Central Administrative Tribunal - Delhi
Smt. Nasreen B. Siddiqui vs Union Of India Through on 25 March, 2010
Central Administrative Tribunal Principal Bench OA No. 983/2010 New Delhi, this the 25th day of March, 2010 Honble Mr. Justice V.K. Bali, Chairman Honble Dr. R.C. Panda, Member (A) Smt. Nasreen B. Siddiqui W/o Shri Mohd. Taufeeq R/o B-13, 1st Floor, Kalkaji, New Delhi. Working as Deputy Registrar, Employees Provident Fund Appellate Tribunal Applicant (By Advocate: Mr. S.K. Sinha) Versus 1. Union of India through Secretary, Government of India, Ministry of Labour & Employment, Shram Shakti Bhawan, New Delhi. 2. The Registrar, Employees Provident Fund Appellate Tribunal, Scope Minar, 4th Floor, Core-II, Lakshmi Nagar, New Delhi. 3. The Director, Directorate of Training and Employment, Government of Uttar Pradesh, Lucknow, Uttar Pradesh. Respondents ORDER (ORAL) Justice V.K. Bali, Chairman:
Nasreen B. Siddiqui, Deputy Registrar in Employees Provident Fund Appellate Tribunal (hereinafter referred to as EPFAT), applicant herein, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking to quash and set aside order Annexure A/1 dated 03.03.2010 served on her on 09.03.2010 whereby her request for permanent absorption has been declined. The impugned order Annexure A/1 reads thus:-
I am directed to refer to your letter No.EPFAT/PO/2010/1 dated 2nd February, 2010 on the above mentioned subject and to state that the request of Smt. Nasreen Bano Siddiqui, Deputy Registrar, EPFAT (on deputation) for permanent absorption in the Department has been examined in this Ministry and it is regretted that the same cannot be acceded to since the recruitment rules of the post do not have any provision for absorption.
2. Brief facts as projected in the Application reveal that the applicant is working as Deputy Registrar in EPFAT w.e.f. 01.03.2004 on deputation. She initially came on deputation for a period of three years. The period of deputation was to expire on 01.03.2007. It is the case of the applicant that respondents initiated process of filling up the post and issued circulars in this regard inviting applications from eligible candidates but no application was received in response thereof. In the meantime, on the basis of her performance, the applicants appointment on deputation as Deputy Registrar was extended for 2= years. The applicant made two representations - one for extension of her period of deputation due to the fact that her children, who are pursuing their studies at Air Force Bal Bharti School, New Delhi, may not suffer on account of displacement at the mid academic session, and the other representation was made on 01.09.2009 for permanent absorption as Deputy Registrar in EPFAT. It is the case of the applicant that Presiding Officer of EPFAT made a strong recommendation for absorption of the applicant as also for extension. The then Presiding Officer as also the present Presiding Officer have stated in categorical terms that applicants services are required in the interest of the department.
3. With regard to representation for extension of deputation period, when the respondents refused to grant any extension beyond 25.09.2009, the applicant filed Application bearing OA No.2763/2009 before this Tribunal, which came up for hearing for the first time on 25.09.2009, when we recorded the following order:-
Inter alia contends that both the lending and borrowing departments have consented for continuing the deputation of the applicant but DOP&T has extended only upto 25.09.2009. The counsel further contends that applicant wants to be on deputation only upto March, 2010. For variety of reasons, including that her children are studying and repatriation of the applicant at this stage may result in the suffering of the children in the matter of education.
4. While issuing notice on 25.09.2009, we stayed repatriation of the applicant. That matter had been coming up for hearing on different dates but somehow the same could not be finally disposed of. However, when the matter came up for hearing on 05.03.2010, considering that the prayer of the applicant was only that she wanted to stay up to 31.03.2010 and the said date was not too far, we after reproducing the order passed on 25.09.2009 finally disposed of the said OA by observing as follows:-
2. Somehow the matter could not be finalized and meanwhile the month of March has arrived. Inasmuch as the applicant wants to stay only upto 31.03.2010, for variety of reasons, some of which have been mentioned in the order reproduced above, we are of the view that there would be no harm if the applicant stays at the present place of posting upto 31.03.2010 and joins her parent department by 1st April, 2010. Disposed of accordingly.
5. It is on the heels of decision of the O.A. aforesaid that present Original Application, for the reliefs as already indicted above, has been filed. When present Application came up for hearing on 23.03.2010, it was our impression that the applicant had made no averments with regard to seeking her permanent absorption in EPFAT in her earlier OA. It, prima facie, appeared to us that if the said fact was not disclosed, it may be a case where the applicant had suppressed the material facts, inasmuch as, the prayer of the applicant so specifically stated and even recorded in the interim order, was to stay in Delhi up to March, 2010 for the only reason that her repatriation at that stage would adversely affect the education of her children. Since we were not sure, we ordered records of OA No. 2763/2009 to be tagged up with this OA and passed the following order:-
Prima facie, it appears that when the earlier OA No.2763/2009 was decided by this Tribunal, the Applicant suppressed the fact of her seeking permanent absorption. It is our impression that applicant nowhere mentioned with regard to her seeking permanent absorption in the department. However, to find out the correct facts we will order the records of the OA to be tagged with this case for reference.
6. The Registry in obedience to the order referred to above, has tagged up the records of OA No. 2763/2009. Perusal of the same confirms our impression. Not a single word with regard to applicants seeking permanent absorption and the orders that may have been passed from time to time has been mentioned. The facts as mentioned above would manifest that the applicant intentionally concealed the fact of her seeking permanent absorption. It appears that her intention was to first seek extension of her deputation up to March, 2010 on compassionate grounds, and when she may succeed in her said endeavour, then to seek permanent absorption. Surely, if both the reliefs were to be joined together, the compassion of the court may not have come to the rescue of the applicant to extend ad interim her deputation by staying the order of repatriation. Even though, the present Application needs to be dismissed for suppression of material facts from this Tribunal, we have yet dispassionately gone into the contentions raised by the learned counsel seeking permanent absorption of the applicant in EPFAT.
7. What appears from the records of the case is that on 02.07.2009, the applicant was informed that her period of deputation came to an end on 25.09.2009. On 08.09.2009, representation made by the applicant dated 01.09.2009 for permanent absorption as Deputy Registrar was forwarded by the Registrar, EPFAT, which has been declined by the respondents, vide orders dated 03.03.2010, which we have since already reproduced hereinabove.
8. Perusal of the order dated 03.03.2010 would reveal that in the recruitment rules, there is no provision for permanent absorption. Before we may proceed in this case, we would like to mention that perusal of the counter reply filed on behalf of the respondents in OA No. 2763/2009 would reveal that as per DOP&T O.M. dated 25.02.2009, no extension could be considered beyond fifth year. Further, as per direction of DOP&T that the post of Deputy Registrar, EPFAT should be filled by 25.09.2009, second respondent completed the process to fill up the post with the approval of the competent authority, i.e., Labour & Employment Minister. In paragraph 4(vi) of the reply, it is stated that selection for the post held by the applicant has already been made and the incumbent, who has been selected, is unable to join only because this Tribunal had granted stay and she is in waiting. The factum of selection/appointment of Deputy Registrar in EPFAT is reiterated in paragraph 5(b) stating that selection has already been made as per recommendations of the Selection Committee duly constituted under the recruitment rules and approved by the competent authority, and that the newly appointed Deputy Registrar is not able to join the post because of the stay granted by this Tribunal.
9. We have heard learned counsel for the applicant and with his assistance examined the records of the case. The applicant has stayed for the maximum period a person can remain on deputation. It is not disputed during the course of arguments that the rules of the organization where the applicant is working do not provide for any absorption. Despite that, what is being urged is that Government has power to relax the rules. Reliance for that is placed on Rules known as Employees Provident Fund Appellate Tribunal (Employees) Recruitment Rules, 1999, Rule 7 of the said Rules reads as follows:-
7. Power to relax: - Where the Central Government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing relax any of the provisions of these rules with respect to any class or category of persons.
10. Present does not appear to be a case of relaxation of rules. As mentioned above, the rules for absorption do not exist at all. That apart, if the rules have to be relaxed, the same can only be done by an order for reasons to be recorded in writing with respect to any class or category of persons, and an individual cannot be treated to be a class or category of persons. The applicant wants relaxation in rules only for herself, which is not permissible under rule 7. We repeat and reiterate that rules cannot be relaxed for an individual as is clearly made out from rule 7 of the Rules, and rules can be relaxed only for a class or category of persons. That apart, there does not appear to be any reason to relax the rules in favour of the applicant. As long as perhaps, the substitute of the applicant could not have been found, there was necessity to continue the applicant and she was indeed continued up to the maximum period, but on an attempt now made to find substitute of the applicant, the incumbent has since been selected and appointed, but she is unable to join only because of the stay granted by the Tribunal.
11. Mr. Sinha, learned counsel for the applicant, on the basis of pleadings made in ground (F) of para 5 of the Application would contend that one Lt. Col. P.K. Chaturvedi was appointed on deputation as Chief Engineer in EPFAT organization where the recruitment rules stipulated only deputation as method of recruitment. First respondent relaxed/modified the recruitment rules in order to facilitate permanent absorption of the particular gentleman, and he was permanently absorbed, vide order dated 17.11.2004. In the same very para, reference has also been given of two other persons who were appointed as Junior Engineer on deputation in the same organization and were permanently absorbed. The ground of discrimination vis-`-vis Ltd. Col. P.K.Chaturvedi and two others mentioned in para no. 5 (F) is thus sought to be made. We find no merit in the aforesaid contention of the learned counsel. In para (F) the applicant has herself averred that the method of recruitment was only by way of deputation. If that be so, surely a person on deputation can be absorbed. In the present case, we have found out from the rules available at page 51 of the paper book that the mode of appointment on deputation in the organization where the applicant has been working, is only by way of selection. The method of recruitment is also provided with regard to qualifications, which is degree of a recognized university or equivalent and desirable qualification is degree in law. It is not known whether the applicant fulfils the said qualification.
12. Before we may part with this order, we would like to mention that even though the applicant has served for the maximum period on deputation that she could possibly serve, this Tribunal had extended her term by way of interim orders by showing some indulgence in the matter. It is only compassion which became the reason for granting stay to the applicant, but that was only up to 31st March, 2010.
13. Finding no merit in this Original Application, the same is dismissed in limine.
(Dr. R.C. Panda) (V. K. Bali) Member (A) Chairman /naresh/