Central Administrative Tribunal - Chandigarh
Smt. Savita Sharma Daughter Of Sh. Satya ... vs Union Of India on 3 July, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
(CIRCUIT BENCH AT SHIMLA)
(Reserved on 18.05.2017)
Date of decision-03.07.2017
CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
(i) O.A No. 063/00022/2016
Smt. Savita Sharma daughter of Sh. Satya Parkash,
Resident of 349/3, Village Rasmain, P.O. Chatrokhri,
Tehsil Sundernagar, District Mandi, H.P.
APPLICANT
BY ADVOCATE : Ms. Archna Dutt, Advocate.
VERSUS
1. Union of India,
Ministry of Communications, Department of Telecom,
New Delhi. (Deleted vide order dated 04.08.2016)
2. The Chief Managing Director, Bharat Sanchar Nigam Ltd. Statesman House, B-148, Barakhamba Road, New Delhi-101001.
3. The Chief General Manager, Telecom, H.P. Circle, Shimla 171009.
4. The General Manager, Bharat Sanchar Nigam ltd., Mandi, District Mandi, H.P.
RESPONDENTS
BY ADVOCATE: Mr. Rajiv Jiwan, Advocate.
(ii) O.A No. 063/00021/2016
Sh. Roshan Lal S/o Sh. Paras Ram,
R/o Village and P.O.Patta-Brawari,
Tehsil Kandaghat, District Solan, H.P.
APPLICANT
BY ADVOCATE : Ms. Archna Dutt, Advocate.
VERSUS
1. Union of India,
Ministry of Communications, Department of Telecom,
New Delhi. (Deleted vide order dated 04.08.2016)
2. The Chief Managing Director, Bharat Sanchar Nigam Ltd. Statesman House, B-148, Barakhamba Road, New Delhi-101001.
3. The Chief General Manager, Telecom, H.P. Circle, Shimla 171009.
4. The General Manager, Bharat Sanchar Nigam ltd., Solan, District Solan, H.P.
RESPONDENTS
BY ADVOCATE: Mr. Rajiv Jiwan, Advocate.
(iii) O.A No. 063/00020/2016
Sh. Pushap Raj Mahajan, S/o Sh. Bodh Raj Mahajan,
R/o House No. 12/2/2, Purai Mandi,
District Mandi, H.P.
APPLICANT
BY ADVOCATE : Ms. Archna Dutt, Advocate.
VERSUS
1. Union of India,
Ministry of Communications, Department of Telecom,
New Delhi. (Deleted vide order dated 04.08.2016)
2. The Chief Managing Director, Bharat Sanchar Nigam Ltd. Statesman House, B-148, Barakhamba Road, New Delhi-101001.
3. The Chief General Manager, Telecom, H.P. Circle, Shimla 171009.
4. The General Manager, Bharat Sanchar Nigam ltd., Mandi, District Mandi, H.P.
RESPONDENTS
BY ADVOCATE: Mr. Rajiv Jiwan, Advocate.
ORDER
HONBLE MR. SANJEEV KAUSHIK, MEMBER (J):-
1. These three O.As are taken up together for final disposal vide common order as they involve identical facts, question of law and impugned order and as likewise requested by learned counsel for the parties. However, for convenience facts are taken from O.A. No.063/00022/2016 (Savita Sharma Vs. BSNL & Ors.).
2. The applicant seeks direction for quashing of the impugned order dated 13.01.2016 (Annexure A-1) to the extent of denial of arrears of pay on being granted promotion as JTO retrospectively.
3. The facts which led to filing of the present O.A are not in dispute. The applicant was working as Senior Telecom Operating Assistant (G) in the respondent department. Her services were transferred from DoT to Bharat Sanchar Nigam Limited (BSNL for short) on creation of BSNL as company where options were also called from applicant for permanent absorption in it which she submitted and got absorbed in BSNL. The post of Senior Telecom Operating Assistant (G) is a feeder category for promotion to the post of Junior Telecom Officer, which is governed by Junior Telecom Officers Recruitment Rules, 1996. 50% vacancies of the posts of JTO were to be filled up by way of direct recruitment and remaining 50% by way of departmental promotion/transfer of vacancies. There is further bifurcation of 50% quota on promotion/transfer i.e. 15% by promotion of departmental candidates through a competitive examination and 35% by promotion/transfer of Transmission Assistants/Wireless Operators/Auto Exchange Assistants/Phone Inspectors Telecom Technical Assistants. The case of the applicant falls under the category of 15% promotional posts of JTO. The respondent department conducted departmental examination for promotion to the post of JTO in the year 1996 for 24 vacancies. However, none of the candidates from any of the category qualified the said examination, therefore, Department of Telecommunication vide letter dated 5.6.1997 relaxed the qualifying standards and as a result of that 11 candidates qualified for the post of JTO and 13 vacancies remained unfilled even after applying relaxed standards. Vide another letter dated 27.11.1998, the Ministry of Communication, Department of Telecommunication (DoT for short) decided to hold departmental competitive examination for promotion as JTO under 15% quota as per Recruitment Rules circulated vide DoT letter dated 15.06.1990 and 09.02.1996. As per letter dated 27.11.1998, it was decided to fill up the vacancies for the years 1995, 1996, 1997 and 1998 through this examination and separate applications in respect of each year of vacancies in which the candidates are eligible as per terms and conditions of relevant rules. The examination was scheduled to be held on 15th and 16th May, 1999. Vide letter dated 14.03.2000, the office of Chief General Manager Telecom, H.P. Circle, intimated that a departmental competitive examination for promotion as Junior Telecom Officers under 15% quota at Shimla Centre was to be held on 20th and 21st June, 2000 for filling up the vacancies available upto 31.08.1999. However, due to certain administrative reasons, examination was postponed and refixed for 14th and 15th September, 2000. The applicant appeared and was declared qualified in the examination and placed at S.NO. 4 in the merit list. Vide communication dated 10.03.2003 issued by BSNL Headquarter to all Chief General Managers, intimating that they have decided to fill up all the vacancies by applying the relaxed standard in order to make available more departmental candidates for filling up the posts of JTOs under 15% quota.
4. One, Smt. Bhadra Sheela filed writ petition bearing CWP No. 780/2004 before the Honble High Court of H.P for considering her case for promotion to the post of Junior Telecom Officer against 15% quota from the date relaxed qualifying standards have been adopted by respondent department i.e. 10.03.2003 as she had qualified the competitive departmental examination held in the year 2000. The said writ petition was allowed vide judgment dated 27.03.2008 with a direction to the respondent department to consider the case of the petitioner therein, for promotion to the post of JTO from due date against the 19 vacancies available till the year 1999 within a period of six weeks. Said judgment became the subject matter before LPA which was dismissed by Honble High Court vide judgment dated 29.04.2013. The respondents granted her promotion by applying relaxed standard based upon the competitive examination which was held in the year 2000. Smt. Bhadra Sheela was also allowed all consequential benefits arising out of retrospective promotion as JTO from 02.09.2002 vide office order dated 01.08.2014. It is thereafter the applicant submitted the representation which was received in the office of Chief General Manager dated 29.06.2015 where the applicant claims similar benefit as has been granted to Smt. Bhadra Sheela being similarly situated persons. When the respondents did not accede her request, she approached this Tribunal by filing O.A No. 063/00140/2015 with similar prayer as made in the representation. The said O.A was disposed of vide order dated 24.09.2015 with a direction to the respondents to consider and decide her representation within a period of three months from the date of receipt of certified copy of the order in the light of the decision given by Honble High Court in case of Smt. Bhadra Sheela (supra). In continuance of order of this Court, the respondents vide impugned order dated 13.01.2016 have disposed her representation with the observation that the applicant will be entitled for notional pay fixation at par with Sh. Naresh Kumar w.e.f. 27.11.2003. She will be entitled for actual benefits of pay and allowances from the date of joining of duty as JTO. Hence the present O.A.
5. The respondents have contested the claim of the applicant by filing the reply wherein they have submitted that after the decision by the Honble High Court of H.P in case of Smt. Bhadra Sheela, the respondents have themselves decided to grant the benefit which was made available to Smt. Bhadra Sheela by the Honble High Court. Accordingly, vide office order dated 01.08.2014, they have promoted 6 persons including the applicant to the post of JTO and given promotion w.e.f. 27.11.2003. Vide impugned order which was passed in furtherance to direction of this Court, the respondents have considered the claim of the applicant for grant pay and arrears w.e.f date when she was given promotion and rejected her plea for grant of actual benefit from that date. They have decided to grant notional promotion and other admissible benefit including seniority but actual payment will be given from the date of joining as JTO. They have also considered the decision passed in case of Smt. Bhadra Sheela (supra) and Naresh Kumar.
6. We have heard Ms. Archna Dutt, learned counsel for the applicant and Mr. Rajiv Jiwan, learned counsel for respondents no. 2 to 4.
7. Ms. Dutt, learned counsel for the applicant vehemently argued that impugned order is nothing but an act of discrimination where one set of employees has been given the arrears of pay and allowance from retrospective date, whereas the applicant has been given notional benefit instead of giving actual benefit from an earlier date. Thus, she submitted that the respondents cannot be allowed to take two different standards for similarly situated persons like applicant.
8. Per contra, Mr. Rajiv Jiwan, learned counsel for respondents no. 2 to 4 vehemently opposed the prayer of the applicant and argued that after the decision of the Honble High Court in case of Smt. Bhadra Sheela (supra) followed by dismissal of LPA by the Honble High Court at the hands of the respondents, the respondents have decided to extend the benefit of judgment to all the similarly situated persons like the present applicant and passed the order dated 01.08.2014 whereby as many as six persons including the applicant were given promotion w.e.f. 27.11.2003. He further argued that earlier, the applicants have approached the Tribunal by filing O.A No. 063/00139/2015 with a prayer that the applicants be also granted the similar beefits as has been given to one Smt. Bhadra Sheela. The said O.A was disposed of on 24.09.2015 with a direction to the respondents to consider the representations of the applicants in accordance with law within a period of three months. In pursuance of order dated 24.09.2015, the respondents passed order dated 13.01.2016 by not granting the actual benefit from the date when they were given retrospective promotion. Notional pay fixation was done at par with other person and she was not entitled to any arrears of pay and allowances and actual benefits of pay and allowances will be paid from the date of joining of duty as JTO. To buttress his submission, he placed reliance upon the judgment passed by the Honble Supreme Court in case of State of Haryana and Ors. Vs. O.P. Gupta etc. (1996 (1) Scale page 602) and State of Kerala & Ors. Vs. E.K. Bhaskaran Pillai, 2007 (6) SCC 524.
9. We have given our thoughtful consideration to the entire matter and have perused the pleadings as available on record and also the judgments cited therein.
10. The short controversy which arose for our consideration whether the applicants before this Court can be allowed actual benefit from the retrospective promotion or from when the respondents passed the order for grant of notional benefit from earlier date or when they joined the promotional post?.
11. It is well-settled that mere retrospective promotion or revision of seniority from back date does not ipso facto require consequential benefits to be given. There may be varying situations where arrears may not be given. It also depends on rules.
12. In Union of India & Ors. vs. K.V. Jankiraman & Ors. ( 1991 AIR SC Page 2010) it was held that where an employee is completely exonerated and gets promotion under a sealed cover procedure, he was entitled to consequential benefits of promotion. However, in Telecommunication Engineering Services Association and (India) Anr. v. Union of India and Anr. 1994 Supp.(2) SCC 222, the said judgment was distinguished and it was held that where due date of promotion on revision of seniority was given as a result of decision of Court and notional promotion was given with retrospective effect, consequential benefits did not automatically follow. In Virender Kumar General Manager Vs.. Avinash Chandra Chadha And Ors. (1991 AIR SC 958) it was held that where promotion is given on the basis of quota and rota rule and a date of deemed appointment is given from retrospective effect, consequential benefits did not follow. In Paluru Ramkrishnaiah and Ors v. Union of India and Anr. (1989 (2) SCR Page 92) , it was held that when an employee did not work on promotional basis, he could not claim consequential benefits on getting retrospective date of promotion. The same view was taken by the Hon'ble Supreme Court in State of Haryana and Ors. v. O.P. Gupta etc. to the following effect:
6. This Court in Paluru Ramkrishnaiah v. Union of India , considered the direction issued by the High Court and upheld that there has to be "no pay for no work", i.e., a person will not be entitled to any pay and allowance during the period for which he did not perform the duties of higher post, although after due consideration, he was given a proper place in the gradation list having been deemed to be promoted to the higher post with effect from the date his junior was promoted. He will be entitled only to step up the scale of pay retrospectively from the deemed date but is not entitled to the payment of arrears of the salary. The same ratio was reiterated in Virender Kumar v. AVinash Chandra Chadha , in paragraph 16.
13. In State of Kerala and Ors. v. E.K. Bhaskaran Pillai (2007) 6 SCC 524 it was observed that no hard and fast rule could be laid down about denying consequential benefits on the principle of no work no pay. There are exceptions when the Courts have granted monetary benefits also. Where a person is wrongly denied his due, full benefits may be given.
14. In the backdrop of facts and law as enumerated above, we are of the considered view that impugned order does not deserve any interference because the applicant cannot equate herself with Smt. Bhadra Sheela (supra) who came forward for her right by filing writ petition before Honble jurisdictional High Court way back in the year 2004 and same was allowed vide judgment dated 27.03.2008 and thereafter LPA was also decided vide judgment dated 29.04.2013 against the respondents and allowed all the consequential benefit arising thereof. Before the applicant approached the department by filing representation, the respondent-BSNL themselves come with their order of promotion dated 01.08.2014 by implementing the decision passed in case of Smt. Bhadra Sheela (supra) in favour of the applicant as well as 5 other candidates and have been given retrospective promotion. The applicant joined the promotional post and then submitted the representation dated 29.06.2015 and then approached this Court against the order passed on her representation. Since she has chosen not to agitate the matter at relevant point of time, she cannot be allowed to stand on same footing as Smt. Bhadra Sheela (supra) who came forward and have approached the Honble High Court for redressal of her grievances at relevant time. The applicant being fence sitter, have accepted the decision of the respondents at that time, therefore, she cannot be allowed to get the actual benefit for which she never come forward at earlier point of time. Merely the fact that applicants have been given retrospective promotion will not make them eligible for actual benefit when they were given promotion. Our view also find support from the judgment passed in case of O.P. Gupta (supra) and E.K. Bhaskaran Pillai (supra). Accordingly, all the O.As are dismissed being devoid of merit.
15. No other point argued.
16. No costs.
(SHEKHAR AGARWAL) (SANJEEV KAUSHIK)
MEMBER (A) MEMBER (J)
Dated: 03.07.2017
`jk.
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OA No. 063/00022/2016 etc