Central Administrative Tribunal
Principal Bench
Original Application No.1902/2010
New Delhi, this the 27th day of March, 2012
Hon ble Dr. Veena Chhotray, Member (A)
Hon ble Dr. Dharam Paul Sharma, Member (J)
Shri Hari Kishan Sharma,
S/o Shri Sultan Singh
Near I.T.I. Patodi Road,
REWARI-123401.
Applicant
(By Advocate : Shri U. Srivastava)
Versus
1. Bharat Sanchar Nigam Ltd.
Through Chairman & Managing Director,
Bharat Sanchar Bhavan,
Harish Chandra Mathur Lane,
Janpath, New Delhi.
2. Union of India,
Through the Chairman,
Telecom Commission,
Department of Telecom,
Sanchar Bhavan,
New Delhi.
Respondents
(By Advocate : Shri P.K. Mathur)
ORDER
Dr. Veena Chhotray, Member (A):
The applicant, initially brought on deputation to the BSNL, had been appointed as a Junior Accounts Officer vide the order dated 7.3.2005. He has superannuated w.e.f. 31.3.2009. Though the applicant has got the benefit of the IDA pay scale from the date of his regular appointment in the BSNL; through this OA he is agitating claims for grant of arrears on this account for the period prior to this. The OA seeks the following relief:-
8 (b) To direct the Respondents to consider and finalize the claim of the applicant for granting the Arrear of IDA Pay Scale for the period 1-10-2000 to 7-2-2005 (deemed deputation)
2. The learned counsels Shri U.Srivastava and Shri P.K. Mathur would appear respectively for the applicant and the respondents.
3. The brief facts are that the applicant had been appointed as a Postal Clerk in the Department of Posts in the year 1973. He had passed the Junior Accounts Examination Part-II Postal in 1990. During the year 1999 he was brought on deputation to the Telecom Directorate. On formation of the BSNL in the year 2000, his services were transferred along with the other staff to BSNL w.e.f. 1.10.2000. The applicant continued to work in the BSNL with extension of deputation from time to time. He was finally appointed as a Junior Accounts Officer in the BSNL vide the Order dated 7.3.2005 (Annex. A/12).
4. Vide its Letter dated 27.2.2003, BSNL decided to make an ad hoc payment of Rs.2,000/- per month to Group B Officers of DoT working on deemed deputation basis in the BSNL. This was pending the finalization of IDA pay scales and their absorption in the BSNL. The ad-hoc payment was made effective from 1.10.2000 (Annex-A/7). As per the applicant, receipt of this ad hoc payment was a voluntary option on the part of an officer. Further, as he had not availed of this; he was eligible for the payment of the full arrears.
5. In support, the other contentions made would be: (i) He had given his option for permanent absorption in the BSNL on 30.9.2000 itself and the same had been forwarded vide the letter dated 11.10.2000. (ii) He had been declared successful in the requisite qualifying examination held by the BSNL on 29.8.2002 and the same had been approved by the competent authority vide the letter dated 24.1.2003 (Annex. A/6). (iii) Despite the fulfillment of all conditions, the appointment order was issued by the BSNL in the year 2005 and thus there had been a delay of more than two years on this account.
Shri U. Srivastava, learned counsel for applicant would also rely on a judgment of the Madras Bench of the Tribunal in the OA No.181/2005 upheld by the Hon ble Madras High Court in the W.P. No.4149/2006 vide its order dated 16.02.2007 (Annex. A/19 and A/20).
6. As per the respondents, the claims being agitated now are baseless; besides being grossly barred by limitation. Shri P.K. Mathur, the learned counsel for the respondents would submit that since the applicant was not a substantive employee of the DoT, he was not covered within the purview of the relevant Circular dated 27.2.2003 being relied upon by him. Para-4 of the Circular would be specifically referred.
As per the learned counsel, at the time of formation of the BSNL to smoothen the transition process, there were bulk transfers of Officers from the DoT on as is where is basis . These included both the substantive officers from the DoT (majority in number) besides the officers belonging to other Departments serving on deputation there. The terms of absorption and the manner thereof were distinctly different for the two categories. While in the former there was a permanent absorption after following the prescribed procedure; in case of the deputationists (also termed as external candidates), the willing officers had been appointed under the DR quota, as per the BSNL regulations. As the applicant was a substantive employee of the Postal Department, on deputation at that time in the DoT, his appointment in the BSNL was under the latter category.
In support, the learned counsel would advert to the OM No. 2-29/2000 dated 30.9.2000 and the distinct sub-paras (i) and (iv) of Para 4 dealing with the two categories differently (Annex A/2). Also the Circular No. 18-11/2000-SEA.II dated 30.9.2000 separately dealing with the subject of permanent absorption of the deputationists working as Junior Accounts Officers in the DoT (Annex A/3). The BSNL OM dated November, 5, 2004, inviting applications from qualified external candidates (on deputation from other Central departments) for appointment in BSNL as JAO under the DR quota would also be referred (Annex A/9). The specific conditions stipulated along with this OM (particularly (ii), (iii), (vii), (ix) and (xvi) would also be highlighted to drive home the point. The condition vide para xvi prescribed:
(xvi) External candidates after resigning from their parent department will join in BSNL as fresh candidates and their service conditions, pay and other entitlements, benefits etc shall be governed by rules and regulations of the BSNL. (They will not be entitled to pension under FR-37-A of CCS (Pension) Rules 1972 which is meant for DOT employees absorbed in BSNL).
The respondents learned counsel would submit that the earlier option for permanent absorption submitted by the applicant in the year 2000 itself was not material in the present context. On the other hand, only after issuance of the aforesaid OM dated 5.11.2004, the willingness submitted in the prescribed form on 22.11.2004 was relevant (Annex A/10). The declaration by the applicant at the time of giving his willingness disclaiming any benefit for the period of service rendered on deputation to DoT / BSNL would also be referred. Shri P.K. Mathur, the learned counsel would also submit that after the clearance of the special exam by the applicant and its approval by the competent authority, several proceduralities needed to be fulfilled before the actual appointment. These, inte alia, included willingness of the Officer, consent of the parent department, repatriation of the officer to the parent department, his resignation there from and the final appointment in the BSNL. Hence, the rival contention of an unduly delay in issuance of the appointment letter would be rebutted.
As regards, the judgment of the Madras Bench of the Tribunal and the Hon ble High Court of Madras, it would be submitted by the learned counsel that even though the applicants in those cases were deputationists from other Departments and not the substantive holders of posts in DOT like the applicant; their claims were very different from those in the present case. In those cases, the applicants had not cleared the requisite accounts examination and were still claiming a right to exercise their option for appointment in the BSNL. (Para 12 of the Hon ble High Court s order would be specifically referred). This had been found entertainable by the Hon ble Court. In any case, as stated in their additional affidavit a Review Petition against this judgment has been filed.
7. We have carefully considered the respective submissions of the learned counsels for the parties and the material on record.
7.1 The applicant had been appointed as Jr. Accounts Officer in the BSNL in the year 2005. He is agitating in respect of certain payments of arrears for the period from 1.10.2000 to 7.2.2005. Agitation of these claims by an OA filed in 2010, that also after he had retired from service, is clearly not within the limitation period prescribed under the Administrative Tribunals Act, 1985. As has been held by the Hon ble Apex Court in D.C.S. Negi Vs. Union of India & Ors. (Special Leave to Appeal (Civil) No.7956/2011 decided on 07.03.2011), the Tribunal which is a creature of the statutory Act, is first of all required to consider an application on the basis of limitation. The present OA is barred by limitation as per Section 21 of the AT Act. The claims are not found to be justified even on merit.
7.2 The claim of the applicant in respect of arrears of IDA pay scales is mainly relying on the Circular dated 30.9.2000 by which the ad hoc payment of Rs.2000/- per month had been granted. The subject of the Circular states about this decision in respect of Group B Officers of DoT and erstwhile DTS/DTO only. Further, para 4 (i) of this OM specifically states about the ad hoc payment being admissible to Officers holding Group B posts in substantive capacity. The applicant, who was substantively from the Postal Department, was working in the DOT on deputation basis. Thus, he was not a substantive post holder of DOT and was not covered by this OM at all.
7.3 It is not disputed that the applicant has been in receipt of the IDA pay scales from the date of his appointment in the BSNL. As is clearly borne out from the documentary proofs adduced on behalf of the respondents, this was as per the BSNL Regulations under the direct recruitment quota and as a fresh recruitment. The pleas raised in the OA tend to blur the distinction between the permanent absorbees in the BSNL from the DoT and the freshly appointed deputationist JAOs from the other Central Departments. As per the terms and conditions stipulated vide the OM dated 5.11.2004, the IDA pay scale had been made applicable in case of such candidates after their appointment as JAO (Para (xi)). It has not been the case of the applicant that even during the period on deputation in the BSNL, prior to his regular appointment, he was entitled to IDA pay scale which has been denied to him. We may also at this point reproduce the declaration furnished by the applicant while communicating his willingness for appointment in the BSNL:
I. I do hereby accept the terms and conditions circulated vide CO, BSNL no.4-85/2003-SEA, dated 05.11.2004.
II. I hereby further declare that I will resign from the post being held by me in my parent department and will not claim any benefit from BSNL consequent on my absorption, for the services rendered by me in the parent department up to the date of resignation in my parent department and before the receipt of formal appointment order issued by BSNL. I will also not claim any benefit for the period of service rendered on deputation to DOT/BSNL.
The claim of the applicant for arrears of IDA pay scales prior to this period is thus not sustainable.
7.4 The reliance placed by the learned counsel for applicant on the decision of the Madras Bench of the Tribunal in the OA No 181/2005 further upheld by the Hon ble High Court of Madras in WP No.4149/2006 is not found to be tenable either because of the distinguishable facts of the two cases. As has been made clear by the respondents learned counsel the issues involved in the Madras case and the present case were entirely different. Evoking the doctrine of circumstantial flexibility , this citation of the judgment is not found appropriate in the present case.
8. Resultantly, for the reasons stated above, the OA is found to be devoid of merit and dismissed hereby with no orders as to costs.
(Dr. Dharam Paul Sharma) ( Dr. Veena Chhotray )
Member (J) Member (A)
/pkr/m
