U.O.I vs G.P. Roy
2009 Latest Caselaw 2335 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                          W.P.(C) No. 8128/2009

                                                    With

                                           W.P.(C) No. 5082/2007

%                                                            Reserved on: 14th May, 2009.

                                                            Pronounced on: 29th May ,2009.


1.      G.P. Roy                                                          ........Petitioners

                 Through:         Mr. G.D. Gupta Sr. Advocate with Mr. Arjun Chawla
                                  and Mr. S. Sharma,,

                                           VERSUS

        Secretary, BIFR & Anr.                                          ..........Respondent

                 Through:         Mr. H.K. Gangwani, Advocate

2.      U.O.I                                                             .....Petitioner

                                                   VERSUS

        G.P. Roy

CORAM:-

        THE HON'BLE MR. JUSTICE A.K. SIKRI

        THE HON'BLE MR. JUSTICE V.K.JAIN

        1. Whether Reporters of Local newspapers may be allowed to see the
           Judgment?       YES
        2. To be referred to the Reporter or not? YES
        3. Whether the Judgment should be reported in the Digest? YES

V.K.Jain, J.

1. On 01/02/02 the petitioner, who at that time was a permanent employee of

Hooghly Dock & Port Engineers Ltd., a public sector undertaking and was on

deputation with Ministry of Shipping as a Director, drawing basic pay of Rs.

13825/- in the pay scale of Rs. 12000-375-16500, applied for the post of Director

in BIFR, through there was no vacancy of Director in BIFR at time nor had BIFR

invited applications for the post of Director. Since the vacancy available in BIFR

at the time was for the post of Dy. Director, the petitioner was considered for that

post and accordingly he joined as Dy. Director on 15/07/02. At the time of

joining BIFR on deputation Sh. Roy informed that he was drawing pay of Rs.

13825/- in the pay scale of Rs. 1200-16500. However, he was appointed on

deputation against the post of Dy. Director in the pay scale of 10000-15320. On

the basis of representation made by him his pay was fixed at 13825 in the pay scale

of Rs.12000-16500. On a subsequent clarification it transpired that in his parent

organization the petitioner was drawing pay of Rs. 9600 in the pay scale of 7000-

275-8100-300-9600. Vide order dated 04/05/05 BIFR fixed the pay of the

petitioner at Rs. 10325 in the pay scale of Rs. 10000-15320 w.e.f. 15/07/02, after

representation of the petitioner for upgradation in the scale of Rs.12000-375-16500

was turned down by Department of Expenditure on the ground that there was no

functional justification for upgradation of the post and Mr. Roy had accepted the

post of Dy. Director willingly and knowing all the facts. The case of the petitioner

for pay protection was rejected in terms of para 5.2 of Government of India O.M.

dated 05/01/94 which allowed such protection if the appointment to both the ex-

cadre posts was in identical pay scales and deputationist had opted to draw pay in

the pay scale of the ex-cadre posts on both the occasions. Since pay scale of ex-

cadre post i.e. post of Dy. Director in BIFR was lower than that of the post held

by him on previous deputation his pay was to be fixed under the normal rules with

reference to the pay in present cadre and the protection of last pay scale could not

be allowed to him. The O.A. 1078/05 was filed through Sh. Roy challenging the

fixation order dated 04/05/05. O.A. was disposed of by the Tribunal directing the

respondents before it to afford opportunity to show cause to Sh. Roy and then

pass a speaking order after giving opportunity of hearing to Sh. Roy. Therefore his

pay was fixed at Rs. 10325 in the pay scale of Rs. 10000-15320 w.e.f. 15/07/02 by

a detailed and speaking order. Being aggrieved, Sh. Roy filed O.A. No. 1789/06

claiming placement in the scale of Director i.e. Rs. 14300-400-18300. Vide order

dated 15/03/07, the Tribunal set aside the order of downward revision of the pay

of petitioner. The order of the Tribunal has been challenged by UOI before this

Court in WP(C) No. 5082/07.

2. During pendency of the aforesaid O.A. the petitioner had filed M.A.

1980/06 seeking directions to BIFR to post him in the post of Director on the

ground that at the time of initial appointment he was assured that he would be

appointed as Director, once approval was received from the Government by

continuance of vacant post of Director. Vide order dated 15/03/2007, Central

Administrative Tribunal, while setting aside downward revision of pay of the

petitioner had declined to direct his appointment as Director and held that BIFR

should take steps for filling up post of the Director and the petitioner would be

free to apply for that.

3. Vide order dated 22/08/08, BIFR ordered repatriation of the petitioner to

his parent department. The petitioner filed O.A. 1851/08 before the Central

Administrative Tribunal challenging the order of repatriation. After initially staying

the operation of the order, the Tribunal vacated the stay vide its order dated

26/08/08. Thereupon another order was passed by BIFR on 14/01/09 directing

repatriation of the petitioner to his parent department. O.A. No. 1851/08 was

ultimately dismissed on 17/03/09. The order of the Tribunal has been challenged

in writ petition No. 8128/09.

4. Deputation is a tripartite agreement between the deputatitionist, lending

department and the borrowing department and cannot be extended unless all the

three are agreeable to it. Government of India, Department of P&T has from time

to time issued guidelines governing deputation of central employees to ex-cadre

post under Central/State Government and on foreign service to Central/State

PSUs/Autonomous bodies. Since the guidelines are binding upon Government

departments as well as on PSUs/Autonomous Bodies, any deputation including its

extension has to confirm to these guidelines. The latest guidelines governing

deputation have been issued vide O.M. No. 2/29/91-Estt.(Pay II) dated 25th

February, 2009 which inter alia stipulate as under :

Tenure of deputation/foreign service The period of deputation/foreign service shall be as per the Recruitment Rule of the ex-cadre post or 3 years in case no tenure regulations exist for the ex-cadre post.

In case where the period of deputation/foreign service prescribed in the RRs of the ex-cadre post is 3 years or less, the Administrative Ministry/borrowing Organisations may grant extension upto the 4th year after obtaining orders of their Secretary (in the Central Government)/Chief Secretary (in the State Government)/equivalent officer (in respect of other cases) and for the fifth year with the approval of the Minster of the borrowing Ministry/Department and in respect of other organizations, with the approval of the Minister of Ministry/Department with which they are administratively concerned.

The borrowing Ministries /Departments / Organizations may extend the period of deputation upto the fifth year where absolutely necessary in public interest, subject to the following conditions:

(i) where such extension is granted, it will be subject to the condition that no deputation(duty) allowance will be allowed beyond the forth year, if the official concerned has opted to draw deputation(duty)allowance.

(ii) the extension would be subject to the prior approval of the lending organization, the consent of the official concerned and wherever necessary, the approval of the UPSC/State Public Service Commission and Appointment Committee of Cabinet (ACC)

(iii) if the borrowing organization wishes to retain an officer beyond the prescribed tenure, it shall initiate action for seeking concurrence of lending organization, individual concerned etc. Six months before the date of expiry of tenure. In no case it should retain an official beyond the sanctioned term unless approval of the competent authority to grant further extension has been obtained.

No further extension shall be considered.

5. It is not in dispute that BIFR, as an Institution, has decided

to repatriate the petitioner to his parent department and persuant

thereto issued repatriation orders twice, firstly, on 22/08/08 and

secondly on 14/01/09. It was contended by the learned counsel

for the petitioner that as stated in the letter dated 25/09/08, written

by the Chairmen of BIFR to Secretary, Ministry of Shipping, Road

Transport and Highways, the order of repatriation of the petitioner

was passed because of non-receipt of NOC from his parent

department, but, since his parent department is now agreeable to

his continuance in BIFR, he should not be repatriated. We find no

merits in this contention. It is for BIFR, as an Institution, to decide

after taking approval, if required from the Government, whether or

not to extend the period of deputation of the petitioner with it.

Irrespective of the above referred letter, the fact remains that BIFR

has not extended the period of deputation of the petitioner. In any

case, since the guidelines issued by the department of DO&PT are

binding upon everyone including BIFR, parent office of the

petitioner as well as on the controlling Ministry of BIFR, the period

of deputation cannot be extended unless it confirms to the

instructions issued by Government of India and the requisite

approval in this regard is obtained from the competent authority.

6. A perusal of the guidelines on deputation, as extracted above, would show

that the normal period of deputation is up to three years, though it is permissible

to extend it upto 4th year after obtaining order of the concerned Secretary and upto

5th year with the approval of Minister of borrowing Ministry/Department. It is an

admitted fact that the petitioner joined BIFR on 15/07/02 he has, therefore spent

almost seven years in this organization. Therefore, it is not permissible either for

BIFR or for its controlling Ministry to grant further extension of the term of

deputation of the petitioner.

7. It was next contended by the learned counsel for the petitioner that at one

point of time the petitioner wanted pre-mature repatriation to his parent

department but BIFR did not relieve him and therefore he should not be

repatriated now. We do not find any force in this contention. Had the petitioner

insisted on repatriation, it would not have been possible for BIFR to retain him

without his consent. In any case, even if the at one point of time BIFR was not

inclined to pre-maturely relieve him to join his parent department that does not

and cannot come in the way of BIFR repatriating him at a later date. This is more

so, when no prejudice is shown to have been caused to the petitioner on account

of BIFR allegedly declining to pre-maturely repatriate him in the year 2003-04.

8. It was next contended by the learned counsel for the petitioner that as stated

in the letter dated 08/12/08 sent by CMO of Hooghly Dock& Port Engineers Ltd.

to the Secretary (Shipping), the parent office of the petitioner does not want him

any more and as is evident from the letter dated 08/12/08 his repatriation would

create unnecessary hindrance and interruption in the parent department and would

adversely influence and affect it. We are of the view that the respondent cannot be

directed to extend deputation of the petitioner and that too beyond the maximum

period prescribed under the guidelines issued by DO&PT merely because his

parent organization wants him to continue on deputation. There can be a number

of reasons for the parent organization of the petitioner wanting him to continue on

deputation and we need not to go into them as legally, the parent organization is

under an obligation not only to pay salary of the petitioner but also give him a

posting on his repatriation.

9. It was also contended by the leaned counsel for the petitioner that at the

time when the petitioner joined BIFR, he was given a clear assurance that he would

be adjusted/appointed against one vacant post of Director, as he fulfilled the

prescribed norms for appointment to the post of Director. In support of his

contention, he relied upon a office note dated 12/07/04 recorded by the Secretary

of BIFR in a file, noting therein, that the petitioner has been persuaded to join

BIFR against the vacant post of Dy. Director in the scale of 10000-325-15200 with

an understanding that in due course when sanction is received from the

Government for continuance of the post of Director, he would be adjusted against

one of the said posts. This note in our view is of no help to the petitioner for two

reasons, firstly, as further recorded in the this very note the Government did not

agree to further continuance of the vacant post of Director in BIFR due to repeal

of SICA and secondly because there was no assurance conveyed to the petitioner

to permanently absorb him in BIFR. If the petitioner did not want to continue as

Dy. Director, nothing prevented him from going back to his parent organization,

but, he cannot seek either absorption or his further continuance in BIFR without

BIFR deciding to extend his deputation. Moreover, as held by the Hon'ble

Supreme Court in Vashisht v/s State of Punjab 1963 SC 395, noting in a office

file would not confer any right upon a person. The petitioner cannot claim

extension of his deputation without bringing his case within the ambit of

guidelines issued by DO&PT governing deputation of government servants. The

eligibility of the petitioner for appointment as Director in BIFR has no bearing on

his repatriation to his parent organization and therefore has no consequences.

10. In Kunal Nanda v/s Union of India and Anr. (2000) 5 SCC 362, the

appellant, a member of CRPF joined the service of CBI on deputation as Assistant

Sub-Inspector and his deputation was extended from time to time. His borrowing

department expressed inclination to permanently absorb him and lending

department also conveyed its clearance thereto. However, for certain reasons, the

proposed absorption did not materialise and the petitioner was repatriated to his

parent department as the total period of deputation could not have been for more

than five years. The petitioner filed a petition before the Central Administrative

Tribunal seeking absorption in CBI. The Tribunal as well as the Hon'ble High

Court held that the CBI could not compelled to absorb him. The Hon'ble

Supreme Court, while examining legal position of the subject matter, held as

under:-

"On the legal submission also made there are no merits whatsoever. It is well settled that unless the claim of the deputationist for a permanent absorption in the department where he works on deputation is based upon any statutory rule, regulation or order having the force of law, a deplutationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation."

11. In Mahesh Kumar Parmar V/s S.I.G. of police (2002) 9 SCC, 455, the

Hon'ble Supreme Court observed that "unless rules contemplate permanent

absorption of employees on deputation no mandamus can be issued". In the

present case the petitioner is not even claiming absorption. This is not a case

where Rules of BIFR provide for permanent absorption and under those rules he

is eligible to be considered for permanent absorption. The petitioner therefore has

no legal right to continue on deputation with BIFR. We therefore find no ground

to interfere with the order of Tribunal in this regard. The petitioner has also

sought direction to the respondent to fill up regular post of Director and

place/consider him against that post. In our opinion no directions can be given by

this Court to the respondents to fill up the post of Director. Even if there are

vacant posts of Director as claimed by the petitioner, he has no right to seek

directions to the respondent to fill them up. As right noted by the Tribunal, it is

the prerogative of the respondent to decide whether to fill up those posts and if so,

at what time. It goes without saying that if and when steps are taken by the

respondent to fill up the post of Director in BIFR, the petitioner would be entitled

to apply for the same and he along with other eligible candidates has to be

considered in accordance with relevant rules and regulations.

12. A perusal of the letter dated 10/07/02 whereby Sh. G.P. Roy was appointed

to the post of Dy. Director in the BIFR on reverse deputation basis shows that he

was selected for appointment as Dy. Director in the pay scale of 10000-15320 and

the tenure of deputation as well as other terms and conditions were to be governed

by DO&PT O.M. dated 05/01/94 as amended from time to time. Vide joining

report dated 15/07/02 Sh. Roy disclosed that his basic pay was in the scale of Rs.

12000-16500 and that he was appointed as Dy. Director in the pay scale of 10000-

325-15320. On the representations made by the petitioner seeking protection of

his last drawn pay of Rs. 13875 in the pay scale of Rs. 1200-16500, Mr. Roy was

allowed to draw salary of basic pay of Rs. 13875.

A perusal of the note dated 05/08/03 of Sh. Vinay Vashisht, Secretary BIFR

shows that at the time of joining BIFR Sh. Roy had accepted to draw pay in the

pay scale of pay attached to Dy. Director, to be fixed as per last pay details basic

pay of Rs. 13875 per month (in the pay scale of Rs. 12000-16500). It also shows

that BIFR had recommended protection of the last pay drawn by Sh. Roy as

Director in Ministry of Shipping in the pay scale of Rs. 1200-16500. Similar

recommendation was made vide note dated 12/07/04. Since the DO&PT did not

agree to protection of last drawn pay of Sh. Roy a proposal was also sent to BIFR

for upgradation of one post of Dy. Director to the grade of Dy. Secretary as

personal to Mr. G.P. Roy w.e.f. 15/07/02 till Sh. Roy was repatriated to his parent

office. This recommendation has been made vide note dated 14/02/05 sent by

Secretary BIFR, Department of Expenditure. This, however, was not agreed to by

the Government.

13. Keeping in view the fact that (i) Sh. G.P. Roy on appointment in BIFR, had

opted to draw pay in the scale attached to the post of Dy. Director to be fixed as

per his last drawn pay of Rs. 13875 (1200-16500), and admittedly BIFR had been

paying him accordingly and (ii) at the time of joining BIFR Sh. Roy was already

working in the pay scale of Rs. 12000-16500 and had he been told that he would

not be allowed protection of his last drawn pay, he might not have joined BIFR

and might have continued as Director in the Ministry in the pay scale of 12000-

16500, do not deem it appropriate to interfere with the order of Tribunal in

exercise of our extraordinary jurisdiction under Article 226 of the Constitution, to

the extent it relates to the salary paid to him prior to issue of order dated 4th May

2005. We would like to add that there has been no misrepresentation on the post

of Mr. G.P. Roy as he did not claim that he was drawing basic pay of Rs. 13875 in

the pay scale of Rs. 12000-16500 in his parent office and it was very much known

to BIFR at the time of appointment of Sh. Roy that he was on deputation from

Hooghly Dock& Port Engineers Ltd. to the Ministry and, therefore, his last drawn

pay was in the post of Director in the Ministry and not the pay in his parent

department.

14. Once the order dated 04.05.05 was issued fixing the pay of the petitioner at

Rs. 10325/- in the pay scale of Rs. 10000-325-15320 in terms of Government of

India O.M. dated 05.01.1994, the petitioner came to know that BIFR was not

agreeable to permit him to continue drawing basic pay of Rs. 13,875/- in the Pay

Scale of Rs. 12,000-16,500/-. If he did not want to continue on that pay, it was

open to him to insist upon repatriation to his present cadre. However, instead of

doing that the petitioner chose to contest the decision of BIFR before the Central

Administrative Tribunal and he continued to draw salary in the pay scale of Rs.

12,000 - 16,500/- on the basis of the order of the Tribunal. Since we have come

to the conclusion that in view of O.M. dated 05.01.1994, the petitioner was not

entitled to draw pay in the Pay Scale of Rs.12,000-16,500/-, we are of the view that

he cannot be allowed to retain benefit of excess payment made to him after

04.05.2005. The respondents in the W.P.(C) NO. 8128/2009, would therefore be

entitled to recover the excess payment made by them to the petitioner for the

period subsequent to 04.05.2005. As noted earlier, the order of appointment of

Shri Roy in BIFR stipulated that his pay would be fixed in terms of OM dated

05.01.1994. Hence, he was not entitled to a pay higher than that which came to be

fixed vide order dated 4.5.05, in terms of the aforesaid OM. This is not his case

that under OM dated 05.01.1994, his pay was required to be fixed at more than

what it has been fixed as per of dated 4.5.1995.

15. For the reasons given above, we dismiss Writ Petition No. 8128/2009 filed

by Sh. G.P. Roy and partly allow Writ Petition No. 5082/2007 filed by Union of

India to the extent indicated in the preceding paragraph.

(V.K. JAIN) JUDGE

(A.K. SIKRI) JUDGE

May 29, 2009.

mr