Afr vs Union Of India And Others
2021 Latest Caselaw 12157 Ori

                     ORISSA HIGH COURT: CUTTACK

                         W.P(C) NO. 12776 of 2021

          In the matter of an application under Articles 226 and
          227 of the Constitution of India.
                               ---------------

AFR Dr. Sakti Prasad Das ..... Petitioner

-Versus-

          Union of India and others            .....       Opp. Parties

              For Petitioner      : Mr. J.K. Rath, Senior Advocate
                                    appearing along with
                                    M/s. B.P. Das, A. Mohanty,
                                    G.    Mohanty,     S.   Samal,
                                    N.Agarwal,    P.A.Dash     and
                                    A.Patnaik, Advocates.

For Opp. Parties : Mr. P.K. Parhi, ASGI appearing along with Mr. D.R. Bhokta, CGC.

[O.Ps. No.1 to 3]

Mr. A.K. Parija, Senior Advocate appearing along with M/s. A. Patnaik, S.P. Sarangi, V. Mohapatra, P.K. Dash, A. Das and A. Sahu, Advocates [Intervener]

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of hearing : 16.11.2021 : Date of judgment : 25.11.2021

DR. B.R. SARANGI, J. The petitioner, by way of this writ

petition, seeks to quash the advertisement under // 2 //

Annexure-11, by which the Ministry of Social Justice

and Empowerment, Department of Empowerment of

Persons with Disabilities has invited applications for

the post of Director, Swami Vivekananda National

Institute for Rehabilitation, Training and Research

(SVNIRTAR), Cuttack, an autonomous body, and to

issue direction to the opposite parties to allow the

petitioner to continue in the post of Director,

SVNIRTAR, Cuttack for a total period of seven years

from his initial date of appointment, i.e. 27.01.2016.

2. The factual matrix of the case, in a

nutshell, is that SVNIRTAR, Cuttack is an

autonomous body under the administrative control of

the Department of Empowerment of Persons with

Disabilities, Ministry of Societal Justice and

Empowerment, Government of India, which has been

formed for rehabilitation of physically handicapped

and for research and training in the said field.

3. The petitioner was appointed as an

Assistant Professor/General Duty Medical Officer // 3 //

(PMR), SVNIRTAR, Cuttack on 18.01.1995 by following

due procedure of selection, pursuant to an

advertisement. While the petitioner was so continuing,

pursuant to an office memorandum dated 08.01.2016,

he was selected and appointed on deputation to the

post of Director initially for a period of 3 years. On

27.01.2016, after accepting the terms and conditions,

he was appointed as the Director, SVNIRTAR.

Thereafter, his deputation period was extended on

10.12.2018 for a further period of 2 years, i.e. total

period of deputation of the petitioner to the post of

Director was made to be 5 years, instead of 3 years.

Since the period of deputation was going to over on

27.01.2021, the petitioner wrote a letter to opposite

party no.1 on 07.10.2020 stating inter alia that as per

the DOPT Office Memorandum dated 17.02.2016, the

deputation period for government employees has been

revised to the maximum period of 7 years instead of 5

years, therefore, his period of deputation may be

extended to 7 years in accordance with the aforesaid

office memorandum. While the representation of the // 4 //

petitioner was pending, since the period of deputation

of 5 years was going to complete on 27.01.2021,

opposite party no.1 issued an order on 21.01.2021

allowing the petitioner to continue to function as

Officiating Director, SVNIRTAR with effect from

28.01.2021 till appointment of a regular Director or

till further orders, whichever is earlier. But, without

considering the extension of deputation period of the

petitioner till completion of 7 years, as per the office

memorandum dated 17.02.2016, a fresh

advertisement was issued for recruitment of regular

Director of SVNIRTAR, Cuttack by the opposite party

no.1 under Annexure-11. Hence this writ petition.

4. Mr. J.K. Rath, learned Senior Advocate

appearing along with Mr. B.P. Das, learned counsel for

the petitioner argued with vehemence that the

petitioner was appointed on 18.01.1995 under

Annexure-3 as Assistant Professor/General Duty

Medical Officer (PMR). While he was continuing as

such, he was selected and appointed in the post of // 5 //

Director, SVNIRTAR, Cuttack on deputation basis for

a period of 3 years vide office memorandum dated

08.01.2016 issued by opposite party no.1 under

Annexure-4. Consequent upon acceptance of the

terms and conditions contained in the offer of

appointment issued vide office memorandum dated

08.01.2016, he was allowed to continue as Director of

SVNIRTAR, Cuttack in the pay band of Rs.37,400-

Rs.67,000/- with grade pay of Rs.8,700/- for a period

of three years vide Annexure-5. Consequentially,

before the period of deputation was going to expire on

27.01.2019, the competent authority vide order dated

10.12.2018 under Annexure-6, conveyed the approval

of extension of the period of deputation of the

petitioner for a further period of two years beyond

27.01.2019 up to 27.01.2021 on the same terms and

conditions. While he was continuing as the Director,

SVNIRTAR, the petitioner had also remained in charge

of the post of Director, National Institute of Locomotor

Disabilities (NILD), Kolkata, pursuant to the order

dated 27.05.2019. Before the term of the petitioner as // 6 //

Director, SVNIRTAR was going to expire on

27.01.2021, the petitioner submitted a representation

on 07.10.2020 to allow him to continue for another

period of two years subject to maximum period of

seven years. However, while his representation was

pending, at this point of time on 21.01.2021, a

communication was made by the Joint Secretary to

Government of India & Chairperson, Executive

Council of SVNIRTAR, Cuttack-opposite party no.2,

that as his deputation period as Director is expiring

on 27.01.2021, he will continue to function as

Officiating Director, SVNIRTAR, with effect from

28.01.2021 till appointment of a regular Director or

till further orders, whichever is earlier. When he was

continuing as such, an advertisement was issued

under Annexure-11 where the maximum age limit has

been prescribed as 56 years, which shall be reckoned

as on the closing date of receipt of application.

Thereby, the petitioner, having crossed the age limit,

may not be eligible to participate in the process of

selection and as per the office memorandum dated // 7 //

17.02.2016, he should be allowed to continue till he

completes 7 years of period at a stretch as the

Director. Thereby, the issuance of such advertisement,

without considering the representation dated

07.10.2020, is arbitrary, unreasonable and contrary

to the provisions of law and as such the same is liable

to be quashed.

5. Mr. P.K. Parhi, learned Assistant Solicitor

General of India appearing along with Mr. D.R.

Bhokta, learned Central Government Counsel,

referring to office memorandum dated 17.02.2016,

vehemently contended that as per the said office

memorandum, if the administrative ministries/

departments and other borrowing organizations wish

to retain an officer beyond 5 years, they may extend

tenure of deputation covered by office memorandum

dated 17.06.2010 where absolutely necessary in

public interest up to a period of not exceeding 7 years

at a stretch. The petitioner was allowed to continue for

a period of 5 years and his deputation period was // 8 //

going to expire on 27.01.2021. However, the

administrative ministry/department and also the

borrowing organization have not expressed their

willingness to retain the petitioner for a period beyond

5 years, i.e. up to a period of not exceeding 7 years.

Therefore, vide order dated 21.01.2021 under

Annexure-10 the borrowing organization, namely, the

Chairperson, Executive Council of SVNIRTAR,

Cuttack-opposite party no.2 has intimated that as his

deputation period as Director is expiring on

27.01.2021, he will continue to function as Officiating

Director, SVNIRTAR, with effect from 28.01.2021 till

appointment of a regular Director or till further

orders, whichever is earlier. Therefore, for

appointment of regular Director if the advertisement

has been issued under Annexure-11, no illegality or

irregularity has been committed by the authority

concerned so as to cause interference by this Court at

this stage.

6. Mr. A.K. Parija, learned Senior Advocate

enters appearance along with Mr. A. Patnaik, learned // 9 //

counsel for the intervener-petitioner, who had filed an

Interlocutory Application bearing I.A. No. 9424 of

2021. Though the said I.A. was not allowed, however,

the intervener was permitted to participate in the

process of hearing. Mr. Parija, learned Senior Advocate

contended that the office memorandum dated

17.02.2016 issued by the Government of India,

Ministry of Personnel, Public Grievance and Pensions,

Department of Personnel and Training clearly reveals

that in the event the administrative ministries/

departments and other borrowing organizations wish

to retain an officer beyond 5 years, they may extend

the tenure of deputation covered by office

memorandum dated 17.06.2010 where absolutely

necessary in public interest up to a period of not

exceeding 7 years at a stretch. There is no valid and

justifiable reason indicated that the continuance of

the petitioner is absolutely necessary in public

interest for extension of period of deputation up to a

period not exceeding 7 years. According to him,

though the petitioner had filed a representation on // 10 //

07.10.2020 under Annexure-8, the same has been

considered by the borrowing organization, namely,

opposite party No.2 and it has been decided that his

deputation period as Director is expiring on

27.01.2021 and he will continue to function as

officiating Director, SVNIRTAR, with effect from

28.01.2021 till appointment of a regular Director or

till further orders, whichever is earlier. In view of such

position, since an advertisement was issued for

appointment of regular Director, no illegality or

irregularity has been committed by the authority by

issuing such advertisement. More so, the petitioner

has not challenged the order dated 21.01.2021 under

Annexure-10. Consequentially, the writ petition has to

be dismissed, in view of the fact that the petitioner

has no vested right to continue beyond the period of

deputation, i.e. 5 years, as neither the administrative

ministry/department nor the borrowing organization-

opposite party no.2 wishes to retain him beyond 5

years by extending the period up to seven years, as his

continuance is not absolutely necessary in public // 11 //

interest. More so, after the deputation period is over,

the petitioner cannot claim, as a matter of right, to

continue till 7 years and consequentially seek for

quashing of the advertisement issued for regular

appointment of Director. It is further contended that

pursuant to such advertisement, the selection process

has continued, but because of the interim order

passed by this Court on 08.04.2021 in I.A. No. 5676 of

2021, the post of regular Director of opposite party

no.2 has not been filled up as it has been directed by

this Court that the authority may proceed with the

advertisement, but there shall be no appointment of

Director of SVNIRTAR, Olatpur, without leave of the

Court, until further orders. It is further contended

that though the intervener, who is continuing as

Associate Professor, has participated in the process of

selection for appointment of regular Director, because

of the interim order passed by this Court, result of

such selection has not been published, which caused

prejudice to the persons those who have applied for

the post of Director. Therefore, the intervener seeks for // 12 //

dismissal of the writ petition, as at the instance of the

petitioner, who has completed tenure of deputation of

5 years, the prayer made in this writ petition cannot

sustain in the eye of law.

7. This Court heard Mr. J.K. Rath, learned

Senior Advocate appearing along with Mr. B.P. Das,

learned counsel for the petitioner, Mr. P.K. Parhi,

learned Assistant Solicitor General appearing along

with Mr. D.R. Bhokta, learned Central Government

Counsel for opposite parties; and Mr. A.K. Parija,

learned Senior Advocate appearing along with Mr. A.K.

Patnaik, learned counsel for intervener, by hybrid

mode and perused the record. Pleadings having been

exchanged between the parties, with their consent, the

writ petition is being disposed of finally at the stage of

admission.

8. It is the admitted fact that pursuant to

office memorandum dated 08.01.2016 vide Annexure-

4, the petitioner was appointed on deputation basis as

the Director, SVNIRTAR, Cuttack for a period of 3 // 13 //

years, which was duly approved by opposite party

no.1 on 27/28.01.2016. In pursuance thereof, the

petitioner joined the post and continued with effect

from 28.01.2016. The said deputation period of 3

years was extended to 5 years, pursuant to order

dated 10.12.2018 under Annexure-6, which was going

to expire on 27.01.2021. Though the petitioner

submitted a representation vide Annexure-8 on

07.10.2020 for extension of his period of deputation,

the authority, instead of doing so, issued an order on

21.01.2021 stating therein that since his deputation

period as Director was expiring on 27.01.2021, he will

continue to function as officiating Director,

SVNIRTAR, with effect from 28.01.2021 till

appointment of a regular Director or till further

orders, whichever is earlier. Pursuant threto, the

petitioner continued as officiating Director beyond

27.01.2021, by which his 5 years deputation period

has already been over. Therefore, for appointment of

regular Director, if an advertisement is issued, the

petitioner cannot and could not have challenged the // 14 //

same, as neither the ministry/department, nor the

borrowing organization, namely, opposite parties 2

and 3 wish to retain the petitioner beyond 5 years and

or to extend the tenure of deputation covered by the

office memorandum dated 17.06.2010, up to a period

not exceeding 7 years at a stretch. Thereby, the

grievance made by the petitioner by way of filing

representation dated 07.10.2020 vide Annexure-8 has

already been considered and mitigated vide Annexure-

10 dated 21.01.2021 allowing the petitioner to

continue as Officiating Director, SVNIRTAR, after

expiry of deputation period with effect from

28.01.2021 till appointment of a regular Director or

till further orders, whichever is earlier. The petitioner

has also not challenged such order dated 21.01.2021

under Annexure-10 in this writ petition, rather prayer

has been made with regard to quashing of the

advertisement issued for appointment of regular

Director.

9. The moot question which falls for

consideration in this case is whether appointment of // 15 //

the petitioner as Director, SVNIRTAR, Cuttack on

deputation basis accrues a right in his favour to be

appointed as such on regular basis?

10. While analyzing the word "deputation", in

the case of State of Punjab Vs. Inder Singh, (1998) 7

SCC 372; AIR 1998 SC 7 the apex Court held that 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 it 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 Recruitment Rules.

// 16 //

11. In Umapati Choudhury v. State of Bihar,

(1999) 4 SCC 659; AIR 1999 SC 1948, the apex Court

held that deputation can be aptly described as an

assignment of an employee ( commonly referred to as

the deputationist) of one department or cadre or even

an organisation (commonly referred to as the parent

department or lending authority) to another

department or cadre or organisation (commonly

referred to as the borrowing authority). The necessity

for sending on deputation arises in public interest to

meet the exigencies of public service. The concept of

deputation is consensual and involves a voluntary

decision of the employer to lend the services of his

employee and a corresponding acceptance of such

services by the borrowing employer. It also involves

the consent of the employee to go on deputation or

not.

12. In the case at hand, the petitioner was

assigned the responsibility of Director of SVNIRTAR

being an employee of it, to discharge his duty under // 17 //

opposite party nos. 2 and 3 and that deputation was

for a fixed period. After expiry of such fixed period, he

has no vested right to continue unless the same is

extended either by the administrative

ministry/department or the borrowing organization.

13. In J.S. Yadab v. State of U.P., (2011) 6

SCC 570, the apex Court held that the "vested right"

is a right independent of any contingency. Such a

right can arise from a contract, statute or by operation

of law. A vested right can be taken away only if the law

specifically or by necessary implication provides for

such a course.

14. When the petitioner was appointed as the

Director on deputation basis vide Annexure-4 for a

period of 3 years on 08.01.2016 and the same was

extended vide order dated 10.12.2018 for a period of 5

years, which was expired on 27.01.2021, in such

eventuality, if subsequently either the administrative

ministry/department or borrowing organization

wishes to retain him beyond 5 years, it can extend // 18 //

tenure of his deputation covered by office

memorandum dated 17.06.2010 up to a period of not

exceeding 7 years at a stretch, if his continuance is

absolutely necessary in public interest. Thereby, there

is no compulsion on the part of the administrative

ministry/department or the borrowing organization to

allow the petitioner to continue by extending the

period up to 7 years at a stretch, as there is absolutely

no need in public interest for his continuance.

15. In T.M.A Pai Foundation v. State of

Karnataka, (2002) 8 SCC 481, the apex Court held

that "Public Interest" means those interest which

concerns the public at large.

16. In State of Uttaranchal v. Balwant

Singh, (2010) 3 SCC 402, the apex Court explained

the "public interest" referring the meaning attached

to Black's Law Dictionary to the following effect:-

"Public Interest - Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest // 19 //

shared by citizens generally in affairs of local, state or national government...."

17. The above being the settled position of law,

nothing has been placed on record to indicate that the

continuance of the petitioner up to a period of 7 years

at a stretch is absolutely necessary in public interest.

Thereby, the borrowing organization, namely, opposite

party Nos.2 and 3, vide order dated 21.01.2021,

specifically mentioned that as the period of deputation

of the petitioner as Director is expiring on 27.01.2021,

he will continue to function as Officiating Director,

SVNIRTAR, with effect from 28.01.2021 till

appointment of a regular Director or till further

orders, whichever is earlier. That itself clearly

indicates that the borrowing organization was also not

inclined to extend his period of deputation up to 7

years. As a consequence whereof, Annexure-11, the

advertisement was issued for appointment of regular

Director. More so, the petitioner having attained the

age of 56 years has become ineligible pursuant to

such advertisement, as has been contended by // 20 //

learned Senior Advocate appearing for the petitioner.

Merely because the petitioner is ineligible to make an

application, at his instance, the advertisement issued

under Annexure-11 cannot be quashed.

18. In view of the conspectus of facts and law,

as discussed above, this Court is of the considered

view that the petitioner has no vested right to

continue after his deputation period of 5 years is

expired on 27.01.2021, as the same has not been

extended up to 7 years at a stretch. Thereby, at his

instance, the advertisement issued in Annexure-11 for

regular recruitment of Director cannot be quashed. As

such, the validity of the advertisement has not been

challenged in any manner whatsoever. More so, the

petitioner, having not challenged the order passed on

21.01.2021 under Annexure-10, he cannot claim to

quash the advertisement issued under Annexure-11 in

exercise of extraordinary jurisdiction under Article 226

of the Constitution of India.

// 21 //

19. Resultantly, the writ petition merits no

consideration and the same stands dismissed. There

shall be no order as to costs.

20. Consequentially, the interim order passed

on 08.04.2021 in I.A. No. 5676 of 2021, which was

extended from time to time, stands vacated. The

opposite parties are directed to proceed pursuant to

the advertisement in Annexure-11 for regular

recruitment of Director, SVNIRTAR, Cuttack, as

expeditiously as possible.

.................................. DR. B.R. SARANGI, JUDGE

Orissa High Court, Cuttack The 25th November, 2021, Arun