K. Haripal, Member J
1. Applicant is the widow of late K.C.Achuthan, Junior Telecom Officer, Office of the Sub Divisional Officer, Telecom, Nilambur. On 09.05.1997 he
was placed under suspension on the alleged misconduct of demand and acceptance of illegal gratification of Rs.1,000/- from one P.T.Kunhimarakkar,
for giving telephone connection. Suspension was followed by initiation of proceedings under Rule 14 of the CCS (CCA)Rules, which culminated in
dismissal from service. The Appellate authority also confirmed that order. Then he approached this Tribunal with O.A.5/2003 challenging the legality
and correctness of the order of dismissal. While the Original Application was pending, Achuthan passed away on 23.03.2003. However, his widow,
the applicant, and son got themselves impleaded and pursued the application. The O.A. was allowed by this Tribunal by Annexure-A1 order dated
29.10.2004 setting aside the impugned order; as the original applicant died during the pendency of the application and before attending the age of
superannuation, the respondents were directed to consider that he had continued in service despite the impugned order till the date of superannuation;
the respondents were further directed to pay the additional applicants - the widow and son - the entire back wages for the period he was kept out of
service and also to make available the terminal benefits in full. It is submitted that WP(C)37304/2004 was filed by the respondents before the High
Court. It appears that, that Writ Petition was disposed of modifying the directions regarding payment of back wages. In other words, order of this
Tribunal quashing the order of dismissal stands confirmed by the High Court.
2. The applicant was granted pension calculated at CDA rates with effect from 25.03.2003. She is thus getting family pension at CDA rates.
3. After long lapse of time, Annexure-A2 representation was filed on 03.10.2020 requesting to switch over her family pension to IDA rates from
CDA rates, which was rejected by the impugned order dated 02.02.2021, Annexure-A3. In Annexure-A3 it is stated that her husband 'had not opted
for permanent absorption in BSNL with effect from 01.10.2000. Since he had not opted for BSNL absorption, the pension was calculated at CDA
rates from 25.03.2003 and it is not possible to convert the CDA pension to IDA pension at this juncture.'
4. Aggrieved by the same, the applicant has approached this Tribunal for quashing Annexure-A3, for issuing direction to the respondents 'to deem that
her deceased husband ought to have opted for IDA scale, had been alive to be reinstated in service, on absorption in the BSNL, and to fix
pension/family pension and other attendant benefits accordingly and to disburse all consequential benefits including the arrears with interest.'
5. According to the applicant, the options for absorption were called for from Group-B officers in BSNL by communication dated 02.09.2003. At that
time, the husband was no more and later O.A.5/2003 was allowed. The question of exercising option arose only after he was reinstated in service,
which was not possible. So, according to the applicant, the respondents ought to have considered the issue as if he was alive and was reinstated in
service; in normal course any prudent man would naturally opt for the IDA pay scale only and the respondents ought to have proceeded on the
hypothesis that he would have opted for IDA scale. Further, according to the applicant, the employer is bound to advice the employee of the
advantages and disadvantages of each choice to help him to select what is more beneficial and on that analogy BSNL should have accepted the
request of the applicant to switch over to IDA scale. Mechanical rejection of her representation is unsustainable.
6. The respondents 1 and 2 filed reply opposing the contentions of the applicant. Referring to Annexure-R2(a) communication it is submitted that
option for absorption from Group-B officers was called for only on 02.09.2003, but before giving his option Achuthan had passed away on 23.03.2003.
Thus the pay and allowances applicable to him was granted as per CDA scales; family pension was also calculated accordingly. After enjoying family
pension in the CDA scale for more than 15 years without any protest, she gave Annexure-A2 representation, which could not have been considered.
Referring to Annexure-R2(b) it is submitted that, following Annexure-A1 order of this Tribunal disciplinary proceedings initiated against Achuthan was
dropped. It is further stated that Harisankar, son of the applicant, was given employment under the compassionate appointment scheme in relaxation
of normal recruitment rules. He was appointed as a Group-D employee, who has since been promoted as Junior Engineer. As Achuthan had died
without exercising any option, benefits under CDA scale only could have been granted.
7. Respondents 3 and 4 in their separate written statements have also raised the very same contentions. According to them, as Achuthan had not
made any option for absorption in the BSNL, Presidential Order of absorption was not issued, IDA scales and fitment formula will be applicable only
to the employees who had opted for absorption in the BSNL and others would remain in the CDA pay scale.
8. The applicant filed a rejoinder. Referring to Annexure-R2(c) she contended that a circular was issued on 14.01.2002 calling for option for
absorption of Group-B officers in BSNL. On that day Achuthan was alive. According to them, in the light of Annexure-A1 order quashing the order
of dismissal Annexure-R2(d) cannot be pressed in to service.
9. I heard the learned counsel on both sides.
10. Even though the question of limitation was urged by the respondents, the very O.A. was drafted foreseeing such an argument, contending that it
being a continuing wrong, the plea of bar under limitation cannot be raised. The learned counsel also has relied on certain authorities like M.R.Gupta v.
Union of India [(1995) 5 SCC 628], Shivdass v. Union of India [(2007) 9 SCC 274] etc. to support the plea. It being a question touching the payment
of pension, as rightly pointed out, plea of limitation cannot sustain. Realising on this aspect, at the time of final hearing, the learned Standing Counsel
did not raise this contention.
11. There is no dispute on the basic facts. Achuthan, the husband of the applicant was caught on 09.05.1997 on the allegation of accepting illegal
gratification. He was immediately placed under suspension and disciplinary proceedings was ensued. After departmental enquiry he was dismissed
from service and the departmental appeal was also decided against him. Challenging the same, he approached this Tribunal with O.A.5/2003. During
the pendency of the O.A., he passed away on 23.03.2003 and then his legal representatives, wife and son, pursued the O.A. and the application was
allowed by this Tribunal. The Writ Petition filed by the respondents was dismissed on material aspects.
12. Disciplinary proceedings was initiated against Achuthan while he was a Group-B employee in the erstwhile Telecom Department working as a
Junior Telecom Officer. It is a matter of common knowledge that Bharath Sanchar Nigam Limited, BSNL for short, was incorporated on 01.10.2000
and all the employees of the Telecom Department were initially put on deemed deputation. Any how, at the time of incorporation of the BSNL or
when Annexure-R2(c) communication was issued on 14.01.2002 calling options for absorption from Group-B officers in BSNL, the said Achuthan
was remaining dismissed from service. Before the O.A. reached its logical conclusion, he passed away on 23.03.2003. The O.A. was allowed on
29.10.2004. The Writ Petition was decided on 10.02.2005. In other words, Achuthan had no occasion to give his response to Annexure-R2(c). The
last day for sending the option as per Annexure-R2(c) was 21.01.2002 and that process of exercising option was sought to be completed not later than
28.02.2002. Annexure-R2(a) indicates that, in continuation of Annexure-R2(c) another opportunity was also given to Group-B employees to give fresh
option. Any how, before issue of Annexure-R2(a) dated 02.09.2003 the husband of the applicant had passed away.
13. In other words, Achuthan could not give any option either because he was remaining dismissed from service or he was not alive when the second
opportunity was afforded. He could exercise an option only after the Annexure-A1 order had become final by the judgment of the High Court on
10.02.2005. It is the common case that for reasons beyond one’s control he could not exercise any option as he had died on 23.03.2003.
14. To put it in other words, he died and was unable to give his option in either way. Clause 10 of Annexure-R2(c ) states that ‘officers not
exercising any option as prescribed will be deemed to have opted for Government service'. Such a condition is incorporated in Annexure-R2(a) also, in
clause 4.5.
15. Further, Annexure-R2(d) also is important. It is a clarification issued on 30.01.2002. For our purpose, the point of doubt was 'whether Presidential
Order is to be issued in respect of employees who expired after 01.10.2000, the date of incorporation of the BSNL, but before exercising the option
for absorption in BSNL.' It was clarified that for officials who expired after 01.10.2000 but before exercising option for absorption in BSNL, there is
no question of issuing Presidential Order in their cases as till their death they remained in Government service.
16. The applicant wanted to make it out that, had Achuthan alive and continued in service when Annexures-R2(a) and R2(c) were issued, invariably
he would have opted for absorption in BSNL only. According to the learned counsel for the applicant, normally one would choose only the option
which would advance his interest and therefore the respondents went wrong in rejecting the plea of the applicant for granting her benefits under the
IDA. But according to the learned Standing Counsel, such matters cannot be presumed; there are large number of employees who had worked in the
Telecom department who had opted for CDA. He also placed reliance on the decision in Raja Ram v. Jai Prakash Singh and others [(2019) 8
SCC 701].
17. There is no such law nor it can be presumed that Achuthan would have preferred IDA. So, this is a fit case where it should be taken that he had
passed away without exercising any option. That means, such an employee or his family pensioner is not justified in seeking the benefits under the
IDA.
18. There is no material to find out his actual date of superannuation. If it was prior to 10.02.2005, the date of disposal of WP(C) 37304/2004 by the
High Court, if he was alive, he would have been reinstated in service. But by the time, last date for exercising option for absorption â€" as per
Annexure-R2(a) it was 20.10.2003 â€" was over. That means, other things remaining the same, he had no occasion to exercise as option and he
would have continued and retired as a Government servant.
19. Moreover, applicant now wants to assume that he would have opted for absorption in BSNL only. Such an assumption is fanciful, unrealistic and
far-fetched. We cannot assume as to how human mind would have worked on an issue 20 years before. There is no guarantee that he would have
acted in terms of material benefits alone. In my assessment, at this distance of time it is preposterous to think that he would have opted for absorption
in the BSNL.
20. Though the O.A. is not barred by limitation, the long delay in making a representation and then moving the Tribunal cannot be left unnoticed. After
remaining dormant for nearly 15 years, it is not known as to what was the motive in making such a belated representation and raising the plea. In the
absence of any option exercising absorption, it cannot be assumed that he would have opted for IDA. Matters having monetary ramifications cannot
be decided on surmises and conjectures. Merely for the reason that IDA scale would have given higher amounts, relief as prayed for by the applicant
cannot be granted.
The Original Application is dismissed. No costs.
(Dated this the 12th February, 2024)
