Central Administrative Tribunal - Ernakulam
Padmanabhan K.V vs The Chairman & Managing Director on 19 December, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. No. 183 OF 2013
Monday, this the 19th day of December, 2016.
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
1. Padmanabhan K.V.,
(Retired as Deputy General Manager, BSNL),
6/640, Lakshmi Nivas, Manalimanta Road,
Ambikapuram (P.O), Palakkad - 678 011.
2. K.M. Joseph,
(Retired as Deputy General Manager (CM&HR),
BSNL, Thekkummuriyil House, Vayalamkulam (P.O),
Thiruvalla, Kerala.
3. G. Mathai, (Retired as Deputy General Manager (Marketing),
BSNL, Paravillayil, 61 Puliyoor Gardens,
Nalanchira, Trivandrum - 15.
4. Padmakumar K.S,
(Retired as Deputy General Manager (Udaan)
BSNL), Lakshmi Priya, Krishnapuram,
Neyyattinkara (P.O), Trivandrum - 695 121.
5. J. Samuel, (Retired as Deputy General Manager(BP/IT),
BSNL, T.C. 14/1678, Anugraha,
Kadakkal Lane, Kannam moola,
Trivandrum - 695 011.
6. T. Chacko, (Retired as Deputy General Manager (Urban)
BSNL), B.N. 28, Thottathil, Pongummoodu,
Trivandrum - 695 011.
7. Leelamani Amma J.,
(Retired Deputy General Manager (HR&Admin.)
BSNL), Prasanthi, Vayalar Post, Cherthala,
Alappuzha District - 688 536. - Applicants
(By Advocate Mr. S. Radhakrishnan)
Versus
The Chairman & Managing Director,
BSNL Corporate Office,
Bharat Sanchar Bhavan, Janpath,
New Delhi - 1. - Respondent
(By Advocate Mr.V. Santharam)
The application having been heard on 10.11.2016, the Tribunal
on 19.12.2016 delivered the following:
ORDER
Per: Mrs. P. Gopinath, Administrative Member The applicants entered the service in 1981 as Junior Telecom Officers on direct recruitment in the erstwhile Department of Telecom. The Department of Telecom was converted to Bharat Sanchar Nigam Limited (BSNL) on 01.10.2000. BSNL promoted the applicants to the cadre of Divisional Engineers in the pay scale of Rs. 10000-325-15200 on 03.01.2003. On 18.01.2007 BSNL notified the Time Bound/Post based executive promotion policy wherein it was stipulated that when the promotion of the executive is to the same pay scale, benefit of one increment in the current scale of the executive shall be granted. The Deputy Director General, BSNL on 30.05.2007 clarified that the benefit of one extra increment under the executive promotion policy will be granted to the executives only in cases of adhoc or regular promotion ordered by the corporate office.
2. The applicants were granted time bound upgradation to the scale of rs. 16000-20800 (revised scale 32900-58000) in 2008 BSNL Management Services Recruitment Rules, 2009 regulating the eligibility and method of promotion to the post of DGM was notified on 11.06.2009. On 13.10.2008 4th applicant was promoted as DGM and 3 rd and 5th applicants were promoted as DGM on 15.09.2009. The 5 th applicant submitted a representation on 02.12.2009 claiming the benefit of one increment on promotion. The 6th applicant was promoted as DGM on 01.06.2009. On 28.05.1010 the 7 th applicant was promoted as DGM and on 20.04.2011 the 1st applicant was promoted as DGM.
3. Annexure A-2 promotion policy at Clause II(v) specified that where the functional promotion of the executives is to the same scale of pay as that being drawn by the Executive, he will be entitled to get the benefit of one increment in the current scale. The applicants were working as Divisional Engineers in the scale of pay of Rs. 10000-15200. On absorption to BSNL they were inducted into the IDA scale of Rs. 14500-18700. As per Annexure A-2 promotion policy, the applicants were granted time bound higher grade to the scale of pay of Rs. 16000- 20800 on completion of 5 years service. The scale of pay of Rs. 16000- 20800 was revised to Rs. 32900-58000 on the revision of pay scale. Thus all the applicants were working in the cadre of Divisional Engineer, drawing their salary in the scale of pay of Rs. 32900-58000. As per the Recruitment Rules, the promotion post of Divisional Engineers is DGM in the same scale of pay of Rs. 32900-58000. All the applicants were qualified and eligible to be promoted to the post of DGM and there were vacancies to accommodate them. All the applicants were promoted to the post of DGM after Vigilance clearance and after satisfying their suitability and eligibility for promotion, but on officiating basis. The applicant claimed benefit of one increment as provided in Annexure A-2 since they were promoted to the same scale of pay and are not entitled to the benefit of FR 22(1)(a)(i). All the applicants have retired from service on superannuation. The applicants are entitled to get the benefit of one increment during the period they had functioned as DGM and they are also entitled to get this amount reckoned for all retirement benefits including pension.
4. The applicants are aggrieved by the denial of the benefit of one increment, on the basis of a clarification No. 10 in the letter No. 400- 29/2007-Pers. 1 dated 30.05.2007 (Annexure A-8) stating that the benefit of one increment granted by Clause II (v) of the Executive Promotion Policy dated 18.01.2007 (Annexure A-2) will be granted to the executives only in case of adhoc or regular promotion ordered by the Corporate Office and in fact denying the same to the officers who were given officiating promotion to the higher post on vigilance clearance from BSNL Corporate Office and also on completing the required formalities in the circle, regarding the suitability for local officiating promotion in accordance with the RR and were discharging the higher duties and responsibilities attached to the higher post till the date of their retirement on superannuation. This stand of the respondent argue the applicants is against O.M No. 400-61/2004.Pers.1., dated 18.01.2007 (Annexure A-2) issued by the 2nd respondent, wherein at Clause II (v), it is stated :
'Consequent to grant of any post based promotion, the officers pay will be fixed under FR 22 (1)(a)(i), only in cases where such posts carries higher scale from the current scale of the executive being promoted. Further, where executives' pay scale is the same as that of the promoted posts, benefit of one increment in the current scale of the executives shall be granted on promotion.' It is submitted that the applicants were denied this benefit even though they were drawing their salary in the post of Divisional Engineer (in the pay scale of Rs. 32900-58000/-) when they were promoted to the post of DGM in the same pay scale (Rs. 32900-58000/-), they were discharging higher duties and responsibilities of the promoted post, they were qualified and eligible for promotion in accordance with the RR, and were promoted against existing vacancies. The applicants were originally appointed as Junior Telecom Officers on direct recruitment in the erstwhile department of Telecom. Later, they were promoted as Sub- Divisional Engineers and Senior Sub-Divisional Engineers in the Telecom Department. After the formation of Bharath Sanchar Nigam Limited the applicants were promoted as Divisional Engineers in the pay scale of Rs. 10000-325-15200/-. The applicants while working as Divisional Engineers with BSNL, were inducted into pre-revised Industrial Dearness Allowance (IDA) scale of Rs. 14500-350-18700/- (E4) with effect from 01.10.2000 by order issued by BSNL during 2004.
On completion of 5 years of service, the applicants were granted the higher grade in tune with the Time Bound/Post based Executive Promotional Policy for Group B level officers of BSNL dated 18.01.2007 in the scale of pay of Rs. 16000-400-20800/- (E5) (revised IDA scale was Rs. 32900-58000/-. Later, all of them were promoted on officiating basis to the higher cadre of Deputy General Manager (Junior Administrative Grade) carrying the same scale of pay on different dates. On such promotion, they were not granted one additional increment as stipulated in Clause II (v) of Time Bound/Post Based Executive Promotional Policy dated 18.01.2007. It is informed that as per BSNL letter No. 400-29/2007-Pers. 1 dated 30.05.2007 (Annexure A-8), the applicants are not entitled for the benefit of one increment in the current scale. The clarification given is as follows:
'10. Whether the benefits of extra increments will be granted to executives on officiating promotion to the higher post of the same scale in which they have been placed under IDA scale upgradation? Ans: No. The benefit of extra increment under the executive promotion policy will be granted to the executives only in cases of adhoc or regular promotion ordered by the Corporate office'.
5. It is submitted that based on the above clarification, the request of the applicants stands rejected and hence, the applicants are challenging the letter of clarification dated 30.05.2007 (Annexure A-8).
The effect of the letter is a continuing and recurring cause of action.
6. The Apex Court in (2008) 8 SCC 648, Union of India & Ors v. Tarsem Singh observed as follows:
'To summarise, normally, a belated service related claim will be rejected on the ground of delay and latches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury.' In (2010) 12 SCC 538, State of Madhya Pradesh v. Yogendra Srivastava, and in (1995) 5 SCC 628, M.R. Gupta v. Union of India had held that:
'Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of latches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong.'
7. The applicants were officiating in the higher grade of DGM on different dates and retired on superannuation from the higher post of DGM. They are entitled to get the additional increment during the period they had officiated in the higher grade of DGM and they are also entitled to get this additional increment reckoned as part of basic pay for the purpose of calculating their pension and other retirement benefits. Hence, it is a case of continuing and recurring cause of action and the remedy of the applicants is not barred under Section 21 of the Administrative Tribunals Act.
8. Though the applicants were promoted to the post of DGM on different dates as shown in the table below, they were denied the benefit of one increment from the date of their promotion.
Sl. No. Name of the applicants Date on which Date on which Date of
upgradation promotion was retirement of
was granted in granted to the applicants
the scale of Rs. DGM in the
32900-58000/- scale of Rs.
(DE) 32900-58000/-
1 Padmanabhan K.V. 16.07.2008 20.04.2011 31.05.2011
2 K.M. Joseph 27.02.2008 28.04.2010 31.05.2011
3 G. Mathai 27.02.2008 15.09.2009 30.06.2011
4 Padmakumar K.S 31.01.2007 30.10.2008 31.01.2011
5 J. Samuel 30.01.2008 15.09.2009 31.08.2010
6 T. Chacko 30.01.2008 01.06.2009 31.03.2010
7 Leelamani Amma J. 29.01.2008 28.05.2010 31.10.2010
9. While working as Divisional Engineers in the senior time scale (Rs. 32900-58000) the applicants were granted officiating promotion to the Junior Administrative Grade as Deputy General Managers in the same scale. These promotions were granted on Vigilance clearance from BSNL Corporate Office and also on completing the required formalities in the circle regarding the suitability for local officiating promotion. Subsequently, the BSNL authorities declared policy for promotion as per BSNL Management Service Recruitment Rules, 2009, which came into force on 11.06.2009. It is submitted that the applicants had satisfied the eligibility condition prescribed in the 2009 Recruitment Rules also. On the occurrence of vacancies of DGM in the grade of Executive (JAG) the applicants who were senior most Divisional Engineer, in the feeder category were temporarily promoted to officiate locally as DGM. In Annexure A-7, it is clearly stated that the officers are already in the upgraded scale as per the Time Bound upgradation policy and there will not be any benefit in the pay and allowances to the employees. It is an admitted fact that the applicants were promoted to the next higher grade in the normal Circle hierarchy, on satisfying the conditions stipulated in the Recruitment Rules and on occurrence of vacancies in the cadre of Deputy General Managers. All the applicants were working in the grade of Divisional Engineers and as evident from Annexure A-3 series of orders. The Time Bound Upgradation was not to the next higher grade or cadre, but they were continuing in the same grade of Divisional Engineer even after the grant of Time Bound Upgradation. The functional promotion was granted only to the post of Deputy General Manager.
10. The post of Deputy General Manager is carrying duties and responsibilities of greater importance than those attached to the post of Divisional Engineer. It is submitted that the Divisional Engineer is discharging the function only in a division while the DGM is in charge of a secondary switching area comprising of a number of divisions and in identical situations in all administrative offices.
11. Reliefs sought are to :
'Declare that the applicants are entitled to get the benefit of one increment in the scale of pay of Deputy General Manager on their officiating promotion to the said post, as per Clause II (v) of Annexure A-2.
Declare that the applicants are entitled to get the benefit of one increment as per Clause II (v) of Annexure A-2, reckoned as part of their basic pay for calculating the retirement benefits and pension.'
12. The 2nd respondent in the reply statement submits that the applicants were ordered to officiate locally as Deputy General Managers (JAG) in Junior Administrative Grade just before their retirement. The cadre of DGM is an All India Cadre, which is to be filled from the cadre of Divisional Engineers (DE) on all India seniority. As the local officiating promotion is ordered locally, (ignoring the seniority of other executives in the feeder grade as per All India Seniority List and hence termed as 'Local Officiating Promotion') the Divisional Engineers in Kerala Circle were considered and ordered to temporarily officiate as DGM The seniors who may be available in other Circles were not considered. While working in higher grade on local officiating basis, these executives are given pay in the pay scale of the grade which respondent admits is similar to the grade in the lower post.
13. The respondent in para 3 of the reply statement admits that the higher pay scale is applicable only for the period of their local officiating promotion and is in no way a substantive pay/grade. Substantive pay/grade is applicable only in cases where the executives are promoted on regular/ad-hoc basis as per All India Seniority list and with the approval of the competent authority in that grade. The applicants claim for one increment while they were officiating as DGMs as per the provisions in Clause II (v) of Annexure A-2 Executive Promotion Policy is untenable, argues the respondent, in view of the clarification issued through Annexure A-8 order stating that the benefit of one increment is to be allowed in the case of adhoc or regular promotions ordered by BSNL Corporate Office when the incumbents are in the same pay scale. The applicants were already in the pay band of Rs. 32,900-58,000 and hence there is no change of pay band consequent on their temporary officiating promotion.
14. It is submitted that as a general practice, seniority list of Executives (above the level of Junior Telecom Officers) is maintained on all India Seniority basis and promotions are effected to the next higher post as per applicable bench mark and seniority. However, in BSNL, when a short term vacancy such as leave vacancy or a vacancy due to non-availability of the appropriate officer arises, the senior most persons in a Circle, as per the seniority within a circle based on All India Seniority List, is granted a short term promotion called 'promotion on local officiating' basis.
15. The issue is not whether the promotion was effected on all India seniority or Circle/State seniority as argued by respondent. The issue is that promotion to the next post in the hierarchy was offered by respondent to applicants. This is not a case where the applicants walked into the higher post without a posting order. That the respondent operated the circle seniority list is a conscious action taken to fulfill the management requirement of filling up the higher vacant posts. It is not a case that BSNL Corporate Office was estopped from operating the all India seniority list to fill the vacancy nor does the respondent bring to our notice any hindrance in doing the same. It appears the respondent adopted the short cut of using the services of locally available officers in the state, evidently because outsiders would not be interested in coming to the short term vacancies. The respondent would not extend the benefit to those who ensured that BSNL services are kept running without any hindrance. The respondent in the reply statement contends that the promotions were not adhoc or regular but they provide no answer as to why the officiating promotions were made for long periods without any attempt to fill them on regular basis.
16. The respondent argues that the pay scale of the higher grade availed to an executive under local officiating promotion is temporary, limited by the duration of the charge. Such pay does not carry equivalent pensionary benefit. Pensionary benefits are granted with reference to the substantive pay/grade. Having extracted work of the post with higher responsibility, respondent denies them the benefit of pay and pension, it is argued by the applicants' counsel.
17. Respondents argue that regular or adhoc promotion to a grade is granted considering all executives in a given grade as per the all India seniority list and with the approval of appointing authority. Therefore, the Executive Promotion Policy, which provides time bound financial upgradation to next higher scale as well as post based promotion to the executives in BSNL, has provided for one increment to an executive which is admissible only in cases of adhoc / regular promotion to a grade when he/she is already availing pay scale of that grade through time bound upgradation. Granting the same benefit on local officiating promotion will create anomalies of pay with reference to senior executives outside the Circle, who may not have been considered for local officiating promotion due to lack of any temporary shortages in that Circle. We note that if such an arrangement was not feasible in other circles, the officers of the circle could have been given the benefit of stepping up of pay at par with juniors, if necessary. The respondents admit that the temporary officiating promotion as DGMs in the same scale of pay ordered in the case of the applicants at the fag end of their retirement is purely on local arrangement for ninety days based on the local seniority of the Divisional Engineers in Kerala Circle. But they are conveniently silent on how many such consecutive arrangements were made for the officiating officers. We note that the applicants, except one, have been officiating for periods between one year and 2B= years.
18. Respondent admits that all the applicants except the 6 th applicant were given regular promotion as Division Engineers in the year 2003 through order dated 16.08.2010. Hence, all the applicants fulfill qualifying service of 4 years as DET to DGM. The respondent produced Apex Court judgment Keshav Chandra Joshi v. UOI (AIR 1991 SC 284) with regard to computation of seniority from the date of substantive appointment. Applicants' claim is not one for determining seniority. It is one of fixation of pay for long-term officiating arrangement which was being followed by respondent as short term or leave arrangement. Respondent also admits that vigilance clearance in respect of the cadres of Divisional Engineers and above are issued by BSNL Corporate Office and accordingly, the same was also issued in the case of the applicants before they were given the temporary local officiating promotion as DGMs. The applicants also completed 4 years qualifying service condition as DET for promotion to DGM as they were regularly promoted as DET w ith effect from 2003 and hence were eligible as early as in 2007. The applicants have been kept for long periods of posting as DGM, with an artificial break after prescribed periods, and this itself leads to a conclusion that applicants have worked in posts with higher responsibility for sufficient period to be given the benefit. After VIth CPC both DET and DGM are in the same pay band but they are Senior Time Scale and promotional Junior Administrative grade posts; JAG being the promotional post of DET. The Corporate Office should have effected promotions to DGM on adhoc or regular basis. Their non effecting of promotion resulted in the Circle making local arrangement in order to ensure that responsibility of the higher post is discharged. This ensured that there was regular provision of services and no disruption due to non-availability of officer of appropriate rank and designation to discharge the responsibility of the post.
19. In the promotion order (Annexure A-7), it is stated that the pay of the officers are to be fixed under the provisions of FR 35. As far as the officers who are already in the upgraded scale as per the Time Bound Upgradation Policy are concerned, it is stated that there will not be any benefit in the pay and allowances and hence the restrictions under the FR 35 will not be applicable to them. Under FR 35, it is stated :
'The Central Government may fix the pay of an officiating Government servant at an amount less than that admissible under these Rules.' FR 35 was subsequently clarified by Ministry of Home Affairs by their O.M No. F1/23/80-Estt. (Pay)-10 dated 05.08.1981 stating thus:-
'The restrictions of officiating pay under FR 35 should not be invoked in respect of regular cadre promotions where the employee become due for promotion falls within the zone of consideration and fulfills all the qualifications prescribed for promotion.' It was subsequently clarified in O.M. No.1/10/89-Estt. (Pay 1) dated 22.10.1990 thus:-
'The effect of this order is that, restrictions under FR 35 are not to be invoked, where a Government servant holding the post in substantive or temporary or officiating capacity is promoted or appointed in substantive or temporary capacity is promoted or appointed in substantive or temporary or officiating capacity, as the case may be, subject to the fulfillment of the eligibility condition as prescribed in the relevant RR, to another post carrying duties and responsibilities of greater important.'
20. It was also clarified by the Ministry of Home Affairs that in case of appointment on promotion in the normal line within the cadre but which are not on regular basis, initially the pay may also be fixed under FR 22 (I) (a)(i). If there is substantive increase in the pay so fixed, the pay may be restricted under FR 35. In the present case, the applicants were promoted from the feeder category of Divisional Engineer to the post of Deputy General Manager, after satisfying all the requirements and conditions stipulated in the RR and circular issued by the BSNL, Corporate Office. All the applicants were eligible to be promoted at the time of their officiating promotion as DGM. It is also an admitted fact that they were holding the substantiate post of Divisional Engineer and they were promoted as DGM in the officiating capacity. As stipulated by the Department of Personnel & Training in O.M. No. 1/10/89-Estt. (Pay
1) dated 22.10.1990., FR 35, has no application what so ever in such a situation. Quite apart from this, FR 35, will come into operation only in cases where there is substantial increase in the pay fixed under FR 22 (1)
(a) (I) on promotion. In such a case, the Government is empowered to invoke FR 35 to fix the pay of an officiating Government servant at an amount less than what is admissible under the Fundamental Rules.
Hence, FR 35 can be invoked only after granting the benefit under FR 22 (I) (a) (I). The applicants were working in the scale of pay of Rs. 32900- 58000/- and they were promoted to the post of DGM in the same scale of pay of Rs. 32900-58000/-. In the Time Bound Upgradation Policy dated 18.01.2007, it is clearly stated at Clause -II (v) that the benefit under FR 22 (I)(a)(i) will be fixed only if the post to which the promotion is granted carries higher scales than the current scale. Since the promotion of the applicant was in the same scale of pay there is no question of application of FR 22 (I) (a) (I). In such a situation, Clause II (v) of policy provides that the officers are entitled only for the benefit of one increment in the current scale of pay. The applicants are claiming this increment only and not the benefit under FR 22 (I)(a) (I).
21. Applicants submit that they continued as Deputy General Managers with a technical break after 90 days and all of them retired from the post of DGM on different dates as specified in the table above. The applicants have in Annexure A-11 and A-12 collected documents invoking the provision of the Right to Information Act to establish that the Deputy General Managers are discharging higher duties and responsibilities than Divisional Engineers and their area of operation and jurisdiction are also wider than that of Divisional Engineers. From Annexure A-11 and A-12, it is evident that on officiating promotion to the post of Deputy General Managers the applicants were discharging higher duties and responsibilities and they discharged such duties and responsibilities till the date of retirement. They retired form the same post, drawing the same salary, but discharged all the duties and responsibilities of the higher promotional post of DGM. In accordance with Clause II (v) of Annexure A-2, the applicants are entitled to get the benefit of one increment during the period they had officiated in the post of Deputy General Manager and they are also entitled to get this benefit of additional increment reckoned as part of their basic pay for the purpose of calculating their pension and retirement benefits.
22. Annexure A-2 promotional policy for Group B level officers of BSNL was issued by the Corporate Office of the BSNL and has the effect of a Rule or a law made by the competent authority. Annexure A- 2 has introduced a post based promotion policy at Section II. As per the post based promotion policy, the promotion post of Divisional Engineer Telecom (DET) is to the Deputy General Manager (DGM). Under Clause II (v), the department had not introduced any distinction between regular promotion or adhoc promotion or officiating promotion, knowing that it may not be possible to effect regular promotions at all times whenever a vacancy arose and in such a situation the vacancies will have to be filled up by officiating promotion, in accordance with the RR. Officiating promotions are effected only if the incumbent satisfies all the requirements of the RR and is eligible and competent to be promoted. Hence, only eligible and competent persons are promoted. The vacancy was available. Officiating promotion was made due to various reasons attributable to the respondents, like not convening of the DPC for regular promotion. The applicant cannot be faulted for not promoting him regularly to the said post. In Annexure A-8, the respondents had taken the stand that the benefit of one increment provided under Clause II (v) will be granted only in the case of regular or adhoc promotion. It is submitted by applicants that no such condition is made in the original policy and therefore, Annexure A-8 clarification to the extent it curtailed the benefits granted under Clause II (v) of the original policy is liable to be set aside.
23. Annexure A-2 was issued with the object of granting financial benefits to an employee who is directed to discharge higher duties and responsibilities of the promoted post but since the promoted post and the feeder category post carry the same scale of pay, as FR 22(1)(a)(i) cannot be made applicable to the reasons stated above. Hence, the benefit of one increment in the current scale of pay, which was equivalent to scale of pay in higher post of DGM is the benefit/relief to be provided. This benefit granted by Annexure A-2 cannot be curtailed or taken away by a clarificatory order of the respondent. Benefits granted under Annexure A-2 cannot be curtailed by Annexure A-8 clarification letter.
24. The Hon'ble Supreme Court in (2000) 8 SCC 25, Rudra Kumar Sain v. Union of India considered this issue in detail and held thus at paragraph No. 19 & 20:-
'19........ If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made, then it can appropriately be called as a stop gap arrangement and the appointment in the post as adhoc appointment.
20. In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be b� stopgap or fortuitous or purely adhoc.' In (1998) 4 SCC 291, Selvaraj v. Lt. Governor of Island, Port Blair, the Supreme Court held as under:-
'It is also not in dispute that the salary attached to the post of Secretary (Scouts) was in the pay scale of 1640-2900. Consequently, on the principle of quantum merit the respondents authorities should have paid the appellant as per the emoluments available in the aforesaid higher pay scale during the time he actually worked on the said post of Secretary (Scouts) though in an officiating capacity and not as a regular promotee. This limited relief is required to be given to the appellant only on this ground.' The Apex Court in (2002) 1 SCC 261, Jaswant Singh v. Punjab Poultry Field Staff Assn., held as under:-
'........while the appellant's promotion to the post of Chick Sexer cannot be upheld, given the fact that the appellant had discharged the duties of a Chick Sexer, he was at least entitled to the pay and other allowances attributable to that post during the period he carried out such duties.' The Apex Court has held that it is necessary to release the salary of the higher post if an incumbent had actually worked in that post, even if, he is not actually promoted or not entitled to be promoted to the higher post.
25. Annexure A-2 order was specific that in officiating promotion, where executives' pay scale is the same as that of promoted post, benefit of one increment in the current scale of the executive which is equivalent to the scale of pay in higher post shall be granted on promotion. The local arrangements by the Circle is made to fill up vacancies on local basis as arrangements on all India basis was not made by the BSNL Corporate Office. So the reference to all India seniority etc. is quite irrelevant in the context of prevailing situation of local officiating continuous and long arrangement and hence Annexure A-8 order cannot curtail the benefits granted under Annexure A-2 policy of the BSNL. The averment that granting extra increment on local officiating promotion will create anomalies in pay with respect to senior executives outside the circle has to be addressed separately in accordance with law. That would certainly not be a reason to deny adhoc or regular promotion benefits. The applicants also argued that on an all India basis there is no uniformity in the pay of junior and senior from State to State. Anomaly on pay fixation is not a reason for refusing the applicants the benefit of one increment in the current scale, when pay in the current scale and scale in the promotional higher DGM post is the same.
26. Where the vacancies existed for long periods, making arrangement on local officiating basis with technical break should have been replaced with adhoc arrangements, so that officials would have got the benefit of discharging higher responsibility in higher post. Exigencies of public service necessitates such arrangements on a local basis. Such arrangements would not attract officers on all India seniority, who would rather give preference for a regular promotion. When a person continues in a post for a long period i.e. one year and more such an appointment cannot be termed as stop-gap or fortuitous. It is not an arrangement made by accident or chance but one made by design by a well thought out process. In service jurisprudence this is not a temporary contingency but a long term arrangement to meet administrative needs. It was obviously not possible to leave the higher post vacant and in order to meet the contingency, an arrangement was made wherein applicants' services were utilised for the higher post for long periods. It was not fortuitous since such long term vacancies should have been reasonably foreseen and regular arrangements made. However, not having made so, the benefits should not be denied to those who served in the 2nd respondent's hour of need.
27. The benefit of one increment is to be extended in the case of officials on local officiating basis for long periods in view of the fact that Annexure A-2 order made it abundantly clear to grant one increment irrespective of their status in the substantive grade. The Apex Court judgment in Tarsem Singh's and M.R. Gupta's case on limitation are not applicable to a case of recurring cause of action. Those decisions have no relevance in view of various other decisions of the Apex Court where the cause of action is held to be having a continuing and recurring effect like fixation of salary and pension. The claim for extra increment is by the virtue of the position held by the applicants in officiating capacity in the higher post of the JAG cadre performing higher duties and responsibilities for long periods with artificial breaks for which adhoc or regular arrangements could have been made. This would not apply to the first applicant whose period of officiating promotion was very short, for 40 days only.
28. The prayer in the Original Application is accordingly allowed in respect of all except the first applicant. No order as to costs.
(Dated, this the 19th day of December, 2016.)
(Mrs. P. GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
ax