Central Administrative Tribunal - Delhi
Bhausaheb Shankar Salunke vs The Union Of India on 22 January, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 3513/2012 With OA 3514/2012 NEW DELHI THIS THE 22nd DAY OF JANUARY, 2013 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MRS. MANJULIKA GAUTAM, MEMBER (A) OA 3513/2012 Bhausaheb Shankar Salunke Manager (Technical) Office of the Project Director, National Highway Authority of India, Project Implementation Unit, B.A.I.F. Campus, Survey No. 134/1, Dr. Manibhai Desai Nagar, Warje, Pune-411 058 (R/at Flat No. 414, Gangotri Building, The Hillside Society, Behind Maratha Mandir, Bawdhan (Kh.), Pune-411021 .Applicant (Through Shri S.K. Gupta, Advocate) With OA 3514/2012 Suhas Devidasrao Chitnis Manager (Technical) Office of the Project Director, National Highway Authority of India, Project Implementation Unit, B.A.I.F. Campus, Survey No. 134/1, Dr. Manibhai Desai Nagar, Warje, Pune-411 058 (R/at D-302, Valle Vista Apptt., Behind Maratha Mandir, Bawdhan, Pune-411021 .Applicant (Through Shri S.K. Gupta, Advocate) Versus 1. The Union of India, through The Secretary, Ministry of Road Transport and Highways Transport Bhawan, Sansad Marg, New Delhi-110001 2. The Chairman NHAI, G-5 and 6, Sector-10 Dwarka, New Delhi 110075 3. The Chief General Manager NHAI, Regional Office (Maharashtra) Bungalow No. 2, Shubhankar Apptt. Plot No. 159, Ambajhari Hill Top, Ramnagar, Nagpur-440 033 4. The Project Director NHAI, Project Implementation Unit, BAIF Campus, Survey No. 134/1, Dr. Manibhai Desai Nagar, Warje, Pune-411058 .Respondents (Through Shri V.K. Rao, Senior counsel with Shri Mukesh Kumar and Ms. Meenakshi Sood, Advocates) ORDER
Mrs. Manjulika Gautam, Member (A) By this common order, as suggested by the counsel for parties, we propose to dispose of OA 3513/2012 and 3514/2012 together as facts and issues involved in both the OAs are identical. The facts have, however, been extracted from OA 3513/2012.
2. The applicant was appointed to the post of Assistant Engineer on regular basis in City and Industrial Development Corporation of Maharashtra Limited (CIDCO) on 23.05.1994. Vide advertisement dated 12.02.2001, the National Highways Authority of India (NHAI) advertised posts of Manager (Technical) to be filled on deputation basis and in the advertisement, it was provided that selected deputationist may also be considered for absorption in NHAI as per their policy/rules. CIDCO released the applicant to join NHAI on deputation basis for two years and he joined NHAI on the post of Manager (Tech) on 28.08.2001. The applicant continued to work in NHAI on deputation, which was renewed from time to time. On 12.05.1999, the NHAI issued guidelines for absorption of deputationists and OM dated 20.07.2005 (Annexure A-6) was issued seeking option of all the employees on deputation in NHAI to ascertain their willingness or otherwise to get absorbed permanently in the NHAI. The willingness of the applicant to be permanently absorbed in NHAI was duly recommended and forwarded by the General Manager/Project Director to the G.M. (Admn) vide letter dated 12.08.2005 (Annexure A-7). Vide letter dated 19.12.2008, the CIDCO also forwarded the application of the applicant to the GM, NHAI, New Delhi. The applicant had also appeared for interview for direct recruitment to the post of Manager (Tech) on 8.10.2009. Eight OAs were filed by some Managers (Tech) employed in NHAI on deputation basis. The Principal Bench of the Tribunal disposed of all the OAs by a common order on 25.03.2010. Relevant part of the order reads as under:
4. During the course of arguments, Mr. Banerji, learned Additional Solicitor General, states that a decision has already been taken that first the cases of the applicants for absorption would be considered and thereafter the posts would be filled. It is also the mandate of Rule 13 of 2009 amendment rules. The statement made by Mr. Banerji puts the controversy at rest.
5. In view of the consensus that has been arrived at between the parties, we dispose of all these Original Applications directing the respondents to first consider the cases of the applicants for their absorption and thereafter they may fill up the posts as per the advertisement in accordance with rules.
3. Vide orders dated 24.03.2011, the NHAI invited applications for absorption in NHAI from the cadre of Manager (Tech). The applicant submitted his application on 7.04.2011. On 26.08.2011, the NHAI asked for NOC from CIDCO for absorption of applicant and the CIDCO issued NOC dated 10.10.2011 in favour of the applicant. Vide letter dated 21.02.2012, the NHAI approached CIDCO for extending deputation of applicant in NHAI from 27.08.2011 to 27.08.2012 but to the shock of the applicant, the impugned orders dated 19.06.2012 were issued by the respondents repatriating him to his parent department with immediate effect. The present OA has been filed seeking the following reliefs:
(a) to allow the Original Application,
(b) to quash and set aside the impugned order dt.
19.06.2012, issued by the Respondents, ) to direct the Respondents to first consider the case of Applicant for his absorption as Manager (Tech) in N.H.A.I., before resorting to direct recruitment, as per the Rules, and also the directions of Central Administrative Tribunal, Principal Bench dated 25.03.2010,
(d) to pass any other order which may be just and appropriate in the facts and circumstances of the case,
(e) to award the cost of Original Application.
4. It is the contention of the applicant that he has been working for eleven years in NHAI without any blemish or complaint. As per policy, he has sought for absorption but instead of being absorbed, he has been repatriated. It has also been stated by the learned counsel for the applicant that large number of officers of NHAI had approached the Principal Bench of the Tribunal for absorption and the order passed in their OAs dated 25.03.2010 will apply in this case also.
5. In the counter affidavit filed by respondents 2, 3 and 4, it has been stated that in the interest of work, the applicant was taken on deputation for a period of two years with effect from 28.08.2001. The deputation period was extended from time to time with prior approval of the parent department of the applicant i.e. CIDCO. Thus the applicant remained in service of NHAI on deputation till 27.08.2011, which was the last extended period of deputation. The NHAI vide letter dated 21.02.2012 requested the parent department of the applicant i.e. CIDCO to extend the deputation period of the applicant upto 27.08.2012. No such extension was granted by the CIDCO and, therefore, the only option was to relieve him from NHAI. Accordingly, the impugned orders dated 19.06.2012 to repatriate and relieve the applicant were issued and it was brought to the notice of the applicant on the same date. The applicant was requested to sign an acknowledgement for receipt of the same but he refused to do so. It is, however, on record that the applicant stood relieved from NHAI on 19.06.2012 and is not attending office of NHAI since then.
6. In the rejoinder filed by the applicant, it has been stated that the counter affidavit has been filed by the Manager (Finance & Accounts) whereas according to the policy decision dated 7.09.2009, only the GM/DGM is authorized to file counter affidavit. The applicant has also stated that as per terms and conditions contained in letter dated 27.08.2001 (Annexure A-3), one of the terms of deputation was that in case NHAI felt that his services were not required during the period of deputation, they could repatriate him after giving three months notice to CIDCO. Thus by repatriating him with immediate effect, NHAI has breached terms and conditions of his deputation. It is the contention of the applicant that his deputation had been continued for almost eleven years by the respondents and NHAI had sought approval for extension of his deputation period from 27.08.2011 to 27.08.2012 vide letter dated 21.02.2012 i.e. six months after the actual extension of deputation period began. Thus it is not correct to state that they have repatriated the applicant in absence of NOC from CIDCO. It is stated by the applicant that he was under the impression that due to orders of CAT in OAs filed by other similarly placed officers, all deputationists would be considered for absorption and until then, their deputation would be extended. Regarding the impugned orders dated 19.06.2012 not being accepted by him, the applicant has stated that after getting knowledge, he submitted a representation to the Chairman, NHAI. He has also stated that he was not relieved by respondent no.4 from Pune office. In fact, letter dated 21.06.2012 was received by him on 7.07.2012 after the OA had been admitted on 3.07.2012. The applicant had also visited the corporate office at New Delhi on 25.06.2012 and 26.06.2012 to orally represent his grievance but no action was taken.
7. Another affidavit has been filed by the applicant on 13.08.2012 where he has referred to certain cases where the respondents first repatriated the Managers to their parent department, relieved them and then after canceling their repatriation order, permitted them to continue in NHAI on deputation. The person in question is Shri A. Chandrasekhar, Manager (Tech) who was repatriated and relieved, and subsequently the orders of his repatriation were cancelled. The applicant was also informed that his parent department CIDCO has agreed for extension of his deputation period vide letter dated 31.07.2012 (Annexure A-29).
8. A written statement was filed by the respondents on 6.11.2012. It is again reiterated by them that all extensions of deputation were allowed by NHAI with prior approval of the parent department i.e. CIDCO. However, no such NOC was issued in favour of the applicant for further extension of deputation from 27.08.2011 to 27.08.2012 and, therefore, the orders of repatriation were issued. It has also been stated by the respondents that in pursuance of the policy of absorption in NHAI, the exercise has now been completed and a screening committee has been constituted for scrutinizing all the applications of absorption. A Selection Committee has also been constituted vide orders dated 10.10.2012 comprising of three officers of the rank of CGM and one officer of GM rank (SC/ST representative) for considering the list of selected officers for absorption to the post of Manager (Tech). After completing the selection exercise, 69 candidates have been recommended for absorption and letters of offer of appointment on absorption basis have been issued to the selected candidates on 27.10.2012. It is thus the case of the respondents that applicant has been repatriated and relieved with effect from 21.06.2012. In compliance of the order of the Principal Bench of the Tribunal dated 25.03.2010, the procedure of absorption has been completed by the respondents as 69 candidates have been selected. It is obvious that since the applicant had already been repatriated and relieved, his case for absorption was not considered.
9. In the rejoinder filed by the applicant, it has been stated that respondents are concealing the facts. In the letter dated 21.02.2012 sent to CIDCO for NOC with regard to extension of deputation, names of five persons including the applicant in the instant case as well as Shri Suhas Devidasrao Chitnis, applicant in OA 3514/2012 were mentioned but only the applicant herein and Shri Suhas Devidasrao Chitnis were repatriated and other three incumbents shown at serial No.3, 4 and 5 were not repatriated. It is also stated by the applicant that NOC from CIDCO has been received and is dated 31.07.2012 (Annexure Rejoinder-1). The applicant has also stated that persons at serial no.3, 4 and 5 in the letter dated 21.02.2012 have since been absorbed in NHAI (Annexure Rejoinder-2 and 3). Thus, the respondents have adopted the method of pick and choose. It is also stated by the applicant that the parent organization CIDCO had already given NOC regarding his absorption in response to letter dated 26.08.2011 and there was no requirement for separate NOC for extension of deputation and the letter dated 31.07.2012 (Annexure Rejoinder-1) has also enquired about the absorption from NHAI. Applicant has also cited the case of Shri K. Srinivasulu, Manager (Tech.) who was repatriated on the same date as that of the applicant and was allowed to work in NHAI and was subsequently absorbed there (Annexure Rejoinder-11). Similar are the cases of Shri Prashant N. Gawasane and Shri M.T. Attarde who were allowed to continue in absence of NOC and are in the process of being absorbed. He has also referred to the case of Shri R. Venkateswarlu who approached the Honble High Court of Andhra Pradesh challenging the order of repatriation. His order of repatriation was stayed vide order dated 05.10.2012 and he was subsequently absorbed in NHAI (Annexure Rejoinder-8).
10. We have heard both the learned counsel and perused the record on file.
11. On the basis of rejoinder filed by the applicant, certain new facts have come to light which change the entire complexion of the matter. The case of the respondents was that the parent department of the applicant CIDCO had not sent NOC for extension of deputation and hence the applicant was repatriated and relieved. The applicant has brought to our notice the fact that respondents have concealed the fact that NOC from CIDCO for extension of deputation of the applicant was received vide letter dated 31.07.2012 (Annexure Rej-1). It is also an admitted fact that one condition of deputation was that if NHAI did not need the services of applicant any more, three months notice was to be given to CIDCO before repatriation. We also find that many examples have been given by the applicant in his rejoinder whereby certain Managers (Technical) have been repatriated, relieved and then taken back in NHAI and subsequently absorbed.
12. On the basis of record available and in view of various judicial pronouncements of CAT as well as the High Court, the applicant is entitled to consideration for absorption on the ground that he has worked for eleven years in the organization and as per policy also, consideration of his candidature for absorption in NHAI is legitimate. The contention of the applicant that CIDCO had already given, in principle, its approval for his absorption and that NOC for extension of deputation was not really mandatory, also weighs heavily on us. The applicant was relieved on 20.06.2012 whereas the NOC from CIDCO was dated 31.07.2012. Therefore, as per agreement, had the NHAI given three months notice for repatriation to CIDCO, the required NOC would have been available. We are also satisfied that CIDCO had agreed for absorption of the applicant in NHAI and, therefore, it could safely be presumed that they would agree to his continuation for deputation in NHAI till his absorption.
13. We, therefore, feel that the impugned orders dated 19.06.2012 cannot be sustained and are hereby quashed and set aside. The respondents are directed to treat the applicant as if he had continued on deputation and to consider his request for absorption within a period of two months from the date of receipt of a copy of this order. No costs.
( Manjulika Gautam ) ( G. George Paracken ) Member (A) Member (J) /dkm/