Central Administrative Tribunal - Delhi
Priyanka Gupta vs Comptroller And Auditor General Of ... on 13 August, 2025
1
C-3/Item-22 OA-4148/2024
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A./4148/2024
M.A./2863/2025
M.A./1405/2025
Reserved on: 23.07.2025
Pronounced on: 13.08.2025
Hon'ble Mrs. Pratima K Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Priyanka Gupta
Aged about 31 years
W/o Sh. Hemant Gupta
R/o C-203, Signature View Apartment
Dr. Mukherjee Nagar, New Delhi-110009
(Working as Asstt Audit Officer,
Group B, Gazetted ... Applicant
(Through Shri Amit Anand with Ms. Aanchal Anand,
Advocates)
Versus
1. Comptroller General of India
9, Deen Dayal Upadhyay Marg,
New Delhi-110001
2. Director General of Audit
(Industry & Corporate Affairs)
AGCR Building, Indraprastha Marg
New Delhi-110002
3. Pr. Accountant General (Audit-I)
Gwalior, Madhya Pradesh-474002 ...Respondents
(Through Dr. S.S. Hooda, Advocate)
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C-3/Item-22 OA-4148/2024
ORDER
Hon'ble Dr. Chhabilendra Roul, Member (A):-
1. The present OA has been filed by the applicant seeking quashing of the orders by the respondents rejecting the benefit of Child Care Leave, ordering her repatriation to the Gwalior Office and rejecting her claim to be permanently "absorbed" in office of Director General of Audit (Industry & Corporate Affairs), Delhi.
2. Factual Matrix
2.1 The applicant joined as an Auditor at the office of Principal Accountant General (Audit-1), M.P. (Gwalior). She cleared her SAS Examination in August, 2019. Accordingly, she was promoted as Assistant Audit Officer (AAO) on ad hoc basis on 08.09.2020. Thereafter, she proceeded on deputation from Gwalior to Delhi on 30.03.2021, and joined as AAO. The initial deputation period was till 25.03.2022, which was extended on yearly basis and the last extension was granted upto 25.03.2025.
2.2 In the meanwhile, the applicant proceeded on Maternity Leave on 14.08.2023. Thereafter, she sought for HPL w.e.f. 14.02.2024 to 25.04.2024. After completion of HPL, she applied for Child Care Leave. The application for Child Care Leave was initially sanctioned for the period from 30.04.2024 till 30.10.2024. She 3 C-3/Item-22 OA-4148/2024 sought an extension of Child Care Leave for eight months by a representation dated 24.09.2024, which has been denied by the respondents by impugned order dated 16.08.2024. By order dated 16.10.2024, not only the Child Care Leave has been rejected but also she was relieved and directed to join the parent office at Gwalior by curtailing her deputation period. Aggrieved by the same, the applicant has preferred the instant Original Application seeking the following relief(s):-
"(i) to quash and set aside the impugned orders dated 16.10.2024 rejecting the application of the extension of Child Care Leave.
(ii) to quash and set aside order 16.5.2024 ordering pre-
mature repatriation of the applicant.
(iii) to consider the applicant for absorption in the office of DG (I&A) at Delhi as per RRs which allow the posts to be filled through absorption.
(iv) to direct the respondent to extend the same benefits of absorption on "as is where is basis' as per the decision of CAG vide circular dated 29.12.2023 to the applicant as being granted to AAOs on deputation awaiting promotion.
(v) Pass such further order(s) as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."
3. Notices were issued to the respondents and they have filed their counter reply. Applicant chose not to file rejoinder. 4.1 While issuing notice, the impugned order dated 16.08.2024 was stayed. On 02.07.2025, the learned counsel for the applicant had made a statement that she would not want to continue on the Child Care Leave. In light of the statement made by her, she was 4 C-3/Item-22 OA-4148/2024 allowed to join her duties with the respondents. Since the applicant has already joined her duties, the prayer 8(i) may not be pressed, as having been rendered infructuous.
4.2 In view of what has been stated and recorded in Paragraph 4.1, now this Tribunal has to adjudicate the issue of repatriation from and as well as absorption in the office of Director General of Audit (Industry & Corporate Affairs), Delhi. Mr S.S. Hooda, learned counsel for the respondents has raised the preliminary objection that the applicant, in her Original Application, has sought multiple reliefs and the same is not maintainable as per Rules of Practice under the Administrative Tribunal Act, 1985. The multiple reliefs are : (i) grant of Child Care leave, (ii) quashing of order regarding premature repatriation and (iii) permanent absorption in Delhi office of Respondent 2. In view of what has been stated and recorded in Paragraph 4.1, now this Tribunal has to adjudicate the issue of repatriation from and as well as absorption in the office of Director General of Audit (Industry & Corporate Affairs), Delhi. As these two issues are interrelated, these have to be adjudicated as co-joint issues. Hence, the preliminary objection raised by the learned counsel for the Respondents is overruled.
5. Submission by learned counsel for the Applicant 5.1 Learned counsel for the applicant, in support of the cause of the applicant, made the following submissions: 5
C-3/Item-22 OA-4148/2024 i. The applicant being a deputationist, is entitled to be absorbed
in the office where she is posted in terms Paras 2&4 of the order dated 29.12.2023. By virtue of the order dated 29.12.2023, as a one-time measure, the benefit has been extended to each of the employees who were awaiting promotions and by restricting it to the persons who were awaiting promotions, the applicant has been discriminated. Only because the applicant has been promoted, her right to absorb cannot be denied.
ii. Places reliance upon the Recruitment Rules (column 10 & 11), placed at page no. 54 of the Original Application. Column 11 would confirm that the officers under the Cadre Controlling Authority in the Indian Audit and Accounts Department are to be considered for deputation/absorption. The applicant, being the officer of the cadre is entitled to be considered for absorption, particularly in light of the fact that she has already joined Delhi on deputation. The applicant was on deputation at Delhi from 2021 itself and the deputation has been extended until 2026, i.e., 5 years, therefore, the applicant is entitled for absorption. Relevant portion of Recruitment Rules is reproduced as hereinbelow:-
(10) (11) By promotion failing which Promotion :
by deputation or absorption failing both by direct Departmental candidates recruitment. who have passed the Subordinate Audit Service Examination conducted by the Comptroller and Auditor 6 C-3/Item-22 OA-4148/2024 Note 1:- The direct recruits General of India or any shall be selected on the authority specified by him.
basis of an entrance
examination conducted by
the Staff Selection
Commission. Deputation or absorption
:
Officers under the Cadre
Note 2:- During the period Controlling Authority in the of probation, direct recruits Indian Audit and Accounts shall have to qualify Department or in any "Subordinate Audit Service Organised Accounts Cadre Examination" in respective under the Government of branches for confirmation India :
and regular appointment as Assistant Audit Officer.
i. Holding analogous
posts of Assistant
Audit Officer or
Assistant Accounts
Officer in Level-8 in
pay matrix
(Rs.47600-151100);
or
ii. Who, has passed the
Subordinate Audit
Service or
Subordinate
Accounts Service
Examination under
other Cadre
Controlling Authority
in the Indian Audit
and Accounts
Department or an
equivalent
examination in any
Organised Accounts
Cadre under the
Government of India.
Note 1:- The departmental
officers in the feeder
category who are in the
direct line of promotion shall
not be eligible for
consideration for
appointment on deputation
or absorption. Similarly,
deputationists shall not be
eligible for consideration for
appointment by promotion.
7
C-3/Item-22 OA-4148/2024
Note 2 :- Period of
deputation including period
of deputation in another ex-
cadre post held
immediately preceding this
appointment in the same or
some other Organisation or
Department of the Central
Government shall ordinarily
not to exceed three years.
The maximum age-limit for
appointment by deputation
shall not be exceeding fifty
six years as on the closing
date of receipt of
applications.
6. Submission by learned counsel for Respondents
6.1 Dr. S.S. Hooda, learned counsel for the respondents vehemently opposes that Original Application. While opening his arguments, he raises the preliminary objections:-
(i) That the applicant has sought multiple reliefs in the Original Application and accordingly, the same is not maintainable. The two reliefs, i.e., Maternity Leave and absorption are distinct and not connected and, therefore, could not be prayed in the same OA.
(ii) The order dated 25.02.2025, which is placed on record by the applicant is not a part of the pleadings and, therefore, cannot be taken note of. By the order dated 17.03.2025, the applicant was transferred to the Headquarters, however in view of the interim directions passed by the Tribunal on 24.10.2024, the applicant had approached this Tribunal in C.P. No. 229/2025, alleging 8 C-3/Item-22 OA-4148/2024 disobedience of the order dated 17.03.2025, during the pendency of the Contempt Petition, he made a statement on behalf of the respondents that the respondents were obliged to withdraw the orders dated 03.03.2025 and 17.03.2025. In view of the statement made by him, the applicant has continued at the present place of posting till today.
(iii) On merits, he submits, the order dated 26.03.2021, whereby the applicant was allowed to proceed on deputation from Gwalior to Delhi, would confirm that her deputation was accepted on spouse ground only and not on public interest. The original order, whereby the applicant has proceeded on deputation should have clearly mentioned the possibility of being permanently absorbed. In the present facts, the deputation order dated 26.03.2021, does not stipulate any such provision and, therefore, the applicant cannot be extended the benefit of absorption. To strengthen his submission he places reliance upon Para 10.2 (iv) of the DOP&T OM dated 03.10.1989, placed on record by the respondents today.
The OM has been considered by the Hon'ble High Court at Calcutta in W.P.C.T. 63 of 2025 in para 12, wherein the Hon'ble High Court at Calcutta has declared that the OM would be applicable to the CAG as well. He places reliance upon paras 12, 19, 20 & 22 of the decision of the Hon'ble High Court at Calcutta in W.P.C.T. 63 of 2025. The relevant paragraphs are reproduced herein below:- 9
C-3/Item-22 OA-4148/2024 "12. The representation was rejected by a letter dated 30.11.2023. The authorities again relied upon Para 10.2 (a) of the DOPTS office memorandum 3.10.1989 for rejection, as according to Para 10.2 (iv) of the OM, pre-condition to a favourable consideration for absorption of a deputationist is that the original circular letter inviting nomination for deputation should have clearly mentioned the possibility of permanent absorption. Since the original circular dated 28.8.2017 did not contain any such possibility of permanent absorption, the authorities had no scope to consider the applicant's claim for absorption.
19. Insofar as the Column 10 and 11 of the 2016 Rules, before we proceed to consider the same, we deem it useful to reproduce relevant extracts of Column 10 and 11 being relied upon by the petitioner's Counsel before us:
"Method of recruitment. In case of recruitment by promotion or deputation Whether by direct or absorption grads, from recruitment or by which promotion or promotion or by deputation or absorption deputation or absorption to be made. and percentage of the vacancies to be filled by various methods.
(10) (11)
By promotion failing which Promotion :
by deputation or absorption
failing both by direct Departmental candidates
recruitment. who have passed the
Subordinate Accounts
Note 1.- The direct recruits Service Examination
shall be selected on the conducted by the Comptroller basis of an entrance and Auditor General of India examination conducted by or any authority specified by the Staff Selection him.
Commission.
Note 1.- Where juniors who Note 2 .- During the period of have completed their probation direct recruits qualifying or eligibility shall have to qualify the service are being considered "Subordinate Accounts for promotion, their seniors Service Examination" for shall also be considered confirmation provided they are not short of the requisite qualifying or and regular appointment as eligibility service by more Assistant Accounts Officer. than half of such qualifying or eligibility service or two years, whichever is less, and have successfully completed their probation period for 10 C-3/Item-22 OA-4148/2024 promotion to the next higher grade along with their juniors who have already completed such qualifying or eligibility service.
Note 2.- For the purpose of computing minimum qualifying service for promotion, the service rendered on a regular basis by an officer prior to 1st January, 2006, the date from which the revised pay structure based on the Sixth Central Pay Commission recommendations has been extended, shall be deemed to be service rendered in the corresponding Grade Pay or Pay Scale extended based on the recommendations of the Pay Commission.
Deputation or absorption:
Officers under the Cadre Controlling. Authority in the Indian Audit and Accounts Department or in any Organised Accounts Cadre under the Government of India:
(i) holding analogous posts of Assistant Accounts Officer or Assistant Audit Officer in Pay Band -2, Pay Scale of Rs. 9300-34800 with Grade Pay of Rs. 4800/-; or .
(ii) who, has passed the Subordinate Accounts Service or Subordinate Audit Service Examination under other Cadre Controlling Authority in the Indian Audit and Accounts Department or an equivalent examination in any Organised Accounts Cadre under the Government of India.
Note 1.- The departmental officers in the feeder 11 C-3/Item-22 OA-4148/2024 category who are in the direct line of promotion shall not be eligible for consideration for appointment on deputation or absorption. Similarly, deputationists shall not be eligible for consideration for appointment by promotion.
Note 2.- Period of deputation including period of deputation in another ex-
cadre post held immediately preceding this appointment in the same or some other Organisation or Department of the Central Government shall ordinarily not to exceed three years. The maximum age limit appointment by deputation shall not be exceeding fifty-six years as on the closing date of receipt of applications.
Note 3.- For the purpose of appointment on deputation or absorption basis, the service rendered on a regular basis by an officer prior to the 1st January, 2006, the date from which the revised pay structure based on the Sixth Central Pay Commission recommendations has been extended, shall be deemed to be service rendered in the corresponding Grade Pay or Pay Scale extended based on the recommendations of the Pay Commission, except where there has been merger of more than one pre-revised scale of pay into one grade with a common Grade Pay or Pay Scale, and where this benefit will extend only for the post for which that Grade Pay or Pay Scale is the normal replacement grade without any upgradation."12
C-3/Item-22 OA-4148/2024
20. From a bare reading of the Column 10 and 11 of the 2016 Rules we do not find that the same contains any stipulation based on which a deputationist, can claim any vested right for permanent absorption upon the post to which he has been deputed.
22. We find a fallacy in such submission based on a plain reading of Clause 10 and 11 of the Rules. The method of recruitment specified in Clause 10 vests a discretion, enabling the authority to resort to promotion in case they fail to make direct recruitment. It further enables the competent appointing authority to resort to deputation or absorption in case of failure to make recruitment by way or promotion. The Rule is framed under Article 148(5) of the Constitution of India and therefore retains the autonomy and discretion of CAG to resort to either of these 4 modes of recruitment. Such discretion under the Rule, however, does not create any corresponding vested right in the person working on deputation in the cadre which can be enforced by issuance a positive direction for absorption of a deputationist, as has been done by the Tribunal."
iv. The Recruitment Rules have also been examined by the Hon'ble High Court at Calcutta in W.P.C.T. 63 of 2025. The deputation of the applicant was extended by order dated 16.01.2024 until 25.03.2025. By the order dated 16.10.2024, the deputation was curtailed and she was relieved to join the parent department. He places reliance upon the DOP&T OM 08.09.2022 at para 12, page no. 121 of the Original Application. Para 12 of the said OM dated 08.09.2022 is reproduced hereinbelow:-
"12. The deputationist officer is deemed to have been relieved on the date of expiry of the deputation period unless the competent authority has with requisite approvals, extended the period of deputation, in writing, prior to the date of its expiry. It will be the responsibility of the immediate superior officer to ensure that the deputationist does not overstay. In the event of the officer overstaying for any reason whatsoever, he/she is liable to disciplinary action and other adverse Civil/Service consequences which would include the period of unauthorized overstay not being counted for service for the purpose of pension and that any increment due during the period of unauthorized overstay being deferred with cumulative effect, till the date on which the officer rejoins his parent cadre.13
C-3/Item-22 OA-4148/2024 [DoPT's OM No. 6/8/2009-Estt.(Pay-II) dated 1.3.2011] All the Ministries/Departments are to ensure that deputations are strictly monitored by the lending Government Ministry/Department/Organization. Requests of the borrowing authorities for no objection to extension of deputation should be closely scrutinized to curb tendency to allow extensions on extraneous ground and overstay.
[DoPT's OM No. 6/8/2009-Estt. (Pay-Il) dated 16.5.2013]"
v. The applicant has been allowed deputation on spouse ground and once she has proceeded on spouse ground, she cannot be allowed to continue on spouse ground. She has an all India liability to meet. The DOP&T has advised that as far as possible, the applicant be accommodated under spouse ground but it is not supported by the statutory rules.
vi. Learned counsel for the respondents draws strength from the following judgments in support of his contentions :-
(a) Union of India and Ors. Vs. S.L. Abbas (1993) 4 SCC 357 decided on 27.04.1993. He relied on paras 6 to 10 of the judgment, which are reproduced hereinbelow :-
6. An order of transfer is an incident of Government Service.
Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority". Fundamental Rule 15 says that "the President may transfer a government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that order of his transfer is vitiated by mala fides on the part of the authority making the order,- though the Tribunal does say so merely because 14 C-3/Item-22 OA-4148/2024 certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at shillong, his children are studying there and also because his health had suffered a set-back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force.
7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the government employee a legally enforceable right.
8. The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the constitution of India in service matters. This is evident from a perusal of Article 323-A of the constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Article 323-A. (We find it all the more surprising that the learned Single Member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constraints of the writ jurisdiction.) The Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer. In this case the Tribunal has clearly exceeded its jurisdiction in interfering with the order of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (competent authority).
9. Shri Goswami, learned counsel for the respondent relies upon the decision of this Court in Bank of India v. Jagjit Singh Mehta [1992] 1 S.C.C.306 rendered by a Bench of which one of us (J.S. VermaJ.) was a member. On a perusal of the judgment, we do not think it supports the respondent in any manner. It is observed therein: (SCC PP. 308-09, para 5: ATC pp. 530-31, para 5) "There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed 15 C-3/Item-22 OA-4148/2024 should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of all-India services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an all- India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station,'they cannot as-of right claim to be relieved of the ordinary incidents of all-India service and avoid transfer to a different place on the ground that-the spouses thereby would-be posted at different places ..... No doubt the guidelines requires the two spouses to he posted at one pi" as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees."
(emphasis added)
10. The said observations in fact tend to negative the respondent's contentions instead of supporting them. The judgment also does not support the Respondents' contention that if such an order is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor. It does not also say that the Court or the Tribunal can quash the order of transfer, if any of the administrative instructions/guidelines are not followed, much less can it be characterised as malafide for that reason. To reiterate, the order of transfer can be questioned in a court or Tribunal only where it is passed malafide or where it is made in violation of the statutory provisions."
(b) Bank of India Vs. Jagjit Singh Mehta (1992) 1 SCC 306 decided on 22.11.1991. The relevant relied upon para 5 of the judgment reads as under :- 16
C-3/Item-22 OA-4148/2024 "There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of All-India Services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an All-India Service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of All-India Service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. In addition, in the present case, the respondent voluntarily gave an undertaking that he was. prepared to be posted at any place in India and on that basis got promotion from the clerical cadre to the Officers' grade and thereafter he seeks to be relieved of that necessary incident of All-India Service on the ground that his wife has to remain at Chandigarh. No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consid- er this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees."
(c) Kendriya Vidyalaya Sangathan Versus Damodar Prasad Pandey and Others (2004) 12 SCC 299 decided on 20.09.2004. He relief upon para 4 of the judgement which reads as under :-
"4. Transfer which is an incidence of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by malafide or infraction of any prescribed norms of principles governing the transfer (see Ambani Kanta Ray vs. State of Orissa, (Suppl) 4 SCC 169). Unless the order of transfer is vitiated by malafide or is made in violation of operative guidelines, the Court cannot interfere with it. (see Union of India vs. S.L. Abbas 1993 AIR(SC) 2444. Who should be transferred and posted 17 C-3/Item-22 OA-4148/2024 where is a matter for the administrative authority to decide. Unless the order of transfer is vitiated by malafide or is made in violation of operative any guidelines or rules the courts should not ordinarily interfere with it. In Union of India & Ors. Janardan Debanath & Anr. 2004 (4) SCC 245 it was observed as follows:
"No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd. vs. Shri Bhagwan (2001) 8 SCC 574".
(d) The Controller and Auditor General of India & Ors. Vs. Niraj Kumar Singh in W.P.C.T. 63 of 2025 decided on 07.07.2025. In support of his contentions, he relied upon paras 12 and 20, which read thus:-
12. The representation was rejected by a letter dated 30.11.2023. The authorities again relied upon Para 10.2 (a) of the DOPTs office memorandum 3.10.1989 for rejection, as according to Para 10.2 (iv) of the OM, pre-condition to a favourable consideration Calcutta High Court W.P.C.T. 63 of 2025 dt.07.07.2025 for absorption of a deputationist is that the original circular letter inviting nomination for deputation should have clearly mentioned the possibility of permanent absorption. Since the original circular dated 28.8.2017 did not contain any such possibility of permanent absorption, the authorities had no scope to consider the applicant's claim for absorption.
xxx xx xx
20. From a bare reading of the Column 10 and 11 of the 2016 Rules we do not find that the same contains any stipulation based on which a deputationist, can claim any vested right for permanent absorption upon the post to which he has been deputed."
(e) He further draws attention to the decision of the Hon'ble High Court of Delhi in W.P.(C) 10707/2018 decided on 19.10.2023, which is placed at page 20 of the counter reply. Paras 27, 42 & 43 of the same are reproduced hereinbelow:-
"27. In support of his contention, he has relied upon the following judgments for the following propositions:-
(a) Kunal Nanda v. Union of India and Anr., (2000) 5 SCC 362; wherein the Supreme Court held that, unless the 18 C-3/Item-22 OA-4148/2024 claim is based on any statutory rule, regulation or having the force of law, a deputationist cannot assert and succeed in any such claim for absorption.
(b) Ct. Jagdish Prasad Jat and Ors. v. Union of India Ors., 2021 SCC OnLine Del 3825, wherein a Co-ordinate Bench of this Court has held that the position of law is well settled with regard to absorption, that absorption cannot be claimed as a matter of right as there has to be a consensus between the parent department and the depart in which absorption is sought.
42. A perusal of the O.A. filed by the petitioner reveal that the same was filed seeking absorption because the Recruitment Rules provided for absorption and also there is nothing against the petitioner which may have a bearing on his absorption. The plea, also appears to be that persons without any NOC from the DoP&T continued on deputation beyond five years i.e., for six years / seven years and as such the action of the respondents is discriminatory. Such a plea is not sustainable, today, as the petitioner on the strength of the interim order passed by this Court has continued for almost ten years on deputation.
43. It is a settled position of law, in terms of the judgments of the Supreme Court that a deputationist cannot continue to hold the post in perpetuity when the instructions issued by the DoP&T clearly stipulates the maximum period of deputation as five years. In this regard we reproduce paragraph 6 of the judgment in Kunal Nanda (supra), in our conclusion, wherein it is held as under:
"On the legal submissions made also there are no merits whatsoever. It is well settled that unless the claim of the deputationist for permanent absorption in the department where he works on deputation is based upon any statutory Rule, Regulation or Order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation. The reference to the decision reported in Rameshwar Prasad vs M.D., U.P. Rajkiya Nirman Nigam Ltd. and Others [1999 (8) SCC 381] is inappropriate since, the consideration therein was in the light of statutory rules for absorption and the scope of those rules. The 19 C-3/Item-22 OA-4148/2024 claim that he need not be a graduate for absorption and being a service candidate, on completing service of 10 years he is exempt from the requirement of possessing a degree need mention, only to be rejected. The stand of the respondent department that the absorption of a deputationist being one against the direct quota, the possession of basic educational qualification prescribed for direct recruitment i.e., a degree is a must and essential and that there could no comparison of the claim of such a person with one to be dealt with on promotion of a candidate who is already in service in that department is well merited and deserves to be sustained and we see no infirmity whatsoever in the said claim."
7. Rejoinder submission by learned counsel for the applicant 7.1 In rejoinder, Sh. Amit Anand, draws attention to order dated 03.02.2025 read with order dated 07.03.2025. He submits that by virtue of the said order, the Child Care Leave of the applicant was curtailed and she was directed to join at Gwalior itself. Accordingly, the applicant was persuaded to prefer the Contempt Petition. He submits that the conduct of the respondents is vindictive, since the applicant has not joined at Headquarters, her deputation for one year was extended. He submits that whatever submissions have been made by learned counsel for the respondents are not part of the pleadings and, therefore, cannot be taken into consideration, that is to clarify the spouse ground and the OM dated 03.10.1989. He would rather rely upon para 8 of the counter reply filed by the respondents.
8. Analysis 20 C-3/Item-22 OA-4148/2024 8.1 For adjudication of the remaining issues i.e. premature repatriation and permanent absorption of the applicant in office of respondent no.2, from the pleadings of the parties and the respective submissions by their learned counsels as recorded above, the following issues are formed:
i) Whether the present applicant has been unfairly repatriated prematurely to the office of Respondent No.3, before the expiry of her extended tenure of "deputation"?
ii) Whether the posts of Assistant Audit officers in office of Respondent No. 2 and in the Office of Respondent No.3 are from two different distinct cadres of Assistant Audit Officers governed by two distinct service Rules?
iii) Whether, Respondent No.1, by convention or executive order, has treated the Assistant Audit Officers like the present applicant to be permanently posted to sub-cadre of various offices in Delhi and in various states as contained in Column No. 2 of the Indian Audit and Accounts Department (Assistant Accounts Officers and Assistant Audit Officers) Recruitment Rules, 2020?
iv) Whether the present applicant is entitled to be absorbed in the Office of Respondent No.2 as per order dated 29.12.2023 issued by Respondent No.1?21
C-3/Item-22 OA-4148/2024 v) Whether the Present Applicant is entitled to be absorbed in
the Office of Respondent No.2 in view of the statutory provision of absorption as contained in clause 10 and 11 of the Indian Audit and Accounts Department (Assistant Accounts Officers and Assistant Audit Officers) Recruitment Rules, 2020?
8.2 Issue No.(i) Whether the present applicant has been unfairly repatriated prematurely to the office of Respondent No.3, before the expiry of her extended tenure of "deputation"?
The factual matrix detailed in Paragraphs 2.1 and 2.2 above, and the submission by the learned counsel for the applicant, particularly in his rejoinder, show that the respondent no.2 is hell bent to repatriate the applicant from its office to the office of the Respondent No.3, well before expiry of the extended period of "deputation". When the same Office was satisfied regarding the performance of the present applicant, it is only her "conduct" which has prompted them to take this drastic action. The "conduct" of the respondents in taking cognizance of the conduct of the present applicant, namely, her application for maternity leave, application for extension of maternity leave, her application for child care leave, her desperation to apply for absorption in office of Respondent No.2 after the premature repatriation notice, etc. do 22 C-3/Item-22 OA-4148/2024 point to a degree of vindictive action on the part of Respondent no.2. Respondent No. 2 is under the supervision of Respondent No.1 and the applicant belongs to the cadre of Audit officers recruited by Respondent No.1, but deployed to different offices as contained in Column No.2 the Indian Audit and Accounts Department (Assistant Accounts Officers and Assistant Audit Officers) Recruitment Rules, 2020. Hence, this Tribunal is of the opinion that, the treatment meted to the present applicant by Respondent No.2 is not commensurate with the concept of ideal employer, particularly in reference to highly esteemed constitutional authority like Respondent No.1. Accordingly, we hold that the Repatriation notice dated 16.05.2024 (Annexure-A2) deserves to be quashed.
8.3 Issue No.(ii) : Whether the posts of Assistant Audit officers in office of Respondent No. 2 and in the Office of Respondent No.3 are from two different distinct cadres of Assistant Audit Officers governed by two distinct service Rules? Issue No.(iii) Whether, Respondent No.1, by convention or executive order, has treated the Assistant Audit Officers like the present applicant to be permanently posted to sub-cadre of various offices in Delhi and in various states as contained in Column No. 2 of the Indian Audit and Accounts Department 23 C-3/Item-22 OA-4148/2024 (Assistant Accounts Officers and Assistant Audit Officers) Recruitment Rules , 2020?
These issues are interrelated and hence taken together. Issue No. (ii) has two components, namely (a) whether the posts of Assistant Audit Officers in Office of Respondent No.2 and Respondent No.3 belong to two different cadres but governed by the same Recruitment Rules and b) whether the posts of Assistant Audit Officers in Office of Respondent No.2 and Respondent No.3 belong to two different cadres but governed by different Recruitment Rules?.
From the pleadings by the both the parties and the submission by the respective counsels, there is inadequate information to adjudicate the present issue, along with the two subcomponents of the issue. However, the resolution of this issue is crucial to adjudicate the issue whether the present applicant is on "deputation" or on "transfer" from Office of Respondent No.3 to Office of Respondent No.2. If it is" deputation", then there are two distinct cadres as per Rules. None of the Distinct Rules applicable across sub-offices under Respondent No.1 have been brought to our notice. Issue No.(iii) seeks to find out whether by any executive decision such cadre of Assistant Audit Officers posted in different sub-offices under the supervision of Respondent No.1 are treated 24 C-3/Item-22 OA-4148/2024 as sub-cadres. In view of lack of information and clarification from the pleadings and submissions, these issues are kept open. 8.4 Issue No. (iv) : Whether the present applicant is entitled to be absorbed in the Office of Respondent No.2 as per order dated 29.12.2023 issued by Respondent No.1? It would be appropriate to reproduce letter dated 29.12.2023. The letter dated 2912.2023 is reproduced as bellow:
"OFFICE OF THE COMPTROLLER & AUDITOR GENERAL OF INDIA
9. DEEN DAYAL UPADHYAYA MARG, NEW DELHI-110 124 िदनां क/ DATE 29-12-2023
1. All Heads of the Department in IA&AD (Cadre Controlling Authorities)
2. Director General (Commercial) II - Local
3. Director General (Headquarters) - Local Subject:-Promotion of SAS passed officials awaiting promotion and appointment of the nominated candidates to the post of Assistant Accounts/Audit Officer through Combined Graduate Level Examination (CGLE)-2022-regarding Madam/Sir, In supersession of all circulars issued for deputation/absorption for the SAS examination passed officials, as a one-time special measure, the Comptroller & Auditor General of India has given in principle approval for promotion of all the candidates who have cleared SAS exam and are awaiting promotion on "AS IS WHERE IS BASIS". 2 The officials will be accommodated as under:
(1) The candidates in Audit Offices who have cleared the SAS exam (Audit) but are awaiting promotion may be promoted in the offices in which they are posted.
(ii) The candidates in A&E offices who have cleared the SAS exam (Accounts) may be promoted in the offices in which they are posted.25
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(iii) The candidates in A&E offices who have cleared the SAS exam (Audit) may be promoted and posted in the Audit offices in the same station.
(iv) The candidates in Audit offices who are on deputation from other offices (under the deputation circulars) may be promoted and absorbed in the offices in which they are posted.
3. The seniority of these SAS passed officials will be as per para 5.6.2 of CAG's MSO (Admn) Vol 1.
4. The seniority of the direct recruit officials will be as per the extant rules.
5. The CCAs will prepare detailed proposals and seek approval of Headquarters within one week i.e. by 08.01.2024 to increase interim strength to accommodate the surplus posts. The dossiers allocated for CGLE 2021 & CGLE 2022 may also be accounted for while preparing the proposal for computation of interim sanctioned strength.
6. Promotion orders of SAS passed officials will be issued within three weeks of receipt of approval of Headquarters.
7. An undertaking will be taken from all the concerned officials regarding their acceptance of promotion, seniority and place of posting (Proforma enclosed as Annexure).
8. The Cadre Controlling Authorities are requested to initiate immediate action and send the proposal to increase the interim sanctioned strength to accommodate the SAS passed officials on promotion basis and the candidates nominated for appointment to the post of Assistant Accounts/Audit Officer by 08.1.2024 positively.
9. The crucial date for implementation of this one time measure will be the date of issuance of this circular.
Enclosure: As above.
Yours faithfully, Sd/-
(Nilesh Patil) Asstt. Comptroller & Auditor General"
A bare reading of this communication shows that it is a one time special measure to remove stagnation in respect of the Auditors who have passed the SAS examination, but could not be promoted as Assistant Audit Officers due to lack of vacancy in the respective offices where they were posted. Such onetime special measure was 26 C-3/Item-22 OA-4148/2024 intended for the auditors, who had passed SAS examination, but had not been promoted. In the instant case, the present applicant, after passing the SAS examination, had been promoted as Assistant Audit Officer by Respondent No.3, though she was on deputation. Moreover, Respondent No.2 has accepted her as Assistant Audit Officer, granting all benefits of such promotion. In view this, the applicant cannot claim "absorption" on the basis of communication dated 29.12.2023.
8.5 Issue No.(v): Whether the Present Applicant is entitled to be absorbed in the Office of Respondent No.2 in view of the statutory provision of aborption as contained in cluse 10 and 11 of the Indian Audit and Accounts Department (Assistant Accounts Officers and Assistant Audit Officers) Recruitment Rules , 2020?
Even if we accept that there are different cadre controlling sub-
offices under the control of Respondent No.1 and the AAOs deployed in various sub-offices under Respondent No.1 are governed by the same Recruitment Rules, namely the Indian Audit and Accounts Department (Assistant Accounts Officers and Assistant Audit Officers) Recruitment Rules, 2020, the issue whether posting another sub-office under Respondent No.1 will be considered as deputation has been kept open as per the discussion in Paragraph 8.3 above. In case, these two sets of AAOs are 27 C-3/Item-22 OA-4148/2024 treated as belonging to separate sub-cadres, the present applicant has no indefeasible right to get absorbed in a separate sub-cadre or separate cadre. It is the discretion of the concerned cadre controlling authority to fill up a position either through promotion, deputation or absorption through deputation. The existence of a statutory provision only enables the present applicant to be considered for absorption. She has no indefeasible right to get absorbed in the deputed sub-cadre or distinctly different cadre.
8.6 The learned counsel for the respondents has quoted the provisions contained in Clauses 10 and 11 of the Indian Audit and Accounts Department (Assistant Accounts Officers and Assistant Audit Officers) Recruitment Rules, 2016. Unfortunately, this Rule has been replaced when Respondent No.1 has promulgated the Indian Audit and Accounts Department (Assistant Accounts Officers and Assistant Audit Officers) Recruitment Rules, 2020.
There are distinctly different provisions under Clause 10 of the said Rules of 2016 and 2020. However, the import of DOP&T OM dated 3.10.1989 as well as the ratio of the judgment of Hon'ble Calcutta High Court in WPCT 63 of 2025 are well appreciated. Similarly, DOP&T OM dated 1.03.2011 is relevant when the cadres of AAOs posted in office of Respondent No.2 and Respondent No.3 are treated as two distinct cadres. The judgment of the Apex court in S.L. Absas (supra) as cited by the learned counsel for the 28 C-3/Item-22 OA-4148/2024 Respondents is not applicable in the instant case, as the case at hand is not a plain transfer; it is a case of decline to absorb and resultantly the intent to repatriate the present applicant to the Office of Respondent No.3.
9. Conclusion 9.1 In view of the above analysis, we grant partial relief to the present applicant in the following manner:
(i) The Order dated 16.05.2024 by Respondent No.2 ordering premature repatriation of the present applicant to office of Respondent No.3 is quashed.
(ii) The Respondent No.1 shall pass a reasoned and speaking order regarding issue nos.(ii) and (iii) under paragraph No.8.1 above, within a period of 4 weeks from receipt of certified copy of this order and such speaking order shall be conveyed to Respondent Nos.2 and 3 within 7 days of passing of such order .
(iii) Respondent No.2 shall pass appropriate speaking order regarding absorption of the present applicant in their office within 15 days after passing of the speaking order by Respondent No.1.
(iv) The applicant is at liberty to challenge both the speaking orders by Respondent No.1 and Respondent no.3 by approaching the appropriate forum as per law.
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(v) The respondent no.2 shall not repatriate the present applicant till expiry of the extended deputation period or till 90 days after passing of appropriate speaking order by him as per (iv) above, whichever is later.
(vi) All pending MAs are disposed off accordingly. No order as to costs.
(Dr. Chhabilendra Roul) (Pratima K. Gupta) Member (A) Member (J) /dkm/