Central Administrative Tribunal - ErnakulamA.K. Ammini vs Union Of India on 7 August, 2009CENTRAL ADMINISTRATIVE TRIBUNAL
				ERNAKULAM BENCH

			TRANSFER APPLICATION NO. 13 OF 2008 

			Friday, this the 7th day of August, 2009 

CORAM:

HON'BLE DR. K B S RAJAN, JUDICIAL MEMBER 
HON'BLE MR. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER 

A.K. Ammini,
W/o. P.V. Velayudhan,
Sr. T.O.A. (G) (Retired),
Office of the General Manager Telecom,
Kottayam, Residing at Valiyaparambil,
Maloossery P.O., Kottayam : 41			 ... Applicant.

(By Advocate Mr. Shafik M.A.) 

	v e r s u s 

1. 	Union of India, Represented by 
	Secretary to the Govt. of India, 
	Department of Telecommunications, 
	Ministry of Communications, New Delhi. 

2. 	The Chief General Manager Telecom, 
	Kerala Circle, Trivandrum. 

3. 	The General Manager Telecom, 
	BSNL, Kottayam. 

4. 	R. Sathimani Amma, 
	Sr. TOA (G), 
	Office of the General Manager Telecom, 
	BSNL, Kottayam. 				... Respondents. 

(By Advocate Mr. S.K. Balachandran) 

The Transfer Application having been heard on 16.07.09, this Tribunal 
on 7.8.09 delivered the following :

		O R D E RHON'BLE DR. K B S RAJAN, JUDICIAL MEMBER

	The applicant retired from service of the Bharat Sanchar Nigam 
Limited (BSNL for short) on 31st October 2002. She had joined the 
services as clerk vide DPT TV No. Rectt/telecommn/64 dated 06th May, 
1964. She reported for training as clerk on 24-07-1964 and successfully 
completed the training on 30th September 1964 and appointed as 
temporary clerk, D.E.T. (O) SKM in the pay scale of Rs 110  240 vide 
DET -E.54/32 dated 25-09-1964 w.e.f. 01-10-1964. She was declared 
successful in the confirmation examination held on 14-11-1965, vide PMG 
TV Spl. Circular No. 16 of 18-02-1966 and confirmed as Time Scale Clerk 
w.e.f. 01-03-1967 vide PMG TV No. STE/6/5 dated 25-08-1967 (Q 
582/42).2.	 Promoted as Section Supervisor in the seniority quota of 1981 in the 
scale of pay of Rs 425-15-560-EB-20-640 and assumed charge on 
23/11/1981. Consequent on promotion as Section Supervisor pay is initially 
fixed at Rs 458 (408 + PP Rs 50 w.e.f. 23-11-1981 under FR 22(a). His pay 
will be refixed under FR 22-C w.e.f. 01-10-1982 the date of next 
increment on the basis of option exercised vide DET KTM Memo No. 
Q/582/36 dated 18-05-82.3.         In pursuance of the orders contained in Directorate letter 
No. 274/87-EB-II dated 16-10-1990, the official placed in the higher grade
on completion of 26 years of service in TOA cadre in the scale of pay of 
Rs1600  50  2300-EB-60-2660 w.e.f. 30-11-1990 under Biennial Cadre 
Review Scheme vide TOM KTM No. ES-191/58 dated 4-2-1991 and pay 
fixed at Rs 1700 on 30-11-1990.4. 	Respondent No. 4, R. Sathimani Amma is an approved candidate of 
1964 for appointment as clerk vide DPT TV No. Rectt/ telecommunication/ 
64 dated 6-5-1964 (E 54/1). She reported for training as clerk DST(O) 
KTM w.e.f. 2-9-1964 F.N. As per DET TVM E/54/16 dated 26-08-1964. 
On successful completion of training, she is appointed to the cadre of 
Temporary T.S. Clerk on a pay of Rs 110/-in the scale of Rs 110-240 
w.e.f. 9-11-1964 as per DE KM E 54/41 of 7-11-1964. She was declared 
successful in the confirmation examination held on 14-11-1965, vide PMG 
TV Spl Circular No. 16 of 18th February 1966 and confirmed as T/S clerk 
w.e.f. 01-03-1967 vide DET KM Memo No. E 187/114 dated 8-8-1967. 
(Q 618/13) .5. 	As per GMT TV Memo No. S9/42-118/82 dated 26-03-1987, the 
official is deemed to have been promoted to LSG against the 1/3rd merit 
quota vacancies of 1979-80 we.f. 23-11-1981, instead of against 2/3rd 
seniority cum fitness quota vacancies of 1981 ordered vide GMT TV No. 
ST/6-2/SS/IV dated 24-01-1983.6.	 In pursuance of the orders contained in Directorate letter No. 
27-4/87-EB-II dated 16-10-1990, the official placed in the next higher grade 
on completion of 26 years of service in TOA cadre in the scale of pay of 
Rs1600  50  2300-EB-60-2660 w.e.f. 30-11-1990 under Biennial Cadre 
Review Scheme vide TOM KTM No. ES-191/58 dated 4-2-1991 and pay 
fixed at Rs 1700 on 30-11-1990.7. 	In pursuance of DOTND No. 27-4 TE 11(I) dt 16-10-90 and No. 
27-4/87-TE II(Pt) dt 16/6/97 & 10/11/97, Smt. R. Sathimaniamma Sr. TOA 
(G) Grade III is hereby promoted to Sr. TOA(G) Grade IV in the scale of 
6500  200-10500 vide E I/336/Cell III/38 dated 6/6/02 of AGM(Adm) O/o. 
GMT -KTM (Date of promotion 1-1-02).8. 	The above are the details culled out from the Service Books of the 
applicant and the fourth respondent.9. 	The claim of the applicant is that under the Biennial Cadre Review 
Scheme, while after 26 years of service in the basic cadre promotion to 
Grade III is given, which, in fact, both the applicant as well as the fourth 
respondent were afforded, grant of Grade IV to the extent of 10% of Grade 
III should be granted on the basis of seniority in basic grade and since the 
applicant had joined the services earlier than respondent No. 4, it was the 
applicant and not the private respondent who was to have been afforded 
the grade IV pay scale of Rs 6,500-10,500, whereas wrongly, ignoring the 
seniority of the applicant, the respondents have granted the said higher 
scale to Respondent No. 4.10. 	Initially, the case was filed in this Tribunal, but since the applicant 
was permanently absorbed in BSNL and at the material point of time, 
BSNL was not notified to be covered under the jurisdiction of this Tribunal, 
the Tribunal had dismissed the OA on the ground of lack of jurisdiction. 
Order dated 21st May 2003 in OA No. 150/2003 refers. Thus, Writ petition 
30739/03 was filed by the applicant before the High Court. In their counter, 
respondents have contended that the applicant has approached the Court 
at a very belated stage; that it was not correct to aver that the applicant 
was not aware of the seniority position between her and the fourth 
respondent, as the gradation list was published a number of times and in 
the entire list published since 1969, the applicant figured junior to the 4th 
Respondent. Gradation list was also circulated among the staff.11. 	The applicant filed her reply to the counter affidavit wherein she had 
reiterated her contention that gradation list was not circulated and further 
on merit her contention is that the applicant having been appointed first, 
she ought to have been shown as senior.12. 	In additional counter, the respondents have annexed a copy of the 
Memo dated 23-12-1986 wherein the position of the applicant and the 
fourth respondent in the Gradation List (GL) has been reflected. Again, it 
has been stated that as per order dated 3rd July 1986 of the DOPT, 
seniority is based on merit and the applicant was sent for training and 
appointment earlier than the fourth respondent only for the reason that she 
belonged to SC Community and the vacancy was at 40th point. In all the 
gradation list the fourth respondent had been shown senior.13.	 Counsel for the applicant submitted that the seniority list was never 
circulated. Further he had stated that the general rule is that seniority shall 
commensurate with the date of appointment and from that point of view the 
applicant should have been senior to the fourth respondent. In case, any 
other reasonable method such as merit etc., had been adopted, the 
respondents should be directed to prove the same, in which event, the 
applicant may have no case.14.	 Counsel for the respondent maintained that gradation lists used to 
be prepared periodically and made available to all concerned. In this case 
the applicant cannot claim seniority over fourth respondent on the sole 
ground that it was the applicant who joined the department first for, 
seniority is not based on the date of joining. The applicant was to be issued 
with the appointment order since she was accommodated against the 
roster point. Otherwise, the applicant's merit position is lower than the 
respondent No. 4.15.	Arguments were heard and the official records perused. It is seen 
that the letter of confirmation of the fourth respondent w.e.f. 01-03-1967 
was issued first and it was later that the confirmation letter of the applicant 
was issued. If merit in the examination conducted by the department is one 
aspect, from another angle, if it is seen, since the applicant and the 
respondent No. 4 had been appointed at a time when the seniority was 
based on confirmation.Instructions contained in Annexure to the Ministry 
of Home Affairs letter dated 22-12-1959 held the field and as per the 
decision of the Apex Court inAmrit Lal Berry v. CCE, (1975) 4 SCC 714, 
"Amongst those confirmed after 22.12.1959, the relative seniority will 
be according to the order of confirmation." (The Home Ministry's 
instructions are applicable to the respondents' organizations as well) And 
since the order of confirmation in the case of the fourth respondent was 
issued vide order dated 08-08-1967, while that of the applicant it was 
25-08-1967, the respondent No. 4 is senior to the applicant. It is so 
declared.16.	 In view of the above, the applicant has no merit in her case. Hence 
the TA is rejected.17. 	In view of rejection of the Transferred Application, on merit, the 
question of limitation has not been considered.18. 	No costs.(Dated, the 7th August, 2009) 

(K. GEORGE JOSEPH) 					(Dr. K B S RAJAN) 
ADMINISTRATIVE MEMBER 				JUDICIAL MEMBER 

cvr.