Central Administrative Tribunal - Delhi
O.P. Gaba vs Union Of India (Through) on 3 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 3718/2010 New Delhi this the 3rd day of March, 2011 Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) O.P. Gaba, R/0 :C. II/207, Gul Mohur Enclave, Rakesh Marg, Ghaziabad (UP)-201001 Applicant (By Advocate Shri A.S.N. Murti ) VERSUS 1. Union of India (Through) The Secretary to the Government of India, Department of Science & Technology, Technology Bhavan, New Mehrauli Road, New Delhi-110016. 2. The Secretary to the Govt. of India, Department of Personnel & Training, North Block, New Delhi-110011 Respondents (By Advocate Shri Anil Bhat ) O R D E R Mr. L.K.Joshi, Vice Chairman (A):
The issue for adjudication before us is whether the period of deputation, before absorption, in a particular grade would count for eligibility period for promotion under the Flexible Complementing Scheme (FCS) and whether the scale of pay during the period of deputation would be taken into consideration or the scale of pay, which the concerned employee was drawing in his parent Department at the time of coming on deputation would be material for consideration for promotion.
2. The Applicant was working in the Forest Survey of India before coming on deputation to the Department of Science and Technology (DST), the first Respondent, on 07.04.2004 as Scientist 'C' on deputation in the scale of pay of Rs.10,000-15,200. In his parent Department of Forest Survey of India, he was designated as Assistant Director and was in the scale of pay of Rs.8000-13,500. He was absorbed in the DST on permanent basis with effect from 18.08.2008. It is not in dispute that under the rules being followed by the DST, Scientist 'C' are eligible for promotion to the grade of Scientist 'D' under the FCS after four years of regular service in the grade of Scientist 'C'. After his absorption in the DST, the Applicant started making representations to the first Respondent for promotion to the grade of Scientist 'D', as he had completed four years of residency period in the grade of Scientist 'C' in the year 2008. The representations of the Applicant was rejected by Office Memorandum dated 08.06.2010. It was stated in the aforesaid order that the matter had been referred twice to the second Respondent, Department of Personnel and Training (DOP&T), which had advised that only the regular service was counted for promotion and the period spent on deputation would not count towards residency period under FCS. It further went on to state that the cases of promotion under the FCS would be considered under the new guidelines, as and when finalised by the DOP&T.
3. The learned counsel for the Applicant relied on K Madhavan and another V. Union of India and others, (1987) 4 SCC 566 for his argument that the period of deputation would count towards regular service. In the cited case the appellants K Madhavan and Santanu, directly recruited as DSPs in the CBI, were disputing the claim of one O P Sharma, one of the respondents, who came on deputation as DSP from Rajasthan Police to the CBI, for promotion by contending that the period of deputation would not be counted as regular service. The Honourable Supreme Court held thus:
10. The 1975 Rules which are relevant for the purpose do not explain what is meant by the expression 'on a regular basis'. The expression has created some ambiguity in the eligibility clause giving rise to this controversy. There can be no doubt that when a person is appointed to a post against a permanent vacancy on probation, his appointment is on a regular basis, but when a person is appointed to a post on a purely temporary or on an ad hoc basis, the appointment is not on a regular basis. The expression 'on a regular basis' in the 1975 Rules cannot in our opinion, be interpreted to mean as on absorption in the CBI as SP. The general principle is that in the absence of any specific provision to the contrary, the length of service from the date of appointment to a post should be taken into consideration for the purpose of either seniority in that post or eligibility for the higher post. As no explanation has been given in the 1975 Rules of the said expression, we do not think it desirable to deviate from the established principle of computing the length of service for the purpose of seniority or eligibility for the higher post from the date of appointment. In our view, therefore, the expression 'on a regular basis' would mean the appointment to the post on a regular basis in contradiction to appointment on ad hoc or stop-gap or purely temporary basis. Respondent 5, in our opinion, satisfied the eligibility test of the 1975 Rules for consideration for the post of DIG. This Tribunal, relying on the above judgement of the Honourable Supreme Court, made the following observation in Sridhar Prakash V. Union of India and others, OA number 871/1995, decided on 05.09.1995:
4. A person appointed by way of transfer on deputation cannot be considered to be an adhoc employee. Transfer on deputation is also a method of recruitment according to the recruitment rules. Therefore, the appointment though on transfer on deputation was appointed regularly to the post of Sub-Inspector which carried a pay sale of Rs. 380-560. Though the applicant was absorbed in service only on 25.08.1984 and probably entitled to seniority in that grade only with effect from that date his services rendered prior to absorption as a deputationist being regular service has to be treated as regular service in determining eligibility for promotion. Even if the applicant was holding a lien on a post in the parent department which has a different pay scale does not alter the position. We are, therefore, of the considered view that the five years period for determining the eligibility should be reckoned from 10.2.1982 and not from 25.08.1984. We supported in taking this view by the dictum of the ruling of the Honble Supreme in Shir K.Madhavan Vs. UOI, in 1987 Vol ( ) 4 SCC 566 where it was held that the services rendered on deputation prior to regular absorption can be treated as regular service for the purpose of eligibility for promotion.
4. The Respondents, per contra, contend that (a) the period of deputation would not count towards regular service and (b) the Applicant would not be eligible for promotion to the grade of Scientist 'D' because he was in the scale of Rs.8000-13,500 in his parent department when he came on deputation, which was two grades below the grade of Rs.12,000-16,500 for the Scientist 'D'.
5. There is no force in the arguments of the Respondents. The issue regarding the counting of service during deputation as regular service has been decided by the Honourable Supreme Court in K Madhavan (supra) and subsequently followed by this Tribunal. The argument that the Applicant's scale of pay in the parent Department would be considered, while considering his eligibility for promotion and not the actual scale of pay, which he was drawing while on deputation is absolutely specious and does not have the sanction of the rules or guidelines. Admittedly, the Applicant was in the scale of Rs.10,000-15,200, the scale of Scientist 'C', while on deputation. He was working as Scientist 'C', while on deputation. It would be anomalous in the extreme that while counting his service on deputation as Scientist 'C' as regular service, his scale of pay should be considered to be Rs.8000-13,500, which was his scale in the parent Department in the post of Assistant Director. This argument is rejected as untenable.
6. In view of the above discussion, we are of the considered opinion that the impugned order dated 08.06.2010 is illegal. The impugned order is accordingly quashed and set aside. The Respondents are directed to consider the Applicant for in situ promotion under FCS and promote him, if found fit, from the date he completed four years of residency after coming on deputation in the year 2004. Since the Applicant has not been promoted because of the fault of the Respondents, he would be eligible for all consequential benefits including arrears of pay from the date of his promotion and also count his eligibility for promotion to the grade of Scientist 'E' from that date in the year 2008. These directions would be complied with within four months of receipt of a certified copy of this order. No costs.
( L.K.Joshi ) ( V.K.Bali ) Vice Chairman (A) Chairman dkm