Delhi High Court
Bharat Sanchar Nigam Ltd. & Anr. vs M. M. Sharma & Ors. on 5 February, 2010
Author: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C.) No. 762/2010
% Date of Decision: 05.02.2010
BHARAT SANCHAR NIGAM LTD. & ANR. .... Petitioners
Through Mr. Rajendra Singh Rana, Advcate
Versus
M. M. SHARMA & ORS. .... Respondents
Through None
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be Yes
allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported in No
the Digest?
MOOL CHAND GARG, J.
*
C.M.Nos. 1595-1596/2010 (exemption)
Exemption allowed subject to all just exceptions.
Applications stand disposed of.
CM Nos.1597-1598/2010 (delay)
For the reasons stated in the applications, delay is condoned.
Applications stand disposed of.
W.P.(C) No.762/2010
1. The petitioners have filed the present writ petition assailing the
order dated 30.03.2009 passed by the Central Administrative Tribunal
(hereinafter referred to as "the Tribunal") in TA No. 420/2009, whereby
the Tribunal has directed the petitioners to grant similar benefits to the
respondents as have been granted to their juniors in terms of the order
of the Hon‟ble Supreme Court dated 9.10.2002 in Civil Appeal No.
10692/1995.
2. During the course of arguments, learned counsel for the
petitioners fairly conceded that the petitioners are similarly situated as
the applicants who were allowed to intervene vide orders passed in Civil
Appeal No. 10692/1995 with C.A. No. 5031-5041/1996 by the Hon‟ble
Supreme Court. In the said order, the Hon‟ble Supreme Court upheld
the decision of the Central Administrative Tribunal (Bangalore Bench)
as well as the decision of the Central Administrative Tribunal (Chennai).
While granting the relief in the said petition the Hon‟ble Supreme Court
has also considered another judgment given by the Hon‟ble Supreme
Court in Santosh Kapoor Vs. Union of India & Ors. on the basis of which
the petitioners submitted that the judgment of the Central
Administrative Tribunal impugned before us is per incuriam. It may
however be observed that no particulars of the said case has been given
by the petitioners either in their petition or in the counter affidavit filed
before the Central Administrative Tribunal. However, there is a mention
of this judgment by the Hon‟ble Supreme Court in the order dated
9.10.2002 passed in Civil Appeal No. 10692/1995. The relevant
observations made by the Hon‟ble Supreme Court in the aforesaid case
are reproduced hereunder:-
Having heard the submissions of the parties, we are of the
view that the appeals must be dismissed and the decision of the
Tribunal be upheld. The reasoning of the Tribunal particularly
its finding that the BCR scheme in fact amounted to an
amendment of the existing Rules by an administrative order is
unexceptionable. Logically speaking this should lead us to
strike down the scheme altogether. However, given the fact that
the scheme has been in operation since 1990 and also that the
contesting respondents are quite content with having their
alternative prayer as granted by the Tribunal we do not do so.
In addition to the fact that the scheme is in contravention of
the existing Rules, by virtue of the BCR scheme the contesting
respondents‟ seniority in Grade-II was taken away. Those who
had not been able to pass the examinations for promotion from
Grade-I to Grade-II and who had continued to serve in Grade-I
were allowed to leap -frog over the contesting respondents by
the BCR scheme by being granted scales of pay in respect of
posts in Grade-III. As a result not only were the contesting
respondents superseded without being considered for
promotion to Grade-III at all when their juniors were
considered, but their chances of being further promoted to
Grade-IV were effectively forestalled as promotion from Grade-III
to GradeIV would be strictly on the basis of seniority prsumbaly
in the grade below. Since the contesting respondents having
not all being promoted to Grade-III they would not be in a
position to be considered for promotions to Grade IV whereas
the beneficiaries of the BCR scheme would, by virtue of the
scheme be in a position to be considered for further promotion
to Grade-IV. Indeed according to the contesting respondents
the BCR scheme has resulted in some of its beneficiaries getting
Grade-IV of pay already. There is also substance in the
submission of learned counsel for the respondents that the
recruitment rules as well as the BCR scheme provide for
consideration of suitability and fitness as criteria for
advancement. Necessarily the consideration for promotion to
the next grade should be from the grade immediately below. As
a result of the BCR scheme however the beneficiaries have been
promoted from Grade-I to Grade-III and possibly Grade-IV
without any consideration of their suitability in terms of the
rules of scheme. Nevertheless the contesting respondents do
not seek the withdrawal of any benefits which may have already
been granted under the BCR scheme to these employees. What
they only want is that they should be granted at least a parity
with those who in Grade-II were junior to them. It has to be
recorded that the system of promotion by examination from
Grade-I to Grade-II has since been abolished in 1983 therefore,
the contesting respondents represent a class of employees who
had been promoted on the basis of departmental examinations
successfully taken by them prior to that date.
The decision in Santosh Kapoor‟s case has rightly been
distinguished by learned counsel appearing on behalf of the
respondents. That decision was concerned with an
interpretation of the scheme vis-à-vis the beneficiaries therein.
The dispute was with regard to the respective inter se seniority
of the beneficiaries under the scheme. We are on the other
hand concerned with a challenge to the scheme and its effect on
persons claiming seniority under the Rules. The decision in
Santosh Kapoor of the Tribunal or of this Court upholding the
decision of the Tribunal is therefore no material.
Incidentally clarifications have been issued from time to time
by the appellants in 1992 and in 1994 by which it appears to us
that the appellants have compounded the confusion. The
clarification purport to state that the seniority of those who
were in Grade-II by reason of their merit would be maintained
in Grade-II although they would not be entitled to the scales of
pay which their juniors were getting in Grade-III. It has also
been "clarified" that the promotion of such officials namely
merit based Grade-II employees to Grade-IV that is in the pay
scale of Rs. 3200/- would be governed by their seniority quite
over looking the fact that if the contesting respondents
remained in Grade-II they would not be in a position to be
considered for promotion to Grade IV at all. The „clarification‟
cannot take away the rights of the contesting respondents for
promotion on the basis of the seniority in Grade-II as obtained
in 1983. Nor can they be denied any benefit to which any of
their juniors may be entitled by virtue of either of the OTBP
scheme on the BCR scheme.
3. Thus, we do not find any infirmity in the order passed by the
Tribunal which calls for no interference of this Court while exercising its
jurisdiction under Article 226 of the Constitution of India for the simple
reason that firstly, there is no infirmity in the order of the Tribunal;
and, secondly, this Court cannot sit in appeal against the judgment
delivered by the Hon‟ble Supreme Court after considering its own
judgment in the case of Santosh Kapoor (supra). The writ petition is
accordingly dismissed.
CM No. 1594/2010 (Stay)
In view of the orders passed above, this application has become
infructuous and is disposed of accordingly.
MOOL CHAND GARG, J.
FEBRUARY 05, 2010 ANIL KUMAR, J.
'dc'
