Central Administrative Tribunal - Jabalpur
Sunder Lal Narwariya vs Bharat Sanchar Nigam Limited on 15 June, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL JABALPUR BENCH O.A.NO.57 OF 2010 This the 15th day of June, 2015 CORAM: HONBLE SHRI G.P.SINGHAL, ADMINISTRATIVE MEMBER & HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER . Sunder Lal Narwariya, s/o Gulab Chand, aged 50 years, R/o Nehru Chowk, Ganj Basoda, Dist. Vidisha 464221 . Applicant (By Advocate: Shri Rahul Choubey) Vs. 1. Bharat Sanchar Nigam Limited, through Chief General Manager, Teleom, M.P.Telecom Circle, Door Sanchar Bhawan, Bhopal (M.P.) 462011 2. Telecom District Manager, Bharat Sanchar Nigam Limited, Vidisha (MP) 462011 3. Divisional Engineer (Admin.), Office of the Telecom District Manager, Bharat Sanchar Nigam Limited, Vidisha (M.P.) 462011 4. Divisional Engineer (Admin.), Office of the Telecom District Manager, Bharat Sanchar Nigam Limited, Shajhapur (M.P.) 465001 .. Respondents (By Advocate: Shri S.P.Singh) ORDER Raj Vir Sharma, Member(J):
The applicant, who belongs to SC community, was initially appointed as a Telecom Assistant (Phones). On completion of 10 years of service in the basic cadre, he was granted promotion to the next higher grade with effect from 1.5.1989 under the One Time Bound Promotion Scheme (hereinafter referred to as OTBP Scheme) against SC shortfall vacancies. As per circulars dated 10.2.1992 and 30.12.1992 (Annexure A/3 and A/4), SC/ST employees, who completed 17 years of service in the basic cadre, were entitled to be considered and granted promotion under the Biennial Cadre Review Scheme (hereinafter referred to as BCR Scheme) against SC/ST shortfall vacancies. The applicant made representations on 7.8.1996, 5.1.1998 and 15.6.1998, requesting the respondents to grant him promotion under the BCR Scheme with effect from 1.1.1997. On the basis of the recommendation of the DPC, the respondents, vide order dated 26.6.1998 (Annexure A/5), decided to grant promotion to the applicant with effect from 1.7.1998. Thereafter, the respondents, vide order dated 29.12.1999 (Annexure A/6), withdrew the said promotion of the applicant without assigning any reason. The representations made by him during the period from 2000 to 2005 for granting him promotion under the BCR Scheme having yielded no fruitful result, the applicant filed a writ petition before the Honble High Court. The said writ petition was transferred by the Honble High Court to the Tribunal and numbered as TA No.46 of 2009. The Tribunal disposed of the said T.A.No.46 of 2009, vide order dated 5.8.2009 (Annexure A/12), with a direction to the respondents to consider whether the applicant would be entitled to BCR benefit prior to 5.8.2005, and to pass a reasoned, detailed and speaking order highlighting the points meant for SC/ST and the manner in which they are filled up from particular date by granting BCR benefit. In compliance with the Tribunals order dated 5.8.2009 ibid, the respondents passed a speaking order, dated 19.12.2009 (Annexure A/1), rejecting the applicants claim. Being aggrieved thereby, the applicant has filed the present O.A., praying for the following reliefs:
(i) to set aside the order dated 19.12.2009 /Annexure A-1.
(ii) to direct the respondents to consider the applicant under BCR Scheme on completion of 17 years of regular service in accordance with 40 point roster and/or issue appropriate order/direction to the respondents to implement the order dated 26.6.1998 and to grant all ancillary service benefits.
(iii) to grant any other relief which this Honble Tribunal deems fit and proper, in the facts and circumstances of the case.
(iv) to award cost of the application.
2. Opposing the O.A., the respondents have filed a counter reply wherein it is, inter alia, stated that from 2.7.1999 the post-based roster was introduced by the Government of India. Under the post-based roster, 7th point is reserved for SC. As per the circular dated 22.4.2003 (Annexure R/1), the placement of officials of the Restructured Cadres (OTBP Scheme and BCR Schemes) in higher pay scales on the basis of the instructions contained in the Department of Telecommunications order No.1-38/MPP-98 dated 20.04.1999 is not a promotion, and it is to be given only on completion of 16/26 years of service and the benefit cannot be extended to SC/ST officials who have not completed 16/26 years service. In the memo/letter dated 26.6.1998 containing the recommendation for promotion of the applicant under the BCR Scheme, the Telecom District Engineer, Vidisha, was instructed to observe usual formalities. As it was found that the applicant did not come under 40 point roster, the recommendation in respect of the applicant for his promotion under the BCR Scheme was cancelled.
3. Refuting the stand taken by the respondents, the applicant has filed a rejoinder reply reiterating more or less same averments and contentions as in the O.A.
4. The respondents have also filed an additional reply to the applicants rejoinder reply.
5. We have heard Shri Rahul Choubey, learned counsel for the applicant, and Shri S.P.Singh, learned counsel for the respondents.
6. In support of the claim of the applicant, Shri Rahul Choubey, learned counsel for the applicant invited our attention to the following decisions:
(i) Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi & others, (1978) 1 SCC 405, wherein it has been held that rules of natural justice as far as practicable should be followed before cancelling a decision.
(ii) Nirmal Chandra Bhattacharjee and others v. Union of India and others, 1991 Supp.(2) SCC 363, wherein it has been held that beneficial rule or order should not be so construed as to result in hardship to employee when he is not at fault, and that change in the service rules cannot be made to the prejudice of an employee who was in service prior to the change.
(iii) Union of India and others v. Ibrahim Munon and others, (2010) 15 SCC 727, wherein it has been held that OTBP Scheme and BCR Scheme are two independent schemes, and they operate in their own fields and the condition precedent was as specified, namely, completion of 16 years or 26 years of satisfactory service.
(iv) Union of India v. V.N.Bhat, LAWS (SC)-2003-10-47, wherein it has been held that OTBP Scheme and BCR Scheme merely prescribe that any person having rendered 16/26 years of service without obtaining any would be entitled to the benefit therefor. It is, therefore, not a case where promotion to the higher post is to be made only on the basis of seniority. Even in a case where the promotion is to be made on the selection basis, the concerned employee, even if he be placed at the bottom of the seniority list in terms of the order of transfer passed in his favour, he cannot be deprived of being considered for promotion to the next higher post if he is eligible therefor.
(v) Union of India and others v. Jai Pal Singh and another, 2012 SCC OnLine P&H 6113, wherein the Honble High Court of Punjab & Harana has upheld the order of the Tribunal which held that respondent no.1 in that case was to be placed in higher grade under TBOP and BCR Schemes on completion of 16 and 26 years of service from 29.11.1989 as undisputedly he was granted temporary status Group D under Casual Labourer Scheme w.e.f. 29.11.1989.
(vi) The Regional Provident Fund Commissioner and others v. The Central Administrative Tribunal and others, W.P. No. 5413 of 2004, decided on 31.1.2006, wherein the Honble Madras High Court has held that the past service of transferred employees will count for eligibility to get the benefits under the TBOP/BCR Scheme.
7. After having given our anxious consideration to the facts and circumstances of the case and the rival contentions of the parties, we have found that under the BCR Scheme, an employee is entitled to the benefit under the OTBP Scheme/BCR Scheme on completion of 16/26 years of service in the basic cadre. The applicant was appointed as Telecom Assistant (Phones) on 5.8.1979. Although he had not completed 16 years of service in his basic cadre, the respondents granted him benefit under the OTBP Scheme with effect from 1.5.1989 against SC short-fall vacancies. Shahjapur Division, where the applicant had been working, was bifurcated into two Divisions, namely, Shahjapur Division and Vidisha Division with effect from 1.7.1995. The applicant was sent to Vidisha Division. During the period from 1.7.1995 to 30.6.1997, no employee working in Vidisha Division, was granted promotion under the BCR Scheme and therefore, 40-point roster was not maintained by the said Division. After introduction of the post-based reservation, no rosters are to be observed for BCR promotion. The respondents have considered the claim of the applicant for his promotion under the BCR Scheme with effect from 1.1.1997, but declined the same. The communication dated 26.6.1998 (Annexure A/5) was not the actual order of promotion of the applicant granting him benefit under the BCR Scheme. On verification of the records, the Telecom District Manager, BSNL, Vidisha (respondent no.3) submitted a report, indicating the factual position, to the competent authority who cancelled/withdrew the recommendation contained in the communication dated 26.6.1998, and accordingly, order dated 29.12.1999 (Annexure A/6) was issued. Thus, it cannot be said that the benefit of promotion under the BCR Scheme granted to the applicant was withdrawn by the respondents without any rhyme or reason. In view of the facts that the BCR Scheme does not stipulate that SC/ST employees can be granted benefit under the scheme without completing 26 years of service in the basic cadre; that the applicant did not complete 26 years of service in the basic cadre as on 1.1.1997; that no promotions under the BCR Scheme in Vidisha Division was effected during the period from 1.7.1995 to 30.6.1997 and, therefore, no SC shortfall vacancy could be determined by the respondents, the respondents cannot be faulted for declining the claim of the applicant for granting him promotion under the BCR Scheme, on completion of 17 years of service in the basic cadre, with effect from 1.1.1997 in relaxation of the provisions of the BCR Scheme. The decisions cited by the learned counsel appearing for the applicant are of no help to the case of the applicant. As noted by the Tribunal in its order dated 5.8.2009 passed in TA No.46 of 2009, the applicant has been granted promotion under the BCR Scheme with effect from 5.8.2005, vide order dated 18.2.2006. In the above view of the matter, we find no merit in the O.A.
8. Accordingly, the O.A. is dismissed. No costs.
(RAJ VIR SHARMA) (G.P.SINGHAL)
JUDICIAL MEMBER ADMINISTRATIVE MEMBER
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OA 57/10 1 Sunder Lal Narwariya v. BSNL & ors
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