Union Of India & Anr. vs O.P. Gaba
2011 Latest Caselaw 3248 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
+            WRIT PETITION (CIVIL) NO. 4751/2011


Union of India & Anr.                        ....Petitioner
                 Through          Mr. Rajesh Katyal, Advocate.

                      VERSUS

O.P. Gaba                                      ....Respondent
                      Through


CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA


                                  ORDER

% 11.07.2011

Learned counsel for the petitioner Union of India, submits that

the order dated 3rd March, 2011, passed by the Central Administrative

Tribunal, Principal Bench, Delhi (Tribunal, for short), allowing OA No.

3718/2010 filed by the respondent - O.P. Gaba, should be set aside as

the Tribunal has not considered O.M. dated 27th March, 2001. The

operative portion of the said O.M., reads as under:-

"The undersigned is directed to say that according to our O.M. No. 20020/7/80-Estt(D) dated May 29, 1986 (copy enclosed) in the case of a person who is initially taken on deputation and absorbed later (i.e. where the relevant

recruitment rules provide for "transfer on deputation/transfer"), his seniority in the grade in which he is absorbed will normally be counted from the date of absorption. If he has, however, been holding already (on the date of absorption) the same or equivalent grade on regular basis in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from

the date he has been holding the post on deputation, or

the date from which he has been appointed on a regular basis to same or equivalent grade in his parent department,

whichever is later."

(emphasis supplied)

2. The respondent was working as an Assistant Director in the scale

Rs.8000-13500/- in the Forest Survey of India, Dehradun. The

respondent was selected for deputation assignment as Scientist 'C' in

the pay-scale of Rs.10000-15200/- in the department of Science &

Technology i.e. the petitioner. He joined the said post on 7th July, 2004

and was absorbed in the Department of Science & Technology on

permanent basis w.e.f. 18th August, 2008.

3. The question raised before the Tribunal was whether or not the

respondent was entitled to in-situ promotion under the Flexible

Complementing Scheme (FCS) as per the provisions of the Department

of Science and Technology Group 'A' Gazetted Posts (Non-ministerial,

Scientific and Technical) Rules, 2004. The relevant portion of Rule 6(2)

reads as under:-

"(2) The scales of pay to which the Flexible Complementing Scheme (FCS) shall apply, the minimum residency period linked to performance for in-situ promotion to the next higher grade and the uniform designations of the scientific and technical posts covered by the Flexible Complementing Scheme shall be as given in the table below:-

________________________________________________ Designation Scale of pay Minimum residency Period linked to performance _________________________________________________ (1) (2) (3) _________________________________________________ Xxxx _________________________________________________ Scientist 'C' Rs.10000-325-15200 four years _________________________________________________"

4. Rule 6(1)(b),(c) & (d) are also relevant and read as under:-

"6. In-situ promotion under Flexible Complementing Scheme (FCS):-

(1) (a) xxxx

(b) There will be complete interchangeability without any restriction except that the total number of posts of Scientist 'B', Scientist 'C', Scientist 'D', Scientist 'E', Scientist 'F' and Scientist 'G' put together should not exceed the total sanctioned strength.

(c) The Department of Science and Technology will be free to vary the number of posts in the different scales so as to ensure promotion of an officer from junior scale to senior scale for in-situ promotion under Flexible Complementing Scheme (FCS) and proven merit and record of research will be the only criteria.

(d) In-situ promotions under Flexible Complementing Scheme (FCS) will be personal to the officer concerned and would not result in specific vacancy in the lower grade on that account. The post being currently held by the concerned officer will be upgraded automatically and personal to him for the duration of his stay in the in-situ promotion post. The post will revert to the original level once the officer vacates the higher post by superannuation, resignation or otherwise."

5. A reading of the aforesaid sub-clauses shows that in-situ

promotion is personal to the officer concerned and does not result in a

specific vacancy in the lower grade. The in-situ promotions are given

after an officer has completed a minimum residency period linked to

performance in the prescribed scale of pay. For Scientist 'C', the

prescribed pay-scale is 10000-15200/- and the minimum residency

period linked to performance is four years. It is not possible to agree

with the contention of the petitioner that the period between 7th July,

2004 to 18th August, 2008, when the respondent was on deputation

should be ignored and treated as non-existing under Rule 6(2). There is

no such stipulation in the rules. It is not the case of the petitioner that

respondent was taken on deputation contrary to the rules. The

deputation and absorption thereafter is one of the prescribed modes

for recruitment for Scientist 'C' as per Rule 5.

6. O.M. dated 27th March, 2001, as quoted above deals with

seniority. It stipulates that for the purpose of inter-se seniority

between officers, the date of absorption is the criteria which is

determinative. We are not concerned with the inter-se seniority in the

present case. The O.M. cannot be applied for the purpose of

computing minimum residency period linked to performance stipulated

in Rule 6(2). Further, as noticed above, in-situ promotion in FCS are

personal to the officer concerned and they cannot and do not affect

other officers. The aforesaid view taken by us is in consonance and

finds resonance in the decision dated 11th October, 2006 in Writ

Petition (Civil) No. 14097-100/2005, Dr. Rajendra Kumar & Ors. vs.

Govt. of NCT of Delhi. In the said case, the Division Bench was

examining whether the petitioners therein who had joined as Senior

Scientific Officers on deputation were eligible and had completed five

years of service for being considered for promotion as Assistant

Directors. A question arose whether the period of service on

deputation as Senior Scientific Officer before permanent absorption

should be counted for qualifying service. The Division Bench held as

under:-

"14. Ms. Avnish Ahlawat on behalf of the respondent sought to justify the decision of the Tribunal. She submitted that there were no recruitment rules, which would have enabled these appointments on regular basis. Some of these petitioners have been working in posts lower than in the rank of Senior Scientific Officers, such as, Senior Scientific Inspector, Sub-Inspector etc. prior to being taken on deputation as Senior Scientific Officers. Her submission is that in respect of petitioners, who are working at posts lower than that of Senior Scientific Officers, their service in the parent department are not to be taken into consideration. The above plea to our mind is of no avail. The question to be considered is whether the services rendered as Senior Scientific Officer on deputation with the respondent can be regarded as regular service in the grade/scale. Ms. Ahlawat submits that recruitment rules were framed in 1998 in consultation with UPSC. Accordingly, these petitioners were permanently absorbed on 29th April, 2002 as Senior Scientific Officers. Their service for purpose of promotion to the post of Assistant Director, accordingly, has to be counted from the date of absorption when their appointment stood regularized. She further submitted that these persons could not be considered as regular

appointees as they had joined the respondent on deputation and held their lien in other posts held by them prior to their absorption. We have already noted that the appointment of petitioners on deputation was admittedly after following due procedure. The non existence of statutory rules, at the relevant time, cannot convert the service rendered by them as irregular and result in their service being disregarded for being counted for the purposes of eligibility condition. As noticed earlier, each of the petitioners possess the requisite academic qualifications and have the requisite experience to meet the eligibility condition.

15. We find merit in the petitioners' submission, as noted above. Petitioners in view of the decision in K. Madhavan & Others Vs. Union of India (Supra) and K.B. Rajoria vs. Union of India & Ors. (Supra) are entitled to have the period of service on deputation with the respondent counted towards eligibility period for the post of Assistant Director.

16. The Tribunal had also relied on the factor that the period of deputation should not be counted towards regular service because the petitioners during the period of deputation and prior to permanent absorption had a lien on their posts in the parent department. Without going into the question as to whether lien was retained or not, we find the same to be contrary to the dictum, laid down in Rudra Kumar Sain and Others vs. Union of India and others reported at (2000) 8 SCC 25. In the cited case, the Supreme Court noted the contention that the conclusion arrived at by the Committee of the High Court that a person promoted to higher judicial service under Rules 16 and 17 of the Rules to a post against which some other person had a lien, would ipso facto make such appointment ad hoc/fortuitous/stop gap, is contrary to the conclusion reached by the Supreme Court in O.P. Singla Vs. Union of India reported at (1984) 4 SCC 450 regarding continuous length of service.

17. From the foregoing, it would follow that simply because a lien was retained by the earlier incumbent to

the post, the subsequent appointment to the post which is otherwise made in accordance with the rules would not be rendered ad hoc/fortuitous/stop gap because of the lien. Hence similar plea regarding lien as is sought to be raised would also not be available to the respondent."

7. For the aforesaid reasoning, we do not find any merit in the

present writ petition and the same is dismissed.

(SANJIV KHANNA) JUDGE

( DIPAK MISRA ) CHIEF JUSTICE July 11, 2011 kkb