Central Administrative Tribunal - Delhi
Vikas vs N/A on 5 March, 2024
1
Item No. 49 (C-3)
O.A. No. 436/2023
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 436/2023
M.A. No. 4057/2023
This the 05th day of March, 2024
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Vikas, Aged - 28 Years,
S/o S. Ved Singh,
MTS with lien in Ministry of External Affairs,
R/o Vill. & PO Jaurasi Khalsa, Tesh. Samalakha,
Distt. Panipat (Haryana) 132101.
... Applicant
(By Advocate: Mr. Yogesh Sharma)
Versus
1. Union of India through
The Secretary,
Ministry of External Affairs,
Govt. of India, J.N. Bhawan,
Janpath, New Delhi - 11.
2. The Under Secretary to the Government of India,
Ministry of External Affairs,
Govt. of India, J.N. Bhawan,
23-D, Janpath, New Delhi - 11.
...Respondents
(By Advocate: Ms. Anupama Bansal)
2
Item No. 49 (C-3)
O.A. No. 436/2023
O R D E R (ORAL)
Hon'ble Mr. Tarun Shridhar, Member (A):-
The applicant was appointed to the post of Multi Tasking Staff (MTS) by way of a direct recruitment in the Ministry of External Affairs, Government of India, on 10.08.2018. In the year 2020, he was selected to the post of Clerk in Karnal Municipal Corporation in the Government of Haryana through a competitive selection process conducted by the Haryana Staff Selection Commission. He had appeared in the said competitive selection after obtaining the requisite permission from his employer, that is, the competent authority in the Ministry of External Affairs. Pursuant to this selection, he was issued an offer of appointment as a Clerk in the Municipal Corporation of Karnal. The applicant tendered technical resignation on
02.11.2020, retaining the right of lien in terms of the relevant and extant rules and instructions. The resignation was duly accepted by the competent authority on the same date clearly mentioning that it would be treated as a technical resignation with lien and accordingly, the applicant stood relieved on the same date in the afternoon. 3 Item No. 49 (C-3) O.A. No. 436/2023
2. Within a short period, the applicant was transferred from Municipal Corporation of Karnal to Municipal Corporation Samalkha. After his joining as Clerk, certain developments took place wherein the selection process of the Haryana Staff Selection Commission (HSSC) was challenged before the Hon'ble Punjab and Haryana High Court which resulted in revision of the result of the competitive selection process. This revision led to re- allotment of the departments and now, the applicant was allotted Haryana State Agriculture Marketing Board (HSAMP) and was, accordingly, relieved from the Municipal Corporation of Samalkha. The applicant is stated to have encountered certain complications and difficulties in receiving a fresh formal offer of appointment and subsequent joining at the HSAMB putting him to financial distress for a short period of time, although at a later date he was able to secure such an appointment and joined the new organization.
3. At this stage, the applicant preferred to exercise his option of reverting to his original department, that is, Ministry of External Affairs since he already retained a lien 4 Item No. 49 (C-3) O.A. No. 436/2023 there. He submitted his application to this effect on 14.07.2022 and followed it up with reminders dated 18.07.2022 and 23.09.2022. In his reminder representation dated 18.07.2022, the applicant also sought extension of the lien period since he was not receiving any response and he apprehended that before a decision is taken, the period of lien may expire.
4. Vide order dated 28.10.2022, the request of the applicant for extension of lien has not been acceded to. This order is under challenge in the present O.A., wherein the applicant makes the following prayer:-
" (i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 18.10.2022 (Annexure A/1) and consequently, pass an order directing the respondents to consider the request of the applicant for his rejoining in the parent department i.e. Ministry of External Affairs with all the consequential benefits as per rules.
(ii) That the Hon'ble Tribunal may graciously be pleased to pass an order declaring to the effect that the whole action of the respondents not considering the request of the applicant for his rejoining in his 5 Item No. 49 (C-3) O.A. No. 436/2023 parent department on the basis of his lien is totally illegal, arbitrary and against the rules and consequently, pass an order directing the respondents to allow the applicant to join his parent department to the post of MTS in Ministry of External Affairs with consequential benefits.
(iii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation."
5. Mr. Yogesh Sharma, learned counsel for the applicant has argued that the applicant had made his request well within time before the expiry of the period of lien. There is no dispute that the resignation of the applicant was technical with lien as the order dated 02.11.2020 substantiates. The said order is reproduced below:-
" No. Q/PE/589/05/2020 Order The Competent Authority in the Ministry of External Affairs has accepted the Technical Resignation with lien tendered by Shri Vikas, who was appointed as MTS in the Ministry of External Affairs w.e.f. 10.08.2018 (F/N) on the basis of Multitasking Staff (Non-technical) Examination, 2016 conducted by Staff Selection Commission.
2. Shri Vikas stands relieved of his duties w.e.f. 02.11.2020 (A/N)."6
Item No. 49 (C-3) O.A. No. 436/2023
6. He further clarifies that lien of confirmed employee on his selection and joining on another post is for a period of two years which is extendable by one year. The request made by the applicant on 14.07.2022 followed by reminders was strictly within the ambit of the relevant rules and instructions governing the subject, since it had also been submitted before the expiry of the lien period, hence, there is no ground before the respondents not to accede to the said request as the whole principle and concept of lien confers a right.
7. Learned counsel has argued that the respondents in their counter reply have given a sole reason/ground for not acceding to the request and the reason as stated is that the applicant did not send his application through the proper channel. He points out that such an averment is made in para 2 of the counter reply. There is not a whisper in the said counter reply that the claim of the applicant is not covered under the relevant rules and instructions governing the subject.
8. Mr. Yogesh Sharma, learned counsel, has further argued that the respondents should also have appreciated 7 Item No. 49 (C-3) O.A. No. 436/2023 the circumstances which were the trigger for the applicant to seek reversion despite his having been appointed to a higher post and these circumstances were putting him to distress by way of frequent transfer and the change of the departments which, in fact, frustrated his aspirations for a better option.
9. He has further argued that there are no instructions or rules which bind the applicant to submit his request through proper channel.
10. Ms. Anupama Bansal, learned counsel for the respondents, strongly contests the O.A. and the arguments put forth by Mr. Yogesh Sharma, learned counsel for the applicant. In doing so, she draws strength from the counter reply filed on behalf of the respondents. She clarifies that the issue is not as simple as narrated by the learned counsel for the applicant and it is incorrect to say that the request/prayer of the applicant has been rejected on a sole ground of not making the same through proper channel. To elaborate, she draws attention to paras 3 and 4 under the head 'brief background of the case' of the counter reply. The said paras read as under:-
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Item No. 49 (C-3) O.A. No. 436/2023 " 3. An email was sent on 07.10.2022 (A-5) requesting the documents to be sent through proper channel.
Later Shri Vikas requested that the communication be sent to a different email id, and hence an email dated 18.10.2022 (A-6) was sent. Since the veracity of the email id could not be ascertained, a letter dated 20.10.2022 (A-7) was sent to Director General, Urban Local Bodies, Haryana requesting him to forward the necessary documents to further process Shri Vikas's request to be reverted back to the Ministry.
4. The application for extension of lien was rejected vide order dated 28.10.2022 (A-8) after examining the case and after taking prior approval of the Competent Authority. As per Office Memorandum, dated 27th August 2018 from DoPT, lien of a permanent Government servant can be extended beyond two years to three years in exceptional cases only. In the instant case, vide relieving order from O/o Municipal Committee, Samalkha, Sh Vikas had been relieved from service w.e.f 01.07.2022 (AN). Vide representation, dated 23.09.2022, Sh Vikas informed that he has joined in Haryana State Agriculture Marketing Board but he did not mention the date of his joining in Haryana State Agriculture Marketing Board. So far, this Ministry has not received any communication directly from ULB or Haryana State Agriculture Marketing Board regarding retention of lien and regularization of 9 Item No. 49 (C-3) O.A. No. 436/2023 period between relieving of Sh Vikas from ULB and his joining in Haryana State Agriculture Marketing Board. Hence, based on available documents, there seems to be a break-in-service of Sh. Vikas. It is to be mentioned that clarifications are still awaited from ULB Department, Municipal Corporation, Karnal. Therefore, this did not seem to be an exceptional case to grant extension of lien for one more year."
11. Ms. Anupama Bansal, learned counsel argues that the Municipal Corporation of Samalkha relieved the applicant on 01.07.2022 and his communication dated 14.07.2022 clearly mentions that he has not received any offer of appointment from HSAMB. Further, it is on record that he joined at HSAMB on 04.08.2022. In view of the apparent break in service, lien automatically extinguishes, she argues. However, before passing the impugned order, the respondents had taken necessary steps to obtain necessary information from the concerned department of the Haryana Government, however, no response was forthcoming.
12. She further submits that the application submitted directly cannot be accepted since its authenticity as also the veracity of facts and information mentioned 10 Item No. 49 (C-3) O.A. No. 436/2023 therein needs to be ascertained. Accordingly, it is an established office decorum and administrative propriety that an employee making a request or prayer routes it through his appropriate supervisory authority. She points out that a specific averment to this effect has been made in para 2 of the counter reply.
13. Learned counsel reiterates that there a gap between the relieving of the applicant from the Municipal Corporation of Samalkha and his joining at HSAMB and this constitutes an obvious break in service.
14. To this Mr. Yogesh Sharma, learned counsel for the applicant, clarifies that this period is to be treated as a compulsory waiting period in terms of the communication of Haryana Government (Human Resources Department) dated 16.12.2022. He places on record a copy of the said order. It would be appropriate that the contents of the said order are reproduced as such.
"Subject:- Regarding treating the period of Clerks recruited against Advt. No. 05/2019, Cat. No. 01 as the Compulsory Waiting Period from the date of discharge from previous/same department to the 11 Item No. 49 (C-3) O.A. No. 436/2023 date of joining again in the same or new Department due to revise result.
Sir/Madam, I am directed to invite your attention on the subject noted above and to the Hon'ble High Court interim order dated 22.11.2022 in the CWP No. 26597 of 2022 titled as Vikash Meena and others vs. State of Haryana & others vide which the directions were given to take the decision regarding to grant the arrear of salary for the interim period
2. The State Government has considered the matter and decided that interim period of a candidate who has been recommended against the Advt. No. 5/2019, Cat. No. 01 in both the merit lists of Clerks from the date of discharge from previous/same Department and to the date of joining in the same or new Department may be treated as 'Compulsory Waiting Period' with the approval of Finance Department.
3. It is therefore, Administrative Secretaries are advised to direct the departments under your control to examine the cases of such candidates in terms of Rule 8 (10) of Haryana Civil Services (General) Rules, 2016 and send the cases to the Finance Department mentioning the exact/actual compulsory waiting period in terms of Rule 8 (10) of Haryana Civil Services (General) Rules, 2016.12
Item No. 49 (C-3) O.A. No. 436/2023
4. This issues with the concurrence of Finance Department conveyed vide U.O. No. 11/151/2022- 3FR/27882 dated 13.12.2022.
5. It is requested that the necessary action may kindly be taken in accordance with these instructions and may be brought to the notice of all concerned."
15. In terms of the applicant's prayer for extension of the lien, learned counsel for the respondents has clarified again, drawing strength from the averments made in the counter reply, that extension beyond two years is made only in exceptional circumstances and not in the normal course.
16. The facts of the case are not disputed. Therefore, we would refrain from reproducing the same as they have already been elaborately recorded above. We have carefully gone through the contents of the counter reply wherein the respondents have justified their decision of not extending the lien of the applicant by repeatedly asserting that the request was made in contravention to the rules. We find that the primary reason given by the respondents is that since the applicant did not submit his request through the proper channel and hence, it required necessary verification. 13 Item No. 49 (C-3) O.A. No. 436/2023
17. Now, the question before is what was the appropriate channel of the applicant? He had already been relieved from the post of Clerk in the Municipal Corporation and was awaiting re-assignment of department which was made after a lapse of a considerable time in the Agriculture Marketing Board. In a way the applicant at the relevant time was an administrative orphan, without any controlling department/ministry. Logically, at this juncture, his proper channel was the Ministry of External Affairs in which he held lien. Even otherwise as long as lien is in existence the parent departmental organization cannot absolve itself of the responsibility of supervision over an employee even though he may have sought appointment in another department.
18. We are conscious that in the instant matter we have to give serious consideration to the facts and circumstances, and we have no doubt in stating that they were unique. In addition, these circumstances were not the creation of the applicant and were totally outside the scope of his control.
19. He had been duly selected on his own merit through a transparent open competitive examination conducted by a 14 Item No. 49 (C-3) O.A. No. 436/2023 statutory body. If the said examination was subject to litigation by certain other persons, it was not of applicant's creation. The applicant was allotted the Municipal Corporation of Karnal for appointment as Clerk and subsequently transferred to Municipal Corporation of Samalkha and he was willingly working there. The litigation pushed him out and rendered him without appointment for a considerable time before his further assignment in the HSAMB.
20. Even at the time of reassignment, a formal offer of appointment to him was not immediately issued. If that was not enough, his joining in the new organization also encountered certain administrative complications and difficulties, thus, putting him into continued harassment and anxiety. How could the Ministry of External Affairs, which continued to be the guardian of the applicant till then in administrative terms where he was holding lien, wash its hands of the applicant?
21. We reiterate that as long as the applicant held lien with the Ministry of External Affairs that continued to be one of his parent organizations and hence, such Ministry 15 Item No. 49 (C-3) O.A. No. 436/2023 itself was the proper channel. In view of this argument, we cannot sustain the action of the respondents by not considering the request of the applicant on the ground that it was not made through proper channel. Moreover, the applicant has been a victim of the circumstances which have been the creation of external forces and totally beyond his control. How could he be made to bear the consequences of the same is beyond our comprehension.
22. Learned counsel for the respondents has raised the issue of break in service and hence, automatic termination of lien. However, a document has been produced before us by the learned counsel for the applicant which is a communication dated 16.12.2022 issued by the Government of Haryana, which clearly states that the period during which the applicant and other similarly placed persons were without any organization on account of the orders of the Hon'ble High Court qua the recruitment of Clerks shall be treated as compulsory waiting period. This was issued with the approval of the finance department. Once this period when the applicant did not have any organization stood regularized by way of its treatment as compulsory waiting 16 Item No. 49 (C-3) O.A. No. 436/2023 period, there is no question of any break in service. The contents of this document have been reproduced in one of the previous paras leaving no doubt in the matter.
23. In view of what has been discussed and detailed above, the present O.A. is allowed and the impugned order dated 28.10.2022 is quashed and set aside. Pursuant to this, the respondents are directed to restore the lien of the applicant forthwith. The applicant shall be allowed to rejoin the Ministry of External Affairs along with necessary consequential benefits that shall accrue to him. The consequential benefits shall be so computed as if the applicant has been in continued uninterrupted service. The respondents shall pass appropriate orders of his rejoining within a period of four weeks from the date of receipt of a certified copy of this order giving him reasonable time in accordance with rules to rejoin.
24. There shall be no order as to costs.
(Pratima K. Gupta) (Tarun Shridhar)
Member (J) Member (A)
/deeksha/