P.S. Hassan & Anr. vs Bharath Sanchar Nigam Limited & Ors.

Justice K.Haripal, Judicial Member

Both these applicants had started their service as Linemen in the Department of Telecom in the year 1981. They were promoted as Telephone Mechanic in 1997 and then were granted OTBP on 01.12.1998. Later, on completion of 26 years of service, they were given Bi-annual Cadre Review, BCR, on 25.07.2007 and 01.08.2007 respectively. Meanwhile, the BSNL was formed on 01.10.2000; later Annexure-A4 Non-Executive Promotion Policy, NEPP for short, was formulated by the BSNL. The grievance of the applicants is that, as per the provisions of the NEPP, a non-executive recruited by the Department of Telecom prior to 01.10.2000 will be considered for two upgradations on completion of four years of service in the IDA pay scale from 01.10.2000 and 7 years service after the 1^st up-gradation. So, the applicants should have been granted 1^st upgradation in 2004 and 2^nd upgradation in 2011. But for reasons best known to the respondents, they were not granted the benefit.

Similarly, the applicants have submitted that their colleagues and juniors who were similarly placed were granted benefits under the NEPP and were granted 1^st upgradation in 2004 and 2^nd upgradation in 2011; thus they are drawing higher pay than the applicants, which is clearly an anomaly and therefore, the applicants have approached the Tribunal seeking the following reliefs:

With reference to Annexure-A1 they wanted to say that their pay was at Rs.6,980/- as on 25.07.2007 and 01.08.2007 respectively and fixed at Rs.7,290/- with effect from 01.12.2007 with the date of next increment on 01.12.2008 raising to Rs.7,475/-. Annexures-A2 and A3 have been cited to say that during 2^nd pay revision the pay was revised to Rs.15,320/- as on 01.01.2007, which was periodically raised to Rs.18,320/- on 01.12.2011. Similarly, with reference to Annexures-A5 and A6 it is submitted that their pay was fixed at Rs.19,910/- in October 2014. In the case of the 1^st applicant, an over payment was shown as Rs.28,723/- whereas in the case of the 2^nd applicant, over payment was Rs.37,293/-. Annexures-A7 and A8 are the pay slips of Sri.Rajasekharan K.T. and Sri.Jose P.K. respectively, who were drawing at the rate of Rs.21,430/- and Rs.21,510/- respectively during October 2014 and May 2014. So, they wanted to say that during the period both Rajasekharan and Jose were getting higher pay than the applicants, which is clearly an anomaly. They say that both Rajasekharan and Jose are their juniors and this anomaly, though highlighted, was not rectified by the respondents.

Annexure-A9 is the revised pay fixation memo issued to the 2^nd applicant, which shows that his basic pay, though fixed at Rs.15,320/- on 01.01.2007, it was revised and reduced from 01.12.2007 onwards. Thus, on 01.12.2012, their pay was fixed at Rs.18,320/-, which is less than the pay fixed under Annexures-A2 and A3. According to them, it is also an anomaly. Though they had given Annexures-A10 and A11 representations, that were not considered by the respondents.

It is submitted that as per the NEPP, they should have been given the benefits of 1^st pay revision from 01.04.2004 onwards, which was not done. If that was done, they would have got 2^nd upgradation after 7 years as stipulated in paragraph 5.1 of the NEPP.

According to the applicants, they have a right to step up their pay at par with their colleagues or juniors as evidenced from Annexures-A7 and A8, which is a fundamental right and denial of the said benefit is illegal and unjustifiable. The right of an employee to have his pay stepped up at par with his juniors has been upheld by this Tribunal and also the High Court of Kerala and the Apex Court. Similarly, in the Annexure-A4 scheme, all the concessions given by the BSNL to non-executives in relation to OTBP/BCR/Grade IV/ACP etc. after 01.10.2000 stand withdrawn with immediate effect. Accordingly, the BCR fixation given by the BSNL in 2007 is liable to be withdrawn and 1^st upgradation has to be given in the year 2004 and 2^nd upgradation in the year 2011 under the NEPP scheme. Similarly, they have stated that the colleagues of the applicants namely, Rajasekharan K.T. and P.K.Jose as well as juniors Balachandran Pillai and Madhusoodanan Nair.P.R, were treated differently and BCR fixation given to them were forgone and were given 1^st and 2^nd up-gradations as contemplated in the Annexure A4 Scheme. But, identical treatment was not given to the applicants, which is illegal.

Further, it is submitted that the fixations based upon the promotion to the post of Telephone Mechanic or under the NEPP Scheme are under FR 22(1)(a)(1) and hence the anomaly happened to be occurred due to the non-implementation of Annexure-A4 Scheme, the applicants are entitled for stepping up of their pay at par with the juniors. Hence the Original Application.

On behalf of the respondents the Assistant General Manager (Administration) of BSNL, Cochin Office filed reply denying the contentions in the O.A. They have given the official profile of the applicants as well as Jose P.K. and Rajasekharan K.T. It is submitted that the said Rajasekharan K.T. and Jose P.K. had submitted options to forgo the BCR promotions received on 20.04.2009 and 28-11-2007 respectively. So, they got two upgradations on 01-10-2004 and 01-10-2011, whereas the applicants had submitted options on 18-10-2010 for treating the BCR promotion received on 25-07-2007 and 01-08-2007 respectively as their first financial upgradation under NEPP. Their second promotion was due after 7 years. That promotion is under process. Madhusoodhanan Nair P.R, had opted to forgo the BCR promotion received on 27-10-2009 and hence two upgradations on 01-10-2004 and 01-10-2011 were given, whereas Balachandran Pillai K. had opted to treat the OTBP promotion received on 11-02-2006 as his 1^st upgradation. He retired from service on 30.11.2011.

According to the respondents, the anomaly in the pay fixation of the applicants is due to the options exercised by them under NEPP. The respondents had circulated letter from the Corporate office dated 28-09-2011 instructing to give a chance to all the officials who want to change their initial options under NEPP within 30 days from the date of issuance of the Corporate office letter vide AGM (Admn) letter No.ST-1/EK-377/2011/Vol-II/8 dated 01.10.2011. But no fresh option was submitted by the applicants.

To this, the applicants filed rejoinder. Referring to the terms of Annexure-A4 scheme they say that the BCR fixation given to the applicants in the year 2007 cannot be considered as post based promotion. The respondents ought to have adopted the benefits of fixation to the applicants permitting them to forgo the BCR fixation given in the year 2007. According to them, instead the respondents have adopted the BCR fixation given to the applicants in the year 2007 as 1^st upgradation as per NEPP scheme, is highly detrimental to the interest of the applicants.

According to them, the contention that the applicants were given a chance to exercise revised option based on communication dated 01.10.2011, that the applicants did not change the option, is far from truth and unsustainable. As a matter of fact, the applicants never had come across such an opportunity to submit revised option. From the date of coming to know about the pay fixation anomaly, the applicants submitted several representations and in the official note, based on such representations, the Circle Office was addressed for permission to exercise revised option and decision in this regard is awaited. It is a fundamental principle that whenever fixation has been made, the method beneficial to the employee has to be adopted. However, in the case of the applicants, by treating the BCR fixation of 2007 as 1^st upgradation, they have lost their chance of getting the 1^st upgradation on 01.10.2004 and 2^nd upgradation on 01.10.2011.

Further, it is submitted that Annexure-A10 application submitted by the 1^st applicant and Annexure-A11 representation given by the 2^nd applicant were not considered while some of the similarly placed employees were given such benefits, in this connection, the instance of K.R.Venugopalan is highlighted. Therefore, procedures adopted by the respondents are liable to be set aside and identical treatments have to be extended to the applicants also and the pay of the applicants have to be revised and stepped up to that of the colleagues, Rajasekharan and Jose.

In the additional reply, the Assistant General Manager has averred that though Rajasekharan, Jose and Madhusoodanan Nair had entered the department as juniors to the applicants, they had opted to forgo the BCR promotion received and hence got two promotions on 01.10.2004 and 01.10.2011. As per paragraph 6.5 of Annexure-A4, any post based promotion given to an employee between 01.10.2000 and 01.10.2004 will be treated as 1^st upgradation under the NEPP. Upgradation in pay scale availed by a non-executive employee on the basis of existing OTBP/ BCR/Grade IV/ACP scheme etc. or by way of conversion/re-structuring/pay scale upgradation etc. after 01.10.2000 and before notification of the policy will be treated as the 1^st upgradation under the policy. The concerned employee may however opt for 1^st upgradation by forgoing the promotion already availed under the erstwhile OTBP/BCR etc., whereas the applicants had submitted their options to treat the BCR promotion received as their 1^st upgradation under NEPP.

They have further stated about the communication dated 28.09.2011 whereunder officials who wanted to change their initial options were given an opportunity to revise their option. But the applicants did not submit any revised option, whereas K.R. Venugopalan had submitted revised option on 20.02.2011 to forgo the BCR availed on 27.03.2007. Hence he got promotions on 01.10.2004 and 01.10.2011. They have also produced copies of communications dated 9/11.03.2016 and 18.10.2013 as Annexures-R1 and R2.

After hearing counsel on both sides, this Tribunal disposed of the O.A. by order dated 17.06.2016 on the following lines:

This order was challenged before the Hon'ble High Court in OP(CAT)45/2017. This OP along with other OPs were disposed of by the Hon'ble High Court setting aside the order and remitting the matter to this Tribunal by common judgment dated 06.02.2025. Thus the matter came up for consideration before the Tribunal again.

After the remand, on 17.02.2026 the respondents produced the options submitted by the applicants under clause 5.1 and 6.4 of Annexures-A4 which are produced and marked as Annexures-R2 to R5 in the MA 311 of 2026. Since there was duplication in the marking of the documents, those documents have been marked as Annexures-R3 to R6.

Thereafter, the respondents filed a 2^nd additional reply statement producing Annexures-R7, which is the communication dated 28.09.2011 and Annexure-R8 communication dated 05.04.2011. Through this additional reply, the respondents have tried to show how the pay of the applicants happened to be reduced through the revised memo issued through Annexure-A9 whereunder the pay of the applicants was reduced by one step below than fixed under Annexures-A2 and A3. Thus, referring to Annexure-R8 communication dated 05.04.2011 it is submitted that the Corporate office had stated that in the case of promotions under FR 22(I)(a)(ii) not involving higher responsibility, the pay of the promotees should be placed in the minimum if the existing pay is less than the minimum of the scale of new post, and if the existing pay is higher than the minimum of the higher scale, the pay will simply be placed in the new pay scale and will continue to draw the existing pay without any change in the date of the increment of the new post. Basing on Annexure-R8, it is submitted that BCR promotion to the 1^st applicant was granted on 25.07.2007 and to the 2^nd applicant on 01.08.2007. Subsequently, 2^nd PRC in BSNL came on 07.05.2010 to be implemented with effect from 01.01.2007. The pay of the applicants as on 01.01.2007 was originally fixed in the pre-revised pay scale of Rs.5700-160-8100 (NE-7) was subsequently fixed in the revised scale of Rs.10900-20400 (NE-7) on 21.05.2010, on implementation of the 2^nd PRC with effect from 01.01.2007. Thus they have demonstrated as to how the pay fixation was done which was revised later on the basis of Annexure-R8.

Then, it is submitted that clause 5.2 of Annexure-A4 merely provided for the withdrawal of certain concessions granted in relation to OTBP/BCR and allied schemes; it did not provide for the withdrawal or annulment of the OTBP/BCR schemes themselves, nor of the upgradations already granted thereunder. So, according to them, a plain reading of the provisions of the NEPP makes it abundantly clear that no such interpretation, as sought to be advanced by the applicants is either contemplated or permissible. The applicants have misconstrued the scope and import of the said stipulation and are attempting to conflate the withdrawal of concessions with the withdrawal of the schemes themselves, which is legally untenable. So, the O.A. is sought to be dismissed.

We heard Sri.C.A.Joy, learned counsel for the applicants and Sri.Geroge Kuruvilla, learned Standing Counsel for the respondents in great detail.

The learned counsel for the applicants submitted that there is no justification in placing unwanted emphasis on Annexures-R4 and R6 options given by the applicants respectively. According to Sri.C.A.Joy, the learned counsel, in the light of Annexures-R3 and R5, it is very clear that the applicants had opted the NEPP and in the circumstances, it was unnecessary on the part of the respondents to place reliance on Annexurs-R4 and R6. According to him, Annexures-R3 and R5 on the one hand and Annexures-R4 and R6 on the other are mutually contradictory. As it is proved that Annexures-R3 and R5 were given by the applicants, the other options were unnecessary and should have been ignored by the respondents. According to the learned counsel, the applicants were misled and were guided by wrong judgment, they are persons having only elementary education, studied upto seventh standard only and had joined service as Lineman. Therefore, ignoring Annexures-R4 and R6 options given under clause 6.4 of the Annexure-A4 scheme they should have been granted 1^st upgradation in 2004 and 2^nd upgradation in 2011, on completion of seven years of service as Telecom Mechanic.

On the other hand, according to Sri.George Kuruvilla, the learned Standing Counsel, the respondents could not have ignored the Annexures-R4 and R6 options given by the applicants, they had only acted in accordance with the options given by the applicants, after having given such options, retaining the BCR granted in 2007, which was stated as the 1^st upgradation, the applicants could claim for 2^nd upgradation only after seven years, in 2014, which have already been granted and therefore the O.A. is only to be dismissed.

Referring to the 2^nd additional reply, it is submitted that the respondents had explained how the issue of revised pay slip had become necessary, resulted in reducing the pay of the applicants, which was supported by the clarification issued by the respondents. According to the learned counsel, that also is not liable to be interfered with. He also highlighted clause 6.3 of the NEPP scheme and submitted that the junior-senior anomaly stated by the applicants cannot be upheld.

Before adverting to the arguments raised by the learned counsel on both sides, it is appropriate to consider the two fold contentions raised by the applicants in the O.A. At first, it is submitted that though the benefits of Annexure-A4 NEPP should have been extended to them, they were not given any benefit, they were not granted 1^st upgradation in 2004 and 2^nd upgradation in 2011 as granted to other similarly placed employees and juniors of the applicants, which ultimately resulted in heavy loss to the applicants, which is recurring in nature. Secondly, it is submitted that the junior-senior anomaly pointed out by the applicants has not been addressed. In other words, there is junior-senior anomaly in the fixation of pay and therefore, they should be given the benefit of fixation from 2004 and 2011 onwards at par with the juniors and denial of the same is illegal and unjust.

As stated earlier, this is the second time the original application is coming before this Tribunal for consideration. Earlier, after hearing counsel on both sides, by order dated 17.06.2016, the original application was allowed. After referring to clauses 5.1 and 5.2 of the O.A., the Tribunal had allowed the O.A. as quoted supra.

Against this finding, the respondents moved OP(CAT) 45/2017. After referring to paragraphs 5 and 6 of the order, the Hon'ble High Court disagreed with the interpretation made by the Tribunal and held as follows:

The High Court thus 'constrained to notice that the above findings are improbable and incorrect as the options exercised by the applicants, which was clearly admitted in the pleadings have not been taken into consideration'. Hon'ble High Court also took into consideration the Annexures-R3 to R5 options given by the applicants before the respondents. That has been reproduced in the judgment of the High Court rendered on 06.02.2025. Ultimately, the High Court held as follows:

Thus the matter came up for consideration again. As we noticed earlier, the additional replay was filed after the remand along with Annexures-R7 and R8. Annexures-R3 to R6 options were also produced, after the remand.

There is no serious dispute on the broad facts of the case. Both the applicants had started as Linemen in the erstwhile Department of Telecom in 1981 and were promoted as Telecom Mechanic on 28.04.1997 and 03.03.1997 respectively. It is also not disputed that both of them were given OTBP on 01.12.1998, that is after sixteen years of entering service. Similarly, they were given BCR after ten years from 1997, that is on 25.07.2007 and 01.08.2007, respectively, on completion of 26 years of service in the Department of Telecom and in the BSNL taken together.

While working as Telecom Mechanic, the BSNL was formed on 01.10.2000 and both were absorbed and were given IDA pay scale with effect from 01.10.2000. Meanwhile, the Annexure-A4 NEPP was adopted by the BSNL, which postulated four time bound promotions to non-executives. In this connection, it is appropriate to quote clauses 3.1 and 3.2 of Annexure-A4. Similarly, clauses 5.1, 5.2 and 6.4 are also important for our purpose, quoted bellow:

The definite case of the applicants is that they wanted to be brought within the NEPP. The O.A. or the rejoinder are conspicuously silent about the options, if any, given by the applicants pursuant to the introduction of the NEPP. No doubt, they cannot be blamed if no option was given as provided under clause 5.1. Clause 5.1, quoted supra, clearly indicates that even if an option is not given, it would be presumed that they had adopted the NEPP. The Rule is that, all the non-executives should be brought within the fours of the NEPP. One could be brought out of the scheme, only if he had given an option exempting himself from the scheme. Unless such an option is given, it would be presumed that he has adopted NEPP. Therefore, as rightly pointed out by the learned counsel for the applicants, Annexures-R3 and R5 options given by the applicants have no relevance. Even if such options were not given, they would automatically fall within the scheme. In other words, they should have been given 1^st upgradation in 2004, following which, 2^nd upgradation after seven years in 2011. The grievance of the applicants is that, ignoring the above position, BCR granted to them in 2007 was taken as their first option so that they have been denied the benefit of 1^st upgradation in 2004 and 2^nd upgradation in 2011. The employees similarly placed and juniors of the applicants were given higher pay and thus they have been discriminated against, is the grievance of the applicants.

At the time of earlier disposal of the O.A., Annexures-R1 and R2 alone were made available before the Tribunal. Even though the respondents had made mention about the options given by the respondents, the options were not produced. It is evident from the judgment of the Hon'ble High Court that such options, Annexures-R4 and R6, were taken to the High Court and that made the High Court to make a remand. Therefore, we have to consider whether any decision adverse to the applicants can be made on the basis of Annexures-R4 and R6 options.

Option in Form No.II was issued to be exercised as per paragraph 6.4 of Annexure-A4. Annexures-R4 and R6 are identically worded and read

This option form has two parts, one is eschewing OTBP/BCR/ Grade-IV or ACP promotions and alternatively opting for promotions granted under the OTBP/BCR/Grade-IV/ACP. Here, from Annexures-R4 and R6, it is clear that both the applicants had opted for the BCR promotion granted to them on 25.07.2007 and 01.08.2007 respectively.

After having given such an option, now, in our considered opinion, they cannot be heard to say that the respondents should have simply eschewed the same and should have been given benefits which is more beneficial to the applicants. Such a contention is unheard in service jurisprudence. When options are called for from the employees, it is for them to exercise the same wisely. Once such options are exercised, the employer has no business to probe whether a particular option is more beneficial to the employee or not, unless specifically stated in the scheme. So, the employer is only expected to accept the option and act upon the same and pass orders accordingly.

Secondly and more importantly, it is the definite case of the respondents that on the basis of the demands made by the employees, further opportunity was given to revise the option. Thus notices were circulated among the employees and on that basis, one Mr.Venugopal etc. had given revised option. On the basis of the same, he was given 1^st upgradation in 2004 and 2^nd upgradation in 2011. Earlier, he had also opted BCR promotion as the 1^st upgradation, but could revise the same subsequently. It is evident that such an opportunity for changing the option was not made use of by the applicants. The learned counsel has contended that they were not aware of the circular issued by the respondents calling for fresh option. Once it is shown that employees similarly placed have exercised or changed their option and moved over to the 1^st upgradation in 2004, it cannot be said that the applicants were not aware of the same. Such a contention can be considered only to be rejected.

It is true that once the employees remained dormant without exercising any option in terms of clause 5.1, it would have been presumed that they had adopted the Annexure-A4 non-executive promotion policy and everything should have been followed the suit. The mischief had caused by the applicants themselves by giving Annexures-R4 and R6 options, whereunder they have opted to retain the BCR promotions granted in 2007. Once such an option was exercised by them, the employer had no option to change the same and to fix the first upgradation in 2004, as claimed by the applicants.

Clauses 5.1 and 6.4 of Annexure-A4 postulate exercising two options. Even if an option was not exercised under clause 5.1, it would have been presumed that the employees have adopted NEPP. But options exercised by the employees under Annexures-R4 and R6 in Form No.II could not have been eschewed by the employer. In all probability, most of the employees either might not have given the option form filled or might have adopted the first part of the Form-II and in that case such a mischief would not have happened.

It is also important and relevant to say that the applicants have not stated anything about Annexures-R3 to R6 nor did they deny the Annexures-R4 and R6 options exercised by them Once they have given such options retaining the benefit under the BCR of 2007, they could not have made a retreat. Of course, they were given an opportunity to give a revised option as done by Venugopal etc. That opportunity was not used by them and at this belated stage, they cannot be heard to say that they should have been given benefit of 1^st upgradation in 2004, despite giving in writing the option forms, Annexures-R4 and R6.

Annexure-R7 communication dated 28.09.2011, which is produced during the second spell of the proceedings show that the employees had demanded for granting further opportunity to give fresh options. Annexure-R7 dated 28.09.2011 reads thus:

Point No.8 raised in the Annexure mentioned above was made available to us by the learned Standing Counsel for perusal, which reads thus:

Clarification issued in this regard is as follows:

It cannot be believed for a moment that these circulars and clarifications were not given wide publicity. The contentions of the respondents indicate that other employees had used this opportunity to revise their option and in the circumstances, it is highly improbable that the applicants were not aware of this opportunity, made available to them.

The junior-senior anomaly also cannot be highlighted by the applicants in the light of clause 6.3 of NEPP, which reads thus:

That means, this benefit granted to each employee is purely personal and it can be related only to the option exercised by them. On that basis, the applicants cannot claim any upgradation in the pay.

In the additional reply statement, the respondents have explained as to how a revised pay slip was issued in the case of the applicants and how their salary was reduced by one stage. That is quite convincing. That has not been called in question, specifically.

However, the learned counsel for the applicants submitted that the amounts indicated as overpayments in Annexures-A5 and A6 respectively were realised from the applicants at the time of their retirement. From Annexures-A2, A3, A5 and A6 it is apparent that those were amounts paid to the applicants from 2010 onwards, reckoning pay revision from 01.01.2007 onwards. Reasons for making such overpayments are not attributable to the applicants. Respondents have no case that, that had occurred due to any act of misrepresentation, willful default, undue influence or such other vitiating circumstances played by the applicants. They are Group-C employees. Those are amounts paid to them over a period more than seven years. In the circumstances, following the dictum in Rafik Masih v. State of Punjab [(2015) 4 SCC 334], excess pay and allowances granted to them by such mistake on the part of the respondents, recovered from their retiral benefits, are liable to be refunded. Such an exercise shall be completed within a period of four months from the date of receipt of a copy of this order.

Subject to the above direction, the Original Application is dismissed. No costs.