Central Administrative Tribunal - Delhi
Sh. Saurabh Kumar Mishra vs Government Of Nct Of Delhi on 22 December, 2014
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-4032/2014
Reserved on : 19.12.2014.
Pronounced on : 22.12.2014.
Honble Mr. Shekhar Agarwal, Member (A)
Honble Mr. Rajvir Sharma, Member (J)
Sh. Saurabh Kumar Mishra,
S/o Lt. Sh. S.N. Mishra,
R/o Plot No. 56,
Sector-21A, Faridabad,
Haryana. . Applicant
(through Sh. Manish Garg, Advocate)
Versus
1. Government of NCT of Delhi
through its Chief Secretary,
Delhi Sachivalaya, I.P. Estate,
New Delhi.
2. DSIIDC Limited,
N-36 Bombay Life Building,
Cannught Circus,
New Delhi-110001
Through its Chairman-cum-Managing
Director. .. Respondents
(through Ms. Ishita for Sh. Gaurang Nath, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant herein was an employee of Delhi Sanskrit Academy. He came to respondent Corporation DSIIDC on deputation on 23.12.2009 on the post of Deputy Manager (re-designated as Senior Manager). On 21.06.2012 the respondents passed an order by which they conveyed approval of the competent authority for absorption of the applicant in the Corporation. Before so absorbing him, the respondents had obtained the consent of the parent department of the applicant as well as his service record from them. On 19.11.2013 they passed an order repatriating the applicant to his parent department. The applicant represented against the same on 29.11.2013 in which he requested for cancellation of the order dated 19.11.2013. Further, he requested that his deputation period be extended for the fifth year till his absorption issue is decided. Thereupon, vide their letter dated 19.12.2013 they informed the parent department of the applicant that the Recruitment Rules (RRs) in DSIIDC do not permit absorption as a mode of recruitment and as such the applicant cannot be absorbed in the Corporation. His entire stay in the Corporation shall, therefore, be treated as deputation. Further, they informed Delhi Sanskrit Academy that the deputation period of the applicant was being extended for the fifth year and shall now be expiring on 22.12.2014. Aggrieved by the action of the respondents, the applicant has filed this O.A. seeking the following relief:-
(i) To restore and confirm the absorption o applicant to the post of Senior Manager with Respondent No.2.
(ii) Quash and set aside Office Order dated office order No. DSIIDC/1-2831/Estt. Dated 19/11./3 and 19/12/13 Annexure P1(Colly) hereto.
(iii) To pass any other orders that is deem, just, fit and proper to meet the ends of justice as per facts and circumstances of the present case.
2. The applicants contention is that the respondents had first absorbed him in DSIIDC. Thereafter, they have decided to revoke his absorption and repatriate him to his parent department without as much as giving a show cause notice. He further contended that the respondents are taking the plea that RRs do not permit absorption as a mode of recruitment and, therefore, the applicants absorption was de hors the RRs. However, in the case of one Sh. Jagjivan K. Bakshi the respondents had issued the order absorbing him w.e.f. 28.01.1984. The applicant even produced a copy of the aforesaid office order.
3. In their reply, the respondents have stated that the RRs do not permit them to absorb a deputationist on regular basis. Since the respondents cannot act in violation of these Rules, the absorption of the applicant has been rescinded. In any case, in the absorption order of the applicant it was mentioned that the absorption was subject to terms and conditions of DoP&T and since DoP&T Instructions do not legally permit the applicant to be absorbed, there was nothing wrong in revoking the same. The respondents have stated that the earlier absorption order was wrong and they were only correcting their mistake by passing the impugned order.
3.1 In their support, the respondents have relied on the judgment of Honble Supreme Court in the case of Kunal Nanda Vs. UOI, (2000) SCC(LS) 705 in which it was held that the appellant cannot seek absorption in contravention of the relevant RRs. Further, they have relied on the judgment of Apex Court in the case of UOI & Ors. Vs. S.A. Khailiq Pasha & Anr., (Civil Appeal Nos. 368-369/2009) decided on 13.01.2009 in which it has been held that the deputationist cannot assert and succeed in his claim for absorption, if such a claim is not based on any statutory Rule/ Regulation or order having the force of law.
4. We have heard both sides and have perused the material on record. The two main grounds taken by the applicant were that (i) the respondents had issued absorption order in the case of one Sh. Jagjivan K. Bakshi but were refusing to do so in his case; (ii) that he has been repatriated without notice. We deal with each of the two grounds as hereunder:-
4.1 As regards the first ground, the respondents have stated that the order of absorption of Sh. Jagjivan K. Bakshi was issued more than 30 years back. The records pertaining to that case were not traceable and, therefore, the respondents were not in a position to state the circumstances under which this order was passed. In any case, the respondents submitted that right to equality cannot be evoked in respect of illegal orders. In this regard, they have cited the judgment of Honble High Court of Delhi in the case of Sh. Amarnath and Ors. Vs. Lt. Governor of Delhi and Ors., (2002)ILR 2 Delhi347 in which it was held that equality before law can be claimed only when certain order is legally passed in favour of a person and such a right cannot be invoked against an illegal order.
We have perused the RRs of the respondent Corporation and we find that while there is provision for direct recruitment as well as promotion, there is no provision for absorption as a method of recruitment. Thus, the respondents are right in saying that the absorption of the applicant was de hors the RRs and that they were only correcting a mistake that had occurred in the past by revoking his absorption and considering his entire stay as on deputation. In our opinion, the respondents are also right in saying that the applicant cannot be given benefit of absorption order passed in the case of Sh. Jagjivan K. Bakshi in view of the judgment of Honble High Court of Delhi cited above.
4.2 The next ground taken by the applicant is that he had been repatriated without giving him a notice. He contended that the respondents had acted in gross violation of principles of natural justice. However, we notice that the revocation of the absorption of the applicant and his repatriation has been ordered by the respondents on the ground that his absorption was contrary to the RRs. This has not been done on account of any lapse/mistake/shortcoming on the part of the applicant. Since the applicant could not have altered rule position, issuance of a show cause notice under these circumstances would have been a mere formality and a futile exercise. In any case, the facts and circumstances of this case reveal that the competent authority first ordered his repatriation on 19.11.2013. The applicant made a representation against the same on 29.11.2013 in which he requested not only for cancellation of his repatriation order but also for extension of deputation period by another year so that his case for absorption can be decided in the meanwhile. This request of the applicant was accepted by the respondents and the period of deputation of the applicant was accordingly extended by another year upto 22.02.2014. Thus, the applicant had got adequate opportunity to espouse his case before the respondents. Hence, this ground taken by the applicant is also rejected.
4.3 The applicant in support of his case had cited two judgments of Honble High Court of Delhi in the case of National Highways Authority of India Vs. A.S. Divyender (WP(C) No. 3923/2012) dated 11.11.2014 and Honble High Court of Rajasthanat Jodhur in the case of Dr. P.S. Bhati Vs. Mr. Manish Shishodia & Ors. (Civil Writ Petition No. 12033/2013) dated 16.12.2013. On going through these judgments, we find that both of them pertained to NHAI in which absorption as a method of recruitment is provided for in the RRs. We, therefore failed to see how these judgments were relevant to the present case.
4.4 The applicants counsel had also argued that the respondents in their counter reply have stated that in the initial deputation of the applicant was against Para-8.5 of DoP&T O.M. No. 6/8/2009-Estt.(Pay II) dated 17.06.2010 which provide for a Central Government employee to be taken on deputation only after completion of 09 years of service in his parent department. We find that the respondents in Para-6 of their reply have stated that even the earlier deputation of the applicant was against the aforesaid DoP&T Instructions as the applicant had serve Delhi Sanskrit Academy only for a year before coming on deputation. They have further submitted that even an audit objection was raised on account of this issue. However, we agree with the applicant that the respondents cannot now take this ground when the applicant has already completed about 05 years of deputation period with them. Nevertheless, this issue, in our opinion, has no relevance now to the present case.
5. We, therefore, come to the conclusion that none of the grounds taken by the applicant to challenge his repatriation is tenable and the relief asked for by him cannot be granted. However, it cannot be denied that the applicant has been working with the respondent Corporation for last 05 years. In between they had issued his absorption order and had even intimated so to his parent department i.e. Delhi Sanskrit Academy. Thereafter, they have rescinded his absorption order and are now repatriating him. Before doing so, they have not ascertained from Delhi Sanskrit Academy whether a suitable post was available with them on which the applicant can be taken back. Since the applicant has been away from Delhi Sanskrit Academy for about 05 years, possibility of his post of having been filled by some other incumbent cannot be ruled out. Therefore, in all fairness to the applicant, the respondent Corporation should first take the consent of Delhi Sanskrit Academy before repatriating the applicant. Otherwise, the applicant will be left in the lurch with no where to go. Considering the fact that this situation has arisen on account of a mistake committed by the respondents themselves, the applicant cannot be allowed to so suffer.
6. We, therefore, dispose of this O.A. with a direction to the respondents to first take the consent of Delhi Sanskrit Academy before repatriating the applicant to his parent department. Till such time as this consent is available, the applicant shall be continued with the respondents and the intervening period shall be treated as extension of deputation. No costs.
(Raj Vir Sharma) (Shekhar Agarwal) Member (J) Member (A) /Vinita/