Delhi High Court
Lalit Narayan vs Union Of India & Anr on 6 August, 2018
$~75
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 6th August, 2018
+ LPA 429/2018
LALIT NARAYAN ..... Appellant
Through: Mr Nikhil Bhardwaj, Adv
versus
UNION OF INDIA & ANR ..... Respondents
Through: Mr Bhagvan Swaroop Shukla, CGSC
with Mr Kamaldeep, Adv for R-1&2
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J. (ORAL)
CM Nos. 31340-41/2018 (exemptions)
Exemptions are allowed subject to all just exceptions.
Applications stand disposed of.
LPA 429/2018 and CM No. 31339/2018 (stay)
1. The appellant is aggrieved by the order dated 03.08.2018 passed by a
learned Single Judge wherein the application filed by the appellant along
with the writ petition for interim relief has remained undecided. Counsel for
the appellant submits that reading of the order dated 03.08.2018 would show
that neither the application has been heard nor the prayer rejected. He
submits that the effect of this order would be that the writ petition would
become infructuous. The respondents propose to repatriate the appellant to
his parent cadre i.e., post of Lecturer (Occupational Therapy) in
Occupational Therapy Department with effect from 06.08.2018 from his
present post of Deputy Director (Administration). Although we propose to
remand the matter back before the Single Judge to hear the application on
merits and on completion of pleadings but it would be necessary for us to
notice some facts which have given rise to the filing of the writ petition and
the present appeal and as to why we are remanding the matter back for
hearing.
2. The appellant herein had joined the respondent in the Department of
Occupational Therapist in the year 1995. He was promoted from time to
time and lastly promoted in the year 2014 as a Lecturer (Occupational
Therapist). An advertisement was published on 2nd to 08th August, 2014 for
one post of Deputy Director (Admn.) on direct recruitment / deputation
basis. It is the case of the appellant that since he was working with the
institute, he applied for the post under the category of „direct recruitment‟.
He submits that not only was his understanding that he made an application
under the „direct recruitment‟ but this was also the understanding of the
respondent which is evident from reading the following documents:-
i. Communication dated 17.06.2015 where there is no mention of
the word „deputation‟.
ii. The minutes of the meeting of the Selection Committee for the
post of Deputy Director dated 07.07.2015.
iii. The minutes of the meeting of the Committee held on
09.09.2014 wherein the following details have been noticed:-
"The details of advertised post are as under:-
Sr. Name of Post No. of Post(s) Age limit Mode of Pay Band + Grade
No. Advertised Recruitment pay
1. Deputy Director 01 (UR) 45 years Direct Rs. 15600-39100+
(Admn.) Recruitment Grade Pay Rs.6600
Basis (PB-III)
The Committee was informed that the PDUIPH has received 42
applications for the above-said post."
iv. List of eligible candidates prepared to be called for written test /
interrogation. Reliance is placed on the column which has been
prepared which we reproduce below:-
"List of Eligible candidates to be called for Written Test/Interaction:
Sr. Reg. Candidate Name with Category Direct/De Qualification Remarks
No. No. Father/Husband putation acquired by the
Name & DOB applicant
16. 1725 Sh. Lalit Narayan S/o UR Direct B.SC (64%) Eligible (As per DOPT
Late Sh. Bisheshwar order No. G.I, D.P. &
Swarnkar MOT (73%) A.R., O.M. No. 4/4/74 -
09.10.1966 Estt. (D), dated 9th April,
M.SC (65%)
1981 and G.I Dept. Of
B.ed (68%) Per. & Trg. O.M. No.
15012/8/87 - Estt (D)
BOT (67%) dated 15th October, 1987
in regard of age
relaxation for
departmental
candidates)"
3. Learned counsel for the appellant further submits that no doubt the
offer of appointment was made on 06.08.2015 whereby the appointment was
on deputation basis which was accepted by him but under protest and a
protest letter was issued on the same date, copy whereof has also been placed
on record. Counsel has further submitted that post his protests, the relevant
file notings, copies whereof has been placed on record, would also indicate
that the case of the appellant was being considered favourably and approval
was being sought from the competent authority for correction of the
appointment letter from deputation to direct recruit. Counsel further submits
that the appellant could not be sent on deputation to his own department
which is unheard of in service jurisprudence and for this proposition he has
drawn the attention of this Court to ground F of his appeal which we
reproduce below:-
(f) Because Hon‟ble Supreme Court has held in State of
Punjab v. Inder Singh, (1997) 8 SCC 372:
"The concept of "deputation" is well understood in
service law and has a recognized meaning. "Deputation has a
different connotation in service law and the dictionary meaning
of the word "deputation" is of no help. In simple words
"deputation" means service outside the cadre or outside the
parent department. Deputation is deputing or transferring an
employee to a post outside his cadre, that is to say, to another
department on a temporary basis. After the expiry period of
deputation the employee has to come back to his parent
department to occupy the same position unless in the
meanwhile he has earned promotion in his parent department
as per the Recruitment Rules. Whether the transfer is outside
the normal field of deployment or not is decided by the
authority who controls the service or post from which the
employee is transferred. There can be no deputation without
the consent of the person so deputed and he would, therefore,
know his rights and privileges in the deputation post. The law
on deputation and repatriation is quite settled and we have also
seen in various judgments which we have referred to above.
There is no escape for the respondents now to go back to their
parent departments and working there as Constables or Head
Constables as the case may be."
4. Counsel also submits that as the appellant was being assured that his
representations are being actively considered and thus he continued to work
at the post and did not deem it appropriate to approach the Court till his
representation was decided or rejected.
5. Mr Shukla, learned counsel for the respondent, has opposed this writ
petition, firstly, on the ground that the appointment to the present post in
question is to be made either by transfer or deputation failing which direct
recruitment is to be made and thus the appellant could not be appointed. Mr
Shukla further submits that appointment letter is crystal clear that the
appellant was appointed on deputation basis. Merely because he made
representations cannot be a ground to explain the delay. Mr Shukla also
submits that the appellant had accepted his appointment letter without any
protest, thus he cannot challenge the same at a later stage.
6. We have heard the learned counsel for the parties.
7. Reading of the advertisement would show that the same pertains to
direct recruitment as also on deputation basis. The communications which
we have extracted in the aforegoing paragraph 2 would show that the
appellant herein was being considered as direct recruit and not on deputation
basis except the letter of appointment. The respondent, in our view, is
required to explain as to the reasons why he was being considered as a direct
recruit and why the letter of appointment talks about deputation. These
questions, in our view, can only be answered once the pleadings are
complete and the matter is taken up for hearing. However, since the
appellant has already worked at the post of Deputy Director (Admn.) and
accordingly, the appellant will continue to carry out his duties as Deputy
Director (Admn.). This is subject to final orders which may be passed either
in the stay application or in the writ petition. No special equity will accrue
in favour of the appellant and in case the appellant does not succeed, dues of
salary will also be refunded by him as has undertaken by him in Court today.
8. With these directions, the appeal along with all pending applications
are disposed of.
9. Counter affidavits be filed within one week. Rejoinder(s), if any, be
filed within one week thereafter. The date of 29.10.2018 is cancelled.
10. List on 10.09.2018 before the learned Single Judge.
11. Dasti.
G.S.SISTANI, J
SANGITA DHINGRA SEHGAL, J
AUGUST 06, 2018
SU
