Central Administrative Tribunal - Delhi
Jagdamba Prasad vs Union Of India on 11 December, 2013
Central Administrative Tribunal Principal Bench New Delhi O.A.No.3808/2013 Order Reserved on: 09.12.2013 Order pronounced on 11.12.2013 Honble Shri V. Ajay Kumar, Member (J) Jagdamba Prasad S/o Late Sh. Chandra Mani Presently R/o 2748-A, Sector-23 Gurgaon (Haryana). Applicant (By Advocate: Sh. Anil Mittal) Versus Union of India Ministry of External Affairs South Block New Delhi (through its Secretary). . Respondent (By Advocate: Shri R.V.Sinha through Shri Sh. R.N.Singh and Sh. A.S.Singh) O R D E R
Though the orders were reserved for deciding on the question of interim relief, since the pleadings are complete and the learned counsel for both sides advanced arguments at length on all aspects, and the main and interim reliefs are similar, the main OA itself is disposed of on the basis of the available pleadings on record.
2. The applicant originally belongs to the Intelligence Bureau, Ministry of Home Affairs. Vide Office Order 2.12.2008 he was appointed as Personal Assistant to Joint Secretary (Personnel) in the Ministry of External Affairs on deputation basis with effect from 31.10.2008. Vide Office Order dated 3.01.2011, on approval of the competent authority, his period of deputation was extended for a further period of three years from 01.11.2010 to 31.10.2013.
3. The sole respondent-Ministry of External Affairs (MEA), i.e., the borrowing department of the applicant, posted the applicant at Embassy of India, Tokyo, on transfer, vide Office Order dated 02.05.2011 and accordingly he reported for duty at Tokyo on 11.05.2011. The respondent vide the impugned order dated 13.08.2013, while passing certain transfer orders, transferred the applicant also to Headquarters at Delhi on completion of his deputation. Aggrieved by the said order, the applicant filed the present OA.
4. This Tribunal by its Order dated 29.10.2013, directed the respondents to maintain status quo as on the said date and in pursuance of the said order, the applicant is being continued at Tokyo.
5. The respondents filed their reply and prayed for vacation of the said Interim Order dated 29.10.2013.
6. Heard Shri Anil Mittal, the learned counsel for the applicant and Shri R.N.Singh, proxy counsel for Shri R.V.Sinha, the learned counsel for the respondent and have gone through the pleadings on record.
7. Shri Anil Mittal, learned counsel for the applicant submits that in normal circumstances and as per the past practice, once a person is posted outside the country either on transfer or on deputation, he should be continued at least for a minimum period of three years. He further submits that he is having three School going minor daughters and out of the same, the two elder daughters are studying 12th and 10 classes respectively at British School in Tokyo and if he is transferred from Tokyo, all of a sudden, and particularly in a mid academic session of his children, their studies would be effected severely. In response to the Circular dated 11.07.2013, even before the respondents passed the impugned order, he made representations informing about the studies of his daughters and requesting to retain him at Tokyo at least till the end of the present academic year, which was duly recommended by his superiors at Tokyo also. But the respondents though considered similar requests, i.e., the education of the children of number of other employees but not considered the request of the applicant.
8. Per contra, Shri R.N.Singh, the learned counsel for the sole-Respondent submits that the maximum period for which an employee can be sent on deputation is five years, as per Rules. He further submits that the Government, vide its Office Memorandums dated 01.03.2011 and 16.05.2013 issued instructions, wherein it was mentioned that no extension in deputation beyond the 5th year is allowed and that all the Ministries/Departments are advised to ensure the same. He further submits that the 5th year period of deputation of the applicant came to an end on 31.10.2013 and in view of the aforesaid policy of the Government, no extension of the same can be given, the respondent transferred the applicant to Headquarters, on completion of his deputation. He further submits that the person who is posted in place of the applicant reached to Tokyo and since there is only one post of PA is available at the Embassy of India at Tokyo, the said person Shri Sunny Kukreja is forced to work in another post, in view of the interim orders of this Tribunal, causing loss to the public exchequer, and in view of the same, the respondents cannot accommodate the applicant at Tokyo, any further.
9. The learned counsel for the respondents further submits that in view of the specific policy and directions of the Government, about non-extension of the deputation period beyond 5 years, the respondents could not consider the representation of the applicant even on the ground of his children education. He further submits that the cases referred by the applicant are belongs to the transfer of officers of the Ministry of External Affairs and that none of them are under deputation and hence, the applicant cannot compare his case with them.
10. The learned counsel also placed reliance on the Judgement of the Honble Apex Court in Kunal Nanda v. Union of India & Another, (2000) 5 SCC 362 to the effect 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 has gone on deputation.
11. The representation dated 28.08.2013 (Annexure A17) made by the applicant for extension of his deputation at Tokyo till the completion of the present academic year to enable his children to complete the present year of study, after passing the impugned Order by the respondents, is still pending with the respondents. It is not the case of the respondents that the competent authority has no power to extend the period of deputation beyond the period of 5 years, even in genuine cases and for valid reasons. When the respondent can consider the cases of certain others for extension of their stay at different places/countries on the educational grounds of their children, in all fairness, they would have considered the request of the applicant also to extend the posting of the applicant at least till the end of the present academic year, particularly when the authorities concerned at Tokyo have recommended the case of the applicant for extension and the parent Department of the applicant have communicated their No Objection. It is not the case of the respondent that the services of the applicant are necessary at Headquarters and cannot be compensated with the services of any other person. It is also not the case of the applicant that the performance of the applicant is not upto the mark or any charges are pending against him.
12. It is trite that no employee can claim, by way of right, that he should be continued on deputation for a particular period. It is within the exclusive power of the borrowing department. This is more so, when the total period of deputation itself is crossing beyond 5 years. However, it is to be seen that the respondent is aware that the 5 years period of deputation of the applicant would be coming to an end by 31.10.2013, and the applicant cannot admit his children in India for the academic year 2013-2014 as he is required to stay at Tokyo till the end of October, 2013, unless an order is passed in advance repatriating/curtailing his period of deputation/posting at Tokyo, i.e., before commencement of the academic year. However, the respondent himself, vide Annexure A-15, dated 23.07.2013 called for representations, including from the applicant, indicating that they may extend his stay at Tokyo, if they found his request is genuine. Further, they cannot discriminate the applicant by not considering his genuine request, when they considered similar requests of other employees.
13. In this view of the matter and in the peculiar circumstances of the case, keeping in view of the career of the children of the applicant, who are in mid academic session, the ends of justice would be met if the respondents are directed not to give effect to the impugned order dated 13.08.2013, qua the applicant till the end of the present academic year, i.e., till the end of June, 2014.
14. Accordingly, the OA is disposed of. No order as to costs.
(V. Ajay Kumar) Member (J) /nsnrvak/