CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH
: BANGALORE
TRANSFERRED APPLICATION No. 314 OF 2010
TODAY, THIS THE 6th DAY OF APRIL, 2011
HON'BLE SMT. LEENA MEHENDALE ... MEMBER (A)
HON'BLE SHRI V. AJAY KUMAR .. MEMBER (J)
Sri R.S. Naik – II,
aged about 54 years,
S/o Subbaiah Naik,
Working as Telephone Mechanic,
Telephone Exchange, Kumta. ... Applicant
(By
Advocate Shri M.S. Bhagwat)
Vs.
1. The General Manager,
Bharat
Sanchar Nigam Limited,
Karwar.
2. The Chief General Manager (Telephones),
Bharat
Sanchar Nigam Limited,
No.1,
Swami Vivekananda Road,
Ulsoor, Bangalore-560 008. ... Respondents
(By
Advocate Shri Vishnu Bhat)
O R D
E R
Hon'ble Smt. Leena Mehendale, Member (A) :
This Transferred Application dated
3.4.2010 was originally filed with the Hon'ble High Court of Karnataka in Writ
Petition No.485/2008 on 8.1.2008.
2. The applicant prays for quashing the
order at Annexure-A ordering refixation of pay scale of the applicant with
effect from 1.12.2007 by the Bharat Sanchar Nigam Limited.
3.
Some historical facts of the case are required for understanding the issue in the
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OA. The
applicant joined the department as a Lineman. As per Annexure-A/7, he was drawing Rs.4050/-
in the pay scale of Rs.3200-85-4900/- as on 1-1-2000 as SIO. He was promoted as TM (Telephone Mechanic) on
22-1-2000 and his pay was fixed at Rs.4100/- with effect from 22-1-2000 and the
date of next increment was 1-1-2001.
Things were smooth so far.
4.
Thereafter, from 1-10-2000 BSNL
became a new entity separate from DOT and the pay scales were revised from
earlier CDA scale to new IDA scale. On
25.2.2002, the respondents issued notification which allowed the employees to
give a revised option for pay fixation within a month (Annexure-E). The applicant gave his option on 28.8.2003
(Annexure-F) and the BSNL rejected his option by the endorsement order dated 30.09.2003.
So the applicant approached the High Court of Karnataka in W.P.
No.800/2004. The High Court allowed the
same (Annexure-K) and directed the BSNL to consider the case for fixation of
pay as per the option given by him.
BSNL once again obtained fresh
option from him on 15.02.2006 and carried out the pay fixation. The new pay fixation order was passed on
5-12-2006 (Annexure-A/18). Thus, the
things became satisfactory for the applicant once again. We must mention here that he did not challenge
this order even though it contained two errors as will be seen later. One of them heavily favoured the applicant.
5. It is the contention of the applicant
that nearly one year later, the BSNL issued a letter dated 7.12.2007
(Annexure/A-1) which is impugned and which would have the effect of reducing
his pay. The said letter gave an
opportunity to the applicant to submit his representation within 15 days
failing which it would be presumed that the suggested change would be accepted
by him. On 18.12.2007, the applicant
represented that the new refixation of pay was opposed to the direction of the
Hon'ble High Court issued in earlier WP No.800/2004. However, without passing any order on the
representation, the BSNL
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proceeded
straightaway to reduce this pay allegedly from Rs.7845/- to Rs.7290/- with
effect from 1.12.2007. This is borne out
from the salary slip issued to him in January,2008 pertaining to his salary for
December,2007. Hence, the applicant
filed the second Writ Petition No.485/2008 challenging the reduction of pay, being opposed to Article 14 of the
Constitution. The same Writ
Petition was transferred to this Tribunal
as T.A. No.314/2010 and is now under consideration.
6. It is seen from Annexure–'A' - an order
from BSNL No.E-31-2/Anomaly/94 dated 07.12.2007 which is the impugned order for
reduction in pay that the reasons assigned therein are as below::-
….”as per Govt. Of India, M O C & IT, DOT New Delhi Letter
No.1-1(1)/06-PAT dated 12-09-2006 endorsed under Corporate Office letter
No.1-5/2004-/PAT(BSNL) dated 11-10-2006 received under CGMT Bangalore Letter
No.A&P/1-1/Rlgs/2006-07 dated 25.11.2006 your pay should have been fixed
from CDA Scale to IDA scale on point to point basis (Copies are enlosed
herewith)”
7.
By examining this point-to-point
correspondence the pay which was fixed earlier at Rs.6660/- with effect from
01.01.2001 was brought down to Rs.6180/-. The department did not point out
any recovery for the period from 01.01.2001 to 30.11.2007. The department implemented the new pay only
with effect from 01.12.2007. Thus, while the applicant drew the salary of
Rs.7845/- in Novermber, 2007, the salary paid in December, 2007 and thereafter
was at the rate of Rs.7290/-.
8. So,
the pertinent question here is whether the respondent is justified in issuing
Annexure-'A'. In the TA as well as in
the expanded version filed before the Tribunal and during arguments, only two
points were agitated to suggest that this was not justified. Firstly, the learned counsel vehemently claimed
that this was against the first order of the High court in WP No.800/2004. No
calculation is submitted to support how it was so.
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The second argument was that the respondent
department proceeded to give effect to the impugned order at Annexure-'A' by
ignoring and not answering the representation dated 18-12-2007.
9.
It is seen from the reply
statement at paras – 8 and 9 that the department has justified the impugned
order date 7-12-2007. The department has taken into account the order issued by
the Hon'ble High Court of Karnataka in the first Writ Petition No.800/2004 and gave one more opportunity to the
applicant to give his revised option for pay fixation. Then, accepting his revised option they
refixed the pay at Rs, 4100/- (CDA scale) with effect from 22.01.2000 up to
30.09.2000 and with effect from 01.10.2000, i.e., the date of BSNL coming in
existence, the CDA scale became due for conversion into IDA scale. The old IDA scale was Rs.4000 – 100 – 6000
and equivalent new IDA scale became 5700 – 160 – 8100. Thus his old CDA pay of Rs.4100/- with effect
from 22.01.2000 became Rs.5860/- in IDA scale from 1-10-2000 to 31-12-2000.
Considering him as eligible for one regular and one added increment, as per
option and considering his next date of increment as 01-01-2001 he was given
benefit of not one but two increments with effect from 1-1-2001. This is in accordance with the instructions
given by the Hon'ble High Court in the first WP No.800/2004. Thus his pay on 01-01-2001 would become Rs.5860/-
+ Rs.320/- = Rs.6180/-. Had he not been
given one additional increment as directed by the High Court and as per option, his salary on 01.01.2001 would be limited
to Rs.5860/- + Rs.160/- which would be equal to Rs.6020/- only.
10. Therefore,
at reply statement para-8 it is correctly argued that the office has complied
with the orders of the Hon'ble High Court and refixed his salary after
accepting his revised option. It was
however, erroneously calculated
as Rs.6660/- with effect from 01.01.2001 while it should have been only
Rs.6180/-. This is the error we have mentioned
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at para 4 (supra).
This error continued without notice till 30.11.2007 and hence, the same
needs to be corrected.. The department
has revised it only with prospective effect i.e. from 01.12.2007 and not
from 01.01.2001, i.e., not with
retrospective effect.
11.
Coming back to the application
filed by the applicant in Writ Petition No.485/08 now T.A.314/10, it is seen
that up to para-2.3 the applicant has mentioned privious history till the
decision of the High Court in first Writ Petition. The effect of the order passed in Writ
Petition 800/2004 has been written down by way of a chart at para – 2.4. It is seen therefrom that upto December, 1999
he was in a junior post having pay scale Rs.3200 – 85 – 4900 and was then
drawing pay of Rs.4050/-. His date of promotion as T.M. was 22-01-2000 on which day his CDA pay became
Rs.4100/- in the scale Rs.4000-100-6000/- and on 1-10-2000, corresponding IDA
pay became Rs.5860/- in the scale
Rs.5700–160–8000/-. Thus, it appears
that F.R.22(1)(a)(ii) has been applied when the salary became Rs.4100/- with
effect from 22.01.2000. The equivalent
Rs.5860/- in the IDA scale, continued till 31-12-2000.
12.
Upto this point the Chart at para
– 2.4 is in agreement with Annexure-A/18 as well as with what is stated in the
impugned order dated 07.12.2007. Next
line of para – 2.4 goes to state that the salary which was Rs.5860/- upto
31.12.2000 would become Rs.6660/-, and this also tallies with what was actually
mentioned in order at Annexure-A/18.
13. A mere comparison of the pay due upto
31.12.2000 and the pay that would become
due on getting two increments wef 01.01.2001 reveals the incorrectness of pay
fixation in Annexure -A/18. The pay of
Rs.5860/- upto 31-12-2000 must, on two increments become Rs.6120/- and not
Rs.6660/-. Further just as the
respondents have not
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noticed it, so also the applicant has not noticed
or mentioned it and continuned to enjoy the benefit of the mathematical error
committed in pay fixation. It is for
this reason that in subsequent paras of the OA he has not given any justification as to why the
salary could be Rs.6660/- with effect from
01.01.2001. He only agitated that
the show cause notice given to him was dated 07.12.2007 and received by him on
18.12.2007 giving him 15 days period for representation. Then, even before the period of 15 days was
over the department had proceeded to draw the salary for December, 2007 on the
basis of the corrected pay fixation statement.
The applicant also refuses to call it a corrected pay fixation statement
but chooses to call it only refixation statement. His second ground is that such a reduction is
against the High Court order in W.P. No.800/2004 but without elaborating
how. In his expanded application before
Tribunal he has raised a third ground which very interestingly argues the issue
of FR 2291)(a)(i) and FR 22(1)(a)(ii).
This needs a mention despite being a minor issue. At para 4.5 of the expanded application, the
applicant has stated that he had requested his revised option under FR
22(1)(a)(i) after getting promotion as TM on 22-1-2000. However, the pay revision granted to him from
22-1-2000 is as under FR 22(1)(a)(ii) which is against his option as well as
the direction given by the High Court.
However, beyond this one sentence, he has not proceeded to elaborate the
matter.
We have examined the
above two rules as well as the pay fixation given to him by order dated
5-12-2006. We find that he was drawing a
pay of Rs.4050/- as on 1-1-2000 in the earlier grade of SIO. On his promotion on 22-1-2000, his pay was
fixed at Rs.4100/- which comes to the next stage of the scale of Rs.4000-100-6000/-. This is as per FR 22(1)(a)(ii). This seemingly wrong situation continued upto
39-09-2000 and upto 31-12-2000 in the equivalent IDA scale. However, it did not continue from 1-1-2001
onwards. From that date, the department gave him the benefit of one additional
increment, thus
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giving him two increments between 22-1-2000 and 1-1-2001 and bringing
his pay to Rs.4300/- in CDA scale. Had
the department scrupulously followed FR 22(1)(a)(i), the effect would have been
to give him one added increment on 22-1-2000 and the regular increment on
1-1-2001 which would again bring him to the same level of Rs.4300/- of the CDA
scale. Had they continued with FR
22(1)(a)(ii) he would get only one increment and his CDA pay would remain at
Rs.4200/- on 1-1-2001. Thus, the
discrepancy is only for the period from 22-1-2000 to 31-12-2000 but corrected
with effect from 1-1-2001. This order was issued to the applicant on 5-12-2006
(Annexure-A/18). Had he wanted to raise
an objection regarding his pay fixation from 22-1-2000 to 31-12-2000, he should
have done so within one year (Annexure-A/18).
However, the applicant did not choose to raise the objection for
the very obvious reason that by the same
order, his slary from 1-1-2001 became
Rs.4300/- in CDA scale whose equivalent in the IDA scale was Rs.6180/- but was
erroneously mentioned as Rs.6660/-.
Thus, giving a benefit of about Rs.500/- p.m. He continued to enjoy this extra benefit upto
30-11-2007. Therefore, we feel that if
he wants to claim the benefit of FR 22(1)(a)(i) for the period from 22-1-2000
to 31-12-2000, then he also must forego the erroneous benefit that he received
for the period from 1-1-2001 to 30-11-2007 which is almost seven years. In any case, the claim for the period
22-1-2000 to 31-12-2000 is also barred by limitation considering that he
received pay fixation order on 5-12-2006, but he filed the writ petition only
on 8-1-2008 and that too not for challenging his pay fixation for the period
from 22-1-2000 to 31-12-2000. We would therefore, not say more about those 11
months, but reiterate that the benefit which he received from 1-1-2001 was as
per FR 22(1)(a)(i) and the error for the eleven months of the year 2000 can be
ignored at this late stage.
14.
In the conclusion we see that no
injustice has been done to the applicant as far as his revised option is
concerned. The revised option was duly
considered and he was
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given the benefit of two
increments from 01-01-2001. The pay
fixation order in Annexure-A/18 dated 05-12-2006 gives this effect and goes on
to fix the pay as per High Court direction.
However effect of two increments would be to increase the pay from
5860/- to Rs.5860/- + Rs.320/- = Rs.6180/-.
It was an error to order it as Rs.6660/- . The department has acted judiciously in not
ordering any recovery for the extra salary paid from 1-1-2001 upto 30-11-2007
and have ordered the reduction of pay only from 01.12.2007. There is no need to interfere with that
order.
15. The TA is therefore, dismissed. No order as to costs.
(V.
AJAY KUMAR) (LEENA
MEHENDLE)
MEMBER (J) MEMBER (A)
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