Gauhati High Court
Page No.# 1/23 vs Banshidhar Mohapatra S/O Late ... on 1 April, 2025
Page No.# 1/23
GAHC010136262023
2025:GAU-AS:3737-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3589/2023
UNION OF INDIA AND 3 ORS
REP. BY SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF FINANCE,
DEPARTMENT OF FINANCIAL SERVICES (BANKING DIVISION), JIVAN
DEEP BUILDING, PARLIAMENT STREET,
NEW DELHI-110001.
2: THE CHAIRPERSON
DEBTS RECOVERY APPELLATE TRIBUNAL (DRAT)
9 OLD POST STREET KOLKATA GPO
7TH FLOOR KOLKATA-700001.
3: THE REGISTRAR
DEBTS RECOVERY APPELLATE TRIBUNAL (DRAT)
9 OLD POST OFFICE STREET
KOLKOTA GPO 7TH FLOOR
KOLKATA-700001.
4: THE PRESIDING OFFICER
DEBTS RECOVERY TRIBUNAL
GUWAHATI SUWARNA BHAVAN
H/NO. 12 NEW TOWN
PATH ULUBARI
GUWAHATI-781007
VERSUS
BANSHIDHAR MOHAPATRA S/O LATE TRILOCHAN MOHAPATRA,
SECTION OFFICER ON DEPUTATION, DEBTS RECOVERY TRIBUNAL,
GUWAHATI, SUWARNA BHAVAN, H/NO. 12, NEW TOWN PATH, ULUBARI,
GUWAHATI-781007
Advocate for the Petitioner : MR. B CHAKRAVARTY,
Advocate for the Respondent : MR. S C KEYAL, FOR CAVEATOR
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BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
Date of hearing : 27.03.2025
Date of Judgment & Order: 01.04.2025
JUDGMENT & ORDER (CAV)
(N. Unni Krishnan Nair, J.)
Heard Mr. Biplav Chakravarty, learned CGC, appearing on behalf of
the appellants. Also heard Mr. S. C. Keyal, learned counsel, along with Ms.
N. Kakoti, learned counsel, appearing on behalf of the sole respondent.
2. The present writ petition has been instituted by the petitioners,
herein, assailing the order, dated 24.04.2023, passed by the learned
Central Administrative Tribunal(CAT), Guwahati Bench, in Original
Application being O.A. No. 040/00375/2019, along with the Misc.
Application No. 040/00055/2022, whereby, the Original Application
instituted by the respondent, herein, came to be allowed.
3. The Original Application, referred to above, was instituted by the
respondent, herein, before learned Central Administrative Tribunal(CAT),
Guwahati Bench, inter alia, praying for the following reliefs:
"8.1 That the Hon'ble Tribunal be pleased to declare that the selection and
appointment of the applicant to the post of Section Officer is liable to be treated as
Promotion instead of Deputation in modification of the appointment order dated
21.02.2017 (Annexure A9) In the light of the statutory provision laid down in the
relevant recruitment rules 2001 of DRT Guwahati.
8.2 That the Hon'ble Tribunal be pleased to direct the respondents to treat the
appointment of the applicant to the post of section officer w.e.f 20.02.2017 in
modification of the appointment letter 09.02.2017 and appointment order No.DRTG/P-
75/2017/126 dated 21.02.2017 In the light of the relevant Statutory Recruitment
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Rule, 2001 with Immediate effect without any further delay, With further direction to
grant all consequential benefit including seniority in the cadre of Section Officer with
Immediate effect.
8.3 Costs of the application.
8.4 Any other relief (s) to which the applicants are entitled to as the Hon'ble Tribunal
may deem fit and proper."
4. As projected in the aforesaid Original Application, the respondent,
herein, for the purpose of grant of the reliefs as quoted above, has
submitted that he being a departmental candidate, by virtue of being
appointed on substantive basis as an Assistant in the Debts Recovery
Tribunal(DRT), Cuttack, on his appointment against the post of Section
Officer in Debts Recovery Tribunal(DRT), Guwahati, on deputation basis,
such appointment was required to be so made in his case in terms of the
provisions incorporated in the advertisement published by the Debts
Recovery Tribunal (DRT), Guwahati, in the Employment News, dated
30.05.2015-05.06.2015, by way of promotion with all consequential
benefits.
5. The said position was disputed by the petitioners, herein, before the
learned Central Administrative Tribunal(CAT), Guwahati Bench, by
contending that the appointment of the respondent, herein, against the
post of Section Officer in Debts Recovery Tribunal(DRT), Guwahati, was on
deputation basis and he being a regular employee of Debts Recovery
Tribunal(DRT), Cuttack, he could not be deemed to be a departmental
candidate, insofar as, his appointment against the post of Section Officer in
Debts Recovery Tribunal(DRT), Guwahati, is concerned, in-as-much as, the
Debts Recovery Tribunal(DRT), Cuttack, and Debts Recovery Tribunal(DRT),
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Guwahati, were separate establishments in terms of the provisions of the
Recruitment Rules holding the field at the relevant point of time.
6. The learned Central Administrative Tribunal(CAT), Guwahati Bench,
upon consideration of the issue arising before it and after hearing the
learned counsels appearing for the parties, was pleased to dispose of the
Original Application being O.A. No. 040/00375/2019 along with the Misc.
Application No. 040/00055/2022, vide order, dated 24.04.2023, by
directing the petitioners, herein, to treat the selection and appointment of
the respondent, herein, against the post of Section Officer in Debts
Recovery Tribunal(DRT), Guwahati, to be a promotion instead of deputation
and to extend to him all consequential benefits.
7. The operative part of the order, dated 24.04.2023, passed by the
learned Central Administrative Tribunal(CAT), Guwahati Bench, in Original
Application being O.A. No. 040/ 00375/2019 and Misc. Application No.
040/00055/2022; being relevant, is extracted hereinbelow:
"15. From the perusal of the above Rules, vis-a-vis the recommendation of the
Presiding Officer, who, at that relevant point of time, was the Appointing Authority,
had made it clear that the applicant was appointed on deputation basis since one
writ petition (supra) was pending at the time of his appointment and for long time, the
aforesaid post of Section Officer was lying vacant due to non-availability of
appropriate person. However, after promulgation of 2018 Rules, all the DRTs were put
under single Rule to avoid any confusion wherein it has been specifically provided
that the departmental category who are in the direct line of promotion shall not be
eligibility for consideration of appointment on deputation vis-a-vis a deputationists
shall not be considered as eligible for consideration of promotion 'by promotion'.
16. It is observed that the applicant was appointed in such a time when the
Recruitment Rule was under process and changed after considering the factual
difficulties to promote/appoint on deputation within the different DRTS. However, if
the contention of the respondents has to be accepted that the applicant was
appointed under Rule 2001 of DRT Guwahati, in that case, the Presiding Officer is the
Authority, who has to decide whether applicant would be treated as promotion or as
deputationist and in instant case, said Presiding Officer, after withdrawal of the writ
petition by one incumbent, namely, Sri Hali Ram Das, was of the opinion that the
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applicant to be treated as 'Promoted'. Even the subsequent Recruitment Rules also has
made it clear that the employees of all the DRTs under the same roof/department may
be placed in different places but would be treated as 'Promotee'. In the case of K.
Mukherjee (supra) also, the Finance Ministry had applied the same analogy and had
treated said Sri K. Mukherejee as 'Departmental Promottee' though he had come from
another DRT and for a different post.
17. It is further observed that if the applicant is guided by Rules 2001 of DRT,
Guwahati, in that case, the Presiding Officer is the authority to decide and the
Chairperson of the DRTs, who become Appointing Authority after promulgation of
Rules 2018, has no authority over this issue, which has come into existence after
appointment of the applicant. Admittedly, applicant was working as Assistant in DRT,
Cuttack but applied for DRT, Guwahati and both the DRTs are under The Finance
Department and Group 'B' Officers of those DRTs. Therefore, working in different
places cannot make him out of the department like any other department of the
Central Government or State Government. Therefore, in our considered view, selection
and appointment of the applicant to the post of Section Officer would be treated as
'Promotion' instead of 'Deputation' with all consequential benefits. However, as the
applicant has already availed deputation allowances, he is, therefore, liable to refund
back the said amounts or it can be adjusted from his consequential benefits.
18. In view of the above, respondents are directed to take appropriate steps in this
regard within a period of 08 weeks from the date of receipt of a copy of this order."
8. Assailing the said order, dated 24.04.2023, passed by the learned
Central Administrative Tribunal(CAT), Guwahati Bench, in Original
Application being O.A. No. 040/00375/2019 and Misc. Application No.
040/00055/2022; Mr. Chakravarty, learned CGC, has submitted that the
advertisement published by the Debts Recovery Tribunal(DRT), Guwahati,
in the Employment News, dated 30.05.2015-05.06.2015, for recruitment to
the post of Section Officer in Debts Recovery Tribunal(DRT), Guwahati, was
so issued with a clear stipulation that that the same would be made on the
basis of deputation. The learned CGC has further submitted that in the
advertisement published in the Employment News, dated 30.05.2015-
05.06.2015, a Note was appended to the effect that a Departmental
candidate having requisite qualification, shall also be considered along with
outsiders and in the event, the departmental candidate is selected against
the post of Section Officer in Debts Recovery Tribunal(DRT), Guwahati, the
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post would be treated to have been filled up by way of promotion.
9. Mr. Chakravarty, learned CGC, has submitted that the respondent,
herein, at the relevant point of time, was a regular incumbent in the post of
Assistant in Debts Recovery Tribunal(DRT), Cuttack, and he had applied for
recruitment against the post of Section Officer in Debts Recovery
Tribunal(DRT), Guwahati, on deputation basis. The learned CGC has further
submitted that the respondent, herein, on being selected, was appointed
against the post of Section Officer in Debts Recovery Tribunal(DRT),
Guwahati, vide order, dated 21.02.2017, for a period of 3 years on
deputation basis which was accepted by the respondent, herein. The
learned CGC has further submitted that upon appointment of the
respondent, herein, against the post of Section Officer in Debts Recovery
Tribunal(DRT), Guwahati, on deputation basis; he had opted to draw his
deputation allowances along with the scale of pay of his parent Department
and in the option, so submitted by the respondent, herein, on 15.03.2017;
his parent Department was highlighted to be Debts Recovery
Tribunal(DRT), Cuttack.
10. Mr. Chakravatry, learned CGC, has submitted that at the relevant
point of time; in view of the Recruitment Rules holding the field, the
establishment of Debts Recovery Tribunal(DRT), Cuttack, and the Debts
Recovery Tribunal (DRT), Guwahati, were treated to be separate and
distinct establishments. The learned CGC has, accordingly, submitted that
in the recruitment held for the post of Section Officer in Debts Recovery
Tribunal(DRT), Guwahati, the respondent, herein, had not participated as a
Departmental candidate. The learned CGC has further submitted that at the
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relevant point of time, only incumbents working in the establishment of
Debts Recovery Tribunal(DRT), Guwahati, were treated as Departmental
candidates, in respect of recruitment being effected against the posts
figuring in Debts Recovery Tribunal(DRT), Guwahati. The learned CGC has
also submitted that a perusal of the option so submitted by the respondent,
herein, on 15.03.2017, with regard to the manner in which his pay and
allowances is to be regulated on his appointment as Section Officer, on
deputation basis, in Debts Recovery Tribunal(DRT), Guwahati, would go to
reveal that the respondent also had the knowledge that he was so recruited
against the post of Section Officer in Debts Recovery Tribunal(DRT),
Guwahati, on deputation basis only.
11. Mr. Chakravarty, learned CGC, has submitted that the earlier
Recruitment Rules of 2001, came to be superseded in the year 2018, by
the "Debts Recovery Appellate Tribunal, Kolkata and Debts Recovery
Tribunals at Hyderabad, Guwahati, Kolkata, Visakhapatnam, Siliguri and
Cuttack, Recruitment Rules, 2018". The learned CGC has submitted that in
terms of the said Recruitment Rules of 2018, various grades figuring in
Debt Recovery Tribunals under the jurisdiction of the Debts Recovery
Appellate Tribunal(DRAT), Kolkata, were now treated as a common cadre
and accordingly, the provisions of Rule 8 of the said Recruitment Rules of
2018, mandated preparation of a common seniority list for each of the
grades figuring in the Debts Recovery Appellate Tribunal(DRAT), Kolkata,
and the various Debts Recovery Tribunals under its jurisdiction.
12. Mr. Chakravarty, learned CGC, has submitted that in terms of the
provisions of Rule 8 of the Debts Recovery Appellate Tribunal, Kolkata and
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Debts Recovery Tribunals at Hyderabad, Guwahati, Kolkata,
Visakhapatnam, Siliguri and Cuttack Recruitment Rules, 2018; a common
seniority list in the grade of Assistant working in Debts Recovery Appellate
Tribunal(DRAT), Kolkata, and the Debts Recovery Tribunals under its
jurisdiction, came to be prepared on 01.01.2019, and therein, the name of
the respondent, herein, was included at Serial No. 5. The learned CGC, has
submitted that inclusion of the name of the respondent, herein, in the
common seniority list of Assistant, would go to reveal that the substantive
appointment of the respondent continued to be against the post of
Assistant and he was only continuing against the post of Section Officer in
Debts Recovery Tribunal(DRT), Guwahati, on deputation basis.
13. Mr. Chakravarty, learned CGC, has further submitted that after the
Debts Recovery Appellate Tribunal, Kolkata and Debts Recovery Tribunals at
Hyderabad, Guwahati, Kolkata, Visakhapatnam, Siliguri and Cuttack
Recruitment Rules, 2018, had come into force; the respondent, herein, had
approached the Presiding Officer, Debts Recovery Tribunal(DRT), Guwahati,
by way of submission of a representation praying for treating his
appointment on deputation basis against the post of Section Officer in
Debts Recovery Tribunal(DRT), Guwahati, to be so made on promotional
basis along with all consequential benefits. The representation as submitted
by the respondent, herein, came to be forwarded by the Presiding Officer,
Debts Recovery Tribunal(DRT), Guwahati, to the Chairperson, Debts
Recovery Appellate Tribunal(DRAT), Kolkata, for consideration. The learned
CGC has submitted that the prayer made by the respondent, herein, came
to be placed before the Standing Committee of the Debts Recovery
Appellate Tribunal(DRAT), Kolkata, and the said Committee in its meeting
held on 09.07.2019, had considered the said prayer of the respondent,
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herein. On consideration of the prayer of the respondent, the standing
committee by reckoning the provisions of the Recruitment Rules holding the
field at the time of appointment of the respondent, herein, against the post
of Section Officer in Debts Recovery Tribunal (DRT), Guwahati, and by
holding that he could not be considered as a Departmental candidate for
such appointment; proceeded to reject the prayer made by the respondent,
herein. The decision as arrived at by the standing committee in its meeting
held on 09.07.2019, was contended to have been intimated to the
Registrar, Debts Recovery Tribunal(DRT), Guwahati.
14. Mr. Chakravarty, learned CGC, has submitted that the respondent,
herein, basing on the recommendations so made in his favour by the
Presiding Officer, Debts Recovery Tribunal (DRT), Guwahati, while
forwarding his representation to the Chairperson, Debts Recovery Appellate
Tribunal(DRAT), Kolkata, had proceeded to institute an Original Application
being O.A. No. 040/00375/2019 and Misc. Application No.
040/00055/2022; praying for reliefs as noticed hereinabove.
15. Mr. Chakravarty, learned CGC, has submitted that the petitioners,
herein, had filed a written statement in the matter and had disputed the
claims made by the respondent, herein, in his O.A. No. 040/00375/2019,
before the learned Central Administrative Tribunal(CAT), Guwahati Bench.
16. Mr. Chakravarty, learned CGC, has submitted that ignoring the
provisions of the Recruitment Rules holding the field as well as the
contentions raised by the petitioners, herein; the learned Central
Administrative Tribunal(CAT), Guwahati Bench, solely basing on the
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recommendations so made by the Presiding Officer, Debts Recovery
Tribunal(DRT), Guwahati, while forwarding the representation of the
respondent, herein, to the Chairperson, Debts Recovery Appellate
Tribunal(DRAT), Kolkata; proceeded to hold that under the provisions of the
Debts Recovery Tribunal, Guwahati, Group "A" and "B"(Gazetted) and
Group "B"(Non Gazetted) Post Recruitment Rules, 2001, the Presiding
Officer, Debts Recovery Tribunal(DRT), Guwahati, being the appointing
authority, his views would be relevant and accordingly, concluded that the
selection and appointment of the respondent, herein, to the post of Section
Officer in Debts Recovery Tribunal(DRT), Guwahati, would be required to be
treated as to be made by way of promotion instead of deputation, with all
consequential benefits. The learned CGC has further submitted the said
conclusions as drawn by the learned Central Administrative Tribunal(CAT),
Guwahati Bench, is clearly perverse, in-as-much as, it is in clear violation of
the Recruitment Rules holding the field laying down the manner in which
various posts figuring in Debts Recovery Tribunal(DRT), Guwahati, was
required to be filled up.
17. Mr. Chakravarty, learned CGC, has submitted that although the
petitioners, herein, had brought on record before the learned Central
Administrative Tribunal(CAT), Guwahati Bench, about the rejection of the
claim made by the respondent, herein, for deeming his appointment
against the post of Section Officer in Debts Recovery Tribunal(DRT),
Guwahati, to be one so made on promotional basis; the said contention of
the petitioners, herein, was not factored in by the learned Central
Administrative Tribunal(CAT), Guwahati Bench, while passing the order,
dated 24.04.2023, in Original Application being O.A. No. 040/00375/2019
and Misc. Application No. 040/00055/2022.
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18. In the above premises, Mr. Chakravarty, learned CGC, has submitted
that the order, dated 24.04.2023, passed by the learned Central
Administrative Tribunal(CAT), Guwahati Bench, in Original Application being
O.A. No. 040/00375/2019 and Misc. Application No. 040/00055/2022;
would not be sustainable and would mandate an interference from this
Court.
19. Per contra, Mr. Keyal, learned counsel appearing for the sole
respondent, has submitted that the respondent, herein, being an employee
of Debts Recovery Tribunal(DRT), Cuttack, and having been recruited
against the post of Section Officer in Debts Recovery Tribunal(DRT),
Guwahati; he is to be deemed to be a Departmental candidate for the
purpose of the said recruitment and accordingly, such recruitment was
required to be deemed to have been made on the basis of promotion in
terms of the provisions of the Debts Recovery Tribunal, Guwahati, Group
"A" and "B"(Gazetted) and Group "B"(Non Gazetted) Post Recruitment
Rules, 2001, as well as the stipulation made, in this connection, in the
advertisement published by the Debts Recovery Tribunal(DRT), Guwahati,
in the Employment News, dated 30.05.2015-05.06.2015.
20. Mr. Keyal, learned counsel, has submitted that under the provisions of
the Recruitment Rules of 2001, the Presiding Officer, Debts Recovery
Tribunal(DRT), Guwahati, being the appointing authority for the post of
Section Officer; having recommended that the appointment of the
respondent, herein, against the post of Section Officer in Debts Recovery
Tribunal(DRT), Guwahati, be deemed to have been so effected by way of
promotion, the said recommendation coming from the designated
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appointing authority under the provisions of Recruitment Rules of 2001,
under which the respondent, herein, was recruited against the post of
Section Officer, the learned Central Administrative Tribunal(CAT), Guwahati
Bench, having appreciated the said aspect of the matter and proceeded to
pass the directions as passed vide the impugned order, dated 24.04.2023;
no interference with the same, is called to be made by this Court.
21. Mr. Keyal, learned counsel, has submitted that the learned Central
Administrative Tribunal(CAT), Guwahati Bench, appreciating the facts
involved in the matter as well as the service conditions of the respondent,
herein; had not erred in proceeding to hold that the selection and
appointment of the respondent, herein, to the post of Section Officer in
Debts Recovery Tribunal(DRT), Guwahati, would be required to be treated
as promotion instead of deputation, with all consequential benefits.
22. Mr. Keyal, learned counsel, has further submitted that no prejudice
was caused to the petitioners, herein, in-as-much as, the learned Central
Administrative Tribunal(CAT), Guwahati Bench, had also directed the
respondent, herein, to refund the deputation allowance so drawn by him.
23. In the above premises, Mr. Keyal, learned counsel for the respondent,
has submitted that the order, dated 24.04.2023, passed by the learned
Central Administrative Tribunal(CAT), Guwahati Bench, in Original
Application being O.A. No. 040/00375/2019 and Misc. Application No. 040/
00055/2022, would not mandate any interference from this Court.
24. We have heard the learned counsels appearing for the parties and
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also perused the materials available on record.
25. The manner of recruitment against the post of Section Officer in
Debts Recovery Tribunal(DRT), Guwahati, is provided under the Debts
Recovery Tribunal, Guwahati, Group "A" and "B"(Gazetted) and Group
"B"(Non Gazetted) Post Recruitment Rules, 2001. In terms of the provisions
of the said Rules of 2001, the post of Section Officer is treated as a post
belonging to Group "B"(Gazetted) Grade and the said post of Section
Officer is required to be filled up on deputation basis. However, the
provisions of the said Rules of 2001, also provides that departmental
Assistant with 8 years of regular service, shall also be considered along
with outsiders and in case, the Departmental candidate is selected against
the post of Section Officer in Debts Recovery Tribunal(DRT), Guwahati, the
post will be treated to have been filled up by way of promotion.
26. A vacancy having arisen against the post of Section Officer in Debts
Recovery Tribunal(DRT), Guwahati; an advertisement in the matter was
issued in the Employment News, dated 30.05.2015-05.06.2015. A perusal
of the said advertisement, would go to reveal that applications were invited
for recruitment against the post of Section Officer in Debts Recovery
Tribunal(DRT), Guwahati, on deputation basis. However, following the
prescription made in the provisions of the Debts Recovery Tribunal,
Guwahati, Group "A" and "B"(Gazetted) and Group "B"(Non Gazetted) Post
Recruitment Rules, 2001; a stipulation was also incorporated in the
advertisement published by the Debts Recovery Tribunal(DRT), Guwahati,
in the Employment News, dated 30.05.2015-05.06.2015, to the effect that
in the event, a Departmental candidate is selected against the post of
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Section Officer, the post will be treated to have been filled up by way of
promotion. It is seen from the materials brought on record that the
respondent, herein, had applied in pursuance of the said advertisement, for
recruitment against the post of Section Officer in Debts Recovery
Tribunal(DRT), Guwahati, on deputation basis. The respondent, herein, on
being selected, was vide order, dated 21.02.2017, appointed against the
post of Section Officer in Debts Recovery Tribunal (DRT), Guwahati, for a
period of 3 years, on deputation basis, or, until further orders, whichever, is
earlier.
27. The respondent, herein, without any objection, had accepted the
order, dated 21.02.2017. On the respondent joining against the post of
Section Officer, he was required to submit his option with regard to the
manner in which his pay and allowances would be so regulated. The
respondent, herein, submitted his option vide communication, dated
15.03.2017. The contentions made by the respondent, herein, in the said
communication, dated 15.03.2017, being relevant, is extracted
hereinbelow:
"It is humbly submitted that consequent upon my selection to the post of Section
Officer on deputation, I have reported my joining as Section Officer at DRT, Guwahati
on 20.02.2017(F.N).
2. In terms of Govt of India, DOPT's O.M No.6/8/2009-Estt(Pay-II) dated 17.06.2010 and
vide order No.DRTG/P-75/2017/126 dated 21.02.2017, I have been directed to exercise
my option to draw the pay scale i.e., either the post of my Parent Department i.e.,
DRT, Cuttack with deputation allowances or the pay scale of Section Officer, DRT,
Guwahati.
3. In exercising my option I intend to draw the deputation allowances along with the
pay scale of my parent department. Hence order to this effect may be issued
accordingly."
Page No.# 15/23
28. A perusal of the communication, dated 15.03.2017, would go to
reveal that the respondent, herein, had projected therein, that his parent
Department was Debts Recovery Tribunal(DRT), Cuttack, and he was opting
to draw deputation allowance along with the pay scale as authorized to him
in the parent Department. The said aspect of the matter when read with
the order of appointment of the respondent, herein, against the post of
Section Officer in Debts Recovery Tribunal (DRT), Guwahati, would bring to
the forefront that such recruitment in respect of the respondent, herein,
against the post of Section Officer in Debts Recovery Tribunal(DRT),
Guwahati, was so made on deputation basis and he was, for the purpose,
not considered as a Departmental candidate. Further, the establishments of
Debts Recovery Tribunal(DRT), Cuttack, and Debts Recovery Tribunal(DRT),
Guwahati, being so regulated by different Recruitment Rules and the said
establishments being so treated to be separate and distinct establishments,
for the purpose of recruitment so effected against a vacant post of Section
Officer available in Debts Recovery Tribunal(DRT), Guwahati; the
respondent, herein, who was a regular incumbent in the post of Assistant in
the establishment of Debts Recovery Tribunal(DRT), Cuttack, could not
have been deemed to be a Departmental candidate.
29. The petitioners, herein, in supersession of the Debts Recovery
Tribunal, Guwahati, Group "A" and "B"(Gazetted) and Group "B"(Non
Gazetted) Post Recruitment Rules, 2001, formulated the "Debts Recovery
Appellate Tribunal, Kolkata and Debts Recovery Tribunals at Hyderabad,
Guwahati, Kolkata, Visakhapatnam, Siliguri and Cuttack, Recruitment
Rules, 2018". The said Recruitment Rules of 2018, had come into force
w.e.f. 08.08.2018. The provisions of the Recruitment Rules of 2018 has the
effect of amalgamating the establishments of the Debts Recovery Appellate
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Tribunal(DRAT), Kolkata and all the Debts Recovery Tribunals under its
jurisdiction, into a common establishment. The provisions of Rule 8 of the
said Recruitment Rules of 2018, also mandates preparation of a common
seniority list for each grades for the Debts Recovery Appellate Tribunal
(DRAT), Kolkata, and for all the Debts Recovery Tribunals under its
jurisdiction.
30. In terms of the provisions of Rule 8 of the Debts Recovery Appellate
Tribunal, Kolkata and Debts Recovery Tribunals at Hyderabad, Guwahati,
Kolkata, Visakhapatnam, Siliguri and Cuttack, Recruitment Rules, 2018; the
petitioners, herein, prepared a common seniority list of regular Assistant
working in Debts Recovery Appellate Tribunal(DRAT), Kolkata, as well as
various Debts Recovery Tribunals, under its jurisdiction, as on 01.01.2019.
In the said common seniority list of Assistant, the name of the respondent,
herein, figured at Serial No. 5 and he was shown to be holding a post of
Assistant on substantive basis.
31. The aforesaid common seniority list, would go to reveal that the
substantive appointment of the respondent, herein, even as on 01.01.2019,
was against the post of Assistant and accordingly, he must be deemed to
have been holding the post of Section Officer in Debts Recovery
Tribunal(DRT), Guwahati, on deputation basis only. After the Debts
Recovery Appellate Tribunal, Kolkata and Debts Recovery Tribunals at
Hyderabad, Guwahati, Kolkata, Visakhapatnam, Siliguri and Cuttack
Recruitment Rules, 2018, had come into force; the respondent, herein, had
approached the Presiding Officer, Debts Recovery Tribunal(DRT), Guwahati,
by way of submission of representation, praying for treating his
Page No.# 17/23
appointment against the post of Section Officer in Debts Recovery
Tribunal(DRT), Guwahati, on deputation basis, to be so made by way of
promotion, by construing him to be a Departmental candidate. The
representation as submitted by the respondent, was forwarded by the
Presiding Officer, Debts Recovery Tribunal(DRT), Guwahati, to the
Chairperson, Debts Recovery Appellate Tribunal(DRAT), Kolkata, by way of
a communication, dated 30.05.2019, and therein, had recommended for
grant of permission for passing appropriate orders towards treating the
appointment of the respondent, herein, against the post of Section Officer
in Debts Recovery Tribunal(DRT), Guwahati, w.e.f. 20.02.2017, as
promotion in terms of the provisions of the Debts Recovery Tribunal,
Guwahati, Group "A" and "B"(Gazetted) and Group "B"(Non Gazetted) Post
Recruitment Rules, 2001.
32. The materials brought on record would go to reveal that the prayer as
made by the respondent, herein, for treating his appointment against the
post of Section Officer in Debts Recovery Tribunal(DRT), Guwahati, on
deputation basis, to be deemed to have been so made by way of promotion
by treating him to be a Departmental candidate; came to be placed before
the standing committee of Debts Recovery Appellate Tribunal(DRAT),
Kolkata. The standing committee in its meeting held on 09.07.2019,
considered the request of the respondent, herein, and proceeded to reject
the said prayer by holding that the respondent cannot be deemed to be a
Departmental candidate for the purpose of his appointment against the
post of Section Officer in Debts Recovery Tribunal (DRT), Guwahati.
33. The relevant portion of the minutes of the meeting of the standing
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committee held on 09.07.2019, being relevant, is extracted hereinbelow:
"6. Shri Banshidhar Mahapatra applied for deputation to the post of Section Officer
in ORT, Guwahati but he did not belong to DRT, Guwahati. Shri Mahapatra was
holding the post of Assistant in substantive capacity in DRT, Cuttack. Therefore, he
cannot be considered as a departmental candidate inasmuch as, the scope of
applicability of the abovementioned Recruitment Rules is defined in the Notification.
Therefore, the selection of Shri Banshidhar Mahapatra to the post of Section Officer
in DRT, Guwahati could not have been treated as by promotion. Secondly, the above
mentioned Recruitment Rules have ceased to exist with the publication of the new
Recruitment Rules, which was notified on 08.06.2018. Therefore, no order can be
issued at this point of time on the basis of the old Recruitment Rules.
7. The Standing Committee, therefore, unanimously formed a view that the proposal
put forward by the Learned Presiding Officer, DRT, Guwahati cannot be accepted in
view of the analysis as above. A suitable reply in this regard be issued by the
Registrar, DRAT, Kolkata in this regard."
34. The provisions of the Debts Recovery Tribunal, Guwahati, Group "A"
and "B"(Gazetted) and Group "B"(Non Gazetted) Post Recruitment Rules,
2001, insofar as, it concerns to the recruitment to the post of Section
Officer in Debts Recovery Tribunal(DRT), Guwahati, mandates the post, in
question, to be so filled-up by way of deputation. The relaxation as
provided in the provisions of the said Debts Recovery Tribunal, Guwahati,
Group "A" and "B"(Gazetted) and Group "B"(Non Gazetted) Post
Recruitment Rules, 2001, for treating such recruitment to have been so
made by way of promotion is only in respect of a Departmental candidate
selected for such appointment against the post of Section Officer in Debts
Recovery Tribunal (DRT), Guwahati.
35. Although the term "Departmental candidate" has not been defined in
the provisions of the Debts Recovery Tribunal, Guwahati, Group "A" and
"B"(Gazetted) and Group "B"(Non Gazetted) Post Recruitment Rules, 2001,
manner of functioning of the various Debts Recovery Tribunals under the
jurisdiction of the Debts Recovery Appellate Tribunal(DRAT), Kolkata, would
Page No.# 19/23
go to reveal that each of such Debts Recovery Tribunals including the Debts
Recovery Tribunal(DRT), Cuttack, and Debts Recovery Tribunal(DRT),
Guwahati, were treated to be separate and distinct establishments.
36. Accordingly, in view of the provisions of the Recruitment Rules of
2021, a Departmental candidate can be construed to be an employee who
was working in the Debts Recovery Tribunal(DRT), Guwahati, wherein, the
post of Section Officer, was put up for recruitment vide advertisement
published in the Employment News, dated 30.05.2015-05.06.2015. An
employee holding a post on substantive basis in Debts Recovery
Tribunal(DRT), Cuttack, like the respondent, herein, cannot, in view of the
provisions of the Recruitment Rules governing their service conditions, be
deemed to be a Departmental candidate for the purpose of recruitment
against a post figuring in the establishment of Debts Recovery
Tribunal(DRT), Guwahati.
37. Accordingly, the appointment of the respondent, herein, on his
selection against the post of Section Officer in Debts Recovery
Tribunal(DRT), Guwahati, vide order, dated 21.02.2017, on deputation
basis, cannot be held to be erroneous.
38. In view of the above discussions, we are of the considered view that
the claim as made by the respondent, herein, to be considered as a
Departmental candidate in the selection process held for appointment
against the post of Section Officer in Debts Recovery Tribunal(DRT),
Guwahati, in pursuance of the advertisement published in the Employment
News, dated 30.05.2015-05.06.2015, would not mandate an acceptance.
Page No.# 20/23
39. Having drawn the above conclusions, the order, dated 24.04.2023,
passed by the learned Central Administrative Tribunal(CAT), Guwahati
Bench, in Original Application being O.A. No. 040/00375/2019 and Misc.
Application No. 040/ 00055/2022; is now being considered.
40. From a perusal of the operative portion of the order, dated
24.04.2023, passed by the learned Central Administrative Tribunal(CAT),
Guwahati Bench, in Original Application being O.A. No. 040/00375/2019
and Misc. Application No. 040/00055/2022, as extracted hereinabove; it
would be revealed that the learned Tribunal had concluded that under the
provisions of the Debts Recovery Tribunal, Guwahati, Group "A" and
"B"(Gazetted) and Group "B"(Non Gazetted) Post Recruitment Rules, 2001;
the Presiding Officer, Debts Recovery Tribunal(DRT), Guwahati, was the
authority who was to decide as to whether the respondent, herein, on his
recruitment as Section Officer, was to be deemed to be a deputationist, or,
a promotee. The learned Tribunal further concluded that the Presiding
Officer, Debts Recovery Tribunal(DRT), Guwahati, having recommended
that the respondent, herein, is to be deemed to have been promoted to the
post of Section Officer, in Debts Recovery Tribunal(DRT), Guwahati; the
recommendations as made by the Presiding Officer, Debts Recovery
Tribunal(DRT), Guwahati, was required to be given its due consideration.
Further, the learned Central Administrative Tribunal(CAT), Guwahati Bench,
by concluding that the respondent, herein, who was working as an
Assistant in Debts Recovery Tribunal(DRT), Cuttack, had applied for a post
in Debts Recovery Tribunal(DRT), Guwahati; both the Debts Recovery
Tribunals being placed under the Finance Department, the selection and
appointment of the respondent, herein, is to be deemed to have been so
effected by way of promotion instead of deputation, with all consequential
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benefits.
41. The said conclusions drawn by the learned Central Administrative
Tribunal(CAT), Guwahati Bench, in view of the discussions made
hereinabove, by us in this order, is clearly not sustainable.
42. The learned Central Administrative Tribunal(CAT), Guwahati Bench,
while proceeding to draw its conclusions, vide the impugned order, dated
24.04.2023, had failed to appreciate the contentions raised by the
petitioners, herein, before it that on the coming into force of the Debts
Recovery Appellate Tribunal, Kolkata and Debts Recovery Tribunals at
Hyderabad, Guwahati, Kolkata, Visakhapatnam, Siliguri and Cuttack
Recruitment Rules, 2018; it was the Chairperson of the Debts Recovery
Appellate Tribunal(DRAT), Kolkata, who was now designated as the
appointing authority for all posts, except Group 'A' post and was also
denoted as the cadre controlling authority for all posts. Accordingly, with
the enactment of the said Recruitment Rules of 2018, and also the change
as effected with regard to the prescription of the appointing authority for
the various posts involved in the Debt Recovery Tribunals functioning under
the jurisdiction of the Debts Recovery Appellate Tribunal(DRAT), Kolkata;
the Presiding Officer, Debts Recovery Tribunal(DRT), Guwahati, would not
have any jurisdiction to make recommendations for construing the
appointment of the respondent, herein, as Section Officer, on deputation
basis, to have been so made by way of promotion by deeming him to be a
departmental candidate. The rejection of such recommendation by the
competent authority of Debts Recovery Appellate Tribunal (DRAT), Kolkata,
cannot be held to be erroneous.
Page No.# 22/23
43. The learned Central Administrative Tribunal(CAT), Guwahati Bench,
while proceeding to draw its conclusions in the matter, had failed to
appreciate the fact that the name of the respondent, herein, figured in the
common seniority list, so published of the incumbents in the grade of
Assistant in Debts Recovery Appellate Tribunal(DRAT), Kolkata, and in the
Debts Recovery Tribunals under its jurisdiction; which would go to reveal
that the respondent, herein, was never held by the authorities to have been
promoted to the cadre of Section Officer, and/or, to have been holding the
post of Section Officer in Debts Recovery Tribunal(DRT), Guwahati, on
substantive basis. The learned Central Administrative Tribunal(CAT),
Guwahati Bench, could not have ignored the fact that the respondent,
herein, even as on 01.01.2019, was holding the post of Assistant on
substantive basis, and accordingly, he could have, in no way, held to have
been promoted to the post of Section Officer in Debts Recovery
Tribunal(DRT), Guwahati.
44. In view of the above conclusions drawn by us, hereinabove; we are of
the considered view that the impugned order, dated 24.04.2023, passed by
the learned Central Administrative Tribunal(CAT), Guwahati Bench, in
Original Application being O.A. No. 040/00375/2019 and Misc. Application
No. 040/00055/2022, cannot be sustained and accordingly, the same is
hereby set aside.
45. Consequently, the Original Application being O.A. No. 040/00375/2019
and Misc. Application No. 040/00055/2022, filed by the respondent, herein,
stands dismissed.
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46. With the above directions and observations, this writ petition
accordingly stands disposed of.
JUDGE CHIEF JUSTICE
Comparing Assistant
