Bharat Sanchar Nigam Ltd. v. Rejilamoni OA and Union of India & Director, Staff, Department of Telecommunications

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 17TH DAY OF NOVEMBER 2016/26TH KARTHIKA, 1938 OP (CAT).No. 295 of 2016 (Z) -----------------------------------------AGAINST THE ORDER IN OA 493/2013 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 08-06-2016 PETITIONERS/RESPONDENTS IN THE OA: - -------------------------------------------------------------- 1. BHARAT SANCHAR NIGAM LTD, - THE CHAIRMAN AND MANAGING DIRECTOR, BHARAT SANCHAR BHAVAN, HARISH CHAND MATHUR LANE, JANPATH, NEW DELHI-110 001. 2. THE CHIEF GENERAL MANAGER, KERALA TELECOMMUNICATIONS, BSNL, KERALA CIRCLE, THIRUVANANTHAPURAM-695033. 3. GENERAL MANAGER, TELECOMMUNICATION, BSNL, SANCHAR BHAVAN, ALAPPUZHA, PIN:688011. BY ADV. SRI.T.SANJAY, SC, BSNL RESPONDENTS/APPLICANT/RESPONDENTS IN THE OA:- ------------------------------------------------------------------------------------ 1. REJILAMONI O.A, D/O LATE SHRI AMBUJAKSHAN, AGED 58 YEARS, REGULAR MAZDOOR, OFFICE OF THE SUB DIV ENGINEER, INTERNAL TELEPHONE EXCHANGE, AROOR, RESIDING AT VALACHAWUTTUM KOMBU HOUSE, PALLURUTHY, EDAKOCHI-682010. 2. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF TELECOMMUNICATIONS, NEW DELHI-110 001. 3. DIRECTOR, STAFF, DEPARTMENT OF TELECOMMUNICATIONS, MINISTRY OF COMMUNICATIONS, NEW DELHI. R2,R3 BY ADV. SRI.A.R.GANGADAS, CGC BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 17-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 295 of 2016 (Z) ---------------------------------------- ## **APPENDIX** PETITIONERS' EXHIBITS : - ---------------------------------------- EXHIBIT P1: TRUE COPY OF O.A.NO.493 OF 2013 ALONG WITH ITS ANNEXURE. EXHIBIT P2: A COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS. - EXHIBIT P3: TRUE COPY OF THE REJOINDER FILED IN REPLY TO THE REPLY STATEMENT BY THE APPLICANT. - EXHIBIT P4: COPY OF ADDITIONAL REPLY STATEMENT FILED BY THE BSNL. EXHIBIT P5: TRUE COPY OF THE ORDER IN OA NO.493 OF 2013 DATED 8.6.2016 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. RESPONDENTS' EXHIBITS : - NIL. ----------------------------------------- // TRUE COPY // ## P.A. TO JUDGE DMR/- ## **P.R. RAMACHANDRA MENON** **&** ## **P. SOMARAJAN, JJ.** ---------------------------------------------------- ## **O.P. (CAT) No. 295 of 2016** ---------------------------------------------------Dated this the 17[th] day of November, 2016 ## **J U D G M E N T** ## P.R. Ramachandra Menon, J. Exhibit P5 order passed by the Central Administrative Tribunal, Ernakulam in O.A. No.493 of 2013 whereby Annexure A8 order passed by the Ministry was set aside, holding that there is already a positive declaration in the earlier round of litigations, particularly in Annexure A6, that the respondent herein was a regular employee of the Department of Telecom, having been regularized in the service with effect from 01.10.2000 and that she was eligible to get all the benefits under the Central Civil Services (Pension) Rules, 1972. 2. The respondents in the O.A. are the petitioners herein. The dispute took its origin in relation to the appointment of the respondent who was serving as a casual labourer under the Department of Telecom earlier. O.P. (CAT) No. 295 of 2016 2 Pursuant to formation of BSNL with effect from 01.10.2000, she was taken over and her service was regularized as a Mazdoor (Group D) with effect from 01.10.2000 as per Annexure A2 order dated 30.05.2001. It was pursuant to the said proceedings that the permanent absorption of the regular Mazdoor was ordered by the BSNL as per Annexure A3 order dated 16.01.2012, based on the Presidential order issued in this regard, of course with reference to the relevant Rules, particularly Rule 37-A of the Central Civil Services (Pension) Rules, 1972. 3. More than a decade later, the respondent BSNL woke up from their slumber as a matter of revelation and passed Annexure A5 order on 21.07.2011 simply stating that there was some mistake in having regularized the service of the respondent as she was not having the requisite extent of service for temporary status so as to have regularized treating her as an employee of the Department, in turn, to be taken over by the BSNL. The said order was sought to be challenged by the respondent by filing O.A. No.289 of 2012 before the Central O.P. (CAT) No. 295 of 2016 3 Administrative Tribunal, Ernakulam. The claim was sought to be resisted by the Department, raising various contentions. After detailed hearing, Annexure A6 order was passed by the Tribunal on 11.12.2012, whereby a positive declaration was made to the effect that the applicant was eligible to be regularized in service with effect from 01.10.2000 and based on the said declaration, it was held that she would be eligible to get all the benefits under the Central Civil Services (Pension) Rules, 1972. It was also made clear that the basic order issued in the year 2001, i.e. the Presidential order could not have been varied, altered, modified or set aside by the BSNL, as per Annexure A5 order issued by the General Manager. The Department sought to take up the matter before this Court by filing O.P. (CAT) No. 1027 of 2013. After hearing both the sides, interference was declined and the O.P. was dismissed as per Annexure A7 dated 15.03.2013 and the matter normally should have become final as the Department did not take up the matter before the Apex Court, nor did file any petition for review, if at all any further grievance was there. O.P. (CAT) No. 295 of 2016 4 4. Now comes Annexure A8 as a 'Bolt from the Blue', stated as passed by the Ministry, virtually replacing the earlier order which was already set aside by the Tribunal vide Annexure A6 and substituting Annexure A8 in its place. This was again challenged by the respondent by filing O.A. No.493 of 2013 before the Tribunal. The Department sought to defend the said order. The Tribunal extracted the relevant paragraph of Annexure A6 and declined interference, dismissing the O.A., which forms the subject matter of challenge before this Court in this Original Petition. 5. Heard Sri. T. Sanjay, the learned Standing Counsel for the Department at length. The learned Standing Counsel submits that there is a clear observation in Annexure A6, particularly in the last line, to the effect that, if at all any mistake was there in the Presidential order, it could have been corrected only by the President and not by a subordinate like General Manager of the BSNL. It is in the said circumstance, that the matter was considered by the competent authority who passed Annexure A8, which is a O.P. (CAT) No. 295 of 2016 5 Presidential order and that the said order was passed in view of the actual facts and figures, particularly since the respondent/applicant was not having the requisite credentials to be given temporary status and in turn to be regularized in the service. A mistake is always a mistake which cannot be perpetuated and that a similar version put up before the Karnataka High Court challenging the verdict passed by the CAT was entertained and the writ petition was decided in favour of the petitioners as per judgment dated 17.09.2012. A copy of the verdict is also placed for perusal of this Court. 6. There is no dispute with regard to the sequence of events, particularly as to the fact that the service of the respondent was regularized as per Annexure A2 based on the Presidential order issued in this regard. There is also no dispute that the alleged mistake was unearthed by the petitioners/BSNL only a decade after passing Annexure A5 order, cancelling Annexure A3 order. On challenging the said order, the CAT observed as follows: O.P. (CAT) No. 295 of 2016 6 “7. The argument canvassed by the learned counsel for the respondents is very much attractive and persuasive, but there is a snag. The plea so advanced by the respondents cannot be sustained in view of the order of this Tribunal in OA 289/2012. It was held by this Tribunal in Annexure A6. _“4. The fact that the applicant was a casual employee in the Department of Telecommunication prior to the formation of BSNL is beyond dispute. That a policy decision was taken by the Government of India, Department of Telecommunication to absorb the casual employees in the order of preference as mentioned in Annexure A1. Applicant has been given the benefit of Annexure A1 decision by Annexure A2 order passed by the BSNL themselves. In Annexure A2 reference is made to Annexure A6. Therefore, it is only a follow up action taken by the BSNL in appointing the applicant which appointment is only an absorption followed by the decision conveyed in Annexure A1. Annexure A3 the presidential order itself makes it abundantly clear that the applicant was itself given the benefit of a temporary status employee and her regularization stood confirmed by Annexure A3. It is not the case of the respondents that prior to the appointment of the applicant they issued any advertisement to show that she is a direct recruit employee. On the other hand as already mentioned earlier it is only the casual employment of the applicant with the Department of Telecommunication and the benefit of the decision conveyed in Annexure A1 that is implemented by Annexure A2 stood confirmed by the presidential order Annexure A3. In such circumstances we have no doubt in our mind to hold that the applicant is an absorbed employee of the BSNL with effect from 1.10.2000. In such circumstances she is to be_ O.P. (CAT) No. 295 of 2016 7 _governed by the pension rule as is stood applicable to the Department of Telecommunication as on the date of absorption and not the new scheme. The cancellation order Annexure A5 has no legal effect since Annexure A3 presidential order cannot be nullified by the Assistant General Manager of BSNL. If at all there is any mistake in Annexure A3 order the competent authority to rectify the defect is the President itself and not an officer subordinate to it.”_ 8. From the above quoted portion, it is clear that this Tribunal has already found that the applicant was given the benefit of Annexure A1 decision by Annexure A2 order passed by the BSNL. Annexure A1 referred to in OA 289/2012 is Annexure A1 herein which is the decision taken on casual labourers. Annexure A3 order mentioned therein was the order dated 16.1.2002 (Annexure A3 herein) as per which the presidential sanction was conveyed for permanent absorption of the applicant in the BSNL, a temporary employee of DOT with effect from 01.10.2000 on the terms as indicated therein. Referring to Annexure A3 it was held by this Tribunal that the presidential order itself makes it clear that the applicant was given the benefit of temporary status employee and her regularization stood confirmed by Annexure A3. It is further made clear that there was nothing to show that the applicant was a direct recruit employee. On the other hand it was only a casual employment and she got the benefit of the decision conveyed in Annexure A1, O.P. (CAT) No. 295 of 2016 8 implemented by Annexure A2 which stood confirmed by the presidential order. There is a categoric finding in Annexure A6 that the applicant is an absorbed employee of BSNL w.e.f. 1.10.2000. The effect of that finding cannot be taken away on the ground that subsequently a cancellation order was passed by a competent officer. Had it been a case where Annexure A6 order happened to be passed against the Department solely on the ground that the cancellation order was passed by an incompetent officer then the position would have been different. But it was positively held by this Tribunal that the applicant is governed by the CCS (Pension) Rules as it stood on the date of absorption and not under the new rules. The learned counsel for the respondents would submit that the last sentence of Annexure A6 order would show that the presidential order cannot be nullified by the Assistant General Manager of BSNL and that was why the plea raised by the respondent was not acceded to. It is further stated that in Annexure A6 there is also an observation that if at all there is any mistake in Annexure A3 order the competent authority to rectify the same is the President itself and not an officer subordinate to it. In that background Annexure A8 order was issued by the competent authority. Though that observation is also in Annexure A6, there is a definite finding that the applicant was an absorbed employee of BSNL O.P. (CAT) No. 295 of 2016 9 w.e.f. 1.10.2000 and that she is governed by the Pension Rules as is stood on the date of absorption and not the new pension rules. Therefore, the plea to the contra raised by the respondents cannot be sustained. It is pointed out that the order of this Tribunal in OA 289/2012 has been upheld by the Hon'ble High Court of Kerala in OP (CAT) No.1027 of 2013 dated 15.3.2013.” 7. From the above, it is quite clear that a positive finding was rendered that the order passed by the concerned authority, which was subjected to challenge before the Tribunal, was, in fact, passed by an incompetent authority and hence not sustainable. It was accordingly, that the same was set aside declaring that the applicant was entitled to be treated as a regularized employee and in turn, entitled for consequential benefits flowing therefrom, thus declaring that she was eligible to have the benefits of Central Civil Services (Pension) Rules, 1972. This declaration still stands; more so since it has been upheld by the Division Bench of this Court as per Annexure A7. Admittedly, no further challenge was made before the Apex Court or by the review as mentioned above. The question is O.P. (CAT) No. 295 of 2016 10 whether the matter could have been reopened by the Department or the BSNL under any circumstance. 8. On going through the contents of Annexure A6 verdict passed by the CAT and Annexure A7 verdict passed by this Court, it is seen that no such opportunity was sought for from the part of the BSNL or the Department and no such liberty was granted either by the Tribunal or by this Court to reopen the case and to meddle with the fate of the applicant who was fighting for her cause. In so far as there is no reservation of any such right, it was never correct or proper for the Department to have passed Annexure A8 order, virtually substituting it in place of the order which was set aside by the Tribunal. As such, the CAT is perfectly right and within the four walls of the law in having passed Exhibit P5 order, which is now under challenge before this Court. The observation made by the Tribunal in Annexure A6 that, if at all there was a mistake in Annexure A3 order, it could have been corrected only by way of Presidential order and not by the order of an officer subordinate to it, is only a general declaration and even without the said O.P. (CAT) No. 295 of 2016 11 observation it is quite possible to sustain the said verdict by virtue of the specific declaration already made. It can never be a matter of dispute for anybody, that an order passed by the competitive authority cannot be annulled, varied or modified by any other authority who is situated on a lower pedestal, which is nothing but a universal declaration of law and nothing more, which did not confer any power/authority for the BSNL or the Ministry to have meddled with the said verdict in any manner. 9. The issue can be approached from another angle as well. There is no dispute to the fact that the respondent was regularized way back in the year 2000 as per Annexure A2. The change in position was sought to be introduced for the first time, with reference to the alleged mistake, only after a decade. By that time, the respondent was leading a life with the available source of income and had already crossed the age for applying for any other job. Had the position been revealed to the respondent then and there, it would have been possible for her to apply for and obtain some or other job elsewhere. It was only by virtue of the O.P. (CAT) No. 295 of 2016 12 regularization given to her that she had no need, necessity or occasion to apply for and obtain any other job. By virtue of the callous inaction on the part of the Department/BSNL in realizing the mistake and subsequently in passing the impugned order by way of correction, much hardship and prejudice have been caused to the respondent. This Court is of the firm view that, this is not at all a fit case to call for interference, more so since the rights and liberties of the respondent stand already settled. We also find support from the ruling rendered by the Supreme Court to the effect that settled position cannot be unsettled as per the verdict reported in **Bhoop Singh v. Union of India and Others** [AIR 1992 SC 1414]. With regard to the reliance sought to be placed on the verdict passed by the Karnataka High Court, we find that the position is not exactly similar as involved in the present case. No such declaration as made by the Tribunal vide Annexure A6 order or the finality attained to the same by virtue of Annexure A7 judgment passed by this Court, is stated as involved in the said case. This Court does not O.P. (CAT) No. 295 of 2016 13 propose to say that mistake cannot be corrected. It has to be corrected, but it has to be corrected within a reasonable time. There is no case for the respondents that they have taken any corrective measures, particularly by way of disciplinary action, if at all any, in respect of the officials who are responsible for having committed the mistake. This cannot be shifted to the shoulders of the respondent who is occupying the lowest tier in the hierarchy of posts in the BSNL. We find absolutely no merit in the Original Petition. The Original Petition stands dismissed accordingly. ## **P.R. RAMACHANDRA MENON JUDGE** ## **P. SOMARAJAN JUDGE** DMR/-