Union of India (Uoi) and ors. Vs. Sushma Jain - Court Judgment

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service - appointment - respondent was the joint secretary and legislative counsel in the official languages wing of the legislative department - she was appointed on deputation - respondent filed petition on the ground that she was not considered for the post of additional secretary - petition was decided by the tribunal in the respondent's favor - hence, the present petition - tribunal viewed that after appointment on deputation as per rules, respondent had to be considered as member of legal services - however, unless the claim for absorption was based upon statutory rules, regulations or order, petitioner could not assert and succeed in any such claim - rule 6a permits appointment to duty post by deputation and rule 4(d) defines the member of indian legal service to include person appointed to duty post - appointments not to be disturbed - petition dismissed - - rule 6(a) in the present case in fact on the contrary clearly stipulates the appointment to the service on a duty post while on deputation. it is well settled that unless the claim of the deputationist for a permanent absorption in the department where he works on deputation is based upon any statutory rule, regulation or order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. a degree is must and essential and that there could be no comparison of the claim of such a person with one to be dealt with on promotion of a candidate who is already in service in that department is well merited and deserves to be sustained and we see no infirmity whatsoever in the said claim. in the present case a reading of rule 6a clearly permits appointment to the duty post by deputation and the rule 4(d) defines the member of the indian legal service to include a person appointed to a duty post.mukul mudgal, j.1. rule db was issued in the writ petition on 19th february, 2003. with the consent of the learned counsel for the parties, the writ petition is taken up for final hearing.2. this writ petition challenges the judgment dated 25th april, 2001 of the central administrative tribunal (in short 'cat') in oa no. 1381/2000 by which the writ petition preferred by the petitioner was allowed and the petitioner's action in not according her consideration to the post addl. secretary in the ministry of law was struck down. being aggrieved by the action of the respondents of not considering the respondent for the appointment to the post of additional secretary in the ministry of law, an oa was filed by the respondent before the cat. the main plea of the respondent is that she was a member of indian legal services and she should have been considered for the above post. the petitioner union of india's case is that since the respondent herein was merely a deputationist, she did not have any right to be considered as a member of the indian legal services. this plea of the petitioner was negated by the cat in the impugned judgment by relying on the interpretation of the relevant rules.3. the indian legal services rules, 1957 has the following relevant statutory provisions:-2. definitions : in these rules,-.(c) 'duty post' means any post in the ministry of law whether permanent or temporary of a category specified in columns 4 and 7 of the first schedule;.4. members of the service :.(d) persons appointed to duty posts after the commencement of the central legal service (second amendment) rules, 1963 from the date they are so appointed. .6-a. filling up duty posts by deputation notwithstanding anything contained in rule 6, where the central government is of the opinion that it is necessary or expedient so to do, it may fill a duty post in any grade by deputation of a government servant who is eligible for appointment to a post in that grade by direct recruitment under rule 7, for a period of three years, which may in special circumstances, be extended to five years as the central government may think fit. explanation : for the purposes of this rule, 'deputation' means appointment of a government servant by transfer on a temporary basis but does not include the appointment of a government servant either by promotion or by direct recruitment whether on a permanent or a temporary basis.4. by an order dated 26th may, 1998, the respondent who was working as joint secretary and legislative counsel in the official languages wing of legislative department, ministry of law & justice was appointed as joint secretary and legislative counsel (grade i of indian legal service) on transfer on deputation basis. the said order reads as follows:-notificationno. a.12025(i)/3/96 admn (ld) : the president is pleased to appoint smt. sushma jain, joint secretary and legislative counsel (hindi branch) in the official languages wing of legislative department, ministry of law & justice to officiate as as joint secretary & legislative counsel (grade i of indian legal service) on transfer on deputation basis for a period of 3 years with effect from the forenoon of 22nd may, 1998 in the legislative department of the said ministry.5. the members of the service in rule 4(d) has been defined as the persons appointed to the duty posts and rule 6-a contemplates that filling of duty posts by deputation. it is not in dispute that the respondent had filled up a duty post on deputation as is evident from the order dated 26th may, 1998 extracted above. in this view of the matter, the tribunal's view reflected a correct analysis of the rules that after the appointment on deputation as per the rules, the applicant/respondent herein had to be considered as the member of the legal services even if for a limited period of 3 to 5 years. 6. the learned additional solicitor general shri p.p. malhotra has relied on the judgment of the hon'ble supreme court in markandey singh i.p.s. and ors. v. m.l. bhanot i.p.s. and ors. : [1988]3scr847 , wherein it has been held as follows:-in this case, the appellant who was a deputationist before absorption in the state public police service could not be entitled to get such officiation. in case shri singh had not chosen to be absorbed in the delhi-himachal pradesh state police service and he had gone back to his parent state of u.p., then according to explanationn 2, u.p. state government might have issued the certificate to facilitate his promotion to the ips cadre of the u.p. state. but so long as shri singh remained a substantive member of the u.p. state police service, he could not possible be permitted to joint ips cadre of the union territories of delhi and himachal pradesh. in accordance with the rules, he became eligible to his promotion to the union territory ips cadre only after he had been absorbed in delhi-himachal pradesh police service. in our view, the above judgment deals the issue where an officer while on deputation in delhi and himachal pradesh police sought to join the ips cadre. it was held that in accordance with the rules he could become eligible to the promotion to the union territory ips cadre only after he had been absorbed in delhi-himachal pradesh police service. in our view there is no such rule in the present rules which prohibits such absorption in the indian legal service. rule 6(a) in the present case in fact on the contrary clearly stipulates the appointment to the service on a duty post while on deputation. 7. mr. malhotra further relied on the judgment of the hon'ble supreme court in barkrishna pandey v. state of bihar and ors. : (1997)iiillj116sc , wherein it was held as follows:-.it is settled that an employee on temporary promotion would continue to hold the lien in his substantive post until it is duly terminated. he cannot hold two substantive posts at the same time. once it is concluded that the appellant is a deputationist working in the directorate of sep, his name was rightly not shown in the seniority list of that department. thereforee, he continued to hold his lien and seniority as junior statistical supervisor in the present department. the above judgment is also not in applicable to the present case and deals with the issue of holding two substantive posts at the same time. in the present case the respondent was not even considered for the post of additional secretary and the question of holding two posts simultaneously is not an issue arising in the present case. accordingly, the above judgment is not applicable the facts of the present case. 8. mr. malhotra has further relied on the judgment of the hon'ble supreme court in kunal nanda v. union of india and anr. : (2000)5scc362 , wherein the following position of law in paragraph 6 was relied on, which reads as follows:-on the legal submissions also made there are no merits whatsoever. it is well settled that unless the claim of the deputationist for a permanent absorption in the department where he works on deputation is based upon any statutory rule, regulation or order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. the basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation. the reference to the decision reported in rameshwar prasad v. m.d., u.p. rajkiya nirman nigam ltd. is inappropriate since the consideration therein was in the light of the statutory rules for absorption and the scope of those rules. the claim that he need not be a graduate for absorption and being a service candidate, on completing service of 10 years he is exempt from the requirement of possessing a degree needs mention, only to be rejected. the stand of the respondent department that the absorption of a deputationist being one against the direct quota, the possession of basic educational qualification prescribed for direct recruitment i.e. a degree is must and essential and that there could be no comparison of the claim of such a person with one to be dealt with on promotion of a candidate who is already in service in that department is well merited and deserves to be sustained and we see no infirmity whatsoever in the said claim.9. in view our view this judgment itself stipulates unless the claim is for absorption is based upon the statutory rules, regulations or order, the petitioner cannot assert and succeed in any such claim. in the present case a reading of rule 6a clearly permits appointment to the duty post by deputation and the rule 4(d) defines the member of the indian legal service to include a person appointed to a duty post. in this view of the matter, we are of the view that this judgment is not of any help to the petitioner and in fact supports the view taken by the cat. 10. since a considerable period of time has elapsed since this petition was admitted in this court in 2001, appointments already made to the posts of additional secretary shall not be disturbed. the learned counsel for the respondent has no objection to this course of action. 11. no cause for interference in the judgment of the cat which analysis and interprets the rules correctly is thereforee made out and the writ petition is dismissed accordingly and stands disposed of.