High Court · 2009

1. All the three writ petitions having raised common questions of law on mo re or less similar facts were heard together and are being disposed of by this c ommon judgment and order.

2. The petitioners in the three writ petitions are/were working in differen t Group-C and D posts in the office of the Accountant General (A & E) and office of the Accountant General (Audit), Meghalaya, Shillong. They are aggrieved by t he actions of the respondents in posting them on deputation in the offices of th e Accountant General (A & E), Mizoram and Arunachal Pradesh at Aizawl and Itanag ar, respectively, despite they having opted for permanent posting in the office of the Accountant General, Meghalaya at Shillong.

3. Before proceeding to notice the facts that would be relevant to the pres ent adjudication a brief history of the creation of the different offices of the Accountant Generals in the North Eastern States will be necessary. Initially, t he office of the Accountant General of the undivided State of Assam was located in the then State capital at Shillong. Upto the year 1974 the office of the Acco untant General, Shillong used to cater to all the seven North Eastern States. In the year 1974 separate offices were created for the States of Manipur, Tripura, Nagaland, whereafter, the office of the Accountant General at Shillong catered to the needs of the States of Assam, Meghalaya, Mizoram and Arunachal Pradesh. I t will also be necessary to notice in this regard that the two wings of the offi ce of the Accountant General i.e. Audit; Accounts and Entitlement (A&E) came int o existence in the year 1984. A separate office of the Accountant General was established for the State of Ass am in the year 1998 and with effect from 01.4.2006 for the States of Arunachal P radesh and Mizoram. It is on account of the creation of separate offices for the States of Assam, Mizoram and Arunachal Pradesh that employees in Group-C and D were asked to exercise their options for permanent allocation as well as for bei ng posted on deputation if their choice of permanent allocation cannot be consid ered. Pursuant to the option asked for all the petitioners had opted for permane nt allocation to the office of the Accountant General at Shillong, failing which they had also indicated their options for deputation. The grievance raised in t he cases under consideration, which have already been adjudicated by the learned Central Administrative Tribunal by dismissal of the Original Applications filed before it by the petitioners, is with regard to such permanent allocation as we ll as their postings made on deputation, primarily, at Aizawl (Mizoram) and Itan agar (Arunachal Pradesh). The facts involved in each of the writ petitions may now be separately noticed. WP(C) No.1882 of 2009 The writ petitioners who are Group-C and D employees of the office of th e Accountant General (A & E), Meghalaya, Shillong have assailed an order dated 0 1.8.2008 passed by the learned Central Administrative Tribunal rejecting the Ori ginal Applications filed by the writ petitioners before the learned Tribunal. An order dated 29.4.2009 posting the petitioners in the office of the Accountant G eneral (A &E), Arunachal Pradesh, Itanagar, on deputation, has also been assaile d in the writ petition.

4. In the Original Applications filed before the learned Tribunal the petit ioners had challenged the following orders : (i) Establishment order No.53 dated 9.6.2006 relating to permanent allocatio n of Group-C & D cadres between the offices of the Accountant General (A & E), M eghalaya, Shillong and Accountant General (A&E), Assam, Guwahati with effect fro m 01.12.2005. (ii) Circular No.3307 dated 12.7.2006 calling for options from Group-C and D officials of Accountant General (A & E), Meghalaya, Arunachal Pradesh and Mizor am for permanent allocation to the offices of their choice. (iii) Establishment Order No.198 dated 21.11.2006 relating to allotment of Gro up-C and D officials of the offices of the Accountant General(A&E), Meghalaya, A runachal Pradesh and Mizoram (following the creation of the independent offices of the Accountant General for the concerned States). WP(C) No.3702/2008 and 3704/2008 5. The petitioners who were Group-C & D employees of the office of the Acco untant General (Audit) Meghalaya, Arunachal Pradesh and Mizoram (Headquarters at Shillong at the relevant time) have challenged an order dated 01.8.2008 passed by the learned Central Administrative Tribunal dismissing the Original Applicati ons filed before the learned Tribunal. The challenge made by the petitioners bef ore the learned Tribunal were in respect of the following orders/circulars : Establishment order dated 9th June, 2006 placing on deputation to defici (i) t offices the employees mentioned in Annexures-V & VI to the said office order. (ii) Office order No.Establishment-I/Audit-78 dated 6.7.2007 relieving the em ployees mentioned in the said order from their duties in the office of the Accou ntant General (Audit), Meghalaya, Shillong and requiring them to report to the o ffice of the Accountant General (Audit) Mizoram, Aizawl.

6. The essence of the challenge made by the petitioners before the learned Tribunal was that the impugned actions were arbitrary and violative of the right s of the affected persons guaranteed by Articles 14 and 21 of the Constitution. It was also contended that the orders of permanent allocation of staff and placi ng the concerned employees on ’deputation’ in the deficit offices were against t heir consent and willingness and hence legally infirm.

7. The respondents in the writ petition i.e. the Union of India had filed w ritten statements in each of the cases before the learned Tribunal stating that the separation/bifurcation of the offices of the Accountant General of the diffe rent States was dictated by the needs of the administration and the same pertain s to the realm of policy taken by the Comptroller and Auditor General of India. It was also pointed out that the office of the Accountant General, Assam was a d eficit office and therefore all the employees who had opted for permanent alloca tion in the said office could be accommodated. Of the remaining employees the ma jority had opted for permanent posting in the office of the Accountant General, Meghalaya, Shillong whereas very few options were exercised in respect of the of fice of the Accountant General, Arunachal Pradesh at Itanagar and Accountant Gen eral, Mizoram at Aizawl. Consequently, a policy decision was taken to the effect that permanent allocation of employees would be on the basis of seniority-cum-o ption exercised and the same principle would also govern the identification of t he employees for posting in the deficit offices on ’deputation’. According to th e respondents, the entire exercise was undertaken on the aforesaid basis. Hence, there was no irrationality or arbitrariness in the actions of the respondents. Insofar as posting the employees on ’deputation’ without their consent is concer ned, the stand of the respondents was that such posting was not on ’deputation’ as commonly understood in law. The surplus staff of the office of the Accountant General, Meghalaya at Shillong was liable to be made over to the ’surplus cell’ and could be posted anywhere in India. However, the respondents by making the p resent arrangement ’on deputation’ decided the matter in favour of the concerned employees inasmuch as under the present arrangement they had a chance to come b ack to the parent office in respect of which they had exercised options, as soon as vacancies were available in the said office. The respondents, in the written statement filed, had also indicated the names and particulars of several employ ees who had been brought back to the parent office of their choice as soon as th e situation so permitted.

8. On due consideration of the rival cases projected before the learned Tri bunal, as noticed above, the Original Applications were dismissed by the learned Tribunal, primarily, on the ground that the issues raised pertain to the realm of policy of which the Union of India was the best judge and the Court should be slow to interfere in such policy matters. That apart, the learned Tribunal also held that permanent allocation of staff and sending employees on ’deputation’ t o deficit offices was founded on the principle of ’last come first go’ which was sufficiently objective and reasonable so as to warrant a reluctance on its part to interfere with the impugned actions. Aggrieved, the writ petitions in question have been filed.

9. We have heard Sri M. Z. Ahmed, learned counsel appearing for the writ pe titioners in WP(C) No.1882 of 2009 and Sri M. Bhuyan, learned counsel appearing for the writ petitioners in WP(C) Nos.3702/2008 and 3704/2008. We have also hear d Sri D. Baruah, learned Central Govt. Counsel, appearing for the respondents. The pleadings contained in the writ petition appear to be a replica of t 10. he pleadings contained in the Original Applications filed before the learned Tri bunal. So far as the oral contentions advanced at the hearing, however, certain additional grounds have been urged by Sri M. Bhuyan, learned counsel for the pet itioners in WP(C) Nos.3702/2008 and 3704/2008. In this regard, Sri Bhuyan has co ntended that the order dated 6.7.2007 placing the employees named therein on ’de putation’ to Mizoram is, ex facie, contrary to the terms of the circular dated 6 .3.2006 asking for their options. Sri Bhuyan has submitted that the aforesaid ci rcular dated 6.3.2006 was to operate subject to the existence of certain precond itions. In this regard, Sri Bhuyan has pointed out the precondition mentioned in the said circular with regard to availability of staff quarters for the employe es of the newly created office in Mizoram. Arguing further, Sri Bhuyan has submi tted that from the pleadings on record it is abundantly clear that no staff quar ter is available in Mizoram and only transit accommodation is available. Sri Bhu yan has further submitted that the options sought for were not indicated by many employees in the manner prescribed by the circular dated 6.3.2006; yet, such em ployees have been given permanent allocation in the offices of their choice. It is also the submission of Sri Bhuyan that the circular dated 6.3.2006 is arbitra ry inasmuch as it does not indicate the norms on the basis of which permanent al location and posting on ’deputation’ is required to be decided. However, Sri Bhu yan has fairly submitted that though in the written statement filed the principl e of seniority cum option has been cited as the basis for such exercise, in real ity, the said principle was not followed. In this regard, Sri Bhuyan has referr ed to the pleadings on record to show that senior persons who had given their op tions have been ignored whereas the option given by juniors have been accepted. Lastly, Sri Bhuyan has contended that the orders posting the concerned employees on ’deputation’ are against their consent which is not permissible in law. In t his regard, Sri Bhuyan has relied upon two decisions of the Apex Court in Prasar Bharati vs. Amarjeet Singh, reported in (2007) 9 SCC 539 (paragraph 13) and in Umapati Choudhary vs. State of Bihar and another, reported in (1999) 4 SCC 659 ( paragraph 8).

11. Sri D. Baruah, learned Central Govt. Counsel, in reply, has refuted the contentions advanced on behalf of the petitioners. According to Sri Baruah, as t he office of the Accountant General, Assam, at Guwahati was a deficit office all persons who had opted for permanent posting in the said office could be accommo dated. Insofar as the other States are concerned, Sri Baruah has submitted that while the office of the Accountant General, Meghalaya was a surplus office, the offices in Arunachal Pradesh and Mizoram were deficit offices. Applying the prin ciple of seniority-cum-option permanent allocation was made as per options exerc ised and those employees who could not be accommodated in the first instance wer e assigned to other offices on ’deputation’ as per their options. Sri Baruah has pointed out that the persons who could not be permanently accommodated and had to be sent on ’deputation’ to the deficit offices were so sent for a period four years and were to be brought back once the situation so permitted. In this rega rd, Sri Baruah has further urged that several employees, details of whom have be en placed before the Court, have been brought back to the parent office of their choice as soon as the situation permitted. While on ’deputation’ such employees were to earn deputation allowance by way of incentive. Sri Baruah has also urge d that under the policy decision of the Government of India there was a ban on r ecruitment in Group-C and D posts in all the offices in question as a result of which instead of working out the needs of the offices on the basis of the cadre strength the yardstick of ’man in position’ was adopted.

12. We have perused the voluminous records of the cases under consideration including the pleadings of the parties before the learned Tribunal and this Cour t. We have also read and considered the orders dated 01.8.2008 passed by the lea rned Central Administrative Tribunal.

13. The materials on record adequately demonstrate that though the Group-C a nd D cadres were effectively bifurcated, due to a ban on recruitment, the concep t of cadre strength had lost its relevance and the needs of a particular office had to be worked out on the principle of ’man in position’. The creation of sepa rate offices and existence of a common cadre at that point of time, naturally, n ecessitated calling for options from the employees for permanent allocation of o ffices. Anticipating that most of the employees may choose to opt for the office of the Accountant General, Meghalaya at Shillong the respondents while calling for options for permanent allocation had also asked the concerned employees to i ndicate the offices where they would like to go on deputation in the event their choice of permanent posting cannot be entertained. The result of the above exer cise had rendered the office of the Accountant General at Shillong a surplus off ice and the other offices i.e. Arunachal Pradesh and Mizoram deficit ones. Insof ar as the office of the Accountant General, Assam is concerned, all those who ha d opted for permanent allocation to the said office could be accommodated. The n umber of employees who had opted for permanent posting in the office of the Acco untant General at Itanagar and Mizoram being very few the question of sending so me of the surplus staff who had opted for the Meghalaya office became necessary. Consequentially the indicated course of action i.e. sending employees on ’deput ation’ as per their options was adopted.

14. The decision to create separate offices in the other States cannot be le gitimately questioned inasmuch as the same relates to the realm of public policy on which matters the Court will ordinarily not to supplant its views. Insofar a s the decision of the respondents with regard to permanent allocation and sendin g of employees on deputation is concerned, it has been adequately demonstrated t o the Court that the said exercise was performed on a reasonable and acceptable yardstick i.e. seniority-cum- option. If more employees than the number necessar y for the Meghalaya office had indicated their options for permanent allocation in the said office and the identification of the eligible employees for such per manent allocation is made by the employer on the principle of seniority no fault can be found in such an exercise. Employees who could not be accommodated, natu rally, were surplus staff. At this stage, the respondents had an option to treat them as surplus and to post them anywhere in India. However, in the interest of the employees themselves a decision was taken to post such surplus employees in the deficit offices, again, on the basis of the seniority- cum- option exercis ed. The said action of the respondents was, in fact, favourable to the employees as the ’deputation period’ was four years at the end of which, subject to avail ability of vacancies in the parent office, they stood a chance of being permanen tly absorbed in the office of their choices. No fault, therefore, can also be fo und with regard to the the principle adopted for sending the surplus employees o n deputation to the deficit offices.

15. An argument has been made that the principle of seniority-cum-option had not been followed in the implementation of the policy decision in question. Spe cific instances have been cited in this regard with reference to the pleadings o n record. On perusal thereof what the Court finds that in some cases particular employees had indicated Assam as their choice for permanent allocation and Assam as their choice for being sent on deputation also. Undoubtedly there was a defe ct in the form in which the options were exercised. However, the same will not v itiate the eventual decision taken to permanently allocate such employees to the Assam office inasmuch as it is not in dispute that all the employees who had op ted for Assam as their choice of permanent allocation could be suitably accommod ated. On behalf of the petitioners, illustratively, it has also been pointed out that some senior employees who had indicated Meghalaya as their choice of perma nent allocation and Mizoram as their last option for ’deputation’ have been post ed in Mizoram whereas certain junior employees have been posted on ’deputation’ in Arunachal Pradesh. It is pointed out that in such cases the senior employee h ad also indicated Arunachal Pradesh as one of the options for deputation. The Co urt has looked into the relevant facts in this regard. The contention advanced i s unsustainable. In the case of the senior employee, the order of option for Aru nachal Pradesh was lower in priority compared to the case of junior employees wh o had opted for Arunachal Pradesh as their first choice of deputation. The posit ion has been explained by the respondents in the pleadings by stating such a sit uation has resulted as a decision with regard to placement on ’deputation’ was t aken ’by way of exhausting the first, second and third preference respectively a nd by the time the second option exercised by a senior could be taken into accou nt the slots in a particular office got exhausted on the basis of first options exercised (cid:29). The explanation offered is fully acceptable.

16. A point has been raised that the posting of the employees in deficit off ices is by way of deputation and no employee can be sent on deputation without h is consent. As held by the Apex Court in Umapati Choudhary (supra) the concept o f deputation is consensual and an employee cannot be forced to go on deputation. However, in the present case the word ’deputation’ cannot be understood as it i s normally understood in the realm of service jurisprudence. Sending of surplus employees to deficit offices, as already noted, was a decision taken in the larg er interest of the employees themselves inasmuch such deficit offices were withi n the North Eastern Region and sending them to the deficit offices carried the p ossibility of a return of the employees to the offices of their choice as soon a s the situation so permitted. The surplus employees always had the option of not going on ’deputation’ in which event they were to be transferred to the surplus cell with an all India liability insofar as posting is concerned. Their posting in any office in the country, on being treated as a member of the surplus staff , would have foreclosed all possibilities of such employees returning to the par ent office of their choice. In the above situation it would be wrong to assume t hat merely because the word ’deputation’ had been used while sending the surplus employees to deficit offices, such posting was on the basis of ’deputation’ wi th all its legal connotations. An argument has been advanced that the period of four years of ’deputati 17. on’ is too long and the Court should order for a shorter period of such ’deputat ion’, preferably, a period of three months, which have been spelt out by the Cou rt in its interim orders passed in the present case. We are afraid, we cannot i ssue any such direction as we are singularly ill-equipped to decide what should be the ideal period of tenure in the deficit offices. We must, therefore, acknow ledge the employer to be the best judge of such a situation. For the foregoing reasons, we do not find any merit in any of the writ p 18. etitions under consideration. Consequently, we dismiss the writ petitions and af firm the orders dated 01.08.2008 passed by the learned Central Administrative Tr ibunal, Guwahati Bench in OA Nos.154/2007, 155/2007, 27/2007, 28/2007, 203/1996 and 204/2006. However, in the facts and circumstances of the case, we make no or der as to cost.