Central Administrative Tribunal - Kolkata
Achintya Bardhan vs P A O on 21 April, 2022
f' ; ,
0.A/350/01505/2021° io 1 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA on, 0A/350/01505/2021 Date of Order: 21.04.2022. .*"
'Coram: Hon'ble Ms. Bidisha Banerjee, J udicial Member . Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member Achintya Bardhan, son of Late Pran Kumar Bardhan of 4/90, Mahajati Nagar, North Station Road, near Ashutosh Sweets, P.O. Agarpara, District- North 24-Parganas, P.S. Khardaha, Pin-700109.
Works as an Accountant posting duty at temporary attachment deputation RPAO (CRF) MHA, Kolkata, CGO ? Complex, MSO Building, DF Building, 3"
Floor, Salt Lake City, Kolkata-700064.
peaeeeeecenecsnases Applicant
-Versus-
1. Union of India, service through the Secretary, Department _ of Expenditure, Ministry of Finance having office at North Block, New Delhi-
110001.
2. The Union of India service through the Secretary, Ministry of Home Affairs, having office at North Block, New Delh-110001.
hee oO ee ehh oy ee ee Sed CLASSSO/O1505/2024"
3. The Joint Secretary (Police-t Division}, Ministry of Home Affairs, North Block, New Delhi-L16001.
4, The Controller General of | Accounts, Ministry of Department of Expenditure, Mahalekha Niyantrak Bhawan, GPO Complex, & -
Block, INA, New Delhi-110001.
Finance,
5. The Principal Chief Controller of Accounts {Home} having office at Open Gallery, Room No. 7 Major Dhyan Chand National Stadiim, india Gate, New Delhi-L 10002,
6. The Joint Controller General of Accounts {HR} having office at Mahalekha Niyantrak Bhawan, GPO Complex, £-- Block, INA, New Belhi-
110001.
7. The Controller of Accounts (Home) having office at Office of the Principal Chief Controller of Accounts, Ministry of Home Affairs, Room No. 6, 2™ Floor, Open Gallery, Major Dhyan Chand National Stadium, india Gate, New Delhi-110002.
&. The Senior Accounts © Officer {(Admn) Principal Account Office (CRPF} Ministry of Home Affairs, Qpen Gallery, MDC National Stadium, Hall No. 6, New Delhi-110002.
g, The Section Officer {Police-ll Division}, Ministry of Home Affairs, Nerth Black, New Delhi-1 10002.
10. The Director General, Central Industrial Security Force Office of the Directorate General, CS, Ministry of Home Affairs, Block No. 23. CGO Complex Lodhi Road, New Delhi-
110003, f gull ne we we 3 O.A/BSO/O1S09/ 202
14. The Asstt. Inspector General (Estt.} Directorate General CISF, Ministry of Home Affairs, 15, CGO Complex, Lodhi Road, New Dethi-10003. .
12. The Deputy controller of Accaunts, Regional Pay and Accounts Office (CISF), 3'? MSO Building, DF Block, 2™ Floor, Salt Lake City, Kolkata-700064.
13. The Senior Accounts Officer, Regional Pay and Accounts Office (CISF), 3" MSO Building, DF Block, 2°° Floor, Salt Lake City, Kolkata-700064.
| 44. The Senior Accounts Officer Ne (Admn.) Principal Accounts Office (admn.} Ministry of Home Affairs, Room No, 6, Open Gallery, Major Dhyan Chand National Stadium , india Gate, New Dethi- 110002.
nw Respandents For The Applicantls) My. A. K. Banerjee, counsel For The Respondent(s): Ms. T. Mukherjee, Counsel ORDERORAL Per: Hor'ble Dr. (Ms.) Nandita Chatteriee, Administrative Member Aperieved at denial of permanent absorption in CCAS cadre under MHA, the applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:
"i}) Leave may be gran ted to file and move this anniication by the applicant urgently.
hot od yy ee a CLAPSSOfO1805/202E° ji} To direct the respondents and each of them te forbear from giving effect to and/or further effect to and/or rescined, recall, set aside and cancel the letter hearing menio no, by the office of CGA, of A-
q7ezo0/1/2019/258 dated 23.02.2020 which iS.
fonnexure A-14 Si iv) issued by Ure Sr. Accounts Officer (Admin) (Parafiv) of Annexure 'N') and the office memorandum pearing memo no.200/22/8)/ L/PrAOfAdmn. WMHS = 2020-21/11 135-83 dated.
29,12.2020 fAnnexure A19) which is issued by Sr. Accounts Officer (Admn.) will be given effect and allow the applicant for permanent abserption fram deputotionist accountant and memo dated 16.07.2021 bejng No. jo-6apepy/Aacct/PrsO/Admn/MaAs O2/2021/1463-73 and also meme dated 1607-2021 issued by RPAQ, CISF, MHA, Kalkata Office.
di) Ta direct the respondents is the autharilies of CGA oad each of them te extend the period af deputation of the applicant as Accountant in CCAS Cadre for the 6th and Fih year forthwith accordence with law and also as per guideline (Annexure: '¥').
iv) Ta direct the respondents and each of them to forward the names of the applicants as the Hlegible deputationist to the appropriate end competent authorities for permanent absorptian as Accountant in CCAS Cadre farthwith in accardance with law.
wl Reasoned order/speaking order dated 03.09.2021 should be set aside and direction te allow the applicant for final absorption from the deputatianist Accountant, On considering the Court case before the Hon'ble High Court and before the td Court of Chil judge Barrackpur North 24-Parganas for which applicant will have to aggear at the time of hearing.
vi} If applicant js allawed to join any office then that should be within the jurisdiction of the said Ld. Court and the Hon'ble High Caurt.
vii) The stay of the memo of reliving until disposal of this application.
vili} Cost and incidentats.
ix} Ta pass each further orders, direction or directions or his Lordship may deem fit and proper."
Heard both Learned Counsel. Examined pleadings and documents on record, Written notes of argument have been filed by Learned Counsel for the applicant, 5 , OQ.A/BSO/N1GOS/202L
3. The brief facts of the matter a5 gleaned from the pleadings is that, the applicant is a regular combatised Armed Forces personnel of CISF of the under the MHA. He had joined CISF on 15.07.1994, and, on the basis of memorandum dated 23.04.2012 {annexed at Annexure-A/2 to the OA), the applicant was recommended for the post of Accou ntant on deputation to CCA {Home} in the CCAS Cadre, The applicant was working as an Accountant on deputation basis since 30.12.2015 tl his releasefrepatriation on oe . a 7 parties Lotta < 4 aN 16.07. 2021lannexed at Annexure-A/28 to the GA) with the direction to report Sa back to his parent cadre i.e,, CISF.
ae That, on 14.08.2019 (annexed at Annexure-A/S to the OA}, a memorandum was issued regarding absorption of deputationist Accountants, in response to which the applicant applied for permanent absorption, and, that CISE and MHA (Police-If Division) both issued their "No Objection" for permanent absorption in favour of the applicant.
That, although applicant's matter was placed before the departmental Screening Committee for permanent absorption in CCA (Home) under CCAS 'Cadre, the said Committee rejected his prayer for permanent absorption on the ground that the applicant had represented while he was out of tenure of extension of his deputation periad, namely, m that he was. not sanctioned extension of deputation tenure after his 5° year of deputation. Learned
-founsel would claim that it was aise intimated that the applicant's performance was not recorded as 'Outstanding' so as to merit his claim for absorption, and, also, that, as the applicant does not occupy 4 Group 'C' G GLASSSO/DESOSSA0EL an analogous post to that of an Accountant, Being aggrieved at non-extension of his tenure from the 5" year to the 6" year, the applicant had earlier approached this Tribunal in OA 1097/2021. Such original application was disposed of vide orders dated 02.08.2024, vide which this Tribunal had directed the respondents to consider his representation claiming absorption, and, to issue @ reasoned and speaking order within a specified period. The respondents were also directed to look into the allegations of the applicant that, while "No Objection Certificate" had been issued ta other 14 persons who were similarly circumstanced as him, his parent department had discriminated against him. In response, the respondent authorities issued a speaking order dated 03.09.2021 {annexed at Annexure-A/30 to the OA}, assailing which, the applicant has approached this Tribunal.
The applicant would seek to fortify his claim with his following averments i {i} The applicant had applied on 14.08.2019 for permanent absorption from the post of Accountant while he was on deputation in the 5" vear of the extension tenure.
(if) NOC was issued in favour of the applicant from both the office of CISF and MHA (Police-Il} Department respectively.
(iii) OF the 15 candidates appointed for permanent absorption, most belonged to the rank of Constable (GD), Head Constable (GD); and Head Constable {Motor Man) and not to any ministerial post. The applicant's fos S ~ | = 4, 7 CLA/SSO/O1S05/2021 prayer was, however, rejected on grounds that he did not belong to a Ministerial post, thereby discriminating him from other similarly tircumstanced deputationists.
{iv) That, the Hon'ble Division Bench of the Hon'ble High Court, Calcutta in Sri Kame? Kanti Chatterjee & Ors, vs. Board of Trustees of the Part of Calcutta & ors. reported in 1991 Cal WN 305/1991 O Supreme (Cal) 378 had held, that when NOC has been issued for absorption of a deputationist, further extension fo deputation tenure does not matter.
(v) That, one Shri Dhananjay Kumar has been absorbed on the basis of the orders of this Tribunal in its Patna Bench, and, that the applicant aspires for similar orders.
(vi) The applicant cannot be made to suffer for the delay of setting up of ' the Departmental Screening Committee and subsequent placement before Screening Committee, The respondents, per contra, at the outset, would challenge the maintainability of this original application on the ground that, as the applicant who is a regular combatised Armed Forces personnel of CISF, has been relieved and repatriated by the respondent organization on 16.07.2021 with a direction to report back to the parent cadre Le. CISE, and, as per Section-2(a} of the Central Administrative Tribunal Act, 1985, the provisions of the Act are not applicable to the members of the Armed Forced of the Union. Hence, the present OA is barred by limitation with respect to jurisdiction and deserves to be dismissed outright on grounds of maintainability.
=F y = Ey i re * Leas re No % 4?
ay G.A/350/01505/ 2022 {i} That, as per DoPT instruction OM No. AB 14017/71/89-Estt. (RR) dated 03.10.1989, as the applicant had not been deputed from a ministerial post, he was not entitled to absarption to the post of Accountant which is only applicable to deputationists from analagous posts.
{ii} That, the order dated 19.10.2015 placing the applicant on deputation had clearly stated that the applicant has no right to claim permanent absorption in DAO, MHA (F/C}.
(ii) That, the respondents would rely on Kunal Nanda vs, Union of india (2000) 5 SCC 3262 ta argue that there is no vested rightin such a person to continue for lang on deputation or to get absorbed in the Department to which he had gone on deputation.
Further, reliance is placed on Punjab S&B vs. Matkiat Singh (2005) 9 $CC 22, wherein the Hon'ble Apex Court had held that mere inclusion of the name of a candidate In the select list does not confer on such candidate any vested right to get an order of appointment, implying that no right was conferred by the statute to the applicant to claim absorption asa matter of right.
Respondent would also rely on Mahesh Kumar i. Parmar vs. SIG of Police (2002) 9 SCC 485, wherein the State Governments were directed to consider the case of the petitioners for absorption on transfer in accordance with the Rules.
hae O.A/380/01805 2021"
Respondents would also refer to the ratio In State of Karnatake vs. Umadevi (3) (2006) 4 SCC 1 to highlight that Court shall desist from issuing orders preventing regular selection and recruitment at the instance of such persons and from issuing directions for continuance af those who have nat secured regular appointments as per procedure established, {iv} That, Shri Ohananjay Kumar, as referred to by the applicant, was in the fist of eligible candidates recommended by the Screening Committee for absorption as Accountant in CCAS Cadre. His absorption was kept pending My we xz ay, i o # fies ee as because this matter. was subjudiced in the Central Administrative Tribunal, Patna Bench. Hence, Shri Dhananjay Kumar was absorbed as per rules and there is no similarity between the applicant and Shri Dhananjay * Kumar in matters of absorption.
In their speaking order dated 03.09.2021 (annexed at Annexure-A/30 to the OA}, the respondent authorities have also referred to amended provision relating to Tenure of deputation/ foreign service as per para 8.1 & 8.2 of DOPT OM dated 18.05.2018 is reproduced below i} The period of deputation/Foreign service shall be as per the Recruttment Rules of ex-cadre post or 5 years in case no tenure regulations exist for the ex-cadre post.
ii} in case where the period of deputation/ Foreign Service prescribed in the racruitment rules of the ex-cadre post is 05 years or less than UO years, the Administrative Ministry/Sorrawing Organisation may grant extension up to the og"
year and 7" year after obtaining approval of the Competent Authority.
As per DoPT OM dated 17.02.2016, it has been clearly stated that tenure of deputation may be extended up to periad not exceeding 7° vear where absalutely necessary in public interest subject to fulfilment of all 10 | OAsSSq/O41505/2022 other requirement including NOC of lending authority & approval af the competent authority.
(v) A Departmental Screening Committee had been constituted for assessing suitability of eligible deputationists for permanent absorption in the CCAS cadre as Accountants.
Meanwhile, the applicant had repeatedly preferred representations for consideration of his abserption and also prayed for extension of his deputation period for the 6 year. On 31.10.2018, however, he was informed by the office of the PCGA, MHA that, although NOC for permanent absorption of the two officials, including the applicant, have been received vide order dated 18.10.2019, no communication regarding extension of thelr deputation period for the 6" year, which is mandatory _ for consideration of their cases for permanent absorption by the Screening Committee, was received from the fending authorities. Hence, in view of the absence of any communication in regard to extension far a period of 6" year, the applicant was not granted absorption in the cadre of CCAS.
| (vi) The Departmental Screening Committee in its meeting held on 05.01,2021 evaluated details of all G1 deputationists working at that time against the post of Accountant in this office, and, found that 41 deputationists including the applicant were ineligible for absorption either due to higher pay, age, non-completion of 2 years of service as on 31.07.2019, unwillingness, unavailability of NOC or unavailability of approval of deputation period as in the case of applicant.
Ll O.A/350/01505/2021° (vil} Names of remaining 20 deputationists were considered by the screening Committee keeping in view the criteria of exceptional the ceiling whereby only 15 deputationists could be absorbed in the post of Accountant in DAO, MHA (i.e. 10% of 147 vacancies- 14.7 = 15).
6, Ld. Counsel for the applicant would vociferously aver during hearing that, since the delay in communication with regard to extension of the 5"
year was attributable to the authorities, the applicant should nat be made to suffer at the hands of administration. Ld. Counsel would further submit that refusal of the extension of deputation period for 6" year term was inconsequential in view of the fact that applicant was already found suitable for permanent absorption in the CCAS cadre. in support, Ld. Counsel would place the decision of Non'ble High Court at Kolkata in F.VLA.T No 3064 of 1989 Kamal Kanti Chatterjee and Ors vs. Board of Trustees of the Port of Calcutta and Ors., where repatriation order was quashed, the Hon'ble Court having held as under ;
{extracted with supplied emphasis for clarity) "9. On this principle, we must quash the repatriation ordersfrequests (Pp. 35, 89 of the paper baok}) of the second and the third respondents, reading them together. The two reasons for repatriation are bad on the face. When absorption permanently is in issue, and when release orders for absorption have come from the deputation order be? Even that extension Order af deputation would have expired on 1.3.89 had it come at all; so, of what use would it be in August or September '89 when repatriation was Ordered? It is a clear case of being quided by an irrelevant consideratian.
hal ae WW 2 an ce LS eee con SS 1? O.A/350/01505/ 2021"
10. The secand reason js irrational and perverse. There is no material for it. The appellants' deputation service was not only Blemishless, but they earned cash awards (Pp. 23.24). No report, complaint or proposed action against them is seen anywhere. Secret reports against the appellants are mentioned in the affidavit of the third respondent {p. 107, at para 12), Our administrative law has no friendship with vague allegations of secret reports.
di, if no reasans had been given for repatriation, the same order night have been fess assailable in @ Court. But what ef that? More often than not, truth will out and justice vindicate itself even in this very imperfect world of the law.
i2. The port authorities thus had a privilege to absorh or not to absorb the appellants, who, in their turn, could either become the in today's legal context, is sufficiently firm te support a constitutional action. The matter of conferment of the privilege being vitinted by an Irrelevancy and an irrationality. the port authorities must reconsider tated 29.8.89 and 11.9.89 respectively at pages 35 and 89 of the paper book are bad in law, the same are quashed and thus the question of absorption fs still pen. The Chairman, of the first-
of the onpellants as vigilance weotches, unless, for grounds to be recorded in writing, there are good reasons to the contrary; the pracess of absorption or appointment, or refusal of absorption, must be completed within eight weeks hereof. The interim Orders af the appeal Court dated 5.10.89 and 27.2.90 shall continue for a period of twelve weeks from date. Liberty ta mention after the Chairman's decision, in case of necessity.
13. The appeal and the writ petition succeed to the above extent. No Order as to costs."
We would, however, note that in Kamal Kanti Chatterjee (supra}, the petitioner therein had obtained his release orders for the purpose of absorption, whereas, in the instant O.A., the applicant stands as repatriated to his present department.
7, Per contra, Ld. Counsel for the respondents, while vehemently opposing the contention, would submit that, once deputation period comes to an end, and, when the applicant was net on deputation in the roll of 13 -- oayasovotsos/2000 Accounts office, he had no right to be considered for absorption in the said cadre, In support Ld. Counsel would place the decision as rendered by the Hon' ble High Court at Delhi in WP(C) 6838/2021 CT Jagdish Prasad Jat & Ors. Vs. Union of India & Ors. where, referring to Kunal Nanda vs. Union of India (2000) 5 SCC 362 and para 18 of the guidelines, it was held as under:
"47, Paragraph 19 of the said policy further provides that jf any subordinate officer is aggrieved by rejection of permanent absorption, fie has right to make a representation to the Director General {DG} of the concerned Farce and there is a procedure prescribed for pursuing the said recourse,
12. in view thereof, there is no merit in the petition."
id. Counsel would hence argue that once his repatriation orders, upon completion of 5™ year of deputation, were issued on 16.07.2021, the "No Objection" issued by Ministry of Home Affairs on 31.10.2019 was of no further
-effect. Any "No Objection" per se, is valid during the period of deputation, and, once, such deputation tenure has come to an end, the "No Objection"
would be deemed to have been withdrawn subsequent to repatriation, 8, We have heard both Ld. Counsel and have examined documents on records. Our inferences are as follaws:-
(a) That, although an objection has been raised with regard to maintainability on the ground that the applicant is an Armed Force personnel of CISF, this Tribunal had proceeded to adjudicate in OA 9541/2021 (Amit Pal vs. UO! & Ors.}, wherein the applicant was a similarly circurnstanced CISF personnel, and no objection on jurisdiction had ever been raised by respondents therein.
(b) The "No objection certificate" of the lending authorities would only apply to a deputationist.
hat ra 14 O.Ass50/01505/2081° (c}) The lending authorities, namely, the CISF & MHA in the instant case, had approved the deputation period of the applicant upon fulfillment of conditions/requirements as per extant Recruitment Rules for the post of Accountant, CGA's OM dated 14.8.2019 & that of DoPT. As per extant RRs/Rules, an individual working on sanctioned deputation tenure could only be termed as a deputationist and considered for absorption.
{d} The validity of "No Objection' for considering absorption of applicant is hence only upto the period of his deputation sanctioned by the Campetent Authority.
{e} Moreover, the Principal Accounts Officer (Admn.), MHA, vide their letter dated 16.07.2021, has clearly issued directions for immediate repatriation/relieving of applicant which clearly indicates that the "No Objection" issued earlier during his deputation for considering absorption of applicant is rendered as infructuous from the date when the applicant's deputation had come to a close.
(f) There is nothing on record to show that the applicant's performance was rated as "outstanding" in the relevant 2 years of assessment, (z} The applicant did not belong to the ministerial cadre.
in Transmission Corporation of AP Ltd. Vs. P. Surya Bhagvan (2003) 6 SCC 353, the Hon'ble Apex Court held that the relevant date for determining the eligibility criteria of absorption is relatable to the point of time of the ex-
employee's leaving the service of the employer.
in the Instant matter, the applicant was directed to be relleved and repatriated to the parent department vide orders dated 16.07.2021. Hence, a a his eligibility to absorption is clearly negated as because the applicant stoad \ y << . _as relieved w.ef, 16.07.2021 (A/N) and the "no objection" to his absorption Sky dated 31.10.2019 had consequently lost its currency.
In Ratilal B Soni & Ors. Vs. State of Gujrat & ors AIR 1990 SC 1132, the Hon'ble Court ruled that employees on deputation do not get any right to be absorbed on deputed post ~ he can be reverted any time.
it is a settled principle of law that absorption cannot be claimed as a matter of right. For absorption to be carried out, there has to be consent of the parent department as well as the department in which the absorption is sought. Such views were aptly highlighted in Kunal Nanda Vs. Union of India (2000) 5 SCC 362 wherein the Supreme Court has succinctly explained the legal position concerning absorption as under:
%.. tis well settled that uniess the claim of the deputationist for permanent absarption in the department where he works on deputation is Based itpon any statutory Rule, Regulation or Ordar. having the force of law, adeputationist cannot assert and succeed in any such claim for obsarptian. The baste principle underlying deputation itself is that the person cencerned can always and ot any , time be repatricted to his. parent department to serve in Ais substantive pasitian therein at the instance of either of the departments and there is no vested right in such @ person fo continue for long on deputation or get absorbed in the department to which he hud gone on deputation."
10. Hence, as the applicant no longer enjoys his status as a "deputationist", he has failed to establish his claim to permanent absorption.
Accordingly, the O.A. is found devoid of merit and is dismissed accordingly. No Costs.
{Nandita Chatterjee} (Bidisha Banerjec) Member {A4) Member {3} sl