Judgment:
1. Through this application under Section 19 of the A.T Act, the applicants who are 12 in number have called in question the transfer order dated 1.05.2001 and the release order 22.6.2001 in so far as they relate to them. A declaration that the O.M dated 30.9.2001 is ultra vires of Arts. 309 and 14 of the Constitution of India, has also been sough.
2. The facts of the case are these. The applicants were initially appointed as junior Telecom Officer (in short JTO) in the year of 1974.
They were promoted to the post of TES-B/S.D. Engineer in the years 1994 to 2000. It is stated that prior to the formation of the Bharat Sanchar Nigam Ltd. (in short BSNL) in September 2000 the applicants were discharging duties and function as employees of the DOT being Government of India employees within the meaning of Article 311 of the Constitution of India and their status as the employees of the Govt. of India continues even after formation of the BSNL. It is further stated that no definite notification has been issued by the Govt. of India, that the applicants are at deemed deputation in the BSNL and that no option has been obtained from the applicants for being absorbed in the BSNL. It is averred that the respondents had issued two orders on 18.4.2001 and 19.4.2001 transferring 44 persons, wherein the names of the applicants were not included, but subsequently new order was issued on 1.5.2001 cancelling the earlier orders and transferring the applicants from CTD to NE Region.
The case for the applicants is that the transfer order has been issued by the authorities who were not competent to transfer the applicants and further that in issuing the order of transfer principles of natural and procedural justice have not been followed in as much as most of the applicants were promoted in the year 2000 only and they have been transferred retaining the persons of longer stay. It is also stated that no administrative or public interest was involved in issuing the transfer order and therefore, the order dated 1.5.2001 is arbitrary, illegal, bad in law, without jurisdiction, capricious, whimsical and violative of principles of natural and procedural justice and the malice on the part of the respondents is exfacie clear.
It has been pointed out in the OA that the applicants had earlier approached the Calcutta High Court by filing writ petition and had filed supplementary affidavit, challenging the stand taken by the respondent, wherein it was stated that the O.M. dated 30.9.2001 did not indicate from where the power to issue such a memo was derived and that the BSNL was not the cadre controlling authority of the applicants who were not under the administrative control of the company. It has also been stated that the Hon'ble High Court was pleased to pass an order for disposal of the representation of the applicants, but the respondents have dealt with the representations in mechanical manner without application of mind and contrary to the guidelines given in the order of the High Court.
It has been averred that even if the applicants are on deemed deputation in BSNL further deputation cannot be made without the consent of the cadre controlling authority i.e., the Central Government.
3. In the reply to show cause filed on 16.7.2001, it is averred that pursuant to the new Telecom Policy of 1999 the Government of India has decided to corporatise the service provision functions of Department of Telecommunication (DoT) and accordingly BSNL was incorporated under the Companies Act, 1965 having its Registered Office and Corporate Office in New Delhi and the President of India in exercise of the power conferred by the proviso to Article 309 and Clause 5 of Article 148 of the Constitution of India made amendment in the Central Civil Services (Pension) Rules, 1972 by inserting Rule 37 A. It is also stated that the Secretary of the Government of India, Ministry of Communication, Department of Telecom Service issued the memo dated 30.9.2001 communicating the decision of the Government of India to corporatise the service provision, functions of DoT and to transfer the business of providing telecom service in the country to newly formed company namely, BSNL. It is averred that the applicants belong to the Telecom Engineering Services, Group 'B' and have all India transfer liability at any time in the interest of service and or administrative requirement. It is stated that the applicants joined the Department in 1973-74 and they have been working all these years in Calcutta Telephone District and that on and from 1st October, 2000 they are on deemed deputation to BSNL and are getting pay and allowances from the company. It is further averred that the transfer policy dated 12.11.81 is applicable to the service of which the applicants are the members and as the orders issued on 18.4.2001 and 19.4.2001 were found to be in violation of the guidelines of the transfer policy a fresh list was obtained showing the stay position of the officers and thereafter the impugned order dated 1.5.2001 was issued. It is also stated that after the disposal of the writ petition by the High Court the release order has been issued on 22.6.2001.
In the further reply filed on 27.7.2001 the respondents pleaded that the earlier orders dated 18.4.2001 and 19.4.2001 were cancelled because they were issued on the basis of the erroneous list of the longest stayees at Calcutta. It is stated that the applicants knowing well have continued to work in the BSNL since 1.10.2000 and hence they are estopped from challenging the O.M. dated 30.9.2000. It is pleaded that the applicants are serving on deputation in the BSNL and therefore, they can be transferred by BSNL within the jurisdiction of the BSNL. It is stated that the applicants are not under the Government of India for the purpose of transfer while serving on deputation with BSNL.
4. In the rejoinder filed by the applicants it has been stated that Shri S.P. Chakraborty, Chief General Manager, Calcutta Telephone was not competent to verify the reply on behalf of all the respondents as no resolution had been passed empowering him to verify the reply and, therefore, the reply should not be taken into consideration. The facts stated in the original application have also been reiterated. It has been averred that out of 46 persons only 26 persons were sought to be transferred and for the rest 20 persons, who did not move before any Court of law, no steps have been taken to release them for carrying out the transfer.
5. After the case was reserved for orders, the respondents filed M.A.No. 618/2001 seeking permission to place on record some documents. It has been stated therein that Shri S.P, Chakraborty, Chief General Manager, Calcutta Telephone had been instructed on telephone to file reply on behalf of all the respondents.
6. The applicants have contested the M.A. It has been stated that on Vakalatnama had been filed before filing the reply and hence Shri Chakraborty had no authority to verify the reply on behalf of other respondents. Two documents have been placed on record along with the reply to the M.A.7. We have heard the learned Counsel for the parties and perused the documents placed on record. We have also heard on the M.A. Since the documents placed through MA are relevant to decide the controversy in the case, the documents have been accepted and are being considered in this order.
8. The contentions of Mr. Ghosh, learned Counsel for the applicants may be summarised as follows : (a) By the memorandum dated 30.9.2000, Annexure 'A/5' the applicants have been placed under the control of BSNL, thereby the status and the service conditions of the applicants have been changed. His contention was that the service conditions of the applicants could not be changed by the Central Government without the consent of the applicants. Relying on the case of The State of Mysore v. H. Papanna Gowda and another, AIR 1971 SC 191, Mr. Ghosh contended that by the transfer of the applicants to the BSNL they have ceased to hold civil post and therefore, the memorandum is unconstitutional as it is in contravention of the provisions of the Article 311 of the Constitution of India. In this connection, he also submitted that the office memorandum dated 30.9.2000 has not been issued under some authority.
(b) The impugned transfer order dated 1.5.2000, Annexure 'A' was not passed by the competent authority. His contention was that the applicants continue to be the employees of the Central Government even after their deemed deputation to the BSNL and the Central Government is the cadre controlling authority of the applicants and since the order of transfer has been issued by the BSNL, there is no order of transfer in the eye of law. He relied on two decisions of Delhi and Chennai Bench of this Tribunal. Mr. Ghosh in this connection also cited the case of Dr. Ramesh Chandra Tyagiv. Union of India and others, (1994) 2 SCC 416 and submitted thai if the transfer order is not passed by the competent authority it is invalid and nan est.
(c) The applicants have been transferred in violation of policy of the transfer dated 4.5.99, Annexure'A/6' and circular dated 12.6.2000, Annexure 'A/7' wherein only the longest stayee officers in the zone could be transferred. He pointed out that the applicants were not the oldest stayees at Calcutta.
(d) The reply filed by the respondents cannot be taken into consideration as all the respondents have not signed the reply and Shri S.P. Chakraborty, Chief General Manager, Calcutta Telephone was not empowered to sign the reply filed by other respondents.
9. Per contra, Mr. Banerjee, learned Counsel for the respondents canvassed that there was no change of status of the applicants when their services have been placed at the disposal of the BSNL vide memorandum dated 30.9.2000. Accordingly to him, the applicants are on deputation for certain period and they will be absorbed in the BSNL, if they gave their option if they do not give option, they will be dealt with by the Government in accordance with the existing Rules. His contention was that the fact situation in the case of H. Papanna Gowda (supra) was very different and therefore, that ruling does not apply to the fact situation of the present case.
He submitted that by deputing the applicants to the BSNL their status as civil servant is not changed and the protection available to them under Article 311 of the Constitution of India is not taken away. His contention was that once the services of the applicants were placed at the disposal of the BSNL on deputation basis the BSNL is perfectly well within its power to transfer them from one place to another within its jurisdiction. Relying on the caseof Union of India v.D. Devraj, (W,P.20051/2000 decided on 17.1.01 by Madras High Court) he contended that the transfer order has not been passed by incompetent authority and the case of Dr. Ramesh Qhandra Tyagi (supra) does not help the applicants.
Mr. Banerjee urged that there is no provision in the Rules that a transfer order can be passed only by the appointing authority or the cadre controlling authority and when by the Memo dated 30.9.2000 the services of the applicants have been placed at the disposal of the BSNL, it has got full power and authority to effect their transfer by virtue of Clause (vi) of para 4 of the Memorandum. He pointed that the policy of transfer, relied on by the applicants, is not applicable; instead the policy of the rotational transfer dated 12.11.81, Annexure 'X1' is applicable to their case. He contended that the applicants are the officials who had the longest stay at Calcutta and therefore, they have been rightly transferred from Calcutta after cancelling the earlier order which was issued ignoring the staying position of the various incumbents at Calcutta.
His further contention was that there was a resolution of the Board of BSNL authorising Shri Chakraborty, Chief General Manager to file reply on behalf of the BSNL and therefore, the reply filed by him should be considered as reply on behalf of all the respondents.
10. We have given the matter our thoughtful consideration. At the outset it may be stated that even after placing the services of the applicants at the disposal of the BSNL, they continue to be the employees of the Central Government and their position of holding the civil posts is not altered. Apart from the fact that such are the observations of the Hon'ble Calcutta High Court in the order dated 19.4.01 in the matter of W.P.C.T 203 of 2001, therep2 is clear provision in the Memorandum dated 30.9.2000 that the officers and the staff shall continue to be subject to all Rules and Regulations as are applicable to Government servants including CCS (CCA) Rues till such time as they are absorbed finally by the Company after they exercise their options. It is further provided in the Memorandum that the pay scales, salaries and allowances of the employees will continue to be governed by existing Rules, Regulations and Orders. It is thus obvious that there is absolutely no change in the service conditions of the applicants by the Memorandum dated 30.9.2000 and they continue to be the employees of the Central Government.
11. The fact situation in the case of H. Papanna Gowda (supra) was that H. Papanna was appointed as an Agricultural Demonstrator in the Mysore Civil Service. At the relevant time he was Chemical Assistant of the Sugarcane Research Station Mandya, in the Department of Agriculture.
During that period a law was made by the State Legislature, called the University of Agricultural Sciences Act, 1963, whereby a University was established. Under that Act the control and management of the colleges were to stand transferred to the Agricultural University. Sub-section (5) of Section 7 provided that every person employed in any of the colleges specified in Sub-section (1) or in any of the institutions referred to in Sub-section (4) immediately before the appointed day or the dale specified in the order under Sub-section (4), as the case may be, shall, as from the appointed day or the specified date, become an employee of the University on such terms and conditions as may be determined by the State Government in consultation with the Board. The contention of the employees was that by making such a law his (H.Papanna) status as a civil servant had been changed. In other words, the notification had resulted in extinction of his status as civil servant. Their Lordships held that it could not be done, and such a law could not be enacted because it changed the status of H. Papanna. It is obvious that the case is clearly distinguishable. In the instant case, there is no document on record on which it can be said that the status of the applicants as civil servants has been extinguished or even altered. Therefore, that case does not assist the applicants.
12. Now the serious question that arises for consideration is whether by the Memorandum dated 30.9.2000 the applicants have been deprived of the protection of the Article 311 of the Constitution of India.
"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State .
(1) No persons who is a member of a civil service of the Union or an All India Service or a Civil service of a State or holds a Civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges: Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed : (a) where a person is dismissed or removed or reduced rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question as arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final".
14. A reading of Article 311 shows that (i) an employee can not be dismissed or removed from service by any authority subordinate to that by which he was appointed; and (ii) such an employee shall not be dismissed or removed or reduced in rank except after an inquiry against him and after giving a reasonable opportunity of being heard in respect of the charges. The object of the provision is to offer protection to the civil servants who hold civil post during the pleasure of the President. But Article 311 nowhere says that the subject matter of the transfer of the civil servants is also controlled by this Article. So, when a Government servant is transferred from one place to another place it cannot be said that in any manner there is a breach of Article 311 of the Constitution of India.
The Hon'ble Apex Court had an occasion to consider the matter of transfer of the Government servants where a particular Government Department is converted into an autonomous body. In the case of S.K.Saha v. Prem Prakash Agarwal and others, (1994) 1 SCC 431 = 1994(1) SLJ 100 (SC) their Lordships held that Article 311 is not attracted when services of an employee are transferred to autonomous body after giving him the option. It is significant to point out that the case of H.Papanna Gowda (supra) was noticed by their Lordships while deciding the case. The observations of their Lordships appearing at para 10 are reproduced hereunder : "Where all the functions of a department of the State or Union Government along with posts are transferred to some University or Government Corporation, which of late has become a common feature, in view of the fact that it has been accepted at all levels that public interest is better served if the activities which were part of the department are entrusted to some autonomous Corporation or University, question arises as to how to transfer the services of the holders of such posts having protection of Article 311 of the Constitution. A situation is created where the holders of the posts are in service of the State Government, but the activities of the whole department are transferred to some Government Corporation or undertaking. How can the State retain the members of such service against those posts when the department itself becomes defunct. A holder of any post in such a department has no right to question the wisdom of the State to entrust the activities of the department to an autonomous body. It is true in view of Article 311, merely on this ground, the holders of civil posts cannot be dismissed or removed from service. However, the State can give an option to the holders of such posts either to be absorbed in some other department or to leave the service of the State and to opt for the service of the Government Corporation or undertaking in question. Once any such employee of the State opts for the service of the Corporation, he shall cease to be in the service of the State." 15. In view of the above observations, it can safely be stated that in the matter of transfers Article 311 is not attracted and also that the Govt. can always transfer the functions of a Department to Corporation/Company and holder of any post in that Department has no right to question the wisdom of the State. We are, therefore, unable to accept the proposition put forward by Mr. Ghosh that the Memorandum dated 30.9.2000 is hit by the provisions of the Constitution.
16. It may be pointed out here that in the Memorandum dated 30.9.2000 it is clearly stated by Clause (v) of para 4 that the officers and staff shall continue to be subject to all rules and regulations as are applicable to Government servants, including the CCS (CCA) Rules till such time as they are absorbed finally by the Company after they exercise their options. Of course it can be successfully contended that no punishment of dismissal or removal can be passed by the BSNL authorities against the applicants, but it cannot be accepted that the Govternment could not transfer the business of Telecommunication to the BSNL and the services of the applicants could be placed thereunder as a temporary measure on deputation basis.
17. Now as to the point that the BSNL had no authority to transfer the applicants from one place to another place, it may be stated that the learned Counsel for the applicants have not pointed out any rule envisaging that only the appointing authority has a power to transfer an employee. In our opinion, it depends on the Relevant Rules as to who is competent to transfer the employees. It is not uncommon that the transferring authority may be different than the appointing authority.
As in the case of the Judicial officers the appointing authority is the Governor of the State; whereas the transferring authority is the High Court. Not only that, the transferring authority may be different in respect of the different category of the posts.
In the instant case, the Government of India itself has empowered the management of the BSNL to effect, transfers of the staff placed on deputation with in vide clause (vi) of para 4 of the Memorandum dated 30.9.2000 and therefore, it cannot be said that the BSNL could not pass the transfer order. It is obvious that the power to effect transfer of the staff working in the BSNL has been delegated by the Government of India itself vide Memorandum dated 30,9.2000, There cannot be any objection to such delegation of powers by the Government of India.
18. The case of Dr. Ramesh Chandra Tyagi (supra) relied on by Mr. Ghosh docs not help the applicants in any manner. That was a case where as per the rules, the Secretary was competent authority to transfer the appellant of that case; whereas the transfer order was issued by the Director General. The respondents could not produce the delegation of powers contended by them. In that circumstance their Lordships held that the transfer of the appellant being contrary to rules was non est in the eye of law. In the instant case as already stated, clause (vi) of para 4 of the Memorandum issued by the Government of India itself makes it clear that the management of the BSNL shall have power and authority to effect transfers of all the staff at all levels working under it. The use of the word 'staff obviously means the staff placed at the disposal of the BSNL by virtue of the Memorandum itself.
19. The Madras High Court in the case of D. Devraj (supra) had occasion to consider the power of transfer of Prasar Bharati which is also a Corporation under the Prasar Bharati (Broadcasting Corporation of India) Act, 1990. In that matter the transfer orders, passed by the Prasar Bharati against the employees who were earlier the employees of the Doordarshan Kendra under the Ministry of Information and Broadcasting, were called in question. It was contended as is the contention of Mr. Ghosh in the instant case, that since the employees were the Government servants the Prasar Bharati could not order their transfer. The contention was repelled by their Lordships and it was observed at para 14 as under: "It is not in dispute that all these employees are in transferable service as employees of the Government of India. Everyone of them is subject to the liability for transfer. By serving the Corporation, they do not gain any immunity from transfer except that the field of transfer is to be limited to within the Corporation, and not beyond.
There has been no major change in the conditions of service of the employees which would warrant them to questioning their continued deputation to the Corporation. The employees generally have accepted that their work is to be done in the Corporation and that they are required to work within the Corporation even while retaining their lien in their posts in the Government of India. The posts over which they have lien, have already been placed at the disposal of the Prasar Bharati and as and when those posts are filled up by reason of permanent absorption or otherwise, those posts will cease to exist within the Government of India and the lien that the employees presently have may not prove to be very meaningful." (Emphasis supplied) "The Corporation is entitled to make use of the service of the employees presently working with it even though such employees are employees of the Government of India till they are all permanently absorbed in the Corporation, at the places where the interest of efficient work of the Corporation requires the presence of the employees." 20. It may be that there was an Act whereby the Prasar Bharati was constituted and in the case of the Telecom there is no Act passed by the Parliament and the functions of the Telecommunication Department have been transferred to the BSNL only by the executive order dated 30.9.2000, but on that ground in our opinion, the applicants have no right to question the issuance of the Memorandum by the Govt. of India, more so when they are in no way adversely affected by the Memorandum.
Their Lordships in the case of S. K. Saha (supra) have clearly observed that the policy decision of the Government to covert a Government department to a corporation cannot be questioned by the holders of Government posts. As already stated, the status and service conditions of the applicants have been kept in tact. In that view of the matter the applicants cannot be heard to say that the Memorandum dated 30.9.2000 has been issued without any authority and the management of BSNL did not have power and authority to issue transfer order.
21. Much stress was laid by Mr. Ghosh on the fact that BSNL not the cadre controlling authority of the applicants and hence it had no power to transfer them. No Rule/order or circular has been brought to our notice wherein it has been provided that cadre controlling authority only has power and authority to transfer a Government employee. As a matter of fact, no provision has been pointed out wherein the phrase 'Cadre Controlling Authority' has been used. The Cadre of a particular service is determined in the relevant service Rules. At best it can be said that the appointing authority determines the cadre strength. When the Government of India which is the highest authority itself has delegated the power of transfer to the management of the BSNL, how the applicants can question the competence of management of the BSNL to issue transfer order.
22. One of the contentions of Mr. Ghosh, learned Counsel was that the applicants could not be transferred to foreign service without their consent. F.R. 110 of course provides that no Government servant should be transferred to foreign service against his will, however, there is a proviso appended to Clause (a) of F.R. 110 which reads as follows: "Provided that this sub-rule shall not apply to the transfer of a Government servant to the service of a body, incorporated or not, which is wholly or substantially owned or controlled by the Government".
Thus is Government servant even without his consent can be transferred to a body which is wholly or substantially under control of the Government. As a matter of fact, this point is not at all relevant since the applicants have not at all been transferred to the BSNL. They have only been placed at the disposal of the BSNL for some period on deputation basis and if they opt to serve that BSNL, they will be kept in the service of the BSNL. There is thus no violation of the F.R.110(a).
23. Coming to the contention with regard to the breach of the transfer policy, it has to be accepted that the Memorandum, Annexure 'A/6' dated 4.5.99 is not applicable to the applicants who are the members of the Engineering Service. A reading of the Memorandum clearly shows that these guidelines were issued for the transfer of the officials of the Civil Wing. Admittedly, the applicants are not the official of the Civil Wing. Therefore, Clause (9) of the policy to which our attention was drawn is not applicable to the case of the applicants.
24. Now the guidelines of transfer dated 12.6.2000, Annexure 'A/7'. The subject matter of this circular is posting/transfer requests in respect of Group 'A' & 'B' Officers of Indian Telecommunication Service/P&T Accounts and Finance Service/Civil/Architecture/Electrical/Telegraph Traffic Services/Telecom factory service. It is provided in Sub-clause (a) of the circular as under: "Officers who have put in four years service in a particular post or six years at a particular stations, should be invariably rotated especially so if the post occupied by them is sensitive in nature." There are two categories of the Officers in this clause One, who have put in four years service on a particular post at one station, and, two, who have remained posted for six years at one station. The applicants undisputedly come under the second category and therefore, it cannot be said that the respondents have violated Sub-clause (ii) of the circular when the applicants have been transferred. The circular/guidelines, Annexure 'A/7' have to be read along with the order dated 12.11.81, Annexure 'XI' which is on the rotational transfer. It is provided at para 12 of the said order as follows: "In reckoning the period of stay of a gazetted officer at a station, the period of non-gazetted service immediately proceeding the gazetted service at the same station will be taken into account. On promotion from a non-gazetted grade to a gazetted grade an official will be generally transferred to a different functional unit at a different station. It will, however, be ensured that no official, on promotion; may be posted to work in a post which requires the exercise of supervisory/inspectorial powers over the staff with whom he was working for a good period of time or immediately before his promotion.
A reading of the circular/guideline, Annexure 'A/7' along with the order dated 12.11.81, Annexure 'XI' makes it clear that in reckoning the period of stay of Gazetted Officers, the period of their non-gazetted service immediately preceding the gazetted service at the same station, also is to be taken into account.
25. It was pointed by Mr. Banerjee and not refuted by Mr. Ghosh that all the applicants are posted at Calcutta since the date of their appointment. It is obvious that prior to the date of the appointment of the applicants as TES Group 'B' in 1994-2000, they were holding the non-gazetted posts at Calcutta. If the entire period of their stay at Calcutta is reckoned, it cannot be said that they are not the oldest stayees at Calcutta. There is, therefore, no violation of the policy of transfer when the applicants have been transferred.
26. Mr. Ghosh, pointing out that prior to the transfer of the applicants, the respondents had issued the transfer orders Annexures 'A/7' and 'A/2' dated 18.4.2001 and 1.5.2001 in which the names of the applicants were not stated, contended that the respondents have cancelled those transfer orders under pressure of the Union and the applicants have been made scapegoat. We are unable to accept this contention of Mr. Ghosh. The respondents have emphatically denied that the orders of transfer against the applicants have been issued for reasons other than the administrative reasons. It has been stated that the transfer orders have been issued in public interest. It has been further stated that there were errors committed in reckoning the period of the incumbents working at Calcutta while issuing the orders at Annexures 'A/1' and 'A/2' and when the mistake was detected, the orders were cancelled and the impugned orders were issued. To err is human.
Simply because in the earlier orders the names of the applicants did not find place, it cannot be said that the impugned orders are arbitrary or malafide or have been issued for reasons otherwise than public interest.
27. Coming to the contention regarding the verification of the reply filed by Shri Chakraborty, Chief General Manager it may be stated that the version of the respondents is that Shri Chakraborty was instructed by the Secretary to the Government and the BSNL on telephone to conduct the matter on their behalf, and on that basis Shri Chakraborty had verified the reply. There cannot be valid objection in the oral authorisation in favour of Shri Chakraborty by other respondents. It is significant to point out that the oral authorisation was ratified by the written authorisation dated 6/7.8.12001 (Annexures S1-1, II & III).
It may be seen that under Rule 12(2) of the CAT (Procedure) Rules, 1987 a pleading (reply in this case) can be verified by one of the respondents. The Rule even permits any other person who may not be named as applicant or respondent in the application to verify the pleading on the basis of authorisation. In our opinion, on the basis of oral authorisation followed by written authorisation may be after filing the reply, the reply could be verified by Mr. Chakraborty and there is no legal impediment in treating the same as valid reply on behalf of all the respondents.Malhotra Steel Syndicate v. Punjab Chemi-Plants Ltd. 1993 Supp (3) 565, relied on by Mr. Banerjee observed that when affidavit filed by a party is not in proper form because of defect in verification the matter should not be dismissed. The instant case is of verification of reply only. The observations of their Lordships all the more apply and it cannot be proper to refuse to read the reply.
The case of Union of India \. National Hydro-electric Power Corporation, JT 2001 (6) SC 70 relied on by Mr. Ghosh is not at all applicable to decide the controversy. In that case, the question was whether mere laying the Notification in levy cess before each House of Parliament was sufficient compliance within the provisions of Section 16(3) of the Water Cess Act, 1977. It was held that without the positive ad of approval by the Parliament to the issuance of the Notification, there was no valid amendment of Schedule 3 of the Act. We are unable to understand how this Ruling helps the applicants in contending that the reply filed by Mr. Chakraborty cannot be accepted.
The net of filing reply does not stand on the same footing of making or amending a statute.
28. Learned Counsel for the applicants also contended that the release orders of the applicants have been issued leaving the other transferees in the impugned order which shows that they have been discriminated because they had approached the Tribunal by filing applications. Mr.
Banerjee, learned Counsel for the respondents slated that all the transferees are being relieved and the applicant's representation is based on no material. We have no reason to doubt the submissions made by Mr. Banerjee.
29. One of the contentions of Mr. Ghosh was that it is only the President who is empowered to transfer a Government servant from one post to another. He cited FR 15 in support of the contention. We are unable to understand how this Rule helps the applicants, When the word 'President' has been used in this Rule it obviously means the Government. The President acts through the Council of Ministers. In the instant ease, the Ministry of Communication itself has delegated the power of transfer of the staff to BSNL. It is not the requirement of law that the President himself should have signed the Memorandum.
Moreover, this provision applies whore a Government servant is transferred from one 'post' to another 'post'. In the instant case there is no change of post, The applicants have been transferred on the same post, but only the Station has been, changed. The Rule, therefore, does not apply.
31. In view of the above discussion, we arc of the considered opinion that there is no merit in the OA and it is liable to be dismissed.
32. Consequently, the application is dismissed with no order as to costs. The M. A. filed by the respondents stands disposed of.