Central Administrative Tribunal - Delhi
Gajender Sharma vs Delhi State Industrial And ... on 22 July, 2024
(1) O.A. No.3408/2022
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.3408/2022
M.A. No.1031 /2023
Reserved on :11.07.2024
Pronounced on :22.07.2024
Hon'ble Mr. Justice Ranjit More, Chairman
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Gajender Sharma
Age 55years
S/o Late Shri R.N.Sharma
Working as Superintending Engineer
Delhi State Industrial & Insfrastructure
Development Corporation Ltd,
N-36, Bombay Lifge Building,
Connaught Circus, New Delhi-110001.
R/o 212-A, DDA Flats, Satyam Enclave,
Jhilmil Colony, Delhi-110095. ...Applicant
(By Advocates :Shri S.K.Gupta, Shri Padma Kumar S.&
Shri Gurpreet Singh)
VERSUS
1. Delhi State Industrial &Infrastructure
Development Corporation Ltd
Through its Managing Director
N-36, Bombay Life Building,
Connaught Circus, New Delhi-110001.
2. Shri S.N.Sharan
Superintending Engineer
N-36, Bombay Life Building,
Connaught Circus,
New Delhi-110001. ...Respondents
(By Advocates:Sh A.K.Behera, Sr. Advocate,
Ms.Firoouse Qutub Wani with
Md.Zaryab Jamal Rizvi)
(2) O.A. No.3408/2022
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
The applicant is aggrieved by the order dated 10.10.2022 passed by Respondent No.1, assigning seniority to Respondent No.2 to the rank of Superintending Engineer (SE) w.e.f. 10.01.2012, though, as claimed by the applicant, Respondent No.2 was borne in the cadre of SE only on 27.05.2019, much later than the applicant, who was promoted to the said post on 18.10.2017 on regular basis. In the instant OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s):-
"(a) Quash and set aside the Order dated 10.10.2022 (ANNEXURE A-1), which has adversely affected the seniority of the Applicant.
(b) Direct the respondents to issue consolidated seniority list after issuing provisional seniority list on the basis of length of regular service in th post of SE(Civil) and calling objections thereto.
(c) To pass any other order or direction as many be fit and proper under the facts and circumstances of the case, in favour of the Applicant."
2. The facts of the case, in brief, are that the applicant was appointed as Junior Engineer (Civil) in Delhi State (3) O.A. No.3408/2022 Industrial & Infrastructure Development Corporation Ltd (DSIIDC) in March 1995. He was promoted to the post of Assistant Executive Engineer (Civil) in 2000 and also to the post of Executive Engineer (Civil) in 2007.
3. Respondent No.2, Shri Sachidanand Sharan working as Manager in the Rail India Technical and Economic Service Ltd (RITES) applied for the post of Executive Engineer on deputation in the Pay Band of Rs.15600- 39100+6600 Grade Pay and he was appointed on deputation as Executive Engineer in the Pay Band of Rs.15600-39100+6600 Grade Pay and the applicant joined the post of Executive Engineer on 01.02.2010 in the organization of Respondent No.1, i.e. DSIIDC. Subsequently, his pay was fixed in the scale of Rs. Rs.15600-39100+7600 Grade Pay. The applicant alleges that though both the applicant and the Respondent No.2 were working in the same post and the scale of the post is in the Pay Band of Rs.15600-39100+6600 Grade Pay, the Respondent No.2 was granted Grade Pay of Rs.7600/- in the post of Executive Engineer, in an arbitrary manner.
(4) O.A. No.3408/2022
4. On 14.09.2012, Respondent No.2 was given current duty charge of Project Director though he was holding substantive post of Executive Engineer (Civil).
5. It is alleged that Respondent No.1 showing partiality to Respondent No.2 absorbed him as Superintending Engineer (Civil) vide order dated 25.01.2019 though there was no such provision in the extant Recruitment Rules 2014. The same was challenged by the affected employees by way of OA No.177/2019 and OA No.242/2019 before this Tribunal. During the pendency of these OAs, the respondents issued office order dated 22.01.2019 amending Columns 10 and 11 of the rules which provided for absorption as follows:-
"Keeping in view the decision taken in its 274th meeting held on 19.09.2017, to absorb the employees who are already working in DSIIDC on deputation basis for the last more than 5 years, the Board of Directors has approved to incorporate the following in Column No.10 & Column No.11 of the existing Recruitment Rules (2014) of all the grades/posts wherein deputation is one of the method of recruitment:-
Column No.10 "Note: 2 The incumbent on deputation can be considered for absorption after completion of satisfactory service of 5 years.(5) O.A. No.3408/2022
Column No.11 "Absorption: The incumbent on deputation can be considered for absorption after completion of satisfactory service of 5 years on assessment on case to case basis."
6. As there was no provision for absorption in the Recruitment Rules, the aforesaid OAs were disposed of and Respondent No.1 issued order dated 27.05.2019 which reads as under:
"Ld. Central Administrative Tribunal (PB), New Delhi vide its Order dated 09.04.2019 contained in OA N0.177/2019 OA N0.242/2019, held that
4..... In view of the matter, the circular has become redundant. Learned counsel for the respondents submits that it shall be treated as having been withdrawn. Naturally, any order passed on the basis of the said circular shall also stand set aside.
5. The OA is accordingly disposed of taking the view that the impugned circular and orders passed on the basis of the same shall have no legal sanctity.
2. In compliance thereof, Order of even number dated 25.01.2019 regarding absorption of Shri Sachidanand Sharan, Superintending Engineer (Civil) provisionally, stand non-est."
7. Applicant submits that after issuance of amendment to the Recruitment Rules and the above order, Respondent No.1 also issued another order dated (6) O.A. No.3408/2022 27.05.2019, ordering absorption of Shri Sachidanand Sharan (Respondent No.2) on regular basis in the post of Superintending Engineer (Civil) in DSIIDC. However, such illegality being pointed out, it was modified by order dated 20.06.2019 stating that Respondent No.2 will be holding the post of Superintending Engineer (Civil) on "current duty charge" till further dates. On 21.06.2019, another order was issued by Respondent No.1 stating that the matter regarding amendment of Recruitment Rules has been referred to Law Department of GNCTD, Delhi and DoP&T and till such time absorption order dated 27.05.2019 has been kept in abeyance. Thereafter, the order dated 21.06.2019 was withdrawn vide order dated 02.01.2020 and their absorption issued vide order dated 27.05.2019 was given effect. A corrigendum was also issued on 12.11.2020 to the effect of training the Respondent No.2 as regular Superintending Engineer (Civil) w.e.f. 27.05.2019 and also assigning seniority to him from 27.05.2019. The same was ratified by the Board of Directors of the DSIIDC.
(7) O.A. No.3408/2022
8. The applicant contends that in the 294th meeting of the Board of Directors held on 25.05.2022, the DoP&T OM dated 27.03.2001 was considered for granting seniority to Respondent No.2 by interpreting it wrongly and it was decided to give seniority to Respondent No.2 w.e.f.10.01.2012. In support of such contention, the applicant takes the plea that Respondent No.2 was never taken in deputation in the post of SE (Civil) and Respondent No.1 had no authority to convert the Respondent No.2 from the post EE (Civil) to SE (Civil). Our attention is drawn to the said OM of DoPT dated 27.03.2001 which grants benefit of past seniority only if the employee in question is taken on deputation from an analogous post. It is averred that in the present case, respondent No.2 was holding the post of Manager in his parent organisation and the post being analogous to Executive Engineer (EE) he was posted as EE in DSIIDC and it is evident that he was not holding an analogous post of SE (Civil) in his parent organization and therefore appointment of Respondent No.2 in DSIIDC was not to the post of SE (Civil). Therefore, promotion order of (8) O.A. No.3408/2022 Respondent No.2 issued interpreting DoP&T OM dated 27.03.2001 is wrong. Even if the Respondent No.2 was given promotion in the parent cadre to an analogous post subsequently on 01.01.2012, he never held that post either by repatriation or by way of proforma promotion as he continued to be on deputation.
9. Learned counsel for the respondents, on the other hand, submits that the contention of the applicant is unfounded. Countering the claim of the applicant that his Grade Pay was arbitrarily fixed at higher grade of Rs.7600/-, it is submitted that this was done as per the rules based on the request by Respondent No.2 to the answering respondents that he should be granted protection of emoluments. Considering the said request and after following the due process and approval of the competent authority, answering respondent provided two options of pay scale to the Respondent No.2 to protect his pay in the parent cadre: (i) pay on grant of 5% deputation allowance, and (ii) pay on grant of higher grade pay. Respondent No.2 chose the second option i.e. pay on grant of higher grade pay, which was given to (9) O.A. No.3408/2022 him. Thus, it is asserted that no illegality or arbitrariness was involved in such act.
10. It is further submitted that on 10.01.2012, the parent department of the Respondent No.2 had given regular promotion to the post of Deputy General Manager (Dy.GM) and Respondent No.2 again requested for upgradation of his pay scale and re-designation as SE (Civil), based on the analogous post he was holding in his parent organization on promotion. Thereafter, Respondent No.2 was placed in the pay scale of Rs.29100-54,500/- in IDA pattern which is equivalent to pay scale of Rs.15,600-39100 + Grade Pay of Rs.7600/- in CDA. Subsequently, the parent department vide order dated 17.02.2016 promoted Respondent No.2 as Senior Dy. GM in the pay scale of Rs.32,900-58000 in IDA pattern which is equivalent to grade scale of Rs.8700/-. Therefore, the aforementioned IDA was revised to Rs.80,000-2,20,200 w.e.f.01.01.2017.
11. Based on the recommendations of Departmental Promotion Committee dated 12.09.2012, in view of urgent need, the office of the answering respondent (10) O.A. No.3408/2022 assigned the Chief Project Manager (Civil)/Executive Engineer (Civil), the current duty charge to the post of Project Director (Civil) along with four officers, including Respondent No.2. On 14.09.2012, Respondent No.2 was assigned the current duty charge of Project Director (Civil). The deputation period of Respondent No.2 was extended from time to time, as per the procedure complying with the rules and regulations.
12. On the basis of 'No Objection Certificate' (NOC) for absorption issued by the parent organisation of Respondent No2, and as per the recommendation of Screening Committee, the Respondent No.2 was taken on the regular strength of DSIIDC to the post of Superintending Engineer (Civil) vide order dated 25.01.2019 and was also absorbed in the post of SE (Civil) in the Corporation with immediate effect. However, in compliance of the order dated 09.04.2019 passed in OA No.177/2019 and OA No.242/2019 passed by this Tribunal, the order dated 25.01.2019 stood non-est. Subsequently, vide order dated 27.05.2019, Respondent No.2 was absorbed in the post of SE (Civil) in pursuance (11) O.A. No.3408/2022 of the Board Resolution in the 282nd meeting of the Board of Directors. The above order had to be kept in abeyance vide order dated 21.06.2019. However, after meeting certain objections, order dated 21.06.2019 was withdrawn and absorption of Respondent No.2 was regularized in the Corporation to the post of SE (Civil) w.e.f. 27.05.2019. But order dated 02.01.2020 erroneously mentioned the name of the post as SE on CDC basis against the name of Respondent No.2. Consequently, a corrigendum dated 12.11.2020 was issued against the order dated 02.01.2020 to the effect that the designation of Respondent No.2 may be read as Superintending Engineer on CDC basis and same was approved in 288th BoD meeting held on 22.12.2020. Following this, the seniority of Respondent No.2 was fixed in the light of DoP&T OM dated 27.03.2001 as the Respondent No.2 was promoted to the post of Dy. GM on 10.01.2012 which was a regular promotion, and an analogous/equivalent post of SE (Civil) in the office of the answering respondent. Vide order dated 10.10.2022, the seniority of Respondent No.2 was fixed from 10.01.2012 (12) O.A. No.3408/2022 instead of 27.05.2019 i.e. the date of promotion of his parent organisation, as per the DoP&T guidelines. It is contended that the seniority granted to Respondent No.2 has been fixed by following due process and on approval of the competent authority. Therefore, the applicant's case has no merit.
13. We have heard both the counsels at length and perused the submissions made in OA, counter reply and rejoinder.
14. Learned counsel for the applicant Sh S.K.Gupta, supported by Shri Padma Kumar S. and Shri Gurpreet Singh has reiterated the submissions made in the OA during the hearing. However, his main claim is based on the DoP&T OM dated 27.03.2001, which according to him has been misinterpreted to give undue benefit to respondent No.2 in granting seniority. The said OM reads as follows:
"Office Memorandum Sub: Seniority of persons absorbed after being on deputation.
The undersigned is directed to say that according to our O.M. No. 20020/7/80-Estt.D dated May 29, 1986 (copy enclosed) in the case of a person who is (13) O.A. No.3408/2022 initially taken on deputation and absorbed later (i.e. where the relevant recruitment rules provide for "transfer on deputation/transfer", his seniority in the grade in which he is absorbed will normally be counted from the date of absorption. If he has, however, been holding already (on the date of absorption) the same or equivalent grade on regular basis in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from
- the date he has been holding the post on deputation, or
- the date from which he has been appointed on a regular basis to the same or equivalent grade in his parent department, whichever is later.
2. The Supreme Court has in its judgment dated December 14, 1999 in the case of Shri. S.I. Roop lal & Others Vs. Lt. Governor through Chief Secretary, Delhi, JT 1999 (9)SC 597 has held that the words "whichever is later" occurring in the Office Memorandum dated May 29, 1986 and mentioned above are violative of Articles 14 and 16 of the Constitution and, hence, those words have been quashed from that Memorandum. The implications of the above ruling of the Supreme Court have been examined and it has been decided to substitute the term "whichever is later" occurring in the Office Memorandum dated May 29, 1986 by the term "whichever is earlier".
15. Alluding to the aforementioned OM, the learned counsel for applicant contends that Respondent No.2 was holding lien and if he wanted to claim the scale to be given to him, he should have come back on repatriation (14) O.A. No.3408/2022 to his parent organisation, which is not the case here and instead he continued on deputation. He is wrongly claiming the benefit of promotion granted to him on 10.01.2012 in his parent organisation as DGM for counting seniority in the organisation of answering respondents, where he was on deputation. It is emphasised that the essence of aforementioned OM is that in order to claim seniority based on the promotion given to him in his parent organisation, he should have actually been appointed on regular basis to same or equivalent grade in RITES but this criteria was not fulfilled, since he never repatriated to his parent organisation from deputation. The learned counsel also submits that the charge given to him on 14.09.2012 was merely current duty charge due to exigency of work and this, in no way, entitles him to promotion in the current organisation. He also avers that even if he was given promotion from DGM to GM in RITES, the equivalence of the post of DGM with Superintending Engineer (Civil) in the current organisation was never established and (15) O.A. No.3408/2022 therefore it is not correct to say that he was holding an analogous post.
16. In support of this claim, he draws our attention to the judgment of the Hon'ble Supreme Court in Sub Inspector Rooplal and Another vs. Lt. Governor through Chief Secretary, Delhi and Others (2001) 1 SCC 644 wherein the issue of absorption for grant of seniority was considered at length and the Supreme Court held as follows:
"17. In law, it is necessary that if the previous service of a transferred official is to be counted for seniority in the transferred post then the two posts should be equivalent. One of the objections raised by the respondents in this case as well as in the earlier case of Antony Mathew is that the post of a Sub-Inspector in the BSF is not equivalent to the post of a Sub-Inspector (Executive) in Delhi Police. This argument is solely based on the fact that the pay-scales of the two posts are not equal. Though the original Bench of the tribunal rejected this argument of the respondent, which was confirmed at the stage of SLP by this Court, this argument found favour with the subsequent Bench of the same tribunal whose order is in appeal before us in these cases. Hence, we will proceed to deal with this argument, now- Equivalency of two posts is not judged by the sole fact of equal pay. While determining the equation of two posts many factors other than `Pay' will have to be taken into consideration, like the nature of duties, responsibilities, minimum qualification etc. It is so held by this Court as far back as in the year 1968 in the case of Union of India and Anr. v. P.K. Roy and (16) O.A. No.3408/2022 Ors, [1968] 2 SCR 186. In the said judgment, this Court accepted the factors laid down by the Committee of Chief Secretaries which was constituted for settling the disputes regarding equation of posts arising out of the States Re- organisation Act, 1956. These four factors are : (i) the nature and duties of a post, (ii) the responsibilities and powers exercised by the officer holding a post; the extent Of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post; and (iv) the salary of the post. It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criterion. If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different, would not in any way make the post `not equivalent'. In the instant case, it is not the case of the respondents that the first three criteria mentioned hereinabove are in any manner different between the two posts concerned. Therefore, it should be held that the view taken by the tribunal in the impugned order that the two posts of Sub-Inspector in the BSF and the Sub-Inspector (Executive) in Delhi Police are not equivalent merely on the ground that the two posts did not carry the same pay-scale, is necessarily to be rejected. We are further supported in this view of ours by another judgment of this Court :in the case of Vice-Chancellor, L.N. Mithila University v. Dayanand Jha. [1986] 3 SCC 7 Wherein at para 8 of the judgment, this Court held:
"Learned counsel for the respondent is therefore right in contending that equivalency of the pay scale is not the only factor in judging whether the post of Principal and that of Reader are equivalent posts. We are inclined to agree with him that the real criterion to adopt is whether they could be regarded of equal status and responsibility....The true criterion for equivalence is the status and the nature (17) O.A. No.3408/2022 and responsibility of the duties attached to the two posts."
17. The learned counsel also relies on the order of the Tribunal in Sh. Aman Kumar Rohilla vs. National Highways Authority of India & Others vide OA No.1507/2022 decided on 31.01.2023 wherein the Tribunal has held as under:
"12. Similarly the DOPT order also mentions that "service rendered" by an deputationits on equivalent post in his parent cadre shall be taken into consideration while computing his period of service in the deputation post for the purpose of determination of his seniority and eligibility for promotion in the transport department. The fundamental distinction here is that whether the applicant was actually "working/ serving" in his parent department in any equivalent or analogous post or whether he was given "notional" promotion in his parent department well after he was absorbed in NHAI and enjoyed all the promotions and financial benefits in the absorbed organization. We are not inclined to grant him double benefits of enjoying the up-gradation and higher financial benefits in the absorbed NHAI and also awarding him benefits of "notional" up-gradation in the Court No.6 (item No.20) parent cadre with retrospective basis or notional basis. The principle of equality applies here. The counter- parts in his parent cadre did not enjoy the higher pay scales in BSNL while the applicant enjoyed higher financial benefit as Manager (T) and up-gradation as DGM(T) in NHAI for a period of six years. Granting such benefits, because his counter- parts in BSNL get "notional" benefit from certain date, amounts to granting double benefits to the applicant in discrimination to his counter-parts in BSNL."(18) O.A. No.3408/2022
18. Attention is also drawn towards the order passed by the Hon'ble High Court of Delhi in UOI & Anr. vs. Kiran Pal Singh vide WP(C) No.565/2003 decided on 06.07.2023 wherein the High Court held as follows:
"7. It was their case that the respondent completes the eligibility condition for promotion from March 26, 2001, and shall be considered for promotion subject to the availability of vacancies and as such no injustice has been done to him. The Tribunal in paragraph 16 to 22 of the order has held as under:-
"16. At this stage it will not be out of place to mention that this case was first heard by a Division Bench comprising Hon‟ble S.R. Adige, Vice-Chairman and Dr. A Vedavalli, Member (J) but on the point of the interpretation of the judgment in the case of Roop Lal, the Bench found another Co-ordinate Bench‟s judgment earlier passed in the case of Sh. Mehar Singh v. UOI & Others wherein while determining equivalence of post. It was suggested that if the deputationists was informed beforehand that he was not to be given the benefits of service rendered on a post in his parent department and he had given his willingness then notwithstanding its equivalence with the post he was presently holding in terms of the above criteria, he could not claim the benefit of service rendered by him in the parent department. The Bench disagreed with the said order and recorded a separate order on 16.10.2001. The later Bench was of the view that the judgment of Roop Lal's case prescribe certain tests for determining equivalence of posts and if those tests are satisfied and the two posts are declared equivalent, then the deputationist has to be given the benefit of service rendered by him in his parent (19) O.A. No.3408/2022 department notwithstanding the fact that at the time of his absorption he was informed and he had given his willingness not to claim those benefits. The Bench relied on para 13 of the judgment in Roop Lal‟s case wherein the Hon‟ble Supreme Court has observed as under:-
"That any rule, regulation of executive instruction which has the effect of taking away the service rendered by a deputationist is an equivalent cadre in the parent department while counting his seniority in the deputed post would be violative of Article 14 and 16 of the Constitution and what has been held unconstitutional, does not become constitutional or legal even if the parties gave their willingness to them."
17. Thus the earlier matter came up in reference to the Full Bench. The Full Bench after hearing both the parties, came to the conclusion:- "In our considered opinion, for the reasons already given by the Division Bench in its order dated 16.10.2001 in cases where the equivalence of two posts is established in terms of the criteria laid down by the Hon‟ble Supreme Court in SI Roop Lal‟s case (Supra) deputationist cannot be denied the benefits of the service rendered by him on an equivalent post in his parent department even if he had been informed at the time of his permanent absorption that he would not be granted that benefit and he accepted that position. The reference is answered accordingly."
19. By seeking our attention to the above orders, learned counsel for the applicant asserts that the issue of equivalence is crucial here and there is nothing to (20) O.A. No.3408/2022 indicate that the respondents ever went into the question of equivalence, keeping other yardsticks in mind and not limiting their analysis merely to pay scale. He submits that by not looking at the issue holistically, the respondent has violated the said principle laid down by the Hon'ble Supreme Court in SI Rooplal (supra) and taken into account by the courts in the aforesaid cited orders, to address the issue of equivalence, which includes the nature and duties of post, the responsibilities and powers exercised by the officer holding the post, the minimum qualification, if any, prescribed for the post, besides salary of the post. Therefore, the order of promotion is bad in law also, it is argued.
20. Learned counsel for the respondents Sh.A.K Behera, Sr. Advocate supported by Ms. Firoouse Qutb Wani and Md.Zaryab, on the other hand, draws our attention to the relief claimed in the OA and re-asserting the claim made in the counter reply, states that as evident from the prayer of the respondents, the applicant has never challenged that the proposition that post of Manager in RITES is equivalent to EE (Civil) in DSIIDC. It is also not (21) O.A. No.3408/2022 under challenge that the Dy.GM is a promotion post to Manager, which is equivalent to Superintending Engineer (Civil). Also, the applicant who is working in DSIIDC does not seem to have any objection to the order dated 01.01.2012, promoting the Respondent No.2 as DGM in his parent organisation. Besides, the applicant in his prayer has not questioned the absorption of Respondent No.2 in DSIIDC or the current duty charge given to him earlier on 14.09.2012. The challenge is limited to the order dated 10.10.2022, re-fixing seniority of Respondent No2 to the post of SE (Civil) with effect from 10.01.2012, instead of 27.05.19. In this regard, the learned counsels for the respondent draws our attention to the Minutes of Departmental Promotion Committee of DSIIDC held on 12.09.2012 which reads as follows:
"The Committee therefore recommended that those CPM (Civil) who have been given the grade of 7600 on Merit Pay Scale including those recommended in Proposal-II and deputationist may be given the current duty charge of the post of PD (Civil). Accordingly the Committee recommended that in view of the urgent need of the Corporation the following CPM (Civil) may be given the Current Duty Charge of PD (Civil); based on their seniority and ACR/Vigilance Status:
S.No NAME
(22) O.A. No.3408/2022
1. ANIL KUMAR
2. VEER PAL SINGH
3. HARI OM GUPTA
4. S.N.SARAN(DEPUTATION)
21. It also follows from the said minutes that 12 officers were considered but only the above mentioned 4 officers had the requisite qualification of 7/10 years as CPM (Civil). Therefore, there is no infirmity in the minutes and the subsequent order dated 14.09.2012 Moreover, as mentioned in the above office order, the post of Project Director (Civil) was personal to the above 4 officers and did not confer any right to seniority against the regular post or any additional financial benefits.
22. It is argued that as evident from the above the said charge was given to him, considering the seniority and ACR/Vigilance status. It is also submitted by the learned counsel for respondent that subsequent to holding the current duty charge of PD (civil) by the respondent no 2, the applicant for some time also worked under him without any protest.
23. While the above submissions by learned counsels for respondents have been taken note of, by us, we do not find them to be relevant to the relief claimed with regard (23) O.A. No.3408/2022 to seniority, because admittedly holding of such current duty charge did not entail any claim to seniority for Respondent No.2. Moreover the said order is not under challenge in the OA under consideration.
24. This brings us to the issue as to what should be the cut off date to ascertain the seniority of the Respondent No2 and what is the significance of promotion earned by him in his parent organization, while he was on deputation, in determining his seniority as per the cited OM of DoPT. We have gone through the said OM of the DoP&T already reproduced earlier, which clearly stipulates that to enable the claim of fixation of seniority to the employee on the date of absorption, the relevant date would be from which he has been appointed on a regular basis to same or equivalent grade in his parent department. Therefore the issue for deliberation is as to when the Respondent No2 was promoted in his parent organization to a same or equivalent post on a regular basis.(24) O.A. No.3408/2022
25. We have perused communication dated 16.01.2012 sent by RITES to Respondent No.1 which reads as follows:
"Chief Manager (P) DSIIDC, N-36, Cannaught Circus, New Delhi.
Sub:Last Pay Certification of Mr.S.N.Saran, DGM(C) on Deputation to DSIIDC.
Mr.S.N.Sharan, Manager (Civil)has been promoted as DGM (Civil)Vide Office Order No.PT/012/2012 Dt.10/01/2012.
On Promotion, his salary on 10/01/2012 has been fixed in the pay scale of 29100-54500 (IDA)Equivalent CDA Scale 15600-39100, Grade Pay 7600/- as under:-
Revised Salary as per promotion Amount w.e.f.10.01.2012 Basic Pay 30600.00 D.A @52% 15912.00 Fixed Allowance @ 40% of minimum 11640.00 of the grade i.e. (29100) HRA @ 30% Basic 9180.00 Total 67332.00 Note:
1. Date of next increment 01/01/2013
2. In Lieu of HRA he is Entitle for lease of Rs.16350/- PM
3. In IDA Scale he is entitle for PRP as per company rule."
26. It is also seen that his parent organisation promoted the applicant as Dy. General Manager (Civil) along with (25) O.A. No.3408/2022 20 others and his name figures at Sr.No.18 of the list (Annexure 7 of Counter). Though from the list it appears that Respondent No.2 was the only one on deputation amongst 20 Managers promoted, the said office order did not treat the Respondent No 2 differently in terms of mode of his promotion or pay scale. Thus, he was treated at par with others, his deputation notwithstanding. The Service Certificate issued by RITES Limited dated 23.03.2021 which indicates that he had tendered his technical resignation and had separated from the organisation on 26.05.2019, clearly shows that he held the post of Dy. GM after professional qualification, from January 2012 onwards. The said Service Certificate reads as follows:
"Post held after professional qualification is as under:
(a) w.e.f. 01.01.2017 to 26.05.2019 : Sr.Dy GM IDA Scaleof Rs.80000-
2,20,000/-
(b) w.e.f. 11.01.2016 to 31.12.2016 : Sr.Dy GM IDA Scale of Rs.32900-58000
(c) w.e.f. January 2012 to 10.01.2016 : Dy GM IDA Scale of Rs.29100-54500 Equivalent CDA of Rs.15600-39100 (Grade Pay 7600) (26) O.A. No.3408/2022
(d) w.e.f.12.05.2005 to December 2011 Manager IDA Scale of Rs.10750-300-16750 Equivalent CDA of Rs.10000-325-15200"----
27. It is apparent from above, that the respondent no.2 held the post of DY GM w.e.f. 1.1.12 to10.01.2016, Sr. DY GM from 11.01.2016 to 31.12.2016 and Sr. Dy. GM, IDA scale from 01.01.2017 to 26.05.19.The aforesaid communication nowhere mentions as if the promotion of the Respondent No 2 was ad hoc and he did not hold the post on regular basis. It is also not in dispute that the Respondent No 2 who was holding the post of Manager had joined the equivalent post of EE(Civil) on deputation in DSIIDC. His subsequent promotion as Dy. GM and the pay fixed therein, as a natural corollary, entitled him to hold the post of SE (Civil) in the organization he was on deputation. In view of above it can be concluded that he was holding his promotion post on regular basis and substantially met the criteria laid down in the said OM for counting his seniority.
28. We have also perused extract of the minutes of the 294th meeting of the Board of Directors of DSIIDC held on (27) O.A. No.3408/2022 25.05.2022 which, while considering the issue of seniority of the Respondent No.2, recorded the following:-
"14.3 Further, BoD in its meeting held on 22.12.2020 decided to fix his seniority as per DoPT guidelines applicable regarding absorption of employees after being on deputation. The Office Memorandum No. 2001/1/2000-Estt.D dated 27.03.2001 issued by DoPT in the matter states as under:-
"In the case of a person who is initially taken on deputation and absorbed will normally be counted from the date of absorption. If he has, however, been holding already (on the date of absorption) the same or equivalent grade on regular basis in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from the date he has been holding the post on deputation, or the date from which he has been applied on a regular basis to the same or equivalent grade in his parent department, whichever is earlier"
14.4 It was also informed that in order to comply the decision of BoD, service book of Shri S.N. Sharan was requested from M/s. RITES. In response, M/s. RITES informed that they do not maintain service book of employees however, provided details regarding appointment & promotions in respect of Shri S. N. Sharan in RITES. As per the said information/details, Shri S. N. Sharan was holding the post of Dy. General Manager in the Pay Scale of Rs. 29100-54500 w.e.f. 10.01.2012 which was equivalent to the post and pay level of SE(Civil) on which he had been absorbed in DSIIDC.
(28) O.A. No.3408/202214.5 The Board after deliberations gave its approval for fixation of the seniority of Shri Ş. N. Sharan in the post of SE(Civil) from the date of his promotion to the post of Dy. General Manager (Civil) in RITES i.e. w.e.f. 10.01.2012 instead of 27.05.2019."
29. In the light of facts and circumstances as above, our considered view is that the Respondent No.2 was holding the post of Dy. GM in prescribed pay scale with effect from January 2012, which entitled him to hold the post and pay scale of SE (Civil) in DSIIDC. We also find that it is not the case that the parent organisation of Respondent No.2 had any objection to extend his deputation and they gave him promotion on the condition that he should revert back to the parent organisation. In fact, they had given NOC for his absorption and also for extension of his deputation. Similarly, the answering respondent, where Respondent No.2 was working on deputation, never terminated his deputation nor ever asked him to repatriate to his parent organisation. In fact, the spirit and rationale behind the relevant DoP&T OM in question, based on which his seniority was determined, was to protect the seniority of persons who have been on deputation and it is not required that after (29) O.A. No.3408/2022 getting promotion in their parent organization, they should have to severe their links with the organisation and go back to their organisation to claim the benefit of promotion. Therefore, it is clear that seniority in the organisation of answering respondent was a consequence of promotion of Respondent No.2 in his parent organisation. The deputation of the Respondent No.2 to DSIIDC has, in no way, taken away his vested right of promotion in his parent organisation as and when due. So far the question of equivalence, as laid down in the case of SI Rooplal (supra) is concerned though the learned counsel for the applicant has argued that the criteria for equivalence, in violation of principle laid down in the aforesaid judgement and subsequent cited judgements, was overlooked by the Respondent No1, as factors like nature of duties, responsibilities and powers exercised by the officer holding the post, were not given attention, we find that the same has not been a part of his prayer in the OA, and hence it does not require further consideration.
(30) O.A. No.3408/2022
30. In view of the aforesaid discussions we find that the OA is devoid of merit and the same is dismissed accordingly. No costs.
31. The M.A., if any, shall stand disposed of.
(Sanjeeva Kumar) (Justice Ranjit More) Member (A) Chairman /kdr/