Central Administrative Tribunal - Delhi
Rajni Sharma vs Municipal Corporation Of Delhi on 20 October, 2009
Central Administrative Tribunal Principal Bench OA No.1141/2009 New Delhi, this the 20th day of October, 2009 Honble Mr. Shanker Raju, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) Rajni Sharma W/o Shri Vishwanath Sharma R/o 2-3, Clock Tower, Schedule B, Presidents Estate, New Delhi 110 004. . Applicant. (By Advocate : Shri M. K. Bhardwaj) Versus 1. Municipal Corporation of Delhi through its Commissioner Town Hall, Delhi. 2. Deputy Education Officer (S. P. Zone) Municipal Corporation of Delhi, Near Sardar Police Station, Delhi. 3. Assistant Education Officer Municipal Corporation of Delhi, Nigam Bhawan, Kashmiri Gate, Delhi. Respondents. (By Advocate : Sh. Praveen Swarup) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Mrs. Rajni Sharma, the Applicant herein, by this Original Application has challenged the Office Order dated 20.08.2008 (Page-12), by which she was directed to be relieved from her duties on 31.03.2009 (afternoon). She has come up before this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 and has prayed for quashing and setting aside the said order with request to direct the Respondents to absorb the Applicant in service of the Respondent-MCD at par with Shri G. S. Matharoo absorbed in the order dated 3.11.2003.
2. On 29.04.2009, while issuing notice to the Respondents it was directed by this Tribunal not to repatriate the Applicant to her parent cadre till the next date of hearing. Since then, the interim relief so granted has been continuing. The reliefs prayed for by the Applicant are as follows :-
(a) Quash and set aside the impugned order dated 20.8.2008 (Annexure-A) to the extent of the Applicant has been directed to be relieved from her duties w.e.f. 31.3.2009.
Direct the Respondent MCD to sympathetically consider the case of the Applicant for absorption in the Municipal Corporation at par with other cases where persons have been absorbed, such as Shri G. S. Matharoo by the Order dated 03.11.2003.
Pass such or further order as this Honble Tribunal may deem fit and proper in the facts of the present case.
3. The factual matrix of the case would reveal that the Applicant was appointed as Assistant Teacher with the School Education Department of Madhya Pradesh Government and was posted on 2.09.1995 to the Primary School Baroda Kalan, District Murena. Since the Applicants husband was employed in the Presidents Secretariat, New Delhi, the Applicant submitted an application to the Government of Madhya Pradesh seeking to forward her application for appointment on deputation basis as a primary teacher with the Municipal Corporation of Delhi (MCD). At that point of time several vacancies for the said post of Primary Teacher were available in the Schools run by the MCD. Her request was forwarded by the Madhya Pradesh Government with No Objection Certificate to MCD which was considered by MCD and approved her request to take her on deputation to MCD as a Primary Teacher for a period of 2 years and the terms and conditions of her deputation would be settled later on. It is the Applicants case that even after 12 years of deputation the said terms and conditions have not been settled by the MCD. On 21.4.1997, her services were placed at the disposal of the MCD for a period of 2 years and thereafter periodic extension of deputation for 8 times has been granted to her and she has been continuing as Teacher in the MCD on deputation basis. On 28.11.2001 (Page-28) , she submitted a representation to the Respondent No.3 requesting for the finalization of the terms of her deputation. On 7.03.2002 (Page-29), the Government of Madhya Pradesh conveyed its No Objection to the absorption of the Applicant with the MCD. In the meantime, since the MCD was not taking appropriate decision she filed a Writ Petition (CWP No.2894/2002) before the Honble High Court of Delhi seeking inter alia to quash the order of Respondent No.3 dated 8.11.2001 whereby she was ordered to be relieved from her deputation on 8.5.2002. The Honble High Court disposed of the said writ petition with a direction to the Respondents-MCD to consider her request sympathetically for further appropriate extension of deputation. Consequently, Madhya Pradesh Government forwarded its No Objection to MCD for extension of her deputation with the MCD. The MCD on its part after considering her request passed an order dated 20.08.2008 extending her deputation till 31.03.2009 and simultaneously directing her to be relieved of her duties on 31.3.2009 (Afternoon). Subsequently, she submitted repeated representations (27.11.2007 and 26.02.2008) for absorption in the MCD but no order had been passed so far. Thereafter, the Applicant moved the Honble High Court of Delhi by means of CM No.4655/2009 in WP (C) No.2894/2002 which were withdrawn by the Applicant with a liberty to take appropriate remedy available to the Applicant. Thereafter this case has come before us in this OA to adjudicate the dispute whether the Applicant is entitled to be absorbed in the MCD as a Teacher?
4. Shri M. K. Bhardwaj, learned Counsel representing the Applicant, contended that the Applicant came on deputation to Delhi and had been for a long time in MCD, since her husband had been working in the Presidents Secretariat in a non transferable post. Therefore, the Applicants continuance at Delhi would be extremely necessary. He also submits that the Government of Madhya Pradesh has no objection for the Applicants absorption in MCD. It is submitted that when the Applicant was appointed, the Respondents vide their order dated 19.03.1997 relaxed the provisions of Recruitment Rules, as a result of which, she came under deputation to the MCD. Shri M. K. Bhardwaj submits that there has been relaxation in case of one Mr. G. S. Matharoo, Under Secretary, Ministry of Home Affairs, brought on deputation to MCD vide Office Order dated 26.09.2001 (Page-80) and absorbed in the MCD on 3.11.2003 (Page 81). The Applicant has applied for absorption in MCD and her letters/representations have ignored while passing the order to relinquish from the deputation. The Applicant deserves to be given similar treatment as Shri Matharoo and absorbed as a Teacher in the MCD. Therefore, not accepting the request of the Applicant for absorption in MCD is violative of Article 14 and 16 of the Constitution of India since action of the Respondents is discriminatory and arbitrary in nature.
5. On the other hand, Shri Praveen Swarup, learned Counsel representing the Respondents very strongly opposed the contentions raised by Shri Bhardwaj and informed that the Applicant had been continuing purely on deputation basis. She has not challenged her relieving order dated 31.3.2009. Even after 31.3.2009, she did not submit any request for further extension of her deputation and she concealed the fact of her affidavit dated 25.6.2002 (Annexure-R1) that she would not file any application for extension of her deputation after 31.3.2003. There is no provision of deputation or absorption in the Recruitment Rules of MCD for the post of Primary School Teachers in MCD. The case of Mr. G. S. Matharoo who was absorbed in the MCD is a matter of inquiry and, therefore, it is an admitted fact on behalf of the Respondents that it was an illegality committed by the Respondent-MCD. However, similar illegality cannot be committed by the Respondents by absorbing the Applicant in MCD where the Recruitment Rules do not provide such absorption/deputation. Shri Swaroop submitted that the OA deserved to be dismissed.
6. We have considered the rival contentions and the pleadings. The controversy in the present case is in a very narrow compass, namely whether the Applicant is eligible to be absorbed or continued on deputation in the Respondent-MCD?
7. The undisputedly admitted facts are that ; (i) the Applicant belongs to the Government of Madhya Pradesh as a Primary Teacher appointed in 1995. (ii) She has been on deputation from 9.5.1997 till 31.3.2009. (iii) Presently she has been continuing on the basis of the interim stay granted by this Tribunal. (iv) It is also admitted fact that there is no provision for deputation/absorption of Teachers in Primary Schools of MCD in the Recruitment Rules. (v) It is also admitted that she was taken on deputation purely on humanitarian ground in the year 1997 when large number of vacancies were there in the MCD. (vi) The Counsel for Respondent informed during the arguments that every year the number of posts were being filled up by the MCD and, therefore, there had been no dearth of hands to manage the primary schools in MCD.
8. We find that MCD has granted the Applicant extension of her initial deputation from 9.5.1997 for 9 times and the last extension was on 20.8.2008 up to 31.3.2009. We consider it necessary for proper adjudication to compile below the same :
1. Initial deputation 21.4.1997 2 years from MP Government (9.5.1997 to 8.5.1999)
2. Extension of deputation 15.2.1999 2 years by MP Government (9.5.1999 to 8.5.2001)
3. Extension of her deputation 22.6.2001 1 year by MP Government (9.5.2001 to 8.5.2002)
4. Extension of her deputation 26.6.2002 Less than a year was granted by MCD with (9.5.2002 to 31.3.2003) the condition that she Would not make further request for extension.
5. MCD granted extension 27.3.2003 1 year to her and the deputation (31.3.2003 to 31.3.2004) would be relinquished on 31.3.2004.
6. MCD granted extension of 8.4.2004 1 year her deputation with the (31.3.2004 to 31.3.2005) condition that the deputation would be relinquished on 31.3.2005.
7. Another extension was 31.8.2005 1 year granted by MCD to her with (31.3.2005 to 31.6.2006) similar condition.
8. Another extension was 31.4.2006 1 year granted by MCD to her with (31.3.2006 to 31.3.2007) similar condition.
9. Another extension was 10.4.2007 1 year granted by MCD to her with (31.3.2007 to 31.3.2008) similar condition.
10. Further extension granted 20.8.2008 up to 31.3.2009 by MCD
9. We also note that, it is not that she has come to the judicial fora for the first time, on the other hand, as already stated within, the Applicant filed a Writ Petition (CWP No.2849/2002) before Honble High Court of Delhi which decided on 8.5.2002. It is noted that Honble High Court has taken note of her grounds where she has stated about both extension of deputation and permanent absorption in MCD, and cited OM dated 12.6.1997 of the Government of India (DOP&T) to submit that husband and wife should be posted at the same station till the Children are 10 years of age and her child was 5 years of age in 2002. Though the applicability of the said OM for MCD was not accepted by the Honble High Court and assed the following judgment :-
Taking into consideration the aforesaid facts and circumstances I am of the considered view that there is no right in the petitioner to seek in such absorption or continuation of her deputation.
There is, however, no doubt that though the office memorandum dated 12.6.97 does not apply to the petitioner, the petitioners younger child is 5 years of age. Further, the academic session in Delhi has already started from 1.4.2002. Taking into consideration these facts I consider it appropriate to direct the respondents to consider the case of the petitioner sympathetically for further appropriate extension of deputation. The decision be taken within one month from today and till such decision is taken the order dated 29.4.2002 shall not be given effect to.
Writ petition is disposed of in the aforesaid terms.
10. We find that her deputation is de hors the Recruitment Rules of MCD and continuance for more than 12 years and now demand of absorption must come to a logical end. In this context, our view is fortified by the decision of the Honble Supreme Court in Union of India Vs. Ramakrishnan [2005 STPL (LE) 34999 SC] which stipulates that ordinarily a deputationist has no legal right to continue in the post and less to say that he has any right to be absorbed in a post. If a tenure of deputationist is stipulated it is not legally correct to revert the deputationist prematurely. 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 mala fide. An action taken in a post haste manner also indicates malice.
11. This is not a case of the term/tenure of deputation being curtailed. On the other hand, since April 1997, over more than 12 years, so many extensions have been granted to the Applicant in order to allow her to continue in Delhi to be with her husband who is working in the President Secretariat and the child who is about 12 years of age. It is well settled legal position that the deputationist cannot be absorbed de hors the Recruitment Rules/Regulations. The Respondents have very clearly demonstrated that MCD does not have any Rules/Regulations or provisions by which she can be absorbed as a Primary Teacher in MCD. We find that the case of Shri Matharoo raised by the counsel for Applicant to claim the similar treatment for the Applicant does not hold good since the Respondents very unambiguously mentioned that the issue of his deputation and subsequent absorption had now been a controversial matter which was being enquired into by the competent authorities. The illegality committed by absorbing a deputationist, cannot be cited for similar treatment in the case of the Applicant. This will amount to negative equality, which is not protected by the Constitution. We are, therefore, of the considered opinion that there cannot be any parity on illegality nor can we grant negative equality to the Applicant for continuance of deputation and absorption the action of the Respondent-MCD to relinquish her, after her normal period of deputation as 31.3.2009 is valid in law and not violative of Article 14 and 16 of the Constitution of India. Therefore, the Applicants prayer for continuance of deputation and absorption in MCD is not admissible.
12. Since we do not agree to the Applicants prayers in the MCD, it is open now to the Respondent-MCD to grant her reasonable time to get herself relieved from MCD and repatriated to her parent department in Madhya Pradesh Government.
13. In view of the total facts and circumstances of the case and settled legal position, the OA being devoid of merits is dismissed with the directions to MCD as per Paragraph 11 within, leaving the parties to bear their own costs. The interim stay granted earlier is vacated.
(Dr. Ramesh Chandra Panda) (Shanker Raju)
Member (A) Member (J)
/pj/