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Wednesday, January 7, 2015

CIVIL APPEAL NO.5983 OF 2007 Union of India & Anr. ... Appellants VERSUS S.N. Maity & Anr. ...Respondents

IN THE SUPREME COURT OF INDIA


                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO.5983 OF 2007




      Union of India & Anr.                             ... Appellants


                                      VERSUS


      S.N. Maity & Anr.                                       ...Respondents






                               J U D G M E N T






      Dipak Misra, J.




            In  this  appeal,  by  special  leave,  the  justifiability  and
      soundness of the judgment and order dated 18.5.2006 passed by the High
      Court of Jharkhand at Ranchi in W.P.(Service) No. 6106 of 2005 whereby
      the Division Bench of the High Court has overturned the  order  passed
      by the Central Administrative Tribunal ('tribunal' for short), Circuit
      Bench at Ranchi in O.A. NO. 215 of 2005, is called in question.
      2.    Shorn of unnecessary details, the facts which are  requisite  to
      be stated are that the 1st respondent was working as a Scientist  E-II
      in the Central Mining Research Institute (Council  of  Scientific  and
      Industrial Research).  On 29.07.2003, he was appointed  on  deputation
      to the post of Controller General of Patents, Designs and Trade  Marks
      ( (for short, 'CGPDTM').  After serving there for one year,  by  order
      F.No. 8/52/2001-PP&C dated 31.8.2004, he was repatriated to his parent
      department.   The  said  order  was  challenged  before  the  tribunal
      contending, inter alia, that  he  could  not  have  been  pre-maturely
      repatriated to his parent department and there had been a violation of
      the principle of audi altram  partem.   The  said  stand  of  the  1st
      respondent  was  contested  by  the  authorities  of  Union  of  India
      proponing, inter alia, that he had no right to continue in the post as
      he was on deputation.  Be it stated, some reliefs  were  claimed  with
      regard to the TA bills and salary for certain  period.   The  tribunal
      accepted the stance put forth by the Union of India and dismissed  the
      Original Application.  However, as far as payment regarding  T.A.  and
      salary for certain period is concerned, the tribunal directed that the
      same should be decided by the respondents after  due  verification  in
      accordance with law.
      3.    Being dissatisfied with the aforesaid decision of the  tribunal,
      the 1st respondent invoked the jurisdiction of the  High  Court  under
      Article 226 and 227 of the Constitution  of  India.   The  High  Court
      posed two questions, namely,  whether  the  order  F.No.8/52/2001-PP&C
      dated 31st August, 2004 issued by Under Secretary to the Government of
      India, Ministry of Commerce and  Industry,  Department  of  Industrial
      Policy  &  Promotion  repatriating  the  petitioner  to   his   parent
      department was illegal; and whether the petitioner had  the  right  to
      continue as Controller General of Patents, Designs and Trade Marks.
      4.    The High Court after posing the questions took note of the  fact
      that the Union of India had issued an advertisement in the  Employment
      News  dated  20/26.10.2001  calling  for  applications  from  eligible
      candidates for appointment to the post of CGPDTM and the Ministry  had
      proposed to fill up the post  by  transfer  on  deputation,  including
      short-term contract.  The  1st  respondent,  being  eligible,  applied
      through his parent department i.e. Central Mining Research  Institute,
      Dhanbad and his  selection  was  made  by  the  Union  Public  Service
      Commission (for short, 'the UPSC') which held  interview  on  4.6.2002
      and finding him suitable, recommended his name for  appointment.   The
      competent authority approved the appointment of  the  1st  respondent,
      the petitioner before the High Court, for the post of  CGPDTM  in  the
      pay scale of Rs.18,400-500-22,400/- on deputation basis for  a  period
      of five years or until further orders, whichever was earlier from  the
      date of assumption of the charge of the  post.   The  said  order  was
      communicated vide letter no. 8/52/2001-PP&C (Vol.II)  dated  23.6.2003
      issued by the Deputy Secretary to the Government of India,  Department
      of  Industrial  Policy  and  Promotion.   Thereafter,  a   letter   of
      appointment dated 11.8.2003 was issued to the 1st  respondent  in  the
      name of the President, appointing him on deputation basis for a period
      of five years or until further orders, whichever was earlier.
      5.    In pursuance of the aforesaid  order  of  appointment,  the  1st
      respondent joined the said post and continued to function,  but  after
      eleven months,  the  Under  Secretary  to  the  Government  of  India,
      Ministry of Commerce and Industry, Department of Industrial Policy and
      Promotion, issued an order dated F No. 8/52/2001-PP&C dated  31.8.2004
      repatriating him to his parent department.   The  High  Court,  taking
      note of the factual backdrop, and the nature of the appointment of the
      1st respondent, came to hold that his appointment was not  a  case  of
      simplicter deputation; that the employer did not have the  prerogative
      to get him repatriated to his parent  department  as  the  controversy
      fundamentally related to appointment and  the  source  of  appointment
      i.e.  deputation  on  transfer;  that  the  principles  inhered  under
      Articles 14 and 16 were violated, for the authorities did not disclose
      the  ground  for  which  such  appointment  had  been   disturbed   by
      repatriating him to the parent department; that in the absence of  any
      reasonable or valid ground, the order  was  bound  to  be  treated  as
      arbitrary thereby inviting the frown of Article 14 of the Constitution
      of India; and that the Under Secretary  to  the  Government  of  India
      could not have passed the  order  of  repatriation  as  the  order  of
      appointment was issued by the President of India.  Being of this view,
      the High Court set  aside  the  impugned  order  of  repatriation  and
      directed the writ petitioner to be reinstated in the post of CGPDTM on
      similar terms and conditions with all consequential benefits.
      6.    We have heard Mr. Tushar  Mehta,  learned  Additional  Solicitor
      General for the Union of India, Mr. Colin  Gonsalves,  learned  senior
      counsel for the respondent no.  1  and  Mr.  Praveen  Swarup,  learned
      counsel for the respondent no.2.
      7.    To appreciate the defensibility and legal  pregnability  of  the
      judgment and order passed by  the  High  Court,  it  is  necessary  to
      reproduce the Notification dated 7.8.2003 by which the 1st  respondent
      was appointed.  It reads as follows:


                                "NOTIFICATION


           No. 8/52/2001-PP&C: The President is pleased to appoint Dr. S.N.
           Maity, Scientist  E-II  of  Central  Mining  Research  Institute
           (Council of Scientific and Industrial  Research)  as  Controller
           General of Patents, Designs and Trade Marks under  the  Ministry
           of Commerce and Industry (Department of  Industrial  Policy  and
           Promotion) on deputation basis for a period of five  years  with
           effect from the forenoon of 29th July,  2003  or  until  further
           orders, whichever is earlier.
                                                                        Sd/-
                                                            (Y.P. Vashishat)
                                                      Under Secretary to the
                                                             Govt. of India"


      8.    From the aforesaid order, it is luculent that the 1st respondent
      was appointed on deputation basis for a period of five years or  until
      further orders, whichever  was  earlier.   Submission  of  Mr.  Tushar
      Mehta, learned ASG is that the order, as  is  demonstrable,  being  an
      order of deputation, it is the prerogative of the employer  to  recall
      him to the parent department without assigning any reason  before  the
      term of five years was over as such a  rider  was  postulated  in  the
      order of appointment.   Per  contra,  Mr.  Gonsalves,  learned  senior
      counsel appearing for 1st respondent would contend that in the absence
      of any reason, such an order could not have been passed as that smacks
      of absolute arbitrariness which the law does not countenance.   It  is
      the stand of respondent no.2, Council for  Scientific  and  Industrial
      Research (CSIR), that the 1st respondent had only gone  on  deputation
      and on being released, he  was  bound  to  come  back  to  the  parent
      department.
      9.    On an anxious appreciation of the facts, which include  issuance
      of  an  advertisement,  selection  process  which  led   to   eventual
      recommendation by the UPSC and the ultimate issue of Notification,  it
      is extremely difficult to accept the submission of  Mr.  Tushar  Mehta
      that it is a deputation by one department to  another  or  to  put  it
      differently, the parent department had lent the services  of  the  1st
      respondent to the  borrowing  department.   It  is  not  a  deputation
      simpliciter.   The  Notification  by  which  the  1st  respondent  was
      appointed has  a  different  nature  and  character.   Mr.  Gonsalves,
      learned senior counsel has commended us  to  the  decision  in  Debesh
      Chandra Das V. Union of India[1].  In the said case, the appellant,  a
      member of  Indian  Civil  Service,  was  chosen  by  the  Appointments
      Committee of the Cabinet to function as the Secretary,  Department  of
      Social Security and he continued in that Department.   Thereafter,  he
      received certain communications on June 20, 1966 and September 7, 1966
      from the Cabinet Secretary, which he construed them  as  reduction  in
      rank and challenged the same in a writ petition in the High  Court  of
      Calcutta on September 19, 1966.  Many a ground was  urged  contending,
      inter alia, that there was reduction in rank.  The High Court did  not
      accept the  contention  and  dismissed  the  writ  petition.   It  was
      contended before this Court  on  behalf  of  the  appellant  that  the
      reversion being in the nature of penalty, the procedure under  Article
      311(2) was required to be followed and as there was gross violation of
      the same, the order passed by the Government of  India  could  not  be
      sustained.  The said submission was countered  by  the  Government  of
      India urging, inter alia, that he was on deputation and the deputation
      could be terminated at any time; that his order of appointment clearly
      showed that the appointment was "until further orders"; that he had no
      right to continue in Government of India  if  his  services  were  not
      required and his reversion to his parent State did not  amount  either
      to any reduction in rank or a penalty and, therefore,  the  order  was
      quite legal and justified.
      10.   The Court, as is evident, referred to various  Rules  in  vogue,
      the Rules of Indian Administrative Service (Cadre  Rules),  especially
      the "Constitution of Cadres", "Strength  of  Cadres",  "Deputation  of
      cadre officers" and adverted  to  the  concept  of  'permanent  post',
      'temporary post' and 'tenure  post'  and  addressing  the  issue  from
      various angles, held thus:
           "11. The position that emerges is that the cadres for the Indian
           Administrative Services are to be  found  in  the  States  only.
           There is no cadre in the Government of India.  A  few  of  these
           persons are, however, intended to serve at the Centre. When they
           do so they enjoy better emoluments and status. They rank  higher
           in the service and even in the  Warrant  of  Precedence  of  the
           President. In the States they cannot get the same salary in  any
           post  as  Secretaries  are  entitled  to  in  the  Centre.   The
           appointments to the Centre are not in any  sense  a  deputation.
           They mean promotion to a higher post. The only safeguard is that
           many of the posts at the  Centre  are  tenure  posts.  Those  of
           Secretaries and equivalent posts are  for  five  years  and  for
           lower posts the duration of tenure is four years.


           12. Now, Das held one of the tenure posts. His tenure ordinarily
           was five years in the post. He got his Secretaryship on July 30,
           1964 and was expected to continue in that post for  five  years,
           that is, till 29th July, 1969. The short question in  this  case
           is whether his reversion to the Assam State before the expiry of
           the period of his tenure to a post  carrying  a  smaller  salary
           amounts to reduction in rank and involves a stigma upon him."


      11.   After so stating, the Court adverted to the concept of reversion
      and stigma and in the ultimate eventuate ruled that:
           "16. We have shown above that he  was  holding  a  tenure  post.
           Nothing turns upon the words of the notification "until  further
           orders" because all appointments to tenure posts have  the  same
           kind of order. By an amendment  of  Fundamental  Rule  9(30)  in
           1967, a form was prescribed and that form was used in his  case.
           These notifications  also  do  not  indicate  that  this  was  a
           deputation  which  could  be  terminated  at   any   time.   The
           notifications involving deputation always clearly so  state  the
           fact. Many notifications were brought to our notice  during  the
           argument which bear out this fact and none to the  contrary  was
           shown. Das thus held a tenure post which was to last  till  July
           29, 1969. A  few  months  alone  remained  and  he  was  not  so
           desperately required in Assam that he could  not  continue  here
           for the full duration. The fact that it was found  necessary  to
           break into his tenure period close to its end must  be  read  in
           conjunction with the three alternatives  [pic]and  they  clearly
           demonstrate that the intention was to  reduce  him  in  rank  by
           sheer pressure of denying him a secretaryship. No secretary,  we
           were told, has so far been sent back in  this  manner  and  this
           emphasises the element of penalty. His retention  in  Government
           of India on a lower post thus was a reduction in rank."


      12.   After so holding, the Court opined that the appellant was  being
      reduced in rank with a stigma upon  his  work  without  following  the
      procedure  laid  down  in  Article  311(2)  of  the  Constitution  and
      consequently quashed the order of reversion and directed retention  of
      the appellant in a post comparable to  the  post  of  a  Secretary  in
      emoluments till such time as the tenure lasted.
      13.    Mr.  Gonsalves,  learned  senior  counsel,   has   also   drawn
      inspiration from a recent authority in Ashok Kumar  Ratilal  Patel  V.
      Union of India and Another[2]. In the said case, the  appellant  while
      functioning as Director, Computer Department in Hemchandracharya North
      Gujarat University applied through  proper  channel  pursuant  to  the
      advertisement for the post of Director under the All India Council for
      Technical Education (for short "AICTE"), the 2nd  respondent  therein.
      Eventually, the terms and  conditions  attached  to  the  letter  were
      issued.  It contained that the deputation would be for a period of one
      year and extendable for a total period of three years on yearly basis.
       The communication that was sent by the appellant therein to the AICTE
      was to the effect that he had requested his University to relieve  him
      to join AICTE on deputation within the joining date suggested  by  the
      Council.  The University, in  its  turn,  by  letter  dated  20.2.2010
      informed  the  2nd  respondent,  AICTE,  that  the  approval  of   the
      deputation given by the  Executive  Council  by  the  University  with
      further information that the appellant would be relieved on 17.3.2010.
        The  salary  component  was  also  mentioned  in  the  said  letter.
      Thereafter, the AICTE, on receipt of the letter  from  the  University
      withdrew the offer of appointment  issued  to  the  appellant  on  the
      ground that the deputation from higher post  to  lower  post  was  not
      admissible under the Rules. This Court reproduced the relevant portion
      of the grounds of the impugned order.  Be it noted,  after  the  offer
      was cancelled, another advertisement  was  published  which  was  also
      assailed by the appellant before the Gujarat High Court which also did
      not meet with any success.  It was contended before  this  Court  that
      his was  not  a  case  of  transfer  on  deputation,  but  a  case  of
      appointment on  deputation  after  following  all  due  procedure  for
      appointment and selection  and,  therefore,  in  the  absence  of  any
      illegality in selection, it was not open to the respondent  to  cancel
      the offer of appointment as that would fall foul of Article 14 of  the
      Constitution of India.  On behalf  of  the  respondents,  the  grounds
      mentioned in the letter were urged i.e the person getting  the  higher
      scale of pay could not be deputed against a lower scale  of  pay;  and
      that the appellant therein had no right to claim  his  entitlement  to
      the post of Director, AICTE.
      14.   In the above backdrop, this Court  made  a  distinction  between
      'transfer on deputation' and 'appointment on deputation' and proceeded
      to lay down thus:
           "14. However, the aforesaid principle cannot be made  applicable
           in the matter of appointment  (recruitment)  on  deputation.  In
           such case, for appointment on deputation in the services of  the
           State or organisation or State within the meaning of Article  12
           of the Constitution of India, the provisions of Article  14  and
           Article 16 are to be followed. No person  can  be  discriminated
           nor is it open to the appointing authority to act arbitrarily or
           to pass any order in violation of Article 14 of the Constitution
           of India. A person who applies for appointment on deputation has
           an indefeasible right to be treated fairly and equally and  once
           such  person  is  selected  and  offered  with  the  letter   of
           appointment on deputation, the same cannot be  cancelled  except
           on the ground of non-suitability or unsatisfactory work.


           15. The present case is not a case of transfer on deputation. It
           is a case of appointment on deputation for  which  advertisement
           was issued and after due selection, the offer of appointment was
           issued in favour of the appellant. In such circumstances, it was
           not open for the respondent to argue that the appellant  has  no
           right to claim deputation and the respondent  cannot  refuse  to
           accept the joining of most eligible selected candidate except on
           ground of unsuitability or unsatisfactory performance".


      15.   Eventually,  taking  note  of  the  communications,  this  Court
      directed as follows:
           "18. For the reasons aforesaid, the impugned order of withdrawal
           of appointment dated 11-3-2010 and the  order  of  the  Division
           Bench of the Gujarat High Court cannot be sustained and they are
           accordingly set aside. As the post of  Director  is  vacant,  in
           view of the interim order  of  this  Court  dated  9-5-2011,  we
           direct the 2nd respondent to accept the joining of the appellant
           for a period of one year on deputation which is  to  be  counted
           from the date of his joining and other terms and  conditions  of
           deputation  will  remain  same.  North  Gujarat  University   is
           directed to relieve the appellant with further direction to  the
           2nd respondent to accept the joining of the appellant within one
           week from the date of reporting by the appellant."


      16.   The controversy that has emerged in the instant case  is  to  be
      decided on the touchstone of the aforesaid principles of law.  We have
      already opined that it is not a case of simple transfer.  It is not  a
      situation where one can say that it is a  transfer  on  deputation  as
      against an equivalent post from one cadre to another or one department
      to another.  It is not a deputation from a Government Department to  a
      Government Corporation or one Government to the other.   There  is  no
      cavil over the fact that the post falls in a  different  category  and
      the 1st respondent had gone through the whole gamut of selection.   On
      a  studied  scrutiny,  the  notification  of  appointment   makes   it
      absolutely clear that it is a tenure posting and the fixed  tenure  is
      five years  unless  it  is  curtailed.   But,  a  pregnant  one,  this
      curtailment cannot be done  in  an  arbitrary  or  capricious  manner.
      There has to have some rationale.  Merely  because  the  words  'until
      further orders' are  used,  it  would  not  confer  allowance  on  the
      employer to act with caprice.
      17.   Presently, we shall  scrutinise  under  what  circumstances  the
      order of repatriation has been  issued.   The  impugned  communication
      dated 17.1.2005 by the Under Secretary to  the  Government  of  India,
      reads as follows:
                           "Immediate/confidential
                           No. 10/7/2004-EO(SM.II)


                             Government of India
                Secretariat of the appointments committee of
                                 The Cabinet
             Ministry of Personnel, Public Grievances & Pensions
                     Department of Personnel & Training


                                     New Delhi, dated the 17th January, 2005


           Reference correspondence resting with department  of  Industrial
           Policy & Promotion DO No. 8/52/2001-PP&C, dated 9.12.2004.


           2.    The appointments committee of the Cabinet has approved the
           following proposals:


           i.    Premature  repatriation  of  Dr.  S.N.  Maity,  controller
           General of Parents, Designs and  trade  Marks  (CGPDTM)  to  his
           parent department w.e.f. 31.08.2004 (AN) and


           ii.   entrusting  current  charge  of  the  post  of  controller
           General of Patents, Designs and Trade Marks (CGPDTM) to Shri  S.
           Chandrasekaran, Joint Controller of Patents and  Designs  w.e.f.
           1st September, 2004 for a period of 1 year,  within  which,  the
           Department may be directed to finalise selection  of  a  regular
           incumbent of the post.


                                                                        Sd/-
                                                            (Ravindra Kumar)
                                      Under Secretary to the Govt. of India"


      18.   The order is absolutely silent on any aspect.  An  argument  has
      been advanced by Mr. Gonsalves, learned senior  counsel  for  the  1st
      respondent that this letter  was  issued  because  of  some  frivolous
      complaints made against the 1st respondent and also regard  being  had
      to his stern and strict dealings by him pertaining to certain aspects.
       Be that as it may,  the  letter  is  absolutely  silent  and  it  has
      curtailed the  tenure  of  posting  without  any  justifiable  reason.
      Regard being had  to  the  nature  of  appointment,  that  is,  tenure
      appointment, it really cannot withstand  close  scrutiny.   Therefore,
      the judgment passed by the  High  Court  lancinating  the  said  order
      cannot really be found fault with.
      19.   Though we have accepted the reasoning  of  the  High  Court  for
      axing the order of repatriation, yet at this distance of time, we find
      it difficult to give effect to the direction for reinstatement in  the
      post of CGPDTM.  The 1st respondent was appointed on  29.7.2003.   The
      period is since long over.  The stand of the 2nd  respondent  is  that
      the 1st  respondent,  after  being  relieved,  joined  in  his  parent
      department on 16.11.2004 and has been holding the post of  Scientist-G
      w.e.f. 13.2.2007 and continuing on the same  post.   It  is  also  the
      stand of the respondents that a new person has been holding the  post.


      20.   Mr. Gonsalves, learned senior counsel would submit with emphasis
      that the 1st respondent should be allowed to function for the rest  of
      the period of the tenure which he could  not  because  of  unwarranted
      interference, as that would not only sub-serve the  cause  of  justice
      but also would be a redemption of a cause which has been scuttled  and
      strangulated.  Resisting the aforesaid stand it is  submitted  by  Mr.
      Tushar Mehta, learned ASG for the Union of India that  the  expiry  of
      six years of time has to be kept in view, for it  would  be  extremely
      difficult to put the clock back.  In this context, we may  refer  with
      profit to an authority in Sri Justice S.K. Ray V. State of Orissa  and
      others[3].  We are conscious that the factual matrix in the said  case
      was different, but we are referring to it for the purpose of  analogy.
      In the said case, the appellant,  formerly  a  Chief  Justice  of  the
      Orissa High Court was appointed as the Lokpal under the Orissa  Lokpal
      and Lokayuktas Act, 1970.  The said  enactment  was  repealed  by  the
      Orissa Lokpal and Lokayuktas (Repeal) Ordinance, 1992 which came  into
      effect on 16.7.1992.  He ceased to hold the  office  of  Lokpal.   The
      said Ordinance was subsequently replaced  by  the  Orissa  Lokpal  and
      Lokayuktas (Repeal) Act, 1992.  The appellant  therein  filed  a  writ
      petition before the High Court contending  that  he  incurred  certain
      disabilities in ceasing to hold office being  ineligible  for  further
      employment under the State Government or any other employment under an
      office in any such local authority, corporation, government company or
      society, which is subject to the control of the State  Government  and
      which is notified by the Government in that behalf.   He  claimed  for
      compensation for loss of salary for the remainder period of his tenure
      as Lokpal, pension with effect from 16-7-1992 as per  Rule  7  of  the
      Orissa Lokpal (Conditions of  Service)  Rules,  1984,  refund  of  the
      amount of pension deducted from his salary during the period 17-8-1989
      to 16-7-1992 and payment of encashment value of unutilised leave which
      accrued to him during the period 17.8.1989 to 16.7.1992.
      21.   The High Court declined to grant him the compensation  for  loss
      of salary; but certain other reliefs were granted by  the  High  Court
      which need not be referred to.   This  Court  adverted  to  the  issue
      whether the appellant was entitled to any  compensation  for  loss  of
      salary for the remainder period of his tenure as Lokpal,  which  stood
      curtailed by latter enactment.   The Court also took note of the  fact
      of repeal, abolition  of  post  and  ultimately  opined  that  in  the
      obtaining factual matrix  therein,  adequate  compensation  should  be
      granted and the compensation should be the loss of his salary for  the
      remainder tenure for which he would have held the office of Lokpal.
      22.   We will be failing in our duty, inter alia, if we do  not  state
      the rationale behind that direction.  It is as follows:
           "9. There are two ways of understanding the effect of  abolition
           of the office of Lokpal, which resulted in  curtailment  of  the
           tenure of the office of the appellant. One is that the appellant
           having held the office at least for some time is subject to  all
           the restrictions  arising  under  the  provisions  of  the  Act,
           including those which debar him from holding any office  on  his
           ceasing to be Lokpal. The other point of view could be  that  on
           the abolition of the post the  restrictions  as  to  holding  of
           office on the appellant ceasing to be the  Lokpal  will  not  be
           attached to him. The  latter  view,  if  taken,  would  lead  to
           incongruous results because the incumbent in the Office  of  the
           Lokpal, having functioned as such at least for some time,  would
           have dealt with many matters and,  therefore,  to  maintain  the
           purity of that office, the restrictions imposed  under  the  Act
           should be maintained. The only other reasonable way,  therefore,
           is to interpret the provisions to the effect that even when such
           restrictions continue  to  be  operative  on  abolition  of  the
           office, the incumbent in office should be reasonably compensated
           not for deprivation of the office  but  for  attachment  of  the
           restrictions thereafter.


           10. The learned counsel for the respondents contended that  loss
           of employment in such a  situation  is  only  a  contingency  of
           service and the right to abolish the post is available with  the
           Government in the same manner as the right to create a post  and
           a person whose post has been abolished should not be entitled to
           salary.  In  our  view,  these  arguments  have  absolutely   no
           relevance to the question which we have examined.  The  crux  of
           the matter in this case is the effect of the disqualification of
           not holding any office after ceasing to hold the Office  of  the
           Lokpal. He is deprived of all other offices or business interest
           when he holds the Office of the Lokpal and the office, which  he
           holds, is also denied to him by reason of the repealing Act.  If
           the argument of the  learned  counsel  for  the  respondents  is
           accepted, it would lead to  incongruity  and  would  baffle  all
           logic.


           11. The learned counsel for the  respondents  further  submitted
           that the  appellant  had  not  presented  his  case  or  claimed
           compensation for loss of future employment but has claimed  only
           the loss for the present tenure and, therefore,  we  should  not
           grant any relief to him. A writ petition, which is  filed  under
           Article 226 of the Constitution, sets  out  the  facts  and  the
           claims arising thereto. Maybe, in a given case, the reliefs  set
           forth may not clearly set out the reliefs  arising  out  of  the
           facts and circumstances of the case. However, the courts  always
           have the power to mould the reliefs and grant the same."


      23.   We repeat at the cost  of  repetition  that  we  are  absolutely
      conscious in the said case, the situation was different, but the Court
      moulded the relief and granted the compensation.  The  Court  did  not
      think to go for the alternative i.e. once there  is  an  abolition  of
      post, the restrictions of holding office would  not  be  attracted  to
      him.  The Court did not think of the second situation  as  the  result
      would be incongruous and baffle all logic.  We ingeminate that we have
      referred  to  that  authority  only  to  keep  in  view,  in   certain
      circumstances relating to curtailment of tenure, the Court  can  mould
      the relief depending  upon  the  fact  situation.   In  the  obtaining
      factual scenario, the period has  been  over  since  last  six  years.
      There had been an order of status quo by  this  Court  on  01.11.2006.
      The 1st respondent has come back to his parent Department and  working
      in the post of Scientist-G.  In distinction to the decision in  Debesh
      Chandra Das (supra), the period of tenure is not available  which  was
      there in the said case.   Similarly,  in  Ashok  Kumar  Ratilal  Patel
      (supra), the appellant was not appointed  and,  therefore,  the  Court
      directed  the  authorities  to  appoint  him  as  per  the  orders  of
      appointment.  In the present case, we are of the considered view,  the
      appellant should not suffer the loss of salary, but if we  direct  for
      his reinstatement as the High  Court  has  done,  it  will  create  an
      anomalous situation.  It would be, in our considered view, not apt  at
      this juncture and, therefore, the  cause  of  justice  would  be  best
      subserved if he is allowed to get the entire salary that  was  payable
      to him for the post of CGPDTM for the balance period,  that  is,  five
      years minus the period he had actually served and drawn  salary.   The
      balance amount shall be paid with interest  @  9%  p.a.  within  three
      months hence.
      24.   Another aspect that  has  been  highlighted  before  us  by  Mr.
      Gonsalves is that the 1st respondent should be entitled  to  draw  the
      same salary that he was drawing on the basis of  his  last  pay  drawn
      when he came back to his parent Department.  It is  an  admitted  fact
      that he was drawing a higher scale while holding the post  of  CGPDTM,
      but the question is whether the said pay scale should be maintained in
      the parent department.  Mr. Praveen Swarup, learned counsel  appearing
      for the 2nd respondent has commended us to the decision  in  Union  of
      India & Others  V.  Bhanwar  Lal  Mundan[4].   In  the  said  case,  a
      deputationist was getting a higher scale of pay in the post  while  he
      was  holding  a  particular  post   as   deputationist.    After   his
      repatriation to the parent department, on selection to higher post, he
      was given higher scale of pay as it was fixed keeping in view the  pay
      scale drawn by him while he was working in the ex-cadre post.  In that
      context, this Court  opined  that  such  fixation  of  pay  was  fully
      erroneous and, therefore, the authorities were within their domain  to
      rectify it.  Mr. Gonsalves, learned senior counsel would  submit  that
      here it was as tenure posting and, therefore, he is  entitled  to  get
      the equivalent pay which he was holding as a tenure-post holder.   The
      said distinction, on a first glance, may look  attractive,  but  on  a
      deeper scrutiny, has to pale into insignificance.  Assuming  he  would
      have completed  the  entire  tenure  of  five  years,  he  would  have
      definitely come back to his parent department.  There is  no  rule  or
      regulation that he will get the equivalent pay  scale  in  his  parent
      department.  The normal rule relating to pay scale  has  to  apply  to
      avoid any kind of piquant and uncalled for situation.  Therefore,  the
      submission does not commend acceptation and accordingly we  repel  the
      same.
      25.   Consequently, the appeal is  allowed  to  the  extent  indicated
      above.  There shall be no order as to costs.




                                              ............................J.
                                                               (Dipak Misra)




                                             .............................J.
                                                           (V. Gopala Gowda)
      New Delhi;
      January 06, 2015
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[1]  (1969) 2 SCC 158
[2]  (2012) 7 SCC 757
[3]  (2003) 4 SCC 21
[4]  (2013) 12 SCC 433

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REPORTABLE


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