Case: Union of India &amp; Another Vs. S.N. Maity &amp; Another

because the incumbent in the Office of the Lokpal, having functioned as such at least for some time, would have dealt with many matters and, therefore, to maintain the purity of that office, the restrictions imposed under the Act should be maintained. The only other reasonable way, therefore, is to interpret the provisions to the effect that even when such restrictions continue to be operative on abolition of the office, the incumbent in office should be reasonably compensated not for deprivation of the office but for attachment of the restrictions thereafter.10. The learned counsel for the respondents contended that loss of employment in such a situation is only a contingency of service and the right to abolish the post is available with the Government in the same manner as the right to create a post and a person whose post has been abolished should not be entitled to salary. In our view, these arguments have absolutely no relevance to the question which we have examined. The crux of the matter in this case is the effect of the disqualification of not holding any office after ceasing to hold the Office of the Lokpal. He is deprived of all other offices or business interest when he holds the Office of the Lokpal and the office, which he holds, is also denied to him by reason of the repealing Act. If the argument of the learned counsel for the respondents is accepted, it would lead to incongruity and would baffle all logic.11. The learned counsel for the respondents further submitted that the appellant had not presented his case or claimed compensation for loss of future employment but has claimed only the loss for the present tenure and, therefore, we should not grant any relief to him. A writ petition, which is filed under Article 226 of the Constitution, sets out the facts and the claims arising thereto. Maybe, in a given case, the reliefs set forth may not clearly set out the reliefs arising out of the facts and circumstances of the case. However, the courts always have the power to mould the reliefs and grant the same." 23. We repeat at the cost of repetition that we are absolutely conscious in the said case, the situation was different, but the Court moulded the relief and granted the compensation. The Court did not think to go for the alternative i.e. once there is an abolition of post, the restrictions of holding office would not be attracted to him. The Court did not think of the second situation as the result would be incongruous and baffle all logic. We ingeminate that we have referred to that authority only to keep in view, in certain circumstances relating to curtailment of tenure, the Court can mould the relief depending upon the fact situation. In the obtaining factual scenario, the period has been over since last six years. There had been an order of status quo by this Court on 01.11.2006. The 1st respondent has come back to his parent Department and working in the post of Scientist-G. In distinction to the decision in Debesh Chandra Das (supra), the period of tenure is not available which was there in the said case. Similarly, in Ashok Kumar Ratilal Patel (supra), the appellant was not appointed and, therefore, the Court directed the authorities to appoint him as per the orders of appointment. In the present case, we are of the considered view, the appellant should not suffer the loss of salary, but if we direct for his reinstatement as the High Court has done, it will create an anomalous situation. It would be, in our considered view, not apt at this juncture and, therefore, the cause of justice would be best subserved if he is allowed to get the entire salary that was payable to him for the post of CGPDTM for the balance period, that is, five years minus the period he had actually served and drawn salary. The balance amount shall be paid with interest @ 9% p.a. within three months hence. 24. Another aspect that has been highlighted before us by Mr. Gonsalves is that the 1st respondent should be entitled to draw the same salary that he was drawing on the basis of his last pay drawn when he came back to his parent Department. It is an admitted fact that he was drawing a higher scale while holding the post of CGPDTM, but the question is whether the said pay scale should be maintained in the parent department. Mr. Praveen Swarup, learned counsel appearing for the 2nd respondent has commended us to the decision in Union of India & Others V. Bhanwar Lal Mundan [(2013) 12 SCC 433] . In the said case, a deputationist was getting a higher scale of pay in the post while he was holding a particular post as deputationist. After his repatriation to the parent department, on selection to higher post, he was given higher scale of pay as it was fixed keeping in view the pay scale drawn by him while he was working in the ex-cadre post. In that context, this Court opined that such fixation of pay was fully erroneous and, therefore, the authorities were within their domain to rectify it. Mr. Gonsalves, learned senior counsel would submit that here it was as tenure posting and, therefore, he is entitled to get the equivalent pay which he was holding as a tenure-post holder. The said distinction, on a first glance, may look attractive, but on a deeper scrutiny, has to pale into insignificance. Assuming he would have completed the entire tenure of five years, he would have definitely come back to his parent department. There is no rule or regulation that he will get the equivalent pay scale in his parent department. The normal rule relating to pay scale has to apply to avoid any kind of piquant and uncalled for situation. Therefore, the submission does not commend acceptation and accordingly we repel the same.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The High Court did not accept the contention and dismissed the writ petition. It was contended before this Court on behalf of the appellant that the reversion being in the nature of penalty, the procedure under Article 311(2) was required to be followed and as there was gross violation of the same, the order passed by the Government of India could not be sustained. The said submission was countered by the Government of India urging, inter alia, that he was on deputation and the deputation could be terminated at any time; that his order of appointment clearly showed that the appointment was "until further orders"; that he had no right to continue in Government of India if his services were not required and his reversion to his parent State did not amount either to any reduction in rank or a penalty and, therefore, the order was quite legal and justified.The controversy that has emerged in the instant case is to be decided on the touchstone of the aforesaid principles of law. We have already opined that it is not a case of simple transfer. It is not a situation where one can say that it is a transfer on deputation as against an equivalent post from one cadre to another or one department to another. It is not a deputation from a Government Department to a Government Corporation or one Government to the other. There is no cavil over the fact that the post falls in a different category and the 1st respondent had gone through the whole gamut of selection. On a studied scrutiny, the notification of appointment makes it absolutely clear that it is a tenure posting and the fixed tenure is five years unless it is curtailed. But, a pregnant one, this curtailment cannot be done in an arbitrary or capricious manner. There has to have some rationale. Merely because the words until further orders are used, it would not confer allowance on the employer to act with caprice.17. Presently, we shall scrutinise under what circumstances the order of repatriation has been issued.The order is absolutely silent on any aspect. An argument has been advanced by Mr. Gonsalves, learned senior counsel for the 1st respondent that this letter was issued because of some frivolous complaints made against the 1st respondent and also regard being had to his stern and strict dealings by him pertaining to certain aspects. Be that as it may, the letter is absolutely silent and it has curtailed the tenure of posting without any justifiable reason. Regard being had to the nature of appointment, that is, tenure appointment, it really cannot withstand close scrutiny. Therefore, the judgment passed by the High Court lancinating the said order cannot really be found fault with.19. Though we have accepted the reasoning of the High Court for axing the order of repatriation, yet at this distance of time, we find it difficult to give effect to the direction for reinstatement in the post of CGPDTM. The 1st respondent was appointed on 29.7.2003. The period is since long over. The stand of the 2nd respondent is that the 1st respondent, after being relieved, joined in his parent department on 16.11.2004 and has been holding the post of Scientist-G w.e.f. 13.2.2007 and continuing on the same post. It is also the stand of the respondents that a new person has been holding the post.e order is absolutely silent on any aspect. An argument has been advanced by Mr. Gonsalves, learned senior counsel for the 1st respondent that this letter was issued because of some frivolous complaints made against the 1st respondent and also regard being had to his stern and strict dealings by him pertaining to certain aspects. Be that as it may, the letter is absolutely silent and it has curtailed the tenure of posting without any justifiable reason. Regard being had to the nature of appointment, that is, tenure appointment, it really cannot withstand close scrutiny. Therefore, the judgment passed by the High Court lancinating the said order cannot really be found fault with.19. Though we have accepted the reasoning of the High Court for axing the order of repatriation, yet at this distance of time, we find it difficult to give effect to the direction for reinstatement in the post of CGPDTM. The 1st respondent was appointed on 29.7.2003. The period is since long over. The stand of the 2nd respondent is that the 1st respondent, after being relieved, joined in his parent department on 16.11.2004 and has been holding the post of Scientist-G w.e.f. 13.2.2007 and continuing on the same post. It is also the stand of the respondents that a new person has been holding the post.We repeat at the cost of repetition that we are absolutely conscious in the said case, the situation was different, but the Court moulded the relief and granted the compensation. The Court did not think to go for the alternative i.e. once there is an abolition of post, the restrictions of holding office would not be attracted to him. The Court did not think of the second situation as the result would be incongruous and baffle all logic. We ingeminate that we have referred to that authority only to keep in view, in certain circumstances relating to curtailment of tenure, the Court can mould the relief depending upon the fact situation. In the obtaining factual scenario, the period has been over since last six years. There had been an order of status quo by this Court onhis repatriation to the parent department, on selection to higher post, he was given higher scale of pay as it was fixed keeping in view the pay scale drawn by him while he was working in the ex-cadre post. In that context, this Court opined that such fixation of pay was fully erroneous and, therefore, the authorities were within their domain to rectify it. Mr. Gonsalves, learned senior counsel would submit that here it was as tenure posting and, therefore, he is entitled to get the equivalent pay which he was holding as a tenure-post holder. The said distinction, on a first glance, may look attractive, but on a deeper scrutiny, has to pale into insignificance. Assuming he would have completed the entire tenure of five years, he would have definitely come back to his parent department. There is no rule or regulation that he will get the equivalent pay scale in his parent department. The normal rule relating to pay scale has to apply to avoid any kind of piquant and uncalled for situation. Therefore, the submission does not commend acceptation and accordingly we repel the same.