Delhi High Court
Dr. Rajendra Kumar And Ors. vs The Govt. Of National Capital Territory ... on 11 October, 2006
Equivalent citations: 2006 LAB. I. C. 4059, 2007 (2) AJHAR (NOC) 434 (DEL) (2007) 3 SERVLR 881, (2007) 3 SERVLR 881
Author: Manmohan Sarin
Bench: Manmohan Sarin, Vipin Sanghi
JUDGMENT Manmohan Sarin, J.
1. Petitioner Nos. 1 to 4 joined as Senior Scientific Officers on deputation with the Forensic Science Laboratory of Govt of NCT. Petitioners are aspirants for the post of Assistant Directors in their respective disciplines in the Forensic Science Laboratory. Petitioners, who have been working at the Forensic Science Laboratory for periods ranging from 7 to 12 years, are aggrieved by the rejection of their request to be considered for promotion to the post of Assistant Director. Their request was rejected by Govt. of NCT vide its letter of 12th May, 2005, noting that the request did not come within the ambit of the Rules.
2. Petitioners filed OA. No. 1611/2005 before the Central Administrative Tribunal, hereinafter referred to as the 'Tribunal'. Petitioners contend that they fulfillled the eligibility conditions for being promoted as Assistant Directors. The Tribunal vide its judgment dated 28th July, 2005, dismissed the OA, holding that they did not meet the eligibility condition of possessing 5 years regular service in the grade. The Tribunal did not accept the contention that the period spent on deputation as Senior Scientific Officers in the Forensic Science Laboratory could be counted for the purpose of regular service in the grade/scale and, therefore, they were eligible. The Tribunal also noted that petitioners who had joined the Forensic Science Laboratory on deputation, continued to hold their lien on their respective posts in the Parent Department. It was only when they were absorbed permanently in 2002 in the Forensic Science Laboratory, that they could be taken to be in regular service and not earlier.
3. The sole question which needs determination is whether their period of service as Senior Scientific officers, while on deputation with Forensic Science Laboratory, can be considered as "regular service in the grade" for the purpose of qualifying service, prescribed under the Recruitment Rules for the post of Assistant Directors?
4. Each of the petitioners, undoubtedly, possess the requisite academic qualification. Petitioner No. 1 had joined the National Institute of Criminology and Forensic Science as Senior Scientific Assistant. He joined the Forensic Science Laboratory on 1st March, 1994 on deputation in the pay scale of 2200-4000 (8000-13500 revised). He was absorbed permanently on 29th April, 2002.
Petitioner No. 2 had joined the Forensic Science Laboratory at Patna in the year 1977 and was promoted as Technical Officer in the Forensic Science Laboratory there. He similarly joined the Forensic Science Laboratory of NCT of Delhi on 19th March, 1998 on deputation in the pay scale of 2200-4000 (8000-13500 revised). He was absorbed permanently on 29th April, 2002.
Petitioner No. 3 is an M.Sc (Physics) who joined Delhi Police as a Sub Inspector in the year 1988 and had joined the Forensic Science Laboratory as Senior Scientific Officer, Delhi on 20th January, 1999 on deputation in the pay scale of 2200-4000 (8000-13500 revised) and gave his consent for absorption and was similarly absorbed on 29th April, 2002.
Petitioner No. 4 is an M.Sc (Chemistry) who had joined as Assistant Central Intelligence Officer, Grade-1 in the office of Government Examiner of Questioned Documents, Shimla. She joined the Forensic Science Laboratory, Delhi on deputation as Senior Scientific Officer on 1st August, 1996 in the pay scale of 2200-4000 (8000-13500 revised) and was absorbed on 29th April, 2002.
5. Let us notice the eligibility requirements for the post of Assistant Director, as per the notified Rules of Government of India framed under Proviso to Article 309 of the Constitution of India. The post of Assistant Director is a Grade A Gazetted non-ministerial post. It is a selection post with age not exceeding 40 years with age relaxation for Government Servants. As for the method of recruitment, it is by promotion failing which by transfer on deputation, including Short Term Contract/transfer failing both by direct recruitment. The feeder post for promotion, is Senior Scientific Officer with five years regular service in the grade.
6. We may also notice the requirement, as per the advertisement for the post of Assistant Director, as published in the Employment News dated 15-21st October, 2005. The post advertised was of Assistant Director (Biology) GSC Group A Gazetted Non-ministerial in the pay scale of Rs. 10,000-15,200/- in Forensic Science Laboratory of the Govt. of NCT of Delhi. The method of recruitment specified was transfer on deputation (including short term contract)/transfer basis from amongst the specified officers. The person eligible were officers holding analogous posts on regular basis, or those with five years regular service in the posts in the scale of Rs. 8000-13500/- (revised), or equivalent, or with 8 years regular service in the posts in the scale of Rs. 6500-10500/- (revised) or equivalent thereof.
7. As noted earlier, in the present case, petitioners admittedly possess the requisite academic qualification and were also drawing the prescribed scale. The only question requiring consideration is whether they meet the requirement of experience of five years of regular service in the grade/scale. It is the petitioners' contention that they have served as Senior Scientific Officers for over 7 - 10 years on deputation enjoying the requisite scale and hence they are eligible for being promoted as Assistant Directors. On the other hand, the Respondents contend that service rendered on deputation cannot be treated as regular service in the post. The service of the Petitioners as deputationists prior to their absorption on 29th April, 2002 cannot be reckoned for determining their eligibility in terms of the Recruitment Rules and the Advertisement.
8. Learned Counsel for the petitioners Mr. C. Mohan Rao in support of his contention submits that in fact the petitioners had been duly discharging all the functions of Senior Scientific Officers and even that of the Assistant Directors. He submits that petitioners had been duly appointed to the post at Forensic Science Laboratory, which vacancies were required to be filled by specified mode of deputation/transfer etc. Petitioners' selection on deputation were made following due procedure.
9. Petitioners contend that other methods of recruitment for the post of Assistant Directors were to be resorted to if no candidate was available by promotion. Petitioners had been duly appointed to the posts of Senior Scientific Officers and had in fact now been discharging functions of the Assistant Director for over two and a half years. Petitioners contend that their appointment on deputation was as per rules and in accordance with the mode of recruitment prescribed. In these circumstances not to regard their service while on deputation as regular service would be arbitrary and whimsical. Reference was invited to the decision of the Supreme Court in K. Madhavan and Anr.
v. Union of India and Ors. reported at (1987) 4 Supreme Court Cases 566. The Supreme Court was considering the eligibility conditions to the post of Superintendent of Police in CBI. The rule required the deputationist to be a DSP in Special Police Establishment with minimum 8 years service in the grade out of which 2 years to be probationary period in CBI. The Supreme Court held that with 6 years spent as DSP in State Police and 2 years on probation with CBI, he would be eligible for consideration to the appointment to the post of SP. The Supreme Court in para 10 observed as under:
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 contradistinction to appointment on ad hoc or stopgap or purely temporary basis. Respondent 5, in our opinion, satisfied the eligibility test of the 1975 Rules for consideration for the post of DIG.
10. The Court further noted, "Officer may have been in the State Police as DSP for a period of six years and, thereafter, if he joins the CBI on deputation and spends 2 years on probation, he would be eligible for consideration for appointment to the post of SP. If this view is not taken, no officer would be available to join the CBI on deputation. It has already been noticed that the CBI requires efficient and experienced police officers and if the period spent by police officers in the State Police Service is not taken into account for the purpose of computing the period of eight years, it would be doing injustice to such police officers who joined the CBI on deputation."
11. Accordingly, learned Counsel for the petitioner urged that the Tribunal erred in holding that the period spent on deputation after regular appointment and selection is not to be regarded as regular service in the scale/grade and the period could only be counted from the date of absorption. The Tribunal's decision is contrary to K.Madhavan's case in equating regular service as service from the date of absorption. This was not an appointment on ad hoc basis or purely temporary or stop gap filling up of a vacancy. This was filling up vacancy by a specified mode of recruitment i.e. by deputation. Learned Counsel contended that the Tribunal thus erred in counting the period of service from the date of absorption for the purpose of seniority or eligibility for a higher post.
12. Reference may also be usefully made to the decision of the Supreme Court in Ajit Kumar Rath v. State of Orissa and Ors. reported at (1999) 9 Supreme Court Cases 596 and Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Ors. reported (1990) 2 Supreme Court Cases 715. The Court held that ad hoc service over a long period of time has to be reckoned for the purpose of seniority and eligibility and credit has to be given for the service rendered unless the appointment was irregular or contrary to the recruitment rules.
13. Reference may also be usefully made to the decision of the learned Single Judge of this Court in S.K. Tanwar v. National Open School Society (Regd.) and Ors. reported at 2004 IV Apex Decision (Delhi) 573. Respondent National Open School was reckoning the qualifying service in the grade w.e.f. 28th March, 2000, when the petitioner therein was permanently absorbed with them. The learned Single Judge relying on K. Madhavan and Ors. v. Union of India (Supra) and K.B. Rajoria v. Union of India and Ors. Reported at held that petitioner was entitled to include the service as a deputationist on being permanently absorbed for the purpose of determination of his length of service in the scale.
14. Ms. Avnish Ahlawat on behalf of the respondent sought to justify the decision of the Tribunal. She submitted that there were no recruitment rules, which would have enabled these appointments on regular basis. Some of these petitioners have been working in posts lower than in the rank of Senior Scientific Officers, such as, Senior Scientific Inspector, Sub-Inspector etc. prior to being taken on deputation as Senior Scientific Officers. Her submission is that in respect of petitioners, who are working at posts lower than that of Senior Scientific Officers, their service in the parent department are not to be taken into consideration. The above plea to our mind is of no avail. The question to be considered is whether the services rendered as Senior Scientific Officer on deputation with the respondent can be regarded as regular service in the grade/scale. Ms. Ahlawat submits that recruitment rules were framed in 1998 in consultation with UPSC. Accordingly, these petitioners were permanently absorbed on 29th April, 2002 as Senior Scientific Officers. Their service for purposes of promotion to the post of Assistant Director, accordingly, has to be counted from the date of absorption when their appointment stood regularized. She further submitted that these persons could not be considered as regular appointees as they had joined the respondent on deputation and held their lien in other posts held by them prior to their absorption. We have already noted that the appointment of petitioners on deputation was admittedly after following due procedure. The non existence of statutory rules, at the relevant time, cannot convert the service rendered by them as irregular and result in their service being disregarded for being counted for the purposes of eligibility condition. As noticed earlier, each of the petitioners possess the requisite academic qualifications and have the requisite experience to meet the eligibility condition.
15. We find merit in the petitioners' submission, as noted above. Petitioners in view of the decision in K. Madhavan and Ors. v. Union of India (Supra) and K.B. Rajoria v. Union of India and Ors. (Supra) are entitled to have the period of service on deputation with the respondent counted towards the eligibility period for the post of Assistant Director.
16. The Tribunal had also relied on the factor that the period of deputation should not be counted towards regular service because the petitioners during the period of deputation and prior to permanent absorption had a lien on their posts in the parent department. Without going into the question as to whether lien was retained or not, we find the same to be contrary to the dictum, laid down in Rudra Kumar Sain and Ors.
v. Union of India and Ors. reported at . In the cited case, the Supreme Court noted the contention that the conclusion arrived at by the Committee of the High Court that a person promoted to higher judicial service under Rules 16 and 17 of the Rules to a post against which some other person had a lien, would ipso facto make such appointment ad hoc/fortuitous/stop gap, is contrary to the conclusion reached by the Supreme Court in O.P. Singla v. Union of India reported at regarding continuous length of service.
17. From the foregoing, it would follow that simply because a lien was retained by the earlier incumbent to the post, the subsequent appointment to the post which is otherwise made in accordance with the rules would not be rendered ad hoc/fortuitous/stop gap because of the lien. Hence similar plea regarding lie as is sought to be raised would also not be available to the respondent.
18. Learned Counsel for the petitioner also sought to urge his grievance regarding fixation of a lower scale in deputation than the one given in the appointment letter. There is nothing to indicate that this plea was urged before the Tribunal. The judgment does not contain any mention thereof. No material particulars with regard to the extent of recovery from the salary allegedly made have been mentioned in the writ petition. Accordingly, we cannot take cognizance of this oral submission at this stage.
In view of the foregoing discussion, the impugned order of the Tribunal is not sustainable and is set aside.
A writ shall issue to the respondent to consider the case for promotion of the petitioners as Assistant Directors in their respective disciplines, duly taking into account the service rendered by them as Senior Scientific Officers with the respondent from the dates of their respective appointment on deputation for the purpose of fulfillling the condition of 5 years service as Senior Scientific Officers for the post of Assistant Director. Petitioners be considered for notional promotion from the date the post of Assistant Directors in their respective discipline fell vacant with consequential benefits from the date petitioners have been discharging the functions of Assistant Directors.