Central Administrative Tribunal - Delhi
Deepak Kumar vs M/O Home Affairs on 2 August, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No-3553/2014
With
OA No.3598/2014
Order Reserved on: 10.02.2016
Order Pronounced on: 02.08.2016
Hon'ble Mr. Sudhir Kumar, Member (A)
Hon'ble Mr. Raj Vir Sharma, Member (J)
OA No.3553/2014
1. Deepak Kumar, SI (Min)
Age about 46 years
S/o Late Shri S.R. Bedi,
R/o E-5B, Kiran Garden,
Uttam Nagar,
New Delhi-110059.
2. Shyopal Ram, ASI (Min)
Age about 46 years
S/o Shri Ghinsa Ram,
R/o Vill. Kerpura, PO Khandela,
Distt. Sikar, Rajasthan.
3. R.S. Rawat, Inspr. (Min)
Age about 42 years
S/o Shri J.S. Rawat,
R/o Vill. Jhakorora, Post-Banlekh,
Distt. Bageshwar,
Uttrakhand.
4. Satish Chander, Inspr. (Min),
Age about 47 years
S/o Shri Tota Ram,
R/o A-55/A, East Vinod Nagar,
Delhi-110092.
5. Vinod Kundaliya, Inspr. (Min)
Age about 99 years
S/o Shri B.P. Kundaliya,
R/o C-19, Sector-12,
Noida, UP
6. Sunil Kumar Mehta, Inspr. (Min)
Age about 95 years
S/o Late Shri D.V. Mehta,
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OA No-3553/2014
With
OA No.3598/2014
R/o Flat No. 288, Sector-13,
Pocket-B, Dwarka,
New Delhi.
7. Anil Kumar Sharma, SI (Min)
Age about 41 years
S/o Shri Madan Pal Sharma,
R/o B-49-A, Qutab Vihar, Phase-I,
Near Primary School, Goyla Dairy,
New Delhi.
8. K.N. Lohani, SI (Min)
Age about 49 years
S/o Shri C.D. Lohani,
R/o Vill. Bijwasan,
Sector-26, Dwarka,
New Delhi.
9. Rattan Singh, SI (Min)
Age about 39 years
S/o Shri Jai Narain,
R/o Vill. Bharangi,
PO Nahar,
Distt. Rewari, Haryana.
10. Sharad Kumar Garg, ASI (Min)
Age about 40 years
S/o Shri B.C. Garg,
R/o A-188, Rajender Nagar,
Bareilly, UP
11. Arvind Kumar, SI (Min)
Age about 46 years
S/o Late Shri Khushi Ram Kahol,
R/o 92-III Floor, Khirki Extension,
New Delhi. -Applicants
(By Advocate: Shri M.K. Bhardwaj)
Versus
Union of India & Ors. through:
1. The Secretary,
Ministry of Home Affairs,
North Block, New Delhi.
2. Chief Controller of Accounts
Ministry of Home Affairs,
Room No. 127-D, North Block,
3
OA No-3553/2014
With
OA No.3598/2014
New Delhi-110001.
3. The Director (Account),
Pay & Accounts Division,
Directorate General,
Border Security Force, Pushpa Bhawan,
New Delhi.
4. The Director General,
Border Security Force,
Block No. 10, CGO Complex,
Lodhi Road, New Delhi-110003. -Respondents
(By Advocate: Shri Rajender Nischal)
OA No.3598/2014
1. Ashok Kumar, age 46 years,
S/o Late Shri S.K.S. Rana, (Accountant)
R/o B-161, Near Bharat Vihar, Kakrola,
Near Som Bazar Chowk,
New Delhi-110078.
2. Rewati Prasad, Age 46 years
S/o Shri Mukandi Lal (Accountant)
R/o Vill. Brija Nagla
P.O. - Tappal, Distt.- Aligarh (U.P.)
3. Kamlesh Kumar, Age 38 years
S/o Late M. Lal (Accountant)
R/o C4H/149, Janakpuri,
New Delhi-110058. -Applicants
(By Advocate: Shri M.K. Bhardwaj)
Versus
Union of India & Ors. through:
1. The Secretary,
Ministry of Home Affairs,
North Block, New Delhi.
2. Chief Controller of Accounts
Ministry of Home Affairs,
Room No. 127-D, North Block,
New Delhi-110001.
3. The Director (Account),
4
OA No-3553/2014
With
OA No.3598/2014
Pay & Accounts Division,
Directorate General,
Border Security Force, Pushpa Bhawan,
New Delhi.
4. The Director General,
Border Security Force,
Block No. 10, CGO Complex,
Lodhi Road, New Delhi-110003. -Respondents
(By Advocate: Shri Rajender Nischal)
ORDER
Per Sudhir Kumar, Member (A):
These two OAs, with similar facts, came to be clubbed together for the purpose of hearing, were heard together and reserved for orders together, and are, therefore, being disposed of through a common order. For the purpose of discussion, we would take the facts of the case in OA No.3553/2014 first filed by 11 applicants on 01.10.2014, and only point out the distinguishing features in the second OA No.3598/2014 filed later by three applicants on 08.10.2014.
OA No.3553/2014
2. The 11 applicants of this OA are Sub-Inspectors and Inspectors borne on the cadre of Border Security Force (BSF, in short), under the control of Respondent No.R-4. They had been deputed to work within their parent Organization, under the immediate control of Respondents No.R-2 & R-3 in the Pay & Accounts Division (PAD, in short) of their own Organization, BSF itself. The PADs of various such Government Organizations are Units within the parent Organizations where they function, though they perform functions relating to the Pay & Accounts 5 OA No-3553/2014 With OA No.3598/2014 of the Force concerned, for maintenance of the accounts of which, the Respondent No.R-2 Chief Controller of Accounts (CCA, in short), under deputation to the Ministry of Home Affairs (MHA, in short), under Respondent No.R-1, is in the line of hierarchy of reporting and reports to his parent Organization under the Controller General of Accounts (CGA, in short), who is under the control of the Department of Expenditure, Ministry of Finance. Therefore, even while actually working within the buildings of their own parent organization-BSF, the applicants came to be counted as having been deputed to work in the Central Civil Accounts Service (CCAS, in short) Cadre, under Respondents No.R-2 & R-3 who, in turn, are under the control of the CGA, and through that channel report to the Department of Expenditure, Ministry of Finance, and not to the hierarchy within their own parent Organization BSF itself, or Respondent No.1-MHA, under which the BSF functions, except for day to day administrative matters regarding leave etc.
3. The applicants are aggrieved that even though they were taken on deputation to work in the cadre of CCAS in the staff of the PAD, under the CGA, Department of Expenditure, Ministry of Finance, through Respondents No. R-2 & R-3 when it came to their being considered for being absorbed in the CCAS cadre, to which they were on deputation, even while sitting in the premises of their own parent organization BSF, the respondents No.R-2 & R-3 have not followed the same methodology as had been followed by them earlier for absorbing similarly placed deputationists in the relevant CCAS Cadre under the control of CGA, under the Ministry of Finance.
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OA No-3553/2014 With OA No.3598/2014
4. As has been elicited from the pleadings and documents filed in this case, a practice had been followed by the Department of Expenditure, Ministry of Finance (which is not a party respondent before us) in this regard that in order to maintain the PAD of any organization, where officers under its control are posted as CCA or Director (Accounts) of that Organization's PAD, they first take officials from amongst the Ministerial Staff available within that organization who are willing to serve on deputation against CCAS posts in the PAD, under the control of Ministry of Finance, for three years. The applicants of this OA had also responded to and had given their willingness to the Circular dated 13.05.2011 issued by Respondent No.R-2, and circulated among the Ministerial Staff of BSF, seeking willingness of any of them to serve on deputation basis in the CCAS service cadre which falls under Respondents No.R-2&R-3. The applicants gave their willingness, and Respondent No.R-4 issued 'No Objection Certificate' (NOC, in short), whereafter the suitability of the applicants to serve on deputation in CCAS Cadre in the PAD under the control of Department of Expenditure, Ministry of Finance, as Senior Accountants and Accountants with Grade Pay of Rs.4200/- and 2800/- respectively, was examined by Respondents No. R-2&R-3.
5. The applicants have submitted that even though they were serving as Inspectors etc., in their parent Organization BSF, and were getting higher Grade Pay, still they agreed for their appointment in CCAS Cadre in the PAD of BSF on deputation, as Senior Accountants with Grade Pay of Rs.4200/- and Accountants with Grade Pay of Rs.2800/- for a period of three years. They were declared selected for such deputation, subject 7 OA No-3553/2014 With OA No.3598/2014 to the terms and conditions mentioned in respect of such deputation in DoP&T OM dated 17.06.2010, and an order sanctioning such deputation with PAD of BSF for three years was issued on 29.08.2011, through Annexure A-3. It had further been provided in the order at Annexure A-3 that while being on deputation to such CCAS Cadre Posts in PAD of BSF (under the control of Department of Expenditure, Ministry of Finance), they would be further governed by the general terms of such deputations as contained in DoP&T OM dated 05.01.1994, and amendments made in that OM from time to time, and that these officials may elect to draw their pay either in the scale of pay of their deputation post in CCAS in PAD of BSF, or their pay in the parent cadre in BSF + deputation duty allowance + personal pay, if any. Thereafter, the applicants No.A-1 &A- 10 were appointed as Accountants with Grade Pay of Rs.2800/- in Group-C, and the applicants No. A-2 to A-9 and A-11 & A-12 were appointed as Senior Accountants in Group B post with Grade Pay of Rs.4200/-. They were relieved of their duties in BSF as combantants on different dates, and joined such posts in PAD of BSF as per their selection.
6. While the Office Order dated 29.08.2011 (Annexure A-3) had been issued by the General Administration Section of the PAD of the Directorate General, BSF, which was the borrowing Office, through another order dated 06.09.2011 (Annexure A-4) issued by Personnel Directorate-Staff Selection of the same Directorate General of BSF, the lending Office, it was mentioned that the applicants were being so deputed, but may be reverted to their parent office (combatant duties) 8 OA No-3553/2014 With OA No.3598/2014 even before the expiry of the three years' period, if the situation so warrants. The other conditions of the applicability of DoP&T OM dated 17.06.2010 to the terms and conditions of such deputation, and permission to them to elect to draw pay in either of the two scales of pay, as already mentioned above, however remained changed. The applicants have termed this second order to be a Corrigendum order, though it was not a Corrigendum to the first order passed by the borrowing authority, but was actually in the nature of a Movement Order issued by the lending body, their parent Cadre BSF's Personnel Directorate-Staff Selection. Only with such tripartite agreement their deputation would have been possible. The applicants have, however, alleged that not only were their posts changed, but their pay scales were also changed, because of the Respondents' letter Annexure A-5 Corrigendum dated 28.10.2011, though, prime-facie, it appears to be in consonance with the submissions of the applicants themselves in their OA. Applicants gave their undertaking to work as per the designations of CCAS Cadre allocated through order at Annexure A-5 dated 28.10.2011, and their pay fixations were done accordingly through Orders in the nature of Annexure A-6 colly, which are the Pay Fixation Order in respect of two applicants, applicant No.A-1 & applicant No.A-2.
7. The grievance of the applicants is that in the past 94 personnel of BSF, who were similarly temporarily attached with PAD, had been absorbed and encadred in the CCAS in the ranks of Senior Accountant, Accountant and LDC, without following any particular Rule for such 9 OA No-3553/2014 With OA No.3598/2014 absorption, out of which around 45% were from Ministerial Cadre, and 55% were from general duties, and all of them were combatised BSF personnel.
8. The applicants have submitted that as per Rules only Ministerial Staff could have been considered for encadrement in the CCAS Cadre, subject to meeting of qualification of graduation, but still BSF personnel from combatised general duties had also been encadred in the past without any justification.
9. The applicants have alleged that in their case the respondents adopted discriminatory approach, as even much before the completion of three years' period, and even though there were no complaint in regard to their working, the respondents started repatriating all the applicants on individual basis. At that stage, some of the applicants had filed an OA No.1104/2012 before this Principal Bench of this Tribunal itself, seeking directions to declare the actions of the respondents regarding pre-mature repatriation of those applicants to their parent Cadres in BSF as illegal, arbitrary and unconstitutional. However, during pendency of that OA, the respondents initially started the process of considering absorption of the applicants as well as similarly placed persons in CCAS Cadres.
10. Through Annexure A-8, five such persons whom the applicants claim to have been similarly placed were inducted in CCAS cadre in the Grade Pay of Rs.2800/- and in the Grade Pay of Rs.1900/- respectively, as Accountants and Lower Division Clerks respectively. It was 10 OA No-3553/2014 With OA No.3598/2014 mentioned in the order at Annexure A-8 dated 31.07.2013 that this was done under the CCAS Recruitment Rules (Group-C) 2000, as amended from time to time, and that their seniority as Accountant/LDC shall be determined as per the DoP&T instructions in this regard, by granting them the benefits of past service in BSF at the time of their absorption in the CCAS Cadres.
11. After coming to know about that order, the applicants also submitted their request once again but the respondents did not decide their representation on account of pendency of OA No.1104/2012. Therefore, in its interim directions dated 19.11.2013 (Annexure A-10), a Coordinate Bench directed that the representations of the applicants would be examined and disposed of by a reasoned order expeditiously, preferably within a period of two weeks. After this, through Annexure A- 11 dated 18.12.2013, the respondents passed an order in which Paragraphs 9,10, 11,12 & 13 stated as follows:-
"9. Whereas, it also needs mention that as per Paras 2 (d) and (f) of the minutes of the Meeting held between representatives of FHQ BSF and O/o CCA (Home) on 20th January 2011, it was agreed that 'a window for deputation of 31 posts out of 321 will always be kept open for deputation for BSF Combatised Min. Staff. These 31 posts will not be filled by absorption at any stage so that this window of 31 posts will always remain available for BSF Min. Staff'. Therefore, to initiate any steps towards absorption of the present applicants will be in violation of the agreed decision between BSF and O/o CCA (Home).
10. Whereas, as far as the case of five BSF officials as mentioned by the applicants in their representations dated 15/10/2013 and dated 19/11/2013 is concerned, it is 11 OA No-3553/2014 With OA No.3598/2014 intimated that they were absorbed into CCAS Cadre as Accountant/LDC on 31/07/2013 as per decision taken by the Hon'ble Minister in the meeting held on 24th September, 2009 that staff who were working in PAD BSF (MHA) on that date would be part of Departmental of Accounting Organization of MHA. These five BSF officials were working in the Pay and Accounts Division, BSF on that date i.e. 24/09/2009 whereas none of the present applicants were working in PAD BSF on that date.
11. Whereas, neither the deputation of the applicants is as per DOP&T Rule nor were they working in PAD BSF (MHA) on the cut-off date i.e. 24th September, 2009. Hence the case of absorption is not similar to those of 12 CISF Officials and five BSF officials respectively.
12. Therefore, in compliance of Hon'ble Court order dated 19/11/2013, the undersigned have carefully re-examined their issues raised in representations dated 15/10/2013 and dated 19/11/2013 respectively vis-a-vis the grounds on which they have claimed for absorption into CCAS Cadre and considering the overall facts and circumstances of the case as mentioned above, the claim for absorption into CCAS Cadre is ultra vires as the applicants have no right to claim absorption into CCAS Cadre and the window of 31 posts under which the applicants had come on deputation cannot be open for absorption.
13. Therefore, above representation of the applicants seeking absorption in CCAS cadre is hereby rejected, being devoid of merit".
12. Thereafter, the earlier OA No. 1104/2012 came to be finally heard, and orders in respect of 12 applicants therein were passed on 04.09.2012, with a direction to the respondents to consider the cases of those applicants for absorption in accordance with law, by stating in Paragraphs 6,7 &8 of that order as follows:-
"6. We need not express any opinion on the contention of learned counsel for the applicants that the controversy is covered by the judgment of the Apex Court in Ashok Kumar Ratilal Patel (supra) at this stage as their representations for absorption are yet to be considered and disposed of by the respondents. However, from the perusal of the aforesaid judgment, it is apparent that it was a case of 'appointment on 12 OA No-3553/2014 With OA No.3598/2014 deputation' and not 'transfer on deputation' and, therefore, this being a factual aspect of the matter, it would be necessary that a finding to this effect may be recorded by the competent authority while deciding the applicants claim for absorption.
7. In view of the submissions made and also in view of the fact that the question regarding applicants absorption is being reconsidered by the respondents, no purpose would be served by further keeping this matter pending before this Tribunal and it would be appropriate to dispose of the same by providing that the respondents shall take decision on their representations in accordance with law expeditiously. We further provide that the last date for receipt of representation, i.e., 08.09.2014, as mentioned in the respondents letter dated 03.09.2014, be extended till 30.09.2014 and, therefore, if the representations of the applicants or any other similarly situated persons are received on or before 30.09.2014, the same shall be disposed of in accordance with law as observed above. It is needless to emphasize that we have not expressed any opinion on merit of the case and we leave it to the respondents to take decision regarding their absorption in accordance with law.
8. With the above order, the OA stands finally disposed of. No order as to costs."
13. Subsequent to this order having been passed by a Coordinate Bench of this Tribunal on 04.09.2014 (supra), 12 applicants therein, many of whom are common with the 11 applicants of OA No.3553/2014 & the 3 applicants of OA No. 3598/2014, again submitted their representation on 08.09.2014 for absorption to CCAS through request and willingness as at Annexure A-13 (in respect of applicant No.A-1 of the present OA). The other applicants out of the 11 applicants of the first OA No.3553/2014 have not made any averment as to whether they had given similar willingness or not. Yet, they have placed reliance upon the previous order dated 31.12.2009 (Annexure A-14) and dated October, 2012 at Annexure A-15.
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OA No-3553/2014 With OA No.3598/2014
14. The applicants have also brought on record the Department of Expenditure, Ministry of Finance, CGA, Gazette Notification dated 24.01.2012 (Annexure A-16) the CCAS (Accountant and Senior Accountant Group 'C' posts) Recruitment Rules, 2010 (CCASRRs 2010, in short), to show that as per these RRs also, a deputationist with an exceptionally good performance may also be considered for absorption, in public interest, on completion of two years of deputation, subject to prior concurrence of the parent cadre and the CGA, and subject to fulfilment of the necessary conditions as on 1st of January in the year of consideration, as given in Para-(2) (a) (i) to iv), (b) & (c), and (3) in the said Gazette Notification. However, the respondents had thereafter considered the request of the applicants in OA No. 1104/2012, filed by Applicant No.A-2 of the present OA and 11 Others, and passed the impugned order Annexure A-1 dated 25.09.2014, running into 07 pages, with which the applicants of this present OA are aggrieved.
15. It was submitted that the Notification of these CCASRRs 2010 on 24.01.2012 was preceded by the Office Memorandum dated 21.04.2011 (Annexure A-17) issued 08 months earlier. The applicants are aggrieved that soon after that the respondents issued an Internal Office Order of Accounts Cell, transferring the applicant No.1 from one PAO Unit to another PAO Unit, but that cannot give rise to any grievance, because it did not change the factum of his continuing to be on deputation with the PAO, while being borne on his parent Cadre of BSF.
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OA No-3553/2014 With OA No.3598/2014
16. The applicants have, however, challenged the impugned order dated 25.09.2014 passed in obedience of an order dated 04.09.2014 passed by this Tribunal in OA No.1104.2012 on numerous grounds. The first ground taken by them is that while passing this order on the basis of the final order in the OA No. 1104/2012, the respondents have not only violated the interim order passed in that OA on 19.11.2013, without showing as to how the interim order could have survived after the final order had been passed in that OA, but that the respondents have also ignored their own orders in respect of similarly placed persons passed earlier. They have also taken the ground that the respondents are actually having shortage of CCAS Accountants, and the requisite quota for direct recruitment to CCAS has not yet been filled up. They have further assailed the impugned order dated 25.09.2014 on the ground that the applicants' pay had got reduced. The applicants have further taken the ground that this anomaly had already been removed earlier itself, by the respondents themselves, while passing the Corrigendum Order dated 28.10.2011, taking all the deputationists to have been selected for deputation to CCAS posts only as Accountants with Grade Pay of Rs.2800/-, instead of some of them being Senior Accountant with the Grade Pay of Rs.4200/-.
17. They have further taken the ground that the action of the respondents in not absorbing them to CCAS Cadres is highly illegal, arbitrary and violative of the conditions of deputation, as when they had been taken on deputation for a period of three years, and their service records have been Outstanding, and as there had been no complaints 15 OA No-3553/2014 With OA No.3598/2014 against them, the respondents are not justified in repatriating them. They have further taken the ground that the respondents have failed to consider that the applicants are now settled in Delhi, and, therefore, the decision of their repatriation would be violative of conditions of their appointment, as opposed to the absorption of others identically placed persons. They have, therefore, alleged that the impugned order dated 25.09.2014 is illegal, arbitrary and malafide, and has been passed by the respondents by misusing their power and position, in order to harass them.
18. The applicants have also taken the ground that the respondents have violated their rights under Articles 14 & 16 of the Constitution, and that even the correct Rules have not been mentioned in the impugned order. They have further taken the ground that their deputations were against the window of posts kept open exclusively for BSF personnel, as an inter-departmental arrangement, as it is clear from the impugned order itself that persons were taken on deputation as Accountant/Sr. Accountant on deputation not only from BSF, but also from Sashastra Seema Bal (SSB, in short), Indo Tibetan Border Police (ITBP, in short) as well as other defence services. They have further taken the ground that when they were taken on deputation, they had been posted against the posts meant for CCAS Accountants and Senior Accountants, and all the Accountants/Sr. Accountants working in the PAD are part of the CCAS cadre. They have further taken the ground that absorption has been denied to them merely because they had approached the Court of Law, and that the respondents are wrong in taking the excuse that their 16 OA No-3553/2014 With OA No.3598/2014 deputation as Sr. Accountant ab-initio suffered from infirmity, which is of no consequence, as all the applicants were ultimately made Accountants only.
19. They had further taken the ground that they have rendered outstanding service from the date of their joining and not even a single warning Memo had been issued to them, and, therefore, they have a right to continue on such deputation, as the Hon'ble Apex Court has in Purshotam Lal Dhingra vs. Union of India AIR 1958 SC 36 held that a deputationist has a right to continue till the completion of his term of deputation. It was further submitted that in fact the respondents have more than 200 vacancies of Accountant & Senior Accountants in the CCAS Cadre, and when five other persons could be absorbed, the applicants could also have been absorbed. It was submitted that it was wrong on the part of the respondents to have stated in the impugned order that the absorption of the applicants would be in violation of the agreement between BSF and the Office of CCA (Home), and that no such decision has ever been taken, and the higher authorities have been misled in this regard. They have taken the further ground that the impugned order has wrongly stated that the initial appointment of the applicants was in violation of DoP&T OM dated 17.06.2010, as there is no bar in law for appointment on deputation in lower grade, as had been held by the Apex Court in Ashok Kumar RatiLal Patel vs. Union of India & Anr. 2012 (6) SCALE 448=(2012) 7 SCC 757, stating that appointment on deputation and absorption can be on lower post and 17 OA No-3553/2014 With OA No.3598/2014 lower grade also. On the basis of these averments and contentions and grounds, the applicants have prayed for the following reliefs:-
"a) To quash and set aside the impugned order dated 25.09.2014 (Annexure A-1)
b) To direct the respondents to absorb the applicants by following the same criteria as followed while absorbing similarly placed persons vide order dt. 31.7.2013 and other similarly placed persons.
c) To declare the action of the respondents in not absorbing the applicants as Accountant in Central Civil Accounts Service/PAD (BSF) as illegal and unjustified and issue appropriate directions for absorption as applicants as Accountant.
d) Pass any order/orders which deem fit and proper in the interest of justice.
e) Allow the OA with cost".
20. The respondents filed their counter reply on 31.10.2014, and took the preliminary objection that all applicants are regular combatised Armed Forces Personnel of BSF, and are subject to the Section-3 of the BSF Act, 1969, and being combatised Members of the BSF, the present OA itself is barred by jurisdictional limitations in view of the provisions contained in Section-2(a) of the Administrative Tribunals Act, 1985, and deserves to be dismissed out-right.
21. After that preliminary objection, it was explained that the applicants had been taken on deputation for working in PAD, BSF against a window of 31 posts exclusively kept open for deputation from time to time of combatised Ministerial Staff of BSF, and in support of this they had filed Annexure R-1, which are the Minutes of the Meeting held 18 OA No-3553/2014 With OA No.3598/2014 on 20.01.2011. It was further submitted that in compliance of the directions of this Tribunal in OA No.1104/2012, and in consultation with the parent department of the applicants, i.e., BSF, their request for absorption in the CCAS Cadre was duly considered. However, the same could not be acceded to due to administrative constraints as explained in Para 7,8 & 9 of the impugned order itself. It was further submitted that the parent organization of the applicants, i.e., BSF, itself has through Annexure R-2 dated 17.10.2014 intimated that since all the applicants were sent on deputation to work with the PAD only against the 31 posts exclusively earmarked for combatised BSF personnel only, NOC for the absorption of the applicants in CCAS Cadre cannot be granted, as then some of those 31 posts would get permanently occupied, and would not be available for BSF combatants deputationists. It was further submitted that through his letter dated 21.10.2014 (Annexure R-3), CGA has intimated that the process of absorption of all deputationists as Accountant in CCAS had been kept on hold, and all Subordinate Offices have been requested to stop sending absorption cases to their office forthwith, until further orders. It was submitted that an absorption involves the consent of the borrowing department, the parent department and the employee concerned, and in this case both the borrowing organization and the parent cadre are not in a position to accede to the request of the applicants for their absorption, due to the aforesaid administrative constraint of 31 posts being necessarily required to be kept for BSF combatant deputationists on rotation basis. It was, therefore, submitted that the applicants are required to report back to 19 OA No-3553/2014 With OA No.3598/2014 their parent cadre in BSF on completion of their deputation tenure. The same contentions had been repeated in reply by way of Para-wise remarks, in great detail.
22. The respondents had further relied upon the fact that an assurance has already been given to the applicants' parent organization-BSF through Annexure R-6 dated 13.05.2011, that the 31 combatised BSF personnel sent to PAD on deputation will be stationed/posted only against the existing vacancies in PAD, BSF, New Delhi, and that they will not be moved out/posted to other offices outside Delhi during the course of their deputation tenure. They had further explained the circumstances in which some of the present applicants before us had been initially inadvertently stated to be eligible for their coming on deputation as Senior Accountants, but since such deputation as Senior Accountants was not possible in accordance with the RRs of CCAS, a Corrigendum had to be issued on 29.08.2011, through which their willingness had also been asked to work only as Accountants with Grade Pay of Rs.2800/-, and the applicants were free to exercise their option, and they were not forced to do so.
23. It was further submitted that the encadrement into CCAS of BSF personnel had been earlier carried out as a follow up action on merger of PAD of BSF, New Delhi in the CCAS cadre, as has already been explained in Para-7 of the impugned order, as a onetime exercise, carried out in public interest, as a special dispensation, for strengthening the Departmental Accounting Organization within BSF, which had become a 20 OA No-3553/2014 With OA No.3598/2014 part of the organizational structure working under the CGA, Ministry of Finance, Govt. of India. It was submitted that this encadrement decision, for which the crucial date fixed was 24.09.2009, cannot now be cited as a precedent by the subsequent deputationists, who had joined after the crucial date for seeking absorption, like the present applicants. It was also submitted that any cases of absorption which had been considered so far were such in respect of which no relaxation from the norms was involved. It was submitted that the claim of the applicants for absorption is not a matter of right, as the provisions of deputation, and absorption of Accountants, cannot replace the regular method for Direct Recruitment Quota for appointment to the posts of Accountants in CCAS cadre, and, accordingly, the applicants were directed to report back to their parent cadre on completion of their deputation tenure, as their request for absorption could not be acceded to due to the administrative constraint, as discussed above in detail.
24. Similar averments were made in response to the grounds raised by the applicants. It was further submitted that the applicants had themselves expressed their unwillingness to proceed even on temporary duty with the Internal Audit Parties of BSF, mentioning that they have been selected for deputation only for the Office of PAD of BSF, New Delhi, and not for the Internal Audit Parties of BSF, as per the terms and conditions mentioned in the Advertisement issued by PAD, BSF, and they had given their willingness for deputation to PAD, BSF, New Delhi only.
It was submitted that it is wrong to state that on submission of their option to work against the 31 earmarked posts for deputationists from 21 OA No-3553/2014 With OA No.3598/2014 BSF combatants in PAD, BSF, New Delhi, the applicants had become part of CCAS cadre automatically. It was further submitted that it is wrong to state that all the persons who came on deputation for the posts earlier were absorbed as Accountants, without raising any objections, and it was submitted that 196 Accountants from various organizations are presently working in the Divisional Accounts Office, under the MHA, on deputation basis.
25. It was further submitted that absorption is a prerogative of the borrowing organization, and the same cannot be claimed as a matter of right. It was further submitted that it has already been provided in the DoP&T OM dated 17.06.2010 under which the applicants have been deputed, that the period of deputation shall be as per the RRs of the ex- cadre post, or three years in case no tenure regulations exist for the ex- cadre post. It was submitted that deputation is one of the prescribed methods for filling up the posts of Accountants in the CCAS, but it is only a temporary stop-gap arrangement, and only the vacancies remaining unfilled by direct recruitment through Staff Selection Commission (SSC, in short) may be filled up by deputation. It was further submitted that the applicants have been allowed to continue to be on deputation until completion of their deputation tenure, and their deputation is squarely covered under Para-11 of the Hon'ble Apex Court's judgment in Ashok Kumar Ratilal Patel (supra), which clarifies that a deputationist has no right to be absorbed in the post for which he is deputed, and that deputation cannot (automatically) result into recruitment, since the 22 OA No-3553/2014 With OA No.3598/2014 person so deputed continues to be a member of his parent service, for which he was recruited. It was, therefore, prayed that the present applicants are not entitled to any relief, since both the borrowing organization, and the parent cadre, are not in a position to accede to their request for absorption, due to the administrative constraints as explained above, and that they are not entitled to any Interim Relief also, and it was prayed that the Tribunal may vacate the interim directions allowing the applicants to continue on deputation and to permit the respondents to repatriate the applicants on completion of their deputation tenure in order to avoid administrative difficulties.
26. Instead of filing a rejoinder, the applicants filed an additional affidavit on 02.03.2015 through which it was submitted that there was still a shortage of manpower in PAD BSF, and the situation would be worse if they were sent back, and there would be further delay in disbursing salaries to Para Military Forces. It was submitted that the proposal to fill up nearly 400 vacancies of Accountants was mooted through Annexure-1 dated 18.02.2011 Circular No.441/2011, and the facts and documents belied the contentions raised by the respondents in the impugned order, as well as in the reply. It was further submitted that the applicants were appointed on deputation like other similarly placed persons, and, therefore, they were entitled to be similarly considered for absorption, without raising any irrelevant issues like a window being left open for 31 deputationists from BSF etc. It was further submitted that the nature of appointment of the applicants is further clear from the fact that two of the applicants have since been transferred to PAO, IB and 23 OA No-3553/2014 With OA No.3598/2014 PAO, ITBP as Accountants, like any other regularly appointed CCAS Accountants would be transferred, even though they were not on the regular strength of the department.
OA No.3598/2014
27. In this OA, filed by three applicants, exactly parallel contentions and grounds were taken in the main OA, and the impugned order was also the same, which had been passed on 25.09.2014, on the basis of the order of this Tribunal dated 04.09.2014 in OA No.1104/2012. Even the Annexures were similar, and, therefore, there is no necessity for our discussing the facts of this case differently. Even the relief sought for in this OA was the same, and only the Interim Relief was slightly different.
28. Respondents filed their counter reply to this OA on 14.11.2014, which also was on same lines as in the counter reply in the first OA, and, therefore, the same also need not be discussed. However, in this case a rejoinder had been filed by the applicants on 15.12.2014. Through this rejoinder, the applicants had rebutted the preliminary objection taken by the respondents that this Tribunal had no jurisdiction, as the applicants had been appointed as combatants in BSF, stating that the jurisdiction of this Tribunal is determined with reference to the relief, and not with reference to the status of the respondents against whom relief has been sought. It was further stated that the applicants have sought relief from the CCA, MHA, who is covered within the jurisdiction of this Tribunal. It was submitted that BSF has never denied NOC for their absorption, and it was submitted that in all other similar cases in the post the grant of 24 OA No-3553/2014 With OA No.3598/2014 NOC by BSF was not even insisted upon, and only in the instant case of the applicants such issues have been raised, to try to mislead the Tribunal. It was further submitted that there cannot be a distinction and differentiation in between the similarly placed persons already absorbed in the past by the respondents, when there are number of vacancies of Accountants, and further advertisement has also been issued to fill them up. It was further submitted that the plea of the respondents that the case of the applicants was decided for retention only till completion of their deputation tenure is false, as no such intimation has ever been communicated to them, and that their request for absorption in the CCAS cadre has not been examined properly, and in a correct perspective. It was submitted that the entire status in the P&AD had been concealed, where lots of vacancies are still lying vacant in the CCAS cadre, and they are still being filled up on deputation basis.
29. It was further submitted that the respondents are repatriating the applicants only with a mala fide intention. The contention of the respondents regarding the window of 31 posts being required to be kept open for BSF combatant personnel was rebutted by saying that this issue of window of 31 vacancies is not at all relevant to decide the issue raised by the applicants, who have sought to be absorbed on the basis of similarly placed deputed persons having been absorbed earlier. It was further submitted that it has been wrongly stated by the respondents that the absorption is not one of the methods of recruitment to the posts of Accountants, when the annexed RRs clearly show that the post of 25 OA No-3553/2014 With OA No.3598/2014 Accountants in CCAS can be filled up by respondents on deputation also. It was, therefore, prayed that the OA be allowed.
30. Along with the rejoinder, Annexure RJ-1 was filed, which is the Advertisement issued by the Office of the Principal Chief Controller of Accounts, Central Board of Excise & Customs (CEBC, in short), regarding filling up of vacancies in the cadre of Accountants on deputation basis in 14 Pay & Accounts Offices of CBEC, whose jurisdiction is spread over the ten States, as well as another Advertisement from the Office of Chief Controller of Accounts, Principal Accounts Office (Administration) of the MHA, Govt. of India-Respondent No.R-2 itself, regarding filling up of vacancies of Accountants in Delhi based PAOs. The applicants of this OA had thereafter filed another Additional Affidavit on 02.03.2015, exactly on the lines of the Additional Affidavit filed in the earlier OA, as discussed above.
31. In the course of his arguments, learned counsel for the applicants had also cited the judgment dated 25.08.2015 in OA No. 2700/2014 Tilak Raj vs. Union of India concerning the National Highways Authority of India where directions had been issued by the same Bench of this Tribunal for the Screening Committee meeting to be held for considering the absorption of the applicant therein. He had also cited the case of Rameshwar Prasad vs. Managing Director, U.P. Rajkiya Nirman Nigam Limited and Others (1999) 8 SCC 381, and in particular Paragraph-17 of that judgment, in which the law had been laid down by the Hon'ble Apex Court as follows:-
26
OA No-3553/2014 With OA No.3598/2014 "17. In our view, it is true that whether the deputationists should be absorbed in service or not is a policy matter, but at the same time, once the policy is accepted and rules are framed for such absorption, before rejecting the application, there must be justifiable reasons.
Respondent No. 1 cannot act arbitrarily by picking and choosing the deputationists for absorption. The power of absorption, no doubt, is discretionary but is coupled with the duty not to act arbitrarily, or at whim or caprice of any individual. In the present case, as stated earlier, the General Manager (N.E.Z.) specifically pointed out as early as in the year 1988 that appellant's service record was excellent; he was useful in service and appropriate order of his absorption may be passed. His application for absorption was within three years as provided in Rule 5. There is nothing on record to indicate that for any reason whatsoever, he was not required or fit to be absorbed or the power under Rule 5(1) of the U.P. Absorption of Government Servants in Public Undertakings Rules, 1984 was not required to be exercised in his favour. Interim order dated 17-7-1991 passed by the High Court would not be applicable in case of appellant because his case was considered for absorption in the year 1988. Further on completion of five years on 19-11-1990 he could not have ordinarily been continued on deputation in the service of Nigam. It is apparent that he was absorbed from 19-11-90 because from that date his deputation allowance was also discontinued. If he was to be continued on deputation, there was no reason for non-payment of deputation allowance. So on the basis of statutory rules as well as the policy, appellant stand absorbed in the service of Nigam."
32. The learned counsel for the applicants had also relied upon paragraphs 12 & 15 of the judgment in the case of Ashok Kumar Ratilal Patel (supra), in which the Hon'ble Apex Court had held in the relevant paragraphs as follows:-
"12. However, the aforesaid principle cannot be made applicable in the matter of appointment (recruitment) on deputation. In such case, for appointment on deputation in the services of the State or organisation or State within the meaning of Article 12 of the Constitution of India, the provisions of Article 14 and Article 16 are to be followed. No person can be discriminated nor it is open to the appointing authority to act arbitrarily or to pass any order in violation of Article 14 of the Constitution of India. A person, who applies for appointment on deputation has indefeasible right to be treated fairly and equally and once such person is selected and offered with the letter of appointment on deputation, the same cannot be cancelled except on the ground of non- suitability or unsatisfactory work.
13&14 xxxxxxxxxx (Not reproduced here).
15. For the reasons aforesaid, the impugned order of withdrawal of appointment dated 11th March, 2010 and the order of the 27 OA No-3553/2014 With OA No.3598/2014 Division Bench of Gujarat High Court cannot be sustained and they are accordingly set aside. As the post of Director is vacant, in view of the interim order of this Court dated 9th May, 2011, we direct the 2nd respondent to accept the joining of the appellant for a period of one year on deputation which is to be counted from the date of his joining and other terms and conditions of deputation will remain same. The North Gujarat University is directed to relieve the appellant with further direction to 2nd respondent to accept the joining of the appellant within one week from the date of reporting by the appellant. The appeal is allowed with the aforesaid observations and directions. There shall be no order as to costs."
33. Learned counsel for the applicants had also relied upon the judgment of the Hon'ble Apex Court in Ashok Kumar Sharma vs. Chander Shekhar (1997) 4 SCC 18, which related to inter-se-seniority between two groups of selected candidates, and that judgment does not appear to be directly related to this case.
34. Learned counsel for the applicants had also relied upon the Delhi High Court judgment in the case of Janardan Kumar vs. Union of India & Ors. dated 25.10.2013 in W.P. (C) No. 6712/2013, in which it was held that law does not contemplate a person to loose by default committed by a Court, and the Writ Petition had been disposed of, directing that till the Tribunal had decided the issue on interim relief, effect would not be given to the communication which was impugned before the Tribunal.
35. The first case in OA No.3553/2014 had come up for admission before a Coordinate Bench on 07.10.2014, in which notice on Interim Relief had been issued, and the counsel for the Union of India present in the Court had been directed to seek instructions. The second OA No.3598/2014 was filed on 08.10.2014, and both came to be listed on 28 OA No-3553/2014 With OA No.3598/2014 09.10.2014, and were clubbed for the purposes of hearing. While issuing notice to the respondents, in Para-9 of the common order passed in the two OAs dated 09.10.2014, it was recorded as follows:-
"9. Issue notice to the respondents, in both the aforesaid OAs, returnable by 30.10.2014. The respondents may file their reply to both the OAs before the said date.
In the meanwhile, in the circumstances and in view of the prima-facie case, the respondents are directed to continue the applicants on deputation in PAD, BSF".
36. After completion of pleadings, numerous adjournments had been sought on behalf of the applicants, while the learned counsel for the respondents on many occasions pressed for earlier hearing, because the interim stay was operating against them. As a result, when the same prayer for adjournment was made on 30.09.2015, this same Bench had passed the following order:-
"Once again today, learned proxy counsel for the applicants seeks short accommodation, as has been done on the last three occasions.
By way of indulgence, the case is fixed for hearing on 07.10.2015. It is made clear that if on the next date learned counsel for the applicants does not advance his arguments, the interim order operating against the respondents would stand vacated automatically".
37. Ultimately, the cases came to be heard and reserved for orders on 10.02.2015.
DISCUSSION OF THE FACTS, AND THE LAW
38. Heard. The two cases were argued vehemently by the learned counsel for both the sides. The initial submissions of the learned counsel for the applicants of the two OAs were on the lines of their pleadings 29 OA No-3553/2014 With OA No.3598/2014 itself, and it was submitted that the respondents cannot deny consideration of absorption of the applicants into the service of CCAS as Accountants and Senior Accountants in the manner they have done, or are seeking to do. It was submitted that applicants have actually settled down at Delhi with their families, and their being repatriated back as combatant personnel to their parent organization-BSF would entail their postings at different places, and severe hardship would be caused to the applicants and their families.
39. In his reply, learned counsel for the respondents submitted that his initial objection needs to be considered and sustained since the applicants are combatants in the BSF, and in their substantive position as BSF combatants, they do not come under the jurisdiction of this Tribunal, and these OAs themselves are, therefore, not maintainable.
40. All the 14 applicants of these two OAs are BSF Combatised Staff, and the respondents are right in raising a preliminary objection that per se they could not have directly approached this Tribunal, if it was a matter of their postings within BSF itself. However, since the facts involved in these two OAs relate to their having been deputed by their parent organization BSF to work under the Respondents No.R-2&R-3, in the PAD of the BSF, which comes under the control of CGA, Department of Expenditure, Ministry of Finance, which is under the jurisdiction of 30 OA No-3553/2014 With OA No.3598/2014 this Tribunal, as deputationists to an organization under the control of this Tribunal, we decline to reject these two OAs merely on the technical ground raised by the respondents that the applicants are combatants of BSF and could not have approached this Tribunal if they had been serving in the BSF itself.
41. It was further submitted on behalf of respondents that the RRs of the CCAS, do permit recruitment to that service automatically by way of absorption of deputationists, and the RRs do not prescribe any percentage of posts in CCAS to be filled up by absorption of deputationists. The learned counsel for the respondents further cited the Hon'ble Apex Court judgment in the case of P.U. Joshi & Ors. vs. The Accountant General, Ahmedabad and Ors. (2003) 2 SCC 632, in order to substantiate his submissions that the applicants cannot be allowed to force the respondents to necessarily absorb them in a Wing of the Ministry of Finance, Department of Expenditure, since CCAS is a separate encadred service under the CGA.
42. Learned counsel for the respondents also relied upon the Karnataka High Court judgment in the case of G. Venkatachalam vs. Union of India dated 09.04.2014 in W.P. (C) No. 49408/2013 (S-CAT) in which, when the petitioner was working on deputation as Court Officer/Section Officer in Central Administrative Tribunal, Bangalore Bench, and he was repatriated to his parent department in the Ministry of Defence, and he had insisted for his absorption, that Petition had been rejected by the Bangalore Bench of this Tribunal. The Hon'ble High Court had then held 31 OA No-3553/2014 With OA No.3598/2014 that when deputation period cannot be more than five years, and there was no provision to absorb the petitioner, just because some other deputed employee had been absorbed by the CAT, it cannot be a ground for the petitioner to insist for his absorption, and the Writ Petition had been rejected.
43. It was further submitted that the present applicants of these two OAs have no right to claim to be necessarily absorbed, and since deputation of a Government servant involves concurrence of three parties, the lending department, the borrowing department and the employee concerned, and when the borrowing department, Department of Expenditure, Ministry of Finance CGA, controlling the CCAS, does not want them, the applicants cannot force themselves into that encadred service, and have a backdoor entry into an organized service. He also submitted that neither has the applicants' parent organization-BSF ever been asked to give an NOC for absorption of the applicants in the CCAS, nor has the BSF ever agreed and issued any such NOC to allow the absorption of the applicants.
44. Learned counsel for the respondents further submitted that the respondents have respected interim orders passed by this Tribunal, and have not disturbed the applicants due to the interim stay. He submitted that substantive recruitment to the CCAS in the respondent-department of the CGA, represented by R-2, under the Department of Expenditure, Ministry of Finance, can only be done through the SSC, while the applicants are seeking a backdoor entry, without concurrence of either 32 OA No-3553/2014 With OA No.3598/2014 their parent lending authority BSF, or of the borrowing authority. He further pointed out that the applicants had been actually drawing higher pay scale as combatants in their parent department-BSF, and just for the comfort of posting at Delhi, they have chosen to come on deputation to PAD-BSF, to be under R-2&R-3, representing the CGA, Department of Expenditure, Ministry of Finance, but, however, if they are now allowed to be absorbed in the respondent department, their pay in the parent department BSF would have to be protected on such absorption, and they would have to be paid much higher salaries, which the respondents do not want, and, therefore, the department of Respondent No.2 under the Department of Expenditure, Ministry of Finance, does not want their services any longer after their respective periods of deputation are over.
45. Learned counsel for the applicants submitted in his reply arguments that this amounts to discrimination, because the respondents have in the past resorted to absorption of many such deputationists with them into the very same service of CCAS. He submitted that if absorption could have been allowed in respect of some persons earlier, the interpretation of the Rules cannot be changed again and again, just to defeat the request of the present applicants, since others have been absorbed in the past in a similar manner. He further submitted that the applicants deserve to be absorbed even on account of administrative exigencies also, because the respondent department actually needs services of Accountants and Senior Accountants like the applicants, and the respondent department is still in the process of seeking replacement persons for deputation to the very same posts on which they are denying 33 OA No-3553/2014 With OA No.3598/2014 absorption to the applicants herein. He pointed out that in a similar case, directions had been issued to the respondents to consider the case for absorption of the applicants, and the judgment of the Hon'ble Delhi High Court in the case of Sampat Singh Rathore vs. Union of India & Ors. dated 14.07.2015 in W.P. (C) No. 7894/2014 had already been implemented by the respondent department, when the High Court had in the order on the said Writ Petition ordered for absorption of the petitioner.
CONCLUSION
46. We have given our anxious consideration to the facts of this case. In the context of this very service of CCAS, to which the applicants of these two OAs are seeking absorption, a case filed by a deputationist from the ITBP had been decided by the same Bench of this Tribunal in OA No.3259/2015 on 28.04.2016. We may borrow the following paragraphs from that order with benefit:-
"15. Heard. During arguments, learned counsel for the applicant relied upon the Hon'ble Apex Court judgments in Rameshwar Prasad vs. Managing Director U.P. Rajkiya Nirman Nigam Limited and Others (1999) 8 SCC 381; 1999 Supp(2) SCR 593, in Kunal Nanda vs. Union of India & Anr. (2000) 5 SCC 362, and in Union of India & Ors. vs. S.A. Khaliq Pasha & Anr. (2009) NSC 63.
16. Learned counsel for the applicant submitted that in the case of Rameshwar Prasad vs. Managing Director U.P. Rajkiya Nirman Nigam Limited and Others (supra), the Hon'ble Apex Court had laid down the law with the following observations:-
"14. We agree with the learned counsel for the respondent No. 1 and make it clear that an employee who is on deputation has no right to be absorbed in the service where he is working on deputation. However, in some cases it may depend upon statutory rules to the contrary. If rules provide for absorption of employees on deputation then such employee has a right to be considered for absorption in accordance with the said rules. As quoted above, Rule 16(3) of the Recruitment Rules 34 OA No-3553/2014 With OA No.3598/2014 of the Nigam and Rule 5 of the U.P. Absorption of Government Servants in Public Undertakings Rules, 1984 provide for absorption of employees who are on deputation.
15....................The appellant continued in service without any break. Rule 4 of the U.P. Absorption of Government Servants in Public Undertakings Rules, 1984 which was admittedly applicable, provides that no government servant shall ordinarily be permitted to remain on deputation, for a period exceeding 5 years. Nothing has been stated by the Nigam as to why he was not repatriated. If the appellant was not to be absorbed, he ought to have been repatriated in the year 1990 when he had completed 5 years of service on deputation. By not doing so, the appellant is seriously prejudiced. The delay or inadvertent inaction on the part of the Officers of the Nigam in not passing appropriate order would not affect the appellant's right to be considered for absorption in service of Nigam as provided in Rule 16(3) of Recruitment Rules.
16.xxxxxxxxxxxxx(Not reproduced here).
17. In our view, it is true that whether the deputationists should be absorbed in service or not is a policy matter, but at the same time, once the policy is accepted and rules are framed for such absorption, before rejecting the application, there must be justifiable reasons. Respondent No. 1 cannot act arbitrarily by picking and choosing the deputationists for absorption. The power of absorption, no doubt, is discretionary but is coupled with the duty not to act arbitrarily, or at whim or caprice of any individual. In the present case, as stated earlier, the General Manager (N.E.Z.) specifically pointed out as early as in the year 1988 that appellant's service record was excellent; he was useful in service and appropriate order of his absorption may be passed.............................. It is apparent that he was absorbed from 19-11-90 because from that date his deputation allowance was also discontinued. If he was to be continued on deputation, there was no reason for non-payment of deputation allowance. So on the basis of statutory rules as well as the policy, appellant stand absorbed in the service of Nigam."
(Emphasis supplied).
17. In Kunal Nanda vs. Union of India & Anr. (supra), the Hon'ble Apex Court has made the following observations after distinguishing the case from that of Rameshwar Prasad (supra):-
"6. On the legal submissions made also there are no merits whatsoever. It is well settled that unless the claim of the deputationist for permanent absorption in the department where he works on deputation is based upon 35 OA No-3553/2014 With OA No.3598/2014 any statutory Rule, Regulation or Order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation. The reference to the decision reported in Rameshwar Prasad v. M.D., U.P. Rajkiya Nirman Nigam Ltd., (1999) 8 SCC 381 : 1999 AIR SCW 3427 : AIR 1999 SC 3443 : 1999 Lab IC 3285 : (1999 All LJ 2220) is inappropriate since, the consideration herein was in the light of statutory rules for absorption and the scope of those rules.........."
18. In the case of S.A. Khaliq Pasha (supra), the Hon'ble Apex Court has relied upon both the above cases in Rameshwar Prasad (supra) and in Kunal Nanda (supra), and has held as follows:-
"Furthermore, in absence of any statutory rules, an employee does not have any legal right to be absorbed in the services. It is so held in Kunal Nanda vs. Union of India and Anr. [2000 (5) SCC 362], in the following terms:
"On the legal submissions also made there are no merits whatsoever. It is well settled that unless the claim of the deputationist for a permanent absorption in the department where he works on deputation is based upon any statutory rule, regulation or order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation. The reference to the decision reported in Rameshwar Prasad v. M.D., U.P. Rajkiya Nirman Nigam Ltd is inappropriate since the consideration therein was in the light of the statutory Rules for absorption and the scope of those Rules. The claim that he need not be a graduate for absorption and being a service candidate, on completing service of 10 years he is exempt from the requirement of possessing a degree needs mention, only to be rejected. The stand of the respondent Department that the absorption of a 36 OA No-3553/2014 With OA No.3598/2014 deputationist being one against the direct quota, the possession of basic educational qualification prescribed for direct recruitment i.e. a degree is a must and essential and that there could be no comparison of the claim of such a person with one to be dealt with on promotion of a candidate who is already in service in that Department is well merited and deserves to be sustained and we see no infirmity whatsoever in the said claim."
(Emphasis supplied).
19. On the other hand, learned counsel for the respondents argued that it was never the case that the respondents had not considered the case of the applicant for absorption, and that his request regarding his permanent absorption in the CCAS cadre had been duly considered by the Competent Authority in accordance with the Rules and procedure, but that could not be acceded to due to administrative constraints as mentioned in Annexure-B of the counter reply dated 08.09.2015 as follows:-
"1) receipt of large number of dossiers from Staff Selection Commission for the post of Accountant, and
2) instructions contained in the office of CGA's O.M. No.A-
110201/1/2014/MF. CGA(A)/ 245 dated 23.07.2015 (copy enclosed), that no case for absorption be considered by Pr AO and referred to that office for consideration. All deputationists on completion of their term shall stand repatriated to their parent departments."
20. The law relating to the rights of deputationists is very well settled. The term "deputation" has been dealt with by the Hon'ble Courts in a number of cases. In the case of State of Mysore Vs. M.H. Bellary AIR 1965 SC 868; 1964 (7) SCR 471; 1966 (1) LLJ 50, the Hon'ble Supreme Court had held as follows:-
"Promotion of persons on deputation to another department:-
"...Service on deputation in another department is treated by rule as equivalent to service in the parent department"..... So long, therefore, as the service of the employee in the new department is satisfactory, and he is obtaining the increments and promotions in that department, it stands to reason that satisfactory service, and the manner of its discharge in the post which he actually fills, should be deemed to be rendered in the parent department also, so as to entitle him to promotions which are open on seniority-cum-merit basis".37
OA No-3553/2014 With OA No.3598/2014 [emphasis supplied].
21. Further in the case of State of Mysore Vs. P.N. Nanjundaiah; 1969 SLR 346; 1969 (3) SCC 633; AIR 1968 SC 1113, the Hon'ble Supreme Court had further clarified the same point in deciding that in the case of service on deputation being satisfactory, an employee gets his right of promotion in the parent department. A case directly on the point of a person on deputation being entitled to promotion only in his parent department was decided by the Hon'ble Apex Court in the case of Rajasthan State Electricity Board, Jaipur vs. Mohan Lal 1967 SLR 573; AIR 1967 SC 1857; 1967 (3) SCR 377; 1968 (1) LLJ 257.
22. It is seen that in the case of Union of India through Govt.of Pondicherry & Anr. vs. V.Ramakrishnan & Others. Civil Appeal No.6332/2005; the case specifically concerned with the absorption of deputationists and the Hon'ble Apex Court had ordered as follows:
"Ordinarily, a deputationist has no legal right to continue in the post. A deputationist indisputably has no right to be absorbed in the post to which he is deputed. However, there is no bar thereto as well. It may be true that when deputation does not result in absorption in the service to which an officer is deputed, no recruitment in its true import and significance takes place as he is continued to be a member of the parent service. When the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability or unsatisfactory performance. But, even where the tenure is not specified, an order of reversion can be questioned when the same is malafide. An action taken in a post haste manner also indicates malice. [See Bahadursinh Lakhubhai Gohil Vs. agdishbhai M. Kamalia and Others,(2004) 2 SCC 65, para 25]".
[Emphasis supplied]
23. It is, therefore, clear that the rights of deputationists differ from those of the direct appointees, and since deputation involves three voluntary decisions, of (a) the lending authority, (b) the borrowing authority, and (c) the employee concerned, in all this while, when the present applicant has continued to maintain his lien in his parent Ministry, in the case any of these three voluntary decisions of either (a) the lending authority, or (b) the borrowing authority, or (c) the employee concerned, is reversed, he can always be reverted back from his status of a deputationist to his parent Departmental cadre/Ministry, subject to the qualification laid down by the Hon'ble Apex Court in the case "Union of India through Govt. of Pondicherry & Anr" (supra) that ordinarily the specified terms of deputation should not be curtailed, except on just grounds, for example, unsuitability or unsatisfactory performance., which is not the case in the instant case, as the applicant has been on deputation for five years, and it is not a case of premature curtailment of his deputation.
38
OA No-3553/2014 With OA No.3598/2014
24. Thus, the law is well settled that no deputationist has a vested right for being necessarily absorbed in the service where he is on deputation. A deputationist only has a right for his request for absorption to be considered in accordance with the Rules and procedure, and if the case of the respondents before us is that the posts concerned have since been filled up through substantive appointment of direct recruit candidates through the SSC, or are in the process of being so filled up, as had been explained to the applicant on 08.09.2015 itself, and if there is a policy decision of the Government which comes in the way, and which was also communicated to the applicant, the applicant cannot have a grievance against the rejection of his case for absorption. In this context, the learned counsel for the respondents had also cited the OM dated 23.07.2015 (Annexure-A of the counter reply) which stated as follows:-
"A.110201/1/2014/MF.CGA(A)/245 Government of India Ministry of Finance Department of Expenditure Controller General of Accounts 7th floor, Lok Nayak Bhavan Khan Market, New Delhi.
Dated: 23 July, 2015 Office Memorandum Sub: Absorption of deputationists as Accountant in Central Civil Accounts Service.
********
Attention is invited to this office OM
No.A.11020/1/2014/MF.CGA(A)/287 dated 21.10.2014 and
A.11020/1/2014/MF.CGA(A)/312 dated 18.11.2014 on the subject cited above and to state that the instructions contained therein stand withdrawn with immediate effect.
2. Therefore, no case for absorption be considered by Pr.A.Os and referred to this office for consideration. All deputationists on completion of their term shall stand repatriated to their parent departments.
(D.D.K.T.Dason) Assistant Controller of Accounts".
25 to 30 xxxxxxxxx (Not reproduced here)
31. Consideration for absorption is an administrative decision, this Tribunal cannot issue directions to the respondents to directly absorb the applicant, as that is an administrative function. 39
OA No-3553/2014 With OA No.3598/2014
32. The Hon'ble High Court of Delhi in the case of National Highways Authority of India vs. Ashok Kumar Gupta in W.P. (C) No.8412/2014 dated 03.12.2014 has held as follows:-
"11. The choice of the public employer - whether, or not, to absorb the individual, is entirely based upon its discretion and its perception about the utility, competence and efficiency of the deputationists. As mentioned earlier, barring procedural failure in regard to the fair consideration of the request for absorption - which necessarily has to manifest from the records - the subject would be hardly one for judicial review. If Courts or Tribunals were to intervene routinely in such matters - as the CAT unfortunately did not once but twice over in the present case, the efficiency and functioning of public organisation would seriously be undermined. On the other hand, the parent employer has repeatedly insisted that the applicant should return to his duties. Not only has that organisation continued his lien, but would have undoubtedly made arrangements in his absence on a stop gap basis, and make do without a permanent officer. A direction of the kind that the CAT has given in the impugned order amounts to needlessly interfering with the discretion which otherwise needs to be exercised judiciously after taken into consideration all relevant factors. The manner in which the CAT went about intervening repeatedly in this manner is rather unfortunate; we cannot help but express this, and regret that such a situation has come to pass.
12. For the forgoing reasons, the impugned order of the CAT is hereby set aside. The writ petition is allowed, but, without any order as to costs. A copy of this order shall be communicated to the relevant Bench of the CAT through its Principal Registrar."
33. This Principal Bench of the Tribunal has also in the case of K. Pradeep Kumar vs. Union of India and Others in OA No.3203/2015 in the order dated 22.12.2015 has held as follows:-
"6. We have heard both sides and have perused the material on record. We agree with the Senior Counsel for the applicant that even though the applicant 5 OA-3203/2013 does not have a right to be absorbed in IB, he does have a right to be fairly considered for absorption in IB if the respondent department does have a policy of absorbing deputationists. The respondents cannot act arbitrarily and whimsically and all deputationists deserve to be considered in a fair manner. It is seen from the material made available that the only reason for rejecting the applicant's case for absorption given by the Screening Committee was that there were adverse remarks in his APAR for the year 2011-2012. The same have now been expunged and applicant's APAR has also been upgraded as is evident from order dated 10.08.2015 passed by the respondents. Thus, there is merit in the contention of the applicant's counsel that the case of the applicant for 40 OA No-3553/2014 With OA No.3598/2014 absorption needs to be reconsidered after this material change in his record.
7. However, we notice that the applicant has been repatriated to his parent cadre on 10.08.2015. He has also been relieved of his duties w.e.f. 14.08.2015 and admittedly he has now joined in his parent department. We also notice from the material placed on record that on the day when repatriation orders of the applicant were passed, the applicant had already completed his prescribed deputation period with IB having joined there on 04.12.2006. Also there was no Court case pending nor was there any stay order of any Court operating against applicant's repatriation. The last case filed by the applicant was OA-2565/2014, which was disposed of by this Tribunal on 20.04.2015 with a direction to the respondents to dispose of the representation of the applicant against adverse APAR afresh and also to maintain status quo regarding the applicant's posting atleast for a week after disposal of the representation. In pursuance of the same, the respondents disposed of the representation of the applicant and repatriated him thereafter. The present O.A. has been filed on 25.08.2015. Thus, it is clear that the orders of the respondents repatriating the applicant cannot be faulted for violation of directions of any Court or for frustrating the case of the applicant for absorption by repatriating him during pendency of any OA. Further, in our opinion, the applicant had a right to be considered for permanent absorption in IB only as long as he was a deputationist with them. Now that the applicant has joined his parent cadre, no such right subsists as the applicant is no longer a deputationist but an employee of CRFPF. In the case of NHAI Vs. Ashok Kumar Gupta (WP(C) No. 8412/2014) Hon'ble High Court on 03.12.2014 has held that the choice of the public employer whether, or not, to absorb the individual, is entirely based upon its discretion and its perception about the utility, competence and efficiency of the deputationists and barring procedural failure in this regard, the subject would hardly be one for judicial review. Hon'ble High Court has also directed that Courts/Tribunals should not routinely interfere in such matters. In the same judgment, it has also been observed that the deputationist's right to continue much less seek absorption, after the end of the deputation tenure is so tenuous, as to be called non- existent and barring manifestly perverse or arbitrary orders, the borrowing organisation cannot be compelled to continue with the employment of the deputationist much less absorb him."
34. These cases have also been considered by the same Bench in its order in Sanjay Kumar Arora & Ors. vs. Union of India & Ors. (OA No. 4705/2015 dated 26.04.2016) also."
41
OA No-3553/2014 With OA No.3598/2014
47. The order passed by this very Bench of the Tribunal in the case of Tilak Raj (supra) is distinguishable from the facts of the present cases, since in that case it was held that the Minister was not competent enough under the NHAI Act, 1988, to hold a meeting in his chamber, and to decide something and issue any instructions otherwise than what has been provided through a Subordinate Legislation enacted under an Act passed by the Parliament, in its original form in 1996, the third amendment to which was Gazette Notified in 2009. In view of this, since only the Board of NHAI had the power to do so, the matter had been remanded back for consideration by the authority competent as per law to decide regarding absorption of the applicant therein. Since the facts of the present two cases are not at all on all fours with the case of Tilak Raj (supra), the applicants of these two OAs cannot derive any benefit from the order passed on 25.08.2015 in OA No.2700/2014 (supra).
48. It is rather the order of the same Bench in the case of Somesh Kumar pronounced on 28.04.2016 in OA No.3250/2015 (supra), which concerns the issue of absorption of a deputationist to the same service of CCAS, which would be more relevant and applicable, portions of which have already been reproduced above.
49. The Hon'ble High Court's judgment in the case of Sampat Singh Rathore (supra) was, however, also in the case of same service of CCAS. In that case the Hon'ble High Court had in Paragraph-3 of its judgment placed reliance upon a policy decision taken in the minutes of the meeting held on 24.09.2009 for one time exercise of absorption of the 42 OA No-3553/2014 With OA No.3598/2014 then deputationists for integration of PAD, BSF with Department of Accounting Organization of the MHA. From a reading of that judgment, it is clear that the Minutes of the subsequent Meeting, held on 20.01.2011, regarding the same subject, had not been brought to the notice of the Hon'ble Delhi High Court at all, since the same has not been mentioned anywhere in the order of the Hon'ble High Court, which was subsequent to that date of 20.01.2011. That day, in order to implement the decisions taken in the Meeting held on 24.09.2009, relied upon by the Hon'ble High Court, it was decided as follows:-
"2. After having a detailed discussion, the under-mentioned decision were taken which are to be implemented in the following manner:-
a) As on the date 281 posts of various status are authorized in PAD and against these posts 321 personnel (Combatised as well as Civilians) are held.
b) Encashment of all the present eligible Combatised a Civilans staff working in PAD, either on attachment/deputation will be ordered immediately.
c) Seven number canteen staff whose NOC has already been given by BSF will also be taken on Pay roll of PAD and will be paid from the budget of PAD with immediate effect. They will be over and above the strength of 281.
d) A window for deputation of 31 posts out of 321 will always be kept open for deputation for BSF Combatised Min. Staff.
e) The post wise breaking of these 31 posts will be intimated by PAD in due course.
f) These 31 posts will not be filled by absorption at any stage so that this window of 31 posts always remain available for BSF Min. Staff.
g) BSF informed about the SOP regarding absorption of BSF personnel in other organizations issued by HQ DG BSF vide No. A-35018/89/2005-Estt/Vol-II/BSF/26627-880 dated 23 Sep 2010 and 32975-33245 dated 29 Nov' 10. This has been submitted before the Delhi High Court.43
OA No-3553/2014 With OA No.3598/2014
h) The remaining Combatised Min. Staff who have completed normal Delhi tenure and above be relieved without delay".
(Emphasis supplied).
50. That being the case of a petitioner before the Hon'ble High Court who was only working temporarily, with the PAD, the Hon'ble High Court had, in Paragraph-12 of its judgment, taken notice of the letter dated 01.08.2012 addressed by the lending authority to the Controlling Authority, the Controller of Accounts, and had reproduced that letter in full. Paragraph-5 of that letter, as reproduced by the Hon'ble High Court, tallies with the above reproduced Minutes of the Meeting held on 20.01.2011, in which the presence of 321 personnel (combatised as well as civilian) on deputation in the PAD of BSF had been discussed, and it was decided that 31 posts out of 321 will always be kept open for deputation of BSF Combatised Ministerial Staff, and that these 31 posts will not be filled by absorption at any stage, so that this window of 31 posts will always remain available for BSF Ministerial Staff.
51. Since the Hon'ble High Court had in its judgment cited the letter dated 01.08.2012 in Para-12 of its judgment with approval, therefore, it is clear that the Hon'ble High Court had, by implication, through its judgment in Sampath Singh Rathore (supra), approved the arrangement that out of 321 posts identified, 280 would get merged to be filled up by CCAS employees, whether directly recruited or absorbed, but 31 posts will always be kept open for deputation of BSF Combatised Ministerial Staff, and that these 31 posts will not be filled by absorption at any stage, 44 OA No-3553/2014 With OA No.3598/2014 so that this window of 31 posts will always remain available for BSF Ministerial Staff.
52. The irony of the situation is that the present 14 applicants of these OAs are a part of those 31 BSF Combatised Ministerial Staff deputationists, in respect of which it has already been decided on 20.01.2011, and even approved by the Hon'ble Delhi High Court by implication, that these posts will always remain available for BSF Combatised Ministerial Staff to come on deputation on rotation basis, and will not be filled by absorption. Therefore, since the communication dated 01.08.2012 reproduced in Para-12 of the Hon'ble Delhi High Court judgment has met approval of the Hon'ble Delhi High Court in the final paragraph-14 of that judgment also once again, it is clear that out of 321 posts in the PAD, to be paid from the PAD budget, 31 posts will always have to be kept open for deputation of BSF Combatised Ministerial Staff, which can only be done on rotational basis, and that these 31 posts will not be filled by absorption, for which Respondents No.R-2&R-3 have given an assurance on 20.01.2011, which has been cited with approval by the Hon'ble Delhi High Court in Sampath Singh Rathore (supra). Therefore, in view of the judgment of the Hon'ble Delhi High Court in the cited case the applicants cannot be allowed to seek absorption and occupy 14 of those 31 posts, and their parent body BSF would always be empowered to redeploy a fresh set of 31 BSF Combatised Ministerial Staff in place of previously deputed persons, since a commitment has been given that these 31 earmarked posts for BSF Combatised Ministerial Staff 45 OA No-3553/2014 With OA No.3598/2014 will never be filled up by absorption, which has been, by implication, upheld by the Delhi High Court.
53. It is, therefore, clear that from a combined reading of the judgment of the Hon'ble High Court in the case of Sampat Singh Rathore (supra) and Annexure R-1 Minutes of the Meeting held on 20.01.2011, the present applicants before us cannot be allowed to derive any benefit out of the said judgment of the Hon'ble Delhi High Court. The other cited case of Rameshwar Prasad (supra) has already been discussed above, while citing the Paragraphs from the order dated 28.04.2016 in OA No.3259/2015 Somesh Kumar (supra).
54. That leaves us to examine only the applicability of the two remaining cited cases in Ashok Kumar RatiLal Patel (supra) and in Ashok Kumar Sharma (supra). The judgment in the case of Ashok Kumar RatiLal Patel (supra) related to a distinction between appointment on deputation, and transfer on deputation, and does not appear to be on all fours with the instant cases, though the learned counsel for the applicants had relied upon Paragraphs 12 & 15 of that cited judgment.
55. The case in Ashok Kumar Sharma (supra) was a case of 3 Judges' Bench hearing a review of an earlier judgment related to the qualification acquired by a candidate before the date of interview, even though he was not qualified on the last date prescribed for receiving the applications, and did not relate to the aspect of absorption of deputationists at all. 46
OA No-3553/2014 With OA No.3598/2014 Therefore, it is clear that no benefit of the said judgment can enure to the applicants of these two OAs.
56. We have already discussed above the Hon'ble Karnataka High Court's judgment in the case of G. Venkatachalam (supra) dated 09.04.2010, in which it had been held that just because some other deputed employee had been absorbed, it cannot be a ground for the petitioner to insist for his absorption also.
57. The judgment in the case of P.U. Joshi & Ors. (supra) related to the various cadres in the Indian Audit and Accounts Departments, which had been bifurcated and restructured, and in Paragraph-10 of its judgment, the Hon'ble Apex Court had clearly laid down the law that it is the exclusive domain of the executive to decide about constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service, and to have a particular method of recruitment or eligibility criteria or avenues of promotions, and that there is no right in any employee of the State to claim that the Rules governing conditions of his service should be forever the same, as they were when he entered service, for all purposes, by holding as follows:-
"10. We have carefully considered the sub-missions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or 47 OA No-3553/2014 With OA No.3598/2014 eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substruction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/ posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."
58. In the present cases also, though the RRs as notified do permit a deputationist to be absorbed, but when there has been an agreement between the Respondent No.R-4 & Respondents No.R-2&R-3 that 31 posts of Accountants in PAD-BSF would always be kept reserved for deputationists from amongst BSF combatants, and that arrangement has been upheld by implication of the Hon'ble Delhi High Court's judgment in a cited case, the applicants cannot be allowed to foreclose the option available to Respondent No.R-4 BSF to replace 31 such persons in the office of Respondents No.R-2&R-3 with 31 fresh deputationists, from amongst the other BSF combatants. The applicants are, therefore, through these OAs, trying to foreclose the leeway and authority available to Respondent No.R-4, their parent organization, to replace them with other persons similarly placed as them, who are not even parties before us, but whose rights to claim to come on deputation to PAD-BSF with 48 OA No-3553/2014 With OA No.3598/2014 Respondents No.R-2&R-3 under the 31 earmarked posts would get foreclosed if the present OAs are allowed.
59. Therefore, in the conspectus of the circumstances, it is clear that these two OAs do not have any merit whatsoever, and that the 14 applicants before us cannot force Respondents No.R-2&R-3 to absorb their services, when they have come merely on deputation from the office of Respondent No.R-4 on a rotational basis, which aspect has been upheld indirectly by the Hon'ble Delhi High Court also through its judgment in the case of Sampath Singh Rathore (supra).
60. Therefore, both the OAs are rejected, but there shall be no order as to costs.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A) cc.