Central Administrative Tribunal - Ernakulam
Joju Joseph vs Union Of India on 10 November, 2016
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00019/2015
Thursday, this the 10th day of November, 2016
CORAM:
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs.P.Gopinath , Administrative Member
Joju Joseph
S/o.Late Joseph
Telecom Technical Assistant
Telephone Exchange
Mannamangalam, Thrissur-680 014
residing at Adichiyil Punnachalil House
Vyloppillinagar, Nellankara
Thrissur - 680 005 ... Applicant
(By Advocate -Mr.P.A Kumaran)
Versus
1. Union of India, represented by
the Secretary to Government of India
Ministry of Communications
New Delhi
2. Bharath Sanchar Nigam Ltd., represented
by its Chairman and Managing Director
Sanchar Bhavan, New Delhi
3. Chief General Manager
Telecom, BSNL, Kerala Circle
Trivandrum
4. Principal General Manager Telecommunication
Bharat Sanchar Nigam Ltd.,
Thrissur - 682 016 ... Respondents
(By Advocate - Mr.Thomas Mathew Nellimoottil for R1 and Mr.Pradeep
Krishna for R 2-4)
This Original Application having been heard on 25.10.2016, the Tribunal on
10.11.2016 delivered the following:
ORDER
By Hon'ble Mrs.P.Gopinath, Administrative Member The applicant is aggrieved by the refusal of the respondents to step up his pay to that of his junior who started drawing a higher pay due to an anomalous point to point fixation done on conversion from the Central Dearness Allowance Pay Scale to Industrial Dearness Allowance pay scale with effect from 1.10.2000.
2 The applicant who commenced service as Group D was promoted as Telecom Mechanic in the erstwhile department of Telecom in November 1999. On 1.10.2000 the BSNL is incorporated and the applicant works under the BSNL on deemed deputation. He is later absorbed in to BSNL with effect from 1.10.2000. On 7.8.2002 the CDA scales of the absorbees in BSNL were replaced with IDA pay scales with effect from 1.10.2000. The conversion was done on a point to point basis. The order clearly stipulated that any anomalies arising out of such fixation where the juniors started drawing higher pay ought to rectified. On such point to point fixation, the junior, Sri.K.I.Francis, of the applicant started to draw higher pay than the applicant. On 06.11.2002 the junior was promoted. On subsequent fixation under F.R 22(I)(a)(1) the disparity between the pay of the junior and the applicants increased. Representations were made to step up the pay. They were kept pending and orders are issued that the anomaly arising out of point to point fixation is under consideration of the anomaly committee. Similarly placed personnel approached the Hon'ble High Court in W.P(C) 30582/2005 which was allowed declaring that the petitioner therein are entitled for stepping up of pay. The said judgment of the learned single Judge was affirmed by the Hon'ble Division Bench. The SLP filed before the Hon'ble Supreme Court was also dismissed. The petitioners in above W.P.(C) 30582/2005 and connected cases were granted the benefits of the judgment. O.A 1025/2010 and connected cases filed by persons similarly situated are allowed directing stepping up and the applicants therein are provided the benefits.
3 Applicant argues that it is a settled legal proposition that claims with respect to anomalies in pay fixation are continuing wrongs which give rise to a recurring cause of action each time the incumbent was paid a salary on the basis of such anomalous pay fixation. The Hon'ble Supreme Court has affirmed this proposition in M.R Gupta v. Union of India (1995) 5 SCC 628; Union of India v. Tarsem Singh (2008) 8 SCC 648. Again in State of Madhya Pradesh and others v. Yogendra Shrivasthava (2010) 12 SCC 538 the Hon'ble Apex Court was pleased to hold as follows:-
'14. b�&............. We cannot agree. Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, 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. Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for higher allowance in accordance with the Rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim of correct payment. ' 4 Relief sought by applicant is for stepping up of pay to that of his junior K.I.Francis who started to draw higher pay by virtue of pay fixation granted on point to point basis in the IDA pay scale and due to fixation given under FR 22 (I)(a)(i) after fixation of pay in the IDA pay scale and to draw and disburse arrears of pay and allowances and consequential benefits. 5 The respondent avers that the applicant who had been denied the stepping up of pay, had not even chosen to make any representation highlighting his grievances or challenged the same all these years. He has now come up with the above O.A in the wake of judgment of the Hon'ble High Court of Kerala and also by this Tribunal in connected cases filed by a group of similarly situated officials allowing such stepping up of pay. No reasons whatsoever have been stated by the applicant for the inordinate delay in approaching this Tribunal for redressing their grievance, if any. The Hon'ble Supreme Court has held in 2006(11) SCC 464 (U.P Jal Nigam & Another v. Jaswanth Singh & Another) that ' When a person is not vigilant of his rights and acquiesces with the situation and the acquiescence prejudices or there is a change of position, such person's writ petition cannot be heard after the delay on the ground that same relief should be granted as was granted to the persons similarly situated, but who were vigilant of their rights. The Hon'ble Supreme Court in 2007(2) SCC 725 (A P Steel Re-
rolling Mill Ltd v. State of Kerala and Others & Connected cases) has also held that, the benefit of a judgment is not extended to a case automatically, if there is long delay in approaching the Court, the same may dis-entitle the party to obtain discretionary relief. The same position was reiterated in 2009(2) SCC 479 (S.S Balu & Another v. State of Kerala & Others) also wherein it was held that 'Delay defeats equity. Relief can be denied on the ground of delay even though relief is granted to other similarly situated person who approached the Court in time. ' The applicant who slept over their remedy from 2001 onwards and thus guilty of laches is not entitled for a relief of stepping up of their pay.
6 The applicant commenced service as Regular Mazdoor under Thrissur Division in the erstwhile department of Telecom on 6.10.1993. The applicant had been promoted to the post of Telecom Mechanic from Regular Mazdoor on 29.9.2000, in the Department of Telecommunications (DOT), Govt. of India i.e, before formation of Bharath Sanchar Nigam Limited. The Regular Mazdoor CDA pay scale of 2550-55-2660-60-3200 in DOT was replaced by 4000-120-6800 IDA pay scale, w.e.f 1.10.2000 for personnel deputed to BSNL. The Central Dearness Allowance (CDA) pay scale of Telecom Mechanic in Department of Telecommunication (DOT) of Rs.3200-85-4900 was replaced with Industrial Dearness Allowances (IDA) pay scale of 4720- 6970, w.e.f 1.10.2000. The applicant had been promoted to the post of Telecom Mechanic from Regular Mazdoor prior to 1.10.2000, in the Department of Telecommunications (DOT), Govt of India ie., before formation of Bharat Sanchar Nigam Limited. On 1.10.2000 Bharat Sanchar Nigam Limited (BSNL) was incorporated and the applicant along with others in DOT/DTS/DTO were initially deputed to work in BSNL on as is where is basis and thereafter absorbed in BSNL with effect from 1.10.2000 based on the option exercised by them. Wage Agreement was entered into between the union(s) and BSNL on 26.4.2002 in respect of introduction of Industrial Dearness Allowance (IDA) pay scale, w.e.f 1.10.2000, in replacement of existing Central Dearness Allowance (CDA) pay scales for Non executive staff (Group C & D) absorbed from DOT etc. The Agreement with the union and the subsequent office order is complete in itself and capable of redressing all eventualities.
7 It is submitted that the applicant was not holding as on 1.10.2000 Group D post in BSNL, as he was already promoted to the post of Telecom Mechanic prior to 1.10.2000. Shri.K.I.Francis was promoted as Telecom Mechanic on 6.11.2002 only. The applicant was in a different cadre with its own seniority and carried a different scale of pay than the lower post held in BSNL by Shri.K.I.Francis. Since the cadre and scale of pay held by the applicant and Shri.K.I.Francis were not identical, the question of stepping up of pay for the purpose of removing any anomaly does not arise in the present case. Equality postulates identity of class and once that is absent, discrimination cannot arise. In the present case, K.I.Francis was promoted to the cadre of TM on 6.11.2002 only. The applicant was in a different cadre with its own seniority and carried a different scale of pay than the lower post held in BSNL by K.I.Francis.
8 The respondent has submitted a comparative statement of pay drawn by applicant and Mr.K.I.Francis. The fixation in IDA pay scale is governed by separate set of orders issued by BSNL Headquarters. The applicant was not holding Group D post in BSNL, as on 1.10.2000 and was promoted to the post of Telecom Mechanic prior to 1.10.2000. As a result the applicant was not in the same scale of pay compared to the juniors cited in the application. 9 Respondent admits that it was clarified in letter dated 24.2.2003 that, seniors getting less pay than juniors are not an anomaly. However, specific cases may be referred to the Standing Committee in Corporate office. 10 It is submitted that in 2002 the Central Dearness Allowance pay scales were replaced with Industrial Dearness Allowance pay scale retrospective from 1.10.2000. At the time of fixation of pay under IDA, the applicant was promoted to the cadre of Telecom Mechanic prior to 1.10.2000 and her pay was fixed in the IDA scale of pay. Here the applicant was promoted as Telecom Mechanics before 30.9.2000. But Shri.K.I.Francis had become Telecom Mechanic only with effect from 6.11.2002. Hence, both these employees are in two categories as on 30.9.2000 and cannot be compared. Comparison can be made only with equals. The drawing of equal pay can be compared only for the employees who are from the same category and their service incidents were happened on the same day. The applicant was not holding Group D (Regular Mazdoor (RM in short) Post in BSNL, the applicant promoted to the post of Telecom Mechanic prior to 1.10.2000. The applicant in the above O.A was allowed fixation under FR 22(1)(a)(I) in CDA scale when he was promoted. Likewise, the alleged junior were also allowed fixation under in IDA scale when he was promoted in 2002. There may be Regular Mazdoors who are drawing more pay than TMs on 1.10.2000, by virtue of their length of service and this is not a case of anomaly. Those RMs who draws more pay than TMs on 1.10.2000 will continue to draw more pay on promotion.
11 Stepping up of pay of Senior on promotion drawing less pay than his junior is done and such is made applying FR 22(I)a(i). In the case of the applicant in the above O.A, anomaly is alleged to have arisen not when senior is promoted or his pay is fixed, but when somebody else is promoted and scale is fixed.
12 As per Government of India order No.22 under FR 22(1)a(I) stepping up of pay should be done with effect from the date of promotion of the junior if both the junior and senior officials belong to the same cadre, and the posts in which they have been promoted or appointed should be identical and in the same cadre. The scale of pay of the lower and higher posts in which they are entitled to draw pay should be identical. If even in the lower posts, the junior officer draws from time to time a higher rate of pay than the senior by virtue of advance increments, the above promotions will not be invoked to step up the pay of the senior officials.
13 The applicant in this O.A is drawing more pay than the junior cited in the O.A in the present cadre (TTA) as per Annexure R1(b) Pay Comparison statement. It is also submitted that the applicant is now working as Telecom Technical Assistant (TTA) in a different cadre and scale of pay. Presently the applicant is drawing more pay than the junior Shri.K.I.Francis. The facts and circumstances of this case is entirely different from the facts of Gurucharan Singh Grewal's case, (2009) 3 SCC 94, relied upon by the applicants and substantially similar to the facts of cases in ESI Corporation v. P.K.Srinivasmurthy (AIR 1997 SC 2983), Union of India v. O.P Saxena (AIR 1997 SC 2978 (1) and Union of India v. E.S.Soundara Rajan (AIR 1980 SC 959).
14. We have heard learned counsel for the parties and examined the documents produced before us. The learned counsel for the applicant argues that the applicant cannot be denied stepping up of pay at par with his junior Shri.K.I.Francis as he belongs to the same cadre. Shri.K.I.Francis was drawing a lower pay vis-a-vis the applicant when the latter was promoted to the post of TM. Mr.K.I.Francis who was promoted two years later cannot be granted a higher pay and if, for any reason including agreement with staff union, point to point fixation etc., he is granted a higher pay, the respondents would have no option but to step up the pay of his senior accordingly. Both the applicant and Shri.K.I.Francis belongs to the same cadre and the applicant cannot be penalized for having been promoted earlier in his turn. Similar cases had been decided by this Tribunal in the past and the issue of limitation is not relevant as the applicant has been subjected to perpetual and recurring disadvantage vis-a-vis his junior.
15. The learned counsel for the respondents would, on the other hand, draw our attention to Annexure R1(b) statement showing the pay scale and pay fixation of the applicant as also Shri.K.I.Francis, his junior. It is argued that the applicant has always drawn a higher pay than Sri K.I.Francis. The pay of an officer on a particular date vis-a-vis his seniors could appear to be higher on account of the date of increment due to him.
16. The only issue that arises for consideration is whether senior could be subjected to a perpetual loss on account of adoption of certain methodology in pay fixation, on the ground that this was agreed with the staff union. Respondents contend that this has arisen from the system of point to point fixation that has been adopted. Since Shri.K.I.Francis spent a longer time in the lower pay scale, he had to be given the benefit of increments while fixing his pay on promotion. The matter has already been considered by the Anomaly Committee and the respondents cannot go beyond the recommendations made by the committee based on which Annexure A8 orders were issued.
17. We are unable to agree with the respondents that the applicants have no option but to live with the anomaly that has its roots in the corporization of the Department of Telecom into BSNL and the introduction of IDA pay scales subsequently. We find that an identical issue had been considered by this Tribunal in OA No.968/2010. The Tribunal in that case referred to the common order in OA No.558/2010 and connected cases delivered on 01.03.2011 and held that the anomaly in the matter of pay of the applicant in comparison to that of the juniors was a grievance still pending and there was a recurring cause of action for redressal.
18 Since applicants were claiming monetary benefits, it was a settled principle that the arrears payable would be confined to 3 years prior to the filing of OA. It was directed that the pay of the applicants therein should be fixed w.e.f. 01.10.2000 at par with juniors in the IDA scale. While the consequential benefits would follow based on such fixation, the monetary benefits would be confined to 3 years prior to the filing of the OA.
19. Applicant in their rejoinder have also pointed out that the recommendations of Anomaly Committee on which the respondents have placed reliance has already been quashed by this Tribunal in OA No.1025/2010. When the Anomaly Committee's report is quashed, there is no ground for Annexure A8 to subsist. This has not been controverted by the respondents.
20. This Original Application is hence allowed by stepping up of his pay at par with his junior Mr.K.I.Francis w.e.f 1.11.2003. Consequential benefits shall accrue to the applicant while the monetary benefits shall be confined to a period of 3 years prior to the date of filing of this O.A; on 13.1.2015. Respondents are directed to revise the pay of applicant within a period of three months from the date of this order. No order as to costs.
(MRS.P.GOPINATH) (N.K.BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER sv