Anil Kumar & Ors. vs Union Of India & Anr.
2010 Latest Caselaw 490 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P. (C.) No.566/2010

%                       Date of Decision: 29.01.2010

Anil Kumar & Ors.                                        .... Petitioner
                       Through Mr. Shri Gopal Aggarwal, Advocate

                                Versus

Union of India & Anr.                                 .... Respondents
                     Through    Mr. A.K. Bhardwaj, Advocate

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether reporters of Local papers may be              YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                NO
3.     Whether the judgment should be reported in            NO
       the Digest?



ANIL KUMAR, J.

*

The petitioner has challenged the order dated 9th November, 2009

passed in OA No. 3132/2009 titled as Anil Kumar Vs. UOI & Ors.

declining his petition seeking absorption as a deputationist with the

office of Chief Controller of Accounts, Ministry of Commerce & Industry,

Department of Commerce (Supply Division) and order dated 5th

January, 2010 dismissing his review application being RA No.

253/2009 titled as Anil Kumar Vs. UOI & Ors.. The petitioner had filed

OA No. 3132/2009 in the Central Administrative Tribunal Principal

Bench, New Delhi as a 4th attempt on his part to be retained and

absorbed in the office of Chief Controller of Accounts, Department of

Commerce (Supply Division) challenging the order dated 18th

September, 2009 taking a decision to repatriate the petitioner to his

parent department.

According to the petitioner, pursuant to a notice dated 8-14th

March, 2003 for filling the post by transfer on deputation for a period of

one year, likely to be extended further, he applied and was appointed on

deputation as accountant in the pay-scale of Rs. 4000-6000 which was

specifically upgraded to Rs. 4500-7000. The deputation period of one

year was also extended by the respondents. The Recruitment Rules

known as Central Civil Accounts Service (Group-C) Recruitment Rules,

2000 contemplated filling up of 70% of the cadre of direct recruitment

through Staff Selection Commission and remaining un-filled posts to be

filled through deputation by taking persons of appropriate cadre from

other recognized Accounts Service and Government Departments.

The plea of the petitioner was that office of Controller General of

Accounts, Department of Expenditure, Ministry of Finance had felt the

acute shortage of manpower and in order to strengthen the manpower

deployment, had started the process of absorption and the applicant

was asked for unconditional acceptance of the terms of absorption and

the consent of the parent department of the petitioner had already been

obtained for this purpose. Before the petitioner could be absorbed, a

Gazette Notification in 2008 was issued contemplating the requirement

for filling the unfilled direct recruitment quota which required

absorption of only those deputationists, who had an exceptionally good

performance on completion of two years on deputation in public interest

subject to prior concurrence of parent cadre and Controller General of

Accounts.

Though the petitioner did not fulfill the requirement of

absorption, however he filed an OA No. 1588/2008 seeking direction to

the respondent to consider the request of the petitioner for absorption.

During the pendency of the petition, repatriation of the petitioner to the

parent department was also stayed.

Pursuant to the direction by the Tribunal, according to the

petitioner, a cryptic order for repatriation was passed after

consideration which led to filing of another OA No. 275/2009 which was

disposed of by order dated 3rd July, 2009. The respondents were again

directed to consider the claim of the petitioner for permanent absorption

though holding that the petitioner did not have indefeasible right to get

absorbed.

Though the period of deputation of the petitioner had expired and

he had not been permanently absorbed however, in view of the order

passed in OA No. 1588/2008 and OA No. 275/2009 he continued to

approach his office and on facing problems of entry, the petitioner filed

another OA No. 2746/2009 where repatriation of the petitioner was

again restrained up to 23rd October, 2009. Since, pursuant to an

earlier order, repatriation order dated 18th September, 2009 had been

passed, therefore, the OA No. 2746/2009 was disposed while granting

the liberty to the petitioner to challenge the order of repatriation passed

again on 18th September, 2009.

By the order dated 18th September, 2009, repatriating the

petitioner to his parent cadre, it was held by the respondents that

pursuant to the order dated 3rd July, 2009 of the Central Administrative

Tribunal, Principal Bench, the candidature of five deputationists

including the petitioner had been considered fairly and equitably by the

expert/selection committee constituting five departmental officers in

accordance with the existing Recruitment Rules and its amendments

together with performance of individual based upon CR Dossiers and

other relevant material subject to availability of vacancy and on the

basis of selection one of the deputationist other than the petitioner had

been selected for absorption based on his merit. Since the petitioner

had not been placed in the select list for absorption, the order for his

repatriation was passed.

The Tribunal while deciding the validity of order dated 18th

September, 2009 has noted that there was one vacancy for absorption

against which five deputationists were considered in accordance with

Rules and the name of the petitioner did not find place in the select list.

The alleged presumption of more than one post vacant has been

repelled by the Tribunal by considering the record of previous petitions

filed by the petitioner and holding that three posts were filled on

absorption basis in June, 2009 and whether another post is vacant or

not has to be seen on the basis of facts and not by the presumptions

raised by the petitioner which stood rebutted, as there was no material

which could remotely suggest that availability of more than one

vacancy.

This cannot be disputed that out of the deputationists, who want

to be absorbed only one deputationist other than the petitioner was

selected. The learned counsel for the petitioner has tried to emphasize

the suitability of the petitioner in reference to other however, on the

basis of the assessment of the petitioner, it cannot be held that he is

more suitable than the candidate who is already absorbed nor this

Court has to decided that the petitioner is more suitable than the

candidate who has been absorbed. Merely because the petitioner

continued on deputation for five years also does not raise a

presumption in his favour that he is more suitable than other

deputationist, who has been absorbed. The petitioner does not have a

vested right for absorption nor he has been able to make out a case for

his absorption. In the facts and circumstances, the findings of the

Tribunal cannot be faulted on any of the grounds raised by the

petitioner. The writ petition in the facts and circumstances is without

any merit and it is therefore dismissed.

ANIL KUMAR, J.

JANUARY 29, 2010                                 MOOL CHAND GARG, J.
'rs'