Central Administrative Tribunal - Delhi
Subhash Chander Lather vs Union Of India on 13 February, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.1308/2008 New Delhi, this the 13th day of February, 2009 HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Subhash Chandra Lather, S/o Late Shri Narain Singh, Under Secretary, Department of A.H., Dairying & Fisheries, Ministry of Agriculture, Krishi Bhawan, New Delhi Residential Address:- Subhash Chander Lather, 4/2307, Bihari Colony, Road No.5, Shahdara, Delhi 110 032 Applicant (By Advocate: Shri G.D. Bhandari) Versus Union of India, through 1. The Secretary, Department of A.H., Dairying & Fisheries, Ministry of Agriculture, Krishi Bhawan, New Delhi 2. The Secretary, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pension, North Block New Delhi 110 001 3. Shri Inam Amil, F.A. & C.A.O., Delhi Milk Scheme, Patel Nagar, New Delhi 4. The General Manager, Delhi Milk Scheme, Patel Nagar, New Delhi Respondents (By Advocate: Shri A.K. Bhardwaj) O R D E R By Dr. Veena Chhotray, Member (A):
The applicant, working as Under Secretary in the Respondents Department of Animal Husbandry, Dairying & Fisheries under the Ministry of Agriculture, is aggrieved at non-materializing of his deputation to the post of FA & CAO in the Delhi Milk Scheme (DMS). The OA seeks quashing of the following impugned orders:-
(a) Letter dated 25.4.2008 regarding the offer of appointment to the second selectee (Respondent No.3);
(b) Office Memorandum dated 4.6.2008 canceling the offer of appointment to the applicant; and
(c) Office Order dated 6.6.2008 regarding the joining of the second selectee.
Further directions to the Respondents for relieving the applicant to join on this post and for considering his deemed joining on the post w.e.f. 1.12.2007 with all consequential benefits of pay and seniority have also been prayed.
2. Briefly stated, the facts of the case, as submitted by the applicant, are that while working as Under Secretary in the Respondent-Department, the applicant was ordered to look after the work of FA & CAO in DMS by way of dual charge. This was from 27.10.2006 till 30.11.2006. Subsequently, however, applications were invited for filling up this post on transfer on deputation basis. The applicant applied for the same and his name was also on the top of the select list. Offer of appointment letter dated 30.8.2007 was given (Annexure A/11) and the applicant submitted his willingness to join the post. However, it is contended by the applicant that despite his representations both verbally and written, the applicant was not relieved from the Department to join his new post. On the other hand, the Respondents allowed the second selected candidate to join as FA&CAO and cancelled the earlier offer of appointment given to the applicant without assigning any reason.
3. The learned counsel, Shri G.S. Bhandari appearing on behalf of the applicant would raise the plea of arbitrariness and violation of principles of natural justice. The learned counsel would contend that in the instant case an anomalous situation was created since the second person in the select list was given the appointment ignoring the claims of the first one. It would also be contended that before the cancellation, there was no show cause notice given to the applicant nor any reason assigned, which, considering the NOC given by the Respondents earlier, was evidently arbitrary. An averment of the impugned order of appointment of the Respondent No.3 being ab initio void for want of approval of the competent authority would also be made.
4. The OA is opposed by the Respondents. The learned counsel, Shri A.K. Bhardwaj, appearing on their behalf would make the submission that a deputationist, in any case, has no legal right and can be called back to the parent department at any time. Thus, the claim of the applicant in the present case is not sustainable at all. The learned counsel would also aver that the applicant himself was not willing to join the post and had raised various pretexts at different points of time. Further, there were administrative difficulties because of which the services of the applicant could not be spared. It would also be averred that the post in question under the DMS could not have been kept vacant and, therefore, it was filled by the second person in the select list with due approval of the Minister.
5. We have heard the learned counsels for both sides and perused the material on record. The private respondent has neither filed any reply nor is represented by any counsel despite due notice.
6. It is settled law that a Government servant does not have a legally indefeasible right for deputation. However, as was observed by the Honble Apex Court in Man Singh vs. State of Haryana & Ors., 2008 (7) SCALE 750, the administrative action is to be just on the test of fair play and reasonableness.
A closer look at the facts of the case seems to be in order. The offer of appointment in this case was made on 30.8.2007. However, the applicant did have some reservations about the terms and conditions therein. Vide letter dated 27.9.2007 he objected to the condition in Clause-2 of the offer regarding the appointing authority reserving the right for repatriation to his regular post without notice and without assigning any reason. A copy of this letter has been appended with the OA as Annexure A/16. It even mentions that unless this clause is deleted or modified it may not be possible for him to accept the offer. Vide letter dated 31.8.2007, he had conveyed his willingness to accept the offer of deputation. This was, however, subject to modification of the aforesaid clause (Annexure A/12). Again on 11.10.2007, a representation was made by the applicant that owing to his personal circumstances beyond control he was not in a position to take up the new assignment immediately. Therefore, a request for grant of extension of time till first week of December, 2007 was made (Annexure A/3 enclosed with the counter). The request of the applicant for grant of extension of time for joining the post of FA&CAO in DMS had been considered and vide OM dated 18.10.2007 allowed him to join the post on 1.12.2007 (Annexure A/13). The sequence of events till this point is important, as it reveals repeated reservations on the part of the applicant himself in accepting the offer of deputation. It also shows that even though the offer was made in August 2007, on account of his own reasons, he was not in a position to join the post for the following four months.
6.1 Though a view had been taken that the applicant would be allowed to join by 1.12.2007, however, there were subsequent developments both on the part of the applicant as well as the official respondents, necessitating a change. The applicant on 3.1.2008 submitted a representation to the Secretary of the Department praying for being allowed to continue in his present post in the Department till a few points became clear. He mentioned in it regarding the proposed process of corporatizing of the DMS and there being no regular G.M. at that time (Annexure A/14). Again vide another representation dated 2.5.2008, the applicant reiterated the difficulty regarding his working with a caretaker General Manager and mentioned that it would not be possible for him to report as the FA&CAO directly to the caretaker General Manager. The applicant also requested to maintain status quo in the post by allowing him to hold additional charge till a regular General Manager was posted (Annexure A/15). These averments on the part of the applicant are, however, rebutted by the respondents. In reply to para 4.18, the counter affidavit avers that the applicant was well aware from the beginning that there was no regular General Manager in DMS and also about the corporatization of the DMS. However, he raised this pretext at that point only to avoid joining the post on one excuse or the other and instead wanting to continue in dual charge.
The above factual details make it appear that the applicant himself was prevaricating and delaying the joining in the deputation assignment on various grounds.
6.3 Further, the respondents have pleaded administrative contingencies standing in the way. Along with the counter the extract of the relevant notings made in January, 2008 has been annexed, which mentions that the Administrative Division had requested the internal Financial Division to relieve Shri S.C. Lather for joining DMS as FA & CAO, but at that point of time it was not administratively possible to relieve him from the post. These extracted notings mention that Shri J.P. Purohit, A.O. had since retired from service on 30.6.2007 and his substitute Shri Muthukrishnan was not well versed with the budget work. This was posing difficulties at the critical juncture in the last quarter of the financial year when the work related to budget etc. was in full swing and outcome budget document needed to be prepared. The note also mentions that : it is also understood that Shri Lather has expressed his unwillingness to take up assignment of the post of FA&CAO on deputation basis. Therefore, the question of relieving him does not arise.
7. To conclude, a Government servant has no legally indefeasible right for deputation and in this case if the initial offer of deputation given to the applicant has not fructified, it is in no small way attributable prevarication on the part of the applicant himself. We also do not find anything inherently wrong in the plea of the Respondents of certain administrative exigencies requiring the presence of the applicant in the department and the compulsion to fill up the post under DMS by an alternate candidate. In the given circumstances, the contention of violation of the principles of natural justice is not found to be tenable. Accordingly, finding no merit, the OA is dismissed. There shall be no order as to costs.
(Veena Chhotray) (Shanker Raju) Member (A) Member (J) /pkr