Central Administrative Tribunal - Delhi
Smt vs Union Of India on 3 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.2860/2012
Reserved on: 23.12.2013
Pronounced on: 03.01.2014
HONBLE SHRI G.GEORGE PARACKEN, MEMBER (J)
HONBLE SHRI ASHOK KUMAR, MEMBER (A)
Smt, Lajjawati W/o
Late Shri Banwari Lal,
Age 63 years
S/o Late Shri Mangal Ram,
Senior Section Supervisor/
Sr.TAO (Retd.),
BSNL/New Delhi,
R/o B-I/47, Nand Nagri,
Delhi-93. Applicant
(By Advocate: Shri Khairati Lal)
Versus
Union of India,
Through
1. Chief Engineer, CO-Ordination,
Office of Principal Chief (Civil), BSNL,
C-5/1-512, Bangla Sahab Marg,
New Delhi-01.
2. Asstt. Director General (A),
Bharat Sanchar Nigam Ltd.
ARA Centre E2, Jhandewalan Extension,
New Delhi-110055.
3. The Executive Engineer (Elec.)-II,
BSNL, Elect. Dn.,
New Delhi. Respondents
(By Advocate: Shri R.V. Sinha)
ORDER
Honble Shri Ashok Kumar, M(A):
The applicant is aggrieved by the respondents for not regulating the pay of the applicant in accordance with BSNLs letter dated 2.3.2010 with reference to grant of pay equivalent to junior despite clear order of the competent authority, because of which he is getting pensionary benefits at reduced rates. He has, therefore, sought the following reliefs in this OA:-
8(i) Direct the respondent no.3 to refix the pay of the applicant and arrange payment of arrears thereof along with 18% interest thereon as the respondent deliberately and knowingly has not arranged payment of the applicant after doing refixation. Inconformity to GM, BSNLs clear directions on the subject.
2. MA-2365/2013 has been filed to allow the applicant in the MA to bring her name on record as legal heir because of the death the applicant, that MA was allowed on 09.09.2013.
3. According to the facts in the OA, the applicant was appointed as LDC/WC Grade-II on 18.5.1978 and was confirmed in his category since 1.4.1983. He had qualified the departmental merit rated test on 7.7.1983 and was promoted in the next higher grade on TOA Grade-III/IV from 1.7.1996. The pay of the applicant was fixed w.e.f. 1.7.1996 at Rs.5150/- whereas his junior Shri Balbir Singh was being paid Rs.5980/-. Since both employees belong to the same cadre and working in the same department, difference in pay was an anomaly and needed to be rectified by the BSNL administration. The Assistant General Manager (TE) letter dated 2.3.2010 advised the concerned with regard to re-fixation of pay of the official who had been promoted as BCR Grade-III by comparing with their junior in pursuance of the instruction dated 24.2.2004 of BSNL, according to which such re-fixation was to be done from the date of promotion of their junior to BCR Grade-III, without any option regarding fixation of pay. A copy of this instruction dated 2.3.2010 has been filed at Annexure A-2. Respondent No.2 advised Respondent No.3 to act accordingly. This has not been done and despite 15 employees who had qualified merit rated test and have drawn salary as per re-fixation along with arrears, yet the applicant has not been given similar treatment. The applicant therefore, submitted representation dated 15.7.2000 followed by reminders but action has not been taken to re-fix the pay and arrears. The applicants revision of pensionary benefits has also not been done. This is not only illegal and arbitrary but against the principles of natural justice and statutory provisions.
4. Respondents have filed counter reply and have stated in paragraph 4.3 of the reply which is reproduced below :-
Pars 4.3 That in reply to the contents of corresponding para, it is submitted that Shri Balbir Singh was drawing pay of Rs.5450/- as on 1.7.1996 instead of Rs.5980/-. Shri Balbir Singh was appointed on 31.5.1971 as W.C. Gr.II(LDC) in the pay scale of Rs.110-180 and pay was fixed at Rs.110 on 31.5.1971. The pay scale of Shri Balbir Singh was revised on account of Pay Commission w.e.f. 31.5.1973 (revised pay scale was Rs.260-400). The pay of Shri Balbir was Rs.308 as on 1.5.1978 while Shri Banwari Lal was appointed on 18.5.1978 as a W.C. Gr.II(LDC) in the pay scale of Rs.260-400 and his pay was fixed at Rs.260 as on 18.5.1978. Shri Balbir Singh was senior than the applicant herein and was drawing more pay than the applicant herein from time to time in the lower post. The applicant herein was promoted as W.C. Gr.I(UDC) on account of Department merit rating test in the pay scale of Rs.330-560 and his pay was fixed at Rs.330 on 16.7.1983 and became senior than Shri Balbir Singh. They have also stated that Balbir Singh was drawing higher salary then the applicant and hence, the question of stepping up of pay does not arise. Copy of extract of relevant rules along with the comparative statements of pay scale has been annexed at Annexure R-1 (Colly.) to the counter affidavit. The respondents have also contended that the allegations made in the corresponding paras are not only denied but are misleading and misconceived. In the light of the facts stated in the reply, respondents have urged that the OA be dismissed without any relief.
5. Rejoinder has been filed stating that all juniors namely, S/Sh.Balbir Singh, Om Prakash Sudan and B.K. Sehjal have already received payment of arrears after refixation in BCR Grade-III while the applicant was ignored. Moreover, applicant states that his promotion to BCR Gr.III under special circumstances before completing 26 years of service and promotion could not be treated as promotion in normal course and hence, the applicant is not covered under the provisions of FR 22(1)(a)(i) which regulates such promotion during normal circumstances. He has sought implementation of the order of AGM(TE), BSNL dated 2.3.2010 as well as letter dated 28.5.2011 and 14.3.2012 of Asstt. Director General (Admn.) to refix the pay of the applicant at par with his juniors and to arrange payment of arrears with interest.
6. We have heard Shri Khairati Lal, learned counsel for the applicant and Shri R.V.Sinha, learned counsel for the respondents.
7. We have perused the pleadings and documents and also considered the arguments of both sides. We have noted Annexure A-I i.e., a letter dated 14.3.2012 of the Asstt Director General (A) addressed to Executive Engineer (Elec.)-II, BSNL Elect. Dn, New Delhi forwarding a copy of the representation of the applicant and requesting that needful may be done as per letter dated 30.9.2010 and 28.5.2011. We have also noted Annexure A-II which is a letter dated 2.3.2010 addressed to the Corporate Office of BSNL to All Heads of Telecom Circles on the following subject:-
SUB: Fixation of pay from the date of next increment in lower cadre on promotion under BCR in pay scale of 5000-8000 with reference to date of promotion to his junior. Paragraph 3, 4 and 5 of the said letter reproduced below:-
As per the instructions issued vide aforesaid letters, the pay of the senior official has to be fixed in the BCR Gr.III pay scale from the date his junior in Gr.II was promoted to BCR Gr.III. Accordingly, the pay of these officials has to be fixed from their respective dates of promotion to BCR Gr.III and there was no option available to the senior officials for fixation of their pay from the date of next increment in their lower cadre. Since the senior officials have been promoted to BCR Gr.III under special circumstances by comparing with their juniors, before completing 26 years of service, their promotion cannot be treated as promotion in normal course. Hence, these officials are not covered under the provision of FR 22(1) (a) (i), which regulates their pay on promotion during normal circumstances.
In the case of the officials who have been promoted to BCR Gr.III in view of the instructions contained in BSNL C.O. letters dated 24/02/2004 and 28/04/2004, the date of next increment (DMI) of the senior official is DNI of the junior official, by comparing with whom the senior official has been promoted to BCR Gr.III. Further, since the senior officials have been promoted to BCR Gr.III from the date of promotion of their juniors, the pay of both the officials is to be remained identical and hence any change of DNI in respect of the senior official, consequent upon his option, may adversely affect the junior official, which may in turn cause anomaly.
It is, therefore, requested to take necessary action, with regard to re-fixation of the pay of the officials, who have been promoted to BCR Gr.III by comparing with their juniors in pursuance of the instructions contained in BSNL C.O. letters dated 24/02/2004 and 28/04/2004, from the date of promotion of their junior to BCR Gr.III without any option regarding fixation of pay.
8. It is seen from the seniority list at Annexure A-III that the applicant is at Sl.No.17 of the list and senior to Sh. Balbir Singh, whose name figured at Sl.No.19 in the said list. Annexure A-V is a copy of the internal letter from Asstt. Director General (Admn.) to Executive Engineer (E)-II/BSNL inter alia stating that instructions had already issued vide letter dated 30.9.2010 to regulate the pay of Shri Banwari Lal (applicant) in accordance with the instructions contained in BSNLs letter dated 2.3.2010 and that this issue does not seem to have been settled because of which legal notice has been received from the applicant. The letter further advised to regulate the pay of the applicant under the provisions of letter dated 2.3.2010. On the other hand respondents along with their counter reply have filed Annexure R-1 which is regarding stepping up of pay to remove anomalies. According to condition No.5, the junior should not have been drawing more pay than the senior from time to time in the lower post. From the comparative statement of pay scale of Sh. Balbir Singh and the applicant, it appears that the applicant was appointed as LDC w.e.f. 18.5.1978 in the pay scale of Rs.260-400, whereas Sh. Balbir Singh was appointed as LDC w.e.f. 31.5.1971 in the pay scale of 110-180. On the other hand, the applicant was promoted as UDC on 16.7.1983 and his pay was fixed at Rs.330/- while Sh. Balbir Singh was promoted as UDC later on 25.3.1984 and his pay was fixed at Rs.360/-. When the pay was revised, the applicants pay was fixed at Rs.1260/-on 1.1.1986 in the pay scale of Rs 1200-2040, and his pay in 1987 was Rs.1290/-. On the other hand, the pay of Sh. Balbir Singh was revised on 1.3.1986 in the same pay scale of Rs.1200-2040 and his pay was fixed at Rs.1290/- and his pay in 1987 was Rs.1320/-. The comparative statement of pay scale in between Sh. Balbir Singh and Sh. Banwari Lal (Applicant) is follows:
Sl.No. Sh. Banwari Lal Sh. Balbir Singh
1. Date of appointment as a LDC * 18.5.1978 in the Pay Scale Rs.260-400 Date of appointment as a LDC * 31.5.1971 in the Pay Scale 110-3-121-4- 153-EB-4-175-5-
180.
2. Date of Promotion as a UDC 16.7.1983 Pay fixed Rs.330/-
Date of Promotion as a UDC * 25.3.1984 Pay fixed Rs.360/-
3. Pay fixed on 1.1.1986 = Rs.1260/-
In the pay scale Rs.1200- 2040. Pay fixed on 1.3.1986 * Rs.1290/-
In the pay scale Rs.1200- 2040.
4. Pay in 1987 = Rs.1290/- Pay in 1987 = Rs.1320/-
5. Pay on 1.7.1996 = Rs.5150/- Pay on 2.2.1996 = Rs.5450/-
6. Pay on 1.7.1997 = Rs.5350/- Pay on 1.2.1997 = Rs.5600/-
7. Pay on 1.7.1998 = Rs.5450/- Pay on 1.2.1998 = Rs.5750/-
8. Pay on 1.7.1999 = Rs.5600/- Pay on 1.2.1999 = Rs.5900/-
9. Pay on 28.7.2000=Rs.5900/- Pay on 1.2.2000=Rs.6050/-
9. It thus appears that Sh. Balbir Singh was appointed earlier than the applicant and was drawing more pay than the applicant from time to time in the lower post. It was because of the applicant being promoted as UDC under the department merit rating test on 16.7.1983 that his pay was fixed in the pay scale of Rs.330-560 at Rs.330/- while that of pay of Sh. Balbir Singh was fixed at Rs.360/-. It is thus apparent that Sh. Balbir Singh was drawing more salary than the applicant. In view of this, the Condition No.2 regarding stepping up of pay to remove anomalies (Annexure R-1) as per CCS (RP) Rules, 2008 would be applicable because Sh. Balbir Singh was senior to the applicant and was drawing more pay than him by virtue of the fact that he was appointed earlier than the applicant and his pay was fixed at Rs.360/- on his date of promotion via-a-vis the applicants pay was fixed at Rs.330/-/ The applicant became senior to Sh. Balbir Singh only because he was promoted under the department merit rating test in the pay scale of Rs.330-560 on 16.7.1983 and his pay was fixed at Rs.300/-. Otherwise, Sh. Balbir Singh was senior to the applicant and was drawing higher salary then him by virtue of his appointment as LDC w.e.f.31.5.1971 vis-`-vis the appointment of applicant as LDC w.e.f. 18.5.1978. As per the seniority list that has been produced in the OA (Annexure A-III) in which the applicant was shown as senior to Sh. Balbir Singh, was circulated on 8.4.2005 in the light of the judgment of the Honble Supreme Court for the purpose of their posting on Supervisory seats. It is mentioned in the letter dated 08.4.2005 forwarding the seniority list that:
This will not however confer any right to claim the 10% Gr.IV (CSS) promotion which will continue to the governed on the basis of seniority in the basic grade. In this way, the seniority list that has been produced does not confer any right to the applicant for the purpose of seniority. In view of the above facts and circumstances, we do not find any merit in the contention of the applicant raised in the OA.
10. OA being devoid on merits is accordingly dismissed. No costs.
(Ashok Kumar) (G.George Paracken)
Member(A) Member(J)
/rb/