Central Administrative Tribunal - Ernakulam
K. Velayudhan vs The Bharat Sanchar Nigam Limited on 17 July, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 943 of 2010
Tuesday, this the 17th day of July, 2012
CORAM:
Hon'ble Mr. Justice P.R Raman, Judicial Member
Hon'ble Mr. K. George Joseph, Administrative Member
1. K. Velayudhan, Sr. TOA (G),
Emp. No. 3093011, NWP Section,
PGMT (O) Palayam,
Calicut 673 002, Vasantham,
P.O. Ulliyeri, Koyilandy,
Kozhikode-673 323.
2. M.K. Karunakaran, Sr. TOA (G),
Emp. No. 3072011, O/o the PGMT
(Cable Planning), Calicut 673 002,
1640 F, Puthukkudi Paramba,
Muthirakkala Road, Kottooli,
Calicut 673 016.
3. M.K. Sreevally, Retired Sr. TOA (G),
O/o. the PGMT, Calicut 673 002,
QR. No. C.34, Telecom Staff Quarters,
Malapparamba, Calicut 673 009.
4. P. Samikutty, Sr. TOA (G), BSNL,
Calicut, Umminingal, Pantheerpadam,
PO, Kunnamangalam,
Kozhikode District 673 571. ..... Applicants
(By Advocate - Mr. Thampan Thomas)
V e r s u s
1. The Bharat Sanchar Nigam Limited,
Represented by its Chairman & Managing Director,
New Delhi.
2. The Chief General Manager,
BSNL, Kerala Circle, Trivandrum.
3. The General Manager, Telecom,
BSNL, Kozhikode-673 001.
4. Divisional Secretary,
BSNL Employees Union,
Telephone Exchange,
Mananchira, Calicut. ..... Respondents
(By Advocate - Mr. Johnson Gomez)
This application having been heard on 03.07.2012, the Tribunal on
17.07.2012 delivered the following:
O R D E R
By Hon'ble Mr. K. George Joseph, Administrative Member -
The applicants in this Original Application were appointed as TS Clerks in the erstwhile Post and Telegraph Department in the year 1973 in Calicut Division and their seniority was maintained in the Kerala Circle. They were transferred to Cannanore Division on administrative grounds when that division was formed in 1974. However, in 1977 they were transferred back to Calicut Division on their request on loss of seniority under Rule 38 of P&T Manual Vol. IV. Thereafter they were promoted as TOA(G) Grade-III in accordance with the circle seniority. When they found their juniors were promoted to the higher post of TOA(G) Grade-IV they filed TA No. 72 of 2008 which was disposed of with a direction as under:-
"9. In view of the above position, we direct that the respondents should initiate discussion in this matter with the representative of the union side and the staff side as in the case when they transferred the employees to Malapuram Division and to arrive at an agreeable arrangement. The GMT Calicut shall take necessary initiative in this matter within a period of three months from the date of receipt of a copy of this order and appropriate decision be taken in consultation with the representative of both union side and staff side. The resultant decision shall also be communicated to the petitioners separately. With the aforesaid directions, this T.A is disposed of. There shall be no order as to costs."
In compliance of the above direction, the representations of the applicants were considered by the 3rd respondent. Their request for grant of Grade-IV promotion was rejected by the impugned orders. Aggrieved they have filed this Original Application for the following reliefs:-
"i) to quash Annexure A9 to A12 order rejecting the claim of the applicants for fixation in Grade IV on the basis of their basic seniority.
ii) to direct the respondents to refix the applicants in Grade IV from the date on which their immediate juniors in Calicut Circle of BSNL promoted to Grade IV and to refix the salary on notional basis from that day and to pay all the financial benefits to the applicants and to refix the pension benefits.
iii) Costs and such other relief's which may be granted as ancillary and incidental to the main relief."
2. The applicants contended that the 3rd respondent had not considered the spirit of the directions given by this Tribunal in Annexure A8 judgment. Their case was not compared with the promotions given to similarly situated persons who were transferred to Malappuram on administrative grounds and who came back to Calicut on their own request as per the agreement with recognized Union. None of the recognized Unions have objected to giving promotions to the applicants to Grade-IV. Applicants have suffered heavy financial loss in pension and other benefits. They were posted to Cannanore on administrative grounds. Therefore, when they came back to Calicut their original seniority should have been restored. The applicants are seniors in the circle seniority. Circle seniority is the basic seniority for promotion to Grade-IV in Post and Telegraph Department. They are entitled for promotion from the date of the appointment of their junior in Grade-IV. While bifurcating Malappuram Division, the respondents have agreed to maintain the seniority of similar persons in Calicut though they are working in Malappuram. The same treatment ought to have been given to the applicants. The basic seniority being the date of appointment in the cadre, the applicants are entitled for promotion to Grade-IV with effect from the date of their juniors are promoted to Grade-IV.
3. In the reply statement filed by the respondents it was submitted that the applicants are transferred back to Calicut under Rule 38 of Post and Telegraph Manual Volume IV and as such they became junior most in Calicut Telegraphs/Phones Division. The statement of the applicants that at the time of recruitment of the applicants the seniority of Grade-IV promotion is circle wise is not correct as Grade-IV promotion was introduced in the year 1990. No discrimination has been shown to the applicants and the administration acted in accordance with norms and rules on the subject. The seniority of the applicants would have remained intact at Cannanore division, had the applicants not sought transfer to Calicut SSA under Rule 38 of P&T Manual Vol. IV. The applicants did not give any grievance petition challenging their seniority as envisaged in Rule 32 D of P&T Manual Vol. IV and the gradation list became final. The applicants were duly promoted up to Grade-III in accordance with the length of service in basic cadre. The Grade-IV promotion is to be granted only on the basis of seniority in the basic cadre. The formation of Cannanore Telegraph Division was during the P&T period and the formation of Malappuram SSA was after the formation of BSNL, a company registered under the Companies Act, 1956. As per the agreement made by the administration and union it was agreed that when new appointments are made in Malappuram SSA, the officials who have opted for Kozhikode SSA but were transferred to Malappuram SSA against their wish on administrative grounds will be repatriated to Kozhikode SSA according to their seniority. Along with the applicants many other officials have been transferred to Cannanore division and they also became junior most on Rule 38 transfer to Calicut. In case, recasting of seniority of many officials is made contrary to statutory provisions, it will have multiple repercussions in other SSAs.
4. We have heard the learned counsel for the parties and perused the records.
5. The following facts are undisputed. The applicants were transferred back to Calicut Telecom Division under Rule 38 of P&T Manual, Volume- IV after accepting the loss of seniority in the transferred division. They did not challenge their seniority as envisaged under Rule 32 D of P&T Manual, Volume IV before the gradation list became final. As per the gradation list they are juniors to those who have been promoted to Grade-IV. They have been duly promoted to Grade-III in accordance with the length of service in basic cadre. Promotion to Grade-IV also is to be granted on the basis of seniority in the basic cadre. Promotion to Grade-IV has been given to officials only up to serial No. 39 in the gradation list of TOA(G). The formation of Cannanore Telegraph Division in 1974 and Malappuram SSA in 2002 had occurred in entirely different circumstances.
6. In the light of the above facts the applicants have no case. They have already accepted loss of seniority for their request transfer back to Calicut. The applicants did not challenge the seniority list in time. As per circle gradation list, only seniors in the gradation list of TOA(G) have been promoted to Grade-IV. The Cannanore Telephone Division was formed during the P&T period and the Malappuram SSA was formed after the formation of the BSNL. These situations cannot be compared. Officials who have opted for Kozhikode SSA but were transferred to Malappuram SSA against their wish on administrative grounds are being repatriated to Kozhikode SSA according to their seniority, as per the agreement made between the administration and union. Such is not the case of the applicants. There are also many other officials who are in the same boat as the applicants are and in case recasting of seniority of many officials is made contrary to statutory provisions, it will result multiple repercussions in other SSAs as submitted by the respondents. The impugned orders are speaking orders with due application of mind to all the relevant factors. We do not find any reason to interfere with the impugned orders.
7. Having no merit the Original Application is dismissed. No costs.
(K. GEORGE JOSEPH) (JUSTICE P.R RAMAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER "SA"