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.
No comments:
Post a Comment