Central Administrative Tribunal - Delhi
Dalvir Singh vs M/O Finance on 12 March, 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.691 of 2019
Orders reserved on : 28.02.2019
Orders pronounced on : 12.03.2019
Hon'ble Ms. Nita Chowdhury, Member (A)
Hon'ble Mr. S.N. Terdal, Member (J)
Shri Dalvir Singh,
S/o Sh. Tilak Singh,
Aged about 41 years,
R/o 525/7, Jagrati Vihar,
Meerut (UP)
(Working as Accountant)
....Applicant
(By Advocate : Shri Amit Anand)
VERSUS
Union of India through
1. Secretary,
Ministry of Finance,
North Block,
New Delhi.
2. Controller General of Accounts,
Ministry of Finance,
Department of Expenditure,
Mahalekha Niyantrak Bhawan,
GPO Complex, E Block,
INA, New Delhi.
3. Pr. Chief Controller of Accounts,
Central Board of Excise & Customs,
1st Floor, AGCR Building, New Delhi.
4. Sr. Accounts Officer (Admn)
O/o Pr. Chief Controller of Accounts,
Central Board of Excise & Customs,
1st Floor, AGCR Building, New Delhi.
5. Joint Director,
Directorate of Handloom and Textiles,
G.T. Road, Kanpur (UP).
.....Respondents
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ORDER
Ms. Nita Chowdhury, Member (A):
Heard learned counsel for the applicant.
2. By filing this OA, the applicant is seeking the following reliefs:-
"(i) to quash and set aside order dated 10.05.2018 and 05.09.2018 (Annexure-A-1) and allow the applicant to continue on deputation and further consider the claim of the applicant for absorption on the post of Accountant in the office of respondent no.3;
(ii) May also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice.
3. This is the second round of litigation.
4. Factual matrix of the case is that the applicant is an original employee of Directorate of Handloom and Textiles, Government of Uttar Pradesh (Respondent No.5). His substantive post is that of Junior Assistant. He came on deputation in the Office of Principal Chief Controller of Accounts (Respondent no.3) on the post of Accountant on 13.04.2015, initially for a period of one year, which has been subsequently extended for two years. The extended period of deputation was to come to an end on 12.04.2018. In the meanwhile, the Respondent no.3 requested his parent department vide their letter dated 22.02.2018 for extension of his deputation for a further period of one year. Accordingly, 3 Directorate of Handloom and Textiles, Government of Uttar Pradesh (Respondent No.5), vide letter dated 12.04.2018 gave its consent for extension of deputation for one more year. 4.1 However, when the Respondent no.3 vide order dated 10.05.2018 has relieved him from his present post of Accountant with a direction to report to his parent organization, the applicant has submitted a representation dated 09.05.2018, i.e., one day before the aforesaid relieving order dated 10.5.2018 was issued, requesting for absorption in the office of respondent no.3 and the said representation has not been decided by the respondents, the applicant has filed OA 2686/2018 before this Tribunal and this Tribunal vide Order dated 1.8.2018 disposed of the said OA, the relevant portion of the said Order reads as under:-
"5. Looking at the nature of controversy involved, we dispose of this OA in the following terms:
A. The applicant is granted liberty to submit a supplementary representation in addition to the one dated 09.05.2018 which he has already submitted, to Respondent No.3 within a period of two weeks from today.
B. The Respondent no.3 shall dispose of the supplementary representation as well as pending representation dated 09.05.2018 of the applicant within a period of four weeks thereafter. C. No coercive action shall be taken by Respondent No.3 against the applicant till his supplementary representation as well as the representation dated 09.05.2018 are decided by Respondent No.3.
Needless to say that the representations shall be disposed of by Respondent No.3 by passing a reasoned and speaking order.
4D. Till the representations of the applicant are decided, Respondent No.3 shall allow the applicant to continue to work in his present post of Accountant in its office."
4.2 Thereafter the applicant has filed Contempt Petition No.549/2018 in OA No.2868/2018 on 10.9.2018 alleging non-compliance of the order of this Tribunal as he was not allowed to join and pursuant to notice, the respondents‟ counsel appeared and filed reply and on 16.11.2018, this Tribunal after noting the averment of the respondents that as the applicant had already been relieved from his charge on 10.5.2018, that is the date before the date of passing of the Order, non-compliance of which has been alleged in the said CP, hence, they could not continue the applicant in his posting as he was no longer in their employment, found that respondents have substantially complied with the Order of this Tribunal and the applicant was given liberty to avail his remedy for redressal of his grievance in accordance with law and the said CP was closed by this Tribunal.
4.3 By filing this OA, the applicant is challenging the order dated 5.9.2018 vide which the applicant‟s representations dated 9.5.2018 and 10.1.2018 have been considered and rejected by respondent no.3. The applicant is seeking in this case extension of his deputation for 4th year and absorption as Accountant in office of respondent no.3. The said 5 impugned order the reasons for not exceeding to the request of the applicant have been given which reads as under:-
"The representations have been considered and competent authority has not acceded to your request for extension of deputation for 4th year and absorption as accountant in O/o PrCCA, CBEC in view of following:
1. As per the guidelines issued by o/o CGA vide OM No.a.11201/2007/RR/1 dated 1st April 2008, the guidelines indicate in para 2(a) that The Permanent Absorption should be resorted to only if the candidates from Staff Selection Commission (SSC) are not forthcoming. It also stated in para 4 "...Deputation/extension of deputation should be resorted only when it is not possible to get candidates from SSC." Since the vacancy position in Delhi is at a level where the positions can be filled with candidates through regular recruitment through Staff Selection Commission/promotions/internal transfer etc, the requirement for candidates on deputation in Delhi Station does not arise.
2. As per provision contained in Central Civil Accounts Service (Accountant and Sr. Accountant Group „C‟ posts) Recruitment Rules, 2010 col 12 point no (2) which states "A deputationist with an exceptionally good performance; on public interest subject to the prior concurrence of parent department cadre and the Controller General of Accounts." In this case the prior concurrence of Controller General of Accounts may not be obtained in view of O/o CGA office vide O.M. No.110201/2014/MF. CGA(A)/245 dated 23.07.2015 vide which o/o CGA has requested all the Pr. AOs not to consider and refer the absorption cases.
3. Moreover, the vacancy position in o/o Pr.CCA at Delhi station does not justify further absorption as those vacancies can easily be filled through the annual recruitment of Staff Selection Commission, Promotion from lower posts etc. Since your request for extension of deputation for 4th year and absorption in Pr.CCA, CBEC has not been acceded to, you are requested to join your parent department Department of Handloom and Textiles, 6 Government of Uttar Pradesh as per instructions contained in this office letter Office Order No.47 dated 10th May 2018 as well as your department letter dated 17th July 2018. Your LPC and service book has already been forwarded to your parent department vide letters dated 22.06.2018 and 26.07.2018 respectively (Copies Enclosed).
This issues with the approval of Pr.CCA, CBIC."
5. During the course of hearing, we raised a query to the learned counsel for the applicant to point out what is wrong in the aforesaid reasons in the impugned order dated 5.9.2018 while rejecting his representations for extension of deputation for 4th year and his absorption, counsel submitted that the respondent no.3 has taken the services of the applicant continuously for a period of three years and also taken approval from his parent department for extension of his deputation period for 4th year, without any reason and without any notice, the impugned order has been passed. Counsel further submitted that under the rules and as per the advertisement, after expiry of two years of deputation period, the respondent no.3 was required to consider the case of the applicant for permanent absorption but respondent no.3 had not taken any steps to consider his case for absorption. Counsel for the applicant placed reliance on the decision of this Tribunal dated 27.3.2017 in OA No.3478/2016 (Ms. Sarita Kapoor vs. UOI and others) in support of the claim of the applicant.
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6. Before adverting to the aforesaid contention of the learned counsel for the applicant, this Court felt it appropriate to note the settled position in law relating to deputation and repatriation. Deputation precedes the repatriation. In service jurisprudence, deputation is resorted to in public interest to meet exigencies of public service. Deputation is a tripartite agreement as held by Honourable Supreme Court of India in State of Punjab Versus Inder Singh, 1997 - 8- SCC- 372, based on voluntary consent of the principal employer to lend the service of his employee, which decision has to be accepted by the borrowing Department/employer and also involves consent of the employee. Generally the deputation is the assignment of an employee of one Department/cadre to another Department/cadre and the deputation subsists so long as parties to tripartite agreement adhere to the same. The moment this tripartite agreement is disturbed or vitiated or repudiated, the employee would have no legally enforceable right to continue to complete the agreed period of his deputation. The Honourable Supreme Court in Ratilal B. Soni & Others versus State of Gujarat & Others,1990 (Supp) SCC, 243, held that an employee on deputation can be reverted to his parent cadre at any time, who would have no right to be absorbed on the post of deputation. In Kunal Nanda versus Union of India & Another, AIR 2000 SC 2076, the Honourable Supreme Court has reiterated its 8 earlier decisions that the basic principle underlying deputation itself is that the person can always and at any time be repatriated to his parent Department to serve in his substantive position at the instance of either of the departments and there is no vested right in such a person to continue on deputation or get absorbed in the department to which he had gone on deputation. A Division Bench of Punjab & Haryana High Court in Gurinder Pal Singh versus State of Punjab, 2005 (1) SLR 629, after taking into consideration the decisions of the Apex court in Kunal Nanda case (supra), Ratilal B. Soni case (supra), and Rameshwer Parshad versus Managing Director, U.P. Rajkiya Nirman Nigam Limited, 1999 (5) SLR 203 (SC), has held that a deputationist would have no vested right to continue in the borrowing department till the completion of the stipulated period of deputation and the deputation being a tripartite contract, can be continued only if all the parties like it to continue. Honourable Apex Court in the case of Kunal Nanda Vs. Union of India, AIR-2000 SC 2076, decided on 24-4-2000 held as follows:
"6. On the legal submissions made also there are no merits whatsoever. It is well settled that unless the claim of the deputationist for permanent absorption in the department where he works on deputation is based upon any statutory Rule, Regulation or Order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive 9 position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation."
Honourable Apex Court in the case of Union of India Versus Ramakrishnan, AIR 2005 SC 4295, also observed as follows:-
"32. Ordinarily, a deputationist has no legal right to continue in the post...... "When the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability or unsatisfactory performance. But, even where the tenure is not specified, an order of reversion can be questioned when the same is mala fide. An action taken in a post haste manner also indicates malice. [See Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia and Others, (2004) 2 SCC 65, para 25]"
In the light of the aforesaid legal position on the issue involved in this case, this Court first of all finds that in the advertisement itself for filling up the vacancies in the cadre of Accountants on deputation basis, it has been specifically mentioned that :
"3. The period of deputation will be initially for a period of one year, which can be extended or curtailed as per the requirement of the organization. Selected candidates can be considered for permanent absorption after successful completion of two years of deputation, subject to fulfillment of their eligibility conditions as laid down in the Central Civil Accounts Service (Accounts and Senior Accounts Group „C‟ posts) Recruitment Rules, 2010. The borrowing department reserves the right to accept/reject any application or repatriate any deputationist before expiry of the sanctioned period of deputation at anytime without assigning any reason.10
The terms and conditions of deputation will be regulated in terms of DOP&T OM dated 17.06.2010 and as amended from time to time."
7. In the light of the aforesaid legal settled position on the subject and having regard to the reasoning given in the impugned order as also having regard to para 3 of the said advertisement and para 8 of the DOP&T OM dated 17.6.2010, this Court is of the considered view that aforesaid contentions of the learned counsel for the applicant in reply to this Court query are not sustainable in the eyes of law. The reliance placed by the applicant on the decision of this Tribunal in Ms. Sarita Kapoor (supra) is not applicable to the facts of this case as in that case DPC had already recommended her case vide recommendations dated 6.4.2015 and found her „fit‟ for permanent absorption but in this case the applicant had moved his representation for absorption only one day before the order of his repatriation was passed.
8. In the result, and for the foregoing reasons, this Court does not find any merit in this case and the same is accordingly dismissed. There shall be no order as to costs.
(S.N. Terdal) (Nita Chowdhury)
Member (J) Member (A)
/ravi/