MTNL AND ORS. Vs. JASBIR SINGH

JUDGEMENT

(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. 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:

(3.) 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: