Central Administrative Tribunal - Madras
T Deepalakshmi vs M/O Labour on 31 January, 2022
p OA/310/3 91/2020
0
Central Administrative Tribunal
Madras Bench
OA/310/00391/2020
Dated _l day of _Janda r4 Two Thousand Twenty Two
PRESENT
Hon'ble Mr. Swarup Kumar Mishra, Member(h)
&
Hon'ble Mr. T. Jacob, Member(A)
T. Deepalakshmi, Wife ofK.R.Vijayakumar, aged 37 years, residing at
No. 35, Manimegalai Street, N.G.G.O Nagar, Chengalpattu, Kancheepuram
District, working as Junior Officer - 1 (Bacterial Vaccine Formulation),
Mis. HLL Biotech Limited, Government oflndia Enterprises (a Scheduler
B Mini Ratna Central Public Sector Undertaking), Ministry of Health and
Family Welfare, Meleripakkam Village Chengalpattu -- 603 003.
..Applicant
By Advocate Mr. J. Lakshmi Narayanan
Vs.
1. Union of India represented by the Joint Secretary/
Director General (Labour Welfare),
Ministry of Labour & Employment,
Jaisalmer House, 26, Mansing Road,
NewDelhi-110 011.
2. The Welfare and Cess Commissioner (Central),
Ministry of Labour & Employment,
Labour Welfare Organisation,
Ground Floor, SIDCO Branch Office Building,
Thiru Vi Ka Industrial Estate,
Guindy, Chennai- 600 032. ..Respondents
By Advocate Mr. M. Kishore Kumar
2 0A/310/391/2020
ORDER
[Pronounced by Hon'ble Mr.T.Jacob, Member(A)] The relief prayed for in this OA is as follows:-
"a To call for the records relating to the impugned order of the Second Respondent issued in File No. 5/1/17 dated 19.03.2020 and quash the same and direct the second respondent to consider the applicant for appointment to the post of Pharmacist on permanent absorption (transfer)/deputation basis in the Dispensary/Central Hospital for Beedi Workers. Mukkudal, Tirunelveli and pass such further order or orders as it may deem fit and proper in the facts and circumstances ofthe case and Render Justice."
2. The facts of the case as submitted by the applicant are as follows:-
The applicant is working as Junior Officer - 1 (Bacterial Vaccine Formulation), Mis. HLL Biotech Limited, Meleripakkam Village, Chengalpattu - 603 003, which is a Government of India Enterprise coming under the control of Ministry of Health and Family Welfare, Government of India. The rules and regulations of HLL Biotech Limited are governed by DPE/DOPT/CVC guidelines issued from time to time. She came to understand that a Pharmacist post is lying vacant in the Dispensary/Central Hospital for Beedi Workers, Mukkudal, Tirunelveli coming under the administrative control of the second respondent. Owing to the family circumstances, she opted to serve in the said place so as to take care of her aged parents. Accordingly, she submitted a representation dated 01.01.2018 to the second respondent to consider her request. However, the institute insisted to produce evidence for availability of vacancy in order to forward the Application with 'No-objection Certificate' for the purpose of consideration of her case. Therefore, she submitted a representation dated 16.01.2018 in that regard to the second respondent. Pursuant to the same, the second respondent sent a communication dated 18.01.2018 affirming the availability of
3 OA/310/391/2020 vacancy. The HLL Biotech Limited also forwarded her application on 01.03.2018 with required documents and also thereby conveyed its no-objection in the event of her selection by the second respondent. On receipt of the same, the second respondent by his communication dated 07.03.2018 sought for approval to absorb her as Pharmacist on transfer on permanent absorption from the competent authority, namely, the first respondent. She also sent two reminders on 25.05.2018 and 29.05.2018 respectively. Thereafter she submitted a detailed representation dated 23.11.2018 to the second respondent placing reliance on several official memorandums issued by the Government of India in support of her request. In response to the second respondent's communication dated 01.04.2019, the HLL Biotech Limited addressed a communication dated 03.04.2019 providing the details of responsibilities held by her in the said institute. The HLL Biotech Limited issued a letter dated 25.06.2019 stating that it has no-objection to the permanent absorption/transfer/deputation provided her case is considered by any office under the Central/State Government/Autonomous Bodies/PSU. She submitted a representation dated 07.03.2020 requesting the second respondent to consider her application to the post of Pharmacist as per existing recruitment rules of Labour Welfare Organization, Tamil Nadu Region. The Second Respondent vide the impugned order dated 19.03.2020 rejected her claim on the ground that her current responsibilities and duty performance of the present post as Junior Officer-I (Bacterial Vaccine Formulation) is not analogous with the post of Pharmacist in their dispensary under LWO, Chennai. Hence the present OA.
4 OA/310/391/2020
3. The applicant has sought the aforesaid relief, inter alia, on the following grounds:-
a. The communication issued by the HLL Biotech Limited dated 03.04.2019, 25.06.2019 and 06.03.2020 respectively were not at all taken into consideration. The applicant on referring the above said communications submitted a representation dated 07.03.2020 to the second respondent. Even the said representation was also sought to be ignored. The aforesaid communications squarely covers the merits of the issue concerning the applicant's request.
b. The second respondent arrived at a provisional opinion based on the RTI information dated 09.05.2019 furnished by the HLL Biotech Limited. In all fairness the second respondent ought to have furnished the same to the applicant and sought her opinion before arriving at a final decision.
c. The Second Respondent's finding that the Public Information Officer had categorically without any iota of doubt had opined that "HLL Biotech Limited do not have any analogous post of pharmacist" unequivocally amounts to formation of opinion by the Information Officer.
d. The recruitment rules meant for Pharmacist in second respondent department does not provide for any specific qualifications and experience for deputation/transfer. On consideration of the DoPT O.M., dated 03.10.1989, qualifications and experience of the officers to be selected should be comparable to those prescribed for a direct recruit is to be taken into account for the purpose of deputation/transfer. Qualifications prescribed for the post of Pharmacist on direct recruitment basis are mere pass in matriculation and should be a registered ¢ 5 OA/310/391/2020 Pharmacist under the Pharmacy Act, 1948. The Applicant squarely satisfies the above said qualifications and the same was also supported by the communications issued by the HLL Biotech Limited dated 03.04.2019 and 06.03.2020 respectively. Non consideration of the aforesaid vital aspects is clearly arbitrary and therefore the impugned order is liable to be set aside.
e. The Second Respondent arrived at a final conclusion that the current responsibilities and duty performance of the present post is not analogous with the post of Pharmacist in clear ignorance of valid materials and office memorandum issued by the Government of India in this regard. DOPT OM. Dated 03.10.1989 mandates various criteria for determining whether a post could be treated as analogous to a post under the Central Government. The impugned order does not disclose whether comparative evaluation was made regarding the duties and responsibilities required for the post of Pharmacist and duties and responsibilities held by the Applicant and how it was not analogous.
f. The applicant submitted her curriculum vitae in the prescribed proforma through proper channel. Curriculum Vitae itself is self explanatory. Letter issued by the HLL Biotech Limited dated 03.04.2019 also points out the duties and responsibilities held by the applicant in their organization. Further the letter issued by the HLL Biotech Limited dated 06.03.2020 reiterates that the applicant in addition to her normal responsibility she is also looking pharmacy work after her routine duties. However the aforesaid facts and materials have been lost sight of by the second respondent while rejecting the request of the applicant.
6 OA/310/391/2020
4. The respondents have filed detailed reply denying the averments made It is submitted that the applicant in the instant case, namely, Smt. T.Deepalakshmi, is not a Government Servant in accordance with Rule 3(1) of the Central Civil Services (Classification, Control and Appeal ) Rules, 1965. Applying the ratio of learned Constitution Bench of the Hon'ble Supreme Court of India, in the case of S L Aagarwal v. Hindustan Steel Ltd, AIR 1970 SC 1150, the applicant is neither holding a civil post under the Union of India nor the Company, where in she is working, is a Department of Central Government. In view of the same, she cannot make out a case against Government of India nor she has been put to any hardship or injustice by the Director General, Labour Welfare or any of his officers. It is further stated that the Applicant had sent a representation vide her letter dated 16.01.2018 (Ann exure-R-1) addressed to the R-2 in the instant case on the subject of "Personal request for seeking confirmation on Vacancy of Pharmacist post in Central Hospital and other dispensaries in Tirunelveli under Ministry of Labour & Employment on transfer basis requesting therein to forward a letter stating that the post of Pharmacist was lying vacant in the Labour Welfare Organization. The R-2 vide letter in file No. 5/Misc/14 dated 18.01.2018 (Ann exure - R-2) addressed a letter to the applicant thereby informing that a Post of Pharmacist was lying vacant in the Labour Welfare Organization, Tirunelveli region and was to be filled up either on Direct Recruitment or on transfer basis. In context to the above, it is pertinent to mention herein that clause 6 of the Office Memorandum issued by Department of Personnel and Training in file No. AB-14017/71/89-Estt. (RR) dated 03.10.1989 (Ann exure - R-3) had categorically mandated the crucial date for determining of eligibility. The O/o the 7 OA/310/391/2020 Welfare Commissioner (Central), Labour Welfare Organisation, Tirunelveli/Chennai did not call for/circular any advertisement or vacancy notification in the Employment News or in Local Employment Exchange/ Central Employment Exchange as per the provisions of the Employment Exchange (Compulsory Notification of Vacancies) Act 1959 or in National Career Service Portal of Ministry of Labour & Employment in accordance with the Office Memorandum issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training in file no. 14024/1/2016-Estt. (D) dated 13.06.2006 (Annexure-R4) whereby inviting applications/nomination from the eligible candidates for filling up of the post of Pharmacist under Labour Welfare Organization, Tirunelveli/Chennai region on transfer on deputation /transfer/transfer on absorption basis. In view of the above, the claim of the applicant, Smt. T. Deepalakshmi to consider her application for the post of Pharmacist under Labour Welfare Organisation, Tirunelveli/Chennai region on transfer on deputation/ transfer/ transfer on absorption basis, cannot, therefore, be countenanced in the absence of any vacancy circular/vacancy notification/vacancy advertisement issued by the O/o the Welfare Commissioner (Central), Labour Welfare Organization, Tirunelveli/Chennai as said supra.
5. While the matter stood thus, the R-2 preferred to keep continue to correspond with the case of the applicant for her being considered to the post of Pharmacist in the absence of mandatory advertisement just to cope up with the prevailing system of administration. The applicant vide her letter dated 02/02/2018 (Annexure-R-5) addressed to the R-2 had submitted an application along with supportive documents through proper channel for the post of Pharmacist in Labour Welfare Organization, 8 OA/310/391/2020 Ministry of Labour & Employment, Tirunelveli, Tamil Nadu on transfer on permanent absorption basis or direct recruitment citing various Office Memorandum issued by the Department of Personnel and Training dated 03.10.1989, 17.11.1992 and 29.08.2005 on Analogous post, Age limit, Curriculum Vitae and forwarded by the Deputy Vice President (HR &Admin) vide letter in file No. HBLHRM/029/007/18- 19 dated 01.03.2018 addressed to the Welfare Commissioner (Central), Tirunelveli and requested to consider her application for direct recruitment or on transfer on permanent absorption to the post of Pharmacist. Further, it was stated in the letter dated O 1.03.2018 of the Deputy Vice President (HR & Admin) (Annexure - R-6) that in the event of her selection, Mis I-ILL Biotech Limited has no objection to relieve her from their office. Accordingly, the R-2 vide letter No. 2/7/18 dated 07.03.2018 (Annexure-R-7) addressed to the R-I had forwarded the letter received from the Deputy Vice President (HR & Admin) along with the Application dated 02.02.2018, Bio-data and supportive documents in respect of the applicant and requested to accord approval to absorb as Pharmacist in LWO. In the ibid letter dated 07.03.2018, it was stated by the applicant that her existing post was an analogous post to the post of Pharmacist as per para 5,5.1 and 5.2 of DOPT O.M.No. AB-14017/71/89-Estt (RR) dated 03.10.1989. The applicant, in the meantime submitted a representation dated 25.05.2018 (Annexure-R-8) addressed to the R-2 quoting the certificate no. HBL/HRM/029/007/18-19 dated 23.05.2018 issued by the Deputy Vice President (HR & Admin) stated wherein that I-ILL Biotech Limited (HBL), Chengalpattu, TN is the 100% subsidiary of HLL Life care Limited, a Schedule B Mini Ratna Central Public Sector Undertaking under the Ministry of Health & Family Welfare. 0 9 OA/310/391/2020 Moreover, the rules and regulations of HLL Biotech Limited are governed by Department of Public Enterprises (DPE)/ Department of Personnel & Training/ Central Vigilance Commission (CVC) guidelines issued from time to time and the para 5,5.1 & 5.2 ofDOPT OM.No. AB-14017/71/89-Estt. (RR) dated 03.10.1989 is applicable for the employees of Central Public Sector Undertaking and they can be appointed in Central Government on transfer (absorption)/ transfer on deputation (including short term contract). Subsequently, the applicant, submitted another representation dated 29.05.2018 (Annexure-R-9) addressed to the R-2 stating that her husband, namely, Shri. K.R.Vijayakumar who was from a central government department has been appointed as Upper Division Clerk on transfer (absorption ) basis in the O/o the Welfare Commissioner (Central), Labour Welfare Organization, Tirunelveli. The applicant submitted another representation dated 23.11.2018 (Annexure-R-10) addressed to the Welfare Commissioner (Central), Tirunelveli and requested to consider her application for the post of Pharmacist on permanent absorption basis and also direct recruitment basis. It is submitted that whereas the case of the applicant is entirely different from that of the case of her husband and, therefore, the pleading of the applicant that her case should also be considered at par with the case of her husband, cannot, therefore, be countenanced in the eye of Law.
6. The applicant stated in the OA that R-2 vide letter No. 5/1/17 dated 01/04/2019 (Annexure-R-11) addressed to the Deputy Vice President (HR & Admin), O/o the HLL Bio Tech Limited, Chengalpattu requested wherein to clarify as to "whether the post of Junior Officer- I (Bacterial Vaccine Formulation) in office of the HLL Biotech Limited is the analogous post of Pharmacist in the Central Government". In context to 10 OA/310/391/2020 the above, the Deputy Vice President (HR & Admin), HLL Bio Tech Limited vide letter in File No. HBLIHRM/018/001/19-20 dated 03.04.2019 (Annexure-R-12) had mentioned that Smt. T.Deepalakshmi was recruited in supervisory cadre as Junior Officer -1 in Bacterial Vaccine Formulation department and required qualification criteria for that post was B.Sc (Life Science) or Diploma in Pharmacy with minimum work experience of 3 years with vaccine background in the scale of Pay (8075- 20670). Further, the Deputy Vice President (HR & Admin) stated that Smt. T.Deepalakshmi is currently working in Bacterial Vaccine Formulation department. Further, in addition to the above, it was mentioned by the Deputy Vice President (HR & Admin) that she is a registered pharmacist under Tamil Nadu Pharmacy Council, Chennai with Registration No. 32102/A2. It is worth to make a mention here that the Deputy Vice President, HLL Biotech Limited in their letter as mentioned above did not categorically clarify about the analogous nature of the post being held by the applicant in her department and also did not clarify anything about her eligibility to the post of Pharmacist in the Labour Welfare Organization. It is further submitted that in the meanwhile, an application bearing online registration number HLLBT/R/2019/50003 dated 16.04.2019 (Annexure-R-13) was filed under the Right to Information Act, 2005 whereby the Central Public Information Officer, HLL Biotech Limited was requested "to provide the list of analogous post to the post of Pharmacist in Mis HLL Biotech Limited, a Central Public Sector Enterprise functioning under the Ministry of Health and Family Welfare, Govt. of India". In context to the subject, Shri S.Balasubramaniam, Public Information Officer vide letter bearing no,/ HBL/RTI/11/19-20/02 dated 09.05.2019 (Annexute-R-14) had 11 OA/310/391/2020 O categorically parted information that the "HLL Biotech Limited do not have any analogous post to the post of Pharmacist". and the same is confirmed in First Appeal (Annexure-R-15) by a statutorily designated First Appellant Authority viz., Shri. Prabhu Kumar of HLL Biotech Limited in exercise of statutory functions as stipulated under Right to Information Act, 2005 vide letter in file No. HBL/RTI/FAA/19-20/01 dated 11.06.2019 (Annexure-R-16) Furtherance to the above, the applicant, submitted a representation vide letter dated 07.03.2020 (Annexure-R-17) addressed to the R-2 and enclosed a copy of certificate issued by Deputy Vice President (HR & Admin), HLL Biotech Limited stated wherein inter- alia that "she is a registered pharmacist with Registration No. 32102A2 dated 15.10.2003 under the Pharmacy Act, 1948 in Tamil Nadu Pharmacy Council. In addition to her normal responsibility, she is also looking pharmacy work after her routine duties" and requested wherein to consider her application to the post of Pharmacist on Permanent Absorption (Transfer)/deputation as per the existing Recruitment Rules. It is submitted that the so called certificate as said supra was obtained by the applicant on her own initiatives to suit her own interest and as the same was not sought for by the R-2, and therefore, the certificate so submitted by the applicant cannot be sustained in the eye of Law. When the Company categorically says that HLL Biotech Ltd does not have any analogous post and she is engaged in vaccine formulation related works, the certificate issued by the Vice President (HR) is ofno use.
7. It is submitted that the duties and responsibilities performed by the applicant at HLL Biotech Limited and the duties and responsibilities of a Pharmacist to be 12 0A/310/391/2020 performed under Labour Welfare Organization are entirely different and incomparable. Therefore, the claim of the applicant to consider her application for the post of Pharmacist under Labour Welfare Organization, Tirunelveli/ Chennai region on transfer on deputation or transfer on absorption basis, is, thus, cannot therefore, be countenanced as mandated and as envisaged under para.2 of the Office Memorandum in file no. 14027/27/75-Estt. (D) (Pt) dated 07.03.1984 (Annexure-R-18) issued by the Govt. of India, Ministry of Home Affairs, Department of Personnel & Administrative Reforms. Accordingly, 2" respondent with a view to seek an expert opinion in the matter of analogousness constituted an expert committee consisting of two Chief Medical Officers and three Medical Officers of Labour Welfare Organization vide Office Memorandum in file no. 5/1/17 dated 10.03.2020(Annexure-R-21) The expert committee as said supra had met on 16.03.2020 and had categorically opined without any iota of doubt and came to a conclusion that the current responsibilities and duty performance of the present post as Junior Officer- l(Bacterial Vaccine Formulation) is not analogous with the post of Pharmacist in dispensary under LWO, Chennai. After careful examination of the recommendations dated 16.03.2020 submitted by the expert committee, the R-2 vide letter in file no. 5/1/17 dated 19.03.2020 (Annexure-R-24) addressed to the applicant, rejected the claim of the applicant. The respondents pray for dismissal of the 0.A.
8. We have heard the learned counsels appearing for the respective parties and perused the pleadings and documents on record.
9. The undisputed facts are that the applicant is working as Junior Officer - 1 (Bacterial Vaccine Formulation), Mis. HLL Biotech Ltd., which is a Government of 13 OA/310/391/2020 (j India Enterprise coming under the control of Ministry of Health and Family Welfare, Government oflndia. The applicant is neither holding a civil post under the Union of India nor the Company, wherein she is working, is a Department of Central Government. After coming to know that a pharmacist post is lying vacant, the applicant opted to serve in the dispensary / hospital under the control of second Respondent. The O/o the Welfare Commissioner (Central), Labour Welfare Organisation, Tirunelveli/Chennai did not call for/circular any advertisement or vacancy notification in the employment news or in Local Employment Exchange/ Central Employment Exchange as per the provisions of the Employment Exchange (Compulsory Notification of Vacancies) Act 1959 or in National Career Service Portal of Ministry of Labour & Employment whereby inviting applications/nomination from the eligible candidates for filling up of the post of Pharmacist under Labour Welfare Organization, Tirunelveli/Chennai region on transfer on deputation /transfer/transfer on absorption basis. While the matter stood thus, the Respondent No.2 preferred to keep continue to correspond with the case of the applicant for her being considered to the post of Pharmacist in the absence of mandatory advertisement just to cope up with the prevailing system of administration. After careful examination of the recommendations dated 16/03/2020 submitted by the expert committee, the Welfare & Cess Commissioner (Central) rejected the claim of the applicant. The letter in file no. 5/1/17 dated 19/03/2020 addressed to the applicant is reproduced as under:-
"Subject: Submission of application for the post of Pharm acist in Labour Welfare Organisation, Ministry of Labour & Employment, Tirunelveli, Tamil Nadu on Transfer on permanent absorption basis or direct recruitment regarding:-,
14 OA/310/391/2020 I am to refer to your applications vide letter dated O 1/01/2018, 16/01/2018, 02/02/2018, 01/03/2018, 25/05/2018, 29/05/2018 and 23/11/2018 on the captioned subject and to say that your application for the post of Pharmacist in Labour Welfare Organization, Ministry of Labour & Employment, Timelveli, Tamil Nadu on Transfer on permanent absorption basis has been examined at length in the light of the approved Recruitment Rules framed by the Ministry of Labour and Employment for the post of Pharmacist and also in accordance with the Guidelines issued by the Department of personnel and Training from time to time. While examining the given subject in hand, a question came up for an in depth clarification as to whether the post held by Smt. T.Deepalakshrni, Junior Officer - 1 (Bacterial Vaccine Formulation) at HLL Bio Tech Limited, Chengalpattu is having any analogousness to the post ofPharmacist in the Labour Welfare Organization, Chennai in terms ofDOPT Guidelines.
In order to ascertain clarity on the subject, an opinion in the matter was evinced vide an application bearing reference no. HLLBT/R/2019/50003 dated 16/04/2019 under Right to Information Act, 2005 from HLL Biotech Limited, Chengalpattu, Kancheepuram. In response to the said application dated 16/04/2019, Shri S.Balasubramaniyam, Public Information Officer, HLL Biotech Limited, had categorically without any iota of doubt had opined that "HLL Biotech Limited do not have any analogous post to the post of Pharmacist" vide letter in file no. HBLRTIV11/19-20/02 dated 09/05/2019.
Furtherance to the opinion rendered by the HLL Biotech Limited as said above, the Welfare Commissioner (Central), Labour Welfare Organisation, Chennai chose to constitute an expert committee consisting of the Chief Medical Officers / Medical Officers of LWO, Chennai region to examine and render it's opinion with regard to the suitability part of the said Smt. T Deepalakshrni's candidature for the post of Pharmaicst in our LWO Chennai region in the light of the approved Recruitment Rules framed by the Ministry of Labour and Employment and the DOPT Guidelines for the post of Pharmacist under Labour Welfare Organization. The said expert committee had met at the office of the Welfare Commissioner (Central), LWO, Chennai on 16/03/2020 and have unequivocally opined by arriving at a conclusion that "the current responsibilities and duty performance of the present post as Junior Officer - I (Bacterial Vaccine Formulation) is not analogous with the post of Pharmacist in our dispensary under LO, Chennai"
In view of the foregoing narrations, your applications for the post of Pharmacist in Labour Welfare Organization, Chennai on Transfer on permanent absorption basis is, thus, rejected after due consideration and examination of the same at length in the light of the approved Recruitment Welfare Organization and also in accordance with the Guidelines issued by the Department of Personnel and Training from time to time. As finality in the matter has been arrived at as above, no further correspondences in this matter shall be entertained.
This is for favour ofyour kind information."
15 OA/310/391/2020 1o. The appointment on transfer on deputation / transfer etc., in the services of Central Government cannot be claimed as a matter of right. Under para.2 of the Office Memorandum in file no. 14027/27/75-Estt. (D) (P) dated 07.03.1984 (Annexure-R-18) issued by the Govt. of India, Ministry of Home Affairs, Department of Personnel & Administrative Reforms which inter-alia stipulates that "As far as the posts under the State Governments, Public Undertakings, etc. are concerned, it is quite likely that even posts with identical designations may not have comparable scales of pay and they may also differ with reference to the extent and stage of merger of D.A. with pay. The Levels in the hierarchy and the nature of duties, may not also be comparable. These posts may not also be classified into 4 groups as has been done under the Central Government. Taking these factors into consideration, the selecting authorities may have to be guided more by the nature of duties performed by the candidates in their parent organization vis-a-vis., those in the posts under selection, and qualifications and experience required for the post under the Central Government for making selection for appointments by transfer/ deputation (including short term contract) from outside Central Government service. Since the details of Recruitment Rules for the posts under State Government/ Public Undertakings etc., may not be available, bio-data sheets, signed by the Officer themselves and certified/ countersigned by their employer indicating their qualifications, experience, assignment held in the past, contributions made by them in the field of research, publications to their credit and any other information which the officers might consider relevant for assessing their suitability for the post in question may be obtained in the proforma (enclosed) prescribed vide the Department of Personnel and 16 0A/310/391/2020 A.R.s O.M.No. 39011/8/81-Estt (B) dated the 18" July, 1981."
11. A comparative table of the job profiles of the both the posts is as follows:
Duties and Responsibilities for Duties and Responsibilities for the post of Junior the post of Pharmacist in,Officer-i (Bacterial Vaccine Formulation) in HLL Labour Welfare Organization Bio Tech limited as per the application/ Curriculum Vitae of the applicant Smt. T. Deepalakshmi and forwarded by the Deputy Vice President (HR & Admin) dated 01.03.2018 I. Compounding and dispensing 1. To carry out the labelling machine activities.2 prescriptions to the Hospital/ 2. Carryout the labelling and packing activities as formulary prescriptions of per batch packing record.
doctors. 3. Monitoring and maintaining of all products
2. Being responsible for wholesale license activities in IVC. initiating the indents, stores, 4. Monitoring and maintain the equipment log maintenance of stock and books, cold room records and other documentation accounts of medical supplies and ensure online recording. and appliances under . his 5. To participate in internal and external training charge. for overall development.
3. Providing First Aid 6. Reconciliation of secondary and tertiary packing Treatment to the injured and materials.
repeat prescription of the 7. In process checks during labelling and packing physicians when ordered in the operations.
absence of the Doctors. 8. To carry out the coder printer activities.
4. Compiling statistics of 9. Maintain CGMP in secondary packing area. Hospital dispensary in 10. Monitoring and maintain the records of accordance with the differential pressure temperature and relative instructions, submission of humidity.
periodical report/ returns 11. Preparation and usage of disinfectant solution
5. Attending to work of the and maintain the records.
clinical side and doing the 12. Ensure area and equipment cleaning of routine test of urine, stool and secondary packing block.
blood provided he had/13. Storage of VVM dot labels and VVM dotted] O 17 OA/310/391/2020 .aceeen».a 0fa.
6. Anyone duties assigned by 14. Operation and Cleaning of Deep Freezer. the superior officers.
The duties and responsibilities performed by the applicant at HLL Biotech Limited and the duties and responsibilities of a Pharmacist to be performed under Labour Welfare Organization are entirely different and incomparable. Therefore, in view of the above, the claim of the applicant to consider her application for the post of Pharmacist under Labour Welfare Organization, Tirunelveli/ Chennai region on transfer on deputation or transfer on absorption basis, is, thus, cannot therefore, be countenanced as the duties and responsibilities performed by the applicant at HLL Biotech Limited and the duties and responsibilities of a Pharmacist to be performed under Labour Welfare Organization, Tirunelveli are entirely different and incomparable as mandated and as envisaged under para.2 of the Office Memorandum in file no. 14027/27/75-Estt. (D) (Pt) dated 07.03.1984 (Annexure-R-18) issued by the Govt. of India, Ministry of Home Affairs, Department of Personnel & Administrative Reforms.
12. The Welfare Commissioner (Central), Labour Welfare Organisation, Chennai constituted an expert committee consisting of the Chief Medical Officers / Medical Officers of LWO, Chennai region to examine and render it's opinion with regard to the suitability part of the said Smt. T Deepalakshmi's candidature for the post of Pharmaicst in LWO Chennai region in the light of the approved Recruitment Rules framed by the Ministry of Labour and Employment and the DOPT Guidelines for the post of Pharmacist under Labour Welfare Organization. The said expert committee had met at the office of the Welfare Commissioner (Central), LWO, Chennai on 18 OA/310/391/2020 16/03/2020 and have unequivocally opined by arriving at a conclusion that "the current responsibilities and duty performance of the present post as Junior Officer - I (Bacterial Vaccine Formultion) is not analogous with the post ofPharmacist in our dispensary under LO, Chennai"
13. Further the O/o the Welfare Commissioner (Central), Labour Welfare Organisation, Tirunelveli/Chennai did not call for/circular any advertisement or vacancy notification in the employment news or in Local Employment Exchange/ Central Employment Exchange as per the provisions of the Employment Exchange (Compulsory Notification of Vacancies) Act 1959 or in National Career Service Portal of Ministry of Labour & Employment in accordance with the Office Memorandum issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training in file no. 14024/1/2016-Estt. (D) dated 13.06.2006 (Annexure-R4) whereby inviting applications/nomination from the eligible candidates for filling up of the post of Pharmacist under Labour Welfare Organization, Tirunelveli/Chennai region on transfer on deputation /transfer/transfer on absorption basis. In view of the above, the claim of the applicant, Smt. T.Deepalak:shmi to consider her application for the post of Pharmacist under Labour Welfare Organisation, Tirunelveli/Chennai region on transfer on deputation/ transfer/ transfer on absorption basis, cannot, therefore, be countenanced in the absence of any vacancy circular/vacancy notification/vacancy advertisement issued by the O/o the Welfare Commissioner (Central), Labour Welfare Organization, Tirunelveli/Chennai as said supra.
0 19 OA/310/391/2020 0 14. Given the fact situation, as described herein, the applicant cannot force the respondents to consider her case. Her appointment, in the present situation would be back door entry to a civil post which is opposed to Articles 14, 15 and 309 of the Constitution of India. The respondents have not caused any legal or other injury to the applicant as she is not at all officially connected to the respondents. Therefore, the Respondents cannot be compelled to appoint a person who does not have experience in dispensing medicines to patients. This could be quite a risky proposition and violate the safety standards in dispensing medicines. Thus, the work done by the applicant and the job profile of a Pharmacist in Labour. Welfare Organisation are in contrast and at the same time in variance. This makes the applicant totally ineligible for the post of Pharmacist in LWO, Chennai.
15. The law on deputation is very clear. In State of Punjab and Others Vs. Inder 4y Singh and Others - (1997) 8 SCC 372, their Lordships of the Supreme Court have held thus:- "18. The concept of "deputation" is well understood in service law and has a recognized meaning. "Deputation" has a different connotation in service law and the dictionary meaning of the word "deputation" is of no help. In simple words "deputation" means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the Recruitment Rules."
20 OA/310/391/2020
16. In Umapati Choudhary Vs. State of Bihar (1999) 4 SCC 659, it has been held thus:- "8. Deputation can be aptly described as an assignment of an employee (commonly referred to as the deputationist) of one department or cadre or even an organization (commonly referred to as the parent department or lending authority) to another department or cadre or organization (commonly referred to as the borrowing authority). The necessity for sending on deputation arises in public interest to neet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. It also involves the consent of the employee to go on deputation or not."
17. It is trite that an employee does not get any right to be absorbed on a deputation post (See Ratilal B.Soni Vs. State of Gujarat -AIR 1990 SC 1132.) •
18. Thus the right of a deputationist having been clearly defined and delineated in law, we have no hesitation to hold that the contentions raised by the applicant are totally misconceived and untenable. The borrowing department has, in unequivocal H terms, made it clear that it does not need the services of the applicant. That settles the issue once and for all.
19. Original Application fails and it is accordingly dismissed. In the peculiar facts and circumstances of the case, the parties are directed to suffer their respective costs.
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