Delhi High Court
National Highways Authority Of ... vs Sh.Mukul Saxena on 15 March, 2013
Author: Pradeep Nandrajog
$~10 to 13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: March 15, 2013
+ W.P.(C) 3822/2012
NATIONAL HIGHWAYS AUTHORITY OF INDIA ..... Petitioner
Represented by: Mr.V.K.Rao, Sr.Advocate with
Ms.Meenakshi Sood, Ms.Padmapriya,
Mr.Mukesh Kumar, Advocate and
Mr.M.K.Sinha, DGM (Admn.), NHA
versus
SH. MUKUL SAXENA ..... Respondent
Represented by: Mr.S.K.Gupta, Advocate
W.P.(C) 3920/2012
NATIONAL HIGHWAYS AUTHORITY OF INDIA ..... Petitioner
Represented by: Mr.V.K.Rao, Sr.Advocate with
Ms.Meenakshi Sood, Ms.Padmapriya,
Mr.Mukesh Kumar, Advocate and
Mr.M.K.Sinha, DGM (Admn.), NHA
versus
MANOJ KUMAR GARG ..... Respondent
Represented by: Mr.Rajender Khattar, Advocate
W.P.(C) 3921/2012
NATIONAL HIGHWAYS AUTHORITY OF INDIA ..... Petitioner
Represented by: Mr.V.K.Rao, Sr.Advocate with
Ms.Meenakshi Sood, Ms.Padmapriya,
Mr.Mukesh Kumar, Advocate and
Mr.M.K.Sinha, DGM (Admn.), NHA
W.P.(C) Nos.3822, 3920, 3921 & 3922/ 2012 Page 1 of 5
versus
SUNIL AGGARWAL ..... Respondent
Represented by: Mr.Rajender Khattar, Advocate
Ms.Kiran Suri and Ms.Aparna
Mattoo, Advocates
W.P.(C) 3922/2012
NATIONAL HIGHWAYS AUTHORITY OF INDIA ..... Petitioner
Represented by: Mr.V.K.Rao, Sr.Advocate with
Ms.Meenakshi Sood, Ms.Padmapriya,
Mr.Mukesh Kumar, Advocate and
Mr.M.K.Sinha, DGM (Admn.), NHA
versus
V.K.GUPTA & ANR. ..... Respondents
Represented by: Mr.S.K.Gupta, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J. (Oral)
1. A large number of employees working on deputation with the
writ petitioner but on the permanent rolls of various State Governments or
Statutory Authorities or other Authorities under the control of different State
Governments were desirous of permanent absorption in the writ petitioner
and with reference to the Recruitment Rules for the posts in question, had
approached the Central Administrative Tribunal with a prayer that the
petitioner be directed to permanently absorb the employees. The said
original applications were disposed of vide order dated March 25, 2010 by
the Tribunal on a consent granted by the petitioner that it would consider the
case of absorption of the claimants before the Tribunal as per Rule 13 of the
amended Rules as of the year 2009.
2. It is settled law that before a Transferee Department absorbs an
employee on deputation consent of the Parent Department has to be
obtained. The employee has to submit a technical resignation for only then
there would be continuity in service for purposes of computing length of
service rendered for purposes of terminal benefits payable. Needless to state
in said situation the Parent Department has to bear a proportionate share of
the terminal dues by paying over the amount to the Transferee Department
when absorption takes place. Further, adjustments pertaining to leave
account etc. have to be done. This is the reason why the consent of the
Parent Department has to be obtained.
3. Neither petitioner before the Tribunal was sought to be
repatriated to the Parent Department and yet in spite thereof, miscellaneous
applications were filed by some applicants which were disposed of by the
Tribunal on September 29, 2011, granting 3 months time to the petitioner to
comply with the consent order dated March 25, 2010, and pertaining to the
information given by the petitioner as to why delay was taking place, being
that the Parent Department had not granted the consent, the Tribunal
directed that the petitioner need not wait indefinitely for a no objection from
the Parent Department and it would be within the jurisdiction of the
petitioner to presume said no objection being accorded.
4. The only grievance of the petitioner is that it being directed to
presume a no objection would create irsurmountable problems in the future,
not only for the petitioner but even the employees, for the reason in the
absence of an express consent from the Parent Department the proportionate
money payable towards terminal benefits not being made available by the
Parent Department nor the Provident Fund Account being transferred, the
employee would face an uncertain future. Besides, there may be good
reasons, in public interest, for the Parent Department to refuse permission
for permanent absorption in another organization.
5. We agree with the contention urged by the petitioner. Without
going into the reason why the Parent Department was taking time to accord
the consent, and if the reason was found to be unjustified, without a
direction to the Parent Department to grant consent, no direction could be
issued to the petitioner to proceed ahead as if consent had been accorded.
The effect of the direction issued by the Tribunal is to create an uncertain
future for the employees, who for a better today are not seeing the
uncertainty of the future.
6. Accordingly, we dispose of the writ petitions quashing the
direction contained in the impugned order dated September 29, 2011 that the
petitioner would treat a deemed no objection if the Parent Department does
not grant approval for an employee to be absorbed within a reasonable time.
In said circumstance the right of the applicants before the Tribunal would be
to seek directions against their Parent Department.
7. Before concluding we note that save and except the
precedentiary value of the direction impugned, the issue has otherwise
become a non-issue inasmuch as some employees have been permanently
absorbed upon no objection being granted by the Parent Department, some
have been considered as per the Rule for permanent absorption but not
found fit for permanent absorption and these employees have approached
the Tribunal under fresh applications. Some employees, who had rendered
qualifying service in the Parent Department have obtained voluntary
retirement and thereafter have been permanently absorbed as fresh inductees
by the petitioner.
8. Files be consigned to the Record Room.
9. No costs.
CM No. 8013/2012 in W.P.(C) No.3822/2012, CM No. 8221/2012 in
W.P.(C) No.3920/2012, CM No. 8223/2012 in W.P.(C) No.3921/2012 and
CM No. 8225/2012 in W.P.(C) No.3922/2012
Since the writ petitions stand disposed of, instant applications seeking
ad-interim relief till disposal of the writ petition stands disposed of as
infructuous.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
MARCH 15, 2013
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