Central Administrative Tribunal - Delhi
Ajay Kumar vs M/O Health And Family Welfare on 12 September, 2018
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.1297/2016
Order Reserved on : 05.09.2018
Pronounced on : 12.09.2018
Hon'ble Mr. Justice L. Narasimha Reddy, Chairman
Hon'ble Ms. Aradhana Johri, Member (A)
Ajay Kumar S/o Shambhu Dayal,
R/o 20/10, Pant Nagar, Jangpura,
New Delhi-110014. ... Applicant
( By Shri Nalin Kohli, Ms. Nimisha Menon, Shri A. K. Behera
and Shri A. P. Singh, Advocates )
Versus
1. All India Institute of Medical Sciences (AIIMS)
through its Director, Ansari Nagar,
New Delhi-110029.
2. The Administrative Officer,
Recruitment Cell,
All India Institute of Medical Sciences,
Ansari Nagar, New Delhi-110029.
3. Union of India through
Secretary, Ministry of Health and Family Welfare,
Nirman Bhawan, New Delhi. ... Respondents
( By Shri V. S. R. Krishna and Shri Duli Chand, Advocates )
ORDER
Justice L. Narasimha Reddy, Chairman :
The applicant joined the service of All India Institute of Medical Sciences (AIIMS), the first respondent, as a OA-1297/2016 2 Stenographer. He was promoted to the post of Personal Assistant in March, 1992, and to the post of Private Secretary, on 19.01.2001. He was further promoted to the post of Principal Private Secretary through order dated 19.08.2011.
2. The first respondent issued an advertisement in October, 2014 (Annexure R-3) inviting applications to fill up the post of Senior Administrative Officer (Sr.AO) in Pay Band-3 of Rs.15600-39100 with Grade Pay Rs.6600/-, on deputation basis. It was also mentioned that the selected candidates will be appointed for a period of three years. The applicant also submitted his application. Through order dated 13.05.2015 (Annexure A-6) he was appointed as Sr.AO on deputation basis for a period of three years.
3. There exists a post of Chief Administrative Officer (CAO) in the first respondent Institute. The method of appointment to that post, as per the recruitment rules, is 100% by promotion, failing which by deputation. The feeder category for promotion is Sr.AO with five years of service in the grade. The first respondent issued notification/ advertisement in March, 2016 (Annexure A-1) inviting applications for appointment to the post of CAO in the Pay Band-3 Rs.15600- OA-1297/2016 3 39100 plus Grade Pay Rs.7600/-, by way of deputation. The period of deputation is mentioned as three years. The qualifications to be held by the candidates are also mentioned therein.
4. This OA is filed for two principal reliefs, namely, (a) to declare that the appointment of the applicant to the post of Sr.AO is by way of "transfer", and is permanent in nature, and to direct the respondents to amend the order of appointment dated 13.05.2015 (Annexure A-6) accordingly; and (b) to declare that the applicant is eligible to be appointed as CAO by way of promotion. As a corollary to this, a prayer for setting aside the Annexure A-1 advertisement is also sought.
5. The applicant contends that the appointment to the post of Sr.AO is 100% through promotion, and only when suitable candidates are not available for that purpose, it can be by deputation. He contends that he was eligible to be promoted to the post of Sr.AO, and in fact the screening committee also found him fit for that post, and despite that, it was mentioned in Annexure A-6 that the appointment is by way of deputation. According to the applicant, the wording in Annexure A-6 in this behalf is contrary to the relevant service OA-1297/2016 4 regulations, and the appointment deserves to be treated as the one, through "transfer", and without any limit as to tenure.
6. Proceeding on the basis that he is regular incumbent in the post of Sr.AO, the applicant contends that the first respondent ought to have filled up the post of CAO through promotion, and that there was absolutely no basis for issuing the Annexure A-1 advertisement.
7. On behalf of the first respondent, a detailed counter affidavit is filed. According to them, the posts of Sr.AO and CAO occur in the administrative cadre, whereas the post held by the applicant is in the cadre of stenographers. It is stated that on account of non-availability of candidates in the feeder category for the post of Sr.AO, the advertisement in Annexure R-3 was issued for appointment through deputation, and knowing fully well that the appointment is not by way of promotion, and is only through deputation, the applicant submitted application. It is stated that in view of the recommendation of the cadre controlling authority to permit deputation within the organization, the applicant who happens to be from the stenographers cadre, was appointed as Sr.AO on deputation, in the administrative cadre. It is stated that there is OA-1297/2016 5 no method of appointment to the post of Sr.AO by way of transfer, and the question of the applicant being treated as having been appointed on transfer does not arise. They further state that the applicant has since been repatriated to his parent cadre of stenographers, on completion of three years‟ term.
8. As regards promotion to the post of CAO, it is stated that the applicant does not have any right to be considered for the same, since he is not a regular incumbent in the post of Sr.AO, much less he has the required length of service, and that he is from a different cadre altogether. It is also stated that a person who holds a post purely on deputation basis, cannot at all be treated as eligible for promotion from that post. According to the first respondent, they had to take recourse to the process of deputation, since there are no eligible candidates for promotion to the post of CAO in the feeder category.
9. Arguments on behalf of the applicant were advanced by Shri Nalin Kohli, learned senior counsel. He contends that the appointment of the applicant as Sr.AO could not have been by any method, other than by way of transfer, and the use of the word "deputation" in the order of OA-1297/2016 6 appointment does not have any legal support. He contends that though the post of Sr.AO occurs in the administrative cadre, and the post of PPS in the cadre of stenographers, both of them are part of the cadre of administration, and that the view taken by the respondents cannot be sustained in law. He submits that the discontinuance of the applicant in the post of Sr.AO is absolutely illegal, and the applicant deserves to be treated as eligible for promotion to the post of CAO. It is also argued that the respondents were required to exhaust the method of promotion before taking recourse to the deputation, and taking recourse to deputation without considering the case of the applicant for promotion, is opposed to the relevant recruitment rules.
10. Learned senior counsel further argued that in the event of there being any conflict between the executive orders, on the one hand, and the recruitment rules, on the other, the latter will prevail, and viewed in this context, the various clauses of Annexure A-6, such as incorporating the word "deputation", or restricting the tenure to three years, are absolutely without basis.
OA-1297/2016 7
11. Shri V. S. R. Krishna, learned counsel for the first respondent, on the other hand, submits that the very assumption of the applicant that he is part of the administrative cadre, is without any basis. He contends that the applicant responded to the notification issued for inviting applications for appointment to the post of Sr.AO through deputation, and even when he was issued the order of appointment as in Annexure A-6, he did not make any protest, but had chosen to reap the benefit thereunder. He contends that as of now, the applicant stood repatriated to his parent cadre of stenographers, and there is no way, that he can be treated as eligible for promotion to the post of CAO.
12. As observed at the outset, there are two principal issues for consideration in this OA. The first is as regards the nature of appointment of the applicant to the post of Sr.AO, and the second is about the steps initiated by the first respondent for appointment to the post of CAO.
13. The first respondent is a gigantic organisation with multifarious activities. Naturally, the administration thereof requires different categories of employees, with several cadres. A glance at the index of the service regulations of the first OA-1297/2016 8 respondent discloses that separate cadres are constituted for engineering services, telephone services, computer facility, administrations, library, medical records, finance & accounts, public relations, central workshop, guest house, transport establishment, and nearly ten other services in the non-medical field itself. As regards the cadres in administration, the broad categorization is as under:
Cadres in Administration (24) Ministerial Cadre (comprising LDCs-192;
UDCs-83; and Head Clerks-23).
24(A) Administrative Cadre (comprising Office Superintendents-18; Asstt. Administrative Officer-4; Estate Manager-1; Assistant Registrar- 2; Committee Officer-1; Administrative Officer-6; Sr. Administrative Officer-2; OSD-1; Chief Administrative Officer-1; Asstt. Controller of Examinations-1).
(25) Stenographers (comprising Stenographers- 87, PA-35; Sr.PA-38; PS-3; PPS-4).
(26) Group „D‟ (comprising Peon/Sports
Attdt./Hostel Aya/Female Attdt-109;
Daftry/Record Sorter-40; Machine
Operator/Gest.-5).
The method of promotion from one post to another in the same cadre is also provided through relevant rules. There is no denial of the fact that the applicant held almost every post in the cadre of stenographers. The post of Sr.AO occurs in the OA-1297/2016 9 Administrative Cadre. The method of appointment to that post is indicated as under:
"100% by promotion failing which by
deputation"
The feeder category for promotion is mentioned as under:
"Administrative Officer with 5 years of regular service in the grade of Rs.2375-3500 or 8 years of regular service in the grade of Rs.2000-3500."
The grade of Rs.2375-3500 in the administrative cadre is attached to the post of Asstt. Administrative Officer. The applicant does not hold any post in the administrative cadre. Though the various posts held by the applicant in the stenographers‟ cadre come under the umbrella of the "cadre of Administration", he is not part of the "Administrative cadre". Obviously, because there was no eligible candidate for the post of Sr.AO in the feeder category, the first respondent issued advertisement in the year 2014 inviting applications for appointment to the post, by way of deputation. The relevant part of the notification reads as under:
"Applications are invited in the prescribed proforma for filling up the post of Senior Administrative Officer at this Institute ON DEPUTATION BASIS with the following prescribed criteria:..."
OA-1297/2016 10 Qualifications to be held by the candidates as well as the period of deputation are mentioned therein.
14. The applicant submitted application in the prescribed proforma, and the same was forwarded by the concerned authority. The order of appointment issued to the applicant reads as under:
"Subject: Appointment of Sh. Ajay Kumar to the post of Senior Administrative Officer (on deputation) at the AIIMS, New Delhi.
With reference to his application/interview for the post of Senior Administrative Officer (on deputation basis) at the Institute and on the recommendation of the Selection Committee, the President, AIIMS is pleased to approve the appointment of Sh. Ajay Kumar to the post of Senior Administrative Officer on deputation basis in the Pay Band-3 of Rs.15,600-39,000 with grade pay of Rs.6600/- plus other usual allowances as are admissible to the Central Government servants of his status stationed at Delhi/New Delhi at the All India Institute of Medical Sciences.
Accordingly, the aforesaid post is offered to him for a period of three years, on the terms and conditions as are made applicable at the Institute from time to time, some of which are indicated here under:-
1. Private practice of any kind is prohibited.
2. The period of deputation shall not ordinarily exceed 3 years.
OA-1297/2016 11
3. He may please note that he will be required to conform to the rules, regulation, discipline and code of conduct prevailing in this Institute and those imposed by the Institute on their employees from time to time.
4. If any of the declarations made or information furnished by him is proved to be false or if he is found to have willfully suppressed any material information, he will be liable to removal from the Institute‟s service besides any other action that the Institute may deem necessary.
5. His deputation to the Institute will be regulated as per terms and conditions of deputation detailed in Department of Personnel & Training‟s O.M. No.6/8/2009-Estt.(Pay II) dated 17-06- 2010.
If the offer is acceptable to him on the aforesaid conditions, he may please communicate his acceptance to the undersigned immediately and also report himself for duty as early as possible, but not later than 10-06-2015. In case, he does not send his acceptance immediately or does not join the post by the stipulated date, he should consider this officer of appointment as cancelled/withdrawn.
The receipt of this letter may please be acknowledged."
15. A genuine doubt may arise as to how an employee of the same organisation was appointed to a post in it, on deputation basis. The answer to this is found in the recommendations made by the Cadre Review Committee way OA-1297/2016 12 back in the year 1990, which, in turn, were accepted by the administration of the first respondent Institute. One of the aspects dealt with by the Committee was about the process of induction of employees of various categories by way of deputation into AIIMS. The point for its consideration was framed as under:
"(xii) There should be no induction by deputation except in the case of higher level posts such as DDA, S.E., and Labour Officer etc. The post of Accounts Officer, Divisional Accountants which are being filled by deputation and it should be open to eligible institute employees."
The recommendation of the Committee reads as under:
"19. The approach of the Cadre Review Committee has been to prescribe promotion from lower grades if there are eligible persons, from within the Institute cadres and to restrict deputation from outside to the minimum. While filling any post on deputation there should be no objection in considering officers of the Institutes if they are possessing the qualifications and experience prescribed for a deputation post."
Thus, it is clear that the Committee recommended that wherever it is possible, the employees of various cadres in the AIIMS can also be considered for deputation, and thereby the induction of candidates from outside be reduced to the OA-1297/2016 13 minimum. It is in this context, that the applicant came to be appointed as Sr.AO on deputation.
16. In case, the applicant had any reservations about the manner in which he was appointed as Sr.AO, he was expected either to refuse the offer of appointment in that manner, or, at least, record his protest. Nothing of that sort has taken place. On completion of the term of three years, he has been repatriated to his parent/original cadre of stenographers, i.e., the post of PPS. The order of repatriation was challenged by filing an MA. However, we do not find much merit in it.
17. The prayer of the applicant is to treat his appointment to the post of Sr.AO as the one by way of „transfer‟. It may be true that one of the methods of appointment, which is treated on par with deputation, is by way of transfer. This occurs when an employee borne on another cadre, within the same or any other organisation, is appointed to a post in a particular cadre otherwise than through direct recruitment, promotion or deputation. While that the deputation would be for a limited period, an employee appointed on transfer basis shall become a regular member of the service. However, it is only when the relevant service rules OA-1297/2016 14 provide for appointment by way of transfer, that it can be resorted to. The rules pertaining to the post of Sr.AO have already been reproduced in the preceding paragraphs. There is no mention of the method of transfer. Therefore, the question of appointment of the applicant being treated as the one by way of transfer does not arise. It is for the organization concerned, to provide for the methods of appointment. Courts cannot alter the same nor introduce a different one.
18. The second issue is about the steps initiated by the first respondent for appointment to the post of CAO. The rules of appointment to that post are almost similar to those for the post of Sr.AO. It is also 100% by way of promotion, failing which by deputation. The only difference is that the feeder category for this post of Sr.AO with five years‟ service in the grade. Stating that there are no eligible candidates to be promoted to the post of CAO, the respondent issued the advertisement/notification as in Annexure A-1. The applicant takes exception to this. According to him, he is eligible to be considered for promotion to the post of CAO, and without taking recourse to that method, the first respondent issued the impugned advertisement/notification.
OA-1297/2016 15
19. First of all it needs to be examined as to whether the applicant is eligible to be promoted to the post of CAO. It has already been mentioned that the feeder category to the post is the post of Sr.AO with five years of service. The post of Sr.AO occurs in the administrative cadre. Though the applicant held the post of Sr.AO, it was by way of deputation, that too for a limited period. It is fairly well settled that a deputationist can never be treated as a permanent member of a cadre in which he is working on deputation, and the question of his being considered for promotion to the next higher post in the establishment to which he is deputed, does not arise. Further, once the claim of the applicant for being treated as having been appointed on transfer to the post of Sr.AO is rejected, he cannot have any right to claim promotion to the post of CAO. At any rate, as of now the applicant is not holding the post of Sr.AO in whatever capacity. As on the date of the impugned advertisement/notification, he was not eligible to be considered for promotion.
20. The first respondent categorically stated that it is only on finding that there are no eligible candidates for promotion to the post of CAO that the alternative method of OA-1297/2016 16 appointment through deputation has been resorted to. The applicant is not able to demonstrate that there are any candidates holding the post of Sr.AO on regular basis so that the possibility of making the appointment through promotion to the post of CAO could have been explored. Therefore, the claim of the applicant that he is eligible to be considered for promotion to the post of CAO by way of promotion, cannot be accepted.
21. Shri Nalin Kohli, learned senior counsel, placed reliance upon the judgments of the Hon‟ble Supreme Court in Dr. S. K. Kacker v All India Institute of Medical Sciences & others [(1996) 10 SCC 734]; and Raj Kumar & others v Shakti Raj & others [(1997) 9 SCC 527], in support of the contention that if there exists any conflict between the executive instructions or orders, on the one hand, and the statutory rules, on the other, the former must give way. There is absolutely no quarrel with the proposition. However, we do not find any occasion to apply that in the facts of the instant case. The plea that certain words contained in the Annexure A-6 order of appointment run contrary to the recruitment rules, cannot be accepted. On the other hand, every word in the Annexure A-6 OA-1297/2016 17 conforms to the rules pertaining to the appointment by way of deputation.
22. We do not find any basis to grant relief to the applicant. The OA is accordingly dismissed. There shall be no order as to costs.
23. Before parting with this case, we observe that the assistance we received from the learned counsel for the respective parties was phenomenal.
( Aradhana Johri ) ( Justice L. Narasimha Reddy ) Member (A) Chairman /as/