Central Administrative Tribunal - Delhi
Shri A. K. Rastogi vs Union Of India Through on 19 October, 2011
Central Administrative Tribunal Principal Bench OA No.3533/2010 New Delhi, this the 19th day of October,2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri A. K. Rastogi Retired Senior SDE Srinagar Bharat Sanchar Nigam Limited (BSNL) R/o C-11, Indupuram, Agra Road, Mathura, UP. .... Applicant. (By Advocate : Shri V. K. Sharma) Versus 1. Union of India through Secretary Government of India, Department of Telecommunication, 24, Ashok Road, Sanchar Bhawan, New Delhi 110001. 2. Chairman and Managing Director, BSNL, Corporate Office, Bharat Sanchar Bhawan, Harish Chandra Mathur Lane, Janpath, New Delhi 110001 3. Director Human Resource Development, BSNL, Janpath, New Delhi 110001. 4. Chief General Manager Uttrakhand Telecom Circle BSNL, 3rd Floor, Windlass Shopping Complex, Rajpur Road, Dehradun. 5. The General manager BSNL, Telecom District, Srinagar, Pauri Garhwal, Uttrakhand. Respondents. (By Advocate : None) : O R D E R :
Dr. Ramesh Chandra Panda, Member (A) Shri A. K. Rastogi, the applicant herein, is retired SDE of BSNL who is seeking the following reliefs in the present OA:-
(a) That the impugned order dt. 17.11.2008, of the Chief General Manager, Uttranchal Telecom. Circle, Dehradun, denying promotional benefits of departmental proceedings, which finally led to dropping of charges, in equitable manner, with the promotional benefits continuously granted to his juniors, being discriminatory and not legally maintainable, may kindly be ordered to be set-aside by this Honble Tribunal.
(b) That the intervening period of his reversion from the post of Divisional Engineer to Sub-Divisional Officer from 18.3.2004 to 07.11.2005, may kindly be ordered to be counted towards benefits of higher post of Divisional Engineer with all consequential benefits with continuous promotion in the higher post from 09.03.2001 uptil date of his retirement on 30.04.2006.
(c) The Respondent No.4, the Chief General Manager, Uttranchal Telecom Circle, B.S.N.L., Dehradun, may kindly be directed to allow applicant time-bound Junior Administrative Selection in the scale of Rs.17500-400-22300 w.e.f. October, 2004, with all consequential arrears. That refixation of his pension and all other retiral dues may be reassessed after fixation of his pay in the said selection grade as per the rules.
(d) That respondents may kindly be directed to pay interest @ 12% p.a. on the arrears of pay and allowances and other retiral dues after allowing his benefits of officiation in the higher post of Divisional Engineer from 08.11.2005 till date of its payments. He may also be granted such interest for his placement in the selection grade of Rs.17500-400-22300, from due date, i.e. the date from which his representation for grant of selection grade remained unsettled by the respondent authorities.
(e) Allow any other and further relief which this Honble Tribunal, may deem fit and proper in the circumstances of this case in order to safe-guard the interests of justice;
and
(f) Allow costs of this Application in favour of the humble applicant.
2. Brief facts of the case would manifest that the applicant who joined the service under the Telephone Department on 1.03.1966 was on promotion reached the post of Sub-Divisional Officer (SDO) in October, 1990. He worked in the Department of Telecom all through and was promoted from Group-B to Group-A of Indian Telecom Service on 9.03.2001. He was posted to Srinagar (Garhwal) as Divisional Engineer with effect from 13.03.2001. It is the case of the applicant that due to the service of charge sheet under Rule 14 for major penalty proceedings vide OM dated 17.03.2004, he was reverted to the post of SDE with effect from 18.03.2004. However, the said disciplinary proceeding was dropped against the applicant vide order dated 26.09.2005 (Annexure-A4). Due to the said exoneration of charges, he was again promoted as SDE vide order dated 22.10.2005 (Annexure-A5). He was posted as Assistant General Manager (Admin) Srinagar w.e.f. 30.09.2005 (Annexure-A6) and retired as such on attaining the age of superannuation vide order dated 29.04.2006 (Annexure-A7) w.e.f. 30.04.2006. It is further the case of the applicant that he has submitted his representations on 20.09.2008, 14.03.2009, 10.01.2010 and 21.06.2010 (Anneure-A9 to Annexure A-12) with the request for the competent authority to count his intervening period of reversion from 18.03.2004 to 7.11.2005 with his regular officiation in the higher post of Divisional Engineer. He was informed by the competent authority that as his promotion to a higher post was on officiating arrangement, the promotion to the said post cannot be given retrospectively. It is further stated that the BSNL in its circular dated 18.01.2007 announced time bound promotion / post based executive promotional policy for Group-B level officers of BSNL. The applicant was eligible to such promotion for which the eligible cases were to be reviewed as on 1.10.2004 and again on 1.10.2005.It is the case of the applicant that though his juniors got the benefit of placement in the pay scale of `17500-400-22300, the applicant was ignored for getting the said pay scale. Feeling aggrieved, the applicant has come to this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, with the prayers aforesaid.
3. Shri V. K. Sharma, learned counsel for the applicant would submit that as the applicant was fully exonerated of the charges, the interregnum period from 18.04.2004 to 7.11.2005 should have been regularized appropriately. He places his reliance on the judgments of this Tribunal in the case of A. R. Alli and Another versus Union of India and Another (OA No.460/1990 decided on 8.12.1995 by CAT Bombay Bench), and the judgment of Honble Supreme Court in the case of Union of India and Others versus K. V. Janakiraman and Others (1993-23-ATC-322). The counsel for the applicant would further submit that while the juniors of the applicant continued in such promotion posts uninterruptingly the applicant was reverted for a period of more than one year whereby he suffered loss of pay and allowances and his monthly pension was reduced as the applicant retired on 30.04.2006. He submits that the applicant has right to be considered for promotion when his juniors were not only promoted but continued in the higher post, whereby the applicant has been put to disadvantage. He, therefore, places his reliance on the judgment of Punjab & Haryana High Court in the case of Sudesh Kumar versus Haryana Power Generation Limited & Another (2006-3-ATJ-117), B. D. Kubba and Another versus Union of India (decided by Jaipur Bench of the Tribunal on 14.07.2004), Awadhut Wasudeo Waikar versus Union of India (OA No.294/1995 decided by the CAT , Principal Bench on 12.04.1996), Ajit S.Bhatia versus Union of India and Another decided by the Bombay Bench of the Tribunal, A. N.Vijay Shanker versus Secretary, Ministry of Defence (decided by the Bangalore Bench of the Tribunal on 29.03.1993). In view of the above judgments, Shri V. K. Sharma would submit that the OA should be allowed and necessary directions be issued to the respondents.
4. On receipt of the notice from the Tribunal, the respondents No.2 to 5 have entered appearance through Shri Sameer Agrawal, learned standing counsel for BSNL in the affidavit dated 31.01.2011 and have opposed the grounds taken by the applicant in support of his claims. Though Shri Sameer Agrawal could not present himself during the final hearing, we considered the reply affidavit filed by the respondents. The respondents have averred that the BSNL has number of circles. The regular promotions to a higher post is normally made on the basis of all India seniority. However, Heads of each Circle have been delegated with powers for making local officiating arrangements based on the seniority within the circle to put the officers in the higher post temporarily in officiating capacity against the short term vacancies up to a period of 180 days. This local circle based officiating arrangement is made when the regular empanelled officers are not available in that circle. It is the claim of the respondents that under this provision an office order dated 9.03.2001 was issued by the Chief General Manager, Uttranchal Telecom Circle for making the local officiating arrangements for 12 Group-B officers to officiate purely on temporary basis in the STS of ITS Group-A post. It has been made clear in the said local arrangements that such officiating would not offer any right on the officers to claim their seniority or regular absorption or counting of the period in STS for any future promotion prospects. In this background, it has been averred that the applicant was promoted on local officiating basis for 180 days. It is also stated that the applicant did not work continuously as Divisional Engineer from 13.03.2001 to 17.03.2004, and further stated that due to the charge sheet issued to the applicant, he was reverted back from Group-A post to Group-B post of SDE. It is indicated that others who were not facing such charge sheet continued to officiate as Divisional Engineers. With regard to the financial upgradation scheme dated 18.01.2007, it is stated that the applicant was eligible for 2nd upgradation i.e. from Senior SDE to DE on 27.09.2007 after completion of 5 years of service as Senior SDE but as he retired on 30.04.2006, even before he became eligible, his case could not be considered. However, it is stated that the first upgradation was given to him on 27.09.2002 from SDE to Senior SDE. Further, with regard to the different case laws relied on by the counsel for the applicant, the respondents have stated that the issue of juniors being permitted to officiate in promotional post on account of local officiating arrangements vis-a-vis the seniors is no longer res integra and they have relied on the judgments of Honble Supreme Court in the cases of Union of India and another versus R. Swaminathan and others (1997-7-SCC-690) and Union of India and Others versus M. Suryanarayan Rao (1998-6-SCC-400) where the Honble Supreme Court inter alia has held that the benefit of pay fixation can only be given if the duties performed in the officiating capacity by the officer concerned as the officiating local arrangements are made only to over come the exigencies of work. In view of the above grounds indicated by the respondents repelling the contentions, it has been stated to dismiss the OA.
5. We have heard the contentions of the parties and gone through the pleadings very carefully and closely. We have also perused the judgments of Honble Supreme Court, High Court and of this Tribunal relied on by the parties. As the dispute is basically based on facts, it may not be necessary to refer to all the judgments relied on by the parties.
6. The basic admitted fact is that the applicant has been reverted from a higher grade of Group-A to Group-B only on the basis of the charge that he was facing and as soon as the charge has been dropped, the applicant has been promoted with effect from 7.11.2005. It is this period (18.03.2004 to 07.11.2005) that the applicant is seeking to be regularized. If regularized, same would ultimately provide him difference of pay and allowances for the said period and would make him eligible to get higher pension as the applicant has retired on 30.04.2006. The respondents have not denied the facts that the applicants juniors were on the local arrangements on officiating basis in the post of DE whereas the applicant suffered the reversion from the said grade on 18.03.2004 and was restored back to his higher position on 7.11.2005 only after the charges were dropped.
7. It is trite law that merely because the charges are framed against the employee, no punishment in the form of reversion can be imposed but the concerned employee in the relevant post at the relevant period of time would face the charges. The reversion as such from the post of Divisional Engineer to SDE is punitive in nature. Without granting the applicant an opportunity such an order could not have been passed. That too, when the juniors of the applicant were continuing in the local officiating arrangement in the higher post, the applicant being senior cannot be reverted only on the ground of charges having been framed against him. The reversion of the applicant to a lower post in our opinion is an erroneous decision and not legally sustainable. The applicant could have been proceeded in the disciplinary case even in the post which he was then occupying at that point of time. There is no guidelines to show that the employees can be reverted to a lower post when such employee is facing a charge memo in a disciplinary proceeding. It is in this context that the applicants period of reversion need to be appropriately regularized by the respondents and admissible difference of pay and allowances needs to be paid to him.
8. With regard to his claim of getting the 2nd upgradation under the BSNL Scheme, it is noticed that the qualifying period of service is 5 years which the applicant has completed only after his retirement and not when he has been in service. Therefore, the claim of the applicant to get 2nd financial upgradation is not legally tenable.
9. Considering the totality of facts and circumstances of the case, we are of the considered view that the impugned order by which the applicant was reverted to a lower grade from his higher officiating post in Grade-A is liable to be quashed and set aside. We order accordingly. In the result, the applicant would be entitled to get difference of pay and allowances between the higher Group-A post and the post to which he was reverted for the period from 18.03.2004 to 7.11.2005. Consequently, he would be entitled to get admissible increments and revision of his pension as per law since he retired on 30.04.2006.
10. In terms of the above orders and directions, the Original Application is allowed, leaving the parties to bear their respective costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman