Union of India vs Ashwani Kumar - 2023 Supreme(Del) 2988

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Del) 2988

IN THE HIGH COURT OF DELHI AT NEW DELHI
V. Kameswar Rao, Anoop Kumar Mendiratta, JJ.
Union of India – Appellant
Versus
Ashwani Kumar – Respondent
W.P.(C) 3737 of 2015
Decided On : 27-07-2023

Advocates appeared:
Mr. Harish Vaidyanathan Shankar, CGSC with Mr. Srish Kumar Mishra, Mr. Sagar Mehlawat and Mr. Alexander Mathai Paikaday, Advocates, for UOI.
Mr. R.K. Saini and Ms. Sunita Shukla, Advocates, for R-1.
Mr. Aishwary Bajpai and Mr. Soumyajit Pani, Advocates, for R-2 to R-5.

Headnote:
Deputation - Eligibility for Promotion - Recruitment Rules - [Deputation, Eligibility for Promotion, Recruitment Rules] - The court discussed the eligibility criteria for promotion from Joint Deputy Director (IA) to the post of Deputy Director (IA) and the interpretation of 'regular service' as per the Recruitment Rules. The court held that the period of deputation cannot be counted as regular service for the purpose of eligibility for promotion to the higher post of Deputy Director (IA). The judgment emphasized the distinction between regular service and service on deputation, and the concept of deputation as temporary service outside the cadre/department.
Fact of the Case:

The respondent, while serving in the Indian Army, came on deputation with the petitioner as Joint Deputy Director (IA) from October 4, 2004, to April 30, 2007. The petitioner rejected the respondent's representation for counting the deputation period for the purpose of eligibility for promotion to the post of Deputy Director (IA). The Tribunal allowed the respondent's Original Application, directing the petitioner to count the deputation period as regular service for eligibility for promotion.
Finding of the Court:

The court found that the period of deputation cannot be considered as regular service for the purpose of eligibility for promotion to the post of Deputy Director (IA) as per the Recruitment Rules. The court emphasized the distinction between regular service and service on deputation, and the concept of deputation as temporary service outside the cadre/department.
Issues: The main issue was whether the period of deputation could be counted as regular service for the purpose of eligibility for promotion to the post of Deputy Director (IA) as per the Recruitment Rules.
Ratio Decidendi: The court held that the period of deputation cannot be counted as regular service for the purpose of eligibility for promotion to the post of Deputy Director (IA) as per the Recruitment Rules. The judgment emphasized the distinction between regular service and service on deputation, and the concept of deputation as temporary service outside the cadre/department.
Final Decision: The court set aside the Tribunal's order and disposed of the writ petition, ruling that the period of deputation cannot be considered as regular service for the purpose of eligibility for promotion to the post of Deputy Director (IA) as per the Recruitment Rules.

JUDGMENT

V. Kameswar Rao, J. (Oral)

1. This writ petition has been filed by the Union of India challenging the order dated November 28, 2014, passed by the Central Administrative Tribunal, Principal Bench, New Delhi (`Tribunal', for short) in Original Application No.4273/2013 (`OA', for short) whereby the Tribunal has allowed the OA filed by the respondent herein by stating as under:

"20. Based on the aforesaid reasons and in the light of the judgments, referred to above, we are of the view that the OA is fit to be allowed. The services rendered by the applicant on deputation basis as JDD (IA) from 04.10.2004 to 30.04.2007 shall be counted for the purpose of qualifying service for the next promotional post of Deputy Director (IA) as per the reliefs sought by the applicant in this OA. The impugned order dated 13.11.2013, therefore not being fit to be sustained is accordingly quashed and set aside."

2. The challenge before the Tribunal was to a memorandum dated November 13, 2013 passed by the petitioner herein rejecting the representation made by the respondent herein for counting the respondent's deputation period as Joint Deputy Director (IA) [`JDD (IA)', for short] between October 4, 2004 to April 30, 2007, for the purpose of eligibility for promotion to the post of Deputy Director (IA) (`DD (IA)', for short).

3. The facts as noted from the record are that the respondent was serving in the Indian Army and came on deputation with the petitioner as JDD (IA) w.e.f. October 4, 2004, initially for a period of two years which was later extended by one more year till October 3, 2007. In the meantime, the petitioner made a request for premature retirement from the Army. The request was allowed and he was relieved from service w.e.f April 30, 2007. In the meantime, the respondent had applied for re-employment on the post of JDD (IA) or any suitable post under the petitioner vide his application dated February 12/22, 2007. The respondent was offered a lower post of Assistant Director (IA) (`AD (IA)', in the pay scale of Rs.10000-15200/- vide Memorandum dated April 20, 2007. The respondent continued to work as AD (IA) on probation with the petitioner for two years and his services were confirmed w.e.f. April 01, 2009. He was also promoted to the post of JDD (IA) w.e.f. April 1, 2012.

4. The next promotional post for the petitioner is the post of DD (IA). The recruitment rules contemplate the essential requirements for promotion from JDD (IA) to the post of DD (IA), is as under:

"(a) He should have served in scale of Rs.15500-39100 plus grade Rs.7600 with 5 years of regular service in the grade.

(b) Ninety percent by promotion failing which by deputation/absorption/reemployment, (Ten percent by deputation/absorption/reemployment)."

5. The respondent's case before the petitioner was that, he would be completing five years of regular service in July 2014, by taking his past service of two years and seven months into account when he was on deputation with the petitioner i.e., between October 4, 2004 to April 30, 2007, which is the eligibility criteria for promotion to the post of DD (IA). The respondent submitted his representation for counting the deputation period for the purpose of eligibility for promotion. The petitioner rejected the said representation vide memorandum dated November 13, 2013.

6. The case of the petitioner before the Tribunal was that, as per OMs dated May 29, 1986 and March 27, 2001 of the DoP&T, in cases where a person has been initially taken on deputation and later absorbed in consonance with the recruitment rules, his seniority in the grade in which he has been absorbed would normally be counted from the date of his absorption and also a person holding the same or equivalent grade on regular basis in the parent department is being absorbed, such regular service in the grade shall be taken into account in fixing his seniority subject to the stipulated conditions. The Tribunal decided the issue by stating in parag