Central Administrative Tribunal - Delhi
G.D. Arora & Others vs Union Of India & Others -Respondents on 17 July, 2009
Central Administrative Tribunal Principal Bench OA No.2659/2008 New Delhi this the 17th day of July, 2009. Hon'ble Mr. Shanker Raju, Member (J) Hon'ble Dr. Veena Chhotray, Member (A) G.D. Arora & Others -Applicants (By Advocate Shri A.K. Behera) -Versus- Union of India & Others -Respondents (By Advocates Shri Vijay Pandita and Shri Rajeev Bansal) O R D E R Hon'ble Mr. Shanker Raju, Member (J):
Applicants, who are holding the posts of Assistant, UDC and LDC in Govt. of NCT of Delhi, have assailed an order passed by Govt. of NCT of Delhi on 17.8.2007, whereby their request for benefit of seniority from the date of their erstwhile appointments in Delhi Development Authority (DDA) has been turned down.
2. Applicants, by virtue of this OA, have sought counting of entire service in DDA in the equivalent pay scale for the purpose of seniority and promotion and as an alternative if their conditions in consent letters are not accepted, to repatriate them to DDA with all consequential benefits. Also sought is relief of absorption with pay protection with benefit of entire service rendered in DDA for seniority and promotion in Govt. of NCT of Delhi.
3. A brief factual matrix very relevant for the issue is highlighted. Applicants, who were initially appointed in Delhi Development Authority have been working and were posted on 31.3.1992 in Delhi Lotteries, which was a department under D.D.A. However, on 1.4.1992 a decision was taken by the Lieutenant Governor to transfer the department of Delhi Lotteries to Govt. of NCT of Delhi. As such, applicants were sent on deputation to the Govt. of NCT where they continued. An option was sought from them by the Govt. of NCT of Delhi to give their consent for absorption in Delhi Government and accordingly seeking counting of service rendered in the D.D.A. like permanent absorption, the consent was given by the applicants, which was conditional. Protection of pay was also sought.
4. However, w.e.f. 1.1.1995 Govt. of NCT of Delhi closed down Lotteries department and applicants were absorbed in Govt. of NCT of Delhi under the CCS (Redeployment of Surplus Staff) Rules, 1990 on being declared surplus by an order dated 4.5.1995, which has an effect of not reckoning their past service in the Delhi Development Authority but pay was protected. Against this order applicants preferred OA-2797/1997, which was dismissed, against which a WPC No.5421/2000 was also dismissed by the High Court in limine. Special Leave Petition-6586/2003 preferred by the High Court remitted back the matter to the Tribunal for fresh adjudication. The Apex Court has framed the following questions:
The questions which arose for consideration inter alia were: (1) Whether the appellants were permanent employees of the Delhi Development Authority; (2) Whether the DDA continued to treat them as their own employees; (3) Whether without accepting the conditions of their permanent absorption, some of the appellants could be absorbed in the lower grade; and (4) Whether their seniority in the absorbed post would have been affected.
5. An order passed by the Tribunal, on remand, on 7.3.2007 decided the issue that the applicants were employees of D.D.A. and the following conclusion has been drawn:
29. In terms of the judgment of the Honble Supreme Court dated 17.08.2006 (supra), we are required to address the following issues while considering the matter afresh:-
Whether the applicants were permanent employees of the DDA?
Whether the DDA continued to treat them as their own employees?
Whether without accepting the conditions of their permanent absorption, some of the applicants could be absorbed in the lower grade? Whether their seniority in the absorbed posts would have been affected?
30. Our findings on these issues are stated as follows:-
(i) From a perusal of the material placed before us as well as in the light of the averments made by the learned counsels, we find that the applicants were employees of the DDA and, except for applicants at serial nos. 12 & 20, were not necessarily recruited for the Lotteries Section of the DDA. The letters of appointment do state that appointments made were purely temporary in nature and could be terminated at any time without notice. However, the applicants, in their pleadings, have stated that many of them were declared quasi-permanent/permanent/confirmed and that others, who were not so declared, could not be treated temporary in view of their long service rendered in the DDA (Ground No. G of the OA). This has not been specifically denied by the respondents. As a matter of fact, respondent no. 6 has stated that it is a matter of record.
(ii) There is no definite record to establish that the DDA continued to keep the applicants as their own employees. As a matter of fact, learned counsel for respondent no. 6 (DDA) clearly stated that after the applicants were transferred along with the posts from the Lotteries Section to Delhi Government on `as is where is basis, the DDA washed their hands of them. On the other hand, we find that in one of the letters from the Secretary (Finance) of the Government of NCT of Delhi to the Vice Chairman, DDA, it has been stated that in the context of the transfer of the posts of Lotteries Department to Delhi Government, employees of DDA (were) taken on deputation. It further goes on to state that a panel of 7-8 names of LDCs may be sent, who could be taken on deputation in place of LDCs repatriated. To this, there is also a reply from the DDA stating as follows:
No. F.7(78)93/PB.I/Pt12341 December 15, 1994 The Secretary (Finance) Govt. of N.C.T. of Delhi, 5, Sham Nath Marg, Delhi 54.
Sir, I am to refer to your D.O. letter No. F.15(37)/90/3054 dated 28.7.94 and addressed to the Vice-Chairman, DDA, regarding repatriation of two L.D.Cs namely Shri Ram Kumar Saini and Shri Ram Singh, to the Delhi Development Authority. A list of 6 L.D.Cs who are willing to go on deputation to the Lotteries Department in place these repatriated L.D.Cs, is attached as desired. Yours faithfully, Sd/-
(Rina Ray) Encl: As Above. Commissioner (Personnel)
Thus, even though in their counter reply respondent no. 6 (DDA) has stated that the applicants were never sent on deputation, it appears to be an afterthought. As a matter of fact, Shri R.K. Saini was repatriated, vide order of Delhi Administration dated 02.12.1993 (Pg. 87).
(iii) There is no dispute that the terms and conditions, subject to which the applicants had given their consent for permanent absorption in Delhi Government, were not considered and some of the applicants were absorbed in lower grades. As a matter of fact, a plain reading of the averments made by respondent nos. 1 to 5, detailing the sequence of events makes the position clear, as follows:-
Subsequently, options were called from the employees of Delhi lotteries and the employees opted for absorption in this govt. Subject to the conditions that their pay and allowances are protected and the service rendered by them in DDA is counted towards seniority in the cadre in the this Govt.
X Later on, Delhi Lotteries was discontinued w.e.f. 01/01/95. This Govt. chose to redeploy the surplus employees of Delhi lotteries in various deptts. of this Govt. under the provisions of CCS (Redeployment of Surplus Staff) Rules, 1990 vide order dt. 04-05-95 (A-R-II) only to avoid hardship to the employees Y From the sequence of events narrated above, it is clear that after the options of the applicants were invited, the turn of events took a different course due to the decision taken to wind up the Delhi Lotteries w.e.f. 01.01.1995. Between `X and `Y above their falls a shadow. The consideration of the conditional options of the applicants was practically put under the carpet in the context of the decision to wind up Delhi Lotteries.
(iv) In view of what has been stated above in relation to non-acceptance of the conditions stipulated by the applicants in their letters of consent, their seniority came to be affected on account of not counting of their previous service rendered in the DDA. Actually in the impugned order dated 04.05.1995, declaring the applicants as surplus and also ordering their absorption in terms of Rules of 1990, it was clearly stated that surplus employees are not entitled to the benefit of past service rendered in the previous organization for the purpose of their seniority in the new organization. As such, employees are to be treated as fresh entrants in the matter of their seniority/promotion etc.
31. In view of our findings mentioned above, on the issues identified by the Honble Supreme Court, it is clear that the applicants, at the time of their transfer to Delhi Government, were the employees of the DDA and some of them had been declared quasi-permanent/permanent and were even confirmed. As per the initial correspondence in the matter brought on record, both the DDA and the Delhi Government considered them to be on deputation from DDA to Delhi Government. The applicants had given their consent for permanent absorption based on certain conditions, which were not considered by the Delhi Government and, even without formally absorbing them based on the options given by the applicants, they were declared surplus first. This is a classic example of putting the cart before the horse. Given the sequence of events outlined above, it is quite obvious that the past services of the applicants in the DDA were not counted at the time of their absorption in Delhi Government. We are, however, in agreement with respondent no. 6 that this Tribunal has no jurisdiction in respect of DDA.
32. Taking the totality of facts and circumstances of the case into consideration, we come to the conclusion that the act of the Delhi Government in declaring the applicants as surplus and thereafter absorbing them as surplus staff was without authority. Similarly, absorbing them without taking note of the conditional consent given by them for absorption was also irregular.
33. In the result, the OA is allowed. The impugned order dated 04.05.1995 is quashed and set aside with a direction to respondent nos. 1 to 5 to consider the consent letters of the subsisting applicants as per law and pass a speaking and reasoned order thereon, within a period of three months from the date of receipt of a certified copy of this order. There will be no order as to costs.
6. Accordingly, the respondents considered the request of applicants and decided that the consent letters of the applicants for counting of service for the purpose of assigning seniority and protection of pay on being considered past service was treated only for pension and not for seniority, which is reckoned as a fresh entrant w.e.f. 1.4.1992. However, the pay was protected and two of the applicants were absorbed on the post of peon in Govt. of NCT of Delhi w.e.f. 1.4.1992.
7. Shri A.K. Behera, learned counsel of applicants assails this order on the ground that having not considered their consent when they had come on permanent absorption basis, applicants should be sent back to the D.D.A., whereas their absorption on being declared surplus is set aside, they still hold the lien with the D.D.A. as they were the employees of the D.D.A. and were posted in the department of Lotteries and their seniority and pay shall be protected and they be treated at par with their erstwhile colleagues and employees in D.D.A. The learned counsel would, at the outset, contend that he has no comments to offer when he was confronted that in the matter of redeployment service, past service is forfeited for the purpose of seniority, yet states that a finding of the Tribunal that at the time to transfer to Delhi Govt. applicants were employees of DDA and were even confirmed and as the Delhi Govt. considered them as on deputation from D.D.A. their permanent absorption on certain conditions, past service of the applicants in D.D.A. cannot be taken away from them at the time of absorption in Delhi Govt. The act of the respondents in declaring them as surplus was without authority. As such, it is stated that the alternate prayer may be acceded to.
8. On the other hand, learned counsel of respondents stated that with the direction of the Central Govt. Delhi Lotteries was transferred from DDA to Delhi Govt. and there is no question of repatriation of applicants to DDA and benefit of past service was to be given by the Delhi Govt. and not by the D.D.A.
9. Delhi Govt. is represented through Shri Vijay Pandita, who has vehemently opposed the contentions and stated that the consent letters have been considered and the pay of applicants has been protected but seniority was given from the date of absorption. It is stated that Delhi Lotteries department was transferred from DDA to Delhi Govt. on as is where is basis and the orders passed by them are inconformity with the Rules.
10. We have carefully considered the rival contentions of the parties and perused the material on record. While the matter was remitted back by the Apex Court, the issue as to whether applicants were permanent employees of the D.D.A., has been answered by the Tribunal (supra) in the affirmative. As such, when the order of redeployment on being declared surplus is set aside, the status of the applicants would have to be antedated on relation back theory to the date when Delhi Lotteries department was taken over by the Govt. of NCT of Delhi. As such, applicants having lien with the D.D.A. as their permanent employees, they were merely posted in one of the departments of the DDA. Merely because department has been taken over, it does not mean that they are also absorbed in Govt. of NCT of Delhi. These applicants remain as employees of the D.D.A. and at best their consent sought for absorption when tendered conditionally, on non-fulfilling of the said conditions, tripartite agreement is not complete. As such, applicants are to be treated and employees of the D.D.A., which cannot absolve themselves from the constitutional liability, taking them back and giving them all consequences.
11. Seniority in the absorbed post on permanent absorption has to be reckoned from the date of holding the equivalent post in the parent department, which is trite law. Accordingly, the conclusion arrived at by the Tribunal on the basis of the counter reply filed by respondents that the applicants were not sent on deputation was found to be an afterthought, which is clear from the fact that one Shri R.K. Saini was repatriated by Delhi Govt. vide order dated 2.10.1993. Non-fulfilling of the conditions of consent letter renders the applicants employees of DDA with holding lien with them. As such, if the Govt. of NCT Delhi has refused to grant them seniority on permanent absorption, then they have a right to come back as the lien is still maintained, yet the order dated 4.5.1995 is set aside.
12. In the above view of the matter, this OA stands allowed in terms of para 8.4 of the OA. Respondent-Govt. of NCT of Delhi is directed to repatriate all the applicants to Delhi Development Authority, which in turn is directed to take back with maintenance of lien and all the benefits as accrued to their employees shall also be bestowed upon them. Whatever advantages and service benefits have been accorded to them in Govt. of NCT of Delhi shall have to be retained by the applicants. This shall be down within a period of 3 months from the date of receipt of a copy of this order. No costs.
(Dr. Veena Chhotray) (Shanker Raju)
Member (A) Member (J)
San.