Central Administrative Tribunal - Lucknow
Shyam Lal vs Union Of India on 15 February, 2023
CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No. 08/2004
Order reserved on : 30.01.2023
Order pronounced on:15.02.2023
HON'BLE MR. JUSTICE ANIL KUMAR OJHA, MEMBER (J)
HON'BLE MR. DEVENDRA CHAUDHRY, MEMBER (A)
Shyam Lal, aged about 61 years, S/o Shri R.L. Gupta, R/o
E-II/88, Sector-C, Aliganj, Lucknow.
....Applicant
By Advocate: Shri Shailesh Kumar
VERSUS
1. Union of India through Secretary, Ministry of Communication,
Telecom Department, Sanchar Bhawan, New Delhi.
2. Chief General Manager (Telecom), Eastern U.P. Circle,
Hazratganj, Lucknow.
3. Bharat Sanchar Nigam Ltd. Through Dy. G.M. (Admn) office of
the Chief General Manager, U.P. (East) Telecom Circle,
Lucknow- 226001
.....Respondents
By Advocate: Shri G.S. Sikarwar
ORDER
BY HON'BLE SHRI DEVENDRA CHAUDHRY, MEMBER (A)-
The present Original Application (OA) has been filed seeking quashing of the order dated 23.08.2002 passed by the respondent-2 by which promotion order of the applicant dated 30.12.1998 has been cancelled and the promotional benefits Page 1 of 23 CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL including arrears of enhanced pay and allowances already paid have been withdrawn. In relief, the applicant has sought prayed as under:
"8(I) To quash the impugned order dated 23.8.02 passed by respondent No. 2 contained in Annexure No. 1 to this O.A. with a direction to the respondents to treat the applicant promoted as Telecom Office Assistant Grade-IV under the BCR scheme w.e.f. 8.9.93 with all the consequential service benefit and to refund the amount of Rs. 36,869/- illegally recovered from the gratuity of the applicant in pursuance of impugned order dated 23.8.02 with 18% interest."
2. Brief facts of the case are that he was initially appointed to the post of Time Scale Clerk on 09.12.1963 in the erstwhile Department of Telecom, Revenue Accounts Unit and later promoted to the post of Telecom Officer - Assistant Grade - (II) in 1983. Thereafter, under the Biennial Cadre Review Scheme (hereinafter referred to as BCR Scheme), he was promoted as Telecom Officer Assistant Grade-III w.e.f. 24.10.1990 in the scale of Rs. 1600-2660 (revised 5000-8000). It is the contention of the applicant, while the original notified BCR Scheme envisaged upgradation / promotion of 10% of the employees in Grade-III posts to Grade-IV with pay scale of Rs. 2000-3200 (Revised 6500-10500) on the basis of inter se seniority in Gr-III, however later in compliance of various Court orders, the respondents modified the scheme and directed upgradation to Gr-IV on the basis of seniority in the basic grade i.e. Grade-I. it is the contention of the applicant that due to wrong interpretation of the scheme, the respondents promoted several persons junior to the applicant and other similarly placed Page 2 of 23 CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL persons to Gr-IV which was erroneous. Being aggrieved, the applicant alongwith several other employees represented against this and resultantly, the applicant was promoted to Grade-IV under the BCR scheme. But, later this promotion was cancelled vide order dated 16.09.1999 (Annexure-4) by the respondents that the promotion was done erroneously and that the applicant and others like him were not entitled for any promotion.
2.1 Being aggrieved once again, the applicant alongwith several others preferred an OA No. 380/1999 before CAT, Lucknow Bench which in its order dated 15/18.01.2001 (Annexure-5) quashed the impugned orders which had cancelled the promotions and directed rehearing after grant of adequate opportunity. Thereupon, respondent no. 2 in compliance of the order of the CAT, Lucknow Bench aforesaid issued a show cause notice dated 16.02.2001 to which the applicant replied but the respondents vide their impugned order dated 23.08.2002 (Annexure -1) upheld their cancellation of promotion order passed earlier including withdrawal of the benefits of arrears of enhanced pay and allowances etc., paid heretofore. The applicant contends that this order is in the teeth of the order of the Hon High Court Allahabad and Hon Apex court in similar matters taken up by other similarly placed employees and the respondents have also granted benefit to such employees on the basis of the orders of the Hon High Court and Hon Apex court. Since similarly placed petitioners Page 3 of 23 CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL have to be given the same benefit on grounds of equity, therefore, the applicant is also entitled to such benefits and hence the impugned order should be set aside and similar benefits granted to him. Hence the O.A.
3. The respondents have opposed the submissions of the applicant in the counter reply on the grounds that the impugned order is lawful inasmuch that:
(i) prior to 13.12.95, during the period from 24.10.90 to 12.12.95, promotions to Gr. IV were made on the basis of inter-se-seniority of the concerned officials in Gr. III in accordance with the instructions of DOT, New Delhi applicable at that time.
(ii) That only later, after 13.12.1995, were promotions to Gr. IV made on the basis of seniority of the concerned Gr. III officials in the basic Grade i.e. Gr. I.
(iii) That, as regards the promotion of Shri J.B. Pandey to Gr. IV, he was first of all senior to the applicant as per inter-se seniority in Grade-III and accordingly promoted under the earlier unamended scheme notified vide 16/10/1990, secondly, that he was thereafter allowed to continue in Gr. IV level after 13.12.95 on the grounds as clearly indicated in Para 12(v) / (viii) of the impugned order.
Hence the impugned orders are per the rules and guidelines and so the applicant has no case. Therefore, the O.A is liable to be dismissed.
4. The applicant has rebutted the contention of the Page 4 of 23 CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL respondents and asserted in his Rejoinder that promotions made before 13/12/1995 were against the BCR Scheme and contrary to Communication No. 27-6/90-TE-II dated 11.03.1991 of DOT, New Delhi, a reference to which is also made in the judgment dated 07.7.1992 of Principal bench of Hon'ble CAT in O.A. No. 1455/91 (Smt. Santosh Kapoor & Ors.
vs. UoI & Ors.) which was filed for redressal of grievances arising out of wrong implementation of promotion policy under BCR Scheme in which the erroneous orders of respondents with regards to cancellation were set aside and fresh hearing ordered.
The Apex Court was also pleased to uphold the orders of CAT, Principal Bench vide its orders dated 09.9.1993 [Annexure-R3].
4.1 The applicant has further filed an additional M.P. No. 1945/2017 praying for orders as directed by Hon'ble High Court Allahabad, Lucknow Bench in Writ Petition No. 1779 (SB) of 2008 Shyam Lal vs. Union of India and others wherein it has been held as under:
"4. It is also pointed out that vide Notification dated 31.10.2008, BSNL has also been included and notified under Section 14(2) read with (3) of Act, 1985 and Tribunal has jurisdiction to entertain the service matters of BSNL also.
5. Be that as it may, on the date when Original Application was filed or decided by Tribunal, admittedly there was no order absorbing applicant-petitioner in BSNL, hence finding recorded in para 3 of judgment, which is basis of dismissing Original Application for want of jurisdiction is clearly perverse. We, therefore, have no option but to set aside the aforesaid judgment.
6. In the result, writ petition is allowed. Impugned judgment dated 18.01.2005 is hereby set aside and matter is remanded to Tribunal to decide the aforesaid Original Application on merits after hearing all concerned parties.
7. Since, it is a very old matter, we hope and trust that Tribunal shall decide the Original Application expeditiously, and, in any case, within six months from the date of production of a certified copy of this order.Page 5 of 23
CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL 4.2 An amendment application has been thereafter filed by the applicant stating that similar benefits have been granted to other persons per the order of CAT dated 08th February, 2010 in OA 594 of 2005 linked with OA No. 622 of 2005 and 631 of 2005. The operative portion of the order reads as follows:
"6. The respondents have raised preliminary objection about jurisdiction of this Tribunal in the Counter Affidavit, which was filed in the year 2006. However, the respondents' counsel concedes that as on date this Tribunal has jurisdiction over BSNL. The respondents have also pleaded in their counter affidavit that the Special appeal had also been filed against the order of Learned Single Judge of Hon'ble High Court, which was dismissed. The learned counsel for the respondents submits that aggrieved by the order passed in Special Appeal, the department has filed SLP before the Supreme Court, which is still pending. The respondents do not dispute that claim of the applicants in the instant case are squarely covered by the aforesaid judgment of High Court.
7. Resultantly, all the three O.As succeed and are allowed. The impugned orders dated 5/16.09.2002 and 22.11.2002 are set-aside. The respondents are directed to release the aforementioned amount recovered from the DCRG alongwith interest @ 6% per annum from the date of filing of O.As. till the date of actual payment. However, this decision shall be subject to final outcome of SLP, if any, pending before the Supreme Court. No costs."
It is therefore, pleaded that in light of the above orders of various Courts the applicant be also given same benefit. We find no reason not to agree to the contention of the applicant given the long history and line of cases in identical /similar matters.
5. Inorder to decide the rival contentions, it would be well to examine first of all the impugned order. Same reads as under:
Bharat Sanchar Nigam Limited (A Govt. of India Enterprise) Office of the Chief General Manager, Page 6 of 23 CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL U.P. (East) Telecom Circle Lucknow-226001 To, Shri Shyam Lal Chief Section Supr.
(Through PGMTD Lucknow) No. Staff/DPC Cell/BCR 10%/TOA (G)/97-98 dated at Lucknow the:
08.2002 Sub: Issue of Show Cause Notice in compliance with the judgement and order dated 17.08.2000 of Hon'ble CAT Allahabad in O.A. No. 1005 of 1999 & other connected O.As.
Ref: Your reply dated 16.05.2001 & 04.06.2001 in response to the Show Cause Notice of even No. dated 16.02.2001 The Department of Telecom, New Delhi through it's letter dated 16-10-90 had introduced a promotion scheme known as Biennial Cadre Review Scheme and according to the said scheme the officials having twenty six year of regular service in the cadre are promoted in Grade-III in the pay scale of Rs.-1600-2660 revised to Rs. 5000-8000. In the said scheme, it was also provided that the 10% officials of Grade-III would be promoted to Grade-IV in the pay scale of Rs. 2000-3200 revised to Rs. 6500-10,500. Accordingly the office of the erstwhile CGMT, U.P. Circle, Lucknow had promoted a number of officials in Gr.IV (10%) of BCR Scheme on the basis of inter-se-seniority of Gr.III.
2. The Department of Telecom, New Delhi through it's circular dated 16-10-90 had restructured the cadres existing in the Department and had introduced senior Telecom Office Assistants (Phones)/(General)/ (Telegraphy) cadres.
3. The Department of Telecom, New Delhi through it's circular Letter No. 27-4/87-TE-II(Pt) dated 22-10-93 had restrained those officials for their promotion to grade-IV under BCR who had opted for the restructured cadre.
4. Subsequently the Department of Telecom, New Delhi through it's letter No. 27-4/87-TE-II(Pt) dated 16-06-97, lifted the ban which was imposed through circular dated 22-10-93 and had directed to grant promotion in Gr.-IV under BCR to those officials also who had opted the restructured cadre. The benefit of promotion to Gr.-IV to the officials working in the restructured cadres would also be given from the date from which it was given to their juniors in the old cadre as per their sieniority in the basic grade of the old cadre subject to the overall limit of 10% in Gr.IV as prescribed in the BCR Scheme of the department dated 16-10-90.
5. The Department of Telecom, New Delhi through it's Letter No. 27-4/87-TE-ll(Pt) dated 02-09-98, had directed for creation of supernumerary posts to accommodate the officials in Grade-IV under BCR who are promoted to Gr.-IV in pursuance of circular dated 16-06-97.
Page 7 of 23CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL
6. It is pertinent to mention here that after introduction of BCR scheme and its implementation in respect of grant of promotion to the officials in Grade - IV under BCR on the basis of their inter-se-seniority in Grade-III BCR, some of the officials of Delhi Telecom unit being aggrieved, approached the Principal Bench of this Hon'ble Tribunal and filed OA No. 1455/91. The said O.A. was finally allowed by the Hon'ble Tribunal by means of its judgement dated 07.07.92. The Hon'ble Tribunal New Delhi had directed the Deptt to consider the seniority of basic grade in the respective cadre while granting promotion to the officials in Grade-IV under BCR.
7. Since the aforesaid judgment of Hon'ble Tribunal New Delhi was not in the interest of the Deptt, hence it was challenged before Hon'ble Supreme Court by means of S.L.P. The Hon'ble Supreme Court had dismissed the said S.L.P. thereby upholding the judgement of Hon'ble Tribunal New Delhi dated 07.07.92.
8. A bare perusal of both the aforesaid judgements, of Hon'ble Tribunal New Delhi as well as Hon'ble Supreme Court, would reveal that the Hon'ble Courts have not extended the limit of 10% while delivering its judgement. Hence the Deptt. has to grant promotion to the officials in Grade-IV under BCR on the basis of seniority of the basic grade in the respective cadre within the limit of 10% as provided in the Deptt of Telecom New Delhi circular dated 16.10.90 through which the BCR scheme was introduced.
9. The office of the Chief General Manager (East) U. P. Telecom circle, Lucknow has received the Department of Telecom New Delhi circular dated 13.12.95 in which it was specifically mentioned that it was in supersession of the instructions issued earlier on the subject and it was also directed to grant promotion to the officials in Grade-IV under BCR on the basis of their seniority of the basic grade in the respective cadre, subject to the limit of 10%. It was further directed that all the cases of officials were to be reviewed. Accordingly the O/O Chief General Manager (East) U. P. Telecom circle, Lucknow had reviewed the cases of the officials and granted promotion to the eligible officials on the basis of their seniority of the basic grade in the respective cadre subject to the limit of 1.0%. The officials who became ineligible for promotion to Grade-IV under 10% BCR because of the judgement of Principal Bench of this Hon'ble Tribunal, their reversion from Grade-IV BCR to Grade III BCR was protected by creation of supernumerary posts in pursuance of the instructions dated 10.05.96.
10. The Deptt being aggrieved with the aforesaid judgement of this Hon'ble Tribunal dated 17.08.2000 had filed Writ Petition before Hon'ble High Court, Allahabad. Since there as delay in the receipt of stay orders from Hon'ble High Court, Allahabad as such the Chief General Manager (East) U. P. Telecom Circle, Lucknow directed to implement the judgement of Hon'ble Tribunal dated 17.08.2000 and accordingly the order was issued on 19.02.2001.
11. That in view of the observation made by the Hon'ble Tribunal in its judgement dated 17.08.2000, the O/O Chief General Manager (East) U.P. Telecom Circle Lucknow has issued Show Cause Notice to all the concerned Page 8 of 23 CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL officials including yourself.
12. Your representations dated 16.5.2001 & 04-06-2001 have been carefully considered by the undersigned. After going through the case in it's considering the facts and circumstances in the light of relevant rules and instructions the entirety and undersigned has arrived at the following conclusions:
(i) As per instructions issued vide DOT, New Delhi letter No. 22-6/94-TE-II dated 1312-95 the promotion to Gr.-IV is to be made from amongst Gr.-Ill officials on the basis of their seniority in the basic grade of the respective cadre in supersession of all the previous instructions.
(ii) As per records of this office you were not found to be eligible for promotion to GR.IV at circle level on the basis of your inter-se-seniority in GR. - III (which depended on the seniority in LSG) before issue of the instructions dated 13-12-95 and as such you could not be promoted in Gr.-IV (10%) of BCR scheme prior to 13.12.95. Even after issue of the instructions dated 13-12-95 you were not found to be eligible for promotion to GR.-IV on the basis of your seniority in the basic grade till the crucial date 1-1-95 within the prescribed limit of 10%.
(iii) It is further stated that Shri J.B. Pandey (CGL No.362 - B) junior to you in the basic grade seniority, after completion of 26 years of regular service in Gr.-l & ll was promoted in Gr.-III and since he was senior enough on the basis of his inter-se-seniority in Gr.-III and was corning under 10% of BCR.
he was promoted before 13-12-95.
(iv) It is worth mentioning that the department, after acceptance of the principle of seniority of the basic grade in the respective cadre vide letter dated 13.12.95, which was laid down by the Hon'ble CAT (FB) New Delhi in O.A. No. 1455/91 and upheld by the Hon'ble Supreme Court, had not reverted Shri J.B. Pandey (CGL No.362-B) from Gr.-IV under BCR and had created supernumerary posts as per letter dated 10.05.96 to accommodate him as he became ineligible because the above noted principle of basic grade seniority. in the respective cadre. However the department in the year 1999 had decided to abolish the supernumerary posts and cancellation of the promotion of officials from Gr.-IV as they had become ineligible for continuance in Gr.-IV by virtue of their seniority in the basic grade. Accordingly the circular dated 30.12.99 was issued and Shri J.B.Pandey (CGL No.362 - B) junior to you in the basic grade of T.O.A. cadre was also reverted from Gr-IV along with others.
(v) Since the department's circular dated 30.12.99 was not beneficial to some of the officials of Delhi Telecom unit as such they challenged it before. Hon'ble CAT (PB) New Delhi by means of O.A. No. 425/2000. The said O.A. was allowed by the Hon'ble Tribunal by means of judgement dated 02.06.2000 by quashing the department's order dated 30.12.99. Since the said judgement was not in the interest of the department as such a Writ Petition No. 7302/2001 was filed before Hon'ble High Court, Delhi and Hon'ble High court Delhi by means of judgement dated 13.08.2001 had dismissed the Writ Petition by upholding the judgement of Hon'ble CAT(PB) Page 9 of 23 CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL New Delhi dated 02.06.2000. The department had filed S.L.P. before the Hon'ble Supreme Court against the judgement of Hon'ble High court, Delhi which was also dismissed on 10.01.2002. Hence Shri J.B.Pandey (CGL. No.362-B) is although junior to you in the basic grade of the cadre but he has been allowed to continue in Gr.-IV because of the direction of the Hon'ble Supreme court. Keeping in view line above you cannot claim parity with Shri J.3.Pandey (CGL No.362-B).
(vi) The promotion order dated 30.12.98, which was issued due to misinterpretation of DOT New Delhi instructions dated 16.6.97 and 2.9.98 without observing the prescribed limit of 10%, was cancelled vide this office order of ever no dated 16.9.99. In fact both these letters of DOT New Delhi are meant for providing Gr. IV promotion to the eligible staff working in restructured cadre only. As your case does not come within the purview of instructions issued by the DOT New Delhi on 16.6.97 (Para-3.) and 2.9.98, you are not entitled for promotion to Gr. IV.
Para-3 of the instructions dated 16-06-97 reads as under :
"3. The matter has been examined and I am directed to say that it has now been decided to allow 10% BCR scale of Rs. 2000- -3200 (Gr.-IV) also to the staff working in the Restructured cadre. This benefit will be given to the staff in the restructured cadre from the date their juniors in the old cadre have been given this benefit as per seniority in the basic grade of the old cadre."
You were also not eligible for being accommodated against the supernumerary post in terms of the instructions dated 02-09-98 because the creation of supernumerary posts is not permissible for making fresh promotions.
(vii) Since this office order of even no. dated 16.9.99 was quashed by the Hon'ble CAT, Allahabad on 17-8-2000 and it was left open to the respondents to pass fresh order in the matter after affording adequate opportunity of hearing to the concerned officials. Accordingly the Show-cause Notice dated 16-2-2001 was issued to you.
(viii) It is to mention that in the Circle Gradation List of the basic grade TOA(G) issued during the year 1987 your name appears at Sl. No. 204. The last official in TOA (G) cadre who has been promoted to Gr.-IV from the crucial date 1-1-95 on the basis of his seniority in the basic grade is Shri Doodh Nath Ram whose name stands at Sl.No. 151 in the same Circle Gradation List. Thus against the 10% vacancies in Gr.IV as on the crucial date 01-01-95 no official named below the Sl. no. 151 in the CGL was eligible for promotion to Gr.-IV. The promotion to Gr.-IV is always subject to the prescribed limit of 10% of the officials working in Gr.-III. This limit has neither been relaxed / extended by the Department nor by the Hon'ble CAT (PB) New Delhi in OA. No. 1455/91 whose decision was upheld by Hon'ble Supreme Court. Thus it is concluded that you are neither eligible for promotion to Gr.- on the basis of your inter-se-seniority in Gr. Ill nor by virtue of your seniority in the basic grade and as such you have not been promoted in Gr.-IV till 1611-98. However the promotion granted to you Page 10 of 23 CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL through this office order dated 30-12-98 was issued due to misinterpretation of DOT, New Delhi instructions dated 16-6-9 and 2-9-93. It is further stated that you are not even eligible for promotion against a supernumerary post in view of the reasons stated in the concluding part of Para-(vi) above and as such the question of promotion to Gr.-IV does not arise.
(ix) Although the undesirable and insubordinate language used by you in Para-2 of your representation dated 16-5-2001 against the prestige and sanctity of the office of the Head of the Circle is violative of official decorum and deserves to be viewed serious y but for the present it would be sufficient to caution you to desist from using such language in official correspondence in future.
(x) Adequate opportunity of presenting your case was given to you but through your representation you have not been able to give any valid or logical ground which may justify the maintainability of the erroneous promotion order dated 30-12-1(issued due to misinterpretation), as per rules and instructions on the subject.
(xi) In view of the reasons and grounds mentioned in the preceding Paras the undersigned holds that the promotion order of even No. dated 30-12-98 does not deserve to be maintained as it is not in conformity with the spirit of the rules and instructions as quoted at above.
ORDER The undersigned is, therefore, left with no optic but to hereby cancel your promotion orders to Gr. - IV under 10% BCR as issued vide this office o der of even No: dated 30-12.98. Consequent upon cancellation of the said promotion order the promotional benefits including the arrears of enhanced pay and allowances paid to you will be completely withdrawn. Further action in your case will be taken in accordance with Paras-4; 5 & 6 of the Show-cause Notice issued on the subject.
Please acknowledge the receipt of this letter.
Sd/ (M. Pant) Dy. G.M. (Admn) 23.08.2002 5.1 The whole impugned order has been extracted in order to understand the chain of events if not the reasoning therein concerning the case at hand. Thus we have the order of 16/9/1999 of CGMT Lucknow issued in compliance of 08/9/199 reverting all 47 of those promoted vide 30/12/1998 Page 11 of 23 CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL including the applicant. Thereafter we have the O.A No. 380/199 being filed along with two other O.As in CAT Lucknow Bench in which vide order 15/1/2001 the impugned order was set aside order and rehearing ordered on lines of order of CAT Allahabad, Bench in O.A 1005/1999 order dated 17/8/2000 (the judgment had set aside the order of 16/12/1999 and ordered rehearing). Accordingly, show cause notices were issued vide 19/2/2001 to which representations dated 16/5/2001 and 04/6/2001 were filed on which the impugned order of 23/8/2002 was passed against applicant upholding cancellation order of 16/9/1999 and dismissing promotion order of 30/12/1998 issued by alleged erroneous interpretation of circulars of 16/6/1997 and 02/9/1998 without alleged observing of the 10% limit stated therein. Clearly, the case was of a disputed promotion granted by the respondents on their own dealt with earlier in a number of Tribunal orders. In fact, this Tribunal in a recent order dated 08/02/2023 in O.A No. 539/2015, Abdul Islam Siddiqui (Dead) vs Union of India & Ors., in which similar impugned order have been set aside and grant of benefit to the applicant therein with regards to his promotion. Relevant portions of the order are extracted below:
"5. The key issue is the grant of the same benefit to the applicant in the context of the orders of the Hon High Court and the Hon Apex court in similar matters and the subsequent grant of benefit to such similarly placed persons by way of compliance of the orders of the Courts.Page 12 of 23
CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL
6. The issue is thus in a short compass requiring the examination of the impugned orders in the context of the orders passed by the Hon Apex court / Hon High Court. Therefore, in order to decide the rival contentions, it would be well to examine firstly the order dated 20.11.2002 of cancellation of promotion granted vide date 17.11.1998 [Annexure-2] and then the order Annexure-1 dated 10.07.2015, passed in the latest representation followed by the order of Hon Apex court in similar matters. Relevant portions of the same are extracted below: -
5.2 The order relied upon in the matter is the same one viz that of BSNL Ltd. & Ors. Vs. Magghu Prasad Tiwari (Dead) & Anr., which reads as under:"Civil Appeal No. 7946/2013
(SLP (C) No. 4511 of 2007) - judgment dated 10/9/2013:
BSNL Ltd. & Ors. Vs. Magghu Prasad Tiwari (Dead) & Anr.
....Our attention was drawn by Mr. R.D. Agrawal, learned senior counsel for the appellant-Corporation, to the decision of this Court in Bharat Sanchar Nigam Limited v. Ghanshyam Dass (2) and others - (2011) 4 SCC 374 who contended that the benefit of protection against ouster was available to only such of employee who are parties to the first round of litigation. The same could not therefore be extended to the respondents in the present case. Two considerations which have primarily weighed with the High Court in quashing the cancellation orders have been noticed by us above. Both of them are independently of each other sufficient to justify the reversal of the view taken by the appellant-Corporation. It is common ground that the respondents were in no way responsible for their promotions to the next higher grade. The High Court in State of Orissa v. Adwait Charan Mohanty- (1995) Supp. 1 SCC 470, Union of India v. Sita Ram Dheer- 1994 SCC (L&S) 1445, Nand Kishore Sharma v. State of Bihar - (1995) Supp. 3 SCC 722 and State of Karnataka v. Mangalore University Non Teaching Employees' Assn. - (2002) 2 SCC 302 to hold that the respondents having worked in the higher grade could not be reverted from the same without a lawful justification or any allegation that they had secured an underserved benefit by fraud or misrepresentation. It was also correct in holding that the appellant-Corporation having granted promotion to the respondents with effect from the date their juniors in the basic Grade I were promoted to the Grade IV, there was no reason to undo the promotions. The grant of promotion and the creation Page 13 of 23 CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL of supernumerary posts was rightly held to be a step taken with a view to preventing miscarriage of justice which was evident if a junior was picked up for promotion ignoring the claims of the senior. Reliance upon decision in Ghanshyam Dass's case does not in the facts and circumstances of the case at hand lend any assistance to the appellant.
So also the fact that most of the respondents, if not all, have already retired and some of them have even passed away is another reason why the order passed by the High Court does not call for any interference from this Court in exercise of our powers under Article 136 of the Constitution of India.
In the result these appeals fail and are, hereby, dismissed but in the circumstances without any orders as to costs.
5.3 Relevant portions of the order of Hon High Court dated 22/8/2005 relied upon read as under:
"The Department of Telecom., vide its circular dated 16.10.1990 re-structured the existing cadres in the department and introduced the posts with the nomenclature of Senior Telecom Office Assistants (Functions)/(General)/(Telegraphy). By a Circular dated 22.10.1993 the promotions of those officers, who had opted for the re-structured cadre were restrained. Subsequently the department by its letter dated 16.6.1997 lifted the ban imposed through Circular dated 22.10.1993, and directed the promotions under BCR Scheme to Grade IV to even those officials, who had opted for re-structured cadre. This benefit of promotion in the re-structured cadres was also to be given from the date, from which it was given to the juniors in the old cadre as per their seniority in the basic grade of the old cadre subject to the overall limit of 10% in Grade IV, as prescribed in the BCR Scheme. The department thereafter issued a circular dated 2.9.1998 for creation of supernumerary posts to accommodate officials in Grade IV under BCR Scheme. Aggrieved by the accelerated promotions of their juniors, those who had completed 26 years of service filed a Claim Petition OA No. 14/55 of 1991 Smt. Santosh Kapur and others vs. Union of India. The Principal Bench of the Central Administrative Tribunal decided the original applications on 7.7.1992. The operative portion of the order of the Central Administrative Tribunal, New Delhi is quoted as below:
"7. Analysing facts and arguments in the case, we find that the scale of Rs. 2000-3200 is clearly a part of the BCR scheme 10% of the post in 1600-2660 are placed in the scale of 2000-3200. It appears that BCR provided for this since those coming under BCR would hardly have any opportunity to go to the higher scale of Rs. 2000-3200 by virtue of seniority. The promotion to 2000-3200 should be based on seniority of officials maintained with reference to basic cadres vide clarification in Telecommunication Deptt's letter of 11.3.91. Basic cadre in various posts are shown in para 2 (vi) of the BCR Scheme of 16th Oct, 1990. The scale of Rs. 2000-3200 in like a non functional scale, under Page 14 of 23 CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL BCR and the more drawal of this scale will not entitle the drawee to any preferential seniority in the scale of Rs. 1600-2660.
8. In the above view of the matter, We direct that the promotions to 10% posts in scale 2000-3200 would have to be based on seniority in basic cadres subject to fulfilment of other conditions in the BCR viz. those who were regular employees on 1.1.1900 had completed 26 years of service in basic higher scales. The respondents are directed to consider applicants accordingly from due date with consequential benefits. The employees who may be senior to applicants in the scale of 1600-2660 and who have already been given the scale Rs. 2000-3200 at the cost of those senior in basic grades by any different interpretation of the BCR scheme, may in the discretion of the respondents instead of being reverted, be considered for promotion to scale of Rs. 2000-3200 by suitable adjustments in the number of posts by upgradation as necessary.
With the above direction and observation, the case is disposed of with no order as to costs.
Sd/- Sd/-
(I.P. Gupta) (Ram Pal Singh) Member (A) Vice Chairman (J)"
The Union of India, through its Secretary, Department of Telecommunications filed a Civil Appeal No. 3201 of 1993 which was dismissed by Hon'ble Supreme Court, on 9.9.1993 with following orders;
"In view of the clear provision in the letter dated 3.4.1991 (at page 116 of the paper book) read with the letter dated 18.10.1990 (at page 119 of the paper book) that completion of 26 years service on the crucial date along with the fact of being a regular employee on 1.1.1990 are essential requirements for obtaining the benefit under the Biennial Cadre Review Scheme, the direction given, by the Tribunal in the impugned order in favour of the respondent can not be faulted. On this conclusion, it is obvious that no case for interference in this appeal is made out. The appeal is dismissed. No costs New Delhi sd/-
September 9, 1993 (J.S. Verma)"
It appears that the department continued to make promotions during the pendency of the OA No. 1455/1999, before the Principal Bench of Central Administrative Tribunal at New Delhi, and even thereafter until the decision of the Supreme Court dated 9.9.1993. The Central Administrative Tribunal had given liberty to the department only to protect those, who were wrongly promoted. It was left to the discretion of the respondents, that instead reverting them, they may be considered for promotion in the scale of Rs. 2000-32000 by suitable adjustment in the number of posts, by up gradation as necessary. The department, however, chose to exercise this discretion in favour of all the persons, who were already promoted and issued a Circular dated 10.5.1996 directing not to revert them, and to create supernumerary posts in order to accommodate these persons. The petitioners, inspite of the above orders were not given the benefits of promotion to Grade IV. They were aggrieved by promotion of persons junior to them and the exercise undertaken by the Page 15 of 23 CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL Department to allow them to continue on such posts. The CJM, (Eastern) Lucknow issued a Circular Letter on 11.7.1996 communicating the revised procedure for promotion to Grade IV against 10% posts in BRC Scheme to be followed in respect of employees under the circle. By a Circular Letter dated 13.2.1997 the Department of Telecom. further protected those promotees, who were rendered ineligible for promotion from reversion by creating supernumerary posts, and for rest of the employees the procedure for promotion in accordance with the judgement and the order dated 13.11.1995 was required to be followed. In the meantime the Ahmedabad Bench of the Central Administrative Tribunal in O.A. No. 623/1996 between All India Non-Scheduled Castes/Scheduled Tribes Telegraphy/Telecom Employees Association and another vs. Union of India decided on 11.4.1997, held that the benefits of reservation/roster scheme should not be applied to these promotions as the selections were not involved and that the promotions were in fact up gradation to Grade IV. The respondents, however, chose to follow the order of the Tribunal only with effect from 11.4.1997. The other directions were issued by the Department by its Circular Letter dated 2.9.1998, for creating supernumerary posts to accommodate the officers in Grade IV for the purpose of giving benefit under the Circular dated 16.6.1997.
In this back drop the petitioners were considered for promotion and were promoted by orders issued in the year 1998 by Additional General Manager (Administration) promoting them in the pay scale of Rs. 6500-10500 in the writ petition No. 18265 of 2003, vide orders dated 30.11.1998. These orders were subject to the approval of the Departmental Promotion Committee, which was held on 7.1.1998 and approved these promotions. The petitioners have since thereafter discharged their duties on the post of Chief Telecom Supervisor in Grade IV and have been paid their salary and allowances since 1992-93.
The Department however by orders dated 20.4.1999 cancelled these promotions, and it was provided that the service rendered by these persons in pre-structured cadre shall not be counted for computing the period of 16 years necessary for giving the revised pay scales. The amounts paid in excess was also directed to be recovered from them.
Aggrieved by the reversion orders, some of the petitioners approached the Central Administrative Tribunal, Allahabad by O.A. No. 1228 of 1998 which was allowed by judgement dated 17.8.2000 holding that the reversion orders were in violation of the principle of natural justice. While setting aside the orders respondents were directed to pass fresh orders after giving them an opportunity of hearing. Show cause notices were issued, to which petitioners filed their replies and that by impugned orders dated 20.11.2002 and 10.9.2002 the Department has again decided to cancel these promotions, and to withdraw the benefits..."
..The promotional scheme known as Biennial cadre Review Scheme was introduced to avoid stagnation by providing promotional avenues. The scheme further provided that 10% officials of Grade III would be promoted to Grade IV in the pay scale of Rs. 2000-3200 revised to Rs. 6500-10500. The department accordingly promoted officers on Grade III in 10% of BCR scheme on the basis of inter-se seniority of Grade III. By Circular Letter dated 10.10.1990 the department restructured the cadres and introduced the cadre of Senior Telecom. Assistants (Functions/General/Telegraphy) and by Circular Letter dated 22.10.1993 restricted those officials for their promotion to Grade IV under BCR Scheme, who had opted in the re-structured cadre. The ban imposed by Circular Letter dated 22.10.1993 was lifted by the Circular Letter dated 16.6.1997. Consequently even those officials, who had opted for re-structured cadre, became eligible for promotion in Grade IV under Page 16 of 23 CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL BCR scheme. The benefit of promotion was also provided to be given from the date from which it was given to the juniors in the old cadre as per their seniority in the basic grade of the old cadre subject to overall limit of 10% in grade IV. After the judgement of the Principal Bench of the Central Administrative Tribunal, New Delhi dated 7.7.1992 was affirmed by Supreme Court on 9.9.1993, the department by its Circular Letter dated 2.9.1998 directed for creation of supernumerary posts to accommodate the officials, who were promoted in pursuance of Circular Letter dated 16.6.1997. The Central Administrative Tribunal as well as Supreme Court did not extend the limit of 10% promotions in BCR scheme. The department instead of reverting those juniors, who were promoted, exercised its discretion in terms of the liberty granted by the Central Administrative Tribunal by creating supernumerary posts. It is at this stage that the department committed a mistake by Circular Letter dated 13.12.1995 to grant promotions to the officials in Grade IV under the BCR scheme on the basis of their seniority and to review the cases of all the officials. By the impugned order dated 5.9.2002 passed after issuing show cause notice in pursuance of directions issued by Central Administrative Tribunal, Allahabad the department has considered the cases individually and found that the petitioners were not promoted to Grade IV at circle level on the basis of their inter-se seniority in Grade III. The petitioners could not be promoted in Grade IV (10%) of BCR scheme prior to 13.12.1995 and even after 13.12.1995 they were not eligible to be promoted to Grade IV on the basis of their seniority in the basic grade.
The department, however, admits in the impugned order that the persons junior to the petitioners in the basic grade seniority, were promoted in Grade IV. They were, however, not reverted as supernumerary posts were created by its Circular Letter dated 10.5.1996, to accommodate those who became ineligible. The Department, however, subsequently in the year 1995, decided to abolish supernumerary posts and cancelled the promotions as these persons had become ineligible for promotion by virtue of their seniority in the basic grade. The department found that the promotions orders in favour of the petitioners were issued due to misinterpretation by the department of telecommunication's instructions dated 16.6.1992 and 2.9.1998 without observing the prescribed limit of 10% and were consequently cancelled on 20.7.1999. In fact, these letters were issued to provide promotions to the eligible staff working only in re-structured cadres and were not applicable to the petitioners. Since the petitioners were not eligible for being accommodated against the supernumerary posts, they could not be promoted. In substance and basically the objections taken to petitioners promotion are that the department decided to protect all those, who were promoted and had to be reverted in terms of the orders of the Principal Bench of the Central Administrative Tribunal, New Delhi dated 7.7.1992. In the process the restriction of 10% was diluted. Now the interpretation of the department is that since prescribed limit of 10% would neither be relaxed/extended by the department nor by the Central Administrative Tribunal, the petitioners' promotion found to be wrongly made in order to remove the discrimination requires to be cancelled. The department admitted that the promotions granted to the petitioners vide office order dated 23.11.1998 was issued due to misinterpretation of department instruction dated 16.6.1997 and 2.9.1998.
There are no statutory rules regulating the promotions. All these promotions were provided by executive orders. The department may have made a mistake by promoting ineligible persons namely those who were not senior to the petitioners in gradation list on account of their opting in restructured cadres. However, once the department decided to protect their promotion by creating supernumerary posts Page 17 of 23 CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL and consequently provided for promotions of all those who were senior to senior promoted persons, the Rule of 10% of the BRC scheme for promotions stood relaxed. It is well known principle of law that where there are no statutory rules governing the service conditions, executive orders can be issued and that such executives orders can be amended or modified by subsequent executive orders. The department at the time of protecting the promotions of those who were not found eligible by the Principal Bench of Central Administrative Tribunal, New Delhi in its order dated 7.7.1992 confirmed by Supreme Court on 9.9.1993 decided to protect their promotions by creating supernumerary posts and further decided to remove the discrimination by providing promotions to all those who were senior to such persons, exempted 10% limit of BCR Scheme in promotion. The respondents have not brought to the notice of the court any violation of the service rules in giving promotions to the petitioners except that the petitioners were promoted by way of mistake as they were above the 10% limit of BCR Scheme. The department, however, has not been able to justify the discrimination which was sought to be remedied by promoting the petitioners. It is admitted that some of the juniors were promoted and that the department has protected their reversion by creating supernumerary posts. The department should have realized that such a decision will necessarily cause discrimination to the seniors in the basic cadres and will call for a further remedial action.
The petitioners were promoted subject to their selection through the Departmental Promotion Committee, which was thereafter held approved promotions of all the petitioners. The merit as such has not been compromised in making such promotions.
The Court further find that the equity also supports the petitioners. Almost all the petitioners except a few have retired. It would be unjust and inequitable to withdraw the benefits drawn by the petitioners much before their retirement from their death-cum-retiral gratuity. The fact that they have been given benefit of promotion retrospectively and have actually worked about one year also does not take away the equity which has come into play after the petitioners have retired.
It has been held by the Hon'ble Supreme Court in State of Orissa v. Adwait Charan Mohanty, 1995 Supp (1) SCC 470: 1995 SCC (L&S) 522; Union of India v. Sita Ram Dheer, 1994 SCC (L&S) 1445; Nand Kishore Sharma v. State of Bihar, 1995 Supp (3) SCC 722: 1996 SCC (L&S) 124; Stqte of Karnataka v. Mangalore University Non-Teaching Employees' Assn., (2002) 3 SCC 302 : AIR 2002 SC 1223 that if any additional payment, has been made to the employees for no fault of theirs they should not be penalized for this.
Both the writ petitions are consequently allowed. I find that the orders dated 6/12.9.2002 and the orders dated 5/16.9.2002 in Writ Petition No. 48717 of 2002 and the orders dated 20.11.2002 and 10.9.2002 in writ petition No. 18265 of 2003 reverting the petitioners to Grade III posts can not be sustained, and are accordingly quashed. The respondents are restrained from giving effect to these orders and to recover any benefits drawn by the petitioners.."
In the Special Appeal No. 1195 of 2005 viz: - The Chairman -cum-Managing Director (Bharat Sanchar Nigam Limited) & Ors. Vs Magghu Prasad Tiwari the Division Bench of the Hon High Court vide its order 10/10/2006 upheld the judgment of Single Bench of the Hon High Court which was challenged Page 18 of 23 CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL in the Hon Apex court which held as per extracts above in its judgment of 10/9/2013.
6.2 As may be seen very clearly that the Hon'ble Apex Court has upheld the order of Hon'ble High Court and the Civil Appeal No. 7946 of 2013 arising out of SLP (C) No. 4511 of 2007 BSNL vs. Magghu Prasad Tiwari (Dead) and others alongwith number of Civil Appeals which are stated in the order of the Hon'ble Apex Court (Annexure-8 filed by the applicant). The circumstances and facts are identical as also stated in an elaborate manner in the order of the Hon High Court dated 22/8/2005 and the only reason admittedly is that the applicant was not party in case of Maggu [supra] and orders in similar cases by the Hon High Court Allahabad. This Tribunal in the judgement dated 15.01.2001 in the bunch of 5 OAs which included OA 381/1999 in which the applicant mentioned as Applicant at Sl. No. 25 clearly shows that this Tribunal had also directed quashing of the impugned orders, which favour of the petitioner but show cause notices were to be issued to the applicants therein which resulted in the impugned order. The relevant portion of the order is reproduced hereunder:
"11. For the reasons given above and in the order of Allahabad Bench of the Tribunal in O.A. No. 1005/99, we are of the view that the present O.As are fully covered with the decision of the Allahabad Bench of the Tribunal in O.A. No. 1005/99. The orders dated 20.7.99, 10.8.99 and 16.9.99 impugned in the present O.As have already been quashed by the Allahabad Bench of the Tribunal. They are accordingly held not valid in the present O.As also. The order dated 21.9.99 impugned in O.A. 418/99 also stands on the same footing and the same is quashed. The present O.As are also decided in terms of the order passed in O.A. No. 1005/99 dated 17.8.2000 and it is left open to the respondents to pass an order in accordance with law after affording adequate opportunity of hearing to the applicants. It is also provided that if during the pendency of these O.As nay recovery has been made from the applicants, the applicants are entitled to get the said amount back within a period of 3 months from the date of receipt of copy of this order.
12. All the O.As stand decided accordingly as above. No order as to costs. A copy of this order be placed in all the above O.A. files."
As may be seen, this Tribunal order has straight nexus with the orders of CAT, Allahabad Bench, Hon'ble High Court, Allahabad and Hon'ble Apex Court as discussed above. The ld applicant counsel has also filed judgment of CAT Allahabad, Bench dated 06/9/2018 in O.A 449/2015 wherein on the same issue, the Tribunal has directed grant of benefits to the applicant therein. In such factual and legal matrix, there is no reason why the applicant cannot be given the benefit as given by the Hon'ble Apex Court in the similar matters.
7. Hence, without further ado, it is directed that:
a. The order dated 10.07.2015 and connected order 20.11.2002 are hereby quashed.Page 19 of 23
CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL b. The fixation of pay and pension thereof be done as per the earlier promotion order.
c. The respondent nos. 3 & 4 shall pay the arrears of salary and fix the salary appropriately for pension matter and give the arrears of the pension also from the date the pension was due in the first place. d. There shall be no payment of interest.
e. The compliance of above directions shall be done within a period of three months from the date of receipt of a certified copy of this order.
The OA is allowed accordingly on these terms..."
5.4 In the context of above, as regards the case at hand we find that there is the identical situation of the issue taking its birth as from 16/10/1990 when BCRS was first granted whereby inter alia, 10% of Gr-III employees upgradation /promotion to Gr-IV scale on basis of inter-se seniority in Gr-III which results in some employees being aggrieved because those junior in Basic Grade but in Gr-III earlier got Gr-IV.
Consequently an O.A was filed in CAT Allahabad Bench, viz O.A 1455/1991 in which the Tribunal vide order 07/7/1992 set aside the concerned impugned order. This decision was upheld by the Hon Apex court vide 09/9/1993 on challenge by respondents leading to the subsequent order of 13/12/1995 in compliance thereof. This created a new problem of earlier promoted officials facing reversion to protect which the respondents over stepped the 10% limit and issued orders for protection of such potentially reversion affected officials which then lead to a very complex web of confusion worst confounded and willy-nilly, separately, the order of 16/9/1999 of CGMT Lucknow was issued in compliance of 08/9/199 reverting all 47 of those promoted vide 30/12/1998 including the applicant.
Page 20 of 23CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL Thereafter we have the O.A No. 380/199 being filed along with two other O.As in CAT Lucknow Bench in which vide order 15/1/2001 the impugned order was set aside order and rehearing ordered on lines of order of CAT Allahabad, Bench in O.A 1005/1999 order dated 17/8/2000 (the judgment had set aside the order of 16/12/1999 and ordered rehearing).
Accordingly, show cause notices were issued vide 19/2/2001 to which representations dated 16/5/2001 and 04/6/2001 were filed on which the impugned order of 23/8/2002 was passed against applicant upholding cancellation order of 16/9/1999 and dismissing promotion order of 30/12/1998 issued by alleged erroneous interpretation of circulars of 16/6/1997 and 02/9/1998 without alleged observing of the 10% limit stated therein. Clearly, the case was of a disputed promotion granted by the respondents on their own dealt with earlier in a number of Tribunal orders.
5.5 Given that this Tribunal in its order of Siddiqui [supra] has set aside the impugned orders in identical matter, we deem that in light of above, the applicant is also entitled for grant of same benefit as extended to other similarly placed persons.
This recent judgment of the Tribunal discusses in elaborate details regarding every aspect of an identical matter relating to promotion under BCRS. We do not find any reason not to identify this lis also and find that it is squarely covered by the judgment of this Tribunal in Siddiqui [supra]. So, this order is no new Novus Mundus or New World. The issue has been well Page 21 of 23 CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL dealt before and by this Tribunal in latest apart from earlier references. The ld applicant counsel had cited the order of this Tribunal dated 08.02.2010 in OA 594 of 2005 in the matter of Satya Prakash vs Union of India and Ors., wherein it is held as under:
"7. Resultantly, all the three O.As succeed and are allowed. The impugned orders dated 5/16.9.2002 and 22.11.2002 are set-aside. The respondents are directed to release the aforementioned amount recovered from the DCRG alongwith interest @ 6% per annum from the date of filing of O.As till the date of actual payment. However, this decision shall be subject to final outcome of SLP, if any, pending before the Supreme Court. No costs.
The aforesaid order was upheld in Special Appeal by the Hon High Court as also admitted in para 6 of the judgment in Satya Prakash (supra). The order of Hon Apex Court of 10.09.2013 is very clear in Maggu Tiwari (supra).
6. It is accordingly, directed that -
a. the order dated 23.08.2002 passed by Respondent-2 is quashed;
b. the applicant shall be treated as promoted to post of Telecom Assistant Gr-IV under the BCR scheme with effect from 08/9/1993 and fix pay and salary accordingly and the respondents shall pay any arrear of salary thereof but without any interest;
c. pension shall also fixed as per the fixing of salary as per above directions from date due and any arrears of pension shall also be paid but without any interest;
d. the respondents shall return the amount of Rs 36,869/-
Page 22 of 23CAT LKO BENCH OA No. 08/2004- Shyam Lal v. BSNL recovered from gratuity in pursuance of the order of 23/8/2002; and e. The respondents concerned shall ensure compliance of the above orders not later than three months from date of receipt of a certified copy of this order.
O.A is allowed per above terms.
7. No costs.
(Devendra Chaudhry) (Justice Anil Kumar Ojha)
Member (A) Member (J)
JNS
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