Sarvesh Kumar & Others vs Union Of India & Others

L. Narasimha Reddy, J

This is the second round of litigation by the applicants in the context of their claim for promotion to the post of Under Secretary. The applicants were initially appointed as Assistant Section Officers in the CSS in the year 2008. Thereafter they were promoted to the post of Section Officer in the year 2014. In the year 2018 Applicant No.2&3 and in the year 2019 Applicant No.1, proceeded to join Bihar State Civil Services (BSCS), even while maintaining their lien, in the CSS. However, they came back to the CSS at different points of time in the year 2020.

The promotion to the post of Under Secretary is on completion of eight years of service in the post of Section Officer. The respondents refused to take into account, the time spent by the applicants, in the BSCS. They made a representation in that behalf and complaining that there was no response, the applicants filed OA No.1923/2020. That was disposed of on 08.12.2020, directing the respondents to pass orders on the representations. Accordingly, an order was passed on 05.02.2021 rejecting the claim of the applicants.

The applicants contend that as long as their lien was maintained in the CSS, they are deemed to be part of that service and there was no justification for the respondents in not counting the period during which they were in BSCS.

The respondents have taken a view that it is only the active service in CSS including the leave that can be counted and not the period, subservant to submissions of technical resignation and joining other organisation. Reliance is placed upon OM dated 17.08.2016.

We heard Shri M.K. Bhardwaj, learned counsel for the applicants and Ms. Anupama Bansal, learned counsel for the respondents, at the stage of admission.

The only issue in this OA is as to whether the period during which the applicants were in the BSCS can be treated as active service, in the CSS for the purpose of promotion to the post of Under Secretary.

By and large the active service of an employee for the purpose of promotion means the one, rendered by him in that very department. Exceptions are where, the employee is sent on deputation to another organisation. The reason is that the deputation takes place with the consent of the borrowing department, lending department and the employee. Till such employee is absorbed in the borrowing department, he continues to be on the rolls of the parent department, so much so his promotion would also be considered on paper, even while he is on deputation.

In cases where technical resignations are submitted, a totally different picture emerges. For all practical purposes, the relationship of the employee, with his previous employer comes to an end once he joins other organisation. The lien is maintained only to protect the interests of the employee, in case there exists any problem for his becoming a full member of the other organisation. Almost as a standby, the lien is maintained. Barring that, he ceases to be in the active service of the previous organisation, during the period when he is in active service of the other organisation.

It is not without reason that the residency or active service of a particular length is stipulated for promotion. That connotes the experience of the employee in the field, or his knowledge with the state of affairs, in the lower post. It cannot be the one spent by the employee, an altogether in a different organisation, that too, on his own accord. In OM No 28020/1/2010-Estt.(C) dated 17.08.2016, following observation is made:

"On technical resignation, seniority in the post held by the Government servant on substantive basis continues to be protected. However, in case of a Government servant deciding to rejoin his substantive post, the period spent in another department which he had joined after submitting his technical resignation will not count for minimum qualifying service for promotion in the higher post."

This squarely covers the present case.

Reliance is placed upon the judgment of the Hon'ble Supreme Court in State of Rajasthan Vs. S.N. Tiwari (2009) 4 SCC 702. That is a case in which an employee became surplus in one organisation and on account of that he was re-deployed in another. The question was as to whether there existed any continuity. It was held that the shifting of the employee to another organisation is not on his own volition and in such a case, the continuity must be maintained. That is not the situation in the instant case.

We do not find any merit in this OA and the same is accordingly dismissed. There shall be no order as to costs.

Pending MA No.497/2021 shall stand disposed of.

There shall be no order as to costs.