High Court · 2012

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. The facts bearing on the service profile of the respondent are n 03. ot in dispute. She had joined as ASTT on 01.12.1982 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 Telecommun ication [re-named as Bharat Sanchar Nigam Ltd. (for short referred to as the BSN L)]. She has since retired from service while serving as Assistant Director, Tel egraph and Traffic in the Office of the Chief General Manager, NE-I Circle, Shil long, BSNL. 04. The then Ministry of Communications, Department of Telecommunica tion, 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 wi th higher scale of Rs. 2000-3500/- through matching savings. The pre-condition o f 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 ser ving 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 conditi ons: - (cid:28)With the merger of ASTT and TTS Gr. ’B’ with JTO and SDE respectively the later al 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 a re 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 wi ll be applicable only after the combined seniority list is approved by the circl es concerned. (cid:29)

05. 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 al l his/her senior JTOs/SDEs were placed in the lateral scale on completion of the ir 12 years of regular service. It was further stipulated that in the cadre of A STT 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, JTO, recruited in the year 1980 was placed at Sl. No.66 above the respondent No. 1, who had been appointed as ASTT in the year 1981 and placed at Sl. No.74A. The concerned Departmental Promotion Committee on a consid eration of the service profiles of then eligible JTOs/ASTTs on 12.02.1996 recomm ended the following incumbents for the benefits under the Lateral Advancement Sc heme: - (cid:28)The case of 11 (eleven) officials is under consideration. After careful scrutin y of over all performance based on commends Lateral Advancement from due date of the following JTOs/ASTTs. Sl. No. Name 1. 2. 3. 4. 5. 6. Jok Das, JTO/Agartala Miss M. Khongwir, ASTT Smti. B. Kharmalki, ASTT RK Bhattacharjee, JTO/Tura P. Dhekial, JTO M.M Roy, JTO Due date 5/5/96 15/1/97 15/1/97 5/5/96 21/12/96 15/1/97 (cid:29) As Sri Mohendra Mohan Roy, JTO at Sl. No. 6, was senior in service than the resp ondent 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 te rms of the policy contained 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 enti tled to the benefit immediately on the completion of 12 years therefrom, the res pondent No. 1 submitted a representation, which was rejected on merit on 22.02.2 005 following which she laid the challenge before this Court as referred to here inabove. 06. Apart from reiterating the above stand, the respondent No. 1 in her pleadings referred to two communications being No.TSA/13-50/95-LA, dated 27. 08.1996 of the Chief General Manager, Telecommunications, Tamil Nadu Circle, Mad ras and No.STES-5/40/Pt-1/60, dated 28.08.1996 of the Deputy General Manager (Ad mn) for the Chief General Manager, Assam Telecom Circle asserting that the incum bents, as named therein, having been granted the benefit of the Scheme on comple tion 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.

07. 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 16.0 5.1995 as well as the analogy of the letters dated 27.08.1996 and 28.08.1996 of the Madras and Assam Telecom Circles. Ms. Das has emphatically urged that on a plain reading of the mo 08. dified 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 on completion of 12 years of service on and 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 inc umbents in the post of JTO/ASTT had granted the benefit under the Scheme to pers on 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 hol ding to the contrary in absence of any indication in the letter dated 16.05.1995 contemplating grant of benefit under the Scheme with retrospective effect. Step s taken by the Madras and Assam Telecom Circles in connection therewith, as soug ht to be projected by the letters dated 27.08.1996 and 28.08.1996 are inconseque ntial vis-a-vis the respondent No. 1, she urged.

09. Mr. Das, also pleaded that in absence of any challenge to the va lidity of the conditions subject to which the benefit under the Scheme was exten dable 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 backgr ound 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 th e only condition precedent, in absence of any indication to the contrary i.e. th e letter dated 16.05.1995, Clause (I) & (II) thereof cannot be interpreted to ab ridge or curtail the benefit thereof to the prejudice of the ASTT on their merge r with the TTS w.e.f. 01.04.1994. According to Mr. Chanda, not only it is appare nt from the decisions taken by the Madras and Assam Telecom Circles that the pol icy as embodied in the letter dated 16.05.1995 has been correctly interpreted, t he letter dated 28.08.1996, in particular, is a clear pointer to the proposition that on his/her turn a junior ASTT would be entitled to the benefit of the Sche me with retrospective effect on and from the date of completion of 12 years of r egular service in the post concerned. Mr. Chanda has urged that on a conjoint re ading of the letters dated 26.06.1990 and 16.05.1995 only suggests that the case s of the eligible ASTT/TTS after the merger would be considered on their turn on the basis of interse 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 availin g the benefit under the Scheme is completion of 12 years of regular service in t he 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 t o obviate the possibility of a senior eligible incumbent being denied the benefi t. Noticeably, the letter dated 16.05.1995 does not mention in particular that o n 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 completion 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 int erpret 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 m erger. 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 Ma dras and Assam Telecom Circles and left these by contending that in case any Cir cle had committed any mistake, the same could not be acted as a precedent by oth er Circles. 12. There is no wrangle at the Bar that as far as the incumbents, co vered by the letters dated 27.06.1990 and 28.08.1996, are concerned, they had be en granted the benefit of the scale on the completion of 12 years of regular ser vice in their respective cadres though, their cases were considered much thereaf ter 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 N o. 1, we find, had duly taken note of the sequence of events including the stipu lations 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 fin ding recorded in favour of the respondent No. 1 is amply supported by the materi als on record and on a totality of the facts and circumstances of the case, we d o 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 contra ry, we are, therefore inclined to sustain the same. In the above view of the mat ter, we find no merit in the instant challenge. The writ petition is dismissed. No costs.