INDU MALHOTRA,J. - (1.) Leave granted. The present Civil Appeal arises out of S.L.P. (C) No. 4652 of 2018 wherein the impugned Judgment and Order dated January 13, 2016 passed by the Bombay High Court in Writ Petition No. 2704 of 2005 has been challenged.
(2.) The facts relevant for the present Civil Appeal, are briefly set out below: 2.1. The Appellants were erstwhile employees in the Overseas Communications Service ["OCS"], a Department of the Government of India. On April 1, 1986 the OCS was converted into a Government Company known as the Videsh Sanchar Nigam Limited ["VSNL"]. Initially, all employees of the erstwhile OCS were transferred en masse to Respondent No. 4 - VSNL (now known as Tata Communications Limited), where they worked on deputation from April 1, 1986 to January 1, 1990. 2.2. On July 5, 1989 the Department of Pension and Pension Welfare of the Government of India issued Office Memorandum No. 4/18/87-P and P.W. (D) ["Office Memorandum"] specifying the terms and conditions governing the pensionary benefits of employees who were transferred en masse on the conversion of a Government Department into a Central Public Sector Undertaking or Autonomous Body. The relevant extract of the Office Memorandum is set out hereinbelow for ready reference: "...The following terms and conditions will be applicable in the case of en masse transfer of employees: (a) The permanent Government servants shall have an option to retain the pensionary benefit available to them under the Government rules or be governed by the rules of the Public Sector Undertaking/Autonomous Body. This option shall also be available to the quasi permanent and temporary employees after they have been confirmed in the Public Sector Undertaking/Autonomous Body. (b) The Government servants who opt to be governed by the pensionary benefits available under the Government, shall at the time of their retirement, be entitled to pension, etc., in accordance with the Central Government rules in force at that time. (c) The permanent Government servants with less than 10 years' service, quasi permanent employees and temporary employees who opt for the rules of the Public Sector Undertaking/Autonomous Body shall be entitled to an amount equal to Provident Fund contribution for the period of their service under the Government up to the date of permanent absorption in the PSU/ Autonomous Body with simple interest at 6% per annum as opening balance in their CPF account with the Public Sector Undertaking/Autonomous Body..." (emphasis supplied) 2.3. In pursuance of the Office Memorandum, Notice dated December 11, 1989 was issued by Respondent No. 4 - VSNL giving the erstwhile employees of OCS the option to either be absorbed in the regular service of VSNL; or, be transferred to the Surplus Staff Cell of the Central Government for employment against possible vacancies available in other Government offices. The Appellants voluntarily exercised the option to be absorbed into the regular service of VSNL with effect from January 2, 1990. 2.4. Thereafter, a Staff Notice dated February 21, 1990 was issued by Respondent No. 4 - VSNL to its employees, who were earlier working in OCS. The employees were called upon to exercise their option in terms of Clause (a) of the Office Memorandum, i.e. either to retain the pensionary benefits available under the Government of India at the time of retirement as per the applicable Central Government rules in force, or opt to be governed by the rules of Respondent No. 4 -VSNL. The format in which the option was to be indicated was enclosed with the Staff Notice, along with a document titled "Clarificatory Information to Facilitate Exercise of Option". As per paragraph I (1) (ii) of the clarificatory document, the eligibility of employees who chose to retain pensionary benefits under the Central Government was conditional on putting in a minimum of ten years of qualifying service. The relevant portion of Paragraph I (1) is reproduced hereinbelow for ready reference: "I. Exercise of option in favour of retention of pensionary benefit under Central Government rules. (1) This option is open to every employee whose services have been transferred from Overseas Communications Service to Videsh Sanchar Nigam Limited and who has been permanently absorbed in the Videsh Sanchar Nigam Ltd., irrespective of service rendered in the Overseas Communications Service. Your eligibility for benefits under the Pension Rules will however be conditional to :-... ... (ii) Putting in a minimum of ten years of qualifying service. (9 years 9 months and above will be reckoned as 10 years)..." (emphasis supplied) 2.5. The Appellants opted to retain pensionary benefits under the rules of the Central Government by exercising their option in pursuance of the Staff Notice dated February 21, 2009. 2.6. Respondent No. 4 - VSNL vide Letters dated May 22, 2003 and June 29, 2004, sought a clarification from Respondent No. 3 - Ministry of Communications and Information Technology, Department of Telecommunications ["DOT"] as to whether the Appellants - P. Bandhopadhya, I.P. Singh and G. Palaniappan could retain the pensionary benefits in spite of having less than 10 years of service as on January 2, 1990. 2.7. In response, the DOT vide Letter dated October 13, 2004 requested VSNL to settle the cases of the Appellants in accordance with Clause (b) of the Office Memorandum. 2.8. Accordingly, by Letter dated November 30, 2004, Respondent No. 4 - VSNL informed Respondent No. 2 - Department of Pension and Pension Welfare, Government of India to settle the cases of the Appellants in accordance with Clause (b) of the Office Memorandum. 2.9. In supersession of the Letter dated October 13, 2004, the Department of Pension and Pension Welfare, Government of India, vide Letter dated March 24, 2005 informed Respondent No. 4 - VSNL that the payment of Pension to the Appellants would be settled in terms of the Office Memorandum. This was re-confirmed by Respondent No. 3 - DOT vide Letter dated May 30, 2005. 2.10. Accordingly, Respondent No. 2 - Department of Pension and Pension Welfare, Government of India informed the Appellants that their pension would be settled in terms of the Office Memorandum. 2.11. On June 27, 2005 the Appellants were informed by Respondent No. 4 - VSNL that they would not be eligible to receive Government Pension. They would, however, be eligible to receive benefits under Clause (c) of the Office Memorandum i.e. an amount equal to the Provident Fund contribution for the period of their service under the Government up to the date of permanent absorption in the Public Sector Undertaking/Autonomous Body with 6% Simple Interest as opening balance in their CPF account with the Public Sector Undertaking/Autonomous Body. 2.12. Aggrieved by this decision, the Appellants made a representation before the Respondents seeking for a declaration that their cases be governed by Clause (b), and not Clause (c) of the Office Memorandum. 2.13. The Appellants thereafter filed Writ Petition No. 2704 of 2005 before the Bombay High Court seeking the following prayers: setting aside of Communication/Orders passed by the Respondents on March 24, 2005, May 30, 2005 and June 27, 2005; directions to treat the cases of the Appellants as being governed by Clause (b), and not Clause (c) of the Office Memorandum. In effect, the Appellants were seeking directions that their cases be considered eligible for grant of pension by the Government of India. 2.14. A Division Bench of the Bombay High Court dismissed Writ Petition No. 2704 of 2005 on April 26, 2006 after holding that the case of the Appellants was covered by an earlier decision of a Division Bench in S.V. Vasaikar and Ors. v. Union of India and Ors. [2003 (2) Mh.L.J. 691 : 2003 (4) Bom CR 79]. The Judgment dated April 26, 2006 passed by the Division Bench was challenged by the Appellants before this Court by way of S.L.P. (C) No. 15862 of 2006, which was later renumbered as Civil Appeal No. 3059 of 2007. This Court vide Order dated July 14, 2011 set aside the Judgment dated April 26, 2006 passed by the Division Bench of the Bombay High Court in view of the submission by the Appellants that the decision in S.V. Vasaikar and Ors. v. Union of India and Ors. [2003 (2) Mh.L.J. 691 : 2003 (4) Bom CR 79] was not applicable to the facts of their case. The matter was remanded to the High Court for fresh consideration on merits. 2.15. After remand, the Bombay High Court re-heard the matter, and passed a detailed judgment dismissing Writ Petition No. 2704 of 2005, and held that the Appellants were not eligible to avail pensionary benefits under the Government of India, since they had served for less than 10 years on the date of their absorption into VSNL. The High Court held that on a cumulative reading of Clauses (a), (b), and (c) of the Office Memorandum makes it clear that only permanent Government servants who have served for more than 10 years would have the option of getting pensionary benefits after their absorption in Public Sector Undertakings. The case of the Appellants would be governed by Clause (c) of the Office Memorandum which clearly carved out the category of employees who had not completed 10 years of service. It was held that a new category which is either contrary to Clause (c), or renders the import of Clauses (a)and (b) nugatory, cannot be created by way of judicial interpretation. The High Court held that the matter was squarely covered by the earlier decision of a Division Bench of the Bombay High Court in S.V. Vasaikar & Ors. v. Union of India & Ors. [2003 (2) Mh. L.J. 691 : 2003 (4) Bom CR 79].
(3.) Aggrieved by the Judgment and Order dated January 13, 2016 passed by the Division Bench, the Appellants filed the present Special Leave Petition. Applications for Impleadment have been filed by 48 persons who claim to be similarly situated as the Appellants.;