Jharkhand High Court
Adwin Vinifred Tirkey vs Union Of India Through Secretary on 16 July, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:19494-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No.3494 of 2025
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Adwin Vinifred Tirkey, aged about 55 years, S/o Late Alfred Tirkey, R/o Back
of Akancha Apartment, Near Birsa Bus Stand, Chunwatoli, Kantatoli, P.O.-
Kantatoli, P.S.-Lower Bazar, Ranchi, Jharkhand-834001.
.... .... Petitioner
Versus
1. Union of India through Secretary, Department of Personnel & Training,
Ministry of Personnel, Public Grievances & Pensions, North Block, Central
Secretariat, P.O.-GPO New Delhi, P.S. Central Secretariat Metro, New
Delhi, Delhi-110001.
2. Deputy Comptroller and Auditor General (HR), having its office at the
Office of the Comptroller & Auditor General of India, Pocket-9, Deen
Dayal Upadhyaya Marg, P.O.-Indraprastha, P.S.-Parliament Street, New
Delhi-110124.
3. The Assistant Comptroller & Auditor General (N), representing the
Comptroller & Auditor General of India, having office at Pocket-9, Deen
Dayal Upadhyaya Marg, P.O.-Indraprastha, P.S.-Parliament Street, New
Delhi-110124.
4. Principal Accountant General (Audit) having its office at A.G. Office,
North Office Para, Shyamali Colony, Doranda, P.O. & P.S.- Doranda,
Ranchi, Jharkhand-834002. .... .... Respondent(s)
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Petitioner(s) : Mr. Rajiv Sinha, Adv.
Ms. Shreesha Sinha, Adv.
Mr. B.K. Prasad, Adv.
Mr. Niraj Kumar, Adv.
For the Respondent(s) : Mr. Anil Kumar, ASGI
Mr. Niki Sinha, CGC
Mr. Rohit Sinha, Adv.
----
th
02/Dated: 16 July, 2025
Per Sujit Narayan Prasad, J.
1. The case has been listed before the Division Bench No.I.
2. There is an administrative order passed by Hon'ble the Chief Justice to the effect that fresh and urgent matters, if any, of the roster of the Division Bench No.I may be mentioned before this Court i.e. Division Bench No.II.
2025:JHHC:19494-DB
3. The matter has been mentioned at 10:30 A.M. by showing the urgency that, if the case of the petitioner is not heard, there is every likelihood of prejudice being caused to the petitioner, as the issue involved pertains to repatriation.
4. It has also been submitted that the consent of the learned counsel for the parties is already there.
5. Considering the same, the matter has been directed to be taken up at 02:15 P.M.
6. In pursuant to the said direction, a production list has been published for W.P.(C) No.3494 of 2025 under the heading for "Fresh Filing (Admission)".
7. The matter is being heard with the consent of the learned counsel for the parties.
8. The present writ petition has been filed under Articles 226 and 227 of the Constitution of India.
9. Leave has been sought for to modify the provision of law in which the writ petition has been filed so as to delete Article 227 of the Constitution of India therefrom.
10. Such leave is granted.
11. Let the correction be made in course of the day.
12. The present writ petition has been filed assailing the order dated 20.06.2025 (Annexure-3) passed by the Central Administrative Tribunal (Circuit Bench at Ranchi) passed in M.A. No.354 of 2025 (Arising out of O.A. No.289 of 2025) filed for grant of stay of the impugned order dated 21.02.2025 (Annexure- 12 in O.A. No.289 of 2025), whereby the learned tribunal expressed his opinion and has also given findings on the main issue involved in the Original Application (O.A.) while rejecting the Miscellaneous Application (M.A.) for interim relief and Page | 2 W.P. (C) No.3494 of 2025 2025:JHHC:19494-DB fixed the matter on 14.07.2025 for hearing of the O.A. in mala fide exercise of power and is contrary to the settled principles of law.
13. The factual aspect which has been narrated by learned counsel appearing on behalf of the petitioner in course of argument is that the writ petitioner had been appointed as "auditor" sometime in the year 1995 in the office of Director General of Audit, Southern Railway, Chennai, Tamil Nadu. The wife of the writ petitioner is also in service working as an assistant teacher in the Government school posted at Mandar in the district of Ranchi.
14. The office of the Comptroller and Auditor General of India has come out with a policy decision to deal with the issue of deputation including the the employees who are currently on deputation beyond 7 years, had been decided to be repatriated to their parent cadre which was issued on 27.01.2025.
15. It has been contended that the writ petitioner considering the said policy decision to be arbitrary and in the teeth of Article 15 (3) of the Constitution of India has assailed the same by filing original application before the learned Tribunal. The said application was also along with the application praying ad interim relief by filing a separate miscellaneous application being M.A. No.354 of 2025.
16. The ground was taken for grant of ad interim relief that if, before adjudication of this i.e. in absence of any declaration regarding the legality and propriety of the policy decision, if the said policy decision will be allowed to be acted upon then the writ-petitioner will suffer irreparable loss and injury and the very purport for which the writ petitioner has been posted on deputation at the place of posting of his wife will be frustrated.
17. It has also been pleaded before the learned Tribunal in order to make out a case, reliance has been placed upon the order passed at the Principal Benches Page | 3 W.P. (C) No.3494 of 2025 2025:JHHC:19494-DB Mumbai and Delhi. The applicants therein have been protected by granting ad interim stay up to by passing an order to maintain status quo. But the Tribunal had rejected the said miscellaneous application on the ground as per the learned counsel for the petitioner that even the discussion about the propriety of the policy decision has also been taken into account. Further, since, the prior notice has been issued in pursuant to the time has already been granted to prepare for repatriation to the parent cadre, hence, there is no violation of principle of natural justice. The said order is under challenge by filing the present writ petition.
18. Mr. Rajiv Sinha, learned counsel appearing for the petitioner has submitted that learned Tribunal, while rejecting the prayer for ad interim relief, has committed error rather the Principal Benches of Delhi and Mumbai had considered the issue of ad interim relief,when the issue was raised regarding the legality and propriety of the policy decision and the order of status quo was passed. But there is no consideration with respect to the reliance which has been placed on behalf of the petitioner regarding the order passed by the different Benches of the Tribunal.
19. The second ground has been taken that the period of deputation has already been extended of the writ-petitioner up to 16.08.2025 vide the decision taken by the competent authority vide order dated 10.07.2024 issued under the signature of Senior Administrative Officer (Appointment-I) with a copy to the Accountant General (Audit) issued to the Director General of Audit, Southern Railway, Chennai.
20. It has been submitted that the policy decision dated 27.01.2025 is subsequent to the decision taken by the competent authority dated 10.07.2024 and hence the said policy decision cannot be made applicable with retrospective effect and moreover by the communication dated 10.07.2024. The period of deputation Page | 4 W.P. (C) No.3494 of 2025 2025:JHHC:19494-DB has already been extended till 16.08.2025. Hence, the right has been accrued by the decision taken by the competent authority up to 16.08.2025, and in that view of the matter the policy decision dated 27.01.2025 will not have any adverse impact upon the interest of the writ-petitioner.
21. Learned counsel appearing for the writ-petitioner, based upon the applicability in the policy decision on the issue of its retrospective application as also the order had been passed by the different Benches, has tried to make out a case that prima facie case is in favour of the writ-petitioner and if during the subsistence period of the order dated 10.07.2024, by which the period of deputation had been extended till 16.08.2025, the policy decision if made applicable, then the writ-petitioner will suffer irreparable loss as the balance of convenience lies in his favour.
22. Learned counsel based upon the aforesaid ground has also submitted that the learned Tribunal has posted the matter for final hearing on 19.08.2025, hence, the interest of the petitioner may be protected up till 19.08.2025 at least.
23. Learned counsel appearing for the C.A.G. has submitted that there is no error in the order passed by the learned Tribunal in view of the position of law that a deputationist is having no vested right to be there in the post on which he has been posted on deputation.
24. It has been further submitted that if by the policy decision, the decision has been taken for repatriation, there cannot be any grievance of an employee and the deputationist has got no accrued right to remain in the post always on deputation.
25. Mr. Anil Kumar, learned A.S.G.I. has submitted that at the moment he is a former party, since, he has arrayed the party to the proceeding because of the reason that the Comptroller and Auditor General of India has followed the Page | 5 W.P. (C) No.3494 of 2025 2025:JHHC:19494-DB guidelines issued with respect to deputation as was formulated by the D.O.P.T. Now, the C.A.G. has already formulated its own policy decision, hence, the D.O.P.T. is nothing to do.
Analysis
26. We have heard the learned counsel for the parties and also appreciated the argument and also gone through the records.
27. It needs to refer herein at the outset that we are considering an application by which the prayer for ad interim stay has been refused by the Tribunal while the original application is pending.
28. It has been informed by the learned counsel for the parties that the next date is fixed on 19.08.2025.
29. Learned A.S.G.I. has submitted that he has already filed counter affidavit. Now the time has been taken as informed by the learned counsel for the C.A.G. that the adjournment has been sought for filing response on behalf of the petitioner and for that reason the date has been referred to be fixed on 19.08.2025. Meaning, thereby, the pleading is complete and the matter is expected to be decided on 19.08.2025. But in between, the writ petition has been filed against the order refusing to grant ad interim stay.
30. Since, we are dealing with the issue of ad interim relief, hence, the fundamental principles on which the interim relief is to be granted, needs to be referred herein i.e. the litigant concern, petitioner, is to make out a prima facie case, irreparable loss and the balance of convenience.
31. This Court is conscious with the settled position of law that while granting ad interim stay, three principles are required to be considered - (i) Prima facie case; (ii) The irreparable loss; and (iii) Balance of convenience.
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32. In Dalpat Kumar and Another vs. Prahlad Singh and Others, reported in AIR 1993 SC 276, the Hon'ble Apex Court has explained the scope of interim order i.e. the phrases "prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of Justice. The facts are eloquent and speak for themselves. It is well-nigh impossible to find from facts prima facie case and balance of convenience.
33. Reference is also required to be made with respect to the principle governing the field while granting ad-interim stay by the Court of Law as has been held by the Hon'ble Apex Court in the case of M. Gurudas & Ors. Vrs. Rasaranjan & Ors., reported in AIR 2006 Supreme Court 3275, wherein at para- 19, it has been laid down that while considering the application for injunction, the Court should pass an order thereupon having regard to prima facie case, balance of convenience and irreparable injury.
34. We are now proceeding on the aforesaid premise as to whether the petitioner has been able to make out a prima facie case or, the irreparable loss which he will sustain if the ad interim stay will not be passed in favour of the petitioner and in whose favour the balance of convenience lies.
35. Since, we are dealing with the issue of interim relief, hence, we are not going into the issue on merit. Otherwise, the case of the parties will be prejudiced. But for the purpose of arriving at prima facie satisfaction, this Court, on consideration of the documents particularly the policy decision dated 27.01.2025 by which the decision has been taken for repatriation of all deputationist who have Page | 7 W.P. (C) No.3494 of 2025 2025:JHHC:19494-DB already posted on the basis of deputation for a period of seven years over the grace time has also been taken for preparation for repatriation.
36. Relevant contents of the said policy decision need to refer herein:-
"Staff members who are currently on deputation beyond 07 years shall be allowed to continue their present approved of deputation for another 06 months from the date of issue of these guidelines, to give them and their parent office the time for preparation of repatriation."
37. It is an admitted fact that it would appear from the communication dated 10.07.2024 which is a communication made by the Senior Administrative Officer (Appointment-I) of the office of the Comptroller and Auditor General of India addressed to the Director General of Audit, Southern Railway, Chennai. The period of deputation of the writ petitioner has been extended from 17.08.2024 to 16.08.2025 (18th year).
38. The decision for repatriation is based upon the policy decision dated 27.01.2025 which is subsequent to the decision as communicated regarding the extension of period of deputation up to 16.08.2025. Therefore, the question which needs to be considered that the policy decision dated 27.01.2025 can have its retrospective applicability up to 16.08.2025.
39. The period of deputation has been extended up to 16.08.2025 meaning thereby a right has been accrued in favour of the writ-petitioner for continuation of his posting on deputation based upon the earlier decision up to 16.08.2025.
40. The right since has been accrued, then the policy decision dated 27.01.2025 will have its retrospective applicability affecting the accrued right without any specific stipulation made in the policy decision.
41. Law is well settled that statute cannot have its retrospective application unless made retrospective, either expressly or by necessary intendment. But the Page | 8 W.P. (C) No.3494 of 2025 2025:JHHC:19494-DB same is not applicable with respect to the policy decision. It is the settled position of law that the curtailment of right by applying the statute retrospectively vests with the parliament of the assembly not to the functionaries of the government.
42. The Hon'ble Apex Court in the case of T.N. Electricity Board v. Status Spg. Mills Ltd., (2008) 7 SCC 353 has categorically observed that a distinction must be made between a policy decision and a statute. Whereas prima facie a policy decision may not have any retroactive operation, a statute may have. ---"
43. The Hon'ble Supreme Court in State of M.P. and Ors. v. Yogendra Shrivastava (2010) 12 SCC 538 has held that it is well-settled that rights and benefits which have already been earned or acquired under the existing rules cannot be taken away by amending the rules with retrospective effect. For ready reference the relevant para is being quoted as under:
"15. -- But it is well settled that rights and benefits which have already been earned or acquired under the existing Rules cannot be taken away by amending the Rules with retrospective effect. (See N.C. Singhal v. Armed Forces Medical Services [(1972) 4 SCC 765] ; K.C. Arora v. State of Haryana [(1984) 3 SCC 281 : 1984 SCC (L&S) 520] and T.R. Kapur v. State of Haryana [1986 Supp SCC 584 : (1987) 2 ATC 595] .) Therefore, it has to be held that while the amendment, even if it is to be considered as otherwise valid, cannot affect the rights and benefits which had accrued to the employees under the unamended rules. ---"
44. The Hon'ble Apex Court in the case of Kusumam Hotels (P) Ltd. v. Kerala SEB, (2008) 13 SCC 213 has observed which reads as under:
21. It is now a well-settled principle of law that the doctrine of promissory estoppel applies to the State. It is also not in dispute that all administrative orders ordinarily are to be considered prospective in nature. When a policy decision is required to be given a retrospective operation, it must be stated so expressly or by necessary implication.
The authority issuing such direction must have power to do so. The Board, having acted pursuant to the decision of the State, could not Page | 9 W.P. (C) No.3494 of 2025 2025:JHHC:19494-DB have taken a decision which would be violative of such statutory directions.
45. The second ground as has been taken regarding the order of the Benches of the learned Tribunal in passing the ad interim stay as has been submitted by the learned counsel for the parties that the said order had also been placed before the Tribunal while considering the prayer made in the miscellaneous application but we have not found any reference either way in the order passed by the learned Tribunal.
46. In order to prove any factual aspect if the reliance has been placed upon any document, then is the bounding duty of the court of law to consider the same actively. Consideration means the active application of mind and it can go either ways i.e. either in favour of the litigant concern, the applicant or in favour of the respondent.
47. Further, the meaning of 'consideration' is the active application of mind of the factual aspect, as per the definition of 'consideration' given by the Hon'ble Apex Court in Chairman, Life Insurance Corporation of India & Ors. Vs. A. Masilamani, (2013) 6 SCC 530, wherein, at paragraph-19, it has been held by the Hon'ble Apex Court as under: - ― "19. The word "consider" is of great significance. The dictionary meaning of the same is, ―to think over , ―to regard as , or ―deem to be . Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term ―"consider" postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order.
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48. From the interpretation made by the Hon'ble Apex Court with respect to meaning of "consideration", it would be evident that consideration can only be said to be proper consideration if there is active application of mind."
49. This Court, in view of the aforesaid consideration, is of the view that the petitioner has been able to make out a prima facie case up to the rights accrued i.e. up to 16.08.2025 and the same ought to have been taken into consideration by the learned Tribunal.
50. This Court, therefore, is of the view that the interest of the petitioner is fit to be protected up to 16.08.2025 but as has been submitted by the learned counsel for the petitioner that the next date is fixed on 19.08.2025 and as such protecting the interest up to 16.08.2025 and leaving it open from 17.08.2025 to 19.08.2025, the day on which the matter has already been posted for adjudication, if the interest of the petitioner will not be protected, it will lead to irreparable loss to the petitioner.
51. Therefore, this Court is of the view that keeping the fact into consideration that pleading is also complete and the date has been fixed on 19.08.2025, hence, the interest of the petitioner is being protected up to 19.08.2025.
52. In view of the aforesaid discussion, the order dated 20.06.2025 passed by the Central Administrative Tribunal (Circuit Bench at Ranchi) passed in M.A. No.354 of 2025 (Arising out of O.A. No.289 of 2025 is, hereby, quashed and set aside.
53. The status quo as existing today is directed to be remain maintained up to 19.08.2025.
54. Learned counsel for the parties have undertaken before this Court that they shall not pray for any adjournment.
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55. This Court in view of the aforesaid, requests the learned Tribunal to decide the matter on 19.08.2025.
56. Accordingly, the present writ petition stands disposed of.
57. I.A. No.9029 of 2025 also stands disposed of.
(Sujit Narayan Prasad, J.) (Rajesh Kumar, J.) Amar-Shahid/-
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