Central Administrative Tribunal - Delhi
Shri Navendra Kumar vs Mahanagar Telephone Nigam Limited on 1 November, 2011
Central Administrative Tribunal Principal Bench OA No.2905/2010 MA No.2268/2010 New Delhi, this the 1st day of November, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) 1. Shri Navendra Kumar, S/o Late Shri Ram Manohar Lal, R/o 108, Vidya Vihar Appts, Plot No.48, Sector-9, Rohini, Delhi-110085 Retired as D.E., (GO-5346) MTNL, New Delhi. 2. Shri Ram Prashad, S/o Late Shri Umrao, R/o 12-D, Sanchar Lok Apartment, Plot No.108, I.P. Extension, Delhi-110092. Retired as D.E., (GO-4649) MTNL, New Delhi. .... Applicants (By Advocate : Shri D.S. Chaudhary) Versus Mahanagar Telephone Nigam Limited, Through its Chairman & Managing Director, 12th Floor, Jeevan Bharti Building, Janpath, New Delhi-110001. Respondent. (By Advocate : Ms. Rachna Joshi Issar) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri Navender Kumar and Shri Ram Prashad are seeking direction of this Tribunal for upgradation of their pay to the scale of `17500-22300/- w.e.f. 1.10.2004 and also to direct the respondents to release interest thereon.
2. Brief factual matrix of the case would disclose that both the applicants being the officers of Indian Telecom Service, Group-A, were permanently absorbed in the service of Mahanagar Telephone Nigam Limited (MTNL) on 1.10.2000. It is, therefore, claimed by the applicants that they stood retired from the services of the Government of India and became the employees of MTNL. As such, the Rules and Regulations of MTNL would be applicable as they switched over from the CDA Pay scale to IDA pay scale. Their basic pay was fixed at `19200 in the IDA pay scale of `16000-20800 in the E-5 level. It is stated that the Respondent-MTNL framed a promotion policy on 11.09.2007, according to which, financial upgradation was directed to be allowed in a time bound manner. The said policy was given retrospective effect from 1.10.2000. The first financial upgradation under IDA pay scales was due for consideration on the completion of first four years with the respondents i.e. on 1.10.2004. It is stated that the said financial upgradation was subject to the condition that the concerned executives basic pay in the IDA pay scale should have crossed the lowest of the higher IDA pay scale for which the upgradation would be considered or if he had completed six years of service in the IDA pay scale which was earlier. It is the case of the applicants that their pay was fixed at `19200 in the IDA pay scale which was much above the lowest pay of the next higher pay scale of `17500-22300 (E-6). The said promotion policy of the applicant was implemented in the year 2008 and financial upgradation to its employees was allowed but the applicants were ignored. Therefore, they submitted their representation to the concerned authorities on the ground that they were absorbed w.e.f. 1.10.2000 and their names were in the roles of the MTNL as on 1.10.2004. As the respondents did not take any action on their representations, they moved the Tribunal in OA No.763/2010 which was decided on 9.03.2010 when the applicants withdrew their application with the liberty to file fresh application. Accordingly, the applicants have filed the present application seeking the same sets of directions as they sought in the earlier OA.
3. Shri D. S. Chaudhary, learned counsel appearing on behalf of the applicants would submit that the financial upgradation scheme of the MTNL was given effect from 1.10.2000 and those officers who have completed four years of regular service were eligible. As on 1.10.2004, the applicants being part of them were entitled to be considered for financial upgradation to the higher pay scale. As the applicants were already working in the pay scale of `16000-20800 and the next IDA pay scale was at `17500-22300 and as both the applicants have completed 4 years of their regular service in MTNL, they have been eligible in all respects as provided in the promotion policy. Thus, not extending the same facilities to the applicants is arbitrary, illegal, unjust and violative of their rights guaranteed under Article 14 & 16 of the Constitution of India. Further, it is stated that the applicants were neither under suspension nor were facing any disciplinary or criminal proceedings as on 1.10.2004. Therefore, as per the law laid by Honble Supreme Court in Union of India versus K. V. Janakiraman (AIR 1991 SC 1020) they would be entitled to relief claimed by them. The applicants were entitled to be promoted and granted higher pay scale due to them. He, therefore, urges that the OA should be allowed with appropriate directions to grant higher pay scale under the Scheme along with interest admissible on the arrears of pay and allowances.
4. On receipt of the notice from the Tribunal, the respondents have entered their appearance and have filed their counter reply on 17.03.2011 through their learned counsel Ms. Rachna Joshi Issar.
5. Learned counsel for the respondents would raise a preliminary objection of limitation as the Promotion Policy was brought into force by the order of MTNL dated 11.09.2007 and the applicants have retried on 28.02.2006 and 31.07.2006 respectively, but they have come to the Tribunal only in August, 2010. Hence, the OA, she contends, attracts delay and latches besides being hit by limitation. The objection on the ground of limitation was opposed by the counsel for the applicants. We have examined the same and do not accept the plea of preliminary objection. The case is not hit by limitation, as we find that non granting of the higher pay scale to the applicants is not an independent event but recurring cause of action, as the applicants have been denied the benefits. The law laid by the Honble Supreme Court in M. R. Gupta versus Union of India and Others (AIR-1996-SC-669), covers the present case as the applicants suffer every month the loss of differential pay of non-sanction of higher pay scale. In our considered view, delay and latches and doctrine of limitation would not be attracted in the instant OA.
6. We may now advert to the other contentions raised by the counsel for the respondents. She submits that in case of the first applicant, he was charge sheeted under Rule 27 on 30.10.2004 in two cases and in 3rd case the said applicant was charge sheeted on 3.02.2005 under Rule 25. She referred to Annexure R/3 in support of this contention to say that the applicant was not entitled to get any financial upgradation as he was facing 3 specific charges against him. With regard to the second applicant, she highlights that the applicant was facing a criminal case filed by the Central Bureau of Investigation (CBI) for which even he was reverted to his substantive grade of DE w.e.f. 25.11.2004. Annexure R/2 indicates that the CBI case was pending against the applicant and no vigilance clearance was available in their support. She contends that as per the Office Memorandum dated 11.09.2007, the completion of 4 years period would not automatically entitle any executive for financial upgradation to the next higher IDA scale. Clause-IV of the OM dated 11.09.2007 is relevant here. It is, therefore, stated that the applicants have not been discriminated nor have been treated differently. Thus, the non consideration of the representation is no way violative of their rights. She further submits that the applicants were allowed to retire provisionally on their superannuation subject to the pending vigilance and disciplinary cases against them. It is stated that these cases are still pending against them and, as such, no concession can be granted in favour of the applicants.
7. Having heard the contentions of the rival parties, we perused the pleadings as well. The controversy for our consideration is in narrow compass: whether applicants are entitled to get higher pay scale of `17500-22300 with effect from 01.10.2010?
8. The Office Memorandum dated 11.09.2007 which envisaged time bound, post based promotion policy for Group-B level Executives of MTNL provided first financial upgradation of IDA pay scale to the Executives on completion of 4 years of service in the current IDA scale subject to the condition that the Executives basic pay in the current IDA scale has crossed the lowest of the higher IDA scale for which the upgradation is to be considered. In the alternative if the officer has completed six years service in the current IDA scale, he would also be entitled to get the first upgradation. Admittedly, the applicants were absorbed as on 1.10.2000 in MTNL and completed 4 years of service as on 1.10.2004. It must be noted here that the applicant No.1 retired on 28.02.2006 and the second applicant retired on 31.07.2006. The scheme was introduced vide OM dated 11.09.2007. Though the review date is after 4 years i.e. after 1.10.2004 and the applicants case would have been in the range of consideration for upgradation to the next higher IDA scale, it is noticed that the applicants were facing departmental/criminal cases so much so that even their retirement was provisional. Even now, we were informed that the vigilance/departmental/criminal cases were pending against them. Law laid by the Honble Apex Court in K. V. Janakiramans case (supra) outlines that if an officer under consideration for promotion is under suspension or facing charges in disciplinary case or criminal case, the recommendation of the DPC/ Selection Committee should be put in sealed cover. But, in the present case the applicants have retired before the Promotion Policy was pronounced. The benefits of the Scheme could not have been extended to them purely on the ground that the charges were pending against the applicants on the crucial date. It has been stated by the counsel for the respondents that even on the date of hearing, both the applicants were facing charges either in departmental cases or in criminal cases. On this ground alone, we are of the considered opinion that they would not be entitled to be considered for time bound upgradation to the higher pay scale. Further, it is noted that in Scheme Para 4 clearly stipulates that the Executives will be considered if they are found fit as per the concerned regulatory condition but if they are found unfit, the next review will consider the case on the next review date and the Screening Committee while judging the fitness of the executives will also decide about the date of effect of the upgradation of pay scale. As the applicants were facing charges on 1.10.2004 and subsequently, even on date they have not been exonerated of the charges, it would not be appropriate for us to issue any direction to the respondents to consider their cases.
9. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the applicants are not entitled to be granted any upgradation to the higher pay scale as per the Promotion Policy as sought for in the present OA. Finding no merits in the case, the OA is dismissed. No costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/