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Judgment
The present M.A. has been filed by the applicants seeking the permission of the Tribunal to file the accompanying O.A. jointly.
For the reasons explained therein and keeping in view the common grievance and cause of action, the M.A. is allowed.
The present O.A. has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief(s):-
“ 8.1 Call for the records of the case for perusal.
8.2Direct the respondent to release the payment of the PLI/Bonus for the year 2003-04 & 2004-05 to the applicants which was given to other employees including Shri Hari Kishan Sharma.
8.3Or alternatively, direct the respondent to give the undertaking before this Hon’ble Court to release the same to the applicants just after revival of the BSNL:
8.4Pass any other order(s), which this Hon’ble Tribunal may deem just and equitable in the facts and circumstances of the case.”
The brief facts of the case as explained by the learned counsels for the applicants are that the applicants were appointed on different dates on the post of Postal Assistant in the then Department of Post & Telegraph under Ministry of Communication, Govt. of India. The applicants qualified the departmental examination of Junior Accounts Officer (JAO) which is equivalent to SAS (Subordinate Accounts Services) of Government of India and were appointed/promoted as JAO in Department of Posts (DoP) on various dates. They were then sent on deputation as JAO on different dates to the Department of Telecommunication (DoT) from the Department of Posts (DoP). On 30.09.2000, the DoT formed a policy of absorption for the JAOs on deputation/deemed deputation in DoT/BSNL. The applicants cleared the said examination for absorption as JAO and then they were sent to the BSNL on deemed deputation. In the years 2000-2001, 2001-2002 and 2002-2003, since the applicants were working in the BSNL, they were getting the pay under the Central Dearness Allowance (CDA) and also the Productivity Linked Incentive (PLI). However, they were not paid the PLI for the period 2003-04. Learned counsel for the applicants submits that for brevity, the facts of applicant number 1 are being taken for explaining the case. It is submitted that the applicant number 1 made various representations dated 28.03.2005, 15.04.2005 and 26.06.2005 airing his grievances but no response was received. Learned counsel for the applicants clarifies that the applicant number 1 was not absorbed in the year 2004-05 with the respondents, however, he got subsequently absorbed. Similarly, the other applicants were also not paid the PLI for the year 2003-04, however, it was paid to all other employees. Thereafter, the applicant No. 1 again made a representation on 04.01.2006 addressed to the Secretary, DoT, for the redressal of his grievances as BSNL was running into profits but still no reply was received. The applicant once again represented via representations dated 02.03.2006, 06.04.2006 and 07.07.2006 addressed to the Hon’ble Minister, however, no response was received. Thereafter, the BSNL issued an order dated 24.11.2006 directing to give PLI to all the employees of BSNL who are drawing the pay in the CDA pay scale. The applicants again made a representation on 18.07.2009 seeking PLI for the aforementioned years. In the meantime, Mr. Hari Kishan Sharma, a colleague of the applicants approached the Tribunal vide O.A. No. 3618/2014 which was allowed on 08.11.2016 with a direction to the respondents therein to make the payment of the PLI to the applicant therein for the years 2003-04 and 2004-05 at the rate at which it has been paid to other absorbed and directly recruited BSNL employees. Learned counsel for the applicants also submits that the applicant no. 1 made a representation to the GM (Finance), NTR Circle on 12.06.2017 (Annexure A11) praying for grant of PLI to him followed by further representation dated 29.03.2019 (Annexure A12), however, no response was received. Thereafter, the said applicant filed an RTI seeking to find out the policy of the respondents regarding such payment of PLI to unabsorbed employees such as him regarding the same, and the respondents replied on 03.07.2019 (Annexure A1) that “in view of the financial position of BSNL, it was decided with the approval of the competent authority that PLI for the year 2003-04 and 2004-05 may be paid to the applicant only to comply with the order dated 08.11.2016 in O.A. No. 3618/2014 and the payment of PLI for these years to other unabsorbed officer may be reviewed later on. Since, there is no improvement in the financial position of BSNL, the representations received from individuals for payment of PLI for the year 2003-04 and 2004-05 are not being considered.” On not being satisfied with the same, the applicant filed an appeal before the appellate authority which in its letter dated 13.08.2019 stated that “the payment of PLI for the year 2003-04 and 2004-05 was paid only to those covered by the order dated 08.11.2016 in O.A. NO. 3618/2014 and the payment of PLI to those unabsorbed officers will have to the reviewed later. Since there was no improvement in the financial position of BSNL, the representations received for the years 2003-04 and 2004-05 have not been considered. Therefore, no note-sheet existed to supply to him.”
Aggrieved by the above explained position, the applicants have filed the present O.A.
Learned counsel for the applicants submits that the issue is no longer res-integra. He submits that a similar matter has been decided by a coordinate Bench of this Tribunal in O.A. NO. 3618/2014 dated 08.11.2016 wherein the Tribunal has stated as under:-
“8.In the conspectus of facts of this case, I find merit in the OA and the same is, accordingly, allowed. The respondents are directed to make the payment of PLI to the applicant for the years 2003-04 and 2004-05 at the rate it has been paid to other absorbed and directly recruited BSNL employees. The exercise will be done within a period of three months from the date of receipt of a certified copy of this order. No costs.”
Learned counsel for the applicants states that the above order of the Tribunal has been implemented as evidenced by the letter dated 15.12.2016 (Annexure A10 Colly- Page 42) bearing No. G-GM (Legal)/Legal/201502/32. Learned counsel also shared across the Bench a copy of the PIB communication/press released posted by the Ministry of Communications dated 14.02.2025 to buttress his claim that BSNL’s financial situation has improved and they have been making continuous profits in recent times after the coronavirus period. Learned counsel relies on the judgment of the Hon’ble High Court of Judicature at Allahabad (Lucknow Bench) in Writ A No. 2699/2025 titled Ram Bharosey and Ors. Versus State of UP and Anr., dated 07.03.2025in support of his contentions. The relevant paragraphs of the same are quoted below:-
“8.This aspect of the matter has recently been considered by the Apex Court in the case of Lt. Col. Suprita Chandel Vs. Union of India - Civil Appeal No. 1943 of 2022 (decided on 09.12.2024), where it has been held by the Apex Court that once High Court or Supreme Court have passed a judgment adjudicating the rights vested in the Government servant, then it would not be necessary for all the similarly situated employees to approach the Court for grant of said benefit. It is the duty of the State Government to extend the benefit as decided by the Court to all such similarly situated employees. The Apex Court in para nos. 14 and 15 has observed as under :-
"14.It is a well settled principle of law that where a citizen aggrieved by an action of the government department has approached the court and obtained a declaration of law in his/her favour, others similarly situated ought to be extended the benefit without the need for them to go to court. [See Amrit Lal Berry vs. Collector of Central Excise, New Delhi and Others, (1975) 4 SCC 714]
15.In K.I. Shephard and Others vs. Union of India and Others, (1987) 4 SCC 431, this Court while reinforcing the above principle held as under:-
"19.The writ petitions and the appeals must succeed. We set aside the impugned judgments of the Single Judge and Division Bench of the Kerala High Court and direct that each of the three transferee banks should take over the excluded employees on the same terms and conditions of employment under the respective banking companies prior to amalgamation. The employees would be entitled to the benefit of continuity of service for all purposes including salary and perks throughout the period. We leave it open to the transferee banks to take such action as they consider proper against these employees in accordance with law. Some of the excluded employees have not come to court. There is no justification to penalise them for not having litigated. They too shall be entitled to the same benefits as the petitioners. ?."
9.This Court is conscious of the fact that all the similarly situated persons have approached this Court previously where their writ petitions have been allowed relying upon the leading writ petition being Writ - A No. 8969 of 2022 and benefit granted therein has been extended to the similarly situated persons. The similar judgment has been passed in Writ - A No. 12158 of 2024 - Baliram Singh Vs. State of U.P. Thru. Prin. Secretary, Agricultural Marketing and Agriculture Foreign Trade and 2 Others (decided on 17.12.2024). The judgment of this Court in the case of Baliram Singh (supra) is quoted herein below :-
"Heard learned counsel for petitioner and learned Standing Counsel for the State.
Present writ petition is filed by the petitioner challenging the impugned action of opposite parties whereby the respondents have denied the service benefits for the purpose of pension, Gratuity, and other retiral benefits.
The petitioner was appointed on the post of Subordinate Agriculture Marketing Inspector, Grade-Ii on adhoc basis on 19.02.1983 and his services were regularized on 02.09.20034. The petitioner retired on 31.12.2020.
Similar controversy has already been adjudicated by this Court by means of judgment and order dated 17.2.2023 passed in a bunch of writ petitions, leading one is Writ-A No.8968 of 2022, wherein issue relating to interpretation and application of Section 2 of the Act of 2021 for counting qualifying service for the purpose of pension with regard to adhoc employees has been dealt with in detail by this Court. Relevant portion of the said judgment reads:
"..19. The very initial appointment letters show that petitioners were appointed against substantive posts on adhoc basis. Since their appointment is against a substantive post, hence, they are squarely covered even by Section 2 of the Act of 2021 as it stands. Further, in view of interpretation as given above to Section 2 of the Act of 2021 and it is held that the services performed in temporary or permanent nature need to be counted for pensionary purposes, otherwise, it again would be hit by the judgment of the Supreme Court in case of Prem Singh (supra), thus, there can be no dispute that all the petitioners are are entitled for counting of services rendered by them as ad-hoc employees for pensionary purposes.
In view of above, all the impugned orders are set aside.
...22. In the aforesaid facts and circumstances of the case, all the orders impugned in the writ petitions are passed either on the ground that they are covered by the Ordinance/Act of 2021 or they were not party in case of Prem Singh (supra) or without considering the judgment of Prem Singh (supra) and hence, the same are squarely covered by the finding given above. Therefore, the impugned orders cannot stand and are set aside. However, petitioners shall be entitled to past pensionary benefits for last three years only.
23.All the writ petitions are allowed." Since grievance of the petitioners in the present petition is similar to one which has already been adjudicated by this Court in the aforesaid case, the benefit of the aforesaid judgment and order dated 17.2.2023 shall also be made available to the present petitioners in the same terms.
Learned counsel for petitioner has also placed reliance upon the judgment of Hon'ble Supreme Court passed in the case of Lt. Col. Suprita Chandel Vs. Union of India (Civil Appeal No. 1943 of 2022) dated 09.12.2024 where Hon'ble the Supreme Court has held that the State Government should extend the benefit of directions of the courts to all the government servants so that all the government servants do not approach in the court for seeking similar benefits, Paragraph nos. 14 & 15 are quoted as under:-
" 14. It is a well settled principle of law that where a citizen 10 aggrieved by an action of the government department has approached the court and obtained a declaration of law in his/her favour, others similarly situated ought to be extended the benefit without the need for them to go to court. [See Amrit Lal Berry vs. Collector of Central Excise, New Delhi and Others, (1975) 4 SCC 714].
15.In K.I. Shephard and Others vs. Union of India and Others, (1987) 4 SCC 431, this Court while reinforcing the above principle held as under:- ?19. The writ petitions and the appeals must succeed. We set aside the impugned judgments of the Single Judge and Division Bench of the Kerala High Court and direct that each of the three transferee banks should take over the excluded employees on the same terms and conditions of employment under the respective banking companies prior to amalgamation. The employees would be entitled to the benefit of continuity of service for all purposes including salary and perks throughout the period. We leave it open to the transferee banks to take such action as they consider proper against these employees in accordance with law. Some of the excluded employees have not come to court. There is no justification to penalise them for not having litigated. They too shall be entitled to the same benefits as the petitioners?." (Emphasis Supplied)"
16.Accordingly, the writ petition is allowed. However, petitioners shall be entitled to past pensionary benefits for last three years only. Payment shall be made to petitioners expeditiously."
12.Apart from the above, this Court is of the view that confining to the judgment of the Apex Court in the case of Lt. Col. Suprita Chandel (supra) where it has been held that all the employees are not bound to approach the Court for grant of similar relief which has already been granted to other similarly situated employees.”
At this stage, learned counsels for the applicants submits that the applicants would be satisfied if a direction is given to the respondents to consider the representations made by them in the year 2009 for grant of PLI keeping in view the relied upon judgments.
Learned counsel for the respondents vehemently opposes the contentions made by the learned counsel for the applicants. At the outset, she raises a preliminary objection that inasmuch as the impugned order is only a reply furnished by the CPIO in response to an RTI application under the RTI Act and the same cannot be challenged herein by way of the present O.A. and the remedy against a reply to an RTI application lies elsewhere, that is, the first appeal and the second appeal before the CIC. Therefore, the present O.A. is misplaced. She submits that in a statutory act like the RTI where there is a provision for appeal, the applicant no. 1 has not exhausted the remedy of preferring a second appeal. She further submits that the Tribunal lacks jurisdiction in dealing with the matter as any person aggrieved by any action of the respondents should have taken the necessary action within the prescribed time limit of 6 months and 1 year, as the case may be. She submits that the present application suffers from delay and laches, hence, it cannot be entertained. Learned counsel for the respondents also submits that out of all the applicants only one applicant’s grievances have been outlined in the present O.A. and with respect to other applicants there is no information. She has relied upon the following judgments in support of her contentions:-
State of Karnataka and Ors. Versus SM Kotrayya and Others of the Hon’ble Apex Court in CA Nos. 12037-48/1996 dated 02.09.1996
Union of India and Ors. Versus MK Sarkar of the Hon’ble Apex Court in CA No. 8151/2009 dated 08.12.2009.
I have heard the learned counsels for the parties and with their assistance I have also gone through the pleadings available on record. I have also gone through the order passed by the Tribunal in O.A. No. 3618/2014 and all the other judgments being relied upon by the learned counsels for the parties. The present case is a peculiar case inasmuch as the decision to disburse the PLI can be taken by the BSNL only based on the financial position which itself is volatile and dynamic and can change from time to time due to prevailing market conditions. From the records, it is seen that the BSNL is obedience of the directions of the Tribunal in O.A. No. 3618/2014 had decided to implement it for both absorbed and unabsorbed employees whose status was determined by being on the rolls in the years 2003-04 and 2004-05. It is seen that at that time the applicant was unabsorbed but currently he is an absorbed employee and at that point in time, the BSNL had decided to give the PLI to unabsorbed employees on the direction of the Tribunal. The judgment of the Tribunal is in personam but not in rem but there have been a plethora of judgments of constitutional courts to the effect that the authority should not force similarly placed employees to knock at the doors of judicial forums to obtain a relief which has already been granted to others due to judicial intervention.
I find that the financial position of BSNL has vastly improved as evidenced by the PIB note dated 14.02.2025. However, I find that such a press release pertains to the Department of Telecommunications dated 14.02.2025 and as already stated above the profit/loss of the BSNL is dependent upon the prevailing market conditions.
Accordingly, the O.A. is disposed of with a direction to the applicants to make fresh representations to the respondents detailing their grievances within four weeks from the date of receipt of a certified copy of this order. On receipt of the said representation, the respondents shall consider and dispose them of by way of reasoned and speaking orders keeping in view the judgment of this Tribunal in O.A. No. 3618/2014 dated 08.11.2016 and the judgment of the Hon’ble High Court of Judicature at Allahabad (Lucknow Bench) in Writ A No. 2699/2025 titled Ram Bharosey and Ors. Versus State of UP and Anr. (Supra), as expeditiously as possible and within eight weeks keeping in view all the aforementioned observations.
There shall be no order as to costs.