I.D. Sharma vs Union Of India (Uoi)
2004 Latest Caselaw 764 Del

ORDER

Sanjay Kishan Kaul, J.

1. Rule.

2. Learned Counsel for the respondent accepts notice of rule.

3. The writ petition is taken up for final disposal at this stage with the consent of learned Counsel for the parties.

4. The petitioner joined the Department of Post and Telecommunications in the Ministry of Commerce in the year 1952 and worked in different capacities. On 9.9.1985, the petitioner was posted to the Postal Staff College by the then Member (Finance) of the Telecom Commission.

5. The petitioner states that on 23.4.1986, the petitioner was transferred from the Postal Staff College on his promotion as a Chief Accounts Officer to MTNL, but was not allowed to join in view of a letter addressed by the then Director of the Postal Staff College to the Department of Telecommunications (for short, 'DoT'). The said letter is as under:

"DO No. PSC/3-250/85

Dated: April 23, 1986

My Dear Balakrishnan,

As you are aware, Shri I.D. Sharma, an officer in the Junior Time Scale of APS joined the College on 10.10.1985. I understand that he is likely to be promoted and transferred out shortly.

2. We have two officers of APS in the College. The second officer, Shri U.K. Acharya in the Senior Time Scale of the Service is superannuating on 31.8.1986. We use both of them for constructing induction and in service programs for APS Officers and Postal Accounts Officers. Though Shri Sharma, holding the post of Dy. Director (Accounts), is required to look after the Accounts, Drawing and Disbursing work, we have been using him extensively in teaching and conducting the induction training programs for APF probationer Shri Sharma has given excellent account of his capability as a teacher besides a thorough knowledge of the subject. At this stage, when the new faculty members one after another will completely disrupt the training of the probationers.

3. In the circumstances, I request that Shri I.D. Sharma may not be disturbed for the sake of continuity of training and may be adjusted against the retirement vacancy of Shri J.K. Acharya.

4. As regards the substitute for the post of Deputy Director (Account), I would request you to select an officer who is not only professionally competent but is also skillful in interpersonal communication and interaction as he will have to work as a faculty member.

5. As training functions are considerably different from accounting and finance advice functions, it is essential to give some time to the faculty member to prepare himself as well as training material. Keeping this in view, may I request to explore the possibility of posting the new incumbent as an under study to Shri Sharma for a period of two months so that he could be briefed about his academic tasks and he could also prepare background material for the topics that he could be required to teach during induction training of APS probationers."

6. The petitioner superannuated in December, 1989 and as per charge report relinquished the post. The charge report is as under:

"Department of Posts

Office of the Director/Postal Staff College

New Delhi -110 001

CHARGEREPORT

Certified that the charge of the office of the Deputy Director, Postal Staff College was relinquished by name I.D. Sharma on the date 31.12.1989 afternoon on superannuation in accordance with memo No. 11-1/89-SEA dated 14.12.1989 from Department of Telecom, New Delhi.

 

Date : 31.12.1989
 Place : New Delhi                                     Signature of Officer
                                                          (I.D. SHARMA)
 

7. A memorandum was issued in December, 1989by the Government of India, Department of Telecommunications regarding retirement on superannuation of officers belonging to Junior/Senior Time Scale of Indian P&T Accounts and Finance Service Group 'A' in which the name of the petitioner was also mentioned.

8. The matter in controversy arises from a circular issued by DoT dated 25.9.1998 relating to grant of concessional facilities to retired DoT employees. The relevant para 1 of the policy is as under:

"1. All the employees (both permanent and temporary) who put in minimum of 20 years or more continuous service in DoT or having their last posting in DoT for at least one year before retirement will be covered under the scheme."

9. A Circular No. 15/1999 was also issued on 30.12.1999 in respect of certain issues arising from the earlier circular dated 25.9.1998. The two relevant queries and their clarifications are as under:

---------------------------------------------------------------------------

    Points Raised                            Clarification
---------------------------------------------------------------------------
1. Whether the employees who         All retired employees of Department
have retired before 1,10.1998        of Telecom are eligible for
are eligible for concessional        concessional telephone facility.
telephone facilities?                The concessions will, however,
                                     be applicable on working telephones   
                                     of retired employees of DoT as
                                     admissible w.e.f. 1.10.1998 or
                                     thereafter from the date of submitting
                                     the application to concerned Telecom
                                     Authorities.
8. Whether the concessional          The concessional telephone
telephone facilities are             facilities are admissible only to
admissible to the retired/           the retired/retiring employees of
retiring employees of VSNL/          Department of Telecommunications
HTL/ITT/P&T Audit,                   & Department of Telecom Services.
Department of Posts/WPC/             Retired/retiring employees
TCIL and employees of                of VSNL/HTL/ITI/P&T
                                     Departments other than DoT? Audit/
                                     Department of Posts/WPC/TCIL &
                                     employees of other than DoT are not
                                     covered under the purview of the
                                     existing instructions.
--------------------------------------------------------------------------- 
 

10. Learned Counsel for the petitioner submits that though the petitioner worked in the Department of Post (for short, 'DoP'), the petitioner was retired from DoT in terms of the memorandum issued in December, 1989 and even the charge report stated that the petitioner had retired from DoT. It is, thus, submitted that the cadre controlling authority is DoT.

11. The second submission of learned Counsel for the petitioner rests on the letter dated 23.4.1986 and it is contended that the petitioner was, in fact, going to join DoT, but on account of excellence of his performance and the requirement of DoP, the petitioner was detained by the said Department with the consent of DoT. It is, thus, submitted that the petitioner cannot be deprived of the benefit of concessional telephone facility.

12. Learned Counsel for the respondent, on the other hand, submits that in terms of para 1 of the Circular dated 25.9.1998, the person should have put in minimum 20 years of service or more in DoT or having the last posting for at least one year before retirement from DoT. Learned Counsel for the respondent does not dispute the position that the effect of this would be that a person who may have served for 15 years in DoT, but happens to retire from another Department on deputation, would be deprived of the benefit of this concessional telephone facility while a person who has worked only one year prior to DoT would be entitled to this facility. It would be suffice to say this and it is not necessary to go further into the questions of the validity of such a policy in view of the reasons set out hereinabove.

13. Learned Counsel for the respondent submits that the issue raised before this Court, in fact, formed part of the adjudication by the Full Bench of the Central Administrative Tribunal in O.A. No. 1369/2000 titled 'J.P. Kaushik v. Union of India' decided on 23.10.2001, It is submitted that though the said judgment is not binding on this Court, it can be of a persuasive value. Learned Counsel has drawn attention of this Court to the observations made in para 10 of the said judgment wherein it is stated that the contention of learned Counsel for the applicant is that because the cadre controlling authority is DoT, even though the applicant was working with DoP, he cannot be deprived of the benefit since he is an employee of DoT. The Full Bench held that for purposes of the scheme, a person cannot be deemed to have retired from DoT being the cadre controlling authority unless he was actually working at least for a year before retirement with DoT.

14. In my considered view, the whole issue will have to be considered whether persons who have retired from DoT as a cadre controlling authority could be disentitled to such benefit. However, in the given facts and circumstances of the case, the same would not be required to be gone into for the simple reason that the petitioner in this case was detained in DoP with the consent of DoT in pursuance to the letter dated 23.4.1986.

15. The petitioner would have, in fact, come back to DoT and served it for more than three years and retired from DoT, but for that conscious decision taken in the case of the petitioner. The petitioner would have been eligible for the concessional telephone facility in such a case.

16. In my considered view, it is no answer to the claim of the petitioner, as contended by learned Counsel for the respondent, that in such a case, the petitioner ought to have insisted to come back to DoT. The petitioner could not have visualised that such a policy would come into existence a decade hence and the petitioner would be deprived of the benefit of such a concessional facility. It may also be noticed that learned Counsel for the petitioner has submitted that the petitioner has not been given any special concessional facilities by reason of his retiring from DoP.

17. In view of the aforesaid and in view of the letter dated 23.4.1986, I am of the considered view that the petitioner must be deemed to have retired from DoT as he was retained in DoP for a specific purpose on account of excellence of his work and with the consent of DoT.

18. A writ of mandamus is, thus, issued directing the respondent to give concessional telephone facility in terms of the policy dated 25.9.1998 to the petitioner from the date of his first representation dated 13.4.1999. The benefit can, thus, be extended from, 1.5.1999. The needful be done within a period of one month from today.

Rule is made absolute leaving the parties to bear their own costs.