C.P. Gupta vs Union Of India And Ors.
1995 Latest Caselaw 707 Del

JUDGMENT

P.K. Bahri, J.

(1) The petitioner has brought this writ petition seeking quashment of the order dated August 11, 1995 by which she has been repatriated to her parent department and also for declaration that she be deemed to have been absorbed permanently in the post of Director of the Institute for Physically Handicapped under the Ministry of Welfare and for direction that respondents be restrained from repatriating her to her Parent Department in future.

(2) Facts leading to the filing of the present petition, in brief, are that a post of Director had fallen vacant in the said Institute for Physically Handicapped and an advertisement was issued inviting applications for appointment on transfer on deputation basis or on term contract for five years. Petitioner, who was holding a permanent post as Deputy Director of Training in the Directorate General of Employment & Training, Ministry of Labour, had applied for the said post of Director. After the interview, she was duly selected and was appointed to the said post of Director on deputation basis after the respondent had obtained the necessary permission from the Ministry concerned for making the appointment on deputation basis for a period of three years from the date of appointment or till January 31, 1994, whichever is earlier.

(3) The petitioner, however, was not repatriated to her Parent Department within the said stipulated period of deputation and the case of the petitioner is that she be deemed to have been confirmed and permanently absorbed in the post of Director and respondents have no legal right to have passed the impugned order repatriating her to her Parent Department. It is not necessary to refer to other averments made in the writ petition as the counsel for the petitioner has confined his arguments only to the right of the petitioner to be deemed to have been permanently absorbed in the post of Director with the respondent Institute.

(4) It is the case of the respondent, as is evident from the counter filed by Dr.P.S.Meena, Director, Ministry of Welfare, Government of India, that at no point of time the petitioner was permanently absorbed in the post of Director in the said Institute and that during the period of her deputation, the post of Director was sought to be filled by issuing advertisement in May 1993 and the petitioner and some other candidates were interviewed for the said post on October 26, 1993 but no suitable candidate was selected. Another advertisement was issued in February 1994 and again petitioner as well as other candidates were interviewed on June 22, 1994 but none was found suitable and again advertisement had been issued in response to which the petitioner and other candidates have applied in June 1995 and date for interview is yet to be fixed.

(5) It has been pleaded that deputation period of the petitioner had expired and the Parent Department of the petitioner had made a request that either the petitioner be repatriated on or before August 15, 1995 or she be deemed to have been absorbed with the respondent Institute and a decision was taken for repatriating her to her Parent Department and the petitioner had been avoiding to give charge of the post despite that order being issued and Dr.Meena had already been asked to look after the work of the Director of the said Institute as petitioner had made herself unavailable by leaving the headquarters even without taking any requisite permission.

(6) The short question which arises for decision in this writ petition is whether the respondents were right in passing the impugned order requiring the petitioner to be repatriated to her Parent Department or the plea of the petitioner that she be deemed to have been absorbed permanently with the respondent Institute is of any merit or not ?

(7) Both the parties have referred to Office Memorandum No.4(12)/85-P.& Public Witness . dated March 31, 1987 and Office Memorandum No.4/42/87-P. & Public Witness . dated April 19, 1988 issued by Ministry of Personnel, the P.G. and Pensions, Government of India. Reference is also made during the course of the arguments to the Office Memorandum No.28016/5/85/Estt.(C) dated January 31, 1986. Copies of these Office Memorandums appear on pages 392, 161 and 63 of the paper book. The Office Memorandum of January 31, 1986 dealt with the subject of appointment of Central Government servants in the Central Public Enterprises on immediate absorption basis and the terms and conditions thereof. It provided that normally, as laid down in the Office Memorandum dated March 6, 1985, the Central Government servants should be allowed to join the Central Public Enterprises only on immediate absorption basis except in special cases where the permission can be obtained for taking the services of Government servants on deputation basis. This circular came to be clarified by the circular dated March 31, 1987 which made it clear that the terms and conditions of Central Government employees in Central Public Sector Undertakings already in force would also apply to the Central Autonomous Bodies. Sub- clause Iv of this circular reads as follows:- (IV)In respect of officers who are already on deputation to autonomous bodies, the existing terms and conditions of their deputation will operate and no extension of deputation beyond the period specified in their deputation orders should be allowed. In case a Government employee does not return to his Parent Department during or after the sanctioned deputation period, he will be deemed to have been permanently absorbed in the autonomous body on the date of expiry of deputation period."

(8) In the Office Memorandum dated April 19, 1988, it was laid down that appointment of Government servants in the Central autonomous bodies shall be on immediate absorption basis but with the exceptions in respect of the posts indicated at serial Nos.1 to 6 and it was mentioned that procedure to be followed pursuant to the said guidelines will be that each autonomous body should seek exemption from the rule of immediate absorption for all posts or specified post or category of post, as the case may be, keeping in view the above guidelines by making a self- contained reference to this department excepting in cases where certain organizations/posts have already been exempted with the specific approval of this department. It further lays down that after the post or a category of posts is so exempted, the autonomous body/administrative ministry concerned shall be competent to take decision in individual cases.

(9) The contention of learned counsel for the petitioner, in brief, is that the respondents, with the approval of the Parent Department of the petitioner, had obtained the permission from the Ministry of Welfare for appointing the petitioner on the post of Director on transfer on deputation basis. Letter dated November 7, 1990 was issued in this respect and vide letter dated January 4, 1991, the necessary permission was given for three years from the date the post is actually filled or till January 31, 1994, whichever is earlier. He has urged that in view of the Office Memorandum dated March 31, 1987, particularly clause Iv, as the petitioner had not been repatriated on the expiry of her deputation period, petitioner should be deemed to have been permanently absorbed in the respondent autonomous Central Institute.

(10) The contention of learned counsel for the respondents, is that in terms of the Office Memorandum dated April 19, 1988, as the exemption has been obtained in respect of the post of Director for making the appointment on deputation basis, the further decision with regard to the petitioner rests with the Ministry governing the autonomous body in question and he laid emphasis on the words appearing in the Office Memorandum dated April 19, 1988 which are to the following effect:- "AFTER a post or category of posts is so exempted, the Autonomous Body/ Administrative Ministry concerned shall be competent to take decision in individual cases."

(11) It is no doubt true, as contended by learned counsel for the petitioner, that the Office Memorandum dated March 31, 1987 is not superseded vide Office Memorandum dated April 19, 1988. However, the question which arises for consideration is whether the case of the petitioner is covered by the aforesaid clause Iv of Office Memorandum dated March 31, 1987 or not.

(12) Learned counsel for respondent has argued that this clause pertains to only those officers who were already on deputation on the date this Office Memorandum was issued and it does not apply to the officers who are taken on deputation after coming into force of this Office Memorandum. He has urged that the terms of such officers would be taken into consideration in accordance with the orders passed by the Ministry concerned from time to time and there cannot be any deeming permanent absorption of such officers taken on deputation after the enforcement of this Office Memorandum dated March 31, 1987. He has urged that in the present case, the petitioner has been appointed on transfer on deputation basis in light of the exemption obtained under the terms of Office Memorandum dated April 19, 1988 and the said Office Memorandum clearly leaves the question of decision to be made in individual cases with the Autonomous Body/Administrative Ministry concerned and decision has been taken by the competent authority for repatriating the petitioner to her Parent Department and for making appointment to the post of Director on the basis of direct recruitment for which the advertisements have been issued from time to time and petitioner has taken chance for being selected for the post of Director by respondent to the said advertisements but, unfortunately, was not found suitable.

(13) Reading the two Office Memoranda together, we are of the view that the deeming permanent absorption envisaged in clause Iv in Office Memorandum dated March 31, 1987 is not applicable to the petitioner who came to be appointed on deputation basis on the basis of Office Memorandum dated April 19, 1988 which clearly stipulates taking of permission for exempting the post from the category of immediate absorption basis to the category of taking officers on deputation basis and the decision in respect of individual cases has been left to the autonomous body concerned or Administrative Ministry concerned. So, it is not possible to countenance the contention of the petitioner that on the expiry of the deputation period, the petitioner is deemed to have been permanently absorbed with the autonomous body in question.

(14) Mere fact that after the expiry of the period of deputation, no steps have been taken by the authorities to extend the period of deputation will not lead to any legal inference that her lien on the post held by her in her Parent Department stood terminated and the petitioner stood permanently absorbed with the respondent Institute. At no point of time, the Parent Department of the petitioner has terminated the lien of the petitioner. At no point of time, any order had been issued for permanent absorption of the petitioner with the respondent Institute.

(15) If that is so, it is not possible to hold that petitioner is deemed to have been permanently absorbed with the respondent Institute. The order of repatriating the petitioner to her Parent Department in the present circumstances does not appear to be suffering from any illegality.

(16) We, hence, find no merit in this writ petition which we hereby dismiss but we leave the parties to bear their own costs. The petitioner shall now join her Parent Department positively within seven days.

(17) The applications are also dismissed and the interim order is vacated.