IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 WA.No. 1276 of 2008() ------------------------------- AGAINST THE JUDGEMENT IN WPC.27962/2004 Dated 20/02/2008 .................... APPELLANTS - RESPONDENTS: ----------------------------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF TELECOMMUNICATIONS SANCHAR BHAVAN, NEW DELHI-1 2. BHARAT SANCHAR NIGAM LIMITED,REPRESENTED BY THE CHAIRMAN & MANAGING DIRECTOR STATESMEN HOUSE, BARAKAMBA ROAD, NEW DELHI-1 BY ADV. SRI.MATHEWS K.PHILIP,SC, BSNL RESPONDENT - RESPONDENT: ----------------------------------------- UNNIKRISHNAN T.V.,LOWER DIVISION CLERK O/O.THE CHIEF ENGINEER (ELECTRICAL) BHARAT SANCHAR NIGAM LIMIKTED, I FLOOR, ADMN.BUILDING, MANACAUD TELEPHONE EXCHANGE COMPUND, THIRUVANANTHAPURAM 695 009. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: vsv J.B.Koshy & P.N.Ravindran, JJ. ===================== W.A.No.1276 of 2008 ===================== Dated this the 20th day of June, 2008. JUDGMENT Ravindran,J. The respondents in W.P.(C) No.27962 of 2004 are the appellants in this Writ Appeal. The brief facts of the case are as follows: 2. The writ petitioner is an Ex-serviceman. He appeared in the Clerks Grade Examination held in 1997 for appointment as Lower Division Clerk in the Department of Telecommunications. He was selected and by Ext.P1 offer of appointment he was directed to report for duty in Sanchar Bhavan, Ashoka Road, New Delhi on or before 22.6.2000. By Ext.P2 letter dated 3.6.2000, the writ petitioner requested the appointing authority to appoint him in the State of Kerala preferably at Calicut, taking note of the fact that he had served in the Indian Army for a long period of 21 years and being an Ex-serviceman, he deserves a posting in the WA 1276/08 -: 2 :- State of Kerala. By Ext.P3 letter dated 17.11.2000, the writ petitioner was directed to report for duty in the office of the Chief Engineer (Electrical), B.S.N.L., Trivandrum. The petitioner was also informed that if he fails to report for duty by 15.12.2000, his candidature for the post of Lower Division Clerk will stand cancelled without further notice. The writ petitioner accordingly reported for duty on 29.11.2000 in the office of the Chief Engineer (Electrical), B.S.N.L., Trivandrum. 3. The Bharat Sanchar Nigam Ltd., hereinafter referred to as the "BSNL" for short, was incorporated on 1.10.2000, ie., before the writ petitioner actually joined duty as Lower Division Clerk pursuant to Ext.P3. After the BSNL was incorporated, the existing employees of the Department of Telecommunications were allotted to the BSNL. By Ext.P4 office memorandum dated 17.8.2001 all Group C and Group D employees allotted to the BSNL including the writ petitioner were called upon to exercise their option for absorption in the BSNL, failing which they were to be repatriated to the Department of Telecommunications. The writ petitioner exercised his option to serve as an employee of the BSNL and he was absorbed in the regular service of the WA 1276/08 -: 3 :- BSNL. Later, the writ petitioner was sought to be repatriated to the Department of Telecommunications. The writ petitioner thereupon filed W.P.(C) No.18267 of 2004. The appellants contested the Writ Petition on the ground that option was called for only in respect of employees who had been in service in the Department of Telecommunications as on 1.10.2000 and that as the writ petitioner entered service after that date, he is not entitled to be absorbed in the service of the BSNL. By Ext.P6 judgment delivered on 23.6.2004, this Court set aside the decision to repatriate the writ petitioner to the Department of Telecommunications, reserving liberty with the appellants to take a fresh decision in the matter with notice to the writ petitioner. Thereafter, Ext.P7 show cause notice dated 22.7.2004 was issued calling upon the writ petitioner to show cause why he should not be repatriated to the Department of Telecommunications. In Ext.P7 also, the reason given was that as the writ petitioner joined service only after 1.10.2000, in view of the decision to repatriate those employees of the B.S.N.L., who had joined the Department of Telecommunications after 1.10.2000, ie., the date of incorporation of B.S.N.L., the writ WA 1276/08 -: 4 :- petitioner is liable to be repatriated to the Department of Telecommunications. The writ petitioner submitted Ext.P8 reply objecting to the proposal in Ext.P7. By Ext.P9 office memorandum dated 14.9.2004, the writ petitioner's objections were overruled and he was directed to report for duty in the Department of Telecommunications. The writ petitioner thereupon filed W.P.(C) No.27962 of 2004 challenging Ext.P9 and seeking a declaration that he is not liable to be repatriated to the Department of Telecommunications. By judgment delivered on 20.2.2008, the learned Single Judge allowed the Writ Petition setting aside Ext.P9 and restrained the appellants from repatriating the writ petitioner to the Department of Telecommunications except with his consent. Hence, this Writ Appeal. 4. We heard Sri.Mathews K.Philip, the learned counsel appearing for the appellants. The learned counsel contended that as the writ petitioner was appointed in the Department of Telecommunications after 1.10.2000 when the B.S.N.L. was incorporated, he is not entitled to be absorbed in the service of the B.S.N.L. for the reason that the Government of India have WA 1276/08 -: 5 :- decided to repatriate those employees appointed in the Department of Telecommunications after 1.10.2000 to the Department of Telecommunications. 5. We have considered the submissions made at the Bar by the learned counsel appearing for the appellants. Though the writ petitioner was offered appointment as Lower Division Clerk in the Department of Telecommunications by Ext.P1 offer of appointment dated 23.5.2000, he did not join duty as directed therein. Instead, he chose to make a request for a posting in the State of Kerala, preferably at Calicut. That request was granted by Ext.P3 communication dated 17.11.2000 issued by the Government of India and he was directed to report for duty in the office of the Chief Engineer (Electrical), B.S.N.L., Trivandrum by 15.12.2000. The writ petitioner joined duty in the B.S.N.L. on 29.11.2000. As noticed earlier, the B.S.N.L. was incorporated on 1.10.2000. The petitioner joined service as Lower Division Clerk in the B.S.N.L. after that date namely on 29.11.2000. As on 1.10.2000 when the B.S.N.L. was incorporated the writ petitioner was not an employee of the Department of Telecommunications. The offer of appointment evidenced by Ext.P1 dated 23.5.2000 WA 1276/08 -: 6 :- did not take effect. It was only when the writ petitioner joined service on 29.11.2000 in the office of the Chief Engineer (Electrical), B.S.N.L., Trivandrum pursuant to Ext.P3 that his appointment took effect. Thus, the writ petitioner's entry in the service of the B.S.N.L. was after it was incorporated on 1.10.2000. The writ petitioner was at no point of time an employee of the Department of Telecommunications. In that view of the matter the fact that an option was obtained from him pursuant to Ext.P4 office memorandum dated 17.8.2001 on the premise that he was an employee the Department of Telecommunications, who had come over to B.S.N.L. is of no consequence. Further, it is evident from Ext.P7 show cause notice and Ext.P9 office memorandum that the writ petitioner was sought to be repatriated to the Department of Telecommunications for the reason that he joined the Department of Telecommunications on 29.11.2000 after the formation of the B.S.N.L. and as the decision of the Government of India was to give an opportunity to those employees of the Department of Telecommunications in service as on 1.10.2000 who had come over to the B.S.N.L., to opt for absorption in the WA 1276/08 -: 7 :- B.S.N.L., the writ petitioner who joined service in the Department of Telecommunications after 1.10.2000 is not entitled to be retained in the B.S.N.L. In other words, Ext.P7 is rested on the assumption that the writ petitioner was appointed in the Department of Telecommunications after 1.10.2000. As noticed by us earlier, the writ petitioner never joined duty in the Department of Telecommunications after 1.10.2000. On the other hand, he joined duty on 29.11.2000 as Lower Division Clerk in the B.S.N.L. Therefore, it was not necessary for the writ petitioner to exercise an option to continue in service of the B.S.N.L., even going by the policy decision taken by the Government of India based on the settlement arrived at with the employees of the B.S.N.L. The writ petitioner was never an employee of the Department of Telecommunications. On the other hand, after his service in the Indian Army he joined service only in the B.S.N.L. pursuant to Ext.P3 on 29.11.2000. 6. In that view of the matter, we are of the considered opinion that the writ petitioner who was appointed in the service of the B.S.N.L. is not liable to be repatriated to the Department of Telecommunications. We therefore agree with the learned WA 1276/08 -: 8 :- Single Judge that Ext.P9 is unsustainable in law and is liable to be set aside. The Writ Appeal accordingly fails and it is dismissed in- limine. J.B.Koshy, Judge. P.N.Ravindran, Judge. ess 26/6