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% KAILASH GAMBHIR, J.

1. Challenge in the present Writ Petition is to the order dated 21.12.2009 passed by the learned Central Administrative Tribunal (hereinafter referred to as the 'learned Tribunal) in T.A. No.922/2009 and order dated 25.07.2011 passed by the learned Tribunal in R.A. No.117/2010 in T.A. No.922/2009.

2. Assailing the legality and correctness of the said orders passed by the learned Tribunal, Mrs. Jyoti Singh, the learned Senior Counsel for the petitioners submitted that the respondent herein has been wrongly claiming the pay parity in Pay Scale in Biennial Cadre Review (BCR) Grade in CDA Pay Scale of Rs.1600-2660/- w.e.f. 29.09.1992 with one Sh. Jitender Kumar who was placed in higher Pay Scale, without appreciating the fact that he was appointed to the post of UDC after declaration of his result on 02.12.1992 and therefore, the respondent could not have equated himself with the case of Sh. Jitender Kumar as the facts similar to his case would be settled with one Mr. Jugal Kishor Wadhwa w.e.f. 01.07.1996. The learned counsel further argued that the learned Tribunal fell in grave error in not appreciating the fact that the respondent was much junior to Sh. Jitender Kumar in the UDC Grade as Sh. Jitender Kumar joined as LDC in the year 1965 while the respondent has joined as LDC in the year 1981 and reckoning the total length of service of Sh. Jitender Kumar i.e. 26 years, he became eligible for promotion to TOA Grade-III (BCR Scale) in terms of the OM dated 09.09.1992. The learned counsel further argued that the BCR scheme which was announced in the year 1990 by the petitioners was subject matter of challenge before the learned Tribunal, Bangalore Bench in July 1992. The learned Tribunal had also taken a view that BCR scheme appeared to be in violation of the Post and Telegraphs Department, Telecommunication Branch (Selection Grade Posts) Recruitment Rules, 1979 ("hereinafter as Recruitment Rules 1979") but did not strike down the scheme taking into consideration the interest of large number of employees who had already been granted relief on the basis of the scheme over a period of time. The said decision of the learned Tribunal and some of other Benches was ultimately upheld by the Hon'ble Supreme Court in the case of Union of India & Ors. v. Leelamma Jacab & Ors., reported in (2003) 12 SCC 280, and in view of the decision of the Hon'ble Supreme Court, the respondent now cannot challenge the legality or constitutionality of the said BCR scheme.

a) Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors., (2013) 4 SCC 540

b) Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Others, (2003) 2 SCC 111

5. We have heard the learned counsel for the parties at considerable length and have given our conscious consideration to the arguments advanced by them.

6. The legality, constitutionality and validity of the BCR scheme which was announced by the petitioners in the year 1992 cannot be questioned by the respondent after the same was upheld by the decision of the Apex Court in Union of India & Ors. v. Leelamma Jacob (Supra) case. This plea of BCR scheme being an administrative order and being in contravention of the existing Recruitment Rules,1979 was also considered by the Apex Court in the above judgment and the Apex Court took a view that since the scheme has been in operation since 1992 and also the fact that contesting respondent was quite content with having their alternative prayer as granted by the learned Tribunal, and therefore, the Court refrained from taking any such view to strike down the scheme altogether. The relevant paras of the aforementioned judgment are reproduced as under:

15. In addition to the fact that the Scheme is in contravention of the existing Rules, by virtue of the BCR Scheme the contesting respondents' seniority in Grade II was taken away. Those who had not been able to pass the examinations for promotion from Grade I to Grade II and who had continued to serve in Grade I were allowed to leapfrog over the contesting respondents by the BCR Scheme by being granted scales of pay in respect of posts in Grade III. As a result not only were the contesting respondents superseded without being considered for promotion to Grade III at all when their juniors were considered, but their chances of being further promoted to Grade IV were effectively forestalled as promotion from Grade III to Grade IV would be strictly on the basis of seniority presumably in the grade below. Since the contesting respondents having not at all being promoted to Grade III they would not be in a position to be considered for promotions to Grade IV whereas the beneficiaries of the BCR Scheme would, by virtue of the Scheme be in a position to be considered for further promotion to Grade IV. Indeed according to the contesting respondents the BCR Scheme has resulted in some of its beneficiaries getting Grade IV of pay already. There is also substance in the submission of learned counsel for the respondents that the Recruitment Rules as well as the BCR Scheme provide for consideration of suitability and fitness as criteria for advancement. Necessarily the consideration for promotion to the next grade should be from the grade immediately below. As a result of the BCR Scheme however the beneficiaries have been promoted from Grade I to Grade III and possibly Grade IV without any consideration of their suitability in terms of the Rules or Scheme. Nevertheless the contesting respondents do not seek the withdrawal of any benefits which may have already been granted under the BCR Scheme to these employees. What they only want is that they should be granted at least a parity with those who in Grade II were junior to them. It has to be recorded that the system of promotion by examination from Grade I to Grade II has since been abolished in 1983 therefore, the contesting respondents represent a class of employees who had been promoted on the basis of departmental examinations successfully taken by them prior to that date."

7. The respondent admitted the fact that he was himself a party in Union of India v. Leelamma Jacob (Supra), the case that was decided by by the Apex Court and therefore, now he cannot turn around to agitate the said issue again with regard to the constitutionality of the said administrative order on the ground that the same is in contravention of the existing Recruitment Rules, 1979. This plea is thus, no more available to the respondent.

8. With regard to the question as to whether Sh. Jitender Kumar was junior to the respondent or the respondent was junior to him, the basic facts on this aspect are not in dispute. Undoubtedly, in the order dated 21.12.2009 passed by the learned Tribunal, the learned Tribunal has wrongly assumed that Sh. Jitender Kumar was junior to the respondent and thus based on this basic canard the learned Tribunal had a view that the parity of pay is to be restored vis-vis juniors and admittedly with Sh. Jitender Kumar, his junior, from 29.09.1992, cannot be countenanced in law. By a Review Petition filed by the petitioners, the petitioners wanted to draw the attention of the Court to the said glaring error on this important aspect in the order dated 21.12.2009 treating Sh. Jitender Kumar as junior to the respondent was junior to Sh. Jitender Kumar. The learned Tribunal despite the direction given by the High Court vide order dated 20.09.2010, did not accord any weight-age to this important and vital fact that Sh. Jitender Kumar had joined as a LDC in the year 1965 while the respondent had joined as a LDC in the year 1981. Prior to 1992, the criteria for promotion under the existing Recruitment Rules,1979 from the post of LDC to the post of UDC was by two modes- first, by passing departmental competitive examination and the second was on the basis of seniority-cum-fitness. The new scheme known to as OTBP scheme was introduced by the petitioners vide OM dated 09.09.1992. Vide this OM, the post of LDC was re-designated as TOA (G) Grade-I, thus all those who were in the scale of OTBP were placed in TOA (G) Grade-II and those in BCR scheme were placed in TOA (G) Grade-III under BCR scheme. The persons who were working as LDC/UDC and had rendered 26 years of service became eligible for the promotion to TOA (G) Grade-III (BCR Scale) by virtue of their total length of service and thus who had rendered 16 years of service as LDC/ UDC were entitled for being promoted to TOA (G) Grade-II (OTBP Scale). The respondent herein had appeared in the departmental examination on 10.08.1992, i.e. much prior to the announcement of the scheme, i.e. on 09.09.1992 and the result of the said exam was declared on 02.12.1992. Sh. Jitender Kumar had rendered 26 years of qualifying service in the LDC Grade and based on his length of service, he was promoted as TOA (G) Grade-III (BCR Scale) in accordance with the said scheme and as on this date the respondent was ineligible to be promoted as TOA (G) Grade- III (BCR Scale) since he had not completed requisite 26 years of length of service as per the BCR scheme. The result of the respondent was declared on 02.12.1992 and he was promoted as UDC on 08.12.1992 and therefore, the respondent cannot claim parity to draw the same Pay Scale at par with Sh. Jitender Kumar who had completed 26 years of length of service when he was promoted as TOA (G) Grade-III (BCR Scale) as on 29.09.1992.