation under Executive Promotion Policy on or after 01.01.2007 have any option to get their pay fixed from the date of their promotion/date of upgradation, it has been clarified that 'the executives can opt to get the revision of pay on 1.1.2007 or from the date of promotion after 1.1.2007 or from the date of next increment in the existing scale.'
4. Coming to the specific details in terms of the pay that they claim they are entitled to and for which they have filed the OA, the applicants submit that their pay had been fixed at Rs.17,840/- in the TTA cadre as on 01.01.2007. On the date of appointment as JTO, i.e. 25.05.2009 in the case of applicant nos. 1, 3 and 4 and 20.07.2009 in the case of applicant no.2, their revised pay was at the stage of Rs.18,940/-, after drawing increments in the year 2007 and 2008. Refixing the pay in the JTO scale from the revised scale applicable to TTA, their pay had been fixed at Rs.19020/- in the JTO cadre. It is submitted that this was at the stage of OA No.180/00826/2017 -6- pay after including 5 increments in the pay scale of JTO Rs.16,400- 40,500/-. Such a fixation bygranting 5 increment had been done because BSNL had directed that the pay of fresh entrants in the JTO cadre would be fixed after giving 5 increments in Rs.16,400-40,500/- pay scale on their appointment. It is submitted that the pay of the applicants at Sl.No.1 & 2 was accordingly fixed on this basis as if they were fresh entrants in service by totally ignoring their past service in the BSNL as TTA. A copy of the pay fixation orders issued in the case of the 1 st applicant has been produced at Annexures A-3 & A-4. This establishes that the pay as on 25.05.2009 was fixed at Rs.19,020/-. Similar orders were passed in the case of the 2nd applicant. Further, in the case of applicants at Sl.No.3 & 4, the pay was fixed after granting one increment from the stage of Rs.18940, which was the pay in the TTA cadre on their date of appointment as JTO. Hence, their pay, in comparison, came to be fixed slightly higher than the applicants at Sl.No.1 &2 at Rs.19,510/- in the same scale of Rs.16,400-40,500/- in the JTO cadre. A copy of the re- fixation of pay of applicant at Sl.No.3 has been produced at Annexure A-5. This shows that the pay had been fixed at Rs.19,510/- with effect from the date he was directly recruited as JTO on 25.05.2009.
OA No.180/00826/2017 -7-
5. It is submitted that the above pay fixation clearly reveal that there was no consistent method followed by the respondents in the case of the applicants therein. Hence, they claim that if they were permitted to exercise the option as provided under the aforesaid paragraph 3.6 of Annexure A-1 office order dated 07.05.10, or under paragraph 5 clarification provided in the circular dated 31.03.2009 produced at AnnexureA2 in relation to fixation of pay of Board level and below Board level Executives of BSNL, their pay should have been revised as under:- (the case of 1st applicant is taken as an example):-
Pay as on 01.01.2007:-
Pre revised pay scale-7000-200-10100 (TTA) Stage of pay-Rs.7000 DNI dated 01.09.2007 Revision of pay deferred to 25.05.2009 Under Para 3.6 of Annexure A-1 Therefore, drawing increments on 01.09.2007- Rs.7900 Drawing increments on 01.09.2008- Rs.8100 Pay as on 25.05.2009 Pay in lower post-Rs.8100 Pay scale of JTO (Pre revised)-Rs.9850 Pay fixed in pre revised scale of JTO-Rs.9850 Revision of pay on 25.05.2009 Pre revised pay- Rs.9850 Revised pay scale -16,400-40,500 IDA neutralisation at 78.2%= 9850 + (9850 * 78.2%)= 17,552.7 30% fitment= 17,550.7 + (17,550.7*30%)= 22820 OA No.180/00826/2017 -8-
6. It is submitted that from the above it is clear that the pay on fixation as JTO should have been at Rs.22,820/- instead of Rs.19020/Rs.19,510/- as had been done in their cases. It is also submitted that similar fixation had been granted to many others who were appointed like the applicants in the cadre of JTO pursuant to direct recruitment. In this connection the Memos issued by BSNL, Office of General Manager, Kolar in respect of officials working therein have been produced at the AnnexureA6 series. It is submitted that the JTO's in the AnnexureA6 series are senior or identical to the applicants. They were granted an option to defer the revision of pay to the date of appointment as JTO. Hence, in light of the above background, the applicants submit they gave representations to the respondents(BSNL). A copy of one such representation submitted by the 1st applicant dated 20.07.2010, has been produced at AnnexureA7. However, this was replied to by the BSNL, Office of GM, Telecom District, Kannur by the letters dated 28.07.2010 produced at AnnexureA8, by which, the 1st applicant was advised that he had been appointed as JTO on direct recruitment for the year 2007 w.e.f. 25.05.2009 in the sale of pay of Rs.16400-40500/-. Hence the pay fixation requested by him cannot be granted. It is submitted that the 1 st applicant submitted another representation dated 25.02.2012, where he OA No.180/00826/2017 -9- again asked to refix his pay (admittedly at Rs.21620/-) from the date of promotion to JTO with effect from 25.05.2009. It was brought out in the representation that the applicant had exercised an option in this regard on 21.01.2012. This representation was, in turn, answered by the respondents (Office of GM, Telecom District, Kannur, BSNL)vide letter dated 28.04.2012 produced at AnnexureA10. It was clarified that, as per orders contained in Corporate Office letter dated 28.03.2012, it had been indicated that appointments given under the 'direct recruitment outside quota' after tendering technical resignation by the employee cannot be treated as a promotion. Therefore, it was further explained that such employees are not entitled for exercising options for fixation of pay in terms of para 3.6 of corporate office order dated 07.05.2010 at AnnexureA1.
7. At this stage we have noted that the reference contained to a corporate office letter dated 28.03.2012 in the AnnexureA10 letter above is to a circular issued by the Corporate Office to all Heads of Telecom circles and administrative units of the BSNL. This circular was later produced by the respondents along with their reply statement at AnnexureR-2(a). However, the applicants did not produce this circular in OA No.180/00826/2017 -10- the O.A. Their ground for relief was that the refusal of the respondent to permit the applicants to exercise an option and have their pay fixed after reckoning their past service and pay in the cadre of TTA was illegal, arbitrary, unjust and discriminatory and violative of Articles 14 & 16 of the Constitution. It was submitted that all the applicants had applied for selection in the direct recruitment (DR) quota for JTO, through proper channel. They have all submitted a 'technical resignation', which was in such circumstances only a technical formality. In this connection, they have also produced a copy of memo dated 23.06.2010 at AnnexureA11. This memo was issued by the corporate office to all Heads of Telecom Circles, BSNL, under the subject of clarifications regarding extension of benefits to the internal officials selected against DR-JTO quota, who have applied through proper channel. It has been provided at Sl.No4/ of the memo against the issue of weather resignation from previous cadre may not be required and benefit of pay service be given for fixation of pay in JTO post and for carry forward of leave', as follows:-
'The officials appointed as DR JTO are entitled for benefits of past service, if otherwise admissible under rules, for fixation of pay in the post of DR JTO, treating the resignation as a technical formality. The pay is fixed under FR27. The leave will also be carried forward.' OA No.180/00826/2017 -11-
8. It is submitted at Ground 'B' in the OA that the above reference to FR-27 in the above clarification is perhaps misplaced or an error. FR-27 is in relation only to grant of pre-mature increments to a government servant on a time-scale of pay, if the authority has the power to create a post in the same cadre on the same scale of pay. The applicants submit that it is more likely the reference was being made to FR22(I)(a)(1) which deals with the regulation of the initial pay of a government servant who is appointed to a post in time scale of pay. It is submitted that the said rule provides that the initial fixation of pay holding a post, on being appointed as per the recruitment rules to another post for carrying duties and responsibilities of greater importance provides the employee an option to have pay fixed from the date of appointment or to defer the said fixation till the date of future increments. It is submitted that it is FR22(I)(a)(1) that is applicable, irrespective of appointment being one of promotion. It is also submitted that the applicants have got appointment in the direct recruitment quota on merit. Refusing them an option and consequential higher fixation of pay in comparison who are less meritorious and therefore finding their way to higher post by promotion is arbitrary and discriminatory. Further, the applicants are all having prior experience in the BSNL and cannot be treated at par with those who OA No.180/00826/2017 -12- are fresh entrants in service. Moreover, the respondents, as submitted earlier, had extended the benefit of option and consequential benefits in the case of other employees like them. In addition, in public sector undertaking of the Government of India, an existing employee appointed by direct recruitment to a higher post is treated as a promotee and given all consequential benefits. The applicants therefore seeks the following relief:-
(i) to direct the respondents to permit the applicants to opt deferring their revised fixation of pay in the scale of TTA & JTO to the date of appointment as JTO and to granted them fixation of pay at the stage Rs.22,820/- in the revised scale of Rs.16,400-40500 applicable to JTO with effect from their date of appointment as JTO with all consequential benefits including arrears of pay and allowance with interest at the rate of 12% per annum.
(ii) grant such other reliefs as may be prayed for and the court may deem fit to grant, and
(iii) to grant the costs of this original application
9. The respondents have filed a reply statement, in which at the outset, they have maintained that the OA is clearly barred by limitation. The grievance of the applicants was with regard to non-granting of an option to them, as provided in 3.6 of Annexure A-1, to defer their revised OA No.180/00826/2017 -13- fixation of pay in the TTA cadre while implementing the pay revision which according to them had resulted in reduction of their pay. They had made representations by Annexure A-7 and AnnexureA9 and similar representations in 2010 and 2012. These were answered and rejected by the respondents in the same years itself. Hence the applicants ought to have approached this Tribunal within one year from the date of rejection of the representations, which had given rise to the cause of action in the case. The reference to the pay fixation itself is only consequential. However the OA was filed only in September 2017 after a period of 5 years. The applicants have contended in the OA at paragraph 18 that the wrong fixation of pay amounts to a continuing cause of action and that the OA is filed within the limitation period. The respondents, however, state that this is incorrect. The applicants have slept over their rights since 2012 and are guilty of laches and not entitled to any relief. They have relied on S.S. Balu & another vs. State of Kerala & Others { 2009(2) SCC 479}, which held that 'Delay defeats equity. Relief can be denied on the ground of delay even though relief is granted to other similarly situated person who approached the court in time.' Further, in U.P. Jal Nigam & Another Vs. Jaswanth Singh & Another { 2006(11) SCC 464}, the Hon'ble Supreme Court had held that "When a person is OA No.180/00826/2017 -14- not vigilant of his rights and acquiesces with the situation and the acquiescence prejudices or there is change of position, such a person's writ petition cannot be heard after the delay on the ground that same relief should be granted as was granted to the persons similarly situated, but who were vigilant of their rights." Hence, it is submitted at the outset that this OA is liable to be dismissed on the ground of limitation.
10. However, inspite of the above contention the respondents have also controverted the facts and circumstances. It is submitted that AnnexureA1 pay revision order for non-executives with effect from 01.01.2007 which was issued by the BSNL vide office order dated 07.05.2010 provides provisions for various options as already indicated earlier. It is pointed out that in the case of the applicants herein, Clause 3.6 which provides this option is not applicable in view of the specific BSNL circular dated 28.03.2012 which was referred to in the letter addressed to the 1st applicant at Annexure A-10. It was clarified that the applicants had got selection as JTO in BSNL under outside direct recruitment quota and that the resignation tendered by the applications is treated as 'technical resignation' by the competent authority. It cannot however he treated as 'promotion'. A copy of the circular of corporate OA No.180/00826/2017 -15- office of BSNl dated 28.03.2012 has been produced at Annexure R2(a) along with reply statement, filed on behalf of respondents 2 & 3. In the Annexure R2(a) circular in relation to fixation of pay of JTOs selected against the DR quota who were earlier working as TTAs and who had applied through proper channel it has been stated that some doubts have been raised regarding applicability of provisions mentioned under para 3.6 of the office order produced at AnnexureA1 dated 07.05.2010 read with clarificatory order dated 18.05.2011. The circular goes on to state as follows:
'The matter has been examined and it is hereby clarified that the appointment given under direct recruitment outside quota after tendering technical resignation by the employee cannot be treated as promotion. Therefore, such employees are not entitled for exercising the option for fixation of pay in terms of the para 3.6 of this office order dated 07.05.2010.'
11. The applicants then applied for 'technical resignation'. The approval of competent authority was obtained for accepting the same.
They were then deputed for attending the 10 weeks JTO induction training. Regarding the pay issues pointed out by the applicants, it is submitted that, as on 01.01.2007, they had been drawing a pay of Rs.7700/- in the pre-revised pay scale for TTA's of Rs.7100-200-10100/-.
OA No.180/00826/2017 -16- nd On implementing the 2 IDA scale with effect from 01.01.2007, the pay of the applicants was fixed at Rs.16,900/- (68.8%)/ Rs.17,840/- (78.2%) in the scale of pay for TTA's of Rs.13600-25420/-, with date of next increment as 01.09.2007. Since all the applications got selection as JTO in the BSNL itself, though in 'outside recruitment quota', the competent authority extended approval for the technical resignation sought by them from the post of TTA with effect from 14.02.2009 so as to enable them to join the new post. On getting the appointment at JTO, after training, the pay of the 1st applicant in the cadre of JTO was fixed at Rs.19020/- in the scale of pay of Rs.16,400-40,500/- with effect from 25.05.2009, with annual increment date as 01.02.2010 duly counting the JTO training period. The pay of the 2nd applicant also fixed at Ra.19020/-. It is submitted that the fixation of pay of both the applicants on appointment at JTO had been done based on the guidelines issued by the BSNL Corporate Office in its letters dated 03.01.2012 and 19.03.2012. These letters stated that the fixation of pay of such officers should be done after considering five increments from the stage of Rs.16400/- in the scale of pay of Rs.16400-40500, which normally comes to Rs.19020/- only. However, later, this pay fixation was revised in respect of the 1 st applicant based on another circular dated 19.01.2016 vide pay fixation memo dated OA No.180/00826/2017 -17- 13.02.2017. Similar revision was done in case of the 2 nd applicant by pay fixation memo dated 07.04.2017.
12. It is submitted by the respondents that the averment of the applicants that they are entitled to the provision provided for option in clause 3.6 of AnnexureA1 office order is not correct in view of Annexure R2(a) order of BSNL Corporate Office dated 28.03.2012 referred to earlier. They had got selected as JTO in BSNL under 'outside recruitment quota'. The resignation tendered by them have been treated as 'technical resignation' by the competent authority. Further, their pay was revised as noted above by orders in respect of the 1st applicant dated 13.02.2017 produced at Annexure R2(j) and on 07.04.2017 in respect of the 2 nd applicant by Annexure R2(k). It is submitted that these orders were once again revised by yet another order dated 20.12.2017 for the 1 st and 2nd applicants. This time the respondents submit that they applied the benefits of pay protection to the internal officials selected against direct JTO quota as per BSNL Corporate Office order dated 20.05.2016. Copies of these re-revised pay fixation memos of the 1 st and 2nd applicants dated 20.12.2017 have been produced as AnnexureR2(m) and AnnexureR2(n).
OA No.180/00826/2017 -18-
13. It is further submitted that pay fixation on similar lines was done in the case of applicants at serial no.3 and 4, as done in the case of applicants at serial no. 1 & 2 vide AnnexureR2(o) and AnnexureR2(p). Hence, the respondents submit that the averment that there was no consistent manner of fixation of pay followed by them is no longer correct. It is submitted that, presently, there is consistency in the fixation of pay between the four applicants in view of these steps taken by them. Further, in relation of the fixation done the General Manager Telecom Circle, Kolar, produced at the AnnexureA6 series, it is submitted that the pay fixation the circle is of the year 2011 and would have been revised and refixed as per AnnexureR2(a) order of the Corporate Office. Hence, in light of these contentions, it is submitted that the pay of the applicants has been fixed in conformity with the orders in force. They are not entitled to get their pay fixed at Rs.22,820/- in the pay scale of Rs.16400- 40500 with effect from their appointment as JTO as is being claimed by them.
14. It may be argued that the reply statement filed by the respondents on 31.01.2019 perhaps did not address all the contentions which the OA No.180/00826/2017 -19- applicants have raised in the OA. However, later, at the time of oral submissions in the OA, some further contentions were brought forth by the learned counsel for the Respondents-2 &3 Shri George Kuruvilla. Learned counsel for the applicant Shri. M.R. Hariraj also submitted additional points. The Respondent No.1, Secretary, Ministry of Communications, however did not file any reply statement, except for Miscellaneous Application(MA) No.560/2020 seeking deletion from the party array of respondents. This was objected to by the applicants on the ground that action for revision of pay was taken based on instructions from the Union of India and thus the presence of the 1 st respondent was necessary for effective and complete adjudication upon all questions involved in the OA. Even otherwise, the MA for removing the 1 st respondent was moved as late as 11.09.2020, at a great length of time from admission of the OA on 16.01.2017. Hence, we have so far not passed any order on the MA No.560/2020 for deleting the 1st respondent filed through learned SPC, Shri N. Anilkumar.
15. A contention taken by the learned counsel for the applicants, Shri M.R. Hariraj is that AnnexureA11, letter of BSNL Corporate Office, which relates to extension of benefits to the internal officials selected OA No.180/00826/2017 -20- against DR-JTO quota who applied through proper channel, had an error at paragraph 4 as it indicated that such officials would be eligible/entitled for benefits of past service for fixation of pay in the post of DR, JTO by treating resignation as a 'technical formality' with the pay to be fixed under FR-27. It was contended, as mentioned earlier, that the reference should be FR 22(I)(a)(1). The benefit of extending an option for fixation from the date of joining has been given in other circles to other employees similar to these applicants as shown in the AnnexureA6 series. It is submitted that the applicants herein had also filed options for fixation of their pay from their date of joining as JTO. The AnnexureA11 letter has clearly indicated that the resignation, which the applicants had given, is only a 'technical formality'. Hence any 'sting' of resignation is taken away. Thus it is not correct to treat the applicants here on the same footing as the fresh direct recruits who have joined the service along with them. Learned counsel drew pointed attention to the provisions of FR22(I) which read as follows:-
" FR 22. (I) The initial pay of a Government servant who is appointed to a post on a time-scale of pay is regulated as follows: -
[(a) (1) Where a Government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or OA No.180/00826/2017 -21- appointed in a substantive, temporary or officiating capacity, as the case may be, subject to the fulfilment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time-scale shall be fixed by giving one increment in the level from which the Government servant is promoted and he or she shall be placed at a cell equal to the figure so arrived at in the level of the post to which promoted or appointed and if no such cell is available in the level to which promoted or appointed, he shall be placed at the next higher cell in that level.
Save in cases of appointment on deputation to an ex cadre post, or to a post on ad hoc basis or on direct recruitment basis, the Government servant shall have the option, to be exercised within one month from the date of promotion or appointment, as the case may be, to have the pay fixed under this rule from the date of such promotion or appointment or to have the pay fixed initially at the next cell in the level of the post to which he or she is promoted on regular basis and subsequently, on the date of accrual of next increment in the level of the post from which Government servant is promoted, his pay shall be re-fixed and two increments (one accrued on account of annual increment and the second accrued on account of promotion) shall be granted in the level from which the Government servant is promoted and he or she shall be placed, at a cell equal to the figure so arrived in the level of the post to which he or she is promoted; and if no such cell is available in the level to which he or she is promoted, he or she shall be placed at the next higher cell in that level...."
(emphasis added) OA No.180/00826/2017 -22-
16. It is submitted by the learned counsel for the applicants that the respondents are trying to deny the benefit of the option provided under FR 22(I)(a)(1) by maintaining that the applicants were not 'promoted' and hence, as per AnnexureR2(a) circular they are not entitled for exercising the option for fixation of pay in terms of the par 3.6 of AnnexureA1. They have stated that such appointment is under direct recruitment outside quota and that after tendering resignation it cannot be treated as promotion. However, FR22(I)(a)(1) has also given an option, as can be seen from above extract in the cases where the government servant is 'promoted' or 'appointed' in substantive, temporary, officiating capacity as the case may be. Hence, it is submitted that the use of the word 'appointment' in FR 22(I)(a)(1) is in favour of the applicants even if their recruitment to the post of JTO is not treated as 'promotion'. Thus it is submitted by the learned counsel for the applicant that their pay needs to be fixed under the provisions of FR22(I)(a)(1). In addition, it is pointed out that the reply statement of the respondents never mentioned anything about the AnnexureA11 order, which covers the case of the applicants.
17. Learned counsel for the respondent/BSNL contested the above OA No.180/00826/2017 -23- contentions. It is stated that Annexure R2(a) circular was issued on 28.03.2012 much after AnnexureA11 letter dated 23.06.2010, was issued. Hence, it was last clarificatory memorandum issued and guides the fixation of pay of the applicants. The fact of the matter is that appointment given to the applicants cannot be treated as akin to promotion as mentioned in Annexure R2(a). Further, the same FR 22(I)(a)(1) has a saving provision by which no option needs to be extended to those appointed on 'direct recruitment' basis. This is applicable to the applicants herein. The Annexure A-6 series, which has been relied upon by the applicants, clearly indicates that the officials therein had been 'promoted' as JTO and they have opted for pay fixation from the date of promotion. Hence, whether these employees are exactly on the same footing as the applicants is not clear. Even in the Annexure A-1 circular relied upon by the applicants in paragraph 3.6 has mentioned the date of promotion after 01.01.2007 in the matter of fixation of pay. It is submitted that the appointment of the applicants cannot be treated as a promotion but as an appointment under the direct recruitment quota with benefits of pay protection drawn in the TTA grade while fixing pay in the JTO grade. The pay of the applicants has been fixed on that basis as per the circular provided in the reply statement at OA No.180/00826/2017 -24- AnnexureR2(l) dated 20.05.2016. This circular has clearly stated that the pay in JTO grade will be fixed at a particular stage after giving pay protection in TTA grade or at the stage of Rs.19020/-, whichever is higher. Accordingly, the pay of the 1st and 2nd applicant have been fixed from 25.05.2009 and 20.07.2009 as per the date of appointment at Rs.19510/-, as had also been done in the case of the applicants at Sl.No.3 and 4.
18. Learned counsel for the BSNL also point out that the circular at AnnexureR2(a) which clearly states that the pay cannot be fixed after giving them an option in terms of para 3.6, was issued on 28.03.2012. The applicants, if aggrieved, should have made this an issue at the relevant time itself by filing an Original Application before the Tribunal. However, they did not file the OA within the due time period not did they attack the circular in their OA. The reply statement of the respondents has also pointed out that the representations made by the applicants were addressed by the AnnexureA8 or AnnexureA10 replies, issued in 2010 and 2012 itself. The applicants have strategically chosen not to make the circular or the replies the impugned orders, because they know that the OA can be then dismissed on the grounds of limitation. They have OA No.180/00826/2017 -25- obliquely brought them in as Annexures or not referred to them at all, as in the case of AnnexureR1(a) and have used some consequential and subsequent pay fixations as the basis. This is only a method used by them to skirt the issue of limitation. It is submitted that the Tribunal should not ignore this abuse of the process by the applicants. It is also further submitted that FR 22(b) does not apply in the case of the applicants unlike what was mentioned by learned counsel for the applicants. They had never sought fixation under FR 22(b) but only for grant of option. Respondents have taken into account the circulars at AnnexureR2(a) and AnnexureR2(l) while fixing the pay of the applicants, which is as per the existing orders in force in the organisation.
19. We have considered these contentions carefully. We do not find any case built by the applicant for consideration of their claim. As mentioned earlier by the respondents, the OA has sufficient elements and issues to warrant a clear rejection on the ground of limitation but the matter is examined on merit. Re-opening a closed chapter at this stage by a re-consideration of relevant circulars, which were never attacked by the applicants and by which, all the Directly recruited JTOs had got their pays fixed will invite major dislocation in the service cadre of JTOs OA No.180/00826/2017 -26- across the country. More importantly and crucially we find no inconsistency in the fixation of pay of the applicants at Rs.19,510/- from their dates of appointment. Their pay as TTA has been properly protected. Their appointment has to be taken as fresh appointment in the direct recruitment quota and cannot be treated as a promotion. They have been placed as JTO's in the eligible scale at the correct stage. We are not aware about how and in what circumstances the AnnexureA6 series of 'promotions' were issued. The respondents have hinted that there could be an element of error involved or that those placements were clearly borne out of promotions. Hence, we do not think that any error was committed by the respondents in the fixation of pay of the applicants. Also, the applicants have come to this Tribunal more than 5 years after their fixations were completed. This important consideration has not been lost sight by us while rejecting their case. However, as stated, even if this is a recurrent cause of action, it is not allowable after examination on merit.
20. Thus, on balance, after looking into the details that are made available including oral submissions made by both sides, we find that no case has been made that warrants interference on our part in favour OA No.180/00826/2017 -27- of the applicants. We find that circulars that have been provided by the respondents at AnnexureR2(a) dated 28.03.2012 and other relevant circular such as AnnexureR2(l) has to be the basis of the pay fixation. This overrides whatever else may be provided by the Fundamental Rules, in case there is an apparent contradiction, which we have not noticed. There are sufficient provisions in these Fundamental Rules and directions under them as well as 'saving' provisions to justify the action taken by the respondents.
21. The OA is accordingly dismissed. We make no order as to costs. MA No.560/2020 is also closed.
(Dated this the 22nd day of January, 2024)
K. V. Eapen Justice Sunil Thomas
Administrative Member Judicial Member
va
OA No.180/00826/2017
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List of Annexures
Annexure A-1- A true copy of the office order 10 of 2007 dated 07.05.2010.
Annexure A-2- The true copy of the order No. 1-11/2009- PAT(BSNL) dated 31.03.2009.
Annexure A-3- True copy of the order No. ESTT-CNN/IDA-
NE/PAY-REV dated 08.07.2010 issued to the 1 st applicant.
Annexure A-4- A true copy of the order No. BSNL/CAO Estt/Q.2661-68 dated 13.02.2017 issued to the 1st applicant.
Annexure A-5- True copy of the Memo N. 1-50/2008/PHT(BSNL) dated 10.06.2013.
Annexure A-6(a)- True copy of the memo No. E-16/Revised Pay/11-12/28 dated 01.11.2011.
Annexure A-6(b)- True copy of the memo No. E-16/Revised Pay/11-12/27 dated 01.11.2011.
Annexure A-6(c)- True copy of the memo No. E-16/Revised Pay/11-12/29 dated 01.11.2011.
Annexure A-7- True copy of the representation dated 20.07.2010 by the 1st applicant.
Annexure A-8- A true copy of the order No. 2661/33 dated 28.07.2010.
Annexure A-9- True copy of the representation dated 25.02.2012. Annexure A-10- True copy of the order No. Q-2661/52 dated 28.04.2012.
Annexure A-11- True copy of the Memo No. 5-31-2001-Pers. IV dated 23.06.2010.
***** Annexure R2(a)- True copy of order dated 28.3.12 of the BSNL Corporate Office, New Delhi Annexure R2(b)- True copy of letter of approval dated 15.4.09 in respect of the 1st Applicant Annexure R2(c)- True copy of letter of of approval dated 8.4.09 in respect of the 2nd Applicant OA No.180/00826/2017 -29- Annexure R2(d)- True copy of pay fixation memo dated 17.9.12 in the case of the 1st Applicant Annexure R2(e)- True copy of pay fixation memo dated 17.9.12 in the case of the 2nd Applicant Annexure R2(f)- True copy of order dated 3.1.12 of the BSNL Corporate Office, New Delhi Annexure R2(g)- True copy of order dated 19.3.12 of the BSNL Corporate Office, New Delhi Annexure R2(h)- True copy of order dated 19.1.2016 of the BSNL Corporate Office, New Delhi Annexure R2(i)- True copy of order dated 4.4..2016 of the BSNL Corporate Office, New Delhi Annexure R2(j)- True copy of pay fixation memo dated 13.2.2017 in the case of the 1st Applicant Annexure R2(k)- True copy of pay fixation memo dated 7.4..2017 in the case of the 2nd Applicant Annexure R2(l)- True copy of the BSNL Corporate Office Order No.5-31/2001-PERS-IV dated 20.05.2016 Annexure R2(m)- True copy of pay fixation memo dated 20.12.2017 in the case of the 1st Applicant Annexure R2(n)- True copy of pay fixation memo dated 20.12.2017 in the case of the 2nd Applicant Annexure R2(o)- True copy of pay fixation memo dated 01.03.16 in the case of the 3rd Applicant Annexure R2(p)- True copy of pay fixation memo dated 16.3.16 in the case of the 4th Applicant ****** OA No.180/00826/2017