VIRENDRA KUAMR AND ORS. vs THE UNION OF INDIA AND ORS.

$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 15.02.2024
+ W.P.(C) 5335/2019 AND CM APPL. 50145/2022
VIRENDRA KUAMR AND ORS. ….. Petitioners
Through: Mr. Ranvir Singh, Advocate.

versus

THE UNION OF INDIA AND ORS. ….. Respondents
Through: Mr. Rajesh Gogna, CGSC with Mr. Jitendra Kumar Tripathi (GP) and Ms. Priya Singh, Advocate for R-1/Union of India.
Mr. Abhay Gupta, Advocate for respondent/BSNL.

CORAM:
HON’BLE MS. JUSTICE REKHA PALLI
HON’BLE MR. JUSTICE RAJNISH BHATNAGAR
REKHA PALLI, J (ORAL)

1. The present writ petition under Articles 226 & 227 of the Constitution of India seeks to assail the order dated 11.03.2019 passed by the learned Central Administrative Tribunal (the learned Tribunal) in Original Application (O.A.) No. 793/2019. Vide the impugned order, the learned Tribunal has dismissed the OA preferred by the petitioners/applicants and has consequently rejected their prayer seeking directions to the respondent to upgrade their pension by revising the pay scale corresponding to scale of Rs. 25,000-650-30,200 (known as E-9A) w.e.f., 01.01.2007.
2. The petitioners were Group A officers working with the Ministry of Telecom and Communication (DOT), who superannuated on different dates between 2001-2004. Based on a policy decision, the petitioners, were in 2005, granted an option to be absorbed in Bharat Sanchar Nigam Limited (BSNL), an autonomous organization w.e.f 01.10.2000. All the petitioners, having submitted their option for being absorbed in BSNL w.e.f 01.10.2000, were treated as employees of BSNL and were therefore governed by the pay scales as applicable in BSNL for the purpose of receiving their pensionary benefits. It is the petitioner’s case that based on the recommendation of the Inter Ministerial Group approved by the Cabinet, they were placed in the E-9A pay scale, i.e., Rs.25,000-650-30,200/- from the date of their absorption in BSNL
3. Taking into account that the pay scales of the BSNL employees was required to be revised w.e.f, 01.01.2007, the 2nd Pay Revision Committee (PRC), made recommendations suggesting replacement scales for employees placed in E0 to E9 scales. Accepting these recommendations, the respondent no.1/Department of Public Enterprises issued an Office Memorandum (O.M) on 26.11.2008, prescribing the replacement scales for employees in Central Public Sector Enterprises w.e.f., 01.07.2007. However, no separate replacement pay scale was suggested for pay scale E9A and therefore, employees in this pay scale were also granted the same replacement scale of Rs. 62,000/- to 80,000/-. Consequently, the petitioners started to receive pension on the basis of this revised pay scale of Rs. 62,000/- to 80,000/-. Being aggrieved, the petitioners approached the learned Tribunal, which initially granted liberty to the petitioners to make representation to the BSNL and DOT. Upon the said representations being rejected, they again approached the learned Tribunal, which has dismissed their claims under the impugned order.
4. In support of the petition, learned counsel for the petitioner vehemently submits that the decision of the second PRC not to provide for revised pay scale for E-9A was faulty as such a decision could only be taken by Cabinet Committee which had earlier provided the scale of E-9A to Chief General Manager like the petitioners. He contends that this lapse on the part of second PRC not to recommend a specific revised pay scale for E-9A payscale was only on account of the BSNL’s failure to make a specific proposal for revised scale E-9A w.e.f., 01.01.2007. His submission, thus, is that since the respondent no.3/ BSNL failed to inform the second PRC that any such pay scale E-9A existed in BSNL, the PRC did not make any recommendation in this regard. Consequently, the petitioners continue to suffer by drawing lesser pension on basis of the revised pay scale of E-9.
5. He further submits that the learned Tribunal has also failed to appreciate that payscale E-9 was being paid to the Feeder Cadre post of General Manager as against the payscale of E-9A payable to Chief General Managers, which promotional post, the petitioners were holding. He, therefore, prays that the impugned order be set aside and the second PRC be directed to re-examine the matter and provide a suitable revised pay scale corresponding to scale E-9A w.e.f., 01.01.2007.
6. On the other hand, learned counsel for the respondent nos.1 and 2 supports the impugned order and submits that the petitioner are superannuated employees, who can only have a claim for pension as per the pay scales applicable in BSNL and cannot be permitted to urge that the pay scale of employees in the payscale of E-9A in BSNL should be revised. Once the second PRC did not recommend any specific revised payscale for pre-existing scale of E-9A, the respondents have rightfully been paying pension to the petitioners on the basis of the revised payscale corresponding to E-9 payscale. He further submits that this issue has already been considered by this Court in W.P. (C) 1701/2017 titled Virendra Kumar vs. Union of India and Ors., which writ petition came to be dismissed on 27.02.2017.
7. Learned counsel for the respondent no.3 also supports the impugned order and submits that even though the respondent no.3 had recommended a payscale corresponding to E-9A, the said recommendations were not accepted either by respondent no.1 or by respondent no.2. He, therefore, contends that the petitioners cannot blame the respondent no.3 for not having made any recommendations for the payscale of E-9A and prays that the writ petition be dismissed.
8. Having considered the rival contentions of the parties and perused the record, we are of the view that it would be apposite to begin by noting hereinbelow the relevant extracts of the impugned order:
“6. We take serious exceptions to the manner in which the applicants are wasting the time of this Tribunal. Their pension was fixed more than eighteen years back. Not a single day, they served in the BSNL. Orders were being issued by the Government from time to time, in the context of actual or notional absorption of the employees of the DoT, who were absorbed into the BSNL. As mentioned earlier, the claim of the applicants was dealt with, in detail in O.A. No.1512/2013 and batch, and relief was denied through judgment dated 31.08.2016. The operative portion of the order reads as under:-

“19. The contention is that the government has applied its mind and keeping in view several factors including the financial position, it took a view not to refer the matter to the DPE. It is contended that this is a policy issue and the Tribunal may not interfere in this. Therefore, in our view, even on merits, there is no ground for interference as the government has considered this aspect at the highest level and then taken a policy decision.

20. Therefore, apart from the fact that the prayer made by the applicants is not maintainable for reasons mentioned above, this Tribunal cannot even interfere it being a matter of pay revision and policy issue, in view of the judgments of the Hon’ble Supreme Court in Ekta Shakti Foundation Vs. Govt. of NCT of Delhi, AIR 2006 SC 2609; Union of India &Another Vs. P. V. Hariharan & Anr.,1997 SCC (L&S) 838; and Union of India & Ors. Vs. Makhan Chandra Roy AIR 1997 SC 239. The OAs are, therefore, dismissed. No costs.”

7. When this was challenged before the High Court, the writ
petition was dismissed with the following observations

“6. In our opinion, the Tribunal was justified and
correct in dismissing the said Original Application. It is an accepted and admitted position that none of the serving employees have been given revised pay scale of Rs.75000-100000 or even Rs.74000-2200-91600. The existing employees were given replacement pay-scales between E0 to E9. The E9 scale of Rs.62000-80000 is the highest.

7. If we accept the case of the petitioners, they would be entitled to enhanced pension based on the scale higher than the scale being paid to the existing officers holding the same post. There is no justification and ground to accept the said prayer.

8. Learned counsel for the petitioner submits that the Tribunal has not examined and considered the alternate prayer. The petitioner in the said Original Application had not prayed for the alternative relief. The said prayer was made in MA No. 2557/2016, without challenging the vires
of the Office Memorandum dated 2nd April, 2009 and Office Memorandum dated 15th March, 2011. In paragraph 8B of the said application, certain calculations were made.”

8. Thereafter, the applicants filed another O.A. No.1467/2017 challenging the bunch of circulars, in terms of the observations made by the High Court in W.P. (C) No.1701/2017, leaving it open to the applicants to challenge the bunch of circulars. The said O.A. was dismissed permitting the applicants to file representation, ventilating their grievance, if any. In compliance of this, they preferred a detailed representation, which runs into ten pages. In deference to the order of the Tribunal, BSNL, on the one hand and DoT on the other, passed orders dated 26.11.2018 and 21.12.2018, respectively.

9. From a perusal of the aforesaid findings of the learned Tribunal, it emerges that the main grievance of the petitioner is regarding non-fixation of any corresponding revised pay scale for the existing pay scale of E-9A by the second PRC. Though, learned counsel for the petitioner has vehemently urged that it is only on account of inaction on the part of the BSNL that no such recommendation was made by the second PRC who was not even made aware that specific pay scale E-9A existed, we are unable to agree. As has been rightly urged by the learned counsel for the respondent no.3, though demands in this regard was placed before the Committee of Ministers constituted to look into the demands made by the CPSE executives, the committee did not agree for introducing any intermediary payscale and directed that all officers must be adjusted in the already existing payscales. In fact, a specific communication in this regard was sent by respondent no.2 to respondent no.3 and therefore, it would be useful to refer to the same hereineblow.
“File, No- 61-02/2010-SU
Government of India
Ministry of Communications & IT
Department of Telecommunications

Sanchar Bhawan, Ashoka Road, New Delhi
Dated 24th January 2011
To
The CMD,
Bharat Sanchar Nigam Limited
Bharat Sanchar Bhawan, Janpath
New Delhi-110001
Subject: Proposal of BSNL for revised IDA Pay scales of E1A, E2A and E9A w.e.f. 01.01.2007 in respect of Board Level and below Board Level Executives and Non-Unionized Supervisors of BSNL-regarding.
Sir,
Reference is invited to your DO No, 1-50/2008-PAT (BSNL) dated 22nd December, 2010 regarding proposal of BSNL for revision of IDA Pay scales of E1A, E2A and E9A w.e.f. 01.01.2007 in respect of Board Level and below Board Level Executives and Non-Unionized Supervisors of BSNL.
2. In this connection, it is stated that the above proposal of BSNL regarding IDA pay scales of E1A, E2A and E9A has been examined by Department of Telecommunications in consultation with its Internal Finance Division. The observations on the proposal are as below:-
(i) Case of E1A & E2A scales is not justified.
(ii) No merit has been found in the case of E9A scale. Further, in the case of BSNL there is the additional issue of affordability and sustainability in view of declining revenue of the company.
3. This has the approval of Secretary (T).
Your faithfully,

Sanjeev Gupta
Director (PSU-1)
Tel:23036019”
10. From the aforesaid communication, it is evident that the respondent nos.1 and 2, in January, 2011 took a considered decision not to grant any specific revised payscale corresponding to payscale E-9A w.e.f., 01.01.2007 in respect of board level and below board level employees of BSNL. There is, therefore, no merit in the petitioner’s plea that the aspect of recommending a separate revised payscale w.e.f., 01.01.2007 for scale E-9A was not brought to the notice of respondent no.1. Once the respondents have, by a considered decision, decided not to grant any separate revised payscale w.e.f., 01.01.2007 for the existing E-9A payscale, this Court cannot issue any such direction to the respondents to revise the payscale as prayed for by the petitioners. It is trite law that fixation of payscale has to be left to the wisdom of the employer and the Court should exercise restraint while dealing with such matters.
11. We have also considered the decision of this Court in Virendra Kumar (supra) and find that even at that stage, the petitioners’ claim was rejected by noticing that higher payscale of Rs. 74,000-2200-91,600/-, w.e.f., 01.01.2007 was not being paid to any officer in respondent no.3 and therefore, the petitioners’ claim for pension on the basis of the said payscale was not maintainable. We find no reason to take a different view and that too, at the behest of the petitioners, who superannuated years ago and have never drawn this payscale of Rs. 74,000-2200-91,600/-, based on which they are claiming pensionary benefits.
12. For the aforesaid reasons, we find no infirmity with the impugned order. The writ petition being meritless, is accordingly, dismissed alongwith all pending applications.

(REKHA PALLI)
JUDGE

(RAJNISH BHATNAGAR)
JUDGE
FEBRUARY 15, 2024/ ssc

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