Rajesh Kumar Gupta vs National Council For Teacher ...
2015 Latest Caselaw 842 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P.(C) No. 932/2015

%                                                    30th January, 2015

RAJESH KUMAR GUPTA                                         ..... Petitioner

                             Through:    Mr. Amitesh Kumar, Ms. Priti
                                         Kumari and Mr. Shashank Shekhar
                                         Singh, Advs.

                    versus

NATIONAL COUNCIL FOR TEACHER EDUCATION & ORS.
                                       ..... Respondents

Through: Mr. A.K.Behera, Adv. for R-1.

Mr. Amit Mahajan, CGSC with Mr. Nitya Sharma, Ms. Nidhi Raman and Ms. Nikita Khetrapal, Advs. for R-2.

Mr. Sandeep S. Duggal, Mr. Yogesh Saini for Mr. V.K.Tandon, Adv. for R-4.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition filed under Article 226 of the Constitution

of India, petitioner impugns the order dated 22.1.2015 whereby the

petitioner has been relieved of his duties from National Council for Teacher

Education/respondent no.1, and which is the deputationist employer, and the

petitioner has thereby been asked to report to his parent department.

Petitioner seeks the relief of continuation on deputation with the respondent

no.1 for six months w.e.f 1.2.2015 as per the arguments addressed before

this Court.

2. Petitioner applied for working as an Under Secretary/Research

Officer with the respondent no.1 on deputation and he was employed by the

respondent no.1 on deputation with it for a period of one year w.e.f

17.7.2013 on the basis of the letter of the respondent no.1 dated 17.7.2013.

This letter dated 17.7.2013 reads as under:-

       "F.No.5-6/2012/NCTE/Estt.                   July 17,2013

       To
       The Deputy Director of Education
       Distt. North West-A
       B L Block, Shalimar Bagh
       Delhi

Sub: Recruitment to the post of Under Secretary/Research Officer in the PB III 15600-39100 alongwith Grade pay scale of Rs. 6600/- in the National Council for Teacher Education on deputation/short term contract basis (on Foreign Service terms)

Sir, I am directed to invite your kind attention to your letter No.F.DNWA/Admn/2011/7033 dated 28th January, 2013 vide which application of Dr. Rajesh Kumar Gupta, Lecturer (Pol. Science), was forward for the post mentioned above and to say that Dr. Gupta has

been selected for appointment as Under Secretary/Research Officer in the PB III 15600-39100 along with Grade pay scale of Rs.6600/- in the National Council of Teacher Education on deputation basis, initially for a period of one year, extendable upto three years on year to year basis.

The terms and conditions for the deputation will be governed by the provisions contained in the Department of Personnel & Training OM No. 6/8/2009-Estt (Pay-II) dated 17th June, 2010. Dr. Rajesh Kumar Gupta can be posted at NCTE (Hqrs.) Delhi or in any of the offices of the Regional Committees, located at Jaipur, Bangalore, Bhubneswar and Bhopal.

3. Dr. Gupta may be relieved so as to enable him to join the above mentioned post and he may be advised to report to the Member Secretary, NCTE, Wing II, Hans Bhawan, 1, Bahadur Shah Zafar Marg, New Delhi-110002, latest by 12th August, 2013." (underlining added)

3. A reading of the first para of the aforesaid letter dated

17.7.2013 makes it clear that deputation was initially for one year and which

was extendable up to three years on year to year basis. Petitioner has acted

in terms of this letter and therefore in my opinion, it is not permissible for

the petitioner to approbate and reprobate and claim that petitioner has in fact

an automatic right of continuing deputation for three years as was originally

argued and which argument was given up to argue that the petitioner should

now get extended period of deputation of six months from 1.2.2015 in view

of the fact that extension could only have been on year to year basis on the

basis of the aforesaid letter dated 17.7.2013.

4. The initial period of deputation of one year of the petitioner

came to an end on 31.7.2014 and petitioner at that stage appeared that he

was not interested to continue with the deputation and he had requested for

repatriation to his parent department, however, the respondent no.1 vide its

office order dated 4.8.2014 extended the deputation tenure of the petitioner

for six months till further orders whichever is earlier.

5. No doubt, extension of tenure in terms of the original

appointment letter dated 17.7.2013 could have only been made on yearly

basis however, it is noted that the petitioner acted upon the extension order

of six months dated 4.8.2014. It was perfectly possible for the petitioner to

reject the extension of six months at that stage in August 2014 itself on the

ground that it was only for six months and not one year, but, the petitioner

did not seek repatriation then and instead acted upon the extension order of

six months dated 4.8.2014. Once the petitioner takes benefit of appointment

and continues on deputation only for six months in terms of the office order

dated 4.8.2014, thereafter the petitioner cannot blow hot and cold at the

same time by taking benefit of extension of six months given vide office

order dated 4.8.2014 but at the end of the period of six months, thereafter to

claim that extension for six months is not valid because extension had to be

for one year. Therefore, this argument of the petitioner is rejected on account

of the petitioner having taken the benefit of six months deputation tenure in

terms of the office order of respondent no.1 dated 4.8.2014.

6. Learned counsel for the petitioner argued that in fact the

petitioner should be continued in tenure on deputation with the respondent

no.1 at least for six months w.e.f 1.2.2015 and which extension is not

granted because of the malice attributable to the Chairman of the respondent

no.1 inasmuch as petitioner has raised issues of financial irregularities in

certain departments of respondent no.1. Reliance is placed by the petitioner

upon para 32 of the judgment of the Supreme Court in the case of Union of

India through Govt. of Pandicherry and Another Vs. V. Ramakrishnan &

Ors. (2005) 8 SCC 394, to argue that ordinarily there is no right to extension

of tenure however, the order of reversion can be questioned when the same

is malafide.

7. I cannot agree with the argument urged on behalf of the

petitioner because of various reasons. Firstly, an averment made of malice,

by itself, does not mean that factually malice automatically and

unnecessarily exits. Malice in the present case would be a disputed question

of fact requiring trial and this Court cannot in the facts of the present case

undertake trial to determine whether or not malice exists as alleged by the

petitioner. Self serving averments of irregularities as alleged by the

petitioner, even if taken to be true, cannot mean that that was the only basis

for not continuing of the tenure of the petitioner for another period of six

months. I also fail to understand that how the petitioner can raise this

argument because the petitioner, as stated above, has been approbating and

reprobating because if the petitioner was having no desire to continue with

the respondent no.1 after the original period of one year, then the petitioner

then should have at that stage itself after expiry of one year not taken the

benefit of the extended period and should have gone back to his parent

department but the petitioner did not do so and even now seeks extension of

tenure though simultaneously claiming that he was not interested in

continuing on deputation.

8. The second reason for rejecting the argument of the petitioner

is that observations of the Supreme Court in the case of V. Ramakrishnan

(supra) which have been made were made in a case where actually during

the period of deputation tenure, the deputationist was sought to be reverted

on the ground that a promotion was being made in the post in which the

deputationist was working and in the facts of the said case it was found that

promotion was wrongly being effected in violation of the promotion rules

and therefore there was an issue of existence of malice and malafides in

reverting the deputationist before the end of the period of tenure. In the

present case however the extension period of six months has come to an end

and it is only on completion of the six months extended period coming to an

end that the petitioner is asked to go back to his parent department i.e

petitioner is not reverted before completion of tenure as in V.

Ramakrishnan's case (supra). Neither the parent department nor the

petitioner suffers any loss in any manner if the deputationist employer or

respondent no.1 after completion of the tenure period, does not seek

extension of tenure of the deputation of the petitioner. This Court cannot

substitute itself for the decision making authority in the respondent no.1 that

the tenure of the petitioner should in fact be continued though the

deputationist employer does not want extension of the tenure.

9. Petitioner at the end of the arguments relied upon a letter dated

29.1.2015 sent by his parent department for extension of deputation period

for one year w.e.f 31.7.2014, however, besides the fact that this letter does

not form part of the pleadings and the cause of action as urged on behalf of

the petitioner, even if we look into the same, that will not change the

findings and conclusions in the present case that the petitioner did

specifically act with an extension of tenure for six months, and therefore the

petitioner now cannot claim that since his parent department has given

extension of one year w.e.f 1.8.2014, petitioner should not be relieved w.e.f

1.2.2015. Also, as stated above, once the deputationist employer specifically

gave extension of tenure only for six months, and the petitioner acted

accordingly, today obviously petitioner cannot claim that extension should

have been for one year merely on the ground that the parent department of

the petitioner wants the tenure to be of one year.

10. In view of the above, I do not find any merit in the petition, and

the same is therefore dismissed, leaving the parties to bear their own costs.

JANUARY 30, 2015                                     VALMIKI J. MEHTA, J
ib