Central Administrative Tribunal - Lucknow
Sadanand Dubey vs Bharat Sanchar Nigam Limited on 16 April, 2024
CAT,Lucknow Bench OA No. 333 /2011 Sadanand Dubey Vs. U.O.I.&Ors
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No. 333/2011
Order Reserved On 14.03.2024
Order Pronounced on : 16.04.2024
Hon'ble Mr. Justice Anil Kumar Ojha, Member-Judicial
Hon'ble Mr. Pankaj Kumar, Member-Administrative
Sadanand Dubey, aged about 33 years, S/o Late Sri Babu Ram Dubey,
R/o Village & P.O. Gerawan (Suleha), District Barabanki, at present
working as Senior Telecom Office Assistant (General) o/o Contoller of
Communication Accounts U.P. (E) Circle VikasKhand I Telephone
Exchange Building Gomti Nagar Lucknow.
.....Applicant
By Advocate: Shri Praveen Kumar
VERSUS
1. The Managing Director,
B.S. N.L.Janpath,
New Delhi -01.
2. The Chief General Manager,
U.P. (East) Circle,Lucknow.
3. The Chief General Manager,
M.P. Circle, Bhopal.
4. The Telecom District Manager,
Shajapur,M.P.
.....Respondents
By Advocate: Shri Gyanendra Singh Sikarwar
ORDER(ORAL)
Per Hon'bleMr.Pankaj Kumar, Member-Administrative In this case relating to promotion, the applicant seeks the following reliefs:
(a) That this Hon'ble Tribunal may kindly be pleased to direct opposite parties to promote the applicant to Sr. TOA Grade 4000/6000 w.e.f1/x/2001 with all consequential service benefits like pay increment promotion etc. with arrears of pay etc. w.ef 1/x/2001 along with interest over it @ 24%.Page 1 of 5
CAT,Lucknow Bench OA No. 333 /2011 Sadanand Dubey Vs. U.O.I.&Ors
(b) Any other relief deemed just and proper in the circumstances of case with cost of OA in favour of applicant.
2. The facts of the case are that the applicant was appointed as Telecom Office Assistant (TOA) (G) on 27.01.2000 and promoted as Sr. TOA (G) with effect from 12.09.2000 on officiating basis under MP Circle. Thereafter, he was transferred as TOA (G) to UP (East) Telecom Circle on deputation. While he was working on deputation, his juniors were promoted to Sr. TOA (G)from 01.10.2001 vide order dated 28.11.2002 in his parent cadre at Shajapur, MP. The applicant applied for training of Sr. TOA on 19.06.2006 and on 08.04.2008 for his regular promotion to Sr. TOA (G) and also represented on 27.06.2009 to Deputy Director General (Estt), BSNL. Correspondence ensued between MP Circle and UP Circle and the applicant was granted conditional promotion to Sr. TOA (G) with effect from 12.04.2010. Aggrieved, the applicant has preferred this OA.
3.1 It is the contention of the applicant that as per the rules governing seniority, he is entitled to promotion as Sr TOA (G) with effect from 01.10.2001, i.e., the date from which his juniors were promoted. Following provision has been cited by the applicant in this regard:
"Deputationist absorbed subsequently - Normally, seniority will be from the date of absorption. However, if he had been holding the same or equivalent grade in the department, seniority will be from the date of deputation or date of his regular appointment in the grade in his previous department, whichever is earlier."
[DoPT O.M. No. 22034/5/2004-Estt. (D) dated 15.12.2004] 3.2 It is further contended that it is the responsibility of the respondents to depute all officials for training according to their seniority. It is their fault that they did not depute the applicant for training in time.
4.1 The respondents state that the applicant was promoted as Sr. TOA (G) on officiating basis from 12.09.2000. He was transferred, at his Page 2 of 5 CAT,Lucknow Bench OA No. 333 /2011 Sadanand Dubey Vs. U.O.I.&Ors own request and cost, as TOA (G) on temporary transfer/deputation to UP (East) Telecom Circle vide order dated 21.03.2001. He later joined in the office of the Joint CCA, Lucknow on 06.02.2006 at his own request and cost as a special case. As per rules, TOA (G) having four years of regular service are promoted to Sr. TOA (G) after undergoing training of Sr. TOA (G). The applicant's juniors were promoted as they had undergone training of Sr. TOA (G) whereas the applicant did not undergo the training. The applicant joined in the new unit, i.e., UP (East) Circle from 06.02.2006 on his absorption in that unit and entered into the seniority list of TOA (G) cadre as junior most official under Rule 38 of P& T Manual Vol IV. The applicant has been promoted from 12.04.2010 after successful completion of training vide order dated 31.05.2010. 4.2 It is further contended by the respondents that there was a ban on transfer in Sr. TOA cadre and there was no vacancy in Sr. TOA (G) cadre at Lucknow. Inter Circle/SSA transfer was allowed in wasting TOA (G) cadre and this was well known to the applicant. That is why he applied for inter Circle transfer as TOA (G) and did not claim promotion to Sr. TOA (G) until his joining in the new unit at Lucknow on 06.02.2006. The applicant never represented for promotion to Sr. TOA (G) before his parent unit, i.e., Shajapur MP Circle as he was well aware about non feasibility of his transfer due to non availability of Sr. TOA (G) post at Lucknow. If the applicant was interested in his promotion in the parent Circle, he should have represented to that Circle.
5. We have heard both the parties.
6.1 It is not disputed that inter Circle transfer of the applicant was made from MP Circle to UP (East) Circle at his request and in the grade of TOA (G). A perusal of the application form along with the declaration signed on 22.01.2001 by the applicant for his inter Circle transfer under Rule 38 reveals that he sought such transfer on account of his mother's Page 3 of 5 CAT,Lucknow Bench OA No. 333 /2011 Sadanand Dubey Vs. U.O.I.&Ors illness and agreed to the following terms and conditions under rule/para 38 of P & T Manual Vol IV (Annexure SCA-1 of the supplementary counter affidavit filed by the respondents):
"1. That my transfer from Telecom District Shajapur to Lucknow is under Rule 38 of P & T Manual Vol IV.
2. That I will not claim any T.A. or Transit time.
3. That my seniority on transfer will be fixed in accordance with the provisions contained in Rule 38 of P & T Manual Vol IV.
4. That I will not claim repatriation to Telecom Circle Bhopal.
5. That I forego all claims of confirmation in Telecom Circle MP even if vacancy is available or becomes available because of retrospective permanency of post or for any other reason and I was entitled to confirmation against such post in the Zonal jurisdiction of the Telecom MP.
6. That I will after transfer to new unit be eligible for confirmation in the new unit only according to the provision in the gradation list of that unit as contemplated in clause (2) of Para 38 of P & T Manual Vol IV.
7. That I will have no claim for posting to a particular station in the new unit."
(emphasis supplied) 6.2 It is further noted that under the General Conditions of the instructions for transfer under Rule 38 of Postal Manual Volume IVinter alia contain the following provision: "When an official is transferred at his own request but without arranging for mutual exchange, he shall rank junior in the gradation list of the new unit to all officials of that unit on the date on which the official joins the new unit."
(emphasis supplied) 6.3 Two facts emerge from the above. First, the transfer of the applicant was made at his own request. Second, the transfer was made under Rule 38 of P & T Manual Vol IV. Now, the transfer under Rule 38 having been made at the applicant's own request, he would rank junior to all officials in the gradation list of the new unit in terms of Rule 38. 6.4 Considering the facts and circumstances of the case, in our opinion, the provision of DoPT's O.M. dated 15.12.2004 quoted by the Page 4 of 5 CAT,Lucknow Bench OA No. 333 /2011 Sadanand Dubey Vs. U.O.I.&Ors applicant cannot take precedence over provisions of Rule 38 of P & T Manual Vol IV under which he was transferred.
6.5 Finally, we find it perplexing that even though the juniors of the applicant were promoted to Sr. TOA (G) in his parent unit of Shajapur MP vide order dated 28.11.2002, he chose to raise this issue only after his absorption in the new unit at Lucknow, UP in 2006. 7.1 In view of the facts and circumstances above, no relief can be granted to the applicant. This OA is disposed of accordingly. 7.2 Pending MAs, if any, are also disposed of.
7.3 The Parties shall bear their own costs.
(Pankaj Kumar) (Justice Anil Kumar Ojha)
Member (A) Member (J)
vidya
Page 5 of 5