2001 Supreme(SC) 1365

2001(7) Supreme 449
SUPREME COURT OF INDIA
(From Central Administrative Tribunal, Delhi)
S. Rajendra Babu & Doraiswamy Raju, JJ.
Government of NCT Delhi & Ors. -Appellants
versus
All India Central Civil Accounts, JAO s Association & Ors. -Respondents
Civil Appeal Nos. 2971-2973 of 1997
Decided on 3-10-2001
Counsel for the Parties :
For the Appearing Parties : P.P. Rao and P.P. Malhotra, Senior Advocates, Mrs. Mahalakshmi Pavani, Dr. Sumant Bhardwaj, Mrs. Mridula Ray Bhardwaj, Praveen Chaturvedi, Ms. Mona Rajvanshi, Dheeraj Kumar Agarwal, V.K. Rao, Piyush Sharma, Ms. Madhu Sikri, Ms. Anuradha Priyadarshni, Ajay Verma, Y.P. Mahajan, Ms. Sushma Suri, Advocates.

IMPORTANT POINT
Appellant s proposal asking for repatriation of those who have been sent by respondent 8 on deputation be implimented as directed in this judgment.

Headnote:Delhi Administration Accounts Service Rules, 1992-Rules 3, 5, 7, 11 and 15-Constitution of India-Articles 239 and 309 Govt. of NCT Delhi asking for repatriation of those who have been sent on deputation-Challenged before CAT-Tribunal quashed the impugned order directing repatriation-Appeal against to Supreme Court-Whether Tribunal was right? (No)-Appeal allowed-Govt. of NCT of Delhi Act, 1991-Section 52(b)-Preliminary objection-Rejected. (Para 8)

       Held : Shri P.P. Malhotra, learned senior Advocate appearing for the Union of India, raised a preliminary objection on the basis of Section 52(b) of the Act which provides that all suits and proceedings in connection with the administration of the Capital shall be instituted by or against the Government of India. The objection raised by the learned counsel ignores the fact that the matter arises out of an order passed by the Tribunal before which the Government of NCT Delhi was impleaded as respondent No. 3 while the Union of India was impleaded as respondent No. 1. When the Union of India was also impleaded as a party and the appellant as another separate party and the order made by the Tribunal affects one of the parties, it is difficult to conceive as to why that party cannot file an appeal invoking the provisions of Article 136 of the Constitution which is a proceeding against the orders made by the courts and the Tribunals. The position in law is clear that though the Union Territories are centrally administered under the provisions of Article 239 of the Constitution, they do not become merged with the Central Government and they form part of no State and yet are the territories of the Union, as has been held by this Court in Satya Devi Bushahri v. Padam Dev, 1955(1) SCR 549 and NDMC v. State of Punjab, 1997(7) SCC 339 : 1997(4) Supreme 90. Thus, it must be held that the Union Territory does not entirely lose its existence as an entity though large control is exercised by Union of India. In this view of the matter, we do not think the preliminary objection raised on behalf of the respondents by Shri Malhotra is justified and the same is rejected. (Para 8)

       Whatever may have been the position prior to the coming into force of the Delhi Administration Accounts Service Rules, 1982 (hereinafter referred to as the Rules ], from the date of the coming into force of these Rules, they govern the Delhi Administration Accounts Service. Rule 3 of the Rules provides that on or from the date of commencement of the Rules, there shall be constituted a Central Civil Service to be known as the Delhi Administration Accounts Service . The Tribunal has been carried away by the fact that what has been constituted is the Central Civil Service and, therefore, it is entirely under the control of the Central Government ignoring for a moment other part of the rule, namely, that out of the Central Civil Service, Delhi Administration Accounts Service is segregated. If under the Rules, there is a separate cadre constituted, the Rules will hold the field whether it is the Government of NCT Delhi which is applying the Rules or the Central Government in exercise of its power in the matter of administration of the NCT Delhi. When the Rules hold the field, the rules will have to be applied. Therefore, if the rules are applied, it becomes clear that under Rule 5, the initial constitution of service is indicated and as to who become absorbed in the services of the Delhi Administration Accounts Service and who are absorbed thereto is also indicated and subject to what conditions. Rule 7 of the Rules provides for method of recruitment to Grade I and II of the Service and proportion is fixed by transfer on deputation of officers holding equivalent posts in the departmentalised accounts organisation or Ministries and Deparments of Government of India and from the Indian Audit and Accounts Departments or by promotion from officers of the Grade I of the Delhi Subordinate Service who have passed the SAS examination and recruitment to Grade II will have to be made by promotion from Grade II officers of Subordinate Service who have passed SAS examination which, however, will not preclude the Administration from filling any vacancy by deputation of the qualified officers of the Audit Department or from the office of the Controller General of Accounts in accordance with the orders of the Central Government issued from time to time. The question for consideration is whether it is open to the Government of NCT Delhi to ask for repatriation of those who have been sent on deputation and when all appointments in the Service will have to be made on the basis of the lists prepared in accordance with Rules 5 and 7 of the Rules and not against any specified posts included in the Service and thereafter the appointing authority will allocate the persons borne on the lists to various offices of the Administration. It is also made clear that where the exigencies of the situation so demand the appointing authority may, for reasons to be recorded in writing, appoint a person holding analogous or similar posts under the Central Government or a State Government on deputation for a period of not exceeding three years. Again for duty posts which is of purely temporary in character or a permanent post which is declared to be such post, a local arrangement could be made but for a period not exceeding six months from officers who are eligible for inclusion in the list under Rule 11 or Rule 15. Therefore, what is required to be seen is when rules have been framed under Article 309 of the Constitution after obtaining approval of the Union of India and in accordance with those rules appointments have to be made to various posts, it is difficult for us to comprehend as to how the Central Government could act contrary to those rules which have been specifically made in respect of Delhi Administration Accounts Service. (Para 9)

       Held further : The Tribunal also in fact noticed that the stand of the Union of India is not appropriate having allowed the establishment of the Delhi Administration Accounts Service as far back as in 1982 and also allowed setting up of the PWD of the NCT Delhi and applicants who are not admittedly part of the Delhi Administration Accounts Service should have decided whether these applicants should be absorbed in the Delhi Administration Accounts Service or not and appropriate decision on that aspect should have been taken which would have resolved the problem once for all. Though the Tribunal came to the conclusion that the appellant did not have the competence to issue the impugned order for repatriation they did comment upon the merit of the matter, which, we think in the circumstances of the case, is justified. (Para 11)

       Held finally : In the result, we set aside the order made by the Tribunal and direct respondent No. 8 to take appropriate steps to give effect to the proposal made by the appellants or to take steps for absorption in Delhi Administration Accounts Service as indicated by the Tribunal to which we have adverted to above. Let such action be taken within three months from today. The appeals stand allowed accordingly. No costs. (Paras 13 & 14)