Central Administrative Tribunal - Delhi
Shri Sc Sharma vs Union Of India Through on 23 September, 2014
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 1820/2013
Reserved on: 23.04.2014
Pronounced on: 23.09.2014
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. B.K. Sinha, Member (A)
Shri SC Sharma
(Group C Employee)
S/o Shri MR Sharma
H.No. 1117, Sector 7,
Rama Krishna Puram,
New Delhi. Applicant
(By Advocate: Ms. Jyoti Singh, Sr. Advocate assisted by
Sh. Amandeep Joshi)
Versus
1. Union of India through
Secretary,
Ministry of Home
North Block, New Delhi-1.
2. Director General,
National Crime Record Bureau,
East Block 7,
Rama Krishna Puram,
New Delhi 110 066. Respondents
(By Advocate: Shri H.K. Gangwani)
O R D E R
Dr. B. K. Sinha, Member (A):
The short issue for consideration in the instant case is whether the qualifying period for grant of seniority for promotion to the post of Inspector shall take effect from the date of absorption of the applicant in the respondent organization or from the date of deputation.
2. Admittedly, the applicant joined as Sub Inspector in the pay scale of Rs. 4000-100-6000/- on deputation basis w.e.f. 15.11.1999 with the respondent no.2 and was absorbed in the same scale w.e.f. 24.05.2005. The respondent organization had six sanctioned posts of Inspector (temporary) out of which 4 posts have been abolished by the Ministry of Finance w.e.f. 01.04.2007. As per the existing recruitment rules, the mode of recruitment was 12.5% by promotion failing which by transfer on deputation and 87.5% by transfer on deputation. However, for promotion to the post of Inspector, amendment to the recruitment rules was deemed necessary. Since the vacancies were required to be filled up urgently, promotion to the said post on ad hoc basis was recommended. The applicant could not be given ad hoc promotion as amendment to the recruitment rules, 2003 was under process. The condition of promotion to the post of Inspector was Sub Inspector (General) in Pay Band-I of Rs.5200-20200/- with Grade Pay of Rs. 2400/- with ten years of regular service in the grade. The applicant made a representation on 15.01.2013 stating therein that he had completed more than 13 years of service in the rank of Sub Inspector and was considered for the post of Inspector but his service was reckoned from 24.05.2005 and not from his date of deputation i.e. 15.11.1999. The applicant further made a representation on 16.04.2013 requesting for counting his service from the date of his deputation as per the law laid down by the Honble Supreme Court in the matter of S.I. Rooplal and Another versus Lt. Governor through Chief Secretary, Delhi and Others [AIR 2000 SC 594]. The instant Original Application has been filed by the applicant to press this demand. In addition, the applicant has also relied upon the decision of the Honble Supreme Court in the matter of K. Madhavan versus Union of India [1987 (4) SCC 566] which provides that when a deputationist is permanently absorbed in the CBI, he is appointed on transfer under the rules and that it will be against all rules of service jurisprudence if his services intervening the deputation and the period of absorption were to be wiped out. The Government of India also carried out amendment to its OM dated 29.05.1986 vide OM dated 27.03.2001 providing that in the case of a person who is initially taken on deputation and absorbed later on, his seniority in the grade in which he is absorbed, will normally be counted from the date of absorption; if, however, he has been already holding on the date of absorption same or equivalent grade on regular basis in his parent department, such regular service shall also be taken into account in fixing his seniority, provided he will be given seniority from the date he has been holding the post on deputation, or the date from which he is appointed on a regular basis to the same or equivalent grade in his parent department, whichever is earlier. The applicant has additionally relied upon the decision of the Honble High Court of Delhi in the case of Dr. Rajendra Kumar & Others versus The Government of NCT of Delhi [WP(C) No. 14097-100/2005 decided on 11.10.2006] which has since attained finality.
3. The applicant further pleads that he was on deputation with the Intelligence Bureau as JIO-II from 06.12.1988 in the pay scale of Rs.3200-4900/- and was absorbed in the same grade w.e.f. 06.12.1993 and the Grade pay of that post, as per the 6th CPC, is Rs.2400/-. He, therefore, prays for seniority to be counted for promotion to the post of Inspector when he was placed in the pay scale with Grade Pay of Rs.2400/-.
4. The applicant has sought the following relief(s):-
Declare the impugned O.M. dated 15.04.2013 issued by the respondents for counting of continuous service of applicant in the rank of Sub Inspector (General) from 24.05.2005 for the purpose of seniority for promotion to the post of Inspector, as arbitrary, discriminatory, unreasonable and unjust and quash and set aside the same.
Direct the respondents to treat the applicants seniority from the date of deputation i.e. from 15.11.1999 for the purpose of promotion to the rank of Inspector.
Direct the respondents to promote the applicant to the post of Inspector on ad-hoc basis with effect from 20.01.2009 i.e. from the date of Note and thereafter on permanent basis on completion of 10 years as Sub Inspector w.e.f. 15.11.2009 as he is the only senior most eligible Sub Inspector from the feeder cadre.
Any other relief which may deem fit by the Honble Tribunal in a given circumstances.
5. The respondents have filed their counter affidavit submitting that a proposal for filling up the post of Inspector on deputation basis was submitted to the MHA which did not agree to the same irrespective of the fact that the applicant was in continuous service as Sub Inspector w.e.f. 15.11.1999 and was absorbed on 24.05.2005. The requirement of the post is that he should have completed ten years of regular service. The respondents further submit that the applicant was working in the Intelligence Burau as JIO-II in the scale of Rs.3200-4900/- from where he came on deputation to the respondent no.3 in a higher scale of pay of Rs.4000-100-6000/-. It is further the case of the respondents that as per the DOPT instructions, the applicant was not eligible to count his service rendered on deputation in the Intelligence Bureau and his parent cadre as he was holding the post which was lower in rank than the post joined by him in the Bureau. In view of this, the only service rendered by the applicant as SI with the respondent no.2 w.e.f. 24.05.2005 is liable to be counted for qualifying service for promotion.
6. The applicant has submitted his rejoinder application rebutting the counter affidavit. It is stated therein that he has been working in the scale of Rs.4000-100-6000 w.e.f. 15.11.1999. In reply to para no.9 of the counter affidavit, it is submitted that he was working as JIO-II in the Intelligence Bureau w.e.f. 06.12.1988 in the pay scale of Rs.975-25-1150-EB-30-1660 and was absorbed in the same grade w.e.f. 06.12.1993. The upgraded Grade Pay as per 6th CPC of that post is Rs.2400/-. The pay scale of Rs.975-1660/- was revised to Rs.4000-6000 by the 5th CPC, which has been placed in PB-1 with Grade Pay of Rs.2400/- by the 6th CPC. The applicant has additionally relied upon the decision of this Tribunal in the matter of Sridhar Prakash Versus Union of India & Others [OA No. 871/1995 decided on 05.09.1995] in support of his contention. The applicant in that case was appointed as Sub Inspector (Non-Technical) in NCRB on deputation w.e.f. 10.02.1982 and was absorbed on regular basis w.e.f. 25.08.1984. His case for promotion to the post of Inspector was rejected by the respondents on the ground that he did not have the requisite length of regular service in the grade of Sub Inspector, as he was appointed/absorbed in that post on regular basis w.e.f. 25.08.1984, and that before such appointment he was not holding a post equivalent in grade to the post of Sub Inspector in his parent organization. It was argued on behalf of the respondents that the services rendered as a deputationist before he was absorbed could not be treated as regular service. The Tribunal repelled the contention raised on behalf of the respondents and held that transfer on deputation being one of the recognized methods of recruitment according to the recruitment rules, a person appointed by way of transfer on deputation could not be considered to be an ad hoc employee, and further that even if the applicant was holding a different pay scale in his parent department, the same would not alter the situation.
7. We have heard the learned counsel appearing for both the parties whose arguments have more or less followed their pleadings.
8. The matter was heard and reserved for orders on 21.02.2014. However, when the order was in the process of being prepared, it was noted that the impugned order is a tentative gradation list to which objections have been invited from the affected persons, and there was no final gradation list available on record, which would make the OA pre-mature and, therefore, barred by Section 20 of the Administrative Tribunals Act, 1985. The matter was, therefore, directed to be listed for re-hearing and accordingly the parties were heard again.
9. The applicant has contended that as submitted in the OM dated 26.09.2013 of the respondent no.1 that a draft seniority list of Sub Inspector in the Crime Records, Administration and Training Division of National Crime Records Bureau was circulated vide Memorandum dated 15.04.2013. Objections/ representations received within the prescribed time limit were considered and disposed of. According to the list, name of the applicant figured at serial no.1 wherein his date of joining NCRB has been shown as 15.1.1999 and the date of continuous service in SI(G) has been shown as 24.05.2005. This information has been filed by the applicant vide MA No. 906/2014 filed on 18.03.2014. The respondents have filed reply to the afore MA stating that since in this case the applicant was holding the lower post (on the date of absorption) in his parent cadre, he is eligible for seniority from the date of absorption only. Accordingly, in the Bureau OM dated 15.4.2013, his seniority in the grade of SI has been counted from the date of absorption i.e. 24.5.2005.
10. We start by examining the requirements for promotion as stated in the National Crime Records Bureau, Crime Records, Administration and Training Division, Inspector (Group B Post) Recruitment Rules, 2012. Schedule to these recruitment rules provide as under:-
Promotion:-
Sub-Inspector (General) in the pay Band-I of Rs.5200-20200/- with Grade Pay of Rs.2400/- in the Crime Records, Administration and Training Division of National Crime Records Bureau with ten years regular service in the Grade. xxx xxx xxx Note 2:- For the purpose of computing minimum qualifying service for promotion. The service rendered on a regular basis by an officer prior to 1.1.2006. The date from which the revised pay structure based on the 6th Central Pay Commission recommendations has been extended, shall be deemed to be service rendered in the corresponding grade pay/pay scale extended based on the recommendations of the pay commission.
11. From the above it is clear that the recruitment rules provide vide Note-2 to the Schedule attached thereto that the applicant should have rendered a minimum of ten years of regular service prior to 01.01.2006, the date from which the revised pay structure of the 6th CPC was implemented. To the contrary, we have seen that the claim of the applicant is that his services should be reckoned from 15.11.1999. He further submits that he worked in the post of JIO-II where his pay scale in the pre 5th CPC was Rs.975-1660 which has been subsequently upgraded to the scale of Rs.4000-6000 in the 5th CPC. The OM dated 29.05.1986 provides that in case of a government employee who is taken initially on deputation and absorbed later, his seniority in the grade in which he is absorbed would normally be counted from the date of absorption. However, where he has already been holding the same or equivalent grade on regular basis in his parent department, such regular service in the grade would also be reckoned for the purpose of fixing his seniority, subject to the condition that he would be given seniority from the date he has been holding the post on deputation or the date from which he has been appointed on regular basis to the same or equivalent grade in his parent department, whichever is later. However, as per the decision of the Honble Supreme Court in the case of S.I. Rooplal and Another versus Lt. Governor through Chief Secretary, Delhi and Others (supra), the clause whichever is later was substituted by clause whichever is earlier. In this regard, the basic postulate has been laid down in the case of K. Madhavan versus Union of India (supra) wherein the issue under debate was as to how the period of eight years service in the grade rendered after appointment thereto on regular basis was to be interpreted. It was urged in that case that the expression regular basis would have only one meaning that is to say, after permanent absorption of the deputationist in the CBI - the organization in question. The Honble Court has held that the term regular appointment would mean appointment to the post on a regular basis in contradiction to appointment on ad hoc or stop-gap or purely temporary basis. However, the Honble Court has gone ahead to hold that when a deputationist is permanently absorbed in the CBI, he is under the rules appointed on transfer. In other words, deputation may be regarded as a transfer from one government department to another. It will be against all rules of service jurisprudence if a government servant holding a particular post is transferred to the same or an equivalent post in another government department, and the period of his service in the post before his transfer is not taken into consideration while computing his seniority in the transferred post. The transfer cannot wipe out his length of service in the post from which he has been transferred.
12. In S.I. Rooplal and Another versus Lt. Governor through Chief Secretary, Delhi and Others (supra), it has been categorically held that if the previous service of a transferred official is to be counted towards seniority in the transferred post than the two posts should be equivalent. The equivalency of any two posts is not to be judged by the sole fact of equal pay. Other factors like nature of duties, responsibilities, minimum qualification have also to be taken into consideration. For the sake of greater clarity, we deem it appropriate to extract the relevant portion of the judgment, which reads as under:-
EIt is so held by this Court as far back as in the year 1968 in the case of Union of India v. P. K. Roy (1968) 2 SCR 186 : (AIR 1968 SC 850). In the said judgment, this Court accepted the factors laid down by the Committee of Chief Secretaries which was constituted for settling the disputes regarding equation of posts arising out of the States Reorganisation Act, 1956. These four factors are (i) the nature and duties of a post; (ii) the responsibilities and powers exercised by the officer holding a post; the extent of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post; and (iv) the salary of the post. It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criterion. If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different, would not in any way make the post 'not equivalent'. The same judgment goes ahead to hold as under:-
(G) It is clear from the ratio laid down in the above case that any Rule, Regulation or Executive Instruction which has the effect of taking away the service rendered by a deputationist in an equivalent cadre in the parent department while counting his seniority in the deputed post would be violative of Arts. 14 and 16 of the Constitution. Hence, liable to be struck down. Since the impugned Memorandum in its entirety does not take away the above right of the deputationists and by striking down the offending part of the Memorandum, as has been prayed in the writ petition, the rights of the appellants could be preserved, we agree with the prayer of the petitioners/appellants and the offending words in the Memorandum "whichever is later" are held to be violative of Arts. 14 and 16 of the Constitution, hence, those words are quashed from the text of the impugned Memorandum. Consequently, the right of the petitioners/appellants to count their service from the date of their regular appointment in the post of Sub-Inspector in BSF, while computing their seniority in the cadre of Sub-Inspector (Executive) in the Delhi Police, is restored. On the basis of the above, we are of the opinion that the OM dated 27.03.2001 has been correctly issued. The similar issue has been further examined by the Honble High Court of Delhi in the case of Dr. Rajendra Kumar & Others versus The Government of NCT of Delhi (supra) as under:-
16. The Tribunal had also relied on the factor that the period of deputation should not be counted towards regular service because the petitioners during the period of deputation and prior to permanent absorption had a lien on their posts in the parent department. Without going into the question as to whether lien was retained or not, we find the same to be contrary to the dictum, laid down in Rudra Kumar Sain and Ors. v. Union of India and Ors. reported at (2000) 8 SCC 25. In the cited case, the Supreme Court noted the contention that the conclusion arrived at by the Committee of the High Court that a person promoted to higher judicial service under Rules 16 and 17 of the Rules to a post against which some other person had a lien, would ipso facto make such appointment ad hoc/fortuitous/stop gap, is contrary to the conclusion reached by the Supreme Court in O.P. Singla v. Union of India reported at regarding continuous length of service.
17. From the foregoing, it would follow that simply because a lien was retained by the earlier incumbent to the post, the subsequent appointment to the post which is otherwise made in accordance with the rules would not be rendered ad hoc/fortuitous/stop gap because of the lien. Hence similar plea regarding lie as is sought to be raised would also not be available to the respondent.
13. We also find that this is further backed by the decision of this Tribunal in the matter of Sridhar Prakash Versus Union of India & Others (supra). It was almost a similar case and the Tribunal, relying upon the OM dated 29.05.1986, held as under:-
Therefore, the applicant though on transfer on deputation was appointed regularly to the post of Sub-Inspector which carried a pay scale of Rs.380-560. Though the applicant was absorbed in service only on 25.8.1984 and probably entitled to seniority in that grade only with effect from that date his services rendered prior to absorption as a deputationist being regular service has to be treated as regular service in determining eligibility for promotion. Even if the applicant was holding a lien on a post in the parent department which has a different pay scale does not alter the position.
14. We do not consider the view of the learned counsel for the respondents tenable for the simple reason that the Government in recognition of the judgment of the Honble Supreme Court in the case of S.I. Rooplal and Another versus Lt. Governor through Chief Secretary, Delhi and Others (supra) and K. Madhavan versus Union of India (supra) have themselves amended their own OM to read the clause whichever is later as whichever is earlier. We also conclusively reject the argument of the respondents that the applicant was not in the scale of Rs.4000-6000/- prescribed for the post of Sub Inspector. In fact, we find that the scales have followed the following line of replacement:-
Rank 4th Pay Commission 1986 5th Pay Commission 1996 6th pay commission 2006 JIO-II 975-1600 4000-6000 GP 2400
15. On the basis of the above, we find that there is substance in the plea of the applicant and, therefore, dispose of the instant OA with the following directives:-
The impugned O.M. dated 15.04.2013 is quashed and set aside being arbitrary, discriminatory, unreasonable and unjust;
The respondents are directed to treat the applicants seniority from the date of deputation i.e. from 15.11.1999 for the purpose of promotion to the rank of Inspector.
The respondents are further directed to hold a review DPC to consider the case of the applicant for promotion in the light of the facts enumerated above within a period of three months from the date of receipt of certified copy of this order.
There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/