Central Administrative Tribunal - Delhi
Dilip Kumar Meena vs North Delhi Municipal Corporation on 28 August, 2018
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.1257/2018
CP No.339/2018
This the 28th day of August, 2018
Hon'ble Mr. Justice L. Narasimha Reddy, Chairman
Hon'ble Ms. Aradhana Johri, Member (A)
OA No.1257/2018
Dilip Kumar Meena S/o Ram Pratap Meena,
Addl. Dy. Commissioner (A),
R/o Flat No.174, Pkt-7,
Sector-12, Dwarka,
New Delhi-110075. ... Applicant
( By Mr. M. K. Bhardwaj, Advocate )
Versus
1. North Delhi Municipal Corporation
through its Commissioner,
Civic Centre, New Delhi.
2. Addl. Commissioner (Establishment),
North Delhi Municipal Corporation,
Civic Centre, New Delhi.
3. Ministry of Defence
through its Secretary,
South Block, New Delhi. ... Respondents
( By Mr. R. V. Sinha, Mr. Vaibhav Pratap Singh and Mr. Manish
Kumar, Advocates )
CP No.339/2018
Dilip Kumar Meena S/o Ram Pratap Meena,
Addl. Dy. Commissioner (A),
OA-1257/2018
2
R/o Flat No.174, Pkt-7,
Sector-12, Dwarka,
New Delhi-110075. ... Applicant
( By Mr. M. K. Bhardwaj, Advocate )
Versus
1. Shri Madhup Vyas,
North Delhi Municipal Corporation,
through its Commissioner,
Civic Centre, New Delhi.
2. Shri S. K. Bhandari,
Addl. Commissioner (Establishment),
North Delhi Municipal Corporation,
Civic Centre, New Delhi. ... Respondents
( By Mr. R. V. Sinha, Mr. Vaibhav Pratap Singh and Mr. Manish
Kumar, Advocates )
ORDER
Justice L. Narasimha Reddy, Chairman :
The applicant is a Joint Secretary in the Ministry of Defence, working in the Air Headquarters. The North Delhi Municipal Corporation, the first respondent herein, issued a circular dated 06.08.2015, proposing to fill the posts of Deputy Commissioner, Addl. Dy. Commissioner/Joint Assessor & Collector and Assistant Commissioner/Dy. Assessor & Collector, through the process of deputation. By indicating the scales of pay attached to those posts, and the broad conditions of deputation, the first respondent informed all the Secretaries OA-1257/2018 3 of Government of India, and all Chief Secretaries of States and Union Territories, to forward the applications, bio data, ACRs for the preceding five years, integrity certificates, vigilance clearance and cadre clearance etc., in respect of suitable and willing officers. In the process, the applicant forwarded his application, and ultimately came to be appointed on deputation through order dated 14.12.2015 initially for a period of one year. That was preceded by the order of relief and concurrence dated 13.12.2015 passed by the lending department. The deputation was thereafter extended from time to time, and the last one was through the order dated 06.12.2017 for the period from 14.12.2017 to 13.12.2018.
2. Through office order dated 22.03.2018, the applicant was repatriated to his parent department, and relieved from the first respondent Corporation, with a direction to report to his parent department in the Ministry of Defence with immediate effect. The said order is challenged in this OA.
3. Apart from seeking a relief to set aside the order dated 22.03.2018, the applicant sought a direction to the respondents 1 and 2 to continue him on deputation till OA-1257/2018 4 13.12.2018, and to take appropriate decision on the four representations said to have been submitted by him.
4. The applicant contends that the circular dated 06.08.2015 makes it clear that the terms and conditions of deputation prevailing in the Government of India services, are applicable to the deputation in question, and in that context, the office memorandum dated 17.06.2010 (Annexure A-11) issued by the DoP&T, becomes relevant. It is pleaded that according to para 9 of the said office memorandum, if any premature repatriation is to take place, it must be preceded by notice, and that such notice is not issued in the present case. Other grounds are also urged.
5. Respondents 1 and 2 filed a detailed counter affidavit. It is stated that though the applicant was taken on deputation with the hope that his experience would be of use to the Corporation, the conduct of the applicant was found to be very detrimental to it. It is stated that the applicant was responsible for altering the tender conditions of certain important works, and on finding certain irregularities on his part, an FIR was also registered. The CVC is also said to have recommended initiation of major penalty proceedings, and in OA-1257/2018 5 this scenario, the repatriation cannot be found fault with. As regards the plea relating to notice, their contention is that it applies only to the original deputation period of one year. Alternatively, it is pleaded that non-compliance with the departmental guidelines would not be detrimental to the order of repatriation.
6. Mr. M. K. Bhardwaj, learned counsel for the applicant, advanced extensive arguments, touching various issues. He contends that the issuance of a notice is mandatory, and failure to comply with that would vitiate the entire proceedings. It is also his case that the contents of the counter affidavit would disclose that the order of repatriation was passed as a punitive measure, and the applicant cannot be subjected to such treatment. He has placed reliance upon several precedents.
7. Mr. R. V. Sinha, learned counsel for the respondents, on the other hand, submits that the applicant does not have any vested right to continue on deputation, that too, far beyond the original period of deputation. He contends that on being apprised of the acts and omissions on the part of the applicant, the cadre controlling authority has accorded its OA-1257/2018 6 approval for premature repatriation, and the record discloses several objectionable acts on the part of the applicant.
8. The initial deputation of the applicant was for a period of one year. It was extended from time to time, and the last such extension was up to 13.12.2018. The order of repatriation was passed in the month of March, 2018. The original order of deputation does not speak of any notice in the event of a premature repatriation. It is only the cadre controlling authority which has insisted that extension of deputation or premature repatriation shall be with prior notice to them. The relevant paragraph reads as under:
"1. Reference North Delhi Municipal Corporation letter No. F.11(2)/CED/86/ Pt.VII/2015/3682 dated 06/11/2015.
2. Consequent upon approval of the Cadre Controlling Authority, Shri D. K. Meena, Jt. Director, Air Headquarters, is hereby relieved of his duties w.e.f. 14th December, 2015 (F/N) and directed to report to you to take up the appointment as Addl. Dy. Commissioner/Jt. Assessor & Collector (PB-3 Rs.15600-39100 with Grade Pay Rs.7600/-) in North Delhi Municipal Corporation on deputation basis initially for a period of one year.
3. On expiry of deputation in the Borrowing Department, the officer would stand reverted to AFHQ Cadre unless/otherwise prior concurrence of the Cadre Controlling Authority for considering extension of deputation tenure of OA-1257/2018 7 the officer is obtained by the Borrowing Department. Under no circumstances, the officer shall be repatriated prematurely by the Borrowing Department, without giving prior notice to the Cadre Controlling Authority to that effect."
9. The applicant has been repatriated once in the month of September, 2017. However, on a representation made by him, the order of repatriation was withdrawn, and extension was granted. Thereafter, the present impugned order was passed.
10. The clause relied upon by the applicant, which is referable to the office memorandum of the DoP&T, reads as under:
"9. Premature reversion of deputationists to parent cadre.
Normally, when an employee is appointed on deputation/foreign service, his services are placed at the disposal of the parent Ministry/Department at the end of the tenure. However, as and when a situation arises for premature reversion to the parent cadre of the deputationists, his services could be so returned after giving an advance notice of at least three months to the lending Ministry/Department and the employee concerned."
11. It is fairly well settled through a catena of decisions that deputation of an employee is always in the discretion of his OA-1257/2018 8 parent department, and continuance thereof would depend upon the discretion of the borrowing department. If the borrowing department is not satisfied with the performance of the employee on deputation, it has every right to put an end to the deputation, and send him back to the parent department.
12. The notice contemplated under para 9 extracted above, is mostly a measure to avoid inconvenience to the lending department as well as the employee. In a given case, the lending department may have made an alternative arrangement in the vacancy caused on account of the deputation of its employee to other department. In case repatriation is ordered, there must be a place for the repatriated employee to work in the parent department. Similarly, the employee on deputation cannot be taken by surprise. At the same time, the facility cannot be taken to the level of an indefeasible right of the employee.
13. Basically, what are contained in the office memorandum issued by the DoP&T, are guidelines. By their very nature, they are framed mostly for the guidance of the departments and do not confer any right on the employees. Even otherwise, para 9 thereof does not contain any element of OA-1257/2018 9 mandatory requirement. The reason is that it starts with the word "Normally", thereby indicating that if the situation warrants, the procedure prescribed therein need not be followed.
14. In the case of the applicant, the issue of repatriation was very much on the cards. In September, 2017, an order of repatriation was passed, but on representation, he was retained. The record discloses that the applicant was facing serious allegations, so much so, an FIR was registered. The respondents did not want to indicate all that in the order of repatriation, and intended to put an end to the deputation in almost, a harmless manner. It is the applicant who has virtually compelled the respondents to spell out the reasons that prompted them to order repatriation. Left with no alternative, the respondents have made various acts of omissions on the part of the applicant, part of the record. Though this is not the stage or forum to analyse those issues or to express opinion, this much can be said that the repatriation is not bereft of reasons.
15. In the judgments relied upon by the learned counsel for the applicant, the fact that deputation cannot be claimed as OA-1257/2018 10 of right, and repatriation is in the discretion of the concerned department, was reiterated. For example, in Union of India v V. Ramakrishnan & others [(2005) 8 SCC 394], the Hon'ble Supreme Court held as under:
"Ordinarily, a deputationist has no legal right to continue in the post. A deputationist indisputably has no right to be absorbed in the post to which he is deputed. However, there is no bar thereto as well. It may be true that when deputation does not result in absorption in the service to which an officer is deputed, no recruitment in its true import and significance takes place as he is continued to be a member of the parent service. When the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability or unsatisfactory performance. But, even where the tenure is not specified, an order of reversion can be questioned when the same is mala fide. An action taken in a post haste manner also indicates malice. [See Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia and Others, (2004) 2 SCC 65, para 25]"
Admittedly, in the instant case, no mala fides are attributed, much less, they are proved.
16. In OA No.2005/2008 - Ved Prakash v Union of India & others, decided on 12.05.2009, this Tribunal took note of the fact that an order of repatriation can be questioned even OA-1257/2018 11 by lifting the veil, and if the same is found to be an outcome of some aspersions against the employee, and is mala fide, it can be set aside. In other words, the occasion to issue notice would arise if only the order of repatriation was passed by casting aspersions, and such aspersions are mala fide. It is brought to our notice that except that various acts of omissions on the part of the applicant were communicated to his appointing authority, no definite view as such was expressed. Further, the applicant did not attribute mala fides against any individual officer by making him a party by name to these proceedings.
17. In G. J. Fernandez v State of Mysore & others [AIR 1967 SC 1753], the Hon'ble Supreme Court held that the administrative instructions cannot be equated to the statutory rules, and even if there is any breach of such instructions, it does not confer any right on the citizen. The relevant portion reads as under:
"....Art. 162 does not confer any authority on the State Government to issue statutory rules. It only provides for the extent and scope of the executive power of the State Government, and that coincides with the legislative power of the State legislature. Thus under Art. 162, the State Government can take executive action in all matters in which the legislature of the State can pass laws. But Art. 162 itself does not confer any rule making power on the State Government in OA-1257/2018 12 that behalf. We are therefore of opinion that instructions contained in the Code are mere administrative instructions and are not statutory rules. Therefore even if there has been any breach of such executive instructions that does not confer any right on the appellant to apply to the court for quashing orders in breach of such instructions...."
18. At any rate, the applicant could have continued for three more months, had a notice been issued. By now, he continued beyond that period, i.e., almost six months more, on the strength of the interim order passed in this OA.
19. We do not find any basis to interfere with the order of repatriation impugned in this OA. The OA is accordingly dismissed. Interim order passed therein shall stand vacated. There shall be no order as to costs.
CP No.339/2018
20. This contempt case is filed alleging that the respondents did not implement the interim order passed by this Tribunal on 28.03.2018 in OA No.1257/2018. Through the said order, the Tribunal stayed the operation of repatriation of the applicant. The respondents filed a counter affidavit stating that the applicant is being continued in the post. In any case, OA-1257/2018 13 we have dismissed the OA today itself through a separate order. The contempt case is accordingly closed.
( Aradhana Johri ) ( Justice L. Narasimha Reddy ) Member (A) Chairman /as/