Central Administrative Tribunal - Delhi
Amit Dhaka vs M/O Home Affairs on 1 June, 2023
Item 21
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.936/2021
Reserved on :11.05.2023
Pronounced on :01.06.2023
01.06.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Amit Dhaka
Dhaka,
S/o Late Shri Mahavir Singh,
Aged about 41 Years,
R/o Quarter No.728, Sector VII,
Pushp Vihar, New Delhi 110017,
110017
Email id: [email protected],
[email protected]
Mobile: 8700120560
Office Address
Amit Dhaka Accountant (033660183)
Pay and Accounts Division,
Border Security Force (BSF),
Pushp Bhawan, Pushp Vihar,
2nd Floor, Near Madangir,
New Delhi
Delhi-110062. ...Applicant
(By Advocate: Mr.K.P.Gupta)
Mr.K.P.Gupta
VERSUS
1. Union of India
Through: The Secretary,
Ministry of Home Affairs,
North Block, New Delhi
Delhi--110001.
2. The Secretary,
Government of India,
Ministry of Finance,
Department of Expenditure,
North Block, New Delhi
Delhi--110001.
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O.A. No.936/2021
3. The Controller General Of Accounts .
Ministry of Finance,
Department of Expenditure,
Mahalekha Niyantrak Bhawan,
G.P.O. Complex, E Block,
INA, New Delhi-110001.
4. The Principal Chief Controller of Accounts,
(Ministry of Home Affairs)
Room No. 6, Open Gallery 2nd Floor,
Major Dhyan Chand National Stadium,
New Delhi-110002.
5. The Chief Controller of Accounts,
Principal Accounts Office,
Ministry of Home Affairs,
Room No.217, North Block,
New Delhi-110001.
6. The Controller Of Accounts (Home)
Office of the Principal Chief Controller
Of Accounts (Admn),
Ministry Of Home Affairs,
Room No.6, open Gallery 2nd floor,
Major Dhyan Chand National Stadium
New Delhi-110002.
7. The Senior Accounts Officer (Admn),
Office Of The Chief Controller Of Accounts,
Ministry Of Home Affairs,
Principal Accounts Office (Admn),
Room No. 6, Open Gallery, 2nd Floor,
Major Dhyan Chand National Stadium,
New Delhi-110002.
8. The Director General,
Sashastra Seema Bal,
Ministry Of Home Affairs
Force Head Quarters,
East Block-V,
R.K.Puram, New Delhi-110066.
9. The Assistant Controller of Accounts,
Pay and Accounts Division,
Border Security Force,
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O.A. No.936/2021
Pushp Bhawan, Pushp Vihar,
Near Madangir, New Delhi-110062.
10. The Commandant,
25th Battalion, Sashastra Seema Bal,
Ghitorni, New Delhi-110030. ...Respondents
(By Advocate: Mr.Gyanendra Singh)
ORDER (ORAL)
Hon'ble Mr. Sanjeeva Kumar, Member (A):
By way of this OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s) :-
"(a) Quash and set aside the office order bearing No.51/2021 dated 08/03/2021 serial No.24 so far as it relates to the applicant;
(b) To issue appropriate directions to the respondents to absorb the applicant to the post of Accountant in CCAS cadre at par with other similarly situated persons who have been absorbed vide aforesaid order dated 22/02/2021 (Annexure-A-2);
(c) Any other or further relief which this Hon'ble Court deems fit just and proper in the peculiar circumstances of the case in interest of justice may also please be awarded.
(d) Award the cost of the present proceedings."
2. The brief facts of the case are that the applicant was initially appointed to the post of Constable (GD) with effect from 08.08.2003 in Sashastra Seema Bal (SSB). Thereafter, he was selected for the post of 4 O.A. No.936/2021 Accountant in Central Civil Accounts Services (Home) on the basis of transfer on deputation and he joined the said post on 09.05.2014. His deputation period initially was for three years but the same was extended from time to time. Last extension of 7th year was sanctioned vide order dated 30.06.2020 completing on 08.05.2021. On completion of his deputation, the applicant has since reverted back to his parent organisation, i.e. SSB.
3. While the applicant was on deputation, an option for permanent absorption was opened temporarily as one time relaxation for the deputationists appointed on deputation as Accountant on the basis of Recruitment Rules (RRs) of the post. This was subject to ceiling of number of deputationists not more than 10% of vacancies reported for CGLE-2017 (Annexures A-9 and A-10). As per the above, the deputationists who had completed 2 years requisite service on deputation as on 31.07.2019 and fulfilled the eligibility criteria/conditions laid down in RRs for the post of Accountant were eligible to be considered as permanent absorption as Accountant. Accordingly, the Office of the Principal Chief Controller of Accounts, Ministry of Home Affairs (Annexure A-19) sought a willingness to deputationist 5 O.A. No.936/2021 for absorption and the applicant submitted his willingness vide letter dated 23.09.2019 wherein he also stated that he is physically challenged and is entitled for absorption in terms of the relevant policy guidelines (Annexure A-6). The respondents vide order dated 22.02.2021 absorbed 14 persons but the name of applicant was not there in the list. Subsequently, he made a representation which remained unheard and un- replied. Subsequently, the respondents passed an order dated 08.03.2021 (Annexure A-1) whereby the applicant was repatriated to his parent Department on 08.05.2021.
4. The applicant has challenged the above impugned order on the ground that he is senior to the persons included in the list for absorption and the applicant suffers from 80% locomotor physical disability and as per the relevant guidelines of DoP&T, he is entitled to be considered by relaxed standards even if he may be allowed in merit then the last candidate in the merit list. He has also referred to the policy guidelines dated 24.11.2016 (Annexure A-6) for deputation/absorption of combatised CAPFs & AR personnel in other organisations of which Para-13 6 O.A. No.936/2021 clearly mentions that personnel in low medical category would ordinarily be permitted to be absorbed in any borrowing Organisation/Department where they are working on deputation. Moreover, the condition of minimum 18 years is reduced to 15 years in case of low medical category personnel as per Para 17 of the same circular which makes in fully entitled for absorption.
5. The respondents, on the other hand, do not dispute that the window of giving an option for permanent absorption was opened temporarily as Accountant on the basis of existing recruitment rules of the post and the applicant was considered for the same along with the other candidates belonging to various CAPFs. As per the extant guidelines, each Pr.CCAs/CCAs/CAs shall constitute a Screening Committee in their respective offices for the purpose of consideration and recommendation of all such eligible deputationists for permanent absorption as Accountant in CCAS. The Screening Committee was to submit a certificate with proper justification that the cases recommended for permanent absorption fall under exceptional category, in public interest and exceptional circumstances. The Screening Committee evaluated 61 eligible deputationtis 7 O.A. No.936/2021 working in Principal Accounts Office (Administration) and found 41 ineligible for absorption for various reasons. The Screening Committee then evaluated the service records, ACRs and Vigilance Clearance Certificate of remaining 20 eligible or suitable deputationists including applicant's case. To assess their eligibility/suitability for absorption as Accountant on the basis of existing RRs, the post of Accountant in CCAS cadre as per the extant recruitment rules is classified as "Ministerial Post" and Accountant "only the deputationists with an exceptionally good performance on completion of 02 years of deputation may be considered for absorption". The Screening Committee had also decided to give preference to the Ministerial Candidates while giving recommendation in the merit list. Thus, the Screening Committee recommended 15 deputationists on merit basis for absorption, keeping in view the criteria of 10% of CGLE/2017. Out of these 15 deputationists, six deputationists were holding Ministerial post and the remaining 9 were holding non-ministerial post in their parent cadre. But their performance was "Outstanding". So far as the petitioner is concerned, he was holding a "Non-Ministerial/General Duty" post in his parent cadre. 8 O.A. No.936/2021 The Screening Committee considered his case but did not recommend him for absorption as his performance was not "Outstanding" for the last two years. After that on completion of 7 years, the applicant was repatriated with effect from 08.05.2021 with the direction to report back to his parent department i.e. DIG (Pers.) office of the DG SSB R.K.Puram, New Delhi vide office order dated 04.05.2021. Accordingly, the applicant reported at PHQ at 10.05.2021 and posted to Force Headquarters, SSB, New Delhi.
6. We have perused the pleadings on record and also heard Ms. Apurva Mahidiyan, learned for the applicant and Shri Gyanendra Singh, learned counsel for the respondents.
7. However, before entering into the merit of the case, we also deem it appropriate to go into the question of the jurisdiction of this Tribunal in the matter. The matter of jurisdiction of the CAT pertaining to CAPF was recently decided by this Tribunal on 06.03.2023 in OA No.367/2023 in the matter of Govindraju R.G. vs Union of India & Others. The issue of jurisdiction acquires significance as the applicant has not denied that he is not a member of combatised cadre and in fact he 9 O.A. No.936/2021 has cited certain provisions of the policy guidelines dated 24.11.2016 for deputation/absorption of combatised CAPF and AR (Personnel) as mentioned above. Also, on the strength of circular meant for combatised CAPF, he has sought certain relaxation as already indicated. Once we find that the applicant's terms and conditions of service including deputation and absorption are dealt with on the basis of said circular meant for combatised CAPF personnel, the issue of jurisdiction becomes paramount in the instant OA.
8. In this context, it is relevant to briefly mention the stand taken by this Bench of the Tribunal in OA No.367/2023 as the applicant in that OA was similarly placed in as much as he also belonged to the combatised CAPF. The case in OA No.367/2023 was that the applicant's deputation had been continued discontinued by the respondents. The applicant, who was an employee of SSB, was aggrieved by the order of the respondents due to denial of 'No Objection Certificate' (NOC) for his continuation for deputation for six years, despite the fact that NOC had already been granted by the concerned respondent for his absorption in the office of the CAT Principal Bench. The issue of jurisdiction was 10 O.A. No.936/2021 deliberated at length by this Tribunal and it was held as under:
"15. After taking into account the detailed arguments advanced in the matter, provisions of Sections 2(a), 3(q), 14, 19 and 28 of the Administrative Tribunals Act, 1985, and also the provisions of Article 323A of the Constitution of India, the Full Bench of this Tribunal has ruled in paras 7 and 9 as under:-
"7. ..... The Tribunal has not been conferred jurisdiction to adjudicate all types of disputes of the specified personnel. Jurisdiction is conferred only in relation to their recruitment and service matter. Other types of disputes of these personnel are outside the jurisdiction of the Tribunal. Section 2(a) is an exception to Section 14. Therefore, when Section 2(a) says that the provisions of Act shall not apply to a member of the armed forces of the Union, it means that the provisions of the Act shall not apply to adjudication of disputes relating to recruitment and service matters. In other words, the disputes in regard to recruitment and conditions of service of members of the armed forces of the Union are outside the purview of the Act. Mere membership of the armed forces of the Union is not enough to oust the jurisdiction of the Tribunal. The jurisdiction of the Tribunal would be ousted only if the dispute relates to recruitment to the armed force. We may illustrate the meaning with examples. Let us take the case of a person who had held a civil post under the Union of India, resigned from the said post and became a member of the armed forces of the Union. If after his becoming a member of the armed force of the Union, he applies to the Tribunal to recover arrears of pay in regard to the civil post held by him, can his application to the Tribunal be rejected on the ground that he was a 23 OA No.367 of 2023 member of 11 O.A. No.936/2021 the armed force of the Union on the date of the application? The answer can only be 'No'
9. Though the petitioner was a member of the Armed Force of the Union, the dispute which he has brought for adjudication before the Tribunal, does not relate either to recruitment to the armed force of the Union or the enforcement of any of the conditions of service as a member of the armed force of the Union. He is seeking to enforce his rights to consideration for appointment to the All India Service wholly unconnected with membership of the armed force of the Union. Hence, the provisions of Section 2(a) are not attracted. We, therefore, overrule the preliminary objection and hold that this application is maintainable."
16. In view of the aforesaid, we have to see as to whether the refusal of grant of NOC for extension of deputation of the applicant for 6th year started from 24.11.2022 and/or his permanent absorption under the Respondent No.3 by Respondent Nos.1 and 2 is connected with his membership of a combatised cadre of the SSB or not? As noted hereinabove, once the applicant is admittedly a member of a combatised cadre of the SSB, i.e., the armed force of the Union, refusal by the competent authority amongst the Respondent Nos.1 and 2 in issuance of NOC for his absorption under the Respondent No.3 cannot be construed not to be connected with the membership of the applicant of a combatised cadre of the SSB, the armed force of the Union. It would be evident from the Full Bench Order/Judgment of this Tribunal in the case of Satyendra Narayan Pandey (supra), answer 'No' to the reference before the Full Bench is for the reason that dispute raised had nothing to do with the membership of the applicant therein of the armed force of the Union. However, in the case in hand, we are of the considered view that the issue raised relates to membership/service matter of member of the armed force. The definition of the expression 'service matters' has been considered by 12 O.A. No.936/2021 the Full Bench in the Judgment under reference which is as under:-
"3.(q). 'service matters' in relation to a person, means all matters relating, to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, as the case may be, of any corporation (or society) owned or controlled by the Government, as respects -
(i) remuneration (including allowances), pension and other retirement benefits;
(ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation;
(iii) leave of any kind;
(iv) disciplinary matters; or
(v) any other matter whatsoever;"
17. Therefore, in our considered view the aforesaid Order/Judgment of the Full Bench of this Tribunal does not help the arguments advanced on behalf of the applicant rather the same supports the preliminary objection raised on behalf of the Respondent nos.1 and 2. Accordingly, we are of the considered view that the present OA deserves to be dismissed for want of jurisdiction. The same is accordingly dismissed. However, it would be open to the applicant to seek the remedy before the appropriate forum in accordance with law."
9. Given the issue at hand and the above order, it is evident that even if the rank of concerned personnel, circumstances and relief sought in the two cases may 13 O.A. No.936/2021 not be the same, the fact remains that both the cases are connected with their membership of a combatized cadre of the SSB and once the applicant is admittedly a member of a combatized cadre of the SSB and the issues raised therein without doubt relate to membership/service matter of member of the armed forces, we are not in a position to adjudicate the same. Therefore, we are inclined to go by the order passed in OA No.367/2023 by this very Bench of the Tribunal.
10. Without going into the merit of the case, the present OA is dismissed due to lack of jurisdiction. However, it would be open to the applicant to seek the remedy before the appropriate forum in accordance with law. No order as to costs.
(Sanjeeva Kumar) (R.N.Singh) Member (A) Member (J) /kdr/