Orissa High Court
N. Harikrishna vs Union Of India And Others .... Opposite ... on 5 September, 2024
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.32173 of 2021
N. Harikrishna .... Petitioner
Mr. Sarat Chandra Dash, Advocate
-versus-
Union of India and others .... Opposite Parties
Mr. P.K. Parhi, DSGI along with
Mr. S.S. Kashyap, CGC for O.P. Nos.1 to 4
Mr. Milan Kanungo, Senior Advocate
alongwith Mr. Santosh Kumar Dwivedy,
Advocate for O.P. Nos.5 & 6-NHAI
CORAM:
HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
Order No. ORDER
09. 05.09.2024
This matter is taken up through Hybrid Mode.
2. Challenging the Office OrderNo.13422/Depu/EE
(Civ)/DGBR/21/E1A dated 06.10.2021 issued by the Lt. Col. in the
capacity of Joint Director (Personnel) for and on behalf of the
Director General, Border Roads, whereby the representation dated
23.09.2021 for extension of deputation period of one year has been
rejected and issued direction to repatriate by 27.10.2021, the
petitioner has approached this Court by way of filing this writ
petition craving to invoke extraordinary jurisdiction of this Court
under Articles 226 & 227 of the Constitution of India with the
following prayer(s):
"In the aforesaid circumstances, it is humbly prayed that this
Hon‟ble Court may graciously be pleased to admit this writ
application and issue a Rule Nisi calling upon the Opp. Parties to
show cause as to why this Writ Application shall not be allowed and
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if the Opp. Parties failed to show cause or show insufficient cause,
the said Rule may be made absolute and on hearing the parties
through their counsel and on calling for records from the Opp.
Parties, this Hon‟ble Court be further pleased:
i. To hold that the Office Order vide No.13422/Depu/EE
(Civ)/DGBR/21/E1A dated 06.10.2021 under
Annexure-2 is illegal, arbitrary, unreasonable, non-
application of mind, violative of principles of natural
justice and amounts to overreaching the order of this
Hon‟ble Court dtd.04.10.2021 under Annexure-1 and
accordingly quash the same.
ii. This Hon‟ble Court further be pleased to pass such
other writ/writs, Order/Orders, Direction/Directions
as would be deem fit and proper in favour of the
Petitioner in the peculiar facts and circumstances of
the case.
And for which act of kindness the petitioner as in duty
bound shall ever pray."
3. As is revealed from the writ petition that the petitioner being
selected having rank at Serial No.163 in the Indian Engineering
Service Examination, 2002 conducted by the Union Public Service
Commission (for short, "the UPSC") on 03.05.2003, he was
appointed by the Ministry of Transport and Highways (Border
Roads Development Board) bearing Enrolment No.GO-3309F,
videOrder dated 19.05.2004 he was posted as Assistant Executive
Engineer (Civil) under the General Reserve Engineering Force in
Border Road Engineering Service under the Border Road
Development Board, Ministry of Road Transport and Highways.
3.1. While working as Executive Engineer, on his exercise of
option for deputation to the National Highways Authority of India
(NHAI), Ministry of Road Transport & Highways, Govt. of India,
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being approved by the opposite party no.3 vide Office Order
No.13422/Depu/EE/(Civ)/DGBR/64/E1A, dated 05.10.2018, the
petitioner was relieved to enable him to join in NHAI with
stipulation that the borrowing Department would maintain service
documents andhe was permitted to join as DGM (T) at RO,
Vijaywada, NHAI with effect from 31.10.2018 and again
transferred to Vishakhapatnam. The petitioner was again transferred
from PIU, Vishakhapatnam to newly reorganized NHAI at
Berhampur, Ganjam, Odisha on 01.09.2020.
3.2. Since the petitioner had already served in highly remote
sensitive Border Road area for about fourteen years, he requested
for extension of period of deputation in order to facilitate
completion of education of his child at Berhampur.
3.3. The Chief General Manager (Tech) [CGM (Tech)],
Regional Office (RO), Odisha in consideration of such request vide
Letter No.914, dated 24.03.2021 forwarded the representation to
Member (Tech)-MS, NHAI, G-5 & 6, Sec-10, New Delhi. In
consequence thereof, the NHAI, Head Quarter (HQ) requested the
Director General, Border Roads, Seema Sadak Bhawan, Ring Road,
New Delhi for extension of deputation period and videLetter
No.508 dated 22.06.2021, the NHAI has recommended for
extension for 4th year, i.e., upto 30.10.2022.
3.4. On 23.09.2021, the petitioner has sent request letter to the
Director General (Border Roads), Headquarters, New Delhi with
copy of the Joint Secretary, Ministry of Defence (BR Wing), New
Delhi and the Deputy General Manager (HR/Admin)-II, NHAI HQ,
New Delhi requesting to "reconsider and issue the NOC to
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borrowed department (NHAI) for further extension of my deputation
period of one year".
4. Heard Mr. Sarat Chandra Dash, learned counsel appearing
for the petitioner; Mr. P.K. Parhi, learned Deputy Solicitor General
of India along with Mr. S.S. Kashyap, learned Central Government
Counsel appearing for Union of India-opposite party nos.1 to 4 and
Mr. Milan Kanungo, learned Senior Counsel along with Mr.
Santosh Kumar Dwivedy, learned counsel appearing for NHAI-
opposite party nos.5 & 6.
5. Mr. Sarat Chandra Dash, learned counsel appearing for the
petitioner submitted that it is second journey of the petitioner to this
Court. Though this Court on earlier occasion vide order dated
04.10.2021in W.P.(C) No.31204 of 2021 directed the opposite party no.3 to take a decision of recommendation made by opposite party no.5 keeping in view the guidelines of DoPT dated 17.02.2016/17.06.2016 as well as the guidelines of Directorate of BRO dated 10.01.2018, the same was not adhered to and taken care of in its proper perspective.
6. Mr. P.K. Parhi, learned Deputy Solicitor General of India along with Mr. S.S. Kashyap, learned Central Government Counsel appearing for Union of India-opposite party nos.1 to 4 taken this Court to paragraphs-9 and 46 of the counter affidavit filed on behalf of opposite party nos.1 to 4, which readthus:
"9. That, the Petitioner, GO-3309F EE (Civ), N. Harikrishna was enrolled in GREF/BRO on 09 Jul 2004 in the post of Assistant Executive Engineer (Civil) in the Pay Level-10 through Engineering Service Examination through UPSC. The petitioner belongs to an Page 4 of 11 Organised Engineering Service cadre named Border Roads Engineering Service („BRES‟). He was promoted to the rank of Executive Engineer (Civil) on 28 Oct, 2011 in the Pay Level-11. The Petitioner is presently on deputation with National Highways Authority of India (Herein after will be referred to as „NHAI‟) as per the sanction dated 05 Jul 2018 accorded by MoD (BR) for a period of three years with effect from 27 Oct, 2018 to 26 Oct, 2021.
46. That, in reply to para 20 of the writ petition the petitioner was allowed for deputation only for three years and he has been asked for repatriation only after completion of that period and NHAI has its discretion for deployment in various projects/locations and it has been seen that the applicant officers are always willing to serve anywhere NHAI deploys them on deputation. However, NHAI might have considered the request/convenience, if any of the petitioner, when deployed in various locations. The same may be verified from the records of NHAI."
6.1. He submitted that the period of deputation, i.e., three years had since been expired on 30.10.2021 and further extension sought for by the petitioner for another year has also been elapsed by efflux of time, the petitioner has no right to continue with the instant position and is required to be repatriated to his parent department. Therefore, this petition is liable to be dismissed as has been rendered infructuous.
7. Mr. Milan Kanungo, learned Senior Counsel along with Mr. Santosh Kumar Dwivedy, learned counsel appearing for NHAI- opposite party nos.5 & 6 referred to paragraphs-5,7 and 8 of the Page 5 of 11 counter affidavit filed on behalf of opposite party nos.5 & 6, for convenience the said paragraphs are hereunder:-
"5. That, it is respectfully submitted that briefly stated that the offer of appointment in favour of the Petitioner vide letter No.NHAI/RO- VJA/Estb./2018/1458 dated 20.06.2018 has been issued to Director General (Border Roads) requesting to relieve him (Shri. N Harikrishna) who has been provisionally selected for appointment to the post of Dy. General Manager (T) on deputation basis in NHAI initially for a period of 03 years which may be further extended or curtailed at the discretion of the Competent Authority. Shri N. Harikrishna, Executive Engineer (Civil) has joined NHAI as DGM (T) on deputation basis w.e.f., 31.10.2018 initially for a period of 3 years.
7. That, consequent upon receipt of willingness in terms of policy circular dated 08.07.2020 and with the approval of Competent Authority, the parent offices of the officers including DGBR has been requested to issue NOC for extension of deputation tenure vide letter dated 22.06.2021. In response to this office letter dated 22.06.2021, DGBR vide its letter dated 02.07.2021 has requested for repatriation of their BRO officers on their respective due dates in their organizational interest.
8. That, due to denial of NOC, with the approval of Competent Authority repatriation order dated 22.09.2021 has been issued by the NHAI. On receipt of the request from the officers, the DGBR vide letter dated 22.09.2021 has been requested to review the decision conveyed in its letter dated 02.07.2021 and grant NOC for extension of deputation tenure of Shri N. Harikrishna, Executive Page 6 of 11 Engineer (Civil) presently on deputation to NHAI as DGM (T) for 01 years. "
7.1. He submitted that in obedience to the order dated 04.10.2021 of this Court in W.P.(C) No.31204 of 2021, the DGBR had intimated the NHAI not to relieve the petitioner from his present post. Referring to letter dated 23.09.2021 of the petitioner for extension of period of deputation for one year, he further submitted that the said period had already been overshot. Therefore, the interim order dated 11.10.2021 passed by this Court that "the order dated 06.10.2021 passed by the Joint Director (Personnel)- opposite party no.4 under Annexure-2 to the writ petition, shall not be given effect to till 10.11.2021", as extended from time to time, is required to be vacated and appropriate order is to be passed.
8. Considering the submissions made by the learned counsel for the parties and perusal of the record, it evinces that the petitioner has filed representation dated 23.09.2021 addressing the Director General (Border Roads), in which he has made the following request:
"To The Director General (Border Roads), Headquarts, Dte. Gen Border Roads, Seema Sadak Bhawan, Ring Road, Delhi Cantt., New Delhi-10 Sub:NHAI-PIU-Berhampur-Shri Harikrishna N, Executive Engineer (Civil) working on Deputation with NHAI as DGM (Tech) & Project Director, PIU-Berhampur- Request for NOC for Extension of Deputation tenure-reg. Sir, Page 7 of 11 I (Harikrishna N) GO-3309F have been working as Project Director in NHAI on Deputation at newly reorganized Project implementation Unit for six months. My Deputation period of 3 years is going to be completed by 31-Oct-2021.
NHAI HQ vide Office Order No.11041/508/2020- Admin/Dated 22-June-2021 requested to Director General Border Roads, New Delhi to issue consent/no objection certificate for extension of deputation tenure of officers. DGBR vide letter No.13422/Depu/EE(CIV)/DGBR/13/E1A dated 02-Jul-2021 has requested to NHAI HQ to repatriate the officers by their due dates.
In this connection, it is submitted that I have served 14 years in the highly Remote Areas in Border Roads because of that I kept my family away from me about 8 years during working in BRO, due to non-availability of better education facilities to my children. Presently my children education is in crucial stage moreover my family has been shifted to Berhampur for six months. At this point of time my support is essential to my family in education and medical aspect during this pandemic situation. Also, my father-in-law is fully depending on me. He is a chronic patient of Heart. Recently his heart surgery has been done in Appollo Hospital, Visakhapatnam. At the Covid-19 Pandemic situation, my transfer will inconvenient to my children education and treatment of my old age parent's health as well.
In addition to above, presently the progress of the projects which have been taken up by me about 50% to 60%, at this stage my services are essential to complete the projects smoothly.
In view of the above, it is requested to kindly reconsider and issue the NOC to borrowed department (NHAI) for further extension of my deputation period of one year in the following address, please.
Dy. General Manager (HR/Admn.)-IIA, National Highways Authority of India Plot No.G-5 & G-6, Sector-10, Dwaraka, New Delhi-110075 [email protected]&[email protected] Thanking you sir Page 8 of 11 Yours Faithfully Sd/-
DGM (Tech) & Project Director Encl: As above.
Copy to:
(i) The Joint Secretary, MoD (B R Wing), „B‟ Wing, 4th Floor, Sena Bhavan, New Delhi-110011 for kind information.
(ii) The Dy General Manager (HR/Admin)-II, NHAI HQ, New Delhi for kind information."
9. The Joint Director (Personnel) having considered said representation, turned down the prayer made by the petitioner by letter dated 06.10.2021, which is subject matter of challenge before this Court in the present writ petition.
10. As is seen from the record, it is apparent from the aforesaid request letter dated 23.09.2021 of the petitioner that he requested for extension of period of deputation for one year which according to his own undertaking has already been expired on 22.09.2022.
11. In consideration of aforesaid rival contentions and the document dated 23.09.2021 of the petitioner, it appears that nothing remains for adjudication in the present writ petition as the petitioner could be successful by taking advantage of interim order passed in the present case. It is noteworthy that the extension of period of deputation as sought for in his letter of request dated 23.09.2021 by the petitioner has already been expired on 22.09.2022.
12. The Joint Director (Personnel) for DGBR by letter dated 02.07.2021 declined to extend the deputation period of petitioner along with others beyond 26.10.2021 and the Director General Manager, (HR/Admin) vide letter dated 22.09.2021 specified due Page 9 of 11 date for relieving the petitioner on 30.10.2021, it is clearly revealed from letter dated 29.09.2021 of NHAI, the petitioner joined in NHAI of 31.10.2018 and it is specified that the expired of deputation period was on 30.10.2021. From the said letter it is also apparent that citing inconvenience the petitioner had requested for extension of deputation for further period of one year as a special case. In the meantime, the period of extension as sought for by the petitioner has already been expired.
13. By virtue of interim order dated 11.10.2021 passed by this Court, the petitioner has been enjoying the period of deputation extended till date. Reading of said interim order it is manifest that what weighed in the mind of this Court is the fact that "similarly situated person, namely Sachin Kumar has been extended with the benefit of extension of his deputation period". The petitioner has enclosed a document dated 05.11.2021 issued by Director General, Border Roads as Annexure-10 to Additional Affidavit dated 06.11.2021 which is to the following effect:
"Apropos, the extension of deputation in respect of GO-3309F EE (Civ) N. Harikrishna has again been reviewed and deliberated upon on the basis of the case of EE (Civ) Sachin Kumar and the Hon‟ble Court of Orissa Orders dated 04 Oct, 2021 and 11 Oct 2021 and it is intimated that considering the constraints of the organisation and the challenging works it has to undertake, it is imperative that GO-
3309F EE (Civ) N. Harikrishna be repatriated to BRO for further deployment as EE (Civ) Sachin Kumar has also been repatriated from NHAI w.e.f. 18 Oct 2021."
Page 10 of 11Therefore, this Court is not inclined to extend the interim order dated 11.10.2021 any further.
14. Under the aforesaid premises, the writ petition is disposed of with a direction to the opposite parties to take appropriate decision with regard to repatriation of the petitioner and communicate such decision to the petitioner.
15. With the aforesaid observation and directions, the writ petition stands disposed of.
(M.S. Raman) Judge Laxmikant Signature Not Verified Digitally Signed Signed by: MANORANJAN SAMAL Designation: Personal Assistant Reason: Authentication Location: Orissa High Court, Cuttack Date: 06-Sep-2024 20:09:31 Page 11 of 11