Central Administrative Tribunal - Jabalpur
R.K.Jain vs Bharat Sanchar Nigam Ltd on 16 September, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH,
JABALPUR
Transferred Application No. 62 of 2009
Jabalpur, this the 16th day of September, 2009
Honble Shri Mukesh Kumar Gupta, Judicial Member
Hon'ble Shri Ranbir Singh, Administrative Member
R.K.Jain, S/o D.C.Jain,
Aged about 49 years,
Sub-Divisional Engineer,
B.R.B.R.A.T.T.T. Jabalpur, M.P. -Applicant
(By Advocate Shri S.Nagu)
V E R S U S
1. Bharat Sanchar Nigam Ltd.
(A Govt. of India Enterprise)
through Office of the Dy. General Manager
Transmission Installation,
1502, Wright Town, Jabalpur.
2. Chief General Manager,
Bharat Ratna Bhim Rao Ambedkar Institute
of Telecom Training Ridge Road, Jabalpur -Respondents
(By Advocate Shri Gautam Prasad)
O R D E R
By Mukesh Kumar Gupta, JM.-
R.K.Jain, Sub-Divisional Engineer, Bharat Ratna Bhim Rao Ambedkar Institute of Telecom Training (for short BRBRAITT). Jabalpur in this TA, originally filed as Writ Petition No.7137/2005 (S) before Honble High Court of Madhya Pradesh, and later transferred to this Tribunal on conferment of jurisdiction over BSNL, seek direction to the respondents to grant him pay scale of Rs.6500-200-10500 w.e.f. January, 1998 and not from August, 1998 at par with his junior Madan Kumar Gupta with all consequential benefits.
2. Admitted facts are that applicants as well as aforesaid junior were appointed as Technician vide order dated 25.4.1981 with effect from 6.4.1981 (P-1). Both of them were granted time bound promotion in pay scale of Rs.4500-125-7000 w.e.f. 6.1.1997. On successful completion of Telecom Technical Assistant (for short TTA) Training, he was absorbed in restructured cadre of TTA and granted one increment w.e.f. 14.7.1997 vide order dated 18.3.1998 (P-3). While working as Technician, he appeared in competitive examination against 15% departmental quota for vacancies of recruitment year 1994 and in the result declared on 31.12.1996 none had qualified. In the circumstances the condition of passing said competitive examination, which was held on 10.11.1996 was relaxed to the extent that candidates securing 30% of aggregate of marks in all four papers would be declared successful. The result of applicant as well as said junior was not declared even after aforesaid relaxation and, therefore, he submitted a representation dated 19.9.1997 (P-8) and since no response had been forthcoming he preferred OA No.772/1997. Said OA was allowed vide order dated 19.6.1998 (P-9) extending earlier order passed on said subject in OA No.637/1997 (Shri Jagdish Prasad Baveley & 7 others Vs. Union of India & another). Pursuant to said order and directions his result was published and he was declared successful on 18.8.1998 (P-10). On 19.8.1998 (P-11) he was deputed for training for 36 weeks.
3. His grievance is that subsequently Madan Kumar Gupta also approached this Tribunal in OA No.200/1998 seeking direction to the respondents to declare the result for aforesaid examination. Said OA was allowed vide order dated 1.2.2000 (R-1) and in compliance of said direction he was promoted on 14.8.2000. However, he was granted notional seniority from 1998. In gradation list issued on 28.5.2003 by BSNL, applicant appeared at serial no.256 while said Madan Kumar Gupta placed at serial no.339. His grievance is that said Madan Kumar Gupta has been allowed higher pay vis-`-vis applicant, which is impermissible. Shri S.Nagu, learned counsel for applicant contended that on the one hand applicants representation made on the subject seeking parity has not been considered and on the other hand he has been denied pay at par with his junior. Said Madan Kumar Gupta has been granted said pay scale of Rs.6500-10500 w.e.f. January,1998, while he has been granted said scale from August,1998. Strong reliance was placed on (2009) 3 SCC 94 Gurcharan Singh Grewal and another Vs. Punjab State Electricity Board and others to contend that senior can not be paid less than his junior even if anomaly in seniors pay is due to difference of incremental benefits.
4. Further reliance was placed on M.R.Gupta Vs. Union of India (1995) 5 SCC 628 to contend that pay fixation is a recurring cause of action.
5. In the above backdrop, it was emphasized that applicant is entitled to parity at par with his junior. Learned counsel further stated that he will not press for his claim for arrears of pay and allowances on account of such refixation if his prayer is accepted favourably.
6. The respondents by filing their reply stated that OA No.200/1998 filed by Madan Kumar Gupta was allowed with specific observations vide para 5 thereof, which reads thus:
5. In view of what has been stated in the preceding paragraph, this OA stands allowed. The respondents are directed to publish the result of the competitive examination held on 10th and 11th February, 1996 and if he is found successful, the respondents shall appoint him to the post of Junior Telecom Officer within a period of two months from the date of receipt of a copy of this order. The applicant shall be entitled to notional seniority on the post of JTOs, immediately above his junior/or in accordance with merit based on the competitive examination. However, he shall get the benefit of pay etc. from the date he joins the said post.
In compliance of aforesaid directions, his result was declared and he was appointed from the date his junior, namely, Virendra Sharma had been promoted i.e. 5.1.1998, though he was allowed the pay from the date he was appointed i.e. 14.8.2000, but he became senior to Shri Virendra Sharma on account of direction of this Tribunal. The applicant was appointed as JTO on 14.10.1998 while Madan Kumar Gupta got seniority w.e.f. 5.11.1998. There is no anomaly as a direct result of application of relevant rules/ orders emphasized Shri Gautam Prasad, appearing for Shri S.A.Dharmadhikari, learned counsel for respondents.
7. We have heard learned counsel for the parties, perused the pleadings and other material placed on record.
8. Govt. of India, OM dated 4.2.1966 read with OM dated 18.7.1974 and 16.6.1989 prescribed essential conditions for stepping up, which read as under:
6.B (i) both the senior and junior employees should belong to the same cadre before promotion and working in the identical posts before promotion;
(ii) they should get promotion to the higher posts belonging to the same cadre or identical scale; and
(iii) the anomaly should arise directly as a result of the application of relevant rules/orders;
(iv) The junior was not getting higher pay in the lower post from time to time by virtue of granting advance increments.
We may also note that in State of Andhra Pradesh & others Vs. G.Sreenivasa Rao and others (1989)10 ATC 61 vide para 15 it was observed as follows:-
15. Equal pay for equal work does not mean that all the members of a cadre must receive the same pay packet irrespective of their seniority, source of recruitment, educational qualifications and various other incidents of service. When a single running pay scale is provided in a cadre, the constitutional mandate of equal pay for equal work is satisfied. Ordinarily grant of higher pay to a junior would ex facie be arbitrary but if there are justifiable grounds in doing so the seniors cannot invoke the equality doctrine. To illustrate, when pay fixation is done under valid statutory rules/ executive instructions, when persons recruited from different sources are given pay protection, when promotee from lower cadre or a transferee from another cadre is given pay protection, when a senior is stopped at efficiency bar, when advance increments are given for experience/ passing a test/ acquiring higher qualifications or incentive for efficiency; are some of the eventualities when a junior may be drawing higher pay than his senior without violating the mandate of equal pay for equal work. The differentia on these grounds would be based on intelligible criteria which has rational nexus with the object sought to be achieved. We do not therefore find any good ground to sustain the judgments of the High Court/Tribunal.
9. Similarly, (1997) 7 SCC 690 Union of India and another Vs. R.Swaminathan and others it has been held that a junior by virtue of adhoc promotion may get more pay than his senior in the all India seniority list and therefore it was held that senior can not claim parity and this can not be termed as anomaly.
10. The facts as noticed hereinabove would show that the applicant as well as Madan Kumar Gupta were appointed in feeder grade of Technician in 1981 on the same date, but he secured march in terms of appointment under 15% quota of JTOS on relaxation because of specific direction of this Tribunal noticed hereinabove. On the other hand OA preferred by applicant had been disposed of following earlier order dated 7.1.1998 in OA No.637/1997. The order passed in applicants OA did not notice facts and details and merely followed earlier order on the subject. We may further observe that order passed by this Tribunal in OA No.200/1998 decided on 1.2.2000 reveals that earlier orders of this Tribunal dated 7.1.1998 as well as 19.6.1999 had not been brought to the notice of this Tribunal. It is because of this reason anomaly had arisen. We may also note at this stage the comparative statement furnished by the applicant vide para 5.14 of OA which reveals that as on 14.8.2000 applicant as well as Madan Kumar Gupta pay was exactly the same i.e Rs.6900/-. It is because of increment earned by his junior prior to completion of 12 months by the applicant in said promotional post so called disparity arose. The basic reason behind this as stated by the respondents had been the specific directions issued by this Tribunal in OA No.200/1998 which were lacking in judgment pronounced in applicants earlier OA. In our considered view all the four conditions noticed hereinabove are duly satisfied by applicant and, therefore he cannot be paid less pay than that of his junior Madan Kumar Gupta, who was granted the benefit because of court judgment.
11. In this view of the matter TA is allowed. The respondents are directed to fix applicants pay at par with Madan Kumar Gupta w.e.f. 1.1.2001 the date when said anomaly surfaced on notional basis, noticing the statement made by Shri S.Nagu, learned counsel for applicant. We direct the respondents to fix applicants pay at par with Madan Kumar Gupta as on 1.1.2001. However, he will not be entitled to any arrears, consequent to such refixation. Aforesaid exercise shall be carried out within a period of three months from the date of receipt of this order. No costs.
(Ranbir Singh) (Mukesh Kumar Gupta) Administrative Member Judicial Member rkv