Central Administrative Tribunal - Delhi
Rajeev Ranjan vs Uoi & Others Through on 29 January, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO. 4500 OF 2014 New Delhi, this the 29th day of January, 2015 CORAM: HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER AND HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER . Rajeev Ranjan, Aged about 48 years, Son of late Umesh Prasad Samaiyar, R/o BX-815, T-3, Ashiana Upvan, Ahinsa Khand-II, Indirapuram, Ghaziabad Applicant (By Advocate: Shri M.K.Bhardwaj) Vs. UOI & others through 1. The Secretary, Ministry of Commerce, Udyog Bhawan, New Delhi. 2. The Additional Secretary (I/C NSEZ), Ministry of Commerce, Udyog Bhawan, New Delhi. 3. The Development Commissioner, Noida Special Economic Zone, Govt. of India, Ministry of Commerce & Industry, Department of Commerce, Phase II,Industrial Area, Noida, Gautam Budh Nagar 4. The Deputy Development Commissioner (Admn.), Noida Special Economic Zone, Phase II, Industrial Area, Noida, Gautam Budh Nagar Respondents (By Advocate: Shri Rajinder Nischal with Shri Ashish Nischal) .. ORDER Raj Vir Sharma, Member(J):
While working as a Superintendent in the office of the Chief Commissioner, Central Excise & Service Tax, Ranchi Zone, Patna, the applicant made application for selection and appointment on deputation basis as Appraiser in the office of the Development Commissioner, Noida Special Economic Zone (NSEZ), Noida, in response to the O.M. dated 25.5.2011 (Annexure A/2) issued by the Assistant Development Commissioner, NSEZ, Noida. On his selection, the offer of appointment of the applicant to the post of Appraiser on deputation basis for a period of three years from the date of joining was issued to the applicant, vide letter dated 29.9.2011 (Annexure A/4). The applicant joined as Appraiser on 14.10.2011 in the office of the Development Commissioner, NSEZ, Noida. Before completion of his deputation tenure of three years, the applicant, vide his letter dated 2.5.2014 (Annexure A/8), requested the Development Commissioner, NSEZ, Noida, to extend his deputation tenure by one more year (4th year) beyond 13.10.2014. The Chief Commissioner, Central Excise & Service Tax Zone, Patna, granted No Objection Certificate for extension of the deputation period of the applicant for a further period of one year, vide letter dated 29.5.2014. The Under Secretary to the Government of India, Ministry of Commerce & Industry, Department of Commerce (SEZ Section), vide letter dated 22.7.2014 (Annexure A/11), conveyed the approval of the competent authority for extension of deputation of the applicant for 4th year with effect from 14.10.2014. Accordingly, office order dated 11.8.2014 (Annexure A/12) was issued by the Deputy Development Commissioner, NSEZ, extending the deputation period of the applicant for the fourth year from 14.10.2014 to 13.10.2015. However, respondent no.3, vide order dated 9.12.2014 (Annexure A/1), decided to place the services of the applicant at the disposal of the office of Commissioner of Customs, Patna, with immediate effect without any rhyme or reason. Being aggrieved by the order dated 9.12.2014 (Annexure A/1) issued by the Development Commissioner, NSEZ, Noida, repatriating him to the parent Department before completion of the extended deputation tenure for the 4th year, the applicant has filed the present O.A. seeking the following relief(s):
i) To quash and set aside the impugned order dated 09.12.2014 (A-1) and declare the action of the respondents in repatriating the applicant to his parent department by violating terms and conditions of his appointment as illegal, arbitrary and unconstitutional.
ii) To direct the respondents to continue the applicant on deputation till completion of his tenure of five years.
iii) To allow the O.A. with exemplary cost.
iv) To pass such other and further orders which their lordships of this Honble tribunal deem fit and proper in the existing facts and circumstances of the case.
2. Opposing the O.A., the respondents have filed a counter reply wherein it is stated that in terms of Section 12(3) of the Special Economic Zone Act, if the Development Commissioner, based on the feedback received from the trade and industry, concludes that an officers continuance would adversely affect export promotion efforts, then he has power to repatriate the officer in larger public interest. Referring to the decisions of the Honble Supreme Court in State of Punjab and others v. Inder Singh and others, (1997) 8 SCC 372; Ratilal B.Soni and others v. State of Gujarat & others, 1990 (Supp.) SCC 243; and Kunal Nanda v. Union of India and another, AIR 2000 SC 2076, the respondents have resisted the claim made by the applicant in the O.A.
3. We have perused the pleadings and have heard Shri M.K.Bhardwaj, learned counsel appearing for the applicant, and Shri Rajinder Nischal, learned counsel appearing for the respondents. We have also perused the written notes of submissions filed by the learned counsel appearing for the applicant on 20.1.2015 and 22.1.2015.
4. It was submitted by Shri Bhardwaj, learned counsel appearing for the applicant that the deputation period of the applicant for the fourth year, i.e., up to 13.10.2015, was extended with the approval of respondent no.1. In the absence of prior approval of respondent no.1, the impugned order dated 9.12.2014 issued by respondent no.3 is unsustainable in the eyes of law. It was also submitted by the learned counsel that the impugned order dated 9.12.2014 is violative of the DoP&Ts O.M. dated 17.6.2010 inasmuch as advance notice of three months was not given to the applicant and the lending Department. In support of his contentions, the learned counsel relied on Kunwar Pal Singh (Dead) by LRs v. State of U.P. & others, Appeal (Civil) No.6099 of 2001, decided on 26.3.2007; and Union of India v. V.Ramakrishnan & others, 2005 SCC (L&S) 1150. The learned counsel also placed reliance on the decision of Bombay Bench of the Tribunal in Sushovan Banerjee v. Union of India and others, OA No.387 of 2010, decided on 8.9.2010.
5. On the other hand, it was submitted by Shri Rajinder Nischal, learned counsel appearing for the respondents that the applicant has no legally enforceable right to complete the extended period of his deputation, and that the applicant can always and at any time be repatriated to his parent Department to serve in his substantive position at the instance of either of the Departments and he has no vested right to continue on deputation. It was also submitted by the learned counsel that non-issuance of advance notice of three months does not invalidate the order dated 9.12.2014. It was further submitted by the learned counsel that the order dated 9.12.2014 repatriating the applicant to his parent Department being not punitive/stigmatic and being an order of repatriation simplicitor, the applicant cannot be said to have any grievance. In support of his contentions, the learned counsel relied on the decision of the Honble Supreme Court in Union of India v. Agya Ram, Civil Appeal No.1779 of 1970, decided on 17.8.1976, and the decision of the Tribunal in Shri Shailesh Singh v. Union of India and others, MANU/CA/0086/2010.
6. Before proceeding further, we would like to refer to the decisions cited by the learned counsel for the applicant.
6.1 In Kunwar Pal Singhs case (supra), the Honble Supreme Court observed that the principle is well settled that where any statutory provision provides a particular manner for doing a particular act, then, that thing or act must be done in accordance with the manner prescribed therefor in the Act.
6.2 In V. Ramakrishnans case (supra), the Honble Supreme Court held thus:
32. 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 v. Jagdishbhai M.Kamalia (2004) 2 SCC 65. 6.3 In Sushovan Banerjees case (supra), the applicant was an IPS officer of 1989 batch of Madhya Pradesh Cadre. While working in the rank of Inspector General of Police, he was considered and appointed to the post of Chief Executive Officer, Childrens Film Society of India, Mumbai, on deputation basis, initially for a period of three years, by order dated 5.12.2008. He was aggrieved by his abrupt curtailment of deputation period by the impugned order dated 26.4.2010 just after a period of about 16 months or so. In paragraphs 30 to 33 of the order, the Tribunal held thus:
30. The Hon'ble Supreme Court has reiterated the above legal position in a somewhat recent judgment pertaining to deputationist titled Union of India Vs. V. Ramakrishnan & Others [2005 SCC (L&S) 1150]. The Hon'ble Supreme Court has specifically held in para 32 of the said judgment that although the deputationist may not have a right to continue in the post in question, but where it is for a specified time, it cannot be curtailed without giving reasonable opportunity to the affected person. Even the curtailment, if any, in the period of specified deputation is possible on the ground of unsuitability or unsatisfactory performance. Para 32 of the said judgment is reproduced herein below :
32. 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 deputationist 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. (emphasis provided).
31. Viewed from this angle, a deputationist's position cannot be considered to be so tentative and vulnerable as to throw him out at the whims and fancies of a particular person, that too without any notice and without adhering to the principles of natural justice. It is a reversal for a senior officer to be repatriated prematurely to his department in an abrupt and sudden manner. Even if he does not have an indefeasible right to continue on deputation till the completion of his tenure, he has a limited right to be informed of reasons for his premature repatriation in advance so that he may put up defence before the higher authorities. He does have a legitimate expectation to that effect. This would be compliance with the minimum requirement of the principles of natural justice. A sudden and abrupt repatriation without notice or opportunity, therefore, has to be regarded as arbitrary, unfair and unjust exercise of discretion, which is prohibited by law, particularly by equality clause enshrined under Articles 14 and 16 of the Constitution of India. Such an action cannot be justified on the touchstone of reasonableness as it would also be hit by the Wednesbury Principle of Unreasonableness, a principle which has been consistently followed since last many decades.
32. The impugned order, therefore, is liable to be quashed and set aside and consequently, the applicant is entitled to reinstatement in his former post of deputation forthwith. However, if the applicant so desires, he may prefer a representation to the DOPT for his lateral deputation in Mumbai. Keeping in view the clumsy circumstances under which the applicant came to be abruptly repatriated to his parent cadre, we would expect that the respondents, if they so deem it appropriate and also subject to consent of the applicant, the latter may be accommodated in a suitable alternative post of deputation at Mumbai, by way of lateral movement.
33. Before parting, we also take this opportunity to note that the Tribunal has come across a few such cases of premature repatriation of very senior officers of All India Services. The ground taken for such premature repatriation by the borrowing department are generally trivial and not connected with the efficiency or working of the officials. We understand that officers with proven track record and with clean image are picked up for being sent on deputation. That being so, it become incumbent upon the Department of Personnel & Training to ensure that the work culture, including its ethos and actual practice, of the borrowing entity is suitable enough to make positive use of the abilities of the deputationist, besides allowing him to improve further in his career. Otherwise, as it has happened in this case, the very purpose of having the system of deputation will be soundly defeated.
34. All deputations are necessarily effected through involvement and concurrence of the Department of Personnel and Training. Therefore, there is a prima facie need for streamlining the deputation of such officers and ensuring that their tenure to be secure through proper and more effective guidelines, control and procedure.
7. Let us refer to the decisions cited by the learned counsel appearing for the respondents.
7.1 In Inder Singhs case (supra), the Honble Supreme Court held that deputation is a tripartite agreement based on voluntary consent of the principal employer to lend the service of his employee, which decision has to be accepted by the borrowing Department/ employer and also involves consent of the employee. Generally the deputation is the assignment of an employee of one Department / cadre to another Department / cadre and the deputation subsists so long as parties to tripartite agreement adhere to the same. The moment this tripartite agreement is disturbed or vitiated or repudiated, the employee would have no legally enforceable right to continue to complete the agreed period of his deputation.
7.2 In Ratilal B. Sonis case (supra), the Honble Supreme Court held that an employee on deputation can be reverted to his parent cadre at any time, who would have no right to be absorbed on the post of deputation.
7.3 In Kunal Nandas case (supra) the Honble Supreme Court reiterated its earlier decisions that the basic principle underlying deputation itself is that the person can always and at any time be repatriated to his parent Department to serve in his substantive position at the instance of either of the departments and there is no vested right in such a person to continue on deputation or get absorbed in the department to which he had gone on deputation.
7.4 In Agya Rams case (supra), the question that arose for consideration was whether respondent Agya Ram, a permanent employee of the Punjab Government, who held a temporary appointment as Settlement Officer in the office of the Regional Settlement Officer, Jullundur, under the Ministry of Works, Housing & Supply (Department of Rehabilitation), Government of India, was entitled to 15 days notice before he was asked to go back to his parent Department. The trial court decreed the suit filed by Agya Ram. It was, inter alia, held by the trial court that the order of reversion was really an order terminating the services of Agya Ram which was void in the absence of a prior notice in accordance with the terms of appointment. The first appellate court, while partly allowing the appeal, held that that the order reverting Agya Ram to his parent department had been made in accordance with his terms of service and was therefore valid and that as one of the terms provided that the Agya Rams services might be terminated only after giving notice for a period of not less than 15 days and as no such notice was admittedly given, he was entitled to his pay for these 15 days. The Single Judge of the Honble High Court, while allowing the second appeal filed by Agya Ram, held that in the absence of anything in the conditions of service to suggest that pay in lieu of notice would satisfy the requirement of serving 15 days clear notice on Agya Ram before his service could be terminated, the order of reversion was illegal and void. The Division Bench dismissed in limine the Letters Patent Appeal preferred by the Union of India, but granted a certificate that the case was a fit one for appeal to the Honble Supreme Court. The Honble Supreme Court, while holding that the reference was misconceived, held in para 5 as follows:
5. Before us it was contended on behalf of the appellant, Union of India, (a) that the respondents conditions of service as Settlement Officer did not require that he should be given any prior notice before reverting him to his parent department, and (b) that, even assuming that the respondent was entitled to a prior notice of 15 days before his services were terminated, sending him back to the Directorate of Land Records where he held a substantive post did not amount to termination of his services as Settlement Officer. We do not think it necessary to consider the second question as to whether in the circumstance of the case reverting the respondent to the parent department amounted to termination of his services, because we have not been able to find any basis for the claim that prior notice of 15 days was required before the respondent could be reverted from his temporary post as Settlement Officer to the Directorate of Land Records. The terms of service on which the courts including the High Court proceeded were applicable to the respondent as Assistant Settlement Officer. No such term appears from the order appointing the respondent as Settlement Officer, nor there is anything on record to suggest that the same terms and conditions which regulated the services of the respondent as Assistant Settlement Officer would continue to apply to him as Settlement Officer. Reference to that term in this case, in our opinion, was misconceived. The appeal therefore must succeed. The appeal is accordingly allowed and the suit is dismissed. The parties will bear their own costs throughout. 7.5 In Shri Shailesh Singhs case (supra), the applicant, a member of Indian Police Service, was selected and appointed on deputation basis as Zonal Joint Director General of Foreign Trade for a tenure of 5 years period from the date of taking over of the charge or until further orders, whichever event was earlier. He assumed the said office on 4.3.2008. Though the policy guidelines for central deputation for a Director Level post was 5 years and the same was approved for him as ZJDGFT for a tenure of 5 years, an office order dated 25.9.2009 was issued prematurely repatriating him to the Ministry of Home Affairs, the Cadre Controlling Authority for the IPS officers. In paragraphs 5, 12, 13, 14, 16, 25 and 27 of the order, the Tribunal held thus:
5. The main contention raised by Ms. Jyoti Singh, the learned Counsel for the Applicant, is that the Applicants tenure of 5 years being from March 2008 to March 2013, premature repatriation after barely 18 months of his work is against the deputation policy. She contends that the very words Pre-maturely repatriated casts stigma on the Applicant and will affect his future career prospects. It is argued that the plain reading of the order shows, it is punitive in nature but the Applicant was not put to any notice less to speak of show cause notice. It is stated that the Applicant has nothing adverse against him and there is no charge sheet against him. Ms. Singh submitted that one anonymous complaint against the Applicant was given to him which he got verified and found that the complainant denied to have sent any complaint and the allegations in the said complaint were false. She submits that one more complaint of Traders Association was sent to the Applicant by Respondent No.1 in a letter dated 8.7.2009 in which concentration of all powers with the Applicant was alleged. In a responsive way, the Applicant delegated vide his letter dated 10.07.2009 to others the power which he was exercising on the subject of keeping the licenses in abeyance. Ms. Jyoti Singh contends that the settled position in law is that neither punitive action nor any act that will cast stigma on any employee can be taken behind his back without giving him an opportunity to show cause and to produce his defence in an enquiry. In this legal setting, she submits that the Applicant did not face any show cause notice or inquiry and the punitive action of premature repatriation has been taken behind his back. She also submits that the plain reading of the repatriation order seems to be simplicitor but if the veil is lifted the Tribunal may find the real reasons for passing such an order of repatriation. If the background of the order exposes serious allegations, the order of the Applicants repatriation should be treated as stigmatic and without giving an opportunity to him such an order would deserve to be quashed. In this context, she referred to the Commerce Secretarys letter to Secretary, Department of Personnel and Training recommending Applicants repatriation to highlight that there existed stigmatic contents which had influenced the competent authority to pass the said repatriation order. In support of her contention on the stigmatic repatriation of the Applicant, she placed her reliance on the ratio in the judgment of Honble Delhi High Court in the case of Union of India Versus J.P. Verma and Another [98 (2002) DLT 510 (DB)].
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12. We note this is a case of premature repatriation where issues raised by the counsel for the Applicant are within a limited compass. When the period is specified in the order of deputation, an order of premature repatriation can be questioned on two specific grounds viz on the ground of allegations which may be stigmatic, and on the grounds of malafides attributable to the officers instrumental in ordering the repatriation. Having heard the rival contentions in this regard, the following two issues are framed for our consideration and determination:-
(i) Is the repatriation order valid and legally sustainable or stigmatic/punitive liable to be quashed?
(ii) Is the action of the Respondents to relieve the Applicant on the day of issue of the repatriation order in post haste mala fide?
13. We may take up the first issue for our analysis viz Is the repatriation order valid and legally sustainable or stigmatic/punitive liable to be quashed?
14. It would be appropriate for us to note the settled position in law relating to deputation and repatriation. Deputation precedes the repatriation. In service jurisprudence, deputation is resorted to in public interest to meet exigencies of public service. Deputation is a tripartite agreement as held by Honourable Supreme Court of India in State of Punjab Versus Inder Singh[1997 - 8- SCC- 372], based on voluntary consent of the principal employer to lend the service of his employee, which decision has to be accepted by the borrowing Department/ employer and also involves consent of the employee. Generally the deputation is the assignment of an employee of one Department / cadre to another Department / cadre and the deputation subsists so long as parties to tripartite agreement adhere to the same. The moment this tripartite agreement is disturbed or vitiated or repudiated, the employee would have no legally enforceable right to continue to complete the agreed period of his deputation. The Honourable Supreme Court in Ratilal B. Soni & Others versus State of Gujarat & Others [1990 (Supp) SCC, 243] held that an employee on deputation can be reverted to his parent cadre at any time, who would have no right to be absorbed on the post of deputation. In Kunal Nanda versus Union of India & Another [AIR 2000 SC 2076] the Honourable Supreme Court has reiterated its earlier decisions that the basic principle underlying deputation itself is that the person can always and at any time be repatriated to his parent Department to serve in his substantive position at the instance of either of the departments and there is no vested right in such a person to continue on deputation or get absorbed in the department to which he had gone on deputation. A Division Bench of Punjab & Haryana High Court in Gurinder Pal Singh versus State of Punjab [2005 (1) SLR 629], after taking into consideration the decisions of the Apex court in Kunal Nanda case (supra), Ratilal B. Soni case (supra), and Rameshwer Parshad versus Managing Director, U.P. Rajkiya Nirman Nigam Limited [1999 (5) SLR 203 (SC)] has held that a deputationist would have no vested right to continue in the borrowing department till the completion of the stipulated period of deputation and the deputation being a tripartite contract, can be continued only if all the parties like it to continue. Honourable Apex Court in the case of Kunal Nanda Vs. Union of India[AIR -2000 SC 2076]decided on 24-4-2000 held as follows:
"6. On the legal submissions made also there are no merits whatsoever. It is well settled that unless the claim of the deputationist for 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."
Honourable Apex Court in the case of Union of India Versus Ramakrishnan[AIR - 2005 - SC-4295] also observed as follows:-
"32. Ordinarily, a deputationist has no legal right to continue in the post...... "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]"
16. The case of the applicant was that he was appointed on the post on deputation basis for a period of five years and the same could not be curtailed. The position as narrated above undisputedly brings out that the tenure of deputation can be curtailed but the settled legal position in the subject lays the ratio that the order of deputation curtailment must be simplicitor and the grounds of the curtailment should not be stigmatic or punitive. Even if the grounds for repatriation is stigmatic/punitive the order of repatriation must precede proper enquiry and principles of natural justice more specifically audi altrem partem which means that an opportunity should be provided to the officer concerned to defend himself properly. It is also trite that the grounds such as unsuitability or unsatisfactory performance or ineffectiveness of the officer concerned do not become stigmatic / punitive. As per the deputation policy, the applicant would have an indefeasible right to hold to the said post for such period as mentioned therein, and the same could not be curtailed except on grounds such as unsuitability or unsatisfactory performance. The learned counsel for the parties for their specific points placed their reliance upon the judgment of the Honble Supreme Court in the Ramakrishnan case (supra). The order of deputation clearly specified a period of five years on the post the Applicant was appointed. Deputation is a tripartite agreement among the lending Department, the borrowing Department and the individual Officer. Thus the Applicant has a right to remain on deputation, and simultaneously the Government reserves the right also to revert such officers to their parent cadres at any time without assigning any reasons. This Tribunal in Sunil Krishna versus Union of India & Others (OA No.1729/2006 decided on 6.3.2007), held that the tenure deputation set out is subject to discretion of the Central Government to revert deputationist officers to their parent cadre at any time without assigning any reason. If the applicant may derive the right to continue on normal deputation for a period of five years on the basis of the policy, the said normal deputation period would be subject to the discretion of the Central Government to curtail the same. In so far as judgment of the Honble Supreme in the case of V. Ramakrishnan (supra), is concerned, it may be seen that it deals with only providing of a period of deputation, without there being any right to curtail it without assigning any reason. That apart, the Supreme Court has clearly held that even if the tenure of a deputation is specified, an officer on deputation has no indefeasible right to hold the said post. It is noted that the period of deputation should not ordinarily be curtailed except on just grounds for example, unsuitability or unsatisfactory performance. The law laid down by the Honble Supreme Court would apply where it is a straight case of providing a period of deputation without there being any right with the Government to curtail it. It is for this precise reason, it appears, that the order of deputation of the Applicant has given alternatives with the suffix of until further orders, whichever event takes place earlier. Honble Punjab and Haryana High Court in the case of H. C. Prem Singh and Others Versus State of Punjab and Others [2010 (1) SLR 126] considered a case with the grounds of ineffectiveness and dismissed the Civil Writ Petition vide judgment delivered on 27.11.2009. In this case Petitioners 23 in numbers were sent on deputation to Excise and Taxation Department of Punjab Government for 2 years but just after 6 months they were repatriated to the present department on the grounds that the petitioners have not been able to serve the borrowing department with the effectiveness required. The grounds for cutting short the deputation period like unsuitability and unsatisfactory performance are not exhaustive. The same have been stated only by way of illustration as is clearly mentioned in the decision. The law as settled appears to be that when the period of deputation is specified, the same may be curtailed on the ground that the employee is unsuitable for the concerned job or is having unsatisfactory performance, or the officer is ineffective or such other grounds which would reflect the efficiency or effectiveness of the concerned officer. In this context the Honble Supreme Court in the case Union of India Versus J.P. Verma & Another(supra) relied upon the observations made in its earlier decision in K.H. Phadnis v. State of Maharashtra [(1971) 1 SCC, 792], which read as follows:
17. The order of reversion simplicitor will not amount to a reduction in rank or a punishment. A Government servant holding a temporary post and having lien on his substantive post may be sent back to the substantive post in ordinary routine administration or because of exigencies of service. A person holding a temporary post may draw a salary higher than that of his substantive post and when he is reverted to his parent department the loss of salary cannot be said to have any penal consequence. Therefore though the government has right to revert a Government servant from the temporary post to substantive post, the matter has to be viewed as one of substance and all relevant factors are to be considered in ascertaining whether the order is a genuine one of accident of service in which a person sent from the substantive post to a temporary job has to go back to the parent post without an aspersion against his character or integrity or whether the order amounts to a reduction in rank by way of punishment. Reversion by itself will not be a stigma. On the other hand, if there is evidence that the order of reversion is not a pure accident of service but an order in the nature of punishment, Article 311 will be attracted.
The observations extracted above would make a clear distinction between an order passed as a result of accident of service or an outcome of allegations and complaints against character of an officer. The contentions raised by the counsel for the Applicant that the order of repatriation though appeared to be innocuous and simplicitor but the same was stigmatic and punitive in nature, and she submitted that the Tribunal should lift the veil to find out the nature of the order. The Apex Court held that court can always lift the veil and find the real reason of order. We can, therefore, lift the veil and find out the real reasons behind the repatriation order, and if the same is found to be stigmatic / punitive, the doctrine of natural justice would be straightway attracted and the employee cannot be repatriated prematurely unless he is heard in the matter of stigma. There is no litmus test by which we can just peruse the background papers to come to the conclusion as to whether the repatriation order is stigmatic or not. The controversy, insofar as the facts and circumstances leading to the repatriation of the Applicant is concerned we are to examine and analyse the background papers to come the considered view as to whether the repatriation is stigmatic or not. Facts of each case differ. In the case of repatriations each case is different from the other and no straitjacket formula can be used.
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25. Having due regard to the facts and circumstances of the case discussed above it appears to us that the repatriation order of the Applicant is simplicitor and not punitive/stigmatic. The distinction between the foundation and motive in relation to repatriation is very thin and narrow. It is difficult to classify strictly the order of repatriation but we make an attempt to figure out distinction on the basis of foundation and motive. If the repatriation is based on alleged misconduct as foundation it becomes stigmatic and calls for proper opportunity to the officer before repatriating him. If the repatriation is based on complaints as motive on the ground of unsuitability and unsatisfactory performance to continue in service, such repatriation order cannot be termed as stigmatic but will be an order simplicitor. The preliminary enquiry was done by the DGFT not with the object of finding out misconduct on the part of the Applicant but was done only with a view to determine his suitability and he was counseled by letters and also in person by both DGFT and Commerce Secretary. The repatriation was ultimately ordered by the competent authority namely Appointment Committee of the Cabinet not founded on the complaints of misconduct but on the basis of his unsatisfactory performance, unsuitability and ineffectiveness in the post to which he was deputed. After close scrutiny by lifting the veil of simple order of repatriation we could not find reasons to term the same as either stigmatic or punitive.
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27. Considering the above facts and circumstances of the case, our detailed discussions on the issues and taking note of the settled legal position in the subject, we come to the considered conclusion that the Applicant has not been able to establish his case and we do not find any reason to interfere in the repatriation and relieve orders passed by the Respondents. Resultantly, the stay order is vacated and the Original Application being bereft of merits is dismissed. In view of the typical nature of the case we do not pass any order on costs.
8. Keeping in mind the principles laid down in the above decisions, we have to consider the rival contentions of the parties.
9. Paragraphs 8 and 9 of the DoP&Ts O.M. dated 17.6.2010 read thus:
8. Tenure of deputation/foreign service.
8.1 The period of deputation/ foreign service shall be as per the Recruitment Rules of the ex cadre post or 3 years in case no tenure regulations exist for the ex cadre post.
8.2 In cases where the period of deputation/foreign service prescribed in the recruitment rules of the ex cadre post is 3 years or less, the Administrative Ministry/borrowing organization may grant extension up to the 4th year after obtaining orders of their Secretary (in the Central Government)/Chief Secretary (in the State Government)/equivalent officer in respect of other cases) and for the fifth year with the approval of the Minister of the borrowing Ministry/Department and in respect of other organizations with the approval of the Minister of the borrowing Ministry/Department with which they are administratively concerned.
8.3.1 The borrowing Ministries/Departments/Organizations may extend the period of deputation up to the fifth year where absolutely necessary in public interest, subject to the following conditions:
(i) The extension would be subject to the prior approval of the lending organization, the consent of the official concerned and wherever necessary, the approval of the UPSC/State Public Service Commission and Appointment Committee of Cabinet (ACC).
(ii) If the borrowing organization wishes to retain an officer beyond the prescribed tenure, it shall initiate action for seeking concurrence of lending organization, individual concerned, etc., six months before the date of expiry of tenure. In no case it should retain an official beyond the sanctioned term unless prior approval of the competent authority to grant further extension has been obtained.
(iii) No further extension beyond the fifth year shall be considered.
8.3.2 Where extension is granted up to the fifth year, the official concerned will continue to be allowed deputation (duty) allowance, if he/she has opted to draw deputation (duty) allowance.
8.4 There shall be a mandatory cooling off period of three years after every period of deputation/foreign service up to Joint Secretary level posts and one year for Additional Secretary level posts.
8.5 A Central Government employee shall be eligible for deputation/foreign service to posts in State Government/ State Government Organizations/ Government of UTs/ Government of UTs Organizations/ Autonomous Bodies, Trusts, Societies, PSUs etc. not controlled by the Central Government only after he has completed 9 years of service and is clear from the vigilance angle.
8.6 If during the period of deputation/foreign service, on account of proforma promotion in the parent cadre the official concerned becomes entitled to a higher Pay Scale/Pay Band & Grade Pay in the parent cadre vis-`-vis that of the ex-cadre post, the official shall complete his/her normal/extended tenure of deputation already sanctioned with the approval of the competent authority. The pay shall be regulated as under:
(a) If the Grade pay of the officer in the parent cadre becomes higher than that of the deputation post after getting proforma promotion, he may be allowed the pay in the pay band + Grade Pay of the post to which he is promoted till the time he completes the normal/extended period of deputation (if he gets proforma promotion in the extended period) already sanctioned, if he so opts. No extension in the period of deputation shall be allowed to him after completing the sanctioned period of deputation.
(b) If he draws the pay in the pay band + Grade pay attached to the deputation post, on reversion to his parent cadre, his pay may be fixed by allowing him notional increments in his regular post in the parent department + the Grade pay attached to it.
(c) If the Grade pay of the officer in the parent cadre becomes higher than that of the deputation post on getting financial upgradation under the ACP/MACP scheme, the officer may be allowed to draw the pay in the pay band + Grade Pay to which he becomes entitled to under the ACP/MACPS, if opted for by him, as laid down in Para 27 of Annexure I to the DOPT O.M. No.35034/3/2008-Estt.(D) dated 19th May, 2009.
9. Premature reversion of deputationist 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 deputationist, 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.
10. Admittedly, approval of the competent authority, i.e., Secretary to the Government of India, Department of Commerce (SEZ Section), for extension of deputation of the applicant for 4th year w.e.f. 14.10.2014 was conveyed by the Under Secretary to the Government of India, Department of Commerce (SEZ), vide his letter dated 22.7.2014. On the basis of the said approval of the competent authority, office order dated 11.8.2014 (Annexure A/12) was issued by the Deputy Development Commissioner, NSEZ, Noida, extending the deputation period of the applicant for the fourth year from 14.10.2014 to 13.10.2015. It is not the case of the respondents that the impugned order dated 9.12.2014 has been issued prematurely repatriating the applicant to the parent Department on account of his unsuitability or unsatisfactory performance. The respondents have not refuted the statement of the applicant that no advance notice of three months was given to the lending Department and the applicant. Therefore, the impugned order of premature repatriation dated 9.12.2014 has been issued by the respondent no.3 in clear violation of Paragraph 9 of the DoPTs O.M. dated 17.6.2010. This apart, prior approval of the competent authority has also not been obtained by the respondent no.3 before making the order dated 9.12.2014. In none of the cases cited by the learned counsel appearing for the respondents, it has been held that the borrowing Department can repatriate a deputationist without giving advance notice of such repatriation to the lending Department and the deputationist although such notice has been clearly mandated in the rules or Government instructions regulating the terms and conditions of deputation. In none of the decisions cited by the learned counsel appearing for the respondents, it has been held that any authority subordinate to the competent authority, who had approved the extension of the deputation period of a deputationist, can make an order of premature repatriation of the said deputationist without prior approval of the said competent authority. Having given our anxious consideration to the facts and circumstances of the case and in view of the decision of the Tribunal in Sushovan Banarjees case (supra), we find that the impugned order dated 9.12.2014 is unsustainable in the eyes of law and hence liable to be interfered with.
11. As regards the applicants prayer for a direction to the respondents to allow the applicant to continue on deputation till completion of his tenure of five years, we find that there is nothing on records to show that the applicant has ever made any request for extension of his deputation period for the fifth year, and that the lending and borrowing Departments have ever taken any steps in that regard in accordance with the DoP&Ts O.M. dated 17.6.2010. Therefore, the said prayer of the applicant does not deserve consideration in the present proceedings.
12. In the light of the above discussions, we partly allow the O.A. Accordingly, the impugned order dated 9.12.2014 (Annexure A/1) is quashed. No order as to costs.
(RAJ VIR SHARMA) (ASHOK KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN