@JUDGMENTTAG-ORDER
K.K. Sasidharan, J.
Preliminary:
1. These three writ petitions challenge the appointment of the first Respondent in the respective writ petitions and they seek to issue a writ of quo warranto.
2. The Petitioner in W.P. No. 9687 of 2010 seeks a writ of quo warranto to show cause under what authority the first Respondent continue to hold the office of the Chief General Manager, Southern Telecom Region on deputation in Bharat Sanchar Nigam Ltd. at Chennai.
3. The Petitioner in W.P. No. 9688 of 2010 seeks a writ of quo warranto to show cause under what authority the first Respondent continue to hold the office of the General Manager, Puducherry Telecom District in Bharat Sanchar Nigam Ltd., at Puducherry.
4. The Petitioner in W.P. No. 9689 of 2010 seeks a writ of quo warranto to show cause under what authority the first Respondent continue to hold the office of the General Manager, Thanjavur Telecom District in Bharat Sanchar Nigam Ltd., at Thanjavur.
5. Though these three writ petitions relate to three different officials of the Bharat Sanchar Nigam Ltd. (hereinafter referred to as "BSNL"), the basic facts are identical in all these cases inasmuch as the main challenge relates to the continuance of these officers in BSNL in spite of their expiry of the period of deputation.
W.P. No. 9687 of 2010:
6. The Petitioner is a Junior Accounts Officer working in BSNL for the past six years. According to the Petitioner, the first Respondent was holding the office of the Chief General Manager, Southern Telecom Region in BSNL. The first Respondent has been working in the division since 1 October 2000, the date on which BSNL was incorporated into its current stature from the Department of Telecommunications (hereinafter referred to as "DOT"). When BSNL was incorporated on 1 October 2000 from DOT, the employees, who were on the permanent rolls of DOT, as on 30 September 2000, were transferred to BSNL on "deemed deputation" subject to their final absorption in a phased manner. These employees were given the option of either being absorbed into BSNL or continuing in Government Service. Until such option was exercised, they continued on deemed deputation. Though option was given on 24 March, 2005, the first Respondent did not exercise his option. Though option forms were issued on subsequent occasions also with reminders to exercise the option, most of the employees including the first Respondent did not exercise their option for absorption into BSNL.
7. Subsequently, the DOT as per their letter dated 30 September 2005 extended the period of deputation up to 15 October 2005. When it was found that the employees have not exercised their option as on 18 October 2005 they were repatriated to the parent department after completion of their deputation on 15 October 2005. The said order clearly indicates that the extended period of deemed deputation had ended on 15 October 2005 and all Group A Officers were reverted to the Government. The order of repatriation was challenged by the Indian Telecom Service Association along with its members including the first Respondent before various benches of the Central Administrative Tribunals all over India. The applications were subsequently transferred to the Principal Bench at New Delhi. The Principal Bench as per order dated 28 February, 2006 dismissed the applications opining that an official has no legal right to continue on deputation indefinitely and it was not possible to remain on deputation and yet not exercised option either for his retention or for his repatriation to the parent department. The Principal Bench was pleased to grant ten days time for exercising the option. However, most of the employees have not given their option. The Department of Personnel and Training in their letter dated 29 November, 2006 indicated the implications of overstay while on deputation. The said memorandum clearly states that the deputationist shall be deemed to have been relieved on the date of expiry of the deputation period unless the same has been extended prior to the date of expiry. The period of deputation was subsequently extended upto 22 December 2008. No further extensions have been given by the department.
8. The first Respondent has been on deemed deputation for ten years ever since the incorporation of BSNL on 1 October 2000. The first Respondent and another similarly positioned ITS employees have been illegally occupying various Group A posts within BSNL and therefore they should be restrained from functioning as such.
W.P. No. 9688 of 2010
9. The Petitioner is working as a Junior Telecom Officer at the office of the General Manager, BSNL, Pondicherry. He is also a Circle Secretary for Tamil Nadu of the All India Graduate Engineers Telecom Officers Association.
10. According to the Petitioner, the first Respondent in this writ petition is currently functioning as the General Manager of BSNL at Pondicherry and he has been on deputation since 1 October 2000, the date on which BSNL was incorporated in its current stature from the Department of Telecommunications. Even though the period of deputation itself expired on 22 December 2008, he is still continuing on deputation.
W.P. No. 9689 of 2010
11. The Petitioner in W.P. No. 9689 of 2010 has filed this writ petition and here, the challenge is to the deputation of the first Respondent, who is presently functioning as the General Manager of BSNL at Tanjore. According to the Petitioner, the deemed deputation has come to an end by 22 December, 2008 and as such, the continuance in office by the first Respondent is without authority.
Counter Statements:
12. The concerned first Respondent in all these writ petitions have filed separate counter affidavits to justify their position. According to these officers, they are on deemed deputation with effect from 1 October 2000 and not on deputation basis as claimed by the Petitioners. Their case would come under Rule 37-A of the Central Civil Services (Pension) Rules, 1972. The said provision deals with conversion of a Department of the Central Government into a Public Sector Undertaking or an autonomous body and the continuance of its officers in the newly formed undertaking or autonomous body on terms of foreign service, without any deputation allowance, till such time as they get absorbed in the said undertaking or body. Therefore it was only a case a deemed deputation.
13. Respondents 2 and 3 filed counter affidavits through their Assistant General Manager, Chennai wherein it was indicated that these officers are functioning on deemed deputation as provided under Rule 37-(A-1) (1) & (2) of the Central Civil Services (Pension) Rules, 1972. According to Respondents 2 and 3, in view of Rule 37-A of the Central Civil Services (Pension) Rules, 1972, the orders of the Government of India extending the period of deputation has no relevance and in any event, cannot be regarded as superseding the statutory effect of the said Rules framed by the President of India under Article 309 of the Constitution of India. Respondents 2 and 3 justified the continuance of these officers , as according to them BSNL had not yet developed its own middle and higher level of management in its key area of telecom operations, planning and development, presently being looked after by these ITS officers throughout the Country. It was their further contention that in case these ITS officers working on deemed deputation are withdrawn before completion of the absorption process without making any suitable alternative arrangements, then it will create a huge vacuum in operational and service areas of BSNL which is already passing through a very critical phase in the fierce competition from the private operators. The counter further contains an indication that even some of those deputationists, who have exercised option for Government Service are still retained in BSNL as the absorption process is not over.
14. Respondent No. 4 filed a separate counter affidavit in answer to the contentions raised in the respective writ petitions. The material portion of the counter relevant for the purpose of deciding these writ petitions read thus:
In this regard, it is further reiterated that the said Rule 37-A which is a statutory rule notified under Article 309 of the Constitution of India does not prescribe any time limit for deemed deputation of officers in PS Us and completion of absorption process. As such, the orders issued by the Respondent Department of Telecommunications for continuing the period of deemed deputation were issued by the Respondent Department of Telecommunications only to facilitate expeditious completion of absorption process in a time bound manner. Besides, since a successful completion of the absorption process is vital to the Government interests including those of BSNL/MTNL, it has been decided by the competent authority in the Respondent Department of Telecommunications not to disturb the current deployment of all Group A Officers in BSNL/MTNL who are on deemed deputation for the present.
15. The second Respondent has filed an additional affidavit giving certain additional particulars. According to the second Respondent, the writ petitions challenging the order passed by the Principal Bench of Central Administrative Tribunal dated 31 October 2005 and 28 February 2006 are now pending before the High Court of Delhi. The second Respondent submitted that the Government did not pass any orders of repatriation subsequent to 22 December 2008. It was their further contention that the Government of India has taken a decision to extend the period of deemed deputation till the process of absorption is over without specifying any time limit.
The issue:
16. The core issue which arises in these writ petitions relates to the legality of continuation of the specified officers in spite of the expiry of their period of deputation.
Discussion:
17. The writ Petitioners have no case that the first Respondent in each of these writ petitions does not possess the basic qualification for appointment as General Manager of BSNL. They are fully qualified to occupy the office of the General Manager. They were functioning as officials in the Communications Department till BSNL was formed on 1 October 2010. Even according to the Petitioners, the employees, who were on the permanent rolls of DOT as on 30 September 2000 were transferred to BSNL on "deemed deputation" subject to their final absorption in a phased manner. Therefore, the Petitioners have no quarrel with respect to the proposition that the concerned employees were on deemed deputation. It is true that orders were passed by the Government of India extending the period of deputation. It is also true that orders of repatriation were made earlier, which were challenged in various original applications. Ultimately, the applications were transferred to the Principal Bench and all the applications were dismissed. The affidavit filed by the second Respondent would show that the writ petitions challenging the order passed by the Central Administrative Tribunal are now pending consideration by the Delhi High Court.
18. It is not the case of usurping the office by an officer, who has no authority to hold the post. The Petitioners have no such case.
19. Rule 37-A of the CCS (Pension) Rules, 1972 deals with absorption consequent upon conversion of a Government Department into a Central Autonomous Body or a Public Sector Undertaking. The said rule speaks of "Deemed Deputation" without allowance. Rule 37A(2) gives authority to the Central Government to give an option to the concerned employees to revert back to the Government or to seek permanent absorption in the Public Sector Undertaking or autonomous body, as the case may be. It is the case of the Petitioners that such option was given but the same has not been accepted by the first Respondent. It is also a matter of record that in spite of giving such option, the Central Government have extended the deemed deputation from time to time. The affidavit filed on behalf of the Cabinet Secretary, Government of India and the Secretary, Department of Telecommunications shows that the competent authority has decided not to disturb the currently deployed employees of BSNL/MTNL, who are on deemed deputation for the present. The Government of India have indicated that it was only with their permission, these officers are continuing in BSNL. There are no materials to disbelieve the said version.
20. The first Respondent in all these writ petitions continue to be the employees of Government of India. BSNL is a company formed by the Government of India. In fact, originally the entire telecommunication sector was looked after by the department of telecommunications. BSNL in its current stature was originated from the department of telecommunications. Therefore, all the officers of the Telecommunication department are on deemed deputation. Since the Government of India has very clearly indicated that these officers are continuing in BSNL with their permission their holding the office cannot be treated as illegal.
21. The Petitioners have no case that the appointments were made quite contrary to the statutory rules. Even their affidavits filed in support of the writ petitions, support the case of the first Respondent in the respective writ petitions. It is an admitted case of the parties that all the employees, who were on the permanent rolls of DOT as on 30 September, 2000 were transferred to BSNL on deemed deputation subject to their final absorption in a phased manner. When the very appointment was made as per the statutory rules and their subsequent continuation was on account of the formation of a company by the Government, resulting in giving deemed deputation to the employees, by no stretch of imagination it could be said that the continuance in office by the first Respondent in all these writ petitions were without authority calling for interference by issuing a writ of quo warranto.
22. It is also a matter of record that the connected writ petitions are now pending before the High Court of Delhi. The Issue involved in these writ petitions also pertains to the absorption of the erstwhile employees of the department of Telecommunications in BSNL.
23. The prayer is to issue a writ of quo warranto. Writ of quo warranto is purely a discretionary relief. It is rather technical in nature. Before issuing such prerogative writs, Courts have to take note of several factors and circumstances. It cannot be issued as a matter of course. There should be sufficient materials before the Court to arrive at a definite conclusion that the concerned authority has no right to continue in public office.
The legal authorities:
24. The nature of a writ of quo warranto was explained by the Supreme Court in
7. ...Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons, not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not.
25. In
57. It is settled law that a writ of quo warranto does not lie if the alleged violation is not of a statutory nature. Three judgments relied on by Mr P.P. Rao can be usefully referred to in the present context.
58. ...
59. In High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat it was held by this Court that a writ of quo warranto can only be issued when the appointment is contrary to the statutory rules. The judgment in Mor Modern Coop. Transport Society Ltd. v. Financial Commr. & Secy. to Govt. of Haryana was also relied on.
60. Thus it is seen that a writ of quo warranto does not lie if the alleged violation is not of a statutory provision.
26. In a recent decision in Hari Bansh Lal v. Sahodor Prasad Mahto 2010 (8) SCALE 623 while holding that Public Interest Litigation is not maintainable in service matters, the Supreme Court indicated that even for issuance of a writ of quo warranto the High Court has to satisfy that the appointment is contrary to the statutory rules. The Supreme Court said:
20. From the discussion and analysis, the following principles emerge:
a) Except for a writ of quo warranto, PIL is not maintainable in service matters.
b) For issuance of writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules.
c) Suitability or otherwise of a candidate for appointment to a post in Government service is the function of the appointing authority and not of the Court unless the appointment is contrary to statutory provisions/rules.
Outcome:
27. The clear admission made by the Petitioners in their affidavit that all the employees, who were on the permanent rolls of DOT as on 30 September 2000 were transferred to BSNL on deemed deputation subject to their final absorption on phased manner alone is sufficient to reject their prayer to issue a writ of quo warranto. The Government of India is the authority to say that the concerned Respondents have no right to occupy the posts on account of the expiry of the period of deemed deputation. However, the Government of India has clarified that these officers are continuing with their permission. Therefore, we are of the view that the Petitioners have not made out a case for issuance of a writ of quo warranto.
28. For these reasons, we dismiss the writ petitions. No costs.
