Dr. K.B Suresh, Member (J):— The applicants as servants of the Government and while working in the Department of Posts could secure a better opportunity in the year 2007 for appointment as Senior Accountants on deputation basis in the Department of Telecommunications (DOT), for which they applied through proper channel and were selected initially for one year and this has been extended from time to time. This extension has also the consent of the parent department.
2. It would appear that on 12.8.2009 the DOT had issued Notification for appointment on permanent absorption basis of Group ‘C’ deputationist as one time measure and invited willingness. On 26.8.2009, the applications of the applicants were forwarded by the DOT to the CPMG Delhi Circle, New Delhi requesting for the following information relating to certification that there is no vigilance case pending or contemplated, certification that during the last 10 years no penalty has been imposed and copies of ACRs for the last 5 years. But it would appear that vide letter dated 9.10.2009, the CPMG Delhi Circle, New Delhi informs that the competent authority has not recommended the case of the applicants.
3. On 23.10.2009, the applicants submitted the applications to the Director General, Department of Posts for consideration but apparently since no decision was communicated to them, they filed OA No. 13/2010 before this Tribunal, which was disposed of on 6.1.2010 with a direction to the respondents therein to look into their representations and pass a final speaking order. The applicants would allege that on 4.3.2010 respondent No. 1 had intimated to the CPMG Delhi Circle New Delhi that the applications of the applicants are not acceptable and the copy of the letter was given to the counsel for the applicants in the Court on 26.3.2010 when the MA No. 453/2010 of the respondents therein was taken up for consideration.
4. Challenging the said order, the applicants have now approached this Court and the Annexure A-2 is the concerned order. The focus of the order is available in paragraph 6 and the fulcrum of the inaction of the respondents seems to be their belief that the applicants are under qualified to hold the post of Senior Accountants, as they originally belonged to the Postal Assistant/Sorting Assistant cadre and have passed the test of PO/RMS Accountants. They feel that the applicants are neither holding the analogous post on regular basis, nor the post of UDC/Jr. Accountant/Auditor. It would further say that the mere posting as Senior Accountants in DOT on deputation basis does not confer any right on them for their appointment as Senior Accountants in DOT on permanent absorption basis. Therefore, it seems to have been held that the applicants being under qualified may not be appointed by the DOT on a permanent basis as Senior Accountants.
5. A detailed counter affidavit also was filed by respondents 1 & 2 focusing on the above paragraph 6 but in paragraph 4.6, a new ground seems to be taken by the parent department to the effect that only a small fraction of PAs/SAs appear and clear Accountants examination and as the applicants seem to have passed that examination, their services would be needed in the postal department and, therefore, the applicants' contention that the parent department will not be affected adversely is not correct. They would say that unless the parent department gives an ‘NOC’, the borrowing department cannot permanently absorb the deputationist. They would again reiterate the stand that the applicants are not eligible, as they are under qualified to be appointed on regular basis as Senior Accountants. Thus, on this twin ground, the parent department processed the claim of the applicants.
6. Respondent Nos. 3 & 4, on the other hand, would contend that they are in no way involved in the matter and they have hundred of vacancies to be filled up all over the India and because of pendency of this matter, their functions are being jeopardized. They would say that they have no intention of involving themselves in the internal matters of the Postal Department.
7. But the applicants would contend in a rejoinder that they were in fact working as Accountants when they applied for transfer on deputation basis as Senior Accountants through proper channel. This, they would say, is an evident from Annexure A-5 and Annexure A-6 dated 20.7.2007 and 23.7.2007 respectively. They would say that if their services are required now, then initially also they would not have been spared. They would also say that a number of officers in the Department of Posts had submitted their applications for permanent absorption in the DOT. The officials of office of the Directors of Postal Accounts Maharashra Circle Nagpur and those of Ambala were cited as an example and they would give details of persons, who had been recommended for absorption, especially Ms. Dropadi Sharma, PO and RMS Accountant of Delhi Postal Circle vide their letter dated 15.2.2010 and, therefore, they would say that they are being discriminated negatively, which attracts the composite effect of Articles 14 and 16 of the Constitution of India. They would further say that if the others like them had been given an opportunity of betterment of career prospects, there is no reason why they alone should be singled out in denial. They would also stress that vide the letter No. 60-9/2010-SPB-I dated 22.7.2010 directions have been issued that the direct recruitment vacancies of Sorting Assistants and Postal Assistants of the year 2009 and existing as well as from anticipated vacancies of the year 2010 should be filled up by direct recruitment as per the existing instructions issued vide the letter dated 10.11.2004 It was also apparently directed to ensure that the recruitment is finalized and results declared by 16.12.2010 Therefore, they would say that there is no reason to think that the Department should suffer in any way by their departure.
8. Therefore, the concerned issue is that what would be the rights of the employer, qua the employee in a democratic polity of ensuring personal service especially in the light of Constitutional mandate of universal self employment a policy of State.
9. The work of sovereign state is divided and sub-divided for the purpose of effective administration in the various Ministries and Departments. The streams of career progression of such workmen are also governed within the parameters of the respective Departments and Ministries mainly to ensure that specific nature of each department is protected and effectively channelized but that does not mean that each department serves as an Empire in itself. All the Departments/offices are primarily offices of the state. With regard to the Accountants, their working, minus certain specific features special to each department, would be almost identical. By seeking deputation, the Telecom Department has agreed that these persons would fit their bill. By agreeing with the department initially and by regular extension the parent department had also agreed that its people would suit the purpose of Telecom Department as Accountants. They have worked in that capacity for almost 3 years, so at this juncture there is no point in agitating that they may be under qualified or the Regulations do not allow them to be Senior Accountants. By the process of election, the parent department has lost the opportunity of pointing out the inadequacy of the applicants at the initial stage itself, especially since they were all along working as Accountants and they passed the required test and the only situation, which is pointed out is that they are now working as Senior Accountants. Fully knowing that they were working as Accountants, their services are spared by the parent department and, therefore, this issue is not available to the parent department to agitate once again.
10. Moreover, it is for the borrowing department to determine whether the deputation would suit their requirement or not and if they are satisfied on this account, it need not worry the parent department in any way.
11. Coming to the new contention that their services might be required, no data is made available. The fact remains that these people were lent when the fact situation of administration in Postal Department was the same then and now and if they could be spared then they can be spared now also. If an intervening event has caused a serious depletion in the staff strength of the parent department, which would require immediate recall of the deputationist, it must be well within the knowledge of the department and must be manifestly demonstrated. Even by pleading such factors are not available. Adding to the clouds of suspicion in this regard is the fact that in several other Circles, several other persons were relieved for absorption in the Telecom Department. The names of such persons were also provided for the Department to counter, which has not been replied to. Therefore, if the similarly situated persons could be spared, there is no reason why the career progression should be denied to the applicants, especially when the career progression is a part of constitutional mandate.
12. Article 37 of the Constitution of India makes it clear that the provisions of the Directive Principles of State Policy shall not be enforceable by any Court but the Hon'ble Apex Court has conclusively held that the Directive Principles of State Policy shall be the guiding light of the state policy. This has enabled the Court not only to administer negative corrections to the governmental action but also to promote the state policy. In Shri Sachidanand Pandey v. The State of W.B, reported in (1987) 2 SCC 295 : AIR 1987 SC 1109, the Hon'ble Apex Court has held that the Court is competent to give directions on the implementation of the measures for the disruption of natural ecological balances. The Court had given due regard to the relevant portion of the Directive Principles in this case Article 48 A of the Constitution. The Hon'ble Apex Court in Unni Krishnan J.P v. State of A.P, reported in (1993) 1 SCC 645 : AIR 1993 SC 2178 has found new parameters for the fundamental right and finding that other than explicit provisions, the fundamental rights were provided by implicit rights as well.
13. Thus taken in this aspect, what are the rights of the applicant? How can it be harmonized with right of the employer to have continued service elsewhere and so how to adjudicate on the substance of the issue? Here, apparently, the substance of the issue is that the parent department has the right to hold on to the service of its own employee and the rights of career progression, which are available to the employee as a constitutional mandate. What will be combined effect if the state agency selectively allows the career progression to one group of its own employees without any specific policy available for that and denied to others and by an extension, how far can a state agency require that its employees continue within its fold and what will be the further effect of such compulsion given the prohibition of human bondage. For that doubt, the selective discrimination shown to some employees in equivalence and requirement would defeat the whole exercise. If without rationale and logic one set of employees can be relieved, then it follows that the other set of employees in similar circumstances are also entitled to equal treatment. While the state agency has a right to insist that an employee with it can seek a better prospect elsewhere only with its permission has a certain level of acceptability but the probity of such decisions must be demonstratively clear. By granting the same relief to the others, the same agency had demonstrated that its employees can thus be spared. Specific detail of an organized staff pattern of the parent department is clearly mentioned in the rejoinder and has thus become part of the pleadings, which has not been negated by the respondents. Therefore, the second limb of the objection does not seem to hold good.
14. Thus, the doctrine of reasonableness appears to be a victim in the whole process. In Deputy Director of Consolidation, Azamgarh v. Deen Bandhu Rai, reported in AIR 1965 SC 484, the Hon'ble Apex Court has held that the state action must be provided by reasons germane and pertinent and in the absence of the same the process of decision-making by the authorities was liable to be struck down.
15. Administrative policies may change with the changing circumstances but any reasonable expectation that may have been aroused in government employee is to be protected. The Hon'ble Apex Court has conclusively held that the argument that authorities can depart from policies under any circumstances has to be disallowed, as it has introduced certain measures of uncertainty. Thus, the twin ground of objection by the respondents will not hold good in the eyes of law.
16. The OA is, therefore, allowed with the following directions:
Annexure A-1 and Annexure A-2 are quashed.
Respondent Nos. 1 & 2 are directed to forward the applications of the applicants along with the ‘NOC’ and other required documents and certificates as required of them vide the letter of respondent Nos. 3 & 4 dated 26.8.2009, within a period of two months next.
Thereafter respondent Nos. 3 & 4 to consider the case of the applicants for absorption on permanent basis against the post on which they had already been working on deputation by relaxing the last date fixed for the purpose.
They are further directed to fulfill all the formalities of technical resignation in compliance to the extant rules within one month from the date of receipt of such documents from respondent Nos. 1 & 2.
No costs.