Padmanabhan K.V v The Chairman & Managing Director, BSNL Corporate Office

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 22ND DAY OF JANUARY 2020 / 2ND MAGHA, 1941** **OP (CAT).No.143 OF 2017(Z)** **OA 183/2013 DATED 19-12-2016 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER/1ST APPLICANT** **PADMANABHAN K.V (RETIRED AS DEPUTY GENERAL MANAGER, BSNL),6/640, LAKSHMI NIVAS, MANALMANTHA ROAD, AMBIKAPURAM P.O., PALAKKAD-678011** **BY ADVS. SRI.S.RADHAKRISHNAN SMT.R.ANJALI SMT.ASWATHI SUKUMARAN SRI.ADITYA THEJUS KRISHNAN SRI.S.RAJ MOHAN** ## **RESPONDENT/RESPONDENT** **THE CHAIRMAN & MANAGING DIRECTOR BSNL CORPORATE OFFICE, BHARAT SANCHAR BHAVAN, JANPATH, NEW DELHI-110001** **R1 BY SRI.T.SANJAY, SC, BSNL** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 22-01-2020, ALONG WITH OP (CAT).215/2018, THE COURT ON 22-01-2020 DELIVERED THE FOLLOWING:** OP(CAT).143/2017 & 215/2018 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 22ND DAY OF JANUARY 2020 / 2ND MAGHA, 1941** ## **OP (CAT).No.215 OF 2018** **OA 183/2013 DATED 27-08-2018 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER/RESPONDENT IN THE OA** **THE CHAIRMAN AND MANAGING DIRECTOR, BSNL CORPORATE OFFICE** **BSNL CORPORATE OFFICE, BHARAT SANCHAR BHAVAN, JANPATH, NEW DELHI-1.** **BY ADV. SRI.T.SANJAY, SC, BSNL** ## **RESPONDENTS/APPLICANTS IN THE OA** - **1 PADMANABHAN.K.V (RETIRED AS DEPUTY GENERAL MANAGER, BSNL), 6/640, LAKSHMI NIVAS, MANALIMANTA ROADM, AMBIKAPURAM P.O., PALAKKAD-678 011.** - **2 K.M JOSEPH, (RETIRED AS DEPUTY GENERAL MANAGER (CM AND HR) BSNL, THEKKUMMURIYIL HOUSE, VAYALAMKULAM (P.O), THIRUVALLA, KERALA.** **3 G. MATHAI, (RETIRED AS DEPUTY GENERAL MANAGER (MARKETING) BSNL, PARAVILAYIL 61 PULIYOOR, GARDENS, NALANCHIRA, TRIVANDRUM 15** **4 PADMAKUMAR K.S, (RETIRED AS DEPUTY GENERAL MANAGER(UDAAN) BSNL, LAKSHMI PRIYA, KRISHNAPPURAM, NEYYATTINKARA (P.O), TRIVANDRUM 695 121.** OP(CAT).143/2017 & 215/2018 3 **5 J. SAMUEL (RETIRED AS DEPUTY GENERAL MANAGER(BP/IT) BSNL, T.C 14/1678, ANUGRAHA, KADAKKAL LANE, KANNAM MOOLA, TRIVANDRUM 695 011.** **6 T. CHACKO (RETIRED AS DEPUTY GENERAL MANAGER(URBAN), BSNL, B.N 28, THOTTATHIL, PONGUMMOODU, TRIVANDRUM 695 011.** **7 LEELAMANI AMMA J, (RETIRED DEPUTY GENERAL MANAGER (HR AND ADMN) BSNL, PRASANTHI, VAYALAR POST, CHERTHALA, ALAPPUZHA DISTRICT 688 536** **R1-7 BY ADV. SRI.S.RADHAKRISHNAN R1-7 BY ADV. SRI.S.RAJ MOHAN R1-7 BY ADV. SMT.R.ANJALI R1-7 BY ADV. SRI.ADITYA THEJUS KRISHNAN** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 22-01-2020, ALONG WITH OP (CAT).143/2017(Z), THE COURT ON 22-01-2020 DELIVERED THE FOLLOWING:** OP(CAT).143/2017 & 215/2018 4 ## **JUDGMENT** **Dated : 22[nd] January, 2020** ## **K.Vinod Chandran, J.** 1.The Original Petitions are filed by one of the applicants and the BSNL (Bharat Sanchar Nigam Ltd). The applicants before the Tribunal were persons who were officiating in the capacity of Deputy General Manager while occupying the regular post of Divisional Engineers. All the applicants were posted as DGM on officiating basis the feeder category of which higher post is Divisional Engineer. The applicants claimed benefit as per Annexure-A2 on the basis of their officiating promotion. - 2.The Tribunal allowed the prayer by granting one additional increment in the higher scale in which they were already drawing pay for the reason of OP(CAT).143/2017 & 215/2018 5 time bound financial up-gradation. With respect to the petitioner in OP(CAT).143/2017, the Tribunal rejected the prayer for reason on his having officiated only for 45 days. - 3.The learned Standing Counsel for the BSNL would point out Annexure-A2 clarification which specified that the additional increment would be granted only in case of an adhoc or regular promotion. The learned counsel for the sole petitioner and respondents in the Original Petition filed by the BSNL however, rely on clause (v) in paragraph 2 of Ext.P1 which is extracted hereunder : “Consequent to grant of any post based promotion, the officer's pay will be fixed under FR 22(I) (a)(1) only in cases where such post carries higher scale from the current scale of the executive being promoted. Further, where executives pay OP(CAT).143/2017 & 215/2018 6 scale is the same as that of promoted post, benefit of one increment in the current scale of the executive shall be granted on promotion. However, in cases where the executive's pay is higher than that of promoted post, such post based promotions will be treated as placement with grant of substantive status of the post. Further, except as provided in instant guidelines, no claim will lie on account of any of the other provisions of FRSR in the context of pay scale's, pay fixation, substantive status etc.” 4.On facts it is to be noticed that the petitioners were all Divisional Engineers continuing in the scale of Rs 29,100 - 54,500. On completion of five years, they were granted time bound higher grade promotion in the scale of Rs.32,900 - 58,000; which is the scale of pay applicable to Deputy General Managers. By Annexure-A7 series of orders produced OP(CAT).143/2017 & 215/2018 **==> picture [7 x 8] intentionally omitted <==** in the O.A, all the applicants were granted officiating promotion to the post of Deputy General Manager. On such promotion being granted, they did not get any benefit of higher pay for reason of they being fixed already in the higher pay scale. It is in such circumstances, they claimed pay as available in Annexure-A2. - 5.The extracted portion of the promotion policy clearly indicates that when there is a post based promotion, as distinguished from a time bound higher grade, the promotees pay would be fixed in accordance with FR 22, only in cases where such post carries higher scale than that of the current scale of the executive being promoted. - 6.The second limb of the extracted paragraph, from Annexure A2, shows that where the executives pay scale is the same as that of the promoted post, benefit of one increment in the current scale of OP(CAT).143/2017 & 215/2018 8 the executive shall be granted on promotion. The essential contention of the applicants was that since they were continuing in the Higher pay scale by reason of financial up-gradation, when officiating promotion is granted, they should be granted the benefit of one additional increment. 7. The learned Standing Counsel for the BSNL however, asserts that such additional increment applies as per the clarification, only to adhoc or regular promotions. We would have thought that an officiating promotion is similar to an adhoc promotion. However, the learned Standing Counsel points out that these officiating promotions were made only in the context of the impending retirement of the persons, without looking into seniority and allowing them to occupy a higher post at the time of retirement especially since they were already in the higher scale on the basis of financial up-gradation granted. OP(CAT).143/2017 & 215/2018 9 8.We have to accept the above contention essentially looking at the chronology of the litigation itself and the delay occasioned in filing the O.A before the Tribunal. Also Annexure-A7 series, as specifically pointed out by the learned Standing Counsel, contains the following provision. - “The pay of the officer is to be fixed under the provisions of FR 35. If the officers are already in the upgraded scale as per the Time Bound UP-gradation Policy, there will not be any benefit in Pay and Allowance on pay fixation and hence the restriction under FR-35 will not be applicable to them”. - 9.Hence the benefit of pay and allowance on pay fixation was specifically declined in the orders granting them officiating promotion. The learned Counsel for the applicants had an argument that the OP(CAT).143/2017 & 215/2018 10 pay fixation benefit being not available was only to exclude them from a fixation as per FR 35. We are unable to accept that, since FR 35 reads “ _the Central Government may fix the pay of an officiating Government servant at an amount less than that admissible under these rules”_ . The applicants already being on the higher scale, there could be no application of FR 35; but no further benefit, is the condition. 10. Further if they had a claim on the basis of Annexure-A2, they necessarily ought to have challenged the condition in the order, granting them officiating promotion, at that stage. Having not done the same, all the applicants, who were promoted some time in 2009 as evidenced by Ext.P7 series, retired from the year 2010 onwards. Even after retirement, they took another 2 to 3 years to approach the Tribunal with the above O.A of the year 2013. In that context, we find that the OP(CAT).143/2017 & 215/2018 11 applicants had conceded to the position of there being no benefit of pay and allowance especially noticing that they had been drawing pay in the Higher scale to which they were promoted for reason of financial up-gradation. There can hence, be no application of the decision of the Hon'ble Supreme Court reported in **Union of India v. Tarsem Singh (2008 (8) SCC 648).** 11. For the above reasons, we allow OP(CAT).215/2018 filed by the BSNL. Following the aforesaid decision, we reject OP(CAT).143/2017. No order on costs. Sd/- **K.VINOD CHANDRAN Judge** **Sd/-** **V.G.ARUN Judge** Mrcs/22.1. OP(CAT).143/2017 & 215/2018 12 ## **APPENDIX OF OP (CAT) 143/2017** **EXHIBITS/ANNEXURES:** |**ANNEXURE A8**|**A TRUE COPY OF THE LETTER NO.400.29/2007-**| |---|---| ||**PERS.I DATED 30/05/2007.**| |**ANNEXURE A1**|**A TRUE COPY OF THE ORDER NO.412-36-2002-**| ||**PERS.I DATED 03/01/2003, PROMOTING THE**| ||**APPLICANTS TO THE CADRE OF DIVISIONAL**| ||**ENGINEERS IN THE PAY SCALE OF RS. 10,000-**| ||**325-15,200/-.**| |**ANNEXURE A2**|**A TRUE COPY OF THE RELEVANT EXTRACT OF THE**| ||**OFFICE MEMORANDUM DATED 18/01/2007.**| |**ANNEXURE A3**|**TRUE COPIES OF THE ORDERS BY WHICH TIME**| ||**BOUND UP GRADATIONS WERE GRANTED TO THE**| ||**APPLICANTS.**| |**ANNEXURE A4**|**TRUE COPIES OF THE ORDER NO.HR-III/TBP/STS-**| ||**JAG/2009 DATED 15/04/2010.**| |**ANNEXURE A5**|**A TRUE COPY OF THE RECRUITMENT RULES**| ||**NOTIFIED ON 14/07/2009.**| |**ANNEXURE A6**|**A TRUE COPY OF THE RECRUITMENT RULE FOR**| ||**DIRECT RECRUIT DGM DATED 25/06/2009.**| |**ANNEXURE A7**|**TRUE COPIES OF THE ORDERS PROMOTING THE**| ||**APPLICANTS TO OFFICIATE LOCALLY AS DGM.**| |**ANNEXURE A9**|**TRUE COPIES OF THE ORDERS RELIEVING THE**| ||**APPLICANTS ON SUPERANNUATION.**| |**ANNEXURE A10**|**TRUE COPIES OF THE REPRESENTATIONS**| ||**SUBMITTED BY INDIVIDUAL APPLICANTS ON**| ||**25/09/2009 AND 02/12/2009.**| |**ANNEXURE A10(A)**|**TRUE COPIES OF THREE REPRESENTATIONS**| ||**SUBMITTED BY INDIVIDUAL APPLICANTS DURING**| ||**2010.**| |**ANNEXURE A10(B)**|**TRUE COPIES OF TWO REPRESENTATIONS**| ||**SUBMITTED BY INDIVIDUAL APPLICANTS DURING**| ||**SEPTEMBER/OCTOBER 2011.**| |**ANNEXURE A11**|**A TRUE COPY OF THE DOCUMENT NO.21-386/12-**| ||**RTI DATED 18/07/2012 SHOWING THE DUTIES AND**| OP(CAT).143/2017 & 215/2018 13 ## **RESPONSIBILITIES OF DGM.** **ANNEXURE A12 A TRUE COPY OF THE P&T COMPILATION ON STANDARDS AND DUTIES OF DIVISIONAL ENGINEERS FURNISHED BY THE CORPORATE OFFICE DATED SEPTEMBER 2012 RECEIVED UNDER RIGHT TO INFORMATION ACT.** **ANNEXURE R2(A) TRUE COPY OF THE ORDER DATED 30/06/2011 ISSUED BY THE CORPORATE OFFICE, BSNL. ANNEXURE R2(B) TRUE COPY OF THE ORDER DATED 16/08/2010 ISSUED BY THE CORPORATE OFFICE, BSNL. ANNEXURE A13 A TRUE COPY OF THE ORDER DATED 25/05/2004. ANNEXURE R2(C) TRUE COPY OF THE CLARIFICATION ISSUED BY BSNL CORPORATE OFFICE DATED 19/02/2010. EXHIBIT P1 A TRUE COPY OF THE ORIGINAL APPLICATION NO.183/2013 EXHIBIT P2 A TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENT EXHIBIT P3 A TRUE COPY OF THE REJOINER EXHIBIT P4 A TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE RESPONDENT** **EXHIBIT P5 A TRUE COPY OF THE ORDER PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN O.A.NO.183/2013 DATED 19.12.2016** OP(CAT).143/2017 & 215/2018 14 ## **APPENDIX OF OP (CAT) 215/2018** ## **EXHIBITS:** **EXHIBIT P1 TRUE COPY OF O.A NO. 183/2013 FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 4/03/2013.** - **EXHIBIT P2 TRUE COPY OF REPLY STATEMENT DATED 4/03/2014 FILED BY THE PETITIONER** - **EXHIBIT P3 TRUE COPY OF ADDL. WRITTEN STATEMENT DATED 20/01/2014 FILED BY THE PETITIONER** - **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 08/04/2014 IN MA NO. 254/2013** - **EXHIBIT P5 TRUE COPY OF THE DELAY CONDONATION PETITIONER** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 14/10/2013 IN MA NO. 254/2013** - **EXHIBIT P7 TRUE COPY OF THE ORDER IN OA NO. 183/2013 DATED 19/12/2016 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM.** - **EXHIBIT P8 TRUE COPY OF THE REVIEW PETITION DATED 21/07/2017 FILED AGAINST ORDER IN OA NO. 183/2013.** - **EXHIBIT P9 TRUE COPY OF THE PETITION TO CONDONE THE DELAY DATED 21/07/2017** - **EXHIBIT P10 TRUE COPY OF THE OBJECTION FILED BY THE APPLICANTS DATED 08/11/2017.** - **EXHIBIT P11 TRUE COPY OF THE REJOINDER DATED 05/01/2018 EXHIBIT P12 TRUE COPY OF THE ORDER DATED 27/08/2018 IN OA NO. 183/2013 OF THE CAT, ERNAKULAM BENCH.**