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SUPREME COURT OF INDIA
Dipak Misra, V. Gopala Gowda, JJ.
Union of India & Anr. – Appellants
VERSUS
S.N. Maity & Anr. – Respondents
CIVIL APPEAL NO.5983 OF 2007
Decided on : 06-01-2015
(b) Service law – 1st respondent had gone through the whole gamut of selection – Thereafter notification issued for his appointment – Appointment for five years or till further orders whichever is earlier – Not deputation simpliciter – A tenure appointment with stipulation for curtailment of tenure – However, tenure cannot be curtailed in arbitrary or capricious manner – Respondent repatriated without assigning any reason – Not sustainable. (Para 16, 18)
(c) Service law – Tenure appointment – Incumbent repatriated arbitrarily – High Court rightly quashing the order – However in view of the appointment in 2003, repatriation in 2004, respondent joining back in his parent department, period of tenure expiring in 2008 and another person already appointed in his place; direction for reinstatement cannot be given effect to – Respondent held entitled to emoluments for the remaining period of his tenure. (Para 19, 20, 23)
(2003) 4 SCC 21 – Relied upon
(1969) 2 SCC 158; (2012) 7 SCC 757 – Distinguished
(d) Service law – Tenure appointment by deputation carrying higher pay – On repatriation, incumbent would be entitled to pay scales in his parent department – Cannot claim to continue getting pay of tenure post. (Para 24)
(2013) 12 SCC 433 – Relied upon
Facts of the case:
1st respondent was working as a Scientist E-II in the Central Mining Research Institute (Council of Scientific and Industrial Research). On 29.07.2003, he was appointed on deputation to the post of Controller General of Patents, Designs and Trade Marks.
After serving there for one year he was repatriated to his parent department.
The said order was challenged before the tribunal. Some reliefs were claimed with regard to the TA bills and salary for certain period.
The tribunal dismissed the Original Application. However, as far as payment regarding T.A. and salary for certain period is concerned, the tribunal directed that the same should be decided by the respondents after due verification in accordance with law.
The High Court set aside the impugned order of repatriation and directed the writ petitioner to be reinstated in the post of CGPDTM on similar terms and conditions with all consequential benefits.
Finding of the Court:
Tenure of appointment by deputation to tenure post can be curtailed, but not in an arbitrary or capricious manner.
Result: Appeal partly allowed.
JUDGMENT
Dipak Misra, J.
In this appeal, by special leave, the justifiability and soundness of the judgment and order dated 18.5.2006 passed by the High Court of Jharkhand at Ranchi in W.P. (Service) No. 6106 of 2005 whereby the Division Bench of the High Court has overturned the order passed by the Central Administrative Tribunal (‘tribunal’ for short), Circuit Bench at Ranchi in O.A. NO. 215 of 2005, is called in question.
2. Shorn of unnecessary details, the facts which are requisite to be stated are that the 1st respondent was working as a Scientist E-II in the Central Mining Research Institute (Council of Scientific and Industrial Research). On 29.07.2003, he was appointed on deputation to the post of Controller General of Patents, Designs and Trade Marks (for short, ‘CGPDTM’). After serving there for one year, by order F.No. 8/52/2001-PP&C dated 31.8.2004, he was repatriated to his parent department. The said order was challenged before the tribunal contending, inter alia, that he could not have been pre-maturely repatriated to his parent department and there had been a violation of the principle of audi altram partem. The said stand of the 1st respondent was contested by the authorities of Union of India proponing, inter alia, that he had no right to continue in the post as he was on deputation. Be it stated, some reliefs were claimed with regard to the TA bills and salary for certain period. The tribunal accepted the stance put forth by the Union of India and dismissed the Original Application. However, as far as payment regarding T.A. and salary for certain period is concerned, the tribunal directed that the same should be decided by the respondents after due verification in accordance with law.
3. Being dissatisfied with the aforesaid decision of the tribunal, the 1st respondent invoked the jurisdiction of the High Court under Article 226 and 227 of the Constitution of India. The High Court posed two questions, namely, whether the order F.No.8/52/2001-PP&C dated 31st August, 2004 issued by Under Secretary to the Government of India, Ministry of Commerce and Industry, Department of Industrial Policy & Promotion repatriating the petitioner to his parent department was illegal; and whether the petitioner had the right to continue as Controller General of Patents, Designs and Trade Marks.
4. The High Court after posing the questions took note of the fact that the Union of India had issued an advertisement in the Employment News dated 20/26.10.2001 calling for applications from eligible candidates for appointment to the post of CGPDTM and the Ministry had proposed to fill up the post by transfer on deputation, including short-term contract. The 1st respondent, being eligible, applied through his parent department i.e. Central Mining Research Institute, Dhanbad and his selection was made by the Union Public Service Commission (for short, ‘the UPSC’) which held interview on 4.6.2002 and finding him suitable, recommended his name for appointment. The competent authority approved the appointment of the 1st respondent, the petitioner before the High Court, for the post of CGPDTM in the pay scale of Rs.18,400-500-22,400/-on deputation basis for a period of five years or until further orders, whichever was earlier from the date of assumption of the charge of the post. The said order was communicated vide letter no. 8/52/2001-PP&C (Vol. II) dated 23.6.2003 issued by the Deputy Secretary to the Government of India, Department of Industrial Policy and Promotion. Thereafter, a letter of appointment dated 11.8.2003 was issued to the 1st respondent in the name of the President, appointing him on deputation basis for a period of five years or until further orders, whichever was earlier.
5. In pursuance of the aforesaid order of appointment, the 1st respondent joined the said post and continued to function, but after eleven months, the Under Secretary to the Government of India, Ministry of Commerce and Industry, Department of Industria
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