IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 WP(C).No. 27962 of 2004(D) -------------------------- PETITIONER: ------------ UNNIKRISHNAN.T.V., LOWER DIVISION CLERK, OFFICE OF THE CHIEF ENGINEER (ELECTRICAL), BHARAT SANCHAR NIGAM LIMITED, KOCHUMADATHIL BUILDING, MANJALIKULAM ROAD, TRIVANDRUM-695 001. BY ADV. SRI.THOMAS ANTONY SRI.M.P.PRAKASH RESPONDENTS: ------------- 1. UNION OF INDIA REPRESENTED BY THE SECRETARY, DEPARTMENT OF TELECOMMUNICATIONS, SANCHAR BHAVAN, NEW DELHI-1. 2. BHARAT SANCHAR NIGAM LTD., REPRESENTED BY THE CHAIRMAN CUM MANAGING DIRECTOR, STATESMAN HOUSE, BARAKHAMBA ROAD, NEW DELHI-1. BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL SRI.MOHAMMED SHAH, ADDL.CGSC SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS EXT.P1- TRUE PHOTOCOPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 23.5.00 EXT.P2- TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE petitioner DATED 3.6.00 EXT.P3- TRUE PHOTOCOPY OF THE ADVISED LETTER DATED 17.11.00 BEARING NO.A-12022/3/2000-ADMN.II EXT.P4- TRUE COPY OF THE O.M.DATED 17.8.01 OF THE 1ST RESPONDENT EXT.P5- TRUE COPY OF THE ORDER DATED 22.1.02 OF THE 2ND RESPONDENT EXT.P6- TRUE COPY OF THE JUDGMENT EXT.P7- TRUE COPY OF THE NOTICE DATED 22.7.04 EXT.P8- TRUE COPY OF THE REPRESENTATION DATED 30.7.04 EXT.P9- TRUE COPY OF THE O.M. DATED 14.9.04 EXT.P10- TRUE COPY OF THE ORDER DATED 17.11.2003 (TRUE COPY) P.A TO JUDGE V.GIRI, J ------------------- W.P.(C).27962/2004 -------------------- Dated this the 20th day of February, 2008 JUDGMENT After serving in the Indian Army for a period of 21 years, petitioner participated in the selection for appointment to the post of L.D.Clerk in the Central Secretariat Clerical Service in the Department of Telecommunications. By Ext.P1, petitioner was offered appointment as L.D.Clerk and was directed to report for duty in the Sanchar Bhavan, Ashok Road, New Delhi. By Ext.P2, petitioner requested that after serving in the Indian Army for a period of 21 years, he would like to be given a posting in the native place. 2. By Ext.P3 communication, issued by the Assistant Director General, Department of Telecommunications, dated 17.11.2000, petitioner was advised to report for duty in the office of the Chief Engineer at Thiruvananthapuram. It was also mentioned that there was no post of L.D.C in the CSCS (Central Secretariat Clerical Service) Cadre of the Department in Kerala W.P.(C).27962/2004 2 other than at Thiruvananthapuram. Petitioner joined duty on 29.11.2000 and has been continuing in service. 3. Bharat Sanchar Nigam Ltd. came into existence with effect from 1.10.2000. Apparently, the initial cadre strength was filled up by absorption of persons from the Department of Telecom. By Ext.P4, an option was given to Group C and D staff belonging to the Secretariat staff to opt for BSNL. Petitioner exercised his option and consequent upon the acceptance of the option for permanent absorption in BSNL, petitioner, who was officiating as U.D.Clerk on Ad-hoc basis, was absorbed into regular service in the BSNL. Apparently, though Ext.P5 shows the grant of Ad-hoc amount of Rs.6,000/-, this was only a consequence to the acceptance of the option for absorption into permanent service in the BSNL. 4. Later, petitioner was sought to be repatriated back to the Department of Telecom. This was challenged in Writ Petition No.18267/2004. Same was allowed under Ext.P6 judgment, finding that the order of repatriation is W.P.(C).27962/2004 3 vitiated for violation of the Rules of natural justice and if at all the petitioner is repatriated, it shall be only with notice to him. 5. Thereafter, Ext.P7 notice was issued permitting the petitioner to show cause why he should not be repatriated back to the Department of Telecom. The ground stated is that only notice to those persons who were in the Department of Telecom on the date of formation of BSNL, 1.10.2000, could have exercised their option. Petitioner had joined service only on 29.11.2000 and therefore, petitioner was not entitled to exercise an option to go over to the BSNL. 6. Petitioner's explanation under Ext.P8 was not accepted and the proposal under Ext.P7 was confirmed under Ext.P9. Ext.P9 has been challenged in this writ petition. There was an order of stay as well, remaining in force from 23.9.2004. 7. Respondents have filed a counter affidavit supporting Ext.P9. W.P.(C).27962/2004 4 8. I heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents. 9. The question for consideration is whether Ext.P9 repatriating the petitioner back to the Department of Telecom is sustainable or not. 10. Learned counsel for the petitioner submits that once he is absorbed into permanent service in BSNL, he cannot be repatriated back to the Department of Telecom. It is further contended that employer- employee relationship is one between the petitioner and the BSNL and therefore petitioner cannot be compulsorily repatriated back to the Department of Telecom. 11. Learned Standing Counsel, on the other hand submits that the offer made to the petitioner vide Ext.P4, was a mistake as it could be made only to those persons who were in the service of the DOT as on 1.10.2000 and the petitioner obviously could not have W.P.(C).27962/2004 5 been extended such option. It is further submitted that the permanent absorption of the staff of the DOT into BSNL requires presidential orders and since there is no such order in the case of the petitioner, he obviously cannot be treated as a member of the BSNL. 12. I am of the view, that the petitioner is correct in submitting that when he was absorbed into permanent service of the BSNL, he became a staff of the BSNL. In fact, petitioner was advised to report for duty in the office of the Chief Engineer (Electrical), BSNL, Kerala Zone. No doubt an option in the nature of Ext.P4 was extended to the petitioner treating him as an erstwhile employee of the Department of Telecom, but it is common case that the petitioner had accepted the option. Whether the petitioner was entitled to be extended such option or whether there was a mistake in extending such option, I am of the view that once the petitioner is absorbed into permanent service of the BSNL, it is not possible for the respondents to retrace their steps and then compulsorily send the petitioner back to the Department of Telecom in the absence of W.P.(C).27962/2004 6 any overriding statutory provision, which vitiate the act of exercise of option by the petitioner and his permanent absorption into the service of BSNL as evidenced by Ext.P5. In these circumstances, the premise on which Ext.P9 order is passed is untenable and unsustainable. In the result, writ petition is allowed. Ext.P9 order is set aside. Respondents are restrained from repatriating the petitioner back to the Department of Telecom except with the consent of the petitioner. V.GIRI, Judge mrcs