Central Administrative Tribunal - Chandigarh
Amir Chand Kakkar vs Union Of India (Uoi) And Ors. on 4 August, 2003
Equivalent citations: 2004(1)SLJ71(CAT)
JUDGMENT
O.P. Garg, J. (Vice Chairman)
1. The moot point which arises for consideration and determination in the present O.A. is--Whether an employee whose lien in the parent department stood terminated on account of his permanent absorption in the Department to which he has gone on deputation can be repatriated to the parent department to the serious detriment of an employee who has acquired a vested right on the promotional post in the parent department?
2. This controversy has come up before us in the background of the following admitted facts.
3. The present applicant Shri Amir Chand Kakkar and his acclaimed senior, respondent No. 4, Shri Ram Prakash Sharma, were initially appointed as Lower Division Clerks in the office of the Director, Northern Region Farm Machinery Tools & Training Institute, Hisar, Haryana (for short 'TTI')., respondent No. 2, respectively on 17.1.1997 and 11.5.1973. In the year 1992, an advertisement was issued by the Director, National Biofertiliser Development Centre, CGO Complex, Kamala Nehru Nagar, Ghaziabad-201002 (for short NBDC'), Respondent No. 3, for filling up the post of Upper Division Clerk (UDC). By office Memorandum dated 12.4.1993, Annexure A-4, Shri Ram Prakash Sharma was selected for appointment to the post of UDC in NBDC on deputation for a period not exceeding three years. He was relieved by TTI on 27.9.1993, Annexure A-5, to join as UDC in NBDC. By order dated 7.10.1993, Annexure A-6, Shri Sharma was appointed as UDC in the scale of Rs. 1200-2040 in NBDC Ghaziabad w.e.f. the forenoon of 30th September, 1993. Before the completion of the period of deputation, Shri Sharma moved an application on 16.11.1995, Annexure A-7, addressed to the Director, NBDC, expressing his willingness to continue on the same post on which he was sent on deputation and consequently he prayed that he may be absorbed permanently on the post of UDC at NBDC, Ghaziabad. The NBDC apprised the TTI of the willingness of Shri Sharma to be permanently absorbed in NBDC and requested TTI to intimate if it has any objection in the permanent absorption of Shri Sharma. By letter dated 21.12.1995, Annexure A-8, the TTI intimated that it has no objection to the permanent absorption of Shri Sharma. It appears that the matter of permanent absorption of the applicant remained pending and consequently TTI wrote a letter dated 12/ 14.6.1996, Annexure A-9, to NBDC to intimate whether the case of Shri Ram Prakash Sharma is being considered for permanent absorption or not and if it is not possible to absorb him, he may be repatriated after the expiry of three years' period of deputation in September, 1996, as no further extension is likely to be given. It was by order dated 3.7.1996, Annexure A-10, that the NBDC finally absorbed Shri Sharma permanently on transfer basis on the post of UDC w.e.f. 1.7.1996. Consequent upon the permanent absorption, the TTI terminated the lien of Shri Sharma a permanent LDC w.e.f. 1st July, 1996 and by letter dated 14.8.1996, Annexure A-11, it was intimated that from the date of his absorption i.e. 1st July, 1996, Shri Sharma will have no claim on the post of LDC after termination of his lien. This is how the official connection of Shri Sharma from his parent department i.e. TTI, came to be severed. After permanent absorption of Shri Sharma in NBDC and termination of his lien on the post of LDC from the parent department, the present applicant, Shri Amir Chand Kakkar, in due course of time, came to be promoted as UDC on ad hoc basis with effect from 19.5.2000 and on the recommendations of Departmental Promotion Committee regular promotion in the pay scale of Rs. 4000-6000 w.e.f. 16.6.2000, Annexure A-12, was ordered.
4. The whole trouble shot up on account of the fact that the competent authority in the Government of India, Department of Agriculture and Co-operation found that the permanent absorption granted to Shri Sharma by NBDC was irregular. Consequently by order dated 30.10.2000, Annexure A-3, issued by NBDC, Shri Sharma was to stand relieved in the afternoon of 31.10.2000, on being repatriated to his parent organization with immediate effect. Since Shri Sharma did not have a lien on any post in TTI, he could not be allowed to join. Finding himself in a quandary, Shri Sharma approached the Principal Bench of this Tribunal by filing O.A. No. 2435 of 2000 in which an interim order was passed on 22.11.2000, Annexure A-13, whereby operation of the orders dated 30-31.10.2000 passed by NBDC was stayed and it was directed that NBDC shall allow Shri Sharma to continue and function in the post held by him. During the pendency of the said O.A. the Government of India, Ministry of Agriculture, issued a letter dated 5th December, 2000, Annexure A-2, addressed to Director, TTI, with the advice:
"...to take back Shri R.P. Sharma on the vacant post of LDC and withdraw the requisition sent to the Employment Exchange, Chandigarh after Shri R.P. Sharma, reports for duty. Shri Sharma may be given all the consequential benefits which would have accrued to him, had he not proceeded on deputation/absorption".
TTI was requested to take further necessary action immediately in the matter.
5. Shri Sharma who had already been directed to be repatriated to his parent department (TTI), felt satisfied with the terms and conditions mentioned in the letter dated 5.12.2000 (quoted above). His Counsel made a statement that the O. A. has become infructuous and nothing more survives. Accordingly, O.A. No. 2435/2000 was disposed off without going into the merits of the case, as having become infructuous, on 7th June, 2001, vide Annexure A-14. Shri Sharma joined the TTI as LDC in the pay scale of Rs. 3050-4590 on 20.7.2001.
6. It appears that the TTI in compliance with the orders dated 5.12.2000, Annexure A-2, and order dated 15.1.2002 passed by the Government of India, Ministry of Agriculture, took steps to convene a review DPC for promotional post of UDC which was being manned by the applicant. On 22.1.2002, Annexure A-15, the applicant made a representation to the Director, TTI to postpone the review DPC in order to enable him to agitate his claim before the Court of law. He filed O.A. No. 1570 of 2002 before the Principal Bench of this Tribunal. The said O.A. was decided at the thresh-hold, even without issuing a notice to the respondents, on 7th of June, 2002, Annexure A-16, even without issuing a notice to the respondents, with a direction to consider the representation of the applicant and to pass a reasoned and speaking order thereon, within a maximum (period) of two months from the date of receipt of the copy of the order. It was further directed that the review DPC proposed to be held for promotion of Respondent No. 4 (Shri Ram Prakash Sharma), shall remain stayed until the orders on the representation of the applicant are communicated to him and for a period of another one month thereafter. The representation of the applicant has been rejected by the impugned order dated 8/10th October, 2002, Annexure A-l, on the ground that since both S/Shri Amir Chand Kakkar and Ram Prakash Sharma, have been placed in the pay scale of Rs. 5000-8000, under the ACP Scheme which is above the scale of UDC and both are not at any financial loss and that the Department of Personnel & Training had advised that in the specific facts and circumstances of the case holding of review DPC was inevitable. It was decided that a review DPC has to be held based on the general principles of DOPT guidelines and there can possibly be no objection to hold the same.
7. The case of the applicant, in short is that Shri Ram Prakash Sharma respondent No. 4 could not have been repatriated to TTI as his lien on the post of LDC stood terminated w.e.f. 1.7.1996 on his having been permanently absorbed in NBDC and in any case the applicant's right to hold the promotional post cannot be frustrated by bringing back Shri Sharma in the TTI and placing him in the position as if he had not gone on deputation. Accordingly, he has prayed that the orders, Annexure A-1, rejecting his representation; order dated 5th December, 2000, Annexure A-2, passed by Government of India, Ministry of Agriculture and the order dated 30th October, 2000, Annexure A-3, issued by NBDC repatriating respondent No. 4 to TTI and other consequential orders be quashed and a direction be issued to the respondent No. 2, TTI not to hold a review DPC for the post of UDC. In the alternative, the applicant has prayed that the respondents be commanded not to disturb his status/seniority vis-a-vis Shri Sharma, respondent No. 4 and to treat him (applicant) as senior to Respondent No. 4 in the cadre of UDCs throughout.
8. The respondent Nos. 1 to 3 have filed a joint written statement. Respondent No. 4 has also filed a separate written statement. Both the sets of the respondents have taken the stand that though the lien of the respondent No. 4 stood terminated in TTI w.e.f. 1.7.1996 on his absorption in NBDC, the Controlling Ministry of both the organizations namely TTI and NBDC had found the absorption of the respondent No. 4 as irregular and consequently the order of repatriation was passed. The official respondents have maintained that the provisions of O.M. dated 3.10.1989 (Para 13(1).), Annexure R-2, issued by the Department of Personnel & Training, had not been followed as no vacancy could be filled by transfer (other than on deputation basis) without obtaining a certificate of non-availability of surplus staff for the re-deployment against the vacancy in the first instance from the Central (Surplus Staff Cell) in DOPT in respect of Group A, B and C posts. It is further averred that absorption by transfer could be made only if no suitable surplus staff is sponsored by DOPT and since the said procedure was not followed, the absorption of respondent No. 4 was done without following the laid down procedure and was, thus, illegal ab initio. According to the official respondents the review DPC is being convened in terms of the order dated 15.1.2002 issued by the Ministry of Agriculture with a view to bring respondent No. 4 at par with his juniors; that it is the advice of the DOPT that in the specific facts and circumstances of this case holding of review DPC was inevitable. It is maintained that the representation of the applicant has been rightly rejected in compliance with the orders passed by the Principal Bench on 7.6.2002 in O.A. No. 1570 of 2002.
9. Applicant has filed separate rejoinders to the replies filed by the respondents.
10. We have heard Mr. Subhash Ahuja, learned Counsel for the applicant; Shri Namit Kumar appearing on behalf of Respondents 1 to 3 and Mr. Balwant Sharma for Respondent No. 4 at considerable length and have considered the matter thoroughly with reference to the documents available on record and the legal position.
11. From the above narrative of the facts based on the pleadings of the parties and the various orders passed by the departmental authorities, it is an accepted position that the respondent No. 4, who had gone on deputation, had been absorbed by NBDC on permanent basis with effect from 1.7.1996 on the post of UDC. Consequent upon his permanent absorption, the applicant lost his lien in the parent department i.e. "TTI". The Controlling Ministry of the two Organizations (namely TTI and NBDC) found that the absorption of respondent No. 4 on permanent basis was irregular inasmuch as it was directly in conflict with the procedure prescribed in O.M. dated 13.10.1989, Annexure R-2. It was on the advice of the Controlling Ministry that the respondent No. 4 inspite of the fact that his lien had been terminated in TTI was directed to be relieved from NBDC and joined in TTI, his parent department i.e. TTI on repatriation. The crucial question which crops up for scrutiny and determination is whether after termination of the lien in the parent department as a result of the permanent absorption in another organization, could the respondent No. 4 be repatriated to his parent department? This question takes us to marshal the various provisions made with regard to acquisition and termination of lien which is one of the conditions of service. Rule 13 of the Fundamental Rules (for short "FRs") which applies to the employees of the Central Government and its organizations, reads as follows:--
"F.R. 13. A Government servant who has acquired lien on a post retains the lien on that post;
(a) while performing the duties of that post; (b) while on foreign service, or holding a temporary post, or officiating in another post; (c) during joining time on transfer to another post, unless he is transferred along with his title to a post on lower pay, in which case his lien is transferred to the new post from the date on which he is relieved on his duties in the earlier post; (d) while on leave; and (e) while under suspension. Provided that no Lien of a Government servant shall be retained: (i) Where a Government servant has proceeded on immediate absorption basis to a post or service outside his service/cadre/post in the Government from the date of absorption; and (ii) On foreign service/deputation beyond the maximum limit admissible under the orders of the Government issued from time to time."
Fundamental Rule (FR) 14-A provides that a Government servant's lien on a post may in no circumstances be terminated, if the result will be to leave him without a lien upon a regular post. Clause (d) of the FR 14 makes a provision that a Government servant's lien on a post shall stand terminated on acquiring a lien on another post (whether under the Central Government or State Government) outside the cadre on which he is borne. FR 12-A which is also relevant for our purposes provided that a Government servant on acquiring a lien on a post will cease to hold the lien previously acquired on any other post. A conjoint reading of the above provisions would indicate that a Government servant who holds a permanent, substantive or temporary post, has to have a lien on some post. A situation when he has no lien to any post cannot be visualized. It is beyond comprehension. It is also equally true that a Government servant cannot have a lien on more than one post. A Government servant who has acquired a lien on a post retains the same on that post till it is terminated. Where a Government servant has proceeded on immediate absorption basis to a post or service outside his service/cadre/post in the Government he does not retain the lien on the original post from the date of his absorption on a post outside his service or cadre. If a Government servant has acquired a lien on another post, he will necessarily cease to hold the lien previously acquired on such post in his parent department. In view of Clause (d) of FR 14-A a Government servant's lien on a post shall stand terminated on his acquiring a lien on another post outside cadre on which he is borne. The Government of India has issued a number of orders and guidelines to clarify the position with regard to the retention of lien in the parent department in the case of Government servant getting employed/absorbed in other department. In O.M. No. 60/37/63-Ests (A) dated 14th July, 1967, the question as to what procedure should be followed in respect of Government servants working in a particular department/office who apply in response to the advertisement or circular inviting applications for posts in other Central Government departments/offices was dealt with in para (2) of the said circular. It has been mentioned that in the case of permanent Government servants, their lien may be retained in the parent department/ office for a period of two years. They should either revert to their parent department/ office within that period or resign from the parent department/office at the end of that period and an undertaking to abide by these conditions may be taken from them at the time of forwarding the applications to other departments/offices. Paragraph (3) of the said circular lays down that in the case of quasi-permanent Government servants who wish to revert to parent department/office within a period of two years, they may be taken back in the parent department/office provided the posts held by them prior to their joining a new department/office continue to exist. In any case at the end of 2 years from the date of release from the parent department/office, they will have to resign from the parent department/office, it reversion does not take place. In paragraph (5) of the said circular letter it is made clear that in exceptional cases where it would take some time in the other department/office to confirm such Government servants due to some other administrative reasons, the permanent Governments may be permitted to retain their lien in the parent department/office for one more year.
12. FR 9(13) defines "lien" to mean the title of a Government servant to hold on regular basis either immediately or on termination of a period or periods of absence, a post, including a tenure post to which he has been appointed on regular basis and on which he is not on probation. The connotation "lien" came to be interpreted by the Apex Court in the case of Ram Lal Khurana v. State of Punjab, 1989(4) SLR 243. The Apex Court ruled: "Lien is not a word of art. It just connotes the right of a civil servant to hold the post substantively to which he is appointed. Generally when a person with a lien against a post is appointed substantively to another post, he acquires a lien against the latter post. Then the lien against his previous post automatically disappears. The principle being that no Government servant can have simultaneously two liens against two posts in two different cadres. It is a well accepted principle of service jurisprudence." There may be an eventuality, when lien of a Government servant may remain suspended. In that case he had the right to come back to his post in the previous cadre and once that is so, the rest would follow as if for all times deemingly he was in the previous cadre. Analogy to this can be found from an illustration where a person goes on deputation to some other cadre and when he comes back, his entire service in the other cadre is taken in the parent cadre for all purposes deemingly as if for all intent and purpose during the period of deputation such person has been working in the parent department. If the Government servant is on deputation or holding a post in another cadre his lien shall revive as soon as he ceases to hold the post in that another cadre. But there can be no revival of the lien during the period an employee continues to hold a post in another cadre. Like all other service rules, the rules dealing with the lien are meant for the benefit of the employees to ensure sound administration. Where an employee takes a calculated risk and opts for ending his lien against the permanent substantive post in the parent department by taking absorption on permanent basis in another department, his lien in the parent department automatically comes to an end and he cannot stage a come back later on to join the post on which he has no lien or has ceased to have the lien. Once the lien on a post stands terminated, it does not survive. This aspect of the matter came to be considered by Apex Court in the case of Dr. S.K. Kacker v. All India Institute of Medical Sciences and Ors., 1996(4) RSJ 358=1997(1) SLJ 35 (SC). In that case the facts were that while the appellant Dr. S.N. Kacker an eminent Professor in Otorphinolaryngology, was working as Professor and Head of the ENT Department in the respondent-AIIMS, an advertisement had come to be made on June 29, 1990, for appointment to the post of Director of the AIIMS on regular basis. Pursuant thereto, he had applied for and was selected by the Committee for appointment as a Professor. He came to be appointed by the Institute Body with the concurrence of the Government of India. He assumed the office on October 11,1990 for a period of five years. His tenure came to an end on October 15, 1995. The question that emerged for consideration was whether on expiry of 5 years' tenure, Dr. Kacker would be entitled to go back as a Professor and Head of the E&T Department till he attains his superannuation on July 31,1988? The writ petition filed by the appellant was dismissed by High Court holding that on appointment as Director, Shri Kacker had ceased to be a Professor and, therefore, could not revert to the parent department. Taking note of provisions of Rule 14(A) (a) and Clause (d), it was held that on his appointment to the post of Director, Dr. Kacker lost his lien on the post as a Professor and Head of E&T Department. Resultantly when the tenure of the appellant had expired on/by efflux of time or in case of eventualities in terms of Regulation 30-A of the Regulations which envisages putting an end to the tenure post, had happened, he cannot revert to the post of Professor and Head of the Department. Accordingly, it was held that on his ceasing to be a Director, the appellant does not have the right to take upon the previous permanent post held by him as Professor and Head of the E&T Department. Reference was also made to an earlier decision in the case of Dr. L.P. Agarwal v. Union of India and Ors. (1992) 3 SCC 526=1992(3) SLJ 137 (SC).
13. The crisp and firm legal position which emerges from the provisions made in the Fundamental Rules and the various decisions of the Apex Court and High Courts is that when a Government servant on substantive appointment to any permanent post acquires a lien by absorption or otherwise he ceases to hold any lien previously acquired on any other post. Once the lien on a particular post comes to an end, it cannot be revived under any circumstance. It tentamounts to civil death of the concerned employee in the parent department. In the present case from facts stated above, it is well established that the respondent No. 4 who was having the lien in the parent department i.e. TTI in the cadre of LDC, ceased to have the lien on that post as a result of his having voluntarily acquired a lien on another post in the cadre of UDC in another organization i.e. NBDC and where he was permanently absorbed w.e.f. 1.7.1996. This position is unassailable and beyond the pale of challenge. After his absorption on permanent basis in 'NBDC' the respondent No. 4 ceased to have the status of a deputationist and all his official ties from TTI stood snapped. A Government servant can be repatriated to his parent department only during the currency of the period of deputation or immediately after the expiry of the pre-stipulated period of deputation unless it is further extended by a specific order. If at all, the respondent No. 4 was to be repatriated it could have been done only after the expiry of the out-side limit of three years for which his services were lent on deputation. In the present case, the period of deputation of the respondent No. 4 expired in the month of September, 1996.
14. The NBDC could repatriate the respondent No. 4 either during the period of deputation or on the date on which it expired. As a matter of abundant precaution, the TTI has made an enquiry from NBDC about the fate of respondent No. 4 -- Whether he stands finally absorbed or not. A note of caution was sounded by TTI that if absorption has not already been ordered, the respondent No. 4 be repatriated on the expiry of the period of deputation as the said period is not going to be extended. A conscious decision was taken by NBDC to permanently absorb the respondent No. 4 in view of his consent and willingness and an order dated 3rd July, 1996, Annexure A-10, was issued permanently absorbing the respondent No. 4 w.e.f. 1st of July, 1996. The effect of impugned order dated 30th July, 1996 has been that respondent No. 4, both in law and fact, became a permanent employee of NBDC, and his lien automatically stood terminated from his parent department TTI. As a matter of circumspection, the TTI formalised the extinction of lien of respondent No. 4 w.e.f. 1.7.1996 by passing an order dated 14.8.1996, Annexure A-l 1. The NBDC lost its right to repatriate the respondent No. 4 to his parent department after 3rd of July, 1996. As said above, a person who is on deputation and has a lien in his parent department can only be repatriated but once he has ceased to have lien in his parent department the question of repatriation did not arise.
15. For a period of more than 4 years, the respondent No. 4 continued to hold the post of UDC in NBDC as a permanently absorbed employee. Abruptly, the Controlling Ministry found the absorption of the respondent No. 4 as irregular and the NBDC was required to repatriate and relieve him from the post of UDC to join the parent department. The parent department i.e. TTI initially put up stiff resistance to take back respondent No. 4 and refused to permit him to join, obviously for the reason that he was no longer its employee and could not be sent back after termination of lien. The matter appears to have been sorted out on administrative side and the Controlling Ministry issued an order dated 5.12.2000, Annexure A-2, in pursuance of which the respondent No. 4 joined the parent department as LDC on 20.7.2001. What prompted and impelled the controlling ministry to order for the repatriation of respondent No. 4, after a period of more than four years of his permanent absorption in NBDC, is beyond comprehension. Some invisible force was obviously working behind the scene. There is obviously more to this mess than meets the eyes. We tried to rip open the reality but find that the order of repatriation of the respondent No. 4, from the department in which after absorption, his lien had been terminated, besides being illegal, is hidden in the penumbral zone far away from judicial scrutiny. The lame excuse of the respondents that permanent absorption of the respondent No. 4 was irregular due to violation of the provisions made in the DOPT O.M. dated 3.10.1989, Annexure R-2, and, therefore, he was required to be repatriated, is highly redolent of doubt and suspicion. The provisions made in the said O.M. are not sacrosanct and once the competent authority had passed the order for permanent absorption of an employee who had come on deputation, there was no occasion for the controlling ministry to turn the tables after the expiry of the substantial period of more than 4 years. Little did the Controlling Ministry realise that the orders passed by it for repatriation and taking back respondent No. 4 in TTI on the post of LDC and allowing him all the benefit of service, as if he had not gone on deputation and for holding the review DPC with a view to promote respondent No. 4 as UDC, the implication of which is that the applicant has to stand reverted, will mean ouster of the applicant from the post of UDC. Such a strange result could have been avoided if not at all costs, atleast within the frame work of the rules and expediency. In all propriety the controlling ministry should have refrained from passing an order which has made the continuance of the respondent No. 4 as well as the applicant difficult and impracticable. The order passed by the Controlling Ministry and its view in the matter is self serving one without legal back-up.
15 A. In view of foregoing discussions, the order passed by the Government of India in the Ministry of Agriculture, directing the repatriation of the Respondent No. 4 to his parent department was patently illegal. It could not force the NBDC to repatriate and relieve respondent No. 4 or compel TTI to permit him to join as LDC on the same terms and conditions as if he had never been on deputation.
16. Now we focus our attention on the case from the angle of the applicant. It is true that the applicant was junior to respondent No. 4 and if the latter had continued in the parent department, the applicant could not have been promoted to the post of UDC. After the final exit of the respondent No. 4 from the parent department, the applicant entertained a legitimate aspiration and expectation to acquire the promotional post in his turn and in his own right. He was initially promoted to the post of UDC on ad hoc basis on 19th May, 2000 and after he was selected by the DPC, regular promotion was granted w.e.f. 16.6.2000, vide Annexure A-12. Since after 19.5.2000, the applicant had been working on the promotional post of UDC. The repatriation of respondent No. 4 has come to the applicant as a bolt from the blue. The Controlling Ministry has issued the orders dated 15.10.2002 directing the TTI to convene the review DPC obviously with a view to bring the respondent No. 4, at par with his juniors in the parent department, which in the ultimate analysis would result in the reversion of the applicant to the post of LDC, for no fault of his. By now the applicant has put in more than three years of service on the promotional post. He has obviously acquired a vested right to hold the post of UDC on regular basis after due selection by the DPC. His right to continue on the promotional post cannot be disturbed or frustrated by putting back respondent No. 4 in the parent department. It would not be out of place to mention that the order of promotion of the applicant is not hedged by any condition. His promotion was not made subject to the repatriation of respondent No. 4. The promotion of the applicant was made by TTI only after ascertaining through letter dated 12/14.6.1996, Annexure A-9, that the respondent No. 4 has been filially absorbed on permanent basis in NBDC and that there was no chance of the respondent No. 4 to stage a come back at any point of time. The settled legal rights of the applicant could not under any circumstances be disturbed by the illegal action either of the Controlling Ministry or of its two organizations namely NBDC and TTI. The respondent No. 4 has taken a calculated risk and opted for ending his lien against the permanent substantive post of LDC in the parent department. He cannot be allowed to stage a march over the person though junior to him but has been given promotion in course of time on account of the eventuality that there was no senior in competition with him. The respondent No. 4 though senior to the applicant had left the parent department for good leaving the field open for the applicant to get the promotional post. So far as the applicant is concerned, he can possibly have no objection if the respondent No. 4 is taken back in the parent department as LDC. The respondent No. 4 can come back after more than 4 years of termination of his lien on the original post with all consequential benefits. He may at best be treated as a fresh appointee with effect from 20th July, 2001 on which date he joined after being relieved from NBDC or to mitigate the hardships, the Controlling Ministry may consider the feasibility of posting him back to NBDC where he was permanently absorbed on the post of UDC. Scale of justice heavily tilts in favour of the applicant rather than the respondent No. 4, who himself initially resisted the order of repatriation to the parent department and as a matter of fact filed O.A. No. 2435/2000 before the Principal Bench which was disposed of on 7.6.2001, as having become infructuous, as the respondent . 4 felt satisfied by order dated 5.12.2000, Annexure A-2. A false hope was generated in and entertained by the respondent No. 4 that he would be given the statps of UDC in the parent Department by reverting the applicant. Justice to one person at the expense of injustice to another is perpetuating injustice in some form or the other (See Prem Parkash v. Union of India and Ors., 1984 (Suppl.) SCC 694=1984(2) SLJ 376 (SC). The orders passed by the Respondents No. 1 to 3 cannot be operated to the prejudice of the applicant who on his own has acquired a legal right to the promotional post of UDC.
17. The learned Counsel for the respondents placed emphatic reliance on the earlier decisions made by Principal Bench in O.A. No. 2435/2002 filed by the respondent No. 4 and O.A. No. 1570/2002 filed by the present applicant and urged that the controversy raised in this O.A. stands already determined and the applicant is debarred from re-agitating the matter in the present O.A. This submission is totally devoid of any merit and to say the least is misconceived. Both the aforesaid O.As. were never decided on merits. As a matter of fact O.A. No. 2435/2002 filed by the respondent No. 4 was dismissed as infructuous in the light of the statement made by the Counsel for the respondent No. 4. The applicant was not a party in that O.A. O.A. No. 1570/2002 was disposed of with a direction to decide the representation made by the applicant by a speaking order. In both the O.As. the rival claims of the parties were neither canvassed nor considered. There has been no adjudication of their rights on merit. Therefore, the O.As. aforesaid do not come in our way to adjudicate upon the rival claims of the applicant vis-a-vis respondent No. 4.
18. In the result we find that the O.A. filed by the applicant is well merited and the orders passed by the Controlling Ministry and its two Organizations, viz. NBDC and TTI repatriating the respondent No. 4 to his parent department and permitting him to join on the post of LDC and allowing him all the consequential benefits which would have accrued to him had he not proceeded on deputation/absorption, cannot be allowed to infringe or disturb the vested right of the applicant on the promotional post of UDC. Accordingly, we allow the O.A. with the direction that by no action of the respondents the promotion of the applicant to the post of UDC shall be affected or negated. He shall continue to hold the post of UDC without any let or hindrance and shall not be reverted merely on the ground that respondent No. 4 has been permitted to join as LDC in TTI. It is declared that the Respondent No. 4 who was at one point of time senior to the applicant but has lost his seniority as a result of termination of his lien, cannot make a march over the applicant in any service matter. In the circumstances of the case, the applicant is held entitled to a sum of Rs. 2000 as costs to be paid by Union of India (through its Secretary, Department of Agriculture & Coop. Krishi Bhawan, New Delhi), within a period of four months from the date of this order.