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
-----------------------
[1] (1969) 2 SCC 158
[2] (2012) 7 SCC 757
[3] (2003) 4 SCC 21
[4] (2013) 12 SCC 433
-----------------------
REPORTABLE
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
-----------------------
[1] (1969) 2 SCC 158
[2] (2012) 7 SCC 757
[3] (2003) 4 SCC 21
[4] (2013) 12 SCC 433
-----------------------
REPORTABLE
