High Court · 2012

Neat facts. Almost undisputed. Apt it is to state in brief. The petitioner, while serving as Senior Grade Stenographer in the scale of pay of Rs .2975- 4750 in the Gauhati High Court, went on deputation through proper channel and joined at Patna Bench of the Central Administrative Tribunal (CAT in short) on 11.12.1989 as Private Secretary. Subsequently, on 21.9.1990 he was appointed /promoted as Deputy Registrar in the said Bench of the CAT in the scale of pay of Rs.3000-4500/-. His prayer made vide petition dated 25.4.1990 for absorption in the post of Deputy Registrar in the CAT was not considered as he was not a la w graduate. The petitioner was told that graduation in law is essential for abso rption of a deputationist in the post of Deputy Registrar unlike the post of Pr ivate Secretary. He was, therefore, asked to seek absorption in the post of Sect ion Officer/ Private Secretary. Petitioner accordingly made an application for a bsorption in the post of Private Secretary and while it was under consideration, he found that the post of Senior Grade Private Secretary is higher than the pos t of Private Secretary. His prayer for absorption in the post of Private Secreta ry is not permissible under the Rules. The petitioner then made another petition on 29.6.90 for appointment as Deputy Registrar at the Guwahati Bench of the CA T. The same was allowed and the petitioner was appointed as Deputy Registrar on 21.9.90. He joined in the said post on 5.11.1990. The High Court, as parent d epartment issued an NOC effective from 1.12.90. The petitioner, thereafter on 5. 6.1991 applied for absorption in the post of Deputy Registrar in the CAT. The th en Vice Chairman of the CAT duly recommended the same. The High Court also issue d NOC. As per High Court Rule, an employee could be allowed to remain on deputat ion only for a period of two years. The petitioner’s term of 2-year deputation c ame to an end on 3.11.1991. So the CAT in order to enable it to complete the pro cess of absorption requested the High Court to extend another term of two years. Extension was so allowed and a meeting of the DPC was held on 6.7.1992 for cons ideration of petitioner’s case. As the petitioner was not a law graduate, the Go vt. of India was requested to relax the qualification of LL.B. degree. On such r equest, the Govt. of India relaxed the LL.B. qualification vide order No. A-1/12 020/6/92-pt dated 6.9.93 after a lapse of 15 months, though as per standing orde r of the Govt. it should have been done within a period of three months from the date of holding of DPC i.e. 6.7.92.

2. Before completion of the process for absorption, the High Court vide communication dated 16.11.93 directed the petitioner to report to the paren t department as his period of deputation could not be extended beyond 30.11.93. The Vice Chairman of the CAT, vide order dated 17.11.93 released the petitioner w.e.f. 30.11.93 directing him to report to the Registry of the High Court. The petitioner on 23.11.93, in frustration, made an application to go on voluntary retirement w.e.f. 30.11.93 but before the said date he withdrew the said applica tion for voluntary retirement, which was rejected by the High Court Registry. Ag grieved by the said action of the Registry, the petitioner filed a writ petition being CR No.1019/94 for quashing and setting aside the order of the Registry. The learned Single Bench partially allowed the said writ petition against which the present petitioner as well as the Registry of the High Court filed writ appe als being W.A.No.551/95 and 552/95. By a common judgment delivered on 13.9.1996, a learned Division Bench of this Court allowed the Writ Appeal filed by the pet itioner giving him full relief and rejected the writ appeal filed by the Registr y. The said learned Division Bench while upholding the order of the learned Sing le Judge quashed the order of voluntary retirement and allowed the petitioner to join his service in the CAT. It was further held that the petitioner is entitle d to regularisation as Deputy Registrar and directed the respondents to regulari se his service as Deputy Registrar extending and paying of consequential benefi ts accrued to him as per Rules. It was even directed that considering the time g ap, if required, a supernumerary post of Deputy Registrar be created. The SLP m oved by the respondent was dismissed by the Apex Court on 31.3.97. Ultimately, a n order of regularisation/absorption of the petitioner as Deputy Registrar was p assed on 21.4.97 w.e.f. 1.12.93 (FN). The petitioner, accordingly joined on 19.5 .97. Thereafter the petitioner filed representation dated 26.5.97 for promotion to the post of Joint Registrar/Registrar against several posts of Joint Registr ar fell vacant in 1997. The petitioner made a grievance that in 1997, some simil arly situated candidates were considered for promotion to the post of Joint Regi strar but his case was not considered. He then made representation dated 26.5.97 , which was rejected by the grievance committee. Being aggrieved, the petitioner filed OA No.215/97 which was withdrawn with liberty to file fresh representatio n before the appropriate authority. The petitioner, therefore field a representa tion dated 3.9.99 before the Joint Secretary, A.T.Division, New Delhi for consid eration of his case for promotion. The said representation was rejected by order dated 21.3.2002 issued by the under Secretary, Ministry of Personnel and Traini ng, New Delhi. Against the aforesaid order, the petitioner filed OA No.53/03 bef ore the Guwahati Bench of the CAT which was disposed of on 4.10.2004 by the lear ned Tribunal with liberty granted to him to agitate the same question raised in the case at the appropriate stage after seeking clarification as regards the dat e of regularisation from the High Court. 3. We have heard Mr. D K Mishra, learned Senior Counsel assisted by Mr. Bikash Prasad, learned counsel for the petitioner and Mr. J Sarma, learned counsel for the respondents. Mr. Mishra, learned senior counsel submits that controversy rela 4. ting to the date of absorption of the petitioner in the CAT has already been res olved by a Division Bench of this Court in the common judgment and order dated 1 3.9.96 rendered in Writ Appeal Nos. 551/95 and 552/95 and it needs no further di scussion inasmuch as it has been held therein that the process of absorption st arted on 28.5.90 and the petitioner was, in fact, appointed as Deputy Registrar on 21.9.1990 initially for one year albeit on deputation basis followed by no ob jection certificates issued by the High Court on 26.2.90 and 29.1.92 and the pro cess of absorption virtually completed but for the non submission of petitioner’ s ACRs by the then Vice Chairman of the CAT, Guwahati Bench before the DPC who (cid:28)purposefully withheld the same in his personal custody and despite reminders a nd communications it was not sent (cid:28), for which the petitioner is not to be blame d. First he refers to certain observations made in the judgment, particularly in the 2nd paragaraph of the judgment at page 45 which reads as follows: (cid:28) The petitioner has applied for the post through proper channel. In response to an advertisement issued by the Respondent CAT for filing up the post of Private Secretary in different Branches of the Tribunal, his application was forwarded by the High Court, and he was appointed as such vide letter dated 15.11.89, Anne xure-1. Going through the documents filed by the petitioner although he was init ially treated as on deputation, his appointment was in a clear vacancy and the u ser of the term deputation which continued for quote(sic) some till December , 1 990 when the High Court vide Annexure-6 had in clear and categorical terms indic ated that it had no objection to petitioner’s appointment as Deputy Registrar. T he camouflage, sought to be created thereafter as regards deputation was wholly uncalled for. The petitioner was in fact absorbed and on fulfilment of such con dition of absorption he was being considered for promotion as Deputy Registrar f or which the parent department, that is the High Court had given its consent by issuing the ’No objection (cid:29) letter. The petitioner, in the eye of law, stood abso rbed in the services of the Tribunal. (cid:29) (Emphasis supplied). Then he refers to 2nd paragraph of the judgment at page 47, which reads as follo ws. Having absorbed the petitioner as Senior Grade Stenographer, his case was consid ered for promotion as Dy.Registrar, he was infact appointed as Dy.Registrar, so much so, the condition of possessing a law degree was also relaxed, as contempla ted by Rule 7, really speaking it is a matter of regularisation, of petitioner’s promotion as Deputy Registrar, which could not be done for non-submission of A CRs by the Vice Chairman, it was that stage the impugned order dated 17.11.94, A nnexure-24 was passed which is not supportable either on facts or in law. In view of the foregoing discussion the release order dated 17.11.93, Annexure-2 4, passed by the Vice Chairman, Respondent No.4, is liable to be quashed, it is accordingly quashed. Consequently, the petitioner is reinstated in the post from which he was relieved. The petitioner is held to be entitled to regularisation, as Deputy Registrar and the Respondents are directed to regularise him in servi ce as Deputy Registrar, extending and paying all consequential benefits, accruin g to him as per Rules. Considering the time gap, if required a supernumerary pos t of Deputy Registrar be created. (cid:29) (Emphasis supplied). 5. In view of the above judgment of the learned Division Bench, it is submitted by the learned senior counsel that the respondents may be directed (1) to regularise the appointment of the petitioner in the post of Deputy Regist rar w.e.f. 11.12.91 as per order passed by the learned Division Bench in Writ Ap peal Nos. 551/95 and 552/95 and to consider the petitioner’s case for appointmen t /promotion to the post of Joint Registrar/Registrar w.e.f. the date when he be came eligible for consideration and was left out because of non regularisation w hen similarly situated other persons were promoted. 6. It has been submitted that it is an admitted position that the p etitioner was absorbed in the CAT as Private Secretary w.e.f 11.12.1989 and his service was regularised as Deputy Registrar on 21.9.90 or 11.12.91 and thus he is eligible for promotion to the post of Joint Registrar w.e.f. 21.9.95 or 11.12 .96. 7. Mr. Sarma, learned counsel for the respondents referring to affi davit in opposition filed by the respondents submits that the petitioner was app ointed as Private Secretary in the Patna Bench of the CAT and joined in the said post on 11.12.89. He was appointed as Deputy Registrar on his request on deput ation in the Guwahati Bench of the CAT on 5.11.1990. The respondents have denie d that the post of Senior Grade Stenographer is higher than the post of Private Secretary. The respondents have also denied that the petitioner is entitled to the benefit under FR (1)(a)(i) and the same was even allowed by the Guwahati B ench of the CAT. It has been contended in the said affidavit that the respondent s have already given the benefit under FR (1)(a)(i) to the petitioner and as suc h he is now stopped from raising the issue of parity of the post of Senior Grade Stenographer in the parent department and the Deputy Registrar in the CAT. The respondents in the said affidavit contended that the petitioner is not eligible for promotion to the post of Joint Registrar since he did not fulfill the requir ed eligibility criteria for promotion. As per the recruitment rules, a person is required to render five years of regular service as Deputy Registrar to becom e eligible for promotion to Joint Registrar. In the case of the petitioner the r egular service of the petitioner as Deputy Registrar commenced from 1.12.93 and he would have become eligible for promotion to the post of Joint Registrar only on 30.11.98 but before the said date he had retired already on 30.1.98 and as such his case could not be considered for promotion to higher post. Further it h as been contended in paragraph 17 of the counter affidavit that the petitioner h imself accepted that the DPC held at Patna for his absorption as Private Secreta ry did not recommend his case and as such it cannot be accepted that he was abso rbed in the CAT as Private Secretary in 1989. In fact the petitioner was on depu tation as Deputy Registrar in the Guwahati Bench of the CAT and his term of depu tation was extended on a year to year basis with the approval of the parent depa rtment. The petitioner was repatriated to his parent department when the High Co urt as parent department refused to extend his deputation any further. In the af oresaid background the contention of the petitioner that he was absorbed as Pri vate Secretary in the Patna Bench has no force and is misleading. The petitioner ’s service as Deputy Registrar has, therefore, to be reckoned w.e.f. 1.12.93 and he would have attained eligibility for promotion to the post of Joint Registrar only on 30.11.98 i.e. after rendering 5 years of service as Deputy Registrar an d not before that. The clear factual position emerged is that the petitioner ret ired on superannuation from service before completing five years of qualifying r egular service as Deputy Registrar and as such there was no occasion to conside r his case for promotion as Joint Registrar. 8. For deciding this matter, we would proceed with the discussion keeping in mind that transfer of service on deputation is possible on fulfilment of, at least, three conditions, namely voluntary decision of the employer to l end the services of his employee, corresponding acceptance of such services by t he borrowing employer/ department and consent of the employee concerned to go on deputation. Sometime the employer /department offers option to his/ its employe es requesting the employer to send him on deputation. In any case, deputation mu st be only on public interest, free from favouritism and malafide. The Apex Cour t discussed and explained the concept and purport of deputation way back in the year 1999 in Umapati Choudhary -vs- State of Bihar and another, as reported in ( 1999) 4 SCC 659, as held therein that deputation means assignment of an employee of one department/ cadre/ organisation to another deputation/ cadre/ organisati on in public interest. The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The broad principle should gu ide all the cases of transfer of service on deputation. 9. First of all we would like to deal with the grievance of the pet itioner to regularise his appointment in the post of Deputy Registrar w.e.f. 11. 12.91 instead of 1.12.93. The petitioner’s demand is that his regularisation in the post of Deputy Registrar should be made from the date from which he was work ing as Senior Grade Stenographer in the High Court i.e. the parent department. In other words, his past service in the parent department (High Court) should be counted. To speak more specifically, benefit of past service in the parent depa rtment (High Court) should be given to him while regularising his service in the post of Deputy Registrar. The petitioner does not accept his regularisation of service in the post of Deputy Registrar w.e.f. 1.12. 93 because the benefit of his past service in the parent department was not given to him. The benefit of past service in the parent department has been claimed by the petitioner relyin g on the decision of the Hon’ble Supreme Court in M. Ramachandran -vs- Govind Ba llabh and others reported in (1999) 8 SCC 592. In the said case the issue involv ed was inter-se seniority of employees who were initially taken on deputation wh en the Central Administrative Tribunal was constituted w.e.f. 1.11.1985 and were later on absorbed in CAT. There were two sets of employees. One set of the empl oyees claimed seniority from the date of their deputation. The other set of empl oyees demanded accounting of period of their service on the equivalent post held by them in their parent department. When the matter reached the Apex Court, i t was held that seniority should be determined with reference to date of appoint ment of equivalent post in parent department which is in conformity with well es tablished principle of service jurisprudence that benefit of past service in par ent department has to be given. There is no dispute on the aforesaid principle o f law. But the court has to find out what was the equivalent post held by the pe titioner in the parent department. It is an admitted position that the petitione r was initially working in the Gauhati High Court as Senior Grade Stenographer in the pay scale of Rs.2975-4750/- and he went on deputation to Patna Bench of the CAT as Private Secretary in the scale of Rs.2000-3500/- per month at the rel evant point of time. The petitioner was drawing higher scale of scale of pay sen ior Grade Stenographer in the High Court (parent department) than the scale of p ay attached to the Private Secretary in the CAT. It is, therefore, established t hat the petitioner was holding higher post in the parent department before he was sent on deputation to Patna Bench of the CAT as Private Secretary. It is als o found that the post of Private Secretary and Section Officer in the CAT are an alogous and both the post at the relevant point of time were borne in the same scale of pay i.e.Rs.2000-3500/- and they belonged to the same Grade. The said po st of Private Secretary and Section Officer in the CAT is equivalent to the post of Section Superintendent/ Section Officer of the Gauhati High Court in the sa me pay-scale of Rs.2000-3500/-. In fact the post of Senior Grade Stenographer in the Gauhati High Court held by the petitioner carried even higher scale of pay than the post of Deputy Registrar in the CAT inasmuch as the scale of pay of th e Deputy Registrar starts from Rs.3000/- and ends at Rs.4500/- in the maximum wh ile the scale of pay of Senior Grade Stenographer in the High Court starts from Rs.2995/- and ends at Rs.4750/-. In that view of the matter, it would not be jus tified to say that the post of Senior Grade Stenographer in the High Court is lo wer than the post of Private Secretary in the CAT. This position is to be accept ed and it must also be accepted that the petitioner was holding equivalent post in the High Court as Senior Grade Stenographer before his deputation, which is a t least equivalent to the post of Deputy Registrar in the CAT, if not higher th an the post of Deputy Registrar in the CAT. We accordingly hold that the petitio ner was holding the post of Senior Grade Stenographer in the High Court which is equivalent to the post of Deputy Registrar in the CAT at the time of his deputa tion.

10. Once it is held that the petitioner was holding equivalent post in the parent department the legal consequence would flow from the decision of t he Apex Court in Ramachandran’s case (supra) i.e. to say that the petitioner is entitled to benefit of his past service in the parent department as Senior Grade Stenographer. The admitted factual position is that on the request of the petit ioner he was appointed as Deputy Registrar, Guwahati Bench of the CAT on 21.9.90 and after a long legal fight his service was regularised /absorbed as Deputy Re gistrar w.e.f. 1.12.93 vide impugned order dated 21.4.97 without counting his pa st service in the equivalent post held by him in the parent department. If the p rinciple laid down by the Apex Court in the aforesaid case is to be applied, th e action of the respondents in refusing to count petitioner’s service in the CAT in the post of Deputy Registrar cannot be upheld. The same being unjustified, u nreasonable and contrary to the settled law, we have to interfere with the impug ned order dated 21.4.97 absorbing the petitioner in the post of Deputy Registrar in the Guwahati Bench of the CAT w.e.f. 1.12.93 in the scale of pay of Rs.2000- 4500/-. The same is accordingly quashed and set aside directing the respondent a uthorities to modify the aforesaid impugned order so as to regularise his servi ce in the post of Deputy Registrar w.e.f. 11.12.91 instead of 1.12.93. Next, we deal with petitioner’s claim for appointment/promotion 11. to the post of Joint Registrar/Registrar in the CAT with effect from the date wh en he became eligible for consideration and was left out. The legality and reaso nableness of this claim is to be considered taking into consideration the releva nt Service Rules framed by the Govt. We have been called upon to refer to Rule 5 (1) and (2) of the Central Administrative Tribunal (Group-A Posts) Recruitment R ules, 1988 (hereinafter referred to as 1988 Rules). For ready reference and bet ter appreciation the said Rule is reproduced hereunder: (cid:28)Absorption /regularisation of existing employees:- (1)Notwithstanding anything contained in the provision of these rules, the persons holding the posts of Regi strar (Principal Bench), Registrar, other Benches, Joint Registrars and Deputy R egistrars on the date of commencement of the rules either on transfer or on depu tation basis and who fulfil the qualifications and experience laid down in the r ules and who are considered suitable by Departmental Promotion Committee shall b e eligible for absorption/regularisation in the respective grade subject to cond ition that such persons exercise their option for the absorption and that their parent Departments do not have any objection to their being absorbed in the Trib unal. (2) The seniority of officers mentioned in sub-rule(1) shall be determined with reference to the dates of their regular appointment to the posts concerned: Provided that the seniority of officers recruited from the same source an d in the posts held by in the parent Department shall not be disturbed. (cid:29)

12. We have to apply the above Rule on the premises that the petitio ner stood regularised for the post of Deputy Registrar of CAT w.e.f. 11.12.91 as we have already held so in the foregoing discussion. Rule 5(2) therefore is to be interpreted and applied in the present case accepting the date of petitioner’ s regular appointment to the post of Deputy Registrar in the CAT w.e.f. 11.12.91 . 13. The post of Deputy Registrar is the feeder post for promotion to the post of Joint Registrar. Rule 4 of the 1988 Rules provides for method of re cruitment, age limit, qualification and other matters relating thereto. For thi s purpose a schedule has been attached to the said Rules containing as many as 1 4 columns in respect of recruitment/promotion of various posts namely Registrar (Principal Bench), Registrar (other Benches) Joint Registrar and Deputy Registra r. Columns No. 11 and 12 of the Schedule are relevant in respect of promotion t o the post of Joint Registrar. Column No. 11 refers to method of recruitment. As per column 11, the method of promotion to Joint Registrar is by promotion faili ng which it should be made by transfer on deputation. Column 12 refers to source of recruitment. It reads: (cid:28) In case of promotion: Deputy Registrar with minimum of 5 years regular service in the Grade of Rs.3000- 4500 of which at least 2 years shall be in the Tribuna l. However, it is clarified that a deputationist in the Central Administrative T ribunal will not be eligible for consideration against the promotion channel. In case of transfer deputation: Officers possessing a degree in law and holding analogous posts under Central / State Govt./High Courts or with minimum of 5 years regular service in the scale of Rs.3000-4500 or judicial officers with minimum of 8 years, officers holding posts of Additional. Registrar/ Joint Registrar/ Deputy Registrar in High Courts with at least 5 years regular service (cid:29)

14. From the above, it is an accepted position that for appointment/ recruitment to the post of Joint Registrar there are different sources. It may be by direct appointment or by promotion or by absorption/transfer. The source o f recruitment can either be internal or external. By internal source it would m ean appointment by promotion or by transfer and by absorption, while the externa l source would mean recruitment of eligible persons who are not already in servi ce in the organisation to which the recruitment is to be made. We are concerned with the internal source of recruitment, for, the petitioner has already been in service in the CAT and in the service of the High Court before deputation. Refe rence may be made to the judgment and order dated 13.9.96 passed by a Division B ench of this Court in Writ Appeal No.551/95 and 552/95 wherein it has clearly be en held that the case of the petitioner was not a case of deputation but it was a case of regularisation of his service in the post of Deputy Registrar and it c an only be w.e.f. the date of his appointment and not from a future date as has been done by the respondent. We have, in the foregoing paragraphs of this judgme nt, come to a conclusion that the petitioner is entitled to get the benefit of p ast services of Senior Grade Stenographer in the parent department and thereby r egularisation/ absorption as Deputy Registrar in the CAT w.e.f. 21.9.90. The cas e of the petitioner, is, therefore, required to be considered on the footing of internal sources of recruitment. His case for promotion to the post of Joint Reg istrar is required to be considered taking into account his regularisation/absor ption in the post of Deputy Registrar in CAT w.e.f. 21.9.90. 15. As stated at the Bar, the petitioner retired on superannuation o n 31.1.98. The petitioner, as per condition laid down in column 12 of the schedu le, completed five years of regular service as Deputy Registrar in the Grade of Rs. 3000-3950/- in the CAT on 11.12.96, if his service is counted from the date of regularisation in the CAT on 11.12.91. And if he was promoted under the afo resaid provision, he would have held the post of Joint Registrar for about 2(two ) years from 11.12.96 till he retired on 31.1.98. The petitioner, having fulfill ed the eligibility criteria as laid down in 1988 Rules and the schedule thereto, the right to be considered, for promotion to the post of Joint Registrar, had a ccrued to him. Admittedly, petitioner’s case was not placed before the DPC for p romotion to the post of Joint Registrar, when he became eligible before his ret irement. We are conscious of the settled position of law that promotion cannot be claimed as a matter of right and promotion can be made on fulfilment of eligi bility and other criteria laid down in the relevant service rules. A writ court, exercising power of judicial review, cannot pass an order promoting any officia l to a higher post, although he has been able to make out a case for considerat ion of such a promotion. It is within the domain of the executive to consider t he claim of promotion of the petitioner alongwith similarly situated person(s), if any, for which the matter should be placed before the DPC. 16. In the aforesaid facts and circumstances, we make no order as to promotion of the petitioner to the post of Joint Registrar. However, we leave t his aspect of the matter with the authorities concerned, who may place the petit ioner’s case before the DPC for consideration and recommendation strictly in ter ms of the provisions under the 1988 Rules and as per the established norms and p rocedure for promotion. Before taking any decision for placing the petitioner’s case before DPC, the respondent authorities shall take into account the long gap of time, which is more than 15 years from the date on which he was due for prom otion and about 13 years since he retired on 31.1.98. The respondent- authoritie s shall take into account that the petitioner would have had held if promoted, t he post of Joint Registrar hardly for about two years. 17. In the result, this petition stands disposed of directing the re spondent authorities to modify /rectify the impugned order, dated 21.4.97, provi ding for regularisation/ absorption of petitioner’s service in the post of Deput y Registrar, w.e.f. 11.12.1991, with all consequential benefits under the releva nt service Rules and take appropriate decision with regard to placing the petit ioner’s case for promotion to the post of Joint Registrar before the DPC for con sideration along with other similarly situated persons, if any, at the relevant point of time within a period of two months from to-day. No order as to costs.