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2012 DIGILAW 90 (GAU)

Bharat Sanchar Nigam Ltd. & Ors. v. Mardondor Khongwir & Anr.

2012-01-23

AMITAVA ROY, ANIMA HAZARIKA

body2012
Amitava Roy, J:- The subject matter of challenge is the judgment and order dated 17.02.2010, rendered by the learned Central Administrative Tribunal, Guwahati Bench, Guwahati (for short hereafter referred to as the Tribunal) in Transfer Application No. 26/2009, upholding the respondent's claim for benefits under the Lateral Advancement Scheme (for short hereinafter also referred to as the Scheme) of the Ministry of Communications, Department of Telecommunications, Government of India circulated vide communication No. 5-1794-TE-II(Pt), dated 16.05.1995 on and from 01.12.1994 i.e. the date on which she had completed 12 years of regular service in the cadre of Assistant Superintendent Telegraph Traffic (for short also referred to as the ASTT). The respondent had initially laid the challenge before the Shillong Bench of this Court by way of a writ petition registered as WP(C) No. 268 (SH)/2006, which on transfer was registered as T.A. No.26/2009 before the learned Tribunal. 2. We have heard Ms. U. Das, learned counsel for the petitioners and Mr. M. Chanda Advocate assisted by Ms. U. Dutta, Advocate for the respondents. 3. The facts bearing on the service profile of the respondent are not in dispute. She had joined as ASTT onOl.12.1982 under the then Chief General Manager, Department of Post and Telegraph under the Ministry of Communication, Government of India. Eventually, with the bifurcation of the Department of Post & Telegraph, she was placed under the respondent No. 1, Department of Telecommunication [re-named as Bharat Sanchar Nigam Ltd. (for short referred to as the BSNL)]. She has since retired from service while serving as Assistant Director, Telegraph and Traffic in the Office of the Chief General Manager, NE-I Circle, Shillong, BSNL. 4. The then Ministry of Communications, Department of Telecommunication, Government of India had, vide its communication No. 5-10/89-NCS, dated 26.06.1990 introduced the Scheme, namely, Lateral Advancement Scheme of the Junior Telecom Officers (hereafter for short referred to as the JTO) to provide them with higher scale of Rs. 2000-3500/- through matching savings. The pre-condition of eligibility was prescribed to be 12 years of service in the cadre as on 01.01.1990, subject, however, to the fitness and vigilance clearance of the candidate concerned. Till that point of time this benefit had not been extended to the serving ASTT. 2000-3500/- through matching savings. The pre-condition of eligibility was prescribed to be 12 years of service in the cadre as on 01.01.1990, subject, however, to the fitness and vigilance clearance of the candidate concerned. Till that point of time this benefit had not been extended to the serving ASTT. By Communication No.5-194-TE-II(Pt.) dated 16.05.1995, the benefit of the scheme was also accorded to ASTT subject, however, to the following conditions: - "With the merger of ASTT and ITS Gr. 'B' with JTO and SDE respectively the lateral advancement shceme will also be applicable to the erstwhile ASTTs and TTSs on completion of their 12 years of regular service in the cadre provided that: - (i) No ASTT/TTS Gr. 'B' will be given lateral promotion even on completion of 12 years or more of his regular service until all of his eligible senior JTO/SDE are placed in his lateral scale on completion of his 12 years of service. (ii) In the care of ASTTs on merger with JTOs, the lateral advancement scheme will be applicable only after the combined seniority list is approved by the circles concerned." 5. The above extract would reveal that though eligible for availing the benefit under the scheme following the merger of ASTT and TTS w.e.f. 11.04.1994 on completion of 12 years of regular service in the cadre, no ASTTs/TTS was to be granted lateral promotion even on completion of 12 years or more until all his/her senior JTOs/SDEs were placed in the lateral scale on completion of their 12 years of regular service. It was further stipulated that in the cadre of ASTT on merger with JTO, the Lateral Advancement Scheme would be applicable only after the combined seniority list was approved by the « circle concerned. A combined seniority list was, in fact, drawn thereafter, in which, admittedly, one Mohendra Mohan Roy, JTG, recruited in the year 1980 was placed at SI. No.66 above the respondent No. 1, who had been appointed as ASTT in the year 1981 and placed at SI. No.74A. The concerned Departmental Promotion Committee on a consideration of the service profiles of then eligible JTOs/ASTTs on 12.02.1996 recommended the following incumbents for the benefits under the Lateral Advancement Scheme: - "The case of 11 (eleven) officials is under consideration. After careful scrutiny of over all performance based on commends Lateral Advancement from due date of the following JTOs/ASTTs. SI. The concerned Departmental Promotion Committee on a consideration of the service profiles of then eligible JTOs/ASTTs on 12.02.1996 recommended the following incumbents for the benefits under the Lateral Advancement Scheme: - "The case of 11 (eleven) officials is under consideration. After careful scrutiny of over all performance based on commends Lateral Advancement from due date of the following JTOs/ASTTs. SI. Name Due date 1. JokDas,JTO/Agartala 5/5/96 2. Miss M.Khongwir. ASTT 15/1/97 3. Smti.B.Kharmalki,ASTT 15/1/97 4. RKBhattacharjee,JTO/Tura 5/5/96 5. P.Dhekial,JTO 21/12/96 6. M.MRov.JTO 15/1/97" As Sri Mohendra Mohan Roy, JTO at SI. No. 6, was senior in service than the respondent No. 6 and had been granted the benefit under the Scheme w.e.f. 15.01.1997, the official respondents granted the same benefit to her claiming to act in terms of the policy con-tained in the communication dated 16.05.1995. Claiming that having regard to her date of appointment as ASTT to be 01.12.1980, she was entitled to the benefit immediately on the completion of 12 yesrs therefrom, the respondent No. 1 submitted a representation, which was rejected on merit on 22.02.2005 following which she laid the challenge before this Court as referred to hereinabove. 6. Apart from reiterating the above stand, the respondent No. 1 in her pleadings referred to two communications beingNo.TSA/13-50/95-LA, dated 27.08.1996 of the Chief General Manager, Telecommunications, Tamil Nadu Circle, Madras and No.STES-5/40/Pt-1/60, dated 28.08.1996 of the Deputy General Manager (Admn) for the Chief General Manager, Assam Telecom Circle asserting that the incumbents, as named therein, having been granted the benefit of the Scheme on completion of 12 years of regular service as JTOs (re-designated as ASTT following the merger) she was entitled to the same benefit and that the denial thereof by the official respondents is wholly arbitrary and discriminatory. 7. The learned Tribunal on a consideration of the pleadings of the parties and the other materials on record sustained the claim of the respondent No. 1 both on her interpretation of the communications dated 26.06.1990 and 16.05.1995 as well as the analogy of the letters dated 27.08.1996 and 28.08.1996 of the Madras and Assam Telecom Circles. 8. Ms. 7. The learned Tribunal on a consideration of the pleadings of the parties and the other materials on record sustained the claim of the respondent No. 1 both on her interpretation of the communications dated 26.06.1990 and 16.05.1995 as well as the analogy of the letters dated 27.08.1996 and 28.08.1996 of the Madras and Assam Telecom Circles. 8. Ms. Das has emphatically urged that on a plain reading of the modified guidelines for grant of the benefits under the Scheme as incorporated in the letter dated 16.05.1995, in view of the seniority position of the respondent No. 1, her claim for grant of the benefits under the Scheme en completion of 12 years of service on aid from 01.12.1994 is palpably misconceived and, therefore, interference with the impugned judgment and order is warranted. As the DPC on a due consideration of the service records of the respondent No. 1 and other incumbents in the post of JTO/ASTT had granted the benefit under the Scheme to person senior to her w.e.f. 15.01.1997, she was at best entitled thereto on and from that date and, therefore, the learned Tribunal had fallen in gross error in holding to the contrary in absence of any indication in the tote.11 dated 16.05.1995 contemplating grant of benefit under the Scheme with retrospective effect. Steps taken by the Madras and Assam Telecom Circles in connection therewith, as sought to be projected by the letters dated 27.03.1996 and 28.08.1996 are inconsequential vis-a-vis the respondent No. 1, she urged. 9. Mr. Das, also pleaded that in absence of any challenge to the validity of the conditions subject to which the benefit under the Scheme was extendable to the ASTT/TTS on their merger, the claim of the respondent No. 1, in the facts and circumstances of the case, lacks legal foundation and, therefore, the impugned judgment and order needs interference in the instant proceeding. 10. Mr. Chanda, in reply has argued that having regard to the background of the Scheme whereunder completion of 12 years of service in the cadre of JTO and other equivalent posts as mentioned in the letter dated 26.06.1990 is the only condition precedent, in absence of any indication to the contrary i.e. the letter dated 16.05.1995, Clause (I) & (II) thereof cannot be interpreted to abridge or curtail the benefit then of to the prejudice of the ASTT enrbeir merger with the TTS w.e.f. 01.04.1994. According to Mr. Chanda, not only it is apparent from the decisions taken by the Madras and Assam Telecom Circles that the policy as embodied in the letter dated 16.05.1995 his been correctly interpreted, the letter dated 28.08.1996, in acicular, is a clear pointer to the proposition. That on his/her torn a junior ASTT would be entitled to the benefit of the Scheme with retrospective effect on and from the date of - Completion of 12 years of regular cervix in Le pest concerned. Mr. Chanda has urged that on a conjoint reading of the letters date 1990 and 16.05.1995 only suggests they of the eligible ASTT/TTS after the merger would be considered on their turn on the basis of in terse seniority and that while granting the benefit, the cut off point of completion of 12 years of service would be decisive. 11. We have considered the rival pleadings as well as the arguments advanced. A plain reading of the two conditions engrafted in the letter dated 16.05.1995 indicates that the determinative stipulation of eligibility for availing the benefit under the Scheme is completion of 12 years of regular service in the cadre as ASTT/TTS and JTO/SDE (on the merger thereof) with the former w.e.f. 01.04.1994. The two clauses as extracted hereinabove, however, make it incumbent on the part of the concerned authorities to consider the cases of such eligible candidates on turn in terms of their interse seniority, the clear logic being to obviate the possibility of a senior eligible incumbent being denied the benefit. Noticeably, the letter dated 16.05.1995 does not mention in particular that on his/her turn a comparatively junior eligible JTO/ASTT would be entitled to the grant of the benefit of the Scheme only and on from the date on which an order to that effect is passed. The decisive condition of eligibility being com-pletion of 12 years of service in the required grade and the decision of extending the benefit of the Scheme to the incumbents of both the cadres being in continuation of the one contained in the letter dated 26.06.1990, we are not inclined to interpret the two conditions embodied in the letter dated 16.05.1995 to eventuate a consequence of denying an eligible JTO/ASTT the timely benefit of the Scheme on completion of 12 years of service in the cadre only because of the fortuitous merger. Noticeably, the BSNL in their affidavit-in-opposition in the writ proceeding did not deny the existence of the letters dated 27.08.1990 and 28.08.1996 of the Madras and Assam Telecom Circles and left these by contending that in case any Circle had committed any mistake, the same could not be acted as a precedent by other Circles. 12. There is no wrangle at the Bar that as far as the incumbents, covered by the letters dated 27.06.1990 and 28.08.1996, are concerned, they had been granted the benefit of the scale on the completion of 12 years of regular service in their respective cadres though, their cases were considered much thereafter signifying thereby that the Scheme was given a retrospective effect in their favour and the sole criterion of completion 12 years of service as contemplated in the letter dated 26.06.1990 was acted upon to refuse the benefits under the Scheme. 13. The learned Tribunal in concluding in favour of the respondent No. 1, we find, had duly taken note of the sequence of events including the stipulations contained in the letters dated 26.06.1990 and 16.05.1995 as well as the letters dated 27.08.1996 and 28.08.1996 of the Madras and Assam Circles. The finding recorded in favour of the respondent No. 1 is amply supported by the materials on record and on a totality of the facts and circumstances of the case, we do not feel persuaded to hold that the same is either illogical or unacceptable. The view taken by the learned Tribunal is a plausible one and in the exercise of our power of judicial review in absence of overwhelming materials to the contrary, we are, therefore inclined to sustain the same. In the above view of the matter, we find no merit in the instant challenge. The writ petition is dismissed. No costs.