Repatriation To Parent Department Prior To Permanent Appointment Is Not Absorption: SC Upholds NHAI’s Decision To Deny Promotion To Employee
|The Supreme Court upheld NHAI’s decision to deny promotion to an employee after observing that repatriation to a parent department prior to a permanent appointment cannot be termed as absorption.
The Court set aside the Judgments of the Central Administrative Tribunal (CAT) and the Madras High Court which upheld the promotion granted to an employee by the National Highways Authority of India (NHAI/Appellant). The Bench held that the Appellant, a repatriated Manager (Technical), could not claim promotion benefits for his past deputation service.
The Bench of Justice Sudhanshu Dhulia and Justice Ahsanuddin Amanullah reiterated “The respondent no.1 later on joined in the service of the appellant on direct recruitment basis to the post of Manager (Technical) for which he was selected…Thus, for all practical purposes, it meant direct and fresh entry on a permanent basis of the respondent no.1 into the appellant. As he had been repatriated to his parent department more than a year prior to such permanent appointment, it cannot be termed ‘absorption’ which finds mention in the aforesaid Clause 6. Thus, respondent no.1 was a fresh and new recruit into the service of the appellant directly to the post of Manager (Technical). This was totally unrelated/unconnected to his previous service with the NHAI.”
AOR Santosh Kumar - I represented the Appellant, while Advocate Vijay Shankar appeared for the Respondents.
The employee was initially appointed on deputation as a Manager (Technical) with NHAI in 2008. He served until 2014 after which he was repatriated to his parent department in Tamil Nadu. Subsequently, in 2015, he was directly recruited to the same post at NHAI after clearing the necessary examination.
The employee sought promotion to Deputy General Manager (Technical), claiming that his prior deputation period should be counted towards the required four years of service for eligibility. Relying on a 2017 Circular that allowed deputation service to be treated as regular service for promotion, he approached CAT, which directed NHAI to grant the promotion retroactively. The Madras High Court upheld this decision.
The Supreme Court noted that the employee was absent from the service of the Appellant on a permanent basis i.e., being sent back to his parent department. The Court examined the language of Clause 6 of the 2017 Circular, which allowed deputation service to be considered for promotion, provided it was continuous and without significant gaps. The Court noted that the respondent’s repatriation in 2014 marked the conclusion of his deputation, making his subsequent reappointment in 2015 a fresh engagement.
The Bench referred to its decision in Indu Shekhar Singh v State of Uttar Pradesh, (2006) wherein the Apex Court held, “Past services can be taken into consideration only when the Rules permit the same or where a special situation exists, which would entitle the employee to obtain such benefit of past service.”
Consequently, the Court held, “Accordingly, the Impugned Order as also CAT’s order cannot be sustained and are set aside. Resultantly, the said Original Application filed by the respondent no.1 shall stand dismissed. Respondent no.1 shall be considered for promotion(s) in terms of the Recruitment Regulations and the Circular and the discussions made in this order and all consequential benefits of service (including pension etc., if and as applicable) shall be reckoned treating his date of entry into service of the appellant.”
Accordingly, the Supreme Court allowed the Appeal.
Cause Title: National Highway Authority Of India v. G Athipathi & Ors. (Neutral Citation: 2024 INSC 943)
Appearance:
Appellant: AOR Santosh Kumar - I
Respondents: Advocate Vijay Shankar, Balaji Subramanian and Akash Kundu; AOR A. Lakshminarayanan