Mathews Paul.K v. Bharat Sanchar Nigam Limited & The Chief General Manager, BSNL, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 16TH DAY OF JANUARY 2020 / 26TH POUSHA, 1941 O.P (CAT).No.316 OF 2019** **AGAINST THE ORDER IN O.A.407/2016 DATED 18-11-2019 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONER/ APPLICANT IN O.A.:** **MATHEWS PAUL.K, AGED 54 YEARS, S/O. K.V. PAILY, H R NO.199005548, ASSISTANT ENGINEER (ARCHITECT), BSNL, ADMINISTRATIVE BUILDING, KURIATHY, MANACUAD P O, THIRUVANANTHAPURAM-695009, RESIDING AT KOCHUPURACKAL HOUSE, SRWA-90, SNEHAPURI, KARUMAM P O, TRIVANDRUM-695002.** **BY ADV. SRI.G.SIVASANKAR** ## **RESPONDENTS/ RESPONDENTS IN O.A.:** **1 THE BHARAT SANCHAR NIGAM LIMITED, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, CORPORATE OFFICE, 20, ASHOKA ROA,D SANCHAR BHAVAN, NEW DELHI-110001.** **2 THE CHIEF GENERAL MANAGER, BHARATH SANCHAR NIGAM LIMITED, THIRUVANANTHAPURAM-695033.** **R1-R2 BY STANDING COUNSEL SRI.T.C.KRISHNA.** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 16-01-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **- 2 -** **OP(CAT).316 of 2019** **K.Vinod Chandran & V.G.Arun, JJ. ---------------------------------------O.P(CAT) No.316 of 2019-Z ---------------------------------------Dated this the 16[th] day of January, 2020** ## **JUDGMENT** ## **K. Vinod Chandran,J:** **The Tribunal affirmed the cancellation of the benefit of Assured Career Progression [ACP] earlier granted to the petitioner, against which the present Original Petition has been filed. The learned Counsel for the petitioner Sri.G.Sivasankar contended that Annexure A5 was cancelled by Annexure A7 and the petitioner cannot be dis-entitled for ACP. It is argued on the basis of Annexure A2 and the clarification to the doubt raised at serial No.33 that the petitioner's case squarely falls under such clarification.** **2. It is argued that the petitioner, who was appointed as Architectural Assistant Grade II in the Department of Telecommunications [DoT] was absorbed in the same category in Bharat Sanchar Nigam Limited [BSNL] on the latter's formation. Subsequent to the absorption, there was a re-designation of posts, by which the petitioner was designated as JTO (Arch), which again was the lowest post available in the BSNL. He had stagnated for 12 years without any promotion and hence, he is entitled to the** **- 3 -** **OP(CAT).316 of 2019** **financial up-gradation under the ACP Scheme. He was granted the same as per Annexure A9; but, later the same was withdrawn by the impugned order, produced at Annexure A11. The learned Counsel also relies on** _**State of Punjab and others v. Rafiq Masih (White Washer) and others**_ **[** _**(2015) 4 SCC 334**_ **] as clarified in** _**High Court of Punjab and Haryana and others v**_ **.** _**Jagdev Singh**_ **[** _**(2016) 14 SCC 267**_ **]. It is contended that there is no undertaking obtained from the petitioner at the time of grant of ACP and, hence, there could be no recovery made even if the cancellation is affirmed.** ## **3. The learned Standing Counsel for BSNL** **Sri.T.C.Krishna, however, refutes the claim of the petitioner by placing reliance on Annexure A10 produced in the OA. It is pointed out that there was a restructuring and abolition of posts of Architectural Assistant Grade II and Grade I and all were accommodated in the executive cadre of JTO (Arch), which had a pay scale above that of the Architectural Assistant in both grades under the DoT; which is also the promotion post of Architectural Assistant Grade I. The petitioner having been accommodated in an executive post in a far higher scale, cannot claim the benefit of ACP which is available only in cases of stagnation.** **- 4 -** **OP(CAT).316 of 2019** **4. The Tribunal relied on Annexure A2, on the clarification issued at Serial No.35, to accept the contentions of the official respondents.** **5. ACP Scheme seeks to mitigate the heart-burn of stagnation by at least providing financial up-gradation. As per the Scheme that existed earlier, an employee who stagnates in the entry post for 12 years and 24 years from the initial entry would be granted financial up-gradation on completion of the above periods. Hence, if an employee continues in his entry post for 12 years without promotion, on completion of the period he would be granted the scale of the promotion post, though the designation remains as such. In such circumstances, we do not think that there could be any claim made on the ground that, both in the DoT and BSNL the petitioner remained in the lowest cadre and his status never changed. As far as the status, we also have to notice the contention of the BSNL, that he has been upgraded to the post of JTO, which is an executive post within the BSNL, akin to a gazetted post in the DoT.** **6. We do not find any reliance possible to Annexures A5 and A7. Annexure A5 speaks of a financial up-gradation, in consonance with the ACP Scheme, made applicable to the BSNL until the Executive Promotion Policy is framed in the BSNL. It was noticed that as per the** **- 5 -** **OP(CAT).316 of 2019** **Executive Promotion Policy issued in 2007, any up-gradation due to an Executive on or before 01.10.2004, on the basis of earlier time bound policies, would be granted as per the options as a one time relaxation. This benefit has been provided as a one-time option for reason of Industrial DA [IDA] up-gradation on implementation of Executive Promotion Policy, as distinguished from Central DA (CDA). It was made clear that if the CDA scale up-gradation is opted by any Executive, only the equivalent IDA scale corresponding to the CDA scale would be applicable and no benefit under the ACP Scheme would be granted as against the upgraded pay scale. This Annexure A5 order was modified as per Annexure A7, providing a change of option to either for grant of ACP under the CDA scale with corresponding IDA or being upgraded under the IDA scale under the Executive Promotion Policy. This is not the controversy raised in the present case. The said orders have no application insofar as the petitioner is concerned.** **7. We see from Annexure A9, that the petitioner was granted up-gradation in the pre-revised IDA pay scale of Rs.11875-300-17275 as on 01.10.2006. Later, this was withdrawn as per Annexure A9 and he was granted first financial up-gradation under the ACP Scheme, in the pre-revised identical IDA pay scale. This grant of ACP was** **- 6 -** **OP(CAT).316 of 2019** **effective from 21.05.2002, which was cancelled by the impugned order and the up-gradation as on 01.10.2006 restored. The exercise of option, is not at all a question arising in this case and hence, we reiterate, Annexures A5 and A7 have no application. BSNL also considered the issue under the ACP Scheme and found that even if the financial up-gradation is granted under the ACP Scheme, the corresponding IDA scale is adopted, which was similar to that granted in the Executive Promotion Policy. Hence, there does not arise in the present case, a question, of option or lack of exercise of such option having prejudiced the applicant.** **8. We have to look at the issue squarely on the terms of the ACP Scheme. As is seen from Annexure A10, the hierarchy in the DoT with their corresponding pay scales were:** **Arch. Asstt. Grade II [5000-150-8000]; Arch. Asstt. Grade I [5500-175-9000]; Asstt.Architect [7500-250-12000]** **On formation of BSNL, the petitioner was absorbed there as Architectural Assistant Grade II itself. In the normal course, if he had stagnated for 12 years from his initial appointment in DoT, then he would have been entitled to the pay scale of Architectural Assistant Grade-I [Rs.5500-175-9000]. In the BSNL, when there was a** **- 7 -** **OP(CAT).316 of 2019** **restructuring and merger of posts, Architectural Assistant Grade-II and Grade I were merged into one and the same was re-designated as JTO(Arch.), in the executive cadre with pay scale of Rs.9850-250-14600. In such circumstances, it cannot be said that the petitioner had stagnated in the entry post or the entry scale. The entry post was Architectural Assistant Grade-II and on absorption in BSNL and subsequent restructuring of posts, he was granted a far higher post than that of his initial appointment. His next promotion post available in the DoT, i.e., the post of JTO (Arch.) with a higher pay scale than that of an Assistant Architect, was the promotion post of Architectural Assistant Grade-I, in DoT.** **9. We do not think the clarification at Serial No.33 applies to the petitioner at all. There, the issue focussed was with respect to a existing hierarchical promotion from Grade 'A' to Grade 'C', obtained by an employee; after which an intermediary Grade 'B; was introduced. The doubt was as to whether the employee would be deemed to have obtained two promotions. It was clarified that the intermediary Grade 'B' would have to be ignored and the employee can only be deemed to have been granted one promotion. There is no such circumstance arising in the present case.** **- 8 -** **OP(CAT).316 of 2019** **10. The clarification at Serial No.35 as found by the Tribunal is more apposite. There, the doubt expressed was as to whether placement in higher scales of pay as recommended by the Pay commissions or Committees set up to rationalise the cadres would be reckoned as promotions. It was clarified that when all the posts are placed in a higher scale of pay, with or without a change in the designation; without requirement of any new qualification for holding the post in the higher grade, not specified in the Recruitment Rules for the existing post, and without involving any change in responsibilities and duties, then the placement of the incumbents against such upgraded posts would not be treated as promotion or up-gradation. When however, rationalisation/restructuring involves creation of a number of new hierarchical grades in the rationalised set up and some of the incumbents in the pre-rationalised set up are placed in the hierarchy of the restructured set up, in a grade higher than the normal corresponding level, then it would be treated as a promotion post.** **11. Here, the petitioner was continuing as Architectural Assistant Grade II, entitled to be promoted to the post of Architectural Assistant Grade-I. The restructuring created merger of these two posts and re-designation of the same into an Executive cadre, akin to** **- 9 -** **OP(CAT).316 of 2019** **a gazetted post in Government of India with a far higher pay scale. It cannot be said that the petitioner stagnated in his entry post in the same pay scale. By the restructuring of cadre, the status and pay of the petitioner was upgraded, much more than even a grant of ACP. We do not find any reason to interfere with the orders of the Tribunal.** **12. Both sides have expressed their anxiety** **insofar as the petitioner having applied under the Voluntary Retirement Scheme. The petitioner's apprehension is that he would have to pay the entire amount in one go. The Standing Counsel for the respondent, on the other hand fears that otherwise there would be no chance of recovery if the petitioner is allowed to retire on VRS. It is in this context we have to look at** _**Rafiq Masih**_ **.** **13.** _**Rafiq Masih**_ **would not be applicable on the facts of this case, since it dealt with lower paid employees and the wrong fixation of pay having enriched them over the years. The Hon'ble Supreme Court held that in such circumstances there could be no recovery effected.** _**Rafiq Masih**_ **would not be applicable since the petitioner an Assistant Engineer (Arch.), is not a low paid employee, nor is he retiring within one year on superannuation nor was he working in a higher post. Further contention raised on** **- 10 -** **OP(CAT).316 of 2019** _**Jagdev Singh**_ **, cannot also be countenanced.** _**Jagdev Singh**_ **provided a rider to** _**Rafiq Masih**_ **and held that in cases where there is a specific undertaking enabling recovery, if excess amounts are found to be paid, then necessarily it could be recovered** _**de hors**_ **the status of the employee. The said declaration was again only in cases where** _**Rafiq Masih**_ **applies. In the case of the petitioner, we have already held that** _**Rafiq Masih**_ **does not apply and in such circumstances, recovery necessarily has to be effected. We direct that the recovery would be made in ten equal monthly instalments if the petitioner continues in employment. However, if he is allowed to be relieved on VRS, then necessarily the excess amounts paid to him would be recovered from the benefits paid on VRS.** **The Original Petition (CAT) would stand rejected with the above directions. Parties are left to suffer their respective costs.** **Sd/K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** **Vku/-** **- 11 -** **OP(CAT).316 of 2019** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF ORDER OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM, IN OANO.407 OF 2016 DATED 18.11.2019.** **EXHIBIT P2 THE TRUE COPY OF OA NO.407 OF 2016. EXHIBIT P2(A11) THE TRUE COPY OF THE ORDER NO, HRIII/325/CIVIL-ELECTRICAL/2010/71 DATED 11.08.2015 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P2(A13) THE TRUE COPY OF THE LETTER NO,. HRIII/3T25/CIVIL-ELECTRICAL/2010/77 DATED 09.03.2016 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P2(A15) THE TRUE COPY OF ORDER NO.HRIII/TBP/2015/12 DATED 05.04.2016 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P2(A18) THE TRUE COPY OF THE REVISED FIXATION DATED 03.05.2016 ISSUED BY THE ACCOUNTS OFFICER ON BEHALF OF THE 2ND RESPONDENT.** - **EXHIBIT P2(A1) THE TRUE COPY OF THE RELEVANT PAGES OF ACP SCHEME IN ORDER NO.35034/1//97-ESTT(D) DATED 09.09.1999 ISSUED ON BEHALF OF THE 1ST RESPONDENT.** - **EXHIBIT P2(A2) THE TRUE COPY OF THE OFFICE MEMORANDUM NO.35034/1/97-ESTT(D) (VOL.IV) DATED 18.07.2001 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P2(A3) THE TRUE COPY OF THE ORDER NO.05-08/2001 PERS-IV DATED 27.03.2002 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P2(A4) THE TRUE COPY OF THE MEMORANDUM NO.40061/2004-PERS-1, DATED 18.01.2007 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P2(A5) THE TRUE COPY OF THE ORDER NO.25-04-2006PERS II DATED 20.08.2007 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P2(A6) THE TRUE COPY OF THE ORDER NO.8(18)/CECC/TVM/2007/43 DATED 08.01.2008 ISSUED ON BEHALF OF THE 2ND RESPONDENT.** **- 12 -** **OP(CAT).316 of 2019** - **EXHIBIT P2(A7) THE TRUE COPY OF THE ORDER NO.1-70/2007-PER II, DATED 20.05.2010 ISSUED ON BEHALF OF THE 1ST RESPONDENT.** - **EXHIBIT P2(A8) THE TRUE COPY OF THE OPTION DATED 31.05.2010 SUBMITTED BY THE APPLICANT TO THE 2ND RESPONDENT.** - **EXHIBIT P2(A9) THE TRUE COPY OF THE ORDER NO.ST-III-325/CIVIL-ELECTR-2008/30 DATED 24.09.2019 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P2(A10) THE TRUE COPY OF THE LETTER NO.106-08/2013ARCH/126 DATED 10.07.2013 ISSUED ON BEHALF OF THE RESPONDENT.** - **EXHIBIT P2(A12) THE TRUE COPY OF THE REPRESENTATION DATED 31.08.2015 SUBMITTED BY THE APPLICANT TO THE 2ND RESPONDENT.** - **EXHIBIT P2(A14) THE TRUE COPY OF THE REPRESENTATION DATED 21.12.2015 SUBMITTED BY THE APPLICANT TO THE 1ST RESPONDENT.** - **EXHIBIT P2(A16) THE TRUE COPY OF THE REPRESENTATION DATED 27.04.2016 SUBMITTED BY THE APPLICANT TO THE 2ND RESPONDENT.** - **EXHIBIT P2(A17) THE TRUE COPY OF THE REPRESENTATION DATED 30.04.2016 SUBMITTED BY THE APPLICANT TO THE 2ND RESPONDENT.** - **EXHIBIT P3 THE TRUE COPY OF THE INTERIM ORDER DATED 24.05.2016 IN OA NO.407/2016.** - **EXHIBIT P4 THE TRUE COPY OF THE REPLY FILED BY THE 1ST RESPONDENT IN OA 407/2016.** - **EXHIBIT P4(R2A) THE TRUE COPY OF THE BSNL ORDER DATED 18.06.2015.** - **EXHIBIT P5 THE TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER TO THE REPLY.** - **EXHIBIT P6 THE TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE 1ST RESPONDENT.** - **EXHIBIT P6(R2B) THE TRUE COPY OF THE JUDGMENT OF CAT CALCUTTA BENCH IN OA .924/2014 DATED 07.04.2015.** **- 13 -** **OP(CAT).316 of 2019** **EXHIBIT P6(R2C) THE TRUE COPY OF THE JUDGMENT OF CAT CALCUTTA BENCH IN RA 10.2015 DATED 16.08.2016. EXHIBIT P7 THE TRUE COPY OF THE ADDITIONAL REJOINDER. EXHIBIT P7(A19) THE TRUE COPY OF THE JUDGMENT DATED 13.06.2008 IN WP(C) 2654/2006 ON THE FILES OF THE HONOURABLE HIGH COURT OF KERALA. EXHIBIT P7(A20) THE TRUE COPY OF THE OFFICE LETTER NO.25-05/2005-PERS.II DATED 12.09.2005. [TRUE COPY]**