SUDHAKAR PANDA vs M/o Finance on 31 December 2024

ORAL ORDER

(As per Hon’ble Dr. Lata Baswaraj Patne, Judicial Member) By this OA, applicant sought the following relief: “…….to direct the respondents to consider the case of the applicant for promotion to the post of Recovery Officer in the Pay Band -3 of Rs.15600-39100 with GP Rs.6600/- (now Leval- 11 (Rs.67700- 208700) w.e.f., 01.01.2010 (the actual date of joining the post of Recovery Officer, in DRT-1. Kolkata) in terms of the recommendations of the DPC/Selection Committee dated 28.08.2009 and orders date 31.12.2009 issued by the 1st respondent with all consequential benefits such as seniority, pay and allowances and entitlement for further promotion

ii) to direct the respondents to give effect to the recommendations of the selection Committee/DPC held on 27/28 Aug 2009 and to promote the applicant to the post of Recovery Officer, DRT, Cuttak/Bangalore as a departmental candidate by issuing a formal order in this regard giving effect to the said promotion w.e.f., 01.10.2010 duly extending the benefit of the orders of the Hon'ble Tribunal in a similar case in OA No.1645/2013.

iii) to direct the respondents not to fill the post of recovery officer at DRT Cuttak/Bangalore for which the applicant was selected in the DPC held in the year 2009 in the interest of justice, and be pleased to pass such other order or orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.”

2. The brief facts of the case are that the applicant joined as Assistant on direct recruitment in the Central Secretariat Services (CSS) of UPSC cadre at New Delhi on 14.06.1991 after being qualified in Assistant Grade Exam 1988. After completion of 8 years of service as Assistant, he was promoted as Section Officer on Officiating basis. While working as such, he was sent on deputation to DRT, Cuttack as Section Officer, where he joined on 08.02.2001. Later on, he was absorbed as regular SO pursuant to DPC held on 06.09.2002. It is submitted that, Ministry of Finance (MoF) notified that DRT, Cuttack, Group A and B (Gazetted) and Group. ‘B’ (Non Gezetted) posts

Recruitment Rules, 2001 on 15.11.2001, as per which, a Section Officer with 8 years of regular service is eligible for promotion as Recovery Officer. As per Rule 5 of the said Rules, he is eligible for promotion to the post of Recovery Officer (RO) w.e.f 08.02.2009 i.e. after completion of 8 years of regular service as Section Officer (SO). It is his further contention that, since he was rendering the service as SO in DRT, Cuttack w.e.f. 08.02.2001 i.e. before commencement of Recruitment Rules w.e.f. 15.11.2001, the entire service has to be taken into consideration for determining the eligibility for promotion to the post of Recovery Officer (RO). It is further submitted by the applicant that the respondents conducted DPC/ interview for the post of Recovery Officer on 28.08.2009, in which, he was found suitable and accordingly, he was selected. He was initially appointed as Recovery Officer in DRT-I, Kolkata on deputation instead of promotion. After working there for about one year, seven months, he was repatriated back to DRT, Cuttak as Section Officer w.e.f. 19.07.2011 without assigning any reasons. It is his contention that his appointment through a DPC/interview for the post of Recovery Officer (RO) as on 28.08.2009 cannot be treated as appointment by deputation, and it has to be treated as promotion.

2. It is submitted by the applicant that his main grievance is that he has not been considered for promotion to the post of Recovery Officer in terms of the Debts Recovery Tribunal, Cuttak, Group A and B (Gazetted) and

Group.B (Non-gazetted) Posts Recruitment Rules 2001. It is further submitted that the subject matter in the OA is squarely covered by the orders of the Central Administrative Tribunal, Allahabad Bench, Allahabad, in OA No.1645/2013 dated 03.03.2021 between Chandra Karan Tiwari vs. Union of India, upheld by the Hon'ble High Court of Allahabad in its order dated 28.03.2022 in Writ-A No.3859/2022 which has been implemented in the case of the said Sri Chandra Karan Tiwari vide the respondents Office Order dated 13.04.2022 duly promoting him to the post of Recovery Officer (RO) (Group ‘A’ ) in Level-11 pursuant to the DPC held on 5th/6th August, 2010. The applicant also submitted a representation dated 05.05.2022 to the respondents for extension of the similar benefit to him, as the applicant is similarly situated as that of Sri Chandra Karan Tiwari. The respondents have not taken any action on the representation of the applicant, though the applicant is entitled to the same benefit as in the case of Chandra Karan Tiwari. Hence, feeling aggrieved, the applicant filed the present OA.

3. After Notice, respondents have appeared through their counsel and filed a detailed reply on the ground that the applicant was selected for the post of Recovery Officer on deputation basis during the year 2009 and joined the post on 01.01.2010. However, subsequently, it came to the notice of the department that he has misinterpreted the date of regular service in the grade of SO. He did not reveal the date of absorption as SO, and he simply mentioned that he was working as Section Officer (SO) in the Debt Recovery Tribunal, Cuttak, w.e.f. 08.02.2001, against the information asked ‘Date of regular service’. Thus, calculating the regular service from the given date, he was called for the interview and selected for the post of RO in DRT, Calcutta. The applicant wilfully misrepresented this department and managed to join the deputation post without minimum eligibility of regular service of 8 years of Section Officer grade.

4. The learned counsel for the respondents further contended that as per para.11 of Chapter 18 of (Deputation) extracted in the Swamy’s Establishment and Administration which reads as under: “…..(iv) In the case of a person who is initially taken on deputation and absorbed later (i.e. whether the relevant Recruitment Rules provide for Deputation/Transfer), his seniority in the grade in which he is absorbed will normally counted from the date of absorption. If he has, however, been holding already (on the date of absorption) the same or equivalent grade on regular basis in his parent Department such regular service in the grade shall also be taken into account in fixation of his seniority, subject to the condition that he will be given seniority from either the date he has been holding a post on deputation or the date from which he has been appointed on regular basis to the same or equivalent grade in his parent department whichever is earlier.” The respondents have submitted that since the applicant does not fulfil the eligibility criteria of minimum service on the said post, he is not entitled for the relief sought. Therefore, respondents prayed for dismissal of the OA.

5. To refute the averment made by the reply, the applicant filed the rejoinder and also filed written arguments.

6. Heard both sides and perused the record.

7. The learned counsel for the applicant argued on the point that it is not in dispute that the applicant has been appointed for deputation in the office of the respondents as Section Officer on the same which he was drawing pay scale in his parent department and he was absorbed in the said post. Subsequently, all eligible candidates were directed to forward their Bio- data for being considered for promotion to the post of Recovery Officer (RO) and his name has been considered by the DPC and he was found suitable and he was accordingly selected. Learned counsel for the applicant argued that the applicant, who was on deputation from 08.02.2001 and absorbed w.e.f. on 06.09.2002 pursuant to the recommendation of the DPC, his service from the date of deputation has to be considered for calculating experience as he has been rendering his regular service, though he was on deputation. The learned counsel for the applicant further contended that, as per para. 11 of Chapter 18, the applicant was already holding the same or equivalent grade on a regular basis in his parent department and such regular service in the grade is also to be taken into account in the fixation of seniority. Therefore, the respondents have considered and fixed his seniority followed with the date of appointment on deputation. Thus, the applicant has provided correct information in his Bio-data. It was the duty of the respondents to verify along with the relevant records of service dossiers that will be considered by the DPC while giving such promotion/appointment on deputation. The respondents have conducted the DPC/interview for the post of Recovery Officer on 28.08.2009, in which the applicant was assessed for promotion to the post of Recovery Officer in

DRT-I Kolkatta, on deputation. Therefore, the action of the respondents is contradictory to the recruitment rules for absorption/deputation. The applicant has submitted detailed representation in the year 2022. However, since the respondents have not replied to the same, left with no option, the applicant has knocked the doors of the court for justice.

8. The learned counsel for the applicant further submits that by virtue of the said in action on the part of the respondents, the applicant has been repatriated and denied the benefit, for which, he is otherwise entitled and eligible. He further reiterated that the applicant is similarly situated as that of the applicant in OA/1645/2013 i.e. Chandra Karan Tiwari.

9. On the other hand, learned counsel for the respondents vehemently opposed the contentions of the learned counsel for the applicant while reiterating the contentions made in the reply statement.

10. It is not in dispute that the applicant was holding a post on the same grade prior to his deputation in the office of the respondents. The applicant, who was on deputation as a Section Officer w.e.f. 08.02.2001 in the office of the respondents, came to be absorbed vide order dated 16.09.2002 w.e.f. 06.09.2002. Subsequently, when eligible candidates were called for with the information along with Bio-data, the applicant was also directed to submit the same. As the applicant was absorbed, his service from the date of deputation has to be clubbed since he was working regularly on the said post, even prior to his deputation. Therefore, the applicant submitted the information, as sought by the respondents.

11. It is also to be noted that, once the Recruitment Rules are clear on this aspect that, if the person, who is on deputation has already been absorbed and he was having the same or equivalent grade on a regular basis in his parent department, such regular service in the grades shall also be taken into account for fixation of his seniority, subject to the condition of fulfilling the criteria. The respondents have already considered his grade on deputation while fixing the seniority. Therefore, they cannot deny any promotion on completion of required experience, and the applicant is fulfilling the required experience of 8 years on the said post of Section Officer (SO), and he is eligible to be considered for appointment to the post of Recovery Officer (RO) irrespective of the nomenclature, whether it is on deputation or regular promotion. Therefore, the respondents have not justified for passing the order of repatriation and it is contradictory to the rule position that is already quoted by the respondents in their counter affidavit. Accordingly, the applicant, who is entitled to the appointment to the post of Recovery Officer (RO), which was given vide order dated 31.12.2009. Therefore, the respondents are directed to restore his position as Recover Officer (RO) and allow him to continue him in the said post.

12. The respondents are directed to carry out the necessary exercise within one month from the date of receipt of the order. However, we made it clear that the applicant is not entitled to any back wages or consequential benefits for the period from repatriation to resumption to the post of Recovery Officer.

13. Accordingly, the OA is allowed in terms of the above. No order as to costs. (SHALINI MISRA) (DR. LATA BASWARAJ PATNE) ADMINISTRATIVE MEMBER JUDICIAL MEMBER /al/