IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 WP(C).No. 30582 of 2005(N) --------------------------------------- PETITIONERS: -------------------- 1. GEORGE.M.J,S/O.VARGHESE,42 YEARS, TELECOM MECHANIC,O/O.SUB DIVISIONAL ENGINEER (PHONES),TELEPHONE EXCHANGE,SOUTH CHITTOOR, RESIDING AT MOONAJILIKAL HOUSE,POTTAKUZHI CROSS ROAD,PACHALAM,KOCHI-12. 2. SUNIL.K.N,S/O.NARAYANAN,39 YEARS, TELECOM MECHANIC,O/O.SUB DIVISIONAL ENGINEER (PHONES),CSR EXCHANGE,KOCHI-16, RESIDING AT KAVALAMPILLY PADAM HOUSE,VYTTILA.P.O, KOCHI-19. 3. T.C.SUBRAMANIAN,S/O.CHATHAN,45 YEARS, TELECOM MECHANIC,O/O.SUB DIVISIONAL ENGINEER (PHONES),TELEPHONE EXCHANGE,TRIKKAKARA, RESIDING AT THALIPARAMBIL HOUSE, VENNALA.P.O, KOCHI-28. 4. I.P.GEORGE,S/O.PAILY, AGED 48 YEARS, TELECOM MECHANIC,O/O.SUB DIVISIONAL ENGINEER (PHONES),CABLE SOUTH,ERNAKULAM,KOCHI-11, RESIDING AT ITTIPATTA HOUSE,SOUTH CHITTOOR, KOCHI-27. 5. K.M.MANI,S/O.NARAYANAN, AGED 44 YEARS, TELECOM MECHANIC,O/O.SUB DIVISIONAL ENGINEER, OFS MAINTENANCE,PANAMPILLY NAGAR,KOCHI, RESIDING AT KAYAPPILLY HOUSE, ELEMAKKARA.P.O, KOCHI-26. 6. V.L.SAJEEVAN,S/O.LEELAN,43 YEARS, TELECOM MECHANIC, O/O.SUB DIVISIONAL ENGINEER, CABLE SOUTH,PKV BUILDING,KOCHI-11, RESIDING AT KARUVELIPARAMBIL HOUSE,SATRI ROAD, VADUTHALA,KOCHI-23. 7. L.NANDAKUMAR,S/O.LAKSHMANAN, AGED 40 YEARS, TELECOM MECHANIC,O/O. SUB DIVISIONAL ENGINEER (LD) TELEPHONE EXCHANGE,ERNAKULAM, RESIDING AT H.COLONY,PLOT NO.26,ELAMKULAM, KOCHI-20. WP(C).No. 30582 of 2005(N) 8. C.B.JAYARAJAN,S/O.C.K.BAHULEYAN, 42 YEARS,TELECOM MECHANIC,O/O.SUB DIVISIONAL ENGINEER,OFS INSTALLATION,AYYAPPANKAVU EXCHANGE BUILDING,KOCHI-18, RESIDING AT THRIEPARAMBIL HOUSE,PONNOTH ROAD, KALOOR,KOCHI-17. 9. ABDUL SALAM.P.M,S/O.MOHAMMED.P.M, AGED 42 YEARS,TELECOM MECHANIC,O/O.SUB DIVISIONAL ENGINEER (A/C & POWER), TELEPHONE EXCHANGE, PALARIVATTOM, RESIDING AT THAYYATHU PARAMBIL,VENNALA.P.O, KOCHI-28. BY ADV. SRI.M.R.HARIRAJ SMT.REKHA VASUDEVAN SRI.SURAJ.S SRI.P.A.KUMARAN SMT.VINEETHA B. SRI.JAMES ABRAHAM (VILAYAKATTU) SRI.P.ABANI RESPONDENTS: ----------------------- 1. BHARAT SANCHAR NIGAM LIMITED, REPRESENTED BY THE CHAIRMAN AND MANAGING DIRECTOR, CORPORATE OFFICE, STATESMAN HOUSE, BARAKHAMBA ROAD, NEW DELHI-1. 2. THE PRINCIPAL GENERAL MANAGER, BSNL BHAVAN, ERNAKULAM SSA, ERNAKULAM, KOCHI-682 016. 3. THE ACCOUNTS OFFICER, ESTT, O/O.PGMT, BSNL BHAVAN, ERNAKULAM SSA, ERNAKULAM, KOCHI-682016. BY ADV. SRI.MATHEWS K.PHILIP,SC, BSNL FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).30582/2005-N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF OFFICE ORDER NO.BSNL/26/SR/2002 DATED 07/08/2002, ISSUED FOR THE 1ST RESPONDENT. EXT.P2: COPY OF RELEVANT PORTION OF NO.E/241/PAY FIX/TM/CORRS/2002/03/26 DATED 27/07/2004. EXT.P3: COPY OF ORDER OF RELEVANT PORTION OF NO.REFE-241/PAY FIX/TM/CORRS/2002-03/27 DATED 07/08/2004. EXT.P4: COPY OF PAY SLIPS FOR THE MONTH OF DECEMBER 2004 OF THE 1ST PETITIONER. EXT.P5: COPY OF PAY SLIPS FOR THE MONTH OF JANUARY 2005 OF THE 1ST PETITIONER. EXT.P6: COPY OF PAY SLIPS OF AUGUST 2005 OF THE 1ST PETITIONER. EXT.P7: COPY OF PAY SLIP OF SPETEMBER, 2005 OF THE 1ST PETITIONER. EXT.P8: COPY OF O.M.NO.F.2(78)-EIII(A)/66 DATED 04/02/1966 AS PUBLISHED IN THE SWAMY'S COMPILATION OF FR & SR PART I, GENERAL RULES. EXT.P9: COPY OF DEPARTMENT PERSONNEL AND TRAINING O.M.NO.4/7/92/ESTT.(PAY- 1)DATED 04/11/1993 AS PUBLISHED IN THE SWAMY'S COMPILATION OF FR & SR PART GENERAL RULES 16TH EDITION. EXT.P10: COPY OF NOTE 9 OF RULE 7 OF THE CCS (RP)RULES, 1997, AS PUBLISHED IN SWAMY'S COMPILATION OF CCS(RP)RULES, 1997, 3RD EDITION. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE ORDER OF INTRODUCTION OF IDA PAY SCALES FOR NON EXECUTIVE STAFF. EXT.R1(b): COPY OF THE REPRESENTATION DATED 26/03/03 ISSUED BY BSNL EMPLOYEES UNION TO THE PGM BSNL ERNAKULAM. EXT.R1(c): COPY OF THE ORDER DATED 27/07/04 ISSUED BY THE ACCOUNTS OFFICER ESTABLIHSMENT BSNL. EXT.R1(d): COPY OF THE ORDER DATED 07/08/04 ISSUED BY THE ACCOUNTS OFFICER ESTABLISHMENT BSNL. WP(C).No. 30582 of 2005(N) EXT.R1(e): COPY OF THE ORDER DATED 23/08/04 ISSUED BY THE ACCOUNTS OFFICER ESTABLISHMENT BSNL. EXT.R1(f): COPY OF THE ORDER DATED 18/09/04 ISSUED BY THE ACCOUNTS OFFICER ESTABLISHMENT BSNL. EXT.R1(g): COPY OF THE ORDER DATED 27/08/04 ISSUED BY THE DGM (FINANCE)BSNL, TRIVANDRUM. EXT.R1(h): COPY OF THE ORDER DATED 10/11/04 ISSUED BY THE ACCOUNTS OFFICER ESTABLISHMENT BSNL, ERNAKULAM. EXT.R1(i): COPY OF THE ORDER OF INTRODUCTION OF IDA PAY SCALES. EXT.R1(j): COPY OF THE ORDER DATED 22/12/2004 ISSUED BY THE ASSISTANT DIRECTOR GENERAL, NEW DELHI. // TRUE COPY // Rs/ P.N.Ravindran, J. ===================== W.P(C).No.30582 of 2005 ===================== Dated this the 24th day of July, 2008. JUDGMENT The petitioners are working as Telecom Mechanic in the Bharat Sanchar Nigam Limited. They were formerly Group D employees in the Department of Telecommunications of the Government of India. When the Bharat Sanchar Nigam Limited, hereinafter referred to as the "BSNL" for short, was incorporated on 1.10.2000, the services of the personnel in the Department of Telecommunications were made over to the said establishment and the BSNL was functioning with the employees borrowed from the Department of Telecommunications. Later, options were called for from those employees and based on the options exercised by them, they were absorbed in the BSNL. The petitioners were thus absorbed in the service of the BSNL. Before the incorporation of the BSNL, the petitioners had been promoted as Telecom Mechanic in the Department of Telecommunication. After the BSNL was formed, Group D employees who were juniors to the petitioners were promoted as Telecom Mechanic. Pursuant to the discussions held between the Board of Directors of the BSNL and the Unions representing the employees of BSNL, an agreement was entered into on 26.4.2002 which inter alia governs the scales of pay payable to Group C and Group D posts. It is WP(C) 30582/05 -: 2 :- not in dispute that the post of Telecom Mechanic is a Group C post. Pursuant to the agreement entered into on 26.4.2002, Ext.P1 office order dated 7.8.2002 was issued from the Corporate Office of the BSNL at New Delhi. Ext.P1 discloses that as against the existing scale of pay of Rs.2550-55-2660-60-3200 applicable to Group D employees in the Department of Telecommunications, Group D employees in the BSNL were placed in the scale of pay Rs.4000-120-5800 with effect from 1.10.2000. While in the Central Civil Services payment of salary is based on the Central Dearness Allowance, in the BSNL, salary payable is computed with reference to the Industrial Dearness Allowance. Ext.P1 also shows that the scale of pay of Telecom Mechanic (NE6) is Rs.4720- 150-6970. The petitioners were working as Telecom Mechanic even prior to the issue of Ext.P1. After Ext.P1 was issued, their juniors were promoted as Telecom Mechanic and BSNL was paying them higher pay in the scale of pay of Rs.4720-150-6970. Therefore, the pay of the petitioners was also stepped up and equated with the pay which their juniors who were promoted as Telecom Mechanic after the formation of the BSNL, were drawing. Ext.P1 discloses that fixation of pay has to be made applying the provisions of the Fundamental Rules which govern Central Civil Services. Exts.P2 and P3 show that the pay of the petitioners was stepped up and equated with the pay of their juniors applying the relevant provisions of the Fundamental Rules. 2. While matters stood thus, with effect from September, 2005, WP(C) 30582/05 -: 3 :- recovery was effected from the salary paid to the petitioners on the ground that they are not entitled to stepping up of their pay to a stage equivalent to that which their juniors were drawing. This was done according to the petitioners, on the erroneous assumption that the Fundamental Rules and the orders issued thereunder do not govern the field. The petitioners thereupon filed this Writ Petition seeking the following reliefs: "i. Call for the records leading to the reduction in pay and recovery from pay of the petitioners and quash the same by the issuance of a writ of certiorari or other appropriate writ, order or direction. ii. To issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents not to recover any amount from the pay of the petitioners on the ground of over payment pursuant to stepping up and to refund any amount so recovered from the petitioners with interest @ 18% per annum from the date of recovery till date of refund." When the Writ Petition was admitted, an interim order was passed to the effect that recovery of the stepped up pay shall not be made. 3. The respondents resist the Writ Petition contending inter alia that on further scrutiny it was noticed that the provisions of the Fundamental Rules do not govern the field and therefore Ext.R1(i) clarification was issued to the effect that seniors getting lesser pay than their juniors is not an anomalous situation. The respondents further contend that the issue regarding the applicability of the Fundamental WP(C) 30582/05 -: 4 :- Rules and the anomaly in the fixation of pay have been referred to Anomaly Committee constituted by the BSNL. Reliance is placed on Ext.R1(g) letter dated 27.8.2004 to contend for the position that the issue regarding the stepping up of the pay of the seniors in the category of Telecom Mechanic has been referred to the BSNL Headquarters by the authority at Thiruvananthapuram for a decision by the Anomaly Committee. 4. I have heard Sri.M.R.Hariraj, the learned counsel appearing for the petitioners and Sri.Mathews K.Philip, the learned Standing Counsel appearing for the respondents. The learned counsel for the petitioners contended that in the light of the agreement dated 26.4.2002 which led to the issue of Ext.P1 order dated 7.8.2002 and the stipulations therein, they are entitled to have their pay stepped up and equated with the pay of their juniors who were later promoted as Telecom Mechanic. The learned counsel further contended that as Ext.P1 order was issued pursuance to an agreement, the respondents cannot unilaterally resile from the terms and conditions of the settlement and refuse to pay to the petitioners, pay equal to the pay which their admitted juniors in service are drawing. It was further contended that on the terms of Ext.P1, the respondents cannot contend that the service conditions are not governed by the provisions of the Fundamental Rules or the orders issued by the Government of India thereunder. Per contra, the learned Standing Counsel appearing for the respondents contended relying on Ext.R1(i) WP(C) 30582/05 -: 5 :- and Ext.R1(j) that the Fundamental Rules do not apply. 5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I find force in the contention raised by the learned counsel for the petitioner that in the absence of another agreement or an award by the Industrial Tribunal, the parties cannot depart from or ignore Ext.P1. Ext.P1 contemplates fixation of pay applying the provisions of the Fundamental Rules. It is settled law that the agreement between the union representing the employees and the employer can be altered only by another settlement or by an award of the Industrial Tribunal. No agreement other than the agreement referred to in Ext.P2 has been brought to my notice. The service conditions stipulated in Ext.P1 even now hold the field. Even in Ext.R1(g), the respondents rely on Rule 22 of the Fundamental Rules. The stand taken by the respondents in Ext.R1(i) and Ext.R1(j) is that seniors drawing lesser pay than the juniors, though the juniors were promoted later to the same post is not an anomaly at all. In my opinion, there is no merit in the said contention. When Ext.P1 stipulates that the pay will be fixed applying the provisions of the Fundamental Rules, the respondents are not entitled to depart from Ext.P1 and to fix the pay ignoring the provisions therein. By Exts.P2 and P3 the pay of the petitioners was stepped up and equated with the pay of the juniors who were promoted after 1.10.2000. No objection was raised from any quarter regarding the fixation of pay in Exts.P2 and P3. As a matter of fact, the petitioners WP(C) 30582/05 -: 6 :- were being paid salary equivalent to the pay their juniors were drawing. This state of affairs continued till January, 2005 when the stepped up pay was withdrawn. From September, 2005 on wards the excess amount drawn by the petitioners was also sought to be recovered in monthly instalments. 6. In my considered opinion, in the light of Ext.P1, the stand taken by the respondents cannot be countenanced. I therefore declare that the petitioners are entitled to have their pay stepped up and equated with the pay of their juniors, who were promoted as Telecom Mechanic after 1.10.2000 in the manner done in Exts.P2 and P3. The arrears of emoluments payable to the petitioners from January, 2005 onwards shall be paid on the basis of the fixation in Exts. P2 and P3. They would also be entitled to periodical increments with effect from the date on which increments were granted to their juniors in service. The amount recovered shall also be reimbursed to them. I make it clear that this judgment will not stand in the way of the Anomaly Committee from considering the matter or the respondents from entering into another settlement with the employees' unions. The Writ Petition is allowed as above. No costs. P.N.Ravindran, Judge. ess 26/7