Joseph Chacko v. The Chairman Cum Managing Director, BSNL Corporate Office & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY ,THE 04TH DAY OF SEPTEMBER 2018 / 13TH BHADRA, 1940** **OP (CAT).No. 162 of 2018** **AGAINST THE ORDER/JUDGMENT IN OA 1140/2013 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 26.2.2015** ## **PETITIONER/S:** **JOSEPH CHACKO AGED 66 YEARS S/O LATE SHRI JOSEPH JOSEPH, RETIRED NON EXECUTIVE EMPLOYEE (STS) OF BSNL, RESIDING AT 48/1015, B-6, DESHABHIMANI ROAD, ELAMAKKARA P.O., KOCHI-682026.** **BY ADV. SREERAJ R.** ## **RESPONDENT/S:** **1 THE CHAIRMAN CUM MANAGING DIRECTOR BSNL CORPORATE OFFICE, BHARAT SANCHAR BHAVAN, JANPATH, NEW DELHI - 110001. 2 THE ASSISTANT GENERAL MANAGER (PEN & TE) BSNL CORPORATE OFFICE, 5TH FLOOR, BHARAT SANCHAR BHAVAN, JANPATH, NEW DELHI-110001. 3 UNDER SECRETARY TO GOVERNMENT OF INDIA MINISTRY OF COMMUNICATIONS AND INFORMATION TECHNOLOGY, DEPARTMENT OF TELECOMMUNICATIONS, SANCHAR BHAVAN, 20, ASHOKA ROAD, NEW DELHI – 110001.** ## **R1 & R2 BY ADV.T.SANJAY,STANDING COUNSEL R3-N.NAGARESH, ASSISTANT SOLICITOR GENERAL** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 04.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 OP (CAT).No. 162 of 2018 ## **JUDGMENT** ## **C.T.RAVIKUMAR.J.** The applicant in OA No.1140/2013 filed this Original Petition on being aggrieved by the order passed thereon by the Central Administrative Tribunal, Ernakulam Bench, on 26.2.2015. On 31.10.2011 he retired on attaining the age of superanuation from the service of Bharat Sanchar Nigam Ltd ('BSNL' for short). He was originally recruited by the Post and Telegraph Department. After the formation of BSNL on 1.10.2000, a new promotion policy styled as Non-Executive Promotion Policy (NEPP for short) was introduced on 23.3.2010 as per Order No.27-7/2008-TE-II. The same is produced in this Original Petition as Annexure A4 in Ext P1. In terms of para 3.2 of Annexure A4 in Ext P1 on his acquiring the requisite years of service he was granted the first financial upgradation and was granted NE-11 pay scale w.e.f 1.10.2004. As noticed hereinbefore, he had retired from service only on 31.10.2011, i.e., after putting a further service of more than 7 years since the grant of NE-11 pay scale. 2. The grievance of the petitioner is that in the meanwhile pay revision had taken place and consequently the scales of pay of NE-1 to NE-11 were revised as per Annexure A12. However, no pay revision was made in relation to NE-12 scale. This was the 3 OP (CAT).No. 162 of 2018 situation when the petitioner retired from service. After the retirement of the petitioner as per Annexure A3 in Ext P1 revised NE-12 pay scale was introduced. Contending that in terms of para 3.2 of Annexure A4 in Ext P1 he is entitled to get revision of pay and pension based on the revised NE-12 scale introduced as per Annexure A3 he approached the authorities. However, his representation remained unconsidered. It is in the said circumstances that he was constrained to approach the Tribunal by filing OA No.1140/2013. The main challenge of the petitioner against Annexure A3 is that it was given only prospective application. Attributing arbitrariness in the matter of fixation of the date for its operation, relying on the principle laid down by the Apex Court in **D.S.Nakara and Others vs Union of India ((1983) 1 SCC 305)** , the petitioner filed the above mentioned Original Application and sought for appropriate, consequential reliefs. The claim and contentions of the petitioner were resisted by the respondents. After considering the rival contentions as per the impugned order the Tribunal dismissed the Original Application. It is in the said circumstances that the captioned Original Petition has been filed. 3. We have heard Sri.Sreeraj R, the learned counsel for the petitioner, Sri.T.Sanjay,the learned Standing Counsel appearing for respondents 1 and 2 and Sri.N.Nagaresh, the Assistant Solicitor 4 OP (CAT).No. 162 of 2018 General appearing for the third respondent. 4. The learned counsel appearing for the petitioner, virtually, reiterated the contentions raised unsuccessfully before the Tribunal. The main challenge against Annexure A3 is that it was made applicable only prospectively and the said action is arbitrary. It is to buttress the said contention that the petitioner relied on the decisions of the Apex Court in **D.S.Nakara's** case(supra) and also in **Union of India vs Hemraj Singh Chauhan (AIR 2010 SC 1682)** and **State of West Bengal vs Anwar Ali Sarkar( AIR 1952 SC 75).** The learned counsel appearing for the respondents submitted that the question was considered by the Tribunal in its true perspective and it was rightly declined by the Tribunal. According to him, since the impugned order is not infected with any perversity or illegality no interference in exercise of the power of judicial review is warranted. 5. For appreciating the rival contentions it is only appropriate to refer to certain basic undisputed and indisputable facts as also Annexure A4 in Ext P1. As noticed hereinbefore Annexure A4 is the NEPP policy, based on which the petitioner sought for the reliefs. It is only worthwhile to extract paragraphs 1 and 3.2 of Annexure A4. They read thus:- I. Time Bound IDA Scale Up-gradation Policy 5 OP (CAT).No. 162 of 2018 1.Scope:-Non-executive employees (absorbed or BSNL recruited), who are working on regular establishment of BSNL, as on 1.4.2008 or after, in a substantive Non-Executive post and drawing Non-Executive Pay Scales of NE-1 to NE-10 will be covered by this policy . Maximum 4(four) up-gradations will be allowed in BSNL, irrespective of any up-gradation provided to such emplolyee before formation of BSNL. 3.2 Such non-Executives who have been recruited by DoT prior to 1/10/200 will, as a concession, be considerfed for Time Bound IDA pay scale up-gradations in the following manner: a. First Time Bound IDA pay scale up-gradation to the next igher nonexecutive IDA pay scale will be considered after 4 years of service in the IDA pay scale held by the employee as on 1/10/2000. This pay upgradation will be notional if the date of upgradation is before 1.4.2008. The actual benefits of pay fixaiton will be paid only from 1.4.2008. b. Second Time Bound IDA pay scale up-gradation to the next higher IDA pay scale will be considered after 7 years of service in first upgraded non-executive IDA pay scale. 6. The petitioner was recruited by the erstwhile P & T Department which was subsequently bifurcated into DoT and Postal Department. The fact that subsequent to his absorption to BSNL, the petitioner was granted financial upgradation in terms of para 3.2 of Annexure A4 itself would reveal that he is entitled to get the benefit flowing from that order. Upon putting the requisite 6 OP (CAT).No. 162 of 2018 years of service in terms of para 3.2 of Annexure A4 the petitioner herein was granted the first financial upgradation and in fact, he had also obtained NE-11 pay scale with effect from 1.10.2004. We have already noted that while he was in service based on pay revision NE-1 to NE-11 pay scales were revised. NE-12 pay scale was not revised while he was in service. By virtue of the grant of NE-11 pay scale based on granting of the first financial upgradation the pay scale to which the petitioner was entitled became higher than the then existing NE-12 pay scale. Prior to the introduction of the revised NE-12 scale the petitioner had retired from the service of BSNL on 31.10.2011. Annexure A3 would reveal that it was introduced only as per order dated 22.2.2012. As per the said order NE-12 pay scale was revised to Rs 16,390-33,830. The pre-revised NE-12 pay scale was Rs 9200250-13200 for non-executives in BSNL. Condition No.3 in Annexure A3 reads as follows:- The proposed IDA scale has to be introduced with prospective effect after making requisite modifications in their promotion policy. 7. The said clause which makes the revision of the said pay scale only with prospective effect is under challenge. A careful scanning of the impugned order passed by the Tribunal would reveal that the Tribunal repelled the contention made by the petitioner relying on the aforementioned decisions including the 7 OP (CAT).No. 162 of 2018 decision in **D.S.Nakar's** case(supra). In fact, the petitioner relied on the decision in **D.S.Nakar's** case(supra) to contend that the classification of pensioners was unreasonable and it is having no nexus with the objecr sought to be achieved. In short, according to the petitioner, he could not obtain the second financial upgradation virtually, NE-12 pay scale while he was in service solely due to the delay on the part of the authority in introducing the revised NE-12 pay scale. In short, according to him, in such circumstances the said delay on the part of the authorities shall not be permitted to recoil on him. 8. The contention of arbitrary and unreasonable discrimination founded on the dictum in **D.S.Nakara's** case(supra) was repelled by the Tribunal holding that the dictum in **D.S.Nakara's** case(supra) is totally inapplicable to the facts obtained in this case. Evidently, in **D.S.Nakara's** case(supra) what is prohibited is discrimination of homogeneous class of pensioners. The Tribunal on appreciating the contentions and facts obtained from this case found that the upgraded pay scale was never in existence while the petitioner was in service. In other words, the Tribunal found that it was introduced much after the retirement of the petitioner. The Tribunal further found that it is the discretion of the employer to revise the pay scale. Whatever that be, it is a fact that in the case on hand the petitioner is claiming the relief based 8 OP (CAT).No. 162 of 2018 on para 3.2 of Annexure A4. A perusal of para 3.2 of Annexure A4 would reveal that Time Bound IDA pay scale upgradations were made grantable to non-executives recruited by DoT prior to 1.10.2000 only as a concession. This fact is not at all disputed and in fact it cannot be disputed. Taking into account the said position that it was introduced only as a concession and further that it was introduced much after the retirement of the petitioner we are of the view that the contention of the petitioner that there is invidious discrimination in the matter of granting of the benefits flowing from Annexure A3 cannot be sustained. In that view of the matter, we do not find any reason to interfere with the disinclination shown by the Tribunal in applying the principle in **D.S.Nakara's** case(supra) and the consequential denial of reliefs to the petitioner. In the result, this Original Petition fails and accordingly it is dismissed. **SD/-** **C.T.RAVIKUMAR Judge SD/-** **A.M.BABU Judge** Sks/5.9.18 9 OP (CAT).No. 162 of 2018 ## **APPENDIX** ## **PETITIONER'S/S' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION NO.1140/2013 ON THE FILE OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE RESPONDENTS 1 AND 2 IN OA 1140/2013 ON THE FILE OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P3 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED ON BEHALF OF THE RESPONDENTS 1 & 2 IN OA 1140/2013 ON THE FILE OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P4 TRUE COPY OF THE STATEMENT FILED ON BEHALF OF THE 3RD RESPONDENT IN OA 1140/2013 ON THE FILE OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P5 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT (PETITIONER HEREIN) IN OA 1140/2013 ON THE FILE OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P6 TRUE COPY OF THE FINAL ORDER DATED 26/02/2015 IN OA 1140/2013 ON THE FILE OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P7 TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY DR.(COL) P. RAMACHANDRANKUTTY, CONSULTANT PSYCHIATRIST, LOURDES HOSPITAL.**