Central Administrative Tribunal - Delhi
Shri Jagvir Singh vs Controller General Of Accounts on 3 March, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO. 21/2008 New Delhi, this the 3rd day of March, 2010 CORAM: HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Shri Jagvir Singh, S/o Late Shri Sohan Singh, Age 42 years, R/o B/3-192, Arawali Apptt., Sector-34, Noida (UP) .Applicant (By Advocate: Shri Amit Anand) Versus 1. Controller General of Accounts, Department of Expenditure, Lok Nayak Bhawan, Khan Market, New Delhi 110 007 2. Principal Accounts Officer, Principal Accounts Office, Ministry of Industry, 517-D, Udyog Bhawan, New Delhi 110 011 3. Inland Waterways Authority of India, (Ministry of Shipping), GOI, A-13, Sector-1, Noida (UP) .Respondents (By Advocate: Shri H.K. Gangwani) O R D E R By Dr. Veena Chhotray, Member (A):
The applicant, a UDC belonging to the cadre of Inland Waterways Authority of India (Respondent No.3) and on deputation as an Accountant with the Respondent No.2, through this OA, is agitating his claims for permanent absorption with the latter. The following reliefs have been sought:-
a) to direct the respondents to consider the extension of the deputation period of the applicant from 29.1.2008 to 28.1.2009 or till the appointment on deputation matures to absorption;
to grant the same relief that has been granted to the applicant in OA No.2046/06 and 1385/07;
any other relief that this Honble Court may deem fit in the interest of justice. Even though the approved extended period of deputation in this case ended on 28.1.2008, the applicant has been continuing in that capacity by virtue of interim direction of the Tribunal staying the applicants repatriation to the parent department till the final outcome of the OA.
We have heard carefully the learned counsel for the applicant, Shri Amit Anand and the learned counsel for the respondents, Shri H.K. Gangwani. We have also carefully perused the material available on record.
2.1 The facts in brief are that the parent cadre of the applicant is the Inland Waterways Authority of India, under the Union Ministry of Shipping. The applicant was initially appointed as an LDC and subsequently promoted as a UDC. He was taken on deputation as Accountant with the Principal Accounts Office, Union Ministry of Industry (Respondent No.2) initially for two years vide Office Order dated 30.12.2002. This commenced from 29.1.2003. The deputation got extended year-wise till the completion of the 5th year on 28.1.2008. The order dated 24.1.2007 by the parent department concurring for this extension stated this to be the final and last extension of deputation (Annexure P/10). As regards further extension, the respondents stand in their OA is that deputation beyond 5 years is done only in exceptional cases with concurrence of DOP&T. It is further averred that since the applicant had been doing only routine type of work and was not considered indispensable, hence such a proposal had not been mooted.
2.2 At this point the applicant, however, approached the Tribunal by filing the instant OA on 3.1.2008, barely a few days before the deputation period was about to end. Resultantly by virtue of the judicial direction, the repatriation due has not come into effect and the applicant has still been continuing with the respondent no.2. However, they have taken the stand that for continuance beyond the approved period of deputation, there is no sanction of the competent authority nor does the applicant any more enjoy the status of deputation that stands expired since 28.1.2008.
2.3 The present OA was filed in the context of certain factual backgrounds. In 2006 in the context of acute shortage of manpower in the grades of LDC and Accountant in their field offices, the respondents were considering permanent absorption of the deputationists. In this regard, the relevant office Memorandum dated 14.3.2006 was issued by the Ministry of Finance, Department of Expenditure, Controller General of Accounts (Annexure P/1). Para 2 of this OM ran as follows:-
2. In order to strengthen the manpower deployment this office intends to examine the absorption of these deputationists in the CCAS cadre in public interest, as an one time measure. P. CCA/CCA/CA who intend to recommend absorption of any of the LDC, Accountants serving on deputation in their Min/Dept. may give the details in the proforma I and II for consideration by this Office latest by 15.4.2006. Accordingly, options had been called for vide the OM dated 20.3.2006 from among the deputationists currently working with them (Annexure P/4). In response, the applicant had opted for permanent absorption and NOC in this regard had also been communicated by the parent department (Annexure P/6). It is these OMs the applicant had been relying upon to agitate his claim for permanent absorption while filing the instant OA. Besides, the plea of grant of same relief provided to others claimed to be similarly situated persons in the OAs No.2046/2006 and 1385/2007 had also been raised. We find, however that the detailed particulars of these cases or copies of these orders have not been annexed with the OA nor made available.
2.4 The respondents had been actively pursuing the proposal for absorption for quite some time as is revealed from the OM dated 29.6.2007 from the Office of the Controller General of Accounts (Annexure P/12). As per this letter, absorption was required to be considered against the vacancies available under the Direct Recruitment quota and duly cleared by the Screening Committee. While indicating several priority-wise categories, the category under which the applicant falls had ranked as serial No.II. It had also been stated in this letter that the persons should fulfill the eligibility conditions required for the post as per the Recruitment Rules.
As the extension beyond 28.1.2008 had not materialized, apprehending his repatriation and pursuing the proposal for permanent absorption, the applicant had filed this OA.
2.5 The learned counsel for the applicant would seek to project this as a case of victimization because of the applicant having approached the Tribunal. Alleging a discriminatory treatment, the learned counsel would also justify the claims by way of equity and fair play. The respondents, however, have made some factual averments in their detailed counter affidavit explaining the entire situation which merit serious consideration. These are briefly mentioned below:
i) The proposal for permanent absorption being pursued vide their earlier OMs of 2006 and 2007 had to be withdrawn because of serious legal and administrative difficulties. Para-4 of the counter affidavit makes the following averment:-
4.That it may be mentioned that Respondent No.1 on reconsideration, has withdrawn the OMs dated 14.3.2006 and 29.6.2007 and proposals for permanent absorption have become infructuous. The OMs dated 14.3.2006 and 29.6.2007 have been withdrawn vide subsequent OM dated 28.1.2008 because several legal and administrative difficulties have been encountered in implementation of the proposal contained in these OMs. There is no provision in the recruitment rules for permanent absorption of deputationists. The OMs are based on the assumption that permanent absorption would be permitted by relaxing the recruitment rules. However, on reconsideration, such course of action has not been found proper for the reason that this will amount to creation of an altogether new mode of recruitment (permanent absorption) which is presently not available in the statutory recruitment rules. A copy of the OM dated 28.1.2008 is annexed herewith and marked as ANNEXURE-R5. Vide this OM it was stated that consequent to the withdrawal of the earlier OMs dated 14.3.2006 and 29.6.2007 all proposals for permanent absorptions pursuant thereof had become infructuous. Further, it was stated that for Accountant Grade, fresh process for permanent absorption in terms of the Gazette Notification dated 16.1.2008 had been initiated vide the Office Memorandum dated 22.1.2008.
ii) The aforesaid Notification dated 16.1.2008, as mentioned above, refers to the subsequent amendment in the statutory rules made by the respondents incorporating the enabling provisions under the Recruitment Rules for filling up the direct recruitment quota of the post of Accountant, if left unfilled, by deputation subject to certain stipulation, of course.
iii) As regards the claims in the present OA, the respondents have averred them to be utterly untenable because of multi-fold reasons : (a) withdrawal of the OMs of 2006 and 2007 being relied upon by the applicant in the OA made it infructuous, (b) the applicant who is continuing beyond the approved period of deputation only in pursuance of the interim judicial direction does not have the status of a deputationist after 28.1.2008. (c) Till 28.1.2008 no regularly approved vacancies were available. Para 4.5 states regarding there being a ban on recruitment and only those direct recruitment vacancies to be filled which have been cleared by the Screening Committee. Thus, according to the respondents there were no clear vacancies available to accommodate the applicant even if the proposal to absorb deputationists has been alive. (d) The applicants case is said to be different from the case decided by the Tribunal vide its order dated 6.12.2006 in OA No.2046/2006 for the reason that at that point of time the aforesaid OMs dated 29.6.2007 and 28.1.2008 were not in existence. It is the stand of the respondents that the OM of 14.3.2006 does not have to be read in isolation. (e) The applicant does not have any legally enforceable claim. The original order of deputation was subject to the standard terms and conditions which mean that the deputation is for a specified period and would eventually come to an end. Similarly the extension orders had carried no assurance regarding permanent absorption. It is also stated that even the OM of 14.3.2006 which is being relied upon by the applicant had only mentioned about the intention of the respondents to consider cases of permanent absorption and there was no definite commitment in this regard.
3. The learned counsel for the applicant would seek to derive legitimacy from the amended Rules, which had the enabling provisions for permanent absorption and had come into force w.e.f. 16.1.2008 before the period of deputation of the applicant was over. Adverting to the relevant provisions, the learned counsel would contend that since the applicant was eligible as per these Rules, denial of such a consideration to him has been arbitrary and not in consonance with law. In support, the learned counsel would also rely upon a judgment of the Honble Supreme Court in Rameshwar Prasad vs. Managing Director, U.P. Rajkiya Nirman Nigam Limited & Ors, (1999) 8 SCC 381, wherein it was held that when statutory rules provide for absorption, a deputationst had a right to be considered and denial of absorption in such a case without justifiable reasons would not be in consonance with law.
4.1 It is settled in law that a Government employee does not have any right for deputation except to a very limited extent of being considered fairly and reasonably (Kamal Kanti Chatterjee vs. Board of Trustee of the Port of Calcutta, 1996 CWN 305 DB, decided by the Calcutta High Court). As a logical corollary, the same would also apply to the issue of permanent absorption of a deputationist. What we find is that the facts in the present case are not in favour of the applicant. After extending his depuitation for the maximum permissible period - in the normal course as per the rules for 5 years, further extension had not been found necessary by either side. This is not only the stand of the borrowing department but also of the parent department as has already been mentioned in paragraphs 2.5(iii) above.
4.2 As regards the proposal for permanent absorption of deputationists, the same had to be dropped mid-stream, the justifications for its have been reasonably explained. The applicants claim for consideration under the newly amended rules also not found to be supportable either factually or legally. Considering the multiple arguments given by the respondents as already recounted in para 2.5 above, it could be added to this that even as per the amended Rules, the enabling provisions have several riders attached before the direct recruitment quota could be filled by absorption of deputationists i.e. (a) only the posts remaining unfilled by D.R. quota through SCC and (b) the deputationist has to be of an exceptionally good performer. Also with due respect we hold the view considering the distinguishing facts of this case that the judgment of the apex court being relied upon by the applicants counsel would not be applicable.
Even though the learned counsel for the applicant would produce a copy of the order dated 30.09.2009 regarding permanent absorption as Accountant, for want of detailed averments that the facts of these cases were identical to the present one, we are not able to rely upon this to substantiate the ground of discrimination either.
5. In view of the foregoing, we find the OA as beret of merit. The interim direction is vacated. The OA is dismissed with no order as to costs.
(VEENA CHHOTRAY) (SHANKER RAJU)
MEMBER (A) MEMBER (J)
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