Rajeshwar Dayal vs Union Of India

L. Narasimha Reddy, J

The applicant joined the service of the Department of Telecommunications (DoT), Government of India. In the year 2011, he proceeded on deputation to the Ministry of Home Affairs. The repatriation from there took place on 21.02.2017, and he reported to his parent department.

Substantial activities of the DoT were made over to two Central Government Corporations, namely, Mahanagar Telephone Nigam Limited (MTNL), and Bharat Sanchar Nigam Limited (BSNL). Various categories of employees of the DoT were given option either to remain in the service of the DoT, or to become the employees of the said Corporations. The applicant herein opted to remain in the DoT.

Through an order dated 01.05.2017, the DoT transferred and posted about 60 Group 'A' officers to different places. A handful of them were posted to work in certain establishments of the BSNL. The applicant was posted at the Headquarters of the BSNL. This OA is filed challenging the same.

The applicant contends that he has always been an employee of the DoT, and when the occasion arose for exercising the option, he chose to remain with the DoT, and there was absolutely no basis for the respondent to post him in the BSNL.

The respondent filed a detailed counter affidavit. It is stated that consequent upon the formation of BSNL and MTNL, necessity has arisen to re-organise the cadre structure in the department, and after the exercise of options was completed, it emerged that 1690 officers of Group 'A' remained with the department, and as against that, the needs of the department was only to the extent of 853 officers, and 720 officers became surplus, after keeping some deputation reserve. The Union Cabinet is said to have approved a scheme as regards the posting of surplus officers by evolving a scheme, maintaining "special diminishing reserve", according to which, the officers identified in that category would continue to be the employees of the DoT, but would be posted at various places, and on retirement of such officers, the post itself will cease to exist. It is also pleaded that all the rights of the applicant are intact, so much so, the place of posting is also at Delhi, that too, in the Headquarters of the BSNL in DoT.

Heard Shri V. S. Krishna, learned counsel for the applicant, and Shri Subhash Gosain, learned counsel for the respondent.

The OA raises an important question, namely, whether an employee borne on the cadre of a department, can be transferred to a corporation, which functions under the direct control of that very department. The transfer referred to in this context is not the one of shifting of the entire service from one organisation to another, but only the one of changing the place of work.

The DoT had its large-scale operations throughout the country, and outside also, and to cater to its needs, quite a large number of employees were appointed. However, a substantial activity thereof was corporatized. Since the MTNL and BSNL have inherited to the same activities that were hitherto being performed by the DoT, not only the assets and equipment, but also substantial number of employees, have become part of their establishment. Though there was no difficulty as such in transferring the assets and equipment, issues did arise in the context of the distribution of the employees. Duly following the well known practice, options were given, and those who opted to remain in the department, were permitted to do so. Since quite a large number of employees in Group 'A' have chosen to remain with the department, difficulty arose in accommodating them, due to transfer of substantial activities to the BSNL and MTNL.

The need of the department shrunk to 853 plus the deputation reserve. The remaining employees, around 700, needed to be accommodated. For that purpose, the Cabinet constituted, what is known as "special diminishing reserve". The officers so identified are required to work in various centres of the BSNL, even while continuing to be the employees of the Central Government. In the case of the applicant, the posting was to the BSNL Headquarters. The order of transfer does not indicate that his services have been made over to the BSNL, and that henceforth he shall become employee of that organisation. It was a simple and ordinary transfer. The alternative to maintaining the "special diminishing reserve" is to just to take recourse to retrenchment, duly following the principle of last-come-first-go.

The applicant placed reliance upon a judgment of the Hon'ble Supreme Court in Jawaharlal Nehru University v K. S. Jawatkar & others [AIR 1989 SC 1577]. The respondent therein was a Professor of the University. The University had a Centre of Post-Graduate Studies at Manipur. Consequent upon the formation of the Manipur University, the Centre was merged with that. The services of the respondent, who was working in the Centre for Post-Graduate Studies, were transferred to the Manipur University. Challenging the same, he approached the Court. Relief was granted by the High Court, and the University filed an appeal before the Apex Court. It was held that the respondent therein could not be made the employee of Manipur University contrary to his wishes, and that he would continue to be an employee of the JNU. The ratio of the judgment of the Hon'ble Supreme Court does not apply to the facts of the present case, the reason is that the applicant herein is not sought to be made the employee of the BSNL. It is only as a measure of convenience that he is required to work in the BSNL. The nature of duties is akin to those of the DoT, and his pay and all other service conditions are not affected in any way. Though the transfer has some peculiar features, it became inevitable, and in fact, is the result of a better option chosen by the respondents, in preference to retrenching the surplus employees.

We do not find any ground to interfere in the order of transfer. The OA is accordingly dismissed. There shall be no order as to costs.