Sunday, December 6, 2015

Bombay - OA no 297 of 2010 decided in Jan 2012



Dated this   ???????       the day of January, 2012

Subhash M.Sandanvise,
Sub Divisional Engineer, RTTC, BSNL,
R/o Chinchwad Telephone,
Exchange Quarter, Chinchwad,
Pune – 411 019. ....Applicant
(By Advocate Shri. S.V.Marne)

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)


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


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.

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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