Central Administrative Tribunal - Delhi
Dr. S.C. Bansal S/O Sh. Kunwar Pal Gupta vs Union Of India (Uoi), Govt. Of India, ... on 7 May, 2008
ORDER Mrs. Chitra Chopra, Member (A)
1. By this O.A., applicant has sought quashing of the order dated 19.04.2007 repatriating him to his parent department. Applicant has also prayed for direction to permanently absorb him on the post of Deputy Director (Entomology) in the Directorate of Plant Protection Quarantine & Storage under the Department of Agriculture and Cooperation and further direct the respondents to extend his deputation period till the decision in the present case is taken.
2. Factual background, as briefly recapitulated, is as under:
Applicant was holding the post of Assistant Director (S&R) in the pay scale of Rs.8000-13500/- in the Department of Food & Civil Supplies. On 29.09.2000, on the recommendation of UPSC, he joined the post of Deputy Director (Entomology) on deputation in the Directorate of Plant Protection Quarantine and Storage (PPQ&S) under the Department of Agriculture and Cooperation from the Storage & Research Division of Department of Food and Public Distribution, Government of India.
17. Applicant was granted extension on deputation basis on year to year basis upto September 2007. On 12.07.2001 (Annexure A-2), applicant made a representation for his permanent absorption on the post on which he was officiating on deputation. Although his application was duly forwarded and recommended, it remained pending. In view of recommendations made in the 7th report of the Expenditure Reforms Commission (ERC) for winding up of the Save Grain Campaign (SGC) offices and the Indian Grain Storage Management and Research Institutes (IGMRI) of the Storage and Research Division of the Department of Food and Public Distribution, it was decided to implement the aforesaid recommendations in the phased manner. Recently, whole of the Save Grain set up and IGMRI, Guwahati, Jabalpur and Udaipur have been wound up. It was in this context that applicant sought permanent absorption in the Department of Agriculture and Cooperation with NOC having been given by parent department, approval of DOP&T and UPSC was sought.
It is submitted that there are two disciplines, viz. Plant Pathology (PP) and Entomology (Entomology) for the post of Deputy Director in the Directorate of PPQS. Both the disciplines have the same level of educational qualification and experience and same pay scale. While the Recruitment Rules for the post of Deputy Director (Plant Pathology) have been revised since 08.02.2002 with the provision of deputation including short term contract/absorption, the Recruitment Rules for the post of Deputy Director (Entomology) have not yet been revised and do not have provision of deputation/absorption. However, keeping in view the onset of weeding out process in the parent department, DOP&T agreed to the proposal for absorption and recommended it to UPSC. Vide communication dated 14.06.2006 (Annexure A-7), UPSC sought further clarification in the matter. Considerable correspondence has been made between the Ministry of Consumer Affairs, Food & Public Distribution, Ministry of Agriculture, DOP&T and UPSC in the matter. However, UPSC vide letter dated 19.04.2007 conveyed disagreement of the Commission and advised the Department to repatriate the applicant from deputation with immediate effect.
Applicant then filed the present Original Application and his repatriation has been stayed vide Tribunal's order dated 03.10.2007.
3. Applicant has sought the following reliefs:
(a) Quash and set aside the order dated 19.04.2007 passed by Respondent No. 2;
(b) Respondents be directed to permanently absorb him to the post of Deputy Director (Entomology) in the Directorate of PPQS under Department of Agriculture and Cooperation; and
(c) In case of disagreement with the recommendation of the UPSC, the respondent No. 1 may be directed to put forth the proposal for his absorption to the post of Deputy Director (Entomology) to the Establishment Officer & Additional Secretary for consideration of the Appointment Committee of Cabinet in accordance with the instructions and guidelines contained in the DOPT OM No. 39023/02/2006 Estt.-B dated 05.12.2006.
(d) Direct the respondents to extend his deputation period till the decision of the OA.
4. The main ground for relief sought by the applicant are:
(i) As the post against which applicant is seeking absorption is earmarked for being filled on deputation and not against promotion quota vacancies, applicant will be placed on junior most position and hence the question of affecting the feeder grade officer's promotion prospects does not arise.
(ii) The Save Grain Campaign set up in parent department of the applicant has been ordered to be closed. As such, some of the offices have already been closed and surplus employees are being adjusted/deployed elsewhere. Further, the vacant posts stand abolished.
(iii) Due to the abnormal situation, DOPT agreed for relaxation of the basic structure of Recruitment Rules in his case.
5. In the counter-affidavit filed by Union Public Service Commission, while detailing the factual position, it is stated that applicant, who had been recommended by the U.P.S.C. in the wake of Selection Committee meeting was held on 09.12.1999, was appointed to the post of Dy. Director (Entomology) on deputation basis on 29.09.2000 for a period of 3 years. His deputation period as stated by the applicant was extended from time to time and last extension was upto 28.09.2007.
U.P.S.C. have indicated the position of the Recruitment Rules as follows:
66.67% promotion failing which by deputation (including short-term contract):
33.33% deputation (including short-term contract) failing which by direct recruitment.
After protracted correspondence with the department, the proposal of the applicant for absorption was rejected by the UPSC on the following grounds:
(i) There is no provision of absorption in the Recruitment Rules either in the original or amended and as such the feeder grade officers are bound to be adversely affected even if applicant on his absorption, takes away the vacancy available for deputationist. The applicant was recommended for appointment to the said post purely on deputation basis as per provisions of the Recruitment Rules.
(ii) His case for absorption is not at par with the case of Sh. S.S. Negi as claimed by applicant and by Department of Agriculture & Cooperation, as no feeder grade officer was affected with the absorption of Sh. S.S. Negi, who had retired on superannuation before any feeder grade officer would have completed the eligibility service for consideration for promotion. This is not the situation in the case of applicant.
(iii) As the parent Department of applicant was closed, the surplus staff/employees were being adjusted/deployed elsewhere and applicant would have also been deployed somewhere. Department of Food had intimated that 13 posts of Assistant Director were available for adjustment/deployment. Since Dr. Bansal (applicant) is a regular Assistant Director under the Department of Food, he could have been adjusted in Department of Food.
(iv) Consultation with Commission is necessary not only for relaxing any provision of the Recruitment Rules but also for considering suitability of an officer for absorption on the basis of such relaxation. Therefore, the contention of the Department that the Commission has been approached only for according their administrative approval to the relaxation of the Recruitment Rules is not correct.
6. In the counter-affidavit filed on behalf of Respondent No. 1, Sh. R.N. Singh, learned Counsel has submitted that applicant who was a regular Assistant Director (S&R) of Department of Food and Public Distribution was on deputation as Dy. Director (Entomology) in the pay scale of Rs. 10,000-15,200/- in the Directorate of Plant Protection Quarantine and Storage, as per the provisions contained in the Recruitment Rules for the post of Deputy Director (Entomology) with the approval of UPSC since 29.09.2000, initially for a period of 3 years. The tenure of applicant was extended from time to time upto the 7th year after obtaining approval from the competent authority as per DOPT guidelines. The proposal for extension of deputation for the 8th year was referred to DOPT for approval after obtaining the Agriculture Ministry's approval. This was not agreed to by DOPT as also in view of the advice of U.P.S.C. contained in their letter dated 19.04.2007 and hence applicant was repatriated to his parent department vide DAC's letter dated 05.10.2007 with immediate effect. The deputation of applicant expired in September 2007 and he was repatriated to his parent Department vide Department of Agriculture & Cooperation letter dated 05.10.2007 with immediate effect.
It is further submitted that applicant has no enforceable right for absorption. Moreover, absorption/regularisation de-hors the Recruitment Rules has been deprecated by Hon'ble Apex Court in a catena of cases. As such, applicant has no right to continue on deputation beyond the period permissible under the extant rules and instructions.
In response to averments made in Para 4(c), it is submitted that as there is no provision for permanent absorption in the draft Recruitment rules, the request of the applicant cannot be entertained as it would be in violation of the Recruitment Rules. Respondents have also reiterated the contentions of the UPSC in regard to the point of absorption of Sh. Negi. It is also stated that comparison with Recruitment Rules of any other post would not affect the case of the applicant as he would have to be governed by the Recruitment Rules under which he was recruited. The argument of the applicant that his absorption will not affect the promotion of the feeder grade is also misconceived. If he is absorbed on the post of Deputy Director, he will be eligible for promotion to the post of Joint Director (Ento.), which in turn will hamper the promotion avenues of the feeder grade to the post of Joint Director.
It is finally submitted that UPSC being the final statutory authority for granting relaxation in Recruitment Rules and in view of the advice of the UPSC, proposal for absorption of applicant was rejected. It is also not possible to agree to any further extension beyond 8th year of deputation. It is also submitted that applicant has not exhausted administrative remedies available to him of making a representation to the department and hence the O.A. is liable to be dismissed. In the light of these submission, the repatriation order dated 05.10.2007 may be allowed to be implemented.
7. We have heard the counsel for both parties and perused the pleadings.
8. Learned Counsel for the applicant vehemently submitted that looking to the peculiar circumstances of the applicant's case, it would be extreme hardship to him if he is not allowed to continue further in the department and also absorb him in the department. This was opposed by learned Counsel for Respondent No. 1, who submitted that applicant has already been allowed to remain on deputation for 8 years and now wants permanent absorption, which is in violation of the rules and hence cannot be allowed.
9. Learned Counsel for R-2 (UPSC) Mrs. B. Rana reiterated the submissions made in the counter-affidavit filed on behalf of R-1. She highlighted that the U.P.S.C. as an Advisory Body set up under Article 315 of the Constitution have a right to interfere with all the selections made for appointments to the services/posts of the UPSC as falling under the purview are made strictly in accordance with the statutory Recruitment Rules and the relevant instructions issued by the Government of India from time to time. She recalled that the initial proposal for applicant's transfer on deputation was with the approval of the UPSC as it required that applicant's selection was by the UPSC and the proposal for his deputation was also on the recommendation of the UPSC as required under the Recruitment Rules. Although the DOPT had initially recommended the absorption based on the recommendation of the Administrative Ministry, the UPSC, vide letter dated 14.06.2006 (Annexure A-7) itself had sought clarification as to how a view has been taken that the absorption of applicant will not affect the promotion prospects of the feeder grade and also observed that there is no provision for absorption in the Rules. Learned Counsel also strongly submitted that the U.P.S.C. is bound to advise Departments/Ministries in accordance with the provisions of the Recruitment rules.
10. It would be relevant, at the outset, to advert to the said letter dated 19.04.2007 of the U.P.S.C. which is the basis of the grievance of the applicant. The letter, which is addressed to the Secretary, Ministry of Agriculture gives the following reasons for rejection of the request:
i) There is no provision of absorption in the RRS prevalent at the time of selection of Rs. S.C. Bansal on deputation basis. As regards the relaxation of RRS, the method of recruitment is one of the basic structures of the RRS which is not normally relaxed.
ii) The case of absorption of Dr. Bansal is not at par with the case of Shri S.S. Negi. While no feeder grade officer was affected adversely with the asorption of Shri S.S. Negi as he had retired on superannuation before any feeder grade officer would have completed the eligibility service for consideration for promotion, absorption of Dr. Bansal would place the feeder grade officers adversely.
2. The Deptt. may repatriate Dr. S.C. Bansal from deputation with immediate effect under intimation to this office.
11. Learned Counsel for respondent No. 1 Sh. R.N. Singh has cited the following cases:
(i) State of Punjab and Ors. v. Inder Singh and Ors.
(ii) State of Maharashtra v. Rajendra Jawanmal Gandhi
(iii) Shyam Singh v. UOI and Ors. (W.P.(C) No. 17343/2004 decided on 17.03.2006)
(iv) Udai Pal Singh v. U.O.I. and Ors. (OA-2250/2006 decided on 01.02.2007 P.B.)
(v) Indian Drugs and Pharmaceuticals Ltd. v. Workmen, Indian Drugs and Pharmaceuticals Ltd.
11. In State of Punjab and Ors. case, the issue was repatriation of deputation of Constable of Punjab Police from the Criminal Investigation Department of Punjab Police. It was held by Hon'ble Supreme Court that deputationist is liable to be repatriated to his parent cadre/department on expiry of period of deputation. It was held that:
Repatriation from deputation cannot be resisted by an employee on the grounds that he has continued on deputation for a long time during which he earned promotions on ex-cadre posts, and that on repatriation he will have to work in his parent cadre on a lower post. He cannot also claim permanent absorption on deputation post.
In Kunal Nanda's case, the appellant, who was a Member of CRPF and serving as Assistant Sub-Inspect in the parent department joined the C.B.I. on deputation in the same capacity. Applicant was not absorbed in the C.B.I. as he did not possess the requisite qualification. The appellant therein move the Central Administrative Tribunal and his claim was rejected by the Tribunal by holding that he had no vested right for absorption and that he being a Graduate cannot be absorbed under the Relevant Rules. Writ Petition filed against the order of the Tribunal was also rejected by the Hon'ble High Court of Delhi. Nonetheless, appellant went before the Hon'ble Supreme Court and while rejecting his claim, it was held that:
6. 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.
In Shyam Singh's case, where the petitioner was employee of BSF and was sent on deputation to I.B. for a period of 5 years. While relying on the ruling of Hon'ble Supreme Court in Inder Singh's and Kunal Nanda's cases, the Writ Petition was dismissed by holding that a deputationist cannot assert any right for absorption. In Para-14 of the said judgment, it has been held thus:
14. that policy decision was within the domain of the parent department and it was for the said parent department to decide whether it should agree to send out its employees and also lay down parameters and on the basis of administrative convenience decide whether or not to issue no objection certificate. It was further held that the basic principle underlying deputation was/is that a person can always be repatriated to his parent department to serve at his substantive post. A deputationist cannot assert any right to claim absorption. Absorption can only be claimed as a matter of right, if it is based upon any statutory rules or some provision having force of law.
Before this Tribunal also in Udai Pal Singh's case (supra), where the applicant was appointed as Constable in BSF and sought permanent absorption in I.B., his claim was rejected with the following directions:
Taking the totality of facts and circumstances of the case into consideration, we come to the conclusion that the applicant has not been able to establish his legal right for being absorbed in IB. If an organization takes a person on deputation, it does not create any obligation to absorb him de hors the Recruitment Rules.
12. Learned Counsel for respondent No. 1 Sh. R.N. Singh placed before us the list of Assistant Directors (Ento.). He also placed before us a copy of O.M. dated 08.03.2007, which is a record of meeting held in the UPSC on 19.01.2007 reiterating the proposal of the Ministry for absorption of Dr. Bansal in relaxation of the provisions of the Recruitment Rules. The letter, inter alia, states that DOPT have "opined" "whether or not the feeder grade officers in the relevant discipline would or would not be affected by absorption of a deputationist is not relevant in such cases." It was in response to this letter that the UPSC letter dated 19.04.2007 was issued regretting that the Commission cannot agree to the proposal for the reasons given hereinbefore. UPSC, no doubt, had taken into account the above cited opinion of DOPT. While it is not for us to comment on the advice given by any Ministry, it does not appear possible that other feeder grade officers would not be affected from absorption of deputationists.
13. Admittedly, the Recruitment Rules (cited hereinabove) although have a provision for deputation, but do not provide for absorption of deputationists. Although the Administrative Ministry (Both Department of Food and Agriculture Cooperation) had started the case for absorption of the applicant by relaxation of Recruitment Rules, UPSC did not agree to such relaxation for the reasons already detailed above.
14. Coming to the grounds taken by the applicant, his first ground is that the post held by him is for the deputation quota and not against the promotion quota vacancies and hence his absorption would not adversely affect the feeder grade promotion prospects. We find, however, that although the Department of Agriculture and Cooperation had stated that his absorption would not affect the career of feeder grade incumbents, UPSC had in their letter dated 14.06.2006 addressed to Department of Agriculture and Cooperation observed as under:
The proposed revised RRs provide 66.67% for promotion failing which by deputation (ISTC) and 33.33% by deputation (ISTC) failing which by direct recruitment. Thus, there is no provision for absorption in the proposed revised RRS. It is also not clear as to how the DOP&T has concluded that the absorption of Dr. Bansal will not in any way affect the promotion prospects of the feeder grade officers in the borrowing Department as the present rules provide distinct percentage of 66.67% earmarked for the method of appointment on deputation/absorption. This may kindly be again taken up with the DOP&T placing the factual position with regard to the existing RRs and proposed revised RRS.
15. The material on file does not indicate the grounds of concurrence by the DOPT. Be that as it may, the UPSC did not find it possible to concur in the proposal and we have no reason to differ with the UPSC's view. Accordingly, we cannot find justification in the first ground of the applicant.
16. Coming to the next ground regarding closure of his parent department, it is common knowledge and established fact that on closure of any office, the permanent staff have to be adjusted/deployed elsewhere in accordance with Government instructions. Applicant would not be the only person affected by such closure of the Save Grain Campaign office. As there would be other similarly placed persons, this cannot be adequate or valid ground to justify absorption or indefinite continuance of deputation in violation of Recruitment Rules.
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 Hon'ble Apex Court, Hon'ble High Court of Delhi and the Tribunal also. We do not find any ground nor any justification for making any departure from that position.
18. Having regard to the facts and circumstances and the entire conspectus of the case, we are in agreement with the respondents that applicant, though came on deputation to the post of Deputy Director (Entomology) and has remained on deputation for 8 years, he does not have any enforceable right for absorption when the rules do not provide so. It is, however, relevant to observe that as stated by the respondents in their counter reply, applicant is free to apply for the post again as and when advertised, and he would, no doubt, be considered according to the rules. It is also the accepted position that deputationists are fully aware when they have ultimate to repatriate to their parent cadre, unless they can be absorbed. In the light of the matter, we cannot hold the repatriation of the applicant to be either irregular, unfair or unjustified. Hence, the OA is dismissed. No costs.
19. Interim order earlier passed stands vacated.