Central Administrative Tribunal - Delhi
Ashok Kumar Gupta vs . Nhai on 21 August, 2013
Central Administrative Tribunal Principal Bench, New Delhi.
OA-2683/2013 Reserved on : 14.08.2012.
Pronounced on : 21.08.2013.
Honble Mr. G. George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) Ashok Kumar Gupta Vs. NHAI Present : Sh. R.N. Singh, counsel for applicant.
Sh. P.P. Khurana, Sr. Counsel with Sh. Mukesh Kumar, Advocate and Sh. Tilak Raj, GM(Legal), NHAI, departmental representative on behalf of respondents.
ORDER ON INTERIM RELIEF Mr. Shekhar Agarwal, Member (A) Heard the learned counsel for the parties on the issue of interim relief. Respondents have also filed a short reply opposing the same.
2. In their short reply, the respondents have opposed the interim relief on the following grounds:-
(i) The case of the applicant for absorption in NHAI has been duly considered.
(ii) The applicant had originally come to NHAI on deputation on 12.01.2004. Except for short period in between he has been continuing in NHAI ever since. His deputation was last extended upto 31.10.2012. Thus, the applicant has already spent considerable period on deputation.
(iii) The applicants request for extension of his deputation had been rejected by the competent authority on 10.04.2013.
(iv) The parent department of the applicant i.e. PWD, Rajasthan have been pressing NHAI for repatriation of all the officers who have completed four years or more.
(v) The applicant is entitled to 10 days joining time as well as 60 days post repatriation leave during which he will be paid full salary by NHAI and will also be entitled to retain all perks including leased accommodation.
(vi) The applicants averment attributing mala fide to respondent No. 2 is baseless inasmuch as the applicant has been transferred by competent authority and respondent No.2 has just conveyed under his signature orders of the competent authority.
3. The applicants counsel, on the other hand, argued that the applicant had been denied absorption in NHAI as his case had not been given a fair consideration by the respondents. He argued that most of the persons who had been selected and appointed along with the applicant to the post of DGM were still continuing yet the applicant has been repatriated. He further stated that his deputation tenure has been abruptly terminated with immediate effect when the applicant was on medical leave, thus causing great hardship to him.
4. We have considered the submissions of both the sides. The interim relief sought by the applicant is as follows:-
9. The applicant is having a prima-facie strong case in his avour, his claim is covered by the judgement dated 29.10.2007 of this Honble Tribunal in TA No.4/2007 and also in view of the law laid down by the Honble Apex Court in para 53 of Uma Devi (supra), this Honble Tribunal may be pleased to stay the operation of the impugned Office Orders dated 29.07.2013 (Annexure-A-Impugned and Annexure-A-1 Impugned) and direct the respondents to maintain status quo till final adjudication of the present case. Besides, this Honble Tribunal may direct the respondents to consider the candidature of the applicant for the post of Deputy General Manager (Tech), subject to outcome of the OA.
5. During the arguments, learned counsel for the respondents stated that both the citations given by the applicant while seeking the interim relief pertained to cases of those persons whose absorption had not been duly considered. In the instant case, the applicant does not deny that his case for absorption has been considered and rejected by the respondents. Therefore, these two cited cases are not relevant for the purpose of deciding this case. Learned counsel for the applicant did not dispute this contention.
6. It is not disputed that the applicant has spent about 8 years on deputation with the respondents. This is against the normal deputation tenure of 5 years which is relaxable in the case of NHAI with the approval of Honble Minister for Road Transport and High Ways. It is also not disputed that the Ministry of Road Transport and High Ways has turned down the request of the applicant for further extension of his deputation tenure. It is also not disputed that the parent department of the applicant, namely, PWD, Rajasthan is pressing for repatriation of such of the persons who have spent more than 4 years with the NHAI. The applicant had also not disputed that his case for absorption in NHAI had been considered by the respondents though he is challenging the rejection of his case. Under these circumstances, prima facie we do not seen any reason for grant of interim relief asked for by the applicant and directing the respondents to maintain status quo till final adjudication of the present case.
7. However, it is seen that the deputation tenure of the applicant had been formally extended by the respondents only upto 31.10.2012. Thereafter, he was continuing with the respondents without any formal orders of extension of his deputation tenure and without knowing the exact date on which his deputation was to come to an end. Since there was uncertainty about the tenure of deputation, in fairness to the officer, the respondents should have given notice of some reasonable period to the applicant before terminating his deputation. They have not done so and instead of that have abruptly terminated his deputation and relieved him with immediate effect.
8. In this regard we perused Appx. 5 of Swamys Compilation of FR SR Part-I General Rules dealing with the cases of deputation within India. In Para-9 dealing with the cases of pre-mature reversion of deputationist to parent cadre, it has been stated as follows:-
Normally, when an employee is appointed on deputation/foreign service, his services are placed at the disposal of the parent Ministry/Department at the end of the tenure. However, as and when a situation arises for premature reversion to the parent cadre of the deputationist, his services could be so returned after giving advance intimation of reasonable period to the lending Ministry/Department and the employee concerned.
9. In our opinion, the condition regarding giving notice of reasonable period before pre-maturely reverting the deputationist has been kept in the interest of employee as well as his lending department. This gives time to the employee to prepare for his transfer and prevents disturbance in his family life that may be caused by abrupt termination of his deputation.
10. We feel that the applicants case is fully covered by this para quoted above as abrupt termination of his deputation tenure has all the ingredients of pre-mature reversion inasmuch as in both types of cases the date of reversion is not known to the employee beforehand.
11. In the instant case, no such notice has been given to the employee by the respondents and he has been relieved with immediate effect. In our opinion at least one months notice should have been given. Therefore, in the interest of justice, we direct that in lieu of the notice the respondents shall pay to the applicant one months salary. This will be over and above his normal entitlement of joining time, leave, TA etc. We make it clear that we are not expressing any opinion on the merits of this O.A.
12. List this O.A. on 23.09.2013 for our consideration.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/vinita/