Eligibility conditions for higher pay scales in the restructured cadre and the requirement to complete 16/26 years of service for promotion.

R. MAHADEVAN, J.

This Review Application has been filed to review the order passed by this Court in W.P.No.20469 of 2010 dated 26.11.2013.

2. The facts, as stated by the second respondent herein in the affidavit filed in W.P.No.20469 of 2010, are as follows :

(a) The second respondent joined the Telecom Department as Telephone Operator on 22.03.1977. She belongs to Scheduled Tribe Community. As per the One Time Bound Promotion (OTBP) Scheme, she got promotion and pay benefits with effect from 07.11.1989, ie., on completion of 12 years of service and before completion of 16 years of service. She also got Biennial Cadre Review (BCR) promotion, on completion of 17 years of service, under shortfall vacancy, ie., on 01.07.1994, before completion of 26 years of service. Subsequently, vide the Letter in No.1-38/MPP-98 20.04.1999 read with the clarification dated 27.10.1999, it was decided by the Department that the higher pay scales for restructured cadre are admissible on completion of total service of 16/26 years including the service that has been rendered in the pre-structured cadre. Since the second respondent was not having the length of service in the pre-structured cadre, ie., 16/26 years, she is eligible only for the pay scale of Rs.5000-150-8000, but due to mistake she was paid the salary as per the pay scale of Rs.5500-175-9000. Pursuant to the clarification issued by the Telecom Department dated 16.03.2000, the said mistake was corrected and the second respondent's scale of pay was fixed at Rs.5000-150-8000 with effect from 01.04.2001 and recovery was effected.

(b) Aggrieved by the same, the second respondent filed a writ petition before this Court and the same was transferred to the Central Administrative Tribunal in T.A.No.15/2009. The Tribunal upheld the claim of the second respondent.

(c) Challenging the same, the Department filed a writ petition before this Court in W.P.No.20469 of 2010. The Division Bench of this Court dismissed the writ petition on 26.11.2013 observing that the second respondent has retired from service on 31.03.2003 and that the cancellation order was passed without issuing notice of opportunity of hearing to the second respondent, particularly when the restructuring of pay attaches civil consequence.

3. The said order is under review in this review application.

4. The learned counsel for the Telecom Department has submitted that this Court has decided the writ petition on an impression that no notice was given before recovery, whereas the office memorandums and circulars would clearly show that due notice was given and recovery was made in accordance with the policy after getting the individual option. Thus it is submitted that the order passed by this Court is liable to be reviewed in view of the fact that there is error apparent on the face of the record. It is also submitted that the employee had consciously exercised her option to draw salary under Pre-Restructured scale of pay under the scheme she had opted for and therefore, she cannot turn around and seek for the benefit of a different scheme without fulfilling the eligibility conditions. Stating so, the learned counsel for the petitioners prayed for reviewing the order passed by this Court in the writ petition.

5. A reply affidavit has been filed by the second respondent, in which amongst many grounds, it has been mainly contended that the Government cannot take away the right which had accrued to some employees already, by issuing clarificatory orders. The said act only indicates colourable exercise of powers creating discrimination in the policy and also resorting to victimisation of the eligible officers belonging to the reserved category. As per Articles 14 and 16 of the Constitution of India, there should not be any parity in the payment of revised pay scales in the case of employees similarly situated and moreover, it would amount to deprivation of fundamental rights. It is further stated that the second respondent had been given BCR