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(ii) That the Hon‟ble Tribunal may graciously be pleased to pass an order of quashing the condition put in the impugned order dated 12.4.2017 for not counting the service rendered on deputation basis for the purpose of Non Functional Grade/Scale.

3 OA 545 of 2019

(iii) Any other relief which the Hon‟ble Tribunal deem fit and proper may also be granted to the applicant."

2. The undisputed facts leading to the present OA and on the basis of the pleadings on record are that:-

2.1 The applicant was initially appointed under the Indian Railways on 4.3.1996. Thereafter the applicant joined the respondent No.2 as a SO/CO on deputation basis on 6.12.2013.

Before his joining the services of the respondent No.2, the applicant was holding the substantive post of Chief Controller (Pay Band-2 Rs.9300-34800 with Grade Pay Rs.4600) in his parent department, i.e., the Indian Railways. The respondent No.2 issued Memorandum dated 9.6.2016 (Annexure R-1) seeking willingness of the applicant for his permanent absorption in the cadre of SO/CO under the respondent No.2 providing conditions therein that upon his absorption under the respondent No.2, he will be assigned seniority in the grade of SO/CO from the date of his permanent absorption and the absorption will not bestow upon him any right for counting the services rendered on deputation basis for the purpose of seniority in the grade of SO/CO as well as for eligibility for grant of Non-Functional Grade or regular promotion to the next higher grade. It was also provided therein that the post of SO/CO under the respondent 4 OA 545 of 2019 No.2 is having all India service liabilities and on absorption, he will be liable to be posted in any of the Bench where a vacancy is available at the relevant point of time. The applicant has submitted his willingness dated 166.2021 (Annexure R/2). The Departmental Promotion Committee constituted on 9.3.2017 did not recommend his case for absorption in the grade of SO/CO as the applicant was holding the substantive post of Chief Controller (Pay Band-2, Rs.9300-34800 with Grade Pay Rs.4600/-). However, the said Committee recommended his name subject to relaxation of the Clause of „Group of Post‟ by the Hon‟ble Chairman of respondent No.2. The competent authority keeping in view the relevant rules has approved the requisite relaxation and the applicant was permanently absorbed vide Office Order dated 12.4.2017 (Annexure A/2) as SO/CO, Group „B‟ Gazatted w.e.f. 6.4.2017 in the level 8 of Pay Matrix corresponding to the pre-revised Pay Band-2 (Rs.9300-34800) with Grade Pay Rs.4800/-). In the impugned order dated 12.4.2017, it has been provided that the applicant will be assigned seniority in the grade of SO/CO under the respondent No.2 from the date of his permanent absorption and the absorption would not bestow upon him any claim for his absorption in the grade of SO/CO prior to the date of absorption and the services rendered on deputation basis in the grade of SO/CO would not be countered for the 5 OA 545 of 2019 purpose of seniority in that grade and for eligibility for grant of Non-Functional Grade/Scale or regular promotion to the next higher grade. The Govt. of India, i.e., respondent No.1 vide OM dated 1.4.2009 (Annexure A/7) introduced grant of Non- Functional pay scale of Rs.8000-13500/- to the Section Officers/Private Secretaries under the respondent No.2 on completion of four years of approved service in that grade initially w.e.f. 1.1.1996 on notional basis and on actual basis w.e.f. 3.10.2003. The respondent No.1 vide letter dated 28.9.2010 (Annexure A/3) conveyed to the respondent No.2 that for grant of Non-Functional pay scale, the period of four years approved service should be counted from the date of absorption and not from the date of deputation. One Private Secretary under the respondent No.2 approached the Calcutta Bench of this Tribunal vide OA No.1015/2012 and the issue was raised therein in the said OA that as to whether the services rendered as Private Secretary on deputation basis under the respondent No.2 shall be treated as approved service for grant of Non-Functional pay scale of Rs.8000-13500 or not. The Division Bench at Calcutta of this Tribunal vide Order/Judgment dated 8.10.2013 (Annexure A/4) held that the services rendered on deputation shall be treated as approved service for grant of Non-Functional pay scale of 6 OA 545 of 2019 Rs.8000-13500. The paragraphs 4 to 6 of the said Order/Judgment dated 8.10.2013 read as under:-

The SLP No.18898/2016 filed against the same was dismissed by the Hon'ble Supreme Court." Further reliance has been placed on another Order/Judgment of the coordinate Bench dated 7.12.2020 in OA 1229/2020, titled Vipin Mangla and others vs. National Highways Authority of India and others, wherein it has been held that the services rendered by the officers of NHAI on deputation must be counted in the context of determining eligibility condition for the next higher post.

7. Per contra, learned counsel for the respondents with the assistance of the reply filed on behalf of the respondents has argued that in the letter dated 9.6.2016 seeking willingness of the applicant for his permanent absorption, it was clearly provided that the applicant‟s services on deputation shall not be counted for the purpose of seniority for regular promotion and/or for grant of Non-Functional grade and the same has been accepted by the applicant and only thereafter the order of absorption has been passed in favour of the applicant and, therefore, the applicant is estopped from challenging the said conditions. He has further argued that the applicant before coming on deputation under the respondent No.2 was though in Pay Band-2 Rs.9300-34800/-, however, his Grade Pay was Rs.4600/- and whereas the applicant 21 OA 545 of 2019 had joined the services of respondent No.2 on deputation basis as SO/CO in the same Pay Band i.e. Rs.9300-34800/-, however, with Grade Pay Rs.4800/-. He has contended that the Grade Pay of the applicant in his parent department, i.e., the Indian Railways was less than the Grade Pay which was admissible to the post of SO/CO under the respondent No.2 on which the applicant came on deputation. He has further argued that the applicant was absorbed only in view of relaxation of Rules by the Hon‟ble Chairman keeping in view his acceptance of the rider and the recommendations of the concerned DPC. He has further argued that in terms of the earlier directions of this Tribunal vide Order/Judgment dated 17.10.2018 in OA 3973/2018 filed by the applicant, the representation of the applicant has already been considered and a detailed dated 5.12.2018 (Annexure A/1) has been passed and, therefore, indulgence of this Tribunal any further is not required. He has placed reliance upon the law laid down by the Hon‟ble Apex Court in the Order/Judgment dated 28.4.2006 in Civil Appeal No.6960/2005, titled Indu Shekhar Singh and others vs. State of U.P. and others, reported in (2006) 8 SCC 129. He has argued that in view of the law laid down by the Hon‟ble Apex Court in the case of Indu Shekhar Singh (supra), the applicant is not entitled to seek counting of his 22 OA 545 of 2019 services spent as SO/CO on deputation basis under the respondent No.2 for grant of Non-Functional grade benefits.

8. We have carefully considered the submissions made by the learned counsels for the parties and have also perused the pleadings on record. It is not in dispute that the applicant has joined the services of the respondent No.2 in the grade of SO/CO in view of the selection process therefor and in accordance with the provisions of the relevant Recruitment Rules. It is also not in dispute that the applicant was absorbed in the grade of SO/CO under the respondent No.2 in view of the recommendations of the concerned DPC and by the competent authority, i.e., the Hon‟ble Chairman of this Tribunal keeping in view the relevant Rules and instructions on the subject. It is also not in dispute that deputation is also a known source of appointment in the eyes of law and rules. Moreover, the issue as to whether a person who has been appointed on deputation by the competent authority, the services spent on deputation shall be required to be taken into account for grant of upgradation/Non-Functional grade has been raised and adjudicated by the various Benches of this Tribunal and most of them have been referred to and relied upon by the applicant and have also been precisely noted hereinabove, the said issue is no more res integra. The stand of the respondent No.1 vide their OM dated 28.9.20210 (Annexure A/3) that the 23 OA 545 of 2019 period only after absorption is required to be taken into consideration for grant of Non-Functional grade has already been rejected by the Calcutta Bench, Mumbai Bench as well as this Bench of this Tribunal in the cases referred to hereinabove and the said judgments have attained finality and have been given effect to. In another case titled D.D. Parlawar vs. National Highways Authority of India (supra), this Tribunal has already ruled, as noted hereinabove, that the period spent on deputation is required to be taken into consideration for determining the eligibility for promotion to the next higher grade. The said judgments have attained finality and the said Order/Judgments have been passed by referring to and relying upon the law laid down by the Hon‟ble High Court as well as of the Hon‟ble Supreme Court. So far as the reliance of the learned counsel for the respondents on the law laid down by the Hon‟ble Apex Court in the case of Indu Shekhar Singh (supra) is concerned, the same has been referred to by the learned counsel for the applicant also. We have gone through the same. In the said Judgment, it is clearly noted as under:-