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W.P.(C) 7894/2014
Date ofJudgement: 14.07.2015 SAMPATSINGHRATHORE Petitioner
Through : Mr. M. K. Bhardwaj, Advocate.
Through : Mr. Bhagwan Swamp, CGSC with Mr. Suyash Kumar, Advocate for respondent No.-l/UOI.
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL G. S. SISTANI, J. (ORAL)
JUDGMENT
1. Challenge in this Writ Petition is to the order dated 13.10.2014 passed by the Central Administrative Tribunal (CAT) in OA (No. 2685/2014) filed by the petitioner herein. 2, The fact of the case as set out in this Writ Petition are that the Pay and Accounts Department (PAD) / Controller General of Accounts (CGA), Border Security Force (BSF) having suffered a shortage of clerical and accounts staff initiated process for filling up available vacancies of LDCs/Accountants/Senior Accountants and others in the PAD Division by calling eligible officials serving in the BSF as Constable, Sub-Inspector etc. The petitioner also forwarded himself as eligible for appointment as a LDC on deputation/attachment.
3. It is the stand ofthe petitioner that respondent appointed him as the LDC in the PAD Division. It is also a case ofthe petitioner that his appointment as LDC was treated on attachment. Learned counsel for the petitioner submits that as many as 200 personnel were appointed by the respondents as LDCs. The said personnel was also serving as Constable like the petitioner in the BSF. The appointments were made in the PAD Division considering the requirement and in public interest. Strong reliance has been placed on a policy decision taken in the meeting held on 24.09.2009 for integration of PAD, BSF with Department of Accounting Organisation of the Ministry of Home Affairs (MHA). It was also decided that all the personnel working in PAD, BSF would be considered into Central Civil Accounts Services (CCAS), if they were willing and found eligible. The relevant paragraph of the minutes ofthe meeting held on 24.09.2009 reads as under: "e. For functional excellence, smooth cadre management and improved career prospects, all the PAOs/PADs would have staff from the Civil Accounts Cadre managed by the Controller General ofaccountsfor having specialized accounting manpower for discharging the accounting, payment and internal auditfunctions. This would befor all the PAOs/PADs."
4. As per the decision arrived at, the respondents vide UO No. PAD/GA/3-978/BSF/09/6224-6252 dated 02.12.2009 invited willingness from the eligible officials including the petitioner herein for absorption/encadrement in the Central Civil Accounts Service. It is also the case of the petitioner that the petitioner has submitted his willingness for his absorption, however, instead of passing proper orders of absorption, the respondent initiated the
5. It is contended that although the petitioner was found eligible but no orders were passed. The respondent acted in a discriminatory manner and vide order dated 11.02.2011, similar situated persons were absorbed. Meanwhile, the Principal Accounts Office, Ministry ofHome Affairs issued another letter dated 29.08.2011 and circular dated 05.02.2011 for induction/absorption of remaining Constable/Head Constable of BSF including the petitioner. Copy of letter dated 29.05.2011 and circular dated 05.02.2011 have also been filed with this petition.
6. The case of the petitioner was not considered instead a movement letter dated 01.08.2012 by which two LDCs were directed to join their parents department, was issued. A representation was made to Chief Controller of Accounts, who addressed the letter dated 01.08.2012 to respondent No. 4 for not taking action of repatriation till the case of the petitioner was finalized. Copy of the said letter has also been annexed along with this petition.
7. It also stand ofthe petitioner that in terms ofthe aforesaid decision, the PAD Division cancelled the aforesaid relieving/movement
8. Mr. Bhardwaj, learned counsel for the petitioner contends that the Tribunal has failed to take into consideration the communication dated 26.08.2013 wherein the case of the petitioner was recommended. It is also contended that the Tribunal has completely misread the eligibility criteria as there was no pre condition that only those persons who are on deputation in PAD would be absorbed. The respondents failed to take into consideration the criteria as per their own letter dated 21.08.2012 and 26.08.2013.
9. Mr. Bhardwaj further contended that the respondents cannot take shelter by simply submitting that since the other persons were wrongly absorbed the petitioner cannot take advantage of the said mistake. It is fiirther contended that all persons have been absorbed except the petitioner herein on flimsy ground.
10. On the other hand, Mr. Bhagwan Swamp, learned counsel for the respondents submits that petitioner has not been absorbed as he was not found to be eligible. It is contended that the petitioner was neither a deputationist nor he was a regular employee nor any attachment order was passed in favour of the petitioner, in fact the petitioner was working temporarily and thus he cannot gain any advantage in terms of letter dated 21.08.2012 which lays downthe eligibility criteria. It is contended that the Central Administrative Tribunal (CAT) has rightly reached the conclusion and dismissed the OA ofthe petitioner.
11. We have heard the learned counsel for the parties and have given our thoughtful consideration to the matter.
12. Since, the entire controversy subject matter of the present Writ Petition reveals around the communication dated 21.08.2012 addressed to the Controller of Accounts and which is relied upon by counsel for both the parties, we deem it appropriate to reproduce the same, which is as under: 1"August, 2012 Dear Sir, I would like to draw your attention to the D.O. No. F- 60011/41/12-Staff/BSF/9844 dated 26^^ July, 2012, written by Special Director General to Director (Accounts), BSF, regarding relieve ofseven staffworking in PAD, BSF and DIG (Estt) U.O. No.F-60011/35/PAD/05-Staff/BSF/9804-05 dated 24'^ July, 2012 regarding three personnel of BSF attached with lAP, BSF Gujarat.
2. You may like to recall that Government had taken a policy decision after detailed deliberations in the meeting held on 24*^ September, 2009. The policy decision, inter-alia, warranted integration of the PAD (BSF) with the Department Accounting Organization ofthe MHA. It was also decided that all personnel working in PAD, BSF would be considered for absorption into
Subject: Abosrption /encadrement in CCAS Cadre It is intimated that Shri Sampat Singh Rathore, Constable has submitted an application regarding absorption/encadrement in CCAS Cadre.
2. Presently he is on deputation with this office as LDC and statins that he was attached since year 2006 and submitted the willinsness on 22/04/2010 (photocopy attached for ready reference) for absorption into CCAS Cadre as LDC. His name was left out due to his temporary attachment in PAD BSF (MHA) by local Battalion. But he was drawins Pay and Allowance from PAD BSF w.e.f 1^' April. 2010.
3. In this context, Pr. AO (Admn) vide DO No. CCA/ System Group/Misc/CGA/2011-12 dated 01/08/2012 has intimated that thefollowing criteria who havefull-fill may consider the encadrement:-
(i) their willingness
(ii) their assignment in PAD, BSF as on 24"'
(iv) existence of posts at the appropriate level and
(v) their being considered eligible.
4. Shri Sampat Sinsh Rathore is full-fill the above criteria.
5. in view ofabove, his application dulyrecommended is forwarded herewith on the above srounds for further necessary action.
6. This is issued with approval ofDirector (A/Cs). Yoursfaithfully, (Sher Singh) Assistant Accounts Officer PADBAF(MHA) End.: as above. " Dated, the 13'^ September, 2013 To, ThePr. AO (Admn) (MHA) " North Block, Room No. 217, New Delhi. Subject: Absorption ofShri Sampat Singh Rathore into CCAS Cadre reg.
Is Sir, Please refer to your letter No. CCA/Sys- GP/Misc/CGA/2013-14/1413 dated S"' September, 2013 on the subject matter.
2. In reference to para (2) of this office letter dated 26"' August, 2013, itis clarified that Constable Shri Samvat Sinsh Rathore was workins in this office since year 2006 to June, 2011 on attachment basis and thereafter five BSF officials including him have been taken on deputation vide FHO BSF (Pers) letter No. 11415-30 dated 5/5/2011 and letter No. 11433-42 dated 24"^ June, 2011 (copy enclosed for ready reference).
3. It has, also clarified that while he was working on attachment basis submitted the willingness on 22/04/2010 (photocopy attached for ready reference) for absorption into CCAS Cadre as LDC. But, his name was not forwarded to Pr. AO (Admn) MHA since he was attached by local Battalion not by the FHQ, BSF. Whereas he was drawing Payfrom PAD, BSFsince f April, 2010 (Pay slip is attachedfor ready reference).
4. It is pertinent to mention here that name of following five BSF personnel who were also attached by local battalions /SHQ/Frontiers in PAD BSF (MHA) / lAP BSF (MHA) have recently been encadered into CCAS Cadre vide Pr. AO (Admn)
MHA OM No. 153/2013 dated 31.07.2013:i) Shri Praveen Saini, Constable. ii) Shri Subodh Kumar, Constable. Hi) Shri Beev Sing, Constable. iv) Shri Rajiv Pote, ASI (M) v) Shri Norang Lai, ASI (M)
5. Shri Sampt Singh Rathore is similar to above five BSF Officials, therefore, his name may also be considered for absorption into CCAS Cadre being left out case.
6. This is issue with approval ofDirector (A/Cs). Yoursfaithfully, (Sher Singh) Assistant Accounts Officer PAD BSF (MHA)"
13. It may also be noticed that it has not been disputed that the petitioner has been paid by BSF since the year 2006 but the controversy between the parties is with regard to his status. The
14. Taking into consideration the criteria as laid down in the communication dated 01.08.2012 reproduced in para 12 above and the contents of two letters dated 26.05.2012 and 13.09.2013 and the fact that similarly situated persons have been absorbed, the petitioner must succeed. Writ Petition is allowed. Rule is made absolute. Impugned order dated 13.10.2014 is quashed. Respondent will pass an appropriate order of absorption of the petitioner within a period of six weeks from today. G.S.SISTANI, SANGIJ IRA SEHGAL, J. JULY 14,2015 gr