07-06-2010
Regarding 2nd PRC pay scale for officiating JTOs, the CGM decided to refer the case to Corporate Office for instructions despite clear directions of Hon. CAT, Ernakulam. Circle Secretary spoke to CGMT and reminded him of the present situation with regard to the prevailing court orders. But he sticks on the decision to seek clarification from C.O .
A clarificatory letter has been issued by C.S in this regad to CGMT/ GM(Finance) with copy to GS(AIBSNLEA) as given below.
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ALL INDIA BSNL EXECUTIVES’ ASSOCIATION
(A.I.B.S.N.L.E.A)
KERALA CIRCLE, THIRUVANANTHAPURAM
President Secretary Finance Secretary
K.F.Antony, T.K.Mangalanandan V.Sunil Kumar
C.A.O, PGMT(o) S.D.E (RMC) Project Vijay J.T.OTrichur PGMT(o)Ernakulam
Mobile-9446444166 Mobile- 9446574151 Mobile-9446556263
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No.AIBSNLEA/KER/GEN/2010-11 Dt.05-06-2010.
To
Shri.K.S.Srinivasan,
Chief General Manager, Telecom,
BSNL, Kerala Circle, Trivandrum-33.
Sir,
Sub:- Drawing pay in revised IDA pay scale of 2nd PRC in the case of Officiating JTOs in Kerala Circle.
Your kind attention is invited to this Association letter of even number dated 20-05-2010 on the above matter and discussions we had in the meeting held on 22-05-2010.
After detailed discussion in the presence of the GM(F) and GM(Admn) considering all the pros and cones of the issue and fully convinced of the genuineness of the case, you have agreed to issue orders to all concerned in the circle to draw the pay in the 2nd PRC pay-scale of JTOs for all officiating JTOs who are now getting only the 1st PRC pay-scale of JTOs . It was also decided that a guideline will be issued from your office to all SSAs / attached offices, to implement the 2nd PRC fixation in a uniform manner immediately. But to our great dismay it is now learnt that you have backed out from the decision and decided to refer the case to corporate office for clarification.
In this context we would like to bring the following points for your information :-(1) A considerably good number of JTO posts in this Circle, especially in hard remote stations and high range areas, are functioning on local officiating arrangement. All such officiating JTOs have successfully completed the initial training required for regular posting in JTO cadre and are continuously officiating for the past 5 years. From the inception of the promotion of them as JTOs they have been paid pay and allowances applicable to the post of JTO in accordance with the rules and practice in vogue. The pay had been fixed in the scale of pay of JTO as per F.R.17 and F.R.22(1)( a )(1) of the Fundamental Rules. In spite of the clear legal position, the CGMT, Kerala has issued a letter No. EST-III/2-5/Offg/2005 dated Trivandrum the 6th September, 2005, to the General Managers (Telecom) stating that pay fixation of the officiating JTOs may be restricted under FR 35.
(2) Several writ petitions were filed by groups of affected officials before the Hon’ble High Court of Kerala challenging the above said letter of CGMT. The Hon’ble Court admitted those writ petitions and stayed the operation of the said letter dt.6th Sept.2005. These writ petitions were finally disposed by the High Court, quashing the impugned letter, vide a common judgment dated 24-3-2006 in WP© No. 35938 of 2005 along with all connected cases .
(3) BSNL, Kerala, then filed appeal before Division Bench through W.A.No. 1735/06 and connected writ appeals. Division Bench of the High Court of Kerala, as per judgment dated 1.6.2007, without entering into the merits of the cases, directed the CMD, BSNL(1st Respondent) to give an opportunity of hearing to the affected parties. The Division Bench directed the Writ Petitioners in the aforesaid cases to file objection against the impugned letter and consequential memos issued to them for re-fixation of the pay within three weeks from the date of the judgment and directed the 1st Respondent (CMD) to consider the objections after giving an opportunity of being heard to the representatives nominated by the officers and pass appropriate orders in accordance with law within three months from the date of receipt of the objections.
(4) Pursuant to this judgment, the aggrieved parties therein filed their objections. Their representatives were heard by the 1st Respondent as directed by the Division Bench. Thereafter, the CMD,BSNL,(1st Respondent) issued a letter No. 3-Genl/21/2006-Pers-IV dated 20.11.2007, upholding the decision of invoking FR-35 instead of FR 22(1)(A)(1). The reasons mentioned therein were not relevant in as much as the fixation of pay of officiating JTOs. The Department has taken into account irrelevant consideration and ignored relevant consideration while taking a decision as to whether the order to implement FR 35 is legally sustainable. The only consideration for application of FR 22 of Fundamental Rules is as to whether the appointment of TTAs as JTOs on officiating capacity is subject to the eligibility conditions in the relevant recruitment rules and as to whether the post of JTO is a higher post carrying greater duties and responsibilities. Since all these conditions are satisfied in the case of temporary officiating promotion of TTAs to JTOs, FR 22(I)(a)(1) is squarely applicable and the pay has to be fixed in the scale of JTO as per the FR 22(I)(a)(1). Pursuant to the Corporate Office letter dated 20-11-2007, the finance wing started sending letters to all officiating JTOs stating that the pay during their officiating period will be regularized by restricting the pay under FR 35.
(5) The officiating JTOs affected by the order dated 20-11-2007 of CMD BSNL, filed writ petitions in several batches (WPC 564/2008 and 13 similar others) before the Hon. High Court of Kerala, praying (1) for quashing the impugned order and subsequent directions issued thereon. (2) for directing not to recover the pay and allowances paid to them in the scale of pay of JTO and(3) for further directing the respondents to continue to pay their pay and allowances due to them in the scale of pay of JTO as per Rule 22(I)(a)(1) of Fundamental Rules. The Hon. High Court heard the petitions initially and further transferred them to the C.A.T Ernakulam when the original jurisdiction of the parties in the service matter has been subsequently conferred up on the CAT and re-numbered the WPCs as TA s.( TA s 84 to 97 of 2008).
(6) All these petitions were finally heard together on 30-4-2009 and the CAT delivered its order on 15-7-2009. The C.A.T Ernakulam allowed the petitions (TA 84 to 97/2008) filed by the officiating JTOs and set aside the impugned order dated 20-11-2007 of CMD and subsequent order dated 4-12-2007 issued locally. The CAT further ordered as follows:-
“ Respondents are directed not to recover the pay and allowances already paid to the applicants in the scale of pay of JTO. They are further directed to continue to pay to the applicants pay and allowances due to them in the scale of pay of JTO as per Rule 22 (1)(a)(1) of Fundamental Rules.”
(7) Even before the issue of this final order by the CAT, this association had taken up the matter based on the interim order issued by the Hon. High Court, and Pay and allowances fixed as per FR 22(1)(a)(1) in the first PRC JTO scale is being drawn for officiating JTOs through out Kerala Circle on furnishing an undertaking by the officials. With the final order of the CAT cited above, this became obligatory on the part of the employer to continue the same even without insisting on any undertaking regarding refund.
(8) When the new pay scales as per 2nd PRC for executives became operational with effect from 1-1-2007 the scale of pay of JTO cadre was also revised. But this revised scale has not yet been allowed to the officiating JTO s for which no valid reasons exist. The final order of the CAT cited above clearly states that pay and allowance in the scale of pay of JTO fixed as per FR 22(1)(a)(1) should be continued. It is to be noted that this order of the CAT has not so far been stayed by any higher judicial body. Not drawing salary in the revised (2nd PRC) pay scale of JTO to officiating JTOs for a very long period of more than a year, is a clear case of violation of court order amounting to contempt of court as well as denial of justice. Moreover it is most illogical to continue to draw pay and allowances in an old scale of pay which was already replaced by another scale and hence became non-operative in the case of JTOs . We do not know how a non-existing pay scale is operated for a certain group of officers for years together.
In view of the facts narrated and the final order of CAT, Ernakulam on TA 84 to 97 / 2008 delivered on 15-7-2009, which is crystal clear and still in force, we request you to issue immediate orders to all concerned to draw pay and allowance of officiating JTOs in the corresponding 2nd PRC scale of pay of JTO, by allowing eligible fixation as ordered by the court of law.
It appears that the corporate office had not been appraised of the true different Kerala situation as detailed above. Had it been done properly in the right time, such an unpleasant situation would not have been arisen. We also request you to order for an inquiry by a competent authority, into the circumstances led to such an undesired condition, constantly denying natural justice to a group of officials who are striving hard for the progress of the company. We cannot appreciate the tendency on the part of the administration to drag every body to the court of law even for settling their simple fundamental service matters for which clear-cut guidelines and precedence exist.
Anticipating a very early settlement of the issue and assuring of our best co-operation always,
Yours Sincerely,
sd/-
(T.K.Mangalanandan)
Circle Secretary.
Copy:-1)GM (Finance)o/o CGMT, Kerala.
2)Com.Prahlad Rai,
General Secretary, AIBSNLEA. CHQ, New-Delhi.
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