Central Administrative Tribunal - Delhi
Dr. Ajay Sehgal S/O Jagdish Chander ... vs Union Of India Through on 7 January, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.3590 of 2010 Misc. Application No.2938/2010 This the 7th day of January, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Dr. Ajay Sehgal S/o Jagdish Chander Sehgal, Presently working as Deputy Director (Admn.), Post Graduate Institute of Medical Education & Research (PGIMER), Sector 12, Chandigarh. Applicant ( By Shri S. K. Gupta, Advocate ) Versus 1. Union of India through Secretary to Government of India, Ministry of Personnel, Public Grievances & Pension, New Delhi. 2. Secretary, Ministry of Environment and Forests, Paryavaran Bhawan, CGO Complex, Lodhi Road, New Delhi. 3. Secretary, Ministry of Health & Family Welfare, Nirman Bhawan, New Delhi. 4. State of Uttar Pradesh through its Principal Secretary (Forest), Government of UP, Lucknow. 5. Director, Post Graduate Institute of Medical Education & Research, Sector-12, Chandigarh. 6. Dr. K. K. Talwar, Director, Post Graduate Institute of Medical Education & Research, Sector-12, Chandigarh. Respondents ( By Shri Himanshu Upadhyaya with Ms. Ruby Sharma for Respondents 1 to 3; Shri B. Banerjee for Respondent No.4; Shri Meet Malhotra, Sr. Advocate and with him Shri Amit Punj for Respondent No.5; and Dr. Saif Mahmood for Respondent No.6, Advocates ) O R D E R Justice V. K. Bali, Chairman:
Dr. Ajay Sehgal, an officer of 1986 batch of the Indian Forest Service from Uttar Pradesh Cadre, the applicant herein, is aggrieved of the order dated 30th September, 2010 vide which the tenure of his deputation has been curtailed by repatriating him to his parent department. Primarily, it is the case of the applicant that the fixed tenure of deputation could not be curtailed by simply invoking the doctrine of pleasure terminating the deputation at any stage, and that the reasons for premature repatriation have to be spelled out, and as the same may be found to be non-existent, the order of premature repatriation would need interference by this Tribunal under the powers exercised by it of judicial review. The respondents would defend the impugned order by simply invoking the doctrine of pleasure, which would require no reasons to be given. The respondents would go to the extent of saying that even if reasons for repatriation may not be correct, as alleged by the applicant, this Court would have no power to set aside the order of repatriation, the deputation being a tripartite agreement between the lending and borrowing departments as also the employee concerned, which agreement can be brought to an end at any time. Before we may comment and adjudicate upon the conflicting stands taken by the learned counsel representing the parties as noted above, it would be appropriate to make a mention of the facts, insofar as they may be relevant for deciding the controversy in issue.
2. The applicant, as mentioned above, is an officer of 1986 batch of the Indian Forest Service from Uttar Pradesh Cadre. He was selected on deputation basis by the Ministry of Shipping, Road Transport and Highways, Government of India for posting as Director. He joined on the central deputation on 3.9.2007. While he was serving on central deputation, the State Government issued a charge memo vide office memorandum dated 19.11.2007 which pertained to the period 2004 when the applicant was posted as Divisional Forest Officer at Saharanpur, UP. The allegations against the applicant contained in the memorandum aforesaid were that when he was posted as Divisional Forest Officet, Shivalik Forest Division, Saharanpur from 28.2.2004 to 1.6.2005, he received information with regard to felling of huge quantity of Khair trees in Badkhala Range in Maganpura beat of his division, and that it was expected from him that he would have sent information regarding the felling through special messenger/fax etc. to his senior officers and Chief Conservator of Forest, UP, and could have taken appropriate action against the alleged/concerned officers/employees by inspecting/checking appropriately the place and taking appropriate action as per rules. The applicant is alleged to have saved the concerned officers/employees by concealing the information with regard to the illegal felling from his seniors and instead only kept doing paper work. Negligence in his work and duties is thus the charge against the applicant.
3. It is the case of the applicant that on preliminary enquiry into the allegations contained in the charge memo was conducted and the applicant was exonerated. Despite that a regular departmental enquiry was initiated, which he was attending as and when required. The applicant was given all mandatory clearances including vigilance clearances by the State Government before applying for central deputation and after being so selected, before relieving him, which, according to the applicant, would prove that the incident of 2004 on which the chargesheet was issued was in the knowledge of the State Government and there was neither any proposal pending nor was contemplated in the State Government to charge-sheet him on the issue while relieving him for central deputation. The Government of India issued Central Staffing Scheme in January, 1996 providing for deputation and posting of various officers of All India Services to be regulated by the Central government in terms of the said scheme. In view of the provisions contained in clause 17.01 of the scheme, a fixed tenure of deputation is provided. In the case of Director, the minimum tenure fixed is of five years. Clauses 17.11 and 17.12 provide for premature reversion of the officers concerned to their respective parent cadres. The applicant was considered for deputation under the Central Government in terms of the scheme aforesaid after due consideration and scrutiny of his service record. Prior to the deputation with the Central Government, he was serving with the Uttar Pradesh Forest Department at Lucknow. On being selected for deputation under the Central Staffing Scheme, information was received by the Secretary Forests, UP to relieve the applicant immediately. The applicant was relieved on 31.8.2007. He was appointed as Director, Department of Road Transport and Highways. Later he was relieved from the said posting and appointed as OSD to the Minister of State for Finance w.e.f. 29.8.2008. As per the procedure, the appointment/attachment with the Minister is co-terminus with the tenure of the Minister. After the Minister left the charge, the applicant was put on compulsory wait in the Department of Economic Affairs, Ministry of Finance. While working on central deputation, the applicant was further selected for being appointed as Deputy Director (Admn.) at the Post Graduate Institution of Medical Education and Research (PGIMER), Chandigarh on deputation for a period of four years. Accordingly, the Ministry of Health & Family Welfare vide office memorandum dated 11.8.2009 requested the DOP&T to relieve the applicant to facilitate his joining at PGIMER, Chandigarh. The applicant was permitted to join under the Ministry of Health and Family Welfare for a period of four years with effect from the date of his assuming charge of the post of Deputy Director (Admn.), PGIMER, Chandigarh. It is the case of the applicant that the post of Deputy Director (Admn.), PGIMER is a post outside the central staffing pattern, but inasmuch as the applicant was permitted to join the said post with the concurrence and approval of the borrowing Ministry, i.e., Ministry of Personnel, the terms and conditions of his deputation were to be governed by the central staffing scheme. The applicant joined as Deputy Director (Admn.) at PGIMER, Chandigarh on 1.9.2009. The applicant then refers to some events while he was posted in PGIMER, Chandigarh, and his objection to such events, which irked the Director, PGIMER, the 6th respondent herein. We need not refer to the events and the reasons why, according to the applicant, the 6th respondent was annoyed with him, as during the course of arguments the learned counsel representing the applicant stated that he would not press the present Original Application on the grounds of mala fides alleged against the said respondent.
4. The applicant when selected for central deputation was free from any blemish. The departmental enquiry started against him after he had already joined the post on deputation. The enquiry, in any case, it is the case of the applicant, came to an end on 22.7.2010, when the last hearing therein was held. It is his case that he believes that the enquiry officer has already submitted his report exonerating him. Despite the fact that the enquiry stood concluded, the State Government sent a request for repatriating the applicant, which request was repeated on 5.7.2010. In pursuance of the said communication, the Ministry of Environment and Forests vide office memorandum dated 27.7.2010 conveyed to the DOP&T that they had approved the proposed repatriation of the applicant due to pending disciplinary proceedings. In response thereto, the DOP&T informed that since the applicant was currently working against a non-central staffing scheme post, there was no role to be played by it and that the Ministry of Health and Family Welfare was the appropriate authority to take a decision in this regard. The State Government further sent communication dated 31.8.2010 requesting for repatriation of the applicant on the ground that State work was being affected. It is the case of the applicant that the State Government changed the reason of requirement of the applicant to be present because of the pending disciplinary proceedings against him to that of State work being affected, as it realized that the ground of disciplinary enquiry being pending against the applicant may not sustain. It is his case that there is no question of the State work being affected because of his serving on deputation post, inasmuch as fifteen other officers of the Indian Forests Service belonging to the UP cadre, seniors and juniors to the applicant, are on central deputation and none of them has been recalled on the ground of exigency of work in the State except the applicant. The applicant has annexed with the OA the gradation list and made a mention of the officers who are still continuing on deputation. The Ministry of Environment and Forests vide communication dated 6.9.2010 requested the Health Ministry to take appropriate decision with regard to repatriation of the applicant so as to co-operate with the State Government in connection with the disciplinary proceedings. Coming to know about the steps being taken for his repatriation, the applicant made various representations to give him a just and fair treatment, but the order dated 30.9.2010 came to be passed repatriating him to his parent department with immediate effect.
5. As mentioned above, primarily the case of the applicant is that when the deputation may be for a fixed tenure, the same cannot be curtailed at the whims and fancies of either the borrowing or the lending department, and that there have to be reasons, and the reasons, as according to him, in the present case are totally fallacious, the order of repatriation would need to be set aside by this Tribunal.
6. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their respective replied contested the cause of the applicant. In the reply filed on behalf of respondents 1 to 3, it has inter alia been pleaded that the DOP&T was requested to relieve the applicant vide letter dated 7.8.2009. Subsequently, the DOP&T relieved him vide letter dated 19.8.2009 to take up his new assignment in PGIMER, Chandigarh. As per Appendix 5 of the Fundamental Rules in para 9, 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 deputationist, his services could be so returned after giving advance intimation of reasonable period to the lending Ministry/Department and the employee concerned. In the present case, the Principal Secretary, State Government of Uttar Pradesh vide letter dated 31.8.2010 requested the Secretary, Ministry of Environment and Forests, Government of India to relieve the applicant immediately. Earlier four letters in that regard were also referred to in the said communication. On the request of the State Government the Ministry of Environment and Forests wrote letter dated 6.9.2010 to the Ministry of Health and Family Welfare communicating their decision to repatriate the applicant and requested to take appropriate action in that regard at the earliest. Director, PGIMER, Chandigarh has already conveyed no objection to relieve the applicant vide letter dated 6.9.2010. As the post of Deputy Director (Admn.) in PGIMER, Chandigarh is a non-central staffing scheme post, the DOP&T vide letter dated 11.8.2010 advised the cadre authority of the applicant to take appropriate action/decision in the matter in consultation with the Ministry of Health & Family Welfare. It is on consideration of the matter with the approval of the competent authority that services of the applicant were placed at the disposal of his parent cadre, i.e., Department of Forest, Government of Uttar Pradesh on his repatriation from PGIMER, Chandigarh. DOP&T, it is stated, was not involved in the selection process of the applicant in PGIMER, Chandigarh, and that the selection process was carried out by the Ministry of Health & Family Welfare.
7. The State of Uttar Pradesh is the 4th respondent arrayed in the OA. It has filed a separate reply, wherein it is inter alia pleaded that chargesheet was served upon the applicant to enquire the illicit felling of trees. It is further stated that the applicant is a member of Indian Forest Service, UP Cadre and his services were immediately required in the State of UP, as made clear in the letter dated 31.8.2010 written by the Principal Secretary (Forest), Government of UP to the Secretary, Environment & Forests, Government of India. Even though, it has been mentioned that a chargesheet has been served upon the applicant vide notification dated 19.11.2007 and the enquiry officer was appointed vide order dated 20.10.2008, but to the averment made by the applicant that the enquiry has come to an end with submission of the report by the enquiry officer to the disciplinary authority and the applicant having been exonerated, no reply is forthcoming. All that is mentioned in the corresponding paragraphs of the reply is that the Government of India reserved its right to recall the applicant from deputation and would not be bound to assign reasons for the same. It is, however, further stated that repatriation of the applicant was required as the State work was suffering. It is also the case of the 4th respondent that even though the period of five years may have been mentioned while sending the applicant on deputation, but it is also mentioned that it would be five years or until further orders, whichever event was to take place earlier.
8. The 5th respondent has filed a separate reply wherein it has inter alia been pleaded that the impugned orders are perfectly legal and in accordance with the rules and regulations governing the respondent Institute and the Central Government, and that the post of Deputy Director (Admn.) with the respondent Institute is being filled up by deputation for a specified period through Central Government as per existing recruitment rules of the Institute, and the rules governing the central staffing scheme are not applicable to the respondent Institute. The 5th respondent has also placed reliance upon Appendix 5 of Fundamental Rules in para 9. The allegation that the applicant has been repatriated because of grudge being nursed by the 6th respondent against him has been denied. There would be no need to refer to further pleadings made by the 5th respondent as the present case, it appears, needs to be contested by respondents 1 to 4. The 6th respondent against whom allegations of mala fides have been alleged has also filed separate reply, but once again, there would be no need to refer to the contents thereof, inasmuch as the learned counsel representing the applicant, as mentioned above, has already given up the ground of mala fides entertained by the said respondent for passing of the impugned orders.
9. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. The notification dated 11.9.2007 sending the applicant on deputation under the central staffing scheme, reads as follows:
The President is pleased to appoint Shri Ajay Sehgal, IFS (UP:86) as Director in the Ministry of Shipping, Road Transport & Highways (Department of Road Transport & Highways) on deputation basis under the Central Staffing Scheme in the pay scale of Rs.14,300-400-18,000 for a period of 5 years w.e.f. 3.9.2007 (F.N.) or until further orders, whichever event takes place earlier. It is not in dispute that the applicant was relieved to join the deputation post under the central staffing scheme on 31.8.2007 and was appointed as Director, Department of Road Transport & Highways. It is also not in dispute that the applicant was relieved from the said post and appointed as OSD to the Minister of State for Finance with effect from 29.8.2008, and thereafter when the concerned Minister left the charge, the applicant was put on compulsory wait in the Department of Economic Affairs, Ministry of Finance. It is also not in dispute that the applicant was further selected for being appointed as Deputy Director (Admn.), PGIMER, Chandigarh on deputation for a period of four years from taking of charge of the post, and the Ministry of Health and Family Welfare vide office memorandum dated 11.8.2009 requesting the DOP&T to relieve the applicant to facilitate his joining at PGIMER, Chandigarh. The DOP&T accorded its approval and ordered relieving of the applicant to take up his new assignment at PGIMER, Chandigarh vide office memorandum dated 18/19.8.2009. The applicant was thus permitted to join under the Ministry of Health and Family Welfare for a period of four years. Admittedly, the post of Deputy Director (Admn.), PGIMER, Chandigarh is a post outside the central staffing pattern. It is, however, the case of the applicant that since he was permitted to join on the said post with the concurrence and approval of the borrowing Ministry, i.e., DOP&T, the terms and conditions of his deputation were to be governed by the central staffing scheme. The averment in that regard has been made in para 4(ix) of the OA, which reads as follows:
ix) That it may also be relevant to state here that the post of Deputy Director (Admn.), PGIMER, Chandigarh is a post outside the Central Staffing Pattern, however, since the applicant was permitted to join the said post with the concurrence and approval of the borrowing Ministry i.e. Ministry of Personnel & Training, the terms and conditions of deputation of the applicant were to be governed by the Central Staffing Scheme. In the corresponding para of the counter reply filed on behalf of respondents 1 to 3, it is mentioned that in the OM dated 11.8.2010 issued by DOP&T it is specifically mentioned that the post in the Ministry of Health and Family /welfare where the applicant is currently working is a non-central staffing post and that the DOP&T would have no role in the matter. Further, in OM dated 22.11.2010 it is specifically mentioned that DOP&T was not involved in the selection process of the applicant in PGIMER, Chandigarh, and that the selection process was carried out by the Ministry of Health and Family Welfare, which would prove that the applicant would not be governed by the central staffing scheme. In the corresponding para of the reply filed on behalf of the 4th respondent, the State of Uttar Pradesh, it is pleaded that contents of paras 4.5 to 4.13 of the OA would not call for any comments. It is, however, not in dispute, and it is the common case of the parties as well, that the applicant was sent on deputation under the central staffing scheme. He was appointed on deputation on the post of Director, Department of Road Transport & Highways. Thereafter he worked as OSD to the Minister of State for Finance (Expenditure, Banking & Insurance). The order placing services of the applicant as OSD to the Minister, dated 14.10.2008 reads as follows:
NO.A.12011/02/2006-Admn.II - The President is pleased to appoint Dr. Ajay Sehgal, Indian Forest Service (UP:86) as Officer on Special Duty at the level of Director to the Minister of State for Finance (Expenditure, Banking & Insurance) (Shri Pawan Kumar Bansal) in the Pay Band-4 [Rs.37400-67000 + 8700 (Grade Pay)] with effect from the forenoon of 29.08.2008 for a period of five years, subject to a maximum tenure of seven years at the Centre or on co-terminus basis or until further orders, whichever event occurs the earliest. Dr. Sehgal counts his central deputation tenure with effect from 03.09.2007. In the last line of the order reproduced above, it is clearly mentioned that the applicant would count his central deputation tenure with effect from 3.9.2007, which was the date when the applicant joined on the central deputation post. Office memorandum dated 11.8.2009 issued by the Ministry of Health & Family Welfare, which is as regards filling up of the post of Deputy Director (Admn.), PGIMER, Chandigarh, would show that when the applicant was selected for deputation with PGIMER, Chandigarh, the DO&T was requested to take necessary action to relieve the applicant of his duties with instructions to take up his assignment at PGIMER, Chandigarh. The DOP&T, while permitting deputation of the applicant on the post of Deputy Director (Admn.), PGIMER, Chandigarh vide office memorandum dated 18/19.8.2009, clearly stated that he was selected for appointment as Deputy Director (Admn.) in PGIMER under the Ministry of Health and Family Welfare for a period of four years with effect from the date of assumption of charge of the post or up to the balance period of the combined tenure of 7 years, which was up to 2.9.2014 or until further orders, whichever event was to occur the earliest, and that he would count his central deputation w.e.f. 3.9.2007. The said memorandum reads as follows:
Dr. Ajay Sehgal, IFoS (UP:86), presently on Compulsory Wait in the Department of Economic Affairs, Ministry of Finance, has been selected for appointment as Deputy Director (Admn.) in the Post Graduate Institute of Medical Education & Research (PGIMER), Chandigarh under the Ministry of Health & Family Welfare, for a period of four years with effect from the date of assumption of charge of the post or up to the balance period of the combined tenure of 7 years, which is up to 02.09.2014 or until further orders, whichever occurs the earliest. He counts his central deputation with effect from 03.09.2007.
2. He may kindly be relieved of his duties immediately with instructions to take up his new assignment in the PGIMER, Chandigarh.
3. This issues with the approval of the competent authority. From the pleadings and documents placed on records, mention whereof has been made above, one thing which clearly emerges is that the applicant came on deputation under the central staffing scheme. On whatever post he was being appointed from time to time, the period of deputation was to start from 3.9.2007, when the applicant is stated to have joined the first post on central deputation. When he was appointed as OSD at the level of Director to the Minister of State for Finance, it was mentioned in the order that he would count his central deputation period with effect from 3.9.2007. When while he was on compulsory wait with the Department of Economic Affairs, he was selected for deputation as Deputy Director (Admn.), PGIMER, Chandigarh, and the order in that regard, once again, mentioned that he would count his central deputation from 3.9.2007. It appears to this Tribunal that the applicant preferred to come on deputation on his selection on the post of Deputy Director (Admn.), PGIMER, Chandigarh as the tenure of his deputation was to be more than five years, as clearly recorded in the order that the applicant would be on deputation for a period of four years with effect from the date of assumption of the charge of the post or up to the balance period of the combined tenure of seven years, which would be up to 2.9.2014. If the applicant was to continue to hold the post under the central staffing scheme, he would have not continued beyond 2.9.2012. Be that as it may, the tenure of the applicant was to commence from 3.9.2007, on which date he joined the post under the central staffing scheme, and be it a post under the said scheme or the non-central staffing pattern post, his tenure was fixed.
10. Central Staffing Scheme came to be issued vide office memorandum dated 5.1.1999 by the DOP&T. This office memorandum was in supersession of all the relevant orders on the subject. As per para 3 of the said memorandum, the scheme has been in operation for over 30 years, which provides a systematic arrangement for the selection and appointment of officers to senior administrative posts at Centre, excluding posts which are specifically encadred within the organized Group A services or filled by recruitment through the Union Public Service Commission. The posts of the rank of Under Secretary and above in the Government of India are filled under the central staffing scheme, by borrowing officers from the All India Services and participating Group A services, and all officers who are so borrowed are to serve the Government of India for a stipulated tenure on deputation and thereafter return to their parent cadres. The tenure of deputation has been dealt with in para 17.01 which stipulates that fixed tenure of deputation under the Central Government is the heart of the central staffing scheme, and that rotation between the Centre and the States, Central Ministries and parent cadres, and headquarters and the field provide a certain degree of pragmatism to policy formulation and programme implementation from the Central Ministries. Based on experience, the periods of tenure at the different levels have been prescribed as under:
Under Secretary : 3 years Deputy Secretary : 4 years Director : 5 years Joint Secretary : 5 years Paras 17.02 and 17.03 which are also relevant, read as follows:
17.02 An officer holding the post of Joint Secretary or equivalent, when appointed to a post under the Government of India at the level of Additional Secretary, would have a tenure of 3 years from the date of appointment as Additional Secretary subject to a minimum of 5 years and maximum of 7 years of combined tenure as Joint Secretary/Additional Secretary. Where an officer remains on leave (either from the Centre or from his Cadre authority or both) on the expiry of his tenure as Joint Secretary till his appointment as Additional Secretary, the leave period shall be counted as tenure deputation.
Additional Secretary : 4 years, except for cases covered under the previous heading.
Secretary : No fixed tenure.
17.03 Every officer shall revert at the end of his tenure as indicated above on the exact date of his completing his tenure. He will, however, have a choice to revert to his cadre on the 31st May previous to the date of the end of his tenure in case personal grounds such as children's education etc., necessitate such reversion. No extension after completion of the full tenure would be allowed. Paras 17.11 and 17.12 deal with premature reversion of officers serving under central staffing scheme to their respective cadres. The same read as follows:
17.11 Orders for premature reversion to their respective cadres of officers serving under the Central Staffing Scheme may be issued:-
(a) By the Establishment Officer in cases where the officers want to avail the benefit of promotion in their cadres;
b) By the Establishment Officer, with the approval of the Cabinet Secretary, in cases of compassionate/personal grounds where the officer has a balance tenure of six months or less left.
The powers being delegated to the establishment Officer/Cabinet Secretary will not extend to officers who constitute the "hard core" in organisations like the IB.
17.12 (a) Officers of the Indian Foreign Service appointed to posts under the Central Staffing Scheme would have a tenure of three years.
b) They shall not normally be relieved, except with the approval of the appointments Committee of the Cabinet from a Central Staffing Scheme post before their tenure. From the contents of the central staffing scheme, what clearly emerges is that there has to be a fixed tenure of deputation, and further the events when premature repatriation is possible have been specified. We have already observed above that, even though the applicant may while being deputed on the post of Deputy Director (Admn.), PGIMER, Chandigarh may have gone on a non-central staffing pattern post, but his tenure was to be governed by the central staffing scheme, as clearly mentioned in the orders and the concurrence accorded by DOP&T on that behalf. The tenure of the applicant was thus for a fixed tenure. We may at this stage advert to the reasons as given by the respondents, the State of Uttar Pradesh, the 4th respondent in particular, as to why the applicant was repatriated prematurely. As mentioned above, the reasons are two-fold. Whereas, on earlier occasions the 4th respondent had been asking for repatriation of the applicant as he was facing departmental enquiry, it later turned around and stated that the exigencies of work would require repatriation of the applicant. We need not refer to various documents placed on records on that behalf, as it is an admitted position that the reasons for repatriating the applicant are two-fold, as have been specified above. It is the positive case of the applicant that insofar as the departmental enquiry against him, which pertains to the year 2004, is concerned, in the preliminary enquiry he was exonerated. When the applicant was selected for deputation under the central staffing scheme, admittedly no enquiry was contemplated or pending against him. The enquiry started after the orders as regards sending the applicant on deputation had already been passed. It is further the case of the applicant that the enquiry came to an end, insofar as the role of the applicant may be concerned, when the last hearing in the enquiry was conducted on 22.7.2010. It is also his positive case that as per his understanding, the report of the enquiry officer is in his favour and he has been exonerated. We may reproduce the pleadings made by the applicant in para 4(xiv) of the OA. The same reads as follows:
xiv) That as already stated hereinabove, when the applicant had been selected for Central Deputation, there was no departmental enquiry either pending or contemplated against the applicant and that is the reason the state government gave all the clearances to the applicant in 2006 and 2007 i.e while applying for central deputation and while relieving for central deputation respectively. Though the disciplinary proceedings were initiated against the applicant at his back and without associating him while he was serving Government of India on central deputation, on a matter relating to year 2004 when he was DHO Saharanpur and when he had already been exonerated in the enquiry held by the Chief conservator of Forest, Bareilly in the year 2004, yet the applicant continued to attend the enquiry as and when called for by the Inquiry Officer. The last hearing of the enquiry was held on 22.07.2010 and the applicant believes that the enquiry officer has already submitted the enquiry report, exonerating the applicant of the charge once again. The averments as reproduced above could be met by the 4th respondent, the State of Uttar Pradesh. The corresponding para of the reply filed on behalf of the4th respondent, enumerated as para 7, reads as follows:
7. In reply to para 4.14 of the O.A., it is submitted that vide Government notification no.2204/14-1-2007-80(L)/2004 dated 19-11-2007 (Annexure No. CA-1) a charge sheet has been served to the petitioner and vide order no. 1978/14-1-2000-86(L)/2004 dated 20-10-2008 (copy Annexed herewith as Annexure No.CA-2) the inquiry officer was appointed. There is a stoic silence as regards the averments of the applicant that the enquiry is complete and that he has been exonerated. During the course of arguments as well, nothing at all could be stated by the counsel representing the 4th respondent as regards the averments made by the applicant in para 4(xiv). It may be recalled that it is the positive case of the applicant that the 4th respondent changed its stance as regards the reason for his repatriation from pending departmental enquiry to that of exigencies of work of the State, only because it was conscious that such a patently false plea could not possibly sustain.
11. As regards the second reason for repatriating the applicant to his parent cadre prematurely, as mentioned above, the reason is that the State work is suffering. As regards the averments made by the applicant in para 4(xvi) that 15 officers of the U.P. cadre, seniors and juniors to him, are on deputation and none of them has been recalled on the ground of exigencies of work in the State, there is once again, a stoic silence, be it in the pleadings or during the course of arguments. Para 4(xvi) of the OA in that regard reads as follows:
xvi) That the State Government further sent communication dated 31.08.2010 requesting the repatriation of the applicant on the ground that State Work was being affected. A copy of the communication dated 31.08.2010 is appended hereto as Annexure A-11. a perusal of the same would reveal that the State Government took a U-turn in its stand knowing fully well that the ground of facing disciplinary action would not have justified the repatriation and as such now took the stand that the State work is suffering. The applicant in this regard, annexes a copy of the gradation list, which shows that not only the applicant, but nearly 15 other officers of the Indian Forest Service belonging to State Cadre of UP are on Central Deputation and none of them has been recalled on the ground of exigency of work in the State, except the applicant. A copy of the gradation list in this regard is appended hereto as Annexure A-12. The officers whose names are shown in Green Colour are still continuing on Central Deputation.
Still further, a perusal of the communication dated 31.08.2010, would reveal that a copy thereof was also sent to the 6th Respondent so that the 6th respondent could have got expedited the process. In fact the said communication dated 31.08.2010 having been initiated at the instance of the 6th Respondent also cannot be ruled out. Corresponding para in the reply filed on behalf of the 4th respondent reads as follows:
8. That in reply to para 4.15 to 4.16 of this O.A. it is stated that the petitioner is a member of I.F.S., U.P. Cadre and the State Government need his services. Admittedly, vide Notification of Government of India No. A-122022/4/2007-E-I dated 11-09-2007, the Government of India reserved its right to recall the Petitioner from deputation and not bound to assign reasons for the same. The said notification has been filed by the Petitioner. However the Government of U.P. made clear in the Letter No.2131/14-1-2010-156/99-2006 dated 31/08/2010 written by Principal Secretary (Forest) Government of Uttar Pradesh to Secretary, Environment & Forest Department, Government of India wherein it was specified that due to delay in repatriation, work of the state was suffering. The said document has been filed by the Petitioner. Even in letter dated 29-08-2007 of the Director, Ministry of Environment and Forest, Government of India to the Chief Secretary, Government of U.P. (copy annexed as Annexure CA-3), in which the deputation of the Petitioner to the Department of Road Transport and Highways, New Delhi was communicated, the fundamental condition was that the Petitioner was appointed for a period of five years from the date of taking over charge of the post or until further orders whichever event takes place earlier. [ We may only mention that the applicant has appended a gradation list of officers of U.P. cadre of the Indian Forest Service, including those who are on deputation. Such officers are at serial numbers 0023, 0025, 0028, 0032, 0050, 0055, 0057, 0059, 0060, 0064, 0075, 0076, 0077, 0081 and 0085 of the gradation list.
12. Having seen the pleadings and the accompanying documents, time is now ripe to take into consideration the relevant contentions of the learned counsel representing the parties. The only plea as mentioned above that has been pressed with all the force at the command of the learned counsel representing the applicant is that even though a deputationist may not have any right to continue on such post, but when the tenure of deputation is fixed, the same cannot be prematurely terminated without any cogent reason, and that even though, the order may be innocuous giving no reasons whatsoever, the same have now indeed been given and the same are patently false or non-existent. The plea raised by the learned counsel appears to have sufficient merit. The case law available on the subject supports the plea of the applicant. It is by now too well settled a proposition of law that ordinarily the period of deputation should not be curtailed except on such just grounds, for example, unsuitability or unsatisfactory performance. A deputationist may not have an indefeasible right to hold the post on deputation, but ordinarily it should not be curtailed. The issue has recently come to be adjudicated upon by a Division Bench of the Bombay High Court in Writ Petition No.2003 of 2010 decided on 24.9.2010 in the matter of Union of India & others v Sushovan Banerjee & another. The facts of the case aforesaid reveal that the respondent, an IPS officer of 1989 batch, was selected for the post of Chief Executive Officer of Central Childrens Film Society India (CFSI) at Mumbai on 5.12.2008. However, by an order dated 26.4.2010, he was repatriated on administrative grounds, and on the same day the repatriation order was modified to state that the respondent on his request was repatriated to the Ministry of Home Affairs, New Delhi, instead of his parent cadre. The order aforesaid was challenged before the Mumbai Bench of the Tribunal. The order repatriating the applicant had not mentioned any reason. The order appointing him on the post of CEO, CFSI had clearly stated that the said appointment would be on deputation basis and the period of deputation, including the period of deputation in another ex-cadre post held immediately preceding the appointment as CEO, would ordinarily not exceed three years with effect from the date of assuming the charge. No reasons, as mentioned above, were given in the order repatriating him, but the same were given when the OA came to be filed before the Tribunal at Mumbai. It was pleaded that there were verbal complaints that the applicant was not working in harmony with Ms. Nandita Das, Chairperson of CFSI. It was further pleaded that the Chairperson and the CEO should function in harmony and should not interfere in each others domain, and that while the CEO is responsible for administrative functioning of CFSI, it is the Chairperson who is required to provide creative inputs towards fulfilling the mandate of organisation. However, this was not happening and the CEO appeared to be moving into fields which were in the domain of the Chairperson. It was submitted that there was lack of co-ordination between the Chairperson and the CEO. For variety of reasons, which may not be stated in this judgment, the Tribunal observed that the reasons given were non-existent. Verbal complaints against the applicant were held to be an afterthought advanced simply with a view to justify the unfair and unjust decision to repatriate the applicant prematurely. While setting aside the order of repatriation, the Tribunal placed reliance upon the judgments of the Honble Supreme Court in Purushottam Lal Dhingra v Union of India [AIR 1958 SC 36]; Moti Ram Deka v Noth Eastern Railway [AIR 1964 SC 600]; K. H. Phadnis v State of Maharashtra [(1971) 1 SCC 790]; and Union of India v V. Ramakrishnan & others [(2005) 8 SCC 394]. While quoting from the judgment of the Honble Supreme Court in V. Ramakrishnan (supra) and on the basis of factual position, the High Court observed that Honest and efficient officers must be protected from being humiliated, cornered or discarded in such fanciful manner and the Tribunal has rightly stepped in to do justice to an upright officer. In V. Ramakrishnan, it was held as follows:
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 taken 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. What clearly emerges from the law laid down by the Honble Supreme Court is that even when the deputation is not for a fixed tenure, the order of repatriation can be challenged on the ground of mala fides. We need not refer to the case law on the issue, but the other ground on which such an order can be challenged is that the same is punitive, and even though the same may appear to be innocuous, but if on lifting the veil it is found that the order of repatriation has been passed on acts of some delinquency indulged in by the concerned employee, the same would be punitive. If the period of deputation is fixed, it may be curtailed, but it has to be on just grounds, but if perhaps the case of the respondents was to be that the applicant was not suitable or not giving satisfactory performance on the job on which he was deputed to work, the order of repatriation could have been passed. However, as mentioned above, the two grounds given by the respondents in repatriating the applicant are non-existent. We have already referred to the pleadings of the parties in that regard. There is no denial to the positive pleading made by the applicant that he stood exonerated in the preliminary enquiry as also in the regular enquiry by submission of report on that behalf by the enquiry officer, and further that, in any case, the enquiry had come to an end before the order of repatriation was passed. Once, the report was submitted by the enquiry officer, the participation of the applicant in the enquiry was not required. Insofar as the other reason as regards exigency of the work of the State of UP is concerned, once again, there is no denial to the fact that as many as 15 officers of the same service to which the applicant belongs, both seniors and juniors to him, are on deputation and are continuing to be so, and not even one of them has been recalled or repatriated for the reason that the work of the State may be suffering.
13. There are other judgments as well holding the view that we have taken above, but it would be unnecessary to make a mention of every judgment. We may, however, refer to the judgment of the Supreme Court in Kunal Nanda v Union of India & another [(2000) 5 SCC 362], reliance on which has been placed by the learned counsel representing the respondents. The facts of the case aforesaid reveal that Kunal Nanda was serving as an Assistant Sub-Inspector in his parent department, CRPF. He joined services of CBI on deputation in the same capacity on 1.8.1991 and continued to work as such on deputation terms for the initial period, which came to be extended from time to time with the mutual consent of the lending and borrowing departments. In 1994, the borrowing department expressed its inclination for his permanent absorption and sought for concurrence of the lending department, to which the lending department also conveyed its clearance. He was, however, repatriated to his parent department and also stood relieved with effect from 31.1.1999. He agitated the matter before the Tribunal by filing an Original Application, which came to be dismissed holding that he had no vested right for absorption. Challenge to the order aforesaid failed in the High Court. Thus, the appeal before the Supreme Court, wherein it was held as follows:
It is well settled that unless the claim of the deputationist for a permanent absorption in the department where he works on deputation is based upon any statutory rule, regulation or order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation This was not a case of deputation for a fixed term. The respondents have also placed reliance upon office memorandum dated 9.5.2007, which is Central Staffing Scheme of the Ministry of Environment and Forests. Pertinent reliance in that regard is upon para 14.10, which reads as follows:
14(x) The deputation tenure as prescribed in the preceding paragraphs will not confer any right to the officers to remain on deputation. The Central Government reserves the right to revert the officers to their parent cadres at any time without assigning any reason or change his place of posting. The tenure of the officer(s) can also be curtailed in public interest at the discretion of the Competent Authority. It is urged by the learned counsel representing the respondents that the doctrine of pleasure is recognized by the policy and there is no need whatsoever to give any reason to curtail the period of deputation. It would not be possible to accept the contention of the learned counsel as, surely and admittedly, the applicant did not proceed on deputation under the central staffing scheme issued by the Ministry of Environment and Forests. He came on deputation under the central staffing scheme issued by the Ministry of Personnel, Public Grievances and Pensions (DOP&T) dated 5.1.1996. It may be recalled that DOP&T was involved in the matter when the applicant was sent on deputation. It was also consulted when the applicant was to be sent on deputation as Deputy Director (Admn.), PGIMER, Chandigarh, to which it concurred. It is not the case of the respondents that when deputed on the post of Deputy Director (Admn.), PGIMER, the applicant was sent on deputation under the scheme of the Ministry of Environment and Forests dated 9.5.2007. That apart, once the law settled by the Honble Supreme Court is that a fixed tenure of deputation cannot be curtailed except on such just grounds, as for example, unsuitability or unsatisfactory performance, the same has to be given precedence over the instructions relied upon by the learned counsel representing the respondents. The law laid down by the Supreme Court in view of provisions contained in Article 141 of the Constitution is binding on all courts and tribunals within the territory of India. The Tribunal is also bound to follow the law laid down by the Supreme Court. Still further, cases where no reasons are given or where reasons are given but the same are false or non-existent, would be two different categories. In the present case, even though no reason may have been recorded in the order as such, the respondents have come up with the explanation as mentioned above. If the reasons are found to be false or non-existent, the order of repatriation would be totally arbitrary. It may even border on mala fides.
14. For reasons recorded above, this Original Application is allowed. The impugned order repatriating the applicant to his parent cadre of Uttar Pradesh is quashed and set aside. While issuing notice in this Application, we had not stayed the operation of the impugned order as the applicant, immediately on passing of the order, was relieved. On a separate application given by the applicant, however, he was allowed to retain the accommodation allotted to him while working on the post of Deputy Director (Admn.), PGIMER at Chandigarh, which stay is continuing till date. The applicant shall be restored to his position that he occupied before the order repatriating him to his parent department came to be passed. In the peculiar facts and circumstances of the case, however, there shall be no order as to costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/