Central Administrative Tribunal - Cuttack
S N Sahoo vs Bharat Sanchal Nigam Limited on 2 July, 2024
1 OA 712 of 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00712 of 2015
Reserved on 27.06.2024 Pronounced on 02.07.2024
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Surendra Nath Sahoo, aged about 61 years, S/o
Late Baishnab Charan Sahoo, retied Wireman of
BSNL, at present residing at Village - Kilipal,
Post - Narijangha, Via - Tirtol, Dist -
Jagatsingpur, Odisha.
......Applicant
VERSUS
1. Chairman cum Managing Director, Bharat
Sanchar Nigam Ltd., Bharat Sanchar Bhavan,
Harischandra Mathur Lane, Jan Path, New Delhi
- 110001.
2. The Superintending Engineer (Electrical), Office
of Sr. Chief Engineer (Electrical), Odisha Zone,
BSNL Bhawan, Ashok Nagar, Bhubaneswar -
751001.
3. The Executive Engineer, BSNL Electrical
Division, 15 Cantonment Road, Cuttack -
753001.
......Respondents
For the applicant : Mr. D.K.Mohanty, counsel
For the respondents: Mr. M.R.Mohanty, counsel
Mr. K.C.Kanungo, counsel
2 OA 712 of 2015
O R D E R
SUDHI RANJAN MISHRA, MEMBER (J):
The case of the applicant in nutshell is that, on 20.12.1978 he joined in the Telecom Electrical Department wing as Khalasi, on 31.10.1981 was promoted to Asst. Wireman and, thereafter, on 26.07.1985 to the post of Wireman. On the basis of the recommendation of 5th CPC, the Govt. of India vide OM No. 35034/1/97-Estt. (D) dated 09.08.1999 introduced a Scheme known as Assured Career Progression Scheme (ACP in short) as a safety net to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues on completion of 12 an 24 years of regular service. According to the applicant, respondent No.2 granted financial upgradation under ACP to S/Sh U.K.Dey and G.Pradhan to the scale of pay of Rs. 4000-6000/- vide order dated 10.05.2000. Subsequently, on formation of the Bharat Sanchar Nigam Ltd., the applicant was absorbed as an employee of the BSNL w.e.f. 01.10.2000. Vide order dated 22.04.2002, the posts of Asst. Wireman and Wireman in BSNL were merged. The BSNL introduced IDA pattern of pay scale for its employees w.e.f. 01.10.2000 vide order dated 07.08.2002. Vide order dated 01.12.2003, the applicant was 3 OA 712 of 2015 given second financial upgradation w.e.f. 20.12.2002, i.e. on completion of 24 years of service, placing him in the IDA Scale of Rs. 4720-6970 (CDA 3200-4900) instead of Rs. 5700-8100 (CDA Rs. 4000- 6000). According to the applicant, the respondents committed gross discrimination in granting him the IDA scale of Rs. 4720-6970 (CDA 3200-4900) ) instead of Rs. 5700-8100 (CDA Rs. 4000-6000) as was granted to S/Sh U.K.Dey and G.Pradhan, who were similarly situated to that of him. He submitted representation on 10.02.2014 seeking removal of the discrimination as aforesaid. While the matter stood thus, he retired on reaching the age of superannuation on 31.03.2014. Thereafter, he submitted application under RTI Act, 2005 on 02.02.2015 seeking the result of the consideration of his representation. In letter dated 11.03.2015, he was intimated that as he was not eligible to Rs. 4000-6000/-, no action was taken on his representation. The applicant approached this Tribunal in OA No. 241/2015, which was disposed of on 12.05.2015 with direction to the respondents to consider and intimate the result of his pending representation. In compliance of the order of this Tribunal, the respondents considered his representation but rejected the same vide order dated 26.05.2015. Being aggrieved by the aforesaid order of 4 OA 712 of 2015 rejection, applicant has approached this Tribunal in the instant OA filed on 07.09.2015 inter alia seeking the following reliefs:
" a) To allow the original application and to direct the respondents for grant of 2nd financial upgradation to the applicant in the scale of pay of Rs.4000-100-6000 (CDA) (corresponding IDA scale of Rs.5700-160- 8100) w.e.f. 20.12.2002 onwards with all consequential financial benefits including payment of revised pension and pensionary benefits to him.
AND
b) To quash the letter dated 22.6.2015 of the respondent No.2 (as per Annexure A/13) for being illegal, irregular and violative of the provision of Article 16 of the Constitution of India.
AND
c) To direct the respondents to pay the cost of litigation to the applicant by unnecessarily dragging the applicant to this litigation.
AND
d) To pass any other order(s) as deemed fit and proper in the circumstance of the case.
AND For such kind of acts, the applicant as is duty bound shall ever pray.
2. Respondents filed their counter opposing and contesting the case of the applicant both on limitation, non-joinder/mis-joinder of parties so also on merit. Insofar as limitation is concerned, it has been stated that according to the applicant he is entitled to 2nd financial upgradation to scale of pay of Rs. 4000-6000/- CDA corresponding to IDA scale of pay of Rs. Rs. 5700-160-8100/- w.e.f. 20.12.2002 whereas he made representation only on 10.02.2014. Thereafter approached 5 OA 712 of 2015 this Tribunal in OA 241/2015, which was disposed of on 12.05.2015 in pursuance of which the representation was considered and rejected. Thus, the impugned order passed in compliance of the order of this Tribunal cannot save the limitation. Therefore, this OA being hit by limitation is liable to be dismissed. Insofar as non-joinder of mis- joinder of party is concerned, it has been stated that according to the applicant he is similarly placed to that of S/Sh U.K.Dey and G.Pradhan, he is entitled to the scale of pay towards financial upgradation at par with them but none of them have been arraigned as parties in this OA. Thus, this OA being suffered from mis-joinder and non-joinder of parties is liable to be dismissed. Insofar as merit is concerned, it has been stated that the applicant is not at par with S/Sri Dey and Pradhan because he joined on 20.12.1978 as Khalasi whereas Sri Dey and Sri Pradhan had joined as Wireman in the year 1982. Then, applicant was promoted to the post of Asst. Wireman on 31.10.1981 and Wireman on 26.07.1985 whereas Sri Dey and Sri Pradhan did not get any promotion over a period of 17 years/till 09.08.1999. Thus, the applicant got two promotion prior to implementation of the ACP. It is stated that DPC was held on 05.02.2014 to review the first ACP granted to Sri Dey and Pradhan, Wireman. The Review DPC analyzed 6 OA 712 of 2015 the matter in great detail in compliance f the order of this Tribunal in OA No. 608/1995 filed by one Sri S.B.Dalabehera and OA No. 601/2013 filed by Sri Dey. The Review DPC recommended to close the case and to entertain their claim for non-Executive promotion policy as per BSNL Rules with respect to their pay as on 01.10.2000, i.e. the date of formation of BSNL. It is further stated that the applicant did not have the required supervisory certificate of competency, and thus, grant of pay scale of Rs. 4000-6000/- (CDA) on 2nd ACP is impermissible. As per the ACP Scheme, grant of financial upgradation to the next higher grade in accordance with the existing hierarchy in cadre/category of posts is subject to fulfilment of certain conditions. Further, the Orissa Circle, Bhubaneswar vide letter dated 17.01.2000 granted 2nd financial upgradation under ACP Scheme to 45 official, on completion of 24 years of regular services, in scale of Rs. 4720-6970 (pre revised scale of Rs. 3200-4900/-). The applicnat had already got two promotion in the year 1981 and 1985 and the post of Asst. Wireman was merged with Wireman w.e.f. 01.10.2000. Further, he had got 2nd ACP on 20.12.2002 in lieu of merger of Asst. Category with its main category, otherwise he was not eligible to get 2nd ACP as he had already got two promotions prior to 09.08.1999. Rule empowers the authority 7 OA 712 of 2015 concerned to condone the provisions for granting the ACP benefits. Under which circumstances such benefits were recommended by the Committee and accepted by the authorities is not visible since the records of the Committee is not traceable at this distance place of time. Accordingly, respondents have prayed for dismissal of this case.
3. The applicant filed rejoinder in which it is stated that since S/Sri Dey and Pradhan was granted the pay scale attached to the post of Electrician on 1st ACP, denial of the pay scale to the applicant while granting him 2nd ACP is arbitrary, discriminatory and colourable exercise of power. If those two persons were granted the scale of pay in relaxation of the rules, such relaxation should have been given to him also. When post based promotion given to Sri S.B.Dalabehera and 1st ACP to U.K.Dey and G.D.Pradhan without possessing supervisory certificate of competency, non-grant of the same scale of pay to the applicant while granting 2nd ACP is arbitrary discriminatory and violation of the provision enshrined under Article 14 and 16 of the Constitution of India. Insofar as limitation is concerned, it has been submitted that 2nd financial upgradation was given to him w.e.f. 20.12.2002 vide order dated 01.12.2003. He has been reminding the authorities about the injustice done to him but nothing was intimated 8 OA 712 of 2015 to him. Even his representation dated 10.02.2014 was not replied to, for which, he approached this Tribunal in OA 241/2015 along with MA seeking to condone the delay and this Tribunal condoned the delay and directed the respondents to consider his representation. Thus, there is no delay. In this regard, the applicant has also placed reliance on the decision of the Hon'ble Apex Court in the case of Rushibhai Jagdishchandra Pathak Vs. Bhavnagar Municipal Corporation (Civil Appeal No. 4134/2022) and the order of CAT, Hyderabad Bench in OA Nos. 21/1089/2019 and others, Cyril Joseph & Ors. Vs.UOI & Ors. The applicant has also placed into service a copy of the order of this Tribunal dated 20.06.2011 in OA No. 129/2009 (Dhaneswar Naik and others Vs. BSNL & Ors.) to substantiate that in similar circumstances, this Tribunal the GM, BSNL to cause an inquiry and remove the discrimination if similarly placed persons have been granted the scale of pay sought by the applicant therein. Accordingly, the applicant has reiterated the grant of the relief claimed in the OA.
4. Ld. Counsel for the both parties have vociferously and forcefully, reiterating their stand point noted above, withstood on their respective stand points. Having considered their arguments, perused the records.
9 OA 712 of 2015
5. The question that arises for consideration is whether the applicant is entitled for the scale of Rs. 5700-160-8100/- which is meant for electrician on 2nd financial upgradation. Before proceeding to deal with the above, we would like to place on record the objection raised by the respondents in so far as maintainability of this OA on limitation as also mis-joinder and non-joinder of party. 5.1 Insofar as non-joinder of party is concerned, according to the respondents, the applicant has claimed the financial benefits as was given to S/Sh Dey and Pradhan but none of them have been arraigned as party respondents in this OA. In this regard, it may be observed that this Tribunal failed to understand as to how they are the necessary and proper party and in their absence, granting the relief in favour of the applicant would adversely affect their interest since no relief has been claimed in this OA against any of them. Therefore, we are of the considered that they are neither necessary or proper party in this OA and by not making them party this OA cannot be dismissed on this score.
5.2 Insofar as point of limitation raised by the respondents is concerned, we may record that the applicant has raised in this OA that in earlier OA 241/2015 filed by the applicant, this Tribunal condoned 10 OA 712 of 2015 the delay, which plea of the applicant, on perusal of the records of OA 241/2015 is found to be not correct. For more clarity, it may be recorded that the applicant filed OA 241/2015 earlier alleging that he submitted representation on 10.02.2014 but no consideration was received on the same. Ld. Counsel for the respondents had submitted that the representation dated 10.02.2014 was already rejected. In the said premises, this Tribunal without going into the merit of the OA so also MA No. 303/2015 seeking condonation of delay disposed of the matter on 12.05.2015 directing respondents to communicate the order on his representation to the applicant. In compliance of the order of the Tribunal, respondents communicated the order dated 22.06.2015 (A/13). Thereafter, the applicant has filed this OA. According to the applicant, this being a matter of pay scale, which comes under the recurring cause of action and, thus, limitation has no application. The decisions relied on in this regard have been gone into. According to the respondents, the applicant is not entitled to the pay scale of Rs. 5700- 160-8100/- on 2nd financial upgradation since the applicant does not possess the requisite qualification prescribed under Recruitment Rules of 1998 for conferment of said pay scale, which is made for Electrician. This has not been denied by the applicant. The 11 OA 712 of 2015 applicant led his claim solely on the basis of grant of the said pay scale to S/Sri Dey and Pradhan but nothing has been produced on record to show that the above two persons were granted the pay scale despite lack of requisite qualification. The applicant was granted 2nd financial upgradation to the pay scale of Rs. 4000-6000/- w.e.f. 20.12.2002 vide order dated 01.12.2003 and , thus, his claim is that he is entitled to the pay scale of Rs. 5700-160-8100/- as was granted to S/Sh Dey and Pradhan. Except making bald submission that he has been agitating his grievance starting from 2002, no document has been produced by the applicant to show that he had ever raised any such grievance before any authority starting from 2002 till the representation dated 10.02.2014. Thus, it can safely be presumed that the applicant got satisfied with the pay scale granted to him on 2nd ACP. He retired on 31.03.2014. After near about one year, i.e. on 02.02.2015, he submitted application under RTI Act about the action taken on his stale representation dated 10.02.2014. Thereafter, approached this Tribunal in OA 241/2015. The respondents have stated that the recommendation of the Committee insofar as case of S/Sh Dey and Pradhan is not traceable after such a long lapse of time and, that, even for the sake of argument the pay scale of Rs. 5700-160-8100/- was 12 OA 712 of 2015 allowed to them wrongly, the said wrong cannot be allowed to perpetuate by granting the said pay scale to the applicant. Article 14 of the Constitution of India is not to perpetuate illegality and it does not envisage negative equalities and suffice to place reliance on the decision of the Hon'ble Apex Court in the case of State of U.P. And Ors. v. Rajkumar Sharma And Ors, (2006) 3 SCC 330, to the above extent. If any such direction is given to reopen the matter, which is set at rest 24 years before, it would tantamount to opening of Pandora Box at the behest of the applicant, who slept over the matter for years together without any valid explanation or application for condonation of delay, which is impermissible in law. The Hon'ble Apex Court in the case of Union of India and others Vrs. M.K.Sarkar, 2010 (2) SCC 59 held as under:
"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."
13 OA 712 of 2015
6. Further, in Chennai Metropolitan Water Supply & Sewerage Board Vs. T.T.Murali Babu, 2014 (4) SCC 108, the Hon'ble Apex Court has held as follows:
"Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such 14 OA 712 of 2015 delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons - who compete with 'Kumbhakarna' or for that matter 'Rip Van Winkle'. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold."
7. For the discussions made above, viewing the matter from any angle, we see no justification for grant of the relief sought by the applicant in this OA and, therefore, it is held that this OA sans any merit and is liable to be dismissed and accordingly, the same is dismissed leaving the parties to bear their own costs.
(PRAMOD KUMAR DAS) (SUDHI RANJAN MISHRA) MEMBER (ADMN.) MEMBER (JUDL.) Indrani