Honourable Mr. Khushiram, Member (A):
Three applicants joined the service of the respondent department as Telephone Operator in the years 1961-1964. Biennial Cadre Review (BCR) Scheme was introduction on 16.10.1990 for promotion to higher grade to those persons who are in regular service as on 1.1.1990. The employees who had completed 26 years of service in the basic cadre were to be further promoted on the basis of satisfactory record of service. On 7.7.1992, the promotion to 10% posts in the scale of Rs.2000-3200 in Gr.IV pay scale from Gr.III came up for determination in O.A.NO.1455 of 1991 before the Principal Bench, New Delhi, wherein the respondents were directed to grant promotions on 10% in the pay scale of Rs.2000-3200 and the same would be based on seniority in the basic cadre subject to fulfillment of other conditions of BCR Scheme. The applicants were promoted in the pay scale vide order dated 19.3.1993 and were due for Gr.IV pay scale. The orders of the Principal Bench dated 7.7.1992 attained finality as the SLP filed by the respondents was dismissed by the Hon’ble Apex Court vide order dated 9.9.1993. On 28.2.1995, the respondents promoted Senior Telecom Supervisors to Chief Telecom Supervisors against 10% upgraded posts of Rs.2000-3200. On 13.12.1995, the respondents reviewed the existing procedure for promotion to Gr.IV pay scale and decided in supersession of earlier instructions dated 7.1.1994, 18.2.1994 and 30.8.1994 by holding that the promotion of 10% posts amongst the official in Gr.III to Gr.IV will be made on the basis of seniority in the basic cadre. The applicants have further stated that the respondents vide letter dated 10.5.1996 had decided the officials already promoted in Gr.IV pay scale of Rs.2000-32000 should not be reverted and may be allowed to continue by creating in excess of 10% posts in BCR Scheme to adjust those who were already promoted. It was also decided that promotion in future would not be made till those promoted in excess of 10% are adjusted and until the number of posts in Gr.IV came back into 10% in BCR Scheme. The applicants submitted a representation on 17.5.1996 by stating therein that the juniors to them are receiving more pay than the applicants. On 12.9.1996, another representation was submitted, but no action was taken. On 13.2.1997, the Ministry of Communication, Government of India, amended office order dated 10.5.1996 to the extent that the persons who were promoted in Gr.IV be protected from reversion by creating as many supernumerary posts as is required for person to person. The present applicants filed O.A.No.103/CH/1997 before this Tribunal seeking direction to consider the cases for promotion to Gr.IV against 10% posts in BCR Scheme by taking into consideration the length of service in the basic cadre/grade, which was disposed of by order dated 9.7.1997 with a direction to the respondents to consider the claim of the applicants for promotion to Gr.IV under BCR Scheme from the date juniors were promoted.
2. The applicants have further pleaded that the respondents issued a draft circle gradation list of Chief Telecom Supervisors and Senior Telecom Supervisors for promotion to Gr.IV on 7.11.1997. On 29.1.1998, the respondents rejected the claim of the applicants for promotion to Gr.IV. The applicants again filed O.A.No.992/CH/1998 before this Tribunal by challenging the order dated 29.1.1998, which too was disposed of vide order dated 22.1.2002 with a direction to the respondents that the claim of the applicants for promotion to Gr.IV pay scale in BCR Scheme be decided by taking into consideration the seniority of the basic cadre in view of decision passed in O.A.NO.872/HR/1994 (Asa Ram Sharma versus Union of India and Ors. ) decided on 10.7.2001.
The applicants submitted a representation dated 26.2.2002 to consider their claim for promotion for Gr. IV under the BCR Scheme on the basis of length of service in basic cadre. The respondents vide order dated 11.4.2002 have informed the applicants that the claim of the applicants for promotion to Gr.IV under the BCR Scheme has been considered on the basis of seniority in the basic cadre, but the promotion will be made to Gr.IV on the availability of posts. The applicants again submitted a representation on 6.5.2002 by alleging therein that for promotion for Gr.IV pay scale, the length of service in the basic cadre is to be seen and not confirmation in Gr.III and the order of the Tribunal has not been complied with in letter and spirit. The Contempt petition filed by the applicants was also disposed of by directing the applicants to challenge the said order by filing a fresh O.A.
The applicants filed CWP No.2091 of 2004 before the Hon’ble Punjab and Haryana High Court with a prayer to quash the order dated 11.4.2002 with a further prayer for promotion to Gr.IV pay scale from the date their juniors have been promoted to Gr.IV pay scale along with 12% interest. The said writ petition was transferred to this Tribunal and the Tribunal vide its order dated 27.10.2009 disposed of the said case with a direction to the respondents to consider the entire issue regarding eligibility and grant of financial up-gradation under BCR Scheme to the applicants and pass necessary orders within a period of three months, if it is found that that posts under 10% quota of BCR Scheme are available.
On 27.4.2004, the applicants filed review application and direction was issued to the respondents to reconsider the issue of financial upgradation in the pay scale of Rs.2000-3200 in Gr.IV from the date it was given to their juniors and grant consequential benefits. On 29.7.2010, the respondents rejected the claim of the applicants on the ground that they are transferred to Chandigarh on their own request and they are not entitled to Gr.IV pay scale in view of para 38 of P and T Manual because they have lost their seniority after transfer to Chandigarh circle.
Aggrieved with the order dated 29.7.2010 (Annexure A-24) passed by the respondents, the applicants have filed the present O.A. seeking the following reliefs:-
“i) To quash the annexure A-24 dt. 29.7.2010 vide which the official respondents have illegally passed the order rejecting the claim of the applicants for grant of Grade IV pay scale;
ii) A direction be issued to the respondents tog rant the Grade IV pay scale i.e. Rs.2000-3200 to the applicants from the date the juniors i.e. respondent No.4 to 19 have been granted with all consequential benefits, revision of pension and difference of arrear of pay scale with all other consequential benefits along with 12% interest from the due date till payment.”
3. The respondents have filed their written statement. They have stated that one Shri H.S.Virdi was promoted to the cadre of Observation Supervisor which was a circle cadre and on opting for Punjab Circle due to trifurcation of N.W. Circle, thus, he did not loose seniority in the basic cadre. Shri Virdi was working as Observation Supervisor whereas the applicants were working in the Operative Cadre. Applicant No.3 was duly informed vide letter dated 29.1.1998 that promotion to Gr.IV has to be based on seniority in the basic cadre of Telephone Operator and the cases of promotion to Gr.IV already made were to be reviewed strictly restricting to the limit of 10% post in Gr.III(Rs.1600-2660).
The Department of Tele- communications had issued instructions dated 22.6.1994 and 10.5.1996 wherein it was decided that the Telecom Commission has approved that the officials already promoted to Gr.IV should not be reverted and allowed to continue in Gr.IV. The number of posts required in excess of 10% of posts of BCR posts were created to the extent to avoid reversion of officials already promoted in Gr.IV. Accordingly, Shri H.S.Virdi was not reverted and one supernumerary post of Gr.IV has already been created by the circle office as per instructions. They have also averred that the present applicants belong to the cadre of Telephone Operator which is a different cadre whereas Shri H.S.Virdi and Shri R.D.Gambhir who were working as Observation Supervisor which was a circle cadre and the promotion for 10% Gr.IV was made at circle level.
The Department of Telecommunications vide letter dated 13.12.1995 had informed that “it has now been decided in supersession of earlier instructions that promotion to the said Gr.IV may be given from amongst officials in Gr.III on the basis of their seniority in the basic grade. The promotion would be subject to fitness determined by the DPC as usual.’ Since the applicants on their own request had joined Chandigarh division (present Chandigarh Telecom District) and has lost their original seniority in basic cadre of Telephone Operator. It is pointed out that Smt. Rajinder Kaur from Ambala division initially joined service on 24.10.1961 and on transfer came to Chandigarh division on 5.5.1967. Smt. Saroj Nangia from New Delhi division initially joined service on 17.12.1963 and joined in Chandigarh division on 14.5.1971 and similarly Smt.Kamlesh Puri from Jalandhar initially joined service on 31.8.1969 and joined Chandigarh division on 30.11.1971. Accordingly, their seniority in Chandigarh division was counted from the date they joined this division, whereas Shri H.S.Virdi and Shri R.D.Gambhir joined on 4.1.1966 and 1.11.1960 at Shimla, but after having been declared successful in the written examination of Observation Supervisor, they were duly promoted to Gr.IV at circle level vide letter dated 21.2.1995, therefore, their case differs from the case of the applicants.
4. They have further pleaded that in compliance of order dated 9.7.1997 passed in O.A.No.103/CH/1997, all 35 concerned officials were informed that there is no merit in their representation and their request for promotion from Gr.III to Gr.IV under BCR Scheme cannot be acceded to and in the case of Shri H.S.Virdi, his reversion was stalled in view of letters dated 13.12.1995 and 10.5.1996. The applicants are trying to re-open the settled cases which is not permissible. It is also averred that the seniority in basic cadre loose significance when the applicant had sought transfer under para 38 of PandT Manual Vol.IV, therefore, applicants cannot claim promotion to BCR Gr.IV on the basis of their seniority in basic cadre as their seniority in basic cadre will start from the date of joining in Chandigarh Telecom District, which the applicants have never challenged. Moreover, the controversy had already been settled in Civil Appeal Nos.4369 and 4370 of 2006 in the case of B.S.N.L. versus Shri Ghan Shyam Dass, relevant part of judgment reads as under :-
“17. The language of the circular dated 13.12.1995 makes it crystal clear that the Government took a fresh decision in supersession of earlier instructions that promotion to Grade-IV may be given from amongst officials in Grade-III on the basis of their seniority in the basic grade. Hence, the decision of the Government to make promotions to Grade-IV on the basis of their seniority in the basic grade could take effect only from 13.12.1995 and not from a prior date and the respondents, who had filed OA No.2484 of 1997 and OA No.2099 of 1997 in the Central Administrative Tribunal could not claim any promotion to Grade-IV on the basis of their seniority in the basic cadre with effect from any date prior to 13.12.1995. The Central Administrative Tribunal was, therefore, not right in allowing OA No.2484 of 1997 and OA No.2099 of 1997 by order dated 11.08.2009, directing the Government to consider promoting the applicants to Grade-IV with effect from the dates their immediate juniors in the basic grade seniority were so promoted subject to their being found fit with consequential benefits of seniority as well as arrears of pay and allowances and of retiral benefits in the case of those of the applicants in the OAs, who had retired on superannuation. In our considered opinion, the High Court ought to have interfered with the decision of the Tribunal.
18. We accordingly allow these appeals and set aside the impugned orders dated 22.05.2003 of the High Court and the common order dated 11.08.2000 of the Central Administrative Tribunal in OA No.2484 of 1997 and OA No.2099 of 1997. The two OAs stand rejected. There will be no order as to costs."
5. The applicants have filed rejoinder reiterating the points raised in the O.A. They have further reiterated that the BCT Scheme came into operation in the year 1990 and the applicants became Gr.III on 30.11.1990 and 30.6.1991 whereas Shri H.S.Virdi came into Gr.III on 1.7.1992 who was junior to the present applicants, therefore, they are entitled to get promotion with their juniors. They have also stated that with regard to transfer on their own request, para 38 (Volume IV) of P and T Manual is extracted hereunder, for adjudication of the present controversy :-
“38(3) If the old and the new unit form part of a wider unit for the purpose of promotion to a higher cadre, the transferee (whether by mutual exchange or otherwise) will retain his original seniority in the gradation list of the wider unit.”
In view of this provisions, the applicants are entitled to grant of benefit at par with their junior namely Shri H.S.Virdi. They have further averred in the rejoinder that Shri H.S.Virdi was appointed as Telephone Operator on 4.1.1966 and was confirmed on 1.3.1970He joined after appearing in the examination and the post was abolished ion4.3.1987 and he was sent back to his parent cadre i.e. Telephone Operator. Thus, all the applicants are senior to Shri H.S.Virdi as they had joined the department earlier to him. He was promoted in Gr.IV of Rs.2000-3200 against 10% upgraded posts on 13.12.1995. Thus, the applicants being senior to Shri Virdi are entitled to get promotion from the date he was given promotion.
6. We have heard the learned counsel for the applicants who reiterated the points already made in the O.A.
7. The learned counsel for the respondents has cited the judgment passed by the Hon’ble Apex Court in the case of Bharat Sanchar Nigam Limited versus Ghanshyam Dass(2) and Ors. (2011(4) S.C.C. Page 374) wherein it was held that Relief to non-applicants - Sustainability CAT vide order dated 7.7.1992 directing Government to consider only applicants in OA for promotion to 10% posts in Grade IV scale on the basis of seniority in basic cadres - Admittedly, respondents were not applicants and their cases did not fall within the scope of principles for extension of relief to non-applicants- Hence, held, respondents not entitled to claim promotion to Grade IV on the basis of their seniority in basic grade pursuant to that order.’ The applicants have no case whatsoever as the Apex Court has held that the benefit of the judgment in the concerned case cannot be extended to the applicants.
8. We have considered the rival submissions and have gone through the pleadings as well as original record produced before us at the time of final hearing.
9. The same applicants filed CWP No.209 of 2004 before the Hon’ble Punjab and Haryana High Court and the same was received from the High Court on transfer as registered as T.A.No.83 of 2009 and was decided by the Tribunal vide order dated October 27, 2009. The decision was modified vide order dated 27.4.2010 in R.A.No.5/2010 which is to the following effect :-
“In view of the above discussion, the matter requires re-consideration at the hands of the respondents as the only objection taken by them stands negatived by the decision of this Tribunal in the case of Randhir Singh(supra). The respondents are, therefore, directed to reconsider the entire issue regarding eligibility and grant of financial upgradation under BCR Scheme to the applicants as has been given to their juniors, as is also reflected in the letter dated 2.3.2010 placed on record. Needful be done within a period of three months from the date of receipt of copy of this order. The applicants may be extended due benefits along with revised pensionary benefits within a further period of two months. The Original Application stands disposed of accordingly. No costs.”
In the impugned order dated 29.7.2010 ( Annexure A-24), the respondents have dealt each points raised by the applicants in their representation by holding that ‘all the three applicants joined Chandigarh telecom district under para 38 after requesting for their transfers. So, it is not correct that BCR grade IV is circle cadre and the applicants had tried to wrongly interpret condition of length of service as applicable to BCR grade II and grade III 16/26 years instead of seniority in their basic cadre which is mandatory condition for consideration of 10% promotions under BCR grade IV amongst such officials who are in BCR grade III has completed 26 years length of service.’ Since the three applicants on their own request under para 38 joined Chandigarh Telecom district and have been rightly placed in the divisional gradation list as referred by the applicants in O.A.No.209 of 2004 and having lost their basic cadre seniority with regard to their respective parent divisions, re-fixation of their seniority in their new place of joining i.e. Chandigarh Telecom district ( may be read as new division ) their claims for reconsideration of promotion to BCR grade IV does not find merit as no officials junior to these three applicants of Chandigarh Telecom district was promoted under BCR Grade IV Scheme. The applicants have not given any citation or any copy of record in support of their contentions in the rejoinder wherein it is stated that the transferee will retain his original seniority in the gradation list of the wider unit. Since the applicants have joined Chandigarh district from outside i.e. Ambala, New Delhi and Jalandar and have not placed any proof of having passed examination of Observation Supervisor at any stage prior to 21.2.1995 ( as in the case of Shri H.S.Virdi), therefore, they are not entitled to claim promotion at par with Shri H.S.Virdi treating him to be junior to them.
10. In view of this crystal clear finding by the respondents, we do not find any merit in the O.A and the same is accordingly dismissed. No costs.