CWP No.10736 of 2007 : 1 : In the High Court of Punjab and Haryana at Chanidgarh. Date of decision: 21.05.2008. Dr. Mala Ram Dewan ... Petitioner Versus Union of India and others. ... Respondents. CORAM HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr.RS Mittal, Senior Advocate, with Mr.Sudhir Mittal, Advocate, for the petitioner. Mrs.Renu Bala Sharma, Advocate, for the respondents. -- PERMOD KOHLI, J. (Oral): The petitioner is presently working as a Commandant with the I.T.B.P. Force in the category of Chief Veterinary Officer. Earlier, the petitioner was promoted as Senior Veterinary Officer. It is alleged that respondent No.3 joined service in SSB in the year 1990 and was promoted as Dy. Commandant in the year 1996, whereas the petitioner became Dy. Commandant in the year 1994 and was senior to him in the said rank. It is further alleged that respondent No.3 was brought into ITBP Force as Commandant (Senior Veterinary Surgeon) on deputation vide order dated 23.07.2002 for a period of three years, as at the relevant time, none of the eligible officer from the ITBP Force was considered for promotion to the CWP No.10736 of 2007 : 2 : rank of the Commandant (Senior Veterinary Surgeon). A writ petition came to be filed by Dr. A.K. Verma, Deputy Commandant (Veterinary Surgeon) challenging the order of deputation of respondent No.3 in CWP No.5769 of 2003. This writ petition was allowed by this Court vide judgment dated 27.1.2005. The deputation of respondent No.3 was held to be contrary to the rules. This Court made the following observations:- “In view of the factual position acknowledged above, it is apparent that the respondents were obliged to evaluate the claims of all eligible candidates for promotion to the post of Commandant (Senior Veterinary Surgeon) and only when a suitable candidate was not available for promotion from the feeder cadre, it was open to the official respondents to make appointment by way of deputation. Since at the juncture when the claim of respondent No.3 was considered for appointment by way of deputation, two more Annual Confidential Reports of the petitioner had become available (which had not been taken into consideration when the claim of the petitioner was considered on 11.2.2001) it was obligatory for the official respondents to first re-assess and re- evaluate the claim of the petitioner and only if, the petitioner did not satisfy the prescribed bench mark, it was pen to the official respondents to CWP No.10736 of 2007 : 3 : effect appointment by way of deputation. Since the aforesaid procedure, which flows from the statutory rules under reference, was not adhered to, it is imperative for us to set aside the appointment of respondent No.3 to the post of Commandant (Senior Veterinary Surgeon) by way of deputation. Ordered accordingly. In the peculiar circumstances of this case, we hereby direct the official respondents to re-consider the claim of the petitioner, as well as, all eligible candidates from the feeder cadre, including respondent No.4. In case a person from the feeder cadre is eligible and suitable for appointment by promotion to the post of Commandant (Senior Veterinary Surgeon), then as a matter of preference, the said candidate shall be promoted to the post under reference with effect from the date respondent No.3 was appointed as such by way of deputation. In such eventuality, however, such promotee will not be entitled to arrears of salary under the principle of “no work no pay”. In case, no candidate is suitable for appointment by way of promotion, it will be open to the official respondents to re-affirm the order of appointment of respondent No.3 as Commandant CWP No.10736 of 2007 : 4 : (Senior Veterinary Surgeon), by way of deputation. Disposed of accordingly.” It may be relevant to note that pursuant to the aforesaid directions, respondents constituted a D.P.C to fill up the vacancy of Commandant (Senior Veterinary Surgeon) for the vacancy year 2001-2002 as available on 01.04.2002. The meeting of the D.P.C. was convened on 08.06.2005 and claim of the eligible employees for promotion to the said post including that of the petitioner, was considered. It is stated in the affidavit dated 15.04.2008 filed in reply to the additional affidavit of the petitioner that on consideration, neither the petitioner nor any other eligible candidates were found suitable for promotion to the post of Commandant (Senior Veterinary Surgeon). The proceedings of the D.P.C were approved by the Ministry of Home Affairs i.e. the Competent Authority and, accordingly, respondent No.3 was adjusted on deputation against the post in the pay scale of Rs.12000-16500/- with effect from 05.08.2002 by re- affirming his earlier deputation. It is further stated that term of deputation of respondent No.3 was to expire on 05.08.2005 and in order to fill up the anticipated vacancy of Commandant (Senior Veterinary Surgeon) on his repatriation fresh D.P.C was convened for the vacancy year 2005-2006 on 08.02.2005 where the petitioner and Dr.A.K. Verma, Deputy Commandant (Veterinary Surgeon) were considered and both of them were found unfit for promotion for not obtaining the prescribed bench mark of “Very Good” as per instructions and consequently the deputation of respondent No.3 was further extended as per rules governing the deputation. CWP No.10736 of 2007 : 5 : The petitioner has not challenged the aforesaid proceedings of the D.P.C on any ground whatsoever except making an averment in the additional affidavit that rejection of his claim by the D.P.C is not proper. It is the admitted case of the petitioner that the petitioner after having been promoted as Commandant (Senior Veterinary Surgeon), he has further been promoted as Commandant (Chief Veterinary Officer) vide order dated 02.05.2006 (Annexure P-4) with effect from 26.04.2006 where he joined on 28.4.2006. Presently he is holding the post of Chief Veterinary Officer in the rank of Commandant with effect from 28.04.2006. The next promotion is to the post of Commandant/ Chief Veterinary Officer (Selection Grade) in the pay scale of Rs.14300-18300/-. The grouse of the petitioner in the present petition relates to the continuance of respondent No.3 on deputation and his non consideration for promotion to the post of Commandant/ Chief Veterinary Officer (Selection Grade). In the present writ petition, the petitioner has sought the following reliefs:- “a) a writ in the nature of writ of certiorari may be issued calling for the records of the respondents No.1 and 2 and after a perusal of the same, the impugned orders Annexure P-6 as well as Annexure P- 5 be quashed; CWP No.10736 of 2007 : 6 : b) a writ in the nature of mandamus be issued directing immediate repatriation of respondent No.3 to his parent service; c) an ad-interim order be issued staying operation of the impugned order during the pendency of the writ petition; d) any other suitable writ, order or direction that this Hon'ble Court may deem fit in the circumstances of this case be issued; e) service of advance notices of motion may kindly be dispensed with in the peculiar facts and circumstances of this case; f) petitioner be exempted from filing certified copies of Annexure P-1 to Annexure P-6; and g) cost of the petition may kindly be awarded to the petitioner.” The main challenge is to the order Annexures P-5 and P-6. Order Annexure P-5 is dated 10.08.2005 which relate to the extension of the CWP No.10736 of 2007 : 7 : deputation of respondent No.3 for a period of six months with effect from 06.08.2005 to 05.02.2006, whereas order Annexure P-6 is dated 25.04.2006 which relate to appointment of respondent No.3 as Chief Veterinary Officer (Selection Grade) in the pay scale of Rs.14300-18300/- in the ITBP on deputation basis. It is contended by Mr.RS Mittal, learned Senior Counsel for the petitioner that maximum tenure of appointment under the statutory rules notified by the GSR 324 dated 20.09.2005 is only four years, whereas respondent No.3 is continuing on deputation with the ITBP Force since 2002, precisely with effect from 23.07.2002. The main grouse is that on account of continuance of respondent No.3 on deputation for a period beyond four years, the petitioner and other eligible officers in the Force from the feeding-cadre have been deprived of their right of consideration to the promotional post. Note-2 appended to the statutory rules referred to above, reads as under:- “Note 2: The period of deputation including the period of deputation in another ex-cadre post held immediately preceding this appointment in same or some other organization or department of the Central Government shall ordinarily not exceed four years.” This rule prescribes the period of four years for deputation, CWP No.10736 of 2007 : 8 : not only in one organization but in all organizations of the Central Government. However, the use of expression “ordinarily” implies that deputation can be beyond four years. This clearly indicates that for exceeding the deputation beyond four years, there must be some valid reason with the competent authority. Vide Annexure P-5 extension was given to respondent No.3 only for six months upto 05.02.2006. This period is already over. Vide Annexure P-6 extension has been given for unspecified period. This itself is contrary to the spirit of the rule being beyond four years. This is one aspect of the matter. The other aspect of the matter is the right and entitlement of the petitioner for his promotion to the post of Commandant /Chief Veterinary Officer (Selection Grade). Under the rules, the post of Commandant/Chief Veterinary Officer (Selection Grade) is a selection post and no person has a right of promotion to the said post. However, the eligible officers have right of consideration. The rules further provided eligibility criterion for consideration for such promotion. Some of the criterions are indicated in sub para II of the Schedule attached to notification dated 20.09.2005 (Annexure P-3), which reads as under:- “II. The Department Chief Veterinary Officer with two year's regular service in the Grade and having fifteen years of Group “A” Service or twenty years combined Group “A” and Group “B” service and being in medical category SHAPE-I as specified in the UO No.1-45020/52/2001 Pers.II, dated the 30th January, 2002, issued by the Ministry of Home CWP No.10736 of 2007 : 9 : Affairs shall also be considered alongwith outsiders. If he is selected for the post, the same shall be deemed to have filled up by promotion. Note 1: The departmental officers in the feeder category who are in the direct line of promotion shall not be eligible for consideration for appointment on deputation. Similarly, deputationists shall not be eligible for consideration for appointment by promotion.” Under the aforesaid rules, for promotion to the post of Commandant/Chief Veterinary Officer, minimum two years regular service in the feeding cadre, is needed along with 15 years of Group “A” service or twenty years combined service in Group “A” and Group “B”. Even if it is presumed that the petitioner fulfills the criterion of 15 years in Group “A” or twenty years combined Group “A” and Group “B” service, he is also required to have minimum two years service in the feeding cadre which is (Commandant) Chief Veterinary Officer. Admittedly, the petitioner has joined as Commandant/Chief Veterinary Officer on 28.04.2006 and he completes two years on 27.04.2008. It is only on acquiring this eligibility criterion that he can be further considered for promotion. Unfortunately, the petitioner is due to retire on 31.05.2008 and there is hardly any occasion to consider him for such promotion. Apart from the above, the only vacancy which is available, is presently occupied by respondent No.3 CWP No.10736 of 2007 : 10 : on deputation. Even if respondent No.3 is repatriated to his parent cadre, still the consideration for selection to the Selection Grade post has to be accorded by the D.P.C which is likely to take some time. The petitioner is at the verge of retirement. Hence, no relief can be granted to him at this stage. Under the given circumstances, the only direction which can be given is for repatriation of respondent No.3 to his parent cadre as his continuance on deputation is beyond four years and for no valid reasons. It is, accordingly, directed that respondent No.3 be repatriated to his parent cadre forthwith. The present petition is disposed of with the above direction. 21.05.2008. (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES/ NO