Central Administrative Tribunal - Mumbai
Sushovan Banarjee vs The Union Of India on 8 September, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL, BOMBAY BENCH, MUMBAI. ORIGINAL APPLICATION No: 387 of 2010 Dated this Wednesday, the 8th day of September 2010. CORAM : Hon'ble Shri Jog Singh, Member (J) Hon'ble Shri Sudhakar Mishra, Member (A). Sushovan Banarjee, IPS, Chief Executive Officer, Children's Film Society, India R/at : G-503, Royal Classic New Link Road, Andheri (W), Mumbai 400 053. ... Applicant (By Advocate Shri S. V. Marne) VERSUS 1. The Union of India through the Secretary, Ministry of Information & Broadcasting, 'A' Wing, Shastri Bhavan, New Delhi 110 015. 2. The Secretary, Ministry of Home Affairs, North Block, New Delhi 110 001. 3. The Secretary, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, North Block, New Delhi 110 001. 4. The Principal Secretary, Home Department, State of Madhya Pradesh, Vallabh Bhavan, Bhopal. ... Respondents (By Advocate Shri V.S. Masurkar) O R D E R
Per : Shri Jog Singh, Member (J).
The applicant is an IPS Officer of 1989 batch, Madhya Pradesh Cadre. While working in the rank of Inspector General of Police, he was considered and appointed to the post of Chief Executive Officer, Children's Film Society of India, Mumbai, [hereinafter referred to as 'CFSI'] on deputation basis, initially for a period of three years by order dated 05.12.2008. In the present O.A., the main grievance raised by the applicant pertains to his abrupt curtailment of deputation period by the impugned order dated 26.04.2010 just after a period of about 16 months or so.
2. The applicant submits that there are no valid grounds, whatsoever, for repatriating him prematurely. This is being effected as a punishment for discharging and performing his duties and responsibilities in an honest, efficient, diligent and upright manner. Such a premature repatriation, strictly speaking, may not be a punishment but carries a greater degree of stigma, which will be attached to his service career throughout. The applicant is, in fact, in dark as to the reasons which motivated the respondents to resort to such an extreme measure of premature repatriation leading to total dislocation of the applicant from Mumbai. Accordingly, his family members have also planned stay at the place of deputation at least for a period of 3 years. It would also uproot his family as his children are studying and his wife is also working in Mumbai.
3. Moreover, no show cause notice was ever issued to the applicant and no enquiry was ever conducted for any alleged misdemeanor or misconduct of any sort. No advice/warning of any sort was issued to the applicant in the performance of his duties. Thus, there was no compelling reason which could necessitate urgent or immediate action of extreme nature in terminating the deputation in an unceremonious manner leaving the applicant and his family in the lurch. The applicant submits that his meritorious services have always been recognized by the Government and he has been awarded 2-3 Presidential awards for the same. Therefore, the contention of the learned counsel for the applicant is that the premature repatriation in question has to be deemed to have been 'effected on extraneous reasons' and not in 'administrative exigencies'. The learned counsel for applicant has drawn our attention towards O.M. dated 05.01.1994 read with O.M. dated 05.12.2008 to bring home his contention that he should have been continued for a period of three years at least in the normal course. By its order dated 02.06.2010, while issuing show-cause notice to the respondents, this Tribunal directed the respondents to continue the applicant in the present post initially for a period of two weeks. The said order has been continued till date after the respondents have made appearance in the matter.
4. The respondents have filed their reply and have, inter alia, stated that the decision to repatriate the applicant from the post of CEO, CFSI, is neither a sudden decision nor is it violative of any laid down procedure or rules on the subject matter in question. The respondents submit that there were some verbal complaints that the applicant was not working in harmony with Ms. Nandita Das, a film maker and presently, the Chairperson of CSFI. It is further stated by the respondents that the Chairperson and CEO should function in harmony and should not interfere in each other's domain. While the CEO is responsible for the administrative functioning of the CFSI, it is the Chairperson who is required to provide creative inputs towards fulfilling the mandate of CFSI. However, this was not happening and the CEO appeared to be moving into fields which are in the domain of the Chairperson. It is submitted that there was lack of co-ordination between the Chairperson and the CEO of this organization. It is further submitted that CFSI is an autonomous body registered under the Society's Registration Act, 1860. It receives grant in aid from the Ministry of Information & Broadcasting. It is further submitted that the decision to relieve the applicant from his duty was taken on administrative grounds in the overall interest of the organization. The applicant is seeking reliefs against the respondents, including an autonomous body which has governing council consisting of very very prominent personalities in the country.
5. The applicant has filed an exhaustive rejoinder and has denied the contentions of the respondents raised in their reply and submits that the decision to repatriate him was neither a considered decision nor was it taken with the approval of the competent authority. The respondents have failed to obtain approval of the ACC which is the competent authority to decide the cases of premature repatriation of the officers of Central Government.
6. In this connection, the applicant further submits that the respondents have violated the provisions of DOPT O.M. dated 05.01.1994 as well as the provisions of the Government of India (Transaction of Business) Rules, 1961. The applicant submits that the respondents have not been able to explain as to how the interest of the organization was suffering because of continuation of the applicant on the post of CEO. Further, there is no question of seeking any relief behind the back of CFSI in that the decision to repatriate the applicant is not taken by CFSI. Merely because the governing Council of CFSI comprises of prominent personalities in the country, as alleged by the respondents, it does not mean that an organization, who can have no possible say on the validity of repatriation should be made party to the present O.A.
7. The applicant also submits that the respondents have taken a contradictory plea in the reply as far as application of DOPT OM dated 05.01.1994 is concerned. The applicant submits that the provisions of Clause 2.1 of the said O.M. are deliberately misinterpreted. Clause 2.1 is reproduced herein below :
2.1 These orders will apply to all Central Govt. employees who are regularly appointed on deputation/foreign service in accordance with Recruitment Rules of the ex-cadre posts under the same or some other Departments of Central Government or under the State Governments/Union Territories Administration/Local Bodies or Under Central/State PSUs/Autonomous Bodies, etc. (where such foreign service has been permitted in relaxation of appointment on immediate absorption conditions). These orders will also cover the cases of regular appointment as per Recruitment Rules in the Central Government on deputation/foreign service of employees of State Government/Central/State PSUs/Autonomous bodies, Local Bodies, etc. However, the following cases shall not be covered under these orders for whom separate orders exist :
(a) Members of the All India Service and those deputed to posts whose terms are regulated under specific statutory rules or orders;
(b) Officers appointed on deputation to posts in the Central Secretariat such as Under Secretary, Deputy Secretary, Director, Joint Secretary, Additional Secretary, Secretary, etc. to whom separate orders as issued from time to time will continue to apply.
(c) Deputation to posts outside India;
(d) Appointments of a specific category of employees to a specified class of posts where special orders are already in existence such as appointments made in the Personal Staff of Minister, etc. to the extent the provisions contained therein are at a variance with those contained in these orders;
(e) Appointments of the nature of deemed deputation or transfers to ex-cadre posts made in exigencies of service with the specific condition that no deputation(duty) allowance to be admissible, eg.
(i) Interim arrangements in the event of conversion of a Government office/organization or a portion thereof into a PSU/autonomous body or vice versa; and (ii) appointments to the same post in another cadre.
8. The applicant categorically submits that there is a specific mention of DOPT O.M. dated 05.01.1994 in the terms and conditions of the applicant contained in the order dated 05.12.2008 by which the applicant was offered appointment on deputation in question. The respondents have deemed it necessary to make it applicable at the time of initial appointment of the applicant but have not followed its provisions while repatriating the applicant. The intention of rule making authority is that there should be some rules or instructions governing the deputation of officers like the case of the applicant. Para 2.1 (a) is inserted in the O.M. dated 05.01.1994 so as to avoid any confusion or duplicity if there are other sets of rules on the same subject.
9. We have heard the learned counsel for the parties and have perused the pleadings and documents annexed therewith. We have also summoned and perused the original records and file on which the applicants case in question was processed.
10. We note that the method for selection and appointment to the post of CEO as per the Recruitment Rules, is by way of direct recruitment or transfer on deputation from amongst officers in the Central/State Government or Public Undertakings/autonomous bodies under Central/State Governments and holding analogous post or with 2 years service in the pay scale of Rs. 1800-2000 (pre-revised) or with 5 years service in the pay scale of Rs. 1500-2000 (pre-revised) and possessing the qualifications mentioned in column 5 of the recruitment rules, which are as under :
Essential :
(i) Degree from a recognized University or equivalent.
(ii) 7 years experience in a supervisory capacity in any educational cultural publicity or professional institutions/organizations OR 7 years administrative experience with ability and cpacity for Organization.
Desirable
(i) Knowledge of medical of films or TV.
(ii) Knowledge of India's cultural heritage and of different forms of literary, cultural and artistic expressions in the country.
11. The terms and conditions on which the applicant is appointed to the post of CEO on deputation basis is mentioned in the last paragraph of letter dated 05.12.2008 issued by the Ministry of Information & Broadcasting. The same is reproduced herein below :
"The appointment of Shri Sushovan Banerjee to the post of Chief Executive Officer will be on deputation basis. The period of deputation, including the period of deputation in another ex-cadre post held immediately preceding this appointment, shall ordinarily not exceed three (3) years with effect from the date he assumes charge. The pay and allowance of Shri Banerjee will be regulated in accordance with DOP&T O.M. No. 2/29/91-Estt.(Pay.II) dated 05.01.1994, as amended from time to time."
12. The case of the applicant is that he was considered and selected for the post in question according to the procedure established by the rules in consultation with the parent cadre as well as the Central Government (Department of Personnel & Training). On being selected and appointed according to the procedure established by rules, he has a right and a legitimate expectation to continue in the post till he completes the normal minimum period of three years on deputation. In case he is sought to be prematurely repatriated, he has to be given a notice. Similarly, the parent cadre, including the D.O.P.T., should have also been duly consulted and informed before the premature repatriation so that he could have been accommodated in an appropriate post elsewhere.
13. To ascertain the actual motivating factors for the applicant's appointment on deputation and premature repatriation just after a period of 13 months, it is necessary to examine the original records. We have perused the original file pertaining to the filling up of the post of C.E.O. under the CFSI, Ministry of Information and Broadcasting apart from the pleadings and the documents annexed therewith.
14. A perusal of the original records reveals that the post of CEO in question fell vacant on 24.10.2007 consequent upon the premature repatriation of the then incumbent, Smt. Radhika Rastogi, I.A.S. The charge of the post was, however, given to Shri Kuldeep Sinha, Chief Producer, Films Division, Ministry of Information & Broadcasting, Mumbai. It appears from the records that said Smt. Radhika Rastogi, I.A.S., had requested for a lateral shift from the post of CEO, CFSI, to the Department of Atomic Energy, Mumbai, in the post of DS/Director, on the ground that she was facing lot of difficulties in discharging her duties effectively as CEO, CFSI, after one Ms. Nafisa Ali took over as Chairperson of CFSI. Records do reveal that lot of allegations and counter allegations were made against each other. In this view of the matter, the Secretrary, Information & Broadcasting, forwarded the request of Mrs. Radhika Rastogi to the Establishment Officer, DOPT for concurrence and approval. While doing so, the Secretary did remark that Ms. Radhika Rastogi was having excellent service record and has been a very efficient officer. She was finally relieved from the post of CEO, CFSI, after getting the no objection from the DOPT only.
15. In this background, the post in question was circulated and filled up by selecting the applicant. It is noted from the records that there were five senior officers aspiring to be considered for the post in question and had applied for it, being duly eligible in terms of Employment News dated 19/25.07.2008. The applicant, being one of them, was selected and appointed to the post in question only in view of his excellent service record. The applicant was offered appointment to the post of CEO in CFSI on deputation basis for a period of three years from the date of appointment by order dated 05.12.2008. Accordingly, the applicant joined on 18.02.2009. Apart from the Madhya Pradesh Government, the D.O.P.T. was also informed of the appointment of the applicant on deputation basis and the ACR folder of the applicant in original was duly returned. In fact, deputation in question has been given finality only after the DOPT's concurrence. However, just after a lapse of 13 months, the applicant has been sought to be repatriated by the impugned order dated 26.04.2010 without any notice to the applicant and also without any prior consultation or concurrence with the DOPT or the parent cadre of M.P.
16. Now we turn to the important contentions raised by the parties to support their respective case. We have minutely perused the pleadings and original records. We do not find anything which could indicate that the applicant tried or actually created any hindrances in the path providing the so called creative inputs by Ms. Nandita Das, who is stated to be a famous film personality. In fact, no such creative inputs appear to have been mooted out or proposed by said Ms. Nandita Das, which were attempted to be hampered by the applicant. Therefore, the plea of respondents regarding interference by the applicant in the same is vague, hypothetical and unsupported by any evidence.
17. The impugned decision to repatriate the applicant in question is also taken in haste. Here, it may also be pertinently noted that Respondent No. 1 did not even discuss the issue of repatriation of the applicant in the Governing Council of the CFSI for unknown reasons. The applicant specifically asserts that the Governing Council never recommended or even remotedly suggested that the applicant should be removed from the post of CEO. On the contrary, performance of the applicant has always been complimented by the Governing Council. The contention of the applicant remains unrebutted.
18. We have also looked into the records to ascertain as to whether there was any complaint regarding the functioning of the applicant in not working in harmony with said Ms. Nandita Das, the Chairperson of CFSI. We have not come across any noting of any responsible and competent authority regarding any oral or verbal complaint against the applicant. In the absence of any such record, the plea of the respondents based on so called verbal complaints appear to be an after-thought and is advanced simply to justify the unfair and unjust decision to repatriate the applicant prematurely. This is a blatant violation of the principles of natural justice. We note it with concern that a person with more than two decades of unblemished service record and with 2 to 3 Presidential medals has been sought to be dealt with in a totally arbitrary manner by the Respondents.
19. The record further reveals that the applicant had practically no say in the matter of creative aspect of the organization. Such decisions are taken by various expert committees constituted by the Governing Council. No minutes of any such meeting of an expert body regarding the creative aspects of the organization have been brought on record to point out that there was any impediment sought to be created by the applicant in the progress or advancement of creative inputs of the Chairperson, if any.
20. The only reason which appears to have invited the wrath of the Chairperson is the insistence of the applicant to adhere to rules and regulations of the Organization and instructions, particularly with regard to Government of India's austerity drive curtailing certain privileges which are otherwise applicable in the normal course. The Chairperson did not like the adherence of the applicant to use Economy Class travel by national carrier. In fact, the applicant was acting only on the directives of Government of India issued to CFSI in this regard. Despite such request by the applicant, based on the orders of the Government of India, the Chairperson travelled by Business Class, that too by private airlines. In fact, specific averments to the above effect have been made by the applicant in his rejoinder dated 18.06.2010 and have not been denied by the respondents.
21. The reasons mentioned by the respondents in the reply do not exist on the file and, as such, judging the action of the respondents based on records, we have to hold the impugned action of premature repatriation as totally illegal, arbitrary and against the principles of natural justice, apart from being violative of the doctrine of legitimate expectation.
22. In this connection, we may pertinently mention the judgment of Constitutional Bench of the Hon'ble Supreme Court in the case of Mohinder Singh Gill Vs. Chief Election Commissioner [1978 (1) SCC 405], wherein it has been held as follows:
The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji :
Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older.
23. In this background, we further note from the original records that the file pertaining to the case of the applicant was abruptly summoned by the Joint Secretary (Films), Shri B.P. Reddy, on 09.04.2010 and it is, inter alia, stated that for the smooth functioning of CFSI, the Chairperson and C.E.O. should function in harmony and should not step into each other's domain. The C.E.O. is responsible for the administrative functioning of the Institute and the Chairperson is required to provide creative inputs towards fulfilling its mandate. However, this does not appear to be happening and the CEO appears to be moving into the fields which are in the domain of the Chairperson. In view of this position, it is proposed that Shri Sushovan Banarjee, CEO, may be repatriated to Ministry of Home Affairs with immediate effect. It is also provided in the said note that it is not an A.C.C. appointment as such the Minister of Information and Broadcasting is the competent authority to order premature repatriation of the officer in question. Simultaneously, the charge of the post of CEO may be handed over to the Director General, Films Division, Shri Kuldip Sinha, who had held the additional charge in the past from 24.10.2007 till 17.02.2009. This note was submitted for approval to the Secretary/Special Secretary, Shri Uday Kumar Verma and then to the competent authority and again back in quick succession. The above said is the only procedure followed in taking the action in question by the Ministry. There is no other reason on record leading to the sudden summoning of the file from the desk of the Joint Director (Films). There are absolutely no allegations, etc. against the applicant pertaining to his discharge of duties. The note is based on only an impression of an individual to whom it appears that the things were not moving in the right directions. The basis for such an apprehension or impression or appearance is totally unknown to the records.
24. The notes of the Joint Secretary pertaining to the requirement of consulting A.C.C. is also not convincing. From the same file we note that the predecessor of the applicant, namely; Ms. Radhika Rastogi, I.A.S., was prematurely repatriated only after the concurrence of the DOPT was obtained by the respondents. It is evident from the notings dated 18.09.2007, 19.09.2007, 01.10.2007, 15.10.2007, etc., that once the respondents have themselves followed the procedure of consulting with DOPT by duly obtaining its concurrence in the past, there is no reason as to why the same procedure should not have been followed in the present case. The reasons for such deviation have not been noted either by the Joint Secretary, Secretary, Special Secretary or the competent authority in this regard. Therefore, the procedure followed by the respondents in passing the impugned order against the applicant is unfair, unjust and arbitrary to their own past practice. The same is, therefore, liable to be set aside on fact and law. Moreover, the respondents admit that in so far as the pay and allowances of the applicant are concerned, the provisions of the DOPT OM dated 05.01.1994 are applicable. However, in the same breath they would contend that the said O.M. does not have application for repatriation of the applicant. The appointment order of the applicant specifically makes it clear that the provisions of the DOPT OM dated 05.01.1994 are applicable to his deputation in the CFSI. The provisions of the said O.M. cannot be made selectively applicable for some purpose and not maintainable for the others. The respondents' stand is, therefore, contradictory and hence untenable.
25. Lastly, we may turn to the issue of O.M. dated 30.03.2010 issued by the Government of India regarding Tenure Policy for IPS Officers on Central Deputation. On the face of it, the said Policy is dated 30.03.2010 and therefore cannot govern the deputation of the applicant made on 05.12.2008 retrospectively and, secondly, on minute perusal of all the provisions of the said Tenure Policy, it is clear that the said Tenure Policy has been issued basically for regulating the tenures in various Central Government/Units which is termed as 'Central Deputation Tenure' in the Policy. The said policy does not govern terms and conditions of the deputation in an autonomous organization. This is clear from several factors.
Firstly, para 4 of the Policy provides for empanelment for appointment to Central deputation. No empanelment is necessary for deputation to an autonomous organization like CFSI.
Secondly, para 5 of the Policy provides or tenure in central deputation and the tenure admissible to Inspector General of Police (i.e., the rank of the applicant) is 5 years. Thus, as per the said policy an Officer of the rank of Inspector General of Police is entitled for tenure of 5 years while on central deputation. As against this, the maximum statutory admissible tenure of the applicant in CFSI is only 3 years.
Thirdly, para 6 to 9 of the Policy lay down regulation of tenures in various Units/Organizations which form part of 'Central Deputation'. The said organizations are Intelligence Bureau, RAW, CBI. Fourthly, annexure to the policy provides for list of hard stations in BSF, CRPF, IDBP & CISF. 26. On complete reading of the Tenure Policy dated 30.03.2010, it is clear that it nowhere regulates terms and conditions of deputation in autonomous organization or PSUs of Central or State Governments. Such deputations are governed by the OM dated 05.01.1994. Even if the Tenure Policy dated 30.03.2010 is deemed applicable to present case, para 14.3 of the Policy specifically provides that the premature repatriation can only be with the approval of the competent authority. The competent authority in the case of the applicant is the ACC and admittedly approval of the said authority has not been obtained by the respondents. In this regard, the stand taken by the respondents that the approval of the ACC was not required for repatriation of the applicant in question appears to be incorrect and against the provisions of the Government of India (Transaction of Business) Rules, 1961. A perusal of these Rules makes it clear that approval of ACC is required for appointment of officers above the rank of Joint Secretary/I.G. However, pertinently, no ranks are specified in case of repatriation. It means approval of ACC has to be obtained before effecting any premature repatriation of an officer like the applicant. Thus, the requirement of approval by the ACC is mandatory in case of appointment on deputation as well as in case of any premature repatriation. This having not been done by the respondents in seeking premature repatriation of the applicant is void and hence unsustainable in law and on fact.
27. As far as the contention of the respondents that the applicant was merely a deputationist, as such, he does not have a right to notice or prior intimation to the DOPT or parent cadre is concerned, we note that the concept of 'deputation', as understood in Service Jurisprudence, simply means putting the services of an official at the disposal of some other department outside his cadre. Lateral entry in Government service in India is generally not resorted to. Deputation, however, is a refreshing departure from that. It is a unique phenomenon of enrichment of civil service and its functionality by undertaking in-service lateral entry in the form of deputation. Such a deputation may also be in respect of an ex-cadre post. Ordinarily, it is for a fixed tenure and the official concerned has to go back to his/her parent department after the stipulated period is over, unless extended by the competent authority according to rules. There are twin objectives underlying the concept of deputation. Firstly, the idea in placing officers on deputation from one department to another appears to be to give them exposure of working in different departments so as to enrich their experience. This would help them when they are repatriated back to their cadre after completion of a specific period of three years or so. Secondly, this also helps the borrowing department to get specialized services of the official being brought on deputation because of the earlier experience which he has gained in the parent cadre.
28. It is also an admitted position that deputation is a tripartite agreement and is effected only with the consent of the official concerned, the borrowing department and the lending department. Since it is a tripartite agreement, premature repatriation of a deputationist is possible only after giving reasonable notice to the official as well as to the parent department by the lending department. Grounds for such premature repatriation, either as regards unsatisfactory performance by the deputationist or otherwise, should be recorded and communicated to the parties by giving reasonable notice. Besides, this legal requirement of notice, etc., from a practical point of view of standardized procedure, is otherwise desirable. This is also essential to enable the official concerned as well as the borrowing department to make suitable alternative arrangement. In fact, whenever an official is selected and posted on deputation out of his cadre, it leads to a chain reaction in the department itself, at least for the specified period of deputation and correspondingly transfers/promotions, which may or may not be on ad-hoc basis, are made by the lending department.
29. The law is well settled on this point. A premature termination of deputation is possible only on the ground of unsatisfactory work or some proved misconduct. This legal position has been settled by the Hon'ble Supreme Court more than five decades ago in the case of Purshottam Lal Dhingra Vs. Union of India [AIR 1958 SC 36]. It has been held in that case by the Hon'ble Supreme Court that when an appointment is made for a specific period, unless any disciplinary proceeding is initiated, an official will be entitled to hold the post for the said specified period. It is further held by the Hon'ble Supreme Court that the provisions of Article 311 of the Constitution of India are attracted to all the appointments, which may be permanent, temporary, contractual appointments, for a specified period, etc. This position has further been reiterated by the Hon'ble Supreme Court in the case of Moti Ram Deka Vs. North Eastern Railway, Union of India [AIR 1964 SC 600].
Similarly, in the case of K. H. Phadnis Vs. State of Maharashtra [1971 (1) SCC 790] the Hon'ble Supreme Court has considered the question of repatriation of the appellant therein from the post of Controller of Food Grains Department, Bombay, to his parent department of Excise and Prohibition. It was a case of premature repatriation and the Hon'ble Supreme Court specifically considered the issue as to whether it amounted to a reduction in rank in violation of the provisions contained in Article 311 of the Constitution. The appellant in that case was considered for the purpose of deputation in the year 1960 in view of his earlier experience in the Food Department and also in view of his good service in the parent department. In December, 1961, the appellant's daughter got married. Some anonymous complaints were filed against the appellant in January/March, 1962, regarding some gifts and cash accepted by the appellant at the time of marriage of his daughter from Fair Price Shop Owners. The applicant denied this allegations. However, the investigations by the Anti-Corruption Branch of Police went on. The Minister of Civil Supplies concerned showed personal interest in the matter and even visited the office of the Appellant in April, 1962. Somehow, the Anti-Corruption Branch of the Police completely exonerated the appellant of the charges falsely levelled against him. In the meanwhile, the applicant was repatriated to his parent department by the Government of Bombay on 08.05.1962. It was challenged by the appellant before the Bombay High Court and the Hon'ble Single Judge held that in the facts and circumstances of the case, the repatriation was a punishment. However, on an appeal by the Government of Bombay, the order of Single Bench was reversed by the Division Bench. When the matter was taken up to the Hon'ble Supreme Court by the appellant, the Hon'ble Supreme Court, after analyzing various judgments, including Parshottam Lal Dhingra (supra), held that the order of repatriation was in the nature of punishment and was not in compliance with the provisions of the Constitution. Paragraphs 17 and 18 of the said order are important and are reproduced herein below :
17. The order of reversion simpliciter will not amount to a reduction in rank or a punishment. A Government servant holding a temporary post and having lien on his substantive post may be sent back to the substantive post in ordinary routine administration or because of exigencies of service. A person holding a temporary post may draw a salary higher than that of his substantive post and when he is reverted to his parent department the loss of salary cannot be said to have any penal consequence. Therefore, though the Government has right to revert a Government servant from the temporary post to a substantive post, the matter has to be viewed as one of substance and all relevant factors are to be considered in ascertaining whether the order is a genuine one of accident service in which a person sent from the substantive post to a temporary post has to go back to the parent post without an aspersion against his character or integrity or whether the order amounts to a reduction in rank by way of punishment. Reversion by itself will not be a stigma. On the other hand, if there is evidence that the order of reversion is not a pure accident of service but an order in the nature of punishment, Article 311 will be attracted.
18. In the present case, the facts and circumstances to which reference has already been made bring out in bold relief that the order of reversion was in the nature of punishment. The order was not in compliance with the provisions of the Constitution.
30. The Hon'ble Supreme Court has reiterated the above legal position in a somewhat recent judgment pertaining to deputationist titled Union of India Vs. V. Ramakrishnan & Others [2005 SCC (L&S) 1150]. The Hon'ble Supreme Court has specifically held in para 32 of the said judgment that although the deputationist may not have a right to continue in the post in question, but where it is for a specified time, it cannot be curtailed without giving reasonable opportunity to the affected person. Even the curtailment, if any, in the period of specified deputation is possible on the ground of unsuitability or unsatisfactory performance. Para 32 of the said judgment is reproduced herein below :
32. Ordinarily, a deputationist has no legal right to continue in the post. A deputationist indisputably has no right to be absorbed in the post to which he is deputed. However, there is no bar thereto as well. It may be true that when deputationist does not result in absorption in the service to which an officer is deputed, no recruitment in its true import and significance takes place as he is continued to be a member of the parent service. When the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability or unsatisfactory performance. But, even where the tenure is not specified, an order of reversion can be questioned when the same is mala fide. An action taken in a post-haste manner also indicates malice. (emphasis provided).
31. Viewed from this angle, a deputationist's position cannot be considered to be so tentative and vulnerable as to throw him out at the whims and fancies of a particular person, that too without any notice and without adhering to the principles of natural justice. It is a reversal for a senior officer to be repatriated prematurely to his department in an abrupt and sudden manner. Even if he does not have an indefeasible right to continue on deputation till the completion of his tenure, he has a limited right to be informed of reasons for his premature repatriation in advance so that he may put up defence before the higher authorities. He does have a legitimate expectation to that effect. This would be compliance with the minimum requirement of the principles of natural justice. A sudden and abrupt repatriation without notice or opportunity, therefore, has to be regarded as arbitrary, unfair and unjust exercise of discretion, which is prohibited by law, particularly by equality clause enshrined under Articles 14 and 16 of the Constitution of India. Such an action cannot be justified on the touchstone of reasonableness as it would also be hit by the Wednesbury Principle of Unreasonableness, a principle which has been consistently followed since last many decades.
32. The impugned order, therefore, is liable to be quashed and set aside and consequently, the applicant is entitled to reinstatement in his former post of deputation forthwith. However, if the applicant so desires, he may prefer a representation to the DOPT for his lateral deputation in Mumbai. Keeping in view the clumsy circumstances under which the applicant came to be abruptly repatriated to his parent cadre, we would expect that the respondents, if they so deem it appropriate and also subject to consent of the applicant, the latter may be accommodated in a suitable alternative post of deputation at Mumbai, by way of lateral movement.
33. Before parting, we also take this opportunity to note that the Tribunal has come across a few such cases of premature repatriation of very senior officers of All India Services. The ground taken for such premature repatriation by the borrowing department are generally trivial and not connected with the efficiency or working of the officials. We understand that officers with proven track record and with clean image are picked up for being sent on deputation. That being so, it become incumbent upon the Department of Personnel & Training to ensure that the work culture, including its ethos and actual practice, of the borrowing entity is suitable enough to make positive use of the abilities of the deputationist, besides allowing him to improve further in his career. Otherwise, as it has happened in this case, the very purpose of having the system of deputation will be soundly defeated.
34. All deputations are necessarily effected through involvement and concurrence of the Department of Personnel and Training. Therefore, there is a prima facie need for streamlining the deputation of such officers and ensuring that their tenure to be secure through proper and more effective guidelines, control and procedure.
35. The O.A., accordingly, stands allowed. Interim relief granted on 02.06.2010 is made absolute. No costs.
(SUDHAKAR MISHRA) (JOG SINGH)
MEMBER (A) MEMBER (J)
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