Central Administrative Tribunal - Jabalpur
Dharamveer S Agnihotri vs Bsnl on 26 June, 2018
1 OA No.202/00222/2016
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
CIRCUIT SITTING: GWALIOR
Original Application No.202/00222/2016
Jabalpur, this Tuesday, the 26th day of June, 2018
HON'BLE SHRI NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE SHRI RAMESH SINGH THAKUR, JUDICIAL MEMBER
Dharmvir S. Agnihotri
S/o Sh.D.D. Agnihotri
aged about 56 years
occupation service
R/o N 135
Gayatri Vihar,
Thatipur,
Gwalior (M.P.) PIN No. -Applicant
(By Advocate -Applicant present in person)
Versus
1. Union of India
through Chairman and Managing
Director BSNL
Bhawan Janpath,
New Delhi 110001
2. CGM,
M.P. Circle
BSNL Bhawan
Hoshangabad Road,
Bhopal 462015
3. TDM BSNL,
BSNL Bhawan
A.B. Road
Guna (M.P.) 473001 - Respondents
(By Advocate -Shri Rajendra Bhargava)
(Date of reserving the order:10.01.2018)
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2 OA No.202/00222/2016
ORDER
By Ramesh Singh Thakur, JM:-
This Original Application has been filed by the applicant for providing all promotions with back financial benefits as already provided to his juniors on the basis of his modified/upgraded seniority position No.5422-A.
2. The applicant in this Original Application has sought for the following reliefs:-
"8.1 The Hon'ble CAT Court be pleased to command the respondents for directing them giving applicant all his left promotions with back financial benefits right from SDE post (E-2 grade) to Dy. G.M. Post (E-7 grade) as already provided to his juniors on the basis of his modified/upgraded seniority position No.5422-A by order of Resp. Deptt. Dt. 22- 02-2012 8.2 From the date of his notional promotion w.e.f. 30-07- 1991 on SDE post. He should be paid arrears of pay and allowances when it become clear that the applicant was wrongly not promoted and now his promotion is antidated by order dt. 22-02-2012.
8.3 Suitable cost of application may please be ordered as applicant has to approach several times for getting justified promotions due to rigid behavior of Resp. Deptt.
8.4 Any other relief which this Hon'ble Court deems just and proper in the circumstances of this case."
3. The case of the applicant is that the applicant joined duty in the department as JE/JTO cadre and passed the Telecom Engineering Service (TES) exam for his promotion to TES post in Page 2 of 11 3 OA No.202/00222/2016 1989. He was not promoted on the basis of this promotional exam due to some mistake hence he made several representations to respondent-department.
3.1 When the applicant was not provided his due promotion, he had filed Original Application No. 15/1997 before this Tribunal which was disposed of by directing the respondents to promote applicant with due seniority at par with his immediate junior. Despite the order of the Tribunal the applicant was not promoted and the applicant filed Contempt Petition No.24/1999. 3.2 Thereafter, the respondent-department issued his promotion order on 15.11.1999 (Annexure A/3) stating that the applicant has been promoted to the grade of TES Group 'B' and he will be assigned due seniority in TES Group 'B' with reference to his junior as and when the said seniority list be issued. 3.3 The respondent-department did not provide proper seniority and promotional benefits, the applicant again approached this Tribunal by filing Original Application No.350/2000 and vide order dated 29.07.2003 (Annexure A-4) has directed the applicant to prefer a detailed and exhaustive representation to the respondents pointing out the complete grievances to the respondents. Thereafter the applicant submitted detailed representation to the respondent-department for providing him Page 3 of 11 4 OA No.202/00222/2016 proper seniority and promotional benefits. The respondent-DGM, TP, Raipur vide letter dated 05.04.2004 (Annexure A-5) has stated that the claim of the applicant for promotion from July 1991 to TES Group B and March 1999 to DE Grade is devoid of any merit and cannot be acceded to.
3.4 When the applicant was not granted the relief, he again filed Original Application No.723/2004 which was dismissed vide order dated 19.08.2005 (Annexure A-6) on the ground of lack of jurisdiction as at that time Department of Telecom was changed to a newly formed company BSNL and the same was not notified under Rule 14 (2) of the Administrative Tribunal Act 1985. 3.5 Thereafter the applicant has filed Writ Appeal No.331/2007 before the Hon'ble High Court of Madhya Pradesh which was disposed of vide order dated 17.03.2011 (Annexure A-7) with a direction to the respondents to assign proper seniority in accordance with the order dated 15.11.1999, in TES Group 'B' with reference to his juniors. The respondents vide order dated 06.07.2011 has informed the applicant that his request for revision of seniority in TES Group B cadre w.e.f.1991 could not be accepted. Thereafter, the applicant has filed Contempt Petition No.452/2011 before the Hon'ble High Court of Madhya Pradesh and vide order dated 01.12.2011 (Annexure A-8) has held the Page 4 of 11 5 OA No.202/00222/2016 respondent No.2 guilty of the Contempt of Courts Act and hence, a cost of Rs.20,000/- was imposed upon the respondent no.2. It was further directed that the order be complied with in letter and spirit within a period of 30 days from the date of receipt of certified copy of this order, failing which, this Court will pass appropriate order of punishment.
3.6 The respondent-department has filed appeal against the order of Hon'ble High Court through SLP(C) No.1591/2012 before Hon'ble Apex Court and the Hon'ble Apex Court has dismissed the said SLP on 03.02.2012. Only then, the respondent-department has issued an order dated 22.02.2012 (Annexure A-9) modifying/upgrading seniority position of applicant in regard to new seniority No.5422-A. The respondent-department vide order dated 22.02.2012 (Annexure A-9) anti-dated the promotion of applicant since 31.07.1991 on the post of SDE notionally and intentionally so that he could not get promotional financial benefit. Hence, this Original Application.
4. The respondents in their short reply have submitted that the applicant has not specifically pleaded about his grievance in the present application and applicant has made vague pleading i.e. "all his left promotions". It has been specifically submitted by the replying respondents that in compliance of order dated 17.03.2011 Page 5 of 11 6 OA No.202/00222/2016 passed in WA No.331/2007, the applicant was promoted and assigned seniority No.5422-A and promotion has been given notionally w.e.f. 31.07.1991 at par with the junior Shri SS Narhari. It has been further submitted by the replying respondents that the applicant will be considered for further promotion of DE grade as per the above revised seniority, if otherwise eligible (Annexure A-
9). At present, the promotion of the applicant DE regular is under process/consideration before the Corporate office. 4.1 It has been specifically submitted by the replying respondents that the applicant is challenging promotion order dated 22.02.2012 after 4 years through vague pleadings and grievance was never represented before authority within time and the present Original Application is highly belated.
4.2 It has been submitted by the replying respondents that the applicant has moved a Contempt Petition No.380/2013 before the Hon'ble High Court and the same vide order dated 23.07.2013 was dismissed with an observation that the order has been complied with substantially by the respondents and the contempt petition has rendered infructuous (Annexure R/1). Hence, the present application has no force and deserves to be dismissed.
5. We have heard the learned counsel for both the parties and also gone through the documents annexed with the pleadings. Page 6 of 11 7 OA No.202/00222/2016
6. The main contention of the applicant is that earlier the respondents have not granted the promotion to the applicant on the date when the promotion to his juniors was granted. The said promotion has been granted to him later notionally and financial benefit has not been given.
7. On the other hand, the respondents have filed their short reply and submitted that the applicant has been promoted and has assigned seniority No.5422-A and promotion has been given notionally w.e.f. 31.07.1991 at par with the junior Shri S.S. Narhari. Further it has been submitted by the respondents that the applicant will be considered for further promotion of DE grade as per the above revised seniority, if otherwise eligible.
8. The applicant has relied upon the judgment passed by Hon'ble High Court of Delhi in Writ Petition (C) No..7423/2013 titled as Government of NCT of Delhi and Ors. vs. Shri Rakesh Beniwal and Ors., decided on 04.08.2014. The Hon'ble High Court while relying on the judgment of Hon'ble Apex Court in the matter of Union of India vs. K.V. Janki Raman AIR 1991 SC 2010 has held as under.:-
"20. A corollary in K.V. Janki Raman (supra) may also be applied to the present matter wherein the inability of the respondents to join the post of Grade II (DASS) was on account of long delays by the petitioners herein to issue them appointment letters, despite the respondents intimating their Page 7 of 11 8 OA No.202/00222/2016 desire to join service. In State of A.P. v. K.V.L Narasimha Rao & Ors. AIR 1999 SC 2255, the applicants had originally been appointed as Munsif Magistrates. Subsequently, there was a dispute relating to seniority in respect of Judicial Officers being recruited in different streams and a norm was fixed by the High Court which led to juniors being promoted over their seniors. When the seniors were given the promotion from the same date as their juniors, there was a dispute regarding the salary and other service benefits flowing from their respective dates of notional promotion to the higher posts from the grade of Munsiff to Subordinate Judge and from Subordinate Judge to District Judge. The Supreme Court, applying FR 26, held as under:-
"....A wrong had been committed in unduly delaying the finalisation of seniority and giving promotions thereto and hence denial of monetary benefits to them would be arbitrary in violation of Arts. 14 and 16 of the Constitution.
5. In normal circumstances when the retrospective promotions are effected all benefits flowing there from, including monetary benefits, must be extended to an officer who has been denied promotion earlier..."
21. A view relevant to the present matter with regard to grant of arrears of pay was highlighted in this Court's decision in Balwant Singh Bisht v. Union of India & Ors. (W.P. (C) No. 23332/2005 decided on 14.03.2008) wherein, "14. In those cases where concerned employees seniors as well as juniors are granted the benefit of promotion and the salary for the period in question, same should invariably be given to such an employee who is given belated promotion retrospectively as non-grant of arrears of pay and allowances of the higher post for the relevant period, in such circumstances, would amount to hostile discrimination."
22. This Court observed a catena of judgments, relating to a similar situation as the present matter, where the Courts have held that if promotion is denied to an employee because of the mistake of the administration and due to no fault of the applicant/employee, then the authorities are bound to pay the arrears of salary etc. upon giving him the benefit of retrospective promotion after realizing that mistake. This Page 8 of 11 9 OA No.202/00222/2016 principle would be extended even to those cases where due to sheer negligence, carelessness or on account of malafides, an employer denies the benefit of promotion to the employee at the time when it becomes due and grants it afterwards though retrospectively. (Ref. State of Kerala and Ors. v. E.K. Bhaskaran Pillai JT 2007 (6) SC 83; Mohd. Ahmed v. Nizam Sugar Factory and Ors. 2004 (11) SCC 210; Nalini Kant Sinha v. State of Bihar and Ors. 1993 Supp (4) SCC 748; Shri Kalyan Singh v. Union of India and Ors. 2001 (1) AISLJ (DHC) 216; and Indraj Singh v. State of Haryana(2013) 14 SCC 491.
23. ................
24. Whilst the law dictates that salary is to be paid for work done, a parallel cannot be drawn from the principle of "no work, no pay" to apply to the circumstances of the present dispute. The Tribunal appreciated that the applicants should not suffer at the cost of bureaucratic delays of the GNCTD and its litigative proclivities. The respondents herein were appointed many years after their other batch mates had been appointed. The maxim commodum ex injuriasuanemohaberedebe ti.e. no person ought to take advantage from his own wrong applies squarely to the petitioners here. The Supreme Court in Kusheshwar Prasad Singh v. State of Bihar & Ors. (2007) 11 SCC 447 held, "13. it is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, 'a wrong doer ought not to be permitted to make a profit out of his own wrong'."
9. The present Original Application is covered by the judgment passed by Hon'ble High Court of Delhi in the matter of Govt. of NCT of Delhi (supra) which has already discussed in the above cited paras. In the instant case also, it is clear that the applicant was not promoted on the basis of his promotional exam due to some Page 9 of 11 10 OA No.202/00222/2016 mistake on behalf of the respondents and so the applicant was not provided due promotion despite the order of this Tribunal in O.A. No.15/1997, whereby the applicant was entitled for due seniority of his own turn and ultimately the respondents has granted seniority position to the applicant as seniority No.5422-A vide order dated 22.02.2012 (Annexure A-9) ante dated promotion of the applicant w.e.f. 31.07.1991 on the post of SDE notionally. It is relevant to mention that vide Writ Appeal No.331/2007 filed before the Hon'ble High Court of M.P., was disposed of vide order dated 17.03.2011 (Annexure A-7) and thereafter the applicant has filed Contempt Petition No.452/2009 before Hon'ble High Court of M.P., which has held the respondent No.2 guilty of Contempt of Courts Act vide order dated 01.12.2011 (Annexure A-8).
10. From the above facts, it is clear that the applicant has been denied his legitimate right despite finalizing of his case. So, in view of the law laid down by the Hon'ble Apex Court in the matter of Union of India vs. K.V. Jankiraman (supra), the applicant is entitled for economic benefits also.
11. The circumstances surrounding the present matter reflect a casual and indifferent attitude on the part of the respondents which borders on being callous. The applicant has had to, in the interregnum, not only go through the ignominy of working under Page 10 of 11 11 OA No.202/00222/2016 their juniors, but also despite admittedly being senior to them, still continue to draw lesser pay.
12. In view of the above, this Original Application is allowed, the respondents are directed to grant all actual and consequential benefits and arrears of pay to the applicant from due dates as has been given to his juniors, within a period of 60 days from the date of receipt of a certified copy of this order. No order for costs.
(Ramesh Singh Thakur) (Navin Tandon)
Judicial Member Administrative Member
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