Central Administrative Tribunal - Mumbai
Pawan Singh Sukhdev Singh vs Bharat Sanchal Nigam Limited on 30 April, 2025
1 OA No.366/2016
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI
ORIGINAL APPLICATION No.366 OF 2016
Dated this Wednesday, the 30th day of April, 2025
CORAM : HON'BLE MR.SHRI KRISHNA, MEMBER (A)
HON'BLE MR.UMESH GAJANKUSH, MEMBER (J)
Shri Pawan Singh S/o Sukhdev Singh,
Rajbhasha Adhikari aged 42 years,
O/o Chief General Manager,
BSNL, Admn Building, Juhu Danda,
Santacruz (W), Mumbai - 400 054.
Residing at:
A-21, Tarang Vihar,
P&T Colony, R.A. Kidwai Road,
Wadala (W), Mumbai - 400 031. .. Applicant.
( By Advocate Shri G.B. Kamdi ).
Versus
1. Bharat Sanchar Nigam Ltd.,
through Chairman & Managing Director,
Bharat Sanchar Bhawan H C Mathur
Lane Janpath, New Delhi - 110 001.
2. The Chief General Manager,
BSNL Maharashtra Circle,
Admn Building, Juhu Danda,
Santacruz (W), Mumbai - 400 054.
3. The Union of India, through
The Secretary of the Government of India,
Ministry of Communication,
(Department of Telecommunications),
Sanchar Bhawan, New Delhi - 110 001. .. Respondents.
(By Advocate Dr.V.S. Masurkar for R-1 & 2 and Sr. Advocate
Shri R.R. Shetty, a/w Shri P. Khosla for R-3).
2 OA No.366/2016
Order reserved on : 17.12.2024
Order pronounced on : 30.04.2025.
ORDER
Per : Umesh Gajankush, Member (J)
By way of present O.A., the applicant seeks to challenge the order dated 09.11.2012 by which the respondent no.2 has cancelled the Presidential Order dated 15.02.2002 without any authority and further the respondent nos.1 and 2 had rejected the representations by which the applicant had requested to restore the Presidential Order and GPF system.
2. Brief facts of the case are that in pursuance of the Advertisement published in the year 1999 by Staff Selection Commission for the post of Junior Hindi Translator in the Office of Government of India the applicant had selected. Accordingly he was allotted Department of Communications, Maharashtra Circle. The Chief General Manager had issued order for medical test being a pre-appointment formality. However, the Department of Telecommunications had converted the services of Telecommunications in the newly formed company as Bharat Sanchar Nigam Ltd. (BSNL) with effect from 01.10.2000 and hence the appointment order dated 18.07.2001 of the applicant has been issued by the office of Chief General Manager, BSNL, Maharashtra Circle and accordingly he joined his duties.
3 OA No.366/20162.1. As a policy of Department of Telecommunications, the Presidential Order dated 15.02.2002 had been issued by the authority designated by the Department of Telecommunications. Since the Presidential Order was issued the applicant was treated as on deemed deputation in BSNL, the GPF contribution was being recovered from his salary and as per the Presidential Order he was entitled for pensionary benefits. However, after some time i.e. in the year 2009, the respondents has stopped the recovery of GPF Contribution and started the recovery of EPF without any intimation or notice to the applicant. Thereafter, the applicant had represented to the respondents to restore the facility of GPF and pensionary benefits. But instead of accepting the request of the applicant, a show cause notice dated 03.08.2012 was issued by the Dy. General Manager (HR/Admn) after 10 years for cancellation of Presidential Order.
2.2. The applicant had submitted his reply to the show cause notice and submitted that he was recruited by the Staff Selection Commission in the Department of Telecommunications in pursuance of advertisement published in the year 1999 and was appointed by BSNL after formation of Corporation. Hence he is entitled for all the benefits which are applicable in the case of absorbed employee in BSNL by letter dated 27.08.2012. However, without considering the 4 OA No.366/2016 factual position the Director (Estt.) of the BSNL, Maharashtra Circle has issued an order of cancellation of Presidential Order vide order dated 09.11.2012. It is submitted that since the Presidential Order was issued by the Department of Telecommunications and BSNL cannot cancel the said order without statutory power. Therefore, another representation dated 09.11.2012 and further representation dated 31.01.2013 was submitted.
2.3. Further, vide representation dated 01.04.2013 applicant has submitted copy of letter issued by the Department of Telecommunications in case of JE(E) recruited by DOT and appointed by BSNL, Kerala Circle and intimated that his case is also covered under the similar situation. However, the AGM (Estt.) (Office of Respondent No.2) has intimated vide 04.07.2013 and 07.12.2013 that BSNL Hq. had considered the matter but rejected the same vide letter dated 24.05.2013 and 25.11.2013. Thereafter, appeal was submitted to the Secretary, DOT i.e. Respondent No.3 vide letter dated 27.03.2013. However, no reply was received from Respondent No.3, but the office of Respondent No.2 had rejected the request of the applicant vide letter dated 28.03.2015, therefore, the present O.A. was filed on the ground that cancellation of the Presidential Order after a long period of more than 10 years without any justification is arbitrary and illegal. It is submitted that 5 OA No.366/2016 cancellation of Presidential Order and rejecting the pensionary benefits to the applicant even though he was recruited and selected by Government of India created discrimination and applicant is deprived from the legitimate benefit.
3. After notice, the respondent nos.1 and 2 have filed their reply and contested the O.A. 3.1. It is submitted that in accordance with the Government decision to convert the DTS/DTO into BSNL with effect from 01.10.2000, under DTS Memo No.2-29/2000-Restg. dated 30.09.2000, employees working in DOT were asked to exercise their option to BSNL/retention of Government status. It is submitted that pension Rule 37-A is applicable to employees of DOT employees, who exercised the option to BSNL as per guidelines dated 09.11.2000 applicable employees of DOT, who were absorbed in BSNL at that time.
3.2. It is further submitted that the employee of erstwhile of DOT and who subsequently absorbed in BSNL, only to those employees Rule 37-A of CCS (Pension) Rules is applicable, as the applicant is not covered under Rule 37-A of CCS (Pension) Rules. It is also submitted that the Maharashtra Telecom Circle comes under Corporate Office, New Delhi. The applicant's appointment order issued on BSNL letter head along with emblem of logo. The 6 OA No.366/2016 applicant appointed as Junior Hindi Translator through Staff Selection Commission against the outsider quota. The Presidential Order was issued on behalf of DOT by the Director (Estt.) appointed by DOT as such the designated officer can cancel the Presidential Order as per direction issued by BSNL, Corporate Office, New Delhi letter No.BSNL/4/SR/2002/Vol.III (Pt) dated 30.12.2008. The Presidential Order is cancelled by Director (Estt.) appointed by DOT and the said decision is valid.
4. On the basis of reply, it is prayed that the O.A. may be dismissed.
4.1. Respondent No.3 has also filed separate reply stating that the applicant was appointed as an employee of BSNL by an order dated 18.07.2001 issued by Assistant General Manager (ST), BSNL. The said order clearly mentions that, "...the following candidate sponsored by the Staff Selection Commission for appointment as JUNIOR HINDI TRANSLATOR in Maharashtra Telecom Circle against the outsider quota of vacancies...". The Presidential Order is dated 15.02.2002, said order mentions that, "...SHRI PAWAN SINGH a permanent / temporary employee of the Department of Telecommunications in BSNL with effect from the date and under the terms and conditions as indicated below." From perusal of above two letters, it is clear that admittedly the applicant was never an 7 OA No.366/2016 employee of the Department of Telecommunications, either temporary or permanent, and that the appointment of the applicant was in the outsider quota of vacancies as opposed to the absorption of employees who were already employees of Department of Telecommunications. In view thereof the Presidential Order dated 15.12.2002 had no occasion to be issued, the applicant being a direct appointee of BSNL. As such the Presidential Order is rightly cancelled.
4.2. It is submitted that in view thereof the Presidential Order dated 15.12.2002 had no occasion to be issued, the applicant being a direct appointee of BSNL. Had the applicant been an employee of DOT, the absorption would have taken effect. Therefore, the reliance of the applicant on Rule 37-A of the CCS (Pension) Rules is misplaced, in as much as the said rule applies to only the employees who were employees of DOT and who were absorbed in BSNL and not employees who were directly appointed to BSNL. 4.3. It is further stated that Rule 37-A of Pension Rules reads as "Conditions for payment of pension on absorption consequent upon conversion of a Government Department into a Central Autonomous Body or a Public Sector Undertaking" itself clarifies that the said Rule is applicable to employees who were previously working with a Government Department and were later absorbed in an Autonomous 8 OA No.366/2016 Body or Public Sector Undertaking and not to employees of Public Sector Undertaking like the applicant. As such the same would not apply to the applicant, he being a direct appointee of BSNL. It is, therefore, clear that the OM dated 09.11.2000 clearly does not cover the applicant, since the applicant was never absorbed but directly appointed by BSNL.
4.4. It is further stated that in Para 4.8 of O.A., the applicant admits that the appointment letter was issued by BSNL and posted at Kolhapur. It is further stated that merely because pre-recruitment formalities were attended to do not confer any right of appointment to the applicant with the Government Department. In respect of the option form it was stated that there was no occasion to get such form filled since the applicant was never absorbed employee but a direct appointee of BSNL. It is further submitted that since the applicant is a direct appointee of BSNL, the Presidential Order is erroneously issued.
4.5. It is an admitted fact that there is no appointment order issued by the DOT to the applicant. In addition to that, the appointment order, dated 18.07.2001 issued prior to the Presidential Order by BSNL clearly mentions that, "...the following candidate sponsored by the Staff Selection Commission for appointment as JUNIOR HINDI TRANSLATOR in Maharashtra Telecom Circle against the outsider 9 OA No.366/2016 quota of vacancies...". It is, therefore, clear that the Presidential Order erroneously mentions that the applicant is a "permanent/temporary employee" when he never was such an employee. In view thereof there was no occasion for issuing the Presidential Order and as such the Presidential Order was void ab initio.
4.6. It is further submitted that the Presidential Order was issued by Director (Estt.) who was nominated in BSNL for this purpose. The Presidential Order was withdrawn by Director (Estt.) in Maharashtra Telecom Circle. The Director (Estt.) has been exclusively nominated / appointed for such purpose and the cases of issuance of orders of absorption and other related works are performed by the Director (Estt.) without any reference to DOT Headquarters. As such, the designated officer can cancel the Presidential Order as per direction issued by BSNL, Corporate Office, New Delhi letter dated 30.12.2003.
4.7. It is stated that the judgment of the Hon'ble Ernakulam Bench of CAT is not applicable in case of the applicant since the applicants in that judgment were already in service of DOT as casual labourers and the applicant on the other hand is appointed directly by BSNL and was never working with the DOT and in view of this the applicant's request was rejected. The representations of the 10 OA No.366/2016 applicant were rejected in view of the fact that he is a direct appointee of BSNL and not a previous employee of DOT who was absorbed in BSNL.
4.8. In further reply dated 21.04.2021, it is stated that the Presidential Order was issued to employees of DoT absorbed in BSNL with effect from 01.10.2000. Presidential Order has been inadvertently issued to the applicant who has been issued appointment order as Junior Hindi Translator vide BSNL letter dated 18.07.2001 i.e. after formation of BSNL. Presidential Order is issued only in respect of erstwhile DoT employees i.e. employees working in DoT on or before 30.09.2000 and who have given option to be absorbed in BSNL after formation of BSNL with effect from 01.10.2000. The applicant's appointment order was issued by BSNL. The applicant was appointed as Junior Hindi Translator through Staff Selection Commission against the outsider quota. However, the date of appointment of applicant is 18.07.2001 which is after formation of BSNL.
4.9. It is further submitted that the cases where the recruitment process was initiated by DoT before formation of BSNL but the appointment order was issued by BSNL, are being dealt by BSNL and they are treated as BSNL employees. As such, the applicant's appointment after 01.10.2000 is treated as BSNL employee. 11 OA No.366/2016
5. Thereafter rejoinder was filed by the applicant and official respondents have filed sur-rejoinder explaining and elaborating their stand.
5.1. In sur-rejoinder, the official respondent no.3 has stated that BSNL was formed on 01.10.2000 by conversion of the erstwhile Department of Telecom Services (DTS) and Department of Telecom Operations (DTO) into a Public Sector Undertaking (PSU). The Government employees in these two Departments were first transferred en-masse to BSNL on deemed deputation basis. These employees were later given option to either continue to be in Government Service or to seek permanent absorption in BSNL. Those employees who opted for absorption in BSNL, Presidential Orders were issued in their favour laying down comprehensive terms and conditions of their absorption in BSNL with effect from 01.10.2000 in accordance with Rule 37-A of CCS (Pension) Rules, 1972. Order No.27-1/2001-SNG dated 13.11.2001 was issued by DoT to all Telecom Circle (BSNL) enclosing therewith the draft proforma for issue of POs and the list of designated officers, who has to issue POs in respect of all Group 'C' and 'D' employees of erstwhile DTS and DTO.
5.2. It has been submitted that the designated officers are to work under DDG (Estt.) with effect from 20.11.2001 and are to sign POs 12 OA No.366/2016 in his capacity as Director (Estt.xxx) of the concerned Telecom Circle (BSNL). Circle Headquarter (BSNL) to remain the Headquarter of the designated officers and they are to draw pay and allowances from concerned circles (BSNL). From the above order it is clear that Director (Estt.xxx) were nominated on behalf of DoT in various circles of BSNL for issue of POs. DoT also issued a clarificatory order dated 13.09.2002 clarifying certain points regarding issue of POs. In this order, it has been clarified that POs already issued needing corrections etc. and where corrigenda are required to be issued at a later date in the POs already issued, the same are to be signed by the designated officers of BSNL. However, where the designated officers of BSNL have already retired from service, the work was assigned to DGM (Admn) of the concerned BSNL Circle, who are to sign the POs on behalf of DoT in the capacity of Director (Estt.xxx). Thus, it is clear that where POs were issued inadvertently, the same were to be cancelled by the designated Director (Estt.xxx) or DGM (Admn) of the concerned BSNL Circle. The applicant was appointed by BSNL after its formation on 01.10.2000. His PO was issued by the designated officer of BSNL inadvertently and on realizing the mistake, it was cancelled by the designated officer of BSNL itself. In view of the above, the designated Director (Estt.xxx) in BSNL needs to be read as Director (Estt.) in BSNL and further to 13 OA No.366/2016 be more clear, it is to be interpreted as Director (Estt.), DoT in BSNL.
6. We have heard learned counsel for the parties and perused the record.
7. Learned counsel for the applicant vehemently argued that in selection process issued by the Staff Selection Commission, the applicant had participated in the selection process. Thereafter, pre- appointment formalities including medical examination was carried out by the Department of Telecommunications on 12.10.2000, however, with effect from 01.10.2000 as per the Policy dated 30.09.2000, the services of Telecommunications has been transferred to BSNL as newly formed Company and, therefore, order dated 18.07.2001 (Annex-A-11) was issued by the authority of BSNL, Maharashtra Circle, Mumbai. Thereafter, requisite option form for absorption in BSNL, retention of Government status was filled in by the applicant on 30.07.2001. Thereafter, Presidential Order dated 15.02.2002 was issued by the Director (Estt-MH-II) DOT observing that in accordance with the provisions of Rule 37-A of CCS (Pension) Rules, as amended from time to time sanction of the President is hereby conveyed to the permanent absorption of the applicant in BSNL. The aforesaid order clearly states about grant of pension, gratuity and other benefits. However, after lapse of more than 10 years show cause notice dated 03.08.2012 was issued to the 14 OA No.366/2016 applicant in respect of cancellation of Presidential Order dated 15.02.2002 which was duly replied. However, without considering the reply properly vide order dated 09.10.2012, the Presidential Order has been cancelled. Against the aforesaid order representations and appeal was submitted to the authorities, however, the same were rejected.
8. The learned counsel vehemently argued that when the selection process was initiated by the Staff Selection Commission for appointment in the Government of India Department and in respect of the applicant Presidential Order was issued by the authority of DoT, therefore, the same cannot be cancelled that too after a period of 10 years. The cancellation is without authority of law. It is further submitted that in view of Rule 37-A of the Pension Rules, the applicant is entitled for all the benefits as a Government employee.
9. During course of arguments, learned counsel relied on the order passed by C.A.T., Ernakulam Bench in O.A.289/2012 in case of Rejilamoni O.A. vs. Union of India & 3 others. Further it is submitted that since the recruitment process was initiated by the DoT before creation of BSNL and, therefore, even though the applicant was appointed in BSNL after their selection, the applicant is entitled to be same service benefits as available to those DoT employees 15 OA No.366/2016 who were transferred on deemed deputation basis to BSNL on its creation. Similar issue has been considered by the CAT, Lucknow Bench in T.A.No.332/00002/2016 in Writ Petition No.6808/2005 in the case of Pradeep Kumar & Others vs. Union of India and others and in the said case the respondents are directed to extend the said applicant the said status, benefits, perquisites and other facilities, including GPF and pensionary benefits, as are admissible to the DoT absorbed employees presently working in BSNL following its creation with effect from 01.10.2000, from the date of their appointment/joining.
10. He has also relied on the order passed by the Hon'ble High Court of Kerala at Ernakulam in OP (CAT) No.63/2017 (Z) decided on 13.11.2019 in case of Abdul Rasheed A.A. & Others Vs. Union of India.
11. On the other hand, learned counsel for the respondents while supporting the impugned orders / action, submitted that the applicant was never absorbed in BSNL, in fact he was appointed by the BSNL first time after 01.10.2000 i.e. after formation of BSNL vide order dated 18.07.2001 (Annex-A-11) and, therefore, Rule 37-A of the Pension Rules are not applicable in the case of the present applicant. Further, it is submitted that regular appointment order was issued by the authority of BSNL on 24.02.2004 on the post of Junior Hindi 16 OA No.366/2016 Translator in the Maharashtra Telecom Circle. So far as the reliance placed by the applicant on the Presidential Order dated 15.02.2002 is concerned a specific stand has been taken by the Respondent No.3 in their reply that the said order is void ab-initio and, therefore, the same was cancelled by the Competent Authority who has given power as per Annexure-RR-1. It is further contended by Respondent No.3 that in fact the Presidential Order dated 15.02.2002 was issued by the Director after formation of BSNL on the premise of permanent absorption. However, since prior to formation of BSNL on 01.10.2000 applicant was never appointed by the Department of Telecommunications and, therefore, there was no question of any absorption. It is further contended that after order dated 18.07.2001 issued by BSNL and order dated 24.02.2004 again by the authority of BSNL, applicant has never raised any objection and accepted the conditions contained therein and joined service in the BSNL and, therefore, on the principle of promissory estoppel, he is not entitled for any relief.
12. During course of the arguments, learned counsel for Respondent No.3 places on record letter dated 27.02.2020 which was issued on the subject of cancellation of POs (Order of absorption) of employees recruited by BSNL on or after 01.10.2000 to contend that in any erroneous administrative order vide which any 17 OA No.366/2016 ineligible employee has erroneously covered by Rule 37-A of CCS (Pension) Rules is ab-initio void and attracts doctrine of ultra vires, for which necessary correction / rectification may be made by the Director (Estt.) nominated in Telecom Circle by passing a reasoned and speaking order clarifying the aforesaid rule position read with instructions on the subject. Another letter dated 23.02.2021 is also placed on record. On that basis it is submitted that the cancellation of the Presidential Order made by the Competent Authority and prior to which show cause notice was issued to the applicant and, therefore, principles of natural justice has been followed.
13. Learned Sr. Standing Counsel also supported his stand on the principle of estoppel on the basis of following judgments:
(i) Suman Devi and others vs. State of Uttarakhand and others, (2021) 6 SCC 163;
(ii) M. Ramanatha Pilla Vs. State of Kerala and another, (1973) 2 SCC 650;
(iii) Ashish Kumar Vs. State of Uttar Pradesh and others, (2018) 3 SCC 55;
(iv) Malik Mazhar Sultan and another vs. U.P. Public Service Commission and others, (2006) 9 SCC 507;
(v) Vikas Kumar Gupta & others vs. The Union of India & Others, High Court of Jharkhand at Ranchi in W.P.(S) No.2330/2022 decided 18 OA No.366/2016 on 07/16.11.2022;
(vi) A. Mohammed Siraj & Others Vs. Union of India & Others, in O.A.310/00087/2023 decided on 26.07.2024 by the C.A.T., Chennai Bench; and
(vii) Arif Saeed vs. Union of India & Others, Diary No.2184/2021 decided on 01.12.2021 by the C.A.T., Allahabad Bench.
On the aforesaid basis, learned Sr. Counsel submits that there is no force in the present O.A. and the same is liable to be dismissed.
14. After hearing learned counsel for the parties and after perusal of record, it is not in dispute that although the Staff Selection Commission initiated the recruitment process prior to 01.10.2000 in which the applicant had participated and some of the pre- appointment formalities was carried out by the Department of Telecommunications. However, it is also not in dispute that the OM dated 30.09.2000 was issued by the Government of India for setting up of BSNL with effect from 01.10.2000. Further, it is also not in dispute that the order dated 18.07.2001 was issued by the authority of BSNL, Maharashtra Circle, Mumbai. The order clearly states that the applicant has been sponsored by the Staff Selection Commission for appointment as Junior Hindi Translator in Maharashtra Circle against the outsider quota of vacancy for the year 1998. The aforesaid order also states that after receipt to the 19 OA No.366/2016 date of joining the regular appointment order will be issued. The applicant has never made any protest to the aforesaid order on the ground that since he was participated in the selection process conducted by the Staff Selection Commission for appointment as Junior Hindi Translator and, therefore, the BSNL has no authority to issue such order. In fact accepting the aforesaid order without any demur he has joined in the Maharashtra Circle on 30.07.2001. Thereafter appointment letter dated 24.02.2004 was issued by the Dy. General Manager, BSNL. This order was also accepted by the applicant without any protest.
15. Although the main thrust of the applicant on the basis of Presidential Order dated 15.02.2002 is concerned the said order states that the applicant was absorbed being the employee of Department of Telecommunications in BSNL, but fact remains that prior to 18.07.2001 or 01.10.2000, applicant was never appointed by DoT. At this stage it is relevant here to observe that similar issue was the subject matter in case of Vikas Kumar Gupta (Supra) of the Hon'ble High Court of Jharkhand at Ranchi which was decided the issue against the said applicants. Relevant paragraphs of aforesaid judgment are reproduced herein below:
"3. The original application was made for the following reliefs:
a) For setting-aside/Quashing the order No. For 20 OA No.366/2016 setting aside/Quashing the order No. the order No. St./5-111/JKD-2021/Misc/31, St/5-111/JKD-2021 Misc/32, St/5-111/JKD-2021/Misc/33 and St/5-
111/JKD-2021/Misc/34, dated 22.09.2021, whereby request of the applicant no.1 and 2 for grant of status of Dot employee absorbed in BSNL and benefits under the rule 37A of CCS (Pension) Rule 1972 was rejected on ground that "applicants have joined BSNL after 01-10-2000 so he is BSNL recruited and Benefit under rule 37A of CCs Pension Rules, 1972 is not applicable to him.
b) For issuance of direction/Direction(s) upon the respondents to granting the Status of DOT (Department of Telecom) employee of DoT employee absorbed in BSNL (Bharat Sanchar Nigam Limited) in view of the recruitment process was initiated by the Department of Telecom (DoT) and completed by the Bharat Sanchar Nigam Limited without any modification / rectification / of the advertisement.
c) For the issuance of direction/Direction(s) upon respondents for getting all the benefits of old Pension cum GPF scheme in view of the fact that the recruitment has been done against the vacancy year 1999 and Regulated & Guided by the TTA Recruitment Rule 1998 (amended 1999).
d) For issuance of direction/Direction(s) respondents to extend/cover the pension benefit according to upon the Rule 37-A of CCS kPension rule 1972 and O.M. No.57/04/2019-P & PW (B) dated 17 February 2020, issued by the Government of India, Department of Pension and PW.
e) For issuance of direction/Direction(s) upon the respondents to extend all consequential benefits according to TTA Recruitment Rule 1998 (Amended 1999).
f) For grant of any other reliefs deemed fit and proper in the facts and circumstances of the case 21 OA No.366/2016 in favour of the applicants.
g) Cost of the application may also be granted in favour of the applicants.
h) The applicants may be allowed to file joint"
4. Applicants argued that the advertisement under which they were appointed under BSNL in the year 2002, was issued by the Department of Telecom, Government of India. Their GPF was deducted initially from their salary but discontinued. Therefore, they bore a legitimate expectation of being treated as DOT employees. They persisted with representation before the respondents to treat them as DOT employees and grant them the benefit of Rule 37A of CCS (Pension) Rule, 1972. However, their representations were rejected finally on 22.09.2021. Thereafter, the instant O.A. was preferred in the year 2021 itself.
5. The learned Tribunal after taking note of the case of the parties held as under:
7. It is not disputed that examination was conducted and result was declared by BSNL and appointment letters were also issued by the BSNL.
Appointment letter shows the status of applicant as BSNL employee and not the employee of DOT.
Applicants were appointed in year 2002 and at that time they any objection of their being employee of BSNL. It is only in year 2021 they pressed the claim for granting status of employee of Department of Telecommunication (DOT) absorbed in BSNL. The representation which has been rejected vide impugned order, Annexure A/7 bears dated 30/7/2021. It is not the case where the employee was appointee of DOT and later on was absorbed in BSNL, applicants were given appointment by BSNL and they legally have no right now to agitate that they are not employee of BSNL and that too after 19-20 years of their appointment. As far as contention of Ld counsel that it is a case where legitimate expectation of applicant to treat them as DOT employee needs to 22 OA No.366/2016 be considered relates, legitimate expectation for grant of relief must be of nature wherein in entirety of facts one can reasonably infer or believe existence of some facts and that inference should not be hyper technical or whimsical. Instant case is not of that nature wherein even a person of ordinary prudence could assume that he is the employee of DOT when the very appointment letter is that of BSNL. The O.A. is not only devoid of merits but also badly covered by delay and latches. The OA deserves dismissal and hence is dismissed. Pending MA also stand disposed of accordingly."
...
...
10. We have considered the submissions of learned counsel for the parties and taken note of the pleadings borne from the records. The claim of the petitioners for being treated as DOT employees stems from the only fact that the advertisement for recruitment was issued by the DOT. However, the entire exercise of recruitment was undertaken by the BSNL and applicants also joined the services of BSNL on or around 16.09.2002/30.09.2002 after formation of the BSNL on 01.10.2000. Merely because of the fact that initially some GPF deductions were made from their salary, which was discontinued also, applicants cannot claim a legal right to be treated as employees of DOT. On the formation of the BSNL by a gazette notification dated 30.09.2000 (Annexure-R1 to the counter affidavit dated 26.07.2022), the assets and liabilities of the DOT was transferred to the BSNL, which came into existence on 01.10.2000. Petitioners' cause of action, if any, related to the time when they had joined BSNL. Having accepted the offer of appointment and remained under the BSNL for 19/20 years, only on account of rejection of representation dated 21.09.2021, they cannot revive a stale claim of cause of action. No legitimate expectation can either accrue as their recruitment, appointment and joining and all subsequent events having been taken place under BSNL organization.
11. In view of the aforesaid reasons and fact and circumstances noted herein above, we do not find any 23 OA No.366/2016 error in the impugned order of the learned CAT. The writ petition is accordingly dismissed."
16. Further, in case of A. Mohammed Siraj (Supra), the Co-ordinate Bench had occasion to deal with similar issue and by following the judgment passed by the Hon'ble High Court of Jharkhand, dismissed the O.A. of the said applicants.
17. Now the arguments of learned counsel for the applicant needs to be addressed that since the Presidential Order dated 15.02.2002 (Annex-A-13) was issued and, therefore, its cancellation cannot be made by the authority of BSNL and the same is without jurisdiction. In this context there is a specific stand of the official respondents in their reply that the Presidential Order was issued by the said authority erroneously and the same is void-ab-initio. In this regard it is necessary to reproduce following relevant communications:
"No.27-1/2001-SNG (Vol.III)/Chennai T.C (Pt.) Government of India Ministry of Communications Department of Telecommunications (SNG Section) Room No.419, Sanchar Bhavan, 20, Ashoka Road, New Delhi - 110001 dated: 27/02/2020 To The CMD, BSNL, Bharat Sanchar Bhawan, Janpath, New Delhi-110001 [Attention: Shri Milind Bagaddeo, AGM-SR] 24 OA No.366/2016 Subject: Cancellation of POs (Orders of absorption) of employees recruited by BSNL on or after 01.10.2000 Sir, I am directed to refer to letter No.BSNL/3-1/SR/2019 dated
18.02.2020 on the subject noted above and to say that ruling position read with instructions of Department of Telecom for permanent absorption in BSNL are relevant for the purpose.
(i) The language of Rule 37A of CCS (Pension) Rules clearly states that only Government employees (permanent or temporary), who were on rolls of Government before corporatisation and transferred on deemed deputation upon corporatisation of Government Department are covered under Pension Rule for payment of Pension from Consolidate Fund of India. The language of rule position is quite clear and unambiguous.
(ii) Any employee who has been formally appointed by BSNL on or after 01.01.2000 and joined BSNL is BSNL appointee. Vide letter dated 13.09.2002, necessary clarification has already been issued. However, as an exceptional and special case, by giving due weightage to various provisions of Casual Labourer (Grant of Temporary Status and Regularisation) Scheme, 1989 of Telecom Department [i.e one time scheme for casual workers engaged before framing of Scheme], which provide counting of 50% of TSM Service for pension upon regularisation, entitlement to GPF etc, only those casual workers, who were conferred with temporary status upto issuance of letter dated 12.02.1999 by Department of Telecom Services or in terms of letter dated 12.02.2009 [in pre corporatisation phase on or before 30.09.2000] and regularised w.e.f 01.10.2000 or later (in BSNL) in terms of instructions dated 29.09.2000 of Department of Telecom Services, have been extended the benefits of pension in terms of Rule 37A of CCS (Pension) Rules fo rwhich OM dated 20.10.2006 was issued by the DoT.
(iii) Any erroneous administrative order vide which any ineligible employee has erroneously covered by Rule 37A of CCS (Pension) Rules is ab initio void and attracts doctrine of ultra vires, for which necessary correction/rectification may be made by the Director (Estt.) nominated in Telecom Circle by passing a reasoned and speaking order clarifying the aforesaid rule position read with instructions on the subject.
2. Accordingly, necessary action for rectification of 25 OA No.366/2016 administrative mistakes (i.e. Extending the benefits of Rule 37A of CCS-Pension Rules in terms of Orders of absorption to ineligible employees) may be taken and necessary instructions may be issued to Telecom Circles/Maintenance Regions. The cases of Tamilnadu Circle may be dealt accordingly.
Yours faithfully, Sd/-
(Subodh Kumar Jayaswal) Under Secretary to Government of India."
-x-x-x-x-x "No.27-1/2001-SNG (Vol.III)/Chennai T.C (Pt.) Government of India Ministry of Communications Department of Telecommunications (SNG Section) Room No.419, Sanchar Bhavan, 20, Ashoka Road, New Delhi - 110001 dated: 23/02/2021 To The CMD, BSNL, Janpath, New Delhi-110001 [Attention: Ms Sunita Arora, AGM-SR] Subject: Cancellation of POs (Orders of absorption) of employees recruited by BSNL on or after 01.10.2000 - Corrigendum Sir, I am directed to refer to this office letter of even number dated 27.02.2020 on the subject noted above and to say that certain clarifications have been issued by this Department with regard to Statutory Provisions i.e. Rule 37A of CCS (Pension) Rules in context of permanent absorption of Government servants in BSNL and special concession in the form of payment of pension under Pension R?ules to the casual workers, who attained temporary status in terms of Casual Labourer (Grant of Temporary Status and Regularisation) Scheme, 1989 in erstwhile DTS/DTO (before 01.10.2000) and regularised in BSNL. It has come to the notice of this Office that letter dated 27.02.2020 contains inadvertent 26 OA No.366/2016 typographical errors.
2. Accordingly, corrignedum is issued with the following corrections in the letter dated 27.02.2020:-
(i) In Para (iii)/Line 2, the date of formal appointment in BSNL viz. on or after 01.01.2000 is corrected and reaad as "on or after 01.10.2000".
(ii) In Para (ii)/Line 10, the letter dated 12.02.2009 of Department of Telecom is corrected and read as letter dated 12.02.1999.
(iii) In Para (iii)/Line 1, 'been' is inserted between has and erroneously. Therefore, 'has erroneously' shall be read "has been erroneously".
This issues with the approval of Competent Authority.
Yours faithfully, Sd/-
(Subodh Kumar Jayaswal) Under Secretary to Government of India."
18. It is not in dispute that the Presidential Order was also issued by the Director (Estt.) and the cancellation order was also issued by the Director i.e. the same authority. Therefore, taking note of the aforesaid communications, it cannot be said that the cancellation of Presidential Order is not issued by the Competent Authority.
19. So far as the reliance placed by learned counsel for applicant in case of Rejilamoni O.A. (Supra) is concerned it was a case in respect of casual labourers who were working in DoT prior to 01.10.2000 which is not the position in the present case. Similarly, in the case of Abdul Rasheed. A.A., the said applicants were recruited under compassionate appointment scheme being the 27 OA No.366/2016 dependent of employees of DoT who died in harness and their date of commencement training was prior to 01.10.2000 and, therefore, the aforesaid judgment is distinguishable on facts.
20. That so far as judgment relied by the learned counsel for the applicant in the case of Pradeep Kumar (Supra) is concerned, in the said case, the said applicants were appointed in the year 2002 by of the Office of CGMT, UP (E) Circle, Lucknow and, thereafter, they have made representations on 06.05.2003 to the said respondents for grant of status, pay, allowances and other benefits applicable to DoT (Central Government) employees and, thereafter, filed Writ Petition No.6808/2005 which was transferred to the Central Administrative Tribunal as TA No.2/2016 which was decided vide order dated 12.11.2024 by the Coordinate Bench of the Tribunal at Lucknow holding that the selection process was started prior to formation of BSNL and, therefore, rules of game cannot be changed subsequently.
21. In the present case, after pre-recruitment formality carried out by the Department of Telecommunications due to formation of BSNL, an appointment order was issued on 18.07.2001 with condition that regular appointment order will be issued after receipt of the joining of the applicant. Thereafter, regular appointment order was issued on 24.01.2004 and at both these stages, applicant has not raised 28 OA No.366/2016 any objection to the effect that pre-appointment formality was carried out by the Department of Telecommunications and, therefore, the learned counsel for the respondent No.3 is right in his submission that on the basis of principle of acquiesce and estoppel, the present applicant has waived his right to contend that even though the appointment order was issued by the authority of the BSNL, even then he is entitled to receive the benefits as a DoT employee.
22. Further, looking to the order dated 18.07.2001 and 24.01.2004, it is clear that the applicant was appointed against the "outsider quota". Therefore, the case relied by the applicant of Pradeep Kumar (Supra) is not applicable in the present set of facts as recruitment process at the instance of Staff Selection Commission was concluded at the stage of issuing the merit list and up to that stage, no change in the rule of game.
23. Thus, in view of the aforesaid discussion, no case is made out for interference by the Tribunal in the present O.A. The same is, therefore, liable to be dismissed and it is hereby dismissed. No costs.
24. Pending MAs, if any, stand disposed of.
(Umesh Gajankush) (Shri Krishna) Member (J) Member (A). H.