CENTRAL
ADMINISTRATIVE TRIBUNAL
BOMBAY
BENCH, MUMBAI
ORIGINAL
APPLICATION NO.:- 297 of
2010
Dated
this ??????? the day of January,
2012
CORAM:-
HON'BLE SHRI JOG SINGH , MEMBER (J)
HON'BLE SMT.
LEENA MEHENDALE, MEMBER (A)
Subhash
M.Sandanvise,
Sub Divisional
Engineer, RTTC, BSNL,
Pune.
R/o Chinchwad
Telephone,
Exchange Quarter,
Chinchwad,
Pune
– 411 019. ....Applicant
(By
Advocate Shri. S.V.Marne)
Versus
1. Bharat Sanchar
Nigam Ltd.,
through Chief
Managing Director,
Government of India
Enterprises,
Having Corporate
Office at Janpat,
Sanchar Bhawan, New
Delhi – 110 001.
2. The Chief General
Manager,
Telecom Maharashtra
Circle,
BSNL, 4th
Floor, BSNL Complex,
Juhu Road,
Santacruz (W),
Mumbai – 400 054.
3. The Principal
General Manager,
BSNL Pune, Satara
Road,Pune – 411 009.
4. Union of India
through the
Secretary,
Ministry of
Telecommunication & IT,
Sanchar Bhawan,
New Delhi – 110
001. ...
Respondents
(By
Advocate Shri V.S.Masurkar)
O
R D E R
Per
: Smt.Leena Mehendale, Member (A)
This
OA is filed on 5.4.2010 under Section 19 of the Administrative
Tribunals Act, 1985 on a small point as to whether the applicant
should be deemed to be an employee of Mahanagar Telecom Nigam
Ltd.('MTNL ' for short) or Bharat Sanchar Nigam Ltd. ('BSNL' for
short). The applicant also prays for a direction to hold
and declare that he is permanently absorbed in BSNL w.e.f. 1.10.2000.
2. The
brief history of the matter is that the Department of
Telecommunication ('DOT' for short) had formed a separate Corporation
viz. MTNL comprising Delhi and Mumbai Circle, but the rest of entire
Maharashtra remained out of the jurisdiction of MTNL. Subsequently,
the rest of DOT was converted into another Corporation viz. BSNL and
all the areas of Maharashtra outside Mumbai came under the
jurisdiction of BSNL. The applicant was initially appointed as
Operator in the DOT at Ahmednagar Telecom District on 1.8.1989. He
was promoted as Junior Telecom Officer ('JTO' for short) in 1994
through a competitive examination that was conducted by MTNL and he
was also appointed by MTNL as JTO. However, his name remained in the
common seniority list of JTOs working all over the country under DOT.
In 1998, MTNL also gave him local officiating promotion to the post
of Sub Divisional Engineer ('SDE' for short). The BSNL was formed
w.e.f. 1.10.2000 and all the employees working under DOT were
transferred to BSNL and remained with BSNL as on deemed deputation
till the date of their absorption. On 27.2.2002 the respondent no.4
herein i.e. Secretary, Department of Telecommunication, New Delhi
issued the order of regular promotion of the applicant to the post of
Telecom Engineering Service Gr.'B' (SDE) (Annexure-A-4).
3. Thus,
we find that through the competitive examination for selection of the
applicant as JTO was conducted by MTNL, his order of JTO was also
issued by MTNL and his order for local officiating promotion as SDE
was also issued by MTNL, yet, his regular order for promotion as SDE
was issued by DOT on 27.2.2002 and another order transferring him
from Mumbai to Jalna as SDE was issued by BSNL on 9.4.2002. The
applicant joined at Jalna on 11.6.2002 and thereafter transferred to
Pune on 18.8.2003.
4. This
is the background of the matter. On 2.9.2003, BSNL issued a circular
inviting options for absorption in BSNL from all the Gr.'B' officers
(including SDE) who were transferred to BSNL on deemed deputation
basis. The applicant exercised his option for absorption in BSNL.
The Presidential order for his permanent absorption to BSNL w.e.f.
1.10.2000 was also issued on 23.9.2004 and the BSNL also gave him
promotion to the grade of Sr.SDE w.e.f. 27.2.2006. After nearly four
years i.e. 3.3.2010, the BSNL (respondent no.2) cancelled the
Presidential Order of his absorption to BSNL. The order reads as
follows -
“No.A/PPE-11/Absorption/Group'B'/Pune/32
Dated: 3/03/2010
ORDER
Approval of Chief
General Manager Maharashtra Telecom Circle BSNL, Mumbai – 54 is
hereby conveyed for cancellation of Presidential Order (P.O.) issued
inadvertently vide No.27-1/MH/Pune/224 dated 23.09.2004 to Shri
Saindanvise Subhash Manohar JTO Staff Number 110031, with immediate
effect. Consequent upon the cancellation of the said P.O. The
permanent absorption in BSNL of the aforesaid officer is ceased, and
his status as Government employee is revoked henceforth.
Authority to cancel
the said P.O. Has been delegated by BSNL Corporate Office vide it's
letter No.BSNL/11/SR/2003/MH dated 22.02.2010. Necessary updation in
all the relevant records should be made accordingly.
(C.K.Ravindran)
Assistant
General Manager (Estt.)”
A
simple reading of the above order suggests that respondent no.2 has
not only cancelled the P.O for his permanent absorption to BSNL but
has also terminated his status as an employee of DOT by using the
words that “his status as Government employee is revoked
henceforth.”
5. Consequently,
BSNL issued yet another order on 23.3.2010 (Annexure-A-3) to say that
the Time Bound Promotion given to him w.e.f. 27.2.2006 is withdrawn
and the overpayment of nearly four years should be recovered. As the
applicant has filed this OA on 5.4.2010 and obtained interim relief,
namely, that status-quo ante be maintained, and as the said interim
relief is continued till the disposal of this order, the applicant is
still having the status of Sr.SDE at the office of RTTC/DTTC, BSNL,
Pune.
6. We
have heard both the learned counsel for the parties and gone through
all the pleadings. The learned counsel for applicant points out that
as per the Government of India's circular dated 29.8.2003 at
Annexure-A-10 a single option form had been devised requiring the
official to indicate their preference of absorption in MTNL or BSNL
or retention of Government status. It was further mentioned that
another conditional option would be treated as having opted for
retention of the Government status. It further says that Circle
cadres of MTNL and BSNL can exercise options for the respective PSUs
only. Options received from Circle Cadre officers may be retained at
the circle itself. The absorption will take place in the
substantive grade as on 1.10.2000. Options from Group 'A' will be
called for in next phase. However, Group 'B' officers promoted after
1.10.2000 as Group A, if desire to get absorbed in their substantive
Grade of Group 'B', will be allowed to exercise their option, leaving
their seniority issue open till absorption of Group A is completed.
7.
The learned counsel for the respondents submits that in view of the
above circular and particularly in view of the guidelines that
“Circle cadres of MTNL and BSNL can exercise
options for the respective PSUs only” the applicant who was on
deputation to MTNL as on 1.10.2000 and has been brought to BSNL only
in 2002 cannot give option for BSNL. As such his option dated
29.9.2003 for absorption to BSNL is incorrect. The Presidential
Order dated 23.9.2004 issued by BSNL for his permanent absorption as
well as his Time Bound Promotion as Sr.SDE “were inadvertent
mistakes”.
8. We
do not agree with the contention of the respondents. Although the
Government circular has tried to give clear guidelines and is
unequivocal in saying that the Circle cadres of MTNL and BSNL can
exercise option for respective PSUs only, yet, it fails to give any
guidance in a peculiar situation such as faced by the present
applicant. The applicant was on deemed deputation to MTNL as on
1.10.2000, from which date BSNL is said to have come into existence.
In 2002, it was a BSNL officer namely, respondent no.2 who
transferred him to Jalna without his consent. This fact, coupled
with the fact that his option for absorption in BSNL exercised on
29.9.2003 met with no objection from BSNL and coupled with the fact
that the Presidential Order for permanent absorption to BSNL was also
issued, makes it very clear that the said Government circular dated
29.8.2003 did not have any clear cut guidelines for those stray cases
like the present one, in which the applicant is on deputation to MTNL
on 1.10.2000 but on deputation to BSNL on the date of giving his
option. The instructions mentioned in Para 3 (supra) does not
throw any light on how such officers should exercise their option.
If the senior officers of BSNL did not have this clarity between
29.9.2003 till 3.3.2010 (when they passed the order cancelling the
Presidential Order), the applicant cannot be expected to understand
the intricacies of this circular. Since the applicant's transfer to
Jalna was not for the reason of his own asking but by an order of a
senior officer in the BSNL, it appears logical that the BSNL officers
continued to consider it as their prerogative to transfer the
officers who were on deemed deputation to MTNL. Under such
situation, if the applicant also considered himself as an employee of
BSNL and accordingly opted for being retained in the BSNL, his claim
has to be complied irrespective how the BSNL officials would like to
interpret the Government circular dated 29.8.2003.
9. It
is also pointed out by learned counsel for the applicant that the
guidelines issued by BSNL itself on 2.9.2003 (Annexure-A-6) mentions
as follows -
“.........The IDA
pay scales will be effective from 01.10.2000. After the absorption
is finalized by BSNL and the absorbed employees are fixed in IDA pay
scales, the ad-hoc sum of Rs.2000/- p.m. Being received by the
employees w.e.f. 01.10.2000, shall be adjusted against their IDA
emoluments, perks and benefits on fixation of their pay in IDA pay
scales . In case of optees accepted for absorption in BSNL and
present working in MTNL, any ad-hoc amount paid to them by MTNL &
which is required to be adjusted from the IDA pay scale arrears after
their absorption, would also be adjusted against their IDA
emoluments, perks and benefits on fixation of their pay in IDA pay
scales.”
This para 8 of BSNL
guideline also leaves a possibility for such optees to want
absorption in BSNL but were working in MTNL. This further
strengthens the claim of the applicant.
10. In view
of the foregoing, the OA is allowed. The impugned orders by
respondent – BSNL dated 3.3.2010 cancelling the P.O in respect of
absorption of the applicant with BSNL as well as the impugned order
dated 23.3.2010 withdrawing his Time Bound Promotion as Sr.SDE and
ordering recovery of overpayment are quashed. The prayer made at
para 8 (b) of the OA is granted. No order as to costs.
(Smt.Leena
Mehendale) (Jog Singh)
Member
(A) Member (J)-
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