Central Administrative Tribunal - Delhi
Dr. Rajendra Kumar vs The Govt. Of National Capital Territory ... on 27 February, 2015
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.2882/2009 Friday, this the 27th day of February 2015 Honble Mr. A.K. Bhardwaj, Member (J) Honble Mr. V.N. Gaur, Member (A) 1. Dr. Rajendra Kumar Assistant Director (Biology) Forensic Science Laboratory Govt. of NCT of Delhi Madhuban Chowk, Sector 14 Rohini, Delhi-85 2. Mrs. Deepa Verma Assistant Director (Documents) Forensic Science Laboratory Govt. of NCT of Delhi Madhuban Chowk, Sector 14 Rohini, Delhi-85 3. Ashutosh Kumar Srivastav Assistant Director (Biology) Forensic Science Laboratory Govt. of NCT of Delhi Madhuban Chowk, Sector 14 Rohini, Delhi-85 ..Applicants (By Advocate: Mr. C Mohan Rao) Versus 1. The Govt. of National Capital Territory of Delhi Through Principal Secretary (Home) 5th Level, C Wing, Delhi Secretariat IP Estate, New Delhi 2. Forensic Science Laboratory, Delhi Through the Director, Madhuban Chowk, Sector 14 Rohini, Delhi-85 3. Union Public Service Commission The Chairman Dholpur House, Shahjahan Road New Delhi-11 4. Dr. Madhulika Sharma Assistant Director (Chemistry) Forensic Science Laboratory, Delhi Sector 14, Rohini, Delhi-85 ..Respondents (By Advocates: Ms. Renu George for respondent Nos. 1 and 2 Nemo for respondent No.3 UPSC and Ms. Bimla for Mr. Ajesh Luthra for respondent No.4) O R D E R (ORAL)
Mr. A.K. Bhardwaj:
The short issue raised by the applicants in the present Original Application is that despite the Order passed by the Honble High Court of Delhi in W.P. (C) Nos.14097-14100/2005, the official respondents did not grant them the promotion as Assistant Director from due date and accordingly have not drawn their seniority in the grade properly. Their further grievance is that when the applicants have been denied such benefit, respondent No.4, Dr. Madhulika Sharma could be given promotion as Assistant Director from the date the vacancy was available and she held the post on ad hoc basis. The extensive Order passed by the Honble High Court, read out by the applicant repeatedly, reads thus:-
7. As noted earlier, in the present case, petitioners admittedly possess the requisite academic qualification and were also drawing the prescribed scale. The only question requiring consideration is whether they meet the requirement of experience of five years of regular service in the grade/scale. It is the petitioners' contention that they have served as Senior Scientific Officers for over 7 - 10 years on deputation enjoying the requisite scale and hence they are eligible for being promoted as Assistant Directors. On the other hand, the Respondents contend that service rendered on deputation cannot be treated as regular service in the post. The service of the Petitioners as deputationists prior to their absorption on 29th April, 2002 cannot be reckoned for determining their eligibility in terms of the Recruitment Rules and the Advertisement.
8. Learned Counsel for the petitioners Mr. C. Mohan Rao in support of his contention submits that in fact the petitioners had been duly discharging all the functions of Senior Scientific Officers and even that of the Assistant Directors. He submits that petitioners had been duly appointed to the post at Forensic Science Laboratory, which vacancies were required to be filled by specified mode of deputation/transfer etc. Petitioners' selection on deputation were made following due procedure.
9. Petitioners contend that other methods of recruitment for the post of Assistant Directors were to be resorted to if no candidate was available by promotion. Petitioners had been duly appointed to the posts of Senior Scientific Officers and had in fact now been discharging functions of the Assistant Director for over two and a half years. Petitioners contend that their appointment on deputation was as per rules and in accordance with the mode of recruitment prescribed. In these circumstances not to regard their service while on deputation as regular service would be arbitrary and whimsical. Reference was invited to the decision of the Supreme Court in K. Madhavan and Anr. v. Union of India and Ors. reported at MANU/SC/0644/1987 : [1988]1SCR421 . The Supreme Court was considering the eligibility conditions to the post of Superintendent of Police in CBI. The rule required the deputationist to be a DSP in Special Police Establishment with minimum 8 years service in the grade out of which 2 years to be probationary period in CBI. The Supreme Court held that with 6 years spent as DSP in State Police and 2 years on probation with CBI, he would be eligible for consideration to the appointment to the post of SP. The Supreme Court in para 10 observed as under:
10. The 1975 Rules which are relevant for the purpose do not explain what is meant by the expression 'on a regular basis'. The expression has created some ambiguity in the eligibility clause giving rise to this controversy. There can be no doubt that when a person is appointed to a post against a permanent vacancy on probation, his appointment is on a regular basis, but when a person is appointed to a post on a purely temporary or on an ad hoc basis the appointment is not on a regular basis. The expression 'on a regular basis' in the 1975 Rules cannot, in our opinion, be interpreted to mean as on absorption in the CBI as SP. The general principle is that in the absence of any specific provision to the contrary, the length of service from the date of appointment to a post should be taken into consideration for the purpose of either seniority in that post or eligibility for the higher post. As no Explanation has been given in the 1975 Rules of the said expression, we do not think it desirable to deviate from the established principle of computing the length of service for the purpose of seniority or eligibility for the higher post from the date of appointment. In our view, Therefore, the expression 'on a regular basis' would mean the appointment to the post on a regular basis in contradistinction to appointment on ad hoc or stopgap or purely temporary basis. Respondent 5, in our opinion, satisfied the eligibility test of the 1975 Rules for consideration for the post of DIG.
10. The Court further noted, "Officer may have been in the State Police as DSP for a period of six years and, thereafter, if he joins the CBI on deputation and spends 2 years on probation, he would be eligible for consideration for appointment to the post of SP. If this view is not taken, no officer would be available to join the CBI on deputation. It has already been noticed that the CBI requires efficient and experienced police officers and if the period spent by police officers in the State Police Service is not taken into account for the purpose of computing the period of eight years, it would be doing injustice to such police officers who joined the CBI on deputation."
11. Accordingly, learned Counsel for the petitioner urged that the Tribunal erred in holding that the period spent on deputation after regular appointment and selection is not to be regarded as regular service in the scale/grade and the period could only be counted from the date of absorption. The Tribunal's decision is contrary to K.Madhavan's case in equating regular service as service from the date of absorption. This was not an appointment on ad hoc basis or purely temporary or stop gap filling up of a vacancy. This was filling up vacancy by a specified mode of recruitment i.e. by deputation. Learned Counsel contended that the Tribunal thus erred in counting the period of service from the date of absorption for the purpose of seniority or eligibility for a higher post.
12. Reference may also be usefully made to the decision of the Supreme Court in Ajit Kumar Rath v. State of Orissa and Ors. reported at MANU/SC/0705/1999 : AIR2000SC84 and Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Ors. reported MANU/SC/0291/1990: [1990]2SCR900 . The Court held that ad hoc service over a long period of time has to be reckoned for the purpose of seniority and eligibility and credit has to be given for the service rendered unless the appointment was irregular or contrary to the recruitment rules.
13. Reference may also be usefully made to the decision of the learned Single Judge of this Court in S.K. Tanwar v. National Open School Society (Regd.) and Ors. reported at 2004 4 AD (Delhi) 573. Respondent National Open School was reckoning the qualifying service in the grade w.e.f. 28th March, 2000, when the petitioner therein was permanently absorbed with them. The learned Single Judge relying on K. Madhavan and Ors. v. Union of India (Supra) and K.B. Rajoria v. Union of India and Ors. Reported at MANU/DE/0447/1999 : 82(1999)DLT666 held that petitioner was entitled to include the service as a deputationist on being permanently absorbed for the purpose of determination of his length of service in the scale.
14. Ms. Avnish Ahlawat on behalf of the respondent sought to justify the decision of the Tribunal. She submitted that there were no recruitment rules, which would have enabled these appointments on regular basis. Some of these petitioners have been working in posts lower than in the rank of Senior Scientific Officers, such as, Senior Scientific Inspector, Sub-Inspector etc. prior to being taken on deputation as Senior Scientific Officers. Her submission is that in respect of petitioners, who are working at posts lower than that of Senior Scientific Officers, their service in the parent department are not to be taken into consideration. The above plea to our mind is of no avail. The question to be considered is whether the services rendered as Senior Scientific Officer on deputation with the respondent can be regarded as regular service in the grade/scale. Ms. Ahlawat submits that recruitment rules were framed in 1998 in consultation with UPSC. Accordingly, these petitioners were permanently absorbed on 29th April, 2002 as Senior Scientific Officers. Their service for purposes of promotion to the post of Assistant Director, accordingly, has to be counted from the date of absorption when their appointment stood regularized. She further submitted that these persons could not be considered as regular appointees as they had joined the respondent on deputation and held their lien in other posts held by them prior to their absorption. We have already noted that the appointment of petitioners on deputation was admittedly after following due procedure. The non existence of statutory rules, at the relevant time, cannot convert the service rendered by them as irregular and result in their service being disregarded for being counted for the purposes of eligibility condition. As noticed earlier, each of the petitioners possess the requisite academic qualifications and have the requisite experience to meet the eligibility condition.
15. We find merit in the petitioners' submission, as noted above. Petitioners in view of the decision in K. Madhavan and Ors. v. Union of India (Supra) and K.B. Rajoria v. Union of India and Ors. (Supra) are entitled to have the period of service on deputation with the respondent counted towards the eligibility period for the post of Assistant Director.
16. The Tribunal had also relied on the factor that the period of deputation should not be counted towards regular service because the petitioners during the period of deputation and prior to permanent absorption had a lien on their posts in the parent department. Without going into the question as to whether lien was retained or not, we find the same to be contrary to the dictum, laid down in Rudra Kumar Sain and Ors. v. Union of India and Ors. reported at MANU/SC/0522/2000 : AIR2000SC2808 . In the cited case, the Supreme Court noted the contention that the conclusion arrived at by the Committee of the High Court that a person promoted to higher judicial service under Rules 16 and 17 of the Rules to a post against which some other person had a lien, would ipso facto make such appointment ad hoc/fortuitous/stop gap, is contrary to the conclusion reached by the Supreme Court in O.P. Singla v. Union of India reported at MANU/SC/0350/1984 : (1985)IILLJ309SC regarding continuous length of service.
17. From the foregoing, it would follow that simply because a lien was retained by the earlier incumbent to the post, the subsequent appointment to the post which is otherwise made in accordance with the rules would not be rendered ad hoc/fortuitous/stop gap because of the lien. Hence similar plea regarding lie as is sought to be raised would also not be available to the respondent.
18. Learned Counsel for the petitioner also sought to urge his grievance regarding fixation of a lower scale in deputation than the one given in the appointment letter. There is nothing to indicate that this plea was urged before the Tribunal. The judgment does not contain any mention thereof. No material particulars with regard to the extent of recovery from the salary allegedly made have been mentioned in the writ petition. Accordingly, we cannot take cognizance of this oral submission at this stage.
In view of the foregoing discussion, the impugned order of the Tribunal is not sustainable and is set aside.
A writ shall issue to the respondent to consider the case for promotion of the petitioners as Assistant Directors in their respective disciplines, duly taking into account the service rendered by them as Senior Scientific Officers with the respondent from the dates of their respective appointment on deputation for the purpose of fulfilling the condition of 5 years service as Senior Scientific Officers for the post of Assistant Director. Petitioners be considered for notional promotion from the date the post of Assistant Directors in their respective discipline fell vacant with consequential benefits from the date petitioners have been discharging the functions of Assistant Directors.
2. The Order of the Honble High Court is very clear and the ramification of the same is that the applicants were to be granted promotion as Assistant Director notionally from the date the post in the respective disciplines fall vacant. According to the learned counsel for applicants, they were granted promotions w.e.f. 29.4.2002 and thereafter and not from the dates of availability of vacancies. According to him, the applicants could acquire the eligibility for promotion to the post w.e.f. 1.3.1999, 1.8.2001 and 19.3.1998.
3. In sum and substance, the grievance espoused by the learned counsel is that before making the promotion to the next grade, i.e., the post of Deputy Director, official respondents ought to have given promotion to the applicants as Assistant Directors from the due date and should have drawn the seniority list in the grade.
4. In the counter reply, the official respondents have submitted that the applicants could not get seniority from the date of joining the post of Senior Scientific Officer on deputation, as they were not in the equivalent grade in the parent organization and the Order passed by the Honble High Court (supra) has not attained finality, as the same could be challenged before the Honble Supreme Court in C. A. No.1753/2007. We find that now the Apex Court has upheld the aforementioned Order of the Honble High Court in terms of the Order dated 13.10.2011.
5. As far as the plea of the official respondents regarding entitlement of the applicants for seniority from the date of deputation is concerned, the issue could be determined by the Honble High Court in terms of its Order dated 11.10.2006 (supra). Thus the Original Application is disposed of with direction to the official respondents to ensure that the applicants are granted promotion as Assistant Director in the spirit of the Order of Honble High Court and their seniority is fixed accordingly. The applicants would also be entitled to their promotion as Deputy Director on the basis of the seniority to be fixed, as directed above. No costs.
( V.N. Gaur ) ( A.K. Bhardwaj ) Member (A) Member (J) February 27, 2015 /sunil/