Navendra Kumar, Delhi and Others Vs. Mahanagar Telephone Nigam Limited Through Itââandsbquo;¬âandbdquo;¢s Chairman and Managing Director, New Delhi and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1150249
CourtCentral Administrative Tribunal Principal Bench New Delhi
Decided OnJan-15-2014
Case NumberO.A. No.1716 of 2011 M.A. No.3427 of 2011
JudgeTHE HONOURABLE MR. G. GEORGE PARACKEN, MEMBER (J) & THE HONOURABLE MR. SHEKHAR AGARWAL, MEMBER(A)
AppellantNavendra Kumar, Delhi and Others
RespondentMahanagar Telephone Nigam Limited Through Itââandsbquo;¬âandbdquo;¢s Chairman and Managing Director, New Delhi and Another
Excerpt:
g. george paracken, m (j). the applicants in this original application have sought the following reliefs:- (i) the respondents be directed to re-fix the pay of the applicants drawn by them in cda pay scale as on 01.10.2000 in the corresponding ida pay scale at an appropriate stage by granting same number of annual increments as they had already drawn in the cda pay scale. or the applicants be treated as regularly appointed divisional engineers on the date of their permanent absorption with respondent no.2, i.e. 01.10.2000 and all the consequential benefits be also allowed to them. (ii)  one annual increment may be allowed to the applicants on 01.10.2000 to remove their pay anomaly. (iii)  cost of the proceedings may be allowed. (iv)any other order(s) as deemed fit and proper to secure the ends of justice may be passed?. 2. the brief facts of the case are that the respondent no.2, namely, ministry of communications and it constituted the respondent no.1, namely, the mtnl with effect from 01.04.1986 and thereafter the tele-communication service in new delhi and bombay (mumbai) under the respondent no.2 was transferred to it. the entire staff of respondent no.2 posted at that time in delhi telephones including the applicants were also transferred on deemed deputation to respondent no.1 as on where is basis. 3. applicant no.1 was appointed in the department of telecommunications (œdot? for short) as engineering supervisor on 16.3.1967. thereafter, he was promoted to the post of assistant engineer (œae? for short) w.e.f. 12.05.1977. while in mtnl, he was promoted as ae also known as sub divisional engineer (œsde? for short) w.e.f 01.09.1993 and then as divisional engineer telephones (œdet? for short) on officiating basis w.e.f. 23.09.1996. he continued to hold the aforesaid post on ad hoc basis till he was absorbed in mtnl on 24.01.2004 with retrospective effect from 01.10.2000 against the regular post of sde. subsequently, vide mtnls letter dated 22.03.2004, the ida pay scales were introduced with effect from 01.10.2000 for the executives (group œb?) including sde who were given pay scale of rs14500-350-18700 w.e.f. 01.10.2000 corresponding to the cda pay scale of rs.8000-13500. he, later superannuated on 28.02.2006. 4. applicant no.2 was appointed in the dot as engineering supervisor (phones) ["esp? for short] on 16.05.1967. he was promoted to the post of ae on 29.05.1981. in mtnl, he was promoted as ae also known as sde w.e.f. 01.03.1993. he was also given the officiating promotion to the post of de w.e.f. 13.07.1996. he was also absorbed in the mtnl as tes group œb? w.e.f 01.10.2000 vide order dated 23.04.2004. on 01.04.2006, he retired under the mtnls voluntary retirement scheme. 5. the applicant no.3 was initially appointed as esp in dot w.e.f. 18.12.1968. with effect from 01.01.1980, he was promoted as selection grade junior engineer and then as tes group œb? w.e.f. 11.05.1981. in mtnl, he was promoted to the grade of sr. a.d. vide order dated 15.05.1994 and as sts group œa? on ad hoc basis. later on, vide order dated 24.01.2004, he was absorbed in mtnl as sts group œa? (sde) with retrospective effect from 01.10.2000. he also took vrs on 01.04.2006. 6. the 4th applicant was initially appointed in dot as esp on 16.03.1967. he was promoted as sgje vide order dated 04.10.1977. again he was promoted to the post of ae w.e.f. 31.10.1979. in mtnl, he got promotion as senior assistant engineer on 19.04.1991 and then as de in officiating capacity with effect from 18.10.1994. he was absorbed in the mtnl w.e.f. 01.10.2000. finally, he superannuated from mtnl w.e.f. 31.07.2006. 7. the contention of the applicants is that as per the provisional terms and conditions for permanent absorption of dot staff (group œa? and œb?) in mtnl, there was a uniform formula for the pay fixation and fitment in the various grades officers drawing cda pay scale and they were to be placed in their respective equivalent ida pattern scale of pay from the date of their absorption and their pay in the said scale at the appropriate stage. in short, the increments already drawn by them were to be protected and their pay were to be fixed in the ida pay scale at the equivalent stage. similarly, their personal pay were also to be allowed to be protected and carried forward. accordingly, the respondent-mtnl have issued office order dated 22.03.2004 introducing the ida pay scale with effect from 01.10.2000 in replacement of existing pay scales for executives (group œb?) absorbed from dot/dts/dto in mtnl w.e.f. 01.10.2000:- sl.no. existing cda pay scale     corresponding ida pay scale       1. 6500-200-10500 10750-300-16750 (e2)     2. 7500-250-12000 13000-35- 18250 (e-3)     3. 8000-275-13500 14500-350-18700 (e-4)    4. 10000-325-15200 16000-400-20800 (e-5)   5. 12000-375-16500 17500-400-22300 (e-6)   6. 14300-400-18300 18500-450-23900 (e-7)   8. prior to the absorption of the applicants, they were drawing the pay scale of rs.10000-325-15200 as des. therefore, according to them, they should have been given the ida pay scale of rs.16000-400-20800 (e-5). on the other hand they were granted the ida scale of rs.14500-350-18700 (e-4) which was the replacement scale of the existing pay scale of rs.8000-275-13500. 9. the contention of the applicants is that since they were working on ad hoc basis as des (sts group œa? of its service), all formalities necessary for their regular promotions were completed but no promotion was given to them as their cases were not referred to the upsc. in fact, their promotions were approved by the minister-in-charge and on the orders of the tchq, they had received the charge much prior to their absorption by the respondents. therefore, according to them, respondents should have treated them as regular group œa? officers from the date of their regular absorption, but they committed an error by treating them as tes group œb? officers. moreover, they have also fixed their pay scale in corresponding ida pay scale. the respondents have granted equal number of increments in the ida pay scale to every other employee except the applicants. in this regard they have relied upon the relevant terms and conditions of absorption which reads as under:- œpay scales, perks and allowances the equivalent ida pay scales applicable as per annexure œa?. these are provisional and subject to modifications, if necessary. the pay scales, perks and allowances as recommended by justice mohan committee and duly approved by dpr vide memo no.2(49)/98-dpe(wc) dated 25.06.1999 will be applicable to all group œa?. and œb? officers, jtos, jao, je (civil) and je (electrical). there will be a uniform formula for the pay fixation and fitment in the various grades officers on their absorption in the mtnl drawing cda pay scale will be placed in their respective equivalent ida pattern scale of pay from the date of absorption and their pay in that scale on the ida pattern will be fixed at the appropriate stage. in short, the increment already drawn by them will be protected and they will be fixed in the ida pay scale at the equivalent stage. similarly, their personal pay will be allowed to be protected and carried forward?. 10.  they have, therefore, submitted that either the respondents should have treated them as sts group œa? officers of its or their annual increments drawn by them in cda pay scale should be taken into consideration for fixation of their pay in the ida pay scale. instead, their pay scale has been fixed in their substantive grade, i.e., tes group œb? without protecting their annual increments to which they were entitled on the date of their absorption. 11.  the applicants have also submitted that similarly placed employees had approached this tribunal in ta no.220/2009  shri s.m. lal and others vs. mtnl and it was decided on 20.01.2010. they were also absorbed in the service of the mtnl in the cadre of telecom engineering service (tes group œb?) w.e.f. 01.10.2000 by order dated 24.01.2004. they were also working in the senior time scale (sts) of the indian telecommunication service (its) as group œa? officers since 1996. the relief sought by them was to direct the respondents to treat them as regular divisional engineers with effect from the date of their ad hoc promotion with all consequential benefits. the aforesaid ta was allowed by this tribunal vide order dated 20.01.2010 and directed the respondents to consider the applicants for promotion to its group œa? service in senior time scale at the time of their absorption in mtnl with all consequential benefits. the respondents challenged the aforesaid order before the honble high court of delhi in w.p. ( c) no.4936/2010 but the high court, vide its judgment dated 25.02.2011, dismissed it by a detailed order. the respondents challenged the aforesaid order of the high court before the supreme court by way of special leave to appeal (civil) no(s).18779/2011. the supreme court stayed the aforesaid order on 27.09.2011. thereafter, vide order dated 05.12.2012, leave was granted in the said appeal. 12.  the applicants, have, therefore, sought an alternate relief in this case stating that for any reason, if the apex court allow the aforesaid slp and reject the case of the respondents therein, the right of the applicants to get the increments received in the past service counted for fixation of his pay on their absorption in mtnl may be defeated. 13.  the respondents have filed their reply. they have submitted that the applicants cannot approbate and re-approbate at the same time. rather, they should make up their mind as to whether they would like to seek the first prayer, namely, refixation of their pay in the cda pay scale as on 01.10.2000 in the corresponding ida pay scale at the appropriate stage by granting same number of annual increment as they had already drawn in cda pay scale or they should be treated as regularly appointed divisional engineers on the date of their permanent absorption with respondent no.2 on 01.10.2000 with all consequential benefits. but in any case, both the aforesaid reliefs cannot be claimed by them as they are contradictory to each other. 14.  on merits, the learned counsel for the respondents has submitted that they have followed the accurate methodology of fixing the pay of the applicants. further, they have stated that after the applicants had opted for vrs, they cannot seek their pay to be refixed. therefore, their request is barred by the conditions prescribed in the scheme. they have further stated that the applicants were absorbed in terms of the order dated 08.05.2000 laying down various terms and conditions. one of the conditions was as under:- œ3. selection of officers opting for mtnl will be strictly on the basis of their seniority in their respective cadre. since due to litigation, dpc in some of the services could not be conducted for quite long time, hence the officers promoted on tchq orders will be treated as promoted cadre provided they have assumed the charge of higher cadre?. 15.  further, according to the respondents, nowhere in the aforesaid terms and conditions, there was any mention of promotion on ad hoc basis. the applicants were the employees of the dot when they were holding the post of divisional engineer on ad hoc basis. ad hoc promotions given to them are under the rules governing the department of telecommunication. recommendation of the upsc was mandatory in all such promotions. as regards their absorption in mtnl is concerned, they were to be absorbed in substantive grade and post and not on the post on which they were working on officiating/ad hoc basis as per the terms and conditions for permanent absorption of the group œa? and œb? officers in mtnl. the relevant part of the said terms and conditions is produced as under:- œ2(i). from the said date such employee belonging to group œa? and œb? who opt for absorption into mtnl will continue to carry their existing designation, central government pay scales and other allowances as are presently drawn by them on the date of absorption till their changeover to equivalent ida related pay scales..... 16.  they have also stated that the case of the applicants regarding pay fixation have been checked up thoroughly and it has been found that their pay has been fixed correctly while switching over from cda to ida pay scale in mtnl. as per the guidelines of the corporate office issued vide their office order no.mtnl/co/pers/gr.b option form/2003, dated 22.03.2004, the pay has been fixed in terms of para 2(a), 2(c ) and 2(d). following were the terms according to which the ida pay scales were fixed:- œ(a)in respect of the dot/dts/dto group œb? officers, on absorption in mtnl w.e.f. 01.10.2000, the basic pay of the executives as on 01.10.2000 in the ida pay scales would be fixed at the stage corresponding to the stage at which they had reached under cda pay scale on 30.09.2000, i.e., pay fixation will be on point to point basis. (b). the normal date of annual increment will remain unchanged. the executives, whose pay is fixed in ida scale, as above, will continue to draw annual increment on the normal date he would have drawn increment had he continued in the cda pay scale, if otherwise due/admissible. (c). the executives who reach the maximum of their pay scales will be entitled to a maximum of three stagnation increments, as per dpe guidelines. (d).the pay of the executives who are officiating in high grade on or before 01.10.2000 will be fixed in substantive/regular grade as on 01.10.2000 and thereafter their pay in the higher grade will be fixed under normal frs applicable to the promoted grade. however, their date of increment will be regulated as per para 2(b) above?. 17.  the learned counsel for the respondents has also submitted that as per para 8.12 of vrs availed of by the applicants, payment made under the scheme will be construed as payment in full and final settlement and in complete satisfaction of all claims of the employees and it will not be reopened for any reason whatsoever. they have also relied upon para 8.18 of the said scheme wherein it has been held as under:- œ8.18 arrears of wages if any due to revision of wages retrospectively, in future for promotion from a retrospective date, will not entitle the vr optee claim in the said amount, and the same shall not be entitled for revision of vr compensation one disbursed?. 18.  we have heard the learned counsel for the applicant shri d.s. chaudhary and the learned counsel for the respondents ms. rachna joshi issar with ms. ambreen rasool and mr. naseer alam. first of all, we may observe that all the applicants herein have not sought voluntary retirement. applicants no.1 and 4 have superannuated from service w.e.f. 28.02.2006 and 31.07.2006 respectively. therefore, the mtnls vr scheme is not applicable in all the cases. further, there is no doubt that the applicants are similarly situated as the applicants in ta no.220/2009 shri s.m.lal and others vs. mtnl (supra). their grievance was that they were absorbed in the service of the mtnl in the cadre of tes group œb? w.e.f. 01.10.2000 vide order dated 24.01.2004 but the service rendered by them in sts as group œa? officers of the indian telecommunication service since 1996 has not been taken into consideration for their absorption and pay fixation. after detailed discussion in the matter, this tribunal, vide order dated 20.01.2010, allowed the said ta and directed the respondents to consider them in senior time scale at the time of their absorption in respondent-mtnl with all consequential benefits. the respondents have challenged the aforesaid order unsuccessfully before the honble high court of delhi vide w.p. (c ) no.4936/2010 (supra) decided on 25.02.2011. the high court dismissed the aforesaid writ petition and upheld the orders of this tribunal. however, the respondents-mtnl has challenged the aforesaid order of the high court before the supreme court in special leave to appeal (civil) no(s).18779/2011 (supra). the apex court stayed the aforesaid order of this tribunal as well as of the high court and the matter is still pending. therefore, in our considered view, applicants in this oa, being similar to applicants in ta/wp/slp, have to wait for the final judgment of the apex court in the matter. 19.  as regards the alternate prayer of the applicants is concerned, the applicants no.2 and 3 being the beneficiaries of the executive voluntary retirement scheme, 2005, they are not entitled for the arrears of wages, if any, due to revision of wages retrospectively or due to future promotion from retrospective date. they are also not entitled for any revision in vrs compensation wages which has already been disbursed. as far as other applicants are concerned, they are precluded from seeking the alternate prayer, but not before the pronouncement of the judgment in the pending case before the apex court. 20. with the aforesaid observation, this oa stands disposed of. no costs.
Judgment:

G. George Paracken, M (J).

The Applicants in this Original Application have sought the following reliefs:-

(i) The Respondents be directed to re-fix the pay of the Applicants drawn by them in CDA pay scale as on 01.10.2000 in the corresponding IDA pay scale at an appropriate stage by granting same number of annual increments as they had already drawn in the CDA pay scale.

OR

The Applicants be treated as regularly appointed Divisional Engineers on the date of their permanent absorption with Respondent No.2, i.e. 01.10.2000 and all the consequential benefits be also allowed to them.

(ii)  One annual increment may be allowed to the applicants on 01.10.2000 to remove their pay anomaly.

(iii)  Cost of the proceedings may be allowed.

(iv)Any other order(s) as deemed fit and proper to secure the ends of justice may be passed?.

2. The brief facts of the case are that the Respondent No.2, namely, Ministry of Communications and IT constituted the Respondent No.1, namely, the MTNL with effect from 01.04.1986 and thereafter the Tele-communication Service in New Delhi and Bombay (Mumbai) under the Respondent No.2 was transferred to it. The entire staff of Respondent No.2 posted at that time in Delhi Telephones including the Applicants were also transferred on deemed deputation to Respondent No.1 as on where is basis.

3. Applicant No.1 was appointed in the Department of Telecommunications (œDoT? for short) as Engineering Supervisor on 16.3.1967. Thereafter, he was promoted to the post of Assistant Engineer (œAE? for short) w.e.f. 12.05.1977. While in MTNL, he was promoted as AE also known as Sub Divisional Engineer (œSDE? for short) w.e.f 01.09.1993 and then as Divisional Engineer Telephones (œDET? for short) on officiating basis w.e.f. 23.09.1996. He continued to hold the aforesaid post on ad hoc basis till he was absorbed in MTNL on 24.01.2004 with retrospective effect from 01.10.2000 against the regular post of SDE. Subsequently, vide MTNLs letter dated 22.03.2004, the IDA pay scales were introduced with effect from 01.10.2000 for the Executives (Group œB?) including SDE who were given pay scale of Rs14500-350-18700 w.e.f. 01.10.2000 corresponding to the CDA pay scale of Rs.8000-13500. He, later superannuated on 28.02.2006.

4. Applicant No.2 was appointed in the DoT as Engineering Supervisor (Phones) ["ESP? for short] on 16.05.1967. He was promoted to the post of AE on 29.05.1981. In MTNL, he was promoted as AE also known as SDE w.e.f. 01.03.1993. He was also given the officiating promotion to the post of DE w.e.f. 13.07.1996. He was also absorbed in the MTNL as TES Group œB? w.e.f 01.10.2000 vide order dated 23.04.2004. On 01.04.2006, he retired under the MTNLs Voluntary Retirement Scheme.

5. The Applicant No.3 was initially appointed as ESP in DoT w.e.f. 18.12.1968. With effect from 01.01.1980, he was promoted as Selection Grade Junior Engineer and then as TES Group œB? w.e.f. 11.05.1981. In MTNL, he was promoted to the grade of Sr. A.D. vide order dated 15.05.1994 and as STS Group œA? on ad hoc basis. Later on, vide order dated 24.01.2004, he was absorbed in MTNL as STS Group œA? (SDE) with retrospective effect from 01.10.2000. He also took VRS on 01.04.2006.

6. The 4th Applicant was initially appointed in DoT as ESP on 16.03.1967. He was promoted as SGJE vide order dated 04.10.1977. Again he was promoted to the post of AE w.e.f. 31.10.1979. In MTNL, he got promotion as Senior Assistant Engineer on 19.04.1991 and then as DE in officiating capacity with effect from 18.10.1994. He was absorbed in the MTNL w.e.f. 01.10.2000. Finally, he superannuated from MTNL w.e.f. 31.07.2006.

7. The contention of the Applicants is that as per the provisional terms and conditions for permanent absorption of DoT Staff (Group œA? and œB?) in MTNL, there was a uniform formula for the pay fixation and fitment in the various grades officers drawing CDA pay scale and they were to be placed in their respective equivalent IDA pattern scale of pay from the date of their absorption and their pay in the said scale at the appropriate stage. In short, the increments already drawn by them were to be protected and their pay were to be fixed in the IDA pay scale at the equivalent stage. Similarly, their personal pay were also to be allowed to be protected and carried forward. Accordingly, the Respondent-MTNL have issued Office Order dated 22.03.2004 introducing the IDA pay scale with effect from 01.10.2000 in replacement of existing pay scales for Executives (Group œB?) absorbed from DoT/DTS/DTO in MTNL w.e.f. 01.10.2000:-

Sl.No. Existing CDA Pay Scale     Corresponding IDA Pay Scale       1. 6500-200-10500 10750-300-16750 (E2)     2. 7500-250-12000 13000-35- 18250 (E-3)     3. 8000-275-13500 14500-350-18700 (E-4)    4. 10000-325-15200 16000-400-20800 (E-5)   5. 12000-375-16500 17500-400-22300 (E-6)   6. 14300-400-18300 18500-450-23900 (E-7)   8. Prior to the absorption of the Applicants, they were drawing the pay scale of Rs.10000-325-15200 as DEs. Therefore, according to them, they should have been given the IDA pay scale of Rs.16000-400-20800 (E-5). On the other hand they were granted the IDA scale of Rs.14500-350-18700 (E-4) which was the replacement scale of the existing pay scale of Rs.8000-275-13500.

9. The contention of the Applicants is that since they were working on ad hoc basis as DEs (STS Group œA? of ITS Service), all formalities necessary for their regular promotions were completed but no promotion was given to them as their cases were not referred to the UPSC. In fact, their promotions were approved by the Minister-in-charge and on the orders of the TCHQ, they had received the charge much prior to their absorption by the Respondents. Therefore, according to them, Respondents should have treated them as regular Group œA? officers from the date of their regular absorption, but they committed an error by treating them as TES Group œB? officers. Moreover, they have also fixed their pay scale in corresponding IDA pay scale. The Respondents have granted equal number of increments in the IDA pay scale to every other employee except the Applicants. In this regard they have relied upon the relevant terms and conditions of absorption which reads as under:-

œPay Scales, Perks and Allowances

The equivalent IDA pay scales applicable as per Annexure œA?. These are provisional and subject to modifications, if necessary. The pay scales, perks and allowances as recommended by Justice Mohan Committee and duly approved by DPR vide Memo No.2(49)/98-DPE(WC) dated 25.06.1999 will be applicable to all Group œA?. and œB? Officers, JTOs, JAO, JE (Civil) and JE (Electrical).

There will be a uniform formula for the pay fixation and fitment in the various Grades Officers on their absorption in the MTNL drawing CDA pay scale will be placed in their respective equivalent IDA pattern scale of pay from the date of absorption and their pay in that scale on the IDA pattern will be fixed at the appropriate stage. In short, the increment already drawn by them will be protected and they will be fixed in the IDA pay scale at the equivalent stage. Similarly, their Personal pay will be allowed to be protected and carried forward?.

10.  They have, therefore, submitted that either the Respondents should have treated them as STS Group œA? officers of ITS or their annual increments drawn by them in CDA pay scale should be taken into consideration for fixation of their pay in the IDA pay scale. Instead, their pay scale has been fixed in their substantive grade, i.e., TES Group œB? without protecting their annual increments to which they were entitled on the date of their absorption.

11.  The Applicants have also submitted that similarly placed employees had approached this Tribunal in TA No.220/2009  Shri S.M. Lal and Others Vs. MTNL and it was decided on 20.01.2010. They were also absorbed in the service of the MTNL in the cadre of Telecom Engineering Service (TES Group œB?) w.e.f. 01.10.2000 by order dated 24.01.2004. They were also working in the Senior Time Scale (STS) of the Indian Telecommunication Service (ITS) as Group œA? officers since 1996. The relief sought by them was to direct the Respondents to treat them as regular Divisional Engineers with effect from the date of their ad hoc promotion with all consequential benefits. The aforesaid TA was allowed by this Tribunal vide order dated 20.01.2010 and directed the Respondents to consider the Applicants for promotion to ITS Group œA? service in Senior Time Scale at the time of their absorption in MTNL with all consequential benefits. The Respondents challenged the aforesaid order before the Honble High Court of Delhi in W.P. ( C) No.4936/2010 but the High Court, vide its judgment dated 25.02.2011, dismissed it by a detailed order. The Respondents challenged the aforesaid order of the High Court before the Supreme Court by way of Special Leave to Appeal (Civil) No(s).18779/2011. The Supreme Court stayed the aforesaid order on 27.09.2011. Thereafter, vide order dated 05.12.2012, leave was granted in the said Appeal.

12.  The Applicants, have, therefore, sought an alternate relief in this case stating that for any reason, if the Apex Court allow the aforesaid SLP and reject the case of the Respondents therein, the right of the Applicants to get the increments received in the past service counted for fixation of his pay on their absorption in MTNL may be defeated.

13.  The Respondents have filed their reply. They have submitted that the Applicants cannot approbate and re-approbate at the same time. Rather, they should make up their mind as to whether they would like to seek the first prayer, namely, refixation of their pay in the CDA pay scale as on 01.10.2000 in the corresponding IDA pay scale at the appropriate stage by granting same number of annual increment as they had already drawn in CDA pay scale or they should be treated as regularly appointed Divisional Engineers on the date of their permanent absorption with Respondent No.2 on 01.10.2000 with all consequential benefits. But in any case, both the aforesaid reliefs cannot be claimed by them as they are contradictory to each other.

14.  On merits, the learned counsel for the Respondents has submitted that they have followed the accurate methodology of fixing the pay of the Applicants. Further, they have stated that after the Applicants had opted for VRS, they cannot seek their pay to be refixed. Therefore, their request is barred by the conditions prescribed in the Scheme. They have further stated that the Applicants were absorbed in terms of the order dated 08.05.2000 laying down various terms and conditions. One of the conditions was as under:-

œ3. Selection of officers opting for MTNL will be strictly on the basis of their seniority in their respective cadre. Since due to litigation, DPC in some of the services could not be conducted for quite long time, hence the officers promoted on TCHQ orders will be treated as promoted cadre provided they have assumed the charge of higher cadre?.

15.  Further, according to the Respondents, nowhere in the aforesaid terms and conditions, there was any mention of promotion on ad hoc basis. The Applicants were the employees of the DoT when they were holding the post of Divisional Engineer on ad hoc basis. Ad hoc promotions given to them are under the Rules governing the Department of Telecommunication. Recommendation of the UPSC was mandatory in all such promotions. As regards their absorption in MTNL is concerned, they were to be absorbed in substantive grade and post and not on the post on which they were working on officiating/ad hoc basis as per the terms and conditions for permanent absorption of the Group œA? and œB? officers in MTNL. The relevant part of the said terms and conditions is produced as under:-

œ2(i). From the said date such employee belonging to Group œA? and œB? who opt for absorption into MTNL will continue to carry their existing designation, Central Government pay scales and other allowances as are presently drawn by them on the date of absorption till their changeover to equivalent IDA related pay scales.....

16.  They have also stated that the case of the Applicants regarding pay fixation have been checked up thoroughly and it has been found that their pay has been fixed correctly while switching over from CDA to IDA pay scale in MTNL. As per the guidelines of the Corporate Office issued vide their Office Order No.MTNL/CO/Pers/Gr.B Option Form/2003, dated 22.03.2004, the pay has been fixed in terms of Para 2(a), 2(c ) and 2(d). Following were the terms according to which the IDA pay scales were fixed:-

œ(a)In respect of the DoT/DTS/DTO Group œB? officers, on absorption in MTNL w.e.f. 01.10.2000, the basic pay of the executives as on 01.10.2000 in the IDA pay scales would be fixed at the stage corresponding to the stage at which they had reached under CDA pay scale on 30.09.2000, i.e., pay fixation will be on point to point basis.

(b). The normal date of annual increment will remain unchanged. The executives, whose pay is fixed in IDA scale, as above, will continue to draw annual increment on the normal date he would have drawn increment had he continued in the CDA pay scale, if otherwise due/admissible.

(c). The executives who reach the maximum of their pay scales will be entitled to a maximum of three stagnation increments, as per DPE guidelines.

(d).The pay of the executives who are officiating in high grade on or before 01.10.2000 will be fixed in substantive/regular grade as on 01.10.2000 and thereafter their pay in the higher grade will be fixed under normal FRs applicable to the promoted grade. However, their date of increment will be regulated as per para 2(b) above?.

17.  The learned counsel for the Respondents has also submitted that as per para 8.12 of VRS availed of by the Applicants, payment made under the scheme will be construed as payment in full and final settlement and in complete satisfaction of all claims of the employees and it will not be reopened for any reason whatsoever. They have also relied upon para 8.18 of the said Scheme wherein it has been held as under:-

œ8.18 Arrears of wages if any due to revision of wages retrospectively, in future for promotion from a retrospective date, will not entitle the VR optee claim in the said amount, and the same shall not be entitled for revision of VR compensation one disbursed?.

18.  We have heard the learned counsel for the Applicant Shri D.S. Chaudhary and the learned counsel for the Respondents Ms. Rachna Joshi Issar with Ms. Ambreen Rasool and Mr. Naseer Alam. First of all, we may observe that all the Applicants herein have not sought voluntary retirement. Applicants No.1 and 4 have superannuated from service w.e.f. 28.02.2006 and 31.07.2006 respectively. Therefore, the MTNLs VR Scheme is not applicable in all the cases. Further, there is no doubt that the Applicants are similarly situated as the Applicants in TA No.220/2009 Shri S.M.Lal and Others Vs. MTNL (supra). Their grievance was that they were absorbed in the service of the MTNL in the cadre of TES Group œB? w.e.f. 01.10.2000 vide order dated 24.01.2004 but the service rendered by them in STS as Group œA? officers of the Indian Telecommunication Service since 1996 has not been taken into consideration for their absorption and pay fixation. After detailed discussion in the matter, this Tribunal, vide order dated 20.01.2010, allowed the said TA and directed the Respondents to consider them in Senior Time Scale at the time of their absorption in Respondent-MTNL with all consequential benefits. The Respondents have challenged the aforesaid order unsuccessfully before the Honble High Court of Delhi vide W.P. (C ) No.4936/2010 (supra) decided on 25.02.2011. The High Court dismissed the aforesaid Writ Petition and upheld the orders of this Tribunal. However, the Respondents-MTNL has challenged the aforesaid order of the High Court before the Supreme Court in Special Leave to Appeal (Civil) No(s).18779/2011 (supra). The Apex Court stayed the aforesaid order of this Tribunal as well as of the High Court and the matter is still pending. Therefore, in our considered view, Applicants in this OA, being similar to applicants in TA/WP/SLP, have to wait for the final judgment of the Apex Court in the matter.

19.  As regards the alternate prayer of the Applicants is concerned, the Applicants No.2 and 3 being the beneficiaries of the Executive Voluntary Retirement Scheme, 2005, they are not entitled for the arrears of wages, if any, due to revision of wages retrospectively or due to future promotion from retrospective date. They are also not entitled for any revision in VRS compensation wages which has already been disbursed. As far as other Applicants are concerned, they are precluded from seeking the alternate prayer, but not before the pronouncement of the judgment in the pending case before the Apex Court.

20. With the aforesaid observation, this OA stands disposed of. No costs.