Central Administrative Tribunal - Delhi
P.K. Manulal vs National Technical Research ... on 17 May, 2016
Central Administrative Tribunal
Principal Bench
OA No. 2819/2014
MA No. 2401/2015
MA No. 2436/2014
Order reserved on: 27.04.2016
Order pronounced on: 17.05.2016
Hon'ble Mr. V. N. Gaur, Member (A)
Hon'ble Mr. Raj Vir Sharma, Member (J)
P.K.Manulal
F 138, Road No.3,
Andrews Ganj,
New Delhi-110049.
- Applicant
(By Advocate: Sh. Padma Kumar S.)
Versus
1. Union of India through
Chairman,
National Technical Research Organisation,
Block No.III, Old JNU Campus,
New Delhi-67.
2. Director General,
Central Industrial Security Force,
13, CGO Complex,
Lodhi Road,
New Delhi-110003.
3. Sh. Vinod Singh Rawat,
Administrative Assistant,
NTRO HQ,
Block No.III, Old JNU Campus,
New Delhi-67.
- Respondents
(By Advocate: Sh. HanuBhaskar for respondent no.1 and
Sh. S.N.Kaul for respondent no.3)
2 OA No.2819/2014
ORDER
Hon'bleMr.V.N.Gaur, Member (A) The applicant has filed the present OA praying for the following relief:
(a) Quash and set aside the Order dated 31.7.2014 repatriating the applicant to CISF (Respondent No.2) having already been selected on absorption in NTRO.
(b) Direct the respondent Respondent No.1 NTRO to take the applicant back on absorption and treat him at par with the junior deputationist Sh. Vinod Singh Rawat, with all consequential benefits.
(c) any other relief which the Hon'ble Tribunal may deem appropriate.
2. Respondent no.1 had invited applications for filling up the post of Senior Administrative Assistant (SAA) in the pay scale of Rs.5500-9000 (pre-revised), PB-2 (9300-34800) + Grade Pay Rs.4200 (revised) on deputation basis in 2007. The applicant and the respondent no.3 who were both ASI/Clk in the pay scale of Rs.4000-6000 (pre-revised) PB-2 (9300-34800) + Grade Pay Rs.2800) (revised) in CISF had applied for the post and were selected for appointment as SAA on deputation basis. They joined National Technical Research Organisation (NTRO), respondent no.1 on 01.08.2008 and 04.08.2008 respectively. In 2010 they were promoted to the rank of SI/CLK in their parent organisation in PB-3 (9300-34800) + Grade Pay Rs.4200w.e.f. 08.02.2010 and 01.01.2010. In 2012 NTRO decided to fill up 6 vacancies in the 3 OA No.2819/2014 grade of Administrative Assistant in the Grade Pay of Rs.4200, of which 5 posts were to be filled up by deputation and one by deputation/absorption/re-employment. In response the applicant and respondent no.3,who were already working as SAA on deputation, also applied for absorption in the grade of Administrative Assistant and were considered by a duly constituted Committee for open selection against one advertisedvacancy for deputation/absorption/re-employment. According to the respondent no.1, they selected respondent no.3 over the applicant as he was found "most suitable candidate based on fair assessment of service records, seniority etc." and absorbed him w.e.f. 03.05.2013.
3. Learned counsel for applicant submitted that the decision of the NTRO to absorb respondent no.3 by ignoring the claim of the applicant who is senior to respondent no. 3, was in violation of the right of the applicant for similar treatment in the matter of public employment guaranteed under Article 16 of Constitution of India. The action of the NTRO also infringed Article 14 of the Constitution as the same was arbitrary. According to learned counsel, it was settled law that in the matter of absorption the respondents should have followed the seniority of the candidates counting from the date they came on deputation. The applicant had joined as SAA on 01.08.2008 while the respondent no.3 had joined on 04.08.2008. Everything being equal, the applicant had 4 OA No.2819/2014 the first right to be considered and being selected for absorption. In this context, the learned counsel referred to the instructions of the Government contained in Swamy's Manual on Establishment and Administration (Annexure A-8) relating to absorption of an officer that stipulate "the Administrative Ministry should certify that there is no other deputationist in position appointed earlier to the officer now proposed for absorption, and in case there is any such person, he is not willing to be considered for appointment on absorption basis." This instruction reflected the intention of giving first opportunity for absorption to a deputationist who had longer service than any other deputationist in the organisation in that grade. Further the suitability of the candidates was assessed on the basis of service record, seniority etc. In service records, the applicant could not have been in any way inferior to respondent no.3. His ACR gradings during the period 2009 to 2014 ranged from 'Very Good' to 'Outstanding'. Though it was not a case of promotion on the basis of seniority cum merit, it was relevant to note that the bench mark for promotion to the post of Administrative Assistant was only 'Good'. The learned counsel's most vehement opposition was to the consideration of seniority in the parent organisation while deciding the matter of absorption in NTRO. The past seniority in the parent organisation had no relevance when two deputationists were being considered. It was the length of period spent on deputation that would determine the 5 OA No.2819/2014 inter se seniority of the candidates under consideration. The respondents committed an illegality in taking into account the parent organisation's seniority in treating the respondent no.3 as senior to respondent no.1.
5. Learned counsel for respondent no.1 submitted that the OA itself had now become infructuous because the applicant was no more serving in the NTRO. After completing his initial tenure the deputation of the applicant was extended for the 6th year w.e.f. 01.08.2013 to 31.07.2014. He had expressed his consent vide application dated 09.01.2014 for further extension of deputation for the 7th year. However, the NOC conveyed by CISF was not in accordance with the existing policy of the MHA and as such, the applicant had to be repatriated on 31.07.2014. According to the learned counsel, the respondent NTRO had given fair opportunity to both the candidates, i.e., applicant and respondent no.3, of being considered forthe lone post, to be filled up on absorption basis. The Selection Committee after considering all the relevant parameters found the respondent no.3 as more suitable for the post. He contested the submission of the applicant that the parent department's seniority was of no consequence while considering the candidates on deputation for absorption. The applicant and respondent no.3 both were ASI/CLK in their parent organisation when they joined as SAA on deputation but respondent no.3 was senior to the applicant. Both of them were 6 OA No.2819/2014 promoted to the grade of SI/CLK in CISF and again the respondent no.3 was promoted earlier than the applicant. It is a settled law that the period served by a deputationist in the analogous posts in the parent organisation will also be counted when it comes to fixing inter se seniority of two similarly situated persons. The final selection by the Selection Committee was done taking into account all the relevant factors to assess the suitability of the candidates. He further pointed out that the respondent no.3 was absorbed in the NTRO w.e.f. 03.05.2013 and the applicant did not represent against that order. He applied for extension of deputation w.e.f. 01.08.2013 to 31.07.2014 and again for another one year period of beyond 31.07.2014. It was only when his deputation for the 7th year was not approved that he decided to approach this Tribunal.
6. Learned counsel for respondent no.3 supplementing the submissions of respondent no.1 stated that respondent no.3 was always senior to applicant and that factor could not have been ignored by the Selection Committee of respondent no.1. In the ranks of ASI/Clk and SI/SLK, the respondent no.3 was senior to the applicant. Both had applied for the post of SAA in NTRO and were selected together. Respondent no.2 issued the relieving order of both the officers on the same date but respondent no.3 being posted at Kishtwar (J&K) could join the NTRO only on 04.08.2008 while the applicant being posted at Delhi could join 7 OA No.2819/2014 NTRO the very next day, i.e. 01.08.2008. He also referred to a document showing that the period from 01.08.2008 to 03.08.2008 was treated as joining time which according to learned counsel would imply that the respondent no.3 was taken on the rolls of NTRO w.e.f. 01.08.2008. The learned counsel for respondent no.3 also raised the issue of jurisdiction stating that the CISF is an armed force of the Union and according to Section 2 (a) of the Administrative Tribunals Act, 1985 the Armed Forces Union have been excluded from the purview of this Tribunal.
7. We have heard the learned counsels and perused the record. On the issue of jurisdiction raised by respondent no.3 it is noted that both the learned counsel for the applicant and learned counsel for respondent no.1 are unanimous that the post in which the applicant is seeking absorption in NTRO is a civilian post and not a combatised post that would be governed by the provision of Section 2 (a) of Administrative Tribunals Act, 1985. We, therefore, do not see any substance in the argument regarding jurisdiction.
8. The main ground on which the applicant has challenged the absorption of respondent no.3 in NTRO is the consideration of seniority while selecting him for the post. Counting from the joining NTRO on deputation the applicant was senior to respondent no.3, and therefore, claims to have the first right to be 8 OA No.2819/2014 considered for absorption in the post of AA. It has been further argued that in all other respects the applicant is no less than respondent no.3.In support of this contention he referred to the gradings in the ACRs for the period 2009 to 2014.
9. It is noted that respondent no.1 had advertised 6 vacancies in the grade of Administrative Assistant out of which only one post was kept for being filled up through deputation/absorption/re-employment. Against an open advertisement issued on 25-31.08.2012 many other outside candidates had also applied. A selection committee constituted by the respondents considered the service records and seniority of the candidates and selected respondent no.3. The applicant has not pointed out any deficiency or flaw in the selection procedure other than the issue of seniority. Though the violation of Article 14 & 16 of the Constitution has been alleged, the same has not been substantiated in the face of the fact that the applicant was given opportunity of consideration along with other candidates who had applied for the post. It is trite that a candidate can only have a right of being considered by the Selection Committee and not of being finally selected, which is the prerogative of the employer. While the service record of applicant has been placed before us, the applicant has not been able to establish that his service record was superior or comparable to that of respondent no.3.
9 OA No.2819/2014
10. With regard to the instructions of Government of India dealing with the matter of absorption, we do not find that the instructions quoted by the applicant suggest that a senior person will have to be given any weightage in selection. The instructions only enjoins that the Administrative Ministry should certify that no other deputationist in position appointed earlier to the post claim for absorption, implying that no senior person should be denied consideration for absorption if a junior person is being considered. Eventually in an open selection in which the merit of the candidate determined against the laid down parameters, that will decide the outcome. In the present case the applicant was also considered by the Selection Committee along with respondent no.3 but found the latter more suitable. On the issue of seniority also we agree with the respondents that the period worked in the analogous post in the parent organisation will also be counted for the purpose of determining the seniority of the deputationist. In S.I. Rooplal And Anr. vs Lt. Governor Through Chief, Appeal (civil) 5363-64 of 1997, the Hon'ble Supreme Court held thus:
"It is clear from the ratio laid down in the above case that any Rule, Regulation or Executive Instruction which has the effect of taking away the service rendered by a deputationist in an equivalent cadre in the parent department while counting his seniority in the deputed post would be violative of Articles 14 and 16 of the Constitution. Hence, liable to be struck down."10 OA No.2819/2014
11. If the seniority in the parent organisation is taken into account, the respondent no. 3 will be senior to the applicant. and, on this ground alone the absorption of respondent no 3 cannot be challenged. It is also noted that the applicant had completed his approved tenure of deputation in NTRO and repatriated back to his parent organisation on 31.07.2014. Therefore, there is no reason to interfere with the order of his repatriation.
12. After considering the entire conspectus of the case, we do not find any merit in the OA and the same is dismissed. No costs.
13. In view of the above order passed in OA, MA Nos.2401/2015 and 2436/2014 stand disposed of accordingly.
(Raj Vir Sharma) (V.N. Gaur) Member (J) Member (A) 'sd'