Central Administrative Tribunal - Cuttack
Hemanta Kumar Pani vs Department Of Posts on 18 December, 2024
1 OA 288 of 2021
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
OA No. 288 of 2021
Reserved on : 17.12.2024 Pronounced on : 18.12.2024
Coram : Hon'ble Mr.Sudhi Ranjan Mishra, Member (J)
Hon'ble Mr.Pramod Kumar Das, Member (A)
1. Hemant Kumar Pani, aged about 59 years, S/o Late Jogeswar Pani, at present working as Postal Assistant, CPU, Office of the Chief Post Master General, Odisha, Bhubaneswar - 751001, District - Khurda.
2. Prakash Chandra Patnaik, aged about 58 years, S/o Late Adikanda Patnaik, at present working as Supervisor (SBCO), Head Post Office, Puri - 752001, District - Puri.
3. Subodh Chandra Barei, aged bout 58 years, S/o Late Lalchand Barei, at present working as Supervisor (SBCO), Jeypore HPO - 764001.
4. Abhaya Kumar Parida, aged about 62 years, S/o Late Judhistir Parida, Retired Postal Assistant (SBCO), Cuttack GPO, R/o Plot No. 3D/1138, Sector-11, CDA, Cuttack -753015.
5. Nirmal Chandra Tripathy, aged about 62 years, S/o Late Parsuram Tripathy, Retired Postal Assistant (SBCO), Cuttack GPO, at present residing in Plot No. 809, Patia, Bhubaneswar - 751031.
6. Hiranya Kumar Pradhan, aged about 60 years, S/o Late Purusottam Pradhan, retired Supervisor, SBCO, Athagarh HPO, at present residing at Mahisapal, near Synergy Engineering College, Dhenkanal - 759003.
7. Bhaskar Swain aged about 61 years, S/o Late Nityananda Swain, Retired Postal Assistant (SBCO), Puri HPO at present R/o Village - Rushipada, Post - Banisahi, Puri - 752002.
8. Braja Kishore Samantray, aged about 62 years, S/o Late Rajanikanta Samantray, retired Postal Assistant (SBCO), Berhampur (gm) HPO, at present R/o Lakshmi Narayan Nagar, 2nd Phase, Ankuli, Berhampur, Ganjam - 760010.
9. Rasananda Pradhan, aged about 62 years, S/o Late Sarat Chandra Pradhan, retired Supervisor, SBCO, Sambalpur HPO at present R/o Parachhat, Post - Kantiapashi, Via - Talcher, Dist. - Anagul - 759100.
10. Rabindra Nath Mahanta, aged about 61 years, S/o Late Ranjit Mahanta, retired Supervisor (SBCO), Baripada HO, at present R/o Post - Khadikapada, Via - Machhagarh, Dist. - Keonjhar - 758081.
11. Naresh Chandra Singh, aged about 60 years, S/o Late Danga Lal Singh, retired PA (SBCO), Baripada, at present R/o Tulasichoura, Ward No. 23, Baripada, Dist. - Mayurbhanj - 757001.
2 OA 288 of 2021
12. Surendra Nath Singh, aged about 62 years, S/o Late Ruhidas Singh, retired PA (SBCO), Balasore HO, at present R/o Post - Bidukudia, via - Baisinga, District - Mayurbhanj - 757028.
13. Anirudha Acharya, aged about 60 years, S/o Late Bholanath Acharya, Accounts Officer, Office of the CCA, Odisha Telecom Circle, Bhubaneswar, at present R/o Qr. No.6-Type-IV, P&T Colony, Unit-IV, Bhubaneswar-751001.
14. Prafulla Chandra Behera, aged about 67 years, S/o Late Baishnaba Behera, retired Postal Assistant (SBCO), Berhampur, at present R/o 7/211, Sadananda Vihar, Gosani Nuagaon, Berhampur - 760003.
15. Debraj Behera, aged about 67 years, S/o late Parsu Behera, retired Postal Assistant (SBCO), Bhanjanagar HPO, at present R/o Basanta Bihar, Lochha Pada, Berhampur - 760001.
......Applicants VERSUS
1. Union of India represented by Secretary, Department of Post, Dak Bhavan, New Delhi - 110001.
2. The Chief Post Master General, Odisha Circle, Bhubaneswar - 751001.
3. The Director of Accounts (Postal), Mahanadi Vihar, Cuttack - 753004.
......Respondents
For the applicant : Mr.Trilochan Rath, counsel
For the respondents: Mr.A.C.Deo, counsel
O R D E R
Hon'ble Mr.Sudhi Ranjan Mishra, J.M.
The present OA has been filed by 15 applicants, some of them were retired by the time this OA was filed and some of them by now retired from service, while working in the Postal Department. The applicants have jointly filed the present OA inter alia praying for a direction upon the respondents to grant them financial upgradation under TBOP (Time Bound One Promotion) (after completion of 16 years of service) and BCR (Biennial Cadre 3 OA 288 of 2021 Review) (after completion of 26 years of service) w.e.f. the date from which their juniors were granted such financial upgradation by quashing the order dated 31.12.2020 (Annexure A/19), 22.3.2021 (Annexure A/22), 1.6.2021 (Annexure A/23) and 2.6.2021 (Annexure A/24) and consequently revise/refix their pay, pension and other pensionary benefits. They have also prayed to direct the respondents to refund the amount recovered/withheld from their gratuity.
2. According to the learned counsel for the applicants all of them entered service as Lower Division Clerk (LDC in short) ranging from 1982 to 1984 in the Savings Bank Control Organization (SBCO in short) in different Post Offices in Odisha Circle. The Department of Pots introduced the scheme known as TBOP for giving one financial upgradation after completion of 16 years of service w.e.f. 30.11.1983. But the same scheme was not made applicable to the employees working in SBCO Branch Post Offices.
The Dandakaranya Development (DNK) Project was closed in the year 1987. The teachers working in the DNK Project were redeployed in the Odisha Postal Circle as LDC in the SBCO in different Post Offices. The TBOP scheme which was extended to the Postal Assistants w.e.f. 30.11.1983 was extended to the SBCO staff w.e.f. 1.8.1991 onwards vide order dated 26.7.1991. The posts of LDCs and UDCs working in SBCO were merged together and designated as Postal Assistant w.e.f. 1.8.1991 While the matter stood thus, the Government of India introduced another scheme known as Biennial Cadre Review (BCR) w.e.f. 1.10.1991 for granting another financial upgradation after completion of 26 years of service. It was decided by the DGP vide order dated 8.2.1996 that UDCs in 4 OA 288 of 2021 Circle Office and SBCO, LSG PO and RMS Accounts, whose seniority was adversely affected by implementation of the BCR scheme placing their juniors in the next higher scale of pay, will be considered for next higher scale from the dates their juniors became eligible for that scale of pay. However, it was not made applicable to the4 officials who are senior to those officials brought on transfer under Rule 38 of P&T Manual Vol. IV. It was further decided vide letter dated 1.1.1998 that senior officials would however, be entitled to claim promotion with reference to their juniors, if the juniors were brought to that unit under Rule 38 of P&T Manual Vol. IV in a lower grade.
The redeployed staff of DNK Project who were LDCs and were junior to all the applicants were given TBOP and BCR benefits vide order dated 16.8.2005 and 10.1.2006 after completion of 16 & 26 years of service from the dates they were appointed in the DNK Project in compliance of the order of this Bench dated 7.10.2004 passed in OA 406/2003. Some of the staff who were similarly situated to that of the present applicants had approached this Bench in OA 329/2000 seeking direction to the respondents to extend the benefit of the circular dated 1.1.1998 w.e.f. 26.6.1993 as per the BCR scheme. The said OA was dismissed by this Bench on 11.1.2005. The applicants therein challenged the order of this Tribunal before the Hon'ble High Court of Orissa in WP(C) No. 14649 of 2005 which was allowed by the Hon'ble High Court of Orissa vide order dated 11.7.2008. The said order was challenged by the respondents department before the Hon'ble Supreme Court of India in SLP(C) No.32667 of 2009 and the SLP was dismissed vide order dated 13.9.2010.
5 OA 288 of 2021 Subsequently 30 similarly placed employees/LDCs/UDCs filed OA 471/2009 before this Bench which was allowed on 14.3.2011 and on challenge the same was upheld by the Hon'ble High Court of Orissa in WP(C) No.16239/2011 dated 22.8.2011. Thus the CPMG of Orissa Circle, Bhubaneswar vide order dated 24.1.2013 granted the BCR benefit to similarly placed 52 officials w.e.f. 26.6.1993 i.e. the date when one K.C.Parida who was junior to those 52 officials was granted the benefit of BCR.
The Hon'ble High Court of Madras also vide order dated 26.7.2006 in WP No. 1690 & 1790 of 2001 (Annexure A/11) directed allowing the benefit of TBOP and BCR from the dates when their juniors were given the said benefits. The said order was also confirmed by the Hon'ble Apex Court vide order dated 9.7.2009 in SLP (C) Nos. 909-910 of 2008 (Annexure A/13). Similar relief was also granted to the seniors by the Hyderabad Bench of this Tribunal in order dated 12.7.2011 which was finally upheld by the Hon'ble High Court of Hyderabad and Hon'ble Apex Court vide order dated 13.2.2017. Hon'ble High Court of Calcutta has also allowed the prayer of the applicants therein vide order dated 13.8.2005 in WPCT No. 553 of 2005 (Annexure A/26). The said order was also implemented by the respondents department.
It is submitted that vide order dated 22.11.2017 the CPMG, Orissa Circle, Bhubaneswar granted the financial upgradation under BCR scheme to all these applicants w.e.f. 1.7.1995 i.e. the date when their junior Dinabandhu Saran (redeployed teacher of DNK Project) as granted. But such order was illegally and arbitrarily withdrawn vide order dated 2.6.2021 as 6 OA 288 of 2021 per the Postal Directorate's order dated 1.6.2021. Consequently pay and allowances of these applicants were reduced and the recovery of excess payment was made from their salary as well as retirement dues. The sole ground in withdrawing such benefit is that the applicants being erstwhile LDCs cannot claim parity with the LDCs who were brought on transfer under Rule 38 of P&T Manual, Vol. IV and thus were not to be considered as per instructions of the department in vogue.
According to the learned cousnel for the applciants, the ground based upon which such adverse decision was taken is not sustainable in the eyes of law because after merger of the cadres w.e.f. 1.8.1991 the LDCs and UDCs became Postal Assistants. The employees who were absorbed in the Postal Department were not brought from DNK Project under Rule 38 of P&T Manual, Vol. IV. It is submitted that similar questions were already considered in previous orders of different Courts and finally similarly situated employees were granted the benefit and therefore the applicants are entitled to the relief claimed in this OA.
3. The respondents have filed ther counter contesting the case of the applicants and objecting to the relief sought by the applicants in the OA. The stand taken in the counter has been reiterated by the learned counsel for the respondents in course of hearing stating inter alia that the applicants entered into Department of Posts as LDC in SBCO during the period from 1982 to 1984 in the scale of pay Rs.260-400 (3rd CPC) later revised to Rs.950-1500 (4th CPC). The promotional post of LDC (SBCO) was UDC (SBCO) in the scale of pay Rs.1200-2040/-. The Department of Posts introduced TBOP/BCR scheme (Time bound One Promotion/Biennial Cadre 7 OA 288 of 2021 Review) scheme for career advancement of the Group C and D officials giving financial upgradation to the officials who completed 16/26 years of satisfactory service. For SBCO staff the TBOP scheme was introduced by the department w.e.f. 1.8.1991 and BCR w.e.f. 1.10.1991 respectively with certain terms and conditions.
As per the provisoins of both the schemes post of LDC, SBCO in the scale of pay Rs.950-1500 and its promotional post of UDC, SBCO scale of pay Rs.1200-2040 were merged and re-designated as Postal Assistant (SBCO) scale of pay Rs.975-1660. All UDCs/LDCs, SBCO were to opt for the TBOP/BCR scheme to avail the benefits of next financial upgradation after completion of 16/26 years of service leaving aside those UDCs/LDCs who opt to remain in their own cadre. Those UDCs/LDCs were not considered eliible for financial upgradation under BOP/BCR scheme.
Since the financial upgradation was given on the basis of length of service of officials, it was noticed that some senior officials with less years of service were deprived of the benefit. After due consulation with the Ministry of Finance, the Directorate modified the scheme vide letter dated 8.2.1996, further modified vide letter dated 5.8.1997 and again vide letter dated 1.1.1998. Finally Directorate vide letter dated 17.5.2000 clarified that the placement under TBOP/BCR scheme are based on the length of service of the official concerned and not on the criterion of seniority. Seniors in the Gradation List therefore cannot claim higher scale of pay at par with their juniors, if their juniors got higher scale of pay by virtue of their completion of the prescribed period of service i.e. 16/26 years respectively. By issuing this clarification the Directorate withdrew the earlier circulars vide letter 8 OA 288 of 2021 dated 8.2.1996, 5.8.1997 and 1.1.1998 giving financial upgradation to seniors at par with their junior under certain conditions. The Directorate reconsidered the matter and issued instructions vide letter dated 8.5.2017 withdrawing the Directorate's order dated 17.5.2000 thereby only reviving the instructions issued earlier vide Directorate's letter dated 8.2.1996, 5.8.1997 and 1.1.1998.
Consequent upon the closure of DNK Project, some of its employees were declared surplus and redeployed in different Central Government offices inluding the Postal Department. One Dinabandhu Saran (a teacher in DNK Project) appointed w.e.f. 1.4.1969 was redeployed in SBCO, Department of Posts as LDC (SBCO) on 8.10.1987. Since he was redeployed from other department, he took the lowest position in the gradation list as on 8.10.1987. As he was not granted financial upgradation under TBOP/BCR scheme, he approached Cuttack Bench of this Tribunal in OA 406/2003 for counting his past service rendered in the DNK Project for grant of financial upgradation under TBOP/BCR scheme. This Triubnal vide judgment dated 7.10.2004 accepted the contentnion of the oficial which was later approved by the Directorate vide letter dated 8.4.2005 for implementation on personal basis. After completion of 16/26 years of service rendered in DNK Project and Department of Posts taken together, Dinabandhu Saran was granted financial upgradation to the next higher scale of pay under TBOP and BCR scheme vide order dated 10.1.2006 and 16.8.2005 respectively.
After issuance of Directorate's letter dated 8.5.2017 an employee who was erstwhile LDC/UDC (SBCO) senior to Dinabandhu Saran, represented 9 OA 288 of 2021 for financial upgradation to the next higher scale of pay under BCR scheme at part with Dinabandhu Saran. Accordingly, 100 SBCO officials who were LDC/UDC cadres on or before the date of implemntation of TBOP/BCR scheme and opted for the same, were granted financial upgradation in the higheer scale of pay at par with their junior Dinabandhu Saran. Again representations from some SBCO officials were received with same prayer and their cases were forwarded to the Directorate seeking clarification as to their eligibility for such financial upgradation. Directorate vide letter dated 14.6.2018 reiterating the earlier instruction vide letter dated 8.5.2017 clarified that 'no fresh change has been made in TBOP/BCR schemes' and to treat the case of Dinabandhu Saran, Ex-PA, SBCO similar to a Rule 38 transferee though in fact he joined the department on redeployment from DNK Project. Accordingly financial upgradation under TBOP scheme was granted to 51 SBCO officials who were erstwhile UDCs w.e.f. 1.8.1991. Thereafter in pursuance of Directorate's letter dated 18.10.2018 as well as to comply the objections raised by DA(P) Cuttack financial upgradation under BCR scheme granted to 34 PA (SBCO) officials (erstwhile LDCs) was withdrawn vide letter dated 31.12.2020 of Circle Office, Bhubaneswar. It was also ordered threin that the arrear arising due to such withdrawal shall not be recovered till receipt of clarification from the Directorate. The clarification was received vide letter dated 1.6.2021 and accordingly Circle Office vide letter dated 2.6.2021 issued instructions for re-fixation of pay and to recover the excess paid amount if any, from the above 34 officials. Being aggrieved by such decision 10 OA 288 of 2021 of the competent authority, 14 our of those 34 officials have filed the present OA.
Learned counsel for the respondents also submitted that the judgments relied upon by the applicant are not above the judgment of Hon'ble Apex Court dated 13.9.2010 passed in SLP (C) No. 32667 of 2009 arising out of WP(C) No. 14649 of 2005 of Orissa High Court along with SLP(C) No. 18019 of 2006 arising out of Calcutta High Court's order, wherein the Hon'ble Apex Court has been pleased to dismiss the SLP(C)s observing that the order shall nto be treated as precedent for any other purposes. Therefore the employees coming to the Court after 13.9.2010 will not get the benefit in view of the Hon'ble Apex Court's order. The applicants have also placed reliance on the case of Rafiq Masih vide Apex Court's order dated 18.12.2014. The said case is not applicable to the present OA by virtue of subseqent modified order in Rafiq Masi case.
Hence it is submitted by the respondents that in view of the fact that since the present OA is filed after 13.9.2010 the date on which Hon'ble Apex Court has passed the order, the present applicants are not entitled to get the benefit of TBOP & BCR scheme and as such this OA being devoid of merit is liable to be dismissed.
4. We have examined the arguments advanced by the respective parties with reference to the pleadings made in the OA, counter, rejoinder, reply to rejoinder and the documents placed in support thereof.
5. It is seen from the record that in a similar case Hon'ble High court of Odisha vide order dated 11.7.2008 passed in WP (C) No.14649 of 2005 issued directions to the respondents for extending the benefit of BCR to the 11 OA 288 of 2021 applicants therein w.e.f. the date their junior was so granted. The said judgment was challenged by the respondents before Hon'ble Apex Court by filing SLP (C) No. 32667 of 2009 which was disposed of along with SLP (C) No. 18019 of 2006 arising out of a similar judgment of High Court of Calcutta and the said SLP was dismissed on 13.9.2010. Hon'ble High Court of Orissa has also reiterated the said order dated 11.7.2008 passed in WP(C) No.14649 of 2005 in WP (C) No. 16293 of 2011 filed by the department against about 29 similarly placed officials of Orissa Circle by dismissing the writ petition on 22.9.2011.
6. CAT, Calcutta Bench vide order dated 16.8.2004 passed in OA 1148/2003 observed that all the applicants therein were earlier LDCs redesignated as Postal Assistant (SBCO) in West Bengal Circle. They were aggrieved for non-promotion to BCR when their juniors were given such promotion. CAT, Calcutta Bench in the light of the judgment of Hon'ble Apex Court in the case of Union of India -vs- Leelamma Jacob [(2003) 12 SCC 280] directed the respondents to give financial upgradation/promotions under BCR scheme to all the applicants therein within a period of four months from the date of the order.
When this order was challenged before Hon'ble Calcutta High Court in WPCT No. 553 of 2005, Hon'ble Calcutta High Court vide order dated 23.8.2005 upheld the orders of CAT, Calcutta Bench and directed the department to implement the order of the Tribunal dated 30.11.2005. The said order of Hon'ble Calcutta High Court was challenged before Hon'ble Supreme Court of India in SLP (C) No. 18019 of 2006 which was dismissed on 13.9.2010. The department implemented the order of CAT, Calcutta 12 OA 288 of 2021 Bench by giving promotions to similarly placed officials of West Bengal Circle.
7. CAT, Chennai Bench vide order dated 6.7.2000 and 14.8.2000 passed in OA 253/1999 and OA 231/1999 has held that the applicants therein are entitled to claim promotion to the next higher grade i.e. lower selection grade under TBOP scheme w.e.f. 21.10.1996 and 25.12.1996 respectively on the ground that their juniors were promoted to the next grade. When the decision was challenged by the department before Madras High Court, Hon'ble High Court of Madras vide order dated 26.7.2006 in WP No. 1690 & 1790 of 2001 has held as under :
"We do not find any error in the orders of Tribunal dated 6.7.2000 and 14.8.2000 passed in OA No. 253 and 231 of 1999 respectively. Therefore the writ petitions fail and they are dismissed."
This order was challenged before the Hon'ble Apex Court in SLPs No. 909-910/2008 which were finally dismissed vide order dated 9.7.2019 directing the department to release the monetary benefits if any remaining unpaid within three months from the date of receipt of the copy of the order. The judgment of Hon'ble High Court of Madras was implemented by Tamilnadu Circle vide order dated 27.2.2009.
8. Hon'ble High Court of Judicature, Hyderabad passed orders on 9.4.2015 for giving financial upgradations to the seniors from the dates from which their juniors were given such financial upgradations under BCR scheme. The department challenged this order before Hon'ble Apex Court in SLP (Civil) No. 35654 of 2015. Hon'ble Apex Court vide order dated 13.2.2017 by taking into consideration the commitment of the department that benefit of the judgment shall be extended to all such similar employees 13 OA 288 of 2021 directed the department to extend the benefit arising out of the judgment to all similarly situated employees within a period of twelve weeks.
9. CPMG West Bengal Circle vide memo dated 14.12.2015 passed orders for financial upgradation of 16 similarly placed officials under TBOP/BCR scheme w.e.f. 1.8.1991 and 1.7.1999 respectively i.e. from the date their immediate junior was granted such benefits in accordance with the order dated 29.8.2013 passed by CAT, Calcutta Bench in OA 1108 of 2008.
10. Hence the main controversy is with regard to entitlement of the erstwhile LDCs to get the benefit of TBOP/BCR at par with their juniors who had come on transfer under Rule 38 of P&T Manual, Vol. IV. It is not disputed that the applicants are similarly situated with that of the applicants before the Hyderabad Bench as well as in OA 1148/2003 before Calcutta Bench and therefore rightly they were extended the benefit of TBOP and BCR at par with their junior Dinabandhu Saran. Hence withdrawing such benefit is bad in law since the issue has already attended finality vide order dated 13.2.2017 (Annexure A/14). Moreover when the respondents have committed before the Hon'ble Apex Court that the benefit of the judgment shall be extended to all such similar employees who are similarly situated, they cannot deny the same and withdraw the benefits already granted to the present applicants.
11. In view of the above discussion, the OA is allowed. The orders under Annexure A/19, A/22, A/23 and A/24 are quashed. The respondents are directed to grant financial upgradations to the applicants under TBOP scheme after completion of 16 years of service and under BCR scheme after completion of 26 years of service from the dates from which their juniors are 14 OA 288 of 2021 granted such financial upgradations. The respondents are also directed to revise/refix the pay and consequently revise the pension and other retirement benefits of the applicants and refund them the excess amount recovered/withheld from their gratuities, etc. The entire exercise be completed within three months from the date of receipt of the order.
12. There shall be no order as to costs.
(PRAMOD KUMAR DAS) (SUDHI RANJAN MISHRA) MEMBER (A) MEMBER (J) Indrani/PPS