Central Administrative Tribunal - Delhi
Shri Sudhanshu Shekhar Ray vs Bharat Sanchar Nigam Limited Through on 17 March, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.3417 of 2010 M.A.Nos.2623, 2687 & 2867 of 2010 New Delhi, this the 17th day of March 2011 Honble Dr. A.K. Mishra, Member (A) Honble Shri A.K. Bhardwaj, Member (J) 1. Shri Sudhanshu Shekhar Ray s/o Shri Ranjit Kumar Ray aged about 40 years S-3, 5/629, Vaishali, Ghaziabad Uttar Pradesh, 201010 2. Shri Pradeep Kumar Punia s/o Shri Kishori Lal aged about 41 years r/o A-31/00 (MIG) Sector 2, Rohini, Delhi-85 3. Shri Mool Chand s/o late Shri Ramchand aged about 41 years r/o LPT-316, P&T Colony Sarojini Nagar, New Delhi-23 4. Shri Kuldip Chand s/o Shri Mango Ram aged about 42 years EPT-18, P&T Colony Sarojini Nagar, New Delhi-23 5. Shri Sandeep Kapoor s/o Shri S K Kapoor aged about 40 years 2566/A, Mandir Wali Gali, Shadipur New Delhi-88 6. Shri Chetan Kumar Kadam s/o Shri P D Kadam aged about 47 years EPT-17, P&T Colony, Dev Nagar New Delhi-5 7. Shri Kulbir Singh s/o late Shri S S Ahluwalia aged about 47 years 47-B, QU Block, Pitampura, Delhi-88 8. Shri Pravin Kumar Jha s/o Shri K K Jha aged about 42 years G-72, Sector 20, NOIDA Uttar Pradesh 201301 9. Shri Jatinder Pal Singh Baweja s/o Shri Harinder Singh aged about 44 years Flat No.135, Pocket 13, C-4B Janakpuri New Delhi-58 10. Shri S Viswanathan s/o late Shri P N Subramanian aged about 50 years A-3/85E, Mayur Vihar, Phase III New Delhi-98 11. Smt. M Subha Krishnan w/o Shri M N G Krishnan aged about 43 years C-304, Mafyair Apartment 96-IP Extension, Patparganj Delhi-92 12. Smt. E Freeda w/o Shri Immanuel David aged about 48 years EPT-8, P&T Quarters Gopinath Bazar, Delhi Cantt. New Delhi-8 13. Smt. Mini K. w/o Shri Valsakumar N aged about 39 years Harmony, H.No.1/341C, West Hill Calicut 5 14. Shri Venu M. s/o Shri T P Madhavan Pillai aged about 42 years KARYA VEEDU Ambalapuzha Alapuzha Distt, Kerala - 688561 ..Applicants (By Advocate: Shri A K Behera) Versus Bharat Sanchar Nigam Limited through 1. The Chairman & Managing Director Bharat Sanchar Nigam Limited Bharat Sanchar Bhawan New Delhi 2. Director (HR) Bharat Sanchar Nigam Limited Bharat Sanchar Bhawan New Delhi ..Respondents (By Advocates: Shri U C Mittal and Shri Pranav Kumar) O R D E R (ORAL)
Shri A.K. Bhardwaj:
In terms of the recruitment rules dated 4.7.2003, the posts of Assistant in BSNL are filled up by direct recruitment to the extent of 50% and on the basis of Limited Internal Competitive Examination (LICE) to the extent of remaining 50%. Columns 11 and 12 of the Schedule of the said rules read as under:-
Method of recruitment whether by direct recruitment or by promotion or by deputation/transfer or by absorption and percentage of vacancies to be filled by various methods In case of recruitment by promotion/deputation/ transfer grades from which promotion/ deputation/ transfer to be made 50% by promotion on the basis of LICE 50% by Director Recruitment Promotion:
50% by promotion from Upper Division Clerks (UDC) with 5 years regular service in the grade on the basis of LICE.
Note:
1. UDC means those officials in the CDA pay scale of Rs.4000-6000 of the Central Secretariat Clerical Service of DOT Cadre who have been absorbed in BSNL as BSNL CO cadre.
2. The crucial date for determining the eligibility shall be 1st of July of year to which the vacancies pertain.
3. Where junior who have completed their qualifying eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of requisite qualifying eligibility service by more than one year and have successfully completed their probation period, if prescribed
2. As can be seen from the aforementioned rules, the Upper Division Clerks (UDCs) with five years regular service in the grade are eligible for promotion to the post of Assistant to be made on the basis of LICE. The BSNL issued circular dated 14.10.2005, providing for holding of LICE to fill up vacancies in the grade of Assistant as per provisions of aforementioned recruitment rules vide BSNL F.No.No.27-1/2001-CSS dated 4.7.2003. The candidates, who were willing to appear in the said examination, were to submit their applications by 24.11.2005. 27 UDCs filed Writ Petition Nos.22094-22120/2005 before Honble Delhi High Court assailing the recruitment rules and the LICE to be held on 29.1.2006. The said writ petition was dismissed on 3.3.2006. From the order dated 3.3.2006 passed in the aforementioned writ petitions, LPA No.626-49/2006 was preferred, which was also dismissed on 15.5.2006. The LICE was held on 29.1.2006. The result of the examination was declared on 22.5.2006. Total 20 candidates were declared successful. Unsuccessful candidates represented to the respondents, complaining irregularities in the aforementioned LICE. Such complaint was made on 27.5.2006. The BSNL issued a letter dated 28.9.2006 canceling the examination dated 29.1.2006. Challenging the cancellation of LICE dated 29.1.2006 and making further prayer, Writ Petition Nos.15433-46/2006 were filed by Shri Mool Chand & others before the Honble Delhi High Court in October 2006. During pendency of the writ petition, the BSNL issued a notification dated 15.2.2007 for reexamination. However, on 16.3.2007, said notification was withdrawn. Vide order dated 7.4.2008 in the case of Mool Chand (supra), Honble Delhi High Court quashed the order dated 28.9.2006 issued by the respondents canceling the LICE conducted for promotion to the grade of Assistant. Honble High Court issued further directions to the respondents to give promotion to the petitioners in the said writ petitions and take necessary steps to implement its order within 6 months.
3. After the aforementioned order passed by the Honble High Court, revised merit list of successful candidates was published by BSNL. The order of promotion of those who qualified LICE dated 29.1.2006 was issued on 16.5.2008. A seniority list of Assistants (Assistant Managers) was issued on BSNL on 18.3.2009.
4. A perusal of the records reveals that these are the applicants in the present OA, who had filed WP (C) No.15433-46/2006 before the Honble High Court of Delhi. Few of the applicants herein made representations dated 30.6.2009, 8.10.2009, 20.10.2009 and 7.4.2010, asking the respondents to give them the benefit of promotion to the cadre of Assistant with effect from the date of declaration of the examination, i.e., LICE held on 22.5.2006. The said representations were rejected by the BSNL by order dated 13.7.2010. Challenging the order dated 13.7.2010 and seeking declaration to the effect that they are entitled to count their qualifying service as Assistant w.e.f. 22.5.2006 for the purpose of promotion to the post of Section Officer (Deputy Manager), the applicants, who are also petitioners in WP (C) Nos.15433-46 of 2006, have filed the present OA.
5. By filing the short reply dated 21.10.2010, the respondents have opposed the OA filed by the applicants.
6. The question needs to be determined in the present case are:-
Whether in case of delay in promotion of applicants on account of pending litigation, they are entitled to their promotion from back date?
If aforementioned issue is decided in favour of the applicants, then whether the back date from which the applicants are entitled to notional promotion can be the date of declaration of result? and Whether in case of delay in granting promotion to applicants, they are entitled to fixation of their pay from 1st July of year for which the select list in which their names are included is prepared?
7. To substantiate the contention that their promotion to the post of Assistant (Assistant Manager) is delayed for none of their fault and they are entitled to promotion from the date of declaration of result, the counsel for the applicants relies upon the following decisions of Honble Supreme Court:
Pilla Sitaram Patrudu & others v. Union of India & others, (1996) 8 SCC 637 Union of India & another v. J. Santhanakrishnan & others, (2007) 15 SCC 694, Union Public Service Commission & another v. A.K. Salim & others, (2008) 11 SCC 495;
Union of India & others v. K.B. Rajoria, (2000) 3 SCC 562;
Nirmal Chandra Bhattacharjee & others v. Union of India & others, 1991 Supp (2) SCC 363;
Balwant Singh Narwal & others v. State of Haryana & others, (2008) 7 SCC 728, Amarjeet Singh & others v. Devi Ratan & others, (2010) 1 SCC 417; and Commissioner of Customs (Preventive), Mumbai v. M. Ambalal & Compnay, (2011) 2 SCC 74
8. To substantiate his argument that the applicants are entitled to fixation of their pay from 1st July of the year in the select list of which their names were included, the learned counsel for the applicants relies upon the Office Memorandum dated 9.7.2010. The said OM is placed on record as Annexure A-17 to OA. The OM provides that the appointment of Assistants and Section Officers, which was delayed, might be made effective from 1st July of the concerned select list year for the purpose of fixation of pay on notional basis.
9. Referring to forwarding letter dated 6.9.2010 issued by Department of Telecom, the counsel for the applicants contends that the aforementioned OM dated 9.7.2010 should be made applicable to applicants also. Referring to the promotions of S/Shri Lallan Shah, UDC, V.S. Raghavan, K. Vijaykumaran and P. Sivakumaran, the applicants have claimed parity with them.
10. The counsel for the applicants also refer to the office note placed at pages 127 to 129 of the paper book. Para 5 of said official noting reads as under:-
5. Prior to conduct of the aforesaid LICE, 23 UDCs, were promoted to the post of Assistant on local officiating basis with the restriction of FR-35. Out of these 23 officials, 3 officials, viz. Shri V.S. Raghavan, Shri P. Sivakumaran and Shri K. Vijayakumaran had subsequently qualified the LICE held for promotion from UDC to Assistant. Recently, these 3 officials had represented for revocation of the restriction of FR 35 during the officiating period as Assistant w.e.f. 22/05/2006 i.e. the date of declaration of result of the said LICE. Their representations were considered and vide letter dated 06/04/2009, approval of the competent authority has been accorded for revocation of the provision of FR-35 in respect of these three officials. Due to the revocation of the restriction of FR-35, the pay of these three officials has been fixed in the pay scale of Rs.9850-250-14600 (pre-revised) w.e.f. 22/05/2006 with all consequential benefits including arrears of pay and allowances.
11. The main plea raised by the counsel of the respondents in the short reply is that Honble High Court vide its judgment dated 7.4.2008 (supra) had categorically denied the arrear of pay and emoluments etc. to applicants. Another contention raised by the respondents (BSNL) is that the OA is barred by limitation.
12. In respect of promotion of three officials and revocation of FR 35 in their case, the respondents contend that the said officials were working on local officiating basis and on qualifying the LICE they were also promoted as Assistant Managers from the date they assumed the charge of the promotional post w.e.f. 16.5.2008, like other officials, but FR 35 in their case was revoked on consideration of their representations. The respondents have categorically stated that the said three persons were also not given retrospective promotion.
13. Since the OA preferred against the order dated 13.7.2010 was filed on 7.10.2010, the plea of limitation raised by the respondents is not accepted.
14. As far as rival contentions on merit are concerned, in view of the order we are proposing to pass, we are not commenting upon the same. It is correct that Honble High Court had categorically denied arrear of pay, emoluments, etc. to applicants. However, what the applicants have claimed in the present OA is not the arrears of the pay from 22.5.2006 but they have only claimed that they should be treated as Assistant Managers from the said date notionally and for the purpose of their promotion to the post of Deputy Manager/Section Officer, the service rendered by them w.e.f. 22.5.2006 as UDC should be treated as eligible service, i.e., as Assistant (Assistant Manager).
15. In the facts and circumstances of the case, this OA is disposed of an with observation that raising the contentions noted hereinabove and also such other contentions, which they wish to make, the applicants may make a detailed representation to the competent authority within one week from the date of receipt of a copy of this order. The said authority would decide the same within a period of three weeks thereafter. While deciding the representation, the competent authority will keep in view the aforementioned judgments cited by the applicants, OM of DOPT dated 9.7.2010 and the office notes, mentioned hereinabove. By interim order dated 8.10.2010 passed by this Tribunal, the applicants are allowed to participate in the LICE for promotion to DM provisionally. Such participation was made subject to outcome of the OA. In detailed order dated 10.11.2010, the order dated 8.10.2010 was reiterated. Since the issue of date of promotion of applicants as Assistant Manager and also the issue of their eligibility for promotion as Deputy Manager is to be determined by the respondents, we deem it appropriate to direct the respondents not to finalize the promotion to the post of Deputy Manager till disposal of the representation to be made by the applicants.
( A.K. Bhardwaj ) ( Dr. A.K. Mishra ) Member (J) Member (A) /sunil/