Central Administrative Tribunal - Madras
All India Bsnl Pensioners Welfare ... vs Bharat Sanchar Nigam Ltd on 16 February, 2023
1 OA 430/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA NO.430/2018
Dated 16th day, the Thursday of February Two Thousand Twenty Three
CORUM: HON'BLE MR. T.JACOB, ADMINISTRATIVE MEMBER
&
HON'BLE MS. LATA BASWARAJ PATNE, JUDICIAL MEMBER
1. All India BSNL Pensioners' Welfare Association,
Chennai Telephone Circle, rep by its Circle Secretary
S.Thangaraj, S/o Late Samiyadian having office at
No.12-B, Sri Krishna Nagar,
Mannivakkam, Chennai 600 048.
2. G.Jayakumar, S/o Late K.Govindaraj
Plot No.237/10, 1st Floor,
39th Street, 8th Sector, K. K. Nagar,
Chennai - 600 078.
3. P.Srinivasan, S/o Late R.Ponuuswamy
Plot No.13, 3rd Street,
Meenakshi Nagar,
Mangadu, Chennai - 600 122.
4. V.Dhandapani, S/o Late G.Venkatraman
B-177, 8th Cross Street, Ranga Reddy Garden,
Neelangarai, Chennai - 600 115.
5. M.Padmanabhan, S/o Late Munuswamy,
# 37, Sarada Nagar, 3rd Street, Korattur,
Chennai - 600 076.
2 OA 430/2018
6. R.S.Vijayalakshmi, W/o Sri. K.Mohanasundaram
New No.31, Old No.28, 3rd Street, Kamaraj Nagar,
Chennai - 600 082. ...Applicants
By Advocate M/s P.Ebenezer Paul
Vs.
1. Union of India,
Ministry of Communications,
Rep. by Its. Secretary,
Department of Telecommunications,
Sanchar Bhavan, Asoka Road,
New Delhi 110 001
2. The Chairman cum Managing Director,
Bharat Sanchar Nigam Limited,
Bharat Sanchar Bhavan,
Harish Chander Mathur Lane,
Janpath, New Delhi - 110 001.
3. The Chief General Manager,
BSNL Chennai Telephones,
78, Purasawakkam High Road, Chennai - 600 010.
4. The Deputy General Manager (HR&Admn),
BSNL Chennai Telephones,
10, Millers Road, Chennai - 600 010. ...Respondents
By Advocate Ms.Shakila Anand (R1)
Ms.Sunita Kumari (R2-4)
3 OA 430/2018
ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following relief:
"to call for the records relating to the orders of the 2nd respondent passed in his proceedings bearing no. 22-47/1993-TE-II Dated 30.11.2004 issued by 2nd respondents and consequential proceedings issued by the 4th respondent bearing no. No. AST / TOA (G) - 17 B/CAT/PT/04-05/12 dated 23-12-2004, AST/TOA(G)- 17B/ CAT/PT/04-05/13 dated 4-1-2005 and AST / Sr. TOA(G) Not applied Court Case /14 dated 31.08.2017 and quash the same and direct the respondent 1 to 4 to extend all benefits in TOA Cadre pay scale of 1600-2660 with effect from 10.09.1992 as per the 2nd respondent Lr. Dt.24.02.2004 and 28.04.2004 and to extend in BCR Grade - III Sr.TOA (Restructured cadre) pay scale of Rs. 5500-9000 in accordance with DOT Letters dated 20.04.1999 & 28.09.2000 to the applicants from 01.12.1998 or the dates in which the respective applicants entered into the restructured cadre, whichever is later and give them the promotion as per the orders of the 4th respondent bearing AST / TOA (G) - 17B / CAT / 2008 -16 / VOL II / 20 dated 10-1-2017 and pay all consequential benefits including revision of pension and thus render justice."
2. The brief facts of the case in nutshell are as under:-
The 1st applicant is an association "Affiliated Circle branch of All India BSNL Pensioners' Welfare Association" registered under the Societies Registration Act was formed for redressing the grievances of the pensioners of Chennai Telephones residing in Chennai. Applicants 2 to 6 are retired Upper Division Clerks (UDCs) and drawing pension under Rule 37(a) of CCS Pension Rules, 1972 and they are the life members of the 1st applicant Association.
Applicants 2 to 6 were appointed as Lower Division Clerks (LDCs) between October 1976 to 1982 and all of them passed type writing test conducted by the erstwhile Post and Telecommunication Department, Govt. of India. On completion of five years of qualifying service in the cadre of LDC they appeared for the merit rating test conducted by the Department of Posts and 4 OA 430/2018 Telecommunication for the post of UDC and after passing the test (merit) they were promoted as UDC. Those who are found fit by the Departmental Promotion Committee under seniority cum fitness quota they were appointed as UDC against the sanctioned post prior to 09.09.1992. They held lien in the LDC cadre till they were substantially appointed in the UDC cadre. Their pay scale was fixed in the year 1986 under 4th Central Pay Commission (CPC) recommendations. Their pay was fixed from 01.01.1986 as follows:
Rs.950-20-1150-25-1500. UDC's Rs. 1200-3=-1560-40-2040. 2.1. On 09.09.1992, an order was issued by the 1st respondent Telecom Department converting the clerical staff in the administrative office from LDC/UDC pattern to Telephone Office Assistant (TOA) by accepting the long pending demand from the Staff Union. Due to the electronic exchanges and scrapping of the local exchanges a large number of telephone operators became surplus and the need of clerical staff has been increased. Therefore, the department utilised the surplus telephone operators in TOA cadre who have the same scale of pay. It was decided to count the services in the existing LDC/UDC cadre in circle office/metro district, etc to TOA cadre in the following manner:
Sl.No. Designation Stage of Entry Pay Scale
1 TOA (Gen) Gr-I Basic Cadre Rs. 975-1660
2 TOA (Gen) Gr-II OTBP pay scale / Rs. 1400-2300
Section Supervisor
3 TOA (Gen) Gr-III BCR Scale / Section Rs. 1600-2660
Supervisor
4 TOA (Gen) Gr-IV 10% Posts of BCR Rs. 2000-3200
5 OA 430/2018
posts
2.2. The LDCs, UDCs were given option either to remain in LDC-UDC cadre or to switch over to the new cadre of TOA within a period of three months from the date of that order. This conversion was proposed to ensure corresponding matching savings and to avoid extra liabilities to the Government. These applicants were originally employed in the erstwhile department of Telecommunications however subsequently the said department was corporated as BSNL under Company Act 1956 in the year 2000 and after obtaining options from the employees their services were transferred to BSNL. Accordingly the applicants have become the employees of the BSNL after the creation of the company. In the year 1983, the Department of Telecommunications introduced viz no.1 Those persons who have served in the same cadre for 16 years be given One Time Bound Promotion, i.e., OTBP and 2. Those persons who have served for 26 years to be given Biennial Cadre Review (BCR) promotion taking into account their length of service. In the above mentioned scheme, the person who have neither qualified nor passed in the departmental test for UDC were promoted as Group 2 & 3 in the restructured cadre on the basis of their length of service without considering the employees who have completed successfully the departmental test for the post of UDC.
2.3. As the applicants have not completed 16 years of combined service as LDC & UDC on 09.09.1992, the date of introduction of TOA staff pattern they were placed in TOA Grade I scale of pay Rs.975-1660, shortage of pay drawn earlier protected under personal pay and on completion of 16 years they were placed in Rs.1400-2300 pay scale under FR-22(C) treating this as 6 OA 430/2018 promotion to higher scale involving higher responsibilities, vide para 8(r) of the DOT letter dated 09.09.1992 which reads as, "the UDCs rank en-bloc seniors to all the LDCs as on date. The inter-se seniority will remain as it is". 2.4 By an order of DOT 19-4/93-TE-II dated 12.10.1993 which reiterate its earlier order dated 20-05-1993, wherein induction of the OTBP/BCR officials into newly restructured cadres of Sr.TOA pay fixation procedure is spelled, for granting one advance increment on their formal appointment / joining the new post on the restructured cadre after completing the formalities such as passing the prescribed examination, undergoing training etc. All the applicants 2 to 20 have opted for restructured cadre and joined as Sr.TOA after fulfilling the procedures prescribed in the Recruitment Rules. From 01-
01-1996, 5th CPC was introduced to all the Central Government Offices. Accordingly the erstwhile pay of Rs. 1400-2300 was Revised as Rs. 4500- 125-7000 as per the fitment formula. All the applicants were brought in to the scale of Rs. 4500-125-7000 w.e.f. 01-01-1996.
2.5. By an order No. 1-38/MPP-98 dated 20-4-1999, DOT revised the pay scales of restructured cadre for employees who get qualified and trained. Applicants 2 to 6 entered into the restructured cadre appointed in the OTBP of pre-restructured cadre were placed in the scale of Rs. 5000-150-8000 and that of BCR officials in the scale of Rs. 5500-175-9000 w.e.f. 01-12-1998 or from the date they were brought into re-structured cadre whichever was later.
2.6. The detention of the pre-restructure cadre anomaly, in as much as LDC who on completion of 16 years of service become eligible to be considered for promotion to Grade-II under OTBP scheme (One time bound promotion) without writing the competitive examination and thereafter, get promotion to Grade-III, under Biennial Cadre Review Scheme (BCR) of completion of 26 7 OA 430/2018 years of service. In such circumstances, the officials like the applicants 2 to 6 who became UDC on passing competitive examination conducted by the Department or through SCF remained juniors to the officials who got accelerated promotion in Grade II & III.
2.7. It is submitted that, one similarly placed official who was in Grade-II in Karnataka Telecommunication Circle namely, Tmt. Leelamma Jacob filed OA before the Hon'ble CAT, Bangalore to declare Biennial Cadre Review scheme as null and void as juniors in Grade-II have been promoted to Gr.III. An alternative prayer was also made to consider her case and extend higher scale of pay of Grade-III and for granting senior in Grade-II from the respective date on which her juniors have been promoted. The Hon'ble CAT Bangalore granted alternative prayer and observed that the BCR scheme be modified suitably to protect the interest of the officials like the applicants 2 to 6 for promotion to Grade-III.
2.8. The Department filed SLP before the Hon'ble Supreme Court and after leave was granted in Civil Appeal No. 10692/1995 by order dated 09-10- 2002 upheld the order of the Hon'ble CAT Bangalore by dismissing the above said Civil Appeal. The said judgment of the Hon'ble Supreme Court is reported in 2003(12) SCC 280.
2.9. The respondents implemented the order of the Hon'ble Supreme Court by proceedings dated 24-02-2004 & 28-04-2004 passed by Corporate Office, BSNL, New Delhi and gave direction to the Head of Telecommunication Circles.
2.10. An order dated 30-11-2004 has been issued by the Corporate office i.e. 2nd respondent, revising of promotion and passed recovery of salary which resulted respondent No.4 to revise the orders of the applicants issued on 8 OA 430/2018 10.08.2004,16.08.2004 & 01.10.2004 which not only revise the date of Gr.II and BCR Gr.III promotion in the TOA , but also in Sr.TOA thereby nullifying the very essence of res.2 Lr. Dt 24.02.2004 & 28.04.2004 resulting postponement of the applicants 2 to 6 OTBP Promotion (TOA) from 10.09.1992 to a subsequent day ie. after completion of 16 years of service as LDC+UDC+TOA and the BCR Gr.III TOA from the next day by the orders issued on 23-12-2004 and 4-1-2005 by the res.4. The same was challenged before the Hon'ble High Court, Madras W.P.s which were transferred to this Hon'ble CAT, and this Hon'ble CAT considered all the matters including one original application namely OA No. 217 of 2010 & a common order was passed on 30-09-2010 granting relief. The said order was challenged before the Hon'ble High Court, Madras in batch of Writ Petition Nos. 17214 of 2011 etc., the Hon'ble Division Bench on 18-03-2015 passed a common order and held that, the higher fixation on the basis of seniority over and above juniors on the basis of the decision of the Hon'ble Supreme Court was granted by the Department by proceedings dated 24-02-2004 and 28.04.2004, which was sought to be withdrawn by proceeding dated 10-08-2004 and 30-11-2004 as well as the order dated 23-12-2004 and 4-1-2005 even without any notice and affirmed the order of the Hon'ble CAT.
2.11. It is submitted that, the said order was challenged before the Hon'ble Supreme Court by filing SLP and the Hon'ble Supreme Court upheld the Hon'ble CAT order on 09-05-2016. The Review application filed before the Hon'ble Supreme Court was also dismissed on 27-10-2016 and the said order of the Hon'ble CAT dated 30-09-2010 was implemented by the order dated 10-01-2017 by the 4th respondent limiting the benefit only to those who gone to the court ignoring similarly & identically placed applicants 2 to 6 covered under the orders of Res.4 dt 23.12.2004 & 04.01.2005. 9 OA 430/2018 2.12. The first applicant submitted a representation on 10-03-2017 and again on 15-04-2017 to the 3rd Respondent and requested to extend the implementation of the Pay Scale from 10.09.1992 onwards, to its members. The applicants 2 to 6 have also submitted individual representation to the respondent 2 & 3 in Feb. / March 2017.
2.13. The Chennai Telephones vide their letter dated 16-05-2017 justified the claim of the applicants 2 to 6 ( as category II )and sought for clarification from the 2nd respondent for extending higher pay scale of Rs. 1600-2660 from 10.09.1992 thereon.
2.14. The Dy. General Manager / HR, BSNL, 4th respondent, vide order no. AST/Sr.TOA(G)/ Not applied for court case / 2014 dated 31-08-2017, stated that, "the judgment / order dated 30-09-2010 of CAT, Madras Bench cannot be implemented in respect of the serving / retired officials who are similarly placed but have not approached the court" and further directed the 1st applicant to inform the Decision of the BSNL CO, to its members whoever made representation. The said order was passed relying on a letter received from the 2nd respondent dated 15-06-2017. The copy of the said letter was not served on to the applicant. The 1st Applicant Association complied with the instructions of the Chennai Telephones letter dated 31-08-2017 and communicated the decision to the members of the 1st Applicant association vide its letter dated 07/08-09-2017 and also convened a meeting for this purpose on 16-09-2017. The compliance was also informed to the respondent 4, DGM/HR on 22-09-2017.
2.15. The action of the respondent in not extending the benefit arising out of the quashing of the orders passed dated 30-11-2004, 23-12-2004 and 4-1- 10 OA 430/2018 2005; merely on the ground that, applicants 2 to 6 have not filed court case earlier is an erroneous reason. The 4th respondent admitted the fact vide Lr. Dt.31.08.2016 that the claim of the applicants 2 to 6 are similar and they are also entitled to get benefits in terms of the order dated 10-01-2017 issued by the 4th respondent. The applicants are advised to state that if similarly placed persons are granted relief each one need not go to the court, and get orders. The department is bound to extend the benefits if the claim may be similar to uphold the right of equality guaranteed under Arts. 14 & 16 of the Constitution of India. After the said order dated 10-01-2017, extending the benefits of the applicants have approached the 2nd & 3rd respondent claiming their rights and the same having been erroneously rejected only on 31-08- 2017. Thus there is no delay in filing the original application before this Hon'ble Tribunal.
2.16. The applicants raised the grievance that the condition which is stipulated in the said letter dated 30.11.2004 issued by the 2nd respondent and further letters dated 23.12.2004 & 04.01.2005 issued by the 4th respondent are contrary to the orders of the Hon'ble Supreme court dated 09.10.2002 passed in Leelamma Jacob's case which necessitated 26 years of qualifying service for Grade 3 BCR Grade to persons who pass departmental test is erroneous as well as the condition stipulated in the orders dated 30.11.2004, 23.12.2004 and 04.01.2005 was already quashed by this Tribunal in TA 117/2010 and other connected OA on 30.09.2010 and the said order has been upheld by the Hon'ble High court of Madras in WP No.17214/2011 with connected WP by their order dated 10.03.2015 and same has attained finality after the SLP filed by the department has been dismissed by the Hon. Supreme court on 09.05.2016. Also review filed by 11 OA 430/2018 the department has been dismissed by the Hon'ble Supreme court on 27.10.2016 and the order passed by this Tribunal dated 30.09.2010 attained finality.
2.17. Thereby the 2nd respondent therein has been directed to implement the order dated 31.10.2016 and accordingly on 10.01.2017, the respondents have implemented the order confining only to the 139 officials though the applicants were also in the said list when the earlier order dated 30.11.2004 and 23.12.2004 issued by the respondents which was quashed in its entirety. However the same benefit has not been extended to the applicants who are left out. Therefore the applicants submitted their representations and the same has been turned down on the ground that they are not party to the proceedings and not challenged the same. The same is in violation of Article 14 & 16 of the Constitution of India as the Hon'ble Supreme court has held in their decision reported in 1985(2) SCC 648 held that similarly situated persons who could not afford to rush to the court would not be left out. It is further held that those who could not come to the court need not be at comparative disadvantage to those who rushed in here if they are otherwise similarly situated, they are entitled to similar treatment if not by anyone else at the hands of the court. The applicant has also relied upon the decision of the Hon'ble Supreme court in the decision reported in 2006 (2) SCC 747 in para 29, it is held that "service jurisprudence evolved by this court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the Hon'ble Court that would not mean that person similarly situated should be treated differently." Hence the applicants are left with no other remedy except to approach this Hon'ble Tribunal by filing this OA for redressing their grievance.
3. After notice the respondents have entered appearance through their 12 OA 430/2018 counsel and filed their reply statement wherein it is stated that the applicants are fence sitters and according to various pronouncements the applicants' claim cannot be considered on the ground of delay and latches and to support their contention they relied upon the following judgements:
(i)(2003) 12 SCC 270 in E Parmasivan & Ors Vs. UOI & Ors.
(ii)(2009) 15 SCC 321 in Ghulam Rasool Lone Vs. State of Jammu & Kashmir & anr.
(iii)(2013) 12 SCC 179 in State of Uttaranchal Vs. Shiv Charan Singh Bhandari
(iv)(2014) 4 SCC 108 in Chennai Metropolitan Water Supply & Sewerage Board & Ors Vs. T.T.Murali Babu
(v)(2018) SCC Online J&K 712 in Mangat Ram Vs. State of Jammu & Kashmir & Ors.
(vi)(2019) 15 SCC 633 in UOI & Ors Vs. C.Girija & Others
(vii)(1996) 6 SCC 267 in State of Karnataka & Others Vs. S.M.Kotrayya & Others and submitted that the applicants' claim was barred by limitation. Hence the OA is not maintainable and they prayed for dismissal of the OA.
4. Heard both sides and perused the OA along with relevant records.
5. It is to be noted that as submitted by the applicants that the decision taken by the authorities in respect of grant of said benefits has been challenged by one Leelamma Jacob and others which attained finality as the respondent government has challenged the same before the Hon'ble High court and subsequently before the Hon'ble Supreme court in Civil Appeal No 10692/1995 and the Hon. Supreme court vide order dated 09.10.2002 13 OA 430/2018 upheld the order passed by this Tribunal as well as Hon'ble High court and dismissed the appeals of the respondent department. The said order has been implemented by the respondents on 24.02.2004 confining the relief to the respondents therein only.
6. It is to be noted that against the said impugned communication dated 30.11.2004, 23.12.2004 & 04.01.2005 one group of employees who are similarly situated like the applicant in the same list approached the Hon'ble High court and the said matter has been transferred to this Tribunal as TA Nos.117 to 119/2010, 28,30,32,34,39,53,55 & 67/2009 & OA 217/2010.
7. Upon hearing this Tribunal considered the rival submissions in detail and by recording the observations of the Hon. Apex court in the matter of Leelamma Jacob passed the following order:-
"7. A combined reading of the above decision of the Apex court makes it clear that the respondents while implementing the schemes have issued certain clarifications which took away the valuable rights of the persons like the applicants who have successfully completed the departmental examinations and promoted as such in consonance with the recruitment rules. The introduction of the OTBP and BCR schemes are nothing but to ensure that the employees who are stagnating in a particular post for a long number of years and who could not be promoted either due to want of vacancies or due to want of completion of departmental examinations should not mean that the persons like the applicants who have successfully completed the departmental examinations and got themselves promoted as UDCs in the pre-structured cadre on merit quota should be denied for further promotion. The fifth respondent has rightly issued a circular dated 10.08.2004 promoting UDCs/ex-UDCs to BCR Gr.III w.e.f 10.09.1992. In fact the department has issued circular dated 24.02.2004 wherein guidelines are issued in the manner in which the judgment of the Supreme court to be implemented. In the said circular, it is specifically mentioned that the persons who were promoted earlier to Gr.II by virtue of passing departmental examinations and thus became seniors to the officials who were later on promoted as Gr.II on the basis of OTBP and without even completion of 26 years of service, they should be considered for promotion to BCR Gr.III whenever their juniors in Gr.II were promoted to Gr.III on completion of 26 14 OA 430/2018 years of service. In the said circular it is also indicated that they should be extended all consequential benefits including arrears of pay. When the facts are like this, by way of subsequent circulars dated 30.11.2004 the rights accrued to the applicants consequent to the judgment in Leelamma Jacob's case is taken away. The impugned orders based on the circular dated 30.11.2004 is not in consonance with the directions of the Apex court in Leelamma Jacob's case.
8.For the reasons stated above, the respective impunged orders in all these applications are quashed and there will a consequential direction to the respondents to restore the seniority of the applicants w.e.f m10.09.1992. It there is any deduction made in the salary of the applicants consequent to the impugned orders, the same shall be refunded to the applicants. The above directions shall be complied with within a period of six weeks from the date of receipt of a copy of this order. In the circumstances, there will be no order as to costs."
8. The said order of this Tribunal has been challenged by the respondent department before the Hon. High court in WP 17214 & 20884/2011, 27407 to 27410/2012, 26275 & 27990 to 27993/2013 wherein the Hon. High court by its order dated 18.03.2015 observed thus:
"15. In so far as the second contention of the learned counsel for the petitioners is concerned, it is seen that the decision of the Supreme Court in Leelamma Jacob came only on 9.10.2002, nearly after two years of the creation of the BSNL. But, the order of the Supreme Court was implemented by the proceedings dated 24.2.2004. The Department itself understood the order of the Supreme Court to mean that the contesting respondents herein are entitled to the benefit of the judgment of the Supreme Court.
16. In sum and substance, the directions issued by the proceedings of the BSNL dated 24.2.2004 are as follows :
(i) While implementing the BCR scheme, all the officials, who were promoted earlier to Group II by virtue of passing the limited departmental examination and thus became senior to the officials, who were promoted later to Grade II through 2/3rd seniority quota or on the basis of the OTBP scheme could be considered for promotion to Grade III even if they have not completed 26 years of service, whenever their juniors got promoted on completion of 26 years;
(ii) The fitness of such officials shall be judged by the duly constituted DPC.
(iii) While doing so, no comparison should be made with the reserved categories promoted against shortfall vacancies; and 15 OA 430/2018
(iv) On review, if found suitable for promotion to BCR Grade III, such officials should be extended consequential benefits including arrears of pay and allowances.
17. After giving the above directions, the proceedings dated 24.2.2004 also gave further directions as to what should be done in respect of ongoing cases or cases which are already over. The relevant portion of the proceedings dated 24.2.2004 reads as follows :
"In view of the above, necessary action may be taken for promotion of the senior officials as per the Gr.II seniority to BCR Gr.III from the date their juniors in Gr.II were promoted to BCR Gr.III. All the court cases where the courts have given judgments/linked judgment with the SLP in the case of Smt.Leelamma Jacob & Others for promotion to BCR Gr.III may also be settled according to the above instructions. If any judgment or ongoing case is in variance to the orders contained in this letter, the same may be immediately reported to BSNL Corporate Office along with full details. After reviewing the matter and promoting the eligible officials to Gr.III, the total number of officials thus promoted and the total financial implications involved on this account should be intimated to this office, for records."
32. In this case, the respondents are neither seeking upgradation nor seeking promotion. The respondents sought only to grant them higher fixation on the basis of their seniority over and above the juniors and on the basis of the decision of the Supreme Court. This benefit was granted by the Department itself by the proceedings dated 24.2.2004. What was granted in February 2004 was sought to be withdrawn within a couple of months by the proceedings dated 10.8.2004 and 30.11.2004, even without any notice. Therefore, apart from the merits of the case, the withdrawal of the benefit, refixation of pay and recovery of the arrears, resulting in civil consequences for the contesting respondents have been done without even following the principles of natural justice. Hence, we find no illegality in the order of the Tribunal warranting interference."
9. The said order of the Hon. High court has been challenged by the respondent department before the Hon. Supreme court in Special Leave to Appeal (C)...CC.No.2941/2016 and the Hon. Supreme court by its order dated 09.05.2016 has upheld the order passed by this Tribunal as well as the Hon'ble high court and dismissed the SLP. Thereafter the review petition filed in RP No.3352/2016 was also subsequently dismissed by order dated 31.10.2016. The respondent BSNL made an internal correspondence and 16 OA 430/2018 conveyed the decision to the competent authority for implementation of the order passed by this Tribunal dated 30.09.2010 consequent to dismissal of RP 3352/2016 filed in Hon. Supreme court. Accordingly by its order dated 10.01.2017 the said order has been implemented however the same has been confined only to the 139 employees, ie., the respondents before the Hon. Supreme court in the said matters.
10. It is not in dispute that the applicants are from the same list which is prepared by the respondents by their order dated 30.11.2004, 23.12.2004 & 04.01.2005. When the applicants have not been extended with the said benefit after quashing the said orders/communications, therefore, the applicants have submitted their representation through their Union as well as individually by letter dated 10.03.2017 and requested to extend the same benefit to the total 31 ex-UDCs on par with the similarly placed ex-UDCs who were granted relief by Chennai Telephones vide their order dated 10.01.2017 followed with reminder dated 15.04.2017. Immediately after the receipt of the said representation, the 4th respondent has processed the said request of the applicants on the basis of the judgments by the Hon'ble Supreme court to maintain the basic judgment of the Hon.Supreme court should not be limited to the applicants therein alone and it should be extended to all and sought for specific clarification from the BSNL for extending higher pay scale to those similarly placed applicants 2 to 6 w.e.f 10.09.1992 along with brief history of the case narrating all orders passed by the Tribunal, High court in the matter of Leelamma Jacob and others who are similarly situated employees.
11. It is to be noted that however by order dated 31.08.2017 the 2nd respondent has rejected the claim of the applicants on the ground that same cannot be granted in respect of serving/retired officials who are similarly 17 OA 430/2018 placed since they have not approached the court.
12. It is to be noted that according to the various pronouncements of Hon'ble Supreme court in 1985 (2) SCC 648 and 2006 (2) SCC 747 cited supra, the action of the respondents is in violation of Article 14 & 16 of the Constitution of India and discriminatory in nature since similarly placed person cannot be treated differently and hence needs to be declared bad in law.
13. It is also to be noted that the judgment relied upon by the respondents to support their contention in respect of delay cannot be made applicable in the present matter as by order dated 23.03.2018 in MA No.173/2018 the delay has been condoned by this Tribunal for approaching to the court to challenge the impugned orders. Therefore the ratio of the said judgment is not applicable in the matter of present case.
14. It is also to be noted that as submitted by the learned senior counsel Mr.L.Chandrakumar while arguing the matter across the bar as well as submitted by the applicants in their written arguments dated 30.11.2022 also that the claim of the applicants are to be restricted three years prior to the filing of the OA as per the dictum of the law laid down by the Hon.Apex court in the matter of UOI Vs. Tarsem Singh in CIVIL APPEAL NO.7064 OF 2019 dated 19 September 2019, relief may be granted by extending the same benefit which has been granted to the similarly situated persons by this Tribunal in its order dated 30.09.2010 wherein specifically the said impugned communications in the present OA has been quashed and set aside. Therefore in our considered opinion, the OA has to be allowed by quashing and setting aside the impugned orders dated 30.11.2004, 23.12.2004, 04.01.2005, 15-06-2017 & 31-08-2017. The respondents 1 to 4 are directed to extend all benefits in TOA Cadre pay scale of 1600-2660 with effect from 18 OA 430/2018 10.09.1992 as per the 2nd respondent Lr. Dt.24.02.2004 and 28.04.2004 and to extend in BCR Grade - III Sr.TOA (Restructured cadre) pay scale of Rs. 5500-9000 in accordance with DOT Letters dated 20.04.1999 & 28.09.2000 to the applicants from 01.12.1998 or the dates in which the respective applicants entered into the restructured cadre, whichever is later and give them the promotion as per the orders of the 4th respondent bearing AST / TOA (G) - 17B / CAT / 2008 -16 / VOL II / 20 dated 10-1-2017 and pay all consequential benefits including revision of pension . However the monetary benefits will be restricted prior to 3 years of filing of this OA, i.e., this OA has been filed on 12.01.2018 and said exercise shall be carried out within a period of three months from the date of receipt of a certified copy of this order.
15. OA is allowed as above. No order as to costs.
(Lata Baswaraj Patne) (T. Jacob) Member (J) 16.02.2023 Member (A) MT