W.P(C) No. 566/2010 Page 1 of 6 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P. (C.) No.566/2010 % Date of Decision: 29.01.2010 Anil Kumar & Ors. …. Petitioner Through Mr. Shri Gopal Aggarwal, Advocate Versus Union of India & Anr. …. Respondents Through Mr. A.K. Bhardwaj, Advocate CORAM: HON’BLE MR. JUSTICE ANIL KUMAR HON’BLE MR. JUSTICE MOOL CHAND GARG 1. Whether reporters of Local papers may be allowed to see the judgment? YES 2. To be referred to the reporter or not? NO 3. Whether the judgment should be reported in the Digest? NO ANIL KUMAR, J. * The petitioner has challenged the order dated 9th November, 2009 passed in OA No. 3132/2009 titled as Anil Kumar Vs. UOI & Ors. declining his petition seeking absorption as a deputationist with the office of Chief Controller of Accounts, Ministry of Commerce & Industry, Department of Commerce (Supply Division) and order dated 5th January, 2010 dismissing his review application being RA No. 253/2009 titled as Anil Kumar Vs. UOI & Ors.. The petitioner had filed OA No. 3132/2009 in the Central Administrative Tribunal Principal Bench, New Delhi as a 4th attempt on his part to be retained and W.P(C) No. 566/2010 Page 2 of 6 absorbed in the office of Chief Controller of Accounts, Department of Commerce (Supply Division) challenging the order dated 18th September, 2009 taking a decision to repatriate the petitioner to his parent department. According to the petitioner, pursuant to a notice dated 8-14th March, 2003 for filling the post by transfer on deputation for a period of one year, likely to be extended further, he applied and was appointed on deputation as accountant in the pay-scale of Rs. 4000-6000 which was specifically upgraded to Rs. 4500-7000. The deputation period of one year was also extended by the respondents. The Recruitment Rules known as Central Civil Accounts Service (Group-C) Recruitment Rules, 2000 contemplated filling up of 70% of the cadre of direct recruitment through Staff Selection Commission and remaining un-filled posts to be filled through deputation by taking persons of appropriate cadre from other recognized Accounts Service and Government Departments. The plea of the petitioner was that office of Controller General of Accounts, Department of Expenditure, Ministry of Finance had felt the acute shortage of manpower and in order to strengthen the manpower deployment, had started the process of absorption and the applicant was asked for unconditional acceptance of the terms of absorption and the consent of the parent department of the petitioner had already been W.P(C) No. 566/2010 Page 3 of 6 obtained for this purpose. Before the petitioner could be absorbed, a Gazette Notification in 2008 was issued contemplating the requirement for filling the unfilled direct recruitment quota which required absorption of only those deputationists, who had an exceptionally good performance on completion of two years on deputation in public interest subject to prior concurrence of parent cadre and Controller General of Accounts. Though the petitioner did not fulfill the requirement of absorption, however he filed an OA No. 1588/2008 seeking direction to the respondent to consider the request of the petitioner for absorption. During the pendency of the petition, repatriation of the petitioner to the parent department was also stayed. Pursuant to the direction by the Tribunal, according to the petitioner, a cryptic order for repatriation was passed after consideration which led to filing of another OA No. 275/2009 which was disposed of by order dated 3rd July, 2009. The respondents were again directed to consider the claim of the petitioner for permanent absorption though holding that the petitioner did not have indefeasible right to get absorbed. W.P(C) No. 566/2010 Page 4 of 6 Though the period of deputation of the petitioner had expired and he had not been permanently absorbed however, in view of the order passed in OA No. 1588/2008 and OA No. 275/2009 he continued to approach his office and on facing problems of entry, the petitioner filed another OA No. 2746/2009 where repatriation of the petitioner was again restrained up to 23rd October, 2009. Since, pursuant to an earlier order, repatriation order dated 18th September, 2009 had been passed, therefore, the OA No. 2746/2009 was disposed while granting the liberty to the petitioner to challenge the order of repatriation passed again on 18th September, 2009. By the order dated 18th September, 2009, repatriating the petitioner to his parent cadre, it was held by the respondents that pursuant to the order dated 3rd July, 2009 of the Central Administrative Tribunal, Principal Bench, the candidature of five deputationists including the petitioner had been considered fairly and equitably by the expert/selection committee constituting five departmental officers in accordance with the existing Recruitment Rules and its amendments together with performance of individual based upon CR Dossiers and other relevant material subject to availability of vacancy and on the basis of selection one of the deputationist other than the petitioner had been selected for absorption based on his merit. Since the petitioner had not been placed in the select list for absorption, the order for his W.P(C) No. 566/2010 Page 5 of 6 repatriation was passed. The Tribunal while deciding the validity of order dated 18th September, 2009 has noted that there was one vacancy for absorption against which five deputationists were considered in accordance with Rules and the name of the petitioner did not find place in the select list. The alleged presumption of more than one post vacant has been repelled by the Tribunal by considering the record of previous petitions filed by the petitioner and holding that three posts were filled on absorption basis in June, 2009 and whether another post is vacant or not has to be seen on the basis of facts and not by the presumptions raised by the petitioner which stood rebutted, as there was no material which could remotely suggest that availability of more than one vacancy. This cannot be disputed that out of the deputationists, who want to be absorbed only one deputationist other than the petitioner was selected. The learned counsel for the petitioner has tried to emphasize the suitability of the petitioner in reference to other however, on the basis of the assessment of the petitioner, it cannot be held that he is more suitable than the candidate who is already absorbed nor this Court has to decided that the petitioner is more suitable than the candidate who has been absorbed. Merely because the petitioner W.P(C) No. 566/2010 Page 6 of 6 continued on deputation for five years also does not raise a presumption in his favour that he is more suitable than other deputationist, who has been absorbed. The petitioner does not have a vested right for absorption nor he has been able to make out a case for his absorption. In the facts and circumstances, the findings of the Tribunal cannot be faulted on any of the grounds raised by the petitioner. The writ petition in the facts and circumstances is without any merit and it is therefore dismissed. ANIL KUMAR, J. JANUARY 29, 2010 MOOL CHAND GARG, J. ‘rs’