Calcutta High Court (Appellete Side)
Bibhuti Bhusan Karan & Others vs Bharat Sanchar Nigam Limited & Others on 26 July, 2011
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(APPELLATE SIDE)
Present : The Hon'ble Justice Ashim Kumar Banerjee
and
The Hon'ble Justice Dr. Mrinal Kanti Chaudhuri
W.P.C.T. 100 of 2011
Bibhuti Bhusan Karan & Others
Vs.
Bharat Sanchar Nigam Limited & Others
For the petitioners : Mr. Sadhan Roy Chowdhury
Ms. Rini Bhattacharya
For BSNL : Mr. Dinesh Chandra Roy
Mr. Dhruba Mukherjee
For respondent No. 2 : Ms. Manasi Bhattacharjee
Heard on : 02.05.11, 09.05.11, 11.07.11
Judgement on : July 26, 2011.
Dr. M. K. Chaudhuri, J. :-
This writ application is directed against the judgement and order of Central Administrative Tribunal passed on 17.03.2011 in T.A. No. 8 of 2010.
The fact of the case in short is that the petitioners were appointed as Junior Accountants during 1987-1990 under the Department of Posts, Government of India. During 1990, they were promoted to the post of Senior 2 Accountants. During the period of 1995-2000, they were working as Junior Accounts Officer on deputation in the Department of Telecom. In pursuance of New Telecom Service, 1999, Government of India decided to transfer the business of Telecom Service to a newly formed company viz. Bharat Sanchar Nigam Limited (BSNL) with effect from 1st October, 2000. In terms of OM No. 2-29/2000 dated 30.09.2000, Department of Telecommunication (DOT) became the administrative department of Bharat Sanchar Nigam Limited (BSNL).
The Department of Telecommunication (DOT) issued a circular dated 30.09.2000 for permanent absorption in Department of Telecommunication of the deputationists working on deputation as Junior Accounts Officers as one time measure after conducting examination. According to the said circular the pay of the persons to be absorbed as Junior Accounts Officer in DOT/DTS/DTO would be fixed under FR -22(1)(a)(i). The petitioners succeeded in the examination. The petitioners were treated as external candidates. In the matter of fixation of pay in terms of FR-22(1)(a)(i), their pay in their substantive cadre would be taken as the base. There will be no benefit for increment drawn on deputation. By virtue of the said circular the deputationist who would be absorbed would rank en block junior to the departmental candidates who would be declared qualified in the same part of examination. The external candidates (deputationists) will be considered for appointment only after the Group 'B' employees (existing Telecom JAO) are absorbed. For the purpose of absorption in BSNL, successful external candidates shall give their willingness/undertaking to the effect that they would not claim past service for fixation of pay and seniority. In terms of memo dated 24.01.2003, it was stated that the external candidates i.e. the petitioners would be placed in CDA scale of 5500-175-9000 till their seniors are granted IDA scale corresponding to CDA pay scale of Rs. 6500-200-10500. IDA scale was introduced on 18.03.2004 with effect from 01.10.2000 in place of existing CDA scale. On 05.11.2004, applications were forwarded to the petitioners for appointment as JAO as willing candidates. There will be pay protection of the petitioner in terms of their substantive grade in the 3 present cadre and the external candidates (petitioners) would not be entitled to pension as against DOT employees absorbed in BSNL as per FR-37(a) of CCS Pension Rules, 1972. On 18.01.2005, the petitioners were appointed as external candidates. As per office memo dated 05.11.2004, the external candidates will be placed in the IDA pay scale of Rs. 9850-250-14600 (equivalent to CDA pay scale of Rs. 6500-200-10500 in BSNL). They will get pay protection vis-a-vis their substantive grade in their parent department. Their earlier service as deputationist in DOT or BSNL shall not be taken into account for any purpose including seniority. According to the petitioners, a different formula was prescribed for pay fixation by memo No. 4-85/2003-SEA (Part II) dated 4th March, 2008 in respect of Junior Accounts Officer (external candidates) appointed in BSNL from other department as fresh candidate against direct recruitment quota. If the said formula is applied in the case of present petitioners there will be loss of total pay of the employees including writ petitioners. The said fresh calculation was made in terms of DOPT letter dated 07.08.1089. According to the petitioners, circular of 1989 would be applicable to the persons coming from public sector undertakings and joins the Government of India but the petitioners were from Government of India and were absorbed in public sector undertakings. Therefore, according to the petitioner, the said letter of 04.03.2008 is arbitrary and liable to be quashed. According to the petitioner, their pay is to be fixed as per letter dated 30.09.2000, although issued by Department of Telecommunication (DOT) which became BSNL. The grievance of the writ petitioner is that on joining BSNL their pay should be fixed in terms of OM No. 2- 29-2000 dated 30.09.2000 in terms of FR -22(1)(a)(i) and not in terms of memo dated 04.03.2008.
On the other hand, respondents case is that memo dated 30.09.2000 was issued by Department of Telecommunication when BSNL was not in existence. The petitioners got the benefit of the past service in the parent department before coming to BSNL. The methodology of BSNL for JAO has been depicted by memo dated 05.11.2004. Pay of the petitioner would be fixed at the bottom scale in the 4 IDA (9850-250-14600) subject to the fact to get pay protection in respect of their substantive grade in the parent department. Furthermore, the writ petitioners were not absorbed like other JAO of DOT. They have come from outside as direct recruit fresh candidates under specific terms and conditions. Furthermore, the writ petitioners who were the deputationists and are willing to be absorbed in DOT/DTS/DTO as JAO have to submit their application in prescribed proforma along with the declaration/undertaking. Terms and conditions for absorption of the personnel from other departments/Ministries on deputation to working as JAO in DOT have been clearly mentioned. Assistant Director General (SEA) BSNL vide OM dated 05.11.2004 asked the competent authority for inviting applications from qualifying external candidates who are on deputation from other Central Government department qualified in special examination held in December, 2000 conducted by DOT/BSNL for appointment in BSNL as JAO on immediate absorption based against recruitment quota as JAO as fresh candidates. The terms and conditions in the said memo clearly depicts that (Clause I) willingness in the application through their parent department will have to be given. Appointment of the external candidates as JAO will be on the direct recruitment quota as per (Clause II) Recruitment Rules (Clause II). The external candidates will stand on en block junior to the existing JAO who have been absorbed in BSNL (Clause V). On completion of the basic induction training the external candidates will be placed in IDA pay scale of Rs. 9850-250-14600. The pay protection i.e. in substantive grade in the parent department shall be provided in the BSNL (Clause XI).
The writ petitioner in pursuance of the said OM dated 05.11.2004 submitted their applications disclosing their acceptance of the terms and conditions stipulated in the said office memo for appointment in the BSNL after due recommendation by the parent department. Thereafter, appointment was given on 18.01.2005. The Assistant Director General, BSNL by letter dated 04.03.2008 disclosed the methodology of pay fixation. On receiving of the said letter dated 04.03.2008 it was found that pay fixation of petition was wrongly 5 made due to inadvertence. Thereafter, in compliance with the direction of the competent authority, BSNL dated 04.03.2008 corrections of the fixation of pay of the petitioners were made. Since the petitioners were recruited direct as external candidate by direct recruitment quota, they cannot get any benefit at par with the departmental JAO absorbed in BSNL. The very object of the pay fixation under FR (22)(I)(a)(i) is to give higher salary to an employee while he is joining to a higher post or higher grade. Therefore, the order dated 04.03.2008 is applicable to the JAO appointed to the BSNL external candidates after submitting their acceptance/undertaking. The petitioner joined in BSNL as fresh candidates in compliance with the terms and conditions stipulated in the appointment. Therefore, the petitioners have failed to make out any legal right and, therefore, the writ petition is liable to be dismissed.
Mr. Sadhan Roy Chowdhury, learned counsel appearing on behalf of the petitioner has submitted that the pay fixation of the petitioner shall be made on point to point basis as per BSNL office memo date 05.11.2004 (Annexure P-8 page 147 of Paper Book). He further submits that office memo dated 04.03.2008 Annexure P-9 page 149 shall not be applicable to them. According to the learned counsel for the petitioner, the BSNL authorities are estopped from contending anything contrary to office memo dated 30.09.2000 and there is no infirmity and illegality in granting the fixation vide order dated 05.11.2004. Learned counsel for the petitioner has referred to Clause (3) of Appendix II page 362 in respect of grant of pro rata retirement benefits to the Government servants permanently transferred to public sector undertakings and autonomous body etc. According to the submission of learned counsel for the petitioner, a Government servant selected for a post in a Central Public Enterprise will be free to negotiate his emoluments with the enterprise on appointment to a post in public sector enterprise on immediate absorption basis, a Government servant will be at par with other employees of enterprise and will be governed by the rules of the enterprise in all respect. Further submission of the learned counsel for the petitioner is that the petitioners are entitled to get their pay fixation under FR-
622(1)(a)(i) and thereafter on point to point basis in terms of Appendix II relating to grant of pro rata retrial benefit to Government servant permanently transferred to the public sector undertaking, autonomous bodies etc. and there was no infirmity and illegality in granting fixation vide order dated 05.11.2004. Finally, it has been submitted that the fixation cannot be made on the basis of order dated 04.03.2008.
Learned counsel for the respondent Mr. Dinesh Chandra Roy has submitted that the circular dated 30.09.2000 page 57 is applicable to the DOT employees. The terms and conditions of absorption from other departments on deputation to work as JAO in DOT Annexure I page 62 is applicable to the others namely petitioners who are not originally DOT employees. As per Annexure I page 65 pay fixation of absorption is given. As per terms and conditions the petitioners are junior to DOT employees. Learned counsel for the respondent has referred Annexure II at page 69 i.e. the declaration to be given for absorption in JAO in the form of undertaking seniority vis-a-vis Telecom JAOs and inter se seniority of deputationists etc. Learned counsel for the respondent has further submitted that as per office memo dated 24.01.2003 that the successful external candidates must give their willingness/undertaking and tender, their technical resignation to their respective department and they will stand en-block junior to the internal candidates of JAO (Annexure P-4 page 94-
98). Learned counsel further refers to "Annexure P-5" page 114-117 onwards in connection with the IDA pay scale for the executive staff (Group 'B') absorbed from DOT/DTS/DTO in BSNL with effect from 01.10.2000. It is further submitted that the writ petitioner absorbed in the BSNL on 13.02.2005. They cannot get the benefit of pay scale earlier to their coming to BSNL. Learned counsel further refers to the acceptance of BSNL offer by the external candidates from other Government department appointed in BSNL at page 271 and onwards. Finally, learned counsel further submits that the writ petitioners are getting pensionary retrial benefits from the parent department i.e. postal department as it appears in page 301 and 302 of the Paper Book. But the JAO absorbed from 7 DOT are not getting pension. It is, therefore, submitted that the writ petitioners are not entitled to get pay fixation at par with the JAO absorbed from DOT.
Learned counsel for the respondent has cited some decisions of Hon'ble Apex Court reported in :
1) AIR 1964 SC 685 (State of Orissa vs. Ram Chandra Dev and Mohan Prasad Singh Deo).
2) AIR 1985 SC 167 (Prabodh Verma and Others vs. State of Uttar Pradesh and Others).
3) (1998) 5 SCC 454 (Major M.R. Penghal vs. Union of India and Others).
4) (2000)9 SCC 187 (Union of India and Others vs. Sujatha Vedachalam (Smt) and Another).
Smt. Manasi Bhattacharya, learned senior Central Government counsel has handed over a written note supplied to her by Joint Controller of Communication Accounts/Legal, Ministry of Communication and IT Department of Telecommunications, Government of India. The said note denotes that the applicants were absorbed in BSNL as external candidates out of their own volition. The external candidates comprised of officials who were on deputation from various Central Government services, all of them absorbed in BSNL have resigned from Central Government service. As per Para IX of BSNL OM No. 4- 85/2003-SEA dated 05.11.2004, external candidates will not be allowed to revert to his present cadre/department. Since external candidates belonged to different departments and cadres, it would not be feasible to take them back in various departments and cadres. Moreover, the dispute is between BSNL and its employees, Department of Telecommunication is not a concerned party in the dispute.
We have carefully heard the submission of learned counsel of both sides and peruse the written note addressed to learned senior Central Government 8 counsel. We have also perused the materials on record including circulars issued by department of Telecom as well as BSNL.
It is an admitted position that the writ petitioners previously belonged to Department of Post, Government of India working as Junior Accountant and subsequently promoted to Senior Accountant. It is also admitted fact that the petitioner was working as Junior Office Accounts Officer on deputation in the Department of Telecom during the period from 1995-2000. At that time BSNL was not in existence. By virtue of OM No. 2-29/2000 dated 30.09.2000 issued by Ministry of Communication, Government of India, Department of Telecommunication Services provided by the Telecommunication was to be transferred to the newly formed company BSNL with effect from 1st October 2000. Therefore, options were invited from officers and employees working in various circles on deputation for absorption on basis after conducting examination. At the relevant time on 30.09.2000 there was no existence of BSNL. BSNL did not exist before 01.10.2000. In fact, all the functions of DOT were never taken over by BSNL. DOT shall be the administrative department of BSNL having its distinct identity without being merged with BSNL. The petitioners who were deputationists under DOT became JAO of BSNL on 13.02.2005. Submission further denotes that the employees and officers shall be subject to the rules and regulations to be framed by the BSNL. The terms and conditions for the appointment of the external candidates as JAO in BSNL are clearly elucidated in OM No. 4-85/2003-SEA dated 05.11.2004. OM clearly denotes that the qualified external candidates who are willing to be appointed as fresh candidates as JAO against vacancies of the directly recruitment quota are required to send their application conveying the acceptance of the terms and conditions of appointment in BSNL. They have to forward their willingness for recruitment against direct recruitment quota in BSNL (Annexure P-6 page 126) with terms and conditions for the appointment of external candidates as JAO in BSNL (deputationist from other Central Government Department). Page 129 of Paper Book Vide letter dated 05.11.2004 reveals that the appointment of the external candidates will be 9 against direct recruitment quota of JAO vacancies and will be governed by BSNL JAO Recruitment Rules and further amendment if any, made thereof from time to time. It further reveals that external candidates will stand en-block junior to the existing JAOs/AAOs of DOT/DTS/DTO who have been absorbed in BSNL. It further reveals that external candidates would be placed on IDA pay scale of Rs. 9850-250-14600 (equivalent of CDA pay scale of Rs. 6500-200-10500 in BSNL). Their pay protection vis-a-vis their substantive grade in the parent department shall be provided in BSNL. But their earlier service on deputation basis shall not be taken into account for any purpose. It appears further in Clause XVI of the said OM that the external candidates after resigning from their parent department will join in BSNL as fresh candidates and their service condition shall be governed by rules and regulations of the BSNL and they will not be entitled to pension under FR-37A of CCS (Pension) Rules 1972 which is meant for DOT employees absorbed in BSNL. Clause XVII further provides that applicants shall give an unconditional undertaking of the above terms and conditions set by BSNL. Page 138 of paper Book is willingness and declaration proforma. Page 142 of Paper Book (Annexure P-7) is the offer of appointment to the external candidates (on deputation from other Central Government departments) dated 18.01.2005. The said offer of appointment clearly reveals the terms and conditions imposed by BSNL. Therefore, the aforesaid circulars reveal that there was a clear classification/distinction between JAO as external candidates (deputationist) and JAO as departmental candidates. The petitioners out of their own will and volition accepted the appointment after disclosing their willingness to rules and regulations and terms and conditions imposed or to be imposed by the BSNL. It is not known how they can claim fixation of pay as per rule of the JAO absorbed from DOT. "Annexure P-9" page 149 OM 4-85/2003 dated 0.03.2008 denotes pay fixation in respect of JAO (external candidates) appointed from BSNL from other departments as fresh candidates against direct recruitment quota. The said letter reveals that the methodology to be adopted for fixation of pay was reflected in Part XI of the terms and conditions of appointment of external candidates of BSNL vide OM No. 4-85/2003 dated 10 05.11.2003. Since the office of the BSNL was receiving a lot of correspondence on the issue suggesting various methodologies, the issue was examined in detail in consultation with PAT branch and finance branch and it was clarified that the methodology under FR 22 is applicable for fixation of pay of external candidates of other departments appointed as JAO in BSNL, as fresh candidate against direct recruitment quota. Pay fixation was depicted therein. This OM has been challenged by the petitioners on the ground that this letter is a departure of assurance given in circular dated 30.09.2000 which amount to promissory estoppel. But it is crystal clear that the letter was not issued by BSNL but by DOT. But BSNL has competence to frame rules and regulations to be amended from time to time. The petitioners were well aware of these terms and conditions and they revealed their willingness and filled up declaration form. If that be the position, it is not understood how can the writ petitioners under Article 226 of the Constitution of India claim that they accrued any legal right. It is not understood how their legal right has been illegally invaded by the BSNL. The essence of Article 226 of the Constitution is that the party must establish that they have their legal right and the said right is illegally invaded. Reliance can be placed on decision reported in AIR 1964 SC 685 (State of Orissa vs. Ram Chandra Dev) in CA No. 293 of 1959 and (Mohan Prasad Singh Deo) in CA No. 294 of 1959. It further appears that the petitioner received the pension and retrial benefit of their parent department i.e. department of Post as it appears in page 301 of Paper Book vide No. Pen/PR/Admn./1-650 dated 28.04.2008. The information regarding pension and benefits received by the petitioner Premangshu Khatua has been given in detail. If that be so how are they entitled to get their pension and other benefits in BSNL ? To repeat further it is crucial to note that the acceptance of BSNL offer including declaration appearing in page 271 of Paper Book reveals that the petitioner accepted the offer of BSNL as per terms and conditions/guidelines circulated by letter of BSNL dated 05.11.2004 and 18.01.2005 and their willingness was submitted in response to BSNL letter dated 05.11.2004. In view of the above circumstances, they cannot claim equal pay fixation and other benefit at par with departmental JAO absorbed from DOT.
11Page 360 of Paper Book reveals that no pensionary benefits for services they have rendered in their parent department i.e. in the Department of Post will be given by BSNL as per terms and conditions offered and accepted. But in case of employees of DOT the services they have rendered in DOT will count for pensionary benefits. Page 362 of Paper Book is Appendix II grant of pro rata retirement benefit to the Government servant permanently transferred to public sector undertaking, autonomous body etc. It relates to the Government servant permanently transferred to the public sector undertaking. But the present writ petitions were given appointment afresh on direct recruitment quota as per terms and conditions elucidated above. So, this circular is not applicable to the petitioner in view of the status of the petitioner as deputationist appointed afresh in the BSNL, as per terms and conditions of appointment which has been accepted by declaration and submission of willingness. The writ petitioner cannot challenge the letter of BSNL dated 04.03.2008 in view of the fact that they agreed the terms and conditions of BSNL for appointment including pay fixation. The differentiation of terms and conditions of JAO coming from DOT and the petitioner coming from other department was never challenged. Hence, they cannot claim fixation of pay at par with JAO from DOT/DTS/DTO. Circular dated 30.09.2002Annexure P-2 page 57 relates to JAO absorbed from DOT/DTS/DTO. But the terms and conditions Annexure I page 62 relates to the JAO absorbed from other department on deputation to work as JAO in Department of Telecom. Since this distinction was never challenged, the deputationist cannot claim equal pay fixation at par with JAO of the department concerned. This Annexure I page 62 reflects pay fixation of the external JAO including other terms and conditions. It is to be noted that petitioner No.4 Gourango Thakurta did not feel aggrieved by such fixation. So, he did not claim fixation along with other petitioners. Respondents case is that the pay of writ petitioners was incorrectly fixed, subsequently correction was done. Such fixation of pay by correction can be done as per decision reported in AIR (2000) 9 Supreme Court Cases 187(Union of India and Others vs. Sujatha Vedachalam (Smt) and Another). The petitioners came to BSNL of their own accord in terms 12 specified which made them distinct from JAO who were absorbed from DOT. So, there cannot be any promissory estoppel.
Having considered all the aspect of the matter we are unable to interfere with the judgement and order passed by learned Tribunal. Therefore, writ application fails and is dismissed without any cost.
Photostat certified copy of the judgement and order, if applied for, be made over to the parties on terms.
( Dr. Mrinal Kanti Chaudhuri, J.) I agree, (Ashim Kumar Banerjee, J.)