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

2. Shorn of unnecessary details, the facts which are requisite to be stated are that the 1st respondent was working as a Scientist E-II in the Central Mining Research Institute (Council of Scientific and Industrial Research). On 29.07.2003, he was appointed on deputation to the post of Controller General of Patents, Designs and Trade Marks ( (for short, CGPDTM). After serving there for one year, by order F.No. 8/52/2001-PP&C dated 31.8.2004, he was repatriated to his parent department. The said order was challenged before the tribunal contending, inter alia, that he could not have been pre-maturely repatriated to his parent department and there had been a violation of the principle of audi altram partem. The said stand of the 1st respondent was contested by the authorities of Union of India proponing, inter alia, that he had no right to continue in the post as he was on deputation. Be it stated, some reliefs were claimed with regard to the TA bills and salary for certain period. The tribunal accepted the stance put forth by the Union of India and dismissed the Original Application. However, as far as payment regarding T.A. and salary for certain period is concerned, the tribunal directed that the same should be decided by the respondents after due verification in accordance with law.3. Being dissatisfied with the aforesaid decision of the tribunal, the 1st respondent invoked the jurisdiction of the High Court under Article 226 and 227 of the Constitution of India. The High Court posed two questions, namely, whether the order F.No.8/52/2001-PP&C dated 31st August, 2004 issued by Under Secretary to the Government of India, Ministry of Commerce and Industry, Department of Industrial Policy & Promotion repatriating the petitioner to his parent department was illegal; and whether the petitioner had the right to continue as Controller General of Patents, Designs and Trade Marks.4. The High Court after posing the questions took note of the fact that the Union of India had issued an advertisement in the Employment News dated 20/26.10.2001 calling for applications from eligible candidates for appointment to the post of CGPDTM and the Ministry had proposed to fill up the post by transfer on deputation, including short-term contract. The 1st respondent, being eligible, applied through his parent department i.e. Central Mining Research Institute, Dhanbad and his selection was made by the Union Public Service Commission (for short, the UPSC) which held interview on 4.6.2002 and finding him suitable, recommended his name for appointment. The competent authority approved the appointment of the 1st respondent, the petitioner before the High Court, for the post of CGPDTM in the pay scale of Rs.18,400-500-22,400/- on deputation basis for a period of five years or until further orders, whichever was earlier from the date of assumption of the charge of the post. The said order was communicated vide letter no. 8/52/2001-PP&C (Vol.II) dated 23.6.2003 issued by the Deputy Secretary to the Government of India, Department of Industrial Policy and Promotion. Thereafter, a letter of appointment dated 11.8.2003 was issued to the 1st respondent in the name of the President, appointing him on deputation basis for a period of five years or until further orders, whichever was earlier.5. In pursuance of the aforesaid order of appointment, the 1st respondent joined the said post and continued to function, but after eleven months, the Under Secretary to the Government of India, Ministry of Commerce and Industry, Department of Industrial Policy and Promotion, issued an order dated F No. 8/52/2001-PP&C dated 31.8.2004 repatriating him to his parent department. The High Court, taking note of the factual backdrop, and the nature of the appointment of the 1st respondent, came to hold that his appointment was not a case of simplicter deputation; that the employer did not have the prerogative to get him repatriated to his parent department as the controversy fundamentally related to appointment and the source of appointment i.e. deputation on transfer; that the principles inhered under Articles 14 and 16 were violated, for the authorities did not disclose the ground for which such appointment had been disturbed by repatriating him to the parent department; that in the absence of any reasonable or valid ground, the order was bound to be treated as arbitrary thereby inviting the frown of Article 14 of the Constitution of India; and that the Under Secretary to the Government of India could not have passed the order of repatriation as the order of appointment was issued by the President of India. Being of this view, the High Court set aside the impugned order of repatriation and directed the writ petitioner to be reinstated in the post of CGPDTM on similar terms and conditions with all consequential benefits.

Reasoning:
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.