W.P.(C) Nos.3090/2008 & 3476/2008 Page 1 of 29 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: 16th August, 2010 Judgment Delivered On: 10th September, 2010 + WP(C) 3090/2008 DIRECTOR GENERAL I.C.F.R.E. & ANR. …Petitioners Through : Mr.Sanjay Katyal, Advocate Versus RAM PRAKASH & ORS. …Respondents Through: Ms.Jagriti, Advocate for Mr.M.K.Bhardwaj, Advocate WP(C) 3476/2008 J.S.SAXENA & ORS. …Petitioners Through : Mr.D.S.Mahendru, Advocate Versus UOI & ORS. …Respondents Through: Mr.I.S.Kohli, Advocate for Mr.A.K.Sharma, Advocate for UOI CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, J. 1. Vide resolution No.1-8/89-RT dated 22.06.1990, Ministry of Environment and Forests, Government of India, decided to convert its attached unit „Indian Council of Forestry Research and Education‟ (hereinafter referred to as “ICFRE”) and its allied research institutes into an autonomous institution. Vide resolution No.1-8/87-RT issued by Department of Environment Forests and Wildlife, Ministry of Environment and Forests, W.P.(C) Nos.3090/2008 & 3476/2008 Page 2 of 29 Government of India, modalities of the said conversion were prescribed, which resolution reads as under:- “Whereas Government of India, have decided to constitute the Indian Council of Forestry Research and Education, a subordinate office of the Ministry of Environment and Forests into an autonomous institution vide Resolution No. 1-8/89- RT dated 22.6.1999 and, Whereas the Indian Council of Forestry Research and Education Society, herein after called the society, has been constituted and registered as under the Societies Registration Act, 1860 vide Registration No.596/1990-91 dated 12.3.1991 of the Assistant Registrar Societies, Firms and Chits, Government of UP, Dehra Dun. Now, therefore, Government of India hereby transfers w.e.f. June 1, 1991 the offices of the Indian Council of Forestry Research and Education, Dehra Dun, together with its research institutions set out below:- (1) Forest Research Institute, Dehra Dun. (2) Institute of Forest Genetics and Tree Breeding, Coimbatore. (3) Institute of Wood Science and Technology, Bangalore. (4) Institute of Deciduous Forests, Jabalpur. (5) Institute of Arid Zone Forestry Research, Jodhpur. (6) Institute of Rain and Moist Deciduous Forest Research, Jorhat. to the Indian Council of Forestry Research and Education Society. The Director General of Indian Council of Forestry Research and Education, and every employee holding office under him immediately before the handing over of the Council to the Society, shall be treated as on deputation with the Society but shall hold his office in the Society by the same tenure and upon same terms and conditions of other terminal benefits as he would have held such office, if the Society had not been constituted and shall continue to do so until the Society duly absorbs such employee in its regular service. W.P.(C) Nos.3090/2008 & 3476/2008 Page 3 of 29 Provided that during the period of deputation of any such employee with the Society, the Society shall pay to the Central Government in respect of every such employee, such contribution towards his leave, salary, pension and gratuity as a Central Government may by order determine. Provided that any such employee who has in respect of the proposal of the Society to absorb him in regular service intimated within such time as may be specified in this behalf by the Society, shall be absorbed by the Society. Orders regarding transfer of assets and liabilities of the Indian Council of Forestry Research and Education, Dehra Dun to the Indian Council of Forestry Research and Education Society Dehra Dun would issue separately. Pending issue of the orders in this behalf, the Society would be entitled to the use of the assets in use at any or all of the subordinate officers afore-mentioned.” (Emphasis Supplied) 2. As evident from a reading of the resolution dated 30.05.1991, the employees working in ICFRE were placed on compulsory deputation under the newly constituted society. On 13.03.1992, resolution No.16-28/91-ICFRE was notified by the newly constituted society which provided that an option is being given to the employees working in ICFRE, either to get permanently absorbed in the society or to revert to the Central Government service; that the employees should exercise their option by 31.03.1992 and that the employees who would not opt for permanent absorption in the society will be placed at the disposal of Ministry of Environment and Forests which may accommodate them against suitable vacancies or transfer them to Central Surplus Staff Cell for redeployment. 3. Pursuant thereto, 3/4th of the employees working in ICFRE i.e. about 1448 employees decided to get permanently absorbed in the society and accordingly applied for being so absorbed. On 29.06.1992 resolution No.12-2/92-FE was W.P.(C) Nos.3090/2008 & 3476/2008 Page 4 of 29 notified by Ministry of Environment and Forests, Government of India, informing that permanent absorption of ICFRE employees in ICFRE society shall take effect from 01.04.1993. 4. In view of the fact that a considerable number of ICFRE employees did not opt for permanent absorption in the society, another opportunity was given to the employees who had not opted for permanent absorption in ICFRE society; to opt for the same, vide resolution No.2-10/92-FE dated 31.07.1992 notified by the Ministry of Environment and Forests, Government of India. Be it noted here that the said resolution provided that the employees should exercise the option by 30.09.1992 and that the permanent absorption of the employees in the society shall take effect from 01.04.1993. Relevant also would be to note that along with the said resolution two notes containing clarifications in respect of doubts raised by the associations of employees of ICFRE as also detailing the service conditions of permanently absorbed of ICFRE society were also circulated. 5. Thereafter two more opportunities were given to the employees who had not opted for permanent absorption in the society to opt for the same vide circulars Nos.16-28/96-ICFRE dated 12.12.1996 and 16-28/97-ICFRE dated 09.10.1997 issued by the society. 6. In view of the fact that about 800 ICFRE employees were yet to exercise their options for permanent absorption in the society, another opportunity was given to the said employees to opt for the same vide resolution No.2-1/97-FE dated 21.05.1998 notified by Ministry of Environment and Forests, Government of India. The relevant portion of the said resolution reads as under:- “9. The Central Government have now decided that a third and final opportunity be given to the Central Government employees in ICFRE by allowing them to exercise the option for absorption in the ICFRE society by 30th June 1998. Those W.P.(C) Nos.3090/2008 & 3476/2008 Page 5 of 29 Central Government employees who would prefer to continue their present status are liable to be declared as “Surplus Staff” and also transferred from Dehra Dun to other Central Government establishments in or under the Ministry at any moment. If necessary, they can also be re-deployed at any time in accordance with the rules and provisions applicable to surplus Central Government employees. The services of the Central Government employees will also be reviewed in accordance with the provisions of FR 56 (j). 10. The Central Government employees who exercise options for absorption in the ICFRE will get all the benefits, including the two additional increments, given to all other absorbed employees and there will be no distinction in the matter of promotion and other service matters between the regular employees of the ICFRE and the newly absorbed Central Government employees.” 7. Be it noted here that along with the afore-noted resolution dated 21.05.1998 detailed clarifications in response to the doubts raised by the associations of the employees of ICFRE were also issued by Ministry of Environment and Forests. It is most apposite to quote one of the clarifications issued by the Ministry:- “(7) The seniority of the employees after their absorption in the Society in the existing grade/post should be protected and the services rendered by the employees in the existing post prior to absorption, shall also be counted alongwith the services rendered in the ICFRE society for the purposes of future promotion/early growth and their designation should not be changed. There will be no distinction between the existing ICFRE employees and the Central Govt. optees absorbed in ICFRE on a later date as the Govt. has allowed retrospective absorption of the Central Govt. optees w.e.f. 1.4.93. The seniority and other service terms and conditions will be same once the Central Govt. optees get absorbed in ICFRE.” W.P.(C) Nos.3090/2008 & 3476/2008 Page 6 of 29 8. Thereafter another opportunity was given to the employees who had still not opted for permanent absorption in the society, to opt for the same, vide memorandum No.16- 28/2000-ICFRE dated 14.08.2000 issued by the society, the relevant portion whereof reads as under:- “The Govt. of India, Ministry of Environment and Forests, vide their letter No.2-1/97-FE dated 12.6.2000 have decided that all the Central Govt. employees working in ICFRE, who had earlier not opted for absorption in the service of this Council, may be provided the final opportunity to do so, giving a clear period of 6 weeks. The Ministry has asked to explain to such Central Govt. employees that in the event of their not opting for absorption in ICFRE, they will be treated as Central Govt. servants and they will be liable for redeployment through the Central Surplus Cell anywhere in the country under a Central Govt. office as per the existing rules/norms of the Central Surplus Scheme. The Ministry has further clarified vide their letter of even number dated 08.08.2000 that the Central Govt. employees opting for absorption in ICFRE will be absorbed with effect from a prospective date, i.e. 15.9.2000…..” 9. In spite of repeated opportunities given by the government, around 647 employees did not submit their options for permanent absorption in the society. Vide memorandums dated 01.01.2001 and 19.02.2001 issued by Ministry of Environment and Forests, the said 647 employees were declared as surplus staff and were directed to be re- deployed in other Central Government offices in terms of Central Surplus Scheme. 10. Aggrieved by the issuance of the memorandums dated 01.01.2001 and 19.02.2001 by Ministry of Environment and Forests, one „Van Anusandhan Sansthan Karamchari Sangh‟ (herein after referred to as the “Association”), an association representing the interests of the employees working in erstwhile ICFRE who had not opted for permanent absorption W.P.(C) Nos.3090/2008 & 3476/2008 Page 7 of 29 in the society as also some of the employees who had not opted for permanent absorption in the society filed an application bearing No.1372/2001 under Section 19, Administrative Tribunals Act, 1985 before Central Administrative Tribunal (hereinafter referred to as “CAT”), Principal Bench, New Delhi inter-alia seeking that:- (i) memorandums dated 01.01.2001 and 19.02.2001 declaring them as surplus staff be quashed and (ii) they be allowed to remain on compulsory deputation in the society till their superannuation, which application was dismissed vide judgment dated 03.01.2003. The relevant portion of the judgment passed by the Tribunal reads as under:- “8. We have carefully considered the matter and perused the documents brought on record. The applicants, working with Indian Council of Forest Research and Education and an Association representing them are aggrieved that they have been rendered surplus. When the same Council was converted into a registered society, the staff were sent on deputation and permitted to exercise the option to join the Society. To start with 1448 employees joined the society with 838 persons staying back as Govt. employees. Thereafter more people joined the society, leaving 651 individuals remaining aloof, which included the applicants. There persons are found to have been given as many as four opportunities to decide their future with the society. They did not do so. Obviously therefore they remained Govt. servants and when the Govt. decided by its order F.No.2-63-2001-FE of 6.5.2002 to commission a number of posts, including those held by the applicants have been rendered surplus. The applicants have sought to forestall by this OA, requesting that they should be kept on compulsory deputation as was done and permitted to demit office in that manner, on their superannuation. Respondents have justifiably contested the claims. Applicants also do not deny that they have been given options to join the society on 28.2.96, 31.12.96 and 21.5.98, but they had not done so, each time seeking some W.P.(C) Nos.3090/2008 & 3476/2008 Page 8 of 29 clarification or other and claiming that the respondents were holding vital information. It is also on record that the respondents had supplied to them, following the decision of the Allahabad Bench of the Tribunal in OA 660/92, Compendium of Rules and Regulations for the employees. This also has not satisfied them. Their only complaint is that the resolution of 22.6.90, converting the autonomous organization into a society has not been communicated to them which was improper. From the perusal of the said communication dated 22.6.90, brought on record by the respondent it is evident that it was only a letter intimating that the Govt. decided to convert the organization into a society. We are not at all convinced that this letter has affected the rights and service conditions of the applicants in any manner. On the other hand, we are confirmed in our view that the applicants have only been taking an intransigent attitude which no organization, much less a Govt. organization could be expected to put up with. It definitely is not for a minority of the staff to dictate terms as to how the concerned organization should function, when the Govt. at the highest level - in spite of the baseless protestation by the applicants - had taken a policy decision. It is also not for the staff to decide how they would like to be governed in the organization. While it may be justified by the staff to demand that their rights are not prejudicially affected the same right does not extend to directing that the organization should subjugate its interest to succumb to their demand. This is exactly what the applicants in this OA demand. In the facts and circumstances of the case as brought out on records it is clear that the respondents have acted fairly and reasonably. Nothing further could have been demanded by them. 9. We also note that the applicants are making a request that they be given status of compulsory deputationists with the Council/Society till their date of superannuation as in the case of ICAR, CSIR and Nuclear Power Corporation. The respondents have very clearly indicated that functions-wise and structure-wise the position in ICFRE is different from the other organization. We find the same to be so.” (Emphasis Supplied) W.P.(C) Nos.3090/2008 & 3476/2008 Page 9 of 29 11. Aggrieved by the judgment and order dated 03.01.2003 by the tribunal, the applicants in O.A.No.1372/2001 before the tribunal filed a writ petition bearing No.1178/2003 under Articles 226 and 227 of Constitution of India before this Court. Vide order dated 24.07.2006, this Court disposed of the said petition, relevant portion whereof reads as under:- “…..Learned Counsel for the respondents Mr. Sanjay Katyal, Standing Counsel, Central Government and on behalf of ICFRE, on instructions from the Secretary, ICFRE Mr. S. P. Singh, who is present in Court, says that he is instructed to make statement. Let his statement be recorded without oath. Counsel for the parties have nothing further to add. Parties shall abide by the statements made today in Court. In terms of the statements made, nothing survives in this petition. Petition stands disposed of.” “STATEMENT OF MR. SANJAY KATYAL, ADVOCATE, COUNSEL FOR THE PETITIONER, WITHOUT OATH The Central Government as a one time measure without it being a precedent is willing to absorb all the petitioners including all other eligible employees on deputation, who exercise their option to be absorbed with ICFRE within 30 days from today. The absorption shall be prospective. It is made clear that the period of deputation spent by the petitioners or other eligible employees who are similarly placed in service on compulsary deputation from Central Government, would be taken into consideration as past service for the purpose of determining the qualifying period for grant of pension. Pension is to be paid by ICFRE. I have made this statement on the instructions of Mr.S.P. Singh, Secretary, ICFRE, who is present in Court.” W.P.(C) Nos.3090/2008 & 3476/2008 Page 10 of 29 “STATEMENT OF MR. S.P. SINGH, S/O LATE SHRI S.P. SINGH, PRESENTLY SECRETARY OF ICFRE, R/O NEW FOREST FRI CAMPUS, DEHRADUN ON S.A. I have heard the statement made by Mr. Sanjay Katyal, Central Government Standing Counsel, on my instructions. It would be the responsibility of the ICFRE to make the payment of pensionary benefits to eligible employees including petitioners and others, who exercise the option for being absorbed with ICFRE within 30 days from today. We shall also circulate and inform other employees/deputationists of this last chance being provided. Due provision and necessary financial arrangement for pensionary benefits would be made by us with assistance from the Central Government.” (Emphasis Supplied) 12. On 09.08.2006 memorandum No.1-1/2000/Pension Cell/ICFRE/Option was issued by ICFRE society, relevant portion whereof reads as under:- “The Govt. of India, Ministry of Environment & Forests, vide their letter No.12-9/2003-FE dated 8th August, 2006, in pursuance of the Order passed by Hon‟ble High Court Delhi in the matter of VASKS v/s UOI in CWP No.1178/2003 dated 24.07.2006, as a one time measure a final opportunity is given to the Central Govt. employees working in the ICFRE by allowing them to exercise their option for absorption in the regular services of the ICFRE Society latest by 24th August, 2006. Their absorption shall be from prospective date only. The Central Govt. employees who exercise their option for absorption in the ICFRE will get all the pensionary benefits as directed by the Hon‟ble High Court in their final Order of 24th July, 2006 in the above CWP No.1178 of 2003…” (Emphasis Supplied) 13. Thereafter the applicants in O.A.No.1372/2001 before the tribunal filed an application bearing No.10352/2006 in W.P.(C) No.1178/2003 before this Court inter-alia, amongst others, seeking a direction to the effect that there shall be no distinction between the employees who were permanently W.P.(C) Nos.3090/2008 & 3476/2008 Page 11 of 29 absorbed in terms of the order dated 24.04.2006 passed by this Court and the employees who were absorbed prior thereto regarding the matters of seniority, promotion and other service conditions. Vide order dated 25.08.2006, this Court disposed of the said application, the relevant portion whereof reads as under:- “….Similarly, Mr. Rajeshwar K. Gupta points out that in his statement Mr. Sanjay Katyal has been described as “Counsel for the petitioner” which is not correct as it should read as “Counsel for the Respondent”. The same has also been corrected and initialed today. As regards the remaining contents of the application, we are of the view that petitioners should first exercise their option and act on it and thereafter, whatever their legitimate grievances, can be represented to the Central Government and/or appropriate Appellate Forum and decided. Mr. Sanjay Katyal, learned Counsel for the respondent legitimately points out that the petitioners on the one hand are not exercising their option and want to continue with their current position. Mr. Rajeshwar K. Gupta, learned Counsel for the petitioners prays that 15 days time be granted for exercise of option as the option was circulated on 9th August, 2006. Learned Counsel for the respondent has no objection to the same. Accordingly, time to exercise option is extended by 15 days i.e. latest by 08 September, 2006.” (Emphasis Supplied) 14. Pursuant thereto, 96 employees including the respondents decided to opt for their permanent absorption in the society. The application(s) submitted by the respondents Nos.1-23 in the said regard reads as under:- “With reference to the ICFRE Memorandum No.1-1/2006/Pension Cell/ICFRE/Option dated 9.8.06 on the subject cited above, I hereby opt for W.P.(C) Nos.3090/2008 & 3476/2008 Page 12 of 29 absorption in the ICFRE Society with effect from the prospective date of 24.8.2006. As my absorption will be subject to my resignation from the Central Government service, accordingly, this letter may please be treated as my technical resignation from the services of the Central Govt. with effect from my date of absorption in the ICFRE Society in terms of the aforesaid memorandum dated 9.8.06. I also understand that this is the final opportunity of exercising option and no further chance in the matter will be given hereafter.” (Emphasis Supplied) 15. On 02.04.2007 resolution No.36-1/2006-ICFRE was issued by the society, the relevant portion whereof reads as under:- “1. As per ICFRE letter No.1-1/2006/Pension Cell/ICFRE/Option dated 29.01.2007 those Central Government employees who opted in favour of ICFRE society services as per decision of the Hon‟ble High Court, New Delhi dated 24.07.2006 in the matter of Civil Writ Petition No.1178 of 2003 have been absorbed in the regular service of the ICFRE Society w.e.f. 09.09.2006. Accordingly, these fresh absorbed employees now become employees of the ICFRE Society w.e.f. 09.09.2006. 2. They are eligible for consideration for promotion as per Recruitment and Promotion Rules of ICFRE Society w.e.f. prospective date. 3. As already communicated to the Ministry, the seniority I respect of Central Government employees on their absorption in ICFRE Society w.e.f. 09.09.2006 shall be determined in accordance with the date of their absorption and with prospective effect only. As such, they will be placed below in the corresponding category/grade all existing ICFRE employees appointed from time to time on regular basis to the particular grade on the date (prospective date) of absorption of Central Government employees. The fixation of seniority of fresh absorbees will not any regular promotion to the next higher grade made prior to the effective prospective date of such promotion.” W.P.(C) Nos.3090/2008 & 3476/2008 Page 13 of 29 16. In terms of the aforesaid resolution dated 02.04.2007, a provisional list dated 18.04.2007 was issued by the society wherein the employees who were absorbed in pursuance of the order dated 24.07.2006 passed by this Court in W.P.(C) No.1178/2003 including the respondents were placed below the employees who were absorbed prior thereto. 17. Aggrieved by the issuance of the resolution dated 02.04.2007 and provisional list dated 18.04.2007 by the society, the respondents filed representations before the society inter-alia seeking that date of their absorption in the society be taken as 01.04.1993 i.e. the date of absorption of the employees who had opted for permanent absorption in the society prior to the passing of the order dated 24.07.2007 passed by this Court in W.P.(C) No.1178/2003 and that their seniority be fixed on the said basis. 18. When the aforesaid representations filed by the respondents bore no fruitful results, the respondents filed an application under Section 19, Central Administrative Tribunals Act, 1985 before the tribunal. The case projected by the respondents before the tribunal was that:- (i) in view of ratio laid down by the Supreme Court in the decisions reported as K. Madhavan v Union of India (1987) 4 SCC 576 and Sub- Inspector Rooplal v Lt. Governor (2000) 1 SCC 644 that in case of a person who is initially taken on deputation and absorbed later, the service rendered by him in the same or equivalent grade in his parent department shall be taken into account in fixing his seniority in transferred department, the society was duty bound to take into account the services rendered by the respondents in the society prior to their absorption while fixing their seniority and (ii) the classification made between the employees who were absorbed in the society in pursuance of the order dated 24.07.2006 passed by W.P.(C) Nos.3090/2008 & 3476/2008 Page 14 of 29 this Court in W.P.(C) No.1178/2003 and the employees who were absorbed prior thereto is not valid particularly in view of the resolution dated 21.05.1998 issued by Ministry of Environment and Forests, Government of India wherein the employees who had not opted for absorption in the society in the first instance were similarly placed with the employees who had done so. That the classification made between the respondents and employees who had also not opted for