Delhi High Court
G.D. Sharma vs University Grants Commission And ... on 16 August, 1999
Equivalent citations: 1999VAD(DELHI)917, 81(1999)DLT731, 1999(51)DRJ160
Author: A.K. Sikri
Bench: A.K. Sikri
ORDER A.K. Sikri, J.
1. By this order I shall dispose of CM Nos. 7842/99 and 8025/99.
2. Let me state the facts in brief first. Petitioner is working as 'Senior fellow and Head' Higher Education Unit, National Institute of Educational Planning and Administration (hereinafter referred to as 'NIEPA', for short) New Delhi. He applied for the post of Secretary, University Grants Commission (hereinafter referred to as 'UGC' for short) and on being selected to the said post he was offered the appointment vide communication dated 4th July, 1996 which is inter alia stated as under:-
"On the recommendations made by the Selection Committee, the Commission in pleased to offer you appointment to the post of Secretary, University Grants Commission. The tenure of the post is a period of 5 years from the date you assume charge of the post, or till you attain the age of superannuation in your parent organisation, whichever is earlier."
3. Alongwith this communication dated 4th July, 1996 terms and conditions 0f his appointment as Secretary, UGC were also enclosed. On petitioner's accepting the offer of appointment, NIEPA issued Order No. 188/96 dated 8th July, 1996 relieving him as Senior Fellow and Head and after getting him self relieved the petitioner joined UGC as its Secretary, on 8th July, 1996. Alongwith this Office Order No. 189/96 of NIEPA, copy of the terms and conditions governing his deputation to UGC was also attached.
4. The post of Secretary, UGC is a tenure post, period of which is 5 years. It is extendable by another 5 years after the initial expiry of 5 years period. UGC had accordingly selected the petitioner on the said tenure post for a period of 5 years. The terms and conditions which were enclosed alongwith letter of selection dated 4th July, 1996 also mentioned that this was for a period of 5 years renewable for one more term of 5 years, both being subject to the age of petitioner's superannuation in his parent organisation. It may be mentioned here at this stage itself that as per these terms and conditions the petitioner was taken on deputation as is clear from the heading of the terms and conditions itself. However, in the terms and conditions of deputation mentioned by NIEPA alongwith its relieving Order No. 189/96 dated 8th July, 1996 the period of deputation was mentioned as 2 years. This was as per the rules in NIEPA about which detailed discussion would be made at a later stage. Reacting to Office Order No. 189/96 dated 8th July, 1996 issued by NIEPA, UGC wrote back letter dated 20th August, 1996 stating that it had accepted the terms and conditions of deputation in respect of petitioner as Secretary, UGC except Serial No.1 (related to the deputation period of 2 years) and it was stated that as Secretary, UGC was a tenure post the period of deputation may be treated as 5 years as per the terms and conditions of deputation sent by UGC to NIEPA vide letter dated 4th July, 1996 addressed to the petitioner. Response to this letter is not on record. However thereafter there is a protracted correspondence between UGC and NIEPA as per which deputation period was treated as 2 years and extension of this deputation period was sought for. Accordingly, NIEPA vide its Office Order No. 321/98 dated 17/18.1.1998 granted extension of the term of deputation of the petitioner for another period of one year w.e.f 8.7.1998 to 7.7.1999. It was also stated in the said office Order No. 321/98, under terms of service regula tion of NIEPA this is the final extension of deputation of the petitioner.Before the expiry of this term, UGC wrote another letter dated 11.2.1999 to NIEPA requesting NIEPA to extend the period of deputation beyond 7.7.1999.
In reply NIEPA vides its letter dated 31st March, 1999 informed UGC that deputation beyond maximum period of 3 years could not be given and there fore no extension was possible. Even the petitioner addressed certain communications during this period to UGC as well as NIEPA whereby he made an attempt to get his deputation period extended beyond 7th July, 1999.
5. As no extension was given beyond 7th July, 1999 by NIEPA, Petitioner received impugned Office Order No. 221/99 dated 7th July, 1999 passed by Acting Chairman, UGC stating that since NIEPA had not granted any further extension of lien/deputation period of three years to the petitioner, petitioner was relieved with immediate effect from the office of Secretary,UGC and repatriated w. e. f. the after-noon of July 7, 1999 to his parent organisation i.e., NIEPA.
6. Aggrieved by this order petitioner filed present writ petition under Article 226 of the Constitution of India seeking quashing of Order dated 7th July, 1999 issued by Vice-Chairman/Acting Chairman, UGC purporting to repatriate the petitioner from UGC with further direction that respondent No. 1 should allow the petitioner to continue in the post of Secretary, UGC until the expiry of his tenure. Direction is also sought against NIEPA to consider the case of the petitioner for extending lien on the post of Senior Fellow and Head, Higher Education Unit.
7. Alongwith this petition application for stay being CM. 7842/99 was filed. The petition as well as application came up for hearing on 8th July, 1999. While issuing notice in this writ petition for 6th August, 1999. Interim Order was passed staying the operation of Office Order dated 7th July, 1999 passed by Acting Chairman, UGC After the service of this order respondent No. 1 filed CM. 8025/99 for vacation of the ex-parte stay order dated 8th July, 1999 passed in CM. 7842/99. Notice was issued in this application and argument was heard in both the applications.
8. It is in the background of these facts, that both the applications are disposed of by this order. The controversy to be determined in these two applications is substantially the same as in the writ petition. It was proposed by the petitioner, at the time of argument on these applications that the writ petition be heard and disposed of alongwith the applications, but respondent No.1 opposed on the ground that they are yet to file counter affidavit to the writ petition and their arguments are confined to the applications only.
9. The main controversy rest on the issue as to whether the appointment of petitioner to the post of Secretary, UGC was by way of deputation and therefore terminable with the deputation period of the petitioner in his parent department, namely , NIEPA or was it a contractual appointment for a tenure of 5 years and petitioner had a right to continue as Secretary, UGC for a period of 5 years de-hors the position of his lien/deputation with parent department. While Mr. Mukul Rohtagi, Senior Counsel appearing on behalf of petitioner has contended that petitioner was selected on a tenure post of 5 years, Mr. Arun. Jaitley, Senior counsel appearing on behalf of respondent No.1 has contended that the petitioner was appointed on deputation, albeit for a period of 5 years, but being a deputationist the appointment is coterminus with deputation period and petitioner has not right to continue as Secretary, UGC for entire period of 5 years.
10. Let me now state arguments advanced by both the counsel in support of their respective contentions.
11. Argument raised by Mr. Mukul Rohtagi in support of his contention may be noted first:-
a. There was a public advertisement issued by respondent No.1 for filling up the post of Secretary, UGC for a period of 5 years. It was an open advertisement and petitioner applied for the said post directly where he competed alongwith others. There fore it was a case of open selection.
b. Vide letter dated 4th July, 1996, UGC itself clearly men tioned that it was a tenure post of 5 years or till petitioner attains the age of superannuation in his parent department which ever is earlier. The terms and conditions enclosed with this letter also mentioned the tenure of 5 years renewable for one more term of 5 years. While selecting him for the post of Secretary his parent department was not even consulted. Not only this when his parent department i.e. NIEPA sent terms and conditions of deputation vide Office Order No. 189/96 dated 8th July, 1996 stating that the deputation period was 2 years, UGC wrote back vide letter dated 20th August, 1996 rejecting this clause and clearly mentioning that Secretary, UGC was a tenure post for of period of 5 years.
c. It is further contended that although term "deputation" is used in terms and conditions of his appointment letter of UGC as well as in terms and conditions of deputation in NIEPA, if the real character of the appointment is seen it is not deputation but contractual appointment for a period of 5 years. To substantiate it further it is argued that deputation is a tripartite agreement where three parties are involved. In this case consent of parent department namely, NIEPA was neither taken nor required at the time of selection. It is only after selection, as the petitioner was to be relieved, that he requested his parent organisation to be relieved. Even in relieving order dated 8th July, 1996 NIEPA has clearly mentioned that petitioner was being relieved "at his own request". Moreover, word "deputation" is not used in communication dated 4th July, 1996 of UGC offering him appointment as Secretary, UGC.
There was no borrowing by the UGC or giving away of the petitioner by NIEPA in the sense it is understood in "deputation" . In fact, since petitioner was a permanent employee of NIEPA and was to be relieved to join UGC, the word "deputation" crept in by mistake.
d. Advancing his argument further, Mr. Mukul Rohtagi contended that what the petitioner kept with NIEPA was lien and he was not sent on deputation. In this connection he referred to Regulation 17 of "Services Regulation -NIEPA" which deals with lien and in that context it states that lien may be for a period of two years, which may be extended by more than two years, Regulation 17 is extracted below:-
Regulation 17-Lien (1) "No employee shall be allowed to proceed on deputation for employment elsewhere, with a lien on his post in the Institute, unless the employee concerned has put in a minimum service of three years after confirmation.
(2) There should be a gap of at least one-year between any two successive deputations.
(3) The lien may initially be retained for a period up to two years but may be extended by not more than one year depending upon the merits of each individual case.
(4) At the end of three years period on lien if the individual fails to return from his deputation, his services will stand automatically terminated from the institute.
12. The petitioner accordingly contended that he kept his lien in his parent department when he joined as Secretary, UGC. As per Regulation 17(3) initial lien is of 2 years which may be extended by not more than 1 year.Referring to sub-regulation 4 of Regulation 17 it was contended that at the end of 3 years period of lien if individual fails to return from his deputation his services are automatically terminated. Accordingly, consequence of petitioner's not returning back or NIEPA not extending lien is only that his service in parent department i.e., NIEPA are liable to be terminated which consequence the petitioner is ready to face but as far as tenure part of 5 years in UGC is concerned he has a right to complete the term.
13. It is also contended that the action of UGC is clearly arbitrary. According to petitioner it is NIEPA. who is not extending the lien and when the petitioner is ready to face consequence thereof, UGC should have allowed him to complete his tenure of 5 years as Secretary, rather than making it an excuse to send him back. It is submitted by the petitioner that there is no adverse reflection on his performance. UGC always wanted him for a period of 5 years, UGC even objected to clause 1 of terms and conditions of deputation given by NIEPA which fixed his deputation period as two years, by addressing letter dated 20th August, 1996 and stating that petitioner should be allowed to complete his terms of 5 years. If NIEPA has some problem because of its Service Regulations, in extending lien of 3 years that should not be made a basis for repatriating the petitioner back at least by UGC, more so when the petitioner is ready to face the consequence of not returning back i. e., he is ready to face termination from NIEPA by virtue of Regulation 17 (4). There is no public interest involved in repatriating him back as even NIEPA has not stated that his services are required by NIEPA. The action of the UGC therefore is arbitrary.
14. a. As against the aforesaid arguments, Mr. Arun Jaitley, Senior Counsel appearing for UGC made the following submissions to contend that the appointment of the petitioner was by way of deputation:-
UGC has produced Recruitment Rules for the post of Secretary, UGC as per which post can be filled by transfer on deputation or on contract". These Recruitment Rules are made by Central Government, in exercise of its powers conferred by sub-section (i) read with clause (d) of sub-section (2) of Section 25 of the UGC Act, 1956. Therefore these rules are statutory in nature. As per these rules post of Secretary could be filled up either by way of deputation or on contract. Insofar as petitioner is concerned the post was filled up on deputation, inasmuch as alongwith offer of appointment dated 4th July, 1996 itself terms and conditions of the said appointment were annexed clearly describing that petitioner was sought to be appointed on deputation. Heading of these terms and conditions stipulates as under:- "TERMS AND CONDITIONS OF DEPUTATION OF PROFESSOR G.D. SHARMA AS SECRETARY, U.G.C." Clause (1) of these terms and conditions further stipulates that petitioner shall be on deputation and it is the period of deputation which is stated to be 5 years. Even such period is made subject to the age of superannuation in the parent organisation of the petitioner. Mr. Arun Jaitley also referred to various other clauses of these terms and conditions particularly clauses 2, 4, 6, 8-10 to contend that all these clauses clearly shows that the petitioner is treated as a deputationist with his roots in his parent organisation, namely NIEPA. Specific mentioning was also made to clauses 16 and 17 which read as under:-
16. The tenure will be terminable by a notice of three months in writing on either side.
17. In respect of matters not covered under any of the terms and conditions herein before stipulated, Prof. G.D. Sharma will be governed by the rules of the NIEPA. However, where the rules of NIEPA are silent, he will be governed by the UGC Rules.
It is contended that on the basis of aforesaid clauses that even while working as Secretary with UGC petitioner was governed by rules of NIEPA. It is only where the rules of NIEPA are silent that UGC rules were applicable.
b. Even while relieving the petitioner, NIEPA stated its terms and conditions which were that of deputation. Thus petitioner was relieved to join UGC on deputation which is clear from clauses particularly 1, 2, 3 and 11 to which specific reference was made.
c. Not only the initial appointment of the petitioner was on deputation, it was clearly understood by the parties even there after as is clear from the conduct of all the three parties including the petitioner. It is for these reasons that correspondence was exchanged between the parties to get the lien/deputation extended in order to enable the petitioner to continue and complete his term of 5 years. Even in letter dated 20th August, 1996 wherein UGC objected to clause 1 of terms and conditions of deputation of NIEPA which stipulated 2 years period but UGC while writing back that this may be treated as 5 years, the expression used in this letter was "deputation", by making request that "the period of deputation may be treated as 5 years as per terms and conditions of deputation sent by this office...."
d. It was further argued that while making the appointment of the petitioner as Secretary by way of transfer on deputation although UGC had appointed the petitioner for a period of 5 years it could not keep the petitioner beyond the term of deputation. It was for these reasons that request was made from time to time to NIEPA to extend the deputation. Deputation period which was initially for a period of 2 years was extended by one year only by NIEPA and NIEPA took the stand that further extension was not possible in terms of service Regulation 17 of NIEPA. Petitioner also knew that it will not be possible for him to stay in UGC unless his lien is extended by NIEPA and that is why in his communication dated 30th March, 1999 to Chairperson, UGC he requested the matter to be taken up with NIEPA for extending the period of deputation/lien failing which he would be constrained to revert back to NIEPA on 8th July, 1999. In another letter dated 2nd April, 1999 addressed to Director, NIEPA petitioner again requested to take up the matter with the Executive Council as only three months were left in completion of his three years period. Again vide another letter dated 31st May, 1999 addressed to Vice Chairman, UGC he requested UGC to take up the matter with Director, NIEPA for extension of his lien for a further period of two years to enable him to complete the term of 5 years as Secretary, UGC.
e. It is further contended that since appointment of the petitioner as Secretary, UGC was on deputation and since NIEPA did not extend the period after three years. i.e. beyond 7th July,1999 UGC had no option but to repatriate petitioner back to his parent organisation. The appointment of the petitioner by UGC for a tenure of 5 years was subject to his parent department agreeing for the same. Since his parent department did not agree petitioner had no right to continue with UGC as Secretary and the only legal consequence is his repatriation.
f. It is also argued that even otherwise petitioner cannot claim as matter of right to complete the tenure of 5 years. 5 years is an outer limit and this tenure can always be intercept ed. Reliance is placed, in support of this argument, on a judgment of hon'ble Supreme Court in the case of Dr. Bool Chand Vs. The Chancellor, Kurukshetra niversity . The tenure is intercepted in the instant case for the valid reason namely, non-extension of lien/deputation by the parent department.
g. Action of UGC is not arbitrary or unreasonable. UGC being a statutory body has to respect rule of law and the service condi tion of another government undertaking like NIEPA. If there is no provision in rules of NIEPA to give the extension of deputation period beyond three years UGC has only given respect to such a provision by acting thereon. Such a step should not be treated as arbitrary or unreasonable.
h. It is also contended that there is no balance of convenience in favour of the petitioner and therefore he is not entitled to any stay/injunction during the pendency of this writ petition. According to respondent No. 1 petitioner is not rendered jobless. He is only reverting to his parent department. If he ultimately succeeds in the writ petition he can always be posted back to complete his tenure. In the meantime he does not suffer as he would be working in NIEPA. On the other hand, if ultimately petition filed by the petitioner fails it will have the effect of continuing the petitioner beyond 8th July, 1999 unauthorisedly. Reliance is placed upon the following judgments in support of this submission.
i. -Shri Hari Krishan Sharma Vs. MCD.
II. -Union of India Vs.Balwant Rai Mittal and others.
iii. 1978 (2) ILR 241-Ranbir Chandra Vs. Union of India & Ors.
15. Respondent No. 2 has also filed a counter affidavit in which it has stated that petitioner was relieved from NIEPA on deputation to join UGC. Initial period of deputation was 2 years which was extended for one year in terms of regulation 17 of Service Regulation of NIEPA. It is also stated that petitioner had made a request for his lien on deputation for 5 years which was taken up by its Executive Committee on its meetings held on 10.9.1996. The Executive Committee considered the request of the petitioner but did not give its decision to extend the lien for 5 years. It is mentioned that as per Service Regulation 29 there is a power to relax any of the provisions of these regulations to relieve any employee of any hardship arising from operation of such provision. However, Executive Committee, as aforesaid, did not take a decision to extend the lien of the petitioner for 5 yrs. It is further mentioned that one M.B. Mathur committee was constituted to look into the issues regarding faculty recruitment/lien, leave consultancy, rules etc. Committee has submitted the report to the Institute which is being processed for consideration of the Executive Committee if any, for amendment of Regulation will be submitted to the council. Thereafter the same shall be reported to the government for approval. Such amendment of the government, would be effective thereafter. Thus, as per the stand taken by NIEPA in terms of SR 17 maximum period of deputation is 3 years. Although there is a power to relax given under SR 29 Executive Committee has not extended the lien for 5 years when the request was made by the petitioner to this effect.
16. I have given my utmost consideration and thought on the respective contentions of the parties reproduced above.
17. As already stated above the principle question to be determined is as to whether appointment of petitioner as Secretary, UGC was on deputation or on contract basis. Once this is determined legal consequences of such nature of appointment would follow. From the Recruitment Rules, produced by the respondent number-1 for the post of Secretary, UGC, it is clear that the post can be filled up either by transfer on deputation or on contract. These rules have statutory force. In this case alongwith, appointment order dated 4th July, 96 itself terms and conditions of appointment were enclosed as per which the appointment of the petitioner was treated as on deputation. Even the parent department of the petitioner i.e. NIEPA relieved the petitioner on deputation vide its letter dated 8th July, 96 forwarding therewith terms and conditions of deputation. Correspondence which has been exchanged thereafter also, which includes letters written by petitioner himself, clearly show that the appointment of the petitioner as Secretary, UGC was treated as on deputation. No doubt the petitioner was appointed for a tenure of 5 years by UGC but this tenure would be subject to his deputation. It is stated by UGC itself that they wanted petitioner for period of 5 years and only after the appointment when the petitioner was relieved by respondent No. 2 and sent to UGC on deputation vide order dated 8th July. 96 stating the terms and condition of deputation that the UGC came to know that the maximum period of deputation was only three year. Therefore, it cannot be said that the tenure of 5 years for which the petitioner was appointed should be taken de-hors the position was that his appointment was by way of transfer on deputation. I am not inclined to agree with the contention of the petitioner that the word " deputation" used in the terms and conditions of his appointment was loosely used and infact it was a contractual appointment for 5 years. The argument of the counsel for the petitioner that deputation is a tripartite agreement and since in this case consent of NIEPA was neither taken nor required at the time of selection and therefore it is not by way of deputation, also has no force. It cannot be said that NIEPA is not a party to the petitioner joining the post of Secretary, UGC. The offer of appointment dated 4th July, 96 itself gives terms and conditions "of deputation". But for NIEPA relieving the petitioner, he could not have joined the post of Secretary, UGC on deputation. Therefore, consent of NIEPA was there which is clear from the fact that petitioner requested for his release from NIEPA to enable him to join UGC. Whether it was " at his own request" or otherwise, would not change the character of his appointment being on deputation. As per terms and conditions of appointment to the post of Secretary, UGC he continued to hold the substantive post "Senior Fellow and head" and he also continued to be governed by service regulation of NIEPA including as to leave travel concession, GP fund, children's education allowance, group savings linked insurance scheme and pension etc. Even the service rendered by the petitioner under UGC had to be counted for his seniority, promotion, in his present cadre in NIEPA. Therefore, it is clear that the petitioner was appointed to the post of Secretary, UGC on deputation.
18. Once this position is determined, the legal consequences thereof is that petitioner continues holds his lien in his substantive post in his parent department i.e., NIEPA and he can occupy the post of Secretary, UGC which is on deputation so long as he remains on deputation. Even otherwise,if the appointment of the petitioner is treated on contract basis it would amount to holding two substantive post, one in UGC, albeit on contract basis, and other in NIEPA. It is admitted position in law that one cannot hold two substantive posts at the same time.
19. Here lien is coupled with deputation and he has joined UGC on deputation while keeping his lien with the parent department. In view of this fact, contention of the petitioner that if his lien is terminated the consequence thereof would be termination of his services by NIEPA which the petitioner is ready to face but he is entitled to serve UGC for 5 years also has no force. Once petitioner is on deputation, the moment his services are terminated in the parent epartment his deputation to UGC will also came to an end forthwith. In view of this position it cannot also be said that impugned action of UGC in repatriating back the petitioner, when NIEPA did not extend the period of deputation beyond 3 years is arbitrary and unreasonable. As aforesaid that is the consequence which has to follow in law when the appointment is on deputation basis.
20. No doubt the petitioner was appointed for a period of 5 years as Secretary, UGC. It was a tenure appointment. UGC also wanted him for a period of 5 years. Therefore the decision to repatriate him after the expiry of 3 years, when there is nothing against the petitioner otherwise regarding his work and conduct in UGC may be harsh. But this is the situation which has been created by the circumstances that cannot be helped. It may be unfortunate for him but law has to take its own course. If Service Regulations of NIEPA do not permit deputation beyond three years and if executive committee does not agree to relax the said provision then as per the existing Service Regulation deputation could be upto a maximum period of 3 years and the appointment of the petitioner as Secretary UGC being on deputation, after the expiry of this period, he has to revert back.
21. I may mention here that when interim order dated 8th July, 96 was passed neither Recruitment Rules for the post of Secretary, UGC were before me or were filed by the respondent No. 1 alongwith application for vacation of stay, nor the service Regulation of NIEPA which are filed by respondent No. 2 alongwith its counter affidavit.
22. Moreover, in order to get injunction petitioner has to satisfy all three ingredients viz. prima facie case, irreparable loss/injury which cannot be compensated in terms of money as well as balance of convenience. In this case balance of convenience may not be in favour of the petitioner inasmuch as he is not loosing his job but going back to NIEPA. If he succeeds in the writ petition ultimately he can always be put back to complete the tenure and be compensated monetarily for intervening period. On the other hand if the writ petition is ultimately dismissed he would have continued beyond 8th July, 1999 unauthorized which position cannot be reversed. His application for interim award warrants to be dismissed on this ground also.
23. It is pertinent to mention here that when the arguments in these applications were over, learned counsel for the petitioner raised another contention namely, Vice-Chairman, UGC was not empowered to pass the impugned order. To this learned counsel for the respondent No.1 replied by saying that matter was put before the Executive Authority which had given its approval and it was further stated that the impugned order was nothing but repatriation as the deputation period of the petitioner had come to an end and it was not extended by NIEPA. In any case, this question can be finally determined while dealing with the writ petition.
24. For the aforesaid reasons, CM. 7842 of 1999 filed by the petitioner is dismissed and CM. 8025 filed by respondent No.1 is allowed. Ex-parte order dated 8th July, 99 is hereby vacated.
25. No order as to costs.