Applicability of cooling off period -reg.

VINIT SUVANIA (Querist) 25 May 2021 This query is : Resolved
Sir,
I proceeded for deputation (ISTC) from my parent Department (one of the Major port of India) for 3 years. While my deputation period was about to end, one post (Executive Engineer) was advertised by one of the Major Port of India on Composite Method i.e. Promotion/Deputation/Absorption basis. In the application form they asked to tick the option that on what basis the applicant want to apply i.e. Deputation or Absorption. I filled the application by opting Absorption Basis and submitted the same to the Competent Authority for onward forwarding to the department who advertised the post. Subsequently, i have joined duty to my parent department after completion of my deputation tenure of 3 years. Same time my application was also forwarded to the other Major port including all the clearances i.e. Vigilance, Administration etc. Now after completion of everything, my department is telling that your application needs to be withdrawn as i am under cooling off period and i have to wait for 3 years for completion of cooling off period. My understanding is that the cooling off period is applicable for between 2 deputation not for direct recruitment or absorption basis recruitment. I need immediate help in this matter with some documentary evidences please. Also Please put some light on the above matter. I will be thankful to you.

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An employee on deputation applied for a post advertised on a composite basis (promotion/deputation/absorption). After returning to their parent department, they were informed they are subject to a 3-year cooling-off period, preventing them from taking up the new role via absorption. The discussion explores whether the cooling-off period applies to absorption, which is distinct from deputation, and suggests seeking clarification from the DoPT via an RTI request.

T. Kalaiselvan, Advocate (Expert) 25 May 2021
If your understanding of law involved in this right then you may ask your employer to reject the application and give in writing the reasons for rejecting the same.
Merely on the basis of verbal communication you cannot be discouraged this way by your employer.
If they are furnishing the relevant law based on which they have taken decision to reject your application , you may resort to legal process for relief and remedy through appropriate court of law.

Sudhir Kumar, Advocate (Expert) 26 May 2021
if one is still on deputation he can proceed on another one. cooling off comes only when he returns back.

VINIT SUVANIA (Querist) 26 May 2021
Sir,
I applied while on deputation. But after that i joined my parent department. Now question is that wehther cooling off period will apply,, if i am applying a post which has to filled by absorption method?

P. Venu (Expert) 26 May 2021
Your present application is for transfer for immediate absorption which is distinct from deputation. As such, to my understanding, cooling period is inapplicable. However, it appears that there are no standing instructions issued by the Government of India in the given context.

Sudhir Kumar, Advocate (Expert) 26 May 2021
if you have joined parent deptt then cooling off operates.

VINIT SUVANIA (Querist) 27 May 2021
So according to this i cannot apply for ant direct recruitment post also for 3 years?

T. Kalaiselvan, Advocate (Expert) 28 May 2021
Your rights for an employment cannot be restricted by such orders which your current employer is imposing on you.
It is not an embargo.
You can tender your resignation, which they cannot stop, they may not give you relieving letter stating that you have deserted hence your services are terminated.
They cannot take any action against you under criminal law for this other than filing any suit for recovery of damages, which can be challenged on merits and on the basis of documentary evidences in yoru support.
You may go ahead with your decision.

P. Venu (Expert) 30 May 2021
With due respect to learned expert Mr. Kalaiselvan, it is stated that the suggestion, as above, goes against the crux of the service law but would be of disastrous consequence to the querist.

All that is possible for the querist is to get the issue clarified from the DoPT by prevailing upon his office to make reference or he himself makes a 'suitably worded' RTI request.

VINIT SUVANIA (Querist) 31 May 2021
Sir, Rti will not work as they simply say, we cannot produce new information. Only what is available we can reply. Since there is no standing instructions on absorbtion basis recuritment. Th

P. Venu (Expert) 31 May 2021
That exactly is the reason why I had suggested "suitably worded". For instance you can seek "a copy of the instructions, if any, issued by the DoPT in respect of cooling period, as applicable to transfer of employee for immediate absorption subsequent to deputation.".

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