Central Administrative Tribunal - Ernakulam
K Arunan vs The Chairman And Managing Director Bsnl ... on 11 September, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00482/2020
Monday, this the 11th day of September 2023
CORAM:
HON'BLE Mr.JUSTICE SUNIL THOMAS, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
K.Arunan,
Aged 68 years,
S/o.late Shri.Kamalasanan,
Retired Assistant General Manager (Legal), BSNL.
Karthika, Cherukunnam Pally Road,
Reghunathapuram, Varkala,
Thiruvananthapuram District. ...Applicant
(By Advocate Mr.S.Sadasivan)
versus
1. Bharat Sanchar Nigam Ltd.,
represented by Chairman and Managing Director,
Corporate Office, Bharat Sanchar Bhavan,
Janpath, New Delhi - 110 001.
2. Chief General Manager Telecom,
Bharat Sanchar Nigam Limited,
Kerala Telecom Circle,
BSNL Bhavan, PMG Junction,
Trivandrum - 695 033. ...Respondents
(By Advocate Mr.V.Santharam)
This application having been heard on 09th August 2023, the
Tribunal on 11th September 2023 delivered the following :
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ORDER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER The applicant in this O.A is a retired Assistant General Manager (AGM) of the Bharat Sanchar Nigam Limited (BSNL) who had superannuated from service on 31.05.2012. He has filed this O.A in October, 2020 in relation to the communication produced at Annexure A-1, which is a letter written to him by the 2 nd respondent, Chief General Manager Telecom, BSNL, Trivandrum dated 13.08.2020. He has been informed vide this communication that his representation for grant of stepping up of pay with his erstwhile junior Shri.R.K.Kulkarni, Divisional Engineer, Kalyan BA, Maharashtra has been rejected. The background to the case is that the applicant had been initially recruited as a Engineering Supervisor on 20.02.1975. This post was later redesignated as Junior Engineer/Junior Telecom Officer by the Telecommunication Department. He was then promoted to the next higher post of Sub Divisional Engineer (SDE) with effect from 01.09.1993. When the BSNL was formed with effect from 01.10.2000 he was absorbed in the said Company in the SDE cadre. He was then later was promoted to the post of Divisional Engineer with effect from 16.08.2010. As indicated earlier, he retired as an AGM on 31.05.2012. -3-
2. The applicant has submitted that he is aggrieved by the impugned order at Annexure A-1 dated 13.08.2020 issued by the 2 nd respondent which has, by denying him the stepping up of pay with his junior Shri.R.K.Kulkarni, basically taken the position that he is not eligible for the 2nd Time Bound Financial Upgradation (2 nd FUG) in the IDA pay scale in the cadre of SDE. It is his contention that the 2 nd FUG was granted to his juniors but he did not get it though he was eligible for the same as on 01.10.2009. Later he got his regular promotion, as was indicated, to the post of Divisional Engineer on 16.08.2010.
3. The applicant submits in this connection that the 1 st respondent (Chairman and Managing Director, BSNL, New Delhi) had issued an O.M on 18.01.2007 declaring that two different promotional schemes, namely, Time Bound and Post Based Promotion are available in the BSNL for promotion of its Executives. Under this Executive Promotion Scheme (EPP), the applicant was granted the 1 st financial upgradation (1st FUG) to the scale of E3 (Senior SDE) with effect from 01.10.2004, as he had fulfilled the eligibility criteria of four years of service in the IDA pay scale by that date having been absorbed into the BSNL on 01.10.2000. This was in accordance with the provisions contained in the EPP, a copy -4- of which has been produced at A-2. It is submitted that as per the EPP, under the Time Bound IDA Scale Upgradation Policy, in paragraph I(b) (3.1) the first upgradation in the IDA scale of an individual executive will be due for consideration, on completion of four years of service in the current IDA scale, subject to the condition that the said executive's basic pay in the current IDA scale has crossed/touched the lowest of the higher IDA scale for which his/her upgradation is to be considered or he/she has completed six years of service in the current IDA scale, whichever is earlier. The EPP, dated 18.01.2007, applies to Group 'B' level officers of the BSNL like the applicant. Further, as per the paragraph I(b)(3.2) any subsequent upgradation in the IDA scale to the next higher IDA scale will be due on completion of five years of service in the current IDA scale. Hence, the applicant submits that he would have been due for the subsequent upgradation on completion of five years in the current scale which he should have been given with effect from 01.10.2009. However, it so happened that in the interregnum period he was promoted on 'purely adhoc and temporary basis' to the next higher post of Divisional Engineer with effect from 19.12.2007.
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4. In this connection, the applicant has submitted certain points for consideration in relation to his contention that the 'purely adhoc and temporary' promotion given to him should have been ignored and that he should have automatically been given the subsequent 2 nd FUG with effect from 01.10.2009, notwithstanding, his adhoc promotion to the post of Divisional Engineer on 19.12.2007. His first contention is that his substantive post remained as SDE during the said period when he was given the promotion to Divisional Engineer on an adhoc basis. Further, he submits that the said adhoc promotion to Divisional Engineer was only a stop gap arrangement with no effect or consequential benefits such as seniority in the cadre of Divisional Engineer. Finally, he contends that the said promotion was also liable for reversion at any time, being a temporary promotion in nature. Hence, owing to these reasons, he submits that though he had completed five years of service in the IDA pay scale as on 01.10.2009 and was, therefore, eligible for the 2 nd FUG, he has been illegally deprived of the same. This, in other words, is the effect of the impugned communication to him at Annexure A-1 dated 13.08.2020. On the other hand, all his juniors had been granted the benefit of the 2nd FUG. Later, they were also promoted to the post of Divisional Engineer from SDE on an adhoc basis, after his own adhoc -6- promotion to the post of Divisional Engineer. Effectively, this implied that the juniors were granted the two benefits or two upgradations in the IDA pay scale, namely, the 2 nd FUG in IDA pay scale plus the fixation of pay in the Divisional Engineer cadre on an adhoc basis. Contrary to this, he was only given the benefit of promotion on an adhoc basis to the post of Divisional Engineer on 19.12.2007 but not the 2 nd FUG with effect from 01.10.2009. Thus, the grant of only one upgradation benefit in the IDA pay scale has resulted in the anomaly of him drawing lesser salary than his juniors.
5. To further illustrate the above point the applicant has invited reference to the statement produced at Annexure A-3 of the O.A., which is a comparison of pay scale and grades between himself and the said junior officer, Shri.R.K.Kulkarni. As submitted earlier, the applicant had been appointed as Engineering Supervisor/Junior Engineer/Junior Telecom Officer on 20.02.1975. The said junior had been appointed as Junior Engineer only with effect from 29.01.1982. Both officials had received the 1st Time Bound Promotion with effect from 01.10.2004, after the formation of BSNL, in the pay scale of Rs.13000-350-18250. Later, the applicant had got the officiating/adhoc -7- Divisional Engineer pay scale of Rs.29100-54500 with effect from 19.12.2007 due to his seniority. His pay has been fixed at Rs.39240/- in the said scale. However, the juniors continued in the lower pay scale till they got the 2nd FUG with effect from 01.10.2009 in the said pay scale of Rs.29100-54500. Their pay on that date got fixed at Rs.40420/-. After this, the junior got another promotion as Divisional Engineer (Adhoc) with effect from 30.07.2010, fixing his pay at Rs.44180/-. Thus the comparison at Annexure A-3 shows that, by 01.01.2011, the applicant was drawing a salary of Rs.44180/- only, whereas, the junior was to draw Rs.45510/-.
6. The above pay data of the applicant and the junior Shri.R.K.Kulkarni has been summarized by the applicant at paragraph 4.6 of the O.A. He submits that his junior had got the promotion to E3 scale on 01.10.2004 like him. However, the applicant then got adhoc promotion to the E4 (Divisional Engineer scale) on 19.12.2007 and his pay was fixed at Rs.39240/-. After this the junior had got 2 nd Time Bound FUG on 01.10.2009 where his pay was refixed from Rs.40420/- to Rs.42890/-. Later, the junior then got the adhoc promotion to Divisional Engineer cadre on 30.07.2010 and his pay was again fixed at Rs.44180/-. -8- The applicant however did not get the 2 nd FUG on 01.10.2009. With the result of these two promotions enjoyed by the junior the gap in pay between the two has occurred and is an anomaly. The applicant submits that he is not seeking any relief against the junior, but is only claiming pay fixation at par with them. The comparison that he has made is not with the intention to reduce the pay of the junior, but only to prove that the junior officer who was promoted to the same post of Divisional Engineer on adhoc basis on a subsequent date, has been as a result fixed at a higher pay than him. This was purely on account of the fact that that junior officer was granted his 2 nd Time Bound FUG, whereas, the applicant has been deprived of the same.
7. The applicant submits that it cannot be the position that he is not eligible and not entitled to the 2 nd Time Bound FUG as on 01.10.2009. The respondents cannot contend that because he had opted to avail the adhoc promotion, this broad anomaly has resulted, especially since the said adhoc promotion to the cadre of Divisional Engineer was not on his request. Thus, he submits that he cannot be penalized for accepting the adhoc promotion to the cadre of Divisional Engineer. The applicant also draws attention to the provisions contained in paragraph I(d) (1) of the -9- EPP dated 18.01.2007 at Annexure A-2 which under 'General Principles' provides that 'on being found fit for IDA scale upgradation, fixation under FR 22 (I)(a)(I) shall be allowed.' In addition, under paragraph I
(d) (3) of 'General Principles' it has been indicated at the end of the said provisions that 'Further IDA scale granted to any Executive by virtue of any local officiating arrangement will not count for the purpose of IDA pay scale upgradation.' In addition, in the paragraph II under 'Post Based Promotion Policy' at point (vi) it has been provided that 'The provisions of adhoc/officiating arrangements will cease to exist in the company consequent upon completion of Group 'A' absorption and implementation of promotional avenues in respect of Group 'A' officers as well. Thus, only regular post based promotions, as per BSNL RRs (either notified or to be notified), and looking after arrangements under FR 49 will remain operational.' Thus, in effect, it is submitted that an adhoc promotion to Divisional Engineer cadre is in the nature of temporary arrangement and the E4 IDA pay scale granted during such adhoc promotion should not be allowed to be counted for the purpose of IDA payscale upgradation in the substantive cadre of SDE especially since the adhoc promotion is liable to be reversed.
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8. In addition to the above points, it is contended that the above claim is no longer 'res judicata' as very similarly situated officers had earlier approached this Tribunal in O.A.No.109/2011, O.A.No.110/2011 and O.A.No.236/2011 with the same contentions. These O.As were heard and disposed of in a common order dated 07.12.2011 of this Tribunal, a copy of which has been produced at Annexure A-4. This issue was summarized in paragraph 2 of the said order as follows :
"The applicants in these O.As as well as their juniors were granted first time bound upgradation to the scale of pay of Senior SDE, ie., E-3 Scale Rs.13000-350-18250 on 01.10.2004 as per Annexure A-1 Executive Promotional Policy Order. The due date for the 2 nd time bound upgradation for the applicants and their juniors was on 01.10.2009. Being seniors, the applicants got adhoc promotion to E-4 pay scale in the year 2008. Their juniors got adhoc promotion after the 2 nd time bound upgradation on 01.10.2009. As a result, the juniors drew more pay than the applicants. Aggrieved, the applicants have filed these O.As for a direction to the respondents 1 and 2 to grant them the 2nd time bound upgradation in scale of pay in the substantive cadre of Sub Divisional Engineer, fix their pay accordingly and refix their pay consequentially in the scale of pay of post in the cadre of Divisional Engineer as has been done in the case of their juniors and to grant them all consequential monetary benefits including arrears of pay forthwith."
9. Thus, it be seen from the above stated position that the issue addressed in the O.A.No.109/2011 and connected cases was almost exactly similar to the issue raised by the applicant herein in this O.A. -11- After examining and bringing out other details, this Tribunal came to the following conclusions in paragraphs 8, 9, 11, 12 and 13 in its common order dated 07.12.2011 in these O.As :
"8. In service jurisprudence, the general principle is that senior gets more pay than junior, if not, at least the same pay as junior. Senior getting less pay than junior is an anomaly. It is generally resolved by stepping up the pay of senior to the level of pay of junior. In the instant cases, seniors are getting less pay than the juniors without any justifiable reason for being an exception to the general principle. This constitutes an anomaly.
9. The root cause of the anomaly is the policy of the respondents which allows the benefit of pay fixation upon time bound financial upgradation as well as upon ad hoc/regular promotion. The juniors in the instant cases got the benefit of pay fixation on the 2 nd time bound financial upgradation on 01.10.2009 and on post based ad hoc promotion on 30.06.2010 whereas the applicants being seniors got post based ad hoc promotion in 2008 with the benefit of pay fixation and because of the post based ad hoc promotion, which is considered as post based promotion, they were not given the 2nd time bound financial upgradation in 2009. Thus, the seniors missed out the benefit of one financial upgradation only because they were seniors to be promoted earlier than their juniors. When the benefit of pay fixation upon time bound financial upgradation, which is to be given as a temporary substitute for promotion which is delayed for want of vacancy of post, the question whether again the benefit of upgradation of pay upon ad hoc/regular promotion is to be given or not, is for the respondents to ponder over. In our considered view, the anomaly of the applicants who are seniors drawing less pay than their juniors in the cases under consideration have arisen only when the benefit of pay fixation was granted to their juniors upon their ad hoc -12- promotion in 2010 as DEs, even after giving them the said benefit in 2009 upon the 2 nd time bound financial upgradation. This is as per the policy of the respondents. When the policy has resulted in an anomaly which is not justifiable on any count, they should set right the anomaly by stepping up the pay of the seniors to the level of the pay of their juniors without loss of time, especially when juniors have no superior claim over the seniors, whether in length of service or qualification. Instead, they have set up a Committee whose report is awaited. Details such as when it was constituted, what has it done so far, when it is going to submit the report etc. are not available. That the applicants will get next financial upgradation in 2013 as against their juniors getting it in 2014 cannot justify continuance of less pay for the seniors than the juniors till 2013. Those who retire before the next financial upgradation are left in the lurch. In the instant cases, most of the applicants have retired or are on the verge of retirement. In the facts and circumstances of these cases, granting the benefit of 2 pay fixations are, in effect, granting of 2 promotions for juniors, first on 01.10.2009 and the 2nd on 30.06.2010, both within a span of 9 months. Granting of 2nd pay fixation benefit to the juniors amounts to supersession of the seniors for no reason other than that they are seniors. The charges of discrimination and arbitrariness in granting the benefit of pay fixation cannot be deflected from the respondents. It is only fair and just that the pay of the applicants should be stepped up, with effect from the date of arising the anomaly to the level of the pay of their juniors.
10. xxxxxxxxxxx
11. It could have been appreciated if the respondents had made it clear to the applicants when they were promoted as DE on ad hoc basis that if they accept the promotion, they will not be eligible for the 2 nd financial upgradation in SDE cadre, instead they could wait for the 2nd financial upgradation in SDE cadre and then be promoted to the cadre of DEs.-13-
12. In the light of the above, the O.As are allowed as under.
13. The respondents are directed to step up the pay of the applicants to the level of pay of their juniors with effect from the date of arising of the anomaly of seniors drawing less pay than their juniors in respect of each of the applicants within a period of 3 months from the date of receipt of a copy of this order. However, this order will not stand in the way of the Committee set up to deal with the issue under consideration in these O.As, giving a more beneficial recommendation for the applicants."
10. The applicant submits that the respondents had appealed against the common order in O.A.No.109/2011 and connected cases dated 07.12.2011 by filing O.P.(CAT) No.1576/2012 in the Hon'ble High Court of Kerala. The Hon'ble High Court of Kerala in its judgment dated 10.07.2012 produced at Annexure A-5, wherein, after examining the issue once again in relation to the provisions of FR 22, Sub-rule 23 with regard to removal of anomaly by stepping up of pay of Senior on promotion drawing less pay then his junior, observed that it has to be seen that whether the case of the applicants would attract one of the conditions referred in the above FR 22 Sub-rule 23 so as to deny the benefit of stepping up of pay. While it had been argued for the first time by the department before the Hon'ble High Court, but it was observed by the Hon'ble High Court that even otherwise it was not open to them to -14- say that the applicants have to establish that none of the conditions apply to them. On the other hand the Hon'ble High Court observed that it is for the department to establish that the applicants are not entitled for the benefit as their cases would attract one or the other of the conditions referred to at Sub-rule 23 or Rule FR 22. The petition was dismissed by the Hon'ble High Court and the order of the Tribunal was confirmed. It was directed that the pay of the applicants may be stepped up within three months from the date of receipt of a copy of the judgment. A copy of the said judgment dated 10.07.2012 in O.P.(CAT) No.1576/2012, 1560/2012 & 1592/2012 has been produced at Annexure A-5. It appears that the respondents continued to press the matter by filing SLP No.7716/2013. However, the Hon'ble Supreme Court upon hearing the counsel also found no merits in the SLPs' and accordingly dismissed them on 08.01.2015. A copy of the judgment of the Hon'ble Supreme Court in SLP No.7716/2013 has been produced at Annexure A-6.
11. In addition to the above supportive judgments, the applicant has separately furnished the common order of this Tribunal in O.A.No.1195/2013, O.A.No.1219/2013, O.A.No.20/2014, O.A.No.533/2015, O.A.No.881/2015 and O.A.No.961/2015 passed on -15- 16.02.2017. The common order passed by this Tribunal in these O.As relied upon the common order of this Tribunal in the above mentioned O.A.N.109/2011 and connected cases. After bringing out the facts in these cases which were very similar, it was noted at paragraph 13 onwards of the order that this Tribunal and the Hon'ble High Court of Kerala had already decided the matter in O.A.No.109/2011 and connected matters and in O.P.(CAT) No.1560/2012 and connected cases. It was ordered that the benefits should be extended to the applicant in these O.As within 6 weeks, subject to the condition that if the Hon'ble Supreme Court does not rule in favour of the applicants, the applicants will refund any excess payment received as a result of the order in those O.As. It is submitted that the above order dated 16.02.2017 in O.A.No.1195/2013 and connected cases was also challenged in O.P.(CAT) No.67/2018 and connected cases before the Hon'ble High Court of Kerala. The said O.P.(CAT) and connected cases were also disposed of by common order dated 23.07.2018 of the Hon'ble High Court upholding the order of this Tribunal dated 16.02.2017 by relying on the earlier judgments of the Hon'ble High Court of Kerala in O.P.(CAT) No.1560/2012 and connected cases dated 10.07.2012. Further, it is submitted that as the Hon'ble Supreme -16- Court has also dismissed the appeal against the judgment in the O.P. (CAT) No.1560/2012 and other connected cases vide the judgment produced at Annexure A-6 nothing else survives and remains to be adjudicated.
12. Giving the above position, it is submitted by the applicant that he had submitted a representation to the 2 nd respondent on 11.04.2012 after his joining in the Kerala Circle from an earlier posting in Kalyan under the Maharashtra Circle, when he was nearing his date of retirement. He retired from service on 31.05.2012 on attaining the date of superannuation. However, he submits that he kept taking up the matter by sending various reminders on these representations to the respondents. However, all these representations and reminders were ignored by the respondents and not acted upon. The applicant then took the decision to agitate the issue before the Centralized Public Grievance Redress And Monitoring System (CPGRAMS) of the Ministry of Personnel, Public Grievances & Pensions through an online complaint dated 08.12.2019. It was only after he did this that his claim was rejected by the impugned order dated 13.08.2020 at Annexure A-1.
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13. We note in this connection that the respondents have passed the order at Annexure A-1 after stating that they have examined the case in the light of the Time Bound Promotion Policy and the rulings for stepping up of pay based on FRSR. We also note that this communication to the applicant has been issued by office of the 2 nd respondent, Chief General Manager, Trivandrum. It is recorded therein, in the opening paragraph, that since documents relating to the pay details of Shri.R.K.Kulkarni were not available in that office, it had to be called for from 'Kalyan B.A.' On verification of relevant pages of Service Book and pay fixation memos of Shri.R.K.Kulkarni it was seen that Shri.Arunan.K. (the applicant) had came over to the E-4 scale ie.,Rs.29100-54500 on 19.12.2007 on receipt of Divisional Engineer (Adhoc) promotion, whereas, the said Shri.R.K.Kulkarni got time bound upgradation to E-4 scale with effect from 01.10.2009 and then got additional increment on Divisional Engineer (Adhoc) promotion with effect from 30.07.2010. The respondents then made two points while rejecting the claim of the applicant in the Annexure A-1 communication :
(1) As per Clause I(d)(6) of EPP O.M dated 18.01.2007 on Time Bound IDA Scale Upgradation policy 'since Time Bound Upgradation of IDA pay scale of any Executive under the policy is personal to the -18- Executive concerned, no claim whatsoever can be made by comparison on grounds of seniority, class, community, cadre, stream etc. Further, except as provided in instant guidelines, no claim will lie on account of any of the other provisions of FRSR in the context of pay scales, pay fixation, substantive status etc.' (2) As per the guidelines on stepping up of pay, the following instance/event wherein a junior draws more pay than senior, do not constitute anomaly and therefore, stepping up of pay will not be admissible in such event.
14. In relation to (2) above it appears that the respondents are referring to the DoP&T O.M dated 26.10.2018, produced by the applicant along with his rejoinder at Annexure A-11. This O.M provides in paragraph 3 a list of instances/events wherein juniors draw more pay than seniors, do not constitute anomaly and, therefore, stepping up of pay will not be admissible in such events. In that O.M at paragraph 3 point (g), it has been indicated as follows :
'(g) Where a senior is appointed in higher post on adhoc basis and is drawing less pay than his junior who is appointed in the same cadre and in same post on adhoc basis subsequently, the senior cannot claim pay parity with reference to the pay of that junior since the adhoc officiating service in higher post is reversible and also since full benefits of FR 22 (I)(a)(I) are not available on adhoc promotion but only on regular promotion following such adhoc promotion without break.' The above has been repeated almost word for word in the point (2) of the Annexure A-1 communication.-19-
15. Hence, in sum, it appears that through the communication at Annexure A-1 the respondents are stating that as per point (1) above, the applicant was not eligible for stepping up of pay with effect from 01.01.2010 consequent to pay fixation of Shri.R.K.Kulkarni on E-4 Time Bound Upgradation as no claim lies on basis of seniority etc. Further, as per point (2) specified above, he is also not eligible for stepping up of pay with Shri.R.K.Kulkarni who got Divisional Engineer adhoc promotion at a later date since his adhoc promotion was reversible and FR 22 (I)(a)(I) full benefit is not available for adhoc promotion but only for regular promotion. Thus, his claim for stepping up of pay has been accordingly rejected based on these two explanations. The applicant submits that he had made representations on 11.04.2012 and then only on 08.12.2019 vide Annexure A-7 and Annexure A-8. He has not gone into further details or presented other contentions in the O.A to counter these specifically. He only submits that the impugned order dated 13.08.2020 is 'illegal and wrong' and he was entitled to 2nd upgradation in IDA scale of pay in the SDE cadre as on 01.10.2009 before his regular promotion as Divisional Engineer with further refixation of pay in the Divisional Engineer cadre on regular promotion on 16.08.2010 as granted to his juniors. Thus, it appears that -20- his main reliance is on the aforementioned orders of this Tribunal in the O.As concerned which were upheld by the Hon'ble High Court of Kerala and the judgment of the Hon'ble Supreme Court dismissing the SLP, produced at Annexure A-6.
16. The respondents in their reply statement have at the outset pointed out that there is a huge amount of delay and laches in the filing of the O.A by the applicant. It is submitted that the claims are in relation to a dead issue, which was sought to be revived by filing the online complaint in the CPGRAMS system on 08.12.2019. The point that they seek to make is that if the applicant really felt there was anomaly, it should have been agitated as early as in 2009 specifically on 01.10.2009, when the so called juniors of the applicant were given the subsequent financial upgradation. The applicant never did anything at that time and retired in 2012. He may have given a series of representations from 2011-2012 as he claims, but he did not take any further steps in this regard right upto 2019, when he filed the online complaint through the CPGRAMS system. This complaint, having got disposed of by the Annexure A-1 order dated 13.08.2020 details of which have been brought out above, cannot be taken as giving him a -21- fresh lease for a cause of action in reviving a dead issue or a time barred issue. Hence, the O.A should be dismissed purely on the ground of delay and maintainability.
17. Expanding on the above line of argument at the time of oral submissions, learned counsel for the BSNL, Shri.V.Santharam brought to our notice a well known series of judgments by the Hon'ble Supreme Court to establish the contention that 'delay defeats equity'. These included A.P.Steel Re-Rolling Mill Ltd. vs. State of Kerala & Ors., (2007) 2 SCC 725, wherein, it had been observed by the Hon'ble Supreme Court that "the benefit of a judgment is not extended to a case automatically. While granting relief in a writ petition, the High Court is entitled to consider the fact situation obtaining in each case including the conduct of the petitioner. In doing so, the Court is entitled to take into consideration the fact as to whether the writ petitioner had chosen to sit over the matter and then wake up after the decision of this Court. If it is found that the appellant approached the Court after a long delay, the same may disentitle him to obtain a discretionary relief." Similarly, in S.S.Balu & Anr. vs. State of Kerala & Ors., (2009) 2 SCC 479, it was observed that "it is also well settled principle of law that 'delay -22- defeats equity'." In Union of India & Ors. vs. M.K.Sarkar, (2010) 2 SCC 59, it was noted that matter of Tribunals entertaining representations without examining the merits and directing the respondent department to consider the same has given rise to unnecessary litigation and avoidable complications. Further, the 'ill effects' of such directions were considered by the Hon'ble Supreme Court in C.Jacob vs. Director of Geology and Mining, (2008) 10 SCC 115, where it was observed that in M.K.Sarkar (supra) at paragraph 15 the Court had held that :
"when a belated representation in regard to a "stale" or "dead" issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the "dead"
issue or time barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches."
18. In addition to the above judgments, learned counsel for the respondents also brought to our notice the order of the coordinate bench of this Tribunal at Jabalpur, in the matter of Uma Verma vs. Union of India & Anr., decided on 29.01.2020 in O.A.No.200/983/2018. In that -23- order, the Tribunal had gone through the provisions of Section 21 of the Administrative Tribunals Act, 1985, dealing with limitation for filing O.As and also the orders of the Hon'ble Supreme Court in M.K.Sarkar (supra). It then dismissed the Miscellaneous Application (M.A) for condonation of delay, as well as the O.A on the ground of delay and laches. Further, in Shiba Shankar Mohapatra & Ors. vs. State of Orissa & Ors., (2010) 12 SCC 471, the Hon'ble Supreme Court had gone through a series of judgments in various cases in relation to extraordinary and inordinate delay. It was then observed in paragraph 29 that "It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion...." Further in O.A.No.442/2013 decided on 24.01.2020 by the Cuttack Bench of this Tribunal, the orders of the Hon'ble Supreme Court in Shiba Shankar Mohapatra (supra) had been referred to, while dismissing the O.A due to a long lapse of time. It was held that the O.A was barred on the ground of limitation and delay. Further, in S.S.Rathore vs. State of Madhya Pradesh, (1989) 4 SCC 582, the Hon'ble Supreme Court observed that submission of a memorial or representation to the head of the establishment shall not be taken into consideration in the matter of fixing limitation.
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19. Drawing from the above judgments and orders, it is the contention of learned counsel for the respondent, BSNL, that even if this Tribunal or an higher judicial forum had laid down a principle through the orders/judgments that have been produced at Annexure A-4, Annexure A-5 and Annexure A-6 and otherwise, it cannot be taken as applicable at this length of time. It is contended that the whole matter has only got revived due to a complaint made through the CPGRAMS and the reply of the respondents to the applicant at Annexure A-1.
20. We have considered the above contention of learned counsel for the BSNL. At first blush we accept that the respondents have made a very fairly strong case to the effect that the applicant was sleeping over his rights even after the orders of the Tribunal were passed in the case of similarly situated executives of the BSNL, vide Annexure A-4, as early as on 07.12.2011. It is also to be noted that the Hon'ble High Court had confirmed the said order in O.P.(CAT) No.1576/2012 by 10.07.2012 itself. The applicant, who by his own description, is a retired Assistant General Manager (Legal) of the BSNL cannot be said to be a low grade employee not aware about the issue of limitation. It -25- is fairly obvious, therefore, that there has been unexplained delay and laches which are sought to be overcome by trying to revive the issue through the public grievance redressal system as late as 2019, almost 7 years after the judgment of the Hon'ble High Court produced at Annexure A-5. This indeed would be sufficient to have had the O.A dismissed on these grounds. However, this Tribunal has largely taken a position in such cases that some sort of leeway can be considered especially if there are orders/judgments in favour in similarly situated cases and also where delay can be satisfactorily explained. In this connection besides the orders/judgments that have been brought out which support the position of the applicant, there is also another aspect which can be considered in his favour for a proper appraisal of the case on merit. We note that in the rejoinder filed in response to the reply statement the applicant has brought out that he had made representations even as early as in 2011, when he was posted at Kalyan. He was also actually informed by a letter that he has produced at Annexure A-9 dated 02.01.2012 by the BSNL Kalyan that his representation dated 04.08.2011 regarding the anomaly of pay had been referred to the Kerala Circle after he was relieved from the Kalyan, Maharashtra Circle on 31.05.2011 since his service book had been sent to the said Kerala -26- Circle. This establishes that he was taking up the matter from around 04.08.2011 itself or even earlier, as referred in the said letter at Annexure A-9. Further, he did continue making representations for sorting out the issue of anomaly, even after he arrived at Kerala Circle, at regular intervals in 2013, 2014, 2015, 2016 etc., as may be seen in the copies of the letters that he has provided at Annexure A-9. Of course, he could have come to the Tribunal earlier when he got no response on these representations.
21. Learned counsel for the applicant, Shri.S.Sadasivan, filed a detailed rejoinder in which he has dealt with the issue of delay/latches raised strongly by the respondents in their reply statement as well as tried to meet the other points raised in the reply statement which will be outlined later. Further, learned counsel for the applicant, Shri.S.Sadasivan has sought to explain this in detail during oral submissions by stating that the applicant had been always hopeful of getting a reply from the respondents. In addition, the applicant has produced the orders of the Principal Bench of this Tribunal in O.A.No.367/1986 dated 12.01.1987 at Annexure A-10 of the rejoinder in the matter of Shri.Parupkar Singh Soni vs. Union of India & Ors., -27- wherein the Principal Bench had found fault with the respondents for failing to dispose of the applicant's representation. It was observed therein that because of the correspondence between the applicant and the respondents, the applicant had not moved to the High Court or the Tribunal earlier and hence application cannot be deemed to be time barred. Learned counsel for the applicant submits that the position is similar herein. He has also produced the order of the Hon'ble Supreme Court in Union of India & Ors. vs. Tarsem Singh, Civil Appeal No.5151-5152/2008, wherein it has been held, at paragraph 5, that normally a belated service related claim will be rejected on the ground of delay and laches or limitation. But exceptions to this rule lie in the cases relating to a continuing wrong. It was observed that "Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury." He submits that besides these, there have also been other judgments such as in M.R.Gupta vs. Union of India & Ors., 1996 AIR 669, where the right of the applicant to be paid the correct salary computed on the basis of proper pay fixation has been found to subsist during the entire tenure of service and can be -28- exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. Hence, learned counsel for the applicant submits that the matter should be heard and disposed of on merit.
22. In this connection, we have taken another specific issue into consideration in arriving at our decision to adjudicate this matter on merit. We have noted that the main reliance of the applicant in the O.A was on the orders of the Tribunal and the judgments of the Hon'ble High Court as well as the Hon'ble Supreme Court in the case of similarly situated personnel of BSNL. These have been brought out earlier in our discussion of the orders of this Tribunal dated 07.12.2011 in O.A.No.109/2011 and connected cases at Annexure A-4. The basis of the order of this Tribunal, upheld later by the Hon'ble High Court, was on the ground that the Tribunal had found that the root cause of the anomaly was the policy of the respondents allowing the benefit of pay fixation for some officials both through time bound financial upgradation, as well as upon adhoc/regular promotion. It was noted that the juniors had got the benefit of pay fixation by the 2nd time bound financial upgradation (2nd FUG) on 01.10.2009 as -29- well as through the post based adhoc promotion on 30.06.2010. On the other hand the applicants, therein, being seniors, got post based adhoc promotion in 2008 with the benefit of pay fixation. It was only because of the post based adhoc promotion, which is considered as post based promotion, they were not given the benefit of the 2 nd time bound financial upgradation in 2009. In other words, it was found that the seniors missed out on the benefit of one financial upgradation, only because they were seniors who got adhoc promotion earlier than their juniors. The Tribunal then found that the granting of 2 nd pay fixation benefit to the juniors then amounted to a 'supersession' of the senior for no reason other than that they were senior. It was thus held that the policy resulted in an anomaly, which was not justifiable on any count and that the charges of discrimination and arbitrariness in granting the benefit of pay fixation cannot be deflected from the respondents.
23. We note that the common order of this Tribunal on 07.02.2011 produced at Annexure A-4 had not gone into the issues which are now highlighted by the respondents in their response to the applicant's CPGRAMS representation at Annexure A-1. Specifically it appears -30- that the respondent BSNL has now relied on the provision of paragraph I(d)(6) of the EPP dated 18.01.2007, as well as the guidelines for stepping up of pay as per the O.M dated 26.10.2018 of the Department of Personnel and Training. Ironically, this was brought to our notice by the applicant himself in the rejoinder at Annexure A-11. The respondents have contended in their reply and at Annexure A-1 that the case of the applicant is covered under the exceptions to the 'stepping up of pay' as it does not constitute an anomaly under paragraph 3(g) of the 26.10.2018 DoP&T O.M. These arguments or issues were not examined or looked into in any detail in any of the orders/judgments that were referred to above. Thus, we find that these are new considerations brought out by the respondents for the first time. Hence we are of the opinion that the matter deserves to be once again heard on these new grounds and, accordingly, disposed of on merit. Hence, in other words, the O.A is not being disposed off on the ground of delay and laches or on the ground of limitation. This decision of ours is also reinforced by the fact that in the reply statement of the respondents, the contentions made in the Annexure A-1 response to the applicant have been expanded to some extent.
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24. It is submitted by the respondents in their reply statement that the applicant was in E-2 scale as on 01.10.2000. He was granted the first FUG in E-3 scale on 01.10.2004. He was then granted with what in effect was a second FUG to the E-4 scale on 19.12.2007, on his promotion to the cadre of Divisional Engineer on an 'adhoc basis' on that date. The respondents submit that it is to be noted, therefore, that as his pay was upgraded to the E-4 IDA scale on 19.12.2007, the applicant is entitled to subsequent FUG in E-5 scale only on 19.12.2012, on completion of five years of service in the E-4 scale. In other words, he is not entitled to a subsequent financial upgradation as he claims with effect from 01.04.2009. He is entitled to it only with effect from 19.12.2012 on completion of five years of service since he was already placed in the E-4 scale. This is the crux of the argument of the respondents which they submit is also covered under the said paragraph 1(b)(3.2) of EPP at Annexure A-2. The applicant had been subsequently regularized in the cadre of Divisional Engineer on 16.08.2010. It is submitted that after enjoying the benefit of E-4 scale from 19.12.2007 till his date of retirement which was on 31.05.2012, he has no case for any subsequent FUG since he retired before he would have been due to be placed in the next higher E-5 scale on 19.12.2012 as envisaged by the provisions of -32- the EPP at Annexure A-2. As such, the respondents reiterate that it is clear that the applicant had received all the entitled pay upgradation as per the extant rules and the contention that the subsequent FUG was denied is contrary to these facts.
25. Over and above the above contentions, the respondents also now seek to rely on paragraph 1(d)(3) and paragraph 1(d)(6) under the 'General Principles' of the EPP dated 18.01.2007 as provided at the Annexure A-2. The said paragraph 1(d)(3) has indicated that "For the purpose of counting the service in current IDA payscale for any Time Bound upgradation, technical break periods in the adhoc arrangements ordered by DoT/DTS/DTO/BSNL Corporate Office will be treated as continuous for the limited purpose of counting of current IDA scale service period only without any other benefit, monetary or otherwise. Further, IDA scale granted to any Executive by virtue of any local officiating arrangement will not count for the purpose of IDA payscale upgradation." It is contended that the said paragraph basically provides that the IDA scale granted on an adhoc basis can be treated as continuous for counting the service in the current IDA payscale. Hence, it is submitted that the applicant is entitled for the next upgradation only on -33- 19.12.2012 on completion of five years of service in the E-4 scale. Further, in paragraph 1(d)(6) of Annexure A-2, it has been provided that "Since time bound upgradation of IDA payscale of any executive under the policy is personal to the executive concerned, no claim whatsoever can be made by comparison on grounds of seniority, class, community, cadre, stream etc....." From this provision the respondents submit that it is to be seen that the applicant was in receipt of all eligible pay upgradations. The paragraph 1(d)(6) also provides that the employee can make no further claim on account of any other provisions of FRSR in the context of payscales, pay fixation, substantive status etc. It is submitted that there had been no challenge to the policy at Anneure A-2 and it is still in existence without any challenge in this O.A. Hence the action taken and informed to the applicant by Annexure A-1 dated 13.08.2020 is fully in order as per the extant rules.
26. In addition to the above points it is evident as per the respondents that the junior Shri.R.K.Kulkarni was neither granted any adhoc promotion nor any pay upgradation until 01.10.2009 when he completed five years of service in the E-3 scale with effect from 01.10.2004. Hence, Shri.R.K.Kulkarni was entitled and accordingly granted the -34- subsequent 2nd upgradation in E-4 scale as on 01.10.2009, whereas, the applicant had got his subsequent 2 nd upgradation in the E-4 scale on 19.12.2007 itself. The applicant has also referred at paragraphs 4.11 and 4.12 of his O.A to orders of this Tribunal in certain cases (O.A.No.109/2011 and connected cases). However, these cases relate to matters which were not in consideration as in this O.A and are not applicable to the case at hand. As per the Hon'ble Supreme Court's judgment in Indian Council of Agricultural Research & Anr. vs. T.K.Suryanarayan & Ors., (1997) 6 SCC 766, it has been held that ".....Even if in some cases erroneous promotions had been given contrary to the said Service Rules and consequently such employees have been allowed to enjoy the fruits of improper promotion, an employee can not base his claim for promotion contrary to the statutory Service Rules in law courts." It was further held as follows :
"Incorrect promotion either given erroneously by the department by misreading the said Service Rules or such promotion given pursuant to judicial order contrary to Service Rules cannot be a ground to claim erroneous promotion by perpetrating infringement of statutory Service Rules. In a court of law, employee cannot be permitted to contend that the Service Rules should not be adhered to because in some case erroneous promotions had been given. The statutory service rules must be applied strictly."-35-
27. It is submitted by the respondents that drawing from the above, the applicant cannot base his claim for promotion contrary to the statutory Service Rules as such promotion given pursuant to judicial orders contrary to Service Rules cannot be a ground to claim erroneous promotion by perpetrating infringement of statutory Service Rules. In addition it is submitted that the orders at Annexure A-5 and Annexure A-6 of the Hon'ble High Court and Hon'ble Supreme Court were passed on 10.07.2012 and 08.01.2015 respectively while the applicant had already retired on 31.05.2012. Hence, it cannot be made applicable to him and there is no ground to reopen already settled cases. It is also pointed out by the respondents that some officials in the BSNL had refused offer of adhoc promotion and, thereby, had managed to get the benefit of time bound financial upgradation as well. In fact, in paragraph 4.13 of the O.A., the applicant had admitted the same by arraying a list of officers who had been given adhoc promotion to the cadre of Divisional Engineer along with him but had declined the adhoc promotion in view of the provisions of EPP. These officials were subsequently promoted to the cadre of Divisional Engineer on an adhoc basis after being given the benefit of 2nd upgradation in IDA pay scale and hence were also drawing more salary than him. Thus, it is submitted that it is evident that the -36- adhoc promotion granted to the applicant could have been declined by him if the same was not beneficial to him. However, in contra, he accepted it well before the completion of five years of service in the IDA E-3 scale. In other words, the applicant himself accepted the adhoc promotion which had been declined by his own colleagues. In short, it is submitted by the respondents that once he took the 2 nd financial upgradation in E-4 scale with effect from 19.12.2007 the next financial upgradation was possible only in E-5 scale for which he would have to complete five years of service, but before completion of the said period he retired from service. Hence, he has been given all the benefits entitled to him as per the provisions contained in Annexure A-2 guidelines and accordingly the order at Annexure A-1 dated 13.08.2020 has been issued in response to his representation dated 08.12.2019 produced at Annexure A-8.
28. Though the applicant has further sought to counter the above points in his rejoinder, we feel that the respondents have made a sufficient case based on the EPP guidelines, which to our mind requires another reconsideration of the issue, notwithstanding the earlier orders of this Tribunal in the O.As referred to earlier ie., O.A.No.109/2011 and -37- connected cases as well as subsequent judgments of the Hon'ble High Court. We note that the previous orders/judgments had not specifically taken into account certain relevant considerations in relation to stepping up of pay between seniors and juniors. More so, what has been indicated in the DoP&T O.M at Annexure A-11 dated 26.10.2018 bears some consideration. It has been clearly laid down therein that there is no need for stepping up of pay in the category of cases where a senior was appointed in the higher post on adhoc basis and was drawing less pay than his junior who is appointed in the same cadre and in same post on adhoc basis subsequently. It is stated that a senior cannot claim pay parity with reference to the pay of that junior, since the adhoc officiating service in higher post is reversible and also since full benefits of FR 22(I)
(a)(I) are not available on adhoc promotion but only on regular promotion following such adhoc promotion without break. Further, we also note, as submitted by the respondents, that the provisions of the EPP at Annexure A-2, particularly, at paragraph 1(d)(3) and 1(d)(6) have stated that for the purpose of counting the service in current IDA pay scale for any time bound upgradation even technical break periods in the adhoc arrangements have to be taken as continuous for counting the current IDA payscale service period. Further, it is stated that time bound -38- upgradation of IDA payscale is personal to the Executive and no claim can be made by comparison on grounds of seniority, class, community, cadre, stream etc.
29. We find that these points are applicable to the case of the applicant herein and he cannot claim any difference. Though the applicant claims in his rejoinder that he is not claiming subsequent financial upgradation as much on the ground of seniority and more due to his eligibility to be given another FUG on 01.04.2009, it is clear from the points provided by the respondents that he can be considered to be eligible only with effect from 19.12.2012 when he completed five years after his adhoc upgradation to the E-4 payscale on 19.12.2007. However, he had already retired by that time. Hence, his claim for eligibility for Time Bound Promotion to a new scale with effect from 01.04.2009 cannot be considered, in the light of his placement in the E-4 scale already with effect from 19.12.2007. Even if he got adhoc promotion, the fact is that he had got placed in a higher scale and, as such, he was not eligible until further five years were completed in that scale. His submission that the adhoc promotion to the E4 scale on 19.12.2007 was temporary and stop gap until the BSNL Management Service Rules were notified is not -39- relevant because he was promoted to the higher scale with effect from 19.12.2007 and he was left undisturbed to enjoy the benefits. The applicant has sought to confuse this issue by trying to make a distinction between an adhoc promotion and regular promotion in his rejoinder. However, we do not think it necessary to consider any such contention purely on the facts of the matter as have been indicated in detail above. We do not think that hair splitting about the nature of the upgradation that he got on 19.12.2007 is relevant as even if it was called adhoc or temporary, he remained in the upgraded scale and it was never removed. Hence, any such difference, as a result, in the emoluments received by him in comparison to others cannot, in our view, amount to an anomaly but is part and parcel of the effect of the actions that he himself had accepted and is also covered by the rules of the EPP and other Government Circulars.
30. Hence, on these grounds we do not find any reason to accept the claims of the applicant. As regards the orders of this Tribunal in the previous cases outlined earlier, we have sought to explain the different considerations in this regard in this O.A in a detailed manner. We feel that these were not considered at that particular point of time by the -40- Bench. None were they apparently presented in a meaningful manner to the Hon'ble High Court. The reasons by which we have come to this conclusion are completely different to the reasoning in what had been concluded earlier where the only line was taken that a junior by rule cannot be paid more than his senior. The arguments and considerations that have been brought about in our analysis show that there cannot be a hard and fast rule in all situations. This was also not properly presented for consideration to this Tribunal earlier.
31. On all the above considerations, the O.A is dismissed. There will be no order as to costs.
(Dated this the 11th day of September 2023)
K.V.EAPEN JUSTICE SUNIL THOMAS
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp
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List of Annexures in O.A.No.180/00482/2020
1. Annexure A-1 - A copy of the impugned order dated 13.08.2020 passed by the 2nd respondent.
2. Annexure A-2 - A copy of the Office Memorandum dated 18.01.2007 issued by the 1st respondent.
3. Annexure A-3 - A copy of the extract showing the pay fixation of the applicant and the junior officer issued by Accounts Officer (Admin.), BSNL, Kalyan Telecom, MH Circle.
4. Annexure A-4 - A copy of the judgment and order dated 07.12.2011 in O.A.No.109/2011.
5. Annexure A-5 - A copy of the judgment dated 10.07.2012 in O.P. (CAT) No.1576/2012 passed by the Hon'ble High Court.
6. Annexure A-6 - A copy of the order dated 08.01.2015 in SLP No.7716/2013 passed by the Hon'ble Supreme Court of India.
7. Annexure A-7 - A copy of the representation dated 11.04.2012 addressed to the 2nd respondent.
8. Annexure A-8 - A copy of the complaint/representation dated 08.12.2019 addressed to the Centralized Public Grievance Redress and Monitoring System (CPGRAMS), New Delhi.
9. Annexure A-9 - A copy of the letter dated 02.01.2012 received from AGM(HR), O/o.PGM, Kalyan along with representations dated 10.02.2011,12.05.2011, 12.03.2013, 10.04.2014, 06.04.2015, 10.10.2016, 09.02.2017, 11.05.2018.
10. Annexure A-10 - A copy of the judgement dated 12.01.1987 passed by the Hon'ble CAT, New Delhi in O.A.No.367/1986.
11. Annexure A-11 - A copy of the DoP&T O.M dated 26.10.2018 on stepping up of pay.
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12. Annexure A-12 - A copy of the Adhoc promotion order dated 19.12.2007.
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