BISWANATH DASGUPTA Vs. UNION OF INDIA

JUDGEMENT

(1.) HEARD Mr. A. Dasgupta, learned counsel for the petitioner and Mr. D. Baruah, learned Standing Counsel, for the respondent BSNL.

(2.) THE petitioner initially joined the services of the Indian Posts and Telegraph Department on 14. 08. 1965 as a Telephone Operator at Bongaigaon Telephone Exchange and was released from the strength of Bongaigaon Exchange on 04. 07. 2006 by the Junior Engineer (Telegraphs ). The petitioner continued to work under the Assistant Engineer (Trunks), Guwahati, till 1980. Thereafter, the petitioner made a request to the authorities concerned to transfer him from Guwahati to Bongaigaon and accordingly, he was transferred to Bongaigaon Telephone Exchange on 23. 08. 1980 under the Department of Telecommunications whereupon his name was struck-off from the strength of the Unit namely C. T. X. Guwahati. Thereafter, he was promoted from the post of Telephone Operator to the post of Senior Grade Telephone Operator on 30. 11. 1983 and his name appeared at serial No. 102 of the Telephone Operators prepared as on 01. 01. 1984. With the creation of Bharat Sanchar Nigam Limited (in short, BSNL), the petitioner became the employee of the BSNL after exercising due option and retired from service as Telecom Operator Assistant (TOMA), Grade-III on 31. 03. 2002 on attaining the age of superannuation. While the petitioner was in service, a Biennial Cadre Review Scheme (in short, BCR) was introduced vide communication dated 13. 12. 1995 in the service of the respondents which provides for promotion to 10% post in the next higher Grade solely on seniority basis. Under the aforesaid scheme, the petitioner was eligible and was within the zone of consideration for promotion to Grade-IV in December, 2001. By a subsequent communication dated 16. 06. 1997 (Annexure-E), the respondent authorities decided to extend the benefit of pay scale of 10% Biennial Cadre Review (BCR) even to the staff working in the restructured cadre from the date their juniors in the old cadre have been given benefit as per seniority in the basic Grade of the old cadre. As per the draft gradation list for the cadre of TOA (P) as on 31. 03. 1999 of the Bongaigaon SSA, the petitioner's name was placed at serial No. 18 and amongst the Grade-III employees, his name was placed at serial No. 14. Inspite of clear-cut and categorical instructions contained in the communication dated 16. 06. 1997, the respondent authorities deprived the petitioner of his due promotion and as such, he submitted a representation dated 15. 02. 2002, before the Telephone District Manager, BSNL, Bongaigaon, to consider his case for promotion to Grade-IV. Without considering his case, one Sri Dashi Ram Kalita, TOA (G), Grade-III, whose case was exactly similar to the petitioner, was promoted against 10% BCR Grade-IV post but the same has been denied to the petitioner. The petitioner then submitted another representation dated 19. 03. 2004 before the Chief General Manager, Assam Telephone Circle, Guwahati (respondent No. 3) followed by representations dated 12. 04. 2005 and 08. 06. 2005 but to no effect. Then the petitioner served a Legal Notice dated 27. 07. 2005 upon the respondent authorities claiming promotion and other benefits. This time, the petitioner was informed through his counsel, by the Divisional Engineer (P and A), O/o GMDT, Bongaigaon, vide letter dated 12. 09. 2005, that since the petitioner on request, availed transfer, he lost his seniority as per Rule 38 of the P and T Manual Vol.-IV and he is no longer in the basic cadre and as such, he is not entitled to claim promotion under the aforesaid scheme. This communication/ letter dated 12. 09. 2005 (Annexure-R) denying promotion to the petitioner has been challenged in the present writ petition.

(3.) THE respondent authorities filed a counter affidavit on 05. 04. 2007 and the matter was taken-up for hearing on 26. 08. 2008 and it was posted for further hearing on 24. 11. 2008. In the meantime, on 18. 11. 2008, the petitioner filed a rejoinder to the counter affidavit of the respondent authorities and when the matter was listed for further hearing on 24. 11. 2008 and 28. 11. 2008, the learned standing counsel for respondent BSNL submitted that he had obtained some relevant instructions and wants to place the same on record by filing additional affidavit. The respondent authorities, thereafter, filed the said affidavit on 19. 01. 2009 and the matter was finally heard on 22. 01. 2009.