Central Administrative Tribunal - Delhi
Abha Tyagi D/O K.C. Sharma vs Secretary Services, Government Of Nct ... on 28 February, 2008
ORDER
V.K. Bali, J. (Chairman)
1. Abha Tyagi, the applicant herein, having rendered more than twenty years of service, out of which ten years were in grade of Rs. 6500-10500 on the post of Administrative Officer, and when she was waiting for her next promotion to the post of Deputy Director having already put in requisite number of years in the feeder post of Administrative Officer, consequent upon being declared surplus vide order dated 5.10.2004, has been redeployed on the post of Head Clerk in pay scale of Rs. 5000-8000. The applicant takes strong exception for relegating her to a pay scale which would be not only two stages below the status of Administrative Officer but also two scales below. This, it is her case, would be against CCS (Redeployment of Surplus Staff) Rules, 1990 (hereinafter to be referred as the Rules of 1990), and that the applicant has been singled out for invidious discrimination in the matter of redeployment, and further that the respondents have denied equivalent post in equivalent pay, even though when number of such posts are available with the respondents.
2. The facts on which the applicant has raised the questions as mentioned above while seeking to set aside order dated 2.12.2005, would need necessary mention. The applicant joined the Government of NCT of Delhi, first respondent, as LDC in February, 1981. She was transferred to Delhi Energy Development Agency (for short, DEDA), the second respondent, an undertaking of respondent No. 1, in the year 1984. She was promoted as Administrative Officer in the year 1994 in the pay scale of Rs. 6500-10500. The first respondent had taken a decision in October, 2004 whereby staff of the second respondent was sought to be declared surplus for re-deployment by the Services Department. An office order dated 5.10.2004 was issued in that connection. The second respondent is an undertaking of the first respondent owned and controlled wholly by it. The first respondent, it is the case of the applicant had decided to close down the undertaking, and that most of the staff has already been redeployed in other departments on similar and equivalent scales, while the remaining staff is yet to be redeployed. The undertaking is still functioning and has not yet been closed down, and the staff which has not been adequately and properly redeployed in equivalent scale and status as per the rules still continue to work with the second respondent. According to the decision of the Cabinet, all regular staff was to be adjusted in other departments, which would mean in equivalent post, status and scale. The applicant who was working as Administrative Officer in the pay scale of Rs. 6500-10500 has been redeployed on the post of Head Clerk in the scale of Rs. 5000-8000. It is the case of the applicant that Shri R.S. Sethi, the then Principal Secretary of the first respondent in his letter dated 6.10.2004 stated that the Directorate of Training and Technical Education would require the services of the applicant and another person for employment in the equivalent pay scale, and as such requested the Secretary (Services) to make available services of the applicant and the other person to the said Directorate as early as possible. However, the first respondent took no action on the said request. It is also the case of the applicant that some of the erstwhile employees of the second respondent, namely, Shri Rohtas Kanwar (Head Clerk) and Shri B. R. Solanki (Investigator) who were earlier working under the applicant for twelve years in scale of Rs. 5000-8000, joined the Government of NCT of Delhi in the year 2004 itself, where they are working as such. Before the deployment orders, in the respondent-undertaking, after the scale of Rs. 5000-8000 there was the scale of Rs. 5500-9000 and another higher scale of Rs. 6500-10500, on which scale the applicant had been functioning. Under the recruitment rules of the respondent-undertaking, an Administrative Officer working for more than eight years was entitled to promotional post of Deputy Director carrying pay scale of Rs. 10000-15200 (revised). The applicant has been working as Administrative Officer with the second respondent for nearly 13 years, she was entitled to be considered for the promotional post of Deputy Director under Career Advancement Scheme after rendering twelve years' service as Administrative Officer, but instead of considering further promotion in the parent cadre, she is being sought to be demoted in terms of pay scale as well as post in the new department where she is sought to be redeployed. The applicant protested against the same by sending representation dated 14.12.2005, but the same was cold-shouldered by the respondents. It is further her case that the post and pay scale on which she is sought to be sent now by virtue of office order dated 2.12.2005 is not only much lower to what she had been getting in the respondent-undertaking, but is also in the pay scale of persons who had been much junior to her in the parent cadre. On the facts as mentioned above, the applicant pleads that redeployment could be done on the equivalent status and the pay scale is required to be protected, and once, the applicant is being placed on a far lower pay scale on redeployment, the order would be illegal. It is also pleaded that under the redeployment rules of 1990, the pay scale of surplus staff has to be protected. It is also the case of the applicant that by virtue of impugned office order dated 2.12.2005, all persons from serial number 1 to 15 (irrespective of their existing scales) are being sought to be redeployed at the common pay scale of Rs. 5000-8000, and the pay scale of persons from serial number 1 to 6 is Rs. 6500-10500, and all of them are being collectively redeployed at a common scale of Rs. 5000-8000, and that as against this, persons at serial number 7 to 13 in the same office order who are drawing the existing pay scale of Rs. 5000-8000 are also being redeployed in the same pay scale of Rs. 5000-8000. The applicant pleads that it is a case of discrimination between persons at serial number 1 to 6 on the one hand and persons at serial number 7 to 15 on the other. The applicant also pleads that as a result of the impugned order, she would have to work under her own subordinates and juniors, namely, Shri Rohtas Kanwar (Head Clerk) and Shri B. R. Solanki (Investigator), who had joined the redeployed department earlier in December, 2004. The impugned order, it is further stated, would adversely affect the entire career of the applicant since her service rendered prior to redeployment would not count towards seniority in the post on which she is sought to be redeployed. The applicant has called in question this condition of her redeployment as well.
3. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their counter reply contested the cause of the applicant. It has inter alia been pleaded in the counter reply that perusal of the Rules of 1990 would reveal that where a suitable vacancy in a post carrying matching scale of pay is not available, the surplus staff may be redeployed in a post carrying non-matching scale of pay. The applicant was working in the pay scale of Rs. 6500-10500 and her redeployment was to be first considered in the same pay scale, i.e., matching scale, and in the event of non-availability of matching scale, she could be redeployed in a non-matching pay scale provided the said non-matching scale should be in next lower rung in the promotional ladder of the post of the level currently held by the applicant. In the instant case the applicant was working in scale of Rs. 6500-10500 and she has been redeployed in Grade-II (DASS) in the pay scale of Rs. 5000-8000 (revised as Rs. 5500-9000 w.e.f. 1.12.2006 by the Government of NCT of Delhi vide order dated 1.2.2007). It is then pleaded that Grade-II (DASS) in the pay scale of Rs. 5500-9000 (revised) is the feeder cadre for promotion to Grade-I (DASS) in pay scale Rs. 6500-10500 and, therefore, the post of Grade-II (DASS) is next lower rung in the promotional ladder of the post of the level currently held by the applicant, and that while redeploying her in Grade-II (DASS) in pay scale Rs. 5000-8000 (revised Rs. 5500-9000) she is permitted to carry her current pay scale in terms of the provisions of the Rules of 1990, meaning thereby that her pay is protected, and, therefore, no pecuniary loss is caused to her. It is the case of the respondents that redeployment is always done against the direct recruitment quota as laid down under the rules. In the case of three surplus officers of respondent No. 2 who are in the higher pay scales of Rs. 8000-13500 and Rs. 12000-16500, the Services Department had referred their cases to the UPSC and the DOP&T to opine the future course of action required to be taken for their redeployment, and in turn the UPSC vide letter dated 18.10.2005 has observed that the three officers proposed to be absorbed are employees of an undertaking of the Government of NCT of Delhi and as such are not civil servants within the meaning of surplus staff or surplus employees as defined in Rule 2(g) of the Rules of 1990. The respondents plead that the power to abolish any civil post is inherent in every sovereign government and such abolition would not entail any right on the person holding the abolished post the right to re-employment or to hold the same post. Insofar as the representation of the applicant is concerned, it is pleaded that the same was rejected vide order dated 10.7.2006, the operative part whereof reads as follows:
Their plaints have been examined meticulously by the Services Department in light of the provisions of the CCS (Redeployment of Surplus Staff) Rules, 1990. All these surplus employees have been redeployed as Gr. II (DASS) in the pay scale of Rs. 5000-8000/- i.e. in a non-matching post/pay-scale. In Govt. of NCT of Delhi Gr. II (DASS) in the pay scale of Rs. 5000-8000/- are promoted in the pay scale of Rs. 6500-10500/- as Gr. I (DASS). Therefore, the said post of Gr.II (DASS) is next lower rung in the promotional ladder of the post of the level currently held by them. However, while redeploying them in Gr.II (DASS) in the pay scale of Rs. 5000-8000/- they are permitted to carry their current pay scale in terms of the CCS (Redeployment of Surplus Staff) Rules, 1990.
As the points raised in their plaints do not have any merit to review Services Department order dated 02.12.2005 redeploying them as Gr.II (DASS) in Govt. of NCT of Delhi, the request made by them could not be acceded to. However, option is open to them to deny their joining as Gr.II (DASS) in Govt. of NCT of Delhi and approach DEDA for benefit of retrenchment/VRS.
It is the case of the respondents that as per the scheme of redeployment of surplus staff/CCS Rules, the service prior to redeployment would not count towards seniority in the new organization/new post to which the surplus employee joins on his/her redeployment.
4. During the pendency of this Application, the applicant filed rejoinder as also an additional affidavit in May, 2007 wherein it is stated that the Cabinet of Government of NCT of Delhi vide its decision dated 3.8.2004 decided to dissolve the respondent No. 2 undertaking after obtaining approval of the Government of India., and that the approval of the Government of India, to the knowledge of the applicant, has not yet come. It is the case of the applicant that the Cabinet inter alia decided to redeploy the remaining 97 employees including the applicant in Government of NCT of Delhi, and consequently the Services Department vide its order dated 5.10.2004 declared 97 employees as surplus and the applicant had figured at sl. No. 7 of the list (Annexure A-3). It is her case that unless approval is accorded by the Government of India, redeployment is per se bad and illegal. It is further stated in the additional affidavit that the stand taken by the respondents that vacancies in the matching scale are not available with the Government of NCT of Delhi, is incorrect. The applicant, once again, refers to Annexure A-4 wherein the Principal Secretary had asked for the services of the applicant posted as Administrative Officer in an equivalent capacity. It is then pleaded that at least 300 posts of Superintendents in the matching scale are lying vacant with the Delhi Government, and out of the above posts, 150 posts of Superintendents are vacant in Education Department alone.
5. Without prejudice to the aforesaid, it is pleaded that redeployment of the applicant vide impugned order, in the pay scale of Rs. 5000-8000 is also illegal as the applicant was entitled for placement in the equivalent post carrying the same status and pay scale as that of Administrative Officer, and that the respondents, as a matter of fact, by redeploying the applicant as Head Clerk in pay scale of Rs. 5000-8000 have brought her down to three levels in the hierarchy in terms of the posts in promotional channel. The applicant was promoted from the post of Personal Assistant in the pay scale of Rs. 5000-8000 to the post of Senior P.A. in the scale of Rs. 5500-8000 and thereafter as Private Secretary w.e.f. 16.2.1992 in the scale of Rs. 6500-10500 [Rs.2000-3200 (pre revised)], and as such by redeploying her in the pay scale of Rs. 5000-8000 the respondents have reduced her to three posts down, which is totally illegal and arbitrary, and that revision of pay scale of Rs. 5000-8000 to Rs. 5500-9000 w.e.f. 1.12.2006 would be of no help to the respondents since the redeployment has to take place on the basis of the pre-revised pay scale in October, 2004. The stand of the respondents that CCS Rules are not applicable to the staff of undertakings is disputed. It is pleaded that the rules applicable to the government employees mutatis mutandis apply to employees of undertakings also where there are no specific rules prescribed by the autonomous bodies, and in any case, since the Rules of 1990 have specifically been made applicable in the present case, the respondents cannot take contradictory stand to say that the same are not applicable, and that redeployment can thus be made only according to the rules. It is pleaded that DEDA is totally owned, controlled and funded by the Government of NCT of Delhi and the Fifth CPC scales and CCS and all other rules applicable for employees of Government of NCT of Delhi are applicable to DEDA. The Director of DEDA is an IAS Officer and the Chairman, DEDA is also the Secretary of the Government, again an IAS Officer of the Government of NCT of Delhi. The plea raised by the respondents that equivalent posts are not available has also been disputed. The applicant has once again made reference to D.O. dated 6.10.2004 vide which Principal Secretary, Directorate of Training and Technical Education, had written to Secretary (Services) that equivalent capacity post was available in the Directorate, which was equivalent to that of Administrative Officer, and despite equivalent post being available, the first respondent did not redeploy the applicant in the Directorate. It is then pleaded that even though specific pleading with regard to D.O. aforesaid has been made and the same has even been placed on record along with the Application, but the respondents have not filed any reply to the same, and that in addition to aforesaid equivalent post, there are number of posts of Assistant Director, PCS and Superintendents lying vacant with respondent No. 1 in the matching scale. The plea with regard to posts lying vacant with the Education Department has been reiterated. The plea raised by the respondents that redeployment is always done against direct recruitment quota has also been disputed. It is pleaded that there is no such provision under the 1990 Rules. In the order of the Lieutenant Governor, Delhi, the relaxation, insofar as the mode of recruitment is concerned, has also been specifically given. This relaxation, it is pleaded, on face of it would show that the stand of the respondents that redeployment is done only against direct recruitment quota is absolutely baseless. Rules 4, 5 and 6 of the 1990 Rules categorically provide that surplus employees' status is to be protected in matching vacancies available.
6. This case came up for hearing on 14.8.2007 when the Learned Counselrepresenting the parties had addressed substantial arguments. During the course of arguments, the Learned Counselrepresenting the respondents sought time to file reply to the rejoinder as well as to the additional affidavit filed by the applicant. The request was opposed by the counsel representing the applicant, but in the interest of justice, we allowed the respondents to file reply to the rejoinder as well as to the additional affidavit.
7. Respondents have filed reply to the rejoinder, wherein it has inter alia been pleaded that dissolution of DEDA has nothing to do with the redeployment of the applicant, and that the remaining 97 officials of DEDA were declared surplus vide Cabinet decision dated 3.8.2004. Nevertheless, DEDA is being wound up for the reason that it is not profitable to the Government. The process of dissolution is to take place in due course of time after following the due procedure. The applicant is surplus staff of DEDA. At the time of her being declared surplus, the applicant was working as Administrative Officer in the pay scale of Rs. 6500-10500. She was declared surplus under the 1990 Rules vide order dated 5.10.2004 and has been redeployed in terms of the said Rules as Grade-II (DASS) in pay scale of Rs. 5000-8000 (revised as Rs. 5500-175-9000) w.e.f. 1.12.2006 by the Government of NCT of Delhi vide order dated 1.12.2007, and she has been posted in the Directorate of Education vide order dated 2.12.2005. It is further pleaded that the Rules of 1990 are made purely for the government establishment and not for the staff of undertakings/autonomous bodies, and DEDA is not a purely government establishment, instead it is an undertaking/autonomous body, and in strict sense the Rules of 1990 are not at all applicable to surplus staff of DEDA. The government, however, with a view to see that the staff of DEDA may not be rendered jobless, took a decision to redeploy them under the said Rules with due approval of the Hon'ble Lt. Governor, Delhi. So far as D.O. dated 6.10.2004 of the Principal Secretary, Directorate of Training and Technical Education is concerned, it is pleaded that the answering respondent, Services Department, is itself fully competent to redeploy surplus staff of DEDA, including the applicant, and the Directorate of Training and Technical Education has no role to play in redeployment of surplus staff of DEDA. It is then pleaded that the designations of the officials working in an autonomous body are different from those of the government, and, therefore, while redeploying the surplus staff, including the applicant, the Services Department has sincerely and scrupulously followed the Rules of 1990, and has given due consideration to the advice/opinion of UPSC/DOP&T and the hierarchical set up in the Government. The hierarchical set up in the Government of NCT of Delhi in DASS cadre starts from Grade-IV (DASS)/LDC in pay scale of Rs. 3050-4590 and goes up to Grade-I (DASS) in pay scale of Rs. 6500-10500. The posts in between are Grade-III (DASS)/UDC in pay scale of Rs. 4000-6000, Grade-II (DASS)/Head Clerk in pay scale of Rs. 5000-8000 (Rs.5500-9000 revised w.e.f. 1.12.2006), and that being so, the plea raised by the applicant that her deployment has been made two-three rung below is baseless.
8. In the additional affidavit filed on behalf of the respondents, it has inter alia been pleaded that on 3.11.1998 the Government took a decision that some of the activities of DEDA were not economically viable, and, therefore, staff of battery bus unit of DEDA was declared surplus vide order dated 30.11.1999. Thereafter employees were declared surplus as and when their services became surplus in DEDA. Accordingly, the Services Department redeployed the staff under the Rules of 1990, under various orders and posted them in different departments of the Government of NCT of Delhi on humanitarian grounds with prior approval of the Lt. Governor. Out of a total strength of 337 staff of DEDA, 333 were declared surplus vide orders passed on various dates. The office of the answering respondent redeployed 319 as out of a total of 333 surplus staff, three were terminated and one had retired before they could be redeployed, thus leaving behind only ten officials of DEDA. The process for redeployment of the remaining ten surplus employees of DEDA is said to be under consideration of the government, and their redeployment could not be done for the reason that four of them are in higher scale of pay and six were facing disciplinary proceedings. While making reference to the Cabinet decision dated 3.8.2004, it is pleaded that in compliance with the decision aforesaid, the government had been approached to accord approval for dissolution of DEDA, however, the approval of the government is still awaited. Separately, the Chairperson, DEDA vide order dated 5.7.2006 transferred all the activities of DEDA to the Mahatma Gandhi Institute of Integrated Rural Energy Planning and Development, and constituted a committee for disposal of the remaining assets of DEDA. Further, separately, the remaining 97 staff of DEDA were also declared surplus vide order dated 5.10.2004. It is pleaded that the cases of three surplus officers of DEDA who were in the higher pay scale of Rs. 8000-13500 and Rs. 12000-16500 were referred to UPSC and DOP&T to opine the course of action that may be taken in the matter of their redeployment. In turn the UPSC vide letter dated 18.10.2005 observed that the three officers proposed to be absorbed were employees of an undertaking of the Government of NCT of Delhi and as such were not civil servants within the meaning of surplus staff or surplus employees as defined in rule 2(g) of the Rules of 1990. The DOP&T vide letter dated 20.10.2005 observed that since the employees of government undertakings are not covered under the Rules of 1990, it had no comments to offer. In view of letters of UPSC and DOP&T, it is pleaded that the Services Department can redeploy a surplus employee only in a post under the domain of the Government of NCT of Delhi, however, if any vacancy carrying matching pay scale, i.e., Rs. 6500-10500 of direct recruitment quota in regular departments exists, that too cannot be filled up through redeployment under the Rules of 1990, in view of observations of UPSC and DOP&T. It is again reiterated that redeployment is always made against the direct recruitment quota as may be made out from rule 3(2)(i) of the Rules of 1990.
9. The applicant has filed reply to the additional affidavit filed by the respondents, wherein it is pleaded that DEDA has been wholly owned, controlled and funded by the Government of Delhi/Central Government, and it is only after having recognized this fact that the government issued the redeployment order dated 2.12.2005 in accordance with the provisions of the Rules of 1990. Insofar as the case of three officers, as mentioned above, is concerned, it is pleaded that the applicant was occupant of a post equivalent to Group 'B' status for which the Lt. Governor is the competent authority, and the averments made with regard to UPSC and DOP&T are not relevant in the case of the applicant. It is then pleaded that the Lt. Governor vide order dated 2.12.2005 had categorically relaxed the rules pertaining to recruitment etc. in respect of the surplus officials and, therefore, there would be no reason not to grant the same status and pay scale to the applicant, as it would be well within the domain of the Government of NCT of Delhi, and UPSC and DOP&T are not concerned, and that necessary relaxation in the recruitment rules to this effect has already been explicitly accorded by the Lt. Governor in the order dated 2.12.2005.
10. Respondents have filed yet another additional affidavit wherein it is pleaded that as on 23.11.2007 total number of 354 vacant posts of Superintendent [Grade-I (DASS)] are lying in the Government of NCT of Delhi, out of which 229 vacant posts of Superintendent [Grade-I (DASS)] are lying in the Directorate of Education. Earlier the post of superintendent was gazetted post in Government of NCT of Delhi and as per recruitment rules for the post of Superintendent [Grade-I (DASS)] all vacant posts are required to be filled up through promotion only. In view of provisions of rule 3 of the Rules of 1990, redeployment is required to be made on the posts of direct recruitment, and, therefore, redeployment of the applicant cannot be considered against the post of Superintendent [Grade-I (DASS)].
11. On the pleadings as culled out above, Shri K.C.Mittal, Learned Counselrepresenting the applicant, contends that as per Cabinet decision dated 3.8.2004 DEDA was to be dissolved after obtaining approval of the Government of India as per memorandum of association/bye-laws of the society. The Government of India, it is urged, it is conceded position emerging from the counter reply and the additional affidavits filed by the respondents, has not accorded approval for dissolution of DEDA, and that being so, the applicant shall be deemed to be on the rolls of DEDA on the post of Administrative Officer, and the very order redeploying her in the circumstances aforesaid would be wholly illegal and without jurisdiction. We have given our thoughtful consideration to the contention of the Learned Counselnoted above, but find no merit therein whatsoever. Assuming that it is only after the Government of India gives its approval that DEDA would be dissolved, but the fact remains that because of financial crunch and other related situations which are not under challenge, all the employees, by stages, have been declared surplus. It is not necessary to declare an employee surplus only after an organisation, institution or a society under the Societies Registration Act, as DEDA is, is dissolved. In a given case, an institution may not be dissolved at all and yet some of its employees could be rendered surplus. That being so, the mere fact that Government of India has not given so far its approval to dissolve DEDA would not mean that the applicant would continue to be holding the post of Administrative Officer in DEDA. It may be recalled that number of employees were declared surplus earlier and redeployed. In the order dated 5.8.2004 it is clearly recorded that remaining 97 employees, which included the applicant as well, were declared surplus and would be redeployed by the Services Department. Vide order dated 5.10.2004, consequent upon decision of the Cabinet approved by the Lt. Governor, the staff mentioned therein, including the applicant shown at Sl. No. 7, were actually declared surplus for redeployment by the Services Department, and vide order dated 2.12.2005 the applicant, consequent upon her being declared surplus, has indeed been redeployed. Irrespective thus of dissolution or otherwise of DEDA, the applicant has been declared surplus and redeployed. Non-dissolution of DEDA for want of approval of the Government of India, in our considered view, would be wholly immaterial. We may mention that Shri Mittal, Learned Counselrepresenting the applicant, when confronted with the position aforesaid, was fair enough not to insist upon and press the plea raised by him, as mentioned above.
12. The next contention of Shri Mittal, Learned Counselrepresenting the applicant, is that even though, number of posts of equivalent status as held by the applicant in DEDA are lying vacant, the respondents would not accommodate the applicant on the said post despite the fact that the Rules of 1990 clearly envisage that a surplus employee shall, subject to suitability, be redeployed in a post carrying a pay scale matching his current pay scale. Per contra, Shri Pandita, Learned Counselrepresenting the respondents, without disputing the availability of vacancies in equivalent status, would contend that the same are in the promotional quota and in view of provisions of the Rules of 1990, redeployment can be made only against the posts which may be in the quota of direct recruitment. With a view to determine the controversy as reflected above, the provisions of Rules of 1990 shall have to be taken into consideration. Rule 4 of the Rules deals with redeployment of surplus staff. Relevant part thereof reads as follows:
(1) Against vacancies in Groups 'A' and 'B' Services or posts - The surplus employees recommended by the Cell will be entitled to first priority for appointment to the vacancies in Groups 'A' and 'B' Services or posts filled by direct recruitment including those filled through the Commission (otherwise than on the basis of a competitive examination held by the Commission), or by transfer:
Provided that they are found suitable by the Commission or other prescribed authority and no suitable disabled defence services personnel are available with them for appointment to such vacancies.
Rule 5 dealing with determination of placement, insofar as the same is relevant, reads as follows:
(1) (i) As far as possible, a surplus employee shall, subject to his suitability, be redeployed in a post carrying a pay scale matching his current pay scale. (ii) For the purpose of Clause (i), a matching pay scale shall mean a pay scale the maximum of which is equal to that of the pay scale of the surplus employee, and the minimum of which is not higher than the basic pay (including the stagnation pay) which the surplus employee is in receipt of at the time of making his nomination.
(2) Where a suitable vacancy in a post carrying matching scale of pay is not available, the surplus employee may be redeployed in a post carrying a non-matching pay scale:
Provided that,-
(i) the maximum of the pay scale of such post does not exceed the maximum of the pay scale of the surplus employee by more than 10 per cent; and
(ii) such post is not lower than the post which forms, or would ordinarily form, the next lower rung in the promotional ladder for the incumbents of the post of the level currently held by the surplus employee:
Provided further, that,-
(i) a surplus employee who is sponsored or nominated against a post carrying a pay scale with a higher maximum, in terms of Clause (i) of the first proviso above should either have the qualifications, as prescribed for appointment to the post by direct recruitment or by transfer, or should have been successfully performing in his parent department the duties attached to such post; and
(ii) when redeployed in a post carrying a lower scale of pay, the surplus employee shall be permitted to carry his current pay scale along with him to the next post but this benefit shall not be extended where, despite availability of a post in a matching or a higher pay scale, a person is redeployed in a post carrying a lower pay scale at his own request.
Perusal of rule 5 would manifest that redeployment of an employee has to be done in a post carrying a pay scale matching his current pay scale, as far as it may be possible. Insofar as, possibility of redeploying the applicant in a post carrying a pay scale matching her current pay scale is concerned, there is no dispute. Such vacancies being in existence is neither disputed in the pleadings nor during the course of arguments. Insofar as, Sub-rule (1) of rule 4 that pertains to redeployment of surplus staff is concerned, it appears to this Tribunal that surplus employees would be entitled to first priority for appointment to the vacancies in Groups 'A' and 'B' services or posts filled by direct recruitment. In our considered view, entitlement of a surplus employee to first priority for appointment to the vacancy in the quota of direct recruitment would not exclude the entitlement of such an employee to a post in the quota of promotees. It clearly appears to us that in the first instance, effort has to be made to redeploy a surplus employee on a post which may be in the quota of direct recruitment. That apart, there is no provision in the Rules of 1990 which may debar a surplus employee to be redeployed on a post which may be in the quota of promotees. The issue shall be clinched and would become beyond pale of controversy if one is to refer to order dated 2.12.2005 vide which as many as 15 employees were redeployed. Their redeployment, it is clearly mentioned, is in accordance with the provisions of the Rules of 1990 in the Government of NCT of Delhi. The relevant part of the order reads as follows:
The Hon'ble Lt. Governor, Delhi has granted the necessary approval for the relaxation in the Recruitment Rules as provided in the CCS (Redeployment of Surplus Staff) Rules, 1990 regarding mode of recruitment, Medical examination etc. in respect of all the officials and educational qualification in respect of the officials at Sl. Nos. 7 to 12 & 15 in the table above.
Assuming, therefore, that Sub-rule (1) of rule 4 can be interpreted to mean that a surplus employee can be adjusted only against a post meant to be occupied by a direct recruit, the same has since been relaxed by the very order by which the applicant has already been redeployed. Approval for relaxation in recruitment rules as provided in the Rules of 1990 has specifically been granted by the Lt. Governor, Delhi, and insofar as the applicant is concerned, the said relaxation also pertains to mode of recruitment. The name of the applicant figures at serial number 2 in the order dated 2.12.2005. It is not the case of the respondents either in the pleadings or during the course of arguments that the approval to relax the recruitment rules is against the law. In our considered view, rule 4(1) cannot be interpreted to mean that a surplus employee can be redeployed only on the post that may be in the quota of direct recruitment. Be that as it may, if there is such an embargo, the same has been relaxed by the competent authority, and that being so, the applicant could not be refused redeployment on number of posts lying vacant, which are of equal status that the applicant held in DEDA. The applicant has not only referred to 300 posts of Superintendents in the matching scale lying vacant with the Delhi Government, out of which, 150 posts of Superintendents in Education Department alone, but also referred to D.O. dated 6.10.2004 of the Principal Secretary, Directorate of Training and Technical Education, which required the services of the applicant on equivalent status and pay. After referring to the office order dated 5.10.2004 whereby 97 employees including the applicant had been declared surplus, it has been mentioned as follows:
2. Sh. Kailash Sharma, LDC, Serial No. 37, is already working in the Directorate of Training and Technical Education after approval from the Services Department in a diverted capacity. In view of the latest order of DEDA, the services of Shri Kailash Sharma may be exclusively placed at the disposal of this Directorate.
3. In addition, this Directorate requires the services of Smt. Abha Tyagi, Administrative Officer, Serial No. 7, for appointment in an equivalent capacity. As such I would be grateful if her services could also be made available to this Directorate as early as possible.
It is interesting to note that initially the respondents would not give any reply with regard to the averment of the applicant pertaining to letter dated 6.10.2004 of the Principal Secretary, Directorate of Training and Technical Education. However, when this was highlighted in the rejoinder and/or additional affidavits filed by the applicant, the respondents have pleaded that so far as letter dated 6.10.2004 is concerned, the answering respondent, Services Department, is itself fully competent to redeploy surplus staff of DEDA, including the applicant, and the Directorate of Training and Technical Education has no role to play in redeployment of surplus staff of DEDA. Redeployment may be the responsibility of the Services Department, but we find no good reason coming forth as to why when a vacancy in an equivalent status and pay was available and the Services Department was requested to redeploy the applicant on that post, why it could not do the same. The applicant, in view of the observations made above, deserves to be redeployed on equal status on any of the posts lying vacant and the stand of the respondents in not accommodating her on any of such post appears to be illegal.
13. Before we may part with this order, we would like to mention that the plea raised by the respondents that surplus employees who were in the pay scale of Rs. 8000-13500 and Rs. 12000-16500 were not civil servants being employees of an undertaking of the Government of NCT of Delhi, and, therefore, would not be covered for redeployment under the Rules of 1990, we may only mention that Shri Mittal, Learned Counselrepresenting the applicant, during the course of arguments, handed over to us order dated 9.1.2008 whereby three officers in the pay scales mentioned above and who were declared surplus from DEDA, have been redeployed in Delhi Subordinate Services Selection Board (DSSSB) on equivalent posts they held in DEDA.
14. The applicant has filed an application bearing MA No. 1190/2007 seeking condonation of delay, wherein it has been pleaded that she had challenged order dated 2.12.2005, and that in addition, a writ was filed in the Delhi High Court on 24.3.2006 which was withdrawn with liberty to approach this Tribunal in accordance with law. Liberty to approach the Tribunal was granted on 1.12.2006 and the applicant came before this Tribunal on 22.12.2006. That being so, it is stated that the OA would be within time. It is also pleaded that even otherwise, the applicant had filed a representation on 14.12.2005 and, therefore, she had one year and six months' time to exhaust the limitation period w.e.f. 14.12.2005 till 13.6.2007, and, therefore, as well the Application would be within time. It appears that the application seeking condonation of delay has been filed as a matter of abundant caution. Be that as it may, there is no objection to the application as such.
15. In view of the discussion made above, this Application is allowed. Direction is issued to the respondents to accommodate the applicant on any of the vacant posts that may be equivalent in status and pay scale with that of Administrative Officer that she held in DEDA, as expeditiously as possible and preferably within a period of three months from today. In totality of facts and circumstances of this case, the costs of the litigation are made easy.