Central Administrative Tribunal - Ernakulam
K.R.Rajan vs The Principal General Manager on 7 July, 2016
Author: P.Gopinath
Bench: P.Gopinath
Central Administrative Tribunal
Ernakulam Bench
OA 182 & 183 of 2015
Thursday. this the 7th day of July, 2016
CORAM
Hon'ble Mr.Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs.P.Gopinath, Administrative Member
OA 182/2015
K.R.Rajan
S/o Late Raman
Telecom Mechanic (Retd)
HR No.198315377, Empl.No.3260008
BSNL-Edamalayar, Kannamparambil House
Vadattupara, Kothamangalam-686 681. . . . . Applicant
(By Advocate: Mr.C.A.Joy)
Versus
1. The Principal General Manager
BSNL Bhavan, Ernakulam SSA
Ernakulam-16.
2. The Accounts Officer
Estt. Office of PGMT
BSNL Bhavan
Ernakulam-16. . . . . Respondents
(By Advocate:Mr.George Joseph)
OA 183/2015
K.K.Mathai
S/o Late Kuriakose
Telecom Mechanic (Retd)
H.R.No.197607613
BSNL Telephone Exchange
Kottappady, Kanjirathumkudy House
Asamannoor P.O.-683 549. . . . . Applicant
(By Advocate: Mr. C.A.Joy)
Versus
1. Bharat Sanchar Nigam Ltd, represented by
the Chairman & Managing Director
Corporate Office, Statesman House
Barakhamba Road, New Delhi.
2. The Principal General Manager
BSNL Bhavan, Ernakulam SSA
Ernakulam-16.
3. The Accounts Officer
Estt. Office of PGMT
BSNL Bhavan
Ernakulam-16. . . . . Respondents
(By Advocate:Mr.George Joseph)
The OA having been finally heard on 22/6/2016, this Tribunal
delivered the following order on 7/7/2016:-
ORDER
By P. Gopinath, Administrative Member The Applicant in OA 182/15 is aggrieved by the communication dated 19.01.2015 rejecting his application for rectification of the anomaly in the pay fixation consequent on the implementation of Non Executive Promotion Policy (NEPP) Annexure A1.). According to the applicant, he commenced service on 01.10.1983 and was promoted to the post of Telecom Mechanic in the year 2000. Based upon the Non-Executive promotion policy (NEPP), he is entitled for the 1st up-gradation of pay in the year 2004 and 2 nd up- gradation of pay in the year 2011. Based on Annexure A3, unless an option is exercised to continue in the existing promotion policy prior to 01.10.2000, the new promotion policy will automatically and uniformly be applied to all the non executive employees in the BSNL. It is also stipulated that all the concessions given by the BSNL to non executives in relation to OTBP/BCR/Grade lV/ACP etc., after 01.10.2000 stands withdrawn with immediate effect. Therefore, based on Annexure A3 the BCR fixation given to the applicant on 03.10.2009 is liable to be withdrawn and the applicant has to be given the 1st up-gradation notionally on 01.10.2004 on completion of four years of service and the 2 nd up gradation in the year 2011. The pay of the applicant as on November 2014 was Rs.20,050/- in the pay scale Rs.12,520-23,440/-,whereas his colleague, Sivan T.K. having HR No.198318190 was drawing a basic pay of Rs.20.880/- for the month of January 2014 in the pay scale of Rs.25,420/-. Applicant seeks a declaration that he is entitled for re-fixation of his pay as per Annexure A3, NEPP scheme with 1st up-gradation in the year 2004 an 2 nd up-gradation in the yer 2011 and a direction to give stepping up of the pay at par with his colleague namely Sivan T.K.
2. In OA 183/2015, the applicant is aggrieved by the communication dated 14.01.2015 rejecting his application for rectification of the anomaly in the pay fixation and consequent revision of the retirement benefits as per Annexure A1. The applicant joined as Lineman on 05.03.76 and became Telecom Mechanic in the year 1993. The pay of the applicant as on the date of retirement was Rs.18,020/-in the pay scale 12,520-23,440/-. His junior M.P.Sridharan, HR No.197706609 who joined the service in the year 1977 and was promoted as TM w.e.f. 20.02.2002 was drawing a pay of Rs.19,510/- as on 28.02.2011 in the pay scale 13,600-25,420. Therefore, the applicant claims that he is entitled for stepping up of his pay at par with his junior and entitled for a pay of Rs.19,510/- in the month of February 2011 instead of the pay of Rs.18,020/-.
3. The prayer in both OAs being on similar grounds is being dealt with in this order.
4. In the reply statement filed in OA No.182/15, the respondents submit that the applicant entered service on 1.10. 1983. He was not promoted to the post of Telecom Mechanic in the year 2000 as averred but on 20.2.2002. As per Para 6.5 of Non Executive Promotion Policy (NEPP), up-gradation in pay scale availed by non executive employee on the basis of any post based promotion on or after 1.10.2000 and before 1.10.2004 will be treated as first up-gradation. Since the applicant opted to continue in erstwhile OTBP/BCR Scheme, he was not considered for any promotion under NEPP. Option submitted by the applicant is produced as Annexure R2(b). The applicant was promoted as Telecom Mechanic on 20.2.2002 which is a post based promotion. Had he opted for NEPP, the promotion as Telecom Mechanic on 20.2.2002 would have been considered as first up-gradation. But he did not opt for NEPP. As per NEPP Policy Para 5 (5.1) 'Existing CRIGr. lV/ACP policy will cease to exist from the date of notification of this non executive promotion policy, as a general measure. An individual non executive employee may however opt to remain out of the purview of this scheme to continue in his erstwhile time bound promotion scheme". As such the applicant had submitted an option dated 16.10.2010 in which he had opted for continuation in erstwhile OTBP / BCR scheme. Applicant was promoted under OTBP Scheme on 2.10.1999 from the scale of pay of Rs.2750-4400 to Rs.3200-4900 which was converted to IDA scale of Rs.4720-6970 on 1/10/2000. No revised option was submitted by the applicant within the stipulated time. Since the applicant opted to continue in the erstwhile OTBP/BCR Scheme, he is not eligible for any up-gradation under NEPP Scheme.
5. Respondents in OA 183/15 submit that the applicant retired on 28.2.2011 and the OA was filed on 23.2.2015, i.e., after 3 years. As per the law of limitation, OA is only to be rejected. After his retirement, NEPP order was implemented w.e.f. 05 03 2009, resulting in revision of basic pay to Rs 18,020/- in the pay band of Rs. 13600-25420, which was re-fixed as Rs. 18,560/- on 01 03 2010 and this was his revised last pay drawn. The revised pension and other retirement benefits were paid by CCA, DOT on the basic pay of Rs. 18,560/- in October 2011. The applicant was drawing Rs. 5860/- on 01-10-2000 in the IDA pay scale of 5700-160-8100, while the junior Shri. P. Sreedharan Nair was drawing Rs. 6220/- in the pay scale of Rs. 4720-6970 The respondents aver that while applying clause 3 ( 1 ), the applicant will get Rs. 6020/- on 01.10 2000 ( by adding one increment) and on 20 02 2002, the pay of the applicant has to he stepped up to Rs. 6370/-only on the date on which the junior got TM promotion and drawing the same pay, but opted for DNI fixation on 01.08.2002 by fixing his pay at Rs. 6820/-. Before the date of option of the junior, the applicant got BCR promotion on 05.03.2002 and his pay was fixed at Rs. 6550/- i.e., the minimum of the promoted scale of Rs. 6550-185-9325. Hence the pay of the applicant was not stepped up to Rs. 6820/- on 01.08 2002 as per the relevant provision of clause 3 (ii ) read with clause 2 ( ii ), since the applicant was drawing pay in the higher scale than that of the junior and hence an anomaly is not created. Respondents also submit that this case has no similarity with any of the settled cases as per the earlier judgments in various OAs or as per clauses framed by BSNL corporate office vide letter dated 4.5.2012.
6. Heard the counsel for applicants and respondents and examined the material placed on record. In a similar OA 56/14 wherein judgment was delivered on 17/6/2016, the Tribunal had observed as follows:-
'4. Respondents have produced Annexure R-2 clarification issued by the BSNL which states as follows :
'In this regard, kind attention is invited to para 5.1 of this office letter No.27-7/2008-TE-II dated 23.3.2010, which provides for the exercise of option under the NEPP Scheme. The said para, inter-alia, states that 'an individual non-executive employee, may, however, opt to remain out of the purview of this scheme to continue in his erstwhile time bound promotion scheme. Such option to remain out of the purview of this policy will have to be exercised within one month from the date the circle authority/SSA Head asks for such option at the time of implementation of the policy with reference to the first review date. If option is not exercised within the stipulated time period, it would be construed as if the concerned Non- Executive has opted for this Non-Executive Promotion Policy and accordingly he/she will be governed by the provisions of the Non- Executive Promotion Policy. This provision remains unchanged vide para 3 of this office letter No.27-7/2008-TE-II (upgradation) dated 11.9.2012 vide which new NE-12 IDA scale of Rs.16390-33830/- has been introduced with effect from 22.2.2012. It, therefore, follows that if option is not exercised within the stipulated time period, it has to be construed as if the concerned non-executive has opted for NE-12 IDA pay scale introduced vide this office letter dated 11.9.2012, quoted above.'
5. Thus the applicants could have come under NEPP Scheme had they not exercised the option to remain in the erstwhile OTBP Scheme. However, the applicants had submitted an option on 18.10.2010 to treat their BCR promotions on 25.7.2007 (1st applicant) and 1.8.2007 (2nd applicant) as their first financial upgradation under NEPP, without realising that the two upgradations on completion of 4 years of service and 7 years of service may have been more beneficial. Having committed the error of judgment in exercising the more beneficial option, the applicants are before us for stepping up their pay with that of their juniors Balachandran Pillai and Madhusoodanan Nair P.R. The applicants draw our attention to para 5 of the implementation order of NEPP dated 23.3.2010 wherein the withdrawal of concession to Non-Executives in relation to OTBP after 1.10.2000 stands withdrawn with immediate effect. The para is reproduced below :
5. Option to continue in erstwhile time bound promotion schemes :
5.1 All the Non-Executive employees will automatically and uniformly be covered by this promotion policy. Existing OTBP/BCR/Grade IV/ACP policy will cease to exist from the date of notification of this Non-Executive Promotion Policy, as a general measure.
An individual non-executive employee may, however, opt to remain out of the purview of this scheme to continue in his erstwhile time bound promotion scheme. Such option to remain out of the purview of this policy will have to be exercised within one month from the date the circle authority/SSA Head asks for such option at the time of implementation of the policy with reference to the first review date. If option is not exercised within the stipulated time period, it would be construed as if the concerned Non-Executive has opted for this Non-Executive Promotion Policy and accordingly he/she will be governed by the provisions of the Non- Executive Promotion Policy. The option form is annexed herewith. 5.2 The promotion of such person who opts to continue in his/her erstwhile time bound promotion scheme viz. OTBP/BCR/Grade-IV/ACP etc. will be governed by the provisions of such schemes as existed on 1.10.2000 ie. the date on which BSNL was formed, unless any change is specifically ordered or agreed to by the BSNL Management after issue of this policy. All the concessions given by BSNL to Non-Executives in relation to OTBP/BCR/Grade-IV/ACP etc. after 1.10.2000 stands withdrawn with immediate effect. However, the cases settled prior to the issue of this order, need not be reopened unless the employee himself opts for this Non-Executive Promotion Policy.
(emphasis provided)
6. The para 5.1 clearly states, that if option is not exercised within stipulated time period, it would be construed that official has opted for NEPP and will be governed by the provisions of NEPP. Applicant has exercised the option and hence this provision is not applicable. A second opportunity to exercise option was provided, to opt out of the purview of this scheme, and continue in the erstwhile OTBP Scheme. An option form was also annexed. Applicants did not avail this opportunity also. The applicants had exercised option vide option form dated 18.10.2010 for BCR and, therefore, their consideration for NEPP was closed. However, the statement in para 5.2 of respondent O.M that all concessions given by BSNL to Non- Executives in relation to OTBP/BCR/Grade-IV/ACP etc. after 1.10.2000 stands withdrawn with immediate effect, is confusing as the applicants received BCR on 25.7.2007 and 1.8.2007 and hence if it stood withdrawn then the BCR benefits should have been replaced with some other benefit, namely NEPP in the 4 th year. Further if the benefit was withdrawn why was an option form for option for BCR annexed as indicated in para 5.1 above. The respondents appear to be confused about the benefit proposed to be extended to its employees or failed to word their proposal properly. Applicants would like to draw the benefit of the statement in para 5.2 above that all concessions given by BSNL to Non-Executives in relation to OTBP/BCR/Grade IV/ACP etc. after 1.10.2000 stands withdrawn with immediate effect and hence argue that they are eligible for the benefits under NEPP Scheme. As per this statement the BCR benefit given to applicants on 25.7.2007 and 1.8.2007 stood withdrawn despite their exercising an option for BCR. If BCR benefits stood withdrawn applicants become eligible for NEPP financial upgradation on completion of 4 and 11 years. Hence the prayer of the applicants to fix their pay under NEPP Scheme is allowed. However, arrears will be restricted to three years prior to the date of filing of this O.A as laid down by Hon'ble Supreme Court in Union of India & Ors. vs. Tarsem Singh (2008) 2 SCC (L&S) 765). No order as to costs.
7. Applicants in the present OAs are also eligible for similar relief as given to applicants in OA 56/14. The two OAs are allowed accordingly.
(P. Gopinath) (N.K.Balakrishnan) Administrative Member Judicial Member aa.