K. Srinivasalu vs Union Of India & Anr.

This OA has been filed by the applicant seeking the following relief:

Brief facts of the case as submitted by the applicant are as follows: The Applicant was appointed as a Lower Division Clerk in the Telephone Department on 24.04.1967, and his services were confirmed on 20.06.1969. He was promoted as an Upper Division Clerk on 18.01.1975 and thereafter promoted as Section Supervisor on 04.01.1991. On 01.01.1990, the Government of India introduced the Biennial Cadre Review Scheme, providing for a second promotion upon completion of 26 years of service in the basic cadre. The Applicant completed 26 years of service and, therefore, was entitled to be promoted as Chief Section Supervisor in the scale of pay of Rs.2,000–3,200. However, instead of granting him the said benefit, the Applicant was wrongly promoted on 24.04.1993 as Senior Section Supervisor in the lower scale of pay of Rs.1,600–2,000. Aggrieved by the aforesaid action, the Applicant filed O.A. No.96 of 2001 before this Tribunal which directed the Respondents to consider the case of the Applicant for inclusion in the scale of Rs.2,000– 3,200 and to extend the consequential benefits. Aggrieved by the said order, the Respondents filed W.P. No.10907 of 2002 before the Hon’ble High Court of Madras. By order dated 28.07.2006, the Hon’ble High Court directed the Respondents to consider and implement the relief granted by this Tribunal. Thereafter, the Respondents preferred S.L.P. No.3179 of 2007 before the Hon’ble Supreme Court of India. The appeals preferred by the Respondents were ultimately dismissed by the Hon’ble Supreme Court in the batch of cases, including C.A. No.7949 of 2011, on 12.03.2014. Pursuant thereto, the 2nd Respondent, by Order, dated 08.04.2014, directed the Applicant to exercise his option. Thereafter, the Applicant filed an affidavit and petition in M.A. No.520 of 2015 in O.A. No.96 of 2001 on 09.04.2015, seeking implementation of the orders passed in O.A. No.96 of 2001 within such time as may be fixed by this Tribunal. Subsequently, a Corrigendum dated 03.08.2015 was issued by the Deputy General Manager (Administration), BSNL, Chennai Telephones, clarifying that the scale of pay was to be read as Rs.2,000– 60–2,300–EB–75–3,200. The Respondents filed their Counter Affidavit in M.A. No.520 of 2015 in O.A. No.96 of 2001 on 08.10.2015. The Applicant thereafter filed his Rejoinder in the said M.A. in February 2016. By order dated 21.04.2016 in M.A. No.520 of 2015 in O.A. No.96 of 2001, Tribunal directed the Respondents to pass appropriate orders within a period of two months. However, even thereafter, the Respondents once again wrongly fixed the scale of pay, stating that the correct scale had been inadvertently mentioned in the administrative order and that the corresponding scale of Rs.2,000–60–2,300–EB–75–3,200 had not been fixed. In view of the repeated failure on the part of the Respondents to extend the benefit to which the Applicant is legally entitled, the Applicant has been constrained to file the present Original Application for the aforementioned relief.

The learned counsel for the Applicant contended that the Respondents, having issued the order dated 08.04.2014, remained silent for a considerable period and subsequently issued the alleged Corrigendum dated 03.08.2015, without assigning any valid reason for altering the scale of pay already granted. The Corrigendum does not disclose why the earlier order was erroneous or the basis on which the revised scale was arrived at. Hence, the same is arbitrary, unsustainable and intended to deprive the Applicant of his legitimate monetary benefits.

It was further contended that the Respondents failed to consider the directions issued by this Tribunal in O.A. No.96 of 2001, particularly the requirement to compensate the Applicant for the loss suffered vis-à-vis his juniors. The Government of India instructions dated 02.09.2008 are also applicable to the Applicant, who retired on 30.04.2006, and entitle him to the benefits in the pre-revised scale of Rs.8,570–245–12,245. His pay is required to be stepped up on par with his juniors, including Sri V. Thiagarajan and others, as contemplated in the earlier proceedings. A junior employee cannot legitimately draw higher monetary benefits than his senior on account of the Respondents’ erroneous fixation.

The learned counsel further submitted that the very object of the Biennial Cadre Review Scheme is to remove stagnation and ensure appropriate career progression. Despite the directions of this Tribunal and the subsequent proceedings before the Hon’ble High Court and the Hon’ble Supreme Court, the Respondents failed to extend the consequential monetary benefits to the Applicant. Pursuant to the earlier directions, the Respondents themselves issued the order dated 08.04.2014 fixing the Applicant’s pay in the scale of Rs.8,570–245–12,245 with consequential allowances.

It was lastly contended that the subsequent Corrigendum dated 03.08.2015 was issued only after the Applicant approached this Tribunal for implementation of the earlier orders and was intended to defeat the benefits already granted to him. Such a stand was never taken by the Respondents during the earlier proceedings before this Tribunal, the Hon’ble High Court or the Hon’ble Supreme Court. The Corrigendum is therefore arbitrary, illegal and contrary to the binding directions of the Courts and the earlier orders of the Respondents. Hence, the learned counsel prayed that the Corrigendum be disregarded and the reliefs sought in the present Original Application be granted.

The learned counsel for the Respondents submitted that the Applicant seeks implementation of the IDA pay scale of Rs.8,570–245– 12,245 with effect from 02.07.1993, as mentioned in the order dated 08.04.2014. It was submitted that the said reference was an inadvertent error, as Rs.8,570–245–12,245 is an IDA scale and was not applicable with effect from 02.07.1993. The error was subsequently rectified by Corrigendum dated 03.08.2015, specifying the applicable CDA scale. The Applicant was furnished a copy of the Corrigendum during personal hearing and his request for implementation of the earlier order was duly considered and rejected by a reasoned order.

It was further submitted that no senior or junior employee was granted the IDA scale of Rs.8,570–12,245 with effect from 02.07.1993 and that the Applicant’s claim is based on a misconception regarding the applicable pay scales. The CDA scale of Rs.2,000–60–2,300–EB–75– 3,200 under the Fourth Central Pay Commission subsequently became Rs.6,500–200–10,500 under the Fifth Central Pay Commission with effect from 1996. Upon formation of BSNL on 01.10.2000, the corresponding IDA scale was Rs.8,570–12,245, which was implemented subsequently. The Respondents therefore contended that, while issuing the order dated 08.04.2014 pursuant to the dismissal of the SLP, the IDA equivalent scale was inadvertently mentioned instead of the applicable CDA scale. The Corrigendum dated 03.08.2015 was accordingly issued to rectify the administrative error. The Applicant cannot claim an unintended monetary benefit on the basis of such an inadvertent mistake. Hence, the Corrigendum is valid and lawful, and the Respondents prayed for dismissal of the Original Application.

The Applicant has filed a Rejoinder reiterating the contentions made in the OA.

We have considered the rival submissions made by the learned counsel on either side, perused the pleadings and materials placed on record.

The issue that arises for consideration in the present Original Application is: “Whether the applicant is entitled to the IDA pay scale or the CDA pay scale with effect from 02.07.1993?”

It is seen from the records that the applicant had originally filed OA No.96/2001 before this Tribunal seeking, inter alia, the following relief:

The said OA was allowed by this Tribunal vide order dated 21.06.2001. Aggrieved by the said order, the respondent-BSNL preferred W.P. No.10907/2002 before the Hon’ble High Court of Madras. In the meantime, BSNL came into existence with effect from 01.10.2000, and the erstwhile CDA pay scales were replaced by IDA pay scales. The conversion from CDA to IDA was effected on a point-to-point basis, whereby an employee was placed in the corresponding IDA scale applicable to the erstwhile CDA scale and was granted the same number of increments as had been earned in the CDA scale.

The records reveal that, as on 01.10.2000, the applicant was drawing a basic pay of Rs.7,425/- in the CDA pay scale of Rs.5500-175-9000, after having earned 11 increments. Accordingly, upon conversion to the IDA pattern, his basic pay was fixed at Rs.10,275/- in the IDA pay scale of Rs.7800-225-11175 by granting 11 increments. While the aforesaid Writ Petition was pending before the Hon’ble High Court, the applicant was granted 10% BCR promotion in the normal course with effect from 01.01.2004 and was placed in the IDA pay scale of Rs.8570-245-12245 applicable to the BCR grade. His increment date was fixed as 01.03.2004. Consequently, his basic pay was fixed at Rs.11,020/- with effect from 01.01.2004 and subsequently re-fixed at Rs.11,510/- with effect from 01.03.2004. The applicant thereafter retired from service on attaining the age of superannuation on 30.04.2006. His basic pay for the purpose of pensionary benefits was fixed at Rs.12,000/-. It is relevant to note that the said fixation was made prior to implementation of the order passed by this Tribunal in OA No.96/2001. Subsequently, W.P. No.10907/2002 filed by the respondent-BSNL was dismissed by the Hon’ble High Court of Madras vide order dated 28.07.2006. The respondent thereafter preferred an SLP before the Hon’ble Supreme Court, which also came to be dismissed on 09.04.2007.

Following the dismissal of the SLP, the respondent issued administrative order, dated 08.04.2014, placing the applicant in the higher scale of BCR 10% (Grade IV) with effect from 02.07.1993, in compliance with the order of this Tribunal in OA No.96/2001. However, in the said order, the pay scale was inadvertently mentioned as Rs.8570-245-12245. The said scale was, in fact, the IDA pay scale applicable to the BCR grade, whereas the corresponding CDA pay scale applicable at the relevant point of time was Rs.2000-60-2300-EB-75-3200. The aforesaid discrepancy was subsequently noticed by the Accounts Officer and the Deputy General Manager (Administration), who brought the matter to the notice of the competent authority vide letter dated 03.08.2015. Consequently, a corrigendum was issued clarifying that the pay scale mentioned in the administrative order dated 08.04.2014 as Rs.8570-245-12245 should be read as Rs.2000-60-2300-EB-75-3200, being the appropriate CDA pay scale for BCR 10% Grade IV with effect from 02.07.1993.

From the foregoing facts, it is evident that the applicant was placed in the BCR grade with effect from 02.07.1993 pursuant to the order passed by this Tribunal in OA No.96/2001. However, while issuing the consequential administrative order dated 08.04.2014, the respondents inadvertently mentioned the IDA pay scale instead of the corresponding CDA pay scale. The mistake was subsequently rectified by issuance of the corrigendum substituting the incorrectly mentioned IDA scale with the correct CDA scale of Rs.2000-60-2300-EB-75-3200. The applicant's contention that he is entitled to the IDA pay scale of Rs.8570-245-12245 with effect from 02.07.1993 merely because the said scale was inadvertently mentioned in the administrative order dated 08.04.2014 cannot be accepted. It is an admitted position from the records that the applicant was a Department of Telecommunications (DOT) employee and continued to draw pay under the CDA pattern until 01.10.2000. The IDA pay scales came into existence only upon the formation of BSNL with effect from 01.10.2000. Therefore, the IDA pay scale applicable to the BCR grade could not, in law or on facts, be extended retrospectively with effect from 02.07.1993. The erroneous mention of an IDA pay scale in the consequential administrative order cannot confer upon the applicant a substantive entitlement to a pay scale which was not in existence during the relevant period. A clerical or inadvertent error in an administrative order cannot override the applicable pay structure or confer a benefit contrary to the governing rules and the factual position prevailing during the relevant period.

We, therefore, find that the corrigendum, dated 11.07.2016 issued by the respondents, correcting the pay scale mentioned in the order dated 08.04.2014 from the inadvertently quoted IDA scale of Rs.8570-245-12245 to the appropriate CDA scale of Rs.2000-60-2300-EB-75-3200, is justified and valid. Accordingly, the claim of the applicant for fixation of pay in the IDA pay scale of Rs.8570-245-12245 with effect from 02.07.1993 is devoid of merit and cannot be sustained. . In the result the OA is dismissed. No order as to costs