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IN THE HIGH COURT OF KERALA AT ERNAKULAM
AMIT RAWAL, K. V. JAYAKUMAR, JJ.
Bharath Sanchar Nigam Ltd. - Appellant
Versus
K.K.Vijayan - Respondents
OP (CAT) NO. 21 OF 2021
Decided on : 11-02-2025
(A) Central Administrative Tribunal Act, 1985 - Pay anomaly - Petition against the judgment dated 16.12.2019 in O.A.No.32 of 2016 - Applicants promoted as Telecom Mechanic in 1999 claimed parity with junior promoted later - Court emphasized that pay disparity due to promotion timing does not justify lesser pay for seniors - The Tribunal's decision to allow O.A. was upheld based on precedent and guidelines from Official Memorandum dated 04.11.1993 and Circular dated 04.05.2012. (Paras 8 , 9 , 24 , 25 )
(B) Limitation - The court held that claims for salary fixation are not barred by limitation as they constitute a continuing wrong, providing grounds for rectification of pay anomalies. (Paras 10 , 11 )
Facts of the case:
The petitioners, having served since 1988 and promoted in 1999, argued against pay disparity with a junior who was promoted later in 2002, asserting the need for pay parity. The Tribunal found in favor of the applicants based on previous judgments and government directives.
Findings of Court:
The court upheld the Tribunal's decision, stating that the applicants are entitled to stepping up of pay to match their junior's higher pay due to promotion timing. The court imposed litigation costs on the respondents for their dichotomous approach.
Issues: The main issues were whether the pay disparity constituted an anomaly warranting rectification and if the claims were barred by limitation.
Ratio Decidendi: The court concluded that the applicants were entitled to equal pay as the pay anomaly arose from their earlier promotion and the continuing nature of the wrong justifies the claim.
Result: The OP(CAT) is dismissed with costs of ₹10,000/- each imposed on the respondents.
JUDGMENT :
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 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 Rs.5225/-, whereas the applicants were in the Pay Scale of Rs.5020/- and Rs.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 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 which the junior and senior officer are entitled to draw pay 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 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-examin
Claims for salary fixation based on pay anomalies are not barred by limitation as they are considered continuing wrongs, necessitating rectification.
Pay anomaly from IDA fixation and FR 22 requires stepping up seniors' pay to match juniors, not barred by limitation as recurring cause.
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