Central Administrative Tribunal - Madras
A Raja Subramanian vs M/O Communications on 10 July, 2024
1 OAs 1401 & 1343/2017 & 1178/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA Nos. 1401 & 1343/2017 & 1178/2018
Dated, Wednesday, the 10th day of July, Two Thousand Twenty Four
CORAM:
HON'BLE MR. MANISH GARG, Member (J)
&
HON'BLE MR. VARUN SINDHU KUL KAUMUDI, Member (A)
1. K.Alararsami Raja
2. G.Saravana Kumar
3. M.Thiagarajan
4. T.Senthil
5. Sharmila Priya
6. R.Moorthy
7. S.Balamurugan
8. K.Girija
9. M.R.Senthil Kumar
10. N.Sivakumar
11. M.Ponsarasu
12. A.Eskalin
13. K.Muthu Kumar
14. M.Jose Raj
15. R.Michil Ravi
16. S.Sabari Thamilselvei
17. K.Deenan
18. L.Saravanan ... Applicants in OA 1401/2017
19. A.Raja Subramanian ... Applicant in OA 1343/2017
20. Suluru Srinivasulu ... Applicant in OA 1178/2018
By Advocate M/s.R.Jayaprakash
Vs
1. The Chairman and Managing Director,
Bharat Sanchar Nigam Limited, Corporate Office,
Bharat Sanchar Bhavan, Harish Chandra Mathur Lane,
Janpath, New Delhi 110 001.
2. The Chief General Manager,
BSNL, Tamil Nadu Telecom Circle,
7th Floor, BSNL ADMN Building,
No.16, Greams Road, Chennai 600 006. ...Respondents 1 &2
in all OAs
2 OAs 1401 & 1343/2017 & 1178/2018
3. The Chief General Manager,
BSNL, Southern Telecom Projects,
No.25, Greenways Road, R.A.Puram,
Chennai 600 028.
4. The Chief General Manager Maintenance,
BSNL, Southern Telecom Region,
II Link Road, Ganapathy Colony,
Guindy, Chennai 600 032. ... Respondents 3 & 4 in
OA No.1401/2017
5. The Accounts Officer (Drawal),
O/o the General Manager, BSNL,
Tirunelveli 627 003 ... Respondent-3 in OA
1343/2017
6. The General Manager,
O/o. BSNL Bharathipuram,
Salem main Road,
Dharmapuri 636 705. ... Respondent-3 in OA
1178/2017
By Advocate Mr.M.S.Velusamy (OA1401 & 1343/2017)
Mr.Vijayakrishnan RP (OA 1178/2018)
3 OAs 1401 & 1343/2017 & 1178/2018
ORDER
(Pronounced by Hon'ble Mr. Manish Garg, Member(J))
1. Since the issues involved in the above OAs are common, they are heard together and disposed of by this common order. With the consent of both the parties, OA 1401/2017 shall be treated as the lead case in this matter. In the said OA, the applicants seek the following relief(s):
"(i)Declare the Orders No.5-31/2001-Pers-IV dated
20.05.2016 (Annexure-1), No.5-22/2016/Estt-IV dated
08.09.2016 (Annexure-2) & 15.09.2016 (Annexure-3) and Letter No.1-06/2015-PAT(BSNL) dated 24.10.2016 (Annexure-
4) and 18.11.2016 (Annexure -5) issued by the respondents as illegal and arbitrary and consequently quash the same;
(ii) Declare the unilateral pay fixation memo issued by the Respondents for all the Applicants as null and void.
(iii)Declare the applicants are entitled for fixation of pay in the grade of JTO on the date of appointment/promotion from the post of TTA in accordance with FR 22 (I)(a)(1) or the minimum of the pay scale Rs.9850-250-14600 as declared in the GE-JTO Examination Notification, 2007.
(iv)Direct the Respondents to consider the option submitted by the Applicants to exercise to pay revision from the date of promotion after 01.01.2007 as per the para: 3.6 of BSNL order dated 07.05.2010.
(v)To award costs and pass such further and other orders as may be deemed fit and proper and thus render justice."
4 OAs 1401 & 1343/2017 & 1178/2018
2. Brief facts of the case, as stated by the applicants, are as follows:
2.1 All the applicants, during their tenure as Non-Executive lower grade Telecom Technical Assistants (TTAs), were receiving the pay scale of Rs.7100-200-10100 in the respondent's organization, namely, BSNL. While so, they duly applied for the direct recruitment examination for the position of Junior Telecom Officer (JTO) with a Notified scale of pay of Rs.9850-250-
14600, an Executive-Grade role, through proper channel. This recruitment process was open to both internal officials and external candidates, and the applicants met the prescribed qualifications and relaxations outlined in the Junior Telecom Officer (JTO) Recruitment Rules (JTO RR). Subsequently, they were selected as departmental candidates for the elevated position of JTO. All the applicants were appointed as JTOS during the period from 01.01.2007 to 07.05.2010, which corresponds to the eligible window period for exercising the option for pay revision as per clause 3.6 of the 2nd Non- Executive Pay Revision Committee (PRC) order No. 1-16/2010-PAT (BSNL) dated 07.05.2010.
2.2 All the applicants were accorded past service benefits, encompassing age relaxation, leave carry forward, pension protection, TTA pay and allowances during the JTO pre-appointment induction training period, in lieu of a stipend for those considered as purely outsiders. This also included exemptions from police verification, obtaining internal vigilance clearance, and the retention of their current employee number. Furthermore, it was explicitly assured by the respondents that the pay will be fixed under FR 27, as stated in communication, dated 23.06.2010, and vide communication, dated 20.05.2016, was additionally guaranteed that, "it is again reiterated that officials appointed as DR-JTO (who were earlier working as TTA) are entitled for benefits of past service if otherwise admissible under rules 5 OAs 1401 & 1343/2017 & 1178/2018 meaning that their pay in the TTA grade will be protected, and the pay will be fixed in the JTO grade accordingly".
2.3 While so, vide Office Order, dated 07.05.2010, the respondents officially announced a pay revision for the Non-executive TTA cadre. Pursuant to clause 3.6 of the 2nd Pay Revision Committee (PRC) order No. 1-16/2010-PAT (BSNL), dated 07.05.2010, the applicants duly exercised their option for pay revision from the date of promotion within the stipulated time frame. However, the respondents failed to consider the applicants' option, resulting in forceful retrospective revision of their TTA pay from 01.01.2007, without taking into account their chosen pay revision option. On the date of appointment as JTO, the applicants' pay except applicant no.6 & 18 was fixed at Rs.16400/- at par with outsiders without considering the pay protection guidelines as per FRSR and again refixed as Rs.20,020/- and for applicant no.6 & 18 the pay was refixed as 19020/-. But as per the provisions of FRSR and subsequent pay revision guidelines from appropriate authorities, the pay of the applicants should have been fixed at Rs.22,820/-. The applicants further state that the pay of the officers who came to BSNL from other departments and for other internal officials, who were formerly situated in a lower non-executive grade within the same class as the applicants in the present OA, and were subsequently promoted/appointed as JTOS/JAOS after 01.01.2007, their cases have been considered as per the FRSR and their pay was fixed at the revised 2nd PRC pay of Rs.22,820/-. 2.4 The applicants further submit that the respondent failed to consider that the basic pay of the previous cadre, i.e., TTA before joining as Junior Telecom Officer for pay fixation since all the applicants were drawing the pay continuously during JTO Training period also. If the Basic Pay is less than the promoted pay scale after the calculation of pay, the pay scale of the 6 OAs 1401 & 1343/2017 & 1178/2018 promoted cadre will be given. Otherwise, the pay will be fixed in the appropriate stage at the promoted pay scale. In the applicants' case, the calculation of pay in the TTA cadre was less than the pay scale of promoted cadre, i.e., JTO [Rs.9850/-]. At that time the Respondent allowed the fixation of pay in pre-revised scale for Junior Telecom Officer/Junior Accounts Officer at Rs.9850/- for the internal officials who were in roll of BSNL before 01.01.2007. The corresponding revised pay of Rs.9850/- would be Rs.22,820/-. The Applicants pay on promotion as Junior Telecom Officer on 27.04.2009 would be Rs.22,820/-. Only in the Applicants' case this method has not been followed. But others in the same recruitment batch in other circles, their pay was fixed at Rs.22,820/-. The Respondent is following/adopting different yardsticks for similarly placed officers and this has caused reduction in basic pay. It is pertinent to mention here that the Applicants' juniors (TTA batch mates who are promoted through JTO Internal LICE examination in 2016 and the JAOs promoted in 2010) are now drawing more pay than the Applicants. All the Applicants have given option as per Para:3.6 of the BSNL pay revision order. There are three options and one has to choose any one. The options are:
1. Date of effect of pay Revision.
2. Date of promotion.
3. Date of increment.
2.5 All the Applicants gave options in-time from the date of promotion.
The reply given by the respondent stating that the officials did not submit their options in time is untrue. This disparate treatment of the applicants concerning their eligible Non-Executive pay revision constitutes a violation of their rights and lien under applicable regulations. All the applicants made 7 OAs 1401 & 1343/2017 & 1178/2018 representations to the respondent authorities, but the same were rejected by the respondents on invalid grounds.
2.6 In the case of the applicant in OA 1343/2017, according to the applicant, his pay was wrongly fixed at Rs.20620 on 27.04.2009, i.e., date of appointment as JTO and even that was reduced to Rs.20020/- and an overpayment of Rs.71,301/- was recovered from April 2017 to October 2017.Being aggrieved, the applicants have filed the present OA seeking the aforesaid relief.
3. After notice, respondents have entered appearance through their counsel and filed their reply statement refuting all the allegations made in the OA, except those which are admitted on facts.
3.1 The respondents submitted that a Notification, dated March 2008, was issued by BSNL, calling for applications from the eligible candidates to fill up the 3591 Number of posts of Junior Telecom Officers (JTO) in the pay scale of Rs. 9850-250- 14600 on All India basis as direct recruitment (outsiders) wherein permission was given to the BSNL candidates to apply for the said posts, after giving age relaxation. Accordingly, the applicants herein, who worked as TTA in the pre-revised pay scale of Rs. 7100-200- 10100, also applied as outsiders in pursuance of the said notification and participated in the examination which was held on 5.6.2008, along with other outsiders and got selected to the post of JTO and after successful training, they were appointed as J.T.O. on 27.04.2009 which is one of executive post. 3.2 The respondents submitted that there is no pay fixation involved in this case. The applicants were working as Telecom Technical Assistant (IDA Scale of Pay: Rs. 7100-200-10100 Revised IDA Scale of Pay Rs. 13800- 25420), while appearing in the examination and they applied for the post of 8 OAs 1401 & 1343/2017 & 1178/2018 Junior Telecom Officer with IDA Scale of pay Rs. 9850-250-14600 (Revised IDA Scale Rs. 18400-40500/-) as Departmental Outsider and got selected. Therefore, their pay was fixed at the minimum of the pay scale of the Junior Telecom Officer giving protection of the pay drawn by them in TTA cadre. In the case of the officials whose pay as "TTA" was less than the minimum of the pay scale of the promoted post of "JTO", their pay in JTO cadre was fixed in the minimum pay of "JTO" scale. When the pay in the cadre of "TTA" was more than the minimum of the JTO post, then their higher pay was protected. Thus, the pay drawn by them was protected and they do not draw pay less than the pay what they had been drawing in the cadre of "TTA". Since the examination was meant for outsiders and the applicants in this case participated in the Exam as "Departmental- outsiders" and got appointed under DR quota from TTA post, their case is not a Promotion and hence, they are not entitled for exercising option for fixation of pay in terms of para 3.6 of the Office Order, dated 07.05.2010. This point was clarified in BSNL Corporate Office letter No. 1-07/2012-PAT (BSNL) dated 28/03/2012. Had the applicants got promotion through the Limited Internal Competitive Examination, then they would have got pay fixation and option for pay fixation under FR 22 (1) (a)(1).
3.3 The respondent submitted that the pay scales of TTA and JTO were revised as follows w.e.f. 01.01.2007.
TTA
Pre-revised Pay scale : Rs. 7100-200-10100
Revised pay scale w.e.f 01.01.2007: Rs. 13600-Rs. 25420 with annual
increment @ 3%
JTO
Pre-revised Pay scale : Rs. 9850-250-14600
9 OAs 1401 & 1343/2017 & 1178/2018
Revised pay scale w.e.f 01.01.2007: Rs. 16400-Rs. 40,500 with annual
increment @ 3%
The pay of JTO appointed under Direct recruitment quota was fixed w.r.t. the revised pay scale of Rs. 16400-40500 which is equivalent to pre-revised pay scale of Rs. 9850-250-14600 and they were granted 5 additional increments and placed at basic pay of Rs. 19020/-. But the applicants were already drawing Rs. 20020/- on the date of their appointment as JTO and as they were already drawing more than Rs.19020/-, their higher pay was protected.
3.4 The respondents submitted that, while the basic pay of direct recruits JTO was fixed at Rs. 19020/, the pay of the applicants was fixed at a higher stage i.e. at Rs. 20020/-, thus, protecting the higher pay drawn by the applicants in TTA cadre on their appointment as JTO under direct recruitment quota, as per the clarification issued by the BSNL Corporate Office, in letter No. 5- 31/2001-Pers-IV, dated 20.05.2016. As the appointment of the applicants was not on promotion from the cadre of TTA under departmental quota, the applicants are not entitled to exercise the option for pay fixation in terms of para 3.6. of the office order dated 07.05.2010 which is clarified in BSNL Corporate office letter No. 1-07/2012- PAT (BSNL) dated 28.03.2012.
3.5 The respondents further submitted that the order bearing No.4- 85/2003-SEA (Pt.II), dated 4.3.2008, quoted by the applicants is meant for the cadre of "Junior Accounts Officer" (External Candidates), appointed from other Department and not for the Departmental Outsiders for the cadre of "Junior Telecom Officer". The external candidates in the cadre of Junior Accounts Officer had come from the Department of Posts, Government of India. They have totally resigned from the Department of Posts after the settlement of Pension, DCRG, etc, and joined the BSNL as fresh candidates.
10 OAs 1401 & 1343/2017 & 1178/2018 They have earlier drawn CDA scale in their previous employment and appointed in BSNL in IDA Scale. But the case of applicants in this OA is completely different. They are coming from one IDA scale to another higher IDA scale by applying as a "Departmental outsider" against outsiders Quota to the cadre of "Junior Telecom Officer" from "Telecom Technical Assistant". Hence the letter, dated 4.3.2008, is not applicable to the applicants. The contention of the applicant that the revised pay of Rs. 9850/- would be Rs. 22820/- is not correct. Those who were working as JTO in the scale of Rs.9850/-, as on 1.1.2007, only will get the revised pay of Rs. 22820/-, as per the following calculations:
1. Existing scale of pay : 9850-250-14600 16400-40500
2. Revised scale of pay : 16400-40500
1. Basic pay in the old scale 9850
2. DA 78.2% 7702.70
3. Weightage @ 30% (Pay +DA) 5265.81
4. Total 22820 3.6 It is also submitted that the applicants were promoted to the post of JTO only on 27.04.2009 (not on 01.01.2007) and, hence, their pay fixation to Rs.20020/- is correct. Further the revised IDA scale for the TTA is "13600-25420" and for JTO it is "16400-40500". Hence the pay fixation done by the BSNL units are correct. The applicants in this OA have been allowed to write the examination only as "Departmental outsiders" and hence whatever rulings applicable to the outsiders will be applicable to the applicants of this OA.
3.7 The respondents contended that the applicants are not entitled for any relief as mentioned in this OA on the following GROUNDS:
11 OAs 1401 & 1343/2017 & 1178/2018
a) The Applicants, possessing the requisite educational qualifications, were permitted to participate in the common Graduate Engineer JTO Examination 2007 (2007 batch), held on All India basis, which was meant for outsiders from the public market, after availing the age relaxation, as available under clause 3(c)(ii) of the Notification for the said recruitment along with other outsiders or public fresh graduates, against vacancies earmarked for direct recruitment and they were selected for appointment under the direct recruit quota meant for outsiders and the rules position is established as per BSNL Communications, dated 23.06.2010 & 28.03.2012.
b) The notification is meant for appointment of graduate engineers for vacancies earmarked under direct recruitment and not a promotion under departmental quota, wherein the last drawn salary of the applicants in the TTA cadre is being protected and this fact is also established as per BSNL Communications, dated 23.06.2010 & 28.03.2012, which existed in 2010, 2011 and 2012, thereby, it cannot be presumed that the applicants are not aware of the said communications and, as such, their claim itself is hit by the principle of latches, wherein now, they are challenging only the consequential order of 2016. Hence the present OAs are not maintainable.
c) The Respondent submits that they were working as Telecom TechnicalAssistants(TTA) (IDA Scale of Pay Rs. 7100-200-10100 Revised IDA Scale of pay; Rs. 13600 - Rs. 25420) while appearing in the examination and they applied for the post of Junior Telecom Officer(JTO) with IDA Scale of Pay Rs.9850-250-14600 (Revised IDA Scale Rs. 16400- 40500) as Departmental Outsider and got selected. Therefore, their pay was fixed at Rs. 20020/- at the appropriate stage in the revised pay scale of Rs. 16400-40500 (the replacement scale for the earlier notified pay scale of 12 OAs 1401 & 1343/2017 & 1178/2018 Rs.9850-250-14600) applicable to Junior Telecom Officer giving 'protection of the pay' drawn by them in TTA cadre.
d) The respondents submitted that there was no anomaly in fixation of pay of the applicants on their appointment as JTOs under the direct recruitment quota and there was no discrimination and all other candidates who were drawn from the public market and appointed as JTO are all drawing the same basic pay as notified earlier and any higher pay fixation as sought for by the applicants is not based upon any rulings and if it is allowed, it will create pay anomaly among similarly placed selected candidates from the public market which would ultimately create financial discrimination amongst equals and would in turn unsettle the settled position as well as the policy matters.
e) The above said principle of fixation Pay and all other issues involved in these OAs were already agitated before the Principal Bench of the Central Administrative Tribunal in OA No.1760/2012 with OA No. 1616/2012, which were disposed of by order, dated 08.05.2015, on the ground that no opportunity was given by the Respondents before passing the order and, hence, liberty was also given to the respondents to initiate further action, after giving opportunity to the said applicants therein. Perusal of the above said order goes to show that the above said order was passed without going into the merits of the case and liberty was given to the Respondents to revisit the issue afresh. On the other hand, on the very same issue, after analyzing all the issues relating to basic pay, salary, emoluments, increments, pay protection, consequential pay revision, nature of appointment and all other things, the Hon'ble Central Administrative Tribunal, Ernakulam Branch, in O.A. No.826 of 2017 ( Paulson George case), by its order, dated 22.01.2024, clearly established that the stand of the 13 OAs 1401 & 1343/2017 & 1178/2018 Respondent was absolutely correct and held that the claim of similarly placed persons like the applicant who are of the same batch of 2007 was hit by the principle of latches and arrived at the conclusion that the appointment of the applicants was under direct recruitment quota and not promotion, hence, the question of option does not arise and the claim for fixation of pay under FR 22 (1)(a)(i) is not permissible, as they are all direct recruits, not promotes, and that they are not entitled to any relief since their pay was already protected and the above OA was dismissed on merits. It is pertinent to extract the relevant portions of the order, dated 22.01.2024, of the Ernakulam Bench of this Tribunal, in OA No.826/2017, as under:-
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 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 1st respondent was necessary for effective and complete adjudication upon all questions involved in the OA. Even otherwise, the MA for removing the 1st 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 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 14 OAs 1401 & 1343/2017 & 1178/2018 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 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).
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
15 OAs 1401 & 1343/2017 & 1178/2018 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 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 atAnnexure R2(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 16 OAs 1401 & 1343/2017 & 1178/2018 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 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 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 of the applicants. We find that circulars 17 OAs 1401 & 1343/2017 & 1178/2018 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."
4. The applicants have filed a rejoinder reiterating the averments made in the OA and also an additional typed set.
4.1 It is submitted that BSNL Office order, BSNLCO-ND No. 1-07/2012-PAT (BSNL), dated 28.03.2012, was challenged before the Principal Bench of CAT in O.A. No. 1760/2012. On 08.05.2015, the Principal Bench of CAT quashed the order, and this determination achieved finality as the respondents refrained from further challenge.
4.2 Further, the extract of DOPT Order No. DOPT- 1669266628362, dated 24th November, 2022 (Annexure-45), regarding Technical Resignation and Lien in paragraphs 2.1.1 & 2.4, is reproduced below:
"2.1.1 As per the Ministry of Finance OM No. 3379-E.III (B)/65 dated the 17th June, 1965, the resignation is treated as a technical formality where a Government servant has applied through proper channel for a post in the same or some other Department, and is on selection, required to resign the previous post for administrative reasons. The resignation will be treated as technical resignation if these conditions are met, even if the Government servant has not mentioned the word "Technical"
while submitting his resignation. The benefit of past service, if otherwise admissible under rules, may be given in such cases."
"2.4 In cases of appointment of a Government servant to another post in Government on acceptance of technical resignation, the protection of pay is given in terms of the 18 OAs 1401 & 1343/2017 & 1178/2018 Ministry of Finance OM No. 3379-E.III (B)/65 dated the 17th June, 1965 read with proviso to FR 22-B. In accordance with above clarifications regarding pay fixation, the act of tendering a technical resignation holds no significance, as all the applicants were internal serving officials, transitioning from a lower post to a higher post in the same organization, unmistakably constituting a promotion for pay fixation purposes on their appointment day. These pay fixations are governed by the DOPT Fundamental Rule 22 (FR22-B), specifically FR 22(I)(a)(1).
4.3 It is submitted that the CAT, Ernakulam Bench, dismissed the Original Application No.180/00826/2017, based on reliance upon two circulars issued by the respondents. The first circular is BSNL CO- ND No. 1-07/2012-PAT (BSNL), dated 28.03.2012, which was already quashed and set aside by the CAT, Principal Bench, in O.A. No. 1760/2012, on 08.05.2015, and such determination attained finality as the respondents refrained from further challenge. In fact, the respondents before the CAT Ernakulam Bench ought to have brought the said fact to the knowledge of the CAT, Ernakulam Bench. Not doing so makes the order 'per incuriam' and it cannot be relied upon by the respondents as 'obiter dictum'. Consequently, the applicants in the Original Application No.180/00826/2017 of CAT Ernakulam are in the process of filing a review/appeal petition, incorporating this information, to rectify the alleged injustice. Furthermore, reliance is placed upon another order of the respondents, dated 20.5.2016, which states 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". It is relevant to note here that, in the present case, all the applicants held the pay of around Rs.8500/- in the pre-revised TTA pay scale of Rs.7100- 200-10100. The 19 OAs 1401 & 1343/2017 & 1178/2018 protected pay of the applicants on the date of their appointment/promotion, as pre-revised JTO, stands at Rs.9850, derived from their holding pay in the lower grade TTA, for which they all deserved to get such protection/fixation, with reference to the existing pay scale/rules in force on that day. The same pay was extended to many of the applicants of this OA itself (A19, page 52).
It is crucial to note that the revised TTA pay scale rule was neither announced nor in existence on that day, and, hence, the pay fixation authority cannot operate the pay protection/fixation directly on the Revised TTA pay rules, which did not exist on the day. Consequently, the protected pay remains the same as that on promotion on the appointed day as JTO, i.e., Rs.9850. The principles governing pay revision applied to a specific group of employees, i.e., promoted/appointed from non-executive grade to the executive grade, as JTO/JAO, ought to be uniformly applicable to all individuals within their respective class. However, the same was denied to revise/protect the applicants' pay, as Rs.22820/-, from their date of appointment, which is highly discriminatory and biased. 4.4 The contention of the applicant with regard to the submission on the Principle of latches is that the failure of the Pay Revision Commission, frequent extensions for submitting option, benefits given to some sections of the officials, after 01.01.2007, through option under para 3.6 and associated the orders of 18.5.2011, 24.7.2015 & 28.08.2020, and the pay protection order of the year 2016 are the sole cause of delay, but the Respondents are trying to blame the Applicants. Moreover, it is relevant to mention here that in the meeting with GMs of the Corporate Office, vide letter No.BSNL/20- 8/SR/2017, dated 16.01.2018, one of the agenda points, "the information on TTAs appointed as JTO under direct recruitment quota for examining the methodology of fixation of pay adopted by the circles" clearly justifies the 20 OAs 1401 & 1343/2017 & 1178/2018 claim of the Applicants. The question of latches raised by the Respondents is imaginary and deviating.
4.5 With regard to the submission on FR 27, the applicants submitted that they are also asserting their entitlement to pay protection under FR 27. However, the methodology adopted by the respondents, differing for individuals within the same class, has resulted in disparity. The extract of Ministry of Finance, Department of Expenditure Order No.F.2(46)-E.III/60 dated 5th August, 1960 regarding FR 27 in paragraph 4, is reproduced below:
"4) A connected question whether any change is necessary in the existing rules in regard to fixation of pay of Government servants on appointment to another post as a result of open competition has been under consideration. When a post is advertised and persons in Government service are also allowed to apply for it, if a candidate from the open market is selected, he may be allowed advance increments, whereas the pay of Government servant is normally fixed with reference to the pay he is already receiving in Government service. A possible view is that this involves discrimination against persons already in Government service and that since departmental candidates are allowed to compete with outsiders for non-reserved vacancies, they should be treated in all respects on the same footing as outsiders.
The matter has been examined carefully. While employment in an organisation confers certain privileges it also imposes certain obligations. One of the privileges is continuity of services; one of the obligations is that the employee cannot ask to be treated always on a footing of absolute quality with outsiders regardless of the circumstances and the rules of the organization officials as applicable to officials of his class. Taking all factors into account it has been decided that normally pay in the case 21 OAs 1401 & 1343/2017 & 1178/2018 of Government servants appointed in competition with outsiders in open recruitment should be fixed under the relevant rules regarding pay fixation.
Pay fixation rules are governed by DOPT FR22, with the relevant provision for pay fixation being FR 22(1)(a)(1), which applies to a Government Servant promoted or appointed to another post carrying duties or responsibilities of greater importance than those attaching to the post previously held by him/her. The quoted pay rule remains consistent with the principles of promotion on the date of such appointment.
4.6 With regard to the submission on the fitment formula, applicable only to JTOs in service, as on 01.01.2007, it is stated that the statement of the respondents, in this regard, is factually inaccurate. Approximately, 4,000 JTOS/JAOS, who were formerly situated in a lower non-executive grade within the same class as the applicants in the present OA, were subsequently promoted/appointed as JTOS/JAOs after 01.01.2007, with their pay fixed at the revised 2nd Pay Revision Committee (PRC) rate of Rs.22,820/-. This comprehensive information has been diligently presented in the applicant's OA A14, A15, A16, and rejoinder on page 18, A29, and in the meticulously prepared additional typeset of papers - III Annexure A-44 on page No. 9 table submitted by the applicant. The referenced pay fixation memorandum of Shri. Shaik Naveed Basha from Kolar accurately delineates the factual and proper fixation on the date of his appointment as a JTO, aligning with the imperative of pay protection, based on the pay already received/held during service in a lower non-executive grade. Moreover, Mr. Shouraj Yadhav (200205036) and Mr.Prem Prakash(200204226), who were parties to O.A. No. 1760/2012 before the Principal Bench of CAT, secured past service benefits, as per clause 3.6 of the 2nd Pay Revision Committee (PRC) order No. 1- 16/2010-PAT (BSNL), dated 07.05.2010. Their pay was 22 OAs 1401 & 1343/2017 & 1178/2018 fixed on the date of promotion/appointment (additional typeset of papers - III, Annexure A- 44 at page No. 9, table under Sr. No. 6 and 7). This methodology is consistent with the commitment to extending past service benefits and pay protection under FR27. However, during the pendency of the matter before the Tribunal, the respondents unilaterally asserted that the pay fixation carried out by them, in the case of the above-mentioned officials, was erroneous, and a review would be undertaken after a lapse of 14 years, an action that is not only highly objectionable but also contemptuous as the pay fixation was reinstated in compliance with the CAT, Principal Bench, order supra.
4.7 With regard to the submission on exercising option under para 3.6 of the 2nd PRC order No. 1-16/2010-PAT (BSNL), dated 07.05.2010, it is submitted that pay fixation and pay revision are distinct processes, each stemming from different circumstances. All the applicants herein did not seek the option clause under FR 22 pay fixation. The applicants' claim revolves around the default fixation under FR22, operational on the date of appointment/promotion, with reference to the pay already received/holding during service, which they assert they deserve. It is noteworthy that the committed FR27/FR22/pay protection are rules inherent to the pay fixation process and do not encompass any provisions pertaining to the pay revision process. The applicants' contention in this OA is their entitlement to the option under the pay revision process, for which they are equally eligible and possess lien on the said Non-executive pay revision process, along with associated options. The competent authority cannot deny the option/cannot forcefully reshape their holding pay since the option through their lower grade Non-executive Service, irrespective of the pay revision rules of the organization officials, as applicable to officials of their class. FR22-B is the pay protection rule on Direct Recruitment. It is evident from the above order 23 OAs 1401 & 1343/2017 & 1178/2018 that the Direct appointments under FR22-B are equally eligible as those of the promotions under the pay revision process. It is the sole method to achieve actual pay protection/fixation on the date of appointment/promotion occurring during the pay revision window period. The respondents made adequate provisions under the Non-executive pay revision process for the Non-executive officials who were promoted to the Executive Grade JTO/JAOs, via options under Para 3.6 & associated orders, dated 18.5.2011, 24.7.2015 & 28.08.2020. However, they failed to make adequate provisions for the Non-executive officials appointed to the Executive post of JTO, directly under pay protection, thereby discriminating against their eligible pay fixation & revision.
4.8 There is no specific ruling/provision to deny the fixation of pay of the applicants and to treat their appointment to the post of JTO from the post of TTA as that of promotion. Whereas, the provisions of FR 22-B for pay protection and the Office Memorandum issued by the Department of Public Enterprises and the relevant provisions of other Public Sector Undertakings, like Bharat Heavy Electricals Limited, Bharat Dynamics Limited, SJVN, CRWC [Central Railside Warehouse Company Limited], National Seeds Corporation Ltd., Power Grid Corporation Limited and the Airports Authority of India, referenced in the OA, affirm that the pay on the appointment of internal officials, through open recruitment, shall be the same as that of a promotion. These rules uphold the underlying principle of equal pay for equal work, irrespective of the mode of selection. However, the respondents' actions violate this principle by merely citing the mode of selection. 4.9 The protected pay of the applicants on the date of their appointment/promotion as JTO stands at the pre-revised JTO pay of Rs. 9,850/- (in the scale of pay of Rs. 9850-250-14600), derived from their 24 OAs 1401 & 1343/2017 & 1178/2018 holding pay in the lower grade of TTA, which was approximately Rs. 8,500/- in the pre-revised TTA scale (pay scale of Rs. 7100-200-10100). It is crucial to note that the revised TTA pay scale rule was neither announced nor in existence on that day. The pay revision occurred at a later date under the 2nd Pay Revision Committee (PRC) order No. 1- 16/2010-PAT (BSNL), dated 07.05.2010, with all the applicants having joined before this date. With the clarifications in the 2016 order mentioned by the respondents, pay of the applicants on the date of their appointment/promotion as JTO cannot be protected in the revised TTA pay as it was neither announced nor in existence on that day. Consequently, the protected pay remains the same as that of the promotion on the appointed day as JTO, ie, Rs.9850. 4.10 In consideration of the above, all the applicants, previously serving as Non-Executive, lower-grade TTAs, and, subsequently, appointed as JTOS, an executive-grade position, unmistakably fall within the ambit of promotion for the purpose of pay fixation/revision. Consequently, all the applicants are entitled to select their pay revision option from the date of promotion after 01.01.2007, under para 3.6 of the 2nd PRC order No. 1-16/2010-PAT (BSNL), dated 07.05.2010. It is pertinent to note that this pay revision option from the date of promotion, after 01.01.2007, under para 3.6, was denied only to the applicants, while similarly placed officials were allowed this option. This introduces severe disparity among the same class. Hence, the applicants prayed for allowing the OAs.
5. Heard the learned counsels, Mr.R.Jayaprakash for the applicant(s), and Mr.M.S.Velusamy for the respondents, and perused the records.
25 OAs 1401 & 1343/2017 & 1178/2018
6. ANALYSIS/ CONCLUSION:-
6.1 We have to consider as to whether for the purpose of pay fixation, the applicant(s), who were working with the respondents, having been appointed on a higher post through the direct recruitment process, are to be treated at par with the promotional candidate?
6.2 In Kamlakar & Others vs Union Of India & Others decided on 14 May, 1999 (AIR 1999 SC 2300), the Hon'ble Apex Court observed as under :-
"12. We have considered the limited issue. We are of the view that all these appellants should get the same relief as the appellants in the Civil Appeal which arose out of Special Leave Petition No. 16646 of 1995. Once they were all in one cadre, the distinction between direct recruits and promotees disappears at any rate so far as equal treatment in the same cadre for payment of the pay scale given. The birth marks have no relevance in this connection. If any distinction is made on the question of their right to the post of Data Processing Assistants they were holding and to its scale - which were matters common to all of them before the impugned order of the Government of India was passed on 2.7.1990, - then any distinction between Data Processing Assistants who were direct recruits and those who were promotees, is not permissible. We, therefore, reject the respondent's contention. We have examined the record and the common points arising in this case and those in Civil Appeal which arose out of Special Leave Petition 16646 of 1995 and we are unable to find any lawful distinction between the appellants and those in the other appeal which has been allowed.
We accordingly declare that the appellants are entitled to all the benefits which we had granted to the appellants in the Civil appeal which arose out of Special Leave Petition No. 16646 of 1995 as per our judgment dated 25.9.1998 reported in Chandra Prakash Madhav Rao Dadwe and Ors. v. Union of India and Ors. . We grant the same directions in this case also and direct compliance within 3 months from today. Appeal allowed. No order as to costs."
26 OAs 1401 & 1343/2017 & 1178/2018 6.3 The applicants, during their tenure as Non-Executive lower grade Telecom Technical Assistants (TTAs), were receiving the pay scale of Rs.7100-200-10100 in the respondent's organization, namely, BSNL. While so, they duly applied for the direct recruitment examination for the position of Junior Telecom Officer (JTO) with a Notified scale of pay of Rs.9850-250- 14600, an Executive-Grade role, through the proper channel. This recruitment process was open to both internal officials and external candidates, and the applicants met the prescribed qualifications and relaxations outlined in the Junior Telecom Officer (JTO) Recruitment Rules (JTO RR). Subsequently, they were selected as departmental candidates for the elevated position of JTO. All the applicants were appointed as JTOS during the period from 01.01.2007 to 07.05.2010, which corresponds to the eligible window period for exercising the option for pay revision as per clause 3.6 of the 2nd Non-Executive Pay Revision Committee (PRC) order No. 1- 16/2010-PAT (BSNL), dated 07.05.2010.
6.4 We do agree that the appointment of the applicants cannot be treated as a promotion, but as an appointment under the direct recruitment quota, the benefits of pay protection drawn in the TTA grade, while fixing pay in the JTO grade, have to be taken note of. BSNL Office order, BSNLCO-ND No. 1-07/2012-PAT (BSNL), dated 28.03.2012, was challenged before the Principal Bench of CAT in O.A. No. 1760/2012. On 08.05.2015, the Principal Bench of CAT quashed the order, and this determination achieved finality as the respondents refrained from further challenge, which was not brought to the judicial notice of the Ernakulam Bench. Order in Paulson George (supra) (Enrnakulam Bench) was passed based on the facts that the respondents had submitted that they had applied the benefits of pay protection to the internal officials selected against the direct JTO quota, as per BSNL Corporate Office order, dated 20.05.2016, probably, in context of 27 OAs 1401 & 1343/2017 & 1178/2018 the CCS (RP) Rules, 2016 - with effect from 01.01.2016. Further more, Orders No.5-31/2001-Pers-IV, dated 20.05.2016 (Annexure-1), No.5- 22/2016/Estt-IV, dated 08.09.2016 (Annexure-2) & 15.09.2016 (Annexure-
3) and Letter No.1-06/2015-PAT(BSNL) dated 24.10.2016 (Annexure-4) and 18.11.2016, which are subject matters of challenge, nothing has been brought on record that principles natural justice were followed by affording opportunity which has been specifically averred in the present OA(s). The manner and method of pay fixation is, therefore, questionable.
METHOD
The only requirement for method of fixation of pay,
notwithstanding the mode of selection, the benefit of pay protection available to the Direct Recruits appointed to the post is two-fold i.e.,
(i)Recruitment Rules prescribe a requirement of minimum number of years of experience in a specified area from the field sources (autonomous bodies, PSUs etc.), for appointment under the method of direct recruitment. The benefit will be allowed, irrespective of whether the post is filled by the recruiting agency on the basis of interview or open competitive exam or combination of both. (ii) The benefit of pay protection would be available to an Officer coming from PSU, etc., only if the officer has completed the period of probation successfully for being regularized/confirmed in the post in the parent organization.
MANNER FIXATION OF PAY UNDER FR 22-B(1) CONSEQUENT TO HIS APPOINTMENT TO A POST IN HIGHER LEVEL THROUGH DIRECT RECRUITMENT, WHERE HIGHER DUTIES AND RESPONSIBILITIES ARE INVOLVED.
28 OAs 1401 & 1343/2017 & 1178/2018 On appointment to a post in higher level in different cadre carrying duties and responsibilities of greater importance than those attached to the post held earlier by him on regular basis before such appointment and having a provision of probation period in new post, may during probation draw the presumptive pay of the post held earlier by him on regular basis if it is higher than the minimum of the Time Scale of the new post. He would also draw annual increments on such presumptive pay. However, it is to be ensured that during probation presumptive pay should always be greater than the pay of the new post after drawal of increment(s). Subsequently, on successful completion of his probation, his pay will be fixed under FR 22(I)(a)(1). The Protection of Pay in the above manner should not, at any of these stages, exceed the maximum of the Level of the new post in Pay Matrix. No doubt, the appointment of the applicant(s) on direct recruitment to JTO cannot be regarded as promotion so as to seek to exercise an option under Fundamental Rules. However, it cannot be said that once the applicants have been appointed in same cadre as that of promotee(s), the pay cannot be protected. The pay protection has to be automatic, no artificial distinction can be made in the cadre. It is the manner and method of pay fixation that is questionable. The case of the applicant(s) is that of an anomalous situation in same cadre. The pay scale to higher post cannot be less than that which the applicant was already drawing in the substantiate post. 6.7 We find that Orders No.5-31/2001-Pers-IV, dated 20.05.2016 (Annexure-1), No.5-22/2016/Estt-IV, dated 08.09.2016 (Annexure-2) & 15.09.2016 (Annexure-3) and Letter No.1-06/2015-PAT(BSNL), dated 24.10.2016 (Annexure-4) and 18.11.2016, have been passed without giving 29 OAs 1401 & 1343/2017 & 1178/2018 an opportunity to show cause in the event the same was to the detriment of the applicants.
7. CONCLUSION We, therefore, have no hesitation in quashing and setting aside the Orders No.5-31/2001-Pers-IV, dated 20.05.2016 (Annexure-1), No.5- 22/2016/Estt-IV, dated 08.09.2016 (Annexure-2) & 15.09.2016 (Annexure-
3) and Letters No.1-06/2015-PAT(BSNL), dated 24.10.2016 (Annexure-4) and 18.11.2016, with directions to re-examine and re-fix the pay scale of the applicants in the light of the above discussions and pass appropriate order(s). The consequential relief(s) shall follow. The said exercise has to be completed within a period of three months from the date of receipt of a certified copy of this order. The OAs are disposed of accordingly. Pending MAs, if any, also disposed of. No order as to costs.
(Varun Sindhu Kul Kaumudi) (Manish Garg)
Member (A) Member (J)
10.07.2024
MT