Central Administrative Tribunal - Madras
Sreenivasasulu Budigi vs M/O External Affairs on 24 July, 2018
1 OA No.42/2017 a CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH, CHENNAY ORIGINAL APPLICATION No.42/2047 Dated this Toesday , the 24 day of July, 2048 Sreenlvasasulu Budigi, S/o Late B.Yanad! Reddy, Under Secretary, Branch Secretariat, MEA, 7* Floor, B.V.K,Sampath Maligal, * DPI Campus, College'Road, . Chennal.600 006, ». Applicant (Party In persony SS a s Versus, 1.Unton of Indla, rep., by Secretary, Ministry of External Affairs, - South] Block, New Dethi - . Respondent, (By Advocate Mr K.Rajendran) Reserved 0n-05.06.2018 Pronounced on QY.OF.Q2018- 2 OAN0-42/2017 ORDER PER:-HON'BLE MS.B, BHAMATHI, MEMBER (A)
| The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
"(I)To quash the! order In No.Q/PA-11/6615/21/2014 dated 29.12.2016 In the file of the respondent and to direct the respondent to appoint . the applicant for the post of Passport officer at Regional. Passport Office, Hyderabad;
(li}To pass such further or other orders as this Hon'ble Court may deem fit and proper in the circumstances of the case and thus render justice, "
2, The factual, matrix of the case of the applicant Is that the _ applicant is a person with disability and Is 100% blind. He was - appointed to the Civil Services on the basis of 'his performance In the, Indian Civil Service Examination 2008-2009 under the reservation for :
_ persons with disabillties in terms of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995,
"2.4. On selection to the Indian civil services, the applicant was entitled to Indian Administrative Service, but DOPT had. allotted him 'Indian Information Service (IIS). The applicant completed two years | training in Indian Information Service and was posted as Assistant Director in I & B Ministry. While working as Assistant: Director in I&B Ministry, the applicant approached, CAT, Principal Bench for allotmerit 3 OA No.42/2017 of Indian Administrative Service as per PWD Act 1995, The Tribunal, . vide order dated 09.09.2011 directed the DOPT to take the applicant under the IAs, Despite that Specific order, DOPT has re-allotted the . applicant under Indian Forelgn Service and seniority was given to the applicant fron 2009, L@, the year, of selection. 'Due to physical and concerned Ministry, vide communication dated 22.07.2014. - Thereafter . the applicant was confirmed in IFS by the MEA and further he was Promoted from Junior Scale to. Senior Scale W.e.f 01.07.2013, vide notification dated 30.10.2014. After confirmation in IFS, he was vall PT ae 4 OA No.42/2017 posted as Under Secretary in Branch Secretariat, MEA Hyderabad on 05.07.2014 on permanent basis, 2.4. The applicant submits that while working as such, the applicant "noticed certaln irregularities, committed by certain officlals and reported It to the Head officer, whereupon some enquiry was conducted, But Instead of taking appropriate actlon against those Invelved In such Irregularities, the applicant was served with the transfer order to MEA, Headquarters, New Delhi, vide order dated 19.03.2015.
2.5. The applicant submitted a representation, for reconsideration of his transfer in view of his disability as Well as in view of the- fact that t his sister Is a mentally challenged. and completely bed ridden and his ' mother {s also aged and facing various health problems requtring the applicant's frequent attention. But his request was not acceded to.
Pa 2.6. The applicant submits that the GOI Issued an OM No.AB . 14017/41/90-Estt(RR) dated 10.05.1990 providing for transfer and posting of persons with disabilities employed agalnst Group C& D posts "at or near their home town as far as practicable posts at that . time However, after the PWD Act, 1995 camé.into force, in terms of Section . .33 of the Act, 3% reservation was extended to all groups of posts.
Further Section 38 of the PWD Act, 1995 mandates the appropriate 5 OA.No.42/2017 Government. for making schemes for the welfare of persons with disabllities in the following terms:
38, (1) The appropriate. Governments and local authoritles shail by.
notification formulate schemes for ensuring employment of persons with:
disabilities, and such schemes may provide for-
(a) The tratriing and walfare of persons with disabllities;
(b) The relaxation of upper age limit;
(c) Regulating the employment;
(d) Health and safety measures and creation of a nen-handicapping -
' environment In places where perséns with disabilities are employed:
(e) The manner In which and the person by whom the cost of operating the ° schemes Is to be defrayed: and
(f) Constituting the authority responsible for the administration of the scheme."
Pursuant to the above sald provision, the GOI, DoPT Issued OM bearing , --
No.AB 14017/16/2002-Estt(RR) dated 13.03.2002 Providing as follows:-
"Reference this department OM No.14017/41/41/90-Estt(RR) dated 10.05.1990 on the above subject, It is clarified that the guidelines contained tn Para 2 of this Department's OM dated 10.05.1990 that requests from Phystcally handicapped émployées for transfer to or near thelr native places may also be given preference, covers physically handicapped employees in'Groups A, B,C & Dp?' 2.7, ' The applicant submits that his transfer to New DelAl' was completely in violation of the om dated 13.03.2002. Hence challenging the transfer order, he filed OA 1214/2015 before the .
Principal Bench of this Tribunal and the Tribunal Vide order dated 10.04.2015 directed the respondents to consider transferring the "th 6 OA No.42/2017 applicant In terms of OM dated 10.05.1990 and 31.05.2014 within six months, The Tribunal also observed In MA 2854/2015 in OA 1214/2015 vide order dated 03.09.2015 that "Zt would be open to the applicant to. prefer representation to the competent authority making his suggestions regarding the places of choice of posting", 'Consequent to the orders of the Tribunal, the-
applicant was posted as Under Secretary, Branch Secretarlat, MEA, Chennai for a period of one year extendable by one more year, due to non-availability of prevalling vacancy in his natlve town/district. The Initial period of one year expired on 13.11.2016..
2.8. -- The applicant submits that after the expiry of one year perlod In Chennai, he 'has applied for: the post of Passport Officer, RPO, Hyderabad, vide application dated, 22.11.2016 In response to vacancy circular dated 01.11.2016. The 'applicant has also sent a representation to the respondents: to transfer htm to the post of Passport Officer, RPO, Hyderabad on 'the basis of the observations of CAT, Principal Bench in MA 2854/2015, the provisions under PWD Act, 1995 and OMs dated 10.05.1990, 13.03.2002 & 31.05.2014 with specific reference to Clause H which vindjcates the cause and choice of _posting and preference to be given to persons with disabilities, 2.9, The applicant also filed OA 1802/2016 before this Tribunal seeking direction to be issued to the respondent for considering his 7 OANo.42/2017 representation dated 22.11.2016, This Trlbunal by order dated 01.42.2016 directed the respondent to consider his representation dated .16.11.2016 In accordance with law within four weeks, Consequent to the THbunal's order, the respondent, without application of mind and In gross Violation of provisions of law and without considering the binding observations of the CAT, Principal Bench and without considering the bindings OMs referred above, has passed an order dated 29,12,2016 rejecting the request of the applicant, 2.10, The applicant denles the stand taken by the respondent in-the impugned order that he dods not have enough training and experience to head: the Important office of RPO, Hyderabad. He submits that he has cofnpleted his, period of desk attachment at RPO, Hyderabad. successfully and his performance and. contluct has been satisfactory: In View of the letter of MEA dated 22.07, 2014, He also denies the allegation of the respondent that the applicant is very Irregular.in the office being baseless,
3. The respondent has filed' a reply statement denying all the Allegations made Jn the OA, The respondent submits that' the ~ applicant is an IFS officer of 2009 Batch and is a "person with disabllity" under sub- -category "visually handicapped". He joined the Ministry of External Affairs in 2012. and is presently posted as Under Secretary at MEA Branch Secretariat, Chennai.
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3.1. The applicant submitted a representation dated 16.11.2016 to post him as Passport Officer, RPO, Hyderabad. The same was examined and considered In the Ministry on 17.11.2016 itself. However without checking the status of his representation In the Ministry, the applicant filed OA No.1802/2016 before this Tribunal and this Tribunal vide order dated 01.12.2016 directed the respondent to consider the sald representation In accordance, with law and transfer policy of the Ministry and pass a reasoned and speaking order within four weeks. tn compliance with the directions of this Tribunal, the applicant's representation which had already been examined, was again considered In the Ministry and It was noted that the applicant was not tralned and experienced enough to head the Important office. It was, therefore, decided to continue: 'the applicant at MEA'. Branch Secretarlat, Chennai which is close to applicant's hometown of Nellore. Accordingly, a detailed reasoned and speaking order dated 29.12.2016 was igsued and handed over to applicant on 30.12.2016.
3.2 Aggrieved by the said order, instead of approaching the administrative Ministry, the applicant directly filed the. present OA before this Tribunal based on frivolous and.imaginary grounds to quash
-- the order dated 29.12.2016.
3.3. The contention of the respondent is that the speaking order dated 29.11.2016 issued in accordance with the Tribunal's directive, Is 9 OA No.42/2017 non«discriminatory and does not violate any provision of the PWD Act, 1995. The respondent submits that the Ministry, taking due cognizance of the applicant's specific requirements, extended special treatment to him since his appointment to the IFS. The Ministry has considered every representation of the applicant on sympathetic and compassionate grounds and relaxed many. Among the four visually:
challenged officers In the Ministry, only the applicant, on. his request, was exempted from studying a Compuisory Foreign Language for belng confirmed In the service and for subsequent increments to be released. Further among thie four visually challenged officers, only he has been exempted the essentlal desk attachment component of IFS _ Probationers' tralning at MEA Headquarters In New Delht which gives an 'Opportunity. to gain handston. experience of: forelgn policy:
formulation. and lts implementation to new entrants, The Ministry as special consideration, accedead to the applicant's request and attached him to RPO and MEA Branch Secretariat, Hyderabad so that he could
- .be closer to his hometown. Further he was confirmed in the IFS, in relaxation of essential criteria and benchmark for successful training of an IPS officer, on request from the applicant.
_ 3.4. The respondent submits that the applicant's averment that CAT, Principal Bench had issued specific order to DOPT to allot IAS to him, to which he was entitled, is fallacious, untruthful and malafide because 10 OA No.42/2017 the fact Is that the CAT, Principal Bench allowed OA 1893/2009 had directed UPSC to carry out an exercise to work out the backlog vacancles in different services and the vacancies of the year 2008 to
- consider allocation of services to applicants. as per their choices within six months. The Tribunal ordered that the allocation of service to the applicant would be from the date of allocation of services to the candidates of CSE-2008 on notional basis with the provisions that the applicants would not be entitled to back wages. The above provisions contained in the directions of the Tribunal were also relterated by the DOPT to the applicant reallocating IFS, based on the prescribed parameters to the applicant.
' 3.5. The respondent also denies the applicant's clalm that he was transferred from Hyderabad immediately after his reporting some alleged irregularities to the Ministry: Ministry had the allegations | leveled by the applicant investigated by sending a senior officer to Hyderabad and no merit was found in the same. Administrative . irregularities were noticed by the Ministry during: applicant's tenure at MEA Branch Secretariat, Hyderabad. While he has reported alleged irregularities in October 2014, he was transferred only In March 2015 _ which was purely on functiohal grounds and in accordance with the transfer and deployment policies of the Ministry.
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il OA,No.42/20173.6. The applicant was posted back to MEA headquarters In New Delhi on 19.03.2015 with 4 view to introduce him to the basics of the functioning of the Minlstry, Aggrleved, the applicant filed OA before CAT, Principal Bench for Setting aside the transfer order, The CAT, Principal Bench decided not to stay the sald order and vide order dated. 10.04.2015 directed the respondent to examine the' applicant's clatm regarding posting him as per Instructions of DOPT regarding pasting persons with disabllities at or near thelr native place, after expiry of 6 Months from the Issuance of order and pass a speaking order within four weeks thereafter, The .applicant again sought relief from CAT, Principal Bench for modification of the order on the ground, six months plus four weeks time is excessive wherein the Tribunal Issued the following order, -
"The applicant has filed the present application for modification of the order dated 10.04.2015 only on the ground that six-months plus 'four .weeks' time given to the respondents to take their decision Is excessive, Nevertheless, during the course of arguments learned _ Counsel for applicant submitted that he would be satisfied if liberty is granted to the applicant to move this Tribunal for appropriate relief if no decision ts taken in the matter within the given time, as prescribed by the Tribunal in order dated 10.04.2015. it goes without saying that if the directions issued by the Tribunal are not implemented by the respondents, the applicant: will have liberty to avail the remedy available to him in accordance with rules and Procedure, With these observations, MA fs disposed' of. It would also be open to the applicarit to prefer representation to the competent authority making
-his suggestions regarding the places of his choice posting. No costs."
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J a ee 12 OA'No 42/2017 The applicant has mischlevously preferred to selectively quote the order of the CAT, Principal Bench and has presented the order out of context as solely beIng "Xt would also be open to the applicant to-
prefer representation to the competent authority making his suggestions regarding the places of his choice posting".
3.7. | The Ministry, therefore, on compasslonate grounds posted the ' applicant to Chennal, the closest MEA office to his hometown of Nellore. The applicant's submission "due to non-avallabllity of -
prevalent vacancy in his native town/district" Is misleading and factually incorrect as the Ministry does not have a RPO or Branch Secretariat in applicant's native, L.e., Nellore and thus the question of non-existent vacancy does not arise. -
3.8. ~ The respondent further submits that even in OA 1802/2016, the Tribunal has passed the following order:
"Be that as it may, in view of the limited relief sought, | am o the view that without golhg into the merits of the case, the following direction could be issued. The respondent shalt consider the applicant's representation dated 16.11.2016 In accordance with law.and the transfer policy of the Ministry and pass a reasoned and speaking order within a period of four weeks from the date of receipt of a copy of this order."
' However, the applicant has invented the language, "The Hon'ble CAT. was pleased to. direct the respondent to consider the applicant's
- representation in accordance with law and pass reasoned and speaking 'order within four-weeks. In compliance with the order of the Tribunal 13 OA No.42/2017 In OA 1802/2016, the respondent passed a reasoned, detalled and speaking order on 29,12,2016 which was based on matertal facts and records, carefully examined and considered In the Ministry. The 29,12,2016 order provides a pen picture of the applicant's profile and his past service. The respondent submits that similar order was Issued by the Ministry In November 2015 when the applicant was transferred to Chennal. None of the Issues ralsed In that order, such as relaxing mandatory provisions for him, Irregularity In office, lack of adequate training and experience in functioning of Minlstry to head an office by himself, no display of attitude and skdlls essentlal to hold charge of office Independently were challenged by the applicant even It Is' only now thé applicant is contesting the Issues brought out.in the order dated 29.12.2016 which were very much also highlighted in order dated 16,11,.2015, 3.9. The respondent further submit that on 10.02.2017, another . \ offi leer, namely DfVishnu Vardhan Reddy has already been appointed as Passport Officer, RPO, Hyderabad and he has also. assumed charge on 13.02.2017.
4, | The applicant has fi led a rejoinder reiterating. the averments | made In the OA. He admits that he. was exempted from learning CFL. He asserts that he completed Desk Attachment component of IFS 'Probationer's training at RPO Hyderabad and also at Branch Secretariat fae A Us iret oe i wilt ee a direction be given to the respondent to consider the case of the 14 OA No.42/2017 at Hyderabad successfully and satisfactorily and ralsing this issue after his completion of Desk attachment Is Improper and unwarranted, The applicant submits. that he hails from a remotest village in Kadappa District or Andhra Pradesh, He asserts that he was aware of the fact that there is ne office of MEA In his home town. He was willing to -- | continue at Chennal as long as there was no vacancy at Hyderabad, Only when he came to know about the vacancy position at Hyderabad _ RPO, he applied for the same, As Passport Officer at RPO, Hyderabad, © he would be better placed. to discharge his official functions comfortably with familiar' language, rather than In Chennal with relatively unfamiliar Tamil Language. The applicant submits that only after the applicant approached 'this Tribunal,the respondent had appointed DrVishnu Vardhan Reddy as Passport Office on 10.02.2017 at RPO, Hyderabad 'only with an ulterior motive of denying the said post to 'the applicant. The applicant further prays that necessary --
applicant favourably as and when the vacancy arises to the post of | O Regional Passport Officer, Hyderabad or such posts that the applicant prefers on. vacancy arising, in accordance with law and as per existing OMs of the Ministry of Personnel, Public Grievances and Pension, DOPT dated 10.05. 1990, 13.03.2002 and 31.03, 2014, 15 OA No.42/2017
5. The applicant has also filed written submission reiterating the averments made In the OA,
6. . The respondent has filed a reply to the refolnder denying the allegations made In the rejoinder, Further It fs stated that the applicant has sought a rellef In the rejoinder which fs entirely different 'from the rellef prayed In the OA, without seeking appropriate directions from the Tribunal as. per Section 34 of the CAT Rules of Practice 1993, Further, at present there Is no vacancy for the post of Regional. Passport Officer, Hyderabad, An officer has been recently - appointed on the sald post for thei minimum period of two years. No assurances can be given 'about any. such prospective vacancy which- does 'not exist as on date and would arise in future, as the term & ~ condition as wel as other assoclated circumstances cannot be foreseen
- for any such vacancy/post,
7. Heard the applicant in Person and the learned counsel for the respondents and perused the material available on record.
16 OA No.42/20178. This Is the third stage of litigation. The relief sought for In this OA ls for quashiIng and 'setting aside the impugned order dated 29.12.2016 and to direct the respondents to appoint the applicant for the post of Passport Officer at RPO, Hyderabad, 9, In the second stage litigation, le., In OA 1802/2016 the relief prayed for by the applicant Is as follows:
"To direct the respondent fo consider the representation of the applicant dated 16.11.2016, to transfer him to the post of Passport Officer, RPO, Hyderabad on the basis .of the observation of the Hon'ble Principal Bench; Central Administrative Tribunal, New Delhl . dated-03,09.2015 and the Office Memorandums of the Minlstry of Personnel, Public Grievances and Pension, Department of Personnel & Training dated 10.05.1990, 13.03.2002 and 31.03.2014."
10. 'The operative portion of the order passed by the Tribunal In OA ' 1802/2016-dated 01.12.2016 extracted as follows:
"The respondents shall consider the applicant's representation dated 16:11:2016 in accordance with law and the transfer policy of the Ministry and pass a reasoned and speaking order within a period of four weeks from the date of receipt of a copy of this order."
11. The impugned order dated 29.12.2016 was passed pursuant to the above order of the Tribunal, Fhe said OA was filed by the applicant when he was posted as Under Secretary, Branch Secretariat, MEA, a * Chennai.
17 OA No.42/201712. In the first stage IItigation before Principal Bench of this Tribunal In OA 1214/2015, the applicant was seeking a directlon to the respondents to consider transferring and posting him elther at Hyderabad In any other office or at near the place of his residence i.e., Nellore. The applicant - was: then challenging the order dated 19.03.2015 transferring him from Branch Secretariat of MEA,. Hyderabad to New Delhi. The operative part of the order In OA No,1214/2015 dated 10.04.2015 Is extracted hereunder, "Nevertheless during the course of the arguments, Shri S.K.Rungta, learned sentor counsel, falrly submitted that by now In compllance of the transfer order, the applicant has Joined at the Headquarters, at New Delhi and he would be satisfled If the respondents consider transferring him in terms of the aforementioned Instructions within reasonable perlod, say six months. The submission made by the learned senior counsel Is quite fair and reasonable, In the circumstances, the OA is disposed of with direction to the respondents to examine the claim of the applicant regarding posting __ him tn view of aforementioned instrictlons after expiry of six months from today and pass speaking order within four weeks thereafter. No order as to costs,"
13. The order In MA 2854/2015 filed by applicant In the said OA | . 1214/2015 dated 03.09.2015 is also extracted hereunder:
"The applicant has filed the present application for modification of the order dated 10,04,2015 only on the ground that six months plus four weeks' time given to the respondents to take their decision is excessive. Nevertheless, during the course of arguments learned counsel for applicant submitted that he would be satisfied if liberty is granted to the applicant to move this Tribunal for appropriate relief if no decision is taken in the matter 'within the given time, as prescribed by the Tribunal in order dated cee i pre ret fob diy ante tayl ee! ARRAS L EAE el soe ey 18 OA No.42/2017 10,04,2015, tt goes without saying that If the directions tssued by the Tribunal are not Implemented by the respondents the applicant will have liberty to avail the remedy avallable to him in accordance with rules and procedure, With these observations, MA Is disposed of, It would also be open to the applicant to prefer representation to the competent authority making his suggestlon regarding the places of his choice posting, No costs"
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14. A perusal of the records in the present OA show that the main source of the applicant's grievance In thls OA arose when cadre clearance. was not given to the applicant to apply for the post of Passport Officer, RPO, Hyderabad, vide application dated 22.11.2016 with reference to the vacancy circular No.VIV/5S75/21/2046 dated 01.11.2016, He considered this an opportunity to go to Hyderabad, which -pertairied to deputation and not transfer, It fs evident from "records that the sald vacancies, including that of Hyderabad Vacancy in the RPO, Hyderabad, which Is the subject matter of the controversy In this OA, - were open to all officers under the Central - Government | including officers of All India Services. Among the two vacancies one pertained to the Passport Office, Hyderabad. Clearly, the vacancy at Hyderabad was for selection Of officers on deputation for a period of three years as per Para 2 of the vacancy circular. The Passport Office is a subordinate/attached office to the Ministry of External Affairs. In the applicant's case, the MEA with a dual role as both lending and borrowing organisation, did not give cadre clearance as lending wee O 19 OA No.42/2017 organisation for allowing the applicant to apply for the sald deputation. As per settled law, permitting an officer to go on deputation Is the prerogative of lending organisation and an understanding between the lending and borrowing organisation and completely subject to their joint satisfaction. Golng on.deputation ts not aright. But the applicant did not challenge the sald order not granting him cadre clearance:
either in OA 1802/2016 or In the present OA and in this manner he has tried to present the grievance/rellef as a matter of dental of transfer and not that of denial of deputation.
15. Further, the applicant has made out the above case of transfer citing the observation of: the Principal bench of this Tribunal In MA 2854/2015 In OA 1214/2015 dated 03.09.2015 relying wpon the "operative order stating that it would be open to the applicant to prefer _ a representation to the competent authority making his suggestions.
regarding. places of choice of posting. As earller stated the cause of action in the sald OA before the Principal Bench was for retention at . | Hyderabad and for setting aside the order of transfer to New Delhi (HORS), MEA, on the basis of provisions of the PWD Act, 1995 r/w OM dated 10.05.1990; 13.03.2002 & 31.03.2014 with specific reference to clause H. In the said OA, he had sought for transfer to his native or "hearer to his native place. Therefore the applicant has wrongly IInked the orders of PB, Chennai Bench of CAT and DOPT matters(pertaining 20 OA No.42/2017 to transfer) to matter of deputation to RPO, Hyderabad, where selections are done by advertising vacancies and the posting to RPO, Hyderabad fs purely based on the outcome of the selection process as applicable to deputation. All eligible candidates Including the applicant seeking deputation had to meet all the criterla laid down under Rules. Only If he was found fit for cadre clearance by the lending/borrowing organisation could he have applied for the post against the advertisement. If cadre clearance was granted, he would have had to . compete with other candidates who would have applied against the advertised vacancy of one post In RPO, Hyderabad. In view of the above, invoking of order of Tribunal before Principal Bench In MA 2854/2015 in OA 1214/2015 dated 03.09.2015 would not apply In a case of deputation,
- 16, . Further, in the case of transfer It could be mandatory for the ~ respondents to consider the request for transfer by a person who Is physically challerigéd In the light of the PWD Act, 1995 r/w the OMs of 1990, 2002 & 2014 in which case' the Principal Bench's order cotild have been consitiered relevant for consideration by respondents. However,' the same cannot apply in deputation matters, when applicant's application for the post of Passport Officer, RPO, Hyderabad 'did not go through because cadre clearance was not granted.
2h OA No,42/2017 ° 17, Further, even if cadre clearance had been granted and If he had competed with other candidates In an open, transparent selection process, there was no scope for Invoking the provisions of PWD Act, 1995 'or the OMs of 1990, 2002 & 2014 In the rules regarding . deputation (as evident from the advertisement) to fill up single vacancy. Merit was the only criteria for coming on deputation. Hence no right accrued to the applicant to be considered for being posted: In RPO, Hyderabad merely on the basis of the provisions of the PWD Act or the DOPT OMs of 1990, 2002. & 2014, or the CAT, Princlpal Bench and Chennal-Bench orders tn a selection process for deputation, é
18. In view of the above, It was legally necessary for the applicant to have challenged the non grant of cadte clearance at the refevant point in time before the THbunal then or now in this OA. The non-grant of cadre clearance is not challenged In this OA and he has made outa _ case of transfer relying upon the orders of Princtpal Bench, Chennal Bench and: the 'DOPT QM of 1990, 2002 & 2014 which are not 'applicable In the case of deputation as per rules regarding deputation involving 'an open selection process against a single vacancy. No reservation or any special consideration for persons with disability has been highlighted by applicant in the deputation rules or in the PWD . Act or in the DOPT OMs.
22 OA No.42/201719. Further, the applicant In his rejoinder has acknowledged at Para 8 that on 10.02.2017 an officer, Le., DrVishnu Vardhan Reddy, duly selected agalnst the single vacancy notification, got appointed as Passport Officer, RPO, Hyderabad and he assumed charge on ; 43.02.2017. It is the applicant's contention that this was done In violation of the orders of the Principal Bench. However, since It stands established In the considered view of the Tribunal that the applicant's movement to Hyderabad was not a matter of "cholce of posting" but a matter Involving deputation, and eveh as non-grant of cadre clearance was never challenged at the relevant point In time, there was no violation of the order of the Tribunal when Dr. Vishnu Vardhan Reddy was:selected and appotnted as Passport Officer In an open/transparent .
selection where merit alone was the criteria. If the applicant was . - aggtleved then the order of selection and appointment of DrVishnu Vardhan Reddy should also have been challenged and Dr.V.Vishnu Vardhari Reddy should have been tmpleaded asa party In this OA. On 'the contrary, he Has admitted that with the selection of Dr.Reddy, the | vacancy stands filled up and he cannot stake his,.claim in any manner to the said post. Hence, the relief clause in the OA Is itself not "maintainable having become infructuous.
20. The applicant, possibly understanding the legal lacunae, instead, prays in the rejoinder that necessary direction be given to the ao 2 .
Ch "a 23 OA No.42/2017 respondents to consider the case of the applicant favourably as and when vacancy arises to the post of Passport Officer, RPO, Hyderabad or such posts that the applicant might prefer on vacancy arising: in accordance with the provistons of the OM of 1990, 2002 & 2014 and as. per order of the PB In OA 1214/2015 & MA No 2854/2015 in OA 1214/2015, \
21. The respondents have rightly contended that there Is no. vacancy for the post of Passport Officer, RPO, Hyderabad and that an officer has already been appointed for a period of two years. Hence no assurance can be given about any such Prospective vacancy which does not exist as on daté and would arise In future as the terms and conditions as well as other associated circumstances cannot be foreseen for any such vacancy/post.
22, In this connection, Le., regarding considering the applicant against future vacancies, the respondents are bound to be governed by the extant rules of deputation at the time when need for future notification of vacancy arises, Also, unless 'the rules Specifically require that the OMs of 1990, 2002. & 2014 will aiso operate' when | selection against deputation js concerned, no direction as per the Prayer in the rejoinder can be given to the respondents by this Tribunal "In anticipation of vacancies or. change in Rules. No such: role is. to. be _played by this Tribunal.
2d OA No.42/201723, It is also rightly contended by the respondents In the reply to the rejolnder that applicant has sought a rellef different from the rellef prayed for In the OA and has not followed procedures lald down under Section 34 of the CAT Rules of Practice, 1993 which reads as follows:-
' 34, Incorporation of amendments, filing of additional reply, efe.-- When the Tribunal allows a prayer for a amendment of the pleadings or for addition of parties, the same shall bo carried out in red ink indicating the date of the order and duly signed by the party/legal practitioner, 'who has obtained the order, within the time granted for the purpose by the order or if no time is thereby limited then, within 14 days from the date of the-order, If however, the Bench or the Tribunal has directed furnishing of a fresh copy incorporating the amendments/addition of parties, the same shall be filed in triplicate and after serving a copy of the amended pleading on the other party within the time granted by the court or if no time is granted with 14 days from the date of the order, In default, the Registry shall place the matter before the Bench for orders.
24. In view of the above, it Is evident that even though no MA was filed under Section 34 of the CAT Procedure Rules, 1993, the prayer 'sought for In the OA has got modified/diluted by way of rejoinder filed on affidavit, The prayer has the effect of rendering the OA Infructuous because applicant himself has admitted the situation that no vacancy exists as of now. The question of considering applicant's prayer in the OA for being considered against the vacancy. as Passport Officer in RPO, Hyderabad has no meaning even if MA had been filed, which was _ not liable to be allowed, as no vacancy existed, 25 OA No.42/2017 25, Accordingly, no interference is called for with the impugned order and the OA is dismissed as being without merits. No costs, ect Mee nm CTT era ene NT tr Nae Nr a f .
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