Indian Telecom Service ... vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 475 Del

JUDGMENT

S. Mukerjee, J.

1. The petitioner association has preferred this writ petition praying for quashing of a letter/office order dated 8.5.2000 issued by respondents 1 and 2 seeking option from the Members of the Petitioner association for their permanent absorption in the Mahanagar Telephone Nigam Limited (hereinafter referred to as MTNL). The brief background of certain essential facts as apparent from the undisputed pleadings of the parties, may be capsulated at the outset:-

2. On 1st April, 1986, Government of India transferred the Telecom Operations in Union Territory of Delhi, Bombay, New Bombay and Thane Municipal Area, constituting what are described to be the "creamiest layer" of consumers from Department of Telecommunications to the newly incorporated Government Company known as Mahanagar Telephone Nigam Limited. For the above purposes, the Government of India, Ministry of Communications had vide its letter dated 18th March 1986 transferred the staff of the Department of Telecommunications working in the aforesaid areas, on deemed deputation to MTNL on the then existing terms and conditions and without any deputation allowance.

3. After about half a decade the telecommunication functions which hitherto were solely being performed by the Department of Telecommunications, Government of India were opened up in 1992 for private sector participation. The Government of India purportedly in order to separate its licensing and policy functions from the Telecommunications Services and Telecommunications Operations, decided to transfer the same to separate departments. The telecommunication services function was transferred to the newly created department known as Department of Telecommunication Services (hereinafter referred to as DTS), and the Telecommunication Operation Function was transferred to another newly created department known as Department of Telecommunication Operation (hereinafter referred to as DTO).

4. After the separation of the licensing and policy functions as detailed above, vide letter dated 8.5.2000 options for permanent absorption into MTNL were called from Group A and B officers. This letter/order dated 8.5.2000 was challenged by the petitioners by filing application (OA No. 1252/2000) before the Central Administration Tribunal (hereinafter referred to as the Tribunal).

5. By the impugned order dated 12.10.2001 passed by the Principal Bench of the Tribunal, the said OA No. 1252/2000 was disposed of with the following observations:-

"Coming to the grounds taken by applicants to challenge impugned letter dated 8.5.2000 and summarised in para 4(1) of the OA, we note from official respondents' reply to the OA that in terms of Rule 4(6) IRS Recruitment Rules, Government is competent to change the structure of the service and the authorised strength of the posts in various grades shall be such as may from time to time be determined by Government.

Furthermore it has also been submitted by official respondents that MTNL was created in 1986 and the posts therein which were held by ITS officers continue to be so held, and posts created in MTNL even after 1.4.86 continue to be filled up through ITS officers, with some exception. As is clear from letter dated 8.5.2000, it only calls for options whether an officer would like to be permanently absorbed in MTNL.

If any one amongst the members of the ITS Association are not desirous of opting, the aforesaid letter dated 8.5.2000 does not compel them to do so, and the fact that there is no compulsion to opt is also made clear in respondents' reply. Hence the first ground for challenge contained in para 4(1) above fails."

"Similarly the second ground of challenge contained in Para 4(2) above is equally misconceived. The ITS Association cannot claim it has an enforceable legal right to compel respondents to have consulted them before issue of impugned letter dated 8.5.2000. As it is a letter only inviting options, which individual members of the Association were free to accept or reject, in the absence of any enforceable legal right compelling official respondents to consult applicant Association before issue of impugned letter dated 8.5.2000 the same cannot be assailed on the ground. Hence the second ground, contained in Para 4(2) above, also fails".

"In so far as the third ground, contained in Para 4(3) above is concerned, we note that as regards pensionary benefits, DOPT's O.M.

dated 5.7.99, enclosed with respondents' reply gives applicants the option to retain the pensionary benefits available to them under Government rules or be governed by the rules of MTNL. Furthermore the terms and conditions for absorption in MTNL as spelt out in the Annexure to respondents' letter dated 8.5.2000 read with respondents' subsequent letter dated 20.9.2001 which make it clear that change if any to these terms and conditions will be only by way of improvement, in our view is sufficient to enable applicants to know as to what they can expect to receive if they opt for permanent absorption in MTNL. Furthermore, if at a later stage, any of the terms and conditions are altered to applicants' disadvantage, the same can always be challenged by them in the appropriate Forum".

6. It is this order of the Tribunal which is under challenge in the present writ petition.

7. At the preliminary hearing of this writ petition, notice to show cause was issued limited to the grievance of the petitioners that the official respondents had failed to furnish to them the requisite information regarding their future service conditions, and thereby had allegedly disabled them from effective exercising option. The said order of this Court issuing show cause notice pointedly referred to para 26 of the writ petition.

8. In the context of the averments set out in para 26 of the petition, we have gone through the contentions of the petitioner as embodied in sub paras (a) to (k) at pages 13 and 14 of the paper book, and also the short affidavit filed by the official respondents.

9. While addressing their respective arguments both the official respondents and the petitioner expressed their desire to place on record an additional affidavit and response thereto respectively, which have been filed and taken on record.

10. Certain averments contained in the additional affidavit and the response thereof, may be briefly referred to as culled out hereinbelow:-

11. In Sub para in the additional affidavit filed by respondent No. 1 it has been stated 'that approximately, 10000 employees have opted for the Employees Provident Fund (EPF) Scheme and the Contributory Provident Fund (CPF) trust is functioning. MTNL has been contributing the employer's contribution equivalent to the employees' contribution up to a maximum of 12% of the basic pay + DA since 1.11.1998. Moreover, 8.33% of this contribution is towards the pension scheme under the Employees Pension in its annual accounts for the pension contribution for the pension of the absorbed employees based on actuarial valuation.'

12. It has also been indicated that 'the MTNL Pension Fund' is in the process of being set up. The draft trust deed has been circulated to the unions for their comments. The amount sought by MTNL from DOT as corpus for creating the fund, is approximately Rs. 1170 Crores, and MTNL and DOT are stated to be in the process of reconciling their accounts. The dues from DOT are likely to be transferred immediately on completion of this process.'

13. "As regards norms for creation of posts, promotion policy etc., it has been mentioned that the same is an on going process. A consultant has been appointed to analyze the existing structure and manpower in MTNL and to recommend the norms for creation of posts, promotion policy etc. which is an ongoing process in an Organisation."

14. "The Recruitment Rules at the entry level for Junior Accounts Officers (JAOs) and Junior Telecom Officers (JTOs) have already been framed. The Junior Accounts Officers (JAOs) Recruitment Rules have been approved by the MTNL Board and the Junior Telecom Officers (JTOs) Recruitment Rules are being put up to MTNL Board for approval".

15. The petitioner in his response has highlighted the following aspects:

"It is submitted that MTNL has failed to reconcile its accounts with DOT since 1998 and at present the aforesaid reconciliation of accounts is an impossible tasks mainly due to the following reasons:

(i) Since 1.4.1986, approximately 90000 employees have retired from MTNL.

(ii) MTNL has failed to maintain individual schedule for pension, GPF, leave salary contribution etc. for any of its employee belonging to any of the Group A,B,C or D.

(iii) MTNL has not made any provision for pension and leave salary contribution as per the Government Rules on Subject.'

In relation to the CPF scheme, the petitioners have highlighted the following shortcomings:

"(a) MTNL had failed to freeze the respective GPF Accounts of the individual employees on 31.10.98 (last date before the permanent absorption of Group C and D) and further failed to transfer the crystallized amount of GPF in to CPF. According to Rules, the aforesaid crystallized amount of GPF was the to be taken as opening balance. Whereas, the MTNL in violation to the Rules had permitted its employee to operate their respective GPF accounts till mid 2000."

"(b) MTNL has failed to deduct CPF contribution from 1.11.98 (the date of absorption of Group C and D employees in MTNL) in respect of its permanently absorbed employees."

"(c) MTNL has deducted the CPF contribution of the Group C and D employees only from Mid 2000."

"(d) Till date no provision has been made by MTNL for disbursing the interest liability accrued in favor of the employees due to late payment by the MTNL."

16. Certain other averments have also been made which we do not feel it necessary for the present purposes to set out or quote. Suffice it to state that the petitioners have indicated their reservations Along with certain illustrations. In our considered view the mater falls in a very narrow compass. The only right which the petitioners could have, if at all, is that they be made available such details in relation to the terms and conditions, (which would be applicable to them in the MTNL upon these employees exercising their option in favor of joining the MTNL), as are required for exercising an informed choice whether they want to be absorbed in MTNL, or would like continue to remain in the Department where they are at present.

17. It appears to us that during the course of pendency of the proceedings before the Tribunal, the petitioner and certain other groups of officers, who have common interest with the petitioners, got somewhat carried away into pleading that they have a right to insist upon each aspect of the terms and conditions being not only to be fully clarified, but also to be finally crystalised in every respect to their entire satisfaction, and all this to be a precondition before they exercise their option in favor of joining MTNL or not.

18. To our mind, this is a case of putting the cart before the horse. It is only after the officers who opt to join MTNL, actually get absorbed after giving irrevocable option, that the final situation will crystalise sufficiently for the provisional terms and conditions to be ironed out and/or to be adjusted to the requirements of the finalised situation.

19. As already stated hereinabove, once the official respondents make the officers, who are to exercise their option duly aware about the essential facts necessary to exercise their option, thereupon there arises due compliance with the requirement of providing the extent of information necessary for an informed exercise of option by the concerned employees. Beyond that the petitioners cannot claim any right.

20. In case there are any vagaries in relation to the future, or any uncertainties on account of pension fund or corpus not being fully in place, then upon the Government indicating the said uncertainty, the petitioner would stand sufficiently informed for exercising the option. In fact, if the petitioner association or the concerned employees are not satisfied with the extent of arrangements made by the Government, as it appeared from the contentions of the senior counsel for the petitioners, and the rejoinder filed by them, then that would be a circumstance for the petitioners to refrain from exercising their option in favor of getting absorbed in MTNL, and instead preferring to remain where they have been all along viz. in the Department of Government of India. In this connection reference can be made to the petitioner's rejoinder at pages 180-184 of the paper book, where the petitioner has tried to demonstrate that MTNL pension fund has not been created and that the dis-investment of MTNL is also on the anvil (as per petitioner's version). Similarly, a grievance has been made the the demarcation of petitioner's posts, fixing of inter se seniority and promotion prospects, are not satisfactorily clarified as per the petitioner's understanding.

21. The impugned letter by which the options were invited is dated 8th May, 2000. We are now in 2002, and approaching the end of next financial year 2001-2002. The matter of absorption of such a large number of officers, has remained pending for so many months in a type of suspended animation. The last date of exercise of option, has had to be extended from time to time and we are given to understand that almost 40,000 officers are waiting to exercise their option on account of the pending proceedings.

22. During the pendency of the matter before the Tribunal and before this Court, the terms and conditions and other infrastructural requirements for the transfer of such large number of officials from the DTS to the MTNL, have got finalised and clarified to a large extent. No doubt, some aspects remain, but the employees have been duly informed about the progress and in our view they stand informed sufficiently to make the choice whether they will like continue as at present or get absorbed in MTNL.

23. The petitioners are not being forced to join the MTNL. The document of option, as on record, itself indicates that they could continue to remain in DTS. In case the petitioners still have some doubts about remaining back in their existing employment of DTS, because the DTS functions have gone to the Bharat Sanchar Nigam Limited (hereinafter referred to as BSNL) which company (BSNL) is also likely to be dis-invested in the near future, then that aspect is entirely different from the option to join MTNL in terms of the impugned order/ letter dated 8.5.2000 by which the options were invited. In fact, the prayer in the original application before CAT was to the effect that the impugned order/letter dated 8.5.2000 be quashed. As far as this relief is concerned, we find that the Tribunal, has in its order dated 12.10.2001, clearly held, on the basis of valid material and justification, that after the requisite clarifications of UOI had come forward in the form of contents of Annexure A-11 at page 114 of the record, the employees possessed requisite material for the exercise of informed option and that was the end of challenge against the document dated 8.5.2000.

24. The petitioners have contended that the Tribunal in the concluding portion of the order dated 12.10.2001, has issued certain further directions which go to show that the Tribunal was still seized of the matter.

25. No doubt, certain directions were issued, but that was more in the nature of favorable directions passed by the Tribunal in order to allay the apprehensions of the petitioner association and other concerned employees that those who do not exercise the option and thereby remain back in DTS, should be provided with certain further clarifications/instructions, and also that the date of submission of option should be further extended for enable them to furnish their options. Direction was also issued regarding the taking of appropriate preparatory action in respect of those who had already submitted their option.

26. The touch-stone of legal requirement for exercising of an informed option, is that the individual officers concerned should know abut the package of terms and conditions, including any uncertainties or vagaries or delays which are likely to arise in the transferee organisation (MTNL). There is no obligation cast on the Government to re-assure them and satisfy them in all respects before calling upon them to exercise the option.

27. In the impugned order we find the Tribunal has duly addressed itself to the above-said consideration viz. of the members of the petitioners' association and other concerned employees of Group A and B, being duly enabled in the matter of making an informed choice in relation to the option called from them by the impugned letter/order dated 8.5.2000. The Tribunal has rightly noted that there is no compulsion upon anyone to opt in favor of being absorbed in the MTNL. There is also no right available in law to the petitioner association, or for that matter upon anyone else, to insist upon being consulted before the issuance of the order/letter dated 8.5.200. Equally, the Tribunal has correctly held that the aspect of pensionary benefits to be received after absorption in MTNL, (and thereafter upon superannuation), has been appropriately clarified by the official respondents taking the stand that all the individuals will have the choice of either retaining the pensionary benefits as are available to them under Government Rules, or to be governed by the Pension Rules of MTNL. It has also been noted by the Tribunal that the official respondents have adopted a clear stand duly recorded in the order to the effect hat the Rules and Regulations of MTNL which had been enclosed to the counter reply filed by the official respondents, would be the terms and conditions applicable to the employees who opt in favor of permanent absorption in MTNL and that furthermore though classified as "provisional", these would not, in any case, be altered to their disadvantage. Rather the same would only be changed by way of improvement, if at all in case they need to be changed in future. Moreover, by way of abundant caution the Tribunal has also observed that in case any of the terms and conditions are altered to the disadvantage of the applicants (viz. members of the petitioners' association), the same would be liable to be challenged before the appropriate forum.

28. We also find that even thereafter, and notwithstanding the Tribunal itself holding that there was sufficient clarify of the matter regarding the terms and conditions of those who are to exercise option in favor of permanent absorption, and despite the Tribunal not finding any merit in the contentions of the petitioner association on the other counts as well, yet the Tribunal adopted a holistic approach in the matter by taking into account, in the concluding portion of its judgment, certain aspects regarding those employees who do not exercise their option in favor of absorption in MTNL, and who thereby are to be treated "to have opted for DTS", in terms of para 2 of the letter/order dated 8.5.2000. The Tribunal has observed that in view of Department of Telecom O.M. dated 13.9.2000 on the subject of setting up of BSNL, since the business of telecom services was to be (and has been) transferred to a newly formed company BSNL therefore the Tribunal felt that those persons who do not opt for being absorbed in MTNL, would also be entitled to know the details of terms and conditions which would be applicable to them upon their standing transferred on 'as is where is basis' to BSNL. The Tribunal perhaps felt that since there were only two options available to the employees viz either to take permanent absorption in MTNL or remain in DTS (which automatically implied the remaining individuals ultimately standing transferred on deemed deputation to BSNL), therefore since there was need on the part of the official respondents to also clarify the terms and conditions applicable in the situation of not opting for MTNL. It is in this context that in para 23 the Tribunal issued three consequential directions. Firstly, the official respondents were asked to clarify the above said position. Secondly, it was directed that the last date of submission of options should be considered for suitable extension administratively, pending the clarifications referred to above. Thirdly, it was observed that for those who had already submitted their options in favor of permanent absorption in MTNL, the preparatory action should be initiated.

29. We entirely agree with the said decision of the Tribunal. The Tribunal has taken a legal, practical and holistic view of the matter and therefore there is no ground to interfere with its said decision by us in exercise of our jurisdiction under Article 226 of the Constitution of India.

30. Since the matter of permanent absorption of Group A and B employees into MTNL or otherwise, has already been pending for quite sometime, on account of the challenge by the petitioners and the pendency of the proceedings before the Tribunal and thereafter in this court, it would be but appropriate that the official respondents act with due dispatch and expediency in the matter of ensuring that the policy, planning and administrative decision as proposed by the official respondents does not suffer on account of the litigation.

31. With the above observations, the writ petition is dismissed leaving the parties to bear their respective costs.