Tuesday, April 17, 2012

TA no 111 of 2009 -- when pronounced?






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)


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)


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.



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