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Showing contexts for: cooling off deputation in Vishnu Shankar Prasad vs Ministry Of Shipping on 2 June, 2009Matching Fragments
AS CGM IN NHAI Shri K.C. Verkachayam on 31.7.2008 for second deputation just after completing 5 months of cooling off period.
Shri B.N. Singh for second deputation just after completing 2= months of cooling off period.
Shri R.P. Indoria for second deputation just after completing 10= months of cooling off period.
Shri C.K. Kandaswamy for second deputation just after completing 16 days of cooling off period.
Shri S.K. Puri - just after completing 10= months of cooling off period.
Shri M.P. Sharma no cooling off between deputation as GM till 27.9.2008 and as CGM thereafter.
Sd/-01/10/08 Secretary (RT&H) Please examine the case with reference to orders of DOP&T on deputation of officers to outside their cadre and cooling off period, if any, between to deputations.
Sd/- 2/10/08 JS Sd/- 3/10/2008 DS(A) Sd/3/10/08 US (Estt).
Sd/3/10/08 Reference notes at pre-page. The latest O.M. dated 29.02.2008 issued by DOPT is placed in the file at Flag A. The cooling off period mentioned here is 3 years. (F/X).
Submitted pl.
Sd/-8/10/08 DS(A) As per our own deputation policy also, the cooling off period between any kind of deputation within or outside the country should not be less than three years (Flag/B).
8. Pursuant to notice issued by this Tribunal, a joint reply on behalf of all the respondents has been filed through Sh. D.R. Sharma, Under Secretary, Department of Road, Transport & Highways. The respondents, who have been impleaded by name and against whom allegations of mala fide have been made, have not filed any separate reply. In the joint reply filed on behalf of all the respondents, it has been averred, by way of preliminary objections, that the officers, who have been arrayed parties, are public functionaries and while processing the case of the Applicant for deputation to NHAI, were discharging their duties in their official capacities, and they categorically deny all allegations of mala fide intention. Department of Road, Transport & Highways is stated to be the Cadre Controlling Authority of Central Engineering Service (CES) (Roads), Group A posts and is entrusted with the implementation of National Highways Act, 1956 and some other Acts. The Department is responsible for development and maintenance of national highways and collection and analysis of data on transport for research for increased and safe mobility of the road transport system in the country. NHAI is stated to be created by an Act of Parliament called NHAI Act, 1988 as an autonomous body, which is governed by a Board comprising five full time Members and four part time Members. It carries out the development and maintenance of those stretches of the national highway network, which are entrusted to it by the Government of India through the Department of Road, Transport & Highways. NHAI, it is stated, to some extent, is dependent on the engineers of CES (Roads) cadre and officers of the cadre at various levels have been sent to NHAI on mandatory deputation basis enabling the organization to carry out the assigned tasks within the stipulated period of time in accordance with the mandate given under the NHAI Act, 1988. CES cadre was created during the year 1959. It is stated that the Applicant joined the Department of Road, Transport & Highways on 13.06.1985, and during his 23 years of service, he has been on deputation outside the Ministry for a period of 9 years, (i) Ministry of Steel for four years from 18.01.1995 to 17.01.1999 and (ii) Ministry of Home Affairs for five years from 23.04.2002 to 26.06.2007. He has joined his parent cadre thereafter. Since Department of Road, Transport & Highways is responsible for the development and maintenance of national highways in the country, it has been making available the services of officers of CES cadre (Roads) to NHAI on deputation basis. In the past, there have been some instances when officers of CES cadre applied for appointment in NHAI for transfer on deputation on the basis of open advertisement and they were sent after the approval of the competent authority. The applicant had never applied for the post of CGM in NHAI. Following the requirement of officers to be posted at the level of CGM in NHAI, JS(T&A), who was then dealing with the administrative matters connected with the CES, sought recommendations from the DG (RD) & SS and Special Secretary, who is the Technical Head of the Roads Wing. There was no requirement of seeking the recommendations of the DG (RD) & SS as he was not concerned with the administrative matters. Keeping in view his position as most officer of the CES and Head of the Technical Wing, his recommendations were sought. As the DG (RD) & SS was not expected to be aware of the requirement as regards the completion of cooling off period, he could not take into consideration while sending his recommendations to the Secretary. He should have returned his recommendations to the JS (T&A) who could have then scrutinized the relevant service profiles of the concerned officers and the position in regard to their having completed/not completed the cooling off requirement could also have been brought out. Not realizing the absence of this course of action having been followed in the matter, the recommendation of DG(RD)&SS was endorsed by the Secretary (RT&H) in good faith while submitting the proposal for approval of the Minister. No mention could, therefore, have been made at that time of the cooling off requirement. In the absence of the mandatory cooling off requirement having been brought on record, the question of any relaxation or waiver thereof did not arise at all. The applicant is posted as Superintending Engineer. The total sanctioned strength of SE (Civil) in this Department is 53 against which 11 officers are already on deputation to NHAI and other organizations while 11 posts are vacant. The vacancies are likely to further increase after the promotion of SEs to the post of CEs for which DPC has been conveyed by UPSC. Evidently, the number of SEs who would be in position in the Department comes out to be about 50% of the total strength. As the applicant had not completed the requisite cooling off period of three years in the Department as per guidelines of DOP&T contained in OM dated 29.02.2008 after his repatriation from last deputation in Ministry of Home Affairs, it was accordingly proposed not to depute him to NHAI on deputation basis. Where an officer is recruited in a certain cadre, he is liable to serve that cadre for carrying out the functions for which that cadre has been created for the major part of his service tenure. Moreover, if there are certain opportunities for deputation outside the cadre, these are to be equitably made available among various officers of the organized cadre keeping in view the requirement of the posts, their performance and the need for exposure. A stint of deputation by an officer outside his cadre is an incident of service which does not affect, one way or the other, his seniority in his own cadre. It is for the borrowing and lending departments to administratively decide about the feasibility of sending/accepting an officer on deputation or otherwise. Deputation cannot be claimed by an officer as a matter of right. DG(RD) & SS in the Department of Road, Transport & Highways had recommended the name of the applicant for the post of CGM in NHAI on deputation basis unmindful of the requirement of completion of cooling off period as prescribed under DOP&T guidelines. While approving the recommendations made by DG(RD)&SS, full facts with regard to the cooling off period by the applicant were not available on record and the proposal was endorsed by Secretary (RT&H) in good faith. Subsequently, relevant facts were brought to the notice of the Minister (S, RT&H) indicating that the applicant was already on deputation for nine years first in the Ministry of Steel from 18.01.1995 to 17.01.1999 and subsequently in Ministry of Home Affairs from 23.04.2002 to 26.06.2007. After his repatriation from deputation, he was required to complete the cooling off period of three years. In the absence of completion of cooling off period of three years, the applicant could not be sent on deputation to NHAI. All the relevant facts regarding the period spent by the applicant on deputation outside the Ministry and the date on which he joined back the Department were brought to the notice of Secretary (RT&H) and the Minister indicating that the applicant was yet to complete three years cooling off period. The fact that Mr. Sharma, who was senior to S.S. Nahar and was already working as G.M. in NHAI, while S.S. Nahar was being sent as CGM in NHAI, had to be brought to the notice of the competent authority in order to avoid any embarrassment to the senior officer and to the Government as the post of GM in NHAI is lower than the post of CGM. This was only with this intent to avoid this anomaly that Mr. Sharmas name was also proposed for upgradation as CGM in NHAI, if Nahar was to be sent as CGM. The order of seniority in the main cadre needs to be reflected in the postings of officers of an organized cadre in the borrowing department even if they are sent in an autonomous organization like NHAI. The fact that the seniority of the applicant was not reflected in the noting aforesaid could not be interpreted as a reflection of mala fide intention. It is denied that the name of the applicant was deleted and substituted by M.P. Sharma, rather Mr. Sharma was already working on deputation in NHAI as GM w.e.f. 28.11.2005. It is admitted that the Minister decided that his earlier orders in respect of the applicant would stand good, but it is added that at the time of issuance of order of deputation of the applicant to NHAI as CGM, Secretary (RT&H) was on tour abroad. On his return from abroad, the matter was brought to his notice and as desired by him the file was again submitted bringing out all the relevant facts on record. After issuance of order for deputation, there is a further requirement of issuance of another order for relieving the applicant from the post held by him in the Department. After discussion with the Secretary (RT&H), it was decided that the matter should be re-submitted to the Minister and the officer not be relieved pending orders. The process of decision making in the Central Secretariat involves various channels starting from the dealing hand right up to the level of competent authority. In the case of deputation order, the first stage is initiation of proposal and the final stage is relieving order. It is the case of the respondents that till the relieving order is issued, the process cannot be considered as over. Till the process is over, the case can be examined, re-examined and again re-examined as many number of times as required as long as the competent authority has not satisfied itself completely as per its own best judgment. It is always open to the competent authority to question the reasonableness of the necessity of re-submission, in the light of justification given for the same. As regards the plea of the applicant for sending other officers on deputation to NHAI and other organizations without completing the requirement of cooling off period, it is the case of the respondents that these officers were sent on deputation from time to time as per administrative requirement. Only one officer namely K.C. Varkeyachan, Superintending Engineer has been sent to NHAI as CGM without fulfilling the requirement of cooling off period after issuance of DOP&T consolidated guidelines applicable to all Central Services Group A offices including Central Engineering Services which stipulates the said requirement. It was in view of this that the proposal to recall Verkeyachan, SE (Civil) to this Department from NHAI was also submitted to the Minister for the sake of maintaining consistency while ensuring compliance of the said guidelines. The respondents were duty bound to comply with the requirements laid down under the rules and, therefore, the file was accordingly submitted for cancellation of the deputation order. The applicant is stated to be chasing his file in the department as reflected by the photocopies of note sheets from various files enclosed with this Application and which, it is stated, have been obtained unauthorisedly. It is then pleaded that the Minister has since approved the cancellation of the impugned order which, however, has not been issued in compliance with the directions of this Tribunal.
20. Before we may advert to the second issue as framed above, we may mention that for the first time the proposal was initiated to depute two SEs to NHAI to meet the needs of NHAI for fulfilling its mandate on various road projects. The applicant had not asked for deputation to NHAI. It is DG&SS of the department who suggested that two SEs, one of them being the applicant and the other officer Shri S. S. Nahar, be deputed to NHAI. The file was routed through the first respondent to the Minister, who approved the deputation of both officers on 2.9.2008. We find from the personal file of Shri S. S. Nahar that he submitted his note dated 26.9.2008 and was relieved on the same day. In the case of Shri Nahar, the Joint Secretary noted in file No.A22020/3/2006-E.II on 7.2.2008 that Shri Nahar had not been pulling on well CE (Shri H. S. Ahluwalia) and that there were complaints against him when he was working at Patna. The Joint Secretary recommended transfer of Shri Nahar to Thiruvananthapuram, but the Minister ordered on 10.3.2008 to post him to Bridge Design Division. We wonder if Shri Nahar with such background could be deputed and relieved in one day why the applicant with unblemished record was not relieved? The second time the Minister saw the file was on 12.9.2008. Prior to that the proposal was initiated by Joint Secretary on 4.9.2008 with the noting that minor details about the applicants deputation were not checked up. Hence he wrote that out of 23 years of service put in by the applicant, he was on deputation in 2 spells for 9 years and joined back in the Department on 25.6.2007 and was yet to complete 2 years of cooling off period and it was suggested not to send him on deputation again to NHAI. It may be noted that the applicant in his earlier 2 deputations to Ministry of Home Affairs and Ministry of Steel, and was not on deputation to NHAI. Secretary of the Department on 4.9.2008 in his note informing that order of the Minister passed earlier was not issued, recommended that we may appoint Shri M. P. Sharma, SE as CGM in NHAI. Shri V. S. Prasad should work in the Department as SE. Shri S. S. Nahar may also be appointed as CGM in NHAI. Shri Sharma was later on deputed to NHAI as CGM vide order No.35021/2/2008 E.II dated 25.9.2008 and he joined with effect from 30.9.2008. It is to be noted that Shri Sharma was working already as GM and without spending the cooling off period as prescribed, he was posted as CGM. The Minister in his order dated 12.9.2008 recorded that let the earlier order stand good, meaning thereby that deputation of Shri Nahar to NHAI as CGM should be implemented. We find that in the note put up by JS the cooling off period deficit was mentioned, on which the said order was passed by the Minister. Thus, it is certain that the Minister had taken into consideration the objection raised by the authorities with regard to his not completing the cooling off period. Whereas, it may be so that when for the first time the Minister cleared the deputation of the applicant, specific mention with regard to waiving cooling off period may not have been made, but certainly and admittedly, for the second time, when the Minister approved the deputation of the applicant to NHAI, it was so specifically mentioned in the various notes referred to above. The case of the applicant came up before the competent authority, i.e., the Minister, on 22.1.2009. It was mentioned in the note initiated by the dealing assistant that pursuant to Ministers order dated 2.9.2008 and 12.9.2008, the order of the applicants deputation to NHAI was issued on 24.9.2008, and that the applicant had not yet been relieved of his duties in the department, and further that his request for relieving was under consideration/examination with reference to deputation policy of DOP&T. The applicant requested vide note dated 29.9.2008 to be relieved on 30.9.2008. A draft order for the same was put up and a query was raised by the Deputy Secretary on 30.9.2008 to link the file in which decision for deputation was taken. The dealing assistant put up the facts in flag X, along with the list of officers who had not completed the prescribed cooling off period at flag Y (flag Y is not available in the referred file for our perusal). The Joint Secretary in his note dated 1.10.2008 recorded that Shri B. N. Singh, SE and Shri K. c. Verkayachan, SE were deputed without completing the cooling off period. The Joint Secretary desired to know whether cooling off period could be relaxed and whether the DOP&T guidelines were to be followed. Consequently, a detailed note was submitted, which we have already reproduced above. In view of the above note and subsequent discussion within the department, a proposal on (a) cancellation of deputation order of the Applicant to NHAI; and (b) recalling of Shri K. C. Venkyachan SE from NHAI, was processed and placed before Minister for orders. Ministers recording dated 22.1.2008 has already been reproduced above. Consequent to this, the department processed the file explaining the position including the interim order passed by this Tribunal, which would clearly show that the deputation orders were not to be cancelled and status quo was to continue. The Minister, as mentioned above, took note of the same on 3.2.2009.