V. Radhakrishnan Murthy vs Secretary, National Council Of ...
1970 Latest Caselaw 283 Del

JUDGMENT

S.N. Shankar, J.

(1) By this petition under Art. 226 of theConstitution, the petitioner has. prayed that the. order dated . 23/08/1969, reliving him of his duties of the post held by him in theRegional College of Education, Bhopal, with effect from 31/08/1969 and directing him to report to the Commandant, Army Education Corps Training College and Centre, Pachmarhi, be quashed.Respondents to the petition were the Secretary, National Council ofEducational Research and Training, respondent No. 1, Regional College of Education, Bhopal and Union of India, respondents 2 and 3.Later on, however, the petitioner prayed for the addition of Unionof India through the Secretary, Ministry of defense also and on theprayer being granted, put in an amended petition. Affidavits inopposition have now been filed by respondent No. 1 through itsSecretary as also by respondent No. 2 in so far as the allegations ofmala-fides against him are concerned as also by respondent No. 3through Major B. N. Sharma.

(2) The relevant facts briefly are that in the year 1952, the petitionerwas employed as an Artist (Instructor) in the Army Education CorpsTraining College and Centre set up by the Ministry of defense,Government of India, hereinafter called "the Government TrainingCollege" for facility of reference. In 1964, respondent No. 1, a Societyregistered under the Societies Registration Act, 1860. with its Managing Committee consisting of representatives of Ministry of Educationand some Universities, advertised lor the post of Artist (AudioVisual). The petitioner applied in response to this advertisementthrough the Commandant, Army Education Corps Training Collegeand Centre. After interview, he was selected by a Selection Committee and was appointed to the post of Artist (Audio Visual) in theRegional College of Education, Bhopal (hereafter referred to as "theRegional College") run and maintained by the registered Society andaffiliated to Vikram University, on a salary of Rs. 400.00 per month inthe scale of Rs. 400-30-840-EB-40-800 with effect from 1/07/1965, in a temporary capacity and was put on probation for a periodof two years. After completion of the period of probation, the petitioner continued to work in the Regional College. On 23/08/1969, he was served with the impugned order relieving him from theduties of the post held by him and directing him to report to theCommandant, Army Education Corps Training College and Centre atPachmarhi. The petitioner contends that this order of respondent No.1 is illegal and ultra-vires and deserves to bs quashed for reasonsmentioned in the petition.

(3) In the Return filed on behalf of respondents 1 and 2 it was urged,amongst others, that the petitioner was taken on deputation by theCouncil from the Government College find he had now been revertedback to his parent Department and as such there was no dismissal orreduction in rank as alleged. and that though the Regional Collegewas one of the colleges affiliated to the Vikram University, it was notsubject to the privileges of the University and that the RegionalCollege was subject to the supervision and inspection of the Universityunder S. 16 clauses (6) and (7) of the Vikram University Act andthat the terms and conditions of service of the staff of this Collegewere governed by the rules and regulations which were applicable toGovernment servants of the Government of India and that the petitioner had no cause of action for the relief claimed. It was furthercontended that respondent No, I being a registered Society was notamenable to the writ jurisdiction of the Court. In the counter-affidavitfiled on behalf of the Union of India, it was admitted that the petitioner held the post of a permanent Artist in the Government TrainingCollege but it was maintained that he held this post till 30/06/1965,when he was relieved to take up "his new assignment" in the RegionalCollege run by the registered Society and that his lien on the post inthe Government College had not been terminated and was alwaysthere.

(4) Shri S. K. Puri, appearing on behalf of the petitioner, raised thefollowing contention in support of the relief claimed in the petition : (1 ) That the petitioner did not hold a lien on his parent jobin the Government Training College and the impugnedorder relieving him of the post held by him in theRegional College without notice or an opportunity of being heard and directing him to report to the Conimondant, A.E.C. Training College and Centre was whollyillegal and un-warranted.(2) That the petitioner had relinquished his lien on the parent job in the Government College and in any case nosuch lien could subsist after the expiry of two years from the date of his joining the Regional College.(3) That the petitioner in any case having been appointed isa teacher of the Regional College was entitled to theprotection of statute II-B of the Vikram UniversityCalendar framed under S. 27 (h) of the Act.(4) That the petitioner under all circumstances was entitledto the benefit of the provisions of Art, 311 of the Constitution and the relevant rules contained in the Civil ServiceRegulations.(5) That the impugned order in any view was contrary to theprinciples of natural justice.

(5) Before dealing with the contentions on merits it will be appropriateto notice the preliminary objection raised by respondents 1 and 2that the registered Society was not amenable to writ jurisdiction ofthe Court and the petition deserved to be dismissed on this shortground. I see no merits in this contention, A similar objection wasraised in respect of this very Society in Shital Prasad Tyagi v. ThePrincipal, Central Institute of Education, I.L.R. (1969 Delhi 1184)(1)Citing Mohinder Singh v. Union of India and Amir-i-Jamia and others v. Deshrath Raj Kapila (L.P.A. 33 of1968, decided on 25-11-1968),(3) the Bench held that a writ couldbe issued against this Society. In Shital Prusud's case, the argumentraised was precisely the same as is being repeated now, namely,that the Society did not exercise any statutory powers and had notbeen created by the Statute and was, therefore, not subject to thesupervisory jurisdiction of this Court under Art, 226 of the Constitution but it did not find favor with this Court. The preliminaryobjection, therefore, has no force and has to be repelled.

(6) Coming now to the merits of the controversy, I find that Annexure'B' is the proforma of the application for the post advertised by theCouncil, It stated that there was only one vacancy at Bhopal andthat the scale of pay for this post was Rs. 400-30-640-EB-40-800.The qualifications for the post were also mentioned in it. It is admitted between the parties that in pursuance of the advertisement for thepost, the petitioner applied and was selected. Annexure 'E' is the order issued by the Secretary of the Council appointing the petitionerto the advertised post on a pay of Rs. 400.00 per month with effect from 1/07/1965. It reads as under : "NO.F-7-197/65 RCEU/698NATIONAL Council Of Educationalresearch And TRAINING114-SUNDER NAGAR.NEW DELHI-11ORDERThe Director, National Council of Educational Research& Training, is pleased to appoint Shri V. RadhakrishnaMurthy to the post of Artist (Audio-Visual) in the RegionalCollege of Educational Research & Training on a pay ofRs. 400 per month in the scale of Rs. 400-30-640-EB-40-800 with effect from 1/07/1965 in a temporary capacityand until further orders.sd/- M. GUPTAfor SecretaryShri V, Radhakrishna Murthy,Artist (Audio-Visual) Regional College of Education.Bhopal.Copy to:--1. The Principal, Regional College of Education, Bhopal.The requisite formalities should please be completedas suggested in this Council's Memoranda No. F. 1/12.0062NCE. 2 dated the 2/06/1962, and 24thJuly, 63 and subsequent reference e.g. a check-up andsupply of attested copies of the certificates of theofficers academic qualifications/experience, submissionof annual assessment reports, verification of characterantecedents, etc,2, Chid' Accounts Officer, N.C.E.R.T., with a copy ofCharge report and medical report.1253. Comdt. Aec Training College and Centre, Pachmarhi(Madhya Pradesh).for Secretary."

(7) This letter of appointment makes no reference to the petitioner beingon deputation. And we heve, therefore, to look to the other evidenceand attending circunnstances to sec if this appointment of the petitionerwas by way of deputations. Appendix 31, according to Chaudhri's compilation of the Civil Service Regulations contains the orders that governthe grant of deputation (duty) allowance to Central Government employees transferred on deputation to other Government departments orBodies (incorporated or not) wholly or substantially owned or controlled by the Government. Para (1) (i) of this Appendix providesthat the term "deputation" will cover only appointments made bytransfer on temporary basis. Appointments of serving Governmentservants made either by promotion or by direct recruitment in competition with open market candidates, whether on a permanent or temporary basis, will not be regarded as 'deputation'. The admitted fact,therefore, that the post was advertised by the Council and the petitioner applied for the same and was selected after interview by a dulyconstituted Selection Committee and then appointed in terms of theletter Annexure 'E' initially support the petitioner's contention thathe was a direct appointee to the Regional College and that his serviceshad not been transferred or loaned out to the Council by way ofdeputation.

(8) The petitioner has produced on record copy of a certificate dated 27/05/1965, Annexure 'G' signed by him and countersigned by anOfficial of the Government College. It reads as under: "1.I, No. 11 Shri V. Radhakrishnan (Artist)hereby certify that 1 accept the appointment offered to meby the National Council of Educational Research and Training (Regional College Unit), New Delhi vide letter No.F. 7-197/65-RCEV dated Nil on the terms and conditionsmentioned therein.2. I further certify that I know fully well that in theevent of my appointment in the new post, T am not entitledfor retention of lien etc. on the present post of Artist at theAEC Training College and Centre, Pachmarhi and willnot make any claim for the same in the future.Signature : sd/- V. RadhakrishnanArtistPACHMARHI (MP)27 May 65Countersigned'sd/- CaptainAdjutantAEC Training College & Centrepachmarhi (MP)27 May 65. . .".

(9) The factum and genunieness of this Certificate is not disputed bythe respondents. It clearly shows that before relieving the petitionerfrom his post in the Government College he was asked to confirmthat in case of his appointment in the new post for which he hadapplied he would not be entitled to the retention of lien on the postof Artist held by him at the Government Training College andthat he will not make any claim in respect of it in the future. Afterobtaining this certificate, the Government College issued to him thefinal no-demand-certificate dated 30/06/1965, copy Annexure ''H".The obtaining of the certificate dated 27/05/1965, Annexure "G"as well as the issuance of no no-demand-certificate thereafter bear outthe petitioner's contention that when he took up the appointmentwith the Regional College he had no right, title or interest left thathe could enforce in respect .of his post in the Government Collegeand there was no question at that time of his being sent ondeputation.

(10) The petitioner has further produced along with the petition,Annexure "Z" which is a copy of office memorandum dated 22/01/1966. from the Ministry of Home Affairs dealing with the applications of Central Government servants for posts in Public Sectorundertakings, autonomous bodies etc. Both the petitioner and therespondents have placed reliance on difference parts of this memorandum. The preamble of the memorandum states that the Government had decided that permanent Government servants selected forappointment in Public Sector undertakings or automous semi-Government organisations should be allowed to retain lien on their permanentposts for a period of two years or till they are permanently absorbedin the Undertaking etc. which ever is earlier subject to conditionsmentioned there under. It is the case of the petitioner that in casethe petitioner is considered for any reason to have retained a lienon his post in the Government College it could not subsist beyondthe period of two years according to the Memorandum. Referenceis made to clause (v) of this memorandum on behalf of the respondents. This clause provides that if the Government servant is notpermanently absorbed within a period of two years from the dateof his appointment in the Public Sector Undertaking or the autonomoussemi-Government organisation, he should immediately on the expiryof this period either resign from Government service or revert to hisparent office. It is urged on behalf of the respondents that the petitioner having not resigned in compliance with clause (v) his lien shouldbe deemed to have continued. The preamble part of the memorandum indicates that in the normal course the maximum period fixedby the Government for retention of lien in case of such appointmentsas the present one is two years. The petitioner admittedly served theRegional College for more than two years. Prima-facie, therefore,according to this memorandum, he was not entitled to the retentionof lien on this post in the Government College and the burden layheavily on the respondents to show that in this case inspite of thisavowed policy of the Government, his lien continued to subsist. Reference to cl. (v) of this memorandum and the argument that becausethe petitioner did not resign, therefore, his lien should be deemed to havecontinued cannot be accepted in the facts of this case. This clause ofmemorandum reads as under : "If the Government Servant is not permanently absorbedwithin a period of two years from the date of his appoint"ment in the public sector/undertaking/an autonomous semi-Government organisation as indicated at (iii) above, heshould, immediately on expiry of the said period of twoyears, either resign from Government Service or revert tohis parent office,"

(11) The petitioner, as stated earlier, had already given certificate (Annexure 'G') certifying that will not claim his lien and, therefore nofurther resignation was called for in this case. The question of his tendering any further resignation in the circumstances of the case did nutarise. Clause (v) of this Memorandum thus does not help the respondents. This memorandum of the Home Ministry, therefore, alsosupports the petitioner's case that he no more held a lien on the postin the Government College.

(12) There is yet another angle from which the matter has to beexamined. According to the orders governing the grant of deputationallowance as per Appendix 31 of Chaudhri's compilation of the CivilService Regulations referred to already, the deputation (duty) allowance has been fixed at a uniform rate of 20 per cent of the employee'sbasic pay subject to a maximum of Rs. 300.00 per mensem. Thisdeputation allowance, it has been provided in Gimf Memo No. F-10(24)-E/III/60 dated 20/03/1962 also referred to in Chauduri'scompilation is to be deemed to be the special pay as defined inFundamental Rules. The rate of 20 per cent has subsequently beenincreased to 33.1/3 per cent in case of employees in receipt of basicpay of and below Rs. 300.00. The pay of the deputationist has to befixed in accordance with the prescribed priciples. Gimf Memo No. F-10(24)-East/III/60 dated 28/03/1962, then (page 286 ofChaudhri's compilation of Civil Service Regulations, 6th Ed.) providedas under:- "Aquestion has been raised whether the application ofthe restriction of pay below the minimum of the scale ofpay of the deputation post envisaged in para 3 of order No.(1) above is to be watched by the borrowing authority orby the landing authority."

(13) This question has been considered carefully and it hasbeen decided that the deputing authority should watch thatan officer on deputation does not get an abnormal increasein pay on account of the deputation and should also decidethe manner in which pay on deputation should be restricted.In the case of original deputation the exercise "of suchwatch is not difficult The lending authority can indicate thepay to be given. But difficulty will arise when a person alreadyon deputation is promoted to another post by the borrowing authority. In cases the borrowing authority shouldobtain the concurrence of the lending authority prior to thepromotion so that the letter may decide how pay in thehigher post should be regulated."

(14) The second eventuality envisaged in this Memo of promotion of the petitioner by the borrowing authority, did not arise in this case, butas enjoined by this Memo the deputing authority was bound to seeto the manner in which the pay of the petitioner was being regulated ifwas sent on deputation. Nothing has been placed on the record to showthat the deputing authority in the case did anything of that sort. Nomaterial has been brought to my notice to indicate that the deputingauthority in compliance with these instructions took any step to fixthe pay of the petitioner in the new post to which he was appointed.On the contrary, as stated earlier, the Regional College had alreadyfixed its scale of pay as advertised and the petitioner was appointedto the new post on this basis irrespective of his pay in the parentpost.

(15) Annexed to Appendix 33. referred to above is also prescribedform of a memo of deputation containing the standard terms of deputation for officers deputed from Centre to the State Governments ete,It has certain columns which have to be filled in. Column 1 and 2of this memorandum which are relevant for purposes of the presentcontroversy read as under : (1)"PERIOD Of Deputation ................years from..................(Date to be given).(2) Pay (i) (if the transfer is in the public interestas defined in the Ministry of Finance O.M. No. F. 10(24) -E/111/60, dated 4-5-61).During the period of deputation, Shri..............will have the option cither to get his pay fixed in the deputation post under the operation of the normal rules or todraw pay of the post held by him in his parent department plus a deputation (duty) allowance in accordancewith and subject to the conditions of the Ministry of FinanceOffice Memorandum No, 10(24)-E/III/ 60 dated 4/05/1961, as modified from time to time and such other generalor special orders issued by the Ministry of Finance underpara (iii) of that Office Memorandum.(ii) If the transfer is not in the public interestDuring the period of deputation "Shri..............will be entitled to pay in the scale of the post of the ......due' under the operation of normal rules."

(16) No such memo containing the terms of deputation is shown to havebeen drawn up in the case of the petitioner when his services are allegedto have been loaned to the Regional College fixing either period ofhis deputation or his pay.

(17) Shri Deepak Chaudhry appearing on behalf of the respondents,conceded that no pay of the. petitioner had so far been fixed by thedeputing authority. He had also to admit that in terms of Appendix31, the petitioner would not be entitled to any deputation allowancemore than what was permissible to him under the orders, referred toabove, (namely, the maximum of 33.01/3 per cent of his basic pay inthe parent department). Calculated at this rate, it was clear that thepay actually drawn and received by him in the Regional College wasmuch more. The learned counsel, therefore, said that the extra payment so received by the petitioner during his period of service in theRegional College will have to be refunded by him. It. is not possibleto accept such a situation. A specific procedure to be adopted andthe formalities to be complied with, referred to above, have been laiddown by the appropriate authority and it was not disputed that theywere applicable to the present case. If this was really a deputationit has to be in accordance with this procedure. The question of deputation has to be decided by the deputing authority at the time when theservices of the Government Servant are lent on deputation. No ruleor order has been brought to my notice which could enable the deputingauthority to adopt any other course and to defer the matter for anindefinite period for no reasonable excuse and then suddenly turn aroundone fine morning to fix the pay and claim refund as suggested by thelearned counsel.

(18) The learned counsel then contended that after signing the certificateAnnexure "G" referred above, the petitioner, by his letter dated 6/ 7/06/1965 (Annexure R2) addressed to the Secretary of the Councilhimself, stated that as the service of the Regional College advertised bythe Council was not a Government Service the question of his retaininglien on the Government College post was yet to be resolved by theGovernment, Ministry of defense, and that he hoped to get a lien onthis post. He submitted that this showed that the petitioner had notin fact relinquished his lien on the post and should, therefore, beconsidered to have joined his new post in the Regional College as ondeputation. It is true that in this letter the petitioner did make thestatement referred to by the learned counsel but this does not take awaythe fact that betore writing this letter he had already issued the Certificate of relinquishment which was final between the parties and wasnever agreed by mutual consent to be cancelled or revoked. It wasexplained by the learned counsel for the petitioner that this letter (R-2)was in fact in reply to the letter of the Council dated 5/06/1965,to the Director of Health Services, Madhya Pradesh, Indore (Annexure'T') copy endorsed to the petitioner requiring him to get himself examined by a Medical Board and that the main object of the petitionerin claiming to assert the lien was to avoid the risk of this examinationby the Medical Board as he, was required to do so and that the petitioner hoped that in case his contention of still being a Governmentservant prevailed, no second medical examination may be necessary.Be that as it may, there is nothing on the file to show, as stated earlier,that the. petitioner and the Government Training College authoritiesagreed to the cancellation of the relinquishment certificate. Annexure'G'. The submission, therefore, that the letter Annexure R-2 showedthat the petitioner had not relinquished the lien on his former postcannot be accepted.

(19) Reliance in support of the same submission was also placed by thelearned counsel on another letter issued by the Vice-chief of the ArmyStaff to the Commandant of the Government College dated 22/05/1965, Annexure R-3. In this letter the Vice-chief of the Army Staff saidthat as the Council was an autonomous organisation and the serviceunder the Council was not a Govt. service the question of retention oflien by the petitioner on the permanent post of Artist at the GovernmentCollege may not arise, but it was added that this will be clarified later.Emphasis was placed on the later sentence to urge that the question 'ofrelinquishment of lien by the petitioner was still under consideration.

(20) This leter rather than helping the respondents, supports the contentionof the petitione.r that 'at the time of writing this letter (dated 22/05/1965) it was the view of the. Government that in a case of this kindthe question of retention of lien by the Government Servant on thepermanent post did not arise. Subsequent to the writing of this letteron 27/05/1965, the relinquishment certificate Annexure 'G' was takenfrom the petitioner. This letter, therefore, does not help the respondents.

(21) It is not the case of the respondents 1 and 2 that the Services of the petitioner in the Regional College, Bhopal, were terminated by theimpugned order. This order was passed on the 'assumption that the petitioner was a deputationist serving in the Regional College and assuch had to revert back to the Government Training College. Thisassumption being not correct for reasons that I have already stated, theimpugned order cannot be sustained. These respondents, will, therefore, reconsider the position in the light of the above finding and dealwith the petitioner appropriately in accordance with law.

(22) In view of the conclusion that I have reached the other contentions raised by Shri Puri do not need consideration.

(23) Civil Writ 1064 of 1969 is, therefore, accepted in the above termsand the impugned order passed by respondents 1 and 2 is quashed.In the circumstances of the case, the parties are left to bear their own costs.