Delhi High Court

Mtnl And Anr vs Jasbir Singh on 29 May, 2015

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                    Judgment delivered on: May 29, 2015.
+      W.P.(C) 7762/2011 & CM APPL. No. 17559/2011
       MTNL AND ANR                                     ..... Petitioners
                          Through      Mrs. Jyoti Singh, Sr. Advocate
                                       with Mr. Vaibhav Kalra & Ms.
                                       Tinu Bajwa, Advocates
                          versus

       JASBIR SINGH                                       ..... Respondent
                          Through      Mr. Shrigopal Aggarwal, Advocate
                                       for the respondent alongwith
                                       respondent in person
       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
       HON'BLE MR. JUSTICE I.S.MEHTA

                              JUDGMENT

KAILASH GAMBHIR, J.

1. Challenge in the present Writ Petition is to the order dated

21.12.2009 passed by the learned Central Administrative Tribunal

(hereinafter referred to as the 'learned Tribunal) in T.A. No.922/2009

and order dated 25.07.2011 passed by the learned Tribunal in R.A.

No.117/2010 in T.A. No.922/2009.

2. Assailing the legality and correctness of the said orders passed by

the learned Tribunal, Mrs. Jyoti Singh, the learned Senior Counsel for the

petitioners submitted that the respondent herein has been wrongly

claiming the pay parity in Pay Scale in Biennial Cadre Review (BCR)

Grade in CDA Pay Scale of Rs.1600-2660/- w.e.f. 29.09.1992 with one

Sh. Jitender Kumar who was placed in higher Pay Scale, without

appreciating the fact that he was appointed to the post of

UDC after declaration of his result on 02.12.1992 and therefore, the

respondent could not have equated himself with the case of Sh. Jitender

Kumar as the facts similar to his case would be settled with one Mr. Jugal

Kishor Wadhwa w.e.f. 01.07.1996. The learned counsel further argued

that the learned Tribunal fell in grave error in not appreciating the fact

that the respondent was much junior to Sh. Jitender Kumar in the UDC

Grade as Sh. Jitender Kumar joined as LDC in the year 1965 while the

respondent has joined as LDC in the year 1981 and reckoning the total

length of service of Sh. Jitender Kumar i.e. 26 years, he became eligible

for promotion to TOA Grade-III (BCR Scale) in terms of the OM dated

09.09.1992. The learned counsel further argued that the BCR scheme

which was announced in the year 1990 by the petitioners was subject

matter of challenge before the learned Tribunal, Bangalore Bench in July

1992. The learned Tribunal had also taken a view that BCR scheme

appeared to be in violation of the Post and Telegraphs Department,

Telecommunication Branch (Selection Grade Posts) Recruitment Rules,

1979 ("hereinafter as Recruitment Rules 1979") but did not strike down

the scheme taking into consideration the interest of large number of

employees who had already been granted relief on the basis of the scheme

over a period of time. The said decision of the learned Tribunal and some

of other Benches was ultimately upheld by the Hon'ble Supreme Court in

the case of Union of India & Ors. v. Leelamma Jacab & Ors., reported

in (2003) 12 SCC 280, and in view of the decision of the Hon'ble

Supreme Court, the respondent now cannot challenge the legality or

constitutionality of the said BCR scheme.

3. The learned counsel also argued that the respondent had appeared

in the competitive departmental examination on 10.08.1992, i.e. before

cut off date of 29.09.1992 and his result was declared on 02.12.1992 and

therefore, his Pay Scale was rightly fixed in parity with Sh. Jugal Kishore

Wadhwa and not in parity with Sh. Jitender Kumar. The learned counsel

also argued that the learned Tribunal while passing the impugned order

wrongly relied upon the fact that the respondent was senior to Sh.

Jitender Kumar whereas Sh. Jitender Kumar was senior to the respondent

and therefore, there is basic fallacy in the reasoning given by the learned

Tribunal. The learned counsel also argued that the petitioner had filed a

Review Petition seeking review of the order dated 21.12.2009 but the said

Review Petition was dismissed by the learned Tribunal vide order dated

30.04.2010, being cryptic and bereft of any reasonable ground.

Thereafter, a fresh direction was given by this Court vide order dated

20.09.2010 in CWP No.4870/2010 wherein, the Court remanded this

matter back for reviewing, yet the learned Tribunal without appreciating

the direction given by this Court and ignoring the entire material placed

on record dismissed the Review Petition filed by the petitioners vide

order dated 25.07.2011. The learned counsel also argued that the learned

Tribunal has failed to appreciate the settled legal position that the

seniority in the case of departmental examination is always reckoned

from the date of declaration of the result and not from the date of

appearance in the examination. Based on these submissions, the learned

counsel for the petitioners strongly urged for setting aside of the

impugned order passed by the learned Tribunal. In support of her

contentions, the learned counsel for the petitioners placed reliance on the

following judgments:

a) Union Of India and Others v. Leelamma Jacob and Others, (2003) 12 SCC 280

b) Government of Andhra Pradesh and Ors. v. N. Subbarayudu and Ors., (2008) 14 SCC 702

c) Ashok Kumar Sharma and Ors. v. Chander Shekhar and Anr., (1979) 3 SCC 489

d) Rupinder Singh and others v. The Punjab State Board of Technical Education & Industrial Training, Chandigarh and others, CWP No. 14903 and 15373 of 1996, decided on 05.03.1997

4. Opposing the present Writ Petition, Mr. Shrigopal Aggarwal, the

learned counsel for the respondent strongly contended that the learned

Tribunal has correctly granted the pay parity to the respondent at par with

Sh. Jitender Kumar as the respondent was senior to Sh. Jitender Kumar

on account of his passing the departmental examination for promotion to

the post of UDC for which the examination was held on 10.08.1992 and

the petitioners had introduced One Time Bound Promotion (hereinafter

referred to as the 'OTBP') in 1983 and an OTS Scheme through an

administrative order later in time, i.e. on 09.09.1992. The learned

counsel also argued that the petitioners have failed to explain the sanctity

of the cut off date i.e., 29.09.1992 and why the LDCs were granted pay

parity as per this date. The petitioners have also ignored that there is no

reasonable nexus with the object that they sought to achieve by laying

down the said cut off date. The learned counsel thus contended that after

having appeared in the departmental examination held under Recruitment

Rules, 1979, the respondent could not have been deprived of the said

right by any subsequent administrative order and therefore, the learned

Tribunal has rightly upheld the claim of the respondent in granting him

pay parity at par with the case of Sh. Jitender Kumar. Based on these

submissions, the learned counsel for the respondent prayed for dismissal

of the present Writ Petition after upholding the order passed by the

learned Tribunal. In support of his argument, the learned counsel for the

respondent placed reliance on the following judgments:

a) Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors., (2013) 4 SCC 540

b) Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Others, (2003) 2 SCC 111

5. We have heard the learned counsel for the parties at considerable

length and have given our conscious consideration to the arguments

advanced by them.

6. The legality, constitutionality and validity of the BCR scheme

which was announced by the petitioners in the year 1992 cannot be

questioned by the respondent after the same was upheld by the decision

of the Apex Court in Union of India & Ors. v. Leelamma Jacob (Supra)

case. This plea of BCR scheme being an administrative order and being

in contravention of the existing Recruitment Rules,1979 was also

considered by the Apex Court in the above judgment and the Apex Court

took a view that since the scheme has been in operation since 1992 and

also the fact that contesting respondent was quite content with having

their alternative prayer as granted by the learned Tribunal, and therefore,

the Court refrained from taking any such view to strike down the scheme

altogether. The relevant paras of the aforementioned judgment are

reproduced as under:

"14. Having heard the submissions of the parties, we are of a 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.

15. 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 leapfrog

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 Grade IV would be strictly on the basis of seniority presumably in the grade below. Since the contesting respondents having not at 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 or 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."

7. The respondent admitted the fact that he was himself a party in

Union of India v. Leelamma Jacob (Supra), the case that was decided by

by the Apex Court and therefore, now he cannot turn around to agitate the

said issue again with regard to the constitutionality of the said

administrative order on the ground that the same is in contravention of the

existing Recruitment Rules, 1979. This plea is thus, no more available to

the respondent.

8. With regard to the question as to whether Sh. Jitender Kumar was

junior to the respondent or the respondent was junior to him, the basic

facts on this aspect are not in dispute. Undoubtedly, in the order dated

21.12.2009 passed by the learned Tribunal, the learned Tribunal has

wrongly assumed that Sh. Jitender Kumar was junior to the respondent

and thus based on this basic canard the learned Tribunal had a view that

the parity of pay is to be restored vis-vis juniors and admittedly with Sh.

Jitender Kumar, his junior, from 29.09.1992, cannot be countenanced in

law. By a Review Petition filed by the petitioners, the petitioners wanted

to draw the attention of the Court to the said glaring error on this

important aspect in the order dated 21.12.2009 treating Sh. Jitender

Kumar as junior to the respondent was junior to Sh. Jitender Kumar. The

learned Tribunal despite the direction given by the High Court vide order

dated 20.09.2010, did not accord any weight-age to this important and

vital fact that Sh. Jitender Kumar had joined as a LDC in the year 1965

while the respondent had joined as a LDC in the year 1981. Prior to

1992, the criteria for promotion under the existing Recruitment

Rules,1979 from the post of LDC to the post of UDC was by two modes-

first, by passing departmental competitive examination and the second

was on the basis of seniority-cum-fitness. The new scheme known to as

OTBP scheme was introduced by the petitioners vide OM dated

09.09.1992. Vide this OM, the post of LDC was re-designated as TOA

(G) Grade-I, thus all those who were in the scale of OTBP were placed in

TOA (G) Grade-II and those in BCR scheme were placed in TOA (G)

Grade-III under BCR scheme. The persons who were working as

LDC/UDC and had rendered 26 years of service became eligible for the

promotion to TOA (G) Grade-III (BCR Scale) by virtue of their total

length of service and thus who had rendered 16 years of service as LDC/

UDC were entitled for being promoted to TOA (G) Grade-II (OTBP

Scale). The respondent herein had appeared in the departmental

examination on 10.08.1992, i.e. much prior to the announcement of the

scheme, i.e. on 09.09.1992 and the result of the said exam was declared

on 02.12.1992. Sh. Jitender Kumar had rendered 26 years of qualifying

service in the LDC Grade and based on his length of service, he was

promoted as TOA (G) Grade-III (BCR Scale) in accordance with the said

scheme and as on this date the respondent was ineligible to be promoted

as TOA (G) Grade- III (BCR Scale) since he had not completed requisite

26 years of length of service as per the BCR scheme. The result of the

respondent was declared on 02.12.1992 and he was promoted as UDC on

08.12.1992 and therefore, the respondent cannot claim parity to draw the

same Pay Scale at par with Sh. Jitender Kumar who had completed 26

years of length of service when he was promoted as TOA (G) Grade-III

(BCR Scale) as on 29.09.1992.

9. Reliance was placed by the learned counsel of the respondent on

the judgment of Tej Prakash Pathak & Ors. case (Supra) wherein the

Hon'ble Supreme Court was faced with the issue that whether criteria of

selection can be altered by the authorities concerned in the middle or after

the process of selection commences i.e. whether the 'rules of the game'

can be changed after the game is played. The Hon'ble Supreme Court

observed that under the scheme of our Constitution an absolute and non-

negotiable prohibition against retrospective law making is made only

with reference to the creation of crimes. Any other legal right or

obligation could be altered, created, extinguished retrospectively by the

sovereign law making bodies. Though no final decision was taken by the

Hon'ble Bench in the matter and the matter was left open for further

consideration of the Hon'ble Chief Justice of India. Thus, reliance cannot

be placed on the above-mentioned case.

10. We find considerable merit in the contention raised by the learned

counsel for the petitioners that it is the date of the declaration of the result

which would be the determining factor to grant Pay Scale on the

promotional post and not the date when the candidate had appeared in a

particular examination. Reliance in this regard can be safely placed on the

judgment of the Hon'ble High Court of Punjab and Haryana in Rupinder

Singh's case (Supra) wherein, it was held that a person is said to have

passed the examination only on knowing the result of his examination.

The relevant para of the same is produced hereunder:

"18. In the light of the above discussion, we are of the considered opinion that a candidate be declared to have passed an examination only with effect from the date on which the result of the examination is declared. The declaration of the result cannot relate back to the date of the examination unless otherwise specifically provided by any Act or Rules as in service jurisprudence. Nor can it legally be taken that by passing supplementary examination the result will relate back to the date of passing of the annual examination. We are firmly of a view that publication of the result of the examination cannot have any retrospective operation by projecting it backward to the date of the examination or to the date of the main examination. If such a course is adopted, we are clear in our mind that it will become impossible to decide the qualification of a particular candidate with reference to any

date like last date of filing the application for any post or for admission to any course. While disposing of the review petition No. 182/96, the Bench went a step further and said that the benefit of the judgment will accrue to petitioners and to all those who had appeared in supplementary examination either in re-appear or in compartment and who have been given admission by the College-Management and whose results were declared after the cut off date. These observations made by the Bench are not correct statements in law. We do not approve the same."

11. In light of the aforesaid judgments, coming to the facts of the

present case, it would be pertinent to note that the respondent was

promoted by virtue of him passing a departmental examination and Shri

Jitender Kumar was promoted by virtue of his length of service and

placing both on equal pedestal would not be fair and just. We find

considerable merit in the submissions made by the learned counsel for the

Petitioner in this regard. The respondent herein was promoted to the post

of UDC from 08.12.1992 after the declaration of result on 02.12.1992

and not from the date of examination i.e. 10.08.1992 however, in our

view he should be granted Pay Parity of the same scale as Sh. Jugal

Kishore Wadhwa, w.e.f. 01.07.1996.

12. In the light of the above discussion, we do not find ourselves in