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Magghu Prasad Tiwari & Another v. Union Of India & Others - WRIT - A No. 48717 of 2002  RD-AH 2014 (22 August 2005)
Judgement reserved on 22.7.2005
Judgement delivered on 22.8.2005
Civil Misc. Writ Petition No. 48717 of 2002,
Magghu Prasad Tiwari and another
Union of India and others
Civil Misc. Writ Petition No. 18265 of 2003
Sheo Ram Upadhyay and others
Union of India and others
Hon'ble Sunil Ambwani, J.
Heard Sri Sudhir Agarwal, Senior Advocate, Sri N.K. Pandey, Sri A.K.Dave, Sri H.S. Srivastava, Sri Shiv Ram Upadhaya, Sri J.S. Srivastava Advocates for petitioners, Sri Manoj Kumar, Additional Standing Counsel and Sri Nand Lal Maurya holding brief of Sri B.N. Singh, Sri N. C Tripathi, and Sri S.C. Misra appear for the Respondents- Bharat Sanchar Nigam Limited.
The petitioners are challenging the validity of orders dated 6/20th September, 2002, and 5/16th September 2002, in Writ Petition No. 48717 of 2002 and orders dated 20.11.2002 and 10.9.2002 in Writ Petition No. 18265 of 2003, by General Manager (A), Bharat Sanchar Nigam Limited, Allahabad and Lucknow respectively by which the promotion orders of the petitioners on Grade-IV posts under 10% B.C.R. Scheme in the pay scale of Rs. 6500-10500 on the post of Chief Telecom Supervisor issued on 17.11.1998, 30.11.1998 have been cancelled, and the promotional benefits including arrears of enhanced pay and allowances paid to the petitioners have been withdrawn.
All the petitioners except Petitioners 4 and 5 in Writ Petition No. 54851 of 2001 and the Petitioner 1, in Writ Petition No. 5485 of 2002 have retired on attaining the age of superannuation.
Before its incorporation, the Bharat Sanchar Nigam Ltd. (BSNL for short) was a department of Union Government known as Department of Tele-Com. In order to avoid stagnation the department vide its policy decision dated 10.10.1990 introduced a promotional scheme known as 'Biennial Cadre Review Scheme', (BCR Ccheme for short) providing that the officials having 26 years of regular service in the cadre were entitled to be promoted in Grade III in the pay scale of Rs. 1600-2660 (revised to Rs. 5000-8000). The scheme also provided that 10% of the officials in Grade III will be entitled to be promoted in Grade IV in the pay scale of Rs. 2000-3200/- (revised to Rs. 6500-10500). Accordingly a number of officers were promoted in Grade IV (10%) of BCR Scheme by CJMT, UP Circle, Lucknow on the basis of their inter-se seniority in Grade III.
The Department of Telcom., vide its circular dated 16.10.1990 re-structured the existing cadres in the department and introduced the posts with the nomenclature of Senior Telecom Office Assistants (Functions)/(General)/(Telegraphy). By a Circular dated 22.10.1993 the promotions of those officers, who had opted for the re-structured cadre were restrained. Subsequently the department by its letter dated 16.6.1997 lifted the ban imposed through Circular dated 22.10.1993, and directed the promotions under BCR Scheme to Grade IV to even those officials, who had opted for re-structured cadre. This benefit of promotion in the re-structured cadres was also to be given from the date, from which it was given to the juniors in the old cadre as per their seniority in the basic grade of the old cadre subject to the overall limit of 10% in Grade IV, as prescribed in the BCR Scheme. The department thereafter issued a circular dated 2.9.1998 for creation of supernumerary posts to accommodate officials in Grade IV under BCR Scheme. Aggrieved by the accelerated promotions of their juniors, those who had completed 26 years of service filed a Claim Petition OA No. 14/55 of 1991 Smt. Santosh Kapur and others vs. Union of India. The Principal Bench of the Central Administrative Tribunal decided the original applications on 7.7.1992. The operative portion of the order of the Central Administrative Tribunal, New Delhi is quoted as below;
"7. Analysing facts and arguments in the case, we find that the scale of Rs. 2000-3200 is clearly a part of the BCR scheme 10% of the post in 1600-2660 are placed in the scale of 2000-3200. It appears that BCR provided for this since those coming under BCR would hardly have any opportunity to go to the higher scale of Rs. 2000-3200 by virtue of seniority. The promotion to 2000-3200 should be based on seniority of officials maintained with reference to basic cadres vide clarification in Telecommunication Deptt's letter of 11.3.91. Basic cadre in various posts are shown in para 2 (vi) of the BCR Scheme of 16th Oct, 1990. The scale of Rs. 2000-3200 in like a non functional scale, under BCR and the more drawal of this scale will not entitle the drawee to any preferential seniority in the scale of Rs. 1600-2660.
8. In the above view of the matter, We direct that the promotions to 10% posts in scale 2000-3200 would have to be based on seniority in basic cadres subject to fulfilment of other conditions in the BCR viz. those who were regular employees on 1.1.1900 had completed 26 years of service in basic higher scales. The respondents are directed to consider applicants accordingly from due date with consequential benefits.
The employees who may be senior to applicants in the scale of 1600-2660 and who have already been given the scale Rs. 2000-3200 at the cost of those senior in basic grades by any different interpretation of the BCR scheme, may in the discretion of the respondents instead of being reverted, be considered for promotion to scale of Rs. 2000-3200 by suitable adjustments in the number of posts by upgradation as necessary.
With the above direction and observation, the case is disposed of with no order as to costs.
(I.P. Gupta) (Ram Pal Singh)
Member (A) Vice Chairman (J)"
The Union of India, through its Secretary, Department of Telecommunications filed a Civil Appeal No. 3201 of 1993 which was dismissed by Hon'ble Supreme Court, on 9.9.1993 with following orders;
"In view of the clear provision in the letter dated 3.4.1991 (at page 116 of the paper book) read with the letter dated 18.10.1990 (at page 119 of the paper book) that completion of 26 years service on the crucial date along with the fact of being a regular employee on 1.1.1990 are essential requirements for obtaining the benefit under the Biennial Cadre Review Scheme, the direction given, by the Tribunal in the impugned order in favour of the respondent can not be faulted. On this conclusion, it is obvious that no case for interference in this appeal is made out. The appeal is dismissed. No costs
New Delhi sd/-
September 9, 1993 (J.S. Verma)"
It appears that the department continued to make promotions during the pendency of the OA No. 1455/1999, before the Principal Bench of Central Administrative Tribunal at New Delhi, and even thereafter until the decision of the Supreme Court dated 9.9.1993. The Central Administrative Tribunal had given liberty to the department only to protect those, who were wrongly promoted. It was left to the discretion of the respondents, that instead reverting them, they may be considered for promotion in the scale of Rs. 2000-32000 by suitable adjustment in the number of posts, by up gradation as necessary. The department, however, chose to exercise this discretion in favour of all the persons, who were already promoted and issued a Circular dated 10.5.1996 directing not to revert them, and to create supernumerary posts in order to accommodate these persons.
The petitioners, inspite of the above orders were not given the benefits of promotion to Grade IV. They were aggrieved by promotion of persons junior to them and the exercise undertaken by the Department to allow them to continue on such posts. The CJM, (Eastern) Lucknow issued a Circular Letter on 11.7.1996 communicating the revised procedure for promotion to Grade IV against 10% posts in BRC Scheme to be followed in respect of employees under the circle. By a Circular Letter dated 13.2.1997 the Department of Telecom. further protected those promotees, who were rendered ineligible for promotion from reversion by creating supernumerary posts, and for rest of the employees the procedure for promotion in accordance with the judgement and the order dated 13.11.1995 was required to be followed. In the meantime the Ahmedabad Bench of the Central Administrative Tribunal in O.A. No. 623/1996 between All India Non-Scheduled Castes/Scheduled Tribes Telegraphy/Telecom Employees Association and another vs. Union of India decided on 11.4.1997, held that the benefits of reservation/roster scheme should not be applied to these promotions as the selections were not involved and that the promotions were in fact up gradation to Grade IV. The respondents, however, chose to follow the order of the Tribunal only with effect from 11.4.1997. The other directions were issued by the Department by its Circular Letter dated 2.9.1998, for creating supernumerary posts to accommodate the officers in Grade IV for the purpose of giving benefit under the Circular dated 16.6.1997.
In this back drop the petitioners were considered for promotion and were promoted by orders issued in the year 1998 by Additional General Manager (Administration) promoting them in the pay scale of Rs. 6500-10500 in the writ petition No. 18265 of 2003, vide orders dated 30.11.1998. These orders were subject to the approval of the Departmental Promotion Committee, which was held on 7.1.1998 and approved these promotions. The petitioners have since thereafter discharged their duties on the post of Chief Telecom Supervisor in Grade IV and have been paid their salary and allowances since 1992-93.
The Department however by orders dated 20.4.1999 cancelled these promotions, and it was provided that the service rendered by these persons in pre-structured cadre shall not be counted for computing the period of 16 years necessary for giving the revised pay scales. The amounts paid in excess was also directed to be recovered from them.
Aggrieved by the reversion orders, some of the petitioners approached the Central Administrative Tribunal, Allahabad by O.A. No. 1228 of 1998 which was allowed by judgement dated 17.8.2000 holding that the reversion orders were in violation of the principle of natural justice. While setting aside the orders respondents were directed to pass fresh orders after giving them an opportunity of hearing. Show cause notices were issued, to which petitioners filed their replies and that by impugned orders dated 20.11.2002 and 10.9.2002 the Department has again decided to cancel these promotions, and to withdraw the benefits.
Sri Sudhir Agarwal, learned Senior Counsel submits that the Principal Bench of the Central Administrative Tribunal had left it to the discretion of the department to protect the promotions, of only those who were not entitled under 10 % of BCR scheme by making suitable adjustment in number of posts and up-gradation, as was considered to be necessary. The Department, however, took a decision to protect the promotions of all those who were entitled by virtue of their seniority and also those who were entitled to protection by virtue of their seniority even otherwise in Grade III and those who were entitled for such promotions in the restructured cadres. Group IV is a Group D post. In creating these posts equal number of Group III posts stood reduced. He submits that by creation of supernumerary posts the restriction of 10 % under BCR Scheme stood relaxed. Sri Sudhir Agarwal submits that the relaxation consequently increased the number of Grade IV posts. Such an action was not inconsistent with any service Rules. The promotions were provided by executive orders and that the consequent protection from reversion and further consequent promotions of the petitioners, to remove arbitrariness, was also made by executive orders. It is submitted that the reversions are wholly arbitrary as the benefit to the wrongly promoted persons was not withdrawn. It was only in order to remove discrimination with the petitioners, who were aggrieved by the promotions of their juniors, the circulars promoting petitioners were relaxed.
Sri Manoj Kumar appearing for the BSNL submits that the department committed a mistake by creating supernumerary posts in pursuance of Circular dated 16.6.1997 and 2.9.1998 and consequently promoted the petitioners. The creation of supernumerary posts to accommodate the officials in Grade IV in compliance with the order dated 16.6.1997 was extended by the Department by its letter dated 2.9.1998 (Annexure 14 to the writ petition). It was provided that these supernumerary posts will stand abolished automatically, on vacation of the posts by present incumbents despite the retirement/promotion or shifting to other grades or till sufficient number of posts in Grade IV are available. The petitioners were promoted by mistake between November, 1998 to September, 1999. Most of the petitioners have worked only for a period of about one year. They, however, were given and are claiming seniority w.e.f. 1991-1992. The department has in fact removed the illegalities/wrong promotions and has passed orders cancelling promotions and reverting them from such posts and are further seeking recovery of the amount paid on account of wrong promotion. The decision of BSNL does not suffer from any illegality. The mistake was corrected to save huge amount of public money which is at stake.
Sri Manoj Kumar, learned counsel for respondent further submits that the petitioners were not entitled for promotions and payment of arrears with retrospective effect. They have actually worked in Grade IV only during the period from November, 1998 to September, 1999. Some of them have already retired and as such it will not be appropriate to award any payments with retrospective effect. He has relied upon judgements in ICAR vs. T.K. Surya Narayan and others 1997 (6) SCC 766; P.V. Chandra Rao and others vs. Sengreni Colleries Company Ltd. 1992 1 SLR 777; Vijendrra Singh vs. State of Haryana and others 1994 93) SLR 337 and Sri Pal vs. Haryana State Electricity Board and others JT 1995 1 SC 451. He also submits that the High Court should not sit as an appellate court in the matters of incorrect fixation of pay and the corrections of errors which do not amount to punishments and has relied upon Sri R.P. Bahry vs. LIC and others 1993 1 SLR 192.
The promotional scheme known as Biennial cadre Review Scheme was introduced to avoid stagnation by providing promotional avenues. The scheme further provided that 10% officials of Grade III would be promoted to Grade IV in the pay scale of Rs. 2000-3200 revised to Rs. 6500-10500. The department accordingly promoted officers on Grade III in 10% of BCR scheme on the basis of inter-se seniority of Grade III. By Circular Letter dated 10.10.1990 the department restructured the cadres and introduced the cadre of Senior Telecom. Assistants (Functions/General/Telegraphy) and by Circular Letter dated 22.10.1993 restricted those officials for their promotion to Grade IV under BCR Scheme, who had opted in the re-structured cadre. The ban imposed by Circular Letter dated 22.10.1993 was lifted by the Circular Letter dated 16.6.1997. Consequently even those officials, who had opted for re-structured cadre, became eligible for promotion in Grade IV under BCR scheme. The benefit of promotion was also provided to be given from the date from which it was given to the juniors in the old cadre as per their seniority in the basic grade of the old cadre subject to overall limit of 10% in grade IV.
After the judgement of the Principal Bench of the Central Administrative Tribunal, New Delhi dated 7.7.1992 was affirmed by Supreme Court on 9.9.1993, the department by its Circular Letter dated 2.9.1998 directed for creation of supernumerary posts to accommodate the officials, who were promoted in pursuance of Circular Letter dated 16.6.1997. The Central Administrative Tribunal as well as Supreme Court did not extend the limit of 10% promotions in BCR scheme. The department instead of reverting those juniors, who were promoted, exercised its discretion in terms of the liberty granted by the Central Administrative Tribunal by creating supernumerary posts. It is at this stage that the department committed a mistake by Circular Letter dated 13.12.1995 to grant promotions to the officials in Grade IV under the BCR scheme on the basis of their seniority and to review the cases of all the officials. By the impugned order dated 5.9.2002 passed after issuing show cause notice in pursuance of directions issued by Central Administrative Tribunal, Allahabad the department has considered the cases individually and found that the petitioners were not promoted to Grade IV at circle level on the basis of their inter-se seniority in Grade III. The petitioners could not be promoted in Grade IV (10%) of BCR scheme prior to 13.12.1995 and even after 13.12.1995 they were not eligible to be promoted to Grade IV on the basis of their seniority in the basic grade.
The department, however, admits in the impugned order that the persons junior to the petitioners in the basic grade seniority, were promoted in Grade IV. They were, however, not reverted as supernumerary posts were created by its Circular Letter dated 10.5.1996, to accommodate those who became ineligible. The Department, however, subsequently in the year 1995, decided to abolish supernumerary posts and cancelled the promotions as these persons had become ineligible for promotion by virtue of their seniority in the basic grade. The department found that the promotions orders in favour of the petitioners were issued due to misinterpretation by the department of telecommunication's instructions dated 16.6.1992 and 2.9.1998 without observing the prescribed limit of 10% and were consequently cancelled on 20.7.1999. In fact, these letters were issued to provide promotions to the eligible staff working only in re-structured cadres and were not applicable to the petitioners. Since the petitioners were not eligible for being accommodated against the supernumerary posts, they could not be promoted. In substance and basically the objections taken to petitioners promotion are that the department decided to protect all those, who were promoted and had to be reverted in terms of the orders of the Principal Bench of the Central Administrative Tribunal, New Delhi dated 7.7.1992. In the process the restriction of 10% was diluted. Now the interpretation of the department is that since prescribed limit of 10% would neither be relaxed/extended by the department nor by the Central Administrative Tribunal, the petitioners' promotion found to be wrongly made in order to remove the discrimination requires to be cancelled. The department admitted that the promotions granted to the petitioners vide office order dated 23.11.1998 was issued due to misinterpretation of department instruction dated 16.6.1997 and 2.9.1998.
There are no statutory rules regulating the promotions. All these promotions were provided by executive orders. The department may have made a mistake by promoting ineligible persons namely those who were not senior to the petitioners in gradation list on account of their opting in restructured cadres. However, once the department decided to protect their promotion by creating supernumerary posts and consequently provided for promotions of all those who were senior to senior promoted persons, the Rule of 10% of the BRC scheme for promotions stood relaxed. It is well known principle of law that where there are no statutory rules governing the service conditions, executive orders can be issued and that such executives orders can be amended or modified by subsequent executive orders. The department at the time of protecting the promotions of those who were not found eligible by the Principal Bench of Central Administrative Tribunal, New Delhi in its order dated 7.7.1992 confirmed by Supreme Court on 9.9.1993 decided to protect their promotions by creating supernumerary posts and further decided to remove the discrimination by providing promotions to all those who were senior to such persons, exempted 10% limit of BCR Scheme in promotion. The respondents have not brought to the notice of the court any violation of the service rules in giving promotions to the petitioners except that the petitioners were promoted by way of mistake as they were above the 10% limit of BCR Scheme. The department, however, has not been able to justify the discrimination which was sought to be remedied by promoting the petitioners. It is admitted that some of the juniors were promoted and that the department has protected their reversion by creating supernumerary posts. The department should have realized that such a decision will necessarily cause discrimination to the seniors in the basic cadres and will call for a further remedial action.
The petitioners were promoted subject to their selection through the Departmental Promotion Committee, which was thereafter held approved promotions of all the petitioners. The merit as such has not been compromised in making such promotions.
The Court further find that the equity also supports the petitioners. Almost all the petitioners except a few have retired. It would be unjust and inequitable to withdraw the benefits drawn by the petitioners much before their retirement from their death-cum-retiral gratuity. The fact that they have been given benefit of promotion retrospectively and have actually worked about one year also does not take away the equity which has come into play after the petitioners have retired.
It has been held by the Hon'ble Supreme Court in State of Orissa v. Adwait Charan Mohanty, 1995 Supp (1) SCC 470: 1995 SCC (L&S) 522; Union of India v. Sita Ram Dheer, 1994 SCC (L&S) 1445; Nand Kishore Sharma v. State of Bihar, 1995 Supp (3) SCC 722: 1996 SCC (L&S) 124; Stqte of Karnataka v. Mangalore University Non-Teaching Employees' Assn., (2002) 3 SCC 302 : AIR 2002 SC 1223 that if any additional payment, has been made to the employees for no fault of theirs they should not be penalized for this.
Both the writ petitions are consequently allowed. I find that the orders dated 6/12.9.2002 and the orders dated 5/16.9.2002 in Writ Petition No. 48717 of 2002 and the orders dated 20.11.2002 and 10.9.2002 in writ petition No. 18265 of 2003 reverting the petitioners to Grade III posts can not be sustained, and are accordingly quashed. The respondents are restrained from giving effect to these orders and to recover any benefits drawn by the petitioners.
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