Union Of India & Anr vs S.N.Maity & Anr

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.

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.

9. On an anxious appreciation of the facts, which include issuance of an advertisement, selection process which led to eventual recommendation by the UPSC and the ultimate issue of Notification, it is extremely difficult to accept the submission of Mr. Tushar Mehta that it is a deputation by one department to another or to put it differently, the parent department had lent the services of the 1st respondent to the borrowing department. It is not a deputation simpliciter. The Notification by which the 1st respondent was appointed has a different nature and character. Mr. Gonsalves, learned senior counsel has commended us to the decision in Debesh Chandra Das V. Union of India[1]. In the said case, the appellant, a member of Indian Civil Service, was chosen by the Appointments Committee of the Cabinet to function as the Secretary, Department of Social Security and he continued in that Department. Thereafter, he received certain communications on June 20, 1966 and September 7, 1966 from the Cabinet Secretary, which he construed them as reduction in rank and challenged the same in a writ petition in the High Court of Calcutta on September 19, 1966. Many a ground was urged contending, inter alia, that there was reduction in rank. 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.

25. Consequently, the appeal is allowed to the extent indicated above. There shall be no order as to costs.

January 06, 2015

REPORTABLE