Central Administrative Tribunal - Ernakulam
V. Lakshminarayanan vs Union Of India on 10 August, 2011
Central ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 638 of 2009
Wednesday, this the 10th day of August, 2011
CORAM:
Hon'ble Mr. Justice P.R. Raman, Judicial Member
Hon'ble Mr. K. George Joseph, Administrative Member
V. Lakshminarayanan, Economist,
Kerala Forest Department, Forest Headquarters,
Vanalakshmi, Vazhuthacaud,
Thiruvananthapuram-14. ..... Applicant
(By Advocate - Mr. N.N. Sugunapalan, Sr. along with Mr. S. Sujin)
V e r s u s
1. Union of India, represented by the Secretary,
Ministry of Finance, Department of Economic Affairs,
IES Division, North Block, New Delhi.
2. State of Kerala, represented by the Secretary to
Government, Forest & Wild Life Department,
Government Secretariat, Thiruvananthapuram.
3. The Principal Chief Conservator of Forests,
Thiruvananthapuram. ..... Respondents
[By Advocate - Mr. Sunil Jacob Jose, SCGSC (R1) &
Mr. N.K. Thankachan, GP (R2&3)]
This application having been heard on 14.7.2011, the Tribunal on
10.08.2011 delivered the following:
O R D E R
By Hon'ble Mr. K. George Joseph, Administrative Member -
This Original Application is filed by the applicant challenging Annexure A-35 by which the Government of Kerala held that the applicant is absorbed in the State service with effect from 30.11.1993 and that he has already retired on attaining 55 years of age according to the said service rules.
2. To briefly state the facts of the case, the applicant a 1982 batch Indian Economic Service (IES) officer joined as Economist on deputation in the office of the Chief Conservator of Forest, Social Forestry & Projects on 10.7.1986 for one year on Central Government pay scale with leave and pension as per rules in force in the Central Government. The period of deputation was extended by different orders up to 30.11.1993. The Central Government refused the further extension of deputation of the applicant to the Government of Kerala. However, on the strength of the efforts made by the Principal Chief Conservator of Forest he was permanently absorbed in the State service as Economist in the forest department vide order dated 20.4.1996. Years later vide order dated 17.3.2004 the terms and conditions of the absorption of the applicant in the State service were fixed by the Government of Kerala as per terms and conditions of the State Government employee in the same rank. Vide letter dated 21.3.2005 Government of India agreed to the applicant's absorption in the State Government service with effect from 30.11.1993 and directed that the order of absorption issued by the State Government may be amended to make it effective from 30.11.1993. The applicant filed a representation on 31.3.2005 for rectification of the anomalies regarding age of superannuation, retirement benefits etc. in fixing the terms and conditions after his absorption in the State service. As his grievances were not getting redressed he approached the Hon'ble High Court of Kerala in WP(C) No. 1101 of 2007. The Hon'ble High Court directed the second respondent to consider the case of the applicant in the light of the findings rendered therein and after getting the concurrence from the first respondent and after considering the representations of the applicant on merits. In compliance, the State Government issued the impugned order dated 16.9.2009 at Annexure A-35.
3. The applicant contends that the undertaking given by the applicant was a conditional willingness to get absorbed in the State service. The Hon'ble High Court of Kerala has held that the applicant continued to be in the service of the Central Government. He has not yet resigned from the Central Government service. The terms of absorption were not agreed to by the applicant. In issuing Annexure A-35 impugned order the Government of Kerala ignored the judgment of the Hon'ble High Court. The applicant cannot be treated as a member of the State service so long as he has not resigned from the Central service. The terms of absorption has not been fixed or approved or accepted by the Central Government. Lien of the applicant in the Central service will continue so long as he is not confirmed in the State service. The applicant was retained in the State Government service in public interest. The State Government is stopped from imposing of terms and conditions on the service of the applicant which would result in manifest disadvantage to him. The applicant is entitled to continue in service till he attains the age of 60 years as also the pay and allowances admissible to his immediate junior in the IES. The applicant has not accepted the conditions fixed by the State Government.
4. The respondent No. 1 in the OA submitted that despite the fact that the officer was directed to report to cadre, as the Government of India did not agree to his extension beyond 29.11.1993, the officer did not report back. The applicant ceases to be a Government of India Officer with effect from 30.11.1993 the date of his absorption in the State Government of Kerala which was on his own will and volition. On his absorption in the State Government of Kerala his service conditions including retirement age were fixed by the State Government. The decision of the Hon'ble High Court has been implemented by the State Government vide order dated 16.9.2009 at Annexure A-35.
5. In the reply statement on behalf of 2nd respondent it is contended that the applicant had requested to permit him to join duty under the Central Government. The Chief Conservator of Forest, Social Forestry, Trivandrum had strongly recommended the case of the applicant for absorption and had requested orders for absorbing him in the State service till his superannuation. In compliance of the judgment dated 27.3.2009 in WP(C) 1101 of 2007 and considering the request of the petitioner along with direction of the Government of India, order dated 16.9.2009 Annexure A-35 was issued fixing the terms and conditions of absorption of the petitioner in the State service. As per terms and conditions of absorption laid down by the aforesaid Government order his age of superannuation in the State service is as admissible to the State Government employees, pension gratuity and other service benefits will be governed by the State Government rules. For the above reasons OA is liable to be rejected.
6. In the rejoinder statement the applicant submitted that the willingness shown by the applicant for absorption in the State service, as elaborated by the Hon'ble High Court in its judgment, is a conditional one. If the State Government had considered the case of the applicant in the light of the findings rendered by the Hon'ble High Court, the order dated 16.9.2009 could not have been issued. The first respondent ought to have fixed the terms and conditions of the absorption. The merit of the case of the applicant has not been considered by the State Government. His lien is not cut off and could not be cut off without due process as held by the Hon'ble High Court. Moreover, the applicant can continue to be a member of IES till he submits his resignation and that resignation is accepted by the competent authority. The first respondent has not complied with the direction of the Hon'ble High Court. The first respondent has not vetted the terms and conditions of absorption. It is highly irregular and unjust to issue the impugned order ignoring the judgment of the Hon'ble High Court.
7. We have heard the learned senior counsel for the applicant Mr. N.N. Sugunapalan along with Mr. Sujin and the learned counsel for the respondent No. 1 Mr. Sunil Jacob Jose, SCGSC and Mr. N.K. Thankachan, GP for respondents Nos. 2 & 3 and perused the records of the case very carefully.
8. The issue for adjudication is whether the impugned order is sustainable or not. The contentions of the applicant are that the willingness shown by him for absorption in the State service was conditional. He had represented against the terms and conditions of his absorption which were issued almost 8 years after the order of absorption was issued by the Government of Kerala. He had specifically requested for fixing his age of superannuation as 60 years and also for Central Government pay scales and other benefits he would have got had he continued in the IES. However, the impugned order fixing the terms and conditions of absorption in the State service is as under:-
"i. Shri V. Lakshmi Narayanan, IES will be absorbed in the state service against the post of Economist in Kerala Forest Department in the scale of pay of Rs. 3700-5000 with effect from 30.11.93 and his pay will be fixed in the scale of pay without any drop in emoluments which he had drawn in the parent Department as on 30.11.93. He will be given appropriate revisions in the scale of pay only as applicable to other State Government Employees, as and when the scale of pay of State Government employees are revised.
ii. His age of superannuation will be 55 years, as applicable to the State Government Employees.
iii. Since the incumbent is borne on a pensionable service under the Central Government, the service rendered by him will be counted for pension along with the State Government service.
iv. The deputation benefit as per the terms and conditions of his deputation issued as per GO(Rt) No. 186/87/F&WLD dated 9.4.1987 has effect only up to 29.11.1993 and he is eligible for deputation allowance only prior to absorption on 30.11.1993 as allowed in GO (MS) No. 418/92/Fin. Dated 5.6.1992.
v. Pension, Gratuity and all other service benefits will be as applicable to the State Government Employees."
9. When consulted, Government of India vide letter dated 25.8.2009 informed the State Government of Kerala that the applicant was absorbed in Government of Kerala as per his own willingness and of his own volition and they have no objection to the terms and conditions fixed by the State Government.
10. In the above circumstances the Government of Kerala ordered that the applicant will be absorbed in the State service against the post of Economist in the Kerala Forest Department in the scale of pay of Rs. 3700-5000/- with effect from 30.11.1993 subject to the terms and conditions mentioned above.
11. The Hon'ble High Court of Kerala had considered the case of the applicant in WP(C) No. 1101 of 2007 and held as under:-
"13. The question is whether any absorption can be made against the will of the employee concerned and without adhering to the terms suggested by the first respondent Central Government. In Ext. P12 order dated 20.4.1996, the State Government ordered that the petitioner who is on deputation, will be permanently absorbed in the State Service and orders regarding the terms and conditions of his absorption will be issued separately. Only by Ext. P13 in the year 2004, it was specified by the Government that the terms and conditions will be as admissible to State Government employees in the same rank. Therefore, prior to his absorption in the year 1996 the terms and conditions were never fixed. The petitioner cannot be asked to agree to any terms and conditions which will be detrimental to his interest, either in regard to the pay and allowances or in regard to the tenure of service. There is nothing to show that he has agreed for such reduction of pay and allowances or agreed to have a reduced age of superannuation. The willingness, if at all is only for absorption. It is relevant to notice that all throughout he has been submitting representations in the matter. One of such representations is Ext. P18, wherein he has stated that he is eligible for the Central pay and allowances and retirement benefits like Provident Fund, Gratuity, etc. as applicable to Central Government employees and that his age of superannuation may be fixed as 60 years and he may be given the Non Function Selection Grade in a particular scale. There is nothing to show that the terms and conditions fixed by the State Government has been agreed to or verified by the Government of India. All throughout, the Government of India has been demanding to forward his resignation letter also. Even when Ext. P19 order was issued, the petitioner had been objecting to the fixation of the pay and allowances. The State Government has no case that the conditions fixed in Ext. P19 are as agreed to by his former employer, viz. the first respondent. In fact, even after Ext. P19 order was issued, the petitioner has again requested to modify the terms as per Ext. P20.
14. In the light of the above, the question is whether his absorption as such on unilateral terms and conditions, could be said to have been correctly made. One thing that is discernible is that before passing the order of absorption as per Exts. P12 and P19, all the formalities required and insisted by the first respondent were also not complied with. The petitioner's request in the matter also has not been considered admittedly. Reliance is placed on the decision of the Apex Court in Triveni Shankar Saxena v. State of U.P. and others (AIR 1992 SC 496). Therein reliance is placed on the decision of the Apex Court in P.L. Dhingra v. Union of India (AIR 1958 SC 36) holding the view that "a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier".
15. The question therefore, is whether the noncompliance of the formalities like resignation, fixation of proper terms and conditions for payment of salary at the same scale which he would have obtained from the Central Government, will vitiate the order. Definitely, it is a case where the continuance in service after the deputation was pursuant to the proposal submitted by the third respondent. The willingness, if at all obtained by the petitioner is only for absorption in accordance with the terms which are favourable to him also. It cannot be said that he was willing for such absorption without getting the protection of pay and allowances and other conditions of service which he was entitled to enjoy under the first respondent. The fact that the first respondent has been insisting for resignation is also relevant. In the absence of any resignation from the service of the first respondent, it is clear that the order of absorption as such cannot be justified. The communications referred to earlier will show that before finalising his absorption, he should have resigned from the Indian Economic Service. The said position is clear from Ext. P27 letter dated 5.8.2005. Still, the matter was unilaterally proceeded with by the State Government.
16. In the light of the above factual and legal position, the petitioner is entitled to succeed in this writ petition. Therefore, Exts. P19 and P21 are quashed. There will be a direction to the second respondent to reconsider the matter in the light of the findings rendered above and after getting the concurrence from the first respondent and after considering Exts. P18 and P20 representation on its merits. Appropriate orders will be passed within a period of two months from the date of receipt of a copy of this judgment.
The writ petition is allowed as above. No costs."
(emphasis supplied)
12. To recapitulate the findings rendered by the Hon'ble High Court -
(i) The willingness of the applicant is only for absorption and not for the terms and conditions of the absorption;
(ii) The applicant cannot be asked to agree to any terms and conditions detrimental to his interest in regard to pay and allowances and tenure of service;
(iii) The terms and conditions fixed by the Government of Kerala have not been agreed to by the applicant nor by the Central Government;
(iv) The applicant's request in the matter has not been considered by the Government of Kerala;
(v) The formalities like resignation and fixation of proper terms and conditions for absorption were not followed.
13. By Annexure A-13 order dated 17.03.2004, the State Government had fixed the terms and conditions of absorption of the applicant as Economist in its service as are admissible to the State Government employees in the same rank. The order of absorption at Annexure A-35 on the terms and conditions stipulated is not an improvement on the orders dated 17.03.2004 and 20.04.1996. It practically ignores all the findings listed above. True, the State Government has considered the request of the applicant for better terms and conditions, but the consideration is not fair and just. Again, it is true that the Central Government has given no objection to the terms and conditions fixed by the State Government, but it is mere washing its hands off the applicant as he was absorbed in the Government of Kerala as per his own willingness and his own volition. The applicant was at fault in defying the direction of the Central Government to report back to the parent cadre. The Central Government would have been justified in throwing him out of service at that time. It has to take the overall responsibility of ensuring better terms for the applicant as it failed to take justifiable action at the right time against the applicant.
14. The State Government has set terms and conditions detrimental to the applicant in regard to pay and allowances and tenure of service. No employee is absorbed against his will. The willingness shown by the applicant for absorption still remains conditional. The formalities to be completed before absorption like resignation and fixation of proper terms and conditions, have not been gone through. These infirmities vitiate the order of absorption at Annexure A-35. Thus, not being sustainable, the impugned order is liable to be set aside.
15. Despite the non approval of the extension of deputation by the 1st respondent, the State Government had strongly pursued the retention of the applicant in its service in public interest. The excessive dependence of the State Government on one IES officer for proper implementation of a World Bank Project is indeed surprising. The applicant was not smart enough to bargain better terms for himself with the State Government. The State Government should not have taken advantage of the applicant's gullibility and innocence about the ways of Government. Maltreatment of the applicant who surrendered his career to the State Government will not do any honour to it. It would have been alright had the State Government told the applicant in the year 1996 to take it or leave it. It is highly unethical for the State Government now to throw him out like a rotten vegetable. The story of deputation and desertion of the applicant can be a case study for the officers and the Government for drawing right lesson to avoid such happenings in future.
16. As the absorption of the applicant in the State Government service is not proper and fair and vitiated, in the interest of justice, the applicant should be deemed to be on deputation to the Government of Kerala since 30.11.1993 on the same terms and conditions of his deputation, till a proper and fair absorption is attained. Accordingly, Annexure A-35 order is quashed and set aside. The 2nd respondent is directed to issue appropriate orders within a period of three months from the date of receipt of a copy of this order.
17. The O.A is allowed as above with no order as to costs.
(K. GEORGE JOSEPH) (JUSTICE P.R. RAMAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER "SA"