K.Ajith Kumar vs Bharath Sanchar Nigam Limited
2024 Latest Caselaw 10718 Ker

Kerala High Court

K.Ajith Kumar vs Bharath Sanchar Nigam Limited on 12 April, 2024

Author: A.Muhamed Mustaque

Bench: A.Muhamed Mustaque

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      PRESENT
         THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                           &
        THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
 FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
                            OP (CAT) NO. 101 OF 2016
 ORDER DATED 11.02.2016 IN OA NO.527 OF 2013 OF CENTRAL
           ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONER/APPLICANT IN OA:

               K.AJITH KUMAR, AGED 58 YEARS, STAFF NO.30348, HR
               NO.198211980, DEPUTY GENERAL MANAGER
               (MARKETING), IN THE OFFICE OF THE CHIEF GENERAL
               MANAGER, BHARATH SANCHAR NIGAM LIMITED, KERALA
               CIRCLE, THIRUVANANTHAPURAM RESIDING AT JYOTSNA,
               TC 3/2674, KOWDIAR VILLAGE, THIRUVANANTHAPURAM

           BY ADV SRI.K.P.RAJEEVAN



RESPONDENTS/RESPONDENTS IN OA:

    1          BHARATH SANCHAR NIGAM LIMITED, REPRESENTED BY
               ITS CHAIRMAN AND MANAGING DIRECTOR, CORPORATE
               OFFICE, NEW DELHI, PIN: 110 001.

    2          CHIEF GENERAL MANAGER
               BSNL KERALA CIRCLE, DOORSANCHAR BHAVAN PMG
               JUNCTION, THIRUVANANTHAPURAM, PIN: 695 033.

    3          SR.GENERAL MANAGER HR, BSNL KERALA CIRCLE,
               THIRUVANANTHAPURAM, PIN; 695 033.

           BY SRI.P.J.PHILIP,SC,BSNL


        THIS     OP     (CAT)    HAVING        COME   UP    FOR   HEARING   ON
22.01.2024,           THE     COURT   ON       12.04.2024    DELIVERED      THE
FOLLOWING:
 OP(CAT) No.101/2016

                                 ..2..




                               JUDGMENT

SHOBA ANNAMMA EAPEN, J.

This original petition has been filed by the applicant in

OA No.527 of 2013 on the file of the Central Administrative

Tribunal, Ernakulam Bench, challenging the order of dismissal

dated 11.02.2016.

2. The petitioner/applicant was working as the Deputy

General Manager (Marketing) in the office of the Chief

General Manager, Bharat Sanchar Nigam Ltd. (for short,

"BSNL"), Kerala Circle, Thiruvananthapuram. He entered

service as Junior Engineer on 07.09.1982 and was promoted

as Sub Divisional Engineer on 27.06.1994. While so, BSNL

decided to set up a Marketing Interface Organisation in each

Territorial Telecom Circles/Metro Districts (Calcutta &

Chennai) Headquarters as per Annex.A1 order dated

11.02.2016 and applications were invited as per Annex.A2 to

fill up the various posts including the post of Assistant

Manager (Marketing). Pursuant to Annex.A2 notification, the

petitioner applied for the post of Assistant Manager

..3..

(Marketing) in the pay scale of Rs.8000-13500 and he got

selected and joined as Assistant Manager (Marketing) in

Kerala Circle on 17.01.2003. His grievance is that though he

is entitled for two upgradations as on 17.01.2003, his pay was

fixed in a lower scale and further fixations were also made in

a lower scale. Challenging this, the petitioner approached the

tribunal; and the tribunal, after elaborate consideration of the

issue, dismissed the original application, finding that he is not

eligible for getting the pay fixed in the pay scale of Rs.8000-

13500/-. Hence, this original petition.

3. The issue involved in this original petition is the

entitlement of the petitioner in getting his pay fixed in the pay

scale of Rs.8000-13500/- on assuming charge of Assistant

Manager (Marketing).

4. Learned counsel for the petitioner submitted that it

is pursuant to Annex.A2 notification, the petitioner applied for

the post of Assistant Manager (Marketing) and joined the said

post, who was given the pay scale of Rs.8000-13500 till April,

2013, i.e., till the refixation of pay as per Annex.A8. It is

further submitted that the finding of the tribunal that

Annex.A2 notification became ineffective as on 01.03.2002 is

..4..

not correct and as per Annex.A10 information received under

the Right to Information Act, 2005, the posts of Assistant

Manager (Marketing) are created in circles with the pay scale

of Rs.8000-13500 initially up to 28.02.2002 and thereafter,

retained based on the requests of territorial circles and

further that none of the posts of marketing Interface

Organisation has so far been abolished. Hence, according to

the learned counsel, the petitioner is entitled to the pay scale

of Rs.8000-13500 as notified in Annex.A2.

5. Per contra, learned counsel for the respondents

submitted that the petitioner was a Group B employee and not

belonged to the Junior Time Scale (JTS) cadre. Since the

petitioner was a Group B employee before joining the post of

Assistant Manager (Marketing), he is not entitled to receive

the pay scale of Rs.8000-13500/-.

6. We have considered the rival contentions raised on

both sides. It is pursuant to the decision of the BSNL to set up

a Marketing Interface Organisation in each Territorial

Telecom Circles/Metro Districts (Calcutta & Chennai)

Headquarters that Annex.A1 order dated 11.02.2016 was

issued sanctioning temporary posts as follows;

..5..

  Sl.           Name of the posts, classification & Pay scale     No. of posts
  No.                       + usual allowances

     1         DGM (Marketing & PR) in JAG in the pay scale         1 (one)
               of Rs.12000-16500

     2         Assistant Manager (Marketing) in JTS in the          1(one)
               pay scale of Rs.8000-13500

     3         Assistant Manager (PR) in JTS in the pay scale       1(one)
               of Rs.8000-13500


As       per     Annex.A2    notification   dated   16.01.2002,    the

respondents invited applications to fill up the various posts

including the post of Assistant Manager (Marketing) in

question. The qualification prescribed for the post of Assistant

Manager (Marketing) is PG Diploma in Marketing/Advertising

or higher and the eligibility scale is JTS/Gr.B. The pay scale for

the said post was Rs.8000-13500. The terms and conditions in

respect of internal candidates were as follows;

1. Candidates should have a minimum 10 years of service, left as on 31.12.2001.

2. Candidates should have been working in the eligible scale for at least two years and must have a strong bent of mind for marketing/PR with understanding of its basic concepts.

3. Candidates shall undertake to continue working in the Marketing/PR discipline of BSNL, as long as required.

4. Candidates shall undertake to get absorbed in BSNL,

..6..

as and when decided.

5. On absorption equivalent IDA scale as decided by BSNL shall be applicable, however, till that time, he/she shall continue to draw the present scale as per existing terms and conditions.

6. Selected candidates can be posted in any Circle HQ.

Pursuant to Annex.A2, an addendum notification dated

25.02.2002 as Annex.A2(a) was issued, which reads thus;

"Attention is drawn to this office circular of even number dated 16.1.2002 in which applications have been invited from suitable officers for the above- mentioned Marketing Interface Organization (including PR). In view of an apprehension among officers as regards Para 3(3) of the afore said circular, it is clarified that the promotion prospects for the officers who volunteer to work in the marketing area would remain the same as at present, meaning thereby that when an officer is promoted in the normal way in other areas, the officer of the same seniority in the marketing area would also be promoted. This may kindly be brought to the notice of all the concerned officers who may wish to volunteer for the said posts."

7. Admittedly, the pay scale for Assistant Manager

(Marketing) was fixed at Rs.8000-13500. Annex.A2(a)

clarificatory notification was issued only in respect of the

promotion that would be granted and not in respect of the

cadre, the candidate hails from. It only clarifies future

promotional prospects and does not mention anything about

differential treatment at the time of initial appointment to the

..7..

Marketing Interface Organization like two different scales for

the single post of Assistant Manager (Marketing). It is to be

noted that applications are invited for the said post and the

clarification prescribed was for two different categories,

which were made eligible for the post. Pursuant to the

notification, the petitioner applied to the post of Assistant

Manager (Marketing) and he had to undergo an interview and

accordingly, after going through a selection process, the

petitioner joined the said post. Though Annex.A5 order was

dated 06.01.2006, it was implemented only in the year 2013.

Till the petitioner was appointed as Assistant Manager

(Marketing), the same pay scale notified in Annex.A1 was

given to the petitioner. It was as per Annex.A8 order dated

08.01.2013 that his pay was refixed. When recovery was

effected in 2013, the petitioner approached the tribunal. So, it

cannot be said that the claim is barred by limitation as found

by the tribunal.

8. The respondents cannot classify pay scale for a

very same post, based on eligibility, when two different and

separate categories were made eligible for applying for it. The

petitioner, who was appointed as per the recommendations of

..8..

the Selection Committee, is also entitled to receive the same

pay scale. Annex.A10 issued by the respondents clearly states

that the marketing posts are sanctioned posts and none of

them has been abolished as on 01.02.2007. The petitioner,

who applied to the said post on the basis of Annexures A1 and

A2, cannot be denied the notified pay scale of Rs.8000-13500.

It was stated in Annex.A2 notification that the BSNL is

intended to place a modern and energetic marketing set up at

Corporate and Circle level with the view to accelerate its

performance and equip itself for a competitive environment of

the changing communications scenario nationally and globally

and accordingly, applications were invited from eligible, bright

and enterprising internal candidates having strong urge for

facing challenges, keen to do extensive market study and

having strong creative and innovative bent of mind.

Undoubtedly, such candidates who were selected through the

selection process, cannot be given different pay scales for the

same post. The duties cast upon the candidates are the same,

therefore, the petitioner, who was given the post in question is

entitled to the pay scale of Rs.8000-13500. Hence, we are of

the opinion that the impugned order of the tribunal is liable to

..9..

be set aside and the petitioner is entitled to fixation of pay in

the pay scale of Rs.8000-13500 on 17.01.2003.

Accordingly, the original petition is allowed, as follows;

A. The impugned order of the tribunal is set aside.

B. The respondents are directed to fix the pay of the

petitioner in the pay scale of Rs.8000-13500 from

17.01.2003 with all consequential benefits from April,

2013.

C. Respondents are also directed to reimburse the amount

recovered from the petitioner consequent to Annex.A8,

from April, 2013 onwards.

D. The entire exercise shall be completed within a period of

three months from the date of receipt of a certified copy

of this judgment.

SD/-

A. MUHAMED MUSTAQUE

JUDGE

SD/-

SHOBA ANNAMMA EAPEN

JUDGE bka/-

..10..

                 APPENDIX OF OP (CAT) 101/2016

PETITIONER EXHIBITS

EXHIBIT P1            CERTIFIED   COPY   OF    ORDER   DATED
                      11/2/2016 IN OA NO.527/2013 OF THE
                      CENTRAL    ADMINISTRATIVE    TRIBUNAL,
                      ERNAKULAM BENCH.

Exhibit P2            A   TRUE    COPY   OF   THE   ORIGINAL

APPLICATION NO.527/2013 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH WITH ANNEXURES

Annexure A5 IN OA A TRUE COPY OF LETTER DATED 06.01.2006 ISSUED TO THE APPLICANT.

Annexure A6 IN OA A TRUE COPY OF ORDER DATED 25.10.2012.

Annexure A8 IN OA A TRUE COPY OF REVISED PAY FIXATION MEMO DATED 08.01.2013.

Annexure A1 IN OA A TRUE COPY OF ORDER DATED 04.09.2001.

Annexure A2 IN OA A TRUE COPY OF NOTIFICATION DATED 06.01.2002.

Annexure A2A IN OA A TRUE COPY OF CLARIFICATION NOTIFICATION DATED 25.02.2002.

Annexure A3 IN OA A TRUE COPY OF ORDER DATED 13.12.2002.

Annexure A4 IN OA A TRUE COPY OF PAGE NOS 1 AND 2 OF THE OFFICE MEMORANDUM DATED 18.01.2007.

Annexure A7 IN OA A TRUE COPY REPRESENTATION DATED 27.10.2012.

..11..

Annexure A9 IN OA     A TRUE COPY OF ORDER DATED 03.09.2009
                      IN T.A.NO.124/2009 OF THE HON'BLE
                      CENTRAL    ADMINISTRATIVE   TRIBUNAL,
                      JABALPUR BENCH.

EXHIBIT P3            A TRUE COPY OF REPLY STATEMENT DATED

27/11/2013 FILED BY THE RESPONDENT ON 9/12/2013

Annexure R1(A) IN TRUE COPY OF THE CORPORATE OFFICE OA LETTER DATED 22.06.2005.

EXHIBIT P4 A TRUE COPY OF REJOINDER STATEMENT FILED BY THE APPLICANT ON 6/1/2014

Annexure A10 IN OA A TRUE COPY OF QUESTION UNDER THE RTI ACT DATED 06.12.2006 AND REPLY DATED 01.02.2007.

EXHIBIT P5 A TRUE COPY OF ADDITIONAL REPLY STATEMENT DATED 24/9/2014 FILED BY THE RESPONDENTS ON 25/9/2014

EXHIBIT P6 A TRUE COPY OF ADDITIONAL REJOINDER STATEMENT FILED BY THE APPLICANT ON 8/6/2015

Annexure A11 IN OA EXTRACT OF THE MEETING OF THE BOARD OF DIRECTORS OF BSNL HELD 03.05.2001.

Annexure A12 IN OA COPY OF BSNL CDA RULES 2006.

Annexure A13 IN OA EXTRACT OF PARAGRAPH 2.12.3.2 OF AUDIT REPORT ON HUMAN RESOURCES MANAGEMENT IN BHARAT SANCHAR NIGAM LIMITED (REPORT 9 OF 2006).

EXHIBIT P7 A TRUE COPY OF ADDITIONAL REPLY STATEMENT DATED 5/9/2015 FILED BY THE RESPONDENTS ON 8/9/2015

..12..

Annexure R1(B)IN      TRUE   COPY   OF   THE   LETTER   DATED
OA                    18.01.2007 ISSUED BY THE BSNL CO.

Annexure R1(C)IN      TRUE COPY OF THE UPGRADATION GRANTED
OA                    TO THE APPLICANT.

EXHIBIT P8            A TRUE COPY OF ADDITIONAL REJOINDER
                      STATEMENT FILED BY THE APPLICANT ON
                      5/12/2015

EXHIBIT P9            A TRUE COPY OF THE INTERIM ORDER DATED
                      7/6/2013 IN OA NO.527/2013 OF THE
                      CENTRAL    ADMINISTRATIVE    TRIBUNAL,
                      ERNAKULAM BENCH

Exhibit P10           A TRUE COPY OF LETTER DATED 24.08.2016

FILED BY THE PETITIONER BEFORE THE PGM (FINANCE).

RESPONDENT EXHIBITS

Exhibit R1(A)         TRUE COPY OF JUDGMENT IN WRIT PETITION
                      NO.W.P(C)NO.25323   OF    2005   DATED
                      25.08.2005.

Exhibit R1(B)         TRUE COPY OF THE BSNL CORPORATE OFFICE

INSTRUCTIONS, NO NIL DATED 22.06.2005.