Central Administrative Tribunal - Delhi
Prashant Jangra vs Labour on 12 May, 2023
Item No.22
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1265/2023
Reserved on :04.05.2023
Pronounced on ::12.05.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Prashant Jangra, Aged about 42 years,
S/o Sh. Ishwar Singh Jangra,
Working as Senior SSA, EPFO,
Regional Office, Gurugram (East),
R/o Flat No.-36,
No. 36, The Lord Shiva Apartm
Apartments,
Sector
Sector-10-A,
A, Gurugram, Haryana
Haryana-122001.
...Applicant.
(By Advocate: Shri M.K.Bhardwaj)
Versus
1. Union of India,
Through its Secretary,
Ministry of Labour & Employment,
Shram Shakti Bhawan, Rafi Marg,
New Delhi-110001.
Delhi
2. Chairman, Central Board of Trustee, EPFO
Ministry of Labour & Employment,
Shram Shakti Bhawan, Rafi Marg,
New Delhi-110001.
Delhi
3. Employees Provident Fund Organisation,
Through its Central Provident Fund Comm
Commissioner,
Head Office, 14-Bhikaji
14 Bhikaji Cama Place,
New Delhi-110066.
Delhi
4. Additional Central Provident Fund Organisation
(Haryana)
Sector
Sector-16A,
Dr. Shyama Prasad Mukherjee Institute of Social
Security Administration Building,
Old Faridabad, Haryana-121002.
121002.
2
O.A. No.1265/2023
5. Additional Central Provident Fund Commissioner,
(HRM),
Head Office, 14-Bhikaji Cama Place,
New Delhi-110066.
6. Regional Provident Fund Commissioner-I,
EPFO, Plot No.43, Sector-44,
Regional Office, Gurugram (East),
Haryana-122003.
7. National Commission for Backward Classes
through its Secretary,
Trikoot-I, Bhikaji Cama Place,
New Delhi-110066.
...Respondents.
(By Advocate: Mr.Amit Anand)
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
By way of this OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s) :-
"a) To declare the action of the respondents in not forwarding the application of applicant for consideration of his claim for appointment to the post of Accounts Officer on deputation basis in National Commission for Backward Classes as per Circular dated 16.03.2023 as illegal and accordingly direct the respondents to forward the application of applicant dated 14.04.2023 to National Commission for Backward Classes / Respondent No.7 for appointment to the post of Accounts Officer and relieve him to join said post as per the outcome of selection.
b) to allow the OA with cost. 3 O.A. No.1265/2023 c) Pass such other and/or further orders as this
Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
2. The relief sought at Para-8 has been sought by way of interim relief also at Para-9 of this OA.
3. The case of the applicant is that he was initially appointed as Social Security Assistant (SSA) in 2010 and after completion of 7 years of service he was promoted as Senior SSA in 2017 in the office of Additional Central Provident Fund Commissioner, Haryana. The National Commission for Backward Classes issued a circular dated 16.03.2023 to fill up the post of Accounts Officer on deputation basis amongst the eligible officials serving in the Level-6 in Pay Matrix Rs.35400-112400 for 6 years or 44900-142400 for 2 years. As the applicant possessed the requisite eligibility, he applied on 14.04.2023 through proper channel. The last date of submission of application was 01.05.2023 and therefore the applicant repeatedly requested the competent authority amongst the respondents, i.e. Respondent No.5 to forward his application without any delay but the application has not been forwarded till date.
4O.A. No.1265/2023
4. The applicant has drawn our attention to various OMs of the Government of India wherein it has been clearly mentioned that the administrative authorities should ordinarily forward applications which are submitted either in response to advertisement of UPSC or applications which are submitted in response to request received from other Departments.
5. It is further submitted that the applicant is holding permanent post and has submitted application for higher post on deputation for a specific period. Moreover, he is holding the post of Senior SSA and in the said capacity, the applicant does not have any independent authority, but to assist the higher authorities. Therefore, he does not discharge such duties and responsibilities which are of technical nature and can only be discharged by him. He has also contended that since the respondents have already forwarded the application of similarly placed persons, it is unfair on the part of the respondents not to forward his application. Therefore, the respondents cannot justify their discriminatory action of not forwarding his application in the name of public interest. 5 O.A. No.1265/2023
6. The respondents, on the other hand, in their counter citing same DoP&T OM dated 24.11.2023 mentioned by the learned counsel for the applicant, have submitted that the OM clearly states that before forwarding of application, the Head of Department has to strictly take into consideration the "public interest" and subject to that consideration, the Head of Department may permit any employee to apply for an outside post whether he may be holding a permanent post.
7. It has been argued that as evident from the DoP&T guidelines, withholding of the application does not involve infringement of constitutional right. The respondents further submit that they are the appointing authority of the applicant and fully competent to take suitable decision and action in the instant matter. They have further pointed out that the Regional Office Gurgaon (East) is the heaviest office of EPFO in terms of workload and sanctioned strength of officers and staff at all the levels does not match with the exponential rate of growth of workload of this office. Situation has been further aggravated as large number of vacancies against the existing sanctioned posts. In view of above, a conscious and considered decision was 6 O.A. No.1265/2023 taken not to forward application of staff for deputation. In fact, the office is contemplating to recall the only official on deputation in public interest.
8. We have perused the pleadings on record and also heard Shri M.K.Bhardwaj, learned for the applicant and Shri Amit Anand, learned counsel for the respondents.
9. During the course of hearing, learned counsel for the applicant has drawn our attention to DoP&T OM dated 24.11.2022 with regard to forwarding of applications of Government servants for outside employment, to say that such application can be withheld only in public interest. In Para 2 of the said OM the term "public interest" has been interpreted the caption as follows:
"2. INTERPRETING THE TERM 'PUBLIC INTEREST a. The Heads of Departments should interpret the term 'public interest' strictly and subject to that consideration, the forwarding of applications should be the rule rather than an exception. Ordinarily, every employee (whether scientific and technical or non-scientific and non-technical personnel) should be permitted to apply for an outside post even though he may be holding a permanent post."7 O.A. No.1265/2023
10. Learned counsel for the applicant further submits that Para-6 of the said OM also describes circumstances in which application should not be forwarded as under:
"6. Circumstances in which application should not be forwarded Application of a Government servant for appointment, whether by direct recruitment, transfer on deputation or transfer, to any other post should not be considered/ forwarded, if:
(a) (i) he is under suspension; or
(ii) disciplinary proceedings are pending against
him and a charge sheet has been issued; or
(iii) sanction for prosecution, where necessary has been accorded by the competent authority; or
(iv) where a prosecution sanction is not necessary, a charge-sheet has been filed in a Court of law against him for criminal prosecution.
(v) where he is undergoing a penalty -- no application should be forwarded during the currency of such penalty.
(b) When the conduct of a Government servant is under investigation (by the CBI or by the Controlling Department) but the investigation has not reached the stage of issue of charge-
sheet or prosecution sanction or filing of charge-sheet for criminal prosecution in a court, the application of such a Government servant may be forwarded together with brief comments on the nature of allegations and it should also be made clear that in the event of actual selection of the Government servant, he would not be released for taking up the appointment, if by that time any of the situations in (a) above arises.
8O.A. No.1265/2023 Alluding to the aforementioned two paras of DoP&T OM, the learned counsel representing applicant advances the argument that the applicant was entitled for forwarding his application as no public interest was involved here, more so when applicant is not covered under any of the aforesaid 5 circumstances and plea of "exception" cannot be attracted to reject his application for deputation.
11. Learned counsel for the applicant has also drawn our attention to Para 10 of the order passed by the Allahabad Bench of this Tribunal in John Enoch Cornelius vs. Union of India & Another (OA No.330/00124/2018 decided on 08.02.2018). Relevant portion of the said order reads as under:
"10. We are unable to accept the contentions raised by the learned counsel for the respondents, as Stenographer cannot be said to be such an important person that his services are required in public interest. Further the respondents have clearly submitted that recruitment process is going on and the applicant demands only to forward his application for consideration of his candidature for appointment to the post of Private Secretary, Appellate Tribunal for Electricity, New Delhi on absorption basis and the decision on appointment of the applicant on the said post on absorption basis will take much time and, therefore, in the meantime, respondents may fill up the post of Stenographer Grade-II for which the recruitment process has already been initiated by the respondents. However, the respondents are 9 O.A. No.1265/2023 always free to outsource the services by appointment a person on contract respondents cannot refuse to forward an application of an employee for consideration of his candidature for appointment on absorption basis. As such without discussing much, this Tribunal is of the view that the instant OA can partly be allowed with a direction to the respondent No.2 to forward the application of the applicant to the Appellate Tribunal for Electricity, New Delhi for consideration of his candidature for appointment to the post of Private Secretary. We order accordingly. The respondent no.2 is directed to forward the application of the applicant on receipt of a copy of this Order."
Relying on the above, learned counsel submits that in the instant case also, an advertisement for the post of Social Security Assistant in Employees' Provident Fund Organization has been issued recently and online registration for the same has to be completed between 27th March, 2023 to 26th April, 2023. The vacancy advertised includes 109 posts for Haryana Region. A copy of the said advertisement has also been placed. The learned counsel therefore reiterates that there is nothing to suggest that any issue of public interest is involved here, more so, as the applicant is amongst many SSAs/Sr.SSAs, which is a Group "C" post and is not holding any technical or sensitive post.
10O.A. No.1265/2023
12. The respondents have cited an order passed by the Chennai Bench of this Tribunal in OA No.310/00186/2021 in Ashish Kumar Khare vs. Union of India & Others decided on 21.02.2022 and drawn our attention to Paras 4 to 6 and 10 to show that for similar ground of the exigency of the organization and workload, the application for deputation of an employee was not forwarded as under:
"4. The respondents have filed reply denying the averments made in the O.A. It is submitted that even though the applicant was appointed to the post of Hindi Translator w.e.f. 04.02.1999 in the then pay scale of Rs. 4500-125-7000, the same was upgraded to the pay scale of Rs. 5000-150- 8000 from O 1.01.1996. Further, in compliance of the Hon'ble CAT's order dated 22.08.2016 in OA No. 866/2014 filed by the applicant, he was granted the Pay Band (PB-2) : Rs. 9300- 34800 + Grade Pay of Rs. 4600 w.e.f. 01.01.2006. The post is also redesignated as Junior Translation Officer.
5. As regards to not forwarding of application for appointment on deputation submitted by the applicant, it is submitted that the structure of Ministry of Animal Husbandry, Dairying & Fisheries was changed drastically at that time. Fishery Survey of India which is the nodal fishery institute in India with the primary responsibility of survey and assessment of fishery resources in the Indian Exclusive Economic Zone (EEZ) and adjoining areas for promoting sustainable exploitation and management of the marine fishery resources. As the need of the hour, a separate Department of Fisheries has been created under the renamed Ministry of Fisheries, Animal Husbandry & Dairying to benefit the fishermen and stakeholders. With this development, the role of FSI has become vital under Department of Fisheries for formulating the 11 O.A. No.1265/2023 fishermen policies which in turns helpful to the end users. The various documents and policies of the Institute were being prepared in bilingual viz., Pradhan Mantry Matsya Sampada Yojana (PMMSY) Guidelines, Matsya Sampada Publication, Parliamentary Budget Session Material, Parliamentary questionnaire, vetting of Hindi Ann ual Report of Ministry etc. To complete all the entrusted work in stipulated time, FSI needs services of all the Junior Translation Officers available, which leads the act of competent authority to not to spare the officer outside. Therefore, the act of competent authority is truly vindicated and in the public interest.
6. The translation work from English to Hindi of scientific institute like Fishery Survey of India needs knowledge of scientific and technical terminology which cannot be entrusted to others. Due to the work pressure after lockdown, implementation of policies framed by the Ministry, needed service of the employees who could attend the office during the pandemic situation of Covid
19. So, at the discretionary power of competent authority, it was decided to not to forward the application of Junior Translation Officer for the post of Assistant Director (Official Language) on deputation. The total staff strength of FSI in the post of Junior Translation Officer is 7 and the existing strength is only 6. Due to exigency of work and to fulfill the target fixed by the Official. Language Implementation Committees, it is not possible to spare the services of available translators. The allegation of the applicant that respondent no. 1 in forwarding all the employees' application is baseless. The respondent has to balance the prosperity of the employees with the benefit of the institute. Even though the department has forwarded 10 applications out of twenty received, only three are relieved to take up the post.
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16. It is crystal clear from the foregoing paras that due to new development taken in the Department on creation of Department of Fisheries and pandemic situation of Covid 19, the tremendous workload, competent authority could not spare such an experienced hand by forwarding of application. The act of respondent is purely bonafide, just, fair and in the public interest."
13. After hearing both the parties at length, the seminal issue that emerges is whether the respondents' act of non- forwarding of application for deputation was done in the public interest or not. Both the sides while arguing the case have referred to OM dated 24.11.2022 of DoP&T which deals with the subject of forwarding of applications of Government servant and wherein all relevant instructions with regard to the subject have "been consolidated at one place for better understanding and guidance".
14. From the reading of the OM it appears that while no hard and fast rule could be laid down in the matter and that the final decision whether a particular application should be forwarded has to be with the authorities through whom the same has to be forwarded, a balance of the interest of the State and the individual concerned has to be maintained in such cases. In the above spirit, therefore, 13 O.A. No.1265/2023 it is stipulated that the administrative authorities are required to ordinarily forward such applications. It is also emphasized in the said OM that forwarding of application should be the rule rather an exception.
15. A collective reading of the guidelines contained in the OM demonstrate that but for the demand of public interest to the contrary, an application filed by an individual in Central Government Departments/organizations in response to an advertisement for deputation elsewhere ought to be forwarded as a matter of rule. The essence of the above guidelines is that though while dealing with the application of any employee seeking to apply for deputation elsewhere the demand of public interest has to be borne in mind, the administrative authorities are also required to be alive to the interest of the State as well as the possible hardships that would visit the applicant in case such permission is denied. It, therefore, logically follows that the applicant barring some exceptional circumstances is entitled to get his application forwarded. While the ground cited in the counter reply and also during the hearing by the respondents to deny his application cannot be dismissed as facile, the need to refuse 14 O.A. No.1265/2023 forwarding of his application on the ground that there are less SSAs/Sr. SSAs against the sanctioned post, could not have been experienced on the eve of his application being forwarded. We do not question that the respondents would not be within their powers to refuse any application from being forwarded for outside employment on an estimate of the relevant consideration, bearing on public interest or the exigency of the service, their approach nevertheless has to be fair, transparent, reasonable and just, more particularly, when the application for similarly placed persons has been forwarded and also the deputation is for a specific period and for a higher pay scale. Also we cannot gloss over the fact that the respondents have already taken action to fill in the vacant post of SSA which is feeder post of Senior SSA. Moreover, applicant is a Group "C" employee, whose main charter of duty is to assist the higher authorities and as such he is not holding any sensitive, technical or independent position which will seriously jeopardize the working of the organization and will be detrimental to public interest. Also the applicant is not suffering from any legal impediment which can be the basis to ignore his application.
15O.A. No.1265/2023
16. Therefore, the impugned action of the respondents in the given facts and situation, if sustained, in our opinion, would amount to endorsing the exercise of superior executive power in disregard of the guidelines governing the process and the bonafide expectations of the petitioner.
17. We have also considered the order of the Chennai Bench of this Tribunal cited by the learned counsel for the respondents and find that the facts and circumstances in the instant OA are not comparable. In the said Chennai Bench case, the Ministry of Fisheries, Animal Husbandry & Dairying was undergoing a process of restructuring and a separate Department of Fisheries was created to benefit the fishermen and stakeholders. The role of Fishery Survey of India (FCI) in which the applicant was working had become vital for the smooth functioning of the newly constituted Department of Fisheries. Keeping in view the extra ordinary situation arising out of transition, it was thought to be in the public interest not to consider any proposal for deputation of such employees by the respondents. The stand taken by the respondents was vindicated by the Tribunal. In the case under 16 O.A. No.1265/2023 consideration, the situation is entirely different as has been brought out clearly and does not need further elaboration.
18. In the facts and circumstances of the case, the OA therefore succeeds. As a corollary, the competent authority amongst the respondents is hereby directed to forward his application to Respondent No.7, i.e., National Commission for Backward Classes to which he is seeking deputation. Since the last date for receiving the application is over, the Respondent No.7 will do the needful to relax the deadline for receipt of his application so that no prejudice is caused to the applicant. The entire process, i.e. starting from forwarding of application by Respondent No.4 to receiving/accepting of such application, if found in order, by Respondent No.7 will be completed as expeditiously as possible but not exceeding 10 days from the date of receiving this order. No order as to costs.
(Sanjeeva Kumar) (R.N. Singh) Member (A) Member (J) /kdr/