Central Administrative Tribunal - Delhi
Anil Kumar Joshi S/O Sh. N.B. Joshi vs National Human Rights Commission on 13 December, 2013
Central Administrative Tribunal Principal Bench OA No.205/2012 MA No.2996/2012 Reserved on: 26.08.2013 Pronounced on: 13.12.2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B. K. Sinha, Member (A) Anil Kumar Joshi s/o Sh. N.B. Joshi, R/o 1837, Laxmibai Nagar, New Delhi. ...Applicant (By Advocate: Sh. Sri Gopal Aggarwal) Versus 1. National Human Rights Commission Through its Secretary General, Faridkot House, Copernicus Marg, New Delhi. 2. Joint Secretary (P&A), National Human Rights Commission Faridkot House, Copernicus Marg, New Delhi. 3. The Deputy Secretary to the Govt. of India, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, New Delhi. 4. Sh. S.S. Gosain, Accountant, National Human Rights Commission Faridkot House, Copernicus Marg, New Delhi. Respondents (By Advocate: Shri S.M. Arif for R-1 to R-3 Shri S.K. Gupta for R-4) O R D E R By Dr. B. K. Sinha, Member (A):
The applicant has filed the instant Original Application under Section 19 of the Administrative Tribunals, 1985 against the impugned order dated 18.05.2011 absorbing S.S. Gosain, respondent no.4 (hereinafter referred to as private respondent) as Accountant in PB-2 (Rs. 9300-34800) + Grade Pay Rs.4200/- with effect from the afternoon of 01.03.2011 subject to the orders, if any, to be passed by this Tribunal in OA No.1134/2011.
2. By means of the instant Application, the applicant has sought for the following relief(s):-
(a) To quash and set aside the impugned orders available as Annexure A-1(Colly).
(b) To direct the official respondents to promote the Applicant to the post of Accountant with effect from 28.04.2011 since his senior colleague, Shri Murari Lal is promoted against one of the two sanctioned posts of Accountant and also grant him all the consequential benefits.
(c) To direct the official respondents to repatriate respondent no.4 to his parent department immediately.
(d) To grant suitable cost of limitation in favour of the applicant and against the respondents.
(e) To grant such other or further relief(s), the Honble Tribunal deems fit keeping in view the facts and circumstances of the case.
3. The facts of the case, briefly stated, are that the applicant has been working as Junior Accountant, which is a feeder cadre for promotion to the post of Accountant in the respondent organizationNHRC. The applicant had earlier filed OA No.1134/2011 along with one Murari Lal titled as Murari Lal & Others versus National Human Rights Commission & Others. However, the respondent nos. 1 to 3 (hereinafter referred to as official respondents) absorbed the private respondent as Accountant against one of the two sanctioned posts vide impugned order dated 18.05.2011 subject to orders, if any, passed by this Tribunal in OA No. 1134/2011. Murari Lal, being the lead applicant in the earlier OA who happened to be senior colleague of the applicant, was also promoted against the second vacancy of Accountant. Accordingly, the applicant withdrew OA No. 1134/2011 with liberty to file fresh OA, hence the instant OA. The applicant submits that there are two posts of Accountant in the respondent organization which have been filled up by absorption of the private respondent and promotion of the said Murari Lal. The applicant further submits that there is no provision for absorption of a deputationist in the respondent organization and thereby the applicant stands deprived of his legitimate right to be promoted as Accountant. Moreover, as per the DOP&T guidelines, the private respondent could not have been continued on deputation beyond the maximum period of five years, which he completed on 21.08.2010. Anticipating repatriation of the private respondent to his parent department, though the official respondents have brought in one Bal Krishan Shukla as Accountant on 16.04.2010 to act as a substitute for the private respondent, yet the private respondent continued to work with the respondent organization till he got absorbed de hors the recruitment rules. The applicant, in support of his Application, has adopted the following grounds:-
The private respondent was deemed to have been repatriated w.e.f. 16.04.2010 on Bal Krishan Shuklas joining as his substitute. However, both continued to work against the same post.
As per the recruitment rules, the private respondent could not have been absorbed on the post of Accountant and that too during the period of unauthorized overstay in the said organization.
As per the DOP&T OM dated 01.03.2011, the private respondent stood to be departmentally proceeded against by his parent department for unauthorized stay with the borrowing organization. He contrived his absorption on one of the two posts in order to avoid the penalty in the departmental proceedings.
The applicant has been deprived of the opportunity of promotion against the post, which has since been occupied by the private respondent.
The applicant has submitted that the absorption of the private respondent has been made in utter violation of the existing Circulars and guidelines issued by the DOP&T and complete disregard to the rules and norms.
4. In support of his claim, the applicant has relied upon the judgment of the Honble Supreme Court in the matter of Kunal Nanda versus Union of India and Another [2000 (5) SCC 362]. It is a well admitted position that the facts of the instant case and the case relied upon by the applicant are somewhat similar as the petitioner therein was a Member of CRPF, who had gone on deputation as ASI to CBI. There was no specific statutory rules, regulation or order having the force of law governing the service but was served by circulars. In the instant case also, the absorption has been made in violation of the rules. The concluding para of the judgment reads as under:-
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 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.
5. The applicant has also placed reliance on a decision of this very Bench in the mater of Kulbir Krishan, IPS Inspector General versus Unionof India & Others [OA No. 1929/2006 decided on 05.06.2007] wherein this Tribunal has observed as under:-
26. The Hon'ble Supreme Court in Ratilal B. Soni and Ors. v. State of Gujarat and Ors. 1990 (Supp.) SCC 243, has held that a deputationist can be reverted to his parent cadre at any time, who would have no right to be absorbed on the post of deputation. In Kunal Nanda v. Union of India and Anr.2000 (3) SLJ 336 (SC) : AIR 2000 SC 2076, the Supreme Court has held that the basic principle underlying deputation itself is that the person can always and at any time be repatriated to his parent department to serve in his substantive position at the instance of either of the departments and there is no vested right in such a person to continue on deputation or get absorbed in the department to which he had gone on deputation. A Division Bench of Punjab and Haryana High Court in Gurinder Pal Singh v. State of Punjab 2005 (1) SLR 629, after taking into consideration the decisions of the Apex Court in Kunal Nanda v. Union of India and Ors. (supra) and Ratilal B. Soni and Ors. v. State of Gujarat (supra), and Rameshwar Parshad v. Managing Director, U.P. Rajkiya Nirman Nigam Limited , has held that a deputationist would have no vested right to continue in the borrowing department even till the completion of the stipulated period of deputation. It is a tripartite contract and can be continued only if all the parlies like it to continue. The ratio with regard to above observation is not denied at any point of time by the respondents.
6. The applicant has relied upon yet another decision of this Tribunal in the matter of Dr. S.C. Bansal versus Union of India & Others [OA No. 174/2007 decided on 0705.2008] wherein the applicant had been granted extension on deputation basis on year to year basis upto September, 2007. The applicant therein made a representation for his permanent absorption on the post on which he was officiating on deputation. It was recommended by the Ministry but did not find favour with the Union Public Service Commission being contrary to the relevant rules. While deciding the OA, the Tribunal has held as under:-
17. In regard to the last ground regarding relaxation of Recruitment Rules, as contended by the applicant, DOPT and the Administrative Ministry had recommended his absorption, but the proposal has not found favour with the UPSC for the simple reason that there is no provision for absorption in the Recruitment Rules. By no yardstick, is it possible for the Tribunal to find justification in a proposal, which is clearly not covered by the Recruitment Rules. As elaborated hereinbefore, this is the uniform policy held in the various judgments cited above of Honble Apex Court, Honble High Court of Delhi and the Tribunal also. We do not find any ground nor any justification for making any departure from that position.
7. The official respondents have filed their counter affidavit wherein it is stated that it was as early as in the year 2008 that a decision had been taken by the respondent organization-NHRC to seek the willingness of deputationists, who had gained experience working in the Commission, for absorption after due assessment by a Selection Committee. Accordingly, the private respondent has been absorbed. There is no illegality involved in the transaction. In the second place, in the recruitment rules approved by the respondent organization on 28.03.2011, though there is no provision for absorption in the grade of Accountant but the decision to absorb the private respondent had been taken by the Selection Committee in 2008 much before finalization of the recruitment rules. However, the formalities of absorption could not be completed on account of non-availability of No Objection Certificate (hereinafter referred to as NOC) from his parent department. Though the deputation term of the private respondent came to an end on 12.04.2010 on joining of Bal Krishan Shukla but before he could be relieved, the NOC was received from his department on 19.04.2010. In the third place, neither promotion nor absorption can be claimed as a matter of right as both depends on host of circumstances like provisions in recruitment rules, availability of vacancies, eligibility and fitness of candidates etc. and, as such, there is no question of violation of fundamental rights of the applicant. The fact that OA No.1134/2011 had been filed by the applicant before this Tribunal and was pending consideration, the order of absorption of the private respondent was issued subject to the outcome of the said OA. The official respondents further submit that the applicant would be considered for promotion on his turn, when the conditions so appear.
8. The private respondent has also filed his separate counter affidavit stating therein that prior to his absorption he had been holding an analogous post of Sub-Inspector (Ministerial) in the Border Security Force since 21.05.1999 and had already completed six years of regular service in the grade when he joined the respondent organization. The Selection Committee headed by the Secretary General of the respondent organization had considered and recommended his case for absorption on 13.09.2008, which was duly approved by the Chairperson, NHRC on 05.05.2009. However, it was found later that the parent department of the private respondent had not issued the NOC. There were others also who had been recommended for absorption and were indeed absorbed as and when they fulfilled the technical requirements. The private respondent in his counter affidavit has rebutted the argument that his absorption in the respondent organization had the effect of blocking the promotional avenues of the applicant. Since the private respondent had already worked for six years on an analogous post, he is fit and eligible to be promoted to the vacant post of Assistant Accounts Officer in the borrowing department which was required to be filled up by promotion. As soon as this promotion would take place, the grievance of the applicant would automatically be redressed. The private respondent further submitted that though the approval of his absorption had already been accorded in 2009 but the same was re-approved by the respondent organization on 01.03.2011 and he was advised vide communication dated 06.05.2011 to submit a technical resignation. Accordingly, he submitted his technical resignation, which was duly accepted. In para no. 4.23 of his counter affidavit, the private respondent submits vehemently that the post of Accountant did not have any recruitment rules and was being operated as per the model recruitment rules of DOP&T, which also contain provision of absorption. It has been further submitted that the action of getting the NOC was purely administrative and clerical by nature and it does not serve to vitiate the absorption of the private respondent in any way.
9. The applicant has filed a rejoinder to the counter affidavit strongly rebutting the arguments of the official respondents that the private respondent had been absorbed pursuant to the recommendations of the Selection Committee in the year 2008 whereas he was, in fact, absorbed subsequently w.e.f. 01.03.2011. To the contrary, the applicant submits that the selection process had been completed in the year 2008 and the case of the private respondent had been rejected for want of NOC from his parent department. The applicant has charged the respondent with manipulating the things by eyeing the promotion by the private respondent to the post of Assistant Accounts Officer, which has never been the subject matter before the Selection Committee, and since then the official respondents have been inventing the arguments in order to justify their outright illegal act. A further prejudice would be caused to the senior-most Accountant, who would have been considered against the single vacancy of Assistant Accounts Officer if the private respondent is promoted to that post, whose initial appointment was itself de hors the rules.
10. The Tribunal had called for the records of the case from the official respondents and has also examined the same. After having carefully examined the pleadings, documents adduced therewith, the submissions of the parties, we feel that the following facts in issue are germane to arrive at a satisfactory decision in this case:-
Whether the recruitment rules permitted filling up the vacant posts of Accountant by absorption?
Whether the absorption of the private respondent had taken place w.e.f. 13.10.2008 or 01.03.2011?
Whether the continuance of the private respondent beyond 12.04.2010 was against the guidelines and directives of the DOP&T?
What relief, if any, could be granted to the applicant?
11. In so far as the first of the issues is concerned, it is expedient to have a look at the rule position. The recruitment rules provide that there are two posts of Accountant in PB-2 (Rs.9300-34800/-) + Grade Pay Rs.4200/-. The method and mode of recruitment for the post of Accountant are provided as under:-
Method of recruitment whether by direct recruitment or by promotion or by deputation./transfer and percentage of the vacancies to be filled by various method In case of recruitment by promotion/deputation/ transfer, grades from which promotion/deputation/absorption to be made.
By promotion failing which by deputation failing which by re-employment failing which by short-term contract.
Promotion of Junior Accoun-tant with 8 years experience in the Accounts Department of National Human Rights Commission having under-gone the Cash & Accounts Course from ISTM.
Deputation of officers in the Central/State Govts. And other Statutory Autonomous bodies:-
(a) (i) holding analogous poss on regular basis or
(ii) With 8 years regular service in a post in the Pay Band and Grade Pay of Rs.5200-20200+Rs.2800/-.
Or
(iii) with 10 years regular service in pots in the Pay Band and Grade Pay of Rs.5200-20200+Rs.2400/- or equivalent; and
(b) Who under undergone training in cash and accounts work in the ISTM or equivalent and possesses three years experience of cash, accounts and budget work.
Reemployment/short-term contract of persons who have held analogous post on regular basis in the Central/State Govts. And other Statutory Autonomous Bodies.
The total period of short-term contract shall not exceed three years.
Desirable: (i) Diploma in Computer Application.
From the above Table, it is clear that there is no provision in the recruitment rules qua filling up the vacant post of Accountant by absorption. This position has also been admitted by the official respondents.
12. We now take up the arguments of the official respondents that in absence of any recruitment rules, they have filled up the vacant post of Accountant under the provisions of model recruitment rules. From the records, we find a copy of the model recruitment rules, which provide the following mode of recruitment:-
Method of recruitment whether by direct recruitment or by promotion or by deputation/transfer and percentage of the vacancies to be filled by various methods In case of recruitment by promotion/deputation/ transfer, grades from which promotion/deputation/ absorption to be made.
Any one or both of the following methods of recruitment according to requirement in each case:-
(i)Promotion failing which by transfer on deputation.
(ii) Transfer on deputation or transfer on deputation/transfer. Promotion (designation of the feeder post) with. Years regular service in the grade.
(To be omitted in promotion is one of the methods of recruitment).
Transfer on deputation/transfer A.(a) (i) Assistants of CSS holding the post on regular basis; or
(ii) UDCs of CSCS with 10 years regular service in the grade; and
(b) Who have undergone training in cash & Accounts work in the ISTM or equivalent and possess three years experience of cash, accounts and budget work; failing which, B. Officers under the Central Govt:
(a)(i) holding analogous posts on regular basis; or
(ii) with five years regular service in posts in the pay scale of Rs.1400-2300/2600 or equivalent; or
(iii) with ten years regular service in posts in the pay scale of Rs.1200-2040 or equivalent; and
(b) who have undergone training in cash and accounts work in the ISTM or equivalent and possess three years experience of cash, accounts and budget work, OR A pass in the SAS or equivalent examination conducted by any of the organized Accounts Department of the Central Government.
The departmental officers in the feeder category who are in the direct line of promotion shall not be eligible for consideration for appointment on deputation. Similarly, deputationists shall not be eligible for appointment by promotion.
(Period of deputation including period of deputation in another ex-cadre post held immediately preceding this appointment in the same or some other organization/ department of the Central Government shall ordinarily not to exceed three years. The maximum age limit for appointment by transfer on deputation/transfer shall be not exceeding 56 years as on the closing date of receipt of applications.).
The term transfer has been defined in para 3.12.4 of the Hand Book on Recruitment Rules of the DOP&T, which is reproduced hereunder:-
TRANSFER 3.12.4 Transfer may be kept as a method of recruitment when it is possible to get the services of suitable officers having the requisite qualifications and experience within the Central Govt. Deptts. and State Govts. Short-term is also a form of deputation and this applies to officers from non-Govt. bodies, e.g. Universities recognized Research Institutions, Public Undertakings etc. for teaching, research, scientific and technical posts. This method may be included in the rules if it is considered desirable that the above noted non-Govt. bodies are also tapped. In the case of isolated posts, it will be desirable to keep the method of recruitment of transfer on deputation/ short-term contract, as, otherwise, the incumbents of the lower posts, if directly recruited, will not have any avenue of promotion. In fact, it may be worthwhile to bring such posts into an organized cadre/service rather than fill them by deputation from outside for limited periods from time to time. Care should always be taken to ensure that the officers holding posts, other than in an organized Service, have enough prospects for advancement in their own line. For this purpose, the administrative Ministry/Department should bring together all such isolated posts requiring similar educational qualifications, experience involving similar functions etc. into different groups to provide enough channels of promotion. The term transfer on deputation has been defined in para 3.12.5, which reads as under:-
TRANSFER AND TRANSFER ON DEPUTATION 3.12.5 Transfer and deputation are not synonymous and there is a substantial difference between transfer and deputation. Under the provision transfer, the officer who will come, may be permanently absorbed in the post/ grade. Such a transfer can be effected only in cases of officers from the Central/ State Governments. Under deputation including short-term contract, an officer from outside can come for a limited period, by the end of which he will have to revert to his parent cadre.
13. We also take cognizance of the fact that in the year 2008 a policy decision had been taken to absorb suitable persons brought on deputation permanently with the respondent organization as a consequence of which a number of persons were decided to be absorbed vide the decision of the Selection Committee taken in its meeting held on 13.10.2008 headed by the Secretary General of the respondent organization.
14. We now take up the second of the issues as to whether the absorption of the private respondent had taken place w.e.f. 13.10.2008 or 01.03.2011. As we have already taken a note of the arguments that the absorption of the private respondent had taken place in the year 2008 and it was only the formalities related to the absorption that led to issuance of the letter of absorption vide OM dated 01.03.2011. In this regard, we take a note of the recommendations of the Selection Committee in its meeting dated 13.10.2008, which reads as under:-
It was observed that of the 02 sanctioned posts, 01 was vacant due to non-availability of eligible candidate for deputation. It is also pertinent to mention that Shri Gosain is on deputation in the Commission in an analogous grade with more than 09 years of regular service. Therefore, in case he is recommended for absorption, he would be due for consideration for promotion as AAO and if he is assessed fit, he may be considered in due course for promotion as per his seniority and as proposed in the RRs, thereby keeping the post of Accountant vacant for considering promotion of the Junior Accountants of the Commission. The fact that the 03 Junior Accountants forming the feeder grade had completed more than 08 years of regular service as Jr. Accountant, therefore, absorption of Shri S.S. Gosain needed to be considered accordingly.
15. It is also an admitted fact that the private respondent received the NOC from his parent organization as provided in the attachment Chart appended to Annexure A-6. This would be evident from the office Note dated 12.12.2012, which reads as under:-
2. Shri S.S. Gosain, Sub-Inspector of Border Security Force is presently working as Accountant on deputation basis in the Commission w.e.f. 22.08.2005 and his extended tenure is completing on 20.02.2010. He is completing 4= years deputation tenure in NHRC.
3. During September 2008, the Commission had given one time last opportunity for absorption to the deputationists in various categories of posts including Accountants. Shri S.S. Gosain has also submitted his willingness for permanent absorption in the grade of Accountant and attended an interview on 13.10.2008. A copy of Minutes of the Meeting of Selection Committee for considering cases of permanent absorption held on 13th Oct., 2008 is placed opposite for perusal (flag A). Earlier, NOC for permanent absorption was sought from the parent department BSF HQ., New Delhi and the department vide their letter dated 08.12.2008 (flag B) has not issued No Objection Certificate to Sh. S.S. Gosain, Accountant stating that in the light of existing rules of BSF it could not be acceded to by the competent authority. In his application, Shri S.S. Gosain has stated that BSF authorities had not issued NOC since he had not completed 20 years of service at that time. Now he has completed 20 years of service on 15.1.2010 and, therefore, requested this office to approach his parent department for issue of NOC for his permanent absorption in NHRC.
4. In this connection, it is pertinent to mention here that there is no RR existing for the post of Accountant in NHRC. However, recruitment for the post of Accountant on deputation basis in NHRC are being done on the basis of model RR based on the RR of O/o Controller General of Accounts, Ministry of Finance (copy enclosed at flag C). As per proposed RR (flag D) the post of Accountant is to be filled on By promotion failing which by deputation failing both by re-employment/contract, which is yet to be approved by MHA. As per proposed RR for Accountant, Junior Accountants with 8 years experience in the Accounts Department in NHRC with a B.Com degree and having undergone Cash & Accounts Course from ISTM have been made eligible for considering their promotion to the rank of Accountant. At present 3 regular Junior Accountants are working in the Commission, however, they are not fulfilling the requisite qualification of both B.Com degree and training in Cash & Accounts from ISTM as per proposed RR for Accountant. It is indeed borne out from the official records that absorption of the private respondent had been recommended by the Selection Committee and approved by the competent authority on 05.06.2009. However, in view of the categorical refusal by the lending organization to grant NOC beyond 20.08.2009, the absorption cannot be said to have taken place in the year 2008. In this regard, a note of the US(Establishment) dated 18.03.2010 read as under:-
Vide their letter dt. 24.08.09, the Directorate General Border Security Force (the parent organization of Shri S.S. Gosain), it had been categorically intimated to this office that he cannot be granted extension beyond 20.08.2009 i.e. his 04th year as it was not in keeping with extant BSF rules on deputation. However, subsequent to our plea vide D.O. dt. 17.11.2009 to BSF to reconsider the matter to help out NHRC as he could not be relieved without finding a substitute. BSF extended his deputation period by six months upto 20.02.2010.
2. Now, NHRC has already selected two persons for filling up two posts of Accountant one already vacant and another anticipated vacancy which is expected to arise with release of Shri S.S. Gosain, who must now necessarily be released in accordance with the wishes of his parent organization.
16. The normal rule is that a panel is kept open for selection for a period of one year but in certain exceptional cases it can be extended. However, in the instant case, the absorption can only take place with effect from a formal order which has been issued vide OM dated 18.05.2011. It is also necessary to look at the contents of the order which gives effect to the absorption from 01.03.2011. The same reads thus:
Consequent upon approval of the Chairperson and subsequent acceptance of his technical resignation by the competent authority in his parent cadre (Border Security Force) w.e.f. 1st March, 2011 as conveyed vide their order No.I-22045/24/01-Staff/BSF/9120-30 dated 13/5/2011, Shri Satender Singh Gosain is hereby absorbed in the Commission in the grade of Accountant in PB-2 (Rs. 9300-34800) + Grade Pay Rs.4200/- with effect from the afternoon of 1st March 2011 subject to the orders, if any, passed by the Central Administrative Tribunal on the OA No.1134/2011.
17. From the above discussion, we are of the view that it has been the effort of the respondent organization to justify that the absorption has taken place in the year 2008. Normally, the absorption takes place with effect from the issuance of the order and not from a back date. However, even we were to take the order dated 18.05.2011 to be correct, still pre-dating has been made only from 01.03.2011 and not from the year 2009. This pre-dating has been done as the competent authority in the parent cadre has accepted the technical resignation of the private respondent with effect from that date only.
18. Now we take up the third issue that whether the continuance of the private respondent beyond 12.04.2010, the date on which his deputation expired, was against the guidelines and directives of the DOP&T. In this regard, the first reference made is the OM of the DOP&T dated 29.11.2006, which provides as under:-
(i) The terms and conditions of deputation shall clearly lay down not only period of deputation as per the Recruitment Rules for the post or as approved by the competent authority but also the date of relieving of the deputationist. No further orders for relieving the officer will be necessary.
The deputationists officer including those who are presently on deputation would be deemed to have been relieved on the date of expiry of the deputation period unless the competent authority has with requisite approvals, extended the period of deputation, in writing, prior to the date of its expiry. It will be the responsibility of the immediate superior officer to ensure that the deputationist does not overstay. In cases where offices are on deputation on the date of issue of these orders and the normal tenures are getting over in a period of six months, the concerned offices/organizations may be allowed an extension of not more than one month, on a case to case basis with the approval of the DOPT.
That in the event of the officer overstaying for any reason whatsoever, he is liable to disciplinary action and other adverse civil/service consequences which would include that the period of unauthorized overstay shall not count for service for the purpose of pension and that any increment due during the period of unauthorized overstay shall be deferred, with cumulative effect, till the date on which the officer rejoins his parent cadre.
19. The DOP&T has further reiterated that it shall be the responsibility of the immediate superior officer to ensure that deputationist does not overstay and in the event of his overstaying, he shall render himself liable for disciplinary action and other adverse civil/service consequences including the period of unauthorized overstay not being counted for service for the purpose of pensionary and other benefits. In this regard, it is expedient to extract the relevant portion of the Circular, which reads as under:-
Subject: Overstay while on deputation.
Undersigned is directed to refer to tis Departments OM of even number dated 17th June, 2010 and to say that as per existing instructions no extension in deputation beyond the fifth years is allowed. Further, as per the OM No.14017/30/2006-Estt(RR) dated the 29th November, 2006, the deputationist officer is deemed to have been relieved on the date of expiry of the deputation period unless the competent authority has with requisite approvals, extended the period of deputation, in writing, prior to the date of its expiry. It is observed that despite these clear instructions, proposals for regularization of overstay of officers on deputation beyond the five year period continue to be received in the Department. It is reiterated that it will be the responsibility of the immediate superior officer to ensure that the deputationist does not overstay. In the event of the officer overstaying for any reason whatsoever, he/she is liable to disciplinary action and other adverse civil/service consequences which would include the period of unauthorised overstay not being counted for service for the purpose of pension and that any increment due during the period of unauthorized overstay shall be deferred, with cumulative effect, till the date on which the officer rejoins his parent cadre.
2. All Ministries/Departments may please note that henceforth no ex-post facto approval for regularization of overstay on deputation would be allowed.
20. It is quite evident from the above narration of events and the guidelines issued by the DOP&T that five years deputation tenure of the private respondent came to an end on 12.04.2010 and thereafter his continuance was illegal. It also appears from the record that the respondent no.1 had already taken protection of getting one Bal Krishan Shukla as his replacement on deputation. It is also to be noted here that the applicant is a Junior Accountant which constitutes the feeder grade for promotion to the post of Accountant. It is well acknowledged that the Junior Accountants in the feeder grade including the applicant have completed over 8 years of service and are eligible for promotion to the next rank of Accountant. The applicant has filed representations to this effect to the competent authority, for instance, on 21.01.2011. Of course, it needs hardly be stated that the applicant despite his eligibility has only a right to be considered for promotion and not a right to promotion itself. We find from perusal of the records and from the facts, as stated above, that the absorption of the private respondent has served to block the right of consideration of the applicant for promotion to the post of Accountant. The fact that the private respondent on his absorption has chance of getting promoted to the rank of Assistant Accounts Officer does not mitigate the situation to any extent.
21. One must consider that the respondent organization is not an ordinary department of the Central Government. It is the National Human Rights Commission entrusted with the responsibility for safeguarding the human rights of the entire Nation having at least 120 crores of population. It cannot be said that the government employees have been excluded from the purview of the National Human Rights Commission. Safeguarding the rights here, we are of the firm opinion, would include compliance to the government instructions issued from time to time unless the respondents were to find that they are in derogation of human rights. In view thereof, we are constrained to observe that the respondent no.4 could not have been allowed to continue on deputation beyond the period prescribed by the DOP&T vide OM dated 29.11.2006 only to facilitate his absorption, as it amounts to giving a relief which was not admissible to him otherwise. We also observe that the affidavit sworn by the respondents states that there was only a minor difference between getting the NOC and completion of deputation tenure of the private respondent. Deputation tenure of the private respondent expired on 12.04.2010 while the NOC was received on 19.04.2010 before he could be relieved.
22. From perusal of the records, we do not find any order directing the relieving of the private respondent from the date of completion of his deputation tenure. Instead, we find that there is a sustained effort to continue him on deputation despite the fact that office had repeatedly pointed towards this lapse. In this regard, the relevant portion of the Office Note dated 31.05.2010 of the Secretary General is reproduced as under:-
(a) That the NOC from the parent department of Shri Gosain has been received at an extremely late stage when the processing of absorption cases as a one time exercise has already been closed. The NOC for absorption of Shri Gosain has been received from his parent department not on request by NHRC but on the basis of his personal request.
(b) The absorption case of Shri Gosain, Accountant cannot be considered as promotion or absorption is not possible in the absence of Recruitment Rules to the post. A similar case of Shri U.N. Sarkar, AIO could not be considered for want of notified Recruitment Rules for the post.
(c) There are a number of requests for absorption from various categories of employees pending. They cannot be processed unless a fresh exercise for absorption is undertaken on the basis of a fresh decision by the Commission. The names of employees whose applications are pending for consideration are S/Shri Ashok Kumar, Assistant, Rajiv Yadav, Assistant, Smt. Yadu Shukla, Assistant, Shri R.N. Tyagi, P.S. and Shri U.N.Sarkar, AIO.
(d) There are Junior Accountants in the feeder grade who have completed over eight years of service and are eligible for promotion and absorption of Shri Gosain would block their promotion chances. These Junior Accountants have already represented against such absorption.
(e) There are instances of Junior Accountants not having been allowed to go on deputation outside and therefore blocking the promotion of such employees would be unfair.
(f) NOCs in respect of Smt. Yadu Shukla and Shri Rajiv Yadav have also been received but they have not been absorbed and there were other cases with NOCs whose absorption by the then committee was not recommended.
(g) There are only two posts of Accountants and both are filled up and drawing of salary of a third Accountant without a sanctioned post is impropriety/violation of rules.
23. We also find that there have been efforts to justify continuance of deputation of the private respondent and also to castigate the office for raising this issue as would be evident from the note of the Secretary General dated 31.05.2010, which reads as under:-
The Establishment Section has been mysterious in processing the issuance of appointment orders on deputation simultaneously with the forwarding of a letter to the BSF for NOC to absorb Shri Gosain. The request for absorption addressed to the Secretary General where specific directions were given for processing it on the file were available with the Establishment Section when the cases for appointment on deputation against those pots were processed and put up without reference to the pending case of absorption. The Section should have sought an order on the representation of Shri Gosain before processing and putting up the case of appointment on deputation. As far the question of drawing salary for the third post the same may be drawn against a vacant sanctioned post till such time a final order is issued on the representation for absorption by Shri Gosain.
Having forwarded the application dated 12.3.2010 requesting for NOC dated 12.3.2010 to the BSF and having received the same, we have to process the case of absorption of Shri S.S. Gosain on the basis of recommendation of the Selection Committee as approved by the Chairperson on 5.5.2009. Please expedite action accordingly. Further, a government servant while wielding a pen is expected to put the rule position and write according to his conscience. He cannot be faulted for doing so as this is the least which is expected from him. Thus, the very continuance of respondent no.4 being contrary to the provisions and directions issued by the Government of India through various OMs referred to above, was illegal over and above the period which he spent after expiry of the period of deputation, and as such no benefit could be claimed by him because of his such illegal continuance beyond the permissible period.
24. Now, we take up the issue as to what relief could be granted to the applicant, if any. We take note of the fact that the above three issues have been consistently answered in favour of the applicant. We also take a note of the fact that there was a strong urge propelling the private respondent towards absorption irrespective of the rule position or the directives of the Government and in their utter violation. We have also noted that the official respondents were aware, from the very beginning, of the rule position that was to have been put in effect. The recommendation for absorption by the Selection Committee made on 13.10.2008 was not given effect to for want of refusal of the parent department of the private respondent and the same cannot, by any stretch of imagination, extend to 01.03.2011.
25. In view of the above discussion, we have no hesitation to allow the instant Original Application, which we order accordingly, with the following directives:-
The impugned order dated 18.05.2011 is quashed and set aside.
The official respondents are directed to consider the claim of the applicant for promotion to the post of Accountant as per the rule position within a period of three months from the date of receipt of a certified copy of this order.
There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/