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6. Further, referring to the performance of the Applicant in the post of ZJDGFT, she submitted that the Applicant endeavored to reduce pendency of cases, to streamline the procedures and issued instructions to ensure that licenses are issued without delay. She drew our attention to para 5.7 of the OA to state that the Applicant did very well in all the functions assigned to him as ZJDGFT. In this context, she referred to the letters the Applicant received from various companies stating that they were appreciative of the Applicants functioning and during his tenure he introduced transparency, quick decision making process and speedy clearance procedures. These letters are at Annexure-A15 (Colly). Ms Jyoti Singh, therefore contends that the Applicant, having done so well during short period of about 18 months, cannot be repatriated on the grounds of unsatisfactory performance.

We have no doubt that the premature repatriation of the Applicant is, therefore, admissible as per the above policy and central Government order.

16. The case of the applicant was that he was appointed on the post on deputation basis for a period of five years and the same could not be curtailed. The position as narrated above undisputedly brings out that the tenure of deputation can be curtailed but the settled legal position in the subject lays the ratio that the order of deputation curtailment must be simplicitor and the grounds of the curtailment should not be stigmatic or punitive. Even if the grounds for repatriation is stigmatic/punitive the order of repatriation must precede proper enquiry and principles of natural justice more specifically audi altrem partem which means that an opportunity should be provided to the officer concerned to defend himself properly. It is also trite that the grounds such as unsuitability or unsatisfactory performance or ineffectiveness of the officer concerned do not become stigmatic / punitive. As per the deputation policy, the applicant would have an indefeasible right to hold to the said post for such period as mentioned therein, and the same could not be curtailed except on grounds such as unsuitability or unsatisfactory performance. The learned counsel for the parties for their specific points placed their reliance upon the judgment of the Honble Supreme Court in the Ramakrishnan case (supra). The order of deputation clearly specified a period of five years on the post the Applicant was appointed. Deputation is a tripartite agreement among the lending Department, the borrowing Department and the individual Officer. Thus the Applicant has a right to remain on deputation, and simultaneously the Government reserves the right also to revert such officers to their parent cadres at any time without assigning any reasons. This Tribunal in Sunil Krishna versus Union of India & Others (OA No.1729/2006 decided on 6.3.2007), held that the tenure deputation set out is subject to discretion of the Central Government to revert deputationist officers to their parent cadre at any time without assigning any reason. If the applicant may derive the right to continue on normal deputation for a period of five years on the basis of the policy, the said normal deputation period would be subject to the discretion of the Central Government to curtail the same. In so far as judgment of the Honble Supreme in the case of V. Ramakrishnan (supra), is concerned, it may be seen that it deals with only providing of a period of deputation, without there being any right to curtail it without assigning any reason. That apart, the Supreme Court has clearly held that even if the tenure of a deputation is specified, an officer on deputation has no indefeasible right to hold the said post. It is noted that the period of deputation should not ordinarily be curtailed except on just grounds for example, unsuitability or unsatisfactory performance. The law laid down by the Honble Supreme Court would apply where it is a straight case of providing a period of deputation without there being any right with the Government to curtail it. It is for this precise reason, it appears, that the order of deputation of the Applicant has given alternatives with the suffix of until further orders, whichever event takes place earlier. Honble Punjab and Haryana High Court in the case of H. C. Prem Singh and Others Versus State of Punjab and Others [2010 (1) SLR 126] considered a case with the grounds of ineffectiveness and dismissed the Civil Writ Petition vide judgment delivered on 27.11.2009. In this case Petitioners 23 in numbers were sent on deputation to Excise and Taxation Department of Punjab Government for 2 years but just after 6 months they were repatriated to the present department on the grounds that the petitioners have not been able to serve the borrowing department with the effectiveness required. The grounds for cutting short the deputation period like unsuitability and unsatisfactory performance are not exhaustive. The same have been stated only by way of illustration as is clearly mentioned in the decision. The law as settled appears to be that when the period of deputation is specified, the same may be curtailed on the ground that the employee is unsuitable for the concerned job or is having unsatisfactory performance, or the officer is ineffective or such other grounds which would reflect the efficiency or effectiveness of the concerned officer. In this context the Honble Supreme Court in the case Union of India Versus J.P. Verma & Another(supra) relied upon the observations made in its earlier decision in K.H. Phadnis v. State of Maharashtra [(1971) 1 SCC, 792], which read as follows:

25. Having due regard to the facts and circumstances of the case discussed above it appears to us that the repatriation order of the Applicant is simplicitor and not punitive/stigmatic. The distinction between the foundation and motive in relation to repatriation is very thin and narrow. It is difficult to classify strictly the order of repatriation but we make an attempt to figure out distinction on the basis of foundation and motive. If the repatriation is based on alleged misconduct as foundation it becomes stigmatic and calls for proper opportunity to the officer before repatriating him. If the repatriation is based on complaints as motive on the ground of unsuitability and unsatisfactory performance to continue in service, such repatriation order cannot be termed as stigmatic but will be an order simplicitor. The preliminary enquiry was done by the DGFT not with the object of finding out misconduct on the part of the Applicant but was done only with a view to determine his suitability and he was counseled by letters and also in person by both DGFT and Commerce Secretary. The repatriation was ultimately ordered by the competent authority namely Appointment Committee of the Cabinet not founded on the complaints of misconduct but on the basis of his unsatisfactory performance, unsuitability and ineffectiveness in the post to which he was deputed. After close scrutiny by lifting the veil of simple order of repatriation we could not find reasons to term the same as either stigmatic or punitive.

26. Now we may consider the 2nd issue i.e. - Is the action of the Respondents to relieve the Applicant on the day of issue of the repatriation order in post haste malafide? We have very comprehensively dealt the issue of stigma and performance raised by the counsel for the Applicant. The facts and legal aspects reveal that there is no stigma and performance of the Applicant has not been to the expected level. In the backdrop of the above analysis we consider here the contention of malafide raised by the counsel for the Applicant. Ms. Jyoti Singh terms the post haste direction by the Respondents to relieve the Applicant as mala fide. In this context, she laid her reliance on the judgment of Honourable Supreme Court in V. Ramakrishnan (supra), where the order of repatriation was held to be an outcome of malice in law. The Honble Supreme Court while dealing with the issue of no legal right of a deputationist to continue in the deputation post held that ordinarily, a deputationist has no legal right to continue in the post, and indisputably has no right to be absorbed in the post to which he is deputed, but there is no bar thereto as well. The Honble Supreme Court further held that it may be true that when deputation 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, and that when the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term or deputation should not be curtailed except on such just grounds, as mentioned above, as unsuitability or unsatisfactory performance; and even where the tenure is not specified, an order of reversion can be questioned when the same is mala fide, and an action taken in a post-haste manner also indicates malice. In the background of the said judgment, we examine the case. The Applicant has not brought any case of personal mal fide against any of them. The only ground of mala fide is the he was ordered to be relieved on the same day when the the order of repatriation was issued. The counsel for the Respondets submit that the relieve order issued was consequential order to the order of repatriation. In our considered opinion that cannot be termed as malice in law. Had the Respondents issued the repatriation order no sooner the 2st complaint came to them, such an action taken in post haste could be termed as mala fide. That is not the case in this OA. The complaints were received periodically and many of those were sent to him where he has submitted clarifications. By no fits of imagination the repatriation order and the relieve orders can be termed as mala fide.