Central Administrative Tribunal - Gauhati
Tashi Namgey vs Comptroller And Auditor-General Of ... on 26 February, 2024
1
CENTRAL ADMINISTRATIVE TRIBUNAL
GUWAHATI BENCH
(CIRCUIT COURT AT ITANAGAR, A.P.)
Original Application Nos. 045/00337/2019,
045/00131/2020 & 045/00161/2020
Date of order: This, the 26th day of February, 2024
HON'BLE SMT. URMITA DATTA SEN, JUDICIAL MEMBER
HON'BLE DR. SUMEET JERATH, ADMINISTRATIVE MEMBER
O.A. No. 045/00337/2019
1. Tashi Namgey, Divisional Accountant
O/o the Executive Engineer
PWD Division, Seppa
Dist - East Kameng, Arunachal Pradesh
Pin - 790102.
2. Jumi Kamum, Divisional Accountant
O/o the Executive Engineer
RWD Along, P.O. - Along
Dist - West Siang, Arunachal Pradesh
Pin - 791001.
...Applicants
- Versus -
1. The Union of India
Through the Comptroller and
Auditor General of India
10 Bahadur Shah Zafar Marg
New Delhi - 110124.
2. Principal Accountant General (A&E)
Arunachal Pradesh, Itanagar
Pin - 791111, Itanagar.
O.A. Nos. 045/337/2019,
131/2020 & 161/2020
2
3. The Accountant General (A&E)
Arunachal Pradesh, Itanagar
Pin - 791111, Itanagar.
4. The State of Arunachal Pradesh
Represented by the Secretary
To the Government of Arunachal Pradesh
Department of Finance
Pin - 791111, Itanagar.
5. The Commissioner, Finance Department
Government of Arunachal Pradesh
Pin - 791111, Itanagar.
6. The Chief Engineer
Public Works Department, Western Zone
Government of Arunachal Pradesh
Pin - 791111, Itanagar.
7. The Chief Engineer
Public Works Department, Eastern Zone
Government of Arunachal Pradesh
Pin - 791111, Itanagar.
8. The Chief Engineer
Rural Works Department, W/Z
Government of Arunachal Pradesh
Pin - 791111, Itanagar.
9. The Director of Accounts & Treasuries
Government of Arunachal Pradesh
Pin - 791111, Itanagar.
10. The Director of Audit & Pension
Government of Arunachal Pradesh
Pin - 791111, Itanagar.
... Respondents
O.A. Nos. 045/337/2019,
131/2020 & 161/2020
3
For applicant(s): Sri M. Chanda
For respondents: Sri R. Hazarika, Addl. CGSC
For Res. Nos. 1 to 3 &
Sri A. Chandran for Res. Nos. 4 to 10
O.A. No. 045/00131/2020
Gamboh Hagey, Divisional Accountant
O/O the Executive Engineer
PWD, Ziro, Pin - 791120
Dist - Lower Subansiri, Arunachal Pradesh.
...Applicant
- Versus -
1. The Union of India
Through the Comptroller and
Auditor General of India
10 Bahadur Shah Zafar Marg
New Delhi - 110124.
2. Principal Accountant General (A&E)
Arunachal Pradesh, Itanagar
Pin - 791111, Itanagar.
3. The Accountant General (A&E)
Arunachal Pradesh, Itanagar
Pin - 791111, Itanagar.
4. The State of Arunachal Pradesh
Represented by the Secretary
To the Government of Arunachal Pradesh
Department of Finance
Pin - 791111, Itanagar.
5. The Commissioner, Finance Department
Government of Arunachal Pradesh
Pin - 791111, Itanagar.
O.A. Nos. 045/337/2019,
131/2020 & 161/2020
4
6. The Chief Engineer
Public Works Department
Central Zone A
Government of Arunachal Pradesh
Itanagar, Pin - 791111.
7. The Director of Accounts & Treasuries
Government of Arunachal Pradesh
Pin - 791111, Itanagar.
8. The Director of Audit & Pension
Government of Arunachal Pradesh
Pin - 791111, Itanagar.
... Respondents
For applicant(s): Sri M. Chanda
For respondents: Sri R. Hazarika, Addl. CGSC
For Res. Nos. 1 to 3 &
Sri A. Chandran for Res. Nos. 4 to 8
O.A. No. 045/00161/2020
1. Sri Tage Murtem
Divisional Accountant
O/O the Executive Engineer
Water Resource Division, Ziro
Pin - 791120, Arunachal Pradesh.
2. Sri Hage Mubi Tada
Divisional Accountant
O/o the Executive Engineer
Rural Works Division, Yupia
Arunachal Pradesh, Pin - 791110.
3. Sri Takang Taboh
Divisional Accountant
O/o the Executive Engineer
Power Electrical, Pashighat Dist - East Yang
Arunachal Pradesh, Pin - 791102.
O.A. Nos. 045/337/2019,
131/2020 & 161/2020
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4. Shri Love Rao
Divisional Accountant
O/o the Executive Engineer, Naharlagun
PWD Division, Dist - Papum Pare
Arunachal Pradesh - 791110.
5. Shri Lendi Chatung
Divisional Accountant
O/O the Executive Engineer
PWD, Capital Division-A, Itanagar
Arunachal Pradesh, Pin - 791111.
6. Shri Utpal Mahanta
Divisional Accountant
O/o the Executive Engineer
PHED and Water Supply Division
Yupia, Dist - Papumpare
Arunachal Pradesh, Pin-791110.
7. Shri Hage Tamin
Divisional Accountant
O/o the Executive Engineer
Electrical Division, Ziro
Dist - Lower Subansiri
Arunachal Pradesh, Pin - 791120.
8. Shri Debbobrata Roy
Divisional Accountant
O/o the Executive Engineer
Water Resource Department
Likhabali, P.O. - Likhabali
Pin - 791125, Arunachal Pradesh.
...Applicants
- Versus -
1. The Union of India
Through the Comptroller and
Auditor General of India
O.A. Nos. 045/337/2019,
131/2020 & 161/2020
6
10 Bahadur Shah Zafar Marg
New Delhi - 110124.
2. Principal Accountant General (A&E)
Arunachal Pradesh, Itanagar
Pin - 791111, Itanagar.
3. The Accountant General (A&E)
Arunachal Pradesh, Itanagar
Pin - 791111, Itanagar.
4. The State of Arunachal Pradesh
Represented by the Secretary
To the Government of Arunachal Pradesh
Department of Finance
Pin - 791111, Itanagar.
5. The Commissioner, Finance Department
Government of Arunachal Pradesh
Pin - 791111, Itanagar.
6. The Chief Engineer
Public Works Department
Western Zone
Government of Arunachal Pradesh
Itanagar, Pin - 791111.
7. The Chief Engineer
Public Works Department
Eastern Zone
Government of Arunachal Pradesh
Itanagar, Pin - 791111.
8. The Chief Engineer
PHED and Water Supply Division, WZ
Government of Arunachal Pradesh
Itanagar, Pin - 791111.
O.A. Nos. 045/337/2019,
131/2020 & 161/2020
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9. The Chief Engineer
PHED and Water Supply Division E/Z
Government of Arunachal Pradesh
Itanagar, Pin - 791111.
10. The Chief Engineer
Department of Power (Electrical), WZ
Government of Arunachal Pradesh
Itanagar, Pin - 791111.
11. The Chief Engineer (W/Z)
Water Resource Department
Government of Arunachal Pradesh
Itanagar, Pin - 791111.
12. The Chief Engineer
Rural Works Department, W/Z
Government of Arunachal Pradesh
Itanagar, Pin - 791111.
13. The Director of Accounts & Treasuries
Government of Arunachal Pradesh
Pin - 791111, Itanagar.
14. The Director of Audit & Pension
Government of Arunachal Pradesh
Naharlogun - 791110.
... Respondents
For applicant(s): Sri M. Chanda
For respondents: Sri R. Hazarika, Addl. CGSC
For Res. Nos. 1 to 3 &
Sri A. Chandran for Res. Nos. 4 to 14
O.A. Nos. 045/337/2019,
131/2020 & 161/2020
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ORDER (ORAL)
PER URMITA DUTTA (SEN), MEMBER (J):
These three matters have been taken up today by the Circuit Court at Itanagar (Arunachal Pradesh).
2. As these three O.A Nos. 337/2019; 131/2020 and 161/2020 involved identical questions of facts and law, the same were heard analogously and disposed of by present common order. For the sake of brevity, facts are delineated from O.A. No. 161 of 2020.
3. The instant applications have been filed by the applicants praying for following reliefs: O.A. No. 337/2019
"8.1 That the Hon'ble Tribunal will be pleased to set aside and quash the impugned rejection Order dated 22.08.2019(Annexure-A/1);
8.2 That the Hon'ble Tribunal be pleased to direct the respondent no. 1, 2 & 3 to absorb the applicants on regular basis in the cadre of Divisional Accountant in the existing vacant post, at least from the date of initial appointment on deputation basis in relaxation of the relevant Recruitment Rules, 1988 under the administrative control of the respondent no. 1, 2 & 3 with all consequential service benefits including benefits of ACP/MACP.
8.3 That the applicants pray permission to move this application jointly in a Single Application under Sec 4 (5)(a) of the Central Administrative Tribunal (Procedure) Rules, 1987 as the relief's sought for in this application by the applicants are common, therefore, they pray for granting O.A. Nos. 045/337/2019, 131/2020 & 161/2020 9 leave to approach the Hon'ble Tribunal by a common application.
8.4 Costs of the application.
8.5 Any other relief(s) to which the applicants are entitled as the Hon'ble Tribunal may deem fit and proper."O.A. No. 131/2020
"8.1 That the Hon'ble Tribunal will be pleased to set aside and quash the impugned rejection Order dated 22.08.2019(Annexure-A/1);
8.2 That the Hon'ble Tribunal be pleased to direct the respondent no. 1, 2 & 3 to absorb the applicants on regular basis in the cadre of Divisional Accountant in the existing vacant post, in relaxation of the recruitment rules, namely "The Indian Audit & Accounts Department [Divisional Accountants] Recruitment Rules, 1988"at least from the date of initial appointment on deputation basis under the administrative control of the respondent no. 1, 2 & 3 with all consequential service benefits including benefits of ACP/MACP.
8.3 Costs of the application.
8.4 Any other relief(s) to which the applicants are entitled as the Hon'ble Tribunal may deem fit and proper."O.A. No. 161/2020
"8.1 That the Hon'ble Tribunal will be pleased to set aside and quash the impugned rejection Order dated 22.08.2019(Annexure-A/1);
8.2 That the Hon'ble Tribunal be pleased to direct the respondent no. 1, 2 & 3 to absorb the applicants on regular basis in the cadre of Divisional Accountant in the existing vacant post, in relaxation of the recruitment rules, namely "The Indian Audit & Accounts Department [Divisional Accountants] Recruitment Rules, 1988"at least from the date of initial appointment on deputation basis under the administrative control of the respondent no. 1, 2 & 3 with all consequential service benefits including benefits of ACP/MACP.
O.A. Nos. 045/337/2019, 131/2020 & 161/2020 10 8.3 Costs of the application.
8.4 Any other relief(s) to which the applicants are entitled as the Hon'ble Tribunal may deem fit and proper."
4. As per the applicants, two Notifications dated 09/07/1996 & 20.01.1998 were published inviting application from the candidates, who had fulfilled the following terms and conditions and willing to serve temporarily as 'Divisional Accountant' either in Manipur, Tripura and Arunachal Pradesh in the Public Works Department for a period of 1 year on deputation basis, which are as follows:
(a) Upper Division Clerks or State Public Works Department of States of Manipur, Tripura and Arunachal Pradesh having a minimum of 08 (eight) years working experience as Upper Division Clerk and holding the post equivalent to Sr. Accountant or Accountant of this Office.
Or
(b) Accountant or Sr. Accountant of the Offices of the Accountant General (A&D) Manipur, Tripura or Meghalaya etc. having a minimum of 8 (eight) years working experience of works in Audit Section or DA cell section.
5. The applicants, being fulfilling the first criteria of eligibility and minimum 08 years of work experience, applied for the same and subsequently found suitable after passing the written examination and being O.A. Nos. 045/337/2019, 131/2020 & 161/2020 11 selected/appointed for the post of Divisional Accountant for the period from 1996-1999 and working till date. The applicants were initially posted on deputation basis under the administrative control of Accountant General (A&E), Meghalaya, Arunachal Pradesh and Shillong, detail particulars of which are as follows: O.A. No. 337 of 2019
Sl. Name Date of Date of Present place No. Appointment as appointment of posting LDC/UDC of D/A on deputation basis 1 Tashi Namgey 1986 1989 PWD Division, Seppa 2 Jumi Kamum 15.02.1988 24.07.1998 RWD Along, Dist - West Siang O.A. No. 131 of 2020 Sl. Name Date of Date of Present place No. Appointment as appointment of posting UDC of D/A on deputation basis 1 Gamboh Hagey 18.06.1991 30.12.1996 PWD Ziro O.A. No. 161 of 2020 Sl. Name Date of Date of Present place of No. Appointment as appointment of posting LDC/UDC D/A on deputation basis 1 Tage Murtem 22.01.1987 30.12.1996 Water Resource Division, Ziro 2 Hage Mubi Tada 10.02.1992 30.12.1996 Rural Works Division, O.A. Nos. 045/337/2019, 131/2020 & 161/2020 12 Yupia 3 Takang Taboh 01.05.1992 01.04.1999 PHED and Water Supply Division, Yingklong 4 Love Rao 03.05.1989 13.03.199 PWD Division, Naharlogun 5 Lendi Chatung 01.07.1988 11.04.1999 PWD, Capital Division-A, Itanagar 6 Utpal Mahanta 19.09.1986 12.02.1997 PHED and Water Supply Division, Yupia 7 Hage Tamin 07.05.1985 30.12.1996 Electrical Resource Department, Ziro 8 Debbobrata Roy 12.05.1989 18.03.1999 Water Resource Department, Likhabali In the meantime, Office of the Accountant General, Arunachal Pradesh was bifurcated in 2008 and the applicants were working since then in the Office of the Accountant General, Arunachal Pradesh without any break.
6. It has been submitted by the applicants that though the cadre controlling authority of the Divisional Accountant is Principal Accountant General (A&E), Arunachal Pradesh, Itanagar, however, the salary of the O.A. Nos. 045/337/2019, 131/2020 & 161/2020 13 Divisional Accountant is being made from the State Exchequer of Arunachal Pradesh. In the meantime, a decision had been taken in a Cabinet Meeting to initiate proposal for taking over the entire account set up from the administrative control of the Accountant General. In this regard, State of Arunachal Pradesh had sent a proposal for approval of the Comptroller and Auditor General vide Memo dated 15.11.1999 followed by letters dated 12.01.2000, 11.03.2002 and 11.07.2002. But till date, no decision has been communicated to the State Government. As no decision was communicated by the Comptroller and Auditor General, the Association of the applicants submitted representations on 25.07.2007 and 20.08.2008 for regular absorption to the sanctioned vacant post of Divisional Account, who were working on deputation basis for a long time at the Office of the Accountant General, Arunachal Pradesh. In the meantime, instead of absorbing the applicants in the Office of the Accountant General or accepting the proposal of the State Government, Itanagar to take up O.A. Nos. 045/337/2019, 131/2020 & 161/2020 14 the administrative control of the Divisional Accountant cadre, the applicants were initially repatriated for which, they had approached before this Tribunal and ultimately approached before the Hon'ble Gauhati High Court vide Writ Petition Nos. 459 (AP)/2001; 517(AP)/2001; 729(A)/2001; 820(AP)/2001; 112 (AP)/2002; 221 (AP)/2002; 301(AP)/2002; 472(AP)/2002, 409(AP/2002; 410(AP)/2002; 172(AP)/2003 & 256(AP)/2003. However, the Hon'ble Gauhati High Court did not interfere with the repatriation of the applicants therein and dismissed the said Writ Petitions vide Order dated 01.02.2005.
7. In the meantime, though the State of Arunachal Pradesh had made proposal for taking over the administrative control of the cadre of Divisional Accountant and the applicants were not repatriated but kept them on deputation at the Office of the Accountant General and subsequently communications were being made between the Office of the Accountant General and State of Arunachal Pradesh with regard to cadre control. However, as per the O.A. Nos. 045/337/2019, 131/2020 & 161/2020 15 Hon'ble Gauhati High Court's Order, CAG had taken initiative to repatriate the applicants but on the request of the State Government of Arunachal Pradesh vide letter dated 15/18.07.2005 from the Director of Accounts and Treasuries, Government of Arunachal Pradesh, Naharlagun to reconsider the decision of repatriation as well as to give of approval for taking over the cadre of the DAO by the Government of Arunachal Pradesh, the applicants were not repatriated. However, as no decision was taken in the meantime, they had approached this Tribunal again in O.A. Nos. 112/2017, 130/2007, 134/2007, 143/2007, 144/2007, 159/2007 and 182/2007 and this Tribunal vide Order dated 16.04.2008 had observed that as there is a proposal of taking over the cadre of Divisional Accountant by the State Government, the applicants can be repatriated safely pending finalization of the issue relating to handing over and taking of the Divisional Accountant etc. cadre from Central Government Organization to State Government.
O.A. Nos. 045/337/2019, 131/2020 & 161/2020 16 In view of the above, the applicants were not repatriated and are working till date.
8. However, even then, though they were working there in the limbo situation and had worked for more than 20 years as well as final decision pending at the end of the CAG with regard to the proposal of the State Government, they approached this Tribunal in O.A. No. 319/2017, which was disposed of vide Order dated 06.05.2019 with a direction to the Union of India/C&AG and the State Government of Arunachal Pradesh to take a final decision in the matter with regard to change of administrative control of cadre or absorption of the applicants within a stipulated period of time as the applicants were on deputation for more than 20 years (in the meantime as the applicants are approaching the age of superannuation). In pursuance to that, Respondents No. 1, 2 & 3 had issued the impugned rejection Order dated 22.08.2019 (Annexure-A/1) and rejected the case of the applicants on the ground that as per the Recruitment Rules (to the post of Divisional O.A. Nos. 045/337/2019, 131/2020 & 161/2020 17 Accountant), the method of recruitment to the post of Divisional Accountant is by direct recruitment and there is no provision to appoint the deputationist, who came on deputation-cum-absorption as no power of relaxation in individual cases. Therefore, their prayer cannot be considered. Being aggrieved with, they have filed the instant application.
9. Sri M. Chanda, learned counsel for the applicants has drawn our attention to the Rule of the Indian Audit and Accounts Department (Divisional Accountant) Recruitment Rules, 1988 read with Manual of the Standing Orders (Administrative) Volume III particularly Rule 5, which is still in existence. Further, Sri Chanda has drawn our attention to the Serial Nos. 11 & 12 of the Schedule of the said Rules from where, it would be evident that though the post of Divisional Accountant to be filled up basically by Direct Recruit, however, there is a provision for deputation and other subject to fulfilment of eligibility criteria.
O.A. Nos. 045/337/2019, 131/2020 & 161/2020 18
10. During the course of hearing, learned counsel for the applicants has drawn our attention to the Circular No. 30-Staff(App 1)/2019 dated 05.08.2019 (Annexure-R/1 series) for the posts of Auditor & Clerk, whereby the Office of the Comptroller and Auditor General of India in exercise of power contained in Rule 5 of the Indian Audit & Accounts Department (Auditors) Recruitment Rules, 1988 and in relaxation to column 11 of the schedule, has relaxed the Recruitment for appointment to the posts of Auditor and clearly has stipulated that 40% vacancies shall be filled up by promotion of Clerks having 5 years regular service in the grade and 10% by promotion from the Clerks, who have passed SAS Group I (erstwhile SOGE Grade I); Graduate MTS with three years regular service in the grade, who have passed the Departmental Examination for Auditors; and on passing the Departmental Examination for Auditors, Graduate Staff Car Drivers would be considered for appointment by absorption method against the vacancies meant for O.A. Nos. 045/337/2019, 131/2020 & 161/2020 19 direct recruitment to the post of Auditors during the panel year 2020 only.
Further, vide Circular No. 31-Staff (App 1)/2019 dated 05.08.2019, the same Office in exercise of Rule 6 of the Indian Audit & Accounts Department (Clerks in Accounts and Entitlement Officer and Clerks in Audit Officers) Recruitment Rules, 2014 and in relaxation to column 10 & 11 of the schedule, has relaxed the Recruitment for appointment to the posts of Clerk and has clearly stipulated that 15% vacancies shall be filled up by promotion from 12th pass MTS having 03 years regular service in the grade; and 12th pass Staff Car Driver (Ordinary Grade) in Pay Level 2 of Pay Matrix shall be considered for appointment by absorption method against the vacancies meant for direct recruitment to the post of Clerk during the panel year 2020 only. Further, the same Office in exercise of powers contained in Rule 5 of the Indian Audit & Accounts Department (Auditors) Recruitment Rules-1988 and in relaxation to Column 11 of the Schedule of the said Rules has also O.A. Nos. 045/337/2019, 131/2020 & 161/2020 20 relaxed the recruitment in respect of the appointment of Canteen Attendants, wherein it has been stipulated that 12th passed Canteen Attendants would be considered for appointment by absorption method against the vacancies meant for direct recruitment to the post of Clerk during the panel year 2020 only.
11. In view of the above, since there is a clear provision under Rule 5 of the Indian Audit & Accounts Department (Auditors) Recruitment Rules 1988 for relaxation, hence the grounds of the respondents for rejecting the case of the applicants that they have no relaxation power is clearly discriminatory on the part of the Office of the Accountant General. Even, till today, they have not rejected the proposal of the State Government. However recently, the Principal Secretary (Finance), Government of Arunachal Pradesh had requested the Principal Accountant General, Arunachal Pradesh to continue to utilise the service of the Divisional Accountants on deputation in the Office of the Principal Accountant General, Arunachal Pradesh till the final O.A. Nos. 045/337/2019, 131/2020 & 161/2020 21 decision of the State Government. Therefore, as their cases are in under active consideration by the State Government and as the Principal Accountant General has already granted relaxation to the Staff Car Drivers and other Canteen Attendants etc. by relaxing of their Recruitment Rules and there is a clear provision under Rule 5 of relaxation of recruitment Rule also, the applicants should be considered for absorption in the said posts of Divisional Accountants.
12. Sri R. Chandran, learned Addl. Sr. Govt. Adv. for the State of Arunachal Pradesh appearing on behalf of respondent Nos. 4 to 14 has also admitted the factual position that since 1999, the State Government had asked for administrative control of the Divisional Accountants, as had been decided by the State Cabinet as salaries and other financial benefits are being borne by the State Government exchequer; on the other hand, Principal Accountant General is having only the administrative control over the said cadre. He has further submitted that the Sr. Deputy Accountant General vide O.A. Nos. 045/337/2019, 131/2020 & 161/2020 22 Letter dated 22.08.2019(Annexure-R/11) had communicated their decision with regard to the absorption and handing over the administrative control of the Divisional Accountant to the State Government.
13. Sri R. Hazarika, learned Addl. CGSC appearing on behalf of respondent Nos. 1, 2 & 3 has submitted that the applicants, while working as Upper Division Clerk/Lower Division Clerks in various Divisions in the Office of the Executive Engineer, PWD/PHE/WRD and Power Department of State of Arunachal Pradesh were selected to be posted as Divisional Accountant on deputation basis for a period of one year as per the Recruitment Rules, 1988 in the combined cadre of Divisional Accountant under the administrative control of the Office of the Accountant General(A&E), Meghalaya. However, on the basis of request made by the State Government vide Letters dated 15.11.1999, 12.01.2000, 11.03.2002 and 11.07.2002(Annexure-R/2)(series), the applicants were continuing as emergency Divisional Accountants for the time being as working arrangement, O.A. Nos. 045/337/2019, 131/2020 & 161/2020 23 as the State Government has decided to take over the cadre of Divisional Accountants.
14. Sri Hazarika has further submitted that as there were vacancies, the employees of the State Government were kept on deputation basis as per the provisions contained in the recruitment rules. The recruitment rules to the post of Divisional Accountants do not provide for appointment on the basis of deputation- cum-absorption. As per guidelines issued by the Department of Personnel and Training, before resorting to relaxation of Recruitment Rules, the Ministries/Departments should explore the feasibility of filling up of a post by other methods of recruitment provided in the rules. Presently, appointment of candidates to the post of Divisional Accountants by direct recruitment is in process through SSC. Hence, prayer of the applicants to absorb them in relaxing the Rules cannot be acceded to.
With regard to handing over of the cadre of Divisional Accountant to the State Government of Arunachal O.A. Nos. 045/337/2019, 131/2020 & 161/2020 24 Pradesh, CAG Office has not agreed to the proposal of the State Government to transfer the Divisional Accountant cadre to the State, in order to fulfil its Constitutional functions under Article 149 and 150 of the Constitution of India.
15. We have heard the parties and perused the records. This is an admitted fact that the applicants were selected on the basis of the Advertisements as per the Recruitment Rules mentioned above and being found eligible and successful in the said selection process, they were posted on deputation to the post of Divisional Accountant. Since the applicants were repatriated, being aggrieved with, they had earlier approached before this Tribunal and subsequently before the Hon'ble Gauhati High Court. However, the Hon'ble High Court refused to interfere on the issue of repatriation on deputation as the applicants can be repatriated within 03 years of time.
16. It is further observed that even then the State Government from 1999 onwards, after taking Cabinet O.A. Nos. 045/337/2019, 131/2020 & 161/2020 25 decision, had repeatedly asked for handing over the administrative control of the Divisional Accountant and no final decision was communicated by the C&AG till the impugned Order has been passed and the copy was sent to the State Government only. Further, it is an admitted fact that the applicants were not being repatriated even after the Hon'ble Gauhati High Court's Order on the basis of the request of the State Government or otherwise. However, the Principal Accountant General/Comptroller of Auditor General of India had rejected the claim of the applicants vide Order dated 22.08.2019 (Annexure-A/1). Thereafter also, the State Government had again requested the Principal and Accountant General not to repatriate the deputationists as per the Order as some decision has to be taken up by the State Government. Thus, till date, the applicants are working there in the Office of the Principal Accountant General. It is further noted that the State Government while opposing the repatriation as indicated in the letter dated 04.02.2021, communicated O.A. Nos. 045/337/2019, 131/2020 & 161/2020 26 that they want to take some logical conclusion on the issue. However, the respondent Nos. 1 to 3 had rejected the claim of both the State Government and the applicants vide impugned Order dated 22.08.2019 on following grounds:
"(i) As per Recruitment Rules to the post of Divisional Accountant, the method of recruitment is by direct recruitment. Vacancies caused by the incumbents being on transfer on deputation or long illness or study leave or under other circumstances for a period of one year or more may be filled up on transfer on deputation. As there were vacancies, the employees of the State Government were kept on deputation basis as per the provision in the recruitment rules. The recruitment rules to the post of Divisional Accountants do not provide for appointment on the basis of deputation-cum-absorption.
(ii) Regarding prayer of the applicants to absorb them in relaxation of Recruitment Rules, it is intimated that as per guidelines issued by the Department of Personnel and Training before resorting to relaxation of Recruitment Rules, the Ministries/Departments should explore the feasibility of filling up a post other methods of recruitment provided in the rules. Presently, appointment of candidates to the post of Divisional Accountants by direct recruitment through SSC is in process. Further, the Recruitment Rules cannot be relaxed in individual cases.
Hence, prayer of the applicants to absorb them in relaxation of Rules on the post of Divisional Accountant in O/o the PAG, Arunachal Pradesh, Itanagar, cannot be acceded to.
(iii) Regarding handing over of the cadre of Divisional Accountant to the State Government of Arunachal Pradesh to transfer the Divisional O.A. Nos. 045/337/2019, 131/2020 & 161/2020 27 Accountant cadre to the State, in order to fulfil its constitutional functions under Article 149 and 150 of the Constitution of India regarding timely submission of accounts, accuracy of Division Accounts and ensuring that Divisional Accounts are prepared in accordance with Accounting norms and standards.
From the above, it is noted that the Comptroller and Auditor General of India has basically made objections on three grounds i.e. two are with regard to the applicants and one is with regard to the State Government as quoted above.
17. It is further noted that as per the respondents(C&AG), the Recruitment Rules to the post of Divisional Accountant do not provide for appointment on the basis of deputation-cum-absorption; therefore, they cannot be absorbed whereas from the perusal of the Manual of Standing Orders (Administrative) Volume III of Indian Audit and Accounts Department (Divisional Accountant) Recruitment Rules, 1988, it is observed that the method of recruitment has been mentioned in Sl. No. 11 & 12, which are as under:
"11. Method of recruitment, Direct Recruitment:
whether by direct Note 1. The direct recruits will be O.A. Nos. 045/337/2019, 131/2020 & 161/2020 28 recruitment or by selected on the basis of an authority promotion or by specified by the Comptroller and deputation/transfer and Auditor General of India. During percentage of the the period of probation, they should vacancies to be filled up qualify in the prescribed by various method Departmental Examination.
However, in West Bengal, before the vacancies are filled up by direct recruitment the Senior Accounts Clerk recruited by the Accountant General(Accounts and Entitlement), West Bengal through the initial recruitment examination for Divisional Accountants before the commencement of these rules and who have qualified, or who qualify, in the departmental examination within the prescribed chances shall be considered for promotion as Divisional Accountants.
Note 2. Vacancies caused by the incumbent being away on transfer on deputation or long illness or study leave or under other circumstances for a duration of one year or more may be filled on transfer on deputation from:- (1) Accountants (Rs. 1200-
2040) and Senior Accountants (Rs. 1400- 2600)(belonging to the Accounts and Entitlement office in whose jurisdiction the vacancies have arisen) who have passed the Departmental Examination for Accountants and have 5 years regular service as Accountant/Senior Accountant including 2 years experience in Works section, or
(ii) State Public Works Clerks holding posts equivalent to or comparable with that of Accountant/Senior Accountant on a regular basis for 5 years including 2 O.A. Nos. 045/337/2019, 131/2020 & 161/2020 29 years experience in Public Works Accountants.
Note 3. The period of deputation including the period of deputation in another ex-cadre post held immediately preceding this appointment in the same or some other Organisation/Department of the Central Government shall ordinarily not exceed 3 years.
12. In case of recruitment, by As stated in column 11"
promotion deputation/transfer, grades from which promotion/deputation/trans fer to be made From the perusal of the aforesaid method of recruitment, it is noted that though at the first instance, the method of recruitment is "Direct Recruitment", however, in Note- 2 of the said para -11, there is a provision to fill up the vacancies on transfer on deputation from the State Public Works Clerks and since the applicants had initially fulfilled the eligibility criteria, they were selected on deputation in a proper manner i.e., through proper selection process on the basis of different Notifications. Further, the para- 12 of the said Schedule also stipulates O.A. Nos. 045/337/2019, 131/2020 & 161/2020 30 that-"In case of recruitment by promotion deputation/transfer, grades from which promotion/deputation/transfer to be made". The eligibility criteria of para - 11 has been equated as it is a case of recruitment by promotion and deputation, therefore, the provisions of direct recruitment in para-11 of Note-1 is not relevant but Note - 2 is relevant for such purposes. Thus, the contention of the respondents that there is no such provision for deputation/transfer is not acceptable in view of Note-2 of paragraph 11 of the aforesaid Rules.
18. We have also perused the Appendix-20 of the Manual of Standing Orders(Administrative) Volume III read with Indian Audit & Accounts Department(Divisional Accountant), Recruitment Rules, 1988, particularly, Rule 5, which stipulates inter-alia:-
"5. Power to relax: - Where the Comptroller Auditor General of India is of the opinion that it is expedient or necessary so to do, he may, by order and for reasons to be recorded in writing relax any of the provision of these rules with respect to any class or category of persons."
O.A. Nos. 045/337/2019, 131/2020 & 161/2020 31 In view of the above, the contentions of the respondents that there is no provision of relaxation individually is also not acceptable by us.
19. On the contrary, it is further noted that the Office of the C&AG, New Delhi vide their Order dated 05.08.2019 (Annexure-R/1 series), had relaxed the Recruitment Rules for filling up the vacancies for the post of Auditor and relevant portion of which is as follows:
"3. Accordingly, to fill up the vacancies existing under the direct recruitment quota, the Comptroller & Auditor General of India, in exercise of powers contained in Rule 5 of the Indian Audit & Accounts Department (Auditors) Recruitment Rules, 1988, has ordered, in relaxation to column 11 of the schedule to the aforesaid rules, that:
(i) Graduate Clerks and Graduate MTS with three years regular service who have passed the Departmental Examination for Auditors and Clerks who have passed Group I of SAS Examination will be eligible to be considered for appointment by promotion to the posts of Auditors against the vacancies meant for direct recruitment during the panel year 2020 only.
(ii) Graduate Staff Car Drivers (Ordinary Grade) in Pay Level 2, Graduate Staff Car Driver (Grade II) in Pay Level 4 and Graduate Staff Car Driver (Grade I) in Pay Level 5 of Pay Matrix, working in Audit and A&E offices of IA&AD, should be allowed to appear in Departmental Examination for Auditors. On passing the Departmental Examination for Auditors, they will be considered for appointment by absorption method against the vacancies meant for direct recruitment to the post of Auditors during the panel year 2020 only."
O.A. Nos. 045/337/2019, 131/2020 & 161/2020 32 Further, the same Office of the C&AG, New Delhi vide their Order dated 05.08.2019 (Annexure-R/1 series), had relaxed the Recruitment Rules for filling up the vacancies for the post of Clerk and relevant portion of which is as follows:
"3. Accordingly, to fill up the vacancies existing under the direct recruitment quota, the Comptroller & Auditor General of India, in exercise of powers contained in Rule 6 of the Indian Audit & Accounts Department (Clerks in Accounts and Entitlement Offices and Clerks in Audit Offices)) Recruitment Rules, 2014, has ordered, in relaxation to column 10 and 11 of the schedule to the aforesaid rules, that:
(i) 12th pass MTS who have passed the Departmental Examination for Clerks will be eligible to be considered for appointment by promotion to the posts of Clerks against the vacancies meant for direct recruitment during the panel year 2020 only.
(ii) 12th passed Staff Car Driver (Ordinary Grade) in Pay Level 2 of Pay Matrix having the age of 45 years or below (50 years for Scheduled Caste and the Scheduled Tribes candidates) should be allowed to appear in Departmental Examination for Clerks. On passing the Departmental Examination for Clerks, they will be considered for appointment by absorption method against the vacancies meant for direct recruitment to the post of Clerk during the panel year 2020 only."
Further, the same Office of the C&AG, New Delhi vide their Order dated 27.01.2020 (Annexure-R/2), had relaxed O.A. Nos. 045/337/2019, 131/2020 & 161/2020 33 the Recruitment Rules for appointment to the posts of Clerks and Auditors as follows:
"12th Passed Canteen Attendants in Pay Level-1 of Pay Matrix, 12th passed Canteen Clerks and 12th passed Assistant Halwai-cum-Cook in Pay Level-2 of Pay Matrix having the age of 45 years or below (50 years for Scheduled Caste and Scheduled Tribes candidates) working in Departmental Canteens of Audit and A&E offices of IA&AD, should be allowed to appear in Departmental Examination for Clerks. On passing the Departmental Examination for Clerks, they will be considered for appointment by absorption method against the vacancies meant for direct recruitment to the post of Clerk during the panel year 2020 only."
(2) Similarly, the Comptroller and Auditor General of India, in exercise of powers contained in Rule-5 of the Indian Audit & Accounts Department (Auditors) Recruitment Rules-1988, has ordered, in relaxation to Column 11 of the Schedule to the aforesaid rules, that:
"Graduate Canteen Attendants in Pay Level-1 of Pay Matrix, Graduate Canteen Clerks & Graduate Assistant Halwai-cum-Cook in Pay Level-2 of the Pay Matrix, Graduate Halwai- cum-Cook in Pay Level-3 of the pay Matrix and Graduate Assistant Manager-cum-Store Keeper in Pay Levle-4 of the Pay Matrix working in Departmental Canteens of Audit and A&E offices of IA&AD, should be allowed to appear in Departmental Examination for Auditors. On passing the Departmental Examination for Auditors, they will be considered for appointment by absorption method against the vacancies meant for direct recruitment to the post of Auditor during the panel year 2020 only."
3.The required length of service to appear in Departmental Examination for Auditors and Departmental Examination for Clerks as mentioned in para 9.4.3 and 9.6.2 of MSO O.A. Nos. 045/337/2019, 131/2020 & 161/2020 34 (Admn.) Vol.-I have not been relaxed.
Accordingly, Graduate Canteen Attendants, Graduate Canteen Clerks, Graduate Assistant Halwai-cum-Cook, Graduate Halwai-cum-Cook and Graduate Assistant Manager-cum-Store Keeper with three (03) years continuous service are eligible to appear in Departmental Examination for continuous service are eligible to appear in Departmental Examination for Auditors during the panel year 2020 only. Similarly, 12th passed Canteen Attendants, 12th passed Canteen Clerks and 12th passed Assistant Halwai-cum-Cook having the age of 45 years or below (50 years for Scheduled Caste and Scheduled Tribes candidates) with three (03) years continuous service are eligible to appear in Departmental Examination for Clerks during the panel year 2020 only."
20. In view of the above observations, we are of the considered opinion that since there is a provision for relaxation as well as absorption/deputation/transfer to the said post of Divisional Accountant, which has been done in case of other cadre, therefore, the Comptroller & Auditor General of India cannot discriminate the present applicants by rejecting their case of absorption on the ground that they have no power of relaxation. Accordingly, we quash and set aside the impugned Order dated 22.08.2019(Annexure-A/1) and direct the respondent nos. 1, 2 & 3 to reconsider the case of the applicants on the basis of the observations made O.A. Nos. 045/337/2019, 131/2020 & 161/2020 35 hereinabove as well as taking into account the relaxation granted with regard to the other grades by relaxing the Recruitment Rules as the applicants are admittedly working under the respondent department for more than 25 years with eligibility criteria and were initially selected on a regular selection basis; and communicate their decision within a period of 04(four) months from the date of receipt of a copy of this Order. Till such time, respondents should maintain status-quo as on today as even after 2019, they did not repatriate the applicants as per the request of the State of Arunachal Pradesh vide Letter dated 04.02.2021.
21. The instant O.A. stands disposed of with the above observations and directions with no order as to costs.
(DR. SUMEET JERATH) (URMITA DATTA SEN)
MEMBER (A) MEMBER (J)
PB/SK
O.A. Nos. 045/337/2019,
131/2020 & 161/2020