Central Administrative Tribunal - Jabalpur
Sandeep Sawarkar vs M/O Communications on 3 March, 2021
1 OA No.200/376/2019
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/376/2019
Jabalpur, this Wednesday, the 03rd day of March, 2021
HON'BLE MR. RAMESH SINGH THAKUR, JUDICIAL MEMBER
HON'BLE MS. NAINI JAYASEELAN, ADMINISTRATIVE MEMBER
1. Sandeep Sawarkar, Son of Late Shri G.G. Sawarkar, aged about 54 years, G-
2/302, Fortune Signature, Bawadiya Kala, Bhopal (M.P.) - 462039.
2. Neeraj Khare, Son of Shri R.P. Khare, aged about 55 years, 129, Phase-I,
Riviera Town, Bhopal (M.P) - 462003.
3. Mansa Ram Rawat, Son of Shri U.S. Rawat, aged about 54 years, 13, Vinay
Nagar, RTO Road, Indore (M.P.) - 452009.
4. C.K. Shukla, Son of Shri R.S. Shukla, aged about 55 years, HIG DX-35,
Mahishmati (West) Arvind Vihar, Bagmugalia, Bhopal (M.P.) - 462001.
5. Vijay Kumar Nayak, Son of Late B.P. Nayak, aged about 44 years, B2-103,
Paras Urbane Park, Bawadiyakalan, Bhopal (M.P.) - 462001.
6. Gopi Chand Tolwani, Son of K.L. Tolwani, aged about 49 years, Type V/6,
BSNL Officers Colony, Sector 9B, Saket Nagar, Bhopal (M.P.) - 462001.
7. Yogesh Shrivastava, Son of G.K. Shrivastava, aged about 44 years, C1-402,
Paras Urbane Park Bawadiyakalan, Bhopal (M.P.) - 462026.
8. A.K. Pandey, Son of Late Dr. G.S. Pandey, aged about 57 years, H.No. 402,
Rohit Nagar, Phase - I, Bhopal (M.P.) - 462039.
9. Akhilesh Kumar Gupta, Son of M.L. Gupta, aged about 51 years, Tower II,
Flat No. 506, Samdariya Aastha Nagar, Gawarighat Road, Jabalpur (M.P.) -
482008.
Page 1 of 23
2 OA No.200/376/2019
10. Rajesh Kumar Soni, Son of P.C. Soni, aged about 50 years, H. No.36,
Sheetalpuri Colony, Baldeobagh, Jabalpur (M.P.) - 482002.
11. Malik Fareed Ansari, Son of A.R.S. Ansari, aged about 57 years, Flat No.
101, Block - B, Regalia Apartment, Kohefiza, Bhopal (M.P.) - 462001.
12. Shubhendu Tiwari, Son of late R.C. Tiwari, aged about 53 years, Tulip 354,
Ruchi Lifescape, Jatkheri, Bhopal (M.P.) - 462026.
13. Arpita Tripathi, Daughter of Madan Lal Lakhera, aged about 40 years, Blue
Bird 4, Aakriti Eco City, Premium Campus, Bawadiyakalan, Bhopal (M.P.) -
462001. -Applicants
(By Advocate - Shri Manoj Sharma through Video Conferencing)
Versus
1. Union of India through its Secretary, Department of Telecommunications,
Ministry of Communications & IT, Government of India, Sanchar Bhawan, 20,
Ashoka Road, New Delhi - 110001.
2. The Member (Services), Ministry of Communications & IT, Department of
Telecommunications, Government of India, Sanchar Bhawan, 20, Ashoka Road,
New Delhi - 110001.
3. The Deputy Secretary, Ministry of Communications & IT, Department of
Telecommunications, Government of India, Sanchar Bhawan, 20, Ashoka Road,
New Delhi - 110001.
4. Sr. G.M (Sales & Mrtg.) (FA, M.P. Telecom Circle, Bhopal, BSNL Bhawan,
Hoshangabad Road, Bhopal - 462001 -Respondents
(By Advocate - Shri D.S. Baghel for respondents Nos.1 to 3 and Shri P.K.
Mishra for respondent No.4 through Video Conferencing)
(Date of reserving order : 10.08.2020)
Page 2 of 23
3 OA No.200/376/2019
ORDER
By Ramesh Singh Thakur, JM.
The applicants, who are the members of Indian Telecom Service, are aggrieved by their continuous deputation in Bharat Sanchar Nigam Limited (in short 'BSNL'). They are seeking direction to the respondents for immediate repatriation from BSNL back to their parent department, i.e. Department of Telecommunication (in short 'DOT').
2. The applicants have sought for the following reliefs:
"8. RELIEF SOUGHT:
It is, therefore, prayed that this Hon'ble Tribunal be kind enough to :-
(i) To call for the entire material and records of instant controversy from the possession of respondents for its kind perusal;
(ii) To quash and set aside the impugned order dated 11.03.2013 (Annexure A/1) and 21.08.2015 (Annexure A/2) so far as it relates to applicants;
(iii) To command & direct the respondents authorities to repatriate the applicants immediately from BSNL to join DOT;
(iv) To command and restrain the respondents from affecting applicants in any manner whatsoever in pursuance to the impugned order dated 11.03.2013 (Annexure A/1) and 21.08.2015 (Annexure A-
2).
(v) To grant any other relief/s which this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case to the applicant;
(vi) Award the cost of the instant lis to applicant."Page 3 of 23 4 OA No.200/376/2019
3. From the pleadings, brief facts of the case are that the applicants belong to the cadre of Indian Telecom Service (ITS) and are Group-A officers of the Government of India and presently posted in BSNL. On 01.10.2000, BSNL was created as a corporate entity and the service provider function of DOT were entrusted to it. After creation of BSNL, the ITS officers engaged in the service provider functions of DOT, were sent on deemed deputation of 5 years to BSNL, without their consent. The applicants submits that in the options called for in the year 2011 vide communication dated 03.11.2011 (Annexure A-5), the last date for exercising option was fixed as 08.11.2011 and it was declared that w.e.f. this date all deemed deputation shall be over and all such ITS officers who have not opted for absorption in BSNL shall stand repatriated back to DOT and they were required to report to DOT immediately. However, only few ITS officers were relieved and hence they could not report back to DOT. Subsequently, the DOT issued the Office Memorandum dated 08.11.2011 (Annexure A-6), wherein it has been clarified that the officers who are to revert cannot abdicate their posts or refuse to perform their assigned functions or the duties and responsibilities until they are formally relieved by BSNL/MTNL. Thus, what was given by one hand, was taken by the other.
Page 4 of 23 5 OA No.200/376/2019 3.1 The exercise of en masse repatriation was done due to pendency of various litigations pending before the Hon'ble High Court of Delhi, wherein various ITS officers as also the Indian Telecom Service Association had filed a Writ Petition. The Hon'ble High Court of Delhi vide judgment dated 17.04.2012 (Annexure A-3) decided the bunch of Writ Petitions in favour of the petitioners therein with the direction to BSNL/MTNL to relieve the petitioners, who opt to revert to Government Service within two weeks of receipt of options from them. Thus, it was clear that two weeks' time from 17.04.2012 was available to all ITS officers to once again exercise their options whether they want to be absorbed in BSNL and the officers who did not opt to be absorbed in BSNL were to be relieved in two weeks thereafter. Since the department did not implement the judgment passed by the Hon'ble High Court at Delhi, the petitioners filed Contempt Petition before the Hon'ble High Court at Delhi. In the meantime, the DOT on 11.03.2013 (Annexure A-4) ordered en masse repatriation of all ITS officers who did not opt for absorption in BSNL. It was also mentioned in the order that the process of absorption stands concluded, which means that there would be no more absorption of ITS officers in BSNL. However, on the very same day i.e. 11.03.2013, the impugned order (Annexure A-1) has been passed Page 5 of 23 6 OA No.200/376/2019 undoing the entire en masse repatriation by deploying all the ITS officers so repatriated for a period of 10 years to BSNL on year to year decreasing basis w.e.f. 11.03.2013.
3.2 One similarly situated ITS officer, Shri S.D. Bind, who has been repatriated back to DOT in pursuance to the order dated 03.11.2011 (Annexure A-5) and was again sought to be re-deployed back to BSNL, has filed Original Application No.200/1018/2014 before this Tribunal, wherein, initially stay was granted in his favour and ultimately the Original Application was allowed vide order dated 23.11.2015 (Annexure A-7) and the order of seeking to deploy Shri S.D. Bind was quashed and set aside. 3.3 Further, on filing the Review Petition in W.P. (C) 22515/2005 by the respondents therein before the Hon'ble High Court of Delhi for clarification of the order passed in Writ Petition, the same was dismissed on 03.03.2015 (Annexure A-9). After dismissal of Review Petition, the respondents filed an affidavit before the Hon'ble High Court of Delhi in Contempt Petition and have undertaken to correct the order dated 11.03.2013 and repatriate the ITS officers from BSNL/MTNl to DOT. The process of repatriation of ITS officers was to commence from 01.07.2015, which was to be completed in Page 6 of 23 7 OA No.200/376/2019 06 months as per the affidavit filed in the Contempt Petition before the Hon'ble High Court of Delhi by the respondents-DoT (Annexure A-10). The respondents have repatriated about 200 Senior and Junior Administrative officers in DOT from BSNL and MTNL vide order dated 24.07.2015 (Annexure A-11). However, vide order dated 21.08.2015 (Annexure A-12), all the officers were deployed back to BSNL despite their unwillingness.
3.4 Subsequently, the respondents have called applications from ITS officers including those posted/deployed in BSNL on 05.12.2018 (Annexure A-16) for rotational transfer to DOT. All the applicants applied within the time limit. However, decision from respondents with respect to the applicants is still awaited.
3.5 The Patna Bench of this Tribunal in OA No.050/871/2014 (Vinod Singh and others vs. Union of India and others) has allowed the Original Application in favour of the applicant, which has also been affirmed by the Hon'ble High Court at Patna in CWJC 11111 of 2015 vide order dated 27.08.2018 (Annexure A-18).
Page 7 of 23 8 OA No.200/376/2019 3.6 The applicants continuously represented the matter before the respondents authorities for repatriation back to DOT and preferred representations (Annexure A-19 collectively). In response to DOT letter dated 05.12.2018 (Annexure A-16), all the applicants had applied in January 2019 for transfer to DOT. The DOT had published the list on 18.02.2019 (Annexure A-20) of all those officers who had applied to DOT in which names of all the applicants were appearing in the list. However, no action has been taken by the respondents.
4. The grounds for challenging the action of the respondents are that the order of repatriation dated 24.07.2015 (Annexure A-11) whereby almost all the officers were deployed back to BSNL, was passed despite unwillingness of all the applicants. The respondents have not followed the order dated 11.03.2013 (Annexure A-4) in true sprit by not repatriating back ITS officers working excess to sanctioned strength. Further, the respondents are deliberately violating the orders passed by the Hon'ble High Court at Delhi, whereby all such ITS/Group A officers, who have not opted for BSNL service, were required to be repatriated back to their parent department viz; DOT forthwith.
Page 8 of 23 9 OA No.200/376/2019
5. Respondents Nos.1 to 3 have filed their reply. It has been submitted that two Public Sector Undertakings viz; MTNL and BSNL were formed in pursuance of the policy decision taken by the Government to corporatise the service providing functions of the DOT. While MTNL was formed on 01.04.1986, BSNL came into effect from 01.10.2000.On corporatisation of the service providing functions of the DOT, the officers working in the erstwhile DOT, were transferred to BSNL/MTNL on deemed deputation basis. These officers were required to give option for absorption in BSNL/MTNL or revert back to the Government. With the formation of BSNL, the Government inserted Rule 37-A in the Central Civil Services (Pension) Rules, 1972 on 30.09.2000. Rule 37-A consolidated the instructions about conversion of a Department of the Central Government into a Public Sector Undertaking or an autonomous body and treatment of employees on such conversion.
5.1 The process of absorption of Group 'A' officers in BSNL/MTNL commenced in March, 2005. In order to seek their option, letter dated 24.03.2005 (Annexure R-1) was issued by the DOT. With a view to ensure uniformity with Group B officers, the Government decided that Group A Page 9 of 23 10 OA No.200/376/2019 officers may also be absorbed in MTNL/BSNL w.e.f. 01.10.2000. Since certain issues were raised by the Group A offices and their Associations, the DOT issued Consolidated General Terms and Conditions on 04.10.2005 (Annexure R-2), which incorporated original terms and conditions notified on 24.03.2005. In response to the letter dated 24.03.2005 (Annexure R-1), 1600 Group A officers of various Group A services, exercised their options for absorption in MTNL/BSNL. However, many Group A officers particularly belonging to ITS, refrained from exercising their option. 5.2 A number of OAs were filed by Group A officers before different Bench of this Tribunal challenging the terms and conditions of absorption contained in the letter dated 24.03.2005 and the Consolidated General Terms and Conditions of absorption issued on 04.10.2005. Initially, 17 OAs (OA No.1963/2005 with 16 other OAs) were transferred to Principal Bench of this Tribunal and these were considered and disposed of vide order dated 31.10.2005 with a direction to the respondent No.1 to extend the date of submission of options up to November 30, 2005 and to take appropriate decision on such options within a reasonable time.
Page 10 of 23 11 OA No.200/376/2019 5.3 Thereafter, the other 27 OAs pending before different Benches of this Tribunal (OA No.2661/2005 and 26 other OAs), were also transferred to the Principal Bench of this Tribunal and were disposed of vide order dated 28.02.2006 based upon the conclusions arrived in OA No.1963/2005 and other connected OAs. Against the orders dated 31.10.2005 and 28.02.2006 passed by the Principal Bench, various Writ Petitions were filed including Writ Petition (C) No.22515/2005 by Indian Telecom Service Association before Hon'ble High Court of Delhi. During the pendency of the Writ Petitions, a Committee including representatives of the Association was formed to discuss the absorption related issues in detail. The Committee made certain recommendations involving liberalization of certain terms already offered to Group A officers. Accordingly, the matter was placed by the DOT before the Cabinet on the subject, which was finally decided by the Cabinet in its meeting held on 24.07.2008. Pursuant to the Cabinet decision, revised option letter dated 26.08.2008 (Annexure R-3), calling option for absorption of Group A officers of various services in MTNL/BSNL was issued by the DOT, which incorporated the additional benefits/incentives approved by the Cabinet.
Page 11 of 23 12 OA No.200/376/2019 5.4 The Principal Bench vide order dated 01.06.2011 in OA No.3124/2009, directed the DOT not to give any further opportunity to its Group A officers, who continue to be on deemed deputation to BSNL and to repatriate them to their parent department. Accordingly, final opportunity was given to all Group A officers on 22.09.2011 (Annexure R-4) for exercising their option for absorption in BSNL/MTNL by 08.11.2011. The officers deemed deputation to BSNL/MTNL who had not opted for absorption in BSNL/MTNL till the last date prescribed for exercising option i.e. 08.11.2011, were ordered to be reverted/repatriated to the Government from 09.11.2011 onwards. Consequently, BSNL and MTNL relieved 434 Group A officers to join DOT. However, 1028 ITS officers working in BSNL/MTNL, were not relieved due to exigent requirement of those officers in the organisation.
5.5 The Writ Petitions (WP No.22515/2005 and connected Writ Petitions) filed against the orders dated 31.10.2005 and 28.02.2006 of Principal Bench, were finally disposed of by the Hon'ble High Court of Delhi vide judgment dated 17.04.2012 with the following observations:
"For the reasons stated hereinabove we dispose of these writ petitions in terms of the following directions:Page 12 of 23 13 OA No.200/376/2019
(i) The deemed date of absorption of the petitioners fixed as 1.10.2000, is held to be illegal, being contrary to Rule 37-A (4) of CCS (Pension) Rules;
(ii) The deemed date of permanent absorption of such of the petitioners who seek permanent absorption in BSNL/MTNL shall be 8.12.2005;
(iii) The petitioners before this Court are given an option, to be exercised within two weeks from the date of this order, to revert to the Government or to seek permanent absorption in BSNL/MTNL as the case may be;
(iv) Those Government servants who have already accepted permanent absorption w.e.f. 1.10.2000 will not be entitled to exercise a fresh option in terms of this order.
(v) BSNL/MTNL shall relieve such of the petitioners, who opt to revert to Government service within 2 weeks of receipt of options from them;
(vi) Such of the petitioners who opt to revert to the Government shall be appropriately redeployed by the Government in Government service through surplus cell of the Government. We have no doubt in our mind that the Government would not like to keep such of the petitioners who opt to revert to the Government idle and, subject to availability of the positions with it, give them such work as is deemed appropriate to be performed by them."
5.6 In pursuance of the Cabinet decision dated 13.02.2013 and in the context of the orders passed by Hon'ble High Court of Delhi, the DOT issued an order dated 11.03.2013 (Annexure A-4/R-5), whereby all Group 'A' officers including ITS officers presently working on deemed deputation in BSNL and MTNL who have not opted for absorption in these ogranisations, have been ordered to be repatriated in the DOT with immediate effect. The DOT vide order dated 11.03.2013 (Annexure A-1/R-6) has decided that all the ITS officers repatriated from BSNL through the repatriation order dated 11.03.2013 (Annexure A-4/R-5), be deployed in BSNL for a period of 10 Page 13 of 23 14 OA No.200/376/2019 years on year to year diminishing basis w.e.f. 11.03.2013 (AN) as per the requirement plan already given by BSNL to meet its exigent requirements. Similarly, on 11.03.2013 (Annexure R-8), an order was passed to extend the period of deemed deputation, without deputation allowance of officers belong to various Group A services of the DOT transferred to MTNL/BSNL till 11.03.2013 or till the concerned officers remained on deemed deputation in these organisations, whichever is earlier. Vide Annexure R-9 & R-10, the order dated 27.12.2011 issued by DOT for constitution of Surplus Staff Establishments for the officers of Indian P&T Accounts & Finance Service was withdrawn.
5.7 In compliance to the order dated 17.04.2012 of Hon'ble High Court of Delhi, only one officer of ITS Group-A had sought permanent absorption in BSNL/MTNL and rest ITS Group A officers did not opt for absorption in BSNL/MTNL and as per Hon'ble Court's order, these officers were to be appropriately redeployed by the Government. As regards redeployment of ITS officers through Surplus Cell of the Government, it has been submitted that the Office Memorandum dated 31.12.2012 (Annexure A-11) issued by the DoP&T inter-alia informed that the employees who are declared surplus will have difficulty in being sent on deputation to any PSU or other Page 14 of 23 15 OA No.200/376/2019 department unless some special dispensation is invoked. Once an employee is declared surplus, they would no longer be part of the ITS cadre and would not be eligible for any promotion. Therefore, it would not be feasible to send the surplus declared ITS officers on deputation.
5.8 So far as the Contempt Petitions pending before the Hon'ble High Court of Delhi, it has been submitted by the respondents that the position with regard to the orders dated issued by the DOT for repatriation of ITS officers and their deployment in BSNL and MTNL on year to year diminishing basis was reviewed in a meeting of COS headed by Cabinet Secretary. Consequent to this review, a short affidavit was filed by DOT in May 2015 before Hon'ble High Court of Delhi proposing repatriation of deployed ITS officers from BSNL/MTNL and their redeployment after some gap in these PSUs in batches to show its compliance of the order dated 17.04.2012 passed by the Hon'ble High Court. In terms of the above affidavit, the first batch of 93 ITS officers deployed in BSNL were repatriated to the DOT vide orders dated 24.07.201/29.07.2015. Thereafter, 85 ITS officers out of 93 repatriated officers were redeployed in BSNL vide order dated 21.08.2015 (Annexure A-2) issued to individual officers. It has been clearly mentioned in the order that deployment of the concerned officers Page 15 of 23 16 OA No.200/376/2019 in BSNL will be governed by the terms and conditions of deployment of ITS officers in BSNL and MTNL approved by the Union Cabinet. 5.9 A cadre review of ITS Group A officers was done on 29.12.2016 (Annexure R-12). After the cadre review, a total number of 1883 posts were finalized in which 853 posts were assigned to DOT, 310 posts as deputation reserve to other Departments/Organisations and 720 posts for posting to BSNL/MTNL as a special diminishing reserve. The decision to operate 720 posts of ITS cadre in BSNL/MTNL, diminishing on yearly basis, was taken to best utilize the remaining ITS officers in the light of orders passed by Hon'ble High Court of Delhi and hence these officers have been working against cadre posts of ITS officers in the PSUs. Thus, all Group 'A' ITS officers presently working in BSNL/MTNL against diminishing reserve post of ITS cadre are employees of DOT. They have their seniority as per common seniority list maintained by DOT for ITS Group A officers and they are considered for promotion along with officers of Group A ITS working in DOT. They also draw salary as per Government pay scales and their service conditions are the same as of other ITS Group A officers working in DOT. Page 16 of 23 17 OA No.200/376/2019 5.10 The respondents Nos.1 to 3 have also submitted that the BSNL and MTNL are the largest and important public sector companies and have a crucial role to play in stabilizing the telecom market. Thus, deployment of ITS officers in BSNL for a period of 10 years on year to year diminishing basis is as per the requirement plan given by BSNL to meet its exigent requirements, Further, rotation transfer/posting in ITS cadre is a routine exercise which is undertaken by Cadre Controlling Authority as per transfer/posting policy of the cadre following the due procedure. 5.11 It has further been submitted by respondents Nos.1 to 3 that the order dated 21.08.2015 (Annexure A-2) was challenged by one similarly placed ITS Group A officer against his deployment in BSNL before Patna Bench of this Tribunal by filing Original Application No.051/238/2015 and the same was dismissed vide order dated 17.02.2017 (Annexure R-13). 5.12 The respondents have also raised the objection regarding the maintainability of the Original Application on the ground of delay as the impugned orders dated 11.03.2013 (Annexure A-1) and 21.08.2015 (Annexure A-2) issued by DOT are more than 03 years old and the applicants Page 17 of 23 18 OA No.200/376/2019 have filed this Original Application in the year 2019 without filing any application for condonation of delay.
6. Respondent No.4 (BSNL) has also filed reply, wherein it has been submitted that the BSNL is only following the orders of Government of India in regard to the deployment of ITS officers and the matter of dispute is entirely between the applicants and the Union of India. BSNL is a service provider organisation and is duty bound to provide services as per the needs of the situation. Therefore, it is necessary to deploy appropriate personnel at key locations to keep the functioning of various services properly. Further, the BSNL is in the process of revival and a scheme of VRS was launched in 2019 to reduce burden of expenses. Under the said scheme, many officers took voluntary retirement creating a severe scarcity of top administrative and executive positions in the organisation. Under such circumstances, more experienced ITS officers are required for the organisation.
7. We have heard the learned counsel for the parties and perused the pleadings and the documents available on record.
8. The matter of deputation/deployment of ITS officers with BSNL/MTNL has been dealt with by the Hon'ble Delhi High Court in Writ Page 18 of 23 19 OA No.200/376/2019 Petition (C) No.22515-22518/2005 and vide order dated 17.4.2012 (Annexure A-3), the Hon'ble Delhi High Court had directed that the officers who have not given option for absorption with BSNL/MTNL shall be given an option to be exercised within two weeks from the date of the said order to revert to the Government or to seek permanent absorption in BSNL/MTNL as the case may be, and that BSNL/MTNL shall relieve such of the petitioners who opt to revert to Government service within two weeks of receipt of option from them. In consequence of these orders the Government of India passed two orders on same date, i.e. 11.3.2013 (Annexure A-1 & A-
4). While in the order at Annexure A-4, all the persons who had not opted for absorption were ordered to be repatriated to the DOT with immediate effect, by the second order at Annexure A-1, all these officers were deployed in BSNL for a period of 10 years, on year to year diminishing basis w.e.f. 11.3.2013. These orders were challenged before the Hon'ble High Court of Delhi in Contempt Petition No.243/2013, wherein vide order dated 18.12.2014 (Annexure A-8), the Hon'ble High Court observed as under:
"(1).After hearing the learned counsel for the parties, I am satisfied that the respondents in gross violation of the order dated 17.04.2012, in issuing the two orders dated 11.03.2013 as not only the orders have Page 19 of 23 20 OA No.200/376/2019 not been complied with both in letter and spirit, but also being perpetuated by continuing the disobedience.
(2). The petitioner is directed to file a list of officers who have opted for absorption and a separate list shall be filed with respect to the officers who have opted for repatriation. Both these lists shall be filed along with an affidavit and the list must indicate the dates when the option was exercise for absorption or for repatriation and all other relevant details as may be deemed fit by the petitioner."
9. The respondent-DOT thereafter filed an affidavit (Annexure A-10) before the Hon'ble Delhi High Court, wherein they have mentioned that there are about 790 ITS officers, which may have to be recalled to the DOT, and further that BSNL & MTNL will repatriate the officers in batches of around 100 officers to the DOT so as to obviate major dislocation of personnel and consequent disruption of services. It has been further mentioned in the said affidavit that the first batch of around 100 ITS officers will be repatriated by BSNL/MTNL on or around 01.07.2015, and fresh orders for deployment of the repatriated officers in BSNL and MTNL will be issued by the DOT to ITS officers, and this process will be repeated at reasonable periods, till repatriation and deployment of all officers is completed in six months. Thereafter a Review Petition No.71/2015 in aforementioned Writ Petition (C) No.22515/2005 was filed wherein the respondents had sought clarification of Page 20 of 23 21 OA No.200/376/2019 the judgment dated 17.4.2012. However, the Hon'ble Delhi High Court vide order dated 03.03.2015 (Annexure A-9) dismissed the said Review Petition by observing that "no such clarification is required and the judgment is absolutely clear".
10. As per the application filed by respondents Nos.1 to 3 in compliance of the order passed by this Tribunal on 19.02.2020, it has been stated that at present 439 ITS officers are deployed in BSNL. It has also been stated that the ITS officers presently deployed in BSNL are very less in comparison to present requirement and the BSNL has requested for deployment of additional 50 SAG and 150 JAG level officers. We find that a list has been appended with Annexure A-15, whereby requirement plan of BSNL and MTNL for ITS officers has been published, according to which total 293 officers can be deployed in BSNL for the year 2020-21, which has been subsequently finalised in the cadre review of Group 'A' ITS officers by the DOT by issuing Office Memorandum dated 29.12.2016 (Annexure R-12) in pursuant to the approval given by the Cabinet. However, it has been submitted by the applicants that presently 439 ITS officers are deployed in BSNL and as per Annexure A-15/R-12,146 ITS officers are surplus. We also Page 21 of 23 22 OA No.200/376/2019 find that BSNL has allowed voluntary retirement to its employee as per the scheme launched by them and a number of employees including the HAG, SAG and JAG officers have also been allowed to take voluntary retirement. Thus, on the one hand, the BSNL is seeking deployment of additional SAG and JAG officers on count of work requirement and on the other hand, officers to that rank have been allowed to retire voluntarily by the BSNL as per their scheme.
11. It is undisputed that DOT has, through the affidavit of the Joint Secretary of the Department filed in Contempt Case No.243/2013 before the Hon'ble Delhi High Court, committed to repatriate all the ITS officers to the Government in batches and this process was to be completed in six months' time. In the order dated 21.5.2015 of Hon'ble Delhi High Court reference to this affidavit has been made. Thus, it can be inferred that the six months' period has come to end before 30th November, 2015. The contention of the applicant's counsel is that all the applicants fall in the category of those who have not opted for absorption with BSNL and are therefore entitled for repatriation to DOT. However, from the record it is not clear as to whether the applicants have exercised the option to be repatriated to the DOT. Thus, Page 22 of 23 23 OA No.200/376/2019 in such situation, if the applicants give clear unconditional option for non- absorption in BSNL then only the question of their repatriation to DOT will arise. Even according to the orders of Hon'ble Delhi High Court dated 17.4.2012, the ITS officers who had not yet opted for their absorption in BSNL/MTNL had to give their option within two weeks from the date of that order.
12. In this view of the matter, this Original Application is disposed of with directions to the applicants to submit their clear cut options for their repatriation to DOT, within a period of two weeks from the date of this order and on receipt of the same the DOT is directed to take a decision within a period of 60 days thereafter. We make it clear that if any of the applicants, who do not file any option within this period, shall have to join at the places of their new posting as mentioned in Annexure A-21 (collectively), without any further delay. No order as to costs.
(Naini Jayaseelan) (Ramesh Singh Thakur)
Administrative Member Judicial Member
am/-
Page 23 of 23