IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 WP(C).No. 8678 of 2005(G) ------------------------- PETITIONER: ------------ T.K. VASUDEVAN NAMBOODIR, TELECOM TECHNICAL ASSISTANT, BHARAT SANCHAR NIGAM LIMITED TELEPHONE EXCHANGE, UDMA. BY ADV. SRI.P.K.MADHUSOODANAN RESPONDENTS: ------------- 1. ACCOUNTS OFFICER (BILLS), BHARAT SANCHAR NIGAM LIMITED, TELECOM, KANNUR. 2. THE GENERAL MANAGER, TELECOM DISTRICT BHARAT SANCHAR NIGAM LITD., KANNUR. 3. THE CHIEF GENERAL MANAGER, BHARAT SANCHAR NIGAM LIMITED, KERALA TELECOM CIRCLE, THIRUVANANTHAPURAM-33. 4. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF TELECOMMUNICATION, NEW DELHI. BY ADV. SRI.V.E.ABDUL GAFOOR, ADDL.CGSC FOR R4 BY ADV. SRI.K.KESAVANKUTTY, SC, BSNL FOR R1 TO3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE MEMO NO. ST-101/R-38/TECH-TTA/5 DATED 7.7.1999 POSTING THE PETITIONER AS TECHNICIAN AT PAIVELIKA EXT.P2 TRUE COPY OF THE LETTER NO. E-2/PIK/2002-03/2 DATED 30.4.2002 AT PAIVELIKE ISSUED FROM THE OFFICE OF JUNIOR TELECOM OFFICER, PAIVELIKE. EXT.P3 TRUE COPY OF THE MEMO NO. ST-301/TRG & APPT/TTA/IV/138 DATED 7.7.2003 ISSUED BY THE 2ND RESPONDENT. EXT.P4 TRUE COPY OF THE REPRESENTATION DATED ;15.9.2003 SUBMITTED BY PETITIONER TO THE 2ND RESPONDENT. EXT.P5 TRUE COPY OF THE REPLY DATED 8.1.2004 ISSUED FROM THE 2ND RESPONDENT'S OFFICE. EXT.P6 TRUE COPY OF THE REPRESENTATION DATED 29.7.2004 SUBMITTED BY TRADE UNION SECRETARY TO THE 3RD RESPONDENT. EXT.P7 TRUE COPY OF THE LETTER NO. AO(B) GNL./AC4/DATED 25.11.2004 ISSUED BY FIRST RESPONDENT TO THE PETITIONER. EXT.P8 TRUE COPY OF THE REPRESENTATION DATED 1.1.2005 SUBMITTED BY PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P9 TRUE COPY OF THE PAY FIXATION MEMO DATED 22.12.2004 ISSUED FROM THE OFFICE OF THE 2ND RESPSONDENT. RESPONDENTS 1 TO 4'S EXHIBITS: EXT.R1 TRUE COPY OF THE GOVT. OF INDIA MINISTRY OF COMMUNICATIONS, DOT, NEW DELHI DATED 2.9.99 EXT.R2 TRUE COPY OF THE SDE TELECOM (GROUP), PAIVALIKE LTD.NO. E-11/PVK/99- 2000/14 DATED 13.8.99 EXT.R3 TRUE COPY OF LT.NO.SAFF/1-134/VN DATED 11.1.99 OF ASST. DIRECTOR (STAFF), OFFICE OF CHIEF GENERAL MANAGER, TELECOM, KARNATAKA CIRCLE, BANGALORE. EXT.R4 TRUE COPY OF CORRIGENDUM ISSUED VIDE STAFF/1-134/VN/KW DATED 6.7.99 EXT.R5 TRUE COPY OF TELECOM DISTRICT MANAGER, MANDYA LETTER DATED 11.5.99 EXTR6 TRUE COPY OF RULE 38 OF P & T MANUAL, VOLUME IV EXT.R7 TRUE COPY OF SDE (GROUPS) NAGAMANGALA LETTER NO. E-2/SDE (OR)/99/2000/ NAGAMANGALA DATED 7.7.99 EXT.R8 TRUE COPY OF GENERAL MANAGER, TELECOM, KANNUR NO. ST-301/TRG- APPT/TTA/IV/138 DATED 7.7.2003 EXT.R9 TRUE COPY OF CHARGE REPORT OF THE PETITIONER DATED 9.12.2004 IN THE CADRE OF TTA WITH EFFECT FROM 2.12.2002 3 EXT.R10 TRUE COPY OF ACCOUNTS OFFICER BILLS, OFFICE OF THE GM TELECOM, KANNUR LETTER NO. AO(B)/GENL/AC4 DATED 25.11.2004 EXT.R11 TRUE COPY OF THE FINAL CALCULATION SHEET. EXT.R12 TRUE COPY OF THE LETTER OF THE THIRD RESPONDENT DATED 18.12.2003 SENT TO THE SECOND RESPONDENT. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- W.P.C. NO. 8678 OF 2005 -------------------------------------------- Dated this the 6th day of June, 2008 JUDGMENT Heard counsel for the petitioner and standing counsel for BSNL. Petitioner started his career as a line man in the postal department in Karnataka State. After getting promotion to Telecom Technical Assistant, petitioner took a transfer to the Kerala Circle at Kannur, where he joined on 9.7.1999. Petitioner was regularised in that post of Telecome Technical Assistant on 2.12.2002 vide Ext.P3. Even though petitioner filed a representation for promotion with an anterior date the same was not granted. However, there is no dispute that petitioner was continuing as Telecom Technical assistant on regular basis from 2.12.2002 to 8.12.2004 when the petitioner signed a joining report. BSNL has no case that petitioner has not served from 2.12.2002 to 8.12.2004 that is the date of signing of joining report. What is the significance of this joining report was not disclosed to this Court by BSNL. If petitioner was away from service, petitioner was not entitled to any salary in which case petitioner would not have been drawn 2 salary. Therefore there is no question of drawal of excess salary from 2.12.2002 to 8.12.2004. Since petitioner has worked as Telecom Technical Assistant on regular basis from 2.12.2002 to 8.12.2004, there is no justification to demand excess salary allegedly drawn by the petitioner. W.P. is therefore allowed quashing the impugned demand to the extent the same relates to the period from 2.12.2002 to 8.12.2004. However, if petitioner has drawn any salary before 2.12.2002 in the higher cadre before his promotion, the excess amount can be recovered from the petitioner's salary. (C.N. RAMACHANDRAN NAIR) Judge kk 3