Kerala High Court
Bharath Sanchar Nigam Ltd vs K.K.Vijayan on 11 February, 2025
Author: Amit Rawal
Bench: Amit Rawal
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TUESDAY, THE 11TH DAY OF FEBRUARY 2025 / 22ND MAGHA, 1946
OP (CAT) NO. 21 OF 2021
AGAINST THE ORDER/JUDGMENT 16.12.2019 IN OA NO.32 OF
2016 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONERS/RESPONDENTS:
1 BHARATH SANCHAR NIGAM LTD.,
REPRESENTED BY ITS CHAIRMAN AND MANAGING
DIRECTOR, SANCHAR BHAVAN, NEW DELHI-110001.
2 THE CHIEF GENERAL MANAGER,
TELECOM, BSNL, KERALA CIRCLE,
TRIVANDRUM-695033.
3 THE PRINCIPAL GENERAL MANAGER,
TELECOM, BSNL, THRISSUR-680022.
BY ADV GEORGE KURUVILLA(ALAPPUZHA)
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RESPONDENTS/PETITIONERS:
1 K.K.VIJAYAN,
AGED 57 YEARS
S/O.KUTTAPPAN, WORKING AS TELECOM MECHANIC,
TELEPHONE EXCHANGE CHALAKKUDY, THRISSUR,
RESIDING AT KIZHAKKUMKARA HOUSE, I Q ROAD,
CHALAKKUDY, THRISSUR-680307.
2 DAMODARAN P.K.,
AGED 57 YEARS
S/O.SUKUMARAN, WORKING AS TELECOM MECHANIC,
TELEPHONE EXCHANGE CHALAKKUDY, THRISSUR,
RESIDING AT PARAMBIKATTIL HOUSE,
VIJAYARAGHAVAPURAM, THRISSUR-680722.
3 O.K.SADANANDAN,
AGED 57 YEARS, S/O. KUNHIPAVAN,
WORKING AS TELECOM MECHANIC,
TELEPHONE EXCHANGE CHALAKKUDY, THRISSUR,
RESIDING AT OOLAPARAMBIL HOUSE,
VR PURAM P.O., THRISSUR-680722.
4 P.P.SASI,
AGED 51 YEARS, S/O.PARAN,
WORKING AS TELECOM MECHANIC,
TELEPHONE EXCHANGE CHALAKKUDY,
THRISSUR, RESIDING AT PARAMBIKATTIL HOUSE,
VR PURAM, THRISSUR-680722.
5 U.SANKARANARAYANAN,
AGED 58 YEARS
S/O. ACCHUTHAN NAIR, WORKING AS TELECOM
MECHANIC, TELEPHONE EXCHANGE CHALAKKUDY,
THRISSUR, RESIDING AT PONNETH HOUSE,
ELINJIPRA PO, THRISSUR-680721.
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6 M.A.SUBRAN,
AGED 57 YEARS, S/O. AYYAPPAN,
WORKING AS TELECOM MECHANIC,
TELEPHONE EXCHANGE CHALAKKUDY,
THRISSUR, RESIDING AT MARATHAMBILLY HOUSE,
NEAR KUMARAMADOM TEMPLE, CHALAKKUDY,
THRISSUR-680307.
7 RATNAKARAN A.V.,
AGED 53 YEARS, S/O. VELAYUDHAN,
WORKING AS TELECOM MECHANIC,
TELEPHONE EXCHANGE CHALAKKUDY, THRISSUR,
RESIDING AT ANKARATH HOUSE, W. CHALAKKUDY,
CHALAKKUDY P.O., THRISSUR-680307.
8 N.KESAVANKUTTY,
AGED 51 YEARS, S/O. NARAYANAN NAIR,
WORKING AS TELECOM MECHANIC, TELEPHONE
EXCHANGE VELLIKULANGARA, THRISSUR-680699,
RESIDING AT KANDEDATH HOUSE, PADY P.O.,
THRISSUR-680699.
9 K.SIVARAMAN,
AGED 51 YEARS, S/O. SIVARAMAN NAIR,
WORKING AS TELECOM MECHANIC, TELEPHONE
EXCHANGE VELLIKULANGARA, THRISSUR-680699,
RESIDING AT KANDEDATH HOUSE,
VELLIKULANGARA P.O., THRISSUR-680699.
BY ADVS.
SRI.NIRMAL V NAIR
SRI.AKHIL ALPHONSE G.
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON
11.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Dated this the 11th day of February, 2025
Amit Rawal, J.
This petition is directed against the judgment dated
16.12.2019 in O.A.No.32 of 2016 preferred by the respondents/
applicants. All the respondents/applicants, (9) in number, had been
on the rolls of the department of Post and Telegram as Regular
Mazdoors since 1988. In 1999, were promoted as Telecom
Mechanic. With effect from 01.10.2000, the department of
Telecommunication merged with the BSNL. One, Sri.T.O. Varghese,
who was also appointed in 1993 as Regular Mazdoor was promoted
on 06.11.2002 to Telecom Mechanic. Though the cadres for
promotion to Telecom Mechanic was of Regular Mazdoor even in
respect of the applicants and as well as Sri.T.O Varghese, but,
owing to certain extra ordinary work being rendered by him, had
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earned certain increments and his Pay Scale at the time of
promotion as Telecom Mechanic was 3200-85-4900.
2. It is pertinent to mention here that all the
employees before the merger, were drawing Central Dearness
Allowance scale. But, on the coming into force of the Bharat
Sanchar Nigam Limited (BSNL), were switched over to Industrial
Dearness Allowance (IDA) Pay Scale and the Pay Scales were fixed
from point to point on the basis of the increments earned. In the
IDA Pay Scale, Sri.T.O.Varghese was placed in ₹5225/-, whereas the
applicants were in the Pay Scale of ₹5020/- and ₹4870/-. In this
regard, had submitted representation to step up their pay., as,
concededly, Sri.T.O Varghese in the cadre of Telecom Mechanic was
much junior to them, as he was promoted on 06.11.2002 vis-a-vis
their promotion in 1999.
3. Besides the aforementioned pleadings, reliance was
also laid to various judgments rendered in O.A.Nos.902 of 2009, 741
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of 2010, 558 of 2010, 743 of 2010, 846 of 2010 and other similar
cases, covered under the various judgments dated 01.08.2011,
14.01.2011 and 03.11.2000, which was subsequently upheld by this
Court by common order dated 08.08.2011 in O.P(CAT) No.1776 of
2011 and connected cases. In respect of (192) officials, the matter
was upheld by the Hon’ble Supreme Court in SLP No.4142/2012/11
dated 20.03.2012 and SLP No.4142/2012/20 dated 30.03.2012.
4. Even before merger, there were little aberrations
and an anomalous situation was in existence. In order to overcome
such anomaly, the Government of India, Department of Postal
Training came out with an Official Memorandum dated 04.11.1993
envisaging three situations:
(a) Both the junior and senior officer should belong to the
same cadre and the posts in which they have been
promoted or appointed should be identical and in the same
cadre.
(b) The scales of pay of the lower and higher posts in
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should be identical.
(c) The anomaly should be directly as a result of the
application of FR 22-C. For example, if even in the lower
post the junior officer draws from time to time a higher rate
of pay than the senior by virtue of grant of advance
increments or any other account the above provisions will
not be invoked to step up the pay of senior officer.
5. Clause (a) of the aforementioned extracted
portion reveals that both the junior and senior officers should
belong to the same cadre and the post in which they have been
‘promoted’ or appointed should be identical and in the same cadre.
6. In the present case, all the applicants were
promoted as Telecom Mechanic in 1999 whereas, Sri.T.O.Varghese
was promoted on 06.11.2002 and was drawing more pay in the
cadre of Telecom Mechanic.
7. However, when the judgments in the
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aforementioned O.As upheld by the Hon’ble Supreme Court, keeping
the question of law open, had attained finality, the Bharat Sanchar
Nigam Limited came out with a Circular dated 04.05.2012, on the
subject of the implementation of the judgments referred to above of
the Central Administrative Tribunal upheld by the High Court and as
well as on the dismissal of the SLP by the Hon’ble Supreme Court
and had taken the following decisions:
3. This matter has been re-examined in this office and
the following has been decided with the approval of the
Comptetent Authority:
(i) The aberration in the IDA pay of the senior as on
01.10.2000 with reference to IDA pay of the junior may be
rectified by grant of an additional increment to the senior
employee who was drawing higher CDA pay in a higher pre-
revised CDA pay scale as on 30.09.2000 compared to his
junior holding feeder posts included in the same cadre and
who was earlier drawing pay at an equivalent or lower stage
of pay in a lower pre-revised CDA pay scale. However, DNI
after removal of aberration may be granted to the senior after
completion of 12 months qualifying period.
(ii) Further, on promotion of the Junior in higher IDA
scale after 01.10.2000 in which the senior is also placed, if
junior starts drawing higher pay again with reference to the
same senior, in that case, the pay of the senior may again be
stepped up at par with his junior. However, DNI may be
granted after completion of 12 months qualifying period to the
senior.
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8. Petitioners herein/respondents before the Central
Administrative Tribunal had been rhetoric on the point that the pay
scale of Sri.T. O. Varghese was much higher than the applicants at
the time when promoted on 06.11.2002, therefore, was drawing the
higher salary even if was promoted later on and had relied upon the
instances carved out in the Official Memorandum dated 04.11.1993.
The learned Tribunal, noticing all these pleadings, arguments and
orders of the Court, negated the submissions made by the
petitioners herein and allowed the OA. In this behalf, OP(CAT) has
been preferred.
9. Mr.George Kuruvila, the learned Counsel
appearing on behalf of the petitioners has raised the following
submissions:
(i) The learned Tribunal failed to notice that the so
called junior Sri.T O Varghese, with whom the respondents claim
parity in pay, was far senior to the respondents in the entry cadre of
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:10:Regular Mazdoor (Group D) as he was appointed in 1983 whereas
the respondents-applicants were appointed in 1988. It was because
of the higher number of increments he earned in the Group D cadre,
started drawing more pay than the respondents-applicants with
effect from 01.10.2000 on conversion of CDA into IDA Pay Scale.
(ii) Respondents were appointed later than the so
called junior Sri.T. O. Varghese in the lower post and they were in
receipt of lesser pay than Sri.T. O. Varghese, therefore cannot claim
pay parity.
(iii) The mandatory conditions which are required to
constitute a pay as an anomaly which is to be rectified by stepping
up of the pay, is provided under fundamental Rule 22, which is
completely absent in the present case, for, the Tribunal failed to
note that as on 01.10.2000, the date on which Sri.T.O. Varghese
started drawing more pay than the respondents/applicants, both of
them were included in different cadres and drawing different Pay
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:11:Scales and therefore, cannot be compared at all for the purpose of
stepping up of the pay. The claim of the respondents was barred by
limitation as the so called pay anomaly initially occurred in 2002
whereas the representation was submitted in the year 2015.
10. In support of the contentions, also relied upon two
judgments filed along with the affidavit, in terms of the directions of
this Court, Annexure R1(a) dated 09.07.2015 in OP(CAT) No.446 of
2012 and Annexure R1(b) judgment dated 14.09.2011 Civil Appeal
No.3480 of 2005.
11. On the other hand, Sri.Nirmal V Nair, the learned
Counsel appearing on behalf of the respondents, countered the
aforementioned arguments and emphatically relied upon the
decision taken in Annexure-A9 Circular of 2012, to submit that the
judgment of Annexure R1(a), which was basically based on the
condition that the Hon’ble Supreme Court while deciding the SLP
has kept the question of law open, would not be applicable for the
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reason that the Circular, Annexure-A9 has not been taken into
consideration.
12. Moreover, the entire purpose of the judgment
was on the eligibility which was omitted to be considered by the
Tribunal in the previous judgments. The judgments relied upon by
the Division Bench of this Court in OP(CAT) No.446 of 2012 would
not be applicable for the reason that Calcutta Municipal
Corporation v. Sujith Baran Mukerjee [1997) 11 SCC 463] was
a case where both these junior and senior discharged the same
duties under the same responsibility, but, it was held that the junior
was granted a special pay for his nature of work whereas, in the
instance case, no such claim or any averment or material has been
placed on record that Sri.T O Varghese was given some special pay
over and above the seniors while discharging the duties, because,
before the merger of BSNL, he was drawing much lesser pay, i.e. in
a Pay Scale of ₹2650-4000.
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13. As far as the judgment of the Hon’ble Supreme
Court is concerned, it was the case of a employee of the High Court
of Calcutta, who was given the benefit and on the basis of the
recommendation of the Committee constituted, differed with the
opinion as the first opinion was against and the second was to grant
benefit of the similarly situated persons. The Supreme Court found
that the benefits granted to the said person on the basis of which
the other persons, the writ petitioners, had claimed the pay, was
found to be drawing higher pay only on erroneous reasons, and
urged this court for dismissal of the OP(CAT) on the limited cause
by pointing out the order dated 04.07.2024 of this Court wherein
this Court, after noticing the arguments, had attempted to take a
suo motu action under Article 215 of the Constitution of India
noticing dichotomous approach in allowing the discrimination in
perpetuity challenging the findings by raising the same very plea
which was not found in favour in the earlier round of litigation as
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referred to in the Circular whereby various OAs have been allowed
and OP(CAT) dismissed by this Court has been upheld by the
Hon’ble Supreme Court.
14. We have heard the learned counsel for the parties
and appraised the paper book.
15. Before referring to the Official Memorandum
04.11.1993 and as well as the relevant portion of Annexure-A9
dated 04.05.2012, we deem it appropriate to extract the order
dated 04.07.2024 hereunder:
“The present OP (CAT) is directed against the judgment of
the Central Administrative Tribunal dated 16.12.2019 in OA
No.32 of 2016 whereby the respondents/applicants who had
joined the department of Telecom as Regular Mazdoor were
promoted as Telecom Mechanic in 1998-1990. Three of the
employees who had though joined as Regular Mazdoor before
the applicants, i.e., in 1983, on having undertaken the tests,
were promoted much later, almost three years thereafter, in
2003.
2. With effect from 1.1.2000 the Bharat Sanchar Nigam
Limited, (BSNL) was formed and all the employees working
under the Department of Telecommunication became the
employees of the BSNL. There was an agreement of 2002. It is a
matter of record that the Regular Mazdoors like the party
respondents had, by that time, secured more increments and
were in a different pay scale after formation of the BSNL and
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having been promoted much later. The general rule of the
seniority is not only seniority alone but on merit as well. If a
person who has cleared the examination and become senior to
the applicants and would definitely continue to remain senior.
3. The grievance in short was that they were being paid
less pay scale i.e., Rs.5020/- whereas the juniors were getting
Rs.5,225/-. It is pertinent to mention here that both the set of
employees prior to the formation of the BSNL, were under the
pay scale of Central Dearness Allowance (hereinafter referred to
as CDA) and later on, were shifted to Industrial Dearness
Allowance called IDA which had a substantial difference of the
pay scales. In view of such anomaly, the department though had
set up anomaly committee but had not brought any succor to
the affected parties resulting into institution of O.A. No.1025 of
2010 before the Tribunal. The Tribunal vide judgment dated
1.3.2011 allowed the case of the applicants in the following
manner:
“9.The impugned orders in these O.As to the extent they relate
to denial of stepping up of pay to the applicants drawing lesser
pay than juniors who got promotion after 01.10.2000,
withdrawal of stepping up and consequential recoveries are
quashed and set aside. We declare that the applicants are
entitled to get stepping up of pay to that of their juniors who
started drawing higher pay by virtue of their promotion and pay
fixation under F.R.22(1) (a)(1) after the introduction of IDA pay
scale and all consequential benefits arising therefrom, including
arrears, if any. We further direct the respondents that the
amount recovered from the applicants should be refunded. The
above directions should be complied with, within a period of
three months from the date of receipt of a copy of this order.
In the facts and circumstances of these O.As, we do not
consider it justified to grant interest on the arrears/refunds to
be made to the applicants.”
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4. Instant case is of similar nature. Though general
directions were issued to the BSNL to form a Committee and
sort out the anomalies, the aforementioned judgment was
challenged before this Court in OP(CAT) No.2233 of 2011 and
this Court upheld the judgment, issuing the following
directions:
“However, it is our view that in view of the introduction of IDA
scales of pay for the employees as a whole and the
consequence of pay difference on promotion, it is for the BSNL
to work out fresh schemes of fixation of scales of pay under
the IDA scheme keeping in mind the anomalies that may occur
not only in the present case but also in other cases. In other
words, the CAT order confirmed by us does not bar the BSNL
to introduce fresh scales of pay under the IDA Scheme. So that
anomalies of this nature do not occur. However, the
Committee decision cancelled by the Tribunal should not be
reintroduced in another form.”
5. We have been informed that there is no compliance
with the aforementioned directions. The directions were issued
keeping in view the fact that, in future, similar controversies
may be curtailed. However the BSNL allowed the illegalities in
perpetuity entailing into multifarious litigations by the affected
parties whereby similar judgments upholding the judgment of
the CAT in directing the BSNL to remove the anomaly were
passed (Exts.A5 and A6). The things did not stop here. BSNL
continued with the belligerent action in not vindicating the
grievance of the affected parties.
6. The aforementioned observations are recorded after
having hearing the learned counsel on either side at length.
We are of the prima facie view that this predicament of the
applicants qua the pay anomaly could have been put to rest,
had the BSNL complied with the directions contained in the
judgment of this Court dated 8.8.2011.
7. At this stage, we have been informed that the judgment
of this Court was challenged before the Honourable Supreme
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Court which was dismissed and in pursuance to the same, an
order dated 4.5.2012, Ext.A9 before the CAT, was passed
whereby the BSNL implemented the judgment only against the
employees who were before the court. In other words, the
BSNL did not consider the fact that the applicants in the
present case and similarly situated persons should have also
been brought under the coverage of the previous judgment.
Having failed to do so, we are of the view that the approach of
the BSNL is dichotomous in allowing the discrimination in
perpetuity. We thus deem it appropriate to take suo moto
action under Article 215 of the Constitution of India for not
complying with the directions contained in the judgment of this
court in the OP(CAT) matters, as evident in Ext.A9, applicable
to all the affected parties.
8. Let show cause notice be issued to the Chairman and
Managing Director, BSNL, New Delhi as to why the proceeding
should not be taken. Let the affidavit be filed within a period of
two weeks.”
16. An affidavit has been filed on 12.12.2024,
wherein it has been stated that the pay anomaly alleged in the
present case is not an anomaly of the nature dealt with in
Annexure-A8 judgment but stands on a different footing for the
reason that the BSNL had not brought the OA applicants or the
similarly situated persons under the coverage of the said judgment
and granted them the same relief sought for. The alleged pay
anomaly could not be considered or resolved in the light of the
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Annexure-A8 judgment dated 08.08.2011 in O.P(CAT) No.1373 of
2011 and various other judgments and relied upon the instances
referred to in the Official Memorandum dated 04.11.1993. An
objection was also taken that the suo motu proceedings taken in the
contempt is also time barred.
17. It is pertinent to mention here that in pursuance
of the order of this Court extracted above, the petitioner had filed
an affidavit dated 04.07.2024 which was though permitted to be
withdrawn on the premise that in the affidavit, the deponent had in
paragraph No.4 stated as under:
“Secondly, even if the observations made by the Hon’ble
Court in Annexure-A8 judgment is treated as directions (it
being not conceded), no action in contempt can be initiated
after a long lapse of 13 years since the Contempt of Court Act
fixed a period of one year under Section 20 of the said Act. The
action in contempt now initiated therefore, is patently barred
by the statutory provisions.”
18. In the second affidavit also, the deponent had
been audacious raising objection that suo motu proceedings
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initiated after taking the contempt is time barred in view of the
embargo under Section 20 of the Contempt of Court Act. It is
pertinent to mention here that the contempt proceedings in the
order extracted above was never taken under the Contempt of Court
Act, but under Article 215 of the constitution of India which does
not arrest the period of limitation in case it is brought to the notice
of the Constitutional court about the dichotomous approach being
adopted by the party in giving benefit to similarly situated persons
and contesting in different matters, like the one which is before us.
19. On perusal of the three situations in the Circular
dated 04.11.1993 supra, the respondents/applicants are squarely
covered under the condition No.(a) which is again extracted below:-
“(a) Both the junior and senior officer should belong to
the same cadre and the posts in which they have been
promoted or appointed should be identical and in the same
cadre.”
20. Realising that by the time various judgments had
already been rendered by Central Administrative Tribunal and the
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High Courts, resulting into dismissal of the SLP, wisdom made the
competent authority to come up with Circular dated 04.05.2012
consisting of the conditions extracted above.
21. Condition No.3(ii) extracted above really protects
the interest of the respondents/applicants who want stepping of pay
viz a viz the junior in the higher IDA scale after 01.10.2000 where
the senior is already placed. Even in the referred case stepping of
the pay has been taken care of in case the junior starts drawing
higher pay again with reference to the same senior.
22. However, an attempt was made that the word
‘junior’ would relate back to the stage of initial appointment. The
aforementioned contention does not merit acceptance for the
reason that when on promotion both the persons are brought into
the same cadre and the respondents/applicants have already been
promoted almost three(3) years back, cannot be termed to be
junior to the person who was promoted much later.
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23. For the sake of brevity, we reiterate that the
respondents-applicants were promoted as Telecom Mechanic in
1999, whereas the junior Sri.T.O.Varghese was promoted on
06.11.2002. On promotion, both are placed in the same cadre. The
seniority of Telecom Officer list, though has been placed on record,
but would not make the junior above the respondents except for
drawing a higher pay. If at all it was so, Sri.T. O. Varghese would
have definitely raised the plea of placing him above the
respondents/applicants even though he was drawing a higher pay,
but was satisfied owing to the better financial benefit.
24. As far as the question of limitation is concerned
detailed reasoning have been recorded in paragraph No.11.
“8. In this particular case we note that the
respondents do admit that the applicants were promoted as
Telecom Mechanic much before the formation of the BSNL on
01.10.2000 even while the aforesaid junior Sri.T.O.Varghese
was working as a Regular Mazdoor only. The respondents
seem to take a meek and inept contention that at the time of
promotion of Sri.T.O.Varghese as TM on 06.11.2002 the
applicants were in a different cadre with its own seniority and
carried a different scale of pay than the lower post held in
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:22:BSNL by Sri.T.O.Varghese and that their cadre and their scale
of pay were not identical. This, in our view, is a circumlocutory
argument to escape the aftermath of the aforementioned
judicial decisions.
9. The delay and laches of the applicants in
approaching this Tribunal was brought to a sharp focus the
respondents. In this regard they referred to U.P.Jal Nigam
and Another v. Jaswant Sing and Another [(2006) 11
SCC 464], A.P.Steel Re-Rolling Mill Limited v. State of
Kerala and others [(2007) 2 SCC 725], S.S.Balu and
Another v. State of Kerala and others [(2009) 2 SCC 479]
to buttress their argument that the long delay in approaching
the Court would disentitle a party to obtain the discretionary
relief even though relief was granted to other similarly
situated persons who approached the Court in time.
10. The above legal contentions of the respondents
were countered by the applicants by pointing out that in
Gurcharan Singh Grewal and Another v. Punjab State
Electricity Board and others [(2009) 3 SCC 94], it was held
by the apex court that the junior drawing higher pay that that
of the senior due to anomaly, ought to be rectified by
stepping up. The applicants submitted that Gurcharan Sing
Grewal decision was reiterated by the apex court in Union
of India and others v. Tarsem Singh [(2008) 8 SCC 648]
and that a same view was taken in the earlier decision in
M.R.Gupta v. Union of India and others [(1995) 5 SCC
628] also. They relied on State of Madhya Pradesh and
others v. Yogendra Shrivastava [(2010) 12 SCC 538],
wherein the apex court has held:
“18. We cannot agree. Where the issue relates to
payment or fixation of salary or any allowance, the challenge
is not barred by limitation or the doctrine of laches, as the
denial of benefit occurs every month when the salary is paid,
thereby giving rise to a fresh cause of action, based on
continuing wrong. Though the lesser pay may be a
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:23:consequence of the error that was committed at the time of
appointment, the claim for a higher allowance in accordance
with the Rules (prospectively from the date of application)
cannot be rejected merely because it arises from a wrong
fixation made several years prior to the claim for correct
payment……”
11. Since the dispute in this case relates to payment of
fixation of salary or allowances, we have no hesitation to hold
that the claim put forth by the applicants is not barred by any
limitation or doctrine of laches. There is no serious dispute for
the respondents that there is indeed an anomaly in the scale
of pay drawn by the applicants vis-a-vis the higher pay
received by their junior Sri.T.O.Varghese. Admittedly,
Sri.T.O.Varghese was promoted as TM only on 06.11.2002
much after the formation of BSNL whereas the applicants
have been promoted as TMs while they were working under
the DOT i.e. even before the formation of BSNL on
01.10.2000. This very situation is certainly to the chagrin of
the applicants even though Sri.T.O.Varghese was promoted as
TM after the formation of BSNL. No doubt, in such cases inter-
seniority equity demands rectification of the anomaly by
stepping up the pay of the seniors. The aforementioned
judgments of the Kerala High Court have attained finality and
therefore, respondents have no opinion but to implement the
same in the case of the applicants also.”
25. We are in agreement with the finding as it is a
recurring cause of action thus would not be barred by the limitation
and doctrine akin to delay or laches. Accordingly, we do not find
any illegality or perversity with the order of the Tribunal. The
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OP(CAT) is dismissed. Keeping in view the fact that the
petitioners/respondents before the Tribunal have adopted a
dichotomous approach in dragging the applicants to the litigation,
we thus deem it appropriate to impose the cost of litigation to the
extent of ₹10,000/- each to all the respondents. Not only this, the
judgment emphatically relied upon by respondent no.1 of this Court
cannot be treated to be a judgment in rem for, it had not taken into
consideration the Circular dated 04.05.2011, but had gone on a
premise of eligibility even if while dismissing the SLP, the Supreme
Court had kept the question of law open.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
ams
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APPENDIX OF OP (CAT) 21/2021
PETITIONER ANNEXURES
EXHIBIT P1 TRUE COPY OF THE ORDER OF THE HON’BLE
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH DATED 16.12.2019 IN
ORIGINAL APPLICATION NO.32/2016.
EXHIBIT P2 TRUE PHOTOCOPY OF THE ORIGINAL
APPLICATION NO.32/2016 FILED BY THE
RESPONDENTS/ HEREIN BEFORE THE CAT
ALONG WITH ITS ANNEXURES A1 TO A14.
ANNEXURE A1 TRUE COPY OF THE ORDER
NO.BSNL/26/SR/2002 DATED 7.8.2002
ISSUED BY THE 2ND RESPONDENT IN THE OA.
ANNEXURE A2 TRUE COPIES OF THE PAY FIXATION MEMOS
COLLECTIVELY FOR IDA SCALE OF THE APPLICANTS 1 TO 4
AND 6 TO 9 OF THE OA.
ANNEXURE A3 TRUE COPY OF THE PAY FIXATION MEMO FOR
IDA SCALE OF SRI. T.O.VARGHESE.
ANNEXURE A4 TRUE COPY OF THE MEMO NO.E/225-17/02-03
DATED 28.1.2003.
ANNEXURE A5 TRUE COPY OF THE JUDGMENT DATED
24.7.2008 IN WP(C)30582/2005 OF THE
HIGH COURT OF KERALA.
ANNEXURE A6 TRUE COPY OF THE JUDGMENT DATED
23.9.2009 IN W.A.1028/2009 OF THE HIGH
COURT OF KERALA.
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ANNEXURE A7 TRUE COPY OF THE ORDER NO.AO(ESTT)/E-
2/08-09/WPC-30582/05/25 DATED
26.6.2010.
ANNEXURE A8 TRUE COPY OF THE JUDGMENT DATED
8.1.2011 IN OP(CAT) 2233/2011 OF THE
HIGH COURT OF KERALA.
ANNEXURE A9 TRUE COPY OF THE ORDER NO.211-9/2011-
PERS-III DATED 4.5.2012 ISSUED BY 2ND
RESPONDENT IN THE OA.
ANNEXURE -A10 TRUE COPIES OF THE REPRESENTATIONS
COLLECTIVELY DATED 8.12.2015 SUBMITTED BY THE
APPLICANTS 1 TO 3 AND 5 TO 7 OF THE OA.
ANNEXURE-A11 TRUE COPIES OF THE REPRESENTATIONS
COLLECTIVELY DATED 16.12.2015 SUBMITTED BY THE
APPLICANTS 8 AND 9 OF THE OA.
ANNEXURE A12 TRUE COPY OF THE LETTER E2/15-16/02
DATED 8.12.2015 ISSUED BY THE SUB
DIVISIONAL ENGINEER, BSNL CHALAKKUDY
ANNEXURE-A13 TRUE COPY OF THE LETTER NO.E2/VLK/15-16
DATED 16.12.2015 ISSUED BY THE SUB
DIVISIONAL ENGINEER, BSNL
VELLIKULANGARA.
ANNEXURE-A14 TRUE COPY OF THE ORDER NO.E211-
2/ESTT/CAT/12-13 DATED 25.8.2014 ISSUED
BY THE 4TH RESPONDENT IN THE OA.
EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT DATED
29TH AUGUST 2016 FILED BY THE
RESPONDENTS IN THE OA BEFORE THE CAT
ALONG WITH ITS ANNEXURES R2 (A) TO
R2(C).
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ANNEXURE R2(a) TRUE COPY OF THE ORDER IN OA 333/2014
DATED 22.5.2014 OF THE CAT ERNAKULAM
BENCH.
ANNEXURE R2(b) TRUE COPY OF THE COMPARISON STATEMENT
OF THE APPLICANTS AND THE JUNIOR TO
VARGHESE.
ANNEXURE R2(c) TRUE COPY OF THE RULES FOR STEPPING UP
OM DATED 4.11.1993.
EXHIBIT P4 TRUE COPY OF THE ADDITIONAL REPLY
STATEMENT DATED 16.3.2017 ALONG WITH
ITS ANNEXURES R2(D) AND R2(E).
ANNEXURE R2(d) TRUE COPY OF THE ORDER IN OA 59/2014
DATED 17.6.2016OF THE CAT ERNAKULAM
BENCH.
ANNEXURE R2(e) TRUE COPY OF THE ORDER IN OA 22/2013
DATED 31.7.2015 OF THE CAT ERNAKULAM
BENCH.
EXHIBIT P5 TRUE COPY OF THE REJOINDER FILED BY THE
APPLICANTS WITH ITS ANNEXURE A15 AND
A16.
ANNEXURE- A15 TRUE COPY OF THE ORDER IN OA 968/2010
OF THE CAT ERNAKULAM BENCH.
ANNEXURE-A16 TRUE COPY OF THE ORDER IN OA 1025/10
AND OA 558/10 AND CONNECTED CASES OF
THE CAT ERNAKULAM.
Annexure R(a) THE TRUE COPY OF THE JUDGMENT DATED
09.07.2015 IN OP(CA) NO.446/2012 OF
THIS HON’BLE COURT
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Annexure R(b) TRUE COPY OF THE JUDGMENT DATED
14.09.2011 IN CIVIL APPEAL NO.3480/2005
OF THE HON’BLE SUPREME COURT
Exhibit R1(a) TRUE COPY OF THE JUDGMENT IN OP (CAT)
446 OF 2012 DATED 9/7/2015
Annexure R1(b) TRUE COPY OF THE JUDGMENT OF THE
SUPREME COURT IN CA 3480 OF 2005 DATED
14/9/2011