WA/1959/2005 of The General Manager, Vs M.N. Raja Kumar, on 26 December 2002

AND

THE HON’BLE DR. JUSTICE G.YETHIRAJULU

WRIT APPEAL Nos.1959, 1983, 1840,1994, 2003, 2004, 2015, 2019, 2020, 2021,2024, 2025, 2030,2032, 2037, 2044, 2047, 2066, 2071, 2077, 2109, 2112, 2184,2216, 2268, 2276, 2281, 2282, 2291, 2310, 2311, 2338, 2339, 2341, 2372, 2373,2374, 2378, 2390, 2391, 2392, 2393, 2403, 2411, 2413, 2422, 2423, 2489,2491,2492, 2493, 2494 of 2005

AND

W.A. Nos.2600, 2601, 2602, 2603,2604, 2605, 2606 and 2607 of 2005

DATED: 26.12.2005

WRIT APPEAL No.1959 of 2005

Between:

The General Manager, Telecom District, B.S.N.L,. Anantapur and others

….Appellants

A n d

M.N.Raja Kumar S/o M.Narasappa and others

AND

THE HON’BLE DR. JUSTICE G.YETHIRAJULU

WRIT APPEAL Nos.1959, 1983, 1840,1994, 2003, 2004, 2015, 2019, 2020, 2021,2024, 2025, 2030,2032, 2037, 2044, 2047, 2066, 2071, 2077, 2109, 2112, 2184,2216, 2268, 2276, 2281, 2282, 2291, 2310, 2311, 2338, 2339, 2341, 2372, 2373,2374, 2378, 2390, 2391, 2392, 2393, 2403, 2411, 2413, 2422, 2423, 2489,2491,2492, 2493, 2494 of 2005

AND

W.A. Nos.2600, 2601, 2602, 2603,2604, 2605, 2606 and 2607 of 2005

COMMON JUDGMENT:(Per Hon’ble Sri Justice B.Prakash Rao)

Heard the learned Advocate General, Ms. P.Sarada, Sri RavindraYanamandra, Sri B.Devanand, Sri Kanthi Narahari and Sri C.Yadagiri, learnedcounsel appearing on behalf of the appellants (BSNL) and Sri K.Venkateswara Raoand Sri Vemuri Venkateswara Rao, learned counsel appearing on behalf of therespondents/employees. These appeals are filed by both the BSNL as well as itsemployees, as against partially allowing of the writ petitions filed by the employees.

Since all these appeals involve common question, they are being taken uptogether for disposal.

The appellants are the different wings of the BSNL, who seek to assail theorders of the learned single Judge allowing the writ petitions filed by their ownemployees, seeking for a Mandamus declaring that they are entitled for placement inthe scale of Rs.4000-100-6000 in the cadre of Telecom Mechanics on completion of16 years of service from the date of their appointment as Regular Mazdoors/Group-Din terms of the Judgment of a Division Bench of this Court in W.P.No.14744 of 2001dated 16.10.2003 with all consequential benefits including the benefit of I.D.A scaleswith effect from 01.01.2005 whereas the employees also filed appeals challengingthe orders granting the benefit effect from 1.1.2005 only, but claiming the benefit fromthe date of their entitlement.

The facts of the case in brief, which are necessary for disposal of thesematters, are that the respondents are working as Regular Mazdoors/Group-Demployees with the appellant herein and subsequently, they have been promoted atvarious points of time as Telecom Mechanics. The Department of Telecom issuedletter dated 20.4.1999 extending the higher pay scales in the cadre of PhoneMechanics/Telecom Mechanics to those Group `C’ officials, who enter the restructured cadre of Phone Mechanics. However, some of the affected persons,who were similarly placed and working as Mazdoors and who have been deniedsuch benefit of higher pay scale of Rs.4000-100-6000, filed a case before theCentral Administrative Tribunal in O.A.No.1966 of 1999 challenging the said letterimposing certain restrictions in regard to their entitlement. After contest, the saidcase was allowed by the Tribunal on 9.8.2000 holding that there is a discriminationamong two categories of Phone Mechanics and set aside the impugned letter dated20.4.1999. Further, it was directed that the applicants should be placed in the scaleof pay of Rs.4000-100-6000.

Challenging the same, the appellants herein filed a writ petition inW.P.No.14744 of 2001 and ultimately the said writ petition after contest wasdismissed as per orders dated 16.10.2003 upholding the orders of the Tribunal.Even, the S.L.P filed by the appellants herein in the Supreme Court was dismissedon 23.07.2004. Having regard to the same, the respondents herein, who are alsoworking in the same post, filed writ petitions claiming the self same relief.

A learned single Judge of this Court after hearing both sides and after takingin to consideration various aspects raised, allowed the writ petitions having regard tothe similarity for entitlement and directed that the respondents/petitioners shall beextended the notional benefit of the pay scale of Rs.4000-6000 on par with theGroup-C employees with effect from the date of their entitlement, but the monetarybenefit shall be extended only with effect from 01.01.2005. Hence these appeals.

The learned Advocate General sought to contend that having regard to theserious laches and unexplained delay on the part of the respondents/petitionersherein in approaching this Court under Article 226 of the Constitution of India, eventhough, they are placed in a similar situation, this Court could not exercise any suchextraordinary jurisdiction nor could show any indulgence in their support.

The learned counsel appearing on behalf of the respondents herein sought tosustain the order on the ground that it is only by taking in to consideration the aforesaid aspects, the learned single Judge has rightly restricted payment only witheffect from 01.01.2005 and therefore, the orders would not warrant any interferencein these appeals.

Having considered the detailed submissions made on either side and onperusal of the material, the point which arise for consideration in these appeals is asto whether the respondents are entitled to the relief as sought for, in spite of suchadmitted delay, in exercise of powers of this Court under Article 226 of theConstitution of India.

There is no dispute in regard to the aforesaid bare facts that the respondentsare all working as Telecom Mechanics and further the chequered events as pointedout above, in respect of the letter issued by the appellants dated 20.4.1999, whereina distinction was sought to be drawn in regard to employees from the cadre ofRegular Mazdoors including the writ petitioners, which has come up for challengebefore the Central Administrative Tribunal and the Tribunal struck down the clausewhich creates discrimination between the two categories of Phone Mechanics, andset aside the impugned letter as per Orders dated 9.8.2000 with a direction that therespondents herein are entitled for such benefits. The said order of the Tribunal wasalso confirmed by a Division Bench of this Court in a writ petition filed by theappellants as per order in W.P.No.14744 of 2001 dated 16.10.2003. Further, eventhe S.L.P filed by the appellants was also rejected as per order dated 23.7.2004.

In view of the settled position of law as it stands now, is to the effect thatPhone Mechanics who were appointed in the restructured cadre, do fall in Group `C’cadre and in spite of any such move to a different cadre, they would be entitled tosimilar such benefit as has been given to Group `C’ employees. Since therespondents/petitioners are similarly placed, they will fall within the same categoryfor the purpose of entitlement of higher pay scales.

However, admittedly, none of these respondents/ petitioners did join or sailwith those who initially filed a case before the Tribunal in the year 1999 nor knocked the doors of the Court of law even during the pendency of writ petitions filed by theappellants herein, which was ultimately disposed by this Court on 16.10.2003.

There is no dispute to the fact that though on par with those employees, therespondents/petitioners also become entitled for such benefits in terms of the ordersof the Tribunal as well as that of this Court with effect from 01.8.1998, yet, the factremains that there is no semblance of any persuasion on behalf of therespondents/petitioners to make any claim or to file any application. Even on areading of the affidavit filed in support in the writ petitions filed by the respondents/petitioners, it is seen that there is absolutely no whisper much less averment orexplanatory for such delay and laches on their part. All these writ petitions are filedonly in September,2005. It is also not their case that for any valid reason, they couldnot possibly approach the Tribunal or the Court. In the absence of any suchexplanation forthcoming, it is too difficult to say that the respondents/petitionersherein can safely be said to fall in line with those employees who had approachedthe Tribunal or this Court earlier.

There is no dispute to the basic principle that discrimination cannot be madein favour of recruits from one source against the recruits from the other source in thematter of further promotion as once they are absorbed in one cadre they formed oneclass as was held in Roshan Lal Vs. Union of India. I n DoordarshanCameramen’s Welfare Association V. Union of India,it was held that there shallnot be any difference in the pay drawn while giving benefit of the respective payscales to persons having the same length of service as their counterparts. However,the Supreme Court did take notice of the fact with a specific observation that thereshould not be any laches on the part of the petitioners in approaching the Court.

In Mohd. Ameeruddin and others V. Osmania University, Hyd., a DivisionBench of this Court presided over by the Chief Justice S.B.Sinha (as he then was),considering the scope of Article 226 of the Constitution of India, it was held that:

“The persons who approached this Court after a long lapse of timedespite the decision of this Court rendered in 1987 though their case is covered by the decision of the Apex Court, may, however, form a separateand distinct class. In view of the decisions of the Apex Court the benefit ofthe judgment of the Apex Court cannot be made applicable to those who hadapproached this Court after long delay. Therefore, on the ground of lachesalone, petitioners are not entitled to any relief.

It may be true that the concept of equality before law and equalopportunity of law as adumbrated in Article 14 of the Constitution of Indiamay be held to be applicable even in relation to the decisions of the higherCourts. The State may also be under an obligation to treat all the litigantssimilarly situated equally. But, it would depend upon the facts andcircumstances of each case. Where a party has lost his right due to delay,the Court should not come to his aid. It is one thing to say that a person hasa right, but is another thing to say that as to whether having regard to hisconduct the Court of equality shall grant relief. In a case of delay and laches,the Court, in appropriate cases, may, decline to grant such relief”.

In view of the aforesaid principles, it can safely be said that there is anyamount of delay and laches on the part of respondents/petitioners herein inapproaching this Court under Article 226 of the Constitution of India apart from beingextraordinary one is a discretionary one. Therefore, in spite of the fact that one isable to make out a case of entitlement on par with others even as per the principleslaid down by the Apex Court, however, the delay and laches would always come inthe way of exercising any such jurisdiction in their favour.

As pointed out earlier, none of the affidavits filed in support of the writpetitions whisper any explanatory account for such delay. Even the statements filedon behalf of the appellants herein point out due dates of entitlement. The principleslaid down in the earlier decisions dates back to the year, 1988. In the circumstances,we hold that the respondents/petitioners are placed in a similar situation and areentitled to in law, for similar such benefits. However, having regard to the fact thatthere is considerable unexplained delay and laches, the said benefit can berestricted only from the date of the judgment of the learned single Judge rather thancommencement of the year in which writ petitions are filed as held by the learnedsingle Judge.

The appeals filed by BSNL viz., W.A.Nos.1959, 1983, 1994, 2003, 2004,2015, 2019, 2020, 2021, 2024, 2025, 2030, 2032, 2037, 2044, 2047, 2066, 2112,2281,2282,2291, 2310,2311,2338, 2339, 2341, 2372, 2373, 2374, 2378, 2390,2391, 2392, 2393, 2411, 2413, 2422, 2423, 2489, 2491, 2492, 2493, 2494 of 2005and WA.Nos.2600, 2601, 2602, 2603, 2604, 2605 and 2606 of 2005 are allowed inpart. The direction given by the learned single Judge to the effect that therespondents/petitioners are entitled to the benefit of pay scale of Rs.4000-6000 onpar with the Group-C employees with effect from the date of their entitlement isconfirmed. But, the extension of monetary benefit stands modified to the effect thatthe respondents shall be extended the monetary benefit only with effect from thedate of the judgment, namely, 6[th] September, 2005, but not 01.01.2005.

The Writ Appeals filed by the employees of BSNL, viz., W.A.Nos.1840, 2071,2077, 2109, 2184, 2216 2268,2276 2403 and WA.No.2607 of 2005, claiming thebenefit from the date of their entitlement, are dismissed. No order as to costs.

26.12.2005

________________

B.PRAKASH RAO, J

RAR

_________________

DR.G.YETHIRAJULU, J

AND

THE HON’BLE DR. JUSTICE G.YETHIRAJULU

WRIT APPEAL Nos.1959, 1983, 1840,1994, 2003, 2004, 2015, 2019, 2020, 2021,2024, 2025, 2030,2032, 2037, 2044, 2047, 2066, 2071, 2077, 2109, 2112, 2184,2216, 2268, 2276, 2281, 2282, 2291, 2310, 2311, 2338, 2339, 2341, 2372, 2373,2374, 2378, 2390, 2391, 2392, 2393, 2403, 2411, 2413, 2422, 2423, 2489,2491,2492, 2493, 2494 of 2005

AND

W.A. Nos.2600, 2601, 2602, 2603,2604, 2605, 2606 and 2607 of 2005

(Judgment of the Bench delivered byHon’ble Sri Justice B.Prakash Rao)

DATED : 26.12.2005