An employee’s NEPP option to retain BCR promotion is binding and precludes claiming earlier upgradation.

The applicants, who entered service as Linemen in the erstwhile Department of Telecommunications in 1981, were promoted as Telecom Mechanics in 1997 and granted OTBP on 1 December 1998. After BSNL was constituted on 1 October 2000, they received BCR upgradations on 25 July 2007 and 1 August 2007 respectively.

Under BSNL’s Non-Executive Promotion Policy (NEPP), employees recruited before 1 October 2000 were eligible for a first time-bound upgradation after four years in the IDA scale and a second upgradation after seven years in the upgraded scale.

The applicants claimed that they ought to have received the first and second NEPP upgradations in 2004 and 2011, respectively, and sought pay refixation, stepping-up of pay with their colleagues or juniors, arrears, and consideration of their representations.

BSNL contended that the applicants had expressly opted to treat their BCR promotions of 2007 as their first NEPP upgradation under clause 6.4, and that they had not exercised a later opportunity to revise their options.

The Tribunal initially allowed the application on 17 June 2016. The Kerala High Court set aside that order and remanded the matter, holding that the applicants’ options had not been properly considered.

On remand, the Tribunal examined the applicants’ option forms dated 18 October 2010. These showed that both applicants had opted to treat their respective BCR promotions as their first financial upgradation under NEPP.

Whether the applicants were entitled to have their first and second NEPP upgradations fixed in 2004 and 2011, notwithstanding their written options treating the BCR promotions granted in 2007 as their first NEPP upgradation?

Whether the applicants could claim stepping-up of pay on the ground that their colleagues or juniors were drawing higher pay?

Whether the recovery of excess payments from the applicants’ retiral benefits was legally permissible?

The Tribunal applied clauses 3.1 and 3.2 of the NEPP, under which employees recruited by DoT before 1 October 2000 were eligible for the first time-bound IDA pay-scale upgradation after four years of service and the second upgradation after seven years in the first upgraded scale.

Clause 5.1 provided that employees would ordinarily be covered by NEPP unless they opted to remain under the erstwhile OTBP/BCR schemes, while clause 6.4 stipulated that an upgradation already availed under OTBP/BCR after 1 October 2000 would be treated as the first NEPP upgradation, subject to an option to forgo it and receive the NEPP upgradation instead.

Clause 6.3 made time-bound NEPP upgradations personal to the employee and barred claims based on comparison with other employees on grounds such as seniority or cadre.

The Tribunal also applied the principle in Rafiq Masih (Whitewasher) v. State of Punjab, (2015) 4 SCC 334, that recovery of excess payments from Group-C employees is impermissible where the excess payment resulted from the employer’s mistake, was not caused by fraud or misrepresentation, and was made over a prolonged period.

Although clause 5.1 automatically brought the applicants within NEPP in the absence of an opting-out request, the decisive issue was the separate option exercised under clause 6.4.

The applicants had selected the alternative expressly providing that their BCR promotions of 25 July 2007 and 1 August 2007 would be treated as their first financial upgradation under NEPP.

Having consciously exercised that option, they could not subsequently claim that the employer should disregard it and retrospectively grant the first and second upgradations in 2004 and 2011.

The employer had also circulated a one-time opportunity in 2011 to revise the original option, but the applicants did not avail themselves of it, unlike similarly situated employees who changed their options.

Consequently, the respondents were entitled to implement the applicants’ written options.

The claim based on alleged junior-senior pay anomaly also failed because clause 6.3 made NEPP benefits personal and excluded comparison-based claims.

However, the Tribunal distinguished the recovery issue: the excess payments had continued for more than seven years, the applicants were Group-C employees, and there was no allegation of fraud, misrepresentation, or wilful default.

Applying Rafiq Masih, the recovery from their retiral benefits was held impermissible.

The challenge to the revised pay fixation was also rejected, the respondents’ explanation being found convincing and not specifically challenged.

However, the Tribunal directed the respondents to refund the excess amounts recovered from the applicants’ retiral benefits, in accordance with Rafiq Masih, within four months from receipt of the order.

The application was therefore dismissed subject to that limited direction, with no order as to costs.