Sunday, December 6, 2015

BOMBAY O.A.NO. 583/2011 & O.A. NO. 584/2011

CENTRAL ADMINISTRATIVE TRIBUNAL
BOMBAY BENCH, MUMBAI.

O.A.NO. 583/2011 & O.A. NO. 584/2011
With
Misc. Petitions No.13 & 14/2012

Dated this Wednesday, the 7th day of March, 2012.

CORAM: HON'BLE SHRI JOG SINGH, MEMBER (J)
HON'BLE SMT. LEENA MEHENDALE, MEMBER (A)


Shri Raj G.Kuwatkar,
Working as Appraising Officer &
Residing at Mohan Paradise, Wayle Nagar,
Kalyan (West) 421301. ... Applicant
in O.A.No.583/2011

Sanjeev M. Patil, residing at
610, Koyna B Wing,
Shantivan, Borivali (East)
Mumbai 400 066 and working as
Tax Assistant at New Custom House,
Ballard Estate, Mumbai 400 001. ..Applicant in
O.A.No.584/2011
(Applicant by Shri G.K. Masand, Sr. Advocate with
Shri A.A.Manwani, Advocate)

vs.

1. Union of India through
the Secretary, Ministry of Finance
Department of Revenue, North Block
New Delhi 110001.

2. Commissioner of Customs (General)
New Custom House,
Ballard Estate, Mumbai 400 001.
(Respondents No.1
& 2 common in both
the O.As.)

3. Addl. Commissioner of Customs (Gen.)
in the office of the Commissioner of
Customs (General), New Custom House
Ballard Estate,
Mumbai. 400 001. ... Respondents in
O.A.No.584/2011
only.
(Respondents by Shri V.S.Masurkar, Advocate)



O R D E R

Per: Smt. Leena Mehendale, Member (A):

These O.A. No. 583/2011 and 584/2011 are both filed on 09.08.2011 under Section 19 of the Administrative Tribunal's Act, 1985.
2. The matter appears to be very simple on the surface but like an iceberg only 1/10th are above the surface and 9/10th are below the water. Seen in isolation, it is a matter of delay in giving charge-sheet but seen against a larger canvas, it would appear that the people of India have lost and might continue to lose crores of rupees in bogus claims of DEPB scrips due to negligence if not facilitation by a number of custom officials at various levels.
3. Present OAs are preceded by 16 other OAs which arose in the same Department of Customs for a similar event namely allowing fraudulent and bogus claims of Duty Draw Back against exported goods. In that event, it was alleged that during the period from January, 1995 to October, 1997 in all 300 bogus duty drawbacks totaling Rs. 50,14,80,668/- were issued in favour of three firms, namely, (i) M/s. Om Traders, (ii) M/s. Tropical Exotics and (iii) M/s. Prime Agricom on continuous basis and was claimed to have been received by Mr. Naval Kishor Bangard and his wife Smt. Sangeeta Bangard by submitting the forged export documents to various Custom officials of Duty Drawback Section at Sahar Air Cargo either in collusion or close association with them. The DGFT detected that the parties and the claims were both bogus. On enquiry, the CBI had recommended prosecution against three custom officers, major penalty against 30 officials and minor penalty against 12 officials (in all 45 officials).
4. It was unfortunate that the fraud was detected not by the senior officials of Customs Department but by the office of DGFT (Director General of Foreign Trade) which comes under a separate ministry and it is pertinent to note that the office of DGFT being outside the Department of Custom, they take nearly two years or more to detect such fraudulent claims. The Department of Customs would be in position to detect such frauds within a few days if they are more vigilant but it appears that they did not have a proper system of supervision by senior officials. From the details of that event it would appear that proper supervision was never a strong point for the respondent Custom Department and the matter was approached with casualness. Bogus claims were detected only when the DGFT and CBI pointed out the bogus claims, where after the department pursued various steps needed for the charge-sheet. It would also appear that the charge-sheets were delayed to the extent of vitiating them. The charge-sheets were issued individually on 21.04.2005. Three charge-sheets were immediately challenged before this Tribunal in OA No. 382-383-384 of 2005 on the ground of delay as the event had occurred in 1995. Two more OAs namely, 216/2006 and 217/2006 were also filed. In the first set, OAs were allowed by a single order dated 26.06.2006 and in the second set OAs were allowed by a single order dated 12.10.2006. The Respondent Department challenged these decisions in Writ Petition No. 1717, 1697, 1699, 1784 & 1871 of 2007 and the same were dismissed by a common order dated 04.02.2008. The SLP filed by the dept. to the Hon'ble Supreme Court was also dismissed.
5. Thereafter, the department proceeded in 2009 to appoint Inquiry Officer in remaining cases. 10 OAs were filed namely 153-158/2009, 161-162/2009, 428/2009 and 444/2009 on the ground of delay in appointing Inquiry Officer. All of them were disposed of by a single order dated 03.02.2010, allowing the request to quash the charge-sheet. A 16th OA Of that series was OA No. 41/2011 which was also filed for the same reasons of delay in appointing Inquiry Officer, but was dismissed on 19.08.2011 on the ground of delay in filing the OA against the charge sheet of 21.04.2005. The tribunal order was challenged in Writ Petition No. 8382/2011 dated 07.12.2011 and the High Court has remanded back the case to this Bench 'for being decided on its own merit'.
6. This history of charge-sheets comes later. However, after the detection of that fraud in 1997, the Respondent Department of Customs issued some revised instructions by way of Standing Order No. 7382 dated 04.08.1998 which directed the custom officials at various stations to exercise caution to avoid recurrence of forgery and directed them to follow a certain improved methodology for claim-documentation and verification. Despite so, the present two applicants in O.A. 583 & 584/2011, who were working as UDC & LDC respectively at the office of New Customs House, Mumbai in the year 1998 have once again come under a scanner that they failed to avoid a similar fraud thus causing a wrongful loss to Government Exchequer to the extent of Rs. 1,64,05,957/- and Rs. 80,40,641/- respectively. The present OAs have to be seen in this backdrop. They also necessitate certain directions to be given in public interest to CVC, DGFT, CBI, and Custom dept. for ensuring speedier detection and these are given at a later paragraph of this order.
7. The present two applicants were working as UDC (Upper Division Clerk) and LDC respectively in the year 1998 at the office of New Custom House, Mumbai and were assigned the duty of verification of DEPB (Duty Entitlement Pass Book) of firms/exporters having names with first letter of N to Z (& A to M). Hereinafter, we will refer to the matrix of O.A. 583/2011 only.
8. It is his case that in the year 2002 Dy. DGFT Enforcement, Mumbai noticed that in 1998 some non-existing firms had obtained DEPB Scrips by submitting forged export documents. A complaint was therefore lodged by the Dy. DGFT (Enf) Mumbai with the Economic Offences Wing of the CBI which was registered as RC/4/E/2002 Mum and RC/5/E/2002 Mum. During its investigation of the above 2 cases the CBI noticed that proprietors of non-existing firms M/s. Ritlene Exports, M/s. Vaibhav Sales and M/s. TVS Exports had submitted forged documents for obtaining DEPB Scrips aggregating credit value of Rs. 1,64,05,957/- which had allegedly caused wrongful loss to that extent the Government Exchequer. The CBI had recorded the statements of concerned personnel, including the Applicant who was the concerned UDC at that time, the Appraiser and Assistant Commissioner of Group VII. They all denied having verified the said DEPB scrips belonging to the Accused firms. The Applicant claims that Customs Department made its own Investigations and came to the conclusion that the Applicant had not done verification of DEPB scrips nor had he made the entries in the Punching Register/Verification Register but that these were made by some other unknown persons.
9. The applicant claims that the above enquiries were made against DEPB scrips awarded in the year 1998 after which there was no further action in pursuance of the matter. He was promoted in the year 2005 with retrospective effect from 2004 as Examining Officer, and the promotion was later on made effective from 6.12.2002. In the year 2008 he received yet another promotion for the post of Appraising Officer where he continues till date. Thus, in the eyes of the department, he was innocent till the date of charge-sheet.
10. Under these circumstances he has received a charge-sheet on 27.12.2010, Annexure A.1 which has a Single Article of Charge, which reads as follows:
Article of Charge: 1:
" Shri Raj Kuwatkar, UDC (Now Appraising Officer), being aware of the facts that he was required to make DEPB Scrips entry showing the particualrs of DEPB No. and the amount of credit given against the individual shipping bills in the punching register and verification register while allotting verification numbers to DEPB Scrips submitted by the exporters or their representative as per the alphabets allotted to him, he however, allowed other unauthorised person to make various entries of DEPB scrips of non existing firms viz. M/s. Ritlene Exports, Vaibhav Sales and Tvs Exports. He failed to restrict outsider to make entries in the official records of Customs under his control, thereby contravened the provisions of para 4.1 of the Standing Order No. 7300 dated 07.05.1997 and para 2 of the Standing Order No. 7382 dated 04.08.1998 which has caused loss to Government exchequer.
Thus, by the above acts of commission and omission, Shri Raj Kuwatkar, UDC (Now Appraising Officer) committed gross misconduct, exhibited lack of integrity, failed to maintain devotion to duty as well as acted in a manner unbecoming of a Government Servant, thereby contravening Rule 3 (1) (i) (ii) (iii) of the CCS (Conduct) Rules, 1964."
11. In the Statement of Imputation the Department has listed 16 DEPB scrips, pertaining to the three firms, all originating between the period 11.6.1998 to 23.11.1998 (5 months) aggregating to a total credit value of Rs.1,64,05,957/-. The same Statement of Imputation also gives the details of Standing Order No. 7300 dated 07.05.1997 and Standing Order No. 7382 dated 04.08.1998 which both would clarify the exact method to be followed by the UDC while issuing DEPB scrips. It, therefore, imputes that registers to be maintained by the applicant as part of his official duty was misused by somebody due to his own negligence of duty. Further Standing Order No. 7382 expresses concern about past similar cases of DEPB having been obtained on the basis of fraudulent documents and hence asks the officers to exercise caution to avoid recurrence of forgery. Despite so, the applicant has shown lack of integrity, lack of devotion to duty and acting in a manner unbecoming of a Government Servant.
12. The applicant, after receiving the impugned charge Memo dated 27.12.2010, denied the charge by his letter dated 23.1.2011 and also requested the Disciplinary Authority by another representation dated 23.1.2011 to withdraw the Charge-Memo on the ground of inordinate delay. He pointed out that his case was similar to a number of cases on the question of delay in issuing charge sheet, in which various courts including the Apex Court have held that delay in initiation of Departmental Enquiry by more than 10 years without any convincing explanation would be prejudicial to the person concerned and hence the Departmental Enquiry was quashed. His representation is seen at Annexure A.5. which was not answered and he preferred O.A. No. 336/2011 which was disposed of by this Tribunal, by order dated 29.4.2011 (Annexure A.2) directing the respondents to consider the representation and take an appropriate decision within six weeks.
13. Accordingly, the respondents have passed speaking order on 01.06.2011 as seen at Annexure A-4. They have given various stages through which the investigation has passed, thus, coming to the conclusion that the delay was neither abnormal nor unjustified. The applicant has, therefore, impugned both Annexure I (Charge sheet) and Annexure A-4 (detailed reply of the respondents answering the representation of the applicant).
14. At this stage a brief description of the methodology of duty draw back concession is pertinent. It is mentioned in the Statement of Imputation of Charges and the reply statement. The DEPB which is issued to the exporter by the Licencing Authority on post-export basis, is verified by the Pass Book Section with respect to (i) DEPB, (ii) copies of the Shipping Bills presented by the party and (iii) the ledgers maintained for this purpose. The verifications are in particular carried out in respect of description of goods, FOB value, etc. After the verification the DEPB book has to be endorsed with a stamp stating "verified by Customs" and signed in full with dated signature of the nodal Assistant Commissioner. The particulars of the DEPB No. and the amount of credit given against individual Shipping Bill shall be mentioned in the ledger and the nodal Assistant Commissioner of Customs shall put the endorsement "verified" in the ledger and sign in full below the endorsement. Thereafter, the DEPB shall be registered.
15. The relevant documents are then sent to DGFT who has a chance to locate the fraud only after about one to two years of time has elapsed. It is, however easily possible for the Customs officials to locate the fraud. As seen from the statement of imputation of charges, without the verification and the allotment of Verification Number to the DEPB scrips as per Verification/Punching Register/, the DEPB scrips cannot be utilised for importing/exporting goods as the debits are made by Debit clerk against the concerned SI. No. and the verification No. in the Debit Register.
16. It would thus appear that Punching of the DEPB scrips, when done fraudulently by an outsider will be noticed immediately by the concerned UDC who handles the Register. Entering of non-authentic DEPB scrips not only gives a huge duty draw back benefit to the concerned firm but also, at a later date, becomes a prima facie proof of its existence and can be utilized for more serious crimes including huge financial fraud on the country or even terrorism.
17. Coming back to the present OA, the applicant in his representation to the Department dated 23.01.2011 has relied on the judgments:
(a) in the case of State of M.P. Vs. Bani Singh, AIR 1990 SC 1308 and (b) in the case of Sate of Andhra Pradesh Vs. N. Radhakrishnan (1998) 4 SCC 154 decided by the Hon'ble Apex Court; and (c) in the case of P.V. Mahadevan Vs. M.D., Tamil Nadu Housing Board, Civil Appeal No. 4901 of 2005 decided by Supreme Court on 08.08.2005.
18. The learned counsel for respondents argued that in the latest OA No. 41/2011 of the earlier instance, this Bench took a view different from the view taken in allowing 3rd set of 10 OAs No 153-158/2009, 161-162/2009, 428/2009 and 444/2009. These 10 OAs were allowed and the charge sheet were
quashed but in the latest OA 41/211 the charge sheet was upheld and the OA was dismissed on the ground of delay between date of charge sheet (21.4.2005) and filing of OA in 2011. Similarly effect of the decision of earlier 5 Writ Petition No.1717/2007 etc. was of upholding the quashing of charge sheet. But in the latest Writ Petition No. 8382/2011 decided on 07.12.2011, the Hon'ble High Court has not found it fit to give complete relief to the original applicant but has remanded back the OA to be decided on merits.

19. A. The learned counsel for respondents argued that the respondents have complied with the orders of this Hon'ble Tribunal dated 29.04.2011 in OA No 336/2011 and passed a speaking order which has been conveyed to applicant. Therefore, now unless and until the Disciplinary Proceedings are over, and all departmental remedies are exhausted, the applicant has no cause of action to approach this Hon'ble Tribunal. The Administrative Tribunal Act, 1985 clearly stipulates that only when all the departmental proceedings are over he can raise grievance before the Hon'ble Tribunal, and hence on this ground itself the present OA is required to be dismissed as premature.

B. Department received the investigation report and related documents from CBI, Mumbai in year 2006/07, hence there is no inordinate or unjustified delay.
C. There are guidelines of Central Vigilance Commission that when a premier agency like CBI is investigating the case, there should not be any parallel investigation by the department. Any disciplinary proceeding should be initiated only after receiving the investigation report, specifying the role played by the Govt. Servant.
D. On the basis of forged documents, 03 firms had obtained 16 DEPB scrips of aggregated credit value of Rs. 1,64,05,957/- which has caused wrongful loss of equal amount to the Government Exhequer.
E. Applicant during subject period under charge-sheet was assigned the duty of verification of DEPB Scripts and maintaining the registers. Though applicant denied having made any such entry in the Register, it is equally true that the Register which he was maintaining in his section as a part of his official duty was misused by someone else due to his negligence towards his duties resulting in huge loss of Govt. Revenue. Applicant allowed outsider to make entries in the said Register thereby damaging the protective mechanism of the Deptt. and making the whole system vulnerable to fraud.
[We also observe that the applicant was in a position to immediately notice that entries were not made by him, so he could have immediately raised the issue with supervisery officers but has not done so].
F. DEPB fraud for which applicant has been charge-sheeted took place during 1998 and was brought to light by DGFT in year 2002. Thereafter, CBI investigated the case and submitted its detail investigation report in 2006/07 specifying applicant's role in the fraud, and then, after following official formalities charge-sheet was issued to applicant in December, 2010. In-between, applicant got his due promotions in year 2005 and 2008, making it necessary to seek more permissions from higher-ups for the Departmental Enquiry.
G. Also it is expected that when a premier agency like CBI is investigating the case, there need not be parallel investigation by the department.
H. The fact that he was given promotion shows that there was no bias against him.
20. The respondents have cited many judgments to stress that every Departmental Enquiry need not be quashed on the ground of delay alone. They have particularly cited a Division Bench judgement of the Delhi High Court delivered on 29.10.2003 in LPA No. 39/1999 in the case of DDA vs. D.P Banbah & Anr. wherein the High Court has, in great details, examined the pros and cons in a chargesheet issued with an apparent delay and have compared two possibilities as below:
Pros
Cons
Unless the statutory rules prescribe a period of limitation for initiating disciplinary proceedings, there is no period of limitation for initiating the disciplinary proceedings.
Since delay in initiating disciplinary proceedings or concluding the same are likely to cause prejudice to the charged employee, courts would be entitled to intervene and grant appropriate relief where an action is brought.
If bonafide and reasonable explanation for delay is brought on record by the disciplinary authority,in the absence of any special equity, the court would not intervene in the matter.
Balancing all the factors, it has to be considered whether prejudice to the defence on account of delay is made out and the delay is fatal, in the sense, that the delinquent is unable to effectively defend himself on account of delay.
The Court would ordinarily lean against preventing trial of the delinquent who is facing grave charges on the mere ground of delay. Quashing would not be ordered solely because of lapse of time between the date of commission of the offence and the date of service of the charge-sheet unless of course if the right of defence is found to be denied as a consequences of delay.
It is for the delinquent officer to show the prejudice caused or deprivation of fair trial because of the delay.

21. Thus, finally we have to be guided by two opposing claims.
(a) On the one hand is the claim of the two applicants that the event of passing duty draw back to the extent of nearly Rs. 2 crores has take place in 1998, apparent fraud has been detected in 2002 by DGFT (another Ministry of the Govt), the C.B.I. Enquiry has been conducted and reported to the respondent Department in 2007 but the chargesheet has been given in 2010. Such a delay jeopardises their defence and a prejudice is caused to them and that the delay would deny a fair trial to them.
(b) On the other hand, we have the issue of public money worth nearly Rs.2 crores being taken away by bogus exportes by submitting fraudulent document and possibility of such documetns being used in future for more grievious crimes, the possibility of other fraudulent companies being emboldened and the possibility of Custom Employees in charge of duty draw back operations also being emboldended. Even at the cost of repetition it is worth mentioning that out of the 16 cases referred to in earlier paras, which emanated from earlier incident, the CBI had recommended criminal offences against three officials, major penalty proceedings against 30 officials and minor penalty proceedings 12 officials. The event had occurred between 1995 to 1997 and chargesheet was served in 2005. Only 5 employes had approached this Tribunal immediately and obtained the relief in terms of quashing of the chargesheet on the ground of delay. Thereafter it took the Department another four years to appoint Enquiry Officer and Presenting Officer in other 10 cases. Thus, another group of 10 employees could seek quashing of the chargesheet on the ground that the Respondent Department had taken four years to appoint Enquiry Officer and this delay was unjustified. It is also pertinently pointed out by the Learned Counsel for the respondent that in those earlier matters, the Disciplinary Authority was of the view that no Departmental Enquiry was necessary and there was a protracted correspondence between Senior level officers of the Respondent Department and the CBI, before the decision to issue chargesheet was final taken.
(c) In the present OA the factors that would weigh against the two applicants are that the Department had tried to inculcate certain caution and certain discipline by way of their Standing Order S.R.No. 7382 dated 4.8.1998 which inter alia stipulates that:
Standing Order No. 7382 DATED 04.8.1998 stipulates, interalia, that "Recently some cases of DEPB having been obtained on the basis of forged documents have been noticed. It has been noticed that some DEPBs were obtained on the basis of forged E.P. copies of the Shipping Bills, B/Ls etc. presented to the licensing authority. In order to prevent similar occurrence in future it has been decided that DEPB verification would be carried out with reference to the EGM. After verification of EGM in the said matter a perforated stamp similar to the perforated stamp put by the Cash Department at the time of payment of duty would be affixed by the concerned verified officer".
Hence the statement of imputation emphasizes that;
"in view of the above two Standing Orders, it is clear that, without the verification and the Verification Number allotted to the DEPB scrips as per Verification/Punching Register/ the DEPB scips cannot be utilised for importing goods as the debits are made by Debit against the concerned Sl.No. Of the verification No. in the Debit Register."
(d) The second factor that would weigh is that the fraud amount and therefore, the consequent loss to the Govt. Exchequer is as huge as nearly Rs. 2 crores. The applicant of OA 584/211 has pointed to one earlier and similar incident of bogus claim passed by him where department had taken prompt action and he was given some minor penalty and hence claims that here too, the department should have taken quick action if he was guilty. However, in view of the fact that the instant matter was under CBI investigation, we feel it right to let the Departmental Enquiry decide the issue.
22. At this juncture, we find it necessary, as foremost preventive step for future, to issue following instructions to the Central Vigilance Commission (CVC), DGFT, the CBI and suitable representatives of Ministry of Finance not below the rank of Additional Secretary to Govt. Of India that they shall meet under the Chairmanship of the CVC, for as many meeting as would be needed and appoint a small group of Officers of the CBI, DGFT and the Commissioner of Customs to conduct a study on how the duty drawback scrips are issued to the Exporters, how data entry is done in the computers, at what frequency they are sent to the DGFT, what are the documents which enable the DGFT to locate that the firms are bogus and non- existing, what kind of additional documentation is needed at the level of Customs Department so that at their level itself they are in a better position to locate such bogus companies etc. It is also very necessary that supervision by the Senior Customs Officers are carried out periodically of all the work done upto the level of Appraising Officers and an appropriate monitoring system is developed that would allow the Senior Customs Officers to detect the negligence or connivance at the level of Appraisers. We would expect a report to be filed before us in that regard by the CVC within next six months.
23. In view of the above, we consider it just and fair that the Departmental enquiry should proceed. It would however be necessary for the respondents to complete the said enquiry within four months.
24. Both the O.As. are, therefore, dismissed. No Interim Relief was granted on M.P.No.13 & 14/2012 dated 4.1.2012. The same also stand dismissed. No order as to costs.

(Smt. Leena Mehendale) ( Jog Singh)


Member (A)              Member (J)

sj*/dp


TA no 111/2009 decided in Oct 2011

CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE

TRANSFERRED APPLICATION No.111/2009

TODAY, THIS THE ......... DAY OF OCTOBER, 2011

HON'BLE SMT. LEENA MEHENDALE ... MEMBER (A)

HON'BLE SHRI V. AJAY KUMAR ... MEMBER (J)


A.S. Ramachandraiah,
S/o (late) A. Suryanarayana Rao,
Aged about 65 years,
Retired Chief Section Supervisor,
O/o the Chief General Manager, Telecom,
Karnataka Circle, Bangalore,
R/o No.509, 65th Cross, V Block,
Rajajinagar, Bangalore – 560 010. ... Applicant

(By Advocate Shri B. Veerabhadra)

Vs.

1. The Secretary,
Bharat Sanchar Nigam Limited (BSNL),
No.20, Sanchar Bhavan, Ashoka Road,
New Delhi – 110 001.

2. The Chief General Manager, Telecom,
Karnataka Circle,
Bharat Sanchar Nigam Limited (BSNL),
No.1, Swamy Vivekananda Road,
Halasuru, Bangalore – 560 008.

3. The Union of India,
Ministry of Communications and
Information Technology,
Department of Telecommunications,
Rep. by its Secretary,
Sanchar Bhavan, 20, Ashoka Road,
New Delhi – 110 001. ... Respondents

(By Advocates S/Shri M.V. Rao, Sr. Central; Govt. Standing Counsel for
R-3 and Vishnu Bhat for R-1 & 2)


O R D E R

Hon'ble Smt. Leena Mehendale, Member (A) :


This TA arises out of a claim for upgradation to Grade IV with effect from 3.2.1993 on par with a colleague Shri Kannan.

2. The petition was made to the High Court of Karnataka in Writ Petition No.9818/2006 on 18.7.2006 and was transferred to this Tribunal by order dated 14.11.2008. This is done in view of the notification dated 31.10.2008 whereby BSNL has been brought under the jurisdiction of this Tribunal.
3. The applicant while working as TOA (G) Gr.III was promoted to TOA (G) Gr.IV by order dated 04.02.1999 (Annexure-'A') giving effect from 13.12.1995. It appears that the department located 3 earlier vacancies available from 3.2.1993 and in the normal course, he would be entitled to this Gr.IV promotion. It is claimed by the applicant at para 2 of the OA that on 16.8.2000, the Assistant Director orally asked him to give a letter foregoing his promotion from 3.2.1993 to 31.3.1994 so that his promotion could be made effective from 1.4.1994. Accordingly, the applicant has submitted the letter on the same day as at Annexure-'B'. Thereafter, an order was issued on the same day promoting him with effect from 1.4.1994 as seen at Annexure-'C'. This order mentions 3 persons namely, Indira, Kannan and applicant at Sl. No.1, 2 and 3 respectively and the wording implies that other two got promotion with effect from 3.2.1993. It also implies that Kannan is senior.

4. As seen from Annexure-'D', the gradation list issued by the respondents on 21.6.2001 which shows the seniority as on 9.9.1992 and corrected upto 30.4.2001, the applicant and Kannan appear at Sl. No.3 and 4 respectively implying that Kannan is junior.
5. Applicant claims that he and yet another junior, namely, Hanumaiah at Sl.No.10 were given retrospective promotion benefit with effect from 3.2.1993. Hence, immediately on seeing the seniority list, the applicant submitted a representation on the same day, i.e., 21.6.2001. This list specifically mentions that it has been prepared in view of the judgment of CAT, Bangalore in OA Nos.333, 334 to 350, 483, 488 and 490/2000 and he has been placed senior to Kannan and Hanumaiah. Hence, in the representation he claimed that he has a justifiable claim to get retrospective promotion with effect from 3.2.1993 despite Annexure-'B' under which he has agreed to accept the promotion with effect from 1.4.1994, foregoing promotion from 3.2.1993.


6. We see from this representation as well as O.A. That the applicant has not mentioned anything about Hanumaiah Annexure-R/3 produced by the respondents in their reply statement shows that before issuing the order dated 16.8.2000 at Annexure-'C' , an office note has been prepared on 9.8.2000 which places on record that against the 3 vacancies available under the 10% BCR, Smt. Indira, Shri Kannan and Shri Ramachandraiah may be promoted with effect from 3.2.1993 and pursuant thereto, Shri Hanumaiah (apparently working in the said post on ad-hoc basis for some time in past) be reverted with effect from 3.2.1993 and be considered eligible for promotion only with effect from 1.4.1994, i.e., the date on which Smt. Indira would retire. However, the latter part of the note shows that the scene had changed between 9.8.2000 and 16.8.2000. The note dated 16.8.2000 mentions taht the applicant has given a letter to forego his promotion upto 1.4.2004. Hence, Hanumaiah may be continued without reversion and Ramachandraiah may be given promotion only on 1.4.1994 when Smt. Indira retires.

7. This position brought out in the office note clearly tells us that there may have been some understanding between the applicant, Hanumaiah and the office under which all the stake holders agreed not to disturb the benefit which might accrue to Hanumaiah due to his continuous officiation in that post from a date even much prior to 3.2.2003. Hence, we do not agree with the learned counsel for the applicant when he argues that the department pressurised the applicant to give his representation at Annexure-'B'. For whatever consideration the applicant decided to play role of a benevolent colleague towards Hanumaiah, who, but for the voluntary forgegoing of retrospective promotion by applicant, would not have got it. This fact takes away his entitlement to a benefit at part with Kannan even if Kannan was adjudged as junior to him at a later date. Had this been the only ground for claiming promotion with effect from 2.3.1993, the applicant would not be on a strong footing.
8. However, we are duty-bound to take note of three orders, namely,

(a) As seen from Annexure-'F', dated 28.06.2001, the CAT, Bangalore Bench, in OA Nos. 333,343 to 350 and 483,499 to 494 of 2000 has quashed one earlier gradation list of 22.5.2000 and ordered for a fresh gradation list and as a consequence of which 8 officers who are juniorto the present applicant and 7 among them junior to Hanumaiah were reverted and their promotion was withdrawn.

(b) This was challenged in the High Court in Writ Petition Nos. 4370 to 4377 of 2002 and the Hon'ble High Court passed an order dated 20.1.2005 vide Annexure-'O' , declaring that the earlier order dated 4.2.1999, whereby the petitioners who are promoted from BCR Gr.IV must survive which would mean that Annexure-'F' dated 28.6.2001 stopping their promotion with effect from 2.3.1993 becomes infructuous.

(c) As a result of the said High Court order, all those 8 officers were given promotion with effect from 2.3.1993.

9. A perusal of these three orders gives a different story. It appears, in pursuance of Annexure-'O', the respondents have promoted those 8 petitioners in the Writ Petition in which the present applicant is not a party to the proceedings. The applicant obtained information under R.T.I. that the judgment of the Hon'ble High Court has been implemented, thereby meaning that such of those employees who are junior to the applicant have been given promotion w.e.f. 3.2.1993 whereas the applicant has been left out. This would amount to discrimination only on the ground that he has foregone his promotion upto 1.4.1994 by submitting a representation when no one actually needed to forego promotion. This Tribunal cannot just keep quiet by allowing the respondents to take away thes benefit which they have been directed to allow to other 8 juniors. This Tribunal, definitely would not have interfered in the matter, if the respondent's action was confined to only retrospective proomotion of Kannan. But, here we see, not only Kannan and Hanumaiah were given promotion w.e.f. 3.2.1993, but 8 more persons who are junior to applicant, and 7 out of them, even to Hanumaiah, have been promoted in view of High Court judgment. This action is against the principle of natural justice. But, we find that none of the parties have produced copies of the order promoting those 8 persons who went to the High Court and got order in their favour. But, only there is a mention that all the petitioners in the writ petition have been promoted. In such a situation, we are not in a position to decide whether those persons are actually promoted or not. In view of this, we feel that the applicant should make a representation within a month from this day to the respondents for extending the same benefit as is given to those 8 people and if such a representation is given, the respondents shall consider his case and promote him accordingly within two months thereafter.

10. With the above observation, the OA is disposed of. The parties shall bear their own costs.


(V. AJAY KUMAR) (LEENA MEHENDALE)
MEMBER (J) MEMBER (A)



psp.

Bombay - OA no 297 of 2010 decided in Jan 2012

CENTRAL ADMINISTRATIVE TRIBUNAL
BOMBAY BENCH, MUMBAI

ORIGINAL APPLICATION NO.:- 297 of 2010

Dated this   ???????       the day of January, 2012

CORAM:- HON'BLE SHRI JOG SINGH , MEMBER (J)
HON'BLE SMT. LEENA MEHENDALE, MEMBER (A)
Subhash M.Sandanvise,
Sub Divisional Engineer, RTTC, BSNL,
Pune.
R/o Chinchwad Telephone,
Exchange Quarter, Chinchwad,
Pune – 411 019. ....Applicant
(By Advocate Shri. S.V.Marne)
Versus

1. Bharat Sanchar Nigam Ltd.,
through Chief Managing Director,
Government of India Enterprises,
Having Corporate Office at Janpat,
Sanchar Bhawan, New Delhi – 110 001.

2. The Chief General Manager,
Telecom Maharashtra Circle,
BSNL, 4th Floor, BSNL Complex,
Juhu Road, Santacruz (W),
Mumbai – 400 054.

3. The Principal General Manager,
BSNL Pune, Satara Road,Pune – 411 009.

4. Union of India
through the Secretary,
Ministry of Telecommunication & IT,
Sanchar Bhawan,
New Delhi – 110 001. ... Respondents
(By Advocate Shri V.S.Masurkar)

O R D E R

Per : Smt.Leena Mehendale, Member (A)
This OA is filed on 5.4.2010 under Section 19 of the Administrative Tribunals Act, 1985 on a small point as to whether the applicant should be deemed to be an employee of Mahanagar Telecom Nigam Ltd.('MTNL ' for short) or Bharat Sanchar Nigam Ltd. ('BSNL' for short). The applicant also prays for a direction to hold and declare that he is permanently absorbed in BSNL w.e.f. 1.10.2000.
2. The brief history of the matter is that the Department of Telecommunication ('DOT' for short) had formed a separate Corporation viz. MTNL comprising Delhi and Mumbai Circle, but the rest of entire Maharashtra remained out of the jurisdiction of MTNL. Subsequently, the rest of DOT was converted into another Corporation viz. BSNL and all the areas of Maharashtra outside Mumbai came under the jurisdiction of BSNL. The applicant was initially appointed as Operator in the DOT at Ahmednagar Telecom District on 1.8.1989. He was promoted as Junior Telecom Officer ('JTO' for short) in 1994 through a competitive examination that was conducted by MTNL and he was also appointed by MTNL as JTO. However, his name remained in the common seniority list of JTOs working all over the country under DOT. In 1998, MTNL also gave him local officiating promotion to the post of Sub Divisional Engineer ('SDE' for short). The BSNL was formed w.e.f. 1.10.2000 and all the employees working under DOT were transferred to BSNL and remained with BSNL as on deemed deputation till the date of their absorption. On 27.2.2002 the respondent no.4 herein i.e. Secretary, Department of Telecommunication, New Delhi issued the order of regular promotion of the applicant to the post of Telecom Engineering Service Gr.'B' (SDE) (Annexure-A-4).
3. Thus, we find that through the competitive examination for selection of the applicant as JTO was conducted by MTNL, his order of JTO was also issued by MTNL and his order for local officiating promotion as SDE was also issued by MTNL, yet, his regular order for promotion as SDE was issued by DOT on 27.2.2002 and another order transferring him from Mumbai to Jalna as SDE was issued by BSNL on 9.4.2002. The applicant joined at Jalna on 11.6.2002 and thereafter transferred to Pune on 18.8.2003.
4. This is the background of the matter. On 2.9.2003, BSNL issued a circular inviting options for absorption in BSNL from all the Gr.'B' officers (including SDE) who were transferred to BSNL on deemed deputation basis. The applicant exercised his option for absorption in BSNL. The Presidential order for his permanent absorption to BSNL w.e.f. 1.10.2000 was also issued on 23.9.2004 and the BSNL also gave him promotion to the grade of Sr.SDE w.e.f. 27.2.2006. After nearly four years i.e. 3.3.2010, the BSNL (respondent no.2) cancelled the Presidential Order of his absorption to BSNL. The order reads as follows -
No.A/PPE-11/Absorption/Group'B'/Pune/32 Dated: 3/03/2010

ORDER

Approval of Chief General Manager Maharashtra Telecom Circle BSNL, Mumbai – 54 is hereby conveyed for cancellation of Presidential Order (P.O.) issued inadvertently vide No.27-1/MH/Pune/224 dated 23.09.2004 to Shri Saindanvise Subhash Manohar JTO Staff Number 110031, with immediate effect. Consequent upon the cancellation of the said P.O. The permanent absorption in BSNL of the aforesaid officer is ceased, and his status as Government employee is revoked henceforth.

Authority to cancel the said P.O. Has been delegated by BSNL Corporate Office vide it's letter No.BSNL/11/SR/2003/MH dated 22.02.2010. Necessary updation in all the relevant records should be made accordingly.

(C.K.Ravindran)
Assistant General Manager (Estt.)”


A simple reading of the above order suggests that respondent no.2 has not only cancelled the P.O for his permanent absorption to BSNL but has also terminated his status as an employee of DOT by using the words that “his status as Government employee is revoked henceforth.”
5. Consequently, BSNL issued yet another order on 23.3.2010 (Annexure-A-3) to say that the Time Bound Promotion given to him w.e.f. 27.2.2006 is withdrawn and the overpayment of nearly four years should be recovered. As the applicant has filed this OA on 5.4.2010 and obtained interim relief, namely, that status-quo ante be maintained, and as the said interim relief is continued till the disposal of this order, the applicant is still having the status of Sr.SDE at the office of RTTC/DTTC, BSNL, Pune.
6. We have heard both the learned counsel for the parties and gone through all the pleadings. The learned counsel for applicant points out that as per the Government of India's circular dated 29.8.2003 at Annexure-A-10 a single option form had been devised requiring the official to indicate their preference of absorption in MTNL or BSNL or retention of Government status. It was further mentioned that another conditional option would be treated as having opted for retention of the Government status. It further says that Circle cadres of MTNL and BSNL can exercise options for the respective PSUs only. Options received from Circle Cadre officers may be retained at the circle itself. The absorption will take place in the substantive grade as on 1.10.2000. Options from Group 'A' will be called for in next phase. However, Group 'B' officers promoted after 1.10.2000 as Group A, if desire to get absorbed in their substantive Grade of Group 'B', will be allowed to exercise their option, leaving their seniority issue open till absorption of Group A is completed.
7. The learned counsel for the respondents submits that in view of the above circular and particularly in view of the guidelines that Circle cadres of MTNL and BSNL can exercise options for the respective PSUs only” the applicant who was on deputation to MTNL as on 1.10.2000 and has been brought to BSNL only in 2002 cannot give option for BSNL. As such his option dated 29.9.2003 for absorption to BSNL is incorrect. The Presidential Order dated 23.9.2004 issued by BSNL for his permanent absorption as well as his Time Bound Promotion as Sr.SDE “were inadvertent mistakes”.
8. We do not agree with the contention of the respondents. Although the Government circular has tried to give clear guidelines and is unequivocal in saying that the Circle cadres of MTNL and BSNL can exercise option for respective PSUs only, yet, it fails to give any guidance in a peculiar situation such as faced by the present applicant. The applicant was on deemed deputation to MTNL as on 1.10.2000, from which date BSNL is said to have come into existence. In 2002, it was a BSNL officer namely, respondent no.2 who transferred him to Jalna without his consent. This fact, coupled with the fact that his option for absorption in BSNL exercised on 29.9.2003 met with no objection from BSNL and coupled with the fact that the Presidential Order for permanent absorption to BSNL was also issued, makes it very clear that the said Government circular dated 29.8.2003 did not have any clear cut guidelines for those stray cases like the present one, in which the applicant is on deputation to MTNL on 1.10.2000 but on deputation to BSNL on the date of giving his option. The instructions mentioned in Para 3 (supra) does not throw any light on how such officers should exercise their option. If the senior officers of BSNL did not have this clarity between 29.9.2003 till 3.3.2010 (when they passed the order cancelling the Presidential Order), the applicant cannot be expected to understand the intricacies of this circular. Since the applicant's transfer to Jalna was not for the reason of his own asking but by an order of a senior officer in the BSNL, it appears logical that the BSNL officers continued to consider it as their prerogative to transfer the officers who were on deemed deputation to MTNL. Under such situation, if the applicant also considered himself as an employee of BSNL and accordingly opted for being retained in the BSNL, his claim has to be complied irrespective how the BSNL officials would like to interpret the Government circular dated 29.8.2003.
9. It is also pointed out by learned counsel for the applicant that the guidelines issued by BSNL itself on 2.9.2003 (Annexure-A-6) mentions as follows -
.........The IDA pay scales will be effective from 01.10.2000. After the absorption is finalized by BSNL and the absorbed employees are fixed in IDA pay scales, the ad-hoc sum of Rs.2000/- p.m. Being received by the employees w.e.f. 01.10.2000, shall be adjusted against their IDA emoluments, perks and benefits on fixation of their pay in IDA pay scales . In case of optees accepted for absorption in BSNL and present working in MTNL, any ad-hoc amount paid to them by MTNL & which is required to be adjusted from the IDA pay scale arrears after their absorption, would also be adjusted against their IDA emoluments, perks and benefits on fixation of their pay in IDA pay scales.”

This para 8 of BSNL guideline also leaves a possibility for such optees to want absorption in BSNL but were working in MTNL. This further strengthens the claim of the applicant.

10. In view of the foregoing, the OA is allowed. The impugned orders by respondent – BSNL dated 3.3.2010 cancelling the P.O in respect of absorption of the applicant with BSNL as well as the impugned order dated 23.3.2010 withdrawing his Time Bound Promotion as Sr.SDE and ordering recovery of overpayment are quashed. The prayer made at para 8 (b) of the OA is granted. No order as to costs.
(Smt.Leena Mehendale) (Jog Singh)
Member (A)            Member (J)-
--------------------------------------------------------------



Friday, October 11, 2013

Bgl CP 22/2012

Bgl  CP 22/2012

CENTRAL ADMINISTRATIVE TRIBUNAL
      BANGALORE BENCH,BANGALORE.

CIVIL CONTEMPT PETITION NO:- 22/2012
In TA Nos.123/2009,124/2009, 125/2009 & OA 95/2010

 Dated this                 the     day of         , 2013

CORAM:- HON'BLE SMT. LEENA MEHENDALE, MEMBER (A)
HON'BLE SHRI V. AJAY KUMAR, MEMBER (J)

  Applicants In TA 123/2009:

1. Marigouder A.H.
Staff No.16784,
Working as Divisional Engineer,
Mobile Services, CMX Building,
Devaraj Urs Road,
Bangalore.

2. P. Prabhakar Rao
Staff No.16699,
Working as Divisional Engineer-
O/o DGM Marketing, CGMT,
Halasur, Bangalore.

3. S.B. Nannanavar,
Staff No.16486,
Working as Asst. General Manager (OP),
O/o General Manager – Telecom,
Jayalakshmipuram, Mysore – 570 012.

4. M. Shivaswamy,
Staff No.16407,
Working as Divisional Engineer-Out-door,
Above Punjab National Bank,
Dr. Rajkumar Road, Bangalore 560 010.

5. Anantha Subramaniam,
Staff No.16793,
Working as A.G.M.- Mobile Services,
Amenity Block, Queen's Road,
Bangalore 1.

6. K. Diwakar Rai,
Staff No.16470,
Working as Divisional Engineer, Extl-II,
BSNL, Kadri Telephone Exchange,
Kadri, Mangalore.

7. K.G. Suryanarayana,
Staff No.16647,
Working as Divisional Engineer (NIB)
BSNL, Nazarbad Telephone Exchange,
Hardinge Circle, Mysore 570 010.

8. K. Vittal Alva,
Staff No.17457,
Working as Divisional Engineer (Groups),
BSNL, Kadri Telephone Exchange,
Kadri Mangalore.

9. Raviprakash Rao,
Staff No.17411,
Working as Divisional Engineer
BSNL, Pandeshwar, Mangalore.

10. F.M. Andrade,
Staff No.17396,
Working as Asst. General Manager
(CFA), BSNL, O/o PGM,
Mangalore.

11. Y. Suresh,
Staff No.17419,
Working as Divisional Engineer (Outdoor)
BSNL, Telephone Exchange Bykampadi,
Mangalore.

12. G. Venkateswarlu,
Staff No.16492,
Working as Divisional Engineer-Cell One,
1 Floor, Ashoknagar Telephone Exchange,
GUNTUR 522 007, Andhra Pradesh.

13. V.S. Goudar,
Staff No.16684,
Working as Divisional Engineer-
Vigilance, O/o PGM, Telecom Bldg.,
Rajbhavan Rd, Bangalore-1.

14. R.H. Kai,
Staff No.16705,
Working as Divisional Engineer,
BSNL, ERP Development Centre, ALTTC
Campus, Ghaziabad 201 002. U.P.

15. M.L. Patil,
Staff No.30942,
Working as S.D.O. P-I,
BSNL, K.C.Park, Dharwad.

16. B.C. Gundar,
Staff No.16777,
Working as D.E. External II,
T.K. Layout, Mysore 570 009.

17. R.R. Koppar,
Staff No.16847,
Working as D.E.-Indoor,
Telephone Exchange, D.C. Compound,
Dharwad.

18. P.V. Hungund,
Staff No.17596,
Working as Asst. General Manager-WLL,
O/o General Manager (NW-O) CM
CGMT, KTK, BSNL, S.V. Road,
Halasuru, Bangalore 560 008.

    Applicants in TA 124/2009:

19. V. Gopinath,
Working as Sr-Sub-Divisional Engineer
(Staff-III), O/o CGMT, S.V. Road,
Halasuru, Bangalore 560 008.

20. H.K. Nagarathna,
Working as Sr. Sub-Divisional Engineer
(MKTG), O/o General Manager,
BSNL, Tumkur 572 101.

21. H.S. Chandrika,
Working as Sr. Sub-Divisional Engineer
(Sales & CFA), O/o General Manager,
BSNL, Kolar 563 101.

22. A. Shakti,
Working as Sr. Sub-Divisional Engineer
(HRD), O/o General Manager,
BSNL, Kolar 563 101.

23. Basavaiah,
Working as Divisional Engineer(Urban),
BSNL, Telecom Bldg, Ashoka Road,
Tumkur.

24. G.S. Nagaraja Gupta,
Working as Divisional Engineer,
Telephone Exchange,
Nanjanagudu 571 301. Dist. Mysore.

25. A.V. Srikantan
Working as Divisional Engineer (Tech),
RTTC, T.K. Layout, Mysore 570 009.

26. K.A. Gopalakrishna
Working as Divisional Engineer,
Telephone Exchange, Kollegala 571 440.

27. V.C. Hiremath,
Working as DGM – Mobiles, BSNL
Telephone Bhavan, Balives,
Solapur 413 002.

28. K. Balasubramanya,
ERP Development Centre, ALTTC
Campus, Ghaziabad – 201 002. U.P.

29. T.C. Kodandaram,
Working as Divisional Engineer,
O/o Sr. GMT, BSNL, Plot No.71,
Sector 13, Near:CIDIO Gardens,
New Panvel 410 217.

30. M. Ponnuswamy,
Working as AGM (SCT), Officiating
O/o CGMT, Bangalore.

31. M. Muthu,
Working as AGM (HR/ADMN),
O/o General Manager, BSNL,
Kolar 563 107.

32. Susheela,
Staff No.30722,
Working as Sr. Sub-Divisional Engineer,
O/o DGM CRM (Data)
New Telecom Building, Devaraj Urs Road,
Bangalore 560 001.

33. B.S. Rathod,
Staff No.17069,
Working as DGM (MM)_
O/o PGM BGTD, Rajbhavan Road,
Bangalore 560 001.

34. S. Revathi,
Staff No.18748,
Working as Divisional Engineer,
Telephone Exchange, Hunasuru,
Dist. Mysore.

35. M.R. Suresh,
Staff No.17564,
Working as AGM (Installation)
O/o GM NW – CFA,
Telecom Building, Rajbhavan Road,
Bangalore 560 001.

36. K.N. Sulikeri,
Staff No.17471,
Working as AGM-MKTG (S&M)
O/o CGMT, S.V. Road, Halasuru,
Bangalore 560 008.

37. M.V. Gangadhara,
Staff No.30259,
Working as AGM (CC), City Tele
Exchange, Sampangiramnagar,
Bangalore 24.

38. Arshi Krishnamurthy,
Staff No.30605,
Working as AGM NW-O,
Telephone Exchange, BSNL
Harapanahalli 583 131,
Dist. Davanagere.

39. K.P. Desai,
Staff No.30264
Working as Divisional Engineer (Plg)
O/o CGMT KTK, S.V. Road,
Halasuru, Bangalore – 8.

40. Shobha Somnath,
Working as Sr. Sub- Divisional
Engineer, O/o AGM Sales-III,
4th Floor, Telecom Bldg.,
Rajbhavan Road, Bangalore 1.

41. Geetha K. Murthy,
Staff No.16638,
Working as AGM (BB), 4th Floor,
Ulsoor Tele Exchange, Halasur,
Bangalore 8.

     Applicants In TA 125/2009:

42. P.A. Virupakshaiah,
Staff No.17456,
Working as AGM (NOW West-I),
Vijayanagar Telephone Exchange,
Bangalore 40.

43. K.V. Mutalik,
Staff No.32 104,
Working as Sr. Sub-Divisional Engineer(L),
RTTC, T.K. Layout, Mysore.

44. S.V. Dixit,
Staff No.30657,
Working as Divisional Engineer,
Telephone Exchange, Belgaum.

45. D.S. Metri,
Staff No.16347,
Working as Divisional Engineer,
O/o DGM-QA, CACT Complex,
Doorvaninagar, Bangalore.

46. H.B. Hungund,
Staff No.321 10.
Working as Sub-Divisional Engineer
(Groups), Telephone Exchange,
Nanjanagudu 571 301.
Dist. Mysore.

47. A. Vijayendra,
Staff No.33401,
Working as Sub-Divisional Engineer(L),
D.T.T.C. BSNL, Jayanagar Tele Exchange,
Jayanagar, Bangalore.

    Applicants in OA 95/2010:

48. P.K. Kadaramandalgi,
Staff No.30339,
O/o The General Manager (Telecom),
B.S.N.L., Devaraj Urs Layout,
Davanagere 577 006.

49. B.P. Kulkarni,
Staff No.17376,
AGM (NW-O) External,
Bharat Sanchar Nigam Limited,
P.J. Extension, Davanagere 577 002.

50. C.C. Somashekar,
Staff No.30724,
AGM(NW-O) Internal, MAX-I Bldg.,
Bharat Sanchar Nigam Limited,
PB Rd., Davanagere 577 001.

51. M.K. Mohana,
Staff No.30820,
Sub-Divisional Engineer,
O/o D.E. BTM (OD) B.T.M. Telephone
Exchange, 7th Cross, BTM Layout
II Stage, Bangalore.

52. R.S. Ramesh,
Staff No.30823
Senior Sub-Divisional Engineer(Mobiles),
O/o General Manager, BSNL,
Kolar 563 107.

53. U.S. Mujawar,
Staff No.33443,
Senior Sub-Divisional Engineer,
O/o CGMT, S.V. Road,
Halasuru, Bangalore 560 008.

54. Jamaluddin Hadagali,
Staff No.30503,
Sr. S.D.E. A/T
Inspection (T&D) Circle,
HUBLI. ...  Petitioners
(By Advocate Shri Shiraguppi)

Versus
1. Shri A.N.Rai
Director- Human Resource Development,
Bharat Sanchar Nigam Ltd.,
Bharat Sanchar Bhavan,
Harishchandra Mathur Lane,
Janpath, New Delhi 110 001.

2. Shri R.K. Verma,
The Asst. Director General(Pers.I)
4th Floor, Bharat Sanchar Bhavan,
Janpath, New Delhi 110 001.     ...  Respondents
(By Advocate Shri N. Amaresh)


O R D E R
Per : Smt. Leena Mehendale, Member (A)
This case has a history that goes back to 1966 when certain instructions in Post and Telegraph Manual were replaced by Rules for promotion. This resulted in two cases that had vide influence on departmental promotions, being P.N.Lal Vs. Union of India and Madras Telephone SC & ST Social Welfare Ass., Vs. Union of India. They further resulted in some important litigations & issues without whose discussion the present matter cannot be appreciated. These issues have been elaborately discussed by Hon'ble Justice Singh in (2006) 8 SCC 662 in the matter of Promotee Telecom Engineers Forum and others Vs. Secretary Telecom and Others and we will quote from this, for clarity.
2. List of relevant cases;
I. P.N.Lal and Brij Mohan Vs. Union of India, decided on 20.02.1985 by Allahabad High Court in WP No.2739 and 3652  of 1981 and the SLP against both under No.3384 and 3386 of 1986, Union of India Vs. Permanand Lal and Brij Mohan, dismissed on 08.04.1986 by Hon'ble Supreme Court.
II. SLP 19716 & 19722 of 1991 by Union of India as well as Junior Telecommunication Officers Association (India) against the order dated 07.06.1991 passed by Principal Bench of CAT were dismissed on 06.01.1992.
And similar issues raised by Junior Telecom Office Forum reported in 1994 Supp (2) SCC 222.
III. Madras Telephone SC & ST Social Welfare Association Vs. Union of India decided by CAT, Madras in TA No.909/1986 on 31.12.1986.
And Civil Application against it in Union of India Vs. Madras Telephone etc, CA No.4339 of 1995 decided on 13.02.1997 reported in 1997(10) SCC 226.
IV. Contempt Petition No.121/1999 in the above CA No.4339 of 1995, reported in (2000) 9 SCC 71, decided on 26.04.2000.
And I.A. No.16 in the above CA No.4339 of 1995 as well as Promotee Telecom Engineers Forum & Ors. Vs. Secretary, Department of Telecommunications and Others reported in (2006)8 SCC 662.
And CP arising in the same matter (2008) 11 SCC 579.
V. TA Nos. 123/2009, 124/2009 & 125/2009 decided by this Bench on 20.09.2011
And present Contempt Petition No.22/2012.
3. We quote from Singh (J) in (2006) 8 SCC 662:-
“before coming into force of the Telegraph Engineering Service Class II Recruitment Rules 1966, the promotion from the post of erstwhile Engineering Supervisors Telecom (re-designated as Junior Engineer) to the post of Assistant Engineer was made in accordance with the instructions contained in paragraph 206 of  Post and Telegraph Manual, Vol. IV which reads as;
206. All Junior Engineers recruited after 1-1-1929, under the new system after serving for 5 years in Engineering branch may be permitted to appear at the departmental qualifying examination, which will be held from time to time in the subjects enumerated below, provided they have a good record. This qualifying examination is intended to test the general ability of Engineering Supervisors and their knowledge in the latest developments in Telegraphy and Telephony. A pass in this examination is an essential condition for promotion in Telegraph Engineering and Wireless Service Class II.
2. Promotion to the TE & WS Class II, will be made according to the principle of seniority-cum-fitness but the Engineering Supervisors who pass the qualifying examination earlier will rank senior as a group to those who pass the examination on subsequent occasions i.e. officials  who passed the examination held in 1956 will rank as en bloc senior to those who passed in 1957. Their seniority inter se will, however, be according to their seniority in the cadre of Engineering Supervisors.”

“This promotion was clearly according to the principle of seniority-cum-fitness. Those who passed the qualifying examination earlier ranked senior as a group to those who passed the examination on subsequent occasions, i.e. officials who passed the examination held in the year 1956 ranked en block senior to those who passed in 1957. Their seniority inter se, however, was determined according to their seniority in the cadre of Engineering Supervisors.
“With the coming into force of the Recruitment Rules, 1966 w.e.f. 15.06.1966, the method of determining seniority was changed. It was provided that;
“• the Engineering Supervisors must complete 5 years of service to be eligible for appearing at the departmental qualifying examination,
• the eligibility list of candidates for consideration of the DPC (Departmental Promotion Committee) would be prepared in accordance with the instructions issued by the Government. The instructions were issued on 28.06.1966 and required the preparation of a separate list for each year of recruitment.
• Para (v) of the instructions provided that all officials of a particular year of recruitment/ appointment, who had qualified in the examination, would rank en- block senior to those officials of the same year of recruitment/ appointment, who qualified in subsequent examination.”
“It would thus appear that in the matter of promotion the emphasis shifted from the year of passing the examination to the year of recruitment/appointment of the candidate concerned.
“In the year 1981 one Shri  Parmanand  Lal (1966 batch) and Brij Mohan (1965 batch), both of whom qualified in the qualifying examination held in 1974, filed two writ petitions complaining of their placement in the eligibility list below the last man who passed the qualifying examination in 1975. The department contended that the eligibility list had been arranged on the basis of seniority, based on the year of recruitment and ignoring the year of passing the qualifying departmental examination, as required by the Recruitment Promotion Rules of 1966. The Lucknow Bench of Allahabad High Court considered the submissions urged before it in the light of the Recruitment Rules of 1966 as partially modified in 1981 and provision in para 206 of the P & T Manual and concluded that those who qualified in the departmental examination earlier were entitled to be promoted prior to those who qualified later, irrespective of the year of their initial recruitment. It was held that para 206 of the Manual was not in conflict with either the Rules of 1966 or 1981, but was supplemental to those Rules. Relief was accordingly granted to the 2 writ petitioners based on the interpretation of the Rules and para 206 of the P & T Manual.
“SLPs preferred by the Union of India challenging the aforesaid decision numbered as SLP Nos. 3384 and 3386 of 1986 were dismissed by Apex Court by order dated 08.04.1986.
“Following the judgment of the Allahabad High Court several petitions were filed before the Principal Bench, Central Administrative Tribunal seeking identical relief. The Principal Bench by a detailed order of 07.06.1991 allowed the applications and issued directions for re-fixation of seniority, keeping in view the relevant recruitment rules and para 206 of the Manual. This Order of the Principal Bench was challenged before the Supreme Court both by the Union of India and by Junior Telecommunication Officers Association (India). The SLP Nos.19716 and 19722 of 1991 were dismissed on 06.01.1992. While dismissing the SLPs this Court observed:-
“......The Principal Bench has followed the judgment of the Allahabad High Court in Writ Petition Nos.2739 and 3652 of 1981 decided on February 20, 1985. SLP (C ) Nos. 3384-86 of 1986 against the judgment of the Allahabad High Court have already been dismissed by this Court on April 8, 1986. We see no grounds to interfere. Special Leave petitions are dismissed".
“Subsequently, the same questions were again agitated before this Court in 1993 Supp (4) SCC 693 Junior Telecom Officers Forum and Others Vs. Union of India and Others and 1994 Supp (2) SCC 222 Telecom Eng. Service Association (India) & Anr. Vs. Union of India and Another but those writ petitions were dismissed.
“In the meantime, the Madras Telephone SC & ST Social Welfare Association filed a WP before the Madras High Court with a prayer that the eligibility list must be prepared by determining the seniority on the basis of confirmation as Junior Engineer. It was transferred to the Tribunal as TA 909 of 1986 and the Tribunal by its judgment dated 31.12.1986 held that the year of recruitment for the purpose of seniority is extraneous and irrelevant and accordingly directed that the eligibility list be arranged according to the year of passing the qualifying examination. As amongst those who pass the examination in the same year, the list should be according to their merit as seen from the marks obtained in the examination.
“The decision of the Tribunal was challenged before this Court in Civil Appeal No.4339 of 1995 and the judgment of this Court is reported in (1997) 10 SCC 226 Union of India Vs. Madras Telephone SC & ST Social Welfare Association; This Court held :
“......The Tribunal neither accepted their statement nor did it uphold the Department's case but directed that these lists should be prepared on the basis of the year of the passing of the Departmental Qualifying Examination and not on the basis of the year of recruitment/ appointment.   In our opinion what the Tribunal has done really amounts to rewriting the rule which should not have been done by it.  The appeal is accordingly allowed.”
“In view of the earlier judgments of this Court (in 1993 & 1994) and the judgment of 1997 which apparently took a contrary view, the Union of India found difficulty in implementing the order of this Court and, therefore, it filed an application for clarification which came to be disposed of by this Court along with other applications, petitions and civil appeals, by a common judgment reported in (2000) 9 SCC 71 Union of India Vs. Mdadras Telephone SC & ST Social Welfare Association.
“Shorn of unnecessary details this Court took the view that the judgment of this Court in CA No.4339 of 1995 laid down the correct law. It did not approve the view of the Allahabad High Court observing that once the statutory recruitment rules came into force and the procedure was prescribed under the said Rules for preparation of eligibility list for promotion by Notification dated 28.06.1966, it is that procedure which has to be adopted, and the earlier administrative instructions contained in para 206 of the P & T Manual cannot be adhered to. It observed that the contrary conclusion of the Allahabad High Court was undoubtedly incorrect. However, it made a pertinent observation and clarified as follows:-
"We, however, make it clear that the persons who have already got the benefit like Parmanand Lal and Brij Mohan by virtue of the judgments in their favour, will not suffer and their promotion already made will not be affected by this judgment of ours.”
4. After discussing this much Hon'ble Justice Sinha notes that the matter didn't rest there.  The affected parties sought clarification vide IA No.16 on this issue and came to be decided by a 3 Member Bench including him. The final paras of his judgment as reported in (2006) 8 SCC 662 have dealt with these fresh claims and it is held:-
18. The question that arises as to whether the applicants can claim the protection of their seniority and consequent promotion on the basis of observation and the clarification contained in the judgment of this Court reported in Madras Telephone.  Having considered all aspects of the matter we are satisfied that those whose cases stand on the same footing as that of Parmanand Lal cannot now be adversely affected by re-determination of their seniority to their disadvantage relying on the later judgment of this Court in its judgment Madras Telephones (2000) 9 SCC 71 (supra).

19. We, therefore, direct that such of the applicants whose seniority had been determined by the competent authority, and who had been given benefit of seniority and promotion pursuant to the orders passed by Courts or Tribunals following the principles laid down by the Allahabad High Court and approved by this Court, which orders have been attained finality, cannot be reverted with retrospective effect.  The determination of their seniority and the consequent promotion having attained finality, the principles laid down in later judgments will not adversely affect their cases.”
5. The above Para 19 clinches the issue.  It is explicit that benefit of Parmanand Lal's case is to be given only to those who had gone to the court and none else.
6. Thereafter The Hon'ble Supreme Court while deciding a contempt petition (2008) 11 SCC 579 arising out of the same judgment has held as follows:-
“16. It is obvious that a completely wrong view has been taken by the Government.  It was specifically held by this Court in its order dated 28.09.2006 that such of the employees, whose claims for the seniority on the basis of the qualifying year had become final because of the orders, of the courts, should not be disturbed on account of its subsequent judgment dated 26.04.2000.”
7. With this background it is clear that seniority is to be decided as per year of recruitment, but only those persons' seniority based on year of examination will be protected, who have approached various Benches of CAT or High Courts and got their seniority protected on the same grounds as that of Permanand Lal, before 26.04.2000.
8. The present applications TA No.123, 124 and 125 of 2009 were filed before this Tribunal involving 54 applicants in all.  They came to be decided on 20.09.2011. It was prayed therein that the inter se seniority of the applicants was not decided properly and the respondents department pointed out the decision of the Hon'ble Supreme Court in judgment reported in 2000 SCC 71 decided on 26.04.2000.  In order to look to the issue afresh, both the counsel undertook that on getting certain fresh information from all the applicants regarding their date of entering into service, date of passing the examination, etc., the department would consider the whole issue in the light of all the Supreme Court judgments. The OA was, therefore, disposed by giving such a direction to the applicants as well as the respondents.
9. The present CP No.22/2012 dated 28.03.2012 is now filed on the ground that the applicants had given all the necessary details within the prescribed four months period, but the respondents have not considered their cases. In the CP, the applicants also mention at Para 4 that as per the decision in (2000) 9 SCC 71 dated 26.04.2000 the persons whose seniority has been finalized by applying para 206 of the PNT, Manual should not be disturbed and their seniority should not be altered. However, many of their juniors were given promotions ahead of them disturbing their seniority and that was the ground in the OA.
10. The Respondents have filed their Reply enclosing a speaking order passed by them on 21.08.2012, it states as below:-
“representations received from the applicants have been examined. It is intimated that the seniority of entire cadre of TES Gr.B equivalent to SDE(T) was revised on Recruitment year basis in the year 2001 in compliance of Hon'ble Supreme Court judgment dtd.26.4.2000. On the other hand, the seniority of comparable officers viz V.K.Mahuli etc have been revised on qualifying year basis in compliance of Hon'ble Supreme Court judgment/order dtd.25.3.2008 in IA No.16 in CA No.4339/1995.
The seniority on qualifying year basis following the principles laid down by the Allahabad High Court in respect of comparable officers, was determined in duly constituted proceedings which determination had attained finality. Accordingly in pursuance of the judgment dtd.25.3.2008 of the Apex Court seniority of these officers has been revised vide DOTs letters dtd.19.5.2008 and 21.5.2008. Your seniority has not been determined by any order of court or tribunal in duly constituted proceedings on the basis of principles laid down by Allahabad High Court as it has not been stated/mentioned in Oas/TAs. Hence, your claim for the revision of seniority on qualifying year basis as done in case of comparable officers cannot be acceded to.
It is also intimated that BSNL has already approached Hon'ble Supreme Court in respect of similarly placed persons who do not have favourable order from any court or tribunal. Two SLPs filed by BSNL in respect of such persons are pending before the Hon'ble Supreme Court.
1. SLP No.5145/2012- UIO & Anr. Vs. Om Prakash & Others.
2. SLP No.3319/2012-BSNL Vs. Mhar Singh & Others.

Further the Hon'ble Supreme Court had issued notice and stayed the contempt proceedings.”
11. It is, therefore, the case of the respondents that the present 57 applicants who have not received any protection of their seniority by any particular order of the Tribunal prior to the judgment on 26.04.2000, cannot now get the protection atleast until the two said SLPs No.5145 & 3319 of 2012 have been decided by Hon'ble Supreme Court.
12. In view of the above, speaking order of the department and also in view of the facts that some of the similar contempt proceedings have been stayed by the Hon'ble Supreme Court, we dismiss the CP and discharge the notice. Liberty, however, is granted to the present 57 applicants to approach the suitable forum after the two SLPs Nos.5145 & 3319 of 2012 have been decided by Hon'ble Supreme Court. No order as to costs.


(Shri V. Ajay Kumar)   (Smt.Leena Mehendale)
    Member (J)                       Member (A)


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