Bharat Sanchar Nigam Ltd vs S. K. Koul And Ors on 4 December, 2012

[Cites 0, Cited by 4]

Jammu & Kashmir High Court

Bharat Sanchar Nigam Ltd vs S. K. Koul And Ors on 4 December, 2012

1. The instant writ petition preferred by Bharat Sanchar Nigam Limited is directed against order dated 09.10.2001 rendered by the Central Administrative Tribunal, Chandigarh Bench (Camp at Jammu) (for brevity the Tribunal) holding that once the recruitment year of the original applicantrespondents has been changed from 1989 to 1987 then they would be entitled to notional fixation of pay with effect from the date of their appointment to the cadre of Junior Engineers/Junior Telecom Officers (JTOs). The operative part of the directions issued by the Tribunal are discernible from para 7 of the judgment which reads thus:-

In view of the discussion above, we allow the O.A. filed by the present applicants with a direction to respondents to notionally give them fixation of pay with effect from the date of their appointment to the cadre of JEs/JTOs with grant of increments based on the same actual benefits shall be extended in terms of arrears etc. w.e.f. 31.10.1997 by working out the difference of pay and allowances to which the applicant would become entitled after re-fixation of their pay w.e.f. 1987 after recognizing the fact that they were in receipt of actual financial benefits on the said post w.e.f. 1993 only even though their earlier year of appointment was 1989. In specific facts of this case, we hold the applicants entitled to payment of interest @ 6% per annum on the entire amount of arrears upto the date of payment. Respondents shall comply with these directions within a period of 3 months from the date of receipt of copy of this date. No costs.

2. In order to decide the controversy it would be necessary to make a brief reference to the facts. The applicant-respondents filed OA no. 826/JK-98 before the Tribunal ascertaining that before becoming Junior Telecom Officers (JTOs) they were selected as Junior Engineers against 10% qualifying quota of the vacancies in the qualifying examination held in May, 1995. They also claimed that the Department of Telecom-Union of India vide order dated 30.03.1987 had ordered that all future recruitment was to be made only to the cadre of Junior Telecom Officers (JTOs) and that all incumbents were, accordingly absorbed in the cadre of JTOs instead of that of the 3 Junior Engineers. The post of JTOs was to be filled up from the existing incumbents and others in the cadre of Junior Engineers in the following order:-

(a) Officials belonging to S.G., of JEs Telecom as on 01.01.1986:

(b) Remaining officials in the order of seniority;

(c) Others to be appointed as JEs Telecom in accordance with para 4.5 above.

3. It was further clarified by the Department of Tele Communication vide order dated 28.11.1987 that the vacancies were not available in higher grade but were available in the lower grade. The qualified candidates were to be appointed as Junior Engineers initially and were to be absorbed as and when the vacancies become available in the higher grade from the date of availability of such vacancies. The other averments made reference to the instructions issued by the Department of Tele Communication on 19.09.1988. The original applicants further alleged that in the year 1988, applications for direct recruitment were called in violation of the standing order as direct recruitment was to be made only after absorption of the already qualified candidates like the applicants as was later on clarified vide order dated 24.04.1989 addressed to the Chief General Manager, Telecommunication, J&K Circle-respondent no. 3. The letter specifically stated 4 that fresh recruitment was to be made only after absorption of qualified candidates against 10% qualifying quota of the vacancies of Junior Engineers. In view of the aforesaid communication, the Chief General Manager, Telecommunication, J&K Circlerespondent no. 3 issued appointment orders to the original applicant-respondents showing their recruitment year as 1987 instead of 1989. In fact, the order dated 31.10.1997 was issued in pursuance of the direction issued by the Central Administrative Tribunal Principal Bench New Delhi on 16.01.1992 in OA no. 2431/1990. It was clearly mentioned that the original applicant-respondents were awaiting promotion to the cadre of JE/JTOs as on 30.03.1987 against 10% qualifying quota. However, the letter contained an offending clause which became subject matter of challenge before the Tribunal in the original application relatable to this writ petition. According to the offending clause no financial benefits were to be admissible to the original applicant-respondents in the cadre of JTOs in pursuance of change effected in the recruitment year.

4. The applicant took objection before the Tribunal that the original applicant-respondents could not be considered for any benefit as they had not undergone 5 pre appointment training prior to the year 1989. According to the petitioner, the conditions was clearly mentioned in order dated 31.10.1997 that the preappointment training is one of the pre-requisite condition in order to become eligible for appointment. The original applicants being not eligible were not entitled to any financial benefits.

5. The issue which has been considered by the Tribunal is that the petitioner could not have taken a contradictory stand. On the one hand they have considered the original applicants against 10% qualifying quota and also held that they were awaiting promotion to the cadre of JEs/JTOs as on 30.03.1987. On the other hand the original applicantrespondents are considered ineligible merely because they have made a claim before the Tribunal for defending the clause imposing the condition that no financial benefits are to be admissible to them. It was in these circumstances that the Tribunal observed that the present case to be one of those extraordinary cases where the original claim of the applicantrespondents for appointment to the cadre of JEs/JTOs with effect from 1987 has been accepted but the benefit of such appointment in financial term from the date they have been appointed are being 6 denied. In para 5 of the order the Tribunal has reached the following conclusion on facts:-

Now that respondent department has given them year of allocation of appointment as JE/JTOs w.e.f. 1987, they cannot be allowed to take divergent stand on the same issue i.e. (a) for appointment of applicants they have recognized them to be fully qualified and (b) for grant of financial benefit they are prepared to treat them as not qualified. In such a situation it has to be deemed that they have qualified in the training in their case; as has actually been treated by the respondents departmentwhich makes them qualify it for such appointment even if the training may have been undergone by them in the year 1989. On the peculiar facts of this case, this can be treated as passing of a training following their appointment w.e.f. 1987.

6. We have heard learned counsel for the parties.

7. It has come on record that the original applicantrespondents have now been accepted as recruits of the year 1987 by changing their earlier year of recruitment of 1989. The conclusion of the Tribunal on facts could not be successfully disputed by Mr. Salathia, learned counsel for the petitioner. The original applicants have been accepted to be fully qualified for their absorption as JEs/JTOs with effect from 1987. However, the defence of pre-appointment training course has been proferred to defeat the claim for financial benefits. The Tribunal has rightly held that either the original applicants could not be regarded as eligible for promotion as JEs/JTOs with 7 effect from 1987 on the ground of lack of preappointment training or they would be acceptable even for the purpose of granting financial benefits.

The inherent contradiction in the stand taken by the petitioner has been resolved by the Tribunal in favour of the original applicants by holding the original applicant-respondents were eligible for appointment with effect from the year 1987 and consequentially entitled to the notional benefits. According to the direction issued by the Tribunal the applicant is required to notionally give them the fixation of pay with effect from the date of their appointment to the cadre of JEs/JTOs. There have been held entitled to grant of increments in terms of arrears with effect from 31.10.1997 by working out the difference of pay and allowances to which they would become entitled after re-fixation with effect from 1987. Accordingly, we regret our inability to accept the argument raised on behalf the petitioner. The notional benefit granted by the Tribunal shall be released to the original applicants-respondents as expeditiously as possible preferably within a period of two months from the date a copy of this order is received by the applicants.

8. The writ petition stands disposed of.

(Hasnain Massodi) (M. M. Kumar)  
      Judge        Chief Justice
Jammu,  
04.12.2012 
Parshant

Unlock Advanced Research with PRISMAI

Jammu & Kashmir High Court