Delhi High Court
National Human Rights Commission ... vs Anil Kumar Joshi And Another on 30 January, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) No. 3668/2014
Reserved on: 16th November, 2016
% Date of Decision: 30th January, 2017
NATIONAL HUMAN RIGHTS COMMISSION AND OTHERS
....Petitioners
Through Mr. R.V. Sinha & Mr. A.S. Singh, Advocates.
Versus
ANIL KUMAR JOSHI AND ANOTHER .....Respondents
Through Mr. Feroze Ahmad and Mr. Ajmal Hussaini,
Advocates.
WRIT PETITION (CIVIL) No. 4831/2014
S.S. GOSAIN ....Petitioner
Through Mr. S.K. Gupta and Mr. Ramesh K. Shukla,
Advocates.
Versus
UNION OF INDIA AND OTHERS .....Respondents
Through Mr. Vivek Goyal, Central Government
Standing Counsel for UOI.
Mr. R.V. Sinha & Mr. A.S. Singh, Advocates for NHRC.
Mr. Feroze Ahmad and Mr. Ajmal Hussaini, Advocates
for respondent No. 4.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
W.P. (C) Nos. 3668/2014 & 4831/2014 Page 1 of 14
SANJIV KHANNA, J.
The National Human Rights Commission (Commission, for short), its
functionaries and S.S. Gosain have filed the present Writ Petitions
impugning the order dated 13th December, 2013 passed by the Principal
Bench of the Central Administrative Tribunal (Tribunal, for short) whereby
OA No. 205/2012, filed by Anil Kumar Joshi, challenging the absorption
and appointment of S.S. Gosain as an Accountant has been allowed.
2. To appreciate the controversy and the lis, we would first refer to the
relevant facts.
3. The National Human Rights Commission has been constituted under
the Human Rights Act, 1993. Anil Kumar Joshi was appointed as a Junior
Accountant with the Commission on 4th April, 1996. The next post in the
hierarchy is that of Accountant. S.S. Gosain had joined the Commission as
an Accountant on 21st August, 2005 on deputation basis. Prior to that, S.S.
Gosain was holding an analogous post of Sub-Inspector (Ministerial) in the
Border Security Force (BSF) since 21st May, 1999. In other words, S.S.
Gosain had six years regular service in the identical grade before he had
joined the Commission on deputation. The selection and deputation of S.S.
Gosain was against one of the two sanctioned posts of Accountant in the
Commission.
4. The Selection Committee of the Commission in its meeting held on
13th October, 2008 had considered the case of S.S. Gosain and 43 other
deputationists for permanent absorption. The Selection Committee,
reflecting on absorption of S.S. Gosain, had observed that out of two
sanctioned posts of Accountants, one post was earlier vacant due to non-
availability of eligible candidates. The Committee opined that S.S. Gosain
who had nine years of regular service in the requisite grade, and was
working as a deputationist, should be absorbed to the post of Accountant.
S.S. Gosain was due for consideration for promotion as Assistant Accounts
Officer and if found fit, he would be considered for promotion as per
seniority and in accordance with the Recruitment Rules. Upon absorption of
S.S. Gosain as Assistant Accounts Officer, three Junior Accountants
forming the feeder cadre who had completed more than eight years of
regular service would be considered for promotion to the post of
Accountant. The absorption, in other words, would not cause prejudice to
the Junior Accountants.
5. The aforesaid recommendations were approved by the Chairperson of
the Commission on 5th May, 2009 and it was decided that S.S. Gosain
should be absorbed as an Accountant. Pursuant to the recommendation and
approval, several deputationists were absorbed over a period of time after
completing necessary formalities.
6. S.S. Gosain‟s absorption was initially stalled and delayed, for want of
„No Objection Certificate‟ from the BSF for the reason that he had not
completed 20 years of service with them.
7. While the process of absorption was pending, S.S. Gosain‟s
deputation period was extended with the mutual consent of the Commission
and the BSF up to 20th February, 2010. S.S. Gosain completed his 20 year
tenure in the BSF on 15th January, 2010. The Commission wrote to the the
BSF, to communicate their concurrence to absorb S.S. Gosain. By the letter
dated 16th April, 2010 the Director General of the BSF conveyed the
concurrence of the Competent Authority for grant of No Objection
Certificate to permanently absorb S.S. Gosain in the Commission.
8. We have perused the original file produced by the Commission which
would indicate that the Junior Accountants had throughout objected to
absorption of S.S. Gosain. The Junior Accountants, including Anil Kumar
Joshi, obviously felt that the absorption would hinder their promotional
chances. Anil Kumar Joshi and one Murari Lal had initiated legal
proceedings by filing OA No.1134/2011 against the absorption of S.S.
Gosain and an interim order that absorption would be subject to the outcome
of the said O.A. was passed. During the pendency of this O.A. Murari Lal,
who happened to be senior to Anil Kumar Joshi, was promoted against the
second vacancy to the post of Accountant. On the said promotion, Anil
Kumar Joshi withdrew OA No.1134/2011 with permission to file a fresh
application, and consequently O.A. No.205/2012 was filed in which the
impugned order dated 13th December, 2013 has been passed.
9. The issue of absorption of S.S. Gosain, the office file reveals, was
examined at different levels, with divergent opinions being expressed in
favour and against his absorption. These opinions were reflective of the
opposite stands and claims of the Junior Accountants and S.S. Gosain. The
result was an undue delay before a final decision was taken.
10. S.S. Gosain‟s absorption to the post of Accountant was approved by
the Chairperson on 1st March, 2011, who in his own handwriting has
recorded that S.S. Gosain had been found suitable by the Selection
Committee and his parent department had given the requisite No Objection
Certificate. The detailed note of the Secretary General, appended above the
said approval is elaborate and lucid. The note takes notice of the divergent
stands and records that the Selection Committee had earlier recommended
absorption of several deputationists including S.S. Gosain in their report
dated 13th October, 2008, which was approved by the Chairman of the
Commission on 5th May, 2009. S.S. Gosain‟s absorption could not be
completed earlier for want of No Objection Certificate from his parent
department, i.e. the BSF, which stands furnished vide letter dated 16th April,
2010. Absorption of deputationists was not considered to be a onetime
exercise open for a limited period, for some of the deputationists were
absorbed in 2010. There were two sanctioned posts of Accountants in the
Commission, but the Recruitment Rules for the said posts had not been
notified. The Selection Committee had noticed that S.S. Gosain had been
deputed from an analogous grade and on absorption would be immediately
eligible for promotion to the next higher post of Assistant Account Officer.
Therefore, he would not block promotion prospects of the Junior
Accountants. Referring to the proposed Recruitment Rules, pending
approval before the Ministry of Home Affairs, it was observed that these
would be of no relevance to deny S.S. Gosain‟s absorption as the
recommendations of the Selection Committee had been approved earlier by
the Chairperson. It would be arbitrary not to absorb S.S. Gosain, especially
when the Commission had written a reminder to the parent department, who
had then issued the No Objection Certificate.
11. We have referred to the aforesaid recordings/ notings in the original
file to elucidate and show that the decision to absorb S.S. Gosain was a well
considered and thoughtful decision. It was not taken in haste or
perfunctorily, but after deliberating on the rival stands and gives due
credence to the interests of the Junior Accountants, including Anil Kumar
Joshi. The decision to absorb S.S. Gosain was not capricious or arbitrary,
but an attentive and contemplative decision, evaluating different facets and
relative merits and demerits to decide the controversy. By no stretch can the
decision be categorized as perverse or erroneous in the sense that the
decision making process was falliable and faulty.
12. The Commission vide order dated 18th May, 2011 informed all
concerned that, consequent to approval of the Chairperson and acceptance
of the technical resignation by the Competent Authority of the parent cadre
(BSF), S.S. Gosain had been absorbed in the grade of Accountant w.e.f. 1st
March, 2011. As indicated above, this was subject to the final orders passed
by the Tribunal in OA No1134/2011, which was then pending.
13. Two more facts may be noticed, as these are relevant. By order dated
18th September, 2012, S.S. Gosain was given charge of the post of Assistant
Accounts Officer on ad hoc basis w.e.f. 13th September, 2012. By order
dated 28th September, 2012 Anil Kumar Joshi was promoted as accountant
on ad hoc basis.
14. We would now specifically examine the reasoning given by the
Tribunal to set aside the absorption and appointment of S.S.Gosain as an
Accountant in the Commission. In Paragraph 11 of the impugned order, the
Tribunal has referred to the Recruitment Rules for the post of Accountant,
which were effective and applicable after 28th March, 2011. Thus these
Rules were, therefore, subsequent in time and were not applicable when S.S.
Gosain was recommended for absorption by the Selection Committee on
13th October, 2008 and the approval was granted by the Chairperson of the
Commission on 5th May, 2009. These Rules were also not applicable when
the BSF had furnished a No Objection Certificate vide letter dated 16th
April, 2010 and when the Chairperson of the Commission granted the
second approval and issued final directions for absorption of S.S. Gosain on
1st March, 2011. The absorption was delayed between April,2010 and 1 st
March, 2011 on account of the objections and obvious precipitous pressure
put by the Junior Accountants like Anil Kumar Joshi. This had delayed the
issuance of the formal appointment order. As noticed above, the Secretary
General of the Commission had considered the relevant factors in his note
dated 28th February, 2011 and observed that S.S. Gosain should be
absorbed. The said note was placed before the Chairperson, who in his own
handwriting had approved S.S. Gosain‟s absorption as an Accountant for he
was found to be suitable by the Selection Committee and his parent
department had issued the requisite No Objection Certificate.
15. The approval note of the Chairperson of the Commission is dated 1st
March, 2011, and is before the Recruitment Rules for the post of
Accountant were approved on 28th March, 2011.
16. In the absence of approved and notified Recruitment Rules, the
Commission, as has been observed in paragraph 11 of the impugned order
of the Tribunal dated 13.12.2013, was following the Model Recruitment
Rules, which were as under:-
"
Method of recruitment whether by In case of recruitment by
direct recruitment or by promotion promotion/deputation/transfer,
or by deputation/transfer and grades from which
percentage of the vacancies to be promotion/deputation/absorption to
filled by various methods be made.
Any one or both of the following Promotion
methods of recruitment according to
requirement in each case:- ......(designation of the feeder post)
with ...... Years regular service in
the grade.
(To be omitted if promotion is one
of the methods of recruitment).
Transfer on deputation/transfer
(i)Promotion failing which by
transfer on deputation. A.(a) (i) Assistants of CSS holding
the post on regular basis; or
(ii) UDCs of CSCS with 10 years
(ii) Transfer on deputation or regular service in the grade; and
transfer on deputation/transfer.
(b) Who have undergone training in
cash & Accounts work in the ISTM
or equivalent and possess three
years experience of cash, accounts
and budget work; failing which,
B. Officers under the Central
Govt:
(a)(i) holding analogous posts on
regular basis; or
(ii) with five years regular service in
posts in the pay scale of Rs.1400-
2300/2600 or equivalent; or
(iii) with ten years regular service in
posts in the pay scale of Rs.1200-
2040 or equivalent; and
(b) who have undergone training in
cash and accounts work in the ISTM
or equivalent and possess three
years experience of cash, accounts
and budget work,
OR
A pass in the SAS or equivalent
examination conducted by any of
the organized Accounts Department
of the Central Government.
The departmental officers in the
feeder category who are in the direct
line of promotion shall not be
eligible for consideration for
appointment on deputation.
Similarly, deputationists shall not be
eligible for appointment by
promotion.
(Period of deputation including
period of deputation in another ex-
cadre post held immediately
preceding this appointment in the
same or some other organization/
department of the Central
Government shall ordinarily not to
exceed three years. The maximum
age limit for appointment by transfer
on deputation/transfer shall be not
exceeding 56 years as on the closing
date of receipt of applications.).
"
The Model Recruitment Rules had postulated recruitment by
promotion or transfer on deputation/transfer. Thus, an appointment by
transfer on deputation, or transfer, was one of the suggested modes for
appointment as per the Model Rules. Appointment of S.S. Gosain by
transfer or transfer by deputation was not violating the Model Rules and was
one of the suggested or recommended modes of recruitment. S.S. Gosain
certainly met and satisfied the eligibility conditions mentioned in the Model
Rules for he was in an analogous post on regular basis in the BSF.
Pertinently, the Selection Committee in its meeting held in 2008 had noticed
that the post of Assistant Accounts Officer, the next post in the hierarchy,
was vacant and upon absorption of S.S. Gosain he would be eligible and
possibly promoted to the said post. S.S. Gosain was appointed as an
Accountant on deputation in the Commission on 21 st August, 2005. At that
time, none of the Junior Accountants were eligible for being promoted to the
post of Accountant. S.S. Gosain had been working at an analogous post in
the BSF since 1999 and at the time of his appointment on deputation had six
years regular service in the same grade and accordingly was senior and had
more experience than Anil Kumar Joshi.
17. Another reason given by the Tribunal to quash S.S. Gosain‟s
absorption was violation of the directives in the OM dated 29th November,
2006 issued by DOP&T relating to deputationists. The said OM has been
quoted in Paragraph 18 of the impugned order dated 13.12.2013 and reads
as under:-
"(i) The terms and conditions of deputation shall
clearly lay down not only period of deputation as per the
Recruitment Rules for the post or as approved by the
competent authority but also the date of relieving of the
deputationist. No further orders for relieving the officer
will be necessary.
(ii) The deputationists officer including those who
are presently on deputation would be deemed to have
been relieved on the date of expiry of the deputation
period unless the competent authority has with requisite
approvals, extended the period of deputation, in writing,
prior to the date of its expiry. It will be the
responsibility of the immediate superior officer to
ensure that the deputationist does not overstay. In cases
where officers are on deputation on the date of issue of
these orders and the normal tenures are getting over in a
period of six months, the concerned
officers/organisations may be allowed an extension of
not more than one month, on a case to case basis with
the approval of the DOPT.
(iii) That in the event of the officer overstaying
for any reason whatsoever, he is liable to disciplinary
action and other adverse civil/service consequences
which would include that the period of unauthorised
overstay shall not count for service for the purpose of
pension and that any increment due during the period of
unauthorised overstay shall be deferred, with
cumulative effect, till the date on which the officer
rejoins his parent cadre."
18. Paragraph 19 of the impugned order, referring to this OM, observes
that deputationists should be relieved on expiry of the period of deputation
unless the Competent Authority has prior approval for extension of the
deputation period in writing. It was accordingly held that overstay of S.S.
Gosain on deputation beyond five years was impermissible and clearly in
violation of the OM. The OM mandates and fixes responsibility on the
superior officers to ensure that deputationists do not overstay and in the
event that an officer overstays, disciplinary action or adverse civil or service
consequences should follow.
19. The Tribunal in paragraph 20 of the impugned order is factually
wrong when it records that the five years, i.e. maximum permissible period,
of deputation of S.S. Gosain had ended on 12th April, 2010. S.S. Gosain
was appointed as an Accountant on deputation with the Commission on 21st
August, 2005. The five year term would have, therefore, come to an end on
20th August, 2010. The BSF had prior thereto vide their communication
dated 16th April, 2010, furnished their no objection to absorption of S.S.
Gosain as an Accountant in the Commission. As noticed, the BSF and the
Commission had earlier agreed to extend the deputation period from 21 st
August, 2009 to 20th February, 2010 vide the communication dated 1 st
January, 2010. Anil Kumar Joshi is right in his submission that there is no
formal order extending the deputation period after 20 th February, 2010, but
that facet/position cannot be read in isolation and has to be read along with
the No Objection Certificate issued by the BSF dated 16th April, 2010 as
well as the stand and conduct of the Commission. Even if we were to
accept that there was no formal order of extension and therefore technical
lapse on the part of the BSF and the Commission, we do not think S.S.
Gosain should suffer and his appointment by way of absorption should be
set aside. The said lapse would be an irregularity and not an illegality. We
cannot be oblivious and have to make a concession in favour of S.S. Gosain
for the reason that his absorption was delayed and interrupted in view of
objections and demurrals by Anil Kumar Joshi and other Junior
Accountants. This factual position, was the reason for the unfortunate
delay. But for the hindrance and objections raised by Anil Kumar Joshi and
other Junior Accountants S.S. Gosain‟s absorption on completion of the
formalities would have been much earlier and before the culmination of his
five year term as a deputationist, which came to an end on 20 th August,
2010. This is hardly a case where the aforesaid Office Memorandum would
come to the aid and assistance of Anil Kumar Joshi.
20. The impugned order passed by the Tribunal refers to and quotes
several internal file notings made by different officers. Internal file notings
are views expressed by different officers. These notings were never
communicated to S.S. Gosain or Anil Kumar Joshi. These internal opinions
or observations of different officers cannot furnish any cause of action
unless made in terms of Article 166 and communicated to the Officer
concerned. In the present case, the internal file notings would not constitute
a legal ground to set aside the absorption of S.S. Gosain. Internal file
notings are meant to record the views of the Officers, but what would
eventually be implemented or accepted would be the final decision which is
communicated to the affected parties. The final communication furnishes
cause of action. Divergent views can and should be expressed for it shows
due consideration of all points of view. Courts and Tribunals do not sit as
an appellate forum or an authority to examine the wisdom of the decision.
Decisions taken can be challenged on the ground that they are perverse,
which no reasonable man should have reached, are arbitrary, or are bad in
law for they suffer from an error in the decision making process. It is in this
context that we have referred to the reasons given by the Tribunal to set
aside the absorption of S.S. Gosain and recorded a finding that the said
reasons are unsustainable. Absorption of S.S. Gosain did not merit judicial
interference.
21. In view of the aforesaid discussion, we allow the present writ
petitions filed by the Commission and S.S. Gosain and set aside the
impugned order of the Tribunal dated 13th December, 2013. OA No.
205/2012 filed by Anil Kumar Joshi would be treated as dismissed. The
Writ Petitions are accordingly allowed and the appointment of S.S. Gosain
as an Accountant with the Commission is upheld. In the facts of the present
case, there would be no order as to costs.
Sd/-
(SANJIV KHANNA)
JUDGE
Sd/-
(CHANDER SHEKHAR)
JUDGE
JANUARY 30, 2017
VKR/ssn
