Govt. Of Nct Of Delhi Through Its ... vs Shri Sunil Kumar & Ors.
2011 Latest Caselaw 1592 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           WP (C) No.10561/2004

%                        Date of Decision: 21.03.2011

Govt. of NCT of Delhi                                   .... Petitioner
through its Secretary (Services)
                      Through Mr.V.K. Tandon, Advocate.

                                   Versus

Shri Sunil Kumar & Ors.                                .... Respondents
                    Through        Mr.Sachin Chauhan, Advocate.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE VEENA BIRBAL

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.

*

CM No. 13243/2010

This is an application by the petitioner/applicant for setting aside

the order of dismissal dated 30th August, 2010 of the writ petition in

default of appearance of the counsel for the petitioner and anyone on

behalf of the petitioner.

The applicant has contended that the counsel for the applicant

was not well and had requested his associate to attend the hearing in

the Court. However the associate could not reach the Court in time

leading to dismissal of the writ petition in default.

For the reasons stated in the application there is sufficient cause

for setting aside the order dated 30th August, 2010 dismissing the writ

petition in default of appearance of counsel for the petitioner.

Consequently the application is allowed, the order of dismissal

dated 30th August, 2010 is set aside and the writ petition is restored to

its original number.

W.P.(C) 10561/2004

1. The petitioner Government of NCT of Delhi has challenged the

order dated 31.12.2003 passed by Central Administrative Tribunal,

Principal Bench in O.A No.1548/2003 titled "Shri Sunil Kumar & Ors.

Vs. Government of NCT of Delhi & Ors." and the order dated 27.4.2004

in RA No. 58/2004 allowing the application of the respondents and

directing the petitioner to grant the benefits of ACP Scheme to the

respondents in the light of findings of the Tribunal.

2. Brief facts to comprehend the dispute are that the respondents

were originally appointed in Delhi Energy Development Agency

("DEDA"), an autonomous body falling under Government of NCT of

Delhi as LDC in the pay-scale of Rs.950-1500 revised pay-scale 3050-

4590 with effect from different dates as applicable to them.

3. Later on service of the respondents were declared surplus w.e.f.

30.11.1999 in DEDA. The respondents were thereafter re-deployed in

the Govt. of NCT of Delhi ("GNCTD") w.e.f. 01.12.1999 as per CCS and

CCA Rules on the same post and at the same scale through surplus cell

vide an order of GNCTD, Services -II Department being order No.

E3/77/97/S-II/263-70 dated 25th January, 2000. The order re-

deploying the respondents categorically stipulated that they are re-

deployed and not freshly appointed. The order re-deploying them after

they were declared surplus stipulated as under:

"......in terms of above mentioned rules the past services rendered by the surplus employees prior to their redeployment shall not count towards seniority in the Gr-IV (DASS) under the Govt. of NCT of Delhi. However, in other service matters they will be treated as appointed by transfer in the public interest."

4. The order re-deploying the respondents categorically stipulated

that they were re-deployed in the pay-scale of Rs.3050-4590 from the

date of respondents being declared surplus i.e. w.e.f. 01.12.1999

against the post of Gr-IV (DASS) in accordance with the provisions of

the CCS (Redeployment of Surplus Staff) Rules, 1990.

5. The respondents were denied the benefit of ACP which was

granted to the similarly situated persons by an order dated 21.02.2002.

The respondents alleged that the previous service along with the regular

service in the GNCT of Delhi has been counted for calculating the period

of ACP in cases of similarly situated persons who were re-deployed from

DEDA to GNCT of Delhi, however, the same had been denied to the

respondents. The respondents had contended that benefit of ACP

Scheme was available in case of re-deployed personnel by counting the

regular services rendered by them in their previous organization along

with their regular service in the new organization where they were

transferred in public interest and were neither freshly appointed nor

directly appointed.

6. Against denial of ACP benefit, the respondents made a

representation and relied on Condition No.14 of DOPT OM dated 09th

August, 1999 which was further circulated by Finance Budget

Department vide its OM No.F-14/2/99-Finance (B) dated 27.8.1999

which is as under:

"In case of an employee declared surplus in his/her organization and in case of transfer including unilateral transfer on request, the regular service rendered by him/her in the previous organization shall be counted along with his/her regular service in his/her new organization for the purpose of giving financial up- gradation under the scheme."

7. The respondents contended that their representation was

rejected by GNCT of Delhi, Deputy Secretary-II (Services) vide

communication dated 9.4.2003 being letter No. F.ACP/Gr.-

IV/Services/2000/170 addressed to all the Head of Departments which

led to filing of an original application before the Central Administrative

Tribunal contending inter alia that the "applicants are eligible for grant

of financial benefits under ACP Scheme in view of the Condition No.14

of DOPT OM dated 09th August, 1999." The respondents contended

that since they were re-deployed, therefore, it could not be held that

they were directly recruited or freshly appointed and therefore, the

clarification of Doubt No.0043 did not apply to them. Respondents also

relied on the cases of similarly placed persons who were re-deployed

after being declared surplus that were not treated as directly recruited

or freshly appointed and to whom benefit of ACP was granted counting

their previous service in the autonomous body and the subsequent

service in GNCT of Delhi.

8. The original application was contested by the petitioner

contending inter alia that the respondents had not completed 12 years

of regular service in a civilian post of GNCTD and their past service in

an autonomous body could not be counted for ACP benefit. According

to the petitioner, denial of ACP benefit to the respondents was in

accordance with clarification of Doubt No.43 of OM dated 18.07.2001

stipulating that the service rendered in an Autonomous Body/Statutory

Body/State Government is not to be counted for the purpose.

9. The Tribunal, however, allowed the application after hearing the

pleas and contentions of the parties holding that past services rendered

by such employees as respondents were not to be counted only for the

purpose of seniority, however, for all other service matters the past

service rendered in an autonomous body had to be counted and treated

as an appointment by transfer in public interest which is also apparent

from the order of transfer dated 25th January, 2000 which is detailed

herein above. The Tribunal categorically held that if the intention was

not to give the benefit of their past service on transfer in public interest

for purpose of ACP Scheme, it could be so stated specifically in the

order of transfer which, however, only stipulated that the past service

will not be counted for the purpose of seniority only and thus exception

has been carved out only for the purpose of seniority and not for other

matters pertaining to service including grant of ACP scheme.

10. Referring to the point of doubt, it has been held unequivocally

that past service is not to be counted for an employee who is appointed

on direct recruitment in which case the past service rendered in an

autonomous organization is not to be counted. Since it was not the

case of the petitioner that the respondents were directly appointed to

the Govt. of NCT of Delhi therefore, in terms of clarification No.43 of OM

dated 18.7.2001 the past service of the respondents who were re-

deployed with the Govt. of NCT of Delhi on being declared surplus in

the autonomous body (DEDA) is to be counted for the purpose of ACP

and thus the Tribunal allowed the petition and directed the petitioner to

consider grant of benefit of the ACP Scheme to the respondents in view

of the observations made by the Tribunal.

11. The review application was filed by the petitioner contending inter

alia that the order of the Tribunal in a similar case of one M.L. Bhatt

being OA No.1319/2003, similar benefit was denied to such employees

as respondents. The petitioner cited several Supreme Court judgments

wherein the redeployed staff was held not entitled to count their past

service. The petitioner also referred to one DOPT OM dated 15.3.1998

on the same lines where the past service of re-deployed employees were

not considered for seniority. The Tribunal dismissed the review

application reiterating its reasoning given in the original application and

also stating that the judgments cited by the petitioner do not deal with

the subject matter of the present case plus there is no apparent error

on the face of the record that would prompt the Tribunal to review its

order in original application.

12. The petitioner has challenged the orders of the Tribunal in

original application and review application primarily on the ground that

under the clarification issued, the past service with an autonomous

body is not to be counted on recruitment of the respondents with the

Govt. of NCT of Delhi. The learned counsel for the petitioner also

contended and relied on the order of the Tribunal in case of M.L.Bhatt,

where according to petitioner, similar benefit was denied to such

employees as respondents. The learned counsel for the petitioner has

also relied on WP (C) No.12246/2009 decided on 14.07.2010 titled as

"Ashok Mudgal Vs. Govt. of NCT of Delhi & Ors.".

13. This Court has heard learned counsel for the parties and has

perused the record of the Tribunal produced along with the writ

petition. The Tribunal had distinguished the case of Sh. M.L.Bhatt in

whose case grant of ACP Scheme was denied to him holding that

paragraph 14 of the terms and conditions for grant of ACP Scheme was

not applicable in his case whereas the said paragraph squarely covers

the case of the respondents herein. Perusal of paragraph 14 of the

terms and conditions for grant of ACP Scheme clearly shows the

conditions to be fulfilled before the previous service in an autonomous

organization could be counted in case of the employees who were

rendered surplus and were re-deployed. These conditions are:

(a) the employee declared surplus in the organization and

(b) it should be a case of transfer including unilateral transfer on request.

If both conditions are being satisfied then the past service which

is regular service can be counted for the benefit of ACP Scheme.

14. The order dated 25.01.2000 by virtue of which the respondents

were taken on the rolls of Govt. of NCT of Delhi is categorical about it,

relevant portion of which is reproduced hereinabove. From the

language of the order especially the later part, it is clear that the past

service rendered by the respondents was not to be counted for purpose

of seniority only and was to be counted for other purposes. The order of

re-deployment is unambiguous and makes it categorically clear that in

all other service matter and incidences, the appointment is to be treated

as an appointment by transfer in public interest. Appointment by

transfer cannot be equated with direct recruitment. If the intention

under the ACP Scheme or under the order of re-deployment was not to

count the past service of the respondents on transfer for purpose of ACP

Scheme, it could have been so stated specifically in the order. The only

exception which have been carved out, therefore, is only about the

seniority, therefore, no other view is possible except that the past

service rendered by the respondents in an autonomous organization,

which organization was also under the petitioner, has to be counted

along with the service with the petitioner after their re-deployment and

on transfer to Govt. of NCT of Delhi/petitioner for the purpose of ACP

Scheme. Consequently the benefits of ACP could not be denied to the

respondents.

15. The precedent Ashok Mudgal (supra) relied on by the petitioner is

distinguishable as it pertains to the benefit of the pension scheme

which was made applicable to those employees of DEDA who were re-

deployed before 01.01.2004. In that case the petitioners were granted

benefit of new pension scheme which was introduced by GNCTD and it

was in existence at the time when those petitioners had joined the

service in January, 2005 after 01st January, 2004. The petitioners in

that case were claiming the benefit of old pension scheme. Apparently

the disputes in the precedent relied on by the petitioner are not

applicable in the facts and circumstances of the present case. A

Division Bench of this Court in the case of Ashok Mudgal (supra) had

held that those employees who had joined the Government after

01.01.2004 could not take advantage of the old pension scheme

retrospectively, as the appointees by transfer had not been given the

benefit of appointment from a retrospective date. In the circumstances,

on the basis of the ratio of the said judgment, it cannot be held that the

respondents are not entitled for computation of their services rendered

with an autonomous organization, DEDA while considering the

entitlement of the respondents for the purpose of grant of first benefit

under the ACP Scheme.

16. In the totality of the facts and circumstances the petitioner has

failed to make out any such illegality or un-sustainability in the order of

the Tribunal which will entail any interference by this Court in exercise

of its jurisdiction under Article 226 of the Constitution of India.

17. The Writ Petition in the facts and circumstances is without merit

and is, therefore, dismissed. Parties are, however, left to bear their own

costs.

ANIL KUMAR, J.

March 21 , 2011                                 VEENA BIRBAL, J.
ac