Sh. Aakash Deep Chakravarti vs Union Of India & Anr.
2015 Latest Caselaw 136 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+              W.P.(C) No. 209/2015 & CM No.331/2015 (stay)

%                                                    9th January , 2015

SH. AAKASH DEEP CHAKRAVARTI            ......Petitioner
                  Through: Mr. Shankar Raju, Adv. and Mr.
                           Nilansh Gaur, Advocates.


                           VERSUS

UNION OF INDIA & ANR.                               ...... Respondents

Through: Mr. J.S.Bhasin, Adv. for R-1.

Ms. Pratima Gupta, standing counsel and Ms. Anshul Garg, Adv. for R-2.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This petition under Article 226 of the Constitution of India is

filed by the petitioner seeking the relief of quashing of the fresh

advertisement issued for appointment to the post of Executive Director

(Law) (in short ED (Law)) of the respondent no.2/Delhi Electricity

Regulatory Commission (DERC) and also for setting aside the impugned

order dated 11.11.2014 of respondent no.2 whereby respondent no.2 put a

hold on the appointment of the petitioner to the post of ED (Law) in the

respondent no.2. The subsequent order of respondent no.2 dated 26.11.2014

is also challenged by the petitioner as per which the offer to the petitioner

for appointment to the post of ED (Law) made of the respondent no.2 by

letter dated 30.9.2014 was withdrawn and cancelled.

2. The issue in the present case is whether petitioner has

completed seven years of deputation outside his parent cadre in the

Department of Posts of the Union of India, inasmuch as, after a period of

seven years on deputation of an employee outside his parent department,

there cannot be continuation of deputation or appointment in a post outside

the parent department without there being a cooling off period of 3 years. It

is conceded on behalf of the petitioner that the total period of deputation can

be seven years and whereafter there has to be a cooling off period of three

years before posting outside the parent employer by way of deputation.

3. Petitioner contends that petitioner has not completed the period

of seven years outside his parent department and therefore the impugned

orders are liable to be recalled and petitioner be appointed to the post of ED

(Law) of the respondent no.2.

4. Petitioner has given the following chart as Annexure P-12, and

which is argued for being taken alongwith para 17.07(i) of the Central

Staffing Scheme of the Government of India, and therefore it is argued that

the petitioner has not completed the period of seven years of deputation

outside his parent department of Indian Postal Service. As per para 17.07(i)

of the Central Staffing Scheme deputation period to the IAS Officers

Academy at Mussoorie is to be halved ie only half of the period of posting at

IAS Academy is to be taken towards counting of the total deputation period.

This chart filed by the petitioner as Annexure P-12 to the writ petition and

para 17.07(i) of the Central Staffing Scheme read as under:-

"Annexure P-12

Order No. Order issuing Place of Posting Whether to be Effective period authority counted as CSS

Department of IAS Academy Foreign 1.7.2005 to Posts (DoP) Mussoorie Deputtion 17.5.2007

OM DoPT IAS Academy Central Staffing 18.5.2007 to No.6/7/2007- Mussoorie Scheme 17.5.2011 EO (MM-1) Dated 8.4.2007

6/2/ASP/2005 IAS Academy NIFM Faridabad CAT 2460/2008 21.01.2008 to Dated Mussoorie order attains 16.09.2009 15.1.2008 finality (No)

2-25/2007- DoP IAS Academy Status denied 21.01.2008 to SPG Dated Mussoorie 1.06.2009 7.11.2008

OM No. DoPT Central Yes 22.09.2009 to 6/7/2007- Information 17.05.2014 EO(MM-1) Commission Dated 8.9.2009

No.15-7/2011- DoT TDSAT Yes but approval 08.07.2013 to Restg Dated of DoPT was 07.07.2016 19.07.2013 sought

No.24/1/2013 DoPT TDSAT Yes, Cadre 17.05.2014 to EO (MM-1) Clearance sought 07.07.2016 Dated 25.10.2013 and 13.02.2014

No.2-8/2013- DoP Tripura No 6.12.2013 SPG Dated onwards 06.12.2013

No.2-2/2014 DoP Muzaffarpur No 19.06.2013 SPG Dated onwards 19.06.2014

The period of deputation admitted is from 17.5.2007 to 21.01.2008 and then from 22.09.2009 to 16.12.2013 which roughly makes up 4 years and 11 months only.

Para 17.07 "17.07. An officer who has served in the following Institutions/Posts for atleast three years will be permitted to count half the period spent in that post towards his central deputation tenure.

(i) Postings at the Lal Bahadur Shashtri National Academy of Administration, Mussoorie.

.........................."

5. Before turning to the aforesaid chart, firstly it is required to be

noted that the petitioner is guilty of concealment of facts because petitioner

has not filed the application by which he applied for being appointed to the

post of ED (Law) of the respondent no.2/DERC. Filing of this application

was necessary because the record shows that this application for

appointment to ED (Law) was not through a proper channel i.e the

application was not filed by the petitioner through his parent

employer/department of the Department of Posts. In fact, counsel for the

respondents argued that if the application had been filed through a proper

channel i.e petitioner's parent employer, the application would not even

have been forwarded to respondent no.2/DERC because petitioner had

already completed the deputation period of seven years and therefore he was

required to undergo a cooling off period of three years before an

appointment to a post outside his parent department. Clearly therefore the

petitioner has deliberately not filed his application which was made to the

respondent no.2 for the post of ED (Law) because if filed this application

would have shown that it had not been filed through a proper channel being

his parent employer/Department of Posts.

6. Let us now examine the chart at page 82 of this writ petition

alongwith para 17.07(i) of the Central Staffing Scheme to determine as to

whether the petitioner has completed seven years outside his parent

department. The only argument which has been urged on behalf of the

petitioner is for taking benefit of Central Staffing Scheme of January 1996,

para 17.07(i) and that if the benefit of this scheme is given, it is argued that

the petitioner has not completed a period of seven years outside the

department. Let us examine this argument.

7. A reading of the chart Annexure P-12 shows that the petitioner

is less than fair in making out this chart inasmuch as, even a cursory

reference to this chart shows that there is overlapping of periods as given

under different periods of deputations, and not only there is overlapping of

periods, a deliberate confusion is sought to be created by setting out different

appointments at different posts with different employers for the same period

of time without giving a last column showing as to which is the period

which was served by the petitioner on deputation with which different

employers/departments other than the parent employer. The obvious reason

for filing a garbled chart is that the petitioner somehow or the other wants to

create a smoke screen for arguing that he has not completed a total period of

7 years outside his parent employer. To compound the confusion, petitioner

has not even filed the orders showing specific periods of deputations with

specific employers/departments other than his parent department of

Department of Posts.

8. From the papers of this case the periods of deputation of the

petitioner outside his parent is roughly as under:-

(i) Petitioner was deputed to the IAS Academy Mussoorie from 1.7.2005

to 17.5.2007 and thereafter till 21.1.2008, when on 21.1.2008 he was

deputed by his parent employer with the National Institute of Financial

Management at Faridabad. The period of posting at the IAS Academy

Mussoorie thus is from 1.7.2005 to 21.1.2008 ie a period of 2 years 6

months and 20 days. This period when halved in terms of para 17.07(i) of

the Central Staffing Scheme comes to a period of 1 year 3 months and 10

days.

(ii) Petitioner was thereafter deputed to the National Institute of Financial

Management, Faridabad from 21.1.2008 to 16.9.2009 which is a period of 1

year and 8 months.

(iii) Petitioner was thereafter posted in the Central Information

Commission from 22.9.2009 to 7.7.2013 and which is a period of 3 years 9

months and 15 days.

(iv) The fourth period is the period from 8.7.2013 to 17.5.2014 and in

which period the petitioner was deputed at TDSAT and which is a period of

10 months and 9 days.

Adding the aforesaid four periods, the total period of deputation

comes to about 7 years and 7 months i.e a period beyond a maximum period

of 7 years which is permissible as a deputationist at one go.

9. The matter with respect to whether the petitioner has been on

deputation outside his parent department for over 7 years can also be looked

into in another manner. As per his own chart Annexure P-12 petitioner is

shown as being deputed to the IAS Academy Mussoorie from 1.7.2005 to

17.5.2007 in terms of the first horizontal column. Therefore, from 18.5.2007

petitioner has completed a period of 7 years of deputation outside his parent

department and which period of 7 years from 18.5.2007 ends on 17.5.2014.

This has been so specifically stated by the Ministry of Personnel, Public

Grievances & Pensions, Department of Personnel & Training in terms of its

letters dated 25.10.2013 and 11.12.2013 which are reproduced below. In

this regard and relevant to this aspect which is to be noted is that the

petitioner has not filed any order to show that he continued on deputation in

terms of a valid order at IAS Academy, Mussoorie after 17.5.2007, and in

fact the record shows that the petitioner subsequently was deputed to

National Institute of Financial Management at Faridabad.

10. At this stage, it will be relevant to refer to a letter dated

25.10.2013 of Government of India, Ministry of Personnel, Public

Grievances & Pensions, Department of Personnel & Training stating that the

petitioner completes his seven years' tenure outside his parent department on

17.5.2014. This letter reads as under:-

"Approval of Deputation in TDSAT by DoPT

F.No.24/1/2013-EO(MM-II) Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training

New Dated, the 25th December, 2013 OFFICE MEMORANDUM Subject: Extension of tenure of Shri Akash Deep Chakravarti (IPOS:94), Registrar in Telecom Disputes Settlement & Appellate Tribunal (TDSAT)-reg.

The undersigned is directed to refer to Telecom Disputes Settlement and Appellate Tribunal (TDSAT)'s letter No.10/5/2013 dated 30.9.2013 on the above mentioned subject and to say that Shri Akash Deep Chakravarti was appointed in CIC for the balance period of the combined tenure of seven years which is up to 17.5.2014. He counts his central deputation with effect from 18.5.2007.

2. In terms of extant instructions, an officer can remain outside his cadre for a maximum period of seven years at a stretch. Shri Chakravarti will complete his tenure of seven years on 17.5.2014 and as such no further extension is admissible. Any extension beyond the maximum permissible limit is not covered under guidelines.

3. However, if TDSAT wants continuation of Shri Chakravarti in relaxation of the guidelines, a proposal in that regard may be submitted with justification and approval of the Minister-in-Charge for placing it before the competent authority. The proposal should be accompanied with the cadre clearance of the officer." (underlining added)

11. The aforesaid position has been reiterated by the same

department of the Government vide its letter dated 11.12.2013 and which

reads as under:-

"F.No.24/1/2013-EO(MM-II) Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training (Office of Establishment Officer) North, Block, New Delhi-110001 Dated the 11th December, 2013 Sub: Registration of Shri Akash Deep Chakravarty, (IPoS: 1994) from Central Deputation to Department of Posts-reg.

Vide O.M. of even number dated 02.12.2013, this Department had informed TDSAT that the maximum permissible tenure of 7 years of Shri Akash Deep Chakravarty would come to an end on 17.05.2014 and any further extension of tenure beyond that would require the cadre clearance of the Cadre Controlling Authority. The TDSAT had also been requested that if they were interested in any further extension

beyond 17.05.2014, they have to obtain the cadre clearance and then seek the approval of the ACC for any relaxation to the guidelines. In para 3 of that letter, however, it was mentioned that either the TDSAT should obtain cadre clearance or immediately revert Shri Chakravarty to join his cadre.

2. It is hereby clarified that the previously approved tenure of Shri Chakravarty is upto 17.05.2014. He can, therefore, continue up to that date. For any extension beyond that date, either cadre clearance/ACC approval should be obtained or he should be reverted back to his cadre after that date."

(underling added)

12. The matter yet can be looked into even from a third angle to

show that the petitioner has completed a period of 7 years outside his parent

department inasmuch as, petitioner has admittedly remained posted outside

his parent department from 1.7.2005 to 17.5.2014. Out of this period, the

petitioner was at IAS Academy, Mussoorie from 1.7.2005 to 21.1.2008 and

which is a period of 2 years 6 months and 20 days. When this period of 2

years 6 months and 20 days is halved the same becomes 1 year 3 months and

10 days. The total period from 1.7.2005 to 17.5.2014 comes to a total period

of 8 years 10 months and 16 days. From this period of 8 years 10 months

and 16 days if we reduce half a period from 1.7.2005 to 21.1.2008, being a

period of 1 year 3 months and 10 days, the period becomes about 7 years

and 7 months ie beyond the maximum period of 7 years permissible for

deputation.

13. Therefore, looking at it from any angle, whether of petitioner

deliberately filing a confusing chart Annexure P-12; petitioner not giving

separate periods of deputation with separate employers/departments so as to

find out the total period of posting outside his parent department; petitioner

not filing letters/permissions showing authorization of his parent

employer/Department of Posts permitting deputation with different

employers/departments, it becomes clear that the petitioner has tried to

confuse the issue and the facts. It is however clear that the petitioner has

spent till 17.5.2014 a period of 7 years outside his parent department and

therefore he has to under go a cooling off period of three years before he is

appointed on deputation again outside his parent employer/department of

Posts. It is also reiterated herein that it is for this reason of lacks of

bonafides on the part of the petitioner that petitioner did not route his

application for appointment on deputation as ED (Law) to respondent

no.2/DERC through his parent employer being the Department of Posts.

14. Petitioner at one stage tried to seek some benefit of an order

passed by the Central Administrative Tribunal (CAT) on 1.6.2009 in a case

which was filed by him claiming that training period with National Institute

of Financial Management at Faridabad is not a mandatory service condition,

however, I fail to understand that how the observations relied upon in the

said order of the CAT dated 1.6.2009 can help the petitioner in any manner

but since two paras of the order of the CAT dated 1.6.2009 being paras 21

and 22 are relied upon by the petitioner, the same read as under:-

"21. We are in respectful agreement with this principle enunciated by the Honourable High Court of Karnataka. The Applicant may apply and be nominated for a training course to improve his skills. However, not attending such training course would not result in any adverse action against him or attending the training course would not result in any benefit to him in normal course of advancement in service. It would not be a condition of service if it is only giving him merely a hypothetical chance for applying to some post where the course or study, which is he is pursuing is prescribed as educational qualification. It cannot be held to be a condition of service. We would like to reiterate that whether training is a condition of service or is not a condition of service would depend on the facts and circumstances of each case. In the present case, it is clear that is not a condition of service.

22. Since training is not a condition of service in the instant case, as we have seen by the above analysis, this Tribunal has no jurisdiction to interfere in this matter. In these circumstances, we do not think it necessary to dilate upon the other issue as mentioned in this order at the outset. The OA is dismissed as not maintainable. There will be no order as to costs."

15. As already stated above that one fails to understand as to how

the aforesaid paras 21 and 22 of the judgment of the CAT dated 1.6.2009

can in any manner help the petitioner because the observations relied upon

do not in any manner pertain to determining of any period of deputation of

the petitioner outside his parent department of the Department of Posts and

these observations are only that a training course is not a condition of

service.

16. In view of the above, this petition is wholly misconceived and

is thus dismissed with costs. Counsel for respondents will file their

certificates of fees in this Court within a period of two weeks from today.

Costs can be recovered by the respondents in accordance with law.

JANUARY 09, 2015                              VALMIKI J. MEHTA, J.
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