Judgment:
1. 103 applicants jointly filed this application under Section 19 of the Administrative Tribunals Act being aggrieved by non-stepping up of their pay with reference to their juniors with retrospective effect from 16.10.90 by extending the benefits of the promotion to the scale of Rs. 2000-3200/- under B.C.R. Scheme as per judgment dated 10.3.94 passed by this Tribunal in O.A. No. 1493 of 1993 Shri B.B. Das and Ors.
v. Union of India and Ors. They made representation to the authorities stating, inter-alia, that they are similarly circumstanced with the applicants of the aforesaid O.A. 1493 of 1993. Hence, they are also entitled to get promotion to the scale of Rs. 2000-3200.- against 10% of the posts in Grade IV as per B.C.R. Scheme.
The applicants joined as T.S. Clerk in the office of the Central Telegraph Office, Calcutta on different dates from 1954 onwards.
There are two channels of promotion i.e. one under normal channel promotion and other under one-time-bound promotion under BCR Scheme.
Under normal channel of promotion from the post of clerk is assigned to the Lower Supervisory Grade (LSG) now in the scale of Rs. 1400-2300 (RP) which has been redesignated as Telegraph Office Assistant--Telegraphy General Gr. II (TOA). But in order to extend the scope of promotion of T.S. Clerk, one-time-bound promotion to the post of Lower Supervisory Grade has been introduced w.e.f.
30.11.83. It is also stated by the applicants that prior to the introduction of one-time-bound-promotion to the post of LSG w.e.f.
30.11.83 on completion of 16 years of service, the post of LSG was extended by 20% of the then existing strength of which 2/3rd was to be filled in by seniority-cum-fitness and 1/3rd by selection on merit. Thereafter, respondents again decided to grant second-time-bound promotion to the LSG in the scale of Rs. 1400-2300/- on completion of 26 years of service in the scale of Rs. 1600-2660/-. According to the applicant, that 10% of the newly upgraded post is TOA Gr. III will be upgraded to the next higher grade i.e. TOA Grade IV in the scale of Rs. 2000-3200/- and that 10% of the post should be filled up on the basis of the basic seniority in the cadre of clerk on completion of 26 years of service.
In terms of the said decision he applicants were given benefit of upgradation by promoting them from the post of Telegraph Office Assistant Gr. II to Gr. III in the scale of Rs. 1600-2600 w.e.f.
16.10.90 as shown in the Annexure-X. But they were denied benefit of 10% in the scale of Rs. 2000-3200/- in terms of the order dated 16.10.90 which indicated that 10% of the post in the scale of Rs. 2000-3200/- were to be filled up on basis of the basic grade seniority.
It is alleged by the applicants that 10% posts in the scale of Rs. 2000-3200/- have been filled up by promoting junior persons, namely, S/Shri R.M. Bhowmick, R.C. Das, and R.K. Sarkar, to the applicants, ignoring their basic grade seniority denying the benefit of promotion to the applicants against 10% posts in the scale of Rs. 2000-3200/-. It is also stated by the applicants that such arbitrary actions of the respondents were challenged by some of the employee who were similarly circumstanced like the applicants by filling O. A. No. 1455 of 1991 and that case was decided by the Full Bench of the CAT, Principal Bench. It is also stated by the applicants that the same judgment was affirmed by the Hon'ble Apex Court by dismissing a S.L.P. filed by the respondents, So, all the applicants being similarly circumstanced and situated are entitled to get promotion against the 10% post in the pay scale of Rs. 2000-3200/- under the BCR Scheme on the basis of basic seniority in the cadre on completion of 26 years of service. Such denial of promotion as alleged by the applicants in their application is arbitrary, illegal and violative of Articles 16, 21 and 300-A of the Constitution.
3. Respondents filed written reply to the O.A. and applicants also filed rejoinder to the reply.
In the written reply to the O. A., respondents denied the claim stating, inter-alia, that prior to 15.6.74, in the Telegraph Traffic Division promotional prospect in clerical cadre was very remote. At that time 10% of the clerical strength was promoted to the next higher post of Lower Selection Grade (i.e. LSG) to the scale of Rs. 425-640/- (revised to Rs. 1400-2300/- w.e.f. 1.1.1986 under C.C.S. (RP) Rules, 1986). Thereafter, these LSG incumbents were promoted to the scale of Rs. 550-750/- (revised to Rs. 1600-2660/- w.e.f. 1.1.1986 under C.C.S.(RP) Rules, 1986) at the ratio of 6:1 (i.e. 6 L.S.G. -- 1 H.S.G.).
Therefore, initially class-Ill staff in clerical side of this department was consisting of Clerks, LSG Clerks and HSG Clerks.
Subsequently, these clerks were designated as Telegraph Assistant (i.e.
T.A.), Section Supervisor (i.e. S.S.) and Senior Section Supervisor (i.e. Sr. S.S.). Thereafter, w.e.f. 15.6.74 this standard of promotion to the LSG clerks was liberalised and enhanced from 10% to 20% vide DOT order dated 15.6.74 (Annexure-R1). It was decided that 2/3rd of these 20% promotional posts would be filled up on seniority-cum-fitness basis and the rest 1/3rd would be filled up by qualifying candidates through departmental examination on merit basis. It is stated that though the promotional avenue was enhanced but the scope of actual supervisory works had not been enhanced and that was done by he supervisors converted under the previous norms. It is stated that after introduction of B.C.R. Scheme, when they found that these 1/3rd promotee officials are going to get promotion to grade IV post (i .e.
10% up-graded post) in the scale of Rs. 2000-3200/-, now they claim the stepping-up intentionally discovering the flaw that in the introductory order of BCR dated 16.10.90 it was ordered to promote the officials on the basis of seniority. So their prayer is intentional, purported and malafide. It is also sated the so-called junior officials whom they cited as juniors were promoted to LSG post of Section Supervisor (Operative) earlier well to these applicants viz. Shri R.M. Bhowmick, w.e.f. 23.6.83, Shri R.C. Das, w.e.f. 22.6.83 and Shri R.K. Sarkar, w.e.f. 23.6.83 whereas all these were promoted to the said post of LSG from 30.11.83 under O.T.B.P. Scheme. Therefore, these officials cannot be juniors in the cadre of LSG then those applicants. It is further stated by the respondents that the then existing DOT Order No.27-4/87-TE-II dated 7.1.94 read with corrigendum of even number dated 18.2.94 the promotion to the Grade-IV (10% quota) posts will be made from among the officials in Grade III on the basis of the inter-se-seniority in that grade (Annexure-R.4). So, these so-called junior officials who were senior in Grade-Ill (LSG) by virtue of their promotion to LSG in 1/3rd quota would regain their seniority in Grade-Ill and were accordingly promoted to 10% posts prior to these applicants.
It is also stated by the respondents in para 18 of the reply that all these applicants are entitled to get 10% promotion since their juniors were enjoying the same. The persons amongst these applicants who may get the said promotion are stated in para 13 of the reply and rest of the applicants can get the said promotion only when their turn will come. Actually, the so-called junior officials though were initially appointed much later than these applicants but were promoted to LSG posts/scale much earlier than these applicants by qualifying in the departmental examination under 1/3rd quota and by virtue of the said functional promotion they got seniority under OTBP and BCR Schemes.
Thereby, they got 10% promotion earlier than these applicants. On receipt of the Court verdict, these 1/3rd promotee officials were allowed to continue in the scale of 10% posts only by creating extra posts to that extent till adjustment in future like supernumerary post since Court also prohibited to revert them. As such their claim for stepping up cannot be tenable since stepping-up of pay is generally executed to remove the pay anomaly where the seniors on promotion drawing less pay than their juniors on satisfying the norms. But in the instant case, though seniors and juniors are belonging to the some cadre but have not been promoted to the identical cadre. In fact, the so-called juniors of the instant application are all promoted against 1/3rd quota and are now holding promotional post of Chief Section Supervisor (i.e. TOA (TG) Grade-IV) in the scale of pay of Rs. 2000-3200/- whereas the applicants are either Senior Section Supervisors or Section Supervisors i.e. TOA(TG) Grade-Ill in the scale of pay of Rs. 1600-2660/- and the senior officials are not yet promoted to the higher post of Chief Section Supervisor till date which the juniors got by virtue of their securing en-block seniority being qualified in the departmental examination as per departmental order was in vogue. So, claim of stepping-up is not applicable in this case. So, application is devoid of merit and liable to be dismissed.
4. Applicants in the rejoinder stated that Shri B.P. Gupta is not competent to verify on behalf of the respondents and as such no note should be taken of the reply.
Ld. Advocate Mr. Ghosh on behalf of the applicants wanted to assert the facts that the respondents wrongly denied the benefit of promotion of the applicants to the posts of Grade-IV in the scale of Rs. 2000-3200/- under B.C.R. Scheme of Tele-communication Department since they are entitled to get the scale of Rs. 2000-3200/- on the basis of the judgment passed by the Principal Bench in O.A. 1455 of 1991 by which the Tribunal directed the respondents to grant promotion to the 10% post in the scale of pay of Rs. 2000-3200/- basing on seniority in basic cadre under B.C.R. Scheme. But the respondents promoted some juniors to the applicants who are senior to those juniors on the basis of the seniority in the basic grade. Ld. Advocate Mr. Ghosh submits that such action of the respondents amounts to discrimination and violation of Article 14 since applicants are similarly circumstanced like the applicants of O.A. No. 1455 of 1991. Mr. Ghosh further submits that judgment of the Hon'ble Principal Bench on O.A. 1455 of 1991 decided on 7.7.92 which has been affirmed by the Hon'ble Supreme Court and judgment of the Supreme Court upholding the judgment of the Principal Bench is a judgment in rem and they acquired legal right to get the benefit of the said judgment. Ld. Advocate Mr. Ghosh also relied on another judgment dated 10.3.94 in O.A. 1493 (B.B. Das v.U.O.I. and Ors.) in which the Hon'ble Tribunal directed the respondents to act in accordance with the judgment passed by the Hon'ble Principal Bench in O.A. No. 1455/91. Since all the applicants got the promotion from the post of TOA Grade to Grade-Ill in the scale of Rs. 1600-2660/- w.e.f 16.10.90 on the basis of basic seniority, they were also entitled to the benefit of upgradation to the said 10% posts in the scale of Rs. 2000-3200/- in terms of the order dated 16.10.90 and as per judgment passed in the O.A. No. 1455/91. So, the respondents should be directed to grant the benefit of promotion to the 10% post in the scale of pay of Rs. 2000-3200/- in terms of the order dated 16.10.90 on the basis of the basic seniority in the grade of cadre. Mr. Ghosh submits that the juniors to the applicants, namely, S/Shri R.M. Bhowmick, R.C. Das and R.K. Sarkar are enjoying the benefits and getting higher pay than the applicants due to wrong action of the respondents. So, the applicants should be stepped up at par with the juniors by granting promotion in the scale of pay of Rs. 2000-3200/-.
5. The Ld. Advocate of the respondent Ms. Sanyal contended that claim of stepping up of pay at par with the juniors, namely, S/Shri R.M.Bhowmick, R.C. Das and R.K. Sarkar who got promotions w.e.f. 23.6.83, 22.6.83 and 23.6.83 respectively cannot be entertained in view of the judgment of the Hon'ble Principal Bench dated 7.7.1992 in OA 1455/91 which was decided long after the appointment of the aforesaid juniors.
So, the principles laid down in the said judgment cannot be applied in this case for stepping-up of pay scale at par with the juniors who got promotion after departmental examination.
Ld. Advocate Ms. Sanyal for the respondents further contended that the reason for denial of such benefit has been clearly explained in para 8 of the reply to the application. So, claim of the applicants is not sustainable and liable to be rejected. Ms. Sanyal further submits that the respondents issued letters No. SF/TC/Q-499/95 dated 28.9.95 and even number dated 5.10.95 after passing of the judgment dated 7.7.92 in OA 1455 of 1991 and these orders remain unchallenged in this application. So, the application is devoid of merit and is liable to be dismissed.
6. We have considered submissions of Ld. Advocates of both the parties and we have gone through the records. It is found that the Hon'ble Principal Bench of the CAT disposed of the O.A. 1455 of 1991 on 7.7.92 holding that promotion to grade IV should be based on seniority in the basis grade i.e. seniority at the level of Telegraphist/Telegraph Assistant and not in grade. The Hon'ble Principal Bench of the Tribunal in para 8 of the judgment directed the following: "In the above view of the matter, we direct that the promotions to 10% posts in the scale of Rs. 2000-3200/- would have to be based on seniority in basic cadres subject to fulfilment of other conditions in the BCR viz. those who were regular employees as on 1.1.90 and had completed 26 years of service in basic grades (including higher scales). The respondents are directed to consider applicants accordingly from due dates with consequential benefits. The employees who may be senior to applicants in the scale of 1600-2660/- and who may have already been given the scale of Rs. 2000-3200/- at the cost of these seniors in basic grades by any different interpretation of the BCR Scheme, may in the discretion of the respondents, instead of being reverted, be considered for promotion to scale of Rs. 2000-3200/- by suitable adjustments in the number of posts by upgradation as necessary." It remains admitted fact that the department had filed an SLP before the Hon'ble Supreme Court against the impugned order of the Principal Bench dated 7.7.92 and that SLP has been rejected by the Hon'ble Apex Court vide order dated 9.9.93 and due to rejection of the SLP, the judgment of the Principal Bench has been affirmed. So, the judgment dated 7.7.92 in OA 1455/91 which was upheld by the Supreme Court is no doubt a judgment in rem.
But it remains admitted fact in this case that from the side of the respondents, after disposal of the SLP on 9.9.93 by the Hon'ble Apex Court, Department of Tele-communication issued another order (Annexure-R.5) dated 13.12.95 where it has been decided that in supersession of earlier instructions, the promotion to the said Grade IV may be given from amongst officials in Grade-Ill on the basis of their seniority in the basic grade. The promotion would be subject to fitness determined by the D.P.C. as usual. It is further decided that the cases of promotion to the said grade-IV in the scale of Rs. 2000-3200/- against 10% post under the BCR Scheme may be reviewed and the same may be regulated accordingly restricting the number of officials thus promoted strictly to 10% of the posts placed in Grade-Ill (Scale of Rs. 1600-2660/-) as provided in the BCR Scheme. The Department of Telecommunication issued another notification dated 28.5.96 (Annexure-R6 to the reply) modifying the earlier notification dated 13.12.95 (Annexure -R5) where it is stated that consequent to the above order a demand was placed by the staff side in the J.C.M. to prevent reversion of officials, already promoted in Grade-IV (Rs. 2000-3200/-) in the light of the office orders of even number dated 13.12.95. The demand of the staff side has been considered by the Telecom Commission and it has been decided that: (i) The officials already promoted in Grade-IV of Rs. 2000-3200/- should not be reverted and may be allowed to continue in Grade-IV. (ii) Number of posts required in excess of 10% of BCR Posts be created to the extent to avoid reversion of officials already promoted in Grade-IV posts.
(iii) The posts created in excess of 10% of posts in BCR are to be adjusted against the justified posts for promotion in future and till these excess posts are adjusted, no promotion would be further made in Gr. IV in that unit till the total number of posts in Gr. IV comes back to the prescribed limit of 10% posts of BCR.By the said notification dated 28.5.96 (Annexure R6) the authorities were directed to implement the above orders and to furnish the following information immediately: (b) Names of officials for whom excess posts are created to avoid their reversion.
In view of the aforesaid circumstances, we find that the Scheme framed by the Department for the purpose of granting promotion to the 10% post in Grade-IV on the basis of seniority in basic grade/cadre after completion of 26 years of service in the grade has been approved.
Judgment of the Principal Bench of the CAT is that promotions to 10% post in the scale of Rs. 2000-3200/- would have to be based on seniority in basic cadre subject to fulfilment of other conditions in the BCR viz. those who were regular employees as on 1.1.90 and had completed 26 years of service in basic grade should be promoted to the 10% posts in the scale of Rs. 2000-3200/-.
Applicants filed this case bearing No. 1102/95 on 15.9.1995 and notification dated 13.12.95 (Annexure-R5) and notification dated 25.5.96 (Annexure-R6) were published by the respondents after filing of this O.A. We are of the view that the applicants are entitled to get benefit of the judgment and they are entitled to get promotion to the 10% posts in the scale of Rs. 2000-3200/-; but seniority in basic grade should be determined for promotion to the scale of Rs. 2000-3200/-, under the Scheme. Now the question remains in this case whether the applicants are entitled to get stepping-up of pay at par with their juniors as claimed in their application. We have considered the said fact and we find that the so-called alleged juniors, namely, S/Shri R.M. Bhowmick, R.C. Das and R.K. Sarkar were promoted prior to the passing of the judgment of the Principal Bench dated 7.7.92 and they got the benefits on the basis of the previous decision and understanding taken by the Telecommunication Department and the applicants have admittedly got the benefit of promotion in the scale of pay of Rs. 1600-2660/- w.e.f 16.10.90. Their grievances are that since they got the benefit of upgradation from the scale of Rs. 1400-2300/- to the scale of Rs. 2000-3200/- w.e.f. 16.10.90 they are also entitled to get the benefit of the Scheme w.e.f 16.10.90 by getting promotion to the scale of Rs. 2000-3200/-. As discussed above, though we find that the applicants are similarly circumstanced for granting benefit of the BCR Scheme in view of the judgment of the Principal Bench, yet that judgment cannot be given effect to retrospectively for stepping-up their pay since the judgment was affirmed by the Hon'ble Apex Court by order dated 9.9.93. So, question of stepping-up of the aforesaid applicants at par with their juniors mentioned in the application cannot be said to be sustainable in view of the fact that they got promotion in the year of 1986 on the basis of the departmental examination and when the Principal Bench categorically directed in the order dated 7.7.92 that the person who got the benefit of promotion on the basis of the BCR Scheme on wrong interpretation as alleged in the application should not be reverted. So, in view of the aforesaid circumstances, the claim for the benefit of stepping-up of pay at par with the pay of so-called juniors cannot be entertained.
In view of the aforesaid circumstances, it is found that the instant application has been filed before the Tribunal before the orders dated 13.12.95 (Annexure-R5) and dated 28.5.96 (Annexure-R6) and those orders were not challenged and at the same time it cannot be disputed that the applicants are entitled to get benefit of the judgment. In view of the above, it would be appropriate on our part to direct the respondents to comply with the order contained in the notification dated 28.5.96 (Annexure-R6) and to give appropriate benefit to the applicants by giving promotion to the scale of Rs. 2000-3200/-against the 10% posts after determining the seniority in basic grade in the light of the aforesaid instruction contained in Annexure-R6 and judgment dated 7.7.92 in OA No. 1455/91 within four months from the date of communication of this order. All exercise to that effect should be completed within the period or 4 months but applicants' claim for stepping up of pay is rejected. With this observation we dispose of the application awarding no costs.