Central Administrative Tribunal - Delhi
R.P. Juyal (Section Officer) vs Union Of India Through on 6 February, 2014
Central Administrative Tribunal Principal Bench OA No. 4137/2013 Reserved on: 30.01.2014 Pronounced on: 06.02.2014 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) R.P. Juyal (Section Officer) S/o late Sh. Govind Ram Juyal, R/o 323, Type III, Sec.3 Sadiq Nagar, New Deli 110 049. Applicant (By Advocate: Shri M.K. Bhardwaj) Versus Union of India through 1. The Secretary, Planning Commission, Yojna Bhawan, New Delhi 110 001. 2. The Chairman, Unique Identification Authority of India, Planning Commission, Govt. of India, 3rd Floor, Tower-II, Jeevan Bharti Building, C.P., New Delhi 110 001. 3. The Director General and Mission Director, Unique Identification Authority of India, Planning Commission, Govt. of India, 3rd Floor, Tower-II, Jeevan Bharti Building, C.P., New Delhi 110 001. 4. The Deputy Director General, Regional Office Delhi Unique Identification Authority of India (UIDAI) Ground Floor, Pragati Maidan Metro Station, Pragati Maidan, New Delhi 110 001. 5. The Director General B.S.F., Block No.10, C.G.O. Complex, Lodhi Road, New Delhi 110 003. 6. Deputy Inspector General, Headquarter Panisagar Sector, Border Security Force, Panisagar, Tripura (North), Tripura 799 260. Respondents (By Advocate: Shri Satish Kumar for R-1 to R-4 Shri Gajender Giri for R-5 & R-6) O R D E R By Dr. B.K. Sinha, Member (A):
The applicant, who is presently working as Section Officer on deputation in UIDAI Regional Office Delhi, has filed the instant Original Application under Section 19 of the Administrative Tribunal Act, 1985 questioning his repatriation to the parent organization by means of an order simpliciter dated 28.10.2013 (Annexure A-1). The applicant has further questioned the impugned order dated 28.02.2013 (Annexure A-2) modifying the previous pay fixation order dated 03.04.2012 for allowing 10% deputation allowance to the applicant and cancelling the order dated 05.07.2012 conveying the approval for credit of seven days un-availed portion of joining time into earned leave account in respect of the applicant. By means of this order, the officers entitlement has been confined to 5% of the basic pay w.e.f. 23.02.2012 subject to maximum of Rs.2000/- in terms of DOPT OM dated 17.06.2010.
2. The case of the applicant, in brief, is that admittedly the applicant holds a permanent lien with the respondent no.5 where he was serving as Inspector (Ministerial), BSF, Tripura North. The respondent no.3 issued a Vacancy Circular dated 28.10.2011 calling for nominations for filling up the post of Section Officer on deputation basis in its Headquarters and Regional Office, Delhi in the pay scale of Rs.9300-34800 plus Grade Pay of Rs.4800/- from persons holding analogous post in the same scale of pay or those having five years of working experience in the scale of pay of Rs.9300-34800 plus Grade Pay of Rs.4200/-. The applicant applied for the said post and his application was forwarded by his parent organization vide letter dated 30.11.2011. The applicant was selected and offered the appointment to the said post on deputation basis vide letter dated 07.02.2012 with the following terms:-
2. The above officer is hereby appointed to the post of Section Officer on deputation for a period of three years in the Pay Band of Rs.9300-34800 plus Grade Pay of Rs.4800. The terms and conditions of deputation will be governed by GOI, DOPTs O.M. dated 6/8/2009-Estt. (Pay-II) dated 17 June 2010. The individual would be required to join UIDAI by 21 Feb 2012.
3. The applicant was accordingly relieved vide Movement Order dated 13.02.2012 directing him to take up his assignment and the Last Pay Certificate was also issued vide letter dated 17.02.2012. The applicant was granted deputation duty allowance @ 10% of his basic pay vide order dated 03.04.2012 w.e.f. 23.02.2012 subject to maximum of Rs.4000/- in terms of DOP&T OM dated 17.06.2010. Vide another order dated 05.07.2012, seven days unutilized joining period was converted into earned leave and the same was credited in the applicants earned leave account. However, it transpired from the Internal Audit Report that the applicant had directly joined the office at Delhi from Jammu (the place of his earlier posting), without even going to Panisagar. He was thereby drawing deputation duty allowance @ 10% instead of 5% irrespective of the fact that no change in headquarters was involved. The internal audit report further noted that the order to place the services of the applicant at the disposal of the respondent no.3 had been taken by Delhi office of respondent no.5. The applicant had been merely asked by Finance Wing of the HQ DG BSF to take clearance and release from HQ Tripura Frontier, BSF, Panisagar. It was further noted that at the time of joining Delhi Office, the applicant had joined directly from J&K and the formality of getting clearances from Panisagar office was undertaken in view of the fact that he was joining an outside organization. Admittedly, the applicant was relieved from Delhi by the office of respondent no.5 on 13.02.2012, joined Panisagar on 14.02.2012 and was relieved from there on 17.02.2012 to take up his present assignment.
4. Aggrieved by this order, the applicant started submitting representations to various officers including the Finance Wing of the respondent organization. The case of the applicant was referred on the recommendations of the Finance Wing of the principal respondent organization. The applicant filed further representations regarding the admissibility of HRA and transport allowance as he had been residing in rented accommodation during his stay with the BSF Headquarters at Delhi. It appears that the applicants initial representation was followed up with more representations, when he found no action was forthcoming.
5. It is the case of the applicant that annoyed with the representations submitted by him in assertion of his entitlement to 10% deputation allowance and other collateral entitlement including medical reimbursement claim, the principal respondent organization issued notice vide the impugned order.
6. The applicant by means of the instant Original Application has prayed for the following relief(s):-
i) to 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 quash and set aside the impugned order dated 28.10.2013 (Annexure A-1) and 28.02.2013 (Annexure A-2) and direct the respondents to refund the recovered amount of Rs.18,572 with 24% interest;
iii) to direct the respondents to allow the applicant to complete his deputation period with 10% deputation allowance;
iv) to allow the OA with exemplary cost;
v) 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.
7. In support of the Original Application, the applicant has urged the following grounds:-
(i) The principal ground adopted by the applicant is that his appointment as Section Officer on deputation with the respondent organization was a tenure appointment. Once a tenure has been prescribed, premature repatriation by an order simpliciter as the one that has been issued in his case is arbitrary and illegal. The said order is stigmatic and could not have been passed without having been given the applicant a reasonable opportunity of being heard.
(ii) The applicant has rendered outstanding services from the date of his joining and has also submitted commendation letter issued by the Deputy Director General of the principal respondent organization on 26th October (page 84 of the paper book) and thereafter there has not been even a single warning memo.
(iii) The terms of deputation could not have been altered to the disadvantage of the applicant without having called for show cause from him. Moreover, the amount paid without any misleading statement cannot be recovered.
(iv) The applicant has further alleged institutional malice during the course of his arguments as the principal respondent was annoyed with his representations for vindication of his rightful claims.
8. A counter affidavit has been filed on behalf of the respondents no.1 to 4 whereby they have denied the facts asserted in the OA. It has been claimed, in the first instance, that the applicant has sought two un-related reliefs that being cancellation of the order of repatriation and that of reduction of his deputation allowance from initial date of his joining. The respondents, relying on Rule 10 of the CAT (Procedure) Rules, 1987, submit that the applicant is only entitled to one relief unless the other reliefs were to flow out of the first. However, in this case, the two reliefs, as sought for by the applicant, are different.
9. The respondents have further submitted that the applicants stay in Panisagar only for four days i.e. from 13.02.2012 to 17.02.2012 is a mere administrative formality and the same cannot be construed that he was performing any duty at Panisagar. Admittedly, the applicant has been residing with his family in Delhi and he could not have transported his luggage to Panisagar and back again in this very short period of four days. Instead, the applicant has filed an exaggerated claim relating to his TA. It is the case of the respondents that while working in the office of Commandant 84 Bn. Kupwara (J&K) and attached to the Finance Wing, FHQ, BSF, New Delhi on 19.05.2011, he was granted out living permission in Delhi w.e.f. 23.05.2011 with permission to draw HRA & TPT Allowance till attachment at FHQ.
10. The respondents have further alleged that the applicant had filed exaggerated medical claim relating to Rs.5238/- on the basis of an alleged certificate that he had taken the treatment in emergency department whereas no emergency certificate showing the date of admission and discharge was produced with the claim. When the claim of the applicant for medical reimbursement was disallowed, the applicant submitted a representation directly to the CGHS Authorities in violation of the prescribed norms. The counter affidavit of the respondents further alleged that the applicant had overlooked the hierarchy of the Controlling Officer and has also been accused of excess usage of data card to the tune of Rs.2345/- against the permissible limit of Rs.400/-.
11. The learned counsel for the respondents strongly submitted that the UIDAI is an organization which functions in a mission mode. The applicant has turned into a recalcitrant element where his disowning is the beginning to other and excessive energy of the principal organization is being wasted in countering his activities arising from his recalcitrance. The organization cannot afford this kind of behaviour because that has to deliver services to the Nation at large within a time bound and efficient manner. The respondents have further submitted that they have acted as per the provisions of Rule 9 of the OM dated 17.06.2010 of the DOP&T with which the applicant is also bound. The respondents had a choice whether they could have resorted to punitive action against the applicant or simply repatriate him to his parent organization under the provisions of these rules. They have opted for the second in the interest of the organization as well as of the applicant.
12. The applicant has submitted a rejoinder application wherein he has, by and large, re-affirmed his earlier grounds taken in the OA. It was, however, strongly submitted by the learned counsel for the applicant that continuance of the applicant on deputation against the tenure appointment is a matter of his legal right as provided in the decision of Purshottam Lal Dhingra versus Union of India & Others [AIR 1958 SC 36]. He has further contended that the applicant has full right to agitate towards his legitimate dues as an employee and no adverse inference can be drawn from it towards his recalcitrance.
13. The learned counsel for the respondent nos.5 & 6 appeared and supported the stance of respondent nos.1 to 4 in all respects. The learned counsel for the respondent nos. 5 & 6 further stated that the respondents are prepared to receive the repatriated applicant back to their organization as the applicant holds a permanent lien with them.
14. The applicant has additionally relied upon the following judicial pronouncements:-
(i) Sushovan Banerjee, IPS versus Union of India & Others [OA No.387/2010 decided on 08.09.2010 by the Mumbai Bench of this Tribunal];
(ii) Saurabh Kumar Mallick versus Comptroller & Auditor General of India & Another [151 (2008) DLT 261 (DB)];
(iii) Union of India through Govt. of Pondicherry and Another versus V. Ramakrishnan and Others [2005(SCC) (L&S) 1150];
(iv) Sub-Inspector Rooplal and Another versus LT. Governor through Chief Secretary, Delhi and Others [2000 (1) SCC 644]; and
(v) Mohinder Singh Gill and Another versus The Chief Election Commissioner, New Delhi and Others [1978 (1) SCC 405].
15. We have carefully examined the pleadings of the parties and such additional documents as have been submitted by them. We have also listened to the oral submissions made by their respective counsels and on the basis thereof, we find that the following issue appear germane to decide the controversy involved in this OA:-
(i) Whether any of the relief(s) sought by the applicant is precluded by Rule 10 of the CAT (Procedure) Rules, 1987?
(ii) Whether a fixed tenure deputation can be prematurely terminated by an order simpliciter repatriating the deputationist to his parent organization?
(iii) Whether the repatriation of the applicant in the instant case smacks of arbitrariness and institutional malice?
(iv) What relief, if any, can be granted to the applicant in the instant case?
16. In so far as the first of the issues is concerned, it is necessary to go through the provision of Section 10 of the CAT (Procedure) Rules, 1987, which provides as under:-
10. Plural remedies.
An application shall be based upon a single cause of action and may seek one or more reliefs provided that they are consequential to one another.
17. From plain wording of the provision, it is clear that an application has to be based upon a single cause of action and applicant may seek any relief that may flow out of it. Here, it is evident that the principal relief being sought by the applicant is for quashing of the order of his repatriation. He had additionally sought the relief of quashing the order reducing his deputation allowance from 10% to 5% of the basic pay.
18. The learned counsel for the applicant has claimed that repatriation of the applicant has flowed out of his endeavour to secure justice for himself. The principal respondent organization had acted arbitrarily and in a biased manner by reducing his deputation allowance of 10% which had been granted to the applicant in consideration of full facts and any reduction from the same is unwarranted at a subsequent date particularly when no show cause has been called from the applicant.
19. We have considered the arguments advanced by the rival parties over this issue. We are of the opinion that it is indeed true that the applicants deputation allowance was reduced from 10% to 5% by the respondents. However, we also take into account the fact that this order had been issued in consideration of the audit objection raised during the course of the internal audit. This issue is remotely connected to the issue of repatriation as the averments made by the respondents clearly show that there are other serious charges against the applicant including of submitting excessive and un-substantiated medical claims by-passing the established channels of authorities amounting to insubordination, misrepresentation of facts etc. We have also taken into account a decided case of Honble High Court of Karnataka in Syndicate Bank versus Chamundi Industries & Others [WP No. 22505 of 1998 decided on 06.10.2001] wherein a similar issue had been dealt with and the claim for multiple reliefs had been conclusively rejected.
20. In view of the afore consideration, we find that the principal relief is the one which relates to quashing of the order of applicants repatriation. Therefore, this relief alone is to be considered while ruling out consideration of the second relief that being related to quashing of the order or reduction of deputation allowance of the applicant from 10% to 5% for the aforesaid reasons, otherwise the issues get unnecessarily intertwined leading to befuddling of the main issue. We are also reluctant to take up the issues relating to medical reimbursement claims.
21. The first issue is decided accordingly.
22. Now we take up the second issue which is primarily to be decided on legal consideration. In the case of Sushovan Banerjee, IPS versus Union of India & Others (supra), the applicant was holding a tenure appointment for three years against the post of Chief Executive Officer of Childrens Film Society of India, Mumbai on deputation basis from 05.12.2008. His services were prematurely repatriated by the impugned order dated 26.04.2010 just after a period of 16 months or so. The Tribunal, however, examined the issue in the light of the previous decisions in Purshottam Lal Dhingra versus Union of India & Others (supra) with one R.L. Khullar being the intervener, and Union of India through Govt. of Pondicherry and Another versus V. Ramakrishnan and Others (supra) wherein the provisions of Article 311 (2) are held to be attracted to all the appointments. Therefore, 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 cannot be curtailed without affording a reasonable opportunity to the affected person. For the sake of clarity, the relevant paragraphs are reproduced hereunder:-
30. The Honble 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 Honble 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 deputation does not result in absorption in the service to which an officer is deputed, no recruitment in its true import and significance takes place as he is continued to be a member of the parent service. When the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability or unsatisfactory performance. But, even where the tenure is not specified, an order of reversion can be questioned when the same is mala fide. An action taken in a post haste manner also indicates malice. [See Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia and Others, (2004) 2 SCC 65, para 25]
31. Viewed from this angle, a deputationists 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.
23. In the case of Sub-Inspector Rooplal and Another versus LT. Governor through Chief Secretary, Delhi and Others (supra), the issue involved was whether the Sub Inspectors initially appointed in BSF, when taken on transfer on deputation to Delhi Police and on being permanently absorbed there, are entitled to count their substantive seniority as Sub-Inspector rendered in their parent department. Likewise, in the case of Mohinder Singh Gill and Another versus The Chief Election Commissioner, New Delhi and Others (supra), the issue involved was cancellation of polls and election related issues. Both these cases are not applicable as the facts of these case are not similar to the facts of the case in hand. In the case of Saurabh Kumar Mallick versus Comptroller & Auditor General of India & Another (supra), the petitioner, who was an employee of Indian Audit and Accounts Service (IA&AS) holding the position of Director, was facing the charge of sexual harassment at work place. The disciplinary proceedings were initiated against the petitioner. When the Committee constituted under the guidelines issued by the Honble Supreme Court in the Vishakhas case was conducting the enquiry, a case was also registered against the petitioner under Sections 451/354 of the IPC. The petitioner was dissatisfied in the manner in which the Enquiry Committee was holding the enquiry and filed OA before this Tribunal seeking quashing of the suspension order dated 03.05.2007 as well as the order dated 14.07.2007 vide which the complaint made by the complainant deemed to be the charge-sheet as per the letter of the Chairperson of the Inquiry Committee. The said OA was dismissed by the Tribunal vide its order dated 09.10.2007. This matter is also un-related to the facts of the case in hand.
24. The respondents have relied upon the decision of this Tribunal in the case of Ashok Kumar Vashisht versus Union of India & Others [OA No. 1735/2011 decided on 07.05.2012]. The facts of this case are that the applicant was appointed on deputation for a period of three years and the same could not have been curtailed without granting him three months notice. He further alleged malafide against the fourth respondent. On scrutiny of the case, malafide was not found established. It is seen that the facts of this case are similar to that as the present one under consideration. This Tribunal having considered the matter at length observed and held as under:-
6. At this stage 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 the 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 Apex Court has reiterated its earlier decisions observing 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 for 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 Nandas case (supra), Ratilal B. Sonis 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.
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9. The applicant was selected by the NIA for the S.O. post for the tenure of 3 years. The question arises whether the respondents have the authority to terminate the tripartite agreement of deputation. It is noted that the very order communicating his selection provide for premature termination of deputation and consequential repatriation. Let us examine the DOP&T Office Memorandum dated 17.06.2010 which amends the DOP&T O.M. No.2/29/91-Estt.(Pay-II) dated 05.01.1994 which has been informed to the applicant. Para 9 of the said O.M. dated 17.06.2010 reads thus:
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. xxx xxx xxx
17. We have given our considerable thought to the said contention. The applicants repatriation is not on the basis of any other aspect except the fact that his selection on deputation has been done by the respondents without proper verification of applicants antecedents and background, as the applicant himself has not furnished the detailed relevant information in his application form except casually mentioning about his two minor punishments. The respondents have found from his Service Book belatedly submitted by the applicant that he was not suitable to be posted to NIA as S.O. He was also note on the analogous post in his parent organization. The basic selection having been flawed, there was no necessity for the respondents to issue any notice to him for premature repatriation to his parent department. The impugned order clearly indicates that the applicant has been repatriated to his parent cadre i.e. Andhra Pradesh Police on administrative grounds with immediate effect. The administrative grounds have already been indicated by the respondents. We find that those administrative grounds are basically on the improper selection adopted without adequate information of the applicant by which he has been selected to the post of S.O. in NIA and such administrative grounds do not require the respondents to issue any notice as the selection itself has been vitiated. We are, therefore, of the considered opinion that by not granting any time and even not issuing the applicant a notice before the issue of the impugned order dated 21.04.2011. the respondents have not committed any irregularity as the selection itself was considered to be bad as the full facts of the applicant were not available before the respondents at the time of selection. During the final hearing, the learned counsel placed before us a copy of the order dated 12.05.2011 passed by the Additional Director General of Police (Personnel) of Andhra Pradesh Government wherein the applicants deputation was cancelled with directions to him to report for duty to the Commandant 15th Bn. APSP, Khamman.
25. Having discussed the afore mentioned case laws, now we devote ourselves to the basic contention that is it necessary that a tenure deputation can be terminated only after having issued a show cause to the concerned employee? By and large, in all the judgments discussed above, there is no dispute that deputationist has no right of continuance. However, an exception has been made in the case of tenure appointment treating it as the case of tripartite agreement. In the case of Ashok Kumar Vashisht versus Union of India & Others (supra), the applicant was not given an advance notice of three months. Further more, in the case of Union of India through Govt. of Pondicherry and Another versus V. Ramakrishnan and Others (supra), the situation was entirely different where the incumbent was appointed against a deputation post which was purely temporary in nature and there was no draft rules.
26. We also take note of the fact that in the case of Sushovan Banerjee, IPS versus Union of India & Others (supra), the Tribunal went into the point on which the applicant had been considered unsuitable and did not find any cogent reasons as to why such an inference could be drawn.
27. On consideration of the above orders, the fact that clearly emerges and on which there is uniformity is that a deputationist has no right to be continued on deputation. However, a distinction has been drawn in respect of tenure deputation, which stands on a superior footing than the the deputation without tenure. Here, we are compelled to take a note of the terms of Rule 9 of the OM dated 17.06.2010, perusal of which clearly stipulates that the deputation is subject to termination by issuing an order simpliciter giving three months notice which has been complied with in the instant case. The question that begs the answer here is that which will prevail. Is it necessary that a show cause notice must be given before a tenure deputation is terminated under the terms of an agreement, which has been agreed to by the applicant. We further ask the question that what happens if the charges are denied? Does the department undertake a proceeding and to what purpose? In such a case, the rights of the deputationist will stand at par with regular employee and counting logical place, the entire gamut of Article 311 will have to be undergone. This will have the position of entirely reversing the generally accepted legal position. Where Honble Courts have granted some term related benefits in the borrowing organization, it is only by way of exception and not by way of reversal of the generally accepted legal position that a deputationist has no right. The reverse stand to the contrary would be a deputationist has rights at par with a regular employee. That is not the purpose of deputation and it would be in complete derogation of the generally accepted legal maxim that a deputationist does not possess rights of continuance at par with those who hold a permanent lien therein.
28. However, we do concede that a tenure deputationist is placed at a higher pedestal than a non-tenure deputationist. What is meant by a show cause is that the reversion should not take place at the whims and fancies of the Government but would rather be on a rational basis. In the case of Asim Chaudhary versus Union of India and Others [OA No. 736/2013 decided on 17.07.2013], this Tribunal had decided against a plea for completion of tenure appointment and the position has been upheld by the Honble High Court vide its order dated 19.11.2013 in WP(C) No. 4836/2013, which reads as under:-
36. Mr. Nandrajog, learned senior counsel has rightly pointed out that the deputation is a tripartite agreement between the employee, the borrowing and the lending departments. It would come to an end when anyone of the three does not desire to continue the same.
37. The petitioner accepted the stipulations in the offers of appointment without any objection. He is, certainly, estopped from objecting thereafter or raising the challenge which he did before the Central Administrative Tribunal.
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40. The judicial precedent reiterates the well settled legal proposition that a deputationist has no legal right to continue in the office. So far as the tenure of deputationist is concerned, when specified, the Supreme Court has declared that ordinarily the tenure should be completed. It could be curtailed on just grounds which include unsuitability or unsatisfactory performance. When the tenure is not specified, the order of tenure can be questioned when the same is mala fide or action is taken in a post-haste manner suggesting malice. Hence, in view of the afore mentioned decisions, we reach the conclusion that the superior rights of tenure deputationist that to be recognized in as much as any premature repatriation have to be followed by cogent reasons. By taking cognizance of Rule 9 of the OM dated 17.06.2010, the plea of the applicant cannot be disregard altogether in terms of the decision of Honble High Court of Delhi in Asim Chaudhary versus Union of India and Others (supra). All will depend on the circumstances of the case. We have already referred to the twin choices before the respondents either to initiate disciplinary proceedings by incurring extra efforts and attention or to simply repatriate the deputationist. Therefore, we decide, in respect to this issue, that a premature deputation in tenure appointment is permissible where so provided in terms of deputation as a simpliciter backed sufficiently by the facts of the case and cogent reasons.
29. Coming to the third issue, we take note of the arguments of both the sides as have been stipulated above. The respondents have come across several charges against the applicant emerging from his service which ranged from submitting false claims, concealing vital information, misleading the organization, creating its harmony and disowning within the organization and acting as a disruptive force. On the other hand, the applicant submits that being an employee, he was only trying to assert his own rights to which he is legally entitled to. We feel that we need not dwell into these issues as we have already taken note of all these. We further take a note of the answer in para 4.15 of counter, which reads as follows:-
Contention of the applicant is completely presumptive and incorrect. Decision for premature repatriation is purely an administrative decision which has no bearing on his claims. UIDAI is an organization working in project/mission mode, with specific time-bound targets to be achieved. The office where the applicant is presently working is a very small organization where team work is paramount. As inferred from the previous paras, the applicant is repeatedly questioning the wisdom of the competent authorities by asking to forward his applications/medical claims to nodal ministries such as DOP&T, Ministry of Health etc. and has in fact forwarded claims directly to them. This leads to consumption of official time of the small team of officers and diversion of already meagre resources of this office to repeatedly answer his queries, representations, & claims, thus adversely affecting the efficiency of the organization. Moreover, it is apparent that the applicant has been spending his official time indulging in protracted correspondence and hence, after detailed deliberation it was concluded that the officer is misfit in the organization. Therefore, an administrative decision was taken, with the approval of competent authority, to repatriate him prematurely and notice of three months was accordingly given.
30. We have also taken note of the fact that the respondents no. 5 & 6 have fully concurred with the position of respondent nos. 1 to 4. We cannot say that the charges against the applicant, as have been brought on record in the counter affidavit of respondent nos. 1 to 4 and also orally submitted during the course of arguments, are not serious by nature. We also take cognizance of the fact that the principal organization is engaged in a Herculean task of momentous importance of giving a permanent unique identification to more than 120 crores of our population. This organization is run purely on deputation basis and is expected to be a highly efficient. It cannot deliver unless there is complete harmony and peace within itself. Without going onto the merits of the charges, we hold that the seriousness of the charges indicate that harmony and peace of the principal respondent organization stands to be disrupted. We also find that the respondents have been more generous to the applicant by not making a substantial issue and filing a chargesheet against him.
31. This issue is accordingly decided against the applicant.
32. Coming to the last issue, we find that the case of the applicant is totally devoid of merit and is misplaced at best. The individual rights cannot be carried on to a ridiculous incident.
33. In view of the findings in respect of the issues discussed earlier, we hold that the instant OA is devoid of merit and is accordingly dismissed. There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/