Central Administrative Tribunal - Delhi
Shri B.N. Singh vs Union Of India Through on 24 December, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.2592/2012 Order reserved on 06.12.2013 Order pronounced on 24.12.2013 Honble Shri G.George Paracken, Member (J) Honble Shri P.K. Basu, Member(A) Shri B.N. Singh Aged about 47 years S/o Sh. A.N. Singh R/o 739, Mahabir Prasad Block Khel Gaon, New Delhi 110049. .Applicant (By Advocates : Shri Rahul Verma with Shri Gaurang Kanth) Versus 1. Union of India through Secretary, M/o Home Affairs North Block, New Delhi. 2. South Delhi Municipal Corporation of Delhi Through Commissioner 9th Floor, Civic Centre, Minto Road New Delhi. ... Respondents (By Advocates: Shri R.N. Singh with Shri R.K. Jain) ORDER
Shri G.George Paracken, M(J) In this Original Application, the applicants grievance is against the Ministry of Home Affairs letter No.14011/05/2013-Delhi-II dated 24.05.2013 addressed to the Commissioners of North Delhi Municipal Corporation NDMC for short), South Delhi Municipal Corporation (SDMC for short) and East Delhi Municipal Corporation (EDMC for short) regarding his continued appointment as Assessor and Collector in SDMC wherein they have referred to their earlier letter of even number dated 21.05.2013 (Annexure-I with the reply filed by the Respondent No.1). By the said letter, Ministry of Home Affairs have directed the NDMC to repatriate two other officers who have completed 5 years deputation tenure to their parent department without any further extension. In the present letter, the Ministry of Home Affairs have stated that on further examination of the incumbent lists furnished by the DMCs, it was observed that the Applicant who belongs to UPPCS working as Assessor and Collector in SDMC has already completed five years deputation period. There is also a mention about Shri S.S. Khandpal, Director (Horticulture) and one Shri Nand Kishore, IA&AS who are going to complete the five years term very soon. Further, it has also been stated in the said letter that the Municipal Corporations have intimated only the dates of appointment of their officers in the respective corporations after trifurcation of MCD but they should have intimated the dates of their appointments in the undivided corporations to enable the ministry to compute the exact period of their deputation. By the subsequent letter dated 11.07.2013, the Ministry of Home Affairs (MHA for short) has asked the Commissioner, SDMC to repatriate the applicant immediately. By the said letter the MHA has also directed the Commissioner to repatriate other officers also on completion of their five years deputation period.
2. The brief facts of the case are that the applicant is a UPPSC officer of 1992 batch. He went on deputation as Addl. Deputy Commissioner/Joint Assessor and Collector in the undivided Municipal Corporation of Delhi (MCD for short) under Section 92 of the Delhi Municipal Corporation Act, 1957 in the grade of Rs.7,600/- w.e.f. 01.08.2007. Later on, the MCD issued a Circular dated 04.04.2012 inviting applications for appointment to various category A posts in EDMC, NDMC and SDMC on deputation basis. One of the post advertised was that of Assessor and Collector in SDMC in the grade of Rs.8,900/-. The applicant has applied for the aforesaid post and he was being considered for it on deputation basis. The Assistant Commissioner, SDMC, has, therefore, vide his letter dated 24.05.2012 informed the parent office of the applicant, namely, the Principal Secretary(Appointment), Department of Appointment & Personnel, Govt. of U.P. accordingly. Vide letter dated 02.07.2012, the SDMC has also requested them to furnish his last five years ACRs and cadre clearance to enable the competent authority to consider his candidature. Accordingly, they granted the requisite NOC and permission to continue on deputation for three years from 01.08.2012 to 31.07.2015. Thereafter, the Commissioner, SDMC vide his note dated 09.07.2012 recommended the Applicant for appointment to the aforesaid post and got the approval from the Chairman, Appointment Committee and the Mayor on 10.07.2012. Later on, the Ad hoc Appointments, Promotions, Disciplinary and Allied Matters Committee vide its Resolution No.12 dated 11.10.2012 recommended the applicant for appointment for one year with retrospective effect from 11.07.2012 to the Corporation and vide its Resolution No.117 dated 12.12.2012 the Corporation approved it on the terms and conditions of deputation as per DOP&Ts guidelines issued from time to time.
3. In the meanwhile, the applicant filed this OA on 31.07.2013 before this Tribunal seeking a direction to quash the impugned letter dated 24.05.2012 issued to the Commissioners of NDMC, SDMC and EDMC and the letter dated 11.07.2012 issued particularly to Chairman, SDMC by name (Shri Manish Gupta) by he respondent No.1, namely, the Ministry of Home Affairs demanding the immediate repatriation of the Applicant to his parent cadre i.e., UPSC on the ground that his deputation tenure beyond 5 years, is in violation of the rules laid down by the Department of Personnel and Training. The applicant has also sought an order restraining the respondent No.1 from taking any coercive steps for repatriating him to his parent cadre. Further, he has sought a direction to be issued to respondent No.2 restraining them from repatriating him to his parent cadre.
4. According to the learned counsel for the applicant Shri Rahul Verma, the Ministry of Home Affairs have no authority or role in this matter and, therefore, their interference in the appointment is uncalled for. His further submission is that the earlier appointment of the Applicant as Addl. Deputy Commissioner was under Section 92 of the Delhi Municipal Corporation Act, 1957 and the said post was having the grade pay of `7,600. However, his appointment as Assessors and Collector on deputation basis in SDMC is entirely a different post and the said appointment as the same is governed by Section 89 of the said Act.
5. The respondent No.2 i.e., the SDMC in its reply has submitted that after trifurcation of the MCD into three legal entities, namely, EDMC, NDMC and SDMC, the Central Establishment Department of the MCD issued a circular on 04.04.2012 inviting applications from suitable and willing officers for filling up various posts including that of Assessor and Collector in SDMC on deputation basis. The applicant applied for the said post and as he was found suitable. On obtaining the cadre clearance from his parent department, he was appointed on 11.07.2012. They have also submitted that the post of Assessor and Collector to which he is appointed is a fresh appointment in a higher grade pay than the earlier post of Addl. Deputy Commissioner held by him in a lower grade pay. They have also submitted that his appointment was made strictly in accordance with the rules and by waiving the cooling off period by the competent authority. Therefore, they have submitted that his appointment is in order and in accordance with the rules. They have also stated that under Section 89 of the DMC Act, the Corporation is the competent authority to consider and appoint officers to the post of DC and above.
6. The respondent No.1, namely, the M/o Home Affairs filed a separate reply in this case. According to them, there were complaints against the applicant regarding irregularities committed by him as Assessor and Collector in the SDMC. Accordingly, the SDMC was asked to furnish their comments/reports in the matter in October, 2012. Since there was no response from them, the appointments of senior officers in all the three Municipal Corporations were reviewed in February, 2013 and vide letter dated 21.05.2013 all such officers/engineers who have already completed their deputation tenure were directed to be repatriated to their parent cadres without further extension so as to make way for young and energetic aspirants. In the case of the applicant, it was found that he had already completed five years deputation period. Seven more officers working in other Municipal Corporations have also been directed to be repatriated. They have also stated that though the applicant belongs to the UP cadre, he has been on deputation w.e.f. 1999 to 2010. He was working on deputation in the Ministry of Agriculture, New Delhi for three years from July 1999 to July 2002. From August 2002 to August 2007, he was working with the Delhi Development Authority. Again, from 02.08.2007 onwards he was working with MCD/SDMC without having any cooling off period and the five years deputation period there has also already expired on 01.08.2012. Now, even after completion of six years there, he is still continuing. They have also stated that the terms and conditions of deputation are regulated as per the guidelines issued by the Department of Personnel and Training in the matter from time to time and the Respondent-SDMC is bound by them. In terms of their OM dated 17.06.2010, no extension of deputation beyond 5 years shall be considered and any relaxation to terms and conditions (including extension beyond 5 years) requires their prior concurrence. However, in the case of the Applicant, he has been on deputation for the last 14 years which is in grave violation of the guidelines issued by the DOP&T as adopted by the MCD and no concurrence has been obtained from the DOP&T for any extension beyond the five years. Therefore, his continuation in SDMC as Assessor and Collector is without the approval of the competent authority.
7. Today, i.e., 06.12.2013, during the course of the hearing, learned counsel for the applicant has submitted that the SDMC vide its Office Order No.F.16(5)/CED/SDMC/ 2013/1775 dated 05.09.2013 has again conveyed the approval of the Corporation vide its Resolution No.97 dated 06.08.2013 extending his appointment as Assessor and Collector on deputation basis for a further period of one year from 11.07.2013 to 10.07.2014, on the terms and conditions of deputation to be settled in due course.
8. We have heard the learned counsel for the applicant Shri Rahul Verma and learned counsel for the respondent No.1, Shri R.N. Singh and the counsel for respondent No.2 Shri R.K. Jain. The basic contention of the learned counsel for the Applicant and the learned counsel for Respondent No.2 is that the applicants cadre controlling authority and lending department is the UPPCS and they have nothing to do with the Ministry of Home affairs. Further, according to them, once the lending department has no objection in allowing the Applicant to remain on further deputation and the borrowing department is also willing to allow him to continue on deputation, the Ministry of Home Affairs is not competent to interfere in the matter. The learned counsel for the applicant has also contended that earlier he was working as an Addl. Deputy Commissioner with grade pay of Rs.7,600/- and the present post of Assessor and Collector in the grade pay of Rs.8300/- is altogether a different post. Therefore, the present appointment shall be considered as a fresh appointment. Moreover, in his case, his cadre controlling authority has already waived the requisite cooling off period and the borrowing department, i.e., the SDMC has accepted it. Therefore, he should be allowed to continue to work un-interruptedly and without any intervention of the Ministry of Home Affairs. In our considered view, this OA is totally misdirected. The impugned letters dated 24.05.2013 and 11.07.2013 are internal communications between Ministry of Home Affairs and the Commissioners of NDMC, SDMC and EDMC. They are not only about the Applicant but also about other deputationists with the Municipal Corporations who are overstaying the maximum deputation period of 5 years without the concurrence of the DOP&T. Further, it is seen that it is in blatant violation and total disregard of the directions of the Ministry of Home Affairs to Shri Manish Gupta, the Commissioner, SDMC vide its letter dated 11.07.2013 to repatriate the Applicant to his parent cadre, vide his letter No.F.33/CED/SDMC/138/C&C 27.08.2012, he recommended the appointment of the Applicant to the post of Assessor and Collector on deputation basis retrospectively w.e.f. 11.07.2012. Even ignoring the fact that this OA is pending before this Tribunal, the Corporation vide its Resolution No.97 dated 06.08.2013 again approved the continuance of the applicant as Assessor and Collector on deputation basis in SDMC for a further period of one year from 11.07.2013 to 10.07.2013. In any case, since SDMC has been allowing the Applicant to continue with them on deputation even ignoring the orders of the Ministry of Home Affairs, it cannot be said that he has any grievance in the matter.
9. Now, the only surviving issue in this case is whether the Ministry of Home Affiars has the power to interfere with the appointments being made by the Municipal Corporations or not. Both Applicant as well as Respondent No.2 have vehemently contend that the Ministry of Home Affairs has no such power. However, from the impugned letters of the Ministry of Home Affairs, it is clear that they hold the view that they have the power and authority in the matter. But the said dispute is something which is to be settled between the Ministry of Home Affairs and SDMC. Therefore, in this OA, it is not necessary for us to go into that aspect. However, when the appointment of the applicant on deputation has been made and then extended by the Commissioner, SDMC in violation of the directions of the M/o Home Affairs, the law shall take its own course.
10. In the above facts and circumstances of the case, we do not find any reason to interfere in the matter and accordingly we dismiss this Original Application. There shall be no order as to costs.
(P.K. Basu) (G. George Paracken) Member(A) Member(J) /vb/