Central Administrative Tribunal - Delhi
Mrs Tara Karatha vs Prime Minister Office on 15 November, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.3963/2014
Order Reserved on: 07.04.2016
Order Pronounced on:15.11.2016
Hon'ble Mr. Sudhir Kumar, Member (A)
Hon'ble Mr. Raj Vir Sharma, Member (J)
Smt. Tara Kartha
Age: 58 years
D/o Late Col. Mr. P.B. Menon
R/o 2767, Neta ji Nagar, New Delhi-110023.
Presently working as: Director
National Security Council Secretariat
Prime Minister's Office, Government of India,
Sardar Patel Bhawan, Parliament Street,
New Delhi-110001. -Applicant
(By Advocate: Shri Sewa Ram)
Versus
1. Union of India
Through: The Secretary,
National Security Council Secretariat,
(Prime Minister's Office), Government of India,
Sardar Patel Bhawan, Parliament Street,
New Delhi-110001.
2. Mr. Murlidharan Pillai,
3, Moti Lal Nehru Marg, New Delhi-110011.
3. Mrs. Shweta Bakshi, presently working as
Deputy Secretary, National Security Council Secretariat,
Sardar Patel Bhawan,
New Delhi-110001.
4. Mr. Rohit Khera, presently working as
Additional Secretary, National Security Council Secretariat,
Sardar Patel Bhawan,
New Delhi-110001.
5. Mr. Akshay Joshi, presently working as
Director, National Security Council Secretariat,
Sardar Patel Bhawan,
New Delhi-110001. -Respondents
(By Advocate: Shri D.S. Mahendru)
2
OA No.3963/2014
ORDER
Per Sudhir Kumar, Member (A):
The applicant filed this OA on 07.11.2015 with an application for urgent listing, as she was aggrieved with the impugned orders passed by the Respondent No.1 National Security Council Secretariat (NSCS, in short), the sole Respondent at that time, which she had alleged to be illegal, biased, discriminatory, whimsical, against the Recruitment Rules (RRs, in short) and being in serious violation of Articles 16, 21 & 301 of the Constitution. Apart from the main relief of the OA, she had also prayed for Interim Relief. While issuing notice on 11.11.2014, a Coordinate Bench had held that as regards the interim relief is concerned, in their considered view it was not appropriate to issue any direction as asked for at that stage, and the OA was admitted subject to just exceptions. The applicant of this OA is aggrieved due to non- consideration of her case for the post of Joint Secretary by Respondent No.1.
2. One MA No.3794/2014 was filed praying for correction of a typographical error in the order passed by the Coordinate Bench on 11.11.2014, which was allowed, and the necessary corrections were ordered to be incorporated in the order passed on 11.11.2014. When the pleadings were completed by filing of the written submissions of the Official Respondent No. R-1, as well as rejoinder thereto, the case was listed once again before the same Coordinate Bench from 07.05.2015 onwards. On the next date of hearing, the applicant's counsel wanted to 3 OA No.3963/2014 file a reply to the sur-rejoinder filed by the respondents in the meanwhile, which was also allowed.
3. On 17.08.2015, learned counsel for the applicant had advanced his arguments for some time, and, thereafter, it transpired and it was conceded by him that the applicant ought to have made one Shri Murlidharan Pillai as a party respondent No. R-2 in this case, since the applicant has claimed seniority over him. Therefore, even at that late stage, the prayer was allowed, and permission to amend the Memo of Parties was granted, Dasti notices were ordered to be served upon the said Shri Murlidharan Pillai, and time was granted to the newly named private respondent No.R-2 to file his reply. Thereafter the applicant filed another MA No.3026/2015 paying for three more private respondents also to be impleaded as party respondents No. R-3 to R-5, and it was submitted that an advance copy of the MA had already been served upon all those four private respondents. Notices in that MA were issued to the official respondents as well as the newly named private respondents, proposed to be impleaded as Respondents No. R-2 to R-5.
4. On the next date of hearing, the said MA No.3026/2015 filed for impleadment of total four individuals as private party respondents No. R- 2 to R-5 was allowed, and amended Memo of Parties was allowed to be filed accordingly, and Dasti notices were ordered to be issued in the O.A. In the meanwhile, an MA No.3254/2015 had been filed by those four individuals also, praying for their impleadment as opposite party respondents, and one of them Shri Akshay Joshi was even present in 4 OA No.3963/2014 person in the Court, and sought time to file counter reply. That MA No. 3254/2015 had also been thereafter allowed, and the applicant was directed to serve a copy of the paper book of the O.A. on the newly named private respondents No. R-2 to R-5. Counter reply was thereafter filed on behalf of private respondents. Thereafter the case was heard in great detail on 18.03.2016, but still the learned counsel for the official respondents sought time for advancing his reply arguments, for which time was allowed, keeping the case as part-heard. On the next date of hearing the learned counsel for the Official respondents advanced his arguments also, and the learned counsel for the applicant sought leave and permission to file a written synopsis, which was also allowed. None had appeared on behalf of the four private respondents, but the case was heard and reserved for orders since all of them were aware of the proceedings going on, and had themselves filed the M.A. No. 3254/2015, seeking to be impleaded as party respondents, which M.A. had been allowed
5. Counter reply had however been filed on behalf of private respondent R-4, who had appeared in person, and the Private Respondent No. R-5 had also once appeared in person. It was only that the private Respondents No. R-2 to R-5 did not advance any oral arguments, either by themselves, or through any Counsel, beyond the Counter Reply filed by R-4.
6. The applicant had in May 1992 joined the Institute of Defence Studies and Analysis (IDSA, in short), which is an Autonomous Body and 5 OA No.3963/2014 Research Organization, fully funded and controlled by the Govt. of India to undertake research in defence and security aspects concerning the nation, and it works in close liaison with R-1 NSCS. The senior serving or retired officers of the Govt. of India usually head the IDSA, as was said to have been the case with its previous as well as the present DG on the date of filing of the OA. It was, therefore, claimed by the applicant that IDSA comes within the definition of State under Article 12 of the Constitution of India, which aspect has not been seriously disputed by the Respondents also. The applicant has claimed that her appointment with IDSA was on a permanent sanctioned vacant post of Research Assistant in Group 'B', through public appointment, as per the RRs relevant to those posts. According to the applicant, after two years of her service with the IDSA, on 04.05.1994 she was selected and appointed against the duly sanctioned and vacant permanent Group 'A' post of Research Officer in the pay scale of Rs.2200-4000, with all allowances as admissible to Group 'A' Officers of the Government of India, through the appointment order dated 04.05.1994 (Annexure A-4). As usual, the said appointment was stated to be initially for two years, and it was ordered that she would be on probation period of one year, and on successful completion of the probation period, the applicant's appointment was to be continued. She has claimed that upon satisfactory completion of her probation period, the IDSA had continued her on the said Group 'A' sanctioned post of Research Officer, and that she was treated by IDSA as a regular employee, in view of her appointment having been made against a permanent post, and as per the RRs, and that she had even continued to draw her annual increments etc. The applicant claims to 6 OA No.3963/2014 have been then selected by IDSA and appointed on 15.07.1997 to the next higher Group 'A' post of Research Fellow, in the pay scale of Rs.12000-16500, with allowances as admissible to Group 'A' Officers, for a period of two years, w.e.f. 01.07.1997, which appointment was extended for a further period of two years w.e.f. 01.07.1999, through order dated 25.09.1999 (Annexure A-5), and was extended thereafter also from time to time. None of these averments have been effectively denied by the Official Respondent No. R-1, or by the Private Respondents No. R- 2 to R-5. In fact, her the then employer IDSA is not even a party to the present proceedings.
7. It was submitted by the applicant that Respondent No.1 NSCS is a specialized Department of Govt. of India, coming under the direct administrative control of the Prime Minister's Office, the appointments to which are made under its own NSCS RRs. It was further submitted by the applicant herself that this organization NSCS has been given a special dispensation to make direct and lateral appointments at all levels from outside the Government also, including the Universities, Research Institutes etc., by searching for talent through its own mechanism, and that the appointments in NSCS and the process of making those appointments do not come under the purview of even the UPSC, as exemption from the relevant Constitutional Provisions has been built-in in the NSCS RRs itself.
8. The applicant has claimed that while she was working in Group 'A' post of Research Fellow in IDSA, in the pay scale of Rs.12000-16500, the 7 OA No.3963/2014 Respondent No.1 had asked for her services, and had taken her on deputation, and appointed her on the post of Deputy Secretary to the Govt. of India, in the same pay scale, with all admissible allowances. She claimed to have served on the post of Deputy Secretary from 16.08.2000 to 27.09.2002, i.e., for more than 2 years, after which her parent organization IDSA had requisitioned her services to be returned back, to enable her to work on an important research project. As a result, she was repatriated from NSCS, and resumed her charge on the post of Research Fellow in IDSA, in Group 'A', on 27.09.2002 itself. She has submitted that her performance on the post of Deputy Secretary in NSCS had earned her outstanding reports and special appreciation. She has further submitted that the Respondent No.R-1 NSCS had actually intended then itself to formally appoint her within NSCS for this purpose, and they had even asked her to obtain from IDSA the service certificate, which also she had obtained on 19.07.2002, through Annexure A-6, much prior to her repatriation back to IDSA. The applicant has further produced the Commendation Certificate dated 27.09.2002 which had been issued to her by R-1 NSCS when she was reverted back to her parent organization IDSA, and which certificate had actually been issued by a Joint Secretary of Respondent No. R-1, as at Annexure A-7, on behalf of NSCS, with a copy being marked to her substantive employer, Director IDSA, also.
9. Less than one year later, in July-August 2003, the applicant had participated in the regular recruitment process conducted by Respondent No.R-1, for substantive appointments to the post of Deputy Secretary to 8 OA No.3963/2014 the Govt. of India with NSCS, and on her being successful in the written examination and interview, the applicant was advised to submit her resignation to her the then parent organization IDSA, as a precondition, for further processing her substantive appointment as Deputy Secretary in NSCS in the Govt. of India. Accordingly, she submitted her resignation to IDSA on 08.08.2003, though, while awaiting the completion of the appointment procedure of Respondent No.R-1-NSCS, she had remained in service of IDSA till 30.09.2003. When the Respondent No.R-1-NSCS had informed her and IDSA that the President of India had approved her appointment to the post of Deputy Secretary, NSCS, in Govt. of India, as per her request, she was relieved from IDSA on 30.09.2003, and IDSA had, through a letter of the same date 30.09.2003, accepted her resignation, and had relieved her of her duties. The applicant has claimed that at that time she failed to notice that in that relieving order issued by IDSA, it was mentioned that she had been relieved with retrospective effect from 10.08.2003, and that her resignation had been accepted on 30.09.2003 was retrospective effect, over-looking the fact that she was in IDSA's service till that date. Her appointment, thereafter, as Deputy Secretary, Govt. of India with Respondent No.R-1 NSCS was Gazette notified on 08.12.2003, by virtue of which Gazette Notification, she came to be holder of a civil post in the Union of India. The relevant documents were annexed as Annexures A- 10, A-11 & A-12 of the paper book of the O.A.
10. The applicant has submitted that under the RRs of 2001, fresh appointments to the permanent vacant posts with Respondent No.R-1- 9 OA No.3963/2014 NSCS had to be made mainly by the mode of Contract and Deputation, and subject to suitability of the officer, the initial contract of service with the Government under Respondent No.R-1-NSCS was generally extended from time to time. If an officer has put in the requisite necessary service with NSCS for being eligible to the next higher post, the only procedural requirement was that a fresh contract was required to be signed to appoint to the officer concerned for the next higher post in order to retain the talent, which was akin to promotion. Through its orders dated 05.06.2006, the Govt. of India had, however, continued the applicant on the post of Deputy Secretary for another period of two years, with retrospective effect from 03.10.2005, and she was also granted three advance increments, in order to match her salary to be the same which she was already drawing in IDSA, and one more advance increment was also granted in recognition of her outstanding service. She has submitted that when she had become the holder of a civil post under the Union of India, since her appointment was against a permanent vacant post, and had been made in full compliance of the RRs, and the directions of the Government issued through order dated 05.06.2006, which was in full compliance of RRs, and it was without any fresh contract, this had the effect of putting her at par with the regular appointees.
11. Thereafter, in September 2006, while she was holding the post of Deputy Secretary, a Selection Committee had duly considered her case for appointment to the post of Director, against a permanent vacant post with Respondent No.R-1 NSCS. For this purpose, the Selection 10 OA No.3963/2014 Committee had reckoned her Group 'A' service of 12 years in IDSA, and the period of her service in NSCS, from the date of her initial joining in IDSA on 04.05.1994, to the date 31.08.2006, when she was with NSCS, and had also taken into account her Group 'A' service of more than 09 years, in the pay scale of Rs.12000-16500, w.e.f. 01.07.1997 to 30.09.2006. Thereafter, as per recommendations of that Selection Committee, she was appointed to the higher post of Director in NSCS in the pay scale of Rs.14300-18300 (Revised to Pay Band-4 Rs.37400- 67,000 + GP Rs.8700) for a period of 5 years, and all allowances as were admissible to the equivalent pay of the Group 'A' Officers of the Government were made available to her. Soon thereafter, in 2007, the Respondent No.R-1-NSCS was delinked from Cabinet Secretariat, and brought under the Administrative control of the Prime Minister's Office. On 22.12.2007, new NSCS (Group A Services) RRs, 2007 were notified, under which 50% appointments to the posts of Directors were to be made by promotion, and 50% appointments as Directors were to be made by deputation/contract/absorption/re-employment, and it was specifically provided that the promotion quota will be filled up only through such officers who had been working with Respondent No.R-1- NSCS, and had put in 5 years of regular service in the feeder grade of Rs.12000-16500.
12. The applicant had then explained the complication which had arisen in her case with the advent of the new RRs, 2007 (Annexure A-16), and we shall revert to that shortly. However, the applicant worked as Director for 5 years from 2006 to 2011, and vide their order dated 11 OA No.3963/2014 27.09.2011, the respondent No. R-1 extended her services on the post of Director for one more year (Annexure A-17). In Para 4.17 of her OA, the applicant has alleged that despite the fact that all appointments with the Respondent No.R-1-NSCS are made against permanent vacant posts, through a duly constituted Selection Committee, and on the same service conditions and pay scales as admissible to temporary/regular Group 'A' officers, yet the method of contract is a normal mode of appointment to NSCS under the RRs, which has been designed only to keep the officers in continuous stress. At the same time, the appointments made under 50% promotion quota are also made against the permanent vacant posts, from among the already serving temporary/regular/absorbed officers in the feeder cadre. She has further submitted that the mode of absorption under the RRs is essentially meant for regularization of the services of those officers who are appointed to NSCS on Contract, or on Deputation basis. In the conspectus of these submissions, the applicant has claimed that when on 03.10.2003, she was first appointed against the permanent vacant post of Deputy Secretary with Respondent No.R-1- NSCS, and later on, when on 29.09.2006 she was duly appointed against the permanent vacant post of Director, at the time of absorbing her services with Respondent No.R-1-NSCS, she ought to have been absorbed w.e.f. 03.10.2003 on the post of Deputy Secretary, and w.e.f. 29.09.2006 on the post of Director, under the relevant DoP&T instructions in this regard, which the respondent No.1-NSCS has not done, giving rise to the present O.A. 12 OA No.3963/2014
13. The applicant has further submitted that she had all along been representing for treating her service with IDSA w.e.f. March, 1992 as being in continuum for the purpose of her pension and retirement benefits. She has further submitted that but for the allure of pension facility in the Government service, which is not available to IDSA employees, she would have, in fact, continued to work in the IDSA. It was further submitted that the Govt. of India had since regularized all contract appointments made by IDSA, with effect from the initial dates of their contractual appointments, and that IDSA has since extended Pension benefits to all such regularized IDSA employees, under CCS (Pension) Rules, 1972.
14. In the result, the applicant has through this O.A. assailed the respondents' order dated 12.04.2012 (Annexure A-1), ordering for her being absorbed against the post of Director, only from the date of issuance of that order, and their not having provided her the benefit of absorption of her services w.e.f. 03.10.2003, the date she joined NSCS on the post of Deputy Secretary after due process of selection, and her having resigned from IDSA, as per their requirement. She has further submitted that RRs of NSCS do not empower the respondents to continue an officer only on Contract basis indefinitely, merely to deny him (or her) the status of a regular employee. She has further submitted that in any case she has been substantively holding a civil post under the Govt. of India since 03.10.2003, and both her appointment to the post of Deputy Secretary NSCS, as well as Director NSCS later on, were 13 OA No.3963/2014 duly Gazette notified. She is aggrieved that the respondents' impugned order as at Annexure A-1 has resulted in wiping out the benefit of her entire past service with NSCS, rendered on the post of Deputy Secretary NSCS from 03.10.2003 to 28.10.2006, full benefit of which ought to have accrued to her, and further her subsequent substantive appointment on the post of Director NSCS from 29.09.2006 onwards, till the date of 11.04.2012. As a result of this action of the respondents, many persons who had been, in the past, working as her juniors or her subordinates have stolen a march over her, just because even though they were her juniors, and in some cases subordinate to her, and they were even promoted or taken on deputation to NSCS on dates later than her, they have been given seniority from the initial dates of their holding the same post on such deputation or promotion. The applicant has submitted that Respondent No.R-1-NSCS not absorbing or regularizing her service from the initial date of her appointment and joining service on 03.10.2003 has resulted in denial to her of career, post, status, seniority, seniority, and the full pension benefits available under the CCS (Pension) Regulations, 1972, and that it has also affected her entitlement of consideration of her case for promotion to the post of Joint Secretary under the promotion quota for the Select List year 2009.
15. The applicant has further assailed the impugned order dated 12.04.2012 to be baseless, whimsical, discriminatory, vitiated with bias and prejudice, and against the RRs, as the date arbitrarily chosen by the respondents for her absorption has no relation whatsoever with the date 14 OA No.3963/2014 of her initial appointment with Respondent No.1-NSCS, and the various posts of Deputy Secretary and Director of NSCS held by her. She has submitted that she has thus been denied right of equality in employment etc. under Articles 16 & 21 of the Constitution of India. The applicant has further submitted that on her taking up the matter with respondent No.1-NSCS, she was informed that the respondent No.1-NSCS had declined to give her the benefit of continuity of Group 'A' Service from her service in IDSA on the plea that her previous Group 'A' Service in IDSA upto 10.08.2003, and subsequently her joining on appointment in NSCS on 03.10.2003, was separated by the period of 01 month and 22 days, and, therefore, her previous experience of working for 09 years in Group 'A' Service rendered in IDSA could not be treated to have been in continuation for the purpose of according promotion to her. She has alleged that this stand was contrary to the stand taken by the respondent No.1-NSCS on 03.10.2003, when they had indeed reckoned her previous Group 'A' Service in IDSA to have been without any interruption for the purpose of counting her service qualification, as required under the RRs, and the respondents could not be allowed to now change their stand after a decade. It was submitted that it was not correct and legally tenable for the respondent No.1-NSCS to have raised the plea of an alleged break in her service, and shelter had been sought behind the Hon'ble Apex Court judgment in the case of Banaras Hindu University Varanasi and Another vs. Dr. Indra Pratap Singh AIR 1992 SC 780: JT 1992 (1) SC 320.
15OA No.3963/2014
16. The applicant has alleged that because of this deliberate mischief on their part, the respondent No.1-NSCS has, thereafter, through their order dated 26.11.2013, declined to consider her case for promotion to the post of Joint Secretary, taking the plea that her past service in IDSA, and the subsequent service with R-1 NSCS, were separated by a gap of 01 month and 22 days, and, therefore, her employment cannot be reckoned to be one continuum, and that the assessment of her claim for promotion would, therefore, have to be considered only on the basis of her service from the date of her joining in NSCS on 03.10.2003, which the applicant has termed to be illegal. She has submitted that the respondents cannot now take a reverse view only because the word 'continuous' has been added in the revised RRs of 2007, which was not there in the previous RRs. The applicant had represented in this behalf on 11.12.2013 pointing out the discrimination meted out to her, and had even cited other cases to allege discrimination. It was submitted that the respondent No.1-NSCS has now taken a new plea that the applicant's earlier contract appointment had come to an end, and that her continuous service could be counted only from the date of her substantive absorption, and they have thus ignored consideration of her case for absorption on this basis of service rendered from the initial date of her joining on contract. She has further submitted that even the advice sought by the Respondent No. R-1-NSCS from DoP&T and Ministry of Law was on a wrong premise. The applicant had further sought shelter behind this Tribunal's Order in the case of Dr. S.D. Pradhan vs. National Security Council in OA No.2250/2012, decided on 21.10.2013 (Annexure A-20). Thereafter, it was alleged that she had 16 OA No.3963/2014 represented against the respondents' order dated 29.04.2014, but the same was not replied to, and she had cited the cases of two individuals who had later got themselves impleaded as private respondents R-3 & R- 5, but did not advance any arguments, beyond R-4 filing a counter reply to the OA.
17. The applicant had submitted that in the case of private respondent No. R-2, the official respondent R-1-NSCS had directly appointed him on the post of Joint Director/Deputy Secretary, under the mode of absorption, by even treating or reckoning his co-terminus employment in their Personal Sections with various Hon'ble Ministers during the years from 1986 to 2006, which was against the RRs, and R-1-NSCS had even treated the gap in his employment with the Govt. of India in Ministers' Personal Sections also from 17.01.1990 to 30.04.1992 as to be in continuum, only because of which he could get promoted to the post of Director w.e.f. 29.09.2011, overlooking her seniority over him (R-2). The applicant had also discussed the case of private respondent No. R-4 stating that on 16.08.2005, the respondents had created a new post of OSD in the pay scale of Joint Secretary with Respondent No. R-1-NSCS, for the specific purpose of serving the National Security Advisory Board, and had then permanently transferred the private respondent No. R-4 to that post, when he was, in fact, at that time looking after the Hospitality Wing at the Prime Minister's residence, and even though he (R-4) had no qualifications/experience whatsoever of defence research or related aspects. It was submitted by her that private respondent No. R-4 was later absorbed as Joint Secretary, and then further promoted to the post 17 OA No.3963/2014 of Additional Secretary, apparently by relaxing the eligibility norms, and even without the mandatory approval of the ACC. She had explained the case of another person, Dr. S.D. Pradhan, who was not named, and did not become a party respondent in this case, but in whose cases also, she had alleged that Respondent No.R-1-NSCS had reckoned the entire contract service for the purpose of continuity of service for pensionary benefits under CCS (Pension) Rules, 1972.
18. While submitting that she does not want to question the benefits already granted by the respondent No.1-NSCS to any other person, the applicant had only submitted that she did not want to be discriminated against by the respondents.
19. The applicant had taken the ground for filing this OA that she was entitled to absorption on the post of Deputy Secretary in substantive capacity w.e.f. 03.10.2003, the date when she had first joined Respondent No.R-1-NSCS, and required to be treated as having been substantively promoted on the post of Director w.e.f. 29.09.2006, as had been stated by the respondent No.1-NSCS in the letter dated 06.10.2006, by which she would have become entitled to be considered for promotion to the post of Joint Secretary as on 01.10.2009, even as per the new NSCS RRs, 2007. She had further taken the ground that she was entitled for her service in IDSA to be reckoned in continuum for the purpose of retirement and pensionary benefits under CCS (Pension) Rules, 1972. In support of her contention, she had taken the ground 18 OA No.3963/2014 that her appointment to Respondent No.R-1-NSCS as Deputy Secretary was against a permanent vacant post, and in terms of NSCS RRs as they were prevailing on that date. She had further taken the ground that the respondent No.1-NSCS has overlooked her period of service on the two posts of Research Officer and Research Fellow with IDSA, which had been reckoned with and considered even by the Selection Committee of R-1 NSCS itself also, due to which she was held to be meeting the requirements of service qualification for her appointment to the post of Deputy Secretary with R-1-NSCS on 03.10.2003, and, therefore, the respondent R-1-NSCS cannot now be allowed to go back on that aspect, and not to consider that service of hers with IDSA as eligible service.
20. She has further taken the ground that when her initial appointment under the then prevailing NSCS RRs of 2001 was on contract basis for three/five years and the contract was extended from time to time till her absorption, which is a usual mode of appointment with R-1 NSCS, her initial appointment was akin to deputation appointment, as held by the Hon'ble Supreme Court in the case of Banaras Hindu University Varanasi and Another vs. Dr. Indra Pratap Singh (supra). She has also submitted that she cannot be denied the benefit admissible to regular officers just because her direct appointment against a permanent vacant post had been termed to be on contract basis, as had been held by this Tribunal in the case of Dr. S.D. Pradhan vs. National Security Council (supra), more so because even her subsequent promotional appointment to the post of Director on 29.09.2006 had also 19 OA No.3963/2014 been made against a permanent vacant post, in full compliance of the then prevailing RRs of 2001. She had further taken the ground that when her appointment to a civil post with Respondent No.R-1-NSCS was under Article 309 of the Constitution, she was entitled to all benefits and safeguards as available to equivalent officers holding equivalent civil posts, and it has to be held that she was holding a civil post continuously since 03.10.2003.
21. The applicant had further sought shelter behind the Hon'ble Apex Court judgment in Roshan Lal Tandon vs. Union of India AIR 1967 SC 1889, which was reiterated by the Hon'ble Apex Court in the case of UPSC vs. Girish Jayantilal Baghela AIR 2006 SC 1165=2006 (2) SCC 482, and the relevant paragraphs from the judgment produced at Annexure A-23 were cited. She had further taken the ground that both in respect of her initial contract service/appointment dated 03.10.2003 to the post of Deputy Secretary, and further promotion/appointment from 29.09.2006 to the promotional post of Director, her service conditions were throughout regulated under CCS (CCA) Rules, 1965, and other Rules made under Article 309 of the Constitution, and also Article 313 of the Constitution, and shelter had been sought by her in regard to her status as such, on the basis of the Hon'ble Delhi High Court judgment in the case of Indian Institute of Technology vs. Mangat Singh [1973 (9) DLT 475] (Annexure A-24). She had further taken the ground that the impugned decision to grant her absorption on the post of Director only w.e.f. 12.04.2012 was illegal, discriminatory, as well as 20 OA No.3963/2014 against the RRs, both the previous RRs of the year 2001, as well as the new RRs of 2007, and had caused her serious prejudice, as it had affected and completely wiped out her continuous service with R-1-NSCS from 03.10.2003 to 11.04.2012, and it was, therefore, stated to be in violation of her rights under Articles 16 & 21 of the Constitution.
22. The applicant had further taken the ground that the date of 12.04.2012 now fixed by the respondents in the impugned order as the date of her absorption in the NSCS service, on the post of Director, was completely whimsical, without any basis, and does not have any basis nor any relation whatsoever to the date of her permanent appointment, or availability of permanent vacant posts, especially so, since she was appointed in full compliance of 2001 RRs to the post of Deputy Secretary on 03.10.2003, against a permanent vacant post, and, therefore, she was entitled for absorption against her the then post from the same date. She had further alleged discrimination due to the direct induction of an officer on the post of Deputy Secretary on 29.09.2006, and on the post of Director on 29.09.2011, ignoring her claim, when she was already serving as Deputy Secretary since 03.10.2003, and submitted the R-1- NSCS had ordered her services to have been absorbed on 12.04.2012 in an artificial manner, thereby making the said officer, private respondent R-2, senior to her.
23. She had further taken the ground that her life would be shattered unless her service since 04.05.1994 in IDSA/NSCS-R-1 is counted for the period of her total service for the purpose of pension etc. She had 21 OA No.3963/2014 further taken the ground that the terms contract and a fixed tenure of such contract being mentioned in the letter of her appointment was a sham, unreasonable, and a clear case of exploitation, in the fact situation that the applicant did not, at that point of time, have any bargaining power, and it was least expected from the Government, which had to act as a model employer, to make such appointments on contract basis, against permanent posts. In the result, citing that the respondent No.1 NSCS had even failed to reply to her Legal Notice dated 11.06.2014, the following prayers had been sought for:-
"a) To quash and set aside the respondent's orders dated
12.04.2012, 26.11.2013 and 29.04.2014 (Annexure A-1, A- 2 and A-3) and order the respondent for applicant's absorption on the post of Deputy Secretary to the Govt. of India w.e.f. 03.10.2003 and to further order the respondent to treat the applicant's appointment dated 29.09.2006 on the post of Director as promotion w.e.f. from 29.09.2006 as already stated by the respondent vide order dated 06.10.2006 and to further order the respondent to consider the applicant for promotion to the post of Joint Secretary in pay scale of Rs.37400-67000 + Grade Pay of Rs. 10,000/- as on 01.10.2009 as per the NSCS Recruitment Rules, 2007 and to reckon her service in IDSA in continuum for the purpose of retirement and pension benefits under CCS (Pension) Rules, 1972.
b) Pass such other order (s) as may be deemed fit in the interest of justice".
24. Counter reply on behalf of R-1-NSCS was filed on 02.02.2015. A preliminary objection was taken that all the representations of the applicant have been replied to, after thorough examination, in consultation with the nodal departments, DoP&T and Ministry of Law & Justice. Further, it was submitted that the applicant was working with IDSA only on contract basis, first as Research Assistant, on stipend basis, from 06.04.1992 to 16.05.1994, and then as Research Officer in 22 OA No.3963/2014 the pay scale of Rs.2200-4000 w.e.f. 17.05.1994, as per letter dated 11.12.2013 (Annexure R-1) received from IDSA, (copy of her IDSA service record was produced as Annexure R-2). It was further admitted that she was awarded Fellowship in the pay scale of Rs.12000-18000 in IDSA for two years w.e.f. 15.07.1997. It was further submitted that she was further awarded another Fellowship in IDSA for two years, w.e.f. 01.07.1999, as per the IDSA service record at Annexure R-3, during which period she had also worked as a Research Fellow with the R-1- NSCS in the pay scale of Rs.12000-16500, from 16.08.2000 to 27.09.2002, on loan basis, for which period her pay & allowances were paid by R-1-NSCS, as per the copy of the Office Order dated 28.08.2000, at Annexure R-4, whereafter she had returned to IDSA w.e.f. 27.09.2002, through the order of that date produced at Annexure R-5. It was submitted that thereafter she had resigned from IDSA, and was relieved of her duties w.e.f. 10.08.2003, as per the IDSA service record at Annexure R-6, and that she was paid salary only upto 10.08.2003 by IDSA, and that she had also availed terminal benefits of her leave encashment etc. from that office accordingly. In that context, it was submitted that the contract of the applicant with IDSA came to an end on 10.08.2003, and that she had been paid her entire salary and terminal benefits by IDSA only upto that date.
25. It was admitted that the applicant was appointed with R-1 NSCS on contract basis as Deputy Secretary/Joint Director in the pay scale of Rs.12000-16500 w.e.f. 03.10.2003, but it was emphasized that this was 23 OA No.3963/2014 after a gap of 01 month and 22 days after she had left her services with IDSA. It was further submitted that she was subsequently appointed as Director with R-1-NSCS w.e.f. 29.09.2006 for a period of 5 years on fresh contract vide order dated 06.10.2006 (Annexure R-8), which was extended from time to time for one year at a time, i.e., upto 28.09.2012, through Annexure R-9, but, in the meanwhile, she was absorbed as Director with R-1-NSCS w.e.f. 12.04.2012, which alone gave her the status of a regular Government servant from that date, because prior to that she was working only on contract basis, both with IDSA, and thereafter with R-1-NSCS. It was submitted that under the RRs of R-1- NSCS for promotions to the posts of Joint Secretary, produced at Annexure R-11, the eligibility criteria for the post of Joint Secretary clearly shows that in order to be eligible for promotion to the post of Joint Secretary, the incumbent should satisfy either one of the three conditions mentioned in the RRs, as follows:-
"(a) 2 years' regular service in Director (DIG scale Grade Pay Rs.8900); or
(b) 3 years' regular service in Director scale (Grade Pay Rs.
8700); or
(c) 8 years' regular service in Deputy Secretary's scale (Grade Pay Rs.7600);
with total continuous Group 'A' service of 17 years".
26. The respondents had taken the further preliminary objection that the applicant does not fulfil the eligibility criteria of 3 years' regular service in the grade of Director, with total continuous Group 'A' Service of 17 years, for her case being considered for her promotion as Joint Secretary, though she had been maintaining that she has put in more 24 OA No.3963/2014 than 17 years in Group A Service, taking into account her past service rendered both in IDSA, and with R-1-NSCS. It was further submitted that on the issue of giving weightage for counting of past service rendered by her in IDSA, DoP&T had opined that no such weightage for counting of past service was permissible, and though contract appointment can be made against posts, if the RRs prescribed for the same, but the eligible service of an employee will be counted only from the date of absorption, and the service rendered prior to that on contract basis, not being regular service, cannot be taken into account for counting eligible service for the purpose of promotion, as per DoP&T advice, produced at Annexure R-12.
27. It was submitted that prior to the applicant joining R-1-NSCS on 03.10.2003, she was working with IDSA also purely on contract basis, and she had resigned from IDSA in August 2003 'on her own will', and not in pursuance of any request from R-1-NSCS, and that even from that office, she had accepted her contract appointment as Deputy Secretary with R-1-NSCS, on 03.10.2003, and had even signed a contract agreement for that purpose. The applicant's contention that she was assured that her contract appointment will soon be converted into regular appointment was denied, since there was no such provision in the 2001 RRs, and the prevalent RRs in the year 2003 did not even have any provision for promotion, and as per the Guidelines for recruitment of officers in respondent No.1 NSCS organization, absorption had been done only 'in rare cases', and that too after completion of a minimum 25 OA No.3963/2014 period of 5 years by the concerned incumbent in that organization in an outstanding manner.
28. It was denied that the applicant's appointment as Director w.e.f. 29.09.2006 was on promotion, and it was submitted that her appointment as Director was only on a fresh contract, and her pay also was fixed only at the minimum of the scale of pay of Director, vide order dated 06.10.2006. It was further submitted that during the year 2006, the previous RRs of 2001 were applicable, which had no provision for promotion, and that promotion had been included in the revised RRs 2007, which had become effective from 22.12.2007 only, and the applicant could not, therefore, have been eligible for promotion to the post of Director in the year 2006, as claimed by her.
29. It was further submitted that the Office Order dated 06.10.2006, containing the word 'promotion', has since been rectified vide Office Order dated 20.10.2014 (Annexure R-13), which modification order had been issued just around a fortnight before the date of filing of the present OA, but after the Legal Notice had been sent by the applicant's counsel.
30. It was submitted that the applicant's prayers that she be treated as having been absorbed on the post of Deputy Secretary on 03.10.2003, and her contract appointment as Director on 29.09.2006 be treated as promotion, are also based on false presumptions and afterthoughts, and that she was presently not eligible for being considered for promotion as Joint Secretary. It was further submitted that the applicant is questioning the order dated 06.10.2006 regarding her pay fixation in the 26 OA No.3963/2014 present OA, filed in the year 2014, and, therefore, the present OA is hopelessly time barred, and that she was estopped from raising these issues at this stage.
31. In Para-wise reply to OA, it was submitted by R-1 NSCS that apart from the RRs, there are certain Guidelines also for filling up of the posts in NSCS, and that the Guidelines on recruitment of Officers in NSCS also stipulate that absorption can be made "in rare cases only", and after completion of minimum 5 years' service with that organization in an outstanding manner, and, therefore, it was submitted that absorption in NSCS cannot be claimed by the present applicant as a matter of right, and such absorption is always at the sole discretion of the organization. It was submitted that since a contract employee cannot be promoted, and can only be appointed to the next higher grade on a fresh contract, inadvertently the Office Order dated 06.10.2006 had included/contained the word 'promotion', which inadvertent mistake had since already been rectified through Annexure R-13.
32. It was further submitted that in the year 2012, the Prime Minister's Office had directed to examine and process the case of the present applicant for absorption in NSCS. Accordingly, her case, along with the cases of all other officers who had completed 5 years' continuous service in NSCS till then, were processed, and placed before the Selection Committee first, and then before the Appointing Authority (Prime Minister), who had found 3 of them, including the applicant, as being suitable for absorption, and orders were accordingly issued on 12.04.2012 (Annexure R-10) in respect of those three Officers. It was 27 OA No.3963/2014 submitted that in 11 years of her continuous service with the respondent-organization R-3, the applicant had never raised the issue of her absorption to be given effect to w.e.f. 03.10.2003, which issue has raised through this OA now. It was further submitted that the applicant had submitted a representation dated 06.03.2013, which was replied to through Communication dated 26.11.2013 (Annexure A-2), which representation of hers was related to the maintenance of her Service Book in respondents' own organization, and not relating to counting of her past service rendered in IDSA from May 1992 to 30.09.2003, as has now been mentioned by her in the present OA, and that after submission of her aforesaid representation dated 06.03.2013, she had also verbally raised the issue of her promotion during her meeting with the Deputy National Security Advisor and the Secretary of R-1-NSCS on 20.11.2013, after which the reply was issued to her on 26.11.2013, and she was informed that her past service in IDSA, and subsequent service in the respondent No.1 NSCS-organization being separated by 01 month and 22 days, the two cannot be reckoned to be one continuum, and, therefore, an assessment of her claim for promotion will have to be made only with reference to the date of her joining in NSCS on 03.10.2003, and in accordance with the RRs and set procedures, and that it was not correct to say that the respondents had declined her representation.
33. In reply to Para 4.7 of the OA, it was submitted that the applicant had earlier joined the respondent No.1-NSCS, when she was working in IDSA as a Research Fellow, 'on loan basis' from 16.08.2000 to 26.09.2002, and that she was not on deputation, as has been wrongly 28 OA No.3963/2014 mentioned by her. It was submitted after she was relieved from the respondent No1-NSCS on 27.09.2002 with direction to report to her parent office IDSA, at that point of time, she was not asked to submit any Service Certificate from IDSA. Instead, through her Note dated 23.08.2011, she had herself provided a copy of a Certificate addressed "To whomsoever it may concern" dated 16.08.2011, issued by IDSA, stating that she had worked as Research Assistant in that organization from 1992 to 1994 (Annexure R-15), and she had again submitted a copy of another such Certificate dated 19.07.2002 through her Communication dated 22.01.2014 (Annexure R-16), with reference to the Communication dated 26.11.2013 issued to her in response to her earlier representation dated 06.03.2013. Therefore, her contention that she had been asked to submit a Service Certificate from IDSA for the purpose of her appointment in 2003 was denied.
34. It was further denied that the applicant had been advised to submit her resignation in IDSA as a pre-condition to further process of appointment in Govt. of India, and it was further denied by R-1- NSCS that she had remained in service of IDSA till 30.09.2003, and it was further denied that she was sanctioned leave upto 30.09.2003 by the IDSA, since, according to R-1- NSCS she did not remain in service of IDSA till that date, and was instead relieved of her duties w.e.f. 10.08.2003, and her salary was also paid only upto that date only by IDSA. Her plea in this regard was termed by R-1- NSCS to be an afterthought.
29OA No.3963/2014
35. It was further submitted that the modes of appointment prescribed in the NSCS RRs 2001 for the post of Deputy Secretary/Joint Director were (1) deputation/ (2) contract/ (3) absorption/ (4) re-employment, and that the officers of the (1) Central Government/(2) State Government/ (3) Universities/(4) Research Institutes/ (5) Autonomous Bodies, holding analogous posts, were eligible. It was submitted that since at the time of her selection for the post of Deputy Secretary in R-1-NSCS in the year 2003, the applicant was holding an analogous post in IDSA, her candidature was considered, and she was appointed to that post in R-1- NSCS on contract basis w.e.f. 03.10.2003. Still, uno flatu, it was denied that the respondent R-1- NSCS had reckoned her having held Group 'A' service of more than 9 years in IDSA from 1994 to 2003 for consideration of her appointment with the R-1-NSCS. Further, while admitting that the post against which she was appointed was a regular sanctioned post, it was once again uno flatu stated that it was filled up not on a substantive basis, but through her contract appointment, which was one of the modes of appointment prescribed in the RRs 2001.
36. It was submitted by R-1- NSCS that merely appointing her on contract basis against a regular post, and notifying such an appointment in the Gazette of India, and granting her annual increments and other benefits as admissible to regularly appointed officers in that pay scale cannot bestow upon her the status of a regular Government servant, since the conditions of her contract appointment were governed by the agreement duly accepted and signed by her, which contract agreement itself inter-alia included application of Fundamental Rules (FRs), LTC 30 OA No.3963/2014 Rules, CCS (CCA) Rules, 1972 etc. to her appointment. It was further submitted that contract appointments and absorption were two different modes prescribed in the 2001 RRs, and a contract employee is governed only by the agreement signed by him/her, and attains the status of a regular Government servant only after absorption.
37. It was further submitted that since contract employment had been prescribed as one of the modes of recruitment of Officers in the NSCS 2001 RRs, such contract employees were also eligible for increments etc. also, apart from pay & allowances, as admissible to officers recruited through the other prescribed modes, and on completion of their initial contract period, as assessment was made for their continuation in the same grade, or to give them the higher grade, on the basis of a fresh contract. It was still submitted that they, however, can become regular Government servants from the date of their absorption only.
38. It was further denied that the applicant was substantively appointed to the post of Director in the year 2006 only because the Selection Committee had at that time taken into reckoning her continuous Group 'A' service of 12 years in IDSA and NSCS put together, and 9 years out of which was in the pay scale of Deputy Secretary/Joint Director both in IDSA and NSCS put together. It was instead submitted that she was appointed as Director on a fresh contract keeping in view only her performance in R-1- NSCS in the grade of Deputy Secretary, during the two spells of her contract service with R-1- NSCS by that time, totalling to 5 years, since the Guidelines for recruitment of officers in NSCS provided that a contract officer can be considered for higher 31 OA No.3963/2014 post on a fresh contract basis on completion of 5 years of such contract service.
39. It was further submitted that the NSCS was designated as a specialized Research unit, under the direct charge of the National Security Advisor (NSA, in short) in the Prime Minister's Office, vide Cabinet Secretariat's Resolution dated 27.02.2002, and it was admitted that the new RRs for Group 'A' services in NSCS were notified on 22.12.2007, which is a matter of record. The applicant's contention that with the advent of the new RRs 2007, she should have been absorbed/regularized from the back date of 03.10.2003, and that she was eligible for her appointment on the post of Director w.e.f. 29.09.2006 to be treated, as promotion was denied and called a far-fetched imagination. It was submitted that appointing people on absorption/re- employment/contract, as prescribed in the RRs, is the sole discretion of the organization, and as regards promotion, no junior/subordinate of the applicant had been promoted to the post of Director/Joint Secretary after the new RRs 2007, and when three eligible officers, including the applicant, were found suitable to be eligible for absorption, orders were issued on 12.04.2012 accordingly.
40. It was further submitted by R-1-NSCS that though (such Class-I /Group A Service) appointments in the Government of India are normally done through UPSC, however, the respondent-organization-NSCS has been given a special dispensation in the matter of recruitment of its officers/staff, to enable it to tap the available talent from within or outside the Government etc., and whenever the Search Committee of R- 32 OA No.3963/2014 1-NSCS identifies suitable candidates anywhere, such identified candidates are offered appointment. While serving Government servants are taken on deputation basis, those working with the Research Institutes/Autonomous Bodies/Private Institutions etc., who cannot come on deputation, are offered contract appointments, if they are cleared otherwise from security angle. Retired Government servants are also appointed on re-employment basis. It was further submitted that whenever any vacancy arises at a level, and the process of selection has been initiated, the candidature of already serving NSCS contract officers is also considered, and if they are found suitable as per the RRs/Guidelines, they are appointed to the higher grade, on a fresh contract basis, as was done in the applicant's case.
41. It was further submitted that after joining respondent-organization NSCS, the applicant had consented to become a member of the Contributory Provident Fund (CPF, in short) as applicable to contract employees, and that only after her absorption w.e.f. 12.04.2012 she became a member of the New Pension Scheme (NPS, in short), and her CPF accumulations were refunded to her, which goes to show that she was fully aware that she would not be eligible for pension under the CCS (Pension) Rules, 1972 in NSCS. It was denied that any of her junior, or any of her subordinates, had been appointed or absorbed in the grade of Director prior to her absorption along with two others on 12.04.2012. It was further submitted that the date of 12.04.2012 is very much relevant, as the order of her absorption in NSCS was issued on that date, after receiving the approval of the Competent Authority. It was also submitted 33 OA No.3963/2014 that she had entered into a fresh contract agreement for her contractual appointment to the post of Director w.e.f. 29.09.2006, without raising the issue of her absorption from the back date of 03.10.2003, which contention she has now raised through this OA. It was submitted that all the representations of the applicant were examined in consultation with the nodal departments, DoP&T and Ministry of Law & Justice, and detailed replies were sent to her, clarifying that as per the existing RRs, she is not eligible for promotion as Joint Secretary at present, and it has also been clarified that she was appointed as Deputy Secretary w.e.f. 03.10.2003 only because she was earlier holding an analogous post in IDSA, as was required in the RRs of 2001.
42. The applicability of the case of Banaras Hindu University Varanasi and Another vs. Dr. Indra Pratap Singh (supra) to the instant case was denied, as that case related to Merit Promotion Scheme of the University Grants Commission, whereas the present OA concerns the RRs and other Rules and Regulations applicable to the NSCS and other Central Government employees, and that it is clear that for promotion to the post of Joint Secretary in NSCS, one has to have rendered a minimum regular service of 3 years in the grade of Director, with minimum 17 years' continuous Group 'A' Service, and the applicant does not meet this eligibility criteria at present. It was denied that the respondents had vide order dated 26.11.2013 declined to consider the applicant for promotion to the post of Joint Secretary, since it had been already clarified to her vide Communication dated 29.04.2012 that her 34 OA No.3963/2014 regular service counts from the date of her absorption in NSCS, i.e., 12.04.2012.
43. The respondents had further distinguished her case from the case of Dr. S.D. Pradhan (supra), who had been on contract with the NSCS from 1999 to 2001, and was subsequently absorbed as Joint Secretary, because he was working continuously since 29.06.1989 in various capacities, and the last post of OSD at JS level was held by him as on 07.06.2001.
44. The applicant's contention that her representation dated 17.06.2014 was not replied to was denied, stating that it had been replied through Annexure R-18 dated 05.09.2014. Respondents had thereafter explained the individual cases of private respondent R-3 Ms. Shweta Bakshi, private respondent R-5 Shri Akshay Joshi, private respondent R-2 Shri Murlidharan Pillai, and of private respondent R-4 Shri Rohit Khera, and the circumstances of their absorption and promotion etc. They had also explained the facts concerning the case of Dr. S.D. Pradhan, which had been mentioned by the applicant in the OA in her own manner.
45. In reply to the grounds, it was submitted by R-1-NSCS that the applicant had herself resigned from her previous employer IDSA, which resignation was accepted by IDSA, to be effective from 10.08.2003, and it had nowhere been mentioned in her relieving order that she was relieved for the purpose of joining service with R-1-NSCS, though, while considering her appointment to the post of Deputy Secretary in NSCS 35 OA No.3963/2014 w.e.f. 03.10.2003, her candidature had been considered by considering her to have been holding an analogous post in IDSA prior to that, as was required under the then prevalent 2001 RRs. It was further submitted that the applicant has wrongly cited the Hon'ble Supreme Court's judgment, because in that judgment it has nowhere been held that contract appointments are akin to deputation appointment.
46. It was further reiterated that the word 'promotion' was inadvertently mentioned in the order passed by R-1-NSCS on 06.10.2006, as a contract employee could not have been promoted, and as per NSCS RRs of 2001, promotion did not figure as a mode of recruitment, and, on the contrary, any officer being absorbed had to give a Service Certificate. It was submitted that the applicant could not have demanded any promotion, and since the word 'promotion' had been inadvertently wrongly used in the order dated 06.10.2006, that order had since been rectified on 20.10.2014.
47. The applicant's contention that her rights and obligations were not determined only by the contract signed by her, but were determined instead by Statutory Rules was denied as her own imagination and an afterthought. It was submitted that the fact remained that she had been absorbed on the post of Director in NSCS only w.e.f. 12.04.2012, on the basis of consideration of her performance during the period from 03.10.2003 to 11.04.2012, and the applicant had at that point of time not raised any issue then and there regarding the effective date of her absorption. It was further submitted that consequent on her absorption, her contractual status has since changed, to that of a regular 36 OA No.3963/2014 Government servant, and this was not violative of her fundamental rights of equality. It was further submitted that the mere fact that the appointment of the applicant on contract basis was against a permanent vacant post does not mean that she is entitled to absorption from the date of her initial contract appointment in a retrospective manner.
48. Explaining the case of private respondent R-2 Shri Murlidharan Pillai, it was submitted by R-1-NSCS that he was holding an analogous post in PMO when he was appointed as Joint Director with R-1-NSCS on absorption basis w.e.f. 29.09.2006. Thereafter, since RRs of 2007, when they were promulgated, provided that the NSCS officers with 5 years' regular service in the pay scale of Deputy Secretary/Joint Director were eligible for promotion to the grade of Director, and since R-2 Shri Pillai had by then completed 5 years of regular service with R-1 NSCS on 28.09.2011, he was promoted to the post of Director w.e.f. 29.09.2011, as per the 2007 RRs, and on the basis of the recommendations of the Selection Committee.
49. It was further submitted by R-1-NSCS that 11 years after her joining on contract basis, the applicant cannot question her joining as such, and since contract appointment is not akin to deputation, and in reply to para 5.16 of the OA it was submitted that only a serving regular employee can be selected to come on deputation, for a specified tenure, with the prior concurrence of his parent organization, and after completion of deputation tenure, reverts to his parent organization. It was, therefore, submitted that even as per notified RRs, contract appointments and deputation appointments are two different modes of 37 OA No.3963/2014 appointments being made in NSCS. Any injustice having been meted out to the applicant was denied, and it was submitted that on all the occasions when the issue was raised by her, she had been informed that presently she was not eligible for promotion. Therefore, it was prayed that the OA may be dismissed, with costs against the applicant.
50. The applicant filed her rejoinder on 10.04.2015, more or less reiterating her contentions as already made out in the OA, which need not be repeated here once again. It was reiterated by her that under the NSCS RRs of 2001, all initial appointments to regular/permanent posts were to be made by the methods of (1) Contract/(2) deputation /(3) absorption/(4) re-employment, and that there was no provision for any regular appointments whatsoever. It was submitted that as can be seen from Annexure R-12 of the respondent-R-1-NSCS's counter reply, DoP&T itself had termed those RRs as vague, and that the R-1-NSCS had further complicated the matters by having obtained waiver of consultation with UPSC, DoP&T, and Ministry of Finance for the recruitments made at higher levels.
51. It was further submitted that the respondent R-1-NSCS had amended the RRs in the year 2007, which also are nothing but a mere repetition of 2001 RRs, except that 'promotion' has been added as another mode of making appointments. It was further submitted that for consideration of her candidature for appointment to the post of Deputy Secretary, the Respondents had already treated her to have been holding the analogous post of Research Fellow in IDSA on regular basis, and, later, when her appointment on the post of Director was to be 38 OA No.3963/2014 considered, they had treated both her deputation period of two years in NSCS earlier (from 16.08.2000 to 26.09.2002) and three years of her contract service from 2003, as the total 5 years of service on regular basis, while considering her eligibility and making her a Director on 29.09.2006. It was, therefore, submitted that now the R-1-NSCS cannot go back from their having reckoned her eligibility of three years' service as regular service w.e.f. 2003, before her appointment as Director, for the purpose of consideration of her case for promotion to the post of Joint Secretary.
52. It was submitted that while the respondents had ignored her right of absorption from the very beginning, on the other hand, along with her promotion to the post of Director on 29.09.2006, the respondents had made direct initial appointment of one Mr. Murlidharan Pillai as Deputy Secretary, as such from the same date when she became a Director, who, as a Deputy Secretary, was junior to her, and he could become Director only on 29.09.2011. It was, therefore, submitted that for the period of 5 years from 29.09.2006 to 28.09.2011, private respondent R-2 had been her subordinate/junior. However, while private respondent R-2 was promoted as Director on regular basis earlier, w.e.f. 29.09.2011, the applicant was ordered to have been absorbed as Director more than six months later, only through the impugned order dated 12.04.2012, thereby making the private respondent R-2 as senior to the applicant, because of which she had also asked for her similar regularization with effect from the date of her initial appointment. Again discussing the case of Mrs. Shweta Bakshi, private respondent R-3, it was submitted by the 39 OA No.3963/2014 applicant that she was absorbed/regularized on the post of Under Secretary on 04.12.2012, and, therefore, as per Rules, she ought to have become eligible for promotion to the next post of Deputy Secretary only after 5 years of regular service. But, less than a year later, on 06.11.2013, R-1-NSCS had promoted her to the post of Deputy Secretary, by reckoning her previous contract service, which reckoning of previous contract service is being denied in the case of the applicant, and, therefore, she is being discriminated against.
53. It was further submitted by the applicant that since the superior officers of the R-1-NSCS were impressed with the applicant's performance while on deputation, they had decided to initiate the process for her appointment against the permanent post of Deputy Secretary, and she had submitted her C.V. accordingly. Vide letter dated 23.04.2003, she was asked to appear for written test, and the interview was held on 08.05.2003, and then she was also asked to submit the 'No Objection Certificate' from IDSA for treating her as being nominated by the IDSA, and also that she would be relieved and sent on deputation to the respondent-organization in the event of her selection.
54. It was submitted that in July-August 2003, she had been informed by R-1-NSCS regarding her having qualified in the selection process, and while the final approval of her selection/appointment was being obtained from the highest levels, she was asked to submit her resignation to the IDSA, and to remain ready for joining her services with the R-1-NSCS. Accordingly, on 08.08.2003, she had submitted her resignation from IDSA, but its acceptance was kept pending by IDSA, awaiting the joining 40 OA No.3963/2014 message from R-1-NSCS, and that during this interregnum period, she had remained on the rolls of IDSA, as may be seen from the fact that on 14.08.2003, the IDSA had even considered her proposal for going on foreign tour, and on 18.09.2003, the Director IDSA had approved her application dated 10.09.2003 for sanction of leave till 30.09.2003 (Annexure A-8 colly).
55. It was submitted that on 29.09.2003, she had received a verbal message from her superiors in R-1-NSCS, asking her to join forthwith on the post of Deputy Secretary, and, as a result, she had requested and was relieved from IDSA on 30.09.2003, and her LPC had been issued, and after the intervening holidays, i.e., on 1st and 2nd October, 2003, she had joined on 03.10.2003 on the post of Deputy Secretary to the Govt. of India with R-1-NSCS, which had later been Gazette notified. A true copy of the applicant's LPC dated 29.09.2003 issued by IDSA was submitted as Annexure A-26 (Page 256 of the paper book) which had in para 4 stated that she had handed over the charge of her Office in IDSA on 30th September, 2013.
56. It was further submitted by the applicant that she had all along been under the impression that her eligibility for the post of Deputy Secretary was reckoned under Clause 12 (iii) of NSCS RRs of 2001, by reckoning her total Group 'A' service of 9 years with IDSA, also as qualifying service, and it is now only that the respondents have stated in their counter reply that she had been appointed not on the basis of her 9 years of Group 'A' Service in IDSA, but only because she was holding 41 OA No.3963/2014 analogous post in IDSA, and it has further been admitted by the respondents that they had treated her as holding the analogous post of Research Fellow with IDSA on regular basis on the date of appointment, and, therefore, they could not allege any gap in her appointment, and in the light of the letter dated 23.04.2003, and the NOC given by the IDSA, she was bound to be treated as a candidate nominated by IDSA, and, thus, entitled for her reckoning of her past service in IDSA.
57. It was further submitted that the respondents have now only revealed that they had reckoned her two spells of service with them, i.e., deputation from 16.08.2000 to 27.09.2002, and contract service from 03.10.2003 to 28.09.2006, i.e., a total of 5 years of service, to consider her eligibility for the post of Director, and when this is seen in the light of Clause 12 (ii) of the NSCS RRs 2001, it can only mean that the respondents had treated the 5 years' period of her service with them, first on deputation from IDSA, and then on contract, as regular service, and they cannot now deny that to have been regular service. It was further submitted that since the respondents have admitted to have treated the applicant's previous service in IDSA since May 1994 as well as NSCS service with them as regular service, she has to be held to be entitled to all benefits, including absorption with R-1-NSCS w.e.f. 03.10.2003, and, therefore, eligible for consideration for promotion to the post of Joint Secretary as on 29.09.2009, or the applicable cut off date fixed as per rules after the said date.
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58. It was reiterated that though the respondents' orders (Annexure A- 2 to A-3) are supposedly based on internal consultation with DoP&T and Ministry of Law, but on the basis of incorrect and half baked facts, and are contrary to the respondents' own conduct vis-a-vis other officers, and its RRs, as well as against the settled law. It was reiterated that respondents have already promoted three officers by reckoning their contract service as regular service, but had denied to her similar treatment in respect of her appointment w.e.f. 03.10.2003 to the post of Deputy Secretary on similar contract basis, and also her further promotion vide appointment letter dated 29.09.2006 to the post of Director, both of which were proper appointments in the civil posts, duly notified in the Gazette of India. It was submitted that the applicant's contract of appointment was not a proper contract, under the Contract Act, but was subject to CCS Rules, and the applicant had all along enjoyed the appropriate status, which was extended to her, and continued unilaterally by the Govt. of India.
59. It was further submitted that her previous employment under IDSA was also as per the RRs of IDSA, against the permanent vacant posts, and it was wrong to state that her appointment dated 17.05.1994 in IDSA against a Group 'A' post of Research Officer was on contract basis, as, rather, it was a regular appointment, and was regulated by CCS Rules. It was submitted that though it was labelled as temporary initially for two years, upon successful completion of the probation period of one year, it was later continued, and the applicant had even earned her promotion also in the regular course, in the higher pay scale of 43 OA No.3963/2014 Rs.12000-18000, which was the promotion methodology in IDSA, and she was also granted all benefits attached to the higher pay scale and annual increments. It was submitted that as on 16.08.2000, when she was deputed to work with NSCS for a 2 years' period, the applicant was working in IDSA on a Group 'A' post of Research Fellow in the pay scale of Rs.12000-18000. It was submitted that IDSA being a sister organization of NSCS, it is a common practice in between both these organizations to depute officers to each other. In that process, the R-1 NSCS had first taken her on deputation against the post of Deputy Secretary, Govt. of India w.e.f. 16.08.2000, in the same pay scale as in IDSA, and she had served with NSCS for more than two years, till 27.09.2002, and such deputation appointment was made in compliance of the NSCS RRs of 2001, which provided for deputation/contract/absorption/re-employment as being the only modes of appointment in NSCS, and stating that R-1 NSCS had taken her services from IDSA on 'loan basis' was a travesty of justice.
60. It was further submitted that the respondent No.1 NSCS's reply creates a false impression as if she had resigned her Group 'A' appointment with IDSA without any reasons whatsoever, as if she was wandering about, when on 03.10.2003 R-1 NSCS had suddenly appointed her on the post of Deputy Secretary to the Government of India. It was reiterated that once she had returned from her first deputation with NSCS to IDSA, the superior officers in R-1-NSCS had initiated the process for her substantive appointment in NSCS against the permanent vacant post of Deputy Secretary, as per its RRs. The 44 OA No.3963/2014 recruitment process undertaken had included a written test, and an interview, both of which were held in May, 2003, and the applicant had successfully qualified. When only the formal approval of her appointment on the said post in the office of R-1-NSCS was under
process, she was asked to resign from IDSA, and to be ready to join the respondent R-1-NSCS's office.
61. It was further reiterated that though the applicant had tendered her resignation from IDSA on 08.08.2003, but she continued to serve IDSA till 30.09.2003, as per the service record and L.P.C. filed by her, and she was relieved by IDSA on 30.09.2003, and after the intervening holidays, she joined NSCS on the first available date on 03.10.2003 on the post of Deputy Secretary. It was further submitted that the IDSA order dated 30.09.2003, which had stated that her resignation had been accepted w.e.f. 10.08.2003, was contrary to the L.P.C. dated 29.09.2003 (Annexure A-26), and had in fact been never delivered to her, but must have been only kept in her personal file, which was sent to R-1 NSCS.
62. It was further reiterated that her promotion to the post of Director was also not in question for more than 10 years, and it was now only that the R-1 NSCS had started acting in a foul manner, to make a case of break in her continuous service, in order to be able to decline her request for promotion to the post of Joint Secretary. It was submitted that the stand of R-1-NSCS was inconsistent with the fact that she was not only on rolls of IDSA till 30.09.2003 as mentioned above, but also, as late as on 14.08.2003, the IDSA had even considered her proposal for foreign tour, and on 18.09.2003 the Director, IDSA had approved her leave 45 OA No.3963/2014 application dated 10.09.2003 for sanction of leave till 30.09.2003 (Annexure A-8 colly).
63. It was submitted that though in the matters of appointments, R-1 NSCS has been exempted from the purview of UPSC and DoP&T, but the RRs (Annexure A-12 & A-16) provide for peculiar manner of making appointments, i.e., only by modes of contract/deputation/absorption/ re-employment for the permanent Group 'A' posts, by searching for the suitable persons in a discreet manner. For promotions to higher posts also, the same mode is adopted, though a fresh contract of appointment is issued, while treating the same as promotion for all purposes. It was pleaded that it was only because of this that the R-1 NSCS had rightly treated the applicant's appointment dated 29.09.2006 on the post of Director as promotion, thus supporting her submission that her initial appointment dated 03.10.2003 itself was in the nature of a regular appointment, entitling her to all service benefits, and career progression.
64. It was further submitted that the Government of India's order dated 27.09.2011 (Annexure A-17) purportedly extending her contract appointment as Director for a period of one more year, w.e.f. 29.09.2011 to 28.09.21012, on the existing terms and conditions, was issued in exercise of its unilateral powers, on which the applicant has no control. It was, therefore, prayed that both her initial appointment as Deputy Secretary, as well as her promotion to the post of Director, were in the nature of regular appointments.
65. It was later on only, through the new RRs 2007, that in the eligibility conditions the words 'total continuous service' were inserted in 46 OA No.3963/2014 place of 'total service'. It was further submitted that respondents have not correctly quoted the RRs in respect of appointments to the posts of Joint Secretary, which had actually been produced by her by way of Annexure A-16 (at page 80 of the paper-book of the OA). It was submitted that since the R-1 NSCS is exempted from the purview of DoP&T/UPSC/Ministry of Finance guidelines, it had been taking its own decisions in an arbitrary manner, and in the cases of R-2 Shri Murlidharan Pillai and R-3 Miss Shweta Bakshi etc., they were regularized with their past contract service being reckoned for the purposes of promotion, without any reference to DoP&T or Law Ministry, and that the R-1 NSCS is now bound by its own precedents.
66. It was denied by the applicant that her employment with IDSA was only on contract basis throughout, and it was submitted that like other similarly placed employees, she would also have been eligible for pension under CCS (Pension) Rules, 1972, if she had continued in the IDSA. It was further submitted that it was wrong on the part of the respondents to say that as per the Guidelines for recruitment of officers in R-1-NSCS, absorption can only be done "in rare cases", and after completion of a minimum tenure of five years in NSCS in an outstanding manner, which Guidelines are not at all in existence, and which have not been adhered to by the R-1-NSCS in the past, and that the private respondent R-2 was admittedly not only absorbed in violation of those very Guidelines, cited, but not produced, but he has even been allowed to steal a march over her.
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67. It was further submitted that only when she started asking for her further promotion, and consideration of her case for the post of Joint Secretary, that the respondents had acted maliciously, and with bias, and had illegally issued an order dated 20.10.2014, ostensibly trying to correct their order dated 29.09.2006 issued eight years' back, just to be able to deprive her of her legal rights, and, therefore, the said order dated 20.10.2014 is non-est in the eyes of law, and has to be discarded, because changing the words 'promotion' to 'selection' in the order dated 06.10.2006 after a gap of more than eight years, through order dated 20.10.2014, is nothing but a mala fide attempt to deprive her of her legal rights.
68. The contention of the respondent No.1-NSCS that her previous deputation from IDSA to R-1-NSCS was 'on loan basis' was denied, on the basis of Annexure R-3 of the counter reply, wherein it has been clearly stated that she was deputed for a period of one year from 16.08.2000 and during the period of her deputation she was to draw her pay and allowances from R-1-NSCS. It was further submitted that the respondents have admitted that she was already holding an analogous post in IDSA, and that her candidature for appointment had been considered by treating her holding the analogous post of Research Fellow in IDSA on regular basis. Therefore, all the averments of the respondent No.R-1-NSCS, denying her the benefit of 09 years' Group 'A' service in IDSA, by taking the plea that it was on contract basis, were termed by her to be wrong.
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69. It was submitted that respondents have made a new revelation that the basis of her appointment to the post of Director on 29.09.2006 was her service with them in the grade of Deputy Secretary for five years, in two spells, of working on contract, i.e., firstly while on deputation from IDSA from 16.08.2000 to 27.09.2002, and secondly for three years of her holding the regular post of Deputy Secretary, in NSCS since 03.10.2003. It was, therefore, submitted that from this, it is apparent that the R-1- NSCS had in 2006 itself treated the applicant having rendered five years of regular service with them in the grade of Rs.12000-16500/-, only on basis of which she was found to be qualified for appointment to the post of Director in NSCS. Therefore, after having treated her deputation from IDSA with R-1-NSCS, and later service, though called as contract service, as regular service with NSCS for the purpose of her being qualified for appointment to the post of Director, now, at this stage, they cannot be allowed to take a turn, and deny to her the eligibility for the post of Joint Secretary, by reckoning her appointment dated 29.09.2006 as Director not as a regular appointment, and considering her to be eligible for being considered for the post of Joint Secretary on completion of her three years' tenure on 29.09.2009, in terms of 2007 RRs.
70. It was further submitted by the applicant that when the respondents had on 03.10.2003 considered her to have held analogous post in IDSA in the past, now that past service in an analogous post in IDSA cannot be discarded, due to an alleged break in service, which was not true. It was submitted that respondents have acted in a mala fide manner, and when she had first represented, and then served a legal 49 OA No.3963/2014 notice also claiming her rights, on the basis of the order dated 06.10.2006, which clearly stated that her appointment to the post of Director w.e.f. 29.09.2006 was on promotion, the respondent No.1-NSCS had no choice but to consider her candidature for the post of Joint Secretary, and just to deliberately deny her that, they had acted with bias, and had attempted to tamper with that order in the year 2014, more than 08 years later, and had now amended their order of 06.10.2006, which was patently illegal, and that the said amended order has to be held to be an invalid order. It was further submitted that the respondents have not denied the correctness and the applicability of the ratio of the Hon'ble Apex Court's judgment on the issue of continuous service, and the fallacy of respondent No.1-NSCS 's plea regarding an alleged break in service.
71. It was reiterated by the applicant in her rejoinder that she had become eligible for the post of Joint Secretary in October, 2011 itself, on completion of five years' of regular service as Director. The cases of the private respondents were, therefore, once again described by the applicant in her own manner, which we shall discuss and appreciate in an appropriate manner later. Particularly in the case of private respondent R-4 Shri Rohit Khera, the applicant had reiterated that it was an admitted case of the respondents that he had throughout worked at the residence of the Hon'ble Prime Minister, as Comptroller, in the grade of a Deputy Secretary, and that he had never been promoted on the post of Joint Secretary through any orders of DoP&T or ACC for such 50 OA No.3963/2014 promotion. It was further submitted that, therefore, his appointment in R-1-NSCS itself was in violation of NSCS RRs, as there is no provision for creating any vacancy through the permanent transfer of a post, as stated by R-1-NSCS, nor can an officer be said to be holding the post of Joint Secretary merely because he draws salary which falls in that pay scale. It was submitted that though he had already attained the normal age of superannuation, but till date he was still working on the post of Additional Secretary in NSCS.
72. The applicant had thereafter cited the Hon'ble Delhi High Court's judgment in the case of Juliana Loieau v. British High Commission,[ 2012 (130) DRJ 552] in which it had been held that the origin of every service of employment is an offer and its acceptance, which amounts to a contract, but when pursuant to such a contract the employment assumes a status akin to services under the Union and the States, and where the Statutes like Industrial Disputes Act, 1947, etc. intervene, or where the service is statutorily regulated, then it can be argued that the conditions of service would be governed by terms beyond the letter of offer, on terms whereof the appointment had been offered. Therefore, it was submitted by the applicant that since all the CCS Rules were made applicable to her after her accepting the offer of appointment, and the contract to define since the conditions of service went much beyond the letter of offer, on terms whereof the appointment was offered to her, and such rules were made applicable, her contractual employment assumed a status akin to services under the Union and the States. 51 OA No.3963/2014
73. Because the respondents have admitted that the terms and conditions as mentioned in the contract were nothing but prescribing the application or otherwise of the statutory rules, which may be framed and altered unilaterally by the Government without the consent of the employee, it was submitted by the applicant that that being so the contract appointment also fell within the provisions of Articles 309 and 311 of the Constitution of India. It was further submitted that the respondents had not denied that the law as laid down in Roshan Lal Tandon v. Union of India (supra) and UPSC vs. Girish Jayantilal Baghela (supra) would apply, more so because she had been appointed as per the RRs in vogue, and was also held to be entitled to all benefits of regular appointments. It was, therefore, submitted that the respondent R-1-NSCS's reply to the OA is false and baseless, and the averments made in the OA were reiterated.
74. In order to counter the detailed rejoinder submitted by the applicant, the official respondent R-1-NSCS filed a sur-rejoinder on 30.06.2015 denying that any discrimination or bias had been meted out to the applicant, as alleged. It was also denied that the DoP&T had termed the RRs of R-1-NSCS as vague, and it was submitted that DoP&T had only made certain observations in regard to the length of service in the lower grade prescribed for appointment as Joint Secretary, and had, therefore, asked for clarification/validation in consultation with the Ministry of Law & Justice, Department of Legal Affairs. It was submitted that the Ministry of Law & Justice had thereafter found the provision of 52 OA No.3963/2014 17 years' of continuous Group 'A' Service as correct for promotion to the post of Joint Secretary.
75. It was further submitted in this sur-rejoinder that NSCS is exempted from consultation with UPSC only, and wherever required, advice and approval of DoP&T, Ministry of Finance etc. is obtained in various matters, including recruitment.
76. It was further submitted that while reviewing the RRs of 2001, it was found that there was no provision for career progression of contract officers of R-1-NSCS who, could only be absorbed based on their outstanding performance, and, therefore, in the RRs of 2007 the clause regarding 'Promotion' was added, in order to benefit such exceptional officers who would otherwise have stagnated, and that the revised RRs of 2007 were issued with the approval of Hon'ble Prime Minister, DoP&T and Ministry of Law & Justice. The DoP&T opinion, as already mentioned in the counter-reply, was thereafter repeated. They had once again explained the cases of R-2 Shri Murlidharan Pillai, and R-3 Miss Shweta Bakshi.
77. It was further submitted that after her selection for appointment to NSCS, the applicant was asked to obtain a 'No Objection Certificate' from her the then employer, IDSA, stating that they have no objection to NSCS in considering her candidature, and that she would be relieved and sent on deputation in the event of her selection. However, since she could not obtain the requisite NOC from IDSA for her appointment to R-1-NSCS on deputation basis, therefore, she had resigned from IDSA, and had also availed all terminal benefits, including encashment of leave, from that 53 OA No.3963/2014 office, and it is incorrect of her to say that she had submitted the requisite NOC from the IDSA.
78. Her contention with regard to her appointment with IDSA having continued till 30.09.2003 was thereafter once again denied, and it was submitted that even the LPC issued by the IDSA on 29.09.2003 (Annexure A.26) is not relevant, as she had joined NSCS on a fresh appointment, on contract basis, after resigning from IDSA, and availing all terminal benefits. However, at the same time, it was admitted that she was holding an analogous post in IDSA on contract basis, because of which her candidature was considered, and she was appointed as Deputy Secretary in NSCS on contract basis w.e.f. 03.10.2003.
79. It was further reiterated by R-1-NSCS that though in the order of her appointment as Director issued in 2006, the word 'Promotion' had been included inadvertently, but the same order had also mentioned that her appointment was on the terms and conditions of service as laid down in the agreement of contract, and even her pay was fixed at the minimum of the pay scale of Director, and since the word "promotion" had been wrongly mentioned, that has since been modified on 20.10.2014, through Annexure R-13. It was further submitted that her appointment with IDSA was on contract basis as per her service records at Annexure R-2 and R-3 of the counter-reply of R-1-NSCS, which also goes to show that she had joined NSCS earlier "on loan basis", and not on deputation basis, and that she was relieved from IDSA w.e.f. 10.08.2003, and she had joined R-1 NSCS on 03.10.2003. Her contentions in regard to the 54 OA No.3963/2014 period in between, and that she was considered by IDSA for a foreign tour, or was sanctioned leave etc. were termed to be misleading, and not supported by any proper orders issued by the IDSA.
80. It was further submitted that appointing a person on contract/re- employment, as per RRs, against a regular post, does not bestow upon the incumbent the status of a regular Government servant, when the RRs themselves have a provision to appoint an individual on contract basis on those posts. All other averments, as already discussed in detail while discussing the counter-reply earlier filed were repeated. The averments made by the applicant in respect of handling of cases of the private respondents were also denied. An attempt was made by R-1- NSCS to argue the specific cases of private respondents, particularly that of R-4 Mr. Rohit Khera, which approach itself is per se impermissible as per law.
81. It was denied that irrespective of the mode of appointment, all officers are entitled to be at par in the matter of service, seniority and career progression. It was submitted that the officers of R-1-NSCS are appointed through various different modes, as prescribed in the RRs (earlier 2001 RRs, and now 2007 RRs), and they are all governed by either the Central Civil Service Rules, or All India Service Rules etc., and, therefore, the officers who have been appointed on contract basis, or on re-employment basis, cannot be treated at par in respect of matters relating to seniority and promotion, since the question of maintaining a single seniority list of such appointees, and promoting them to the next 55 OA No.3963/2014 higher grade, arises only after they have been absorbed, and that the seniority and promotions in respect of officers on deputation with R-1- NSCS is taken care of by their respective Cadre Controlling Authorities. Therefore, it was again prayed that the OA be dismissed with costs against the applicant.
82. All the four private respondents filed their separate counter-replies also. Private respondents R-2 to R-5 had in their written submissions dated 22.01.2016 submitted that they are not inclined to file any separate reply in the matter, and would adopt the counter-reply already filed by R-1-NSCS in the aforesaid OA. With this the pleadings were completed.
83. Heard. As already mentioned above, the case was argued in great detail on two dates of hearing. Thereafter, the learned counsels also submitted written submissions of their arguments. In the written submissions filed on behalf of the applicant, most of the arguments as advanced, along the lines of the OA and the rejoinder, were reiterated. It was further submitted that her previous Employer IDSA had actually forwarded her application for the post of Deputy Secretary with R-1 NSCS along with NOC itself, but, during the course of recruitment process of written test and interview conducted in August 2003, the R-1 NSCS had asked her to submit resignation from IDSA, if she was ready to join to the post of Deputy Secretary on a permanent basis. It was submitted that the applicant is a renowned research scholar, and she was assured by R-1-NSCS that though her appointment was being made 56 OA No.3963/2014 against a permanent sanctioned vacant post, initially the appointment order would be only for a contract of two years, and she was further assured that it was akin to regular appointment, along with reasoning given that the R-1-NSCS's RRs provide for appointment only through the modes of contract for new entrants, or otherwise on deputation for temporary appointments, absorption and re-employment etc. It was submitted that she had been further assured that she would be absorbed/given regular status from the initial date of her joining itself, by maintaining the seniority, as well as reckoning her past service in IDSA.
84. It was further reiterated that her appointment, which was Gazette notified also, came to be regulated under Articles 309 to 313 of the Constitution of India, and that she was even treated at par with regular Govt. Officers in the matters of Leave, LTC, Leave Salary, Travelling Allowances and all other entitlements/improvements sanctioned subsequently, as per DoP&T order dated 12.04.1985. It was further submitted that the fixity of tenure under the contract of appointment signed by her on 03.10.2003 was neither the essence of that contract, nor substantial to that contract, and that she had continued to be in service without any fresh contract being signed, merely by R-1-NSCS issuing administrative orders extending her tenure, and giving her the benefit of seniority/pay protection/increments.
85. It was further submitted that even though her appointment Order as Director stated such appointment to be on contractual basis for a 57 OA No.3963/2014 period of 5 years, it incorporated all the service conditions akin to regular appointments, and was also on a permanent sanctioned and vacant post, and was made by fully following the then prevailing RRs, and the word 'Promotion' had been correctly used, since it is settled law that promotion is an incidence of regular appointment. Her contention again was that all along she was under the impression that she has been selected under Clause 12 (iii) of the RRs for the post of Deputy Secretary, which impression has been shattered now only by the respondent No.1 NSCS stating on record that she was selected under Clause 12 (i) of the RRs, by treating her to have held analogous post on regular basis in her earlier parent organization-IDSA. Further, it was submitted that when for the purpose of counting the service requirement of 5 years for considering her case for promotion as a Director, the respondents had even counted her first deputation tenure with them (during her substantive appointment with IDSA) from 18.08.2000 to 27.09.2002, and had added to that the three years' contract tenure on the post of Deputy Secretary with them from 03.10.2003 to 28.09.2006, the respondents cannot be allowed to make a 'U' turn now, and to state that her appointment with her previous Employer IDSA, as well as her appointment with R-1 NSCS on the post of Deputy Secretary, and also on the post of Director, were never on regular service, when this Tribunal had in the case of Dr. S.D. Pradhan vs. NSCS (supra) already held that since during the period of his contract employment, Dr. Pradhan had been given several promotions, his contract employment was as good as the regular employment, since fixity of tenure was never indicated in the appointment on contract basis, and was not adhered to also. She had 58 OA No.3963/2014 sought shelter behind the observations of the Hon'ble Apex Court in Roshan Lal Tandon vs. Union of India (supra) followed in the case of UPSC vs. Girish Jayantilal Baghela (supra).
86. It was further submitted that when the R-1 NSCS had already admitted her past service with them (when she was an employee in IDSA, and was on deputation with them) in NSCS as regular service while considering her case for appointing/promoting her as Director, the intention and purpose behind the impugned order dated 12.04.2012 could not be elicited. Further reliance has been placed upon the Hon'ble Apex Court judgment in DTC vs. DTC Mazdoor Union (1991) 1 Suppl. SCC 600, and, in particulars paragraphs-223 to 225 and Para 264 of that judgment, which were reproduced in the written arguments submitted.
87. It was, therefore, reiterated that she is entitled to fair and just treatment with regard to her mode of appointment by absorption, and maintenance of her seniority over private respondent R-2. All other arguments, as already discussed, were reiterated, and it was submitted that if her Group 'A' service with IDSA is counted to compute 17 years of Group 'A' service, even counting the alleged gap of 01 month and 22 days, if not on 04.05.2011, she would have completed her 17 years of eligible experience at least on 26.06.2011, and, therefore, she should be considered eligible for the post of Joint Secretary as on 01.07.2011, as normally 1st of July is the cut off date for consideration of eligibility for promotions in R-1-NSCS.
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88. It was further submitted that the alleged break in her continuous service, a point which has been introduced by the respondents now only, is an afterthought, discriminatory and baseless, and without any meaning, and on the question of continuous service, reliance had once again been placed upon the judgment of the Hon'ble Supreme Court in the case of Banaras Hindu University Varanasi and Another vs. Dr. Indra Pratap Singh (supra).
89. It was reiterated that she was actually and factually relieved from the IDSA only on 30.09.2003, and had then joined on the post of Deputy Secretary with R-1-NSCS on the very next available working day, on 03.10.2003, and that there was no break in her continuous Group 'A' service, and merely because IDSA had passed an order behind her back, stating that she had been relieved retrospectively w.e.f. 10.08.2003, on a genuine error of overlooking her sanctioned leave upto 30.09.2003, the same cannot be raised as a ground to deny her continuity of service. The cases of the private respondents were once again discussed, which need not be repeated here once again.
90. In their written submissions, the respondent R-1-NSCS had once again denied the eligibility of the applicant for her absorption from the back date, i.e., on 03.10.2003, and the aspects of gap of 01 month and 22 days, and her availing of all terminal benefits, leave encashment etc. from IDSA were again mentioned. It was further reiterated that even though the applicant has claimed weightage of her past service rendered by her in IDSA, but since the DoP&T has opined that no such counting of 60 OA No.3963/2014 her past service is permissible, since that service was rendered on contract basis, and not on regular basis, and it cannot now be taken into account for counting of 17 years' continuous regular service. The applicant's contention regarding the order promoting her w.e.f. 29.09.2006 as Director was again denied, stating that the RRs of 2001 had no provision for promotion, which promotion had been included only in the revised RRs effective from 22.12.2007, and, therefore, it could not be held that she was promoted in 2006 as a Director, which was actually only a fresh contract appointment, and that the office order dated 06.10.2006, containing the word 'Promotion', already stood rectified vide order dated 20.10.2014 (Annexure R-13). It was, therefore, submitted that the applicant does not at all fulfil the eligibility criteria of 17 years of continuous Group 'A' Service, which is required for consideration of her case for the post of Joint Secretary. The individual cases of private respondents were thereafter once again discussed, which need not be repeated here once again.
DISCUSSION ON THE POINTS OF LAW INVOLVED
91. After having heard the case in great detail, we have given our anxious consideration to the facts and law concerning the instant case. The first thing which has to be decided is about the nature of employment into which the applicant had entered with R-1 NSCS from 03.10.2003. It is an admitted fact from both sides that her selection for that post was done as per the NSCS RRs of 2001 then in vogue for appointments to the posts of Deputy Secretaries of R-1 NSCS. The applicant has claimed that it was a regular and substantive 61 OA No.3963/2014 appointment, even though it was given effect to by way of her signing a contract for a period of two years, which was in the nature of an agreement, a copy of which has been produced by the applicant at Annexure A-10 of her OA.
92. It is seen that para-2 of that supposed contract agreement provided for that she may be required to devote her whole time to the duties assigned to her, and that she should at all times obey the Rules, including the Central Government Servants' (Conduct) Rules. Para-3 (iii) of that agreement even provided for 3 months' notice being required from either side for termination of that agreement, or 3 months' salary in lieu of notice from the side of the Government. Para-4 provided that in case of any misconduct by her, the applicant could be suspended. Para-5 provided for the scale of pay, DA, CCA etc. at the rates admissible under the Central Government Rules. Para-6 provided for the applicant being eligible to leave and leave salary etc. in terms of DoP&T OM dated 12.04.1985. Para-7 provided for the applicant to be entitled to Travelling Allowance in terms of Rules supplementary to Fundamental Rules. Para- 8 provided for her being entitled to receive the benefits of any improvement in the terms and conditions of her service. Para-9 provided for her pay and leave salary to be subject to any emergency cut that may be ordered by the Government. Para-10 provided for the provisions of CCS (CCA) Rules, and Rules made thereunder, and any Rules made and deemed to be made under Article 309 or continued under Article 313 of the Constitution to the extent to which they are applicable to the service, which she was joining, being applicable to her. That agreement had been 62 OA No.3963/2014 signed by the applicant and an existing Deputy Secretary, NSCS, and an Under Secretary being her two witnesses, and the Joint Secretary Dr. S.D. Pradhan signing on behalf of President of India, with his signatures also being witnessed and attested by the very same Deputy Secretary and Under Secretary, as witnesses on his behalf, who were the attesting witnesses of the witnesses of the applicant also. There were no independent/different witnesses who had attested to have been witnessed to the signatures affixed first by the applicant, and then by the said Joint Secretary, Dr. S.D. Pradhan, to that supposed contractual agreement.
93. The Gazette Notification at Annexure A-11 had clearly stated that the President is pleased to appoint the applicant as Deputy Secretary, NSCS, for a period of two years, or until further orders, whichever is earlier, and that Notification published in the Gazette of India Part-1 Section-2 did not have any cross reference or mention of such appointment being subject to an appointment agreement (Annexure A-
10). This Gazette Notification, therefore, was the last nail in the coffin of the supposed contract agreement signed on 03.10.2003 by the applicant and a Joint Secretary of NSCS, in the absence of any independent different witnesses attesting to the veracity of the agreement having been signed by the applicant out of her own free will.
94. It is trite law that any appointment is given effect to by an employer through an offer of appointment, which, as held by the Hon'ble Supreme Court in "Roshan Lal Tandon" (supra), is in the nature of contract 63 OA No.3963/2014 employment. Like in every contract, even in the case of a contract for public employment, the offer of appointment made to a candidate sought to be employed, and his/her acceptance of that offer, form the basis of his/her appointment, enabling him to join against the post for which he/she had been selected. Such an appointment is made against a vacancy, and in a post, and this positive and deliberate act of engagement creates a relationship of an employee and the employer in between the two parties, and is the starting point in the career of every public servant in public employment. Such appointment confers a status, and ensures all the rights attached to public service, including confirmation, seniority, promotion and so on. It was held by the Hon'ble Supreme Court in "Roshan Lal Tandon" (supra), that once appointed to his post or office, the Government Servant acquires an status, and his rights and obligations are no longer determined by the consent of both parties, but by statute or statutory rules, though these rules may be framed and altered unilaterally by the Government.
95. As has been held by the Hon'ble Punjab & Haryana High Court in the case of Basant Lal Malhotra vs. State of Punjab & Ors. AIR 1969 (P&H) 178, an appointment means an actual act of posting a person to a particular office. The same position of law was later upheld by the Hon'ble Supreme Court in the case of Prafulla Kumar Swain vs. Prakash Chandra Misra & Others 1993 SCC (L&S) 960, when it was held that an appointment means an actual act of posting a person to a 64 OA No.3963/2014 particular office, and anything short of it cannot be construed as an appointment.
96. On the other hand, the law is also very well settled in respect of a purely contractual employment. An employment can also be purely in the nature of contractual employment, and, unless it is governed by a statute or Statutory Rules, it was held that the Indian Contract Act would not only be applicable to the formulation of the contract, as also to the determination thereof, as was held by the Hon'ble Supreme Court in the case of Bank of India vs. O.P. Swarankar AIR 2003 SC 858=(2003) 2 SCC 721.
97. However, the concomitants of a purely contractual employment with the Government were most clearly explained and laid down by the Hon'ble Supreme Court in the case of UPSC vs. Girish Jayantilal Baghela (supra), which the applicant has produced at Annexure A-23 of her OA. In that judgment, the Hon'ble Supreme Court was dealing with the case of a person who was appointed as a Drugs Inspector purely on ad hoc or contractual basis, and that appointment was meant to come to an end automatically, with the efflux of time, after which the person holding that contractual appointment/post was not to have any right to continue in that post, even though the concerned person may have been continued from time to time on similar ad hoc basis, beyond the initially prescribed contractual period. In that case, it was held by the Hon'ble Supreme Court that when a person is employed purely under a contract, it is only that the contract alone which would govern the terms of appointment of such contractual employee in respect of his service, and 65 OA No.3963/2014 not the rules framed under Article 309 of the Constitution, governing the process of selection and conditions of service to the post on which he was employed.
98. In the instant case before us, it is not so. Both the sides are ad- idem on the point that the process of selection of the applicant was conducted as per the RRs of the year 2001 as applicable for the post concerned, and that it was not as if she had been randomly picked up for appointment only for a limited period. Further, the Hon'ble Supreme Court had in the above cited judgment "U.P.S.C. vs. Girish Jayantilal Baghela (supra) laid down the tests which distinguish a purely contractual employment from a regular and substantive employment. It was found by the Hon'ble Supreme Court that the respondent in that case did not have any right to continue as Drugs Inspector after expiry of the six months' period, for which alone he had been initially appointed. His contractual appointment for the six months' period was de hors all the Rules, and, in particular, the RRs for the posts of Drug Inspectors had not been followed in making his selection for that six months' contractual appointment period. It was, therefore, held by the Hon'ble Supreme Court that his appointment was not made in a manner which could even remotely be said to have complied with the requirements as laid down under Article 16 of the Constitution. Therefore, his appointment being purely contractual, it was held that the stage of his acquiring the status of a Government servant had never arrived. 66 OA No.3963/2014
99. When we apply those tests to the instant case, it is seen that the actual Gazette Notification, issued in the name of the President, through Annexure A-11 dated 08.12.2003, which was published in the Gazette of India Part-1 Section-2, had in every manner conferred upon the applicant the status of the holder of a Gezetted civil post, and that Notification had been issued without any reference to the "agreement" (not a "contract"), which the respondents had made her sign on 03.10.2003, as per Annexure A-10 of the OA. In fact both Annexures A- 10 and A-14 have been titled as "Agreement", & have not at all mentioned to be in the nature of a "Contract". Therefore, it is clear that in the instant case the applicant had acquired the status of a Gazetted Government servant from day one, i.e., 03.10.2003, the day she joined the R-1-NSCS as a Deputy Secretary. All the arguments of the R-1-NSCS to the contrary, which had been adopted in toto by the private respondents R-2 to R-5 also are, therefore, rejected as being without any legal basis whatsoever.
100. Enumerating the concomitants of a contract in the case of UPSC vs. Girish Jayantilal Baghela (supra), the Hon'ble Supreme Court had noticed that:-
i) While working as a contractual employee, the respondent was not governed by the relevant Service Rules;
ii) That the respondent did not enjoy even the privilege of availing casual or earned leave.
iii) That the respondent was not entitled to avail the benefit of General Provident Fund 67 OA No.3963/2014
iv) Nor was the respondent entitled to any pension (which are normal incidents of a Government service).
v) It was also noticed by the Supreme Court that the respondent could neither be placed under suspension, entitling him to a subsistence allowance,
vi) Nor could the respondent be transferred anywhere in India.
vii) It was further notified that some of the minor penalties, which can be inflicted on a Government servant, while they continue to be in Government service could also not be imposed upon, the respondent of that case; and
viii) Lastly, he was not entitled to any protection under Article 311 of the Constitution.
101. Testing the present applicant's case on the touchstone of these eight concomitants of a purely contractual appointment, bereft of any status as a Government servant, the case of the present applicant certainly cannot be held to be that of having been only a contractual employee of the respondent No.1 NSCS, because of the very nature of the process of her appointment, and her acquiring the status of holder of a Gazetted civil post, which was duly Gazette notified through the Gazette Notification 08.12.2003 (Annexure A-11), which itself was sufficient to bring her case totally beyond the status of "a purely contractual employee", as was the case in the case of UPSC vs. Girish Jayantilal Baghela (supra), and more particularly so because the Gazette Notification nowhere mentioned her employment to have been made on contractual basis.
102. It is also clear that she had been recruited through the due process as prescribed under the RRs 2001, that she was not randomly picked up from the streets, that she was considered to be already holding an analogous post in IDSA, that she was subject to all the Service Rules & 68 OA No.3963/2014 Regulations, as well as entitled to all protections under Article 309 to 313 of the Constitution, that she was entitled to take Casual Leave as well as leave of all other kinds as applicable to the Central Govt. employees; that she could have been placed under suspension, and would then have been entitled to Subsistence Allowance; that she could have been transferred or deputed on duty, or on tour anywhere in India, and any disciplinary action could have been taken against her.
103. Further, the Hon'ble Supreme Court has in the case of Satish Chandra Anand vs. Union of India, AIR 1953 SC 250 held that State can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who chose to accept those terms and enter into the contract are bound by them, even as the State is bound. Here, in the instant case, there was no "Contract" as such, but only an "Agreement" binding down the applicant to all Service Rules & Regulations etc., none of which were inconsistent with the Constitution. Therefore, in turn, the State, being the Govt. of India here, was also bound by the status conferred upon the applicant by them after such appointment.
104. In the case of Manager, M/s. Pyarchand Kesarimal Porwal Bidi Factory vs. Onkar Laxman Thenge, 1969 (2) SCR 272: AIR 1970 SC 823, the Hon'ble Apex Court has held that a subsisting contract of service with one master is a bar to service with any other master unless the contract otherwise provides, or the master consents. A contract of employment involving personal service is incapable of transfer. 69 OA No.3963/2014 Therefore, after the R-1 NSCS had secured its relationship of being the applicant's Master by asking her to come and join her services with them after serving her earlier Employer-Employee relationship with the IDSA, it cannot now be allowed to shirk from its responsibilities after having stepped into the shoes of being the applicant's Master, and deny any Employer-Employee relationship, which is much different than that in the case of purely contractual employees.
105. The position of civil service and civil servants is different in U.K. Law and the Indian Law. Regarding the U.K. Law of Crown Service, in the Commentary on Administrative Law by the Late Sir William Wade as per the 11th Edition, 2014, Edited by H.W.R. Wade & C.E.F. Forsyth, the following legal position prevailing in U.K. may be mentioned:
"The Law of Crown Service Nature of Crown Service Crown service is one of the most curious departments of public law. In most other democratic countries the position and rights of state employees from an important branch of administrative law, and the tenure of posts in the civil service gives rise to many questions for the courts, whether they be ordinary courts of law or special administrative courts. In England the position is different. The civil service despite its great size and importance, is largely staffed and regulated under arrangements which are legally anomalous. It has generally been held that at common law civil servants of the Crown, and military servants also, have no legal right to their salaries and no legal protection against wrongful dismissal. Although recently the picture has changed substantially, the law has long regarded the civil service as if it still consisted of a handful of secretaries working behind the scenes in a royal palace. Although it has lost its domestic character in every other respect, it is still in a primitive state of legal evolution.
Another paradox is that in practice the situation is just the opposite of what these legal rules would suggest. Crown service, though legally the most precarious employment, is in reality the most secure. This is merely convention, but in the civil service 70 OA No.3963/2014 the convention is deeply ingrained, so that there are probably better grounds for complaining that civil servants are excessively protected than for criticising their defencelessness in law. Even when a public inquiry reveals serious failings in the conduct of civil servants, they are rarely dismissed.
Crown servants of all ranks are in law the servants of the Crown and not of one another. A civil servant therefore has no contractual rights against his department, his minister or any superior officer. Whoever engages him acts merely as the Crown's agent, and his contract of employment is directly between himself (as servant) and the Crown. Any remedy must therefore be sought against the Crown alone.
Tenure: No Protection at Common Law The best-known decision on the legal insecurity of civil service tenure concerned the dismissal of a consular agent in Nigeria. He had been engaged for a term (as he said) of three years certain, but was prematurely dismissed. He sued the Crown by petition of right, but the Court of Appeal refused him relief, holding that it is not competent for the Crown to tie its hands by such a contract (with a civil servant).
The basis of the rule that Crown servants are dismissible at pleasure, therefore, is the principle that the public interest requires that the government should be able to disembarrass itself of any employee at any moment. All the emphasis was on public policy. There was no suggestion that the rule had any connection with the royal prerogative.
The rules so laid down was followed in later decisions. Yet the reasons put forward for this policy will not really bear examination. Any employer can always dismiss a servant: the only question is whether, if he does so, he should pay damages for breach of contract. No master can be compelled to employ a servant, any more than a servant can be compelled to serve a master. The argument that the Crown could not otherwise relieve the public of an undesirable servant therefore falls to the ground., It may be said that the Crown should not be put in the dilemma of ignoring the public interest or else committing a breach of contract-for a breach of contract, despite Mr. Justice Holmes's famous theory to the contract, is a wrongful act. But to that it can be answered that it is of even greater importance that engagements expressly entered into should at least be honoured in the breach, if not in the observance. The Crown should be an honest man, and if driven to break its contract ought to pay damages, as it does for breach of other contracts. Yet the latest decision has confirmed that civil servants can be dismissed at will.......................".71 OA No.3963/2014
(Emphasis supplied)
106. But, further, while discussing the common law on powers of the Crown, the learned Author (and Editors) had opined as follows:
"Common Law Powers of the Crown As adumbrated, the Crown as a corporation sole has all the powers of a natural person and may enter into contracts and own and convey land and do all the many other things its subjects may do (as just explained, these are sometimes inaccurately called 'prerogative powers'). These are considerable powers in many circumstances and they are generally exercised by ministers on behalf of the Crown. Ministers are, of course, responsible to parliament for their exercise and that exercise is subject, when appropriate, to judicial review. Moreover, elementarily, such common law powers cannot be exercised inconsistently with a statute. Equally elementarily, the exercise of these powers is 'circumscribed by public law'. Some consider that it is 'illegitimate' for any exercise of power by ministers not to rest on parliamentary authority, but the common law powers of the Crown have existed for centuries and have been upheld times in recent years."
(Emphasis supplied)
107. However, at the same time, while discussing the realms beyond the law, the learned Authors opined as follows:
"Consensual submission' may not necessarily mean the acceptance of specific contractual obligations, as opposed to voluntary participation or activity. Contractual obligations belong to private law, so that where the only rights asserted are covered by such obligations, judicial review will be refused. For this reason many commercial, social and sporting associations will lie outside the field of public law."
(Emphasis supplied)
108. Thus, while discussing the liability of the Crown in U.K. in the case of Contracts, the learned Authors opined that the Crown is free to make 72 OA No.3963/2014 contracts without statutory authority since it enjoys the power of a natural person, they further opined that contracts of service with public authorities rest on the same 'ordinary law' basis as other contracts, except in the case of the Crown. However, the position is entirely different in the case of India. Under the Indian Constitution, the President, or the Governors of the States, are free to act and enter into contracts which are not in consonance with Part XIV of the Constitution, relating to Services under the Union and the State, consisting of Articles 309 and 311 of the Constitution. Further, regulation of recruitment and prescribing conditions of service of persons appointed to public service and civil posts in connection with the affairs for the Union, or of any of the State, has to be done only under Article 309 of the Constitution, in accordance with the Rules made under the Authority of that Article & its Proviso, regulating such recruitment, and conditions of service of persons appointed to such services and posts, subject to the protection made available to the persons so employed in civil capacities, either under the Union, or under a State, under Article 311 of the Constitution, even though Article 310 lays down that except as expressly provided by the Constitution, every person who is a member of a defence service or of a civil service of the Union etc., or holder of any civil post etc., holds office during the pleasure of the President, or the pleasure of the Governor of the State, as the case may be. But, such pleasure of the President, or of the Governor, would still be bound by the Rules made under Article 311 of the Constitution regarding dismissal, removal or reduction in rank of such persons.
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109. Under Article 309, read with the proviso below Article 320 (3) concerning the functions of the Public Service Commission, while it is possible to prescribe that in respect of some posts and service regulations may be made either generally, or in any particular class of case, or in any particular circumstances, that it shall not be necessary for the appropriate Public Service Commission to be consulted regarding matters relating to the method of recruitment to a particular Civil Service, or for a particular category of civil posts concerned, however, this does not absolve the Executive from the rigours of Articles 309 and 311 of the Constitution, and the protection available to the holders of civil posts under Article 311 of the Constitution of India. In the instant case it is clear that IDSA also fell under the definition of the State for the purposes of Article 12 of the Constitution, and that R-1 NSCS certainly is covered under that Article. Therefore, R-1 NSCS cannot be absolved from the rigours of Article 311, even in spite of the exemption granted to it under Article 320 (3).
110. Therefore, it is clear that in the instant case, the respondents have on the one hand appointed the applicant to be a holder of a civil post, and even issued a Gazette notification to that effect, as such declaring her to be the holder of that civil post, but, on the other hand, they have also taken recourse to forcing her to sign an "Agreement" of service, containing a number of conditions, as already discussed above, but which conditions also only work towards more closely defining the character of her employment to be that of a holder of a civil post, because of those conditions having borrowed and brought into effect the 74 OA No.3963/2014 applicability of CCS (Conduct) Rules, CCS (CCA) Rules, and other parallel Service rules concerning the Central Civil Services of the Union of India to the applicant's appointment with them. Therefore, we have no hesitation in holding that the "Agreement", which has been termed by R-1 NSCS to have been a "Contract", was only a charade or a facade, designed more to try to hide the true nature of the applicant's employment with R-1-NSCS.
111. In fact, the fact that the so-called "contract" "Agreement" dated 03.10.2003, entered into between the applicant and the President of India, was a sham, and non-est in the eyes of law, is further signified by the fact that both the witnesses who had signed as witnesses for the applicant, and as witnesses for the signature of Dr. S.D. Pradhan, Joint Secretary to the Govt. of India in NSCS, were the same, and both were employees of R-1 NSCS. This agreement having been attested to twice by the same witnesses, both for the applicant, as well as for the Joint Secretary signing on behalf of the President of India, who had signed twice for having been witnesses for both sides, is totally unacceptable in law. The "Agreement" having been signed by the same witnesses from both the sides flies in the face of the law relating to the Law of Contract, and the law relating to Law of Evidence in relation to contracts.
112. Though in the context of different Acts, like the Transfer of Property Act, the Registration Act and the Indian Evidence Act, it has been held by the Hon'ble Supreme Court that the attestation required as a proof of 75 OA No.3963/2014 execution of document is required by law to be attested under Section 68 of the Indian Evidence Act, and its importance is such that the object of such attestation is to protect the executant from being required to execute a document by the other party thereto by force, fraud or undue influence. It has been further held that such attestation is meant to ensure that the executant of the agreement was a free agent, and not under pressure, or subject to fraud, while executing the document concerned.
113. It has been further held that the object of placing more attestation than one upon a document, whether at the parties' voluntary instance, or by requirement of law, is ordinarily not for the purpose to demand the combined testimony of all of them at the trial, but merely to provide by way of caution a number of witnesses, so that the main object of various Statutes, requiring the attestation to be such that an element of validity has to surround the act of execution, is achieved, with certain safeguards.
114. The Hon'ble Supreme Court has held in the case of M.L. Abdul Jabbar Sahib v. H. Venkata Sastri and Sons and others etc. [AIR 1969 SC 1147] that the act of attestation must be done by a witness animo attestandi, i.e., "with the intention to attest", who should not only be present at the time for affixing their signatures on the document while it was being executed, but that the attesting witness must see that the executants actually signed of freewill, and it must also be shown that the attestor had signed the documents in the presence of the executants. In 76 OA No.3963/2014 the instant case, the manner in which two witnesses had signed as having been witnesses to the signatures on the "Agreement" of both the applicant, and of the Joint Secretary of NSCS signing on behalf of the President of India, it cannot be elicited and held that the Agreement was indeed signed by the applicant free from any undue influence, or out of the free will of the applicant before us.
115. That is why, the law requires more than one attestation of witnesses from either side, and at least one attesting witness from each side who is capable of giving evidence of the signature having been affixed out of free will, which is a necessary concomitant for the execution of a valid contract "Agreement" to ensure that the executant was a free agent, and was not under any pressure of any kind while executing the document. The execution of an "Agreement" means not only signing of the Agreement by a person on the document, but also the attestation of his signature having been made out of free will, by attesting witnesses, where it requires such attestation. It is, therefore, clear from the facts of the instant case that after the applicant had joined service with the respondent No.1-NSCS on 03.10.2003, she was perforce made to sign the "Agreement" as at Annexure A-10, even though that "Agreement" is of no consequence when tested on the touch-stone of the requirements of a valid "Contract".
116. Similarly, the "Agreement" made on 29.09.2006 (Annexure A-14) at the time of applicant's promotion to the post of Director was also signed by the applicant and one Shri Rohit Khera, Joint Secretary on 77 OA No.3963/2014 behalf of the President, who is incidentally private respondent R-4 of this O.A., and both signatures were again witnessed by the same set of two witnesses, both of whom were Directors working under the Joint Secretary, who was the executant on behalf of the President of India. Therefore, had this been a civil case, none of these two "Agreements" Annexure A-10 dated 03.10.2003 and Annexure A-14 dated 29.09.2006 would have stood the scrutiny of being as per the Law of Contracts, and Law of Evidence. Therefore, insofar as the nature of the applicant's appointment with the respondents is concerned, it is clear that from day one, i.e., 03.10.2003, she was a holder of a civil post in R-1 NSCS, which was properly Gazette notified also, and when she was promoted as Director again, she continued to be a holder of a civil post, which promotional appointment of hers was also properly Gazette notified, and the respondent R-1 NSCS cannot be allowed to hide behind the sham "Agreements" at Annexures A-10 and A-14, to try to pass off her employment with them as having been contractual employment, when the employment had all the trappings of a substantive appointment, or appointment to a Gazetted civil post of appropriate stature.
117. The respondent R-1 NSCS has desperately tried to make out a case as if her appointment was only a contractual employment, and was not a substantive employment. But it is seen that she was even placed on probation in her employment to the civil post under the Union of India, which employment can only be in three manners, viz. (i) permanent employment, subject to a period of probation, followed by confirmation as probationer, and thereafter the appointee acquiring a substantive lien, (ii) 78 OA No.3963/2014 appointment in a temporary service, under the Central Civil Services (Temporary Service) Rules, 1965, or, (iii) appointments "purely on contractual basis", without any trappings whatsoever of the appointee being a Government servant, which contractual employees never get to become the holders of a civil post.
118. As we have pointed out above, even though the Gazette Notification dated 08.12.2003 had mentioned that the President had appointed the applicant as Deputy Secretary with R-1-NSCS on contract basis for a period of two years, or until further orders, whichever is earlier, but through the Agreement executed on 03.10.2003, all the trappings of her being the holder of a civil post were attached to her employment. It is also not the case of the respondent R-1 NSCS that she was appointed under the CCS (Temporary Service) Rules, 1965.
119. It may be pertinent to mention here that removal from service of a temporary government servant, who is not in quasi permanent service, is easy, as it is liable to termination at any time, by notice being given in writing (by the Government servant to the Appointing Authority, or by the Appointing Authority to the Government servant), the period of such notice being one month, as per Rule-5 (1)(b) of CCS (Temporary Service) Rules, 1965. The concomitants of Temporary Service appointments under fixed period temporary service made under proviso to Rule 5(1)(b) of the Rules vis-a-vis substantive appointments were examined by the Hon'ble Supreme Court in Union of India and others v. Arun Kumar Roy (1986) 1 SCC 675, and it was held that when once Service Rules have been framed under Article 309, the Rules so framed govern the 79 OA No.3963/2014 service after appointment, and that they override the term of any contract, which is not in consonance with the said Rules. It was further held that any Subordinate Legislation by way of Notification, clarifying the operation of Statutory Rules, cannot override the Statutory Rules themselves. The said Rule-5 of the CCS (Temporary Service) Rules, 1965 was first interpreted by the Hon'ble Apex Court in the case of Senior Superintendent, R. M. S., Cochin V. K. V. Gopinath (AIR 1972 SC 1487=(1972) 3 SCR 530. However, that judgment was declared not to be a good law through the Supreme Court's subsequent judgment in the case of Raj Kumar vs. Union of India, [1975] 3 S.C.R. 963=AIR 1975 SC 1116. After taking notice of these two judgments in Union of India and others v. Arun Kumar Roy (supra), the Hon'ble Supreme Court had held as follows:-
"17. The question whether the terms embodied in the Order of appointment should govern the service conditions of employees in. Government service or the rules governing them is not an open question now. It is now well settled that a Government servant whose appointment though originates in a contract, acquires a status and thereafter is governed by his service rules and not by the terms of contract. The powers of the Government under Art. 309 to make rules, to regulate the service conditions of its employees are very wide and unfettered. These powers can be exercised unilaterally without the consent of the employees concerned. It will, therefore, be idle to contend that in the case of employees under the Government, the terms of the contract of appointment should prevail over the rules governing their service conditions. The origin of Government service often times is contractual. There is always an offer and acceptance, thus bringing it to being a completed contract between the Government and its employees. Once appointed, a Government servant acquires a status and thereafter his position is not one governed by the contract of appointment. Public law governing service conditions steps in to regulate the relationship between the employer and employee. His emoluments and other service conditions are thereafter regulated by the appropriate statutory authority empowered to do so. Such regulation is permissible in law unilaterally without reciprocal 80 OA No.3963/2014 consent. This Court made this clear in two Judgments rendered by two Constitution Benches for this Court in Roshan Lal Tandon v. Union of India, (1968) 1 SCR 185 : (AIR 1967 SC 1889) and in State of Jammu & Kashmir v. Triloki Nath Khosa, (1974) 1 SCR 771 : (AIR 1974 SC 1).
18. Thus it is clear and not open to doubt that the terms and conditions of the service of an employee under the Government who enters service on a contract, will, once he is appointed, be governed by the rules governing his service conditions. It will not be permissible thereafter for him to rely upon the terms of contract which are not in consonance with the rules governing the service.
19. The powers of the Government under Article. 309 of the Constitution to make rules regulating the service conditions of the government employees cannot, in any manner, be fettered by any agreement. The respondent cannot therefore, succeed either on the terms of the contract or on the notification on which the High Court has relied upon. Nor can he press into service the rule of estoppel against the Government.
20. Now, we may usefully advert to clause. (v) of para 2 of the Order of appointment. This clause reads as follows :
"Other conditions of service will be governed by the relevant rules and orders in force from time to time."
21. This clause was inserted by way of abundant caution making it clear that the conditions of service will be regulated by the rules, obtaining from time to time regarding the service in question."
(Emphasis supplied)
120. As was held in Paragraphs 18 & 19 of the Hon'ble Supreme Court's judgment in the case of Union of India and others v. Arun Kumar Roy (supra), even in the case of an employee under the Government, who enters service on a contract, the terms and conditions of service of the employee will, once he was so appointed, be governed by the rules governing his service conditions, and it will not be permissible thereafter (either for him, or for the Government) to go back to and rely upon the terms of the contract, which are not in consonance with the rules 81 OA No.3963/2014 governing the service, since the powers of the Government under Article 309 of the Constitution to make Rules regulating the service conditions of the Government employee cannot in any manner be fettered by any agreement. Here, in the instant case, it is the other way round. After having bound the applicant with all the fetters of the Service Rules and Regulations from the day 1, i.e., 03.10.2003, it is the Govt. of India which is trying to go back and to try to turn the clock back, to the detriment of the applicant's accrued rights.
121. In Para-12 of their counter reply, respondent No.R-1 NSCS has submitted two things, firstly that the RRs 2001 prevalent in 2006 did not have any provision for promotion, and secondly that as per the Guidelines for recruitment of officers in NSCS, absorption can be done only "in rare cases", and after completion of a minimum tenure of 5 years in an outstanding manner. We find both these submissions to be entirely against the well settled and laid down principles of Administrative Law. When once the 2001 RRs had been prescribed by the respondents (through Annexure A-12 dated 16.02.2001), that was in the nature of a Subordinate Legislation. Thereafter the respondents cannot have, and cannot take recourse to, any purported Guidelines, which have neither been brought on record by them, nor could have been issued in supersession of the Subordinate Legislation issued through the General Statutory Regulation No.97 dated 16.02.2001. After the RRs 2001 had been framed and notified, keeping of any element of discretion in their drawers in the form of any Secret and undisclosed Guidelines is 82 OA No.3963/2014 both illegal, as well as totally abhorrent to all tenets of law. RRs could have been, however, amended, which was actually done in 2007.
122. The submission of the respondents that the RRs did not have any provision for promotion is also not acceptable, as the Hon'ble Supreme Court has repeatedly held that consideration for promotion is a fundamental right of any holder of a civil post, if a promotional post exists, and the R-1 NSCS has failed to deny that the promotional post of Joint Secretary does exist.
123. The contention of the respondents that absorption can only be done "in rare cases" is also completely unacceptable. This smacks of an element of discretion, without following any prescribed Rules or Regulations, or the prescription of any cut-off or qualifying criteria like 'Very Good' in CRs of so many years out of so many years, or 'Outstanding' in CRs of so many years out of so many years. It is trite law that administrative discretion is abhorrent to the Rule of Law, and the R-1 NSCS cannot be allowed to plead that without prescribing any qualifying standards as per Rules, they can have and keep an administrative discretion in their pockets, to take a decision to absorb certain persons, "in rare cases", and not to absorb all others, even if they are also holders of civil posts, and had performed well, when no such benchmark for performance has been prescribed under the Rules for determination of those "rare cases". Stating that absorption could have been done "in rare cases" further discloses the propensity on the part of R-1 NSCS to take recourse to a discretion de hors the RRs, which 83 OA No.3963/2014 in itself is a blasphemy. As was held by the Hon'ble Supreme Court in E.P. Royappa vs. State of Tamil Nadu: AIR 1974 SC 555, equality and equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch, and that the principle of equality enshrined in Article 14 must guide every state action, whether it be legislative, executive, or quasi-judicial (Meneka Gandhi vs. Union of India:
(1978) 1 SCC 248,) and Ajay Hasia vs. Khalid Mujib Sehravardi and Others (1981) 1 SCC 722.
124. It has been further submitted in the counter reply of R-1 NSCS that respondents have the sole discretion to decide regarding the cases for absorption, which also cannot be the case, because the term "absorption" is only used in the cases of deputationists, or persons holding their lien in another organization, and who have moved to the borrowing organization, where they are sought to be so "absorbed".
"Absorption" can also be used in the case of contractual employees, and Temporary Service employees. But then, as we have discussed above, the appointment of the applicant with R-1 NSCS w.e.f. 03.10.2003 was neither "purely contractual", nor was it under the CCS (Temporary Service) Rules, 1965, and that it already had all the trappings of a substantive employment (with even a period of Probation having been envisaged). Therefore, at least in the case of the present applicant, the very term "absorption" had lost its meaning altogether, when she was already substantively employed after her selection in a proper manner, as per the RRs and she was holding her post in her own right.84 OA No.3963/2014
125. The meaning of the word 'absorption' had been discussed in the case of Dev Dutta vs. State of Madhya Pradesh [(1991) Supp2 SCC 553] in Paragraph-8 of the judgment as follows:-
"8. Now coming to the question of seniority, the term "absorbed"
in Service Jurisprudence with reference to a post in the very nature of things implies that an employee who has not been holding a particular post in his own right by virtue of either recruitment or promotion to that post but is holding a different post in a different department is brought to that post either on deputation or by transfer and is subsequently absorbed in that post whereafter he becomes a holder of that post in his own right and loses his lien on his parent post. No one asserts that the instant one was a case of the absorbed Sales Tax Inspectors being initially sent on deputation from the post of Block Level Extension Officer to the post of Sales Tax Inspector and being subsequently absorbed in that post. Consequently, when as pointed out by the High court, it was not disputed that the surplus Block Level Extension Officers had been absorbed in the post of Sales Tax Inspectors it is obvious that it was a case of absorption by transfer. In this connection it would be useful to recapitulate that the minutes of the meeting referred to above held on 30/09/1965 laying down the principles of procedure for absorbing the surplus personnel specifically stated that the surplus staff which was to be "absorbed" "should be treated as having been transferred from one post to another so that there may be no break in their service".
(Emphasis supplied)
126. In fact it is true that the vagueness in the 2001 RRs of the R-1 NSCS had been very clearly pointed out by the DoP&T itself in its Noting dated 21.03.2014, produced by the respondent themselves at Annexure R-12. The R-1 NSCS has also falsely stated that there was no provision for promotion in the RRs, since it was not clearly spelt out in the 2001 RRs, but as per the RRs of 2007, produced by them as Annexure R-11, promotion is certainly one of the methods for appointment of the Joint Secretaries, of the Directors and of the Deputy Secretaries, as per the RRs Gazette notified on 22.12.2007. Therefore, the total absence of any possibility of promotions under 2001 RRs cannot be appreciated, when 85 OA No.3963/2014 the clarity has not come even after 2007 RRs. The DoP&T Noting dated 21.03.2014, submitted by the respondents at Annexure R-12, had stated as follows:-
"8. In the present case, it seems that the eligibility requirement of total continuous service of 17 years is specified for the officer in PB 3 GP Rs.7600 for being considered for promotion to the post of JS in NSCS. Other eligibility criteria in respect of officers of NSCS having 2 years regular service in PB-4 GP Rs. 8900, or 3 years regular service in PB 4 GP Rs.8700 for being eligible to JS appear to be separate provisions. This interpretation is logical from the provisions prescribed for deputation of this post. It prescribes that the officers in PB 3 GP Rs.7600 with total continuous Group A service of 17 years is eligible for being considered for appointment to the post by deputation/absorption. Due to vagueness of the provisions of the RRs, this interpretation needs to be clarified/validated in consultation with M/o Legal Affairs.
9. NSCS may accordingly decide the eligibility of the officer to the post of HS DoP&T may not have any further comments in the matter".
(Emphasis supplied)
127. When the respondents have themselves framed their RRs in a vague manner, both in 2001 and in 2007, and not in accordance with the settled principles of Administrative Law, they cannot be allowed to hide behind the imperfections of those Rules to deny to the applicant her due.
128. One further controversy unnecessarily raised by the R-1 NSCS has been in the context of their submission that the applicant was "on loan basis" with them w.e.f. 16.08.2000 to 27.09.2002 from IDSA, and was not "on deputation". In this context, the following definition of "loan" may be reproduced from page 1039 of P. Ramanatha Aiyar's Law Lexicon, 3rd Edition, 2012, Edited by Dr. Shakil Ahmad Khan. As was held in 86 OA No.3963/2014 Nihal Singh vs. Ganesh Dass Ramgopal: AIR 1937 Oudh 124";
"except with respect to money "to loan"implies that a thing is delivered to another for use, without reward, and to be returned in specie." But, in the instant case, during the relevant period of more than two years, the salary and other emoluments of the applicant were paid by R-1 NSCS only, and not by her the then employer IDSA, and, therefore, in terms of the above cited 1937 judgment, her services with R-1 NSCS cannot be termed to have been "on loan basis", but were certainly "on deputation basis":-
"A lending; that which is lent; a permission to use; a bailment of an article for a certain time to be used by the borrower. Loan may include the lending of anything a horse, a carriage, a book, or any kind of goods, as well as money. To loan is to lend a thing to another, either gratuitously or for reward. In order to constitute a loan, there must be a thing loaned, a lender, and a borrower, as well as a contract between the parties. Where the relation between a depositor in a bank and his banker is that of debtor and creditor, simply, the transaction cannot in any proper sense be regarded as a loan, unless the money is left, not for safekeeping, but for a fixed period at interest, in which case the transaction assumes all the characteristics of a loan. "Except with respect to money, 'to loan' implies that a thing is delivered to another for use, without reward, and to be returned in specie."
129. The R-1 NSCS has also denied any continuity in service of the applicant from the IDSA to the R-1 NSCS organization. However, their claim in this regard is false, totally hollow and unbelievable, in view of Annexure A-26 LPC, which they have failed to deny or to controvert. The very fact the R-1 organization later on felt the need to call for the Service Book of the applicant from the IDSA, and IDSA ultimately forwarded it to them, and the official respondent R-1-NSCS have themselves produced photocopies of certain pages from her Service Book at Annexure R-2, 87 OA No.3963/2014 clearly goes to show that R-1 NSCS was fully aware about the continuity of the applicant's service from IDSA to their organization. Even in their sur-rejoinder, R-1 NSCS has failed to deny the genuineness of Annexure A-26 dated 29.09.2003, which clearly shows that the applicant was to be relieved from IDSA on 30.09.2003 only.
130. Also, as has been recorded in the applicant's IDSA Service Book itself, she was deputed to R-1 NSCS for a period of two years w.e.f. 16.08.2000, and she was to draw her pay and allowances from the R-1 NSCS only during her deputation period, as per the order dated 25.08.2000 passed by them. Deputation can only be of a substantive appointee, who retains a lien with the parent employer. If the contention of R-1 NSCS that the applicant was a purely contractual basis employee with IDSA has to be accepted, then there could have been no deputation of the applicant from IDSA to R-1 NSCS, and no return of hers to IDSA to re-occupy her lien would have been possible. The very fact that it was felt necessary to take her "on loan", or "on deputation basis", howsoever, it may be called, from the IDSA to R-1 NSCS, and for IDSA to have so lent her services to the R-1 NSCS, and to then have taken her back in their organization after completion of her more than two years' deputation tenure with the R-1 NSCS, goes to show that her employment with the IDSA also was not on "purely contractual basis" and that she did hold a lien in IDSA.
131. Even though the deputation may have been illegally called to be 'on loan basis', but her services on such deputation had been treated as 88 OA No.3963/2014 substantive services with R-1, and R-1 itself had, while considering her case for promotional appointment to the post of Director, taken into account that previous two years' deputation service of hers along with the three years' service in the past of Deputy Secretary, for the purpose of counting her 5 years' of qualifying service with NSCS for her promotion to the post of Director, it proves that neither the applicant's appointment with IDSA had been purely a contractual appointment, not her deputation to R-1 NSCS had been so. If it was only a contract, the contract should have been terminated with IDSA on 16.08.2000, and then a fresh contract ought to have been entered into by her with the NSCS for the period of her deputation with R-1 NSCS w.e.f. 16.08.2000, which was neither done, nor contemplated, nor has been mentioned anywhere in the pleadings.
132. Therefore, whatever may have been the nomenclature recorded in her Service Book behind her back, to which she had no access, the nature of her employment with IDSA was that of a substantive employment, and her services were lent 'on loan or deputation basis' to R-1 w.e.f. 16.08.2000 and were then taken back by the IDSA when R-1 NSCS sent her back after the end of her deputation period. As mentioned above, when services are taken only on "loan basis", it is not necessary for the obligation to pay the salary etc. during the period concerned has also to be necessarily borne by the loanee organization, and cannot continue to be borne by the loaning organization. In the instant case, R- 1 NSCS took on such a responsibility, and, therefore, very rightly so, they later on treated that period of her deputation as substantial service. 89 OA No.3963/2014
133. The contention of the respondent R-1 NSCS that they cannot now count her previous service in the IDSA for the purpose of considering her case for Joint Secretary-ship, only because there had been a gap on paper of 01 month and 22 days in her appointment being terminated by the IDSA, and her joining the respondents on 03.10.2003, cannot also be accepted, and is an absolutely false submission, because of the fact that the respondent R-1 NSCS itself has failed to deny the contents of the documents dated 14.08.2003 & 10.09.2003 (Annexure A-8 colly) produced by the applicant, in which the applicant had sought permission regarding the invitation received by her to attend the Conference on "Post Modern Terrorism", and the IDSA Director's office had received that through Dy. No.2689 dated 14.08.2003, and then Director IDSA had signed on it on 18.08.2003, and had reviewing the situation found that her deputation cannot be supported.
134. Respondent No.R-1-NSCS has also failed to deny the genuineness of the applicant's request for leave dated 10.09.2003, by which she had requested Director IDSA that she may be granted Earned Leave/Half Pay Leave w.e.f. 09.08.2003 to 30.09.2003, and in Para-3 of her request letter dated 10.09.2003, she had also stated that she was unable to attend the office during the preceding period with regularity or for more than an hour, and that also will have to be considered as leave period in the interests of discipline. That leave request had been received in the office of Director, IDSA, by Dy. No.2965 dated 18.09.2003, and the Director IDSA had approved the sanction of her Earned Leave/Half Pay Leave 90 OA No.3963/2014 w.e.f. 09.08.2003 to 30.09.2003, and had also mentioned that since she was unable to attend office during the preceding period from 09.08.2003 to 10.09.2003, that period also will have to be considered as leave period, and her sense of discipline had met with the approval and appreciation by the Director, which shows the integrity on behalf of the applicant. Further, the respondent R-1-NSCS has also not been able to deny the Annexure A-9 dated 30.09.2003, the applicant's relieving order issued by IDSA, which order was passed by IDSA on 30.09.2003, though it had been mentioned in it that she was relieved of her duties in that Institute w.e.f. 10.08.2003 (AN). But since this relieving order had not been passed and issued by IDSA on 10.08.2003, but had actually been passed and issued on 30.09.2003, it supports the applicant's contention that she was in service with the IDSA till 30.09.2003, and that there had been no gap in her appointment with IDSA coming to an end in that date, and her joining with R-1-NSCS on the next very available working day on 03.10.2003. As had been held in Badat & Co. v. East India Trading Co.: AIR 1964 SC 538, merely an evasive denial, without any specific countering of the averments made and facts narrated, cannot be accepted, and such indirect admission itself being proof, no other proof is necessary.
135. It is also seen that the R-1-NSCS has themselves supported the sequence of events as narrated by the applicant in the OA by producing Annexure R-6 of their counter reply, in which it is seen that sanction of 46 days of E.L. for encashment as per the Rule vide Officer Order No. 12A/2003 dated 03.12.2003 has been recorded earlier than the legend 91 OA No.3963/2014 recorded below that, that the present applicant's resignation has been accepted, and she had been relieved from her duties in (the IDSA) Institute w.e.f. 10.08.2003, vide Office Order No.9C/2003 dated 29.09.2003. It is thus clear that the last entry regarding the Office Order dated 29.09.2003 issued by IDSA was recorded after the Office Order No.12A/2003 issued by IDSA was passed on 03.12.2003, for leave encashment purposes, because the Service Book of the applicant had remained with the IDSA for quite a long time even after she had joined R- 1-NSCS, and this entry regarding the antedating of the date of her being relieved as entered in the Service Book had actually been made some time after 02.12.2003, when her 46 days' Earned Leave encashment had also been sanctioned by IDSA. Therefore, the entire story of R-1-NSCS of there being a gap of 01 month and 22 days in the applicant's employment with IDSA ending and her employment with the R-1 NSCS starting is entirely bogus, and unbelievable, and an utter falsehood. Further, it may be added that even if such a break in service of 01 month and 22 days was to be accepted to be true, still, after the R-1-NSCS having taken into account her previous employment with IDSA as analogous service, making her eligible for appointment to the post of Deputy Secretary with R-1 NSCS w.e.f. 03.10.2003, the respondent R-1 NSCS cannot now turn around, and the benefit of such analogous service of hers of 17 years cannot now be denied to the applicant. In this context, in a slightly similar case of absorption of a deputationist Doctor, in a Coordinate Bench's order dated 28.10.2016 (including one of us Member (A)) in OA No.1699/2012 - Dr. Niruta Sharma v. Union of India, it has been held as follows:
92OA No.3963/2014
"22. We are also bound by the orders of the Full Bench, Paragraphs 11 to 25 of which have been reproduced above. The Full Bench had held that the deputationists are given seniority and fixation of pay, taking into account the full period of equivalent service rendered by them in their earlier parent Department. Therefore, in so far as her seniority is concerned, the present applicant is entitled to claim the seniority which had accrued to her by way of the equivalent service rendered by her with the Himachal Pradesh Government, including the period of her deputation with the Respondent No.2 of this O.A. In this context, it is seen from the reply of the respondents in response to Para-4.9 of the OA that the respondents have, under the advice received by them from DoPT, already fixed her seniority by protecting that past service of hers, rendered by her in her earlier parent organization, including the period of deputation with Respondent No.2. Therefore, the ratio of the Full Bench judgment has been fully complied with by the respondents in her case.
23. The Full Bench had further held that in the matter of promotions, deputationists who get absorbed will be able to claim weightage on the basis of the seniority that is so carried forward by them. It is apparent from the reply of the respondents in response to Para 4.9 of the OA that they have already given due weightage to the applicant's seniority as carried/brought forward by her from her previous employment with Himachal Pradesh Government in the matter of fixation and seniority, in the Seniority List of the CHS cadre.
24. However, though the stand of the respondents that such protection of past service does not make the absorbed doctors eligible for promotion to the next higher grade in CHS with retrospective effect, is also correct, the absorbed doctors in the GDMO Sub-Cadre of CHS need not be required to once again complete the prescribed qualifying service in the feeder grade of GDMO Sub-Cadre, into which they have been so absorbed, after the date of such absorption, in addition to any other eligibility requirement, since they have already worked on analogous post during the period of their deputation service. The respondents are, therefore, not fully justified and right in making the submission that such qualifying service can count only from the date of absorption of the absorbee Doctor into the GDMO Sub- Cadre of CHS, and no weightage can be ascribed to their analogous service in the past, during the period of their deputation.
25. While it is correct that the absorption in CHS is the point of time on which there is a new start of service of the applicant in a new cadre of CHS, in the pay scale of the post concerned, in which the absorbee Doctor's entitlements would start counting afresh, because he/she has joined the CHS cadre only from that date of absorption in substantive capacity, but her past service with the Himachal Pradesh Government, and her period of analogous service while on deputation with CHS, while retaining her lien with the Himachal Government, would not only count for the purpose of seniority to be fixed, by protecting such 93 OA No.3963/2014 past service, but should also count towards the qualifying service for further promotions in CHS. However, she would not be entitled for any retrospective promotion.
26. xxx (Not reproduced here)
27. Therefore, while the claim of the applicant for fixation of her initial pay in CHS in the higher pay scale, as had been granted to her in her previous substantive employment with the Himachal Government, from the date of her absorption in CHS itself cannot be granted to her, more so when she had knowingly and willingly accepted her absorption under the CHS cadre only as a Senior Medical Officer w.e.f. 09.10.2003, in the pay scale of Rs.10,000-15200, in the interest of her remaining at Delhi, instead of reverting back to her earlier parent cadre in Himachal Pradesh, but the weightage of her having already rendered analogous service during the period of her deputation also would have to be provided to her, and, only if that period of analogous service falls short of the period prescribed for the consideration of her case for promotion, she would be required to render only such balance period of qualifying service after her absorption into CHS. If her analogous service experience while being on deputation with CHS has already exceeded the qualifying period, her eligibility for consideration of her case for promotion would start soon after such absorption.
28. Therefore, the OA is partially allowed, but there shall be no order as to costs.
136. The respondent R-1-NSCS cannot also be allowed to hide behind the fact that the relieving order of the IDSA does not mention the reason for which the applicant had resigned from her service with that Institute, and does not mention anywhere that she had submitted her resignation and sought voluntarily to be relieved, just because her impending appointment with R-1 NSCS had not been mentioned by IDSA in its order. Such a mention was not at all necessary in that order passed by IDSA, because it was only an acceptance of her letter of voluntary premature resignation, and in that it neither was neither necessary for her to mention her future plans, nor was it necessary for the IDSA to indicate the reasons for their having accepted her request for such premature voluntary resignation.94 OA No.3963/2014
137. Further, it was not as if the RRs dated 16.02.2001 notified through GSR 97, which have been produced before us through Annexures A-12 & A-27, had not been re-considered and amended in between. The GSR 183 dated 16.04.2003 filed by the applicant as a part of Annexure A-27 goes to show that firstly the name of the R-1 Organization had been changed to the National Security Council Secretariat, and secondly a Selection Committee, comprising of three Members each, had been introduced in Column 13 for the RRs in respect of the posts of Joint Secretary, Scientist 'G" and Major General, and against the posts of Director and Deputy Secretary, in place of the earlier existing entries.
Such a Selection Committee, duly provided for in the RRs for the post concerned, cannot be reduced only to be to select people for the purpose of contractual employment only, when the prescribed methods of recruitment under Column-11 for the posts of Directors were Deputation/Contract/Absorption/Re-employment. It is, therefore, clear that the Selection Committee in Column 13 of the RRs would apply to all the four methods of selection provided for in Column 11 of the RRs.
138. However, in respect of any such Selection Committee, the Apex Court had in Dr. Krushna Chandra Sahu and Others vs. State of Orissa and Others AIR 1996 SC 352=(1995) 6 SCC 1 decided the scope of powers of any such Selection Committee as follows, holding that such powers have to conform to the RRs, and, therefore, the Selection Committee must set parameters for the four methods of Selection provided for in Column 11 of the RRs:-95 OA No.3963/2014
"35. The members of the Selection Board or for that matter, any other Selection Committee, do not have the jurisdiction to lay down the criteria for selection unless they are authorised specifically in that regard by the Rules made under Art. 309. It is basically the function of the rule making authority to provide the basis for selection. This Court in State of Andhra Pradesh v. V. Sadanandam, AIR 1989 SC 2060 observed as under (para 16, at pp. 2065-66 of AIR):-
"We are now only left with the reasoning of the Tribunal that there is no justification for the continuance of the old Rule and for personnel belonging to either zones being transferred on promotion to offices in other zones. In drawing such conclusion, the Tribunal has travelled beyond the limits of its jurisdiction. We need only point out that the mode of recruitment and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the executive. It is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive".
(Emphasis supplied)
36. The Selection Committee does not even have the inherent jurisdiction to lay down the norms for selection nor can such power be assumed by necessary implication. In Ramachandra Iyer v. Union of India, (1984) 2 SCR 200 : (AIR 1984 SC 541), it was observed (para 44, at p.562 of AIR):-
"By necessary inference, there was no such power in the ASRB to add to the required qualifications. If, such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reasons that such deviation from the rules is likely to cause irreparable and irreversible harm".
37. Similarly, in Umesh Chandra Shukla v. Union of India, 1985 Suppl (2) SCR 367 : (AIR 1985 SC 1351), it was observed that the Selection Committee does not possess any inherent power to lay down its own standards in addition to what is prescribed under the Rules. Both these decisions were followed in Sh. Durgacharan Misra v. State of Orissa, (1987) 2 UJ (SC) 657 : (AIR 1987 SC 2267) and the limitations of the Selection Committee were pointed out that it had no jurisdiction to prescribe the minimum marks which a candidate had to secure at the viva voce test.
38. It may be pointed out that rule making function under Art. 309 is legislative and not executive as was laid down by this Court in B.S. Yadav v. State of Haryana, AIR 1981 SC 561. For this reason also, the Selection Committee or the Selection Board cannot be held to have jurisdiction to lay down any standard or basis for selection as it would amount to legislating a rule of selection."
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139. The only issue that now remains now to be adjudicated is with regard to the determination of the seniority of the applicant vis-a-vis the other four private respondents. For deciding that, we may just follow and rely on the Hon'ble Apex Court judgment in the case of V. Sreenivasa Reddy and Others vs. Govt. of A.P. and Others AIR 1995 SC 586, and in particular, paragraphs 15-20, which are reproduced below:-
15. It is settled law by the judgment of the Constitution Bench in Direct Recruits Class II Officers Association v.
State of Maharashtra, (1990) 2 SCR 900 : (1991 AIR SCW 2226), that appointment in accordance with Rules is a condition precedent to count seniority. Temporary or ad hoc or fortuitous appointments etc. is not an appointment in accordance with the Rules and the temporary service cannot be counted towards the seniority. Delhi Water Supply and Sewage Disposal Committee v. R. K Kashyap, 1989 Supp (1) SCC 194 : (AIR 1989 SC 278); Masood Akhtar Khan v. State of M.P., (1990) 4 SCC 24; D. N. Agrawal v. State of M.P., (1990) 2 SCC 553 : (AIR 1990 SC 1311); State of Tamil Nadu v. E. Paripoornam, 1992 Supp (1) SCC 420 : (1992 AIR SCW 2057); R. C. Poudyal v. Union of India, (1993) 2 JT (SC) 1 and at p. 25: (1993 AIR SCW 1620 at p. 1682); Excise Commissioner, Karnataka v. V. Sreekanta, 1993 Supp (3) SCC 53 : (1993 AIR SCW 1740).
16. In K. C. Joshi v. Union of India, 1992 Supp (1) SCC 272 : (AIR 1991 SC 284), the seniority is to be counted from the date on which appointment is made to the post in accordance with the rules. The previous temporary service should be considered to be fortuitous. In Union of India v. S. K. Sharma, (1992) 2 SCC 728 : (1992 AIR SCW 1150), this Court held that the approval of the UPSC for continuation in ad hoc post for the purpose of granting pay and allowances, would not amount to regular appointment and ad hoc services cannot be counted for determining seniority by the selection by PSC vide Vijay Kumar Jain v. State of Madhya Pradesh, 1992 Supp (2) SCC 95. In K. C. Joshi's case (AIR 1991 SC 284), this Court held that employee would become a member of service only from the date of his appointment according to rules. In A. M. Sehgal v. Raja Ram, 1992 Supp (1) SCC 304 : (1991 AIR SCW 1246), this Court held that where statutory rules link seniority with confirmation seniority cannot be fixed according to length of service and confirmation to a post borne on the cadre is a condition to get seniority. In State of West Bengal v. Aghore Nath Dey, (1993) 3 SCC 371, it was held that ad hoc services followed 97 OA No.3963/2014 by regular service, the benefit of ad hoc service is not admissible if the appointment was in violation of rules. In D. N. Agrawal v. State of Madhya Pradesh, (1990)2 SCC 553 :
(AIR 1990 SC 1311), it was held that seniority cannot relate back to the date of temporary appointment.
17. Under Rule 10(a)(i)(1) where it is necessary in the public interest to fill emergently a vacancy in the post borne on the cadre of a service, class or category and if the filling of such vacancy in accordance with the rules is likely to result in undue delay, the appointing authority may appoint a person temporarily otherwise than in accordance with the said rules. Under sub- rule (iv) of R. 10(2), such temporary appointee shall not be regarded as a probationer in such service, class or category or be entitled by reason only of such appointment to any preferential claim to future appointments to such service, class or category. Rule 23(a) provides the Procedure for commencement of the date of probation of persons first appointed temporarily as under:-
"If a person having been appointed temporarily under sub-rule (a)(i)(1) or sub-rule (c) of R. 10, a post borne on the cadre of any service, class or category or having been appointed to any service, class or category, otherwise than in accordance with the Rules governing and appointed thereto is subsequently appointed to any service, class or category in accordance with the Rules, he shall commence his probation from the date of subsequent appointment or such earlier date as appointing authority may determine."
The other clauses are not relevant for the purpose of this case, hence omitted.
18. Rule 33 determines the seniority - (a) The seniority of a person in a service, class or category or grade shall, unless he has been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class, category or grade. If any portion of the service of such person does not count towards probation under Rules 10(a), (iv), 10(c), 16, 37(d), or 42(d), his seniority shall be determined by the date of commencement of his service which counts towards probation.
19. It is true that in Diwakar's case (AIR 1982 SC 1555) and in Venkata Reddy's case, this Court upheld the exercise of the power by the Government under proviso to clause (3) of Art. 320 of the Constitution and in Venkata Reddy's case (1993 AIR SCW 2750) held that the temporary employees are appointed in accordance with the rules. As stated earlier, those appointments came to be made during ban period and remained in service for long period. In this case, there is no ban on recruitment and the appellants are eligible to apply for and seek direct recruitment. In Paripoornam's case (1992 AIR SCW 2057), another Bench of 98 OA No.3963/2014 three Judges, considering the similar Madras Rules, held in paragraph 14, that temporary appointments made under R. 10(a)(i)(1) to fill in emergency vacancies were otherwise than in accordance with the Rules and the temporary service cannot be counted towards the seniority. Same is the view held by another three Judges Bench in A. P. M. Mayankutty v. Secretary Public Service Department, (1977) 2 SCW 360 :
(1977 Lab IC 551). In Diwakar's case (AIR 1982 SC 1555) and Venkata Reddy case (1993 AIR SCW 2750), this Court approved the validity of the exercise of the power under proviso to clause (3) of Art. 320 owing to the ban on the recruitment by the government and long lapse of time which has elapsed from the date of the initial temporary appointments till the date the decision was taken by the government to regularise the services of such temporary appointments.
20. In A. K. Bhatnagar v. Union of India, (1991) 1 SCC 544, this Court while deprecating the practice of the government giving a go-by to the statutory rules or regulations, framed under proviso to Art. 309 of the Constitution making large scale departure, expressed thus :-
"On more than one occasion this Court has indicated to the Union and the State Governments that once they frame rules, their action in respect of matters covered by rules should be regulated by the rules. The rules framed in exercise of powers conferred under the proviso of Art. 309 of the Constitution are solemn rules having binding effect. Acting in a manner contrary to the rules does create problem and dislocation. Very often government themselves get trapped on account of their own mistakes or actions in excess of what is provided in the rules. We take serious view of these lapses and hope and trust that the government both at the Centre and in the States would take note of this position and refrain from acting in a manner not contemplated by their own rules."
140. In the instant case, it is absolutely clear from the above discussion that the applicant was first on deputation from 2000 to 2002 in R-1- NSCS, but was later taken on substantive appointment w.e.f. 03.10.2003, when she was not on deputation from IDSA, since she had resigned from her post in IDSA with effect from 30.09.2003.
141. We have already discussed above that the nature of her employment with R-1-NSCS was never purely on contractual basis, and, 99 OA No.3963/2014 therefore, she cannot at all be classified under the category of contractual employees. It was also not a case of absorption, because absorption can only be of a deputationist, or of a temporary or ad hoc worker, or of a person working under CCS (Temporary Service) Rules, 1965, and, therefore, her case was clearly not that of absorption also.
142. In the result, it is clear that from the very beginning from 03.10.2003 itself, the case of the applicant was that of re-employment only, since her previous service with IDSA had already been treated by the Selection Committee of R-1 NSCS, as provided for in Column 13 of the RRs for the post concerned to be analogous service, from which her employment was terminated by the IDSA Office Order dated 30.09.2003 and then she was re-employed with R-1 w.e.f. 03.10.2003.
143. We have examined the contents of the Notification No.18/4/51- Estt.(B) issued on 01.09.1958 by the Government of India, Ministry of Home Affairs, and subsequently amended many times thereafter, titled the Union Public Service Commission (Exemption from Consultation) Regulations, 1958. It is seen that through DoP&T Notification dated 31.01.2001 issued through GSR 88 dated 17.02.2001, an item No.21 had been introduced in Schedule-I under Regulation-2 of such Union Public Service Commission (Exemption from Consultation) Regulations, 1958, in which the following posts of the R-1 NSCS have been kept out of the purview of consultations from UPSC.:-
"(21) Posts of Lt. General, Scientist "H", Major General, Scientist "G", Secretary, Additional Secretary, Joint Secretary, Director, Deputy Secretary, Under Secretary, Principal Private Secretary, Senior System Analyst, Researc1:l Officer, Private Secretary, Section Officer. Protocol Officer, Assistant, Research Assistant, 100 OA No.3963/2014 Personal Assistant, Protocol Assistant, Senior Library and Information Assistant and Draftsman Grade' I' in the National Security Council Secretariat, Cabinet Secretariat."
144. However, such blanket exemption from consultation with UPSC accorded to the R-1 NSCS Organization with effect from 17.02.2001 through Gazette Notification GSR-88 cannot be turned into a licence to indulge in favouritism amongst its employees, and to abuse the discretion which may have become available to R-1 NSCS Organization because of that Notification.
145. We have also found something absolutely abhorrent and against all tenets and principles of law in the counter-reply of R-1 NSCS. One of these things is the submission made that only in some cases, the discretion is exercised to provide permanent employment to persons all of whom are initially contractually engaged by the R-1 NSCS. We find this submission to be totally obnoxious. There cannot be any absolute discretion. Even the exercise of discretion must be reasonably made and in public interest, as was held by Lord Halsbury in Sharp v. Wakefield [1891] AC 173, and which law has been followed by the Hon'ble Supreme Court in Manager, Govt. Press v. Balliappa, AIR 1979 SC 429, and in Union of India v. Sudhir Kumar Jaiswal, 1994 SCC (L&S) 925=1994 (2) SCR 674.
146. If the decision is taken without any principle, or without any norm, the four corners of which are required to be known in advance, such decision is nothing but arbitrary, and antithesis of the Rule of Law, as 101 OA No.3963/2014 was held by the Hon'ble Supreme Court in S.G. Jaisinghani v. Union of India and Ors., AIR 1967 SC 1427, and in Swant Singh v. Assistant Passport Officer, New Delhi, AIR 1967 SC 1836.
147. In fact, in the United States, in the case of United States v. Martin Wanderlich, 342 US 98=1996 LED 113(1951), this proposition has been beautifully summed up by holding as follows:
"Law has reached its finest moments when it has freed men from unlimited discretion of some rulers, some civil or military official, some bureaucrat.......Absolute discretion is a ruthless master. It is more destructive of freedom than any of man's other inventions".
148. We have also found that the respondents have not been able to effectively deny the applicant's averment that the respondent R-1 NSCS has become an accommodating ground for all persons whose inclination is palatable to the ruling dispensation, and to provide them permanent employment, without their having even an iota of knowledge about security scenario of the country. The respondent R-1 NSCS has not been able to deny the applicant's averment that one of the persons permanently absorbed in NSCS was previously only in-charge of catering in the Prime Minister's residence, and was then directly absorbed by Respondent R-1-NSCS on a higher post of Joint Secretary, without his having absolutely any knowledge of the security scenario of the country. Respondents also have not been able to deny the applicant's averment that one of the named private respondents in this case was earlier only in the Personal Section of a Minister, where he could not have gathered or gained any knowledge of the security scenario of the country, but still he 102 OA No.3963/2014 was absorbed, and given permanent employment with respondent R-1 NSCS, and even in doing so, he was permanently placed ahead of the present applicant, who is an expert in the security matters in her own right, as had been recognized by the respondent R-1 NSCS earlier also, when they had sought her services on deputation from her previous employer IDSA. We find this scenario most disappointing and depressing, and actually being against the Security interests of the nation.
149. Therefore, in the conspectus of the law as laid down above, as cited by us from various Supreme Court's judgments, and from the order dated 28.10.2016 in OA No.1699/2012 (supra), and as is seen from the discussion of the facts of this case, we hold that the applicant was in substantive employment with IDSA earlier, though it was called as a contract, and that she was re-employed as Deputy Secretary in substantive capacity with R-1 w.e.f. 03.10.2003, and that she was, therefore, fully eligible to count her past analogous employment, with a similar/parallel organization (IDSA) prior to that date, till 30.09.2003. This also flows from the Full Bench order of this Tribunal dated 22.04.2009 in OA 1436/07 with OA 1437/2007 and OA 1438/2007- Dr. Snehal Bhave Vs. UOI & Ors and the connected two cases, which had been followed by the Coordinate Bench in OA No.622/2012 Dr. Pankaj Agnihotri v. Union of India.
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150. In the result, for the foregoing reasons, the OA is allowed, but there shall be no order as to costs.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A) cc. Per RAJ VIR SHARMA, MEMBER(J):
151. After going through the order proposed by the Hon'ble Administrative Member, I am unable to agree with the view taken, as well as the conclusion arrived at, by him in the proposed order. Hence, I am writing this dissenting order.
152. The brief facts of the case, which are not disputed by either side, are as follows:
(A) The applicant worked on contract basis in the Institute of Defence Studies and Analysis (hereinafter referred to as 'IDSA'), New Delhi, first as Research Assistant on stipend basis from 6.4.1992 to 16.5.1994, and then as Research Officer in the scale of pay of Rs.2200-4000/- (4th CPC) with effect from 17.5.1994 to 16.5.1996. Her contract appointment as Research Officer was extended by two more years w.e.f. 17.5.1996.
(B) While continuing as Research Officer for the second term of two years on contract basis, the applicant was awarded 104 OA No.3963/2014 Fellowship in the scale of pay of Rs.12000-18000/- (5th CPC) in IDSA for two years w.e.f. 15.7.1997, and another Fellowship for two years w.e.f. 1.7.1999.
(C ) During the term of her said second Fellowship, the NSCS appointed the applicant as Research Fellow against a post of Deputy Secretary in the NSCS, in the scale of pay of Rs.12000- 16500/- (5th CPC) from 16.8.2000 to 27.9.2002, on loan basis. She returned to IDSA on 27.9.2002. She resigned from IDSA and was relieved of her duties w.e.f. 10.8.2003. She was paid salary and terminal benefits by IDSA up to 10.8.2003.
(D) Thereafter, the applicant was appointed as Deputy Secretary in the scale of Rs.12000-16500/- (5th CPC) in NSCS on contract basis with effect from 3.10.2003 for a period of two years or until further orders whichever was earlier, vide notification dated 8.12.2003, and office order dated 12.12.2003, issued by the NSCS. Thus, the applicant joined NSCS on a fresh contract w.e.f. 3.10.2003. Her said contract appointment as Deputy Secretary/Joint Director was extended for a further period of 2 years w.e.f. 3.10.2005 on the terms and conditions of services laid down in the agreement, vide order dated 5.6.2006.
(E) Thereafter, the applicant was appointed as Director in NSCS in the pay scale of Rs.14300-18300/- w.e.f. 29.9.2006 for a period of 5 years on fresh contract, vide order dated 6.10.2006. The 105 OA No.3963/2014 said contract appointment was extended for one more year, i.e., up to 28.9.2012, vide order dated 27.09.2011. Before her said contract appointment came to an end, the applicant was absorbed as Director in NSCS w.e.f. 12.4.2012, vide office order dated 12.4.2012 (Annexure A/1).
(F) After her absorption in the post of Director w.e.f. 12.4.2012, the applicant made representation dated 6.3.2013 regarding maintenance of her Service Book, and met the Dy.N.S.A. on 20.11.2013 regarding her promotion as Joint Secretary. The respondent-NSCS, vide communication dated 26.11.2013 (Annexure A/2), informed the applicant that her service in IDSA, and subsequent service in NSCS, with the two being separated by a month and 22 days, cannot be reckoned to be one continuum, and therefore, an assessment of her claim for promotion will have to be made with reference to her date of joining in NSCS on October 3, 2003, and in accordance with Recruitment Rules and set procedures.
(G) Being dissatisfied, the applicant made further representation dated 11.12.2013 claiming consideration of her case for promotion to the grade of Joint Secretary. The respondent- NSCS, vide its communication dated 29.4.2014 (Annexure A/3), informed the applicant that she did not fulfill the eligibility criteria 106 OA No.3963/2014 laid down in the Recruitment Rules for promotion to the post of Joint Secretary.
(H) Therefore, the applicant has filed the present O.A. under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:
"8.a) To quash and set aside the respondent's orders dated 12-4-2012, 26-11-2013 and 29-
4-2014 (Annexure: A-1, A-2 and A-3) and order the respondent for applicant's absorption on the post of Deputy Secretary to the Govt. of India w.e.f. 3-10-2003 and to further order the respondent to treat the applicant's appointment dated 29-9-2006 on the post of Director as promotion w.e.f. from 29-9-2006 as already stated by the respondent vide order dated 6-10-2006 and to further order the respondent to consider the applicant for promotion to the post of Joint Secretary in pay scale of Rs.37400-67000 + Grade Pay of Rs.10,000/- as on 1-10-2009 as per the NSCS Recruitment Rules, 2007 and to reckon her service in IDSA in continuum for the purpose of retirement and pension benefits under CCS Pension Rules, 1972.
8.b) Pass such other order(s) as may be deemed fit in the interest of justice."
153. Thus, in the present O.A., the applicant has mainly raised three issues, namely, (1) her absorption from 3.10.2003; (2) promotion as Joint Secretary, and (3) to reckon her service in IDSA in continuum for pensionary and other service benefits.107 OA No.3963/2014
154. When the applicant had accepted her appointments as Deputy Secretary/Joint Director on contract basis w.e.f. 3.10.2003, and as Director in NSCS w.e.f 29.9.2006 on contract basis, for specified periods, and had entered into agreements/contracts with the NSCS, and when the NSCS, vide its order dated 12.4.2012 (Annexure A/1), had absorbed her in the post of Director w.e.f.
12.4.2012, I do not find any substance in the claim of the applicant for being absorbed in NSCS w.e.f. 3.10.2003.
155. Furthermore, it transpires that the applicant never made any representation before the departmental authority questioning the office order dated 12.4.2012 and claiming absorption in NSCS with effect from 3.10.2003, i.e., the date when she had joined the NSCS as Deputy Secretary/Joint Director on contract basis for a period of two years. She has, for the first time, raised the said issue in the present O.A. Section 20 of the Administrative Tribunals Act, 1985, stipulates that a Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him. As the applicant has not approached the respondent-NSCS in the matter of her absorption w.e.f.
3.10.2003, she cannot be held to have availed of the remedy available to her, and, therefore, the present O.A. is liable to be rejected as being hit by Section 20 of the Administrative Tribunals Act, 1985.108 OA No.3963/2014
156. As per the National Security Council Secretariat (Group 'A' Services) Recruitment Rules, 2007, in case of promotion to the grade of Joint Secretary, officers of NSCS have to fulfill the following eligibility criteria:
(a) 2 years regular service in Director (DIG scale Grade Pay Rs.8900/-), or
(b) 3 years regular service in Director scale (Grade Pay Rs.8700/-), or
(c) 8 years regular service in Deputy Secretary's scale (grade Pay Rs.7600/-);
with total continuous Group 'A' service of 17 years.
The applicant cannot be said to have fulfilled the eligibility criteria of minimum total continuous Group 'A' service of 17 years for promotion as Joint Secretary. Prior to her joining NSCS, she was working in IDSA on contract basis. She resigned from IDSA w.e.f. 10.8.2003, and got all terminal benefits from IDSA. Thereafter, she joined NSCS on contract basis as Deputy Secretary/Joint Director w.e.f. 3.10.2003. As the eligibility service of an employee counts from the date of absorption, and the service rendered on contract basis, not being regular service, cannot be taken into account for counting eligibility service for promotion to higher grade, I do not find any substance in the claim of the applicant that she had put in 109 OA No.3963/2014 more than 17 years of Group A service in terms of the Recruitment Rules for promotion to the post of Joint Secretary.
157. The applicant's appointment as Director with effect from 29.9.2006 was on a fresh contract. She herself had signed a fresh contract while accepting the said offer of appointment. There was also no provision in the Recruitment Rules of 2001 for promotion from the post of Deputy Secretary to the post of Director. Therefore, the claim of the applicant that she was promoted from the post of Deputy Secretary/Joint Director to the post of Director in 2006 is untenable. The provision regarding promotion from the post of Deputy Secretary/Joint Director to the post of Director was made only in the National Security Council Secretariat (Group 'A' Service) Recruitment Rules, 2007. The respondent-NSCS, vide order dated 20.10.2014 (Annexure R/13), rectified the office order dated 6.10.2006, ibid, where the word 'promotion' was inadvertently mentioned. In this view of the matter, I do not find any substance in the contention of the applicant that her appointment as Deputy Secretary/Joint Director was deemed to be regularized with effect from 3.10.2003 on the issuance of the office order dated 6.10.2006 by the respondent-NSCS promoting her from the post of Deputy Secretary/Joint Director to the post of Director with effect from 29.9.2006 on contract basis.
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158. As already noted, the applicant was working in IDSA on contract basis. Consequent to her resignation, she was relieved from IDSA w.e.f. 10.8.2003. She was paid all terminal benefits up to 10.8.2003. Thereafter, she joined NSCS again on contract basis with effect from 3.10.2003, and continued to work in NSCS on contract basis till 12.4.2012 when she was absorbed in the post of Director. The CCS (Pension) Rules, 1972, were applicable to regular appointees up to 31.12.2003. The regular employees with effect from 1.1.2004 were eligible for New Pension Scheme. Therefore, I do not find any substance in the applicant's claim to reckon her service in IDSA in continuum for the purpose of retirement and pension benefits under the CCS (Pension) Rules, 1972.
159. The decisions relied on by the applicant, which have been discussed by the learned Administrative Member, being distinguishable on facts, are of no help to the case of the applicant.
160. Resultantly, the O.A. is dismissed as being hit by Section 20 of the Administrative Tribunals Act, 1985, and also being devoid of merit. No costs.
(RAJ VIR SHARMA) JUDICIAL MEMBER Referral order under Section 26 of the Administrative Tribunals Act, 1985:
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161. As we differ through our proposed and dissented opinions, we refer this case to the Hon'ble Chairman of the Tribunal for hearing, either by himself, or by one/more of the other Members of the Tribunal to be nominated by him, on the point as to whether, on the facts and in the circumstances of the case, the view taken by the Administrative Member allowing the O.A., or the view taken by the Judicial Member dismissing the O.A., is correct.
161.1 The records of the O.A., along with our differing opinions, shall be placed by the Registry before Hon'ble the Chairman to pass appropriate orders under Section 26 of the Administrative Tribunals Act, 1985.
(RAJ VIR SHARMA) (SUDHIR KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN