Central Administrative Tribunal - Delhi
Sh. Sanjeev Kumar vs Union Of India on 3 June, 2009
Central Administrative Tribunal Principal Bench OA No.2287/2008 OA No. 2493/2008 OA No.2566/2008 OA No.279/2009 New Delhi, this the 3rd day of June, 2009 Honble Mr. Justice V.K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) OA No.2287/2008 1. Sh. Sanjeev Kumar S/o Sh. Ranbir Singh, R/o A-4/5/, Multi Storey Flats, Peshwa Road, Gole Market, New Delhi-110001. Presently posted as: DGM (Mktg.) (Staff No.20026) 710, Mahanagar Doorsanchar Bhawan, Jawhar Lal Nehru Marg, New Dehi-110002 2. Sh. Atul Kumar Rastogi, S/o Sh. Kailsah Chandra Rastogi, R/o 6081/6, D-6, Vasant Kunj, New Delhi 110071 Presently posted as: Area Manager (Hari Nagar) (Staff No.20648) 4th Floor, Hari Nagar Telephone Exchange, MTNL, New Delhi. Applicants (By Advocate: Shri D.S. Chaudhary) Versus 1. Union of India Through Secretary, Ministry of Communications and IT, Department of Telecommunications 915 Sanchar Bhawan, 20 Ashok Road, New Delhi 110001 2. Bharat Sanchar Nigam Limited (BSNL) Bharat Sanchar Bhawan, H.C. Mathur Lane, Janpath New Delhi -110001 Respondents (By Advocate: Sh. T.C. Gupta and Ms. Nidhi Bisaria OA No.2493/2008 Sh. Narender Kumar Mehta, S/o Sh. Kamal Raj Mehta, General Manager (North), Mahanagar Telephone Nigam Limited (MTNL) Delhi. R/o A-1/101, Printer Apartment, Sector-13, Rohini, Delhi-110085. Applicant (By Advocate: Shri K.P. Gupta) Versus 1. Union of India Through Secretary, Department of Telecommunication, Ministry of Communications and Information Technology, 915, Sanchar Bhawan, 20, Ashoka Road, New Delhi 110001. 2. MahanagarTelephone Nigam Limited (MTNL) Through Chairman and Managing Director, 12th Floor, Jeewan Bharti Building, Connought Place, New Delhi. Respondents (By Advocate: Sh. T.C. Gupta and Ms. Nidhi Bisaria) OA No.2566/2008 Anil Kumar Jain S/o Late Shri G.S.Jain, DDG (BB) Bharat Sanchar Nigam Limited (BSNL) Bharat Sanchar Bhawan, H.C. Mathur Lane, Janpath New Delhi -110001 Applicant. (By Advocate: Shri Kul Bharat) Versus 1. Union of India Through Secretary, Ministry of Communications and IT, Department of Telecommunications 915, Sanchar Bhawan, 20 Ashok Road, New Delhi 110001 2. Bharat Sanchar Nigam Limited (BSNL) Bharat Sanchar Bhawan, H.C. Mathur Lane, Janpath New Delhi -110001 Respondents (By Advocate: Sh. T.C. Gupta and Ms. Nidhi Bisaria OA No.279/2009 Sh. Harbans Singh, S/o Sh. Shankar Dass, Retired General Manager (Transpmission), Mahanagar Telephone Nigam Limited (MTNL), Delhi. R/o A-301, Mandakani, CGHS, Sector-2, Dwarka, Delhi-110075. Applicant (By Advocate: Shri K.P. Gupta) Versus 1. Union of India Through Secretary, Department of Telecommunication, Ministry of Communications and Information Technology, 915, Sanchar Bhawan, 20, Ashoka Road, New Delhi 110001. 2. MahanagarTelephone Nigam Limited (MTNL), Through Chairman and Managing Director, 12th Floor, Jeewan Bharti Building, Connought Place, New Delhi. Respondents (By Advocate: Sh. T.C. Gupta and Ms. Nidhi Bisaria) : O R D E R: Dr. Ramesh Chandra Panda, Member (A) :
In all these OAs, the same cause of action, the same relief and the same issues being involved, we are considering all 4 Original Applications in this common order and determining the issues common to all these cases.
2. All the Applicants being aggrieved by their permanent absorption in Mahanagar Telephone Nigam Limited (MTNL) and Bharat Sanchar Nigam Limited (BSNL), have prayed (i) to quash and set aside the Presidential Orders issued for permanent absorption of the Applicants, (ii) to treat their continuous service in the Government with the Respondent No.1 and (ii) to allow the Applicants to exercise their fresh option in terms of order dated 26.08.2008 and 29.09.2008 as has been extended to the Group-A Officers presently working in the Government.
3. The brief facts of the case as stated by the Applicants reveal that Mahanagar Telephone Nigam Limited (MTNL, for short) was formed on 1.4.1986 and Bharat Sanchar Nigam Limtied (BSNL, for short) was formed on 1.10.2000 to discharge the telecom and associated functions of DOT. Consequently, the Respondent No.1 started the permanent absorption process of the Government employees in MTNL and BSNL. Having completed the process of permanent absorption of Group-B, C and D employees invited the Indian Telecom Service (ITS) and other Group-A Officers to exercise their option whether they wanted to be absorbed in BSNL or MTNL or they wanted to continue in the Government of India as Government officers. The Respondents circulated terms and condition of their absorption along with the option forms. The last date for submission of the option forms was periodically extended and appropriate clarifications were issued on number of occasions about the terms and condition of their services. The Respondent No.1 in its letter dated 4.10.2005 finally provided consolidated terms and conditions of absorption of ITS and other Group-A Officers, where it was clearly stated that the option once exercised would be final and the officers would not be allowed to withdraw their option at a later stage. It was also mentioned that if the officers submit conditional option or do not submit any option at all, they would be deemed to have opted to continue as Government officers in the Government of India. In the year 2005-2006, the Applicants opted to be absorbed in MTNL/BSNL (Respondent No.2). Consequently, Applicants options were accepted by Respondent No.1 and appropriate Presidential orders were issued to the Respondent No.2 for the permanent absorption of the Applicants in MTNL/BSNL. However, the permanent absorption orders ultimately mentioned that these would be subject to the outcome of pending court cases. All the Applicants were absorbed in MTNL/BSNL w.e.f. 1.10.2000. It is the case of the Applicants that Respondent No.1 has again called for options from the Group-A Officers working as government officers in the Government of India but clearly states whether they would like to be absorbed in the services of BSNL or MTNL or they would like to retain their status as government officers. As indicated earlier, this time also the Respondent No.1 has informed that all the cases of absorption in BSNL/MTNL will be effective from 1.10.2000. It is stated by the Applicants that the terms and conditions of absorptions have been liberalized for the advantage of the officers and the terms and conditions indicate that option once exercised would be final and thus, those who submit conditional option or do not submit their option at all would be deemed to have opted to continue their status as government officers. In the said option, the Respondent No.1 has clearly mandated that this option will not be open for those officers who have already exercised their option and absorbed in MTNL/BSNL. It is the Applicants case that they have submitted their representations to the Respondent No.1 to allow them to exercise their option afresh like those officers who have been in the Government and have the second opportunity to exercise their option to retain their status as government officer or not? The Respondent No.1 has rejected the Applicants representations. Thus, the Applicants are before this Tribunal challenging the Presidential Order dated 27.01.2006 passed by the Respondent No.1 whereby they were permanently absorbed with MTNL/BSNL w.e.f. 1.10.2000 and the Applicants have further prayed for a direction by this Tribunal to the Respondent No.1 to allow them to exercise their option afresh for their absorption in BSNL or MTNL or to come back to their earlier status of Government officers in the Government of India.
4.1 Shri K. P. Gupta, the learned counsel for the Applicant led the arguments on behalf of the Applicants. He very comprehensively narrated the genesis of MTNL/BSNL and the procedure of absorption of ITS and other Group A officers of the Department of Telecommunication in BSNL and MTNL. Shri Guptas main contentions were that when the Respondent No.1 has invited the option for the 2nd time giving the opportunity for those who are working in the Government, the Group A officers already absorbed in BSNL and MTNL should also be given the same opportunity. Otherwise, it is discrimination against those who have opted in the past and joined in the MTNL/BSNL. He contended that out of two categories of employees belonging to the erstwhile Group A Officers, namely those who are continuing in the Government and those who have already joined MTNL/BSNL, calling option for the Government officers alone is discriminatory and the right to equality of those who are continuing in MTNL/BSNL has been infringed and, therefore, the action of Respondent No.1 is in violation of Article 14 and 16 of the Constitution of India.
4.2. Shri K.P.Gupta further drew our attention to Para 6 of Rule 37 A of Central Civil Service (Pension) Rules to contend that the said Para provides for the employees already opted to be absorbed in Public Sector Enterprises would be eligible to revert back to the Government and if they revert back would be redeployed through the surplus cell of the Government. His contention is that there is provision for the officers to withdraw their option for absorption in MTNL/BSNL and come back to Government service.
4.3 In case of the Applicant (Shri N. K. Mehta) in OA No.2493/2008, Shri K.P. Gupta contended that the Applicant exercised his option to join MTNL on 10.10.2005, but on 11.10.2005 he withdrew the option submitted on the previous date. However, the Respondent No.1 passed the order dated 11.10.2005 indicating his permanent absorption in MTNL, which order was received by the Applicant on 19.05.2006. He questions the right of the Government to call for the options and alleges malafide against the Respondents in accepting his option in one day.
4.4 Shri K.P.Gupta drew our attention to the order of Honble High Court of Andhra Pradesh in WP MP No.26639/2008 in WP No.19641, K. S. V. Prasad versus Union of India & Ors., where the Honble High Court while considering the petition under Section 151 of CPC that where the petitioner Shri KSV Prasad, Deputy General Manager (Operation) of BSNL has prayed to direct the Respondents to accept the revised option from the petitioner to opt for Government service in pursuance of the Government letter dated 26.08.2008. The Court while issuing notice to the respondents issued the following order:-
ORDER Heard both sides. In the facts and circumstances of the case, there shall be interim direction to the respondents to consider the revised option exercised by the petitioner to opt for Government service in pursuance of Lr. No.A-11013/1/2005-Admn.II/Absorption Cell (ITS/TTS/TFS) dated 26.08.2008 and pass appropriate order within a period of eight weeks from the date of receipt of a copy of this order and communicate the same to the petitioner.
WPMP is accordingly closed.
5. Shri T. C. Gupta and Ms. Nidhi Bisari, Learned Counsel, representing the Respondents highlighted that out of 3000 Group A officers earlier working in the Government about 1600 of them have already opted and happily settled in MTNL/BSNL. The remaining employees belong to 2 group (i) those working in the Government opted to stay in the Department of Telecommunication and (2) those who did not exercise the option or exercised conditional option. The option has been called from them in the letter of 26th August 2008. This letter is exclusively meant for only them and would not be applicable for those who have opted and absorbed in BSNL or MTNL. He also contended that the benefits, incentives, and concession being offered in the letter dated 26.8.2008, will also be extended to those optees already absorbed in MTNL/BSNL. Shri T. C. Gupta refuted the allegations of discrimination levelled against the DOT by the Applicants. Shri T. C. Gupta contended that all the Applicants are barred by limitation since the acceptance of the option to be absorbed in MTNL/BSNL was ordered as far back as October 2005 and these OAs have been filed after 3 years in November 2008 or thereafter.
6.1 Before we go into the contentions of the rival parties and consideration of the issues in the OAs, we will discuss the issue of stay raised by the Learned Counsel for the Applicants. It is stated that a Writ was filed in the Shillong Bench of the Honble High Court of Assam, and the WPC No.328/SH/2005 was heard on 6.10.2005 and the following orders were passed:-
WPC No.328/SH/2005BEFORE THE HONBLE MR. JUSTICE B. LAMARE 6.10.2005 Heard Mr. SK Deb Purkayastha, learned counsel for the applicant.
Let a Notice of Motion issue calling upon the respondents to show cause as to why a Rule should not be issued as prayed for, or why such further and other orders should not be passed as this Court may deem fit and proper.
The Notice is made returnable on 20.10.2005.
Mr. R. Debnath, learned CGSC, accepts notice on behalf of respondent no.1,3 and 4 and no further notice is called for. Applicant shall take steps for issue of notice on respondent Nos. 2,5,6 and 7 by Registered Post with AD.
Until then, the operation of the impugned letter dated 24.03.2005, Annexure IV and letter dated 30.09.2005, Annexure XXII to the writ petition, shall remain suspended.
List this case on 20.10.2005. 6.2 Shri K. P. Guptas plea is that interim injunction has been granted by the Honble High Court against letter dated 24.03.2005 issued by Respondent No.1. Therefore, calling of options for absorption of Group A officers of DOT in MTNL and BSNL having been stayed the absorption scheme has become non-operational. Thus, the Respondents cannot call for fresh option from the Group- A officers to absorb them in MTNL or BSNL. Shri T. C. Gupta, learned counsel for the Respondents on other hand contends that the BSNL and MTNL have thousands of officers who belong to various services of the DOT and having exercised their option, they have been absorbed in BSNL/MTNL. They are not agitating parties in the WPC No.328/SH/2005 in which the interim injunction has been granted against the government order dated 24.03.2005 and 30.09.2005. Further large numbers of those officers who have been absorbed in BSNL or MTNL are not party to the Writ and they may like to continue in the MTNL or BSNL. Having heard the rival contentions on the issue whether the stay granted by Honble High Court has the general application or specific to petitioner in the Writ, we are of the considered view that the interim injunction passed by the Honble High Court of Assam Bench at Shillong If extended to general applicability, that would create confusion since large number of absorbed officers are not party to the Writ, nor they may intend to join the issue and thus, the stay has limited applicability and its application would be qua the petitioner and not for others officers who have opted and already absorbed in BSNL or MTNL and also not for the officers to opt for absorption..
7. The controversies in all four OAs being same revolve on the following issues which come up for our consideration and determination:
(i) Are the Presidential Orders issued for permanent absorption of the Applicants in MTNL/BSNL legally valid or liable to be quashed and set aside?
(ii) Whether the permanently absorbed Group-A officers in MTNL/BSNL are eligible and entitled to be considered for exercising their option as per the letters dated 26-8-2008 and 29-9-2009?
(iii) Whether the permanently absorbed Group-A officers in MTNL/BSNL are eligible to get additional benefits and incentives under the terms and conditions of absorption given in the letters dated 26-8-2008 and 29-9-2009?
8.1 We take up the 1st issue - are the Presidential Orders issued for permanent absorption of the Applicants in MTNL/BSNL legally valid or liable to be quashed and set aside? Before we consider this issue we need to analyse the setting in which this issue arose. We find that two Central Public Sector Enterprises viz MTNL and BSNL were carved out of DOT as part of the policy decision of the Government of India to corporatise the telecom and associated service functions of the Government. The MTNL was formed on 1.4.1986 for Mumbai and Delhi cities and the BSNL on 1.10.2000 for the rest of the Country. Consequently, the officers working in the Department of Telecom Services (DTS) Department of Telecom Operations (DTO) were transferred to MTNL/BSNL as deemed deputation basis. Group B, C and D staff totaling about 4 lakh were absorbed in MTNL/BSNL. The process of absorbing the Group A Officers numbering about 3000 started in March 2005 and the option of the officers were called for in the letter dated 24.3.2005 (Annexure-A7) for the first time and after due consideration of the representations of Unions and others, a consolidated terms and conditions for absorption in MTNL/BSNL were issued on 4.10.2005 (Annexure-A11). The cited letters gave an option form (Annexure-A16) to the Group A officers to indicate their acceptance after their careful consideration of the terms and conditions of permanent absorption in MTNL/BSNL It is noted that 3 types of options were available viz. (1) to exercise option to be absorbed in MTNL/BSNL; (2) to exercise option to stay in Government; and (3) such officers who did not exercise any option and officers exercised conditional options to continue in Government. . Result was the absorption of about 1600 officers in MTNL/BSNL. 320 officers opted to continue in Government service. Some of the ITS and other Group-A Officers did not exercise option and thus continued in Government. Those who opted and accepted the terms and conditions were permanently absorbed vide order dated 11.10.2005 (Annexure-A1). We extract the copy of one such order which reads as follows:-
ORDER SUBJECT: PERMANENT ABSORPTION OF GROUP A OFFICERS IN ITS IN MTNL.
Pursuant to Department of Telecom letter No.A-11013/1/2005-Admn.II (ITS/TTS/TFS) dated 24.03.2005 and subsequent clarifications issued vide DOT letters No.A-11013/4/2005-Admn.II/Abs.Cell dated 17.05.2005, 30.05.2005, 31.05.2005 and No.A.11013/1/2005-Admn.II/Abs.Cell dated 02.06.2005 and 04.06.2005 on the subject and in accordance with the provisions of Rule 37 A of Central Civil Service (Pension) Rules, 1972 as amended from time to time, sanction of the President is hereby conveyed for permanent absorption of Shri Narender Kumar Mehta (staff No.2219), an officer of STS in substantive grade as on 30.09.2000, in MTNL with effect from the date and under the terms and condition as indicated below.
Date of effect: The permanent absorption shall take effect from 01.10.2000 forenoon.
Pension/Gratuity: The officer shall be eligible for pensionary benefits including gratuity as per the provisions of rule 37 A of CCS (Pension) Rules, 1972, as amended from time to time.
Family Pension: The family of officer shall be eligible for family pension as per the provision of Rule 37A read with Rule 54(13-B) if CCS (Pension) Rules, 1972 as amended from time to time.
Regulation of pay on absorption: To be regulated in terms of para 4 of Department of Pension and Pensioners Welfare OM No.4/18/87-P & PW(D) dated 05.07.89.
Leave: The Earned Leave and Half Leave at the credit of the officer shall stand transferred to MTNL on the date of absorption as provided for under Sub-rule 24(b) of Rule 37 A of CCS (Pension) Rules, 1972.
Provident Fund: The amount of subscription together with interest thereon standing to the credit of the officer in the General Provident Fund account shall be transferred to his new Provident Fund Account under the MTNL as provided for under Sub-rule 24(a) of Rule 37A of CCS(Pension) Rules, 1972, as amended from time to time. 8.2 Government of India vide notification dated 30.09.2000 have inserted Rule 37-A in the Central Civil Services(Pension) Rules 1972 which deals with Conditions for payments of pensions on absorption consequent upon conversion of a Government Department into a Central Autonomous Body or a Public Sector Undertaking. This would be wholly applicable in terms of the conditions of benefits and incentives spelt out by the DOT for the employees getting absorbed in MTNL/BSNL. Further specific Sub Rules 21, 22 and 23 have been inserted in Rule 37-A specifically mentioning the benefits that would accrue to the Government employees who get absorbed in BSNL. The learned counsel for the Applicant cited only one Sub Rule namely 37A(6) to contend that the Applicants have the right to come back to the Government. Meaning of the Sub Rule read harmoniously with other provisions in Rule 37A is found to be different. It is therefore relevant to take extract of the Sub Rules (1) to (7) of Rule 37-A which are apt for consideration of this issue in these OAs:-
(1) On conversion of a department of the Central Government into a Public Sector Undertaking or an Autonomous Body, all Government servants of that Department shall be transferred en masse to that Public Sector Undertaking or Autonomous Body, as the case may be, on terms of foreign service without any deputation allowance till, such time as they get absorbed in the said undertaking or body, as the case may be, and such transferred Government servants shall be absorbed in the Public Sector Undertaking or Autonomous Body, as the case may be, with effect from such date as may be notified by the Government.
The Central Government shall allow the transferred Government servants an option to revert back to the Government or to seek permanent absorption in the Public Sector Undertaking or Autonomous Body, as the case may be.
The option referred to in sub-rule (2) shall be exercised by every transferred Government servant in such manner and within such period as may be specified by the Government.
The permanent absorption of the Government servants as employees of the Public Sector Undertaking or Autonomous Body shall take effect from the date on which their options are accepted by the Government and on and from the date of such acceptance, such employees shall cease to be Government servants and they shall be deemed to have retired from Government service.
Upon absorption of Government servants in the Public Sector Undertaking or Autonomous Body, the posts which they were holding in the Government before such absorption shall stand abolished.
The employees who opt to revert to Government service shall be re-deployed through the surplus cell of the Government.
The employees including quasi-permanent and temporary employees but excluding casual labourers, who opt for permanent absorption in the Public Sector Undertaking or Autonomous Body, shall on and from the date of absorption be governed by the rules and regulations or bye-laws of the Public Sector Undertaking or Autonomous Body, as the case may be. 8.3 The restructuring of a Department and creation of new corporate entities to look after the specific service functions, which were looked after by the Government comes within the domain of the executive function. In the present case MTNL and BSNL emerged as public sector undertakings consequent to the policy decision taken by the Government. Rule 37A (1) provides that such transferred Government servants shall be absorbed in the Public Sector Undertaking or Autonomous Body, as the case may be, with effect from such date as may be notified by the Government. Once absorbed their relationship with Government ceases and they become the employees of the entity where they got absorbed. The Applicants opted for MTNL/BSNL and their option was accepted which became final for the employee applicant and the employer respondent and became the employee of BSNL. Those who opted for MTNL/BSNL are covered by the Rule 37A. Normally, the Courts and the Tribunals should not interfere and we have to apply absolute judicial restraint in the matters of policy decision which come within the executive domain. However, when the issue of absorption of Government officers in the newly created corporate bodies is concerned unless illegality, violation of constitutional rights, arbitrariness or discrimination is proved the action to the executive cannot be questioned. The Tribunals power of judicial review although exists but is limited in the sense, whether the orders impugned by the Applicants are found to be arbitrary or not is to be decided by us. The Presidential orders passed being in conformity with Rules and Government Policy decision we find that those orders are valid procedurally and legally. We do not find any arbitrariness in the Presidential orders passed for absorption of the Applicants in MTNL/BSNL In this context, we rely on the decision of Honble Supreme Court in the case between CSIR versus Ramesh Chandra Agrawal (2009 (3) SCC 35).The Applicants fail to convince us in the 1st issue.
8.4 Shri K.P. Gupta contended that the Applicant (Shri N. K. Mehta) in OA No.2493/2008, who exercised his option to join MTNL on 10.10.2005, but on 11.10.2005 withdrew the option, the order dated 11.10.2005 was passed accepting his permanent absorption in MTNL, which was received by the Applicant on 19.05.2006. We do not find any whisper of alleged malafide against any authority and his questioning the right of the Government to accept the option in one day does not violate any law or established procedure. Prompt action by the Respondents cannot be termed as malafide. We do not subscribe to the contentions of Shri Gupta and hold the action of the Respondents legally valid..
9.1 The second issue raises the question -- Whether the permanently absorbed Group-A officers in MTNL/BSNL are eligible and entitled to be considered for exercising their option as per the letters dated 26-8-2008 and 29-9-2009? The functions of the telecom services having been transferred to the MTNL/BSNL, the DOT was left with Group A officers in the Government service. We find that a situation has arisen where the services/functions are with MTNL/BSNL and some of the officers to supervise/administer/manage such functions are with the Government. To complete the process of absorption became the duty of the DOT and rightly, DOT started the consultation process with the stake holders including Indian Telecom Service Association (ITSA), constituted a committee for the dialogue, which recommended certain liberal terms acceptable to all and received the approval of the Cabinet on 24.7.2008. DOT, therefore, invited the option of the Group A Government officers of various services in the letter dated 26.8.2008 (Annexure-A5) which was modified vide letter dated 29.9.2005 (Annexure-A12) with some more benefits and incentives. DOT received representations from some of the officers belonging to (i) the absorbed and (ii) to be absorbed categories and clarified to them vide letters dated 1.10.2008 (Annexure-A4) and 22.10.2008 (Annexure-R1). It is apt for us to take the extract of Para 18 of the letter dated 26.8.2008 which is relevant to determine this issue. Para 18 is as follows:-
18. This letter does not re-open the absorption process in case of already absorbed Group A officers except for the purposes of incentives/benefits stated in the General Terms and Conditions for absorption. However, such (absorbed) officers will not be allowed an option to retain government pay scale i.e. CDA pay scale till their promotion/retirement (whichever is earlier) as per para 4 of Department of Pension & Pensioners Welfare O.M No.4/18/87-P&PW (D) dated the 5th July, 1989 9.2 The provisions in Rule 37A(4) provide that the permanent absorption of the Government servants as employees of the Public Sector Undertaking or Autonomous Body once accepted by the Government such employees shall cease to be Government servants and they shall be deemed to have retired from Government service. Further Rule 37A() mandates that the employees including quasi-permanent and temporary employees but excluding casual laborers, who opt for permanent absorption in the Public Sector Undertaking would be governed by the rules and regulations or bye-laws of the Public Sector Undertaking. In this context, since the Rule position is clear the Applicants ceased to be Government officers from the date of Presidential order giving effect to the absorption in MTNL/BSNL with effect from 1-10-2000. The letters dated 26-8-2008 and 29-9-2009 issued by the Respondent 1 and meant for the Government Group A officers working in DOT, in our considered view, the permanently absorbed Group-A officers in MTNL/BSNL are not eligible and not entitled to be considered by the Respondent 1 and much less to invite them for exercising their option. The Applicants again fail in this issue.
10. Let us examine the apprehension raised by the Applicants and we have flagged that as the 3rd issue i.e. .. Whether the permanently absorbed Group-A officers in MTNL/BSNL are eligible to get additional benefits and incentives under the terms and conditions of absorption given in the letters dated 26-8-2008 and 29-9-2009? It is not in dispute that the Respondent-DOT has worked out a detailed administrative process for the Government officers to be absorbed in MTNL/BSNL. The first set of steps were taken by designing a scheme of terms and conditions of absorption, consulted not only the Departments but also the representatives and association of the officers and then moved step by step whereby about 1600 Group-A level officers were absorbed. As stated by the Respondents, the number of Government employees belonging to B, C, and D numbering about 4 lacs has already been absorbed. The highest level of functionaries in the DOT are Group-A officers for whom similar administrative exercise was undertaken by the Respondent-DOT and first set of options were called for and those who opted for absorption in MTNL/BSNL were accepted in October 2005. The Respondent Government have already taken steps to grant the CCS (Pension) Rules by inserting Rule 37 A to protect the government officers absorbed in MTNL/BSNL. To that extent the service conditions then existing for the Government employees at the time of their first recruitment have been properly and reasonably protected under Rule 37 A. The first set of absorptions resulted in about 1600 Group A Officers getting absorbed. In the present OAs, limited number of Group A officers who were already absorbed in MTNL/BSNL are agitating that they should be given an opportunity to exercise option to revert back to the Government. The second set of options presently called for by the Respondent-Department is not at all meant for such absorbed officers in BSNL and MTNL. The set of benefits, incentives and concessions posed for those Groups A officers who are still continuing in the Government service are more attractive than those extended to the absorbed officers. The Respondents in their written submissions have stated that It is further reiterated that the additional benefits offered to yet to be absorbed Group A officers are also available to the absorbed officers. Correctness of the reasons which prompted the government in taking decision after a detailed consultation with the associations and the stake holders for a specific course of action to be taken is not a matter which can be questioned before a Court and Tribunal as held by the Honble Supreme Court in Ekta Shakti Foundation vs. Government of India (2006 AIR SC 2609). Thus in our considered opinion since those benefits and incentives are also being extended to those who have already been absorbed in the BSNL/MTNL therefore, we do not find any distinction with regard to the benefits, incentives and concessions being granted between those two groups (absorbed and to be absorbed). Hence, we do not find any force in the argument that the Applicants are being discriminated.
11. The Government Policy decision being very clear and transparent to ensure that as many Government Group A Officers of DOT as possible to be absorbed in MTNL/BSNL, additional incentives have been incorporated in the terms and conditions given to those officers to convey their option. In our opinion, the DOT did not proceed in wrong manner. In case the additional benefits now worked out may cause heart burning or hardship to those opted and already absorbed in MTNL/BSNL, DOT has explicitly extended the benefits to them also. The validity of the Scheme has not been challenged. Only demand is to grant the Applicants to opt to go back to the Government. What is the purpose? Confronted with the question, learned counsel for the Applicants had no answer except to say that they would like to be Government officers. This, in our opinion, is reverse option to come back from MTNL/BSNL to Government. In case it is allowed, there will be no end to it and the flood gates of confusion and chaos will open. In our considered opinion, the Applicants attempt to create such a situation does not seem to be legally correct and rationally feasible.
12. Further, just because 2nd round of Scheme has been opened with additional benefits for the existing Group A Officers in DOT to induce them to opt for permanent absorption, cannot per se be termed as arbitrary unless it is demonstrated to be unreasonable. The Applicants have not adduced any argument to that effect. We, therefore, opine that action of the Respondent DOT is neither arbitrary nor discriminatory.
13. After taking into account the above facts and circumstances of the case and the settled rule position in the matter, we find that Applicants have not made out a case in their support. We therefore uphold the validity of the presidential letters/orders accepting the absorption of the Applicants in MTNL/BSNL and the Respondent 1s letters/orders dated 26.08.2008 and 29.09.2008 extended to the Group-A Officers presently working in the Government inviting them to exercise option for permanent absorption in MTNL/BSNL are also valid in law. The Original Applications being devoid of merits are dismissed. Let a copy of this order be placed in each of the 4 OAs. The respective parties will bear their own costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali)
Member (A) Chairman
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