Central Administrative Tribunal - Gauhati
Sri Prathipaty Joseph Vijayakar vs M/O Environment And Forest on 29 January, 2025
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CENTRAL ADMINISTRATIVE TRIBUNAL
GUWAHATI BENCH
Original Application No. 040/00118/2022
Date of order: This, the 29th day of January 2025
HON'BLE MR. M.L. SRIVASTAVA, ADMINISTRATIVE MEMBER
Between
Sri Prathipaty Joseph Vijayakar
Aged about 56 years
Son of Late Prathipaty Devasahayam
Resident of Flat No. 3A
Block B, 'Akashi Ganga Apartment'
Radhanagar, Chachal, VIP Road
Guwahati, Dist. Kamrup (M)
Assam, Pin - 781023
[email protected]
Phone No. 8876588705.
...Applicant
By Advocates: Sri A. Chakraborty & Sri A. Chetia
- Versus -
1. The Union of India
Represented by Secretary
To the Government of India
Department of Personnel and Training
Ministry of Personnel, Public Grievances
And Pensions, North Block
New Delhi-110001.
2. The State of Assam
Represented by the Chief Secretary
To the Government of Assam
Dispur, Guwahati-781006, Assam.
O.A. No. 040/118/2022
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3. The State of Meghalaya
Represented by the Chief Secretary
To the Government of Meghalaya
Meghalaya Secretariat, Shillong
793001, Meghalaya.
4. The Additional Chief Secretary
To the Government of Assam
Environment and Forests Department
Dispur, Guwahati - 781006, Assam.
5. The Principal Secretary
To the Government of Assam
Department of Personnel & Administrative
Reforms and Training, Block-A
Assam Secretariat, Dispur
Guwahati-781006, Assam.
6. The Commissioner & Secretary
To the Government of Assam
Finance Department, Ground Floor
D Block, Janata Bhawan, Dispur
Guwahati-781006, Assam.
7. The Accountant General (A&E)
Assam, Maidamgaon, Beltola
Guwahati-781019.
8. The Principal Chief Conservator of Forests
And Head of Forest Force, Assam
Panjabari, Guwahati-781037, Assam.
...Respondents
By Advocate: Sri A.K. Choudhury for Res. Nos. 2, 5 & 6
Date of Hearing: 10.01.2025 Date of Order: 29.01.2025
O.A. No. 040/118/2022
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ORDER
PER M.L. SRIVASTAVA, MEMBER (A):
This instant O.A. has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"8.1 To set aside and quash the impugned Order No. FRE.11/1998/182 dated 16.07.2021 (Annexure-P/1) and Memo No. FRE.11/1998/193-A dated 09.12.2021 (Annexure-P/2).
8.2 To direct the respondent authorities to regularize the 'under- posting' period of the applicant w.e.f. 08.07.2020 to 27.11.2020 as 'Compulsory Waiting Period' with all consequential benefits of full pay and allowances including Special Duty Allowance and Special Allowance, seniority etc. 8.3 To direct the respondent authorities to pay to the applicant his legally entitled dues amounting to Rs. 2,96,298/- (Rupees Two Lakhs Ninety-Six Thousand Two Hundred and Ninety-Eight only) with interest at the rate of 12% (twelve per-cent) per annum w.e.f. the date on which such amount was legally due to the applicant till the date of actual payment by the respondent authorities.
8.4 Cost of the application.
8.5 Any other relief/relief's to which the applicants are entitled to under the facts and circumstances of the case and as may be deemed fit and proper by this Hon'ble Tribunal upon consideration of the matter."
2. The factual matrix of the case as per Sri Anirban Chakraborty, learned counsel of the applicant is that - applicant Sri P.J. Vijyakar, IFS Officer (1993 batch) was on deputation to Government of India and was functioning as Chief Vigilance Officer in Rashtriya Ispat Nigam Limited (RINL in short) under the Ministry of Steel at Vishakapatnam O.A. No. 040/118/2022 4 for a period extending upto 14.07.2021. In the meantime, the then Hon'ble Chief Minister of Assam vide his D.O. Letter under No. CMO.1/2020/906 dated 03.03.2020 (Annexure -P/3) requested Hon'ble Minister of State for Personnel, Public Grievances, and Pension, Government of India for early repatriation of the applicant to the Forest Department of Government of Assam for implementing a number of schemes of the Central Government in the State, wherein there was an urgent need of the applicant. Accordingly, the Appointments Committee of Cabinet (ACC) approved the proposal for premature repatriation of the Applicant, an IFS Officer of 1993 batch (Assam- Meghalaya Cadre) from RINL, Vishakapatnam to his parent cadre with immediate effect with a condition of extended 'Cooling off.' Subsequently, vide Office Order dated 16.04.2020 (Annexure-P/4 colly), issued by Shri Binay Prasad, GM(HR)I/c-EE of RINL, Vishakapatnam, released Shri P.J. Vijayakar from his duty in RINL, Visakhapatnam Steel Plant, Visakhapatnam with immediate effect.
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3. Sri A. Chakraborty, learned counsel for the applicant submits that applicant handed over charge of Chief Vigilance Officer, RINL to the General Manager (Vigilance), RINL on 17.04.2020 and intimated the same to the authorities i.e. Ministry of Steel, Government of India with a prayer for grant of End of Tenure Leave and accordingly, same was sanctioned for the period from 18.04.2020 to 31.05.2020 vide Communication dated 18.04.2020. The applicant vide his email dated 24.05.2020 (Annexure-P/5 of OA) to the PCCF & HoFF, Assam, prayed for taking necessary steps for issuance of posting orders. Upon the receipt of this email dated 24.05.2020, Sri Avinash P. Joshi, Principal Secretary, Department of Environment and Forests, Government of Assam vide his email dated 24.05.2020 requested the PCCF (HoFF), Assam to submit a proposal for posting of the applicant after repatriation from Central deputation. However, applicants' End of Tenure Leave was extended till 28.06.2020. Accordingly, a proposal for issuance posting order of the applicant was sent by the Office of the Principal Chief Conservator of O.A. No. 040/118/2022 6 Forests and Head of Forest Force, Assam on 26.06.2020 to the Principal Secretary to the Government of Assam. Applicant after availing End of Tenure Leave and jointing time reported for duty on 08.07.2020 and continued to perform the tasks and duties allotted to him. For example, as per letter dated 17.09.2020, along with his official duties, applicant was directed to enquire into complaints against Sri H.K. Talukdar, IFS, CCF(T), CAC, Guwahati filed by "Axam Sangrami Yuba Chatra Santha and Krishak-Sramik Unnayan Parisad, Axom (KSUP) on the same date by a separate communication to the Chairman, State Level Police Recruitment Board, Assam.
4. Learned counsel for the applicant submits that applicant was also nominated as Nodal Officer and Member of the Recruitment Committee to assist the State Level Police Recruitment Board in the forthcoming recruitment. The applicant submitted his enquiry report as per the direction of the Authority vide his Communication dated 28.09.2020. Subsequently, vide Notification dated O.A. No. 040/118/2022 7 27.11.2020 (Annexure-P/8 of OA) issued by the Secretary to Government of Assam (Environment & Forests Department), applicant was posted as Additional PCCF in the Office of PCCF(P&D), Assam. On 10.12.2020 (Annexure-A/9), applicant submitted a representation to the Principal Secretary, Department of Environment & Forests, Assam through PCCF & HoFF, Assam, wherein, he prayed for regularizing the period of 143 days from 08.07.2020 to 27.11.2020 as 'compulsory waiting period' at the earliest to enable him to draw the pay and allowances fully as entitled to an AIS Officer borne out in the North- Eastern cadre during the said period. The Office of the PCCF & HoFF vide their Letter dated 16.12.2020 (Annexure- P/10 of OA) forwarded the said letter to the Principal Secretary to the Government of Assam with due recommendation. It was clarified therein that the applicant on repatriation from Central deputation as Chief Vigilance Officer, reported for duty in the cadre on 08.07.2020 and was posted as APCCF and therefore, he remained under posting during the period from 08.07.2020 O.A. No. 040/118/2022 8 to 27.11.2020 and it was requested further to notify the under posting period from 08.07.2020 to 27.11.2020 as compulsory waiting period. However, vide Notification dated 16.07.2021 (Annexure-P/1 of OA) communicated by the Additional Secretary to the Government of Assam (Environment & Forests Department), the Governor of Assam was pleased to grant extension of joining time for a period of 143 days w.e.f. 08.07.2020 to 27.11.2020 under SR 146 of FR&SR in respect of the applicant Sri P.J. Vijayakar, IFS (AM: 1993), Addl. PCCF (P&D), O/o the PCCF & HoFF, Assam during his repatriation to the State cadre from Central deputation as Chief Vigilance Officer, RINL, Vishakapatnam. The applicant vide his representation dated 20.10.2021 (Annexure-P/12 of OA) further requested the Chief Secretary to the Government of Assam to review the Notification under Reference No. 4 and to issue necessary orders so that the period of 143 days from 08.07.2020 to 27.11.2020 is regularized as compulsory waiting so as to enable him to draw pay and allowances (Special Duty Allowance; Special Allowance & Special O.A. No. 040/118/2022 9 Pay) fully as entitled to an AIS Officer borne on Assam Cadre. However, said representation was rejected vide impugned communication dated 09.12.2021 (Annexure- P/2 of O.A.) on the premise that the O.M. dated 01st February, 2021 issued by the Finance Department does not provide for regularization as 'Compulsory Wait' and as such, period of 08.07.2020 to 27.11.2020 was regularized as 'Extension of Joining Time' and not 'compulsory waiting period'. Accordingly, the impugned Order dated 16.07.2021 was upheld (Annexure-P/1 of OA).
5. According to the learned counsel for the applicant, when the applicant was consciously recalled by the Govt. of Assam on the ground that his services are urgently required, the applicant reported for duty on 08.07.2020. Therefore, for the prolong delay on the part of respondents in issuing the posting order dated 27.11.2020 (Annexure-P/8 of OA), applicant cannot be made to suffer.
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6. Per contra, Sri A.K. Choudhury, learned counsel for the Respondent Nos. 2, 5 & 6 contesting the submission made by the learned counsel for the applicant pointed out the O.M. dated 29.01.2008 issued by the Government of Assam, Finance (Estt.-A) Department, Assam, wherein, it is mentioned that - "admissibility of joining time on transfer from one post to another has been laid down in SR-139 of F.R.s & S.R.s. Accordingly, the maximum joining time admissible under the normal course is 30 days". Further, as per FR - 105 (a) of FR & SR, the joining time may be granted to enable the applicant to join a new post either at the same or a new station without availing himself of any leave on relinquishing charge of his previous posting. That apart, as per FR 9 (6) (II) of FR & SR, 'Duty' includes joining time. The only issue is that of the allowances.
7. It has been further submitted by the learned counsel for the Respondent Nos. 2, 5 & 6 that on regularization of gap period between date of O.A. No. 040/118/2022 11 release/handing over charge of the earlier post and the date of taking over charge of the new post as joining time extension as per Guidelines laid down in Finance Departments' O.M. No. FEG. 14/95/40 dated 29.01.2018, a Government Employee is entitled to draw pay and allowances for the said period. Further, as per FR & SR, there is no provision to allow under-posting or compulsory wait period. In this connection, the Finance Department has already clarified vide O.M. No. FE.621/19/38 dated 01.02.2021 that there are no separate provisions in FR & SR for treatment of compulsory waiting period arising due to non-issuance of posting orders of the Officers on return or reversion from training/higher studies/deputation.
8. In the light of the above, it is settled position that the applicant being a 1993 IFS batch Officer and as per the express request made by the Government of Assam to the Hon'ble Minister of State which was approved by the ACC (Appointments Committee of Cabinet), the Officer was subsequently released from the deputation from the O.A. No. 040/118/2022 12 RINL, Vishakapatnam; and after following the permissible joining time, the applicant joined back in the State of Assam on 08.07.2020 and thereafter, he continued to perform his official duties as evident from the communications made from the Government of Assam, Environment and Forest Department and his posting order was issued on 27.11.2020. The applicant had joined the State officially in time after availing of the permissible joining period. The applicant should not suffer due to delay in issuing of the posting order. This delay is caused on the part of the concerned authority issuing the said Order. The period of 143 days was subsequently treated as extension of joining period, whereas the applicant requested for the same to be treated as compulsory waiting. The extant Government norms and rules as relied upon by the learned counsel for the respondents point out that there is no provision of compulsory waiting in the relevant O.Ms of the Gov. of Assam. However, it is evident that in the relevant O.M., it is empathetically mentioned that duty includes joining time period or extended joining O.A. No. 040/118/2022 13 period. The applicant should be allowed for receiving the full pay and allowances thereof.
9. In the considered opinion of this Tribunal, the period of 143 days to be considered in continuity of the official duty of the applicant and he is entitled to all the pay and allowances thereof. Accordingly, concerned authorities i.e. Government of Assam is hereby directed to release all the pay and allowances for the period of 143 from 08.07.2020 to 27.11.2020, as prayed for in the instant O.A. to the applicant, within a period of three months from the date of receipt of copy of this Order.
10. With the above observations and directions, O.A. stands disposed of. No order as to costs.
(MR. M.L. SRIVASTAVA) MEMBER (A) /PB/SK/BB/ O.A. No. 040/118/2022