Central Administrative Tribunal - Delhi
Anita Bimal vs I T D C on 4 March, 2025
1
Item No. 53 (C-3) O.A No. 687/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 687/2021
This the 4th Day of March, 2025
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
Anita Bimal
Aged 58 years,
Deputy General Manager (HRD) - HOD,
Group 'A',
D/o. Shri Om Prakash Mahajan
R/o. 41-Samachar Apartments ,
Mayur Vihar, Phase-I,
New Delhi - 110 091 ....Applicant
(By Advocate : Mr. Rajinder Nischal)
Versus
1. Union of India
Through its Secretary,
Ministry of Tourism,
Transport Bhawan,
1, Parliament Street,
New Delhi-110 108.
2. India Tourism Development Corporation
Through its Director,
Scope Complex,
New Delhi-110 003. ....Respondents
(By Advocate : Mrs. Anupama Bansal)
2 OA No. 687/2021
Item 53 (C-3)
ORDER (O R A L)
Hon'ble Dr. Sumeet Jerath, Member (A):
This is the second round of litigation. Earlier the applicant approached this Tribunal vide OA No. 1476/2020 which was disposed of on 07.10.2020 with a direction to the respondents to decide representations dated 26.03.2018 and 09.10.2018 of the applicant through a reasoned and speaking order. The said representations were rejected vide impugned order dated 19.02.2021.
2. Now, the instant OA has been filed by the applicant Ms. Anita Bimal Under Section 19 of the AT Act, 1985 seeking the following reliefs :-
"8. a. Quash and set aside Order dated 19/02/2021 issued by Respondent No.2;
b. Direct respondent No.2-ITDC to consider period spent by the applicant in President's Secretariat as period spent in continuity in service and grant all consequential thereof:
benefits;
c. Direct respondent No.2 to pay the balance amount of Rs.10,00,000/-towards gratuity with interest;
d. Grant Leave Encashment on the basis of continuity of service claimed by the applicant in prayer (b) with interest;
e. Fix the pay of the applicant as if she had been in continuous service of respondent No.2 Organisation and calculate her retiral benefits on that basis with interest;
f. pass any other relief that this Hon'ble Tribunal may consider fit in the interest of justice."3 OA No. 687/2021
Item 53 (C-3)
3. The conspectus of the case as per the counsel of the applicant is that the applicant joined Indian Tourism Development Corporation (ITDC) as Management Trainee in 1986. Subsequently, she went on deputation to the President's Secretariat on 04.02.2013 and she was treated as on Reverse Foreign Service from her parent office. Later, she was absorbed there as Additional Comptroller on 16.06.2016. However, on 26.03.2018, she approached her department by way of a representation seeking permission to rejoin her parent department subject to protection of her pay, perquisites, seniority, entitlements along with continuity of her service.
4. Learned counsel argued that pursuant to the representation of the applicant, the Ministry of Tourism (respondent no. 1) in consultation with the DoPT decided to treat the case of the applicant as 'deemed lien' as less than two years had been passed after absorption of the applicant in the President's Secretariat and return to the ITDC. Respondent no. 1 further requested respondent no. 2 to consider the case of the applicant and to allow her repatriation which was ignored by respondent no. 2. Later, on 01/06/2018, respondent no.2 allowed repatriation of the applicant and consequently on 07.06.2018, she joined back her parent department i.e., ITDC and subsequently, she superannuated from the post of Deputy General Manager on attaining the age of superannuation on 31.07.2020 from ITDC. Pursuant to this, she received gratuity to 4 OA No. 687/2021 Item 53 (C-3) the tune of Rs.10,00,000/- (Rupees Ten Lakh only) by treating her as if she had resigned from respondent no. 2 on 16.06.2016. Had she been deemed to have been continued till her date of superannuation, she would have been entitled to Rs.20,00,000/- (Rupees Twenty Thousand only) as gratuity w.e.f. 29.03.2018. According to the learned counsel, the respondents had wrongly calculated the retiral dues of the applicant. He added that the representation of the applicant was rejected by the respondent no. 2 by taking a stand that since the applicant resigned from her post in ITDC and her later rejoining ITDC was treated as re-employment. However, the excess payment made to her were ordered not to be recovered. Learned counsel also stated that as the applicant was on deputation to President's Secretariat and was later absorbed there and then again was allowed to be repatriated to her parent department, she should have been allowed continuance of lien in her parent department. Moreover, she was permitted to join on the same terms and conditions as of she had never been on deputation. Her pay in her parent department was also fixed by ignoring her period of deputation/absorption in the President's Secretariat. Also her pay was tentatively fixed at the stage when she went on deputation and after her superannuation also her pay was fixed at the minimum of the pay scale as if she was a fresh appointee ignoring her continuity of service. Hence her pay ought to have been fixed at Rs.55,250/- (pre revised) as on 01.07.2020.
5 OA No. 687/2021Item 53 (C-3)
5. Learned counsel drew our attention to the decision taken by the Respondent no. 2 in its Board's meeting dated 30.05.2018 wherein it has been held as under :-
"Board observed that since ITDC does not have any Rule of its own address the issue regarding to pay protection, continuity in service etc. or rule position for recalling of dues already paid encashment, to her towards leave gratuity on such repatriation etc. the same would be dealt by adopting available Government Rules, if any, for resolving the issue which may arise on her joining."
6. Following grounds have been urged by the counsel for the applicant:-
"(i) As per OM No.28020/3/2018-Estt. (C) dated 2018 it has been mentioned that in the case of permanent Government servants, their lien may be retained in the parent department/ office for a period of two years. They should either revert to their parent department/ office within that period or resign from department/office at the end period.
Accordingly, the holding lien at the parent that was her of applicant time of repatriation to ITDC and the applicant was entitled to continuity of service and all other consequential benefits, such as fixation of pay on notional basis as she has department. not be absorbed in if another
(ii) It has been specifically admitted that the instant case of the applicant is a case of reverse Foreign Service and the resignation given by her while in the President's Secretariat will have to be treated as Technical Resignation.
(iii) As per letter dated 01/06/2018 of respondent No.2 it has been specifically mentioned that the applicant was repatriated to ITDC. Hence, it cannot be now stated after her retirement that it was a case of re-employment as mentioned in the impugned Order. Moreover, the applicant was relieved from Presidents' Secretariat to join ITDC, corroborates the contention which the of applicant that her joining ITDC was not a case of re-employment but was a case of repatriation as the applicant was still holding lien in ITDC as the period with effect from the date of absorption 17/08/2016 to the date of retirement i.e. 30/07/2020 repatriate was less than two years.
6 OA No. 687/2021Item 53 (C-3)
(iv) It was agreed by respondent No.2 that the resignation given by the applicant to President's Secretariat shall be treated as Technical Resignation and period spent in the office of President's Secretariat shall be treated as deemed lien. That the case of the applicant is a case of Reserve Foreign Service. As per the policy of Government of India the resignation given deserves to be to respondent No.2 treated as 'Technical Resignation' as the period of service spent in the office of President's Secretariat is found to be treated Deemed Lien."
7. Rebutting the contentions of the learned counsel for the applicant, learned counsel for the respondents has filed a detailed counter affidavit. While arguing her case, counsel for the respondents drew our attention to para 4 of the preliminary submissions of the reply wherein the excerpts of the letter dated 16.06.2016 issued by the Deputy Secretary (Establishment Section) to the respondent no. 2 are quoted which are reproduced below :-
All benefits such as CPF. Gratuity. Leave Encashment and other benefits, if any, will be settled and paid by the Respondent No. 2 till the date of absorption. On absorption, the Applicant will be treated as fresh appointment from the date of absorption and governed by Government of India Rules.
Furthermore, the Applicant was required to resign from the post she was holding in her parent department i.e. Respondent No.2 and was asked to complete the required formalities in her parent department so that formal order of her absorption could be issued by the President's Secretariat. In response to the said letter the parent department wrote to the borrowing department i.e., the President's Secretariat on 05.08.2016 conveying approval of the competent authority for permanent absorption of the applicant subject to her resignation and acceptance 7 OA No. 687/2021 Item 53 (C-3) thereof. Thereafter vide letter dated 17.08.2016 the applicant resigned from her services with the ITDC with a request for waiver of notice and full encashment of privilege leave in her account. Her resignation was accepted vide letter dated 05/08.09.2016 and the notice period was waived however the encashment of leave was allowed to the extent of 50% as applicable in the case of resignation.
8. To buttress her arguments, counsel for the respondents relied upon the law laid down by the Hon'ble Apex Court in State of Rajasthan & Ors. vs. S. N. Tiwary & Ors. (2009) 4 SCC 700 wherein while dealing with the issue that when a person with a lien against a post is appointed substantively to another post, then he/she acquires a lien against the latter post. Lien connotes the right of a civil servant to hold a post substantively to which he/she is appointed. Therefore, the applicant, after resigning from respondent No. 2 and getting absorbed in another permanent post with the President's Secretariat is not entitled to hold a lien over her earlier post. The lien of the applicant shifted to the new permanent post on being absorbed. The relevant para of the judgment is produced herein below:-
"13. It is very well settled that when a person with a lien against the post is appointed substantively to another post. only then he acquires a lien against the latter post. Then and then alone the lien against the previous post disappears. Lien connotes the right of a civil servant to hold the post substantively to which he is appointed. The lien of a government employee over the previous post ends if he is 8 OA No. 687/2021 Item 53 (C-3) appointed to another permanent post on permanent basis. In such a case the lien of the employee shifts to the new permanent post."
She also relied on Clause 18 of the Master Circular dated 27.08.2018 of the DoPT on 'Technical Resignation and Lien in Central Services, wherein guidelines have been provided with respect to Termination of Lien subject to certain conditions. It provides that a Government employee's lien on a post shall stand terminated on his/her acquiring a lien on a permanent post outside the cadre on which he/she is borne. The excerpts of which are reproduced below :-
"18. Termination of Lien NO LIEN SHALL BE RETAINED :
(a) Where a Government servant has proceeded on immediate absorption basis to a post or service outside his service/cadre/post in the Government from the date of absorption.:"
Application of the above quoted Clause 18 makes it clear that the lien of the applicant ended in her parent organisation when she proceeded on immediate absorption outside her service/cadre/post in the borrowing department i.e. President's Secretariat.
She also took shelter of Clause 22 of the aforesaid Master Circular which apparently stated that 'No Lien /Quasi-Permanent status of the Government servant concerned will be retained in his/her parent cadre after release of the employee'. Thus, the applicant is not 9 OA No. 687/2021 Item 53 (C-3) entitled for lien in her parent department after being absorbed permanently elsewhere.
Learned counsel further averred that to settle the issues with respect to her pay, continuity of service, eligibility of promotion etc subsequent to repatriation to her parent department, the parent department communicated via email dated 23.06.2020 with the borrowing department and the ball was again thrown in the Court of the parent department to decide. The said email dated 23.06.2020 is reproduced below :-
"Sir, This is reference to the correspondence listed below. I am directed to convey the following on the captioned subject:
Quote, "Considering the above facts, wherein,
1. The DoPT has already given it's opinion that -
The matter has been examined. It is stated that the instructions of DoPT do not permit holding of lien and the concept of technical resignation in the instant case. As the matter has been decided by Mio Tourism to hold lien by Ms. Anita Bimal, now it is not appropriate to consider the matter by DOPT again. Each and everything has now to be decided by M/o Tourism / ITDC in this case.
2. The ITDC Board has already noted that in the absence of any specific rules in this regard of the ITDC, the Rules of GOI shall prevail / apply, may be advised to see the applicability of the appropriate rules in this regard and take a decision."
Unquote Hence ITDC is requested to take further necessary action. This is issued with the approval of the Director General (Tourism), Government of India."
10 OA No. 687/2021Item 53 (C-3) A bare perusal of the afore-quoted Email dated 23.06.2020 showed that neither there are any rules in ITDC nor any guidelines issued by the Government of India to re-consider appointment of an employee once he/she has resigned from the same organisation. Thus, the decision of the borrowing department regarding applicant's joining back ITDC after having been absorbed at Rashtrapati Bhawan by treating the period spent therein as 'deemed lien' stood cancelled and invalid, since no rules permitted such an action.
Further, with regard to other benefits sought by the applicant, it was decided that the applicant was not entitled to any monetary benefits of any kind w.e.f. 17.08.2016 to 07.06.2018 as she resigned from ITDC and opted for a permanent employment. Moreover, she had received all her employment benefits of her service tenure. Thus, there cannot be any lien over her post that she relinquished at the time of her resignation nor is she entitled to any other benefits by virtue of her not having a lien with ITDC anymore.
To rebut the applicant's argument with respect to benefits of continuity of service with respect to Gratuity, Leave encashment, Provident Fund, Basic Pay and Seniority, the counsel for the respondent relied upon the Hon'ble Supreme Court's decision in BSES Yamuna Power Ltd. vs. Ghanshyam Sharma & Anr., Civil Appeal No. 9076 of 2019 vide which it has been categorically observed that 'upon resignation, an employee forfeits the tenure of his/her past 11 OA No. 687/2021 Item 53 (C-3) service.' Whereas, in the instant case, the applicant tendered her resignation to the ITDC on 17.08.2016 which was accepted by the competent authority and she was notified by her parent department about the same vide letter dated 08.09.2016. Subsequently, she wished to return to the Respondent No.2 citing personal reasons. However, on her joining back, it was neither promised nor mentioned anywhere that she would be entitled to any of the perks or employment benefits that she is now laying a claim upon. Upon joining service in ITDC w.e.f. 07.06.2018, she cannot claim continuity of service, seniority, Provident Fund or increments in terms of her old employment as she had willingly resigned from the same. This view had been fortified by the abovementioned judgment of the Hon'ble Supreme Court of India.
So far as the gratuity of the applicant is concerned, counsel for the respondents averred that the same shall be governed as per Section 4 of the Payment of Gratuity Act, 1972 which provides that 'the gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years on his superannuation, his retirement or resignation.' However, in this case the applicant had joined ITDC on 07.06.2018 as a fresh recruit and had continued in service only for a period of approximately two years, till her superannuation on 31.07.2020 and thus she is not entitled for payment of any gratuity. 12 OA No. 687/2021 Item 53 (C-3) Reliance has also been placed by the respondents upon Rule 39 (6) (a) (ii) of the Central Civil Services (Leave Rules), 1972 which stated as under :-
"If a Government servant resigns or quits service, he may be granted, suo moto, by the authority competent to grant leave, cash equivalent in respect of earned leave at his credit on the date of cessation of service, to the extent of half of such leave at his credit, subject to a maximum of 2(150 days)."
With regard to promotion of the applicant to the post of General Manager, she is not entitled to be considered for the same as per Rule 15 of the ITDC Recruitment, Promotion and Seniority Rules, 2010 according to which the applicant had to put in a minimum of continuous 5 years service. The applicant being inducted as a fresh employee would not be eligible for the said promotion. For more clarity, the said Rule 15 is reproduced below :-
"The Executives & Non- Executives will have to complete the number of years of service in their respective categories/posts as stated hereunder to become eligible for promotion to the next higher post.
A) Executives No. of Years ...iv) DGM to Gen. Mgr. level-5yrs"
9. Heard the rival contentions, examined the documents on record and perused the relevant judgments cited of Hon'ble Apex Court. We have observed that the applicant worked in ITDC from the year 1986 (when she joined as a Management Trainee) to 3rd February, 2013. Subsequently, she went on deputation to the 13 OA No. 687/2021 Item 53 (C-3) President's Secretariat on 4th February 2013 where she was treated as on reverse foreign service from ITDC. Later she resigned from ITDC on 17.08.2016 and was permanently absorbed as Additional Comptroller in Rashtrapati Bhawan. She continued to work there till 7th June 2018. As per Clause 18 of the Master Circular dated 27.08.2018 of DoPT on 'Technical Resignation and Lien in Central Services'; ratio given in the Hon'ble Apex Court Judgments in (i) State of Rajasthan & Others vs. S. N. Tiwary & Others (2009) (Supra) and (ii) BSES Yamuna Power Ltd., vs. Ghanshyam Sharma & Another (2019) (supra), the applicant lost her old lien over her previous post in ITDC when she resigned and acquired a new lien against the post of Additional Comptroller in Rashtrapati Bhawan. Lien connotes the right of a Civil Servant to hold the post substantively to which he/she is appointed. On being absorbed in Rashtrapati Bahwan, the applicant started a fresh lien and the old lien was extinguished. There was a clear break in her service in ITDC during the period 17.08.2016 to 07.06.2018. There was no continuity in service and when the applicant rejoined ITDC on 07.06.2018 as a fresh recruit, and superannuated on 31.07.2020 she discharged a service of only about two years. Since this period is less than five years, she is not entitled to any gratuity for this period as per Section 4 of the Payment of Gratuity Act, 1972. She has already received a Gratuity of Rs.10 Lakhs for the period of her 14 OA No. 687/2021 Item 53 (C-3) service from 1986 to 2016 when she resigned from ITDC and was permanently absorbed in Rashtrapati Bhawan as Additional Comptroller.
10. In the light of the above, we are of the considered opinion that the balance of convenience in the instant OA lies with the respondents. We are not inclined to interfere with the order dated 19.02.2021 issued by respondent no. 2 as it is a well reasoned and speaking order. The instant OA lacks merit; deserves to be dismissed and is accordingly dismissed. There will be however no order as to costs.
(Dr. Sumeet Jerath) (Harvinder Kaur Oberoi)
Member (A) Member (J)
/Mbt/