Sabu C.M & Others vs Union Of India & Others

P. Madhavan, Member J

The applicants have filed the OAs seeking the following reliefs:

O.A No. 180/00139/2022

“i) Declare that the applicant is entitled to be considered for promotion as Senior Accountant w.e.f. 1.4.2016 duly taking into consideration the law laid down by this Hon’ble Tribunal in OA No. 154/2017 confirmed by the Hon’ble High Court of Kerala in OP (CAT) No. 237/2018 and direct the respondents accordingly;

ii) Direct the respondents to consider the applicant for promotion as Senior Accountant in Level 6 of the Pay Matrix w.e.f. 1.4.2016 duly reckoning the service rendered by the applicant on deputation basis as regular service and direct further to grant the consequential benefits thereof;

iii) Award costs of and incidental to this application;

iv) Pass such other orders or directions as deemed just fit and necessary in the facts and circumstances of the case.”

O.A No. 180/00140/2022

“i) Declare that the applicant is entitled to be considered for promotion as Senior Accountant w.e.f. 1.4.2011 duly taking into consideration the law laid down by this Hon’ble Tribunal in OA No. 154/2017 confirmed by the Hon’ble High Court of Kerala in OP (CAT) No. 237/2018 and direct the respondents accordingly;

ii) Direct the respondents to consider the applicant for promotion as Senior Accountant in Level 6 of the Pay Matrix w.e.f. 1.4.2011 duly reckoning the service rendered by the applicant on deputation basis as regular service and direct further to grant the consequential benefits thereof;

iii) Award costs of and incidental to this application;

iv) Pass such other orders or directions as deemed just fit and necessary in the facts and circumstances of the case.”

O.A No. 180/00141/2022

“i) Declare that the applicant is entitled to be considered for promotion as Senior Accountant w.e.f. 1.1.2011 duly taking into consideration the law laid down by this Hon’ble Tribunal in OA No. 154/2017 confirmed by the Hon’ble High Court of Kerala in OP (CAT) No. 237/2018 and direct the respondents accordingly;

ii) Direct the respondents to consider the applicant for promotion as Senior Accountant in Level 6 of the Pay Matrix w.e.f. 1.1.2011 duly reckoning the service rendered by the applicant on deputation basis as regular service and direct further to grant the consequential benefits thereof;

iii) Award costs of and incidental to this application;

iv) Pass such other orders or directions as deemed just fit and necessary in the facts and circumstances of the case.”

All these cases arise out of the question whether services on deputation will be considered as regular service for promotion or not? For the sake of convenience the facts of OA No. 180/139/2022 is taken as the leading one.

The applicant is presently working as Senior Accountant in Level-6 pay matrix. He is aggrieved by the refusal on the part of the respondents to grant him the benefit of order of the Tribunal in OA No. 154 of 2017 confirmed by the Hon’ble High Court in OP (CAT) No. 237 of 2018 and further grant him the benefits of promotion as Senior Accountant with effect from 1.4.2016.

According to the applicant in this case, he commenced the service as Lower Division Clerk in Kendriya Vidhyalaya Sangathan (KVS) on 16.8.1991. While working so he applied for the post of Accountant under the Principal Chief Controller of Accounts, Central Board of Excise & Customs, New Delhi on the basis of notification issued on 12.11.2010. The Employment News in which the notification is published is produced as Annexure A1. The applicant got qualified in the recruitment process and he was issued with an order of appointment as per order dated 13.4.2011 (Annexure A2). The said appointment was on deputation basis and after obtaining no-objection from the parent organization i.e. KVS. He joined the new post of Accountant on deputation with effect from 1.6.2011. On 19.1.2005 the respondents had absorbed him on regular basis in the office of Pay and Accounts Officer as per order dated 22.1.2015. The said order is produced as Annexure A3. The applicant thereafter got qualified in the confirmatory examination held during the month of December, 2015 for getting promotion to the post of Senior Accountant. The applicant was promoted as Senior Accountant on 1.4.2018. The applicant was absorbed in the service on the basis of Annexure A4 Recruitment Rules. The next promotion in the hierarchy as per Recruitment Rules is to the post of Senior Accountant. The said post is filled up 100% by promotion. The promotion has to be conducted from among the Accountants with three years regular service and who have qualified the confirmatory examination. Such promotions are to be made from a common seniority list of all Accountants on the basis of seniority-cum-fitness as per procedure laid down in Annexure A4. Despite of existence of vacancies in the common cadre of Senior Accountants, the respondents have not considered the applicant and did not promote him in the cadre from 1.4.2016. The main objection of the respondents was that the service rendered on deputation basis cannot be treated as regular service. One C.S. Prem, who was appointed as Accountant on deputation basis along with the applicant and later appointed on regular basis had approached this Tribunal by filing OA No. 154 of 2017 praying for a declaration that he is entitled to be considered for promotion as Senior Accountant for the vacancy years 2016-17 and 2017-18 and also for a direction to the respondents in this regard. The said C.S. Prem had also prayed for a direction to the respondents to consider his case after convening a review DPC with all consequential benefits. The said OA was allowed by this Tribunal by a detailed and considered order on 31.1.2018. The said order is produced as Annexure A5. As per the said judgment the period served on deputation basis by the applicant was to be treated as a regular service for the purpose of promotion to the post of Senior Accountant. The said order of the Tribunal was challenged by the official respondents before the Hon’ble High Court of Kerala by filing OP (CAT) No. 237 of 2018. The said OP (CAT) was dismissed on 5.3.2021 confirming the order of the Tribunal and directing the respondents to grant promotion within the outer time limit of six weeks from the date of receipt of the order. The judgment of the Hon’ble High Court is produced as Annexure A6. The respondents had thereafter implemented the order of the Tribunal and Hon’ble High Court and granted the benefit of promotion as per order dated 9.9.2021 (Annexure A7). Subsequent to the said order respondents had also issued office order dated 10.9.2021 promoting the applicant Shri C.S. Prem as Senior Accountant with retrospective effect from 1.4.2016. The said order is produced as Annexure A8. As per the said judgment the service rendered on deputation basis followed by regular absorption has to be considered as regular service for promotion. The applicant is also a person identically situated as he was initially appointed on deputation and thereafter was regularized. The applicant had given a representation to the 2nd respondent to give the benefit of the judgment in OA No. 154 of 2017 by convening a review DPC. According to the applicant himself Shri C.S. Prem in OA No. 154 of 2017 is identically situated for all material purposes. So he is also entitled to be considered for promotion as Senior Accountant with effect from 1.4.2016 which was granted to the applicant Shri Prem in OA No. 154 of 2017. The rejection of his request is arbitrary, discriminatory and against law.

The respondents appeared through their counsel Shri Thomas Mathew Nellimoottil, Sr. PCGC and both sides were heard.

The counsel for the respondents Shri Thomas Mathew Nellimoottil, Sr. PCGC in OA No. 180/139/2022 admitted that there is a judgment in favour of the applicant as OA No. 154 of 2017 which was confirmed by the Hon’ble High Court in OP (CAT) No. 237 of 2018. According to the respondents they are aggrieved by the said judgment and they had referred the matter to the Law Department for considering whether an SLP can be filed or not. The said decision is not yet taken.

On a perusal of the pleadings and judgment produced in this case, it appears that the applicant is also similarly placed and he also came on deputation and later absorbed in to the Department in the year 2015. The respondents in this case has not considered the deputation period as regular service. As per the decision of the Tribunal in OA No. 154 of 2017 and confirmed by the Hon’ble High Court judgment in OP (CAT) No. 237 of 2018, the said period has to be treated as regular service. The same principle is applicable to the case of the applicant here also. All the three applicants in these cases were on deputation in the initial stage and thereafter absorbed and confirmed in service later. Their regular service has to be treated with effect from 1.4.2016. The respondents have rejected the representation given by the applicant in this regard. We find that the applicants are also entitled to get the benefits of OA No. 154 of 2017 and the judgment of the Hon’ble High Court in OP (CAT) No. 237 of 2018.

In the result the respondents are directed to consider the case of all the applicants in these cases in the light of the judgment referred to above and consider grant of promotion treating the deputation service also as regular service. The Original Applications are disposed of. No order as to costs.