Rajasthan High Court - Jaipur
Anil Shukla vs National Council For Teacher Education on 31 May, 2001
Equivalent citations: 2002(5)WLC833
JUDGMENT Verma, J.
1. The petitioner is a Post-graduate being M.Sc. in Chemistry and also possession the degree of Ph.D., was employed as a Principal in the regular selection scale in Swami Pranavanand Mahavidhyalaya, Chattarpur which is a registered Educational society under the Societies Registration Act. Respondent No.1 i.e. National Council for Teachers Education (here-in-after referred to as the Council) which is a creature of the statute with the objects to achieve plan and gravity development of the Teachers Education System in the country and to regulate and proper maintenance of norms and standards of the Teachers Education System. The Parliament had enacted National Council of Teachers Education enacted National Council of Teachers Education Act 1993 which was enforced and made effective from 1.7.1995. The council was empowered to frame regulations governing the appointment and conditions of services of the officers and other employees of the council.
2. The council respondent No.1 had invited applications through advertisement dated 15.9.1995 for various posts vide Annexure-2. The petitioner was also one of the candidate for such appointment. He was fulfilling the conditions of eligibility. The selection committee constituted by the Council found the petitioner to be suitable on the post of Regional Director after holding the interviews of eligible candidates and the petitioner was so appointed on 5.3.1996 vide Annexure-3. In compliance of the appointment order dated 5.3.1996, the petitioner had joined the post of Deputy Secretary/Regional Director on 26.3.1996.
3. It is the case of the petitioner that even though vide Annexure-2 while inviting applications it was nowhere mentioned that the post in question was to be considered on deputation but while appointing the petitioner, it was mentioned in Annexure-3 that the petitioner is being appointed for a period of one year in the first instance with the likelihood of extension when no such condition was put in the advertisement. It was also mentioned in Annexure-3, on the heading of the subject, that the appointment to the post of Deputy Secretary/Regional Director of Regional Committee (NCTE) Jaipur/Bhopal/Bhubaneshwar/Bangalore is on deputation, Vide Annexure-5 dated 29.4.1997, the deputation period was extended for one year w.e.f. 25.3.1997 or till regular incumbent is appointed.
4. Even though the petitioner was employee of a private non- aided institution, a Shiksha Samiti, before joining the present officer, and there could not be any question of keeping the lien, as normally the lien is kept in regard to the permanent employee or a person in government or semi-government organisation but still the respondent No.2 Shiksha Samili had informed the respondent No.l that it was not possible for it to grant permission for further extension of deputation to the petitioner or to keep his lien vide its letter Annexure-6 dated 12.3.1998, and it was so repeated vide letter Annexure-7 dated 23.3.1998.
5. The petitioner on 26.3.1998 informed the council that he should be told of his status in view of the letters issued by the Shiksha Samiti, respondent No.2 of not keeping the lien any more in his old employment and requested the council to apprise him the position so that his employment is protected. The Shiksha Samiti once again vide Annexure-9 dated 28.3.1998 informed the position to the council and ultimately vide Annexure-10 dated 22/23.4.1998, the Shiksha Samiti had informed the council that if no communication is received by 22.5.1998, Shri Shukla will not be taken back.
6. Faced with the situation vide Annex.11 dated 2.5.1998, the petitioner asked the respondent No.1 either to make him regular or to relieve him so that he may go back to his original appointment as Principal to the Shiksha Samili. Nothing was heard and ultimately vide Annex. 12 dated 25.5.1998 when the petitioner was not informed of any action being taken by the council, the former employer of the petitioner terminated the services of ihe petitioner by terminating the lien w.e.f. 25.3.1998.
7. Faced with the above-said situation, the petitioner once again asked the respondent No.1 to decide his status as he was not relieved by the council to join his former employer by way of his request Annexure-13 on 1.7.1998 and again Annexure-14 on 30.1.1999, Annexure-15 dated 4.2.1999, Annexure-16 dated 11.2.1999 asking the council to regularise the services without any further delay. On 25.2.1999 i.e. much after the former employer of the petitioner had terminated the services of the petitioner for not joining back, the council had decided to repatriate the petitioner Dr. Shukla on completion of deputation of three years by informing his earlier employer. The petitioner was asked to hand over the charge vide order dt. 8.3.1999 (Annex.-18).
8. The respondent No.2 Shiksha Samiti to whom the respondent No.1 had informed that the petitioner stood repatriated now, wrote back to the council that despite repeated requests, the petitioner was not relieved to join back and therefore, the lien of the petitioner on the earlier post stood terminated w.e.f. 26.3.1998 at the risk of the council, meaning thereby, the council was informed that it was not possible for Shiksha Samiti to take the petitioner back with the result that the petitioner though stood repatriated, but he seems to have lost both the posts. Aggrieved by such action, the petitioner approached this court for quashing and setting aside the order dated 25.2.1999 and 8.3.1999 and to further declare that the petitioner was selected on permanent basis in the service of the council in view of advertisement or in the the iien of the petitioner by respondent No.2 be declared as nullity.
9. Respondent No.1 has filed the written statement. This court while issuing notices on 24.3.1999 had passed an interim order of status quo to be maintained. However, the, order of status quo was challenged before the Hon'ble Supreme Court. Respondent No.1 had initially filed the written statement only by taking preliminary objection to the effect that the petitioner was on deputation for three years and document Annexure-6, 16 and 19 had never been received by respondent No.1 and, therefore, there was no question had attached a letter Annexure R-1/2.The petitioner also relies on Annexure R-1/3 dated 21.3.1997, whereby the petitioner had made a request to extend his deputation as per rules. The council had made certain enquiries from the former employer to inform the council to the fact whether Shri Shukla was holding the position of Assistant Professor and the post of Principal of the college, which was replied by the former employer vide Annexure R-1/6 that Shukla was holding the post of Principal since 1.7.1986 in the scale of Rs. 3700-5700. It is stated in the written statement that the council had finalised the recruitment rules for Riling up the administrative post and has submitted them to the Central Government. The rules have been sent to the Central Government for approval. It is submitted by the respondent that there is no provision for regulation or absorption in any of the post of Regional Director and that the Council has adopted the rules of the Central Government in regard to deputation. In short the respondent No. 1 states that the petitioner could only have been appointed on deputation and not on regular basis neither he could be absorbed in the service of the council.
10. Respondent No.2 has also filed the written statement stating therein that the petitioner on his having been selected on the post of Deputy Secretary/Regional Director was relieved as stated in the petitioner and he was sent on deputation for three years. The respondent No.2 was not agreeable to extend the deputation period and had been writing to NCTE for taking a decision in this regard or to relieve the petitioner and that after termination of lien, the petitioner has no right to ask for rejoining on the post of the Principal with respondent No.2.
11. The petitioner in the rejoinder has attached postal registered letters receipt to show that he had sent the letters in question.
12. The agenda of 3rd meeting of the Executive Committee of NCTE dated 7.11.1998 is attached as Schedule with the rejoinder which reads as under:
'The Council can thus consider the cases of existing employee deputation for permanent absorption. The Council if they wish can also consider recruitment of employees of Central/State Governments and autonomous organizations on permanent absorption basis in future. The Council, before considering permanent absorption, recruitment on permanent absorption basis will take into account all relevant aspects such as suitability of the employees and willingness of the employees as well as his parent organization. The suitability will be assessed on the basis of his performance in the council as revealed through confidential report and other relevant records.' The Executive Committee of the Council is requested to approve in principle adoption of the policy of permanent absorption of employees on deputation in accordance with the instructions of the Govt. of India and on the lines indicated in paras 5 to 6 above.
13. With the above-said facts the petitioner claims that (i) in the advertisement issued by the respondent, there was no mention of the fact that the post is being filled up on deputation or even for a short period or permanent and, therefore, the mentioning of the fact in the appointment letter that the petitioner was being appointed for one year, likely to be extended, advertisement; (2) even it be assumed that by subsequent events, and by the conduct of the parties an impression was being given that the post is on deputation only, in such situation on asking of the Shiksha Samiti to the effect that the petitioner should be relieved to join back in his old place i.e. the former employer as the former employer could not wait any longer and non relieving of the petitioner gives a right to the petitioner to continue in the post in question; (3) that because of this action of the respondent No. 1 the petitioner has lost his earlier post as well with the result that he, a highly qualified with many achievements to his credit, he remains unemployed; (4) that the post of the Regional Director/Deputy Secretary having not been filled as yet, there was no complaint so far the working of the petitioner was concerned and in such situation the petitioner ought to have been absorbed when he fulfills all the qualifications.
14. In the alternative, it is submitted by the petitioner that he should not be allowed to suffer of his employment/livelihood and in case the respondent No. 1 does not absorb the petitioner, the direction be given to the respondent No.2 to take back the petitioner in institution. It is also the contention that the petitioner could not have been appointed on deputation for the reason that the petitioner was in a private institution. The deputation is normally from government to government basis or government to semi government establishments and there is no question of deputation from private institution to statutory institution.
15. Per contra, respondent No. 1 has submitted that the petitioner was knowing from the very first day that he is on deputation and that he cannot be absorbed and in that situation the petitioner ought to have made arrangements for his alternative employment where-ever he wanted to and NCTE was not responsible for any such liability. The NCTE which is statutory body is under the Human Resources and Development Department of Union of India only employees the persons on deputation and even if it was not mentioned in the advertisement that the employee is to be posted on deputation only, the petitioner cannot acquire any right in this regard.
16. In the context to above-said submission, it is necessary to incorporate and discuss the NCTE Act, 1993.
17. The council is established consisting the members i.e. Chairman, Vice Chairman, Member Secretary appointed by the Central Government, Secretary to the Government of India, Education Department, Chairman of UGC, Director NCERT, Director National Institution of Education. Planning and Administration and other members as exofficio members.
18. Section 5 provides the qualification for being appointed as Member of the Council. Section 14 provides the procedure for recognition of the Teachers Education Institution. Section 16 provides constitution of Executive Committee for discharging its functions as may be assigned to it by the council as may be determined by the Regulations. Section 20 provides for the Regional Committees. Section 29 provides that the Council shall in discharge of its functions and duties under the Act be bound of such directions on questions of policy as the Central Government may give in writing to it from time to time. Section 30 provides for supercession of Council. Section 32 provides for making the Regulations to carry out the objects of the Act. Sub- section (2) of Section 322 provides that appointment and terms and conditions of service of officers and other employees of the Council Under Section 19(i) & (2). Every rule and regulation so made are to be laid down before the Parliament Under Section 33.
19. An affidavit has been filed by one Shri S.K. Ray on 23.3.2001 i.e. minute of first general body meeting and the agenda wherein it was mentioned that for recruitment rules it would lake some time and had put on temporary arrangement by identification of suitable person and their appointment for a period of one year at a time, both at the Head Quarters and Regional Committees. (2) Recruitment would be based on eligibility conditions; (3) selection committee would be constituted.
20. A meeting was held on 3.11.1995 wherein certain proposals were discussed in regard to working of the council. On the agenda of the delegation of powers, opening of bank accounts, conducting of business, assigning of funds to consider the formula-lion of Regulation in regard to meeting, establishment of the Regional Commitlee and other agendas including the agenda of appointment of officers and other employees of the Council, wherein, it was decided that the temporary arrangements were to be made by identification of suitable persons and their appointments for a period of one year at a time on the eligibility conditions drawn up and indicated in the advertisement to be selected by selection committee.
21. After the selection have been made, it was decided on 5.3.1996 that the post be offered to the candidates on deputation for a period of one year in the first instance extendable on year to year basis.
22. The respondent had no rules or regulations framed for appointment on deputation and in the absence of framing of rules and regulations the committee had resolved to appoint the person for one year initially and to extend it by year to year. The word 'deputation' in the letter of appointment is not in consonance with the resolution passed. Assuming it be so, if the government employees or the semi-government employees apply to be appointed on depulation, such employees do not loose anylhing at all i.e. after the period of deputation which deputation is accepted by parent department as well; they are bound to go back to their own department. It is not understood as to how a totally private institution or an employee from a private institution could be termed as a person taken on 'deputation' specially when it is not denied that the respondent has absorbed certain persons on permanent basis who were recruited along with Ihe petitioner. Even though law of depulation as interpreted by various courts do say that the deputationisls have no right to stay in the borrowing department and they could always be sent back to his parent department, but in such situation, the parent department as well the borrowing departmenl should either be a governmental department or semi government department or statutory departments. It is unimaginable that the private institution i.e. a college is authorised to send a person on deputation to statutory department under the Central Government. The advertisement does not speak of recruitment on any deputation, deputation period, or Ihe appointment for a fixed one year or a contract service. Advertisement even though is very clear but the subsequent events and letters are not in consonance with the advertisement. It is settled law that the department who has issued the advertisement is bound by the terms of advertisement itself, and if no such condition was put in the advertisement, none can be put lateron by appointing such persons. To the question posed that despite the above-said fact, Ihe petitioner had accepted the post knowingly well that it is either on deputation or for one year but extendable. Even though this clause could not have been put in the appointment letter, but it goes without saying that by conduct of Ihe parties, this clause was made known to the petitioner.
23. From the above-said facts the following points do emerge;
(1) that the respondent No. 1 is a statutory institution having come into existence under the Act;
(2) the advertisement was issued in September 1995 for filling the post of Regional Director through direct recruitment vide Annex.-2;
(3) On 5.3.1996, the said post was offered to the petitioner after having been selected and posted at Jaipur initially for one year, even though in the heading of appointment letter, it is mentioned that it is on deputation, but in the body of the letter it has not been so mentioned;
(4) The petitioner was relieved from his earlier post of Principal on 25.3.1996, he had joined on 26.3.1996 in the new post;
(5) the extension was being granted by various orders;
(6) On 12.3.1998 and 22.3.1998 request was being made for repatriation of the petitioner by respondent No.2 and even apprehension was shown by the petitioner that he should be absorbed so that he may not suffer loss to his job;
(7) On 25.5.1998 vide Annexure-12, the parent department of the petitioner had terminated the lien; even since the petitioner was reminding the respondent No.1 to absorb him in the department.
(8) On 25.2.1999, the petitioner was ordered to go back to his parent department i.e. private institution whereas private institution, so called parent department of the petitioner had terminated the so called lien o the petitioner.
24. In the writ petition filed by the petitioner, status quo order warranted on 24.3.1999, which was modified by the Apex Court on 2.11.1999 to the effect that the respondent shall be bound by the decision of this court and he shall be paid back wages if the petition is allowed.
25. In my opinion, the material point which requires consideration and determination is that when NCTE had made advertisement (Annexure-2), it was mentioned that the council invited applications for the post of Deputy Secretary/Regional Director at Head Quarter at Delhi and Regional office at Jaipur, Bhopal, Bhubneshwar and Bangalore in the pay scale of Rs. 3700- 5700. The qualification required was Master's degree from the recognised university and five years experience in education/Re-search/Adminislralion or as lecturer etc. The age limit was prescribed as below 50 years. It was further mentioned that the officer was likely to be transferred anywhere in India. It was not mentioned anywhere in the advertisement that the post in question was to be filled upon by way of deputation or for a limited period of three years. The NCTE which is a permanent body created under the statute no doubt had left the impression that the post which was to be filled up by direct recruitment was a regular post and not on deputation or for limited period. There were no rules or regulations or resolution as it seems at the time of advertisement.
26. It was after the advertisement and after receipt of the applications that on 3.11.1995, that the council had taken a decision in the general body meeting to the effect that because of the non-existence of the rules, selection committees are to be constituted and, therefore, for any regular appointment to be made it would take about nine months to one year and certain proposals for consideration were moved for approval of the council i.e. a temporary arrangement was to be made for identification of suitable persons and their appointments for a period of one year at a time both at Head quarter and Regional centres and that the recruitment would be based on the eligibility conditions drawn up and indicated in the advertisement, which may be approved for temporary recruitment and the selection committee be formed. The above-said resolution was passed much after the advertisement; the terms of the advertisement were not changed or modified.
27. Interview for the selection was held on 1.4.1996 by a Board including the Chairman and other members. A note was put up to appoint a Regional Director on deputation for aperiod of one year in the first instance. As a matter of fact as is revealed from the record, except the petitioner other persons appointed were government employees i.e. Mrs. M. Pankaja who was Joint Director of Public Instructions in Government of Karnataka, Prem Kumar Ahuja, Shri Debabrata Misra an officer of Orissa Government were person who were already holding the Government jobs and, therefore, so far the permanent officers of other Governments were concerned, they could only be appointed either on deputation or by resigning from their earlier posts, but so far the petitioner was concerned, he was not in the government employment. He was working as member in the private educational institution and, therefore, there was no occasion for putting the petitioner on deputation.
28. The word 'deputation' connotes the meaning as has been defined in the Fundamental Rules and Supplementary Rules. The scope of the term of deputation/foreign service covers only those appointments that are made by transfer on temporary basis to other departments and State Governments provided the transfer is outside the normal field of deployment and is in public interest and the appointment of the serving employees made either by promotion or direct recruitment with open market candidates, whether on permanent or temporary basis, cannot be regarded as deputation on foreign service and even that temporary appointment made on the basis of transfer request cannot be treated as on deputation. It is well known that the employee on deputation can opt and elect to draw either the pay of his deputation post or of parent cadre plus deputation allowance.
29. Vide government notification No. G.I. Dept. of Per. & Trg. O.M. No. 2/12/87-Est. (Pay II), dated 29.4.1988, it was provided as under:
3. Scope of Admissibility.
3.1 The term 'deputation' will cover only appointments made by transfer on a temporary basis to other posts in the same or other departments/offices of the Central Government provided the transfer is outside the normal field of deployment and is in the public interest.
3.2 The question whether the transfer is outside the normal field of deployment or not will be decided by the authority which controls the service or the post from which the employee is transferred.
3.3. Appointment of serving Government servants made either by promotion or by direct recruitment with open market candidates, whether on a permanent or temporary basis, will not be regarded as 'deputation.' 3.4 Permanent appointments made by transfer will also not be treated as 'deputation.' 3.5 Temporary transfers made on the basis of personal requests of employees otherwise than in public interest will also not be treated as 'deputation.'
4. Exercise of option 4.1 An employee on deputation may elect to draw either the pay in the scale of pay of the deputation post or his basic pay in the parent cadre plus personal pay, if any, plus deputation (duty) allowance. In no case will the pay so fixed be less than the minimum of the scale of the ex-cadre post.
4.2 The borrowing authority should obtain the option of the employee within a period of one month from the date of joining the ex-cadre post.'
30. Vide notification No. G.I., M.F. O.M. No. F. 1(6) -E, IV(A)/62 dated 7.12.1962; O.M. No. F.1(6)-E. IV(A)/62-E, III, dated 7.4.1964; F.1(6)-E, IV(A)/62-E, III(B) dated 16.7.1964 and E.2(21)-E.II(B)/68 dated 15.11.1968, had decided that filling o the posts on deputation basis being an expensive one should be resorted to only in exceptional cases.
31. The question which arises in the present case is whether at all the NCTE, a statutory body was authorised even to take the persons on deputation/transfer. The deputation/transfer under the Central Civil Service Rules are normally known to involve the employees who are already in employment of the Central Government and only those can be transferred on deputation, none else. In the present case even though it is not mentioned in the advertisement that the post was temporary in the advertisement that the post was temporary or for deputation and, therefore, the petitioner rightly says that there was no authority with the respondent to mention in the appointment letter the word 'deputation' or 'temporary' as it was against the terms of advertisement itself coupled with the fact that NCTE is a permanent statutory body and it has permanent staff. Highly qualified and experienced persons are needed to handle the planning and working of the NCTE and in such situation to say that NCTE had decided to recruit the staff only for one year is even against the spirit of the Act itself specially when it had been brought out on record that except the present post, all other posts recruited by same advertisement had been recruited permanently and not on deputation or transfer or for a limited period who were recruited vide same advertisement. The respondent No.1 is bound to abide by the implied assurance of the advertisement itself.
32. In Dr. Vinay Rampal vs. State of Jammu & Kashmir (1), it was held by the Supreme Court in a case of admission to Post- Graduate Course in General Medicines in Government Medical College that the executive instructions laying down different qualifications whereas the advertisement had mentioned no such qualifications as an executive instructions. It was never suggested at any point of time lhat in issuing the advertisement, there was any error for admission. The candidates were entitled to admission on the qualifications and requirement set out in the advertisement.
33. In the case of N.T. Bevin Katti etc. vs. Karnataka Public Service Commission and others (2), advertisement was issued on the notifications specifying reservation and mode of selection under existing order but changes were made by the Government. It was held that the Government was bound to accept the selections despite the changes having been made. It was observed as under:
'There is also another aspect of the questions. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing Rules or Government Orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing Rules and Government Orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication, if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the Rules and orders which were in force on the date of advertisement.'
34. In Gopal Krushna Rath vs. M.A.A. Baig (dead) by L.Rs. and Ors. (3), it was held that the selection process commences on when the last date of inviting application is over and subsequent change in qualification does not affect the process of selection until and unless a fresh advertisement is issued. It was observed as under:-
'When the selection process has actually commended and the last date for inviting applications is over, any subsequent change in the requiremenl regarding qualifications by the University Grants Commission will not affect the process of selection which has already commend. Otherwise it would involve issuing a fresh advertisement with the new qualifications. In the case of P. Mahendran vs. State of Karnataka (AIR 1990 SC 405 at pp. 408 and 409) this Court has observed: In AIR 1993 SC 852 it was held that the vacancies which had occurred prior to amended rules would be governed by old rules and not by the new rules.
'It is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect.'
35. The Court further observed that:
'Since the amending rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover, as the process of selection had already commenced when the amending Rules came into force, the amended Rules could not affect the existing rights of those candidates who were being considered for selection who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment.' In the present case, therefore, the appellant possessed the necessary qualifications as advertised on the last date of receiving applications. These qualifications were in accordance with the Rules/Guidelines then in force. There is also no doubt that the appellant obtained higher marks than the original respondent No.1 at the selection. There is no challenge to the process of selection, nor is there any allegation of malafides in the process of selection.'
36. Similar was the effect of the case of A.A. Calton vs. The Director of Education and Anr. (4).
37. In Stale of Mysore vs. R.S. Kasi (5), the department of agriculture along with other department of Horticulture and the employees were put under the control of the Director of Horticulture for all administrative and disciplinary purposes. The Government passed a repatriation order of employment in question to his old department of agriculture which became a subject of challenge before the Supreme Court. The High Court had set aside the repatriation order. The Supreme Court confirmed the order of the High Court holding that there was no post to which the employee could be repatriated order. The Supreme Court confirmed the order of the High Court holding that there was no post to which the employee could be repatriated since the post he was holding came along with department.
38. This court in the case of Vimla vs. State of Raj. and Anr. (6), had held that a candidate is to be considered for appointment on the basis of qualifications mentioned in the advertisement and qualifications prescribed under rules at the time when the advertisement is made and if during process of selection any change is made in the qualifications, the change is to be made prospectively.
39. The Government of India had issued a notification No. AB 11017/12/87 Estt/HR) dated 15.12.1988 issuing guidelines on recruitment rules which invites deputation or by way of transfer where the different methods of recruitment have been mentioned i.e. promotion, direct recruitment, deputation, transfer, reemployment, short term contract; it was observed that the transfer may be kept as a method of recruitment when it is possible to get the suitable officers having requisite qualifications and experience of the central government department and State Government. 'Short term contract' is also a form of deputation and this appliese to the officers from non- government body i.e. Universities, recognised Research Institutions, Public Undertakings and in case of insulated post it will be desirable to keep the method of recruitment as short term contract, as otherwise, incumbents of the lower posts, if directly recruited, will not have any avenue of promotion. It may be worthwhile to bring such posts into an organised cadre/service rather to fill them by deputation from outside for limited periods from time to time. Care should always be taken to ensure that the officers holding posts, Other than in an organised service, have enough prospect for advancement in their own line. Under 'deputation including short term contract', an officer from outside can come for a limited period, by the end of which will have to revert to his parent cadre.
40. On the contrary, counsel for the respondent relies on the judgment in the case of Rati Lal B. Soni and Ors. vs. State of Gujarat and Ors. (7), wherein it was held that the Government servant on deputation can be reverted to his present cadre at any time and that such government servants do not get any right to be absorbed on the deputation post.
41. This authority does not assist the respondent in any way for reason that the petitioner was not a government servant who could be sent on deputation.
42. In the case of State of Punjab & Ors. vs. Inder Singh and Ors. (8), it was held that repatriation from deputation cannot be resisted by an employee on the grounds that he had continued on deputation for a long time during which he earned promotions on ex-cadre posts, and that on repatriation he will have to work in his parent cadre on a lower post. It was further held that the authority is competent to decide whether an assignment is a deputation, such decision is to be taken by the authority which controls the service or post from which an employee is transferred on deputation. It was held as under:
'Concept of 'deputation' is well understood in service law and has a recognised meaning. "Deputation" has a different connotation in service law. The dictionary meaning of the word "deputation" is of no help. In simple words, "deputation" means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a past outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation, the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the recruitment rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority which controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post.'
43. In the case of Kunal Nanda vs. Union of India and Anr. (9), it was held that a deputationist cannot asserts and succeed in his claim for permanent absorption in the department where he works on deputation, unless his claim is based upon a statutory rule, regulation or order having the force of law. A deputationist can always and at any time be repatriated to his parent department, at the instance of either borrowing department or parent department.
44. No doubt the deputationist has no right to say to be absorbed permanently in borrowing department; but the facts mentioned herein are different. The respondent No.2 NCTE is a statutory body under the Central Government. The Central Service Rules are applicable to it for all purposes. It had invited applications from general public as is clear from the advertisement and it had not been mentioned that the post is for 'deputation' or is limited for one year extendable by one year period. Had this fact been mentioned at any time before the selection or interview or before applying either by way of specific orders or by amending the advertisement, the results would have been different. There is some force in saying of the petitioner that the respondent No.2 being a permanent statutory body was recruiting the employees permanently and application was moved with the intention for permanent direct recruitment and, therefore, if any resolution was passed by the general body subsequent to the advertisement, that could only be made applicable to any of the post subsequent to that already advertised.
45. Per contra, the respondent says that the petitioner was told on the very first appointment letter that he was on deputation and that the post was for only one year but could be extended. There arise certain disputed facts which need not be gone into by this court in regard to exchange of letters but it is the fact that the petitioner remained there for three years. He may be thinking initially to go back to his private institution i.e. the earlier employer, instead of raising issues with the respondent No.1 but even the respondent No.2 had categorically gone back to his commitments of absorbing the petitioner in case the respondent No.1 does not absorb him. Thus, the petitioner is looser on both the ends. The respondent No.2 as staled in the written statement has declined to accept the petitioner. Even otherwise this Court has no jurisdiction to give any mandamus to respondent No.2, even it be held that the petitioner be given his old job and thus the petitioner cannot claim any relief so far alternative prayer for directing the respondent No.2 is concerned.
46. It seems that both the parties were under the misconception of fact and law that the petitioner was on deputation to NCTE for the reason that no civil status can be conferred on a person who was a private individual by taking him on deputation. This may be true so far the transfer by way of deputation of the Government employees is concerned as the government employee maintains his earlier status in their parent department. The intention as per the advertisement was to have direct recruitment from general public. Take a case of an applicant of an unemployed person but having all the qualifications as required under the notification of advertisement, and if had been so selected, could it be said by the respondent that the said applicant was on deputation or treated as such until and unless it was so mentioned in the advertisement that the post advertised was for a short period or was a contract service which is not the fact specially when the petitioner was time and again reminding the respondent No. 1 to relieve him before his earlier employer refuses to accept him back.
47. Certain other misc. applicants have been filed by one Salim Ahmed s/o Late Babu Khan for impleading as party as respondent through the counsel of the respondent stating therein that the applicant Saleem Ahmed is the Principal of respondent No.2 after the petitioner and alleged certain allegations against the petitioner. The status of Saleem Ahmed was denied by respondent No.2 in the writ petition and there is no relief claimed against any other person, In my opinion, the application moved by Saleem Ahmed has not been filed bonafidely but with some ulterior motive. Neither he could be impleaded as party, nor is impleaded as mentioned above. Efforts are made by such Saleem Ahmed in ousting of the petitioner on one court or the other which had no bearing what-so-ever on the point in issue.
48. For the above-said discussion and reasons, in my opinion, there is force in the submission of the counsel for the petitioner that for all purposes the recruitment as per advertisement Annexure-2 was for direct recruitment so far petitioner was concerned and was neither for a short period and nor on deputation but in no case it could be on 'deputation' as the rules of deputation were not applicable viz. a vis. petitioner neither the petitioner could be sent on deputation nor could have been accepted on deputation. Had the respondent mentioned in the advertisement that the vacancy is for a short period. In that situation, the petitioner would have given a second thought before applying. Even in the appointment letter the respondent had mentioned that the appointment is for one year with the likelihood of extension. Definitely an impression was given to the petitioner by the respondent that he was recruited permanently. The petitioner cannot be allowed to suffer on both counts i.e. at the instance of respondent No. 1 as well as respondent N.2. He has already lost the job of Principal of private institution and if there is non to accept him on repatriation, he can go nowhere as there is no place where he could be repatriated to.
49. For the above-said reasons, the writ petition is allowed with the observation that the petitioner is entitled to retain the job of Regional Director for which he was recruited in accordance with advertisement Annexure-2 and the respondent is directed to immediately take back the petitioner with all back benefits. If the post has not been filled up so far, it shall not be filled up and if in case any process has been started for filling up the post in place of the petitioner, the process shall not be continued any further in view of above discussion.
50. The writ petition is allowed with no order as to costs.