1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.614 OF 2002 Tapan K. Sarkar ) B 602 Dara Enclave ).Petitioner (AWHO) Nerul, ) New Mumbai  400 706 ) V/s. 1. Chairman and Managing Director, ) Videsh Sanchar Nigam Limited ) Lokmanya Videsh Sanchar Bhavan ) Kashinath Dhuru Marg, ) Opposite Kirti College, ) Prabhadevi ) Mumbai  400 028 ) ) 2. Videsh Sanchar Limited ) Through its Chairman and ) Managing Director ) Lokmanya Videsh Sanchar Bhavan ) Kashinath Dhuru Marg, ) Opposite Kirti College, ) Prabhadevi ) Mumbai  400 028 ) ).Respondents 3. Ministry of Communication ) Through its Director ) Department of Telecommunication ) Sanchar Bhavan ) New Delhi  110 001 ) ) 4. Ministry of Disinvestment ) 4th floor, Block No.14, ) CGO Complex, Modi road ) New Delhi  110 003 ) 2 5. Union of India ) Marine Lines ) Bombay ) ) Mr.Vijay Killedar i/b.Mr.Nitin Jamdar, Advocate, for the petitioner Mr.K.J.Presswalla i/b.Mulla & Mulla, Advocate, for the respondent Nos.1 & 2 CORAM : P. B. MAJMUDAR R.M.SAVANT, JJ. DATE : 18TH JUNE, 2009 ORAL JUDGMENT ( PER P.B.MAJMUDAR, J.) . By way of this Writ Petition, the petitioner has prayed that an appropriate order be passed by setting aside Clause (A)(iii) of the Circular dated 7th February, 2002, issued by the respondent No.2, a copy of which is annexed to the Writ Petition as Exhibit G . It is also prayed that the respondents may be directed to allot 3550 shares of the respondent No.2 to the petitioner as per his application dated 11th February, 2001. 2. The petitioner joined the services of the 3 respondent No.2  Videsh Sanchar Nigam Limited on 1st March, 1994. The petitioner was appointed on the post of the General Manager (Commercial) as a regular employee. A Scheme was floated being Employees Stock Purchase Scheme (ESPS) in VSNL pursuant to the decision taken for dis-investment plan. The Union of India approved the Scheme of purchase of shares for all the employees in VSNL and all employees including full time functional Directors on the roll of the Company as on 1st September, 2001, were held eligible to buy the shares as per the Scheme. Subsequently, by way of Circular dated 7th February, 2002, it is clarified that the employees, who were on the roll of the Company as on 1st September, 2001, would be eligible to buy the shares. In view of the dis-investment process getting completed, the Government of India decided the price of Rs.47.85 per share which have been allocated to the employees. It is also provided in the above said Circular that since the process has to be completed on 15th February, 2002, 4 the following guide lines are issued as per the said Circular which are as under :- (iii) Employees, who have expired or resigned after 1st September, 2001,shall not be eligible. It is not in dispute that the petitioner had already tendered resignation by a letter dated 20th October, 2001. The said resignation letter finds place at page 18, Exhibit-C of the petition. The petitioner has stated in his letter that he is tendering his resignation due to his personal reasons and for better prospects. By the said letter, the petitioner has requested that he may be relieved from service from 6th November, 2001. He further requested to waive notice period of three months while relieving him on 6th November, 2001. 3. A letter of acceptance of resignation is also produced on record which was accepted by a letter dated 26th November, 2001. 5 4. The grievance of the petitioner is that as per the Scheme floated by the respondent No.2, all the employees, who were in service on the relevant date i.e.on 1st September, 2001, are also eligible to get the pensionary benefits under the said Scheme. It is also the grievance of the petitioner that since he is relieved from the services of respondent No.2 with effect from 6th November, 2001, in view of his resignation and as per the Scheme, the employees, who were in service on 1st September, 2001, are entitled to the said benefit under the said Scheme and on that basis the petitioner is entitled to get benefit under the said Scheme and there is no reason as to why he should not be given such benefit. 5. On the other hand, Mr.K.J.Presswalla, the learned counsel appearing for the respondent Nos.1 & 2 submitted that after the dis-investment plan, the respondent No.2 cannot be said to be a State within the meaning of Article 12 of the 6 Constitution of India and therefore, no Writ is maintainable against the respondent No.2. It is further submitted that the share holding of the Government is only 26% and therefore, it cannot be said that the respondent No.2 is an instrumentality of the State. The learned counsel further submitted that even on merits the petitioner has no case because as per the guidelines for the purpose of implementing the Scheme, it is clearly provided in the Circular dated 7th February, 2002 that the employees, who have retired or resigned after 1st September, 2001, shall not be eligible for the benefits under the said Scheme. 6. Heard the learned counsel for the parties. We have gone through the pleadings of the parties and the documents annexed with the Writ Petition. In the reply filed by the respondent Nos.2 & 3, in paragraphs eight and nine of the said reply, the background and the purpose of floating the said Scheme has been mentioned. The learned counsel for 7 the respondent Nos.1 & 2 submitted that the Scheme is floated with a view to see that the employee may continue in service with the respondent No.2. The idea, therefore, was to attract the employees to continue in the employment. It is further submitted that the employee, who has resigned voluntarily, cannot get the said benefit. The Company was not required to give the benefit to those who have not continued in the employment. 7. We have heard the learned counsel for the parties on merits on all the points involved in the matter. Since we have examined the case of the petitioner on merits, it is not necessary to consider as to whether the Writ is maintainable against the respondent No.2 or not as on examination of the case we find that there is no substance in the petition. The question about maintainability of the petition against the respondent No.2 is accordingly kept open. 8 8. It is required to be noted that the petitioner, who was in employment as on 1st September, 2001, had subsequently tendered his resignation on 20th October, 2001, and accordingly, he resigned after 1st September, 2001. We do not find any arbitrariness in the said Circular. It cannot be said that the said Circular is against the main Scheme, as the said Circular is only clarificatory in nature. If an employee is removed from service or if he has resigned from service after a particular date i.e. on 1st September, 2001, there is nothing wrong, if such an employee is not held to be eligible to get the benefit under the said Scheme. The Circular is nothing but in the nature of guidelines. The benefit under the Scheme is not extended in favour of certain categories of employees and the petitioner, who has resigned after 1st September, 2001, is not entitled to get the benefit under the said Circular. The Circular in question is nothing but in the nature of the guidelines, as to how the Scheme is to be operated. 9 The Scheme subsequently came into effect after dis- investment in the year February, 2002. Accordingly, we do not find any substance in the submission of the learned counsel for the petitioner that the petitioner is eligible to get the benefit under the said Scheme. It cannot be said that the Circular is in any way contrary to the said Scheme. We, therefore, do not find any substance in this Writ Petition as it is an admitted fact that the petitioner has resigned after the prescribed date i.e. on 1st September, 2001. The above Writ Petition is accordingly dismissed. Rule discharged. No order as to costs. ( R.M.SAVANT. J.) ( P. B. MAJMUDAR, J.)