Central Administrative Tribunal - Delhi
Hoshiar Singh vs Union Of India Through on 30 May, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.490/2013
M.A. No.343/2013
Order Reserved on: 24.05.2013
Order Pronounced on : 30.05 2013
Honble Dr. Dharam Paul Sharma, Member (J)
Honble Mr. Sudhir Kumar, Member (A)
Hoshiar Singh
Son of late Shri Jeet Ram
R/o 839, Nagloi Road,
Nazafgarh, Delhi-43. -Applicant
(By Advocate: Shri M.K. Bhardwaj)
Versus
1. Union of India through
The Controller General of Accounts
7th Floor Lok Nayak Bhawan,
Khan Market, New Delhi-03.
2. The Chief Controller of Accounts
Department of Commerce, Ministry of Textile
Udyog Bhawan, New Delhi.
3. The Department of Personnel & Training,
Through its Secretary, CGO Complex,
Lodhi Road, New Delhi. -Respondents
(By Advocate: Shri H.K. Gangwani)
O R D E R
Honble Mr. Sudhir Kumar, Member (A):
The applicant had joined on 01.02.1982 as Peon in the Department of Mines of the Union of India. After having acquired educational qualification of Graduation in the year 1986, from Peon he became a Lower Division Clerk (LDC, in short) in Group C from 24.09.2002 onwards. Then he was on deputation at the same level of LDC from 02.12.2004 to 15.01.2006 in the Ministry of Social Justice & Empowerment, and there he had acquired proficiency in Computer Hindi typewriting.
2. While maintaining his lien in the Ministry of Coal and Mines, Department of Mines, the applicant was then deputed to work as LDC in the office of Principal Accounts Officer, Udyog Bhawan, under Respondents No.1 & 2, from 09.01.2008 onwards. Here also, he acquired additional qualification of proficiency in COMPACTCompilation Module & Structure of Government Accounts & Classification. Later, he was put to work for dealing with New Pension Scheme, and Receipt and Payments Scrolls, issuance of Token, Cheque writing, Monthly Accounts of Principal Accounts Office (Textiles), and daily settlement accounts of the Central Pay & Accounts Office of the Ministry of Textiles. In between, his services were also utilized by the incumbents of Controller of Accounts in the Pay & Accounts Office of Udyog Bhawan as their Personal Assistant/Personal Secretary. Having been reverted back from deputations to two offices, earlier, from the Department of Information and Technology and from the Ministry of Social Justice and Empowerment, this time, towards the end of his third deputation, the applicant started representing for his permanent absorption under the Respondents No. 1 & 2, and submitted applications on 17.07.2012 and 17.09.2012 praying for his absorption, through Annexure A-4/ colly.. However, his request was turned down through Annexure A-5 dated 04.09.2012, stating that the Central Civil Accounts Service (Lower Division Clerk) Recruitment Rules, 2010, (the Rules, 2010, in short) do not permit permanent absorption of a deputationist in the grade of LDC, as per Col.12 of the Schedule to the said Rules, 2010.
3. Since the applicant was dissatisfied, and his immediate superiors also wanted to lend him a helping hand, Respondent No.2 sent the matter again on 14.12.2012 to the Respondent No.1 for consideration of his case sympathetically, and to seek necessary approval of DOPT for relaxation in the Rules concerned (filed by the applicant at Annexure A-6). They even tried to further lend him a helping hand by seeking a No Objection Certificate from his lending organization on 19.12.2012, which also was provided by his parent Department where he holds his lien, through their letter dated 08.01.2013 (Annexure A-7), by stating as follows:-
Subject: Permanent absorption of Shri Hoshiar Singh, MTS (on deputation) in the post of LDC in Civil Accounts Cadre-Request for No Objection Certificate reg.
Sir, I am directed to refer to your letter No.1-B/20/Depu-In/PAO/A/2012-13/1125 dated 21st December, 2012 on the above mentioned subject and to inform that this Ministry has no objection in permanent absorption of Shri Hoshiar Singh, MTS of this Ministry of Mines as LDC in Principal Accounts Office, Department of Commerce & Ministry of Textiles.
4. The applicant, therefore, again moved the Respondent No.1 through another request dated 01.02.2013 but however the respondents, through the impugned Annexure A-1 dated 28.01.2013, repatriated his services and relieved him from the office w.e.f. 08.01.2013 (Afternoon), with directions to report for duty in his parent Department in the Ministry of Mines. The applicant again represented to the Respondent No.1 through Annexure A-8 dated 01.02.2013, but of no avail, and has thereafter moved this Tribunal.
5. The applicant has taken the ground, on the basis of the facts as narrated above, that he has shown outstanding performance, and has constantly been approaching authorities for permanent absorption, and had also made the requests in time, on 17.07.2012 & 17.09.2012, which were even duly recommended and forwarded by his Head of Office, and yet, even though his own parent organization has issued the No Objection Certificate, the Respondents No. 1&2 have not heeded to his request. He has further taken the ground that instead of a fresh employee being called from Staff Selection Commission to replace him, since there will be no financial burden on account of his absorption, as vacancies are already in existence, it was in the interest of the respondents themselves to have absorbed his services. He has also attacked the impugned order dated 28.01.2013, ordering for his repatriation to be with retrospective effect, which is quite unjustified. He, therefore, took the ground that non-consideration of his case for relaxation of the Rules, 2010, under Rule 8 of the Rules, 2010, as filed by him at Annexure A-6, is highly unjust, unfair and in violation of his rights under Articles 14 & 16 of the Constitution of India, because he would have been an asset to the respondents in their organization, and he has sought protection from repatriation till his case is finally decided, in consultation with DOP&T, as the order of repatriation is also bad in law. In the result, he had prayed for the following reliefs:-
8.1 to allow the OA and quash the impugned order dated 28.01.2013 (Ann. A-1) and consequently direct the respondents to keep the repatriation of the petitioner in abeyance till the finalization of his case for permanent absorption in the office/department of the respondent no.2; and 8.2 to direct the respondents to consider the case of petitioner for permanent absorption in the office/department of respondent No.2, by granting relaxation in rules, if need so, by the competent authority; and 8.3 to grant any other or further appropriate relief as deemed just and proper by this Honble Tribunal in the facts and circumstances of the case besides cost and expenses of the present litigation.
6. The respondents filed their counter-affidavit on 24th March, 2013 wherein they submitted that as per Col. 12 of the Schedule below the Rules, 2010, as filed by the applicant at Annexure A-6, and filed by the respondents at Annexure-I of their counter, there is no provision for permanent absorption of a deputationist in the grade of LDC, and even though sympathetic consideration has been tried to be given, but since even the conditions for relaxation of Rules are not qualified in the case of the applicant, and since he already stands relieved from deputation on 28.01.2013, and he was no longer even a deputationist with the Central Civil Accounts Service, and he already stands directed to report to his parent department on 28.01.2013 itself, and was not even on the strength of the respondents office on 06.02.2013, when he filed this OA, the OA is liable to be dismissed. The respondents did not stress upon the date of 08.01.2013 as the date of his having been relieved, which gives the impression that there was a typographical error of 8 instead of 28 in the impugned order.
7. The applicant filed a rejoinder on 01.04.2013, contesting the contents of the reply, and stated that the respondents have not disclosed the correct facts, and have even not examined their own Rules, whereby it has been clearly mentioned that if the vacancies remained unfilled by direct recruits, the same may be filled up through deputation, by taking on deputation persons of appropriate grade. He submitted that since deputation and direct recruitment are the only two methods for filling up the posts, and when the case of the applicant was even pending for consideration of relaxation of the Rules, 2010, the respondents were debarred from taking a final decision in the matter. It was submitted that since the applicant has been permitted to continue for 5 years on deputation, by extending the initial term of his deputation of three years period by two years, and there is no maximum limit of the time period for which he can be permitted to be on deputation, and since even his parent department has also given No Objection Certificate for his continued deputation, therefore, the precipitate action taken by the respondents is wrong, and he had again prayed for the OA to be allowed.
8. Heard. The case was argued vehemently by the learned counsel of both the sides. The respondents filed copies of their letters dated 06.11.2012 and 13/14.02.2013, which have stated as follows:-
A-11019/20/Misc./2009/MF.CGA(B)/NP/Pt./524 MINISTRY OF FINANCE DEPARTMENT OF EXPENDITURE CONTROLLER GENERAL OF ACCOUNTS LOK NAYAK BHAWAN, KHAN MARKET, NEW DELHI-110003 Date: 6th November, 2012 To The Sr. Accounts Officer, O/o Chief Controller of Accounts, Deptt. Of Commerece & M/o Textile, Udyog Bhawan, New Delhi-11011.
Subject:- Absorption of LDC in the grade of LDC.
Sir, I am directed to invite a reference to your office letter No.1-B/20/Deput-in/PAO/A/2012-13/80 dated 26-9-2012 on the subject cited above and to state that your proposal for absorption of Sh. Hoshiar Singh, LDC in CCAS cadre has been examined in this office in terms of provisions contained in the CCAS(LDC Group C) RR, 2010. It is not administratively feasible to relax the condition as laid down in the Recruitment Rule as such your request can not be acceded to.
It is, therefore, requested that vacancies in the grade of LDCs may be intimated to Commission and deputationist may be repatriated to their parent offices as per their deputation terms. However, if you office will requisition dossier from this office, it will be provided. Presently three LDCs dossiers are available in O/o CGA.
This issues with the approval of Jt. CGA (Gr. B).
Yours faithfully, Sd/-
(Ved Prakash) Accounts Officer No.A-11019/20/Misc./2009/MF.CGA(B)/NG/Pt./660 Government of India Ministry of Finance Department of Expenditure Controller General of Accounts Lok Nayak Bhawan, Khan Market, New Delhi Dated13-2-2014 14 To The Controller of Accounts Office of the Chief Controller of Accounts Department of Commerce & Ministry of Textiles, Udyog Bhawan, New Delhi.
Subject: Absorption in the grade of LDC Sir, I am to refer to your U.O. no.1-B/20/Deput-in/PAO/2012-13/1216, dated 11-1-2013 on the above subject and to state that there is no provision in the recruitment rules of LDCs for permanent absorption of a deputationist, nor are the condtions of relaxation of rules fulfilled in the case of Shri Hoshiar Singh. Moreover, Shri Hoshiar Singh already stands relieved from his deputation on 28-1-2013, and therefore he is no longer a deputationist in the Central Civil Accounts Service. In view of this, decision already conveyed vide this office letter no. A-11019/20/Misc/2009/ MF.CGA(B)/NG/Pt/524, dated 6-11-2012, does not require any reconsideration. You are requested to fill up vacancies of LDCs in your office in accordance with recruitment rules. Yours faithfully, Sd/-
(S.P. Singh) Dy Controller General of Accounts
9. On the other hand, the learned counsel for the applicant produced a photocopy of a Note Sheet from the concerned file dated 14.12.2012 to 19.12.2012, without explaining as to how the applicant had obtained it, in which his immediate superiors had recommended in his favour for seeking relaxation from DOP&T under the said Rules, 2010, for absorbing the applicants services.
10. We have considered the facts of the case. The claim of the applicant is that he has been working as a Lower Division Clerk. However, the No Objection Certificate issued by his parent department through Annexure A-7 dated 08.01.2013, and his impugned relieving order dated 28.01.2013, both disclose that his status is that of a Multi Tasking Staff (MTS), which is ostensibly the intermediate level created after the recommendations of the VI Central Pay Commission for persons in Group D posts, who have acquired extra qualifications and training etc. to move into Group C posts on substantive basis.
11. At the same time, it is clear from the certificate issued to him on 16.05.2013 at Annexure A-3 and through Annexure A-5 dated 04.09.2012 that in the office of the Respondents No. 1 & 2, his services were being utilized against the post of an LDC, on deputation basis, and not as a MTS alone.
12. The term deputation has been dealt with by the Honble Courts in a number of cases. In the case of State of Mysore Vs. M.H. Bellary AIR 1965 SC 868; 1964 (7) SCR 471; 1966 (1) LLJ 50, the Honble Supreme Court had held as follows:-
Promotion of persons on deputation to another department:-
Service on deputation in another department is treated by rule as equivalent to service in the parent department.. So long, therefore, as the service of the employee in the new department is satisfactory, and he is obtaining the increments and promotions in that department, it stands to reason that satisfactory service, and the manner of its discharge in the post which he actually fills, should be deemed to be rendered in the parent department also, so as to entitle him to promotions which are open on seniority-cum-merit basis.
[emphasis supplied].
13. Further in the case of State of Mysore Vs. P.N. Nanjundaiah; 1969 SLR 346; 1969 (3) SCC 633; AIR 1968 SC 1113, the Honble Supreme Court had further clarified the same point in deciding that in the case of service on deputation being satisfactory, an employee gets his right of promotion in the parent department. A case directly on the point of a person on deputation being entitled to promotion only in his parent department was decided by the Honble Apex Court in the case of Rajasthan State Electricity Board, Jaipur vs. Mohan Lal 1967 SLR 573; AIR 1967 SC 1857; 1967 (3) SCR 377; 1968 (1) LLJ 257.
14. It is seen that in the case of Union of India through Govt.of Pondicherry & Anr. vs. V.Ramakrishnan & Others. Civil Appeal No.6332/2005; the case specifically concerned with the absorption of deputationists and the Honble Apex Court had ordered as follows:
Ordinarily, a deputationist has no legal right to continue in the post. A deputationist indisputably has no right to be absorbed in the post to which he is deputed. However, there is no bar thereto as well. It may be true that when deputation does not result in absorption in the service to which an officer is deputed, no recruitment in its true import and significance takes place as he is continued to be a member of the parent service. 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 malafide. An action taken in a post haste manner also indicates malice. [See Bahadursinh Lakhubhai Gohil Vs. agdishbhai M. Kamalia and Others,(2004) 2 SCC 65, para 25].
[Emphasis supplied]
15. It is, therefore, clear that the rights of deputationists differ from those of the direct appointees, and since deputation involves three voluntary decisions, of (a) the lending authority, (b) the borrowing authority, and (c) the employee concerned, in all this while, when the present applicant has continued to maintain his lien in his parent Ministry, in the case any of these three voluntary decisions of either (a) the lending authority, or (b) the borrowing authority, or (c) the employee concerned, is reversed, he can always be reverted back from his status of a deputationist to his parent Departmental cadre/Ministry, subject to the qualification laid down by the Honble Apex Court in the case Union of India through Govt. of Pondicherry & Anr (supra) that ordinarily the specified terms of deputation should not be curtailed, except on just grounds, for example, unsuitability or unsatisfactory performance., which is not the case in the instant case, as the applicant has been on deputation for five years, and it is not a case of premature curtailment of his deputation.
16. Here in the instant case, while the lending authority and the employee concerned have conveyed their voluntary decision for his deputation to be continued, the borrowing authority respondents have not found it fit to continue the applicants deputation beyond the period of 5 years. Having being a deputationist three times in his career, the applicant ought not to have objected to his repatriation back to his parent cadre, because his substantive rights as a Government employee flow to him only on the basis of his seniority in his parent cadre, as laid down by the Honble Apex Court in the cases cited above.
17. Learned counsel for the applicant laboriously mentioned the Rule-8 of the Rules, 2000 dated 24.01.2012 (Annexure A-6) which states as follows:-
8. Power to relax- Where the Central Government is of the opinion that it is 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.
18. However, the learned counsel for the respondents was quick to point out that the power to relax any of the provisions of these Rules contained therein were available with the Central Government with respect to any class or category of persons, and not in respect of any individual person alone. In this interpretation, we are in agreement with the submission of the learned counsel for the respondents.
19. The applicant certainly is a very able and tenacious person, who has tried to acquire extra qualifications related to the office wherever he was sent on deputation. He must be a very deserving Government servant. But, when the Rules, and in particular Col. 12 of the Schedule to the said Rules cited above, specifically prescribe that the method of recruitment for the posts is only by direct recruitment, or by promotion, or by deputation, or by absorption, with 85% posts being filled up by direct recruitment, 10% of the vacancies to be filled up from amongst the Group C staff (Multi tasking staff) in the Grade Pay of Rs.1800/-, who have rendered three years regular service in the grade on the basis of Limited Departmental Qualifying Examination, the maximum age limit for eligibility of which examination is 45 years and 55 years of age for the Scheduled Caste and the Scheduled Tribe, and 5 % of the vacancies have to be filled on seniority-cum-fitness basis from the Group C staff (Multi tasking staff), who have three years regular service in the posts with Grade Pay of Rs.1800/-, and on the other hand, Col. 12 of the Rules prescribe that the 10% of the vacancies are to be filled from amongst the Group C staff (Multi Tasking Staff) in the Grade Pay of Rs.1800/-, and 5% of vacancies are to be filled up through seniority-cum-fitness basis through promotions, and only when vacancies still remain filled by direct recruits through Staff Selection Commission, they may be filled through deputation, by taking persons of appropriate grade from other Organized Accounts Services, Central Government, State Government or Autonomous Bodies, which are fully funded by the Central Government or State Government of the departments, the rights of deputationists for continuation in such deputation can arise only if there has been a decision not to fill up the 85% posts either by direct recruitment through Staff Selection Commission, or 10% or 5% through promotion, as prescribed in Column 11& 12 of the relevant Rules.
20. We have sympathy with the applicant, but the law is against him. However, as was held by the Honble Apex Court in State of Tamil Nadu & Ors. vs. St. Joseph Teachers Training Institute & Anr., MANU/SC/0589/ 1991, Courts cannot grant relief to a party on humanitarian grounds, contrary to law. We are reminded of the two Latin Maxims: dura lex sed lex, meaning the law is hard, but it is the law, and A Verbis Legis Non Est Recedendum meaning that from the words of law, there must be no departure. Therefore, it is clear to us that the present OA does not survive on merits, and is liable to be rejected, and is, therefore, dismissed.
21. In view of the dismissal of the OA, no orders are required to be passed on MA-343/2013, which is accordingly dismissed.
(Sudhir Kumar) (Dr. Dharam Paul Sharma) Member (A) Member (J) cc.