1999 Supreme(Del) 620

High Court Of Delhi
G.D.SHARMA - Appellant
Versus
UNIVERSITY GRANTS COMMISSION - Respondent
C.M. 8025 of 1999
Decided On : 08/16/1999

Headnote:Service Law - Deputation — Appointment for period of five years of tenure — Repatriation within three years — Candidate retaining his lien in the parent department — Stay of repatriation by way of interim order cannot be granted.

       Held:

       The offer of appointment dated 4th July, 96 itself gives terms and conditions "of deputation". But for NIEPA relieving the petitioner, he could not have joined the post of Secretary, UGC on deputation. thereforee, consent of NIEPA was there which is clear from the fact that petitioner requested for his release from NIEPA to enable him to join UGC. Whether it was "at his own request" or otherwise, would not change the character of his appointment being on deputation. As per terms and conditions of appointment to the post of Secretary, UGC he continued to hold the substantive post "Senior Fellow and head" and he also continued to be governed by service regulation of NIEPA including as to leave travel concession, GP fund, childrens education allowance, group savings linked insurance scheme and pension etc. Even the service rendered by the petitioner under UGC had to be counted for his seniority, promotion, in his present cadre in NIEPA. thereforee, it is clear that the petitioner was appointed to the post of Secretary, UGC on deputation.

       Once this position is determined, the legal consequences thereof is that petitioner continues holds his lien in his substantive post in his parent department i.e. NIEPA and he can occupy the post of Secretary, UGC which is on deputation so long as he remains on deputation. Even otherwise, if the appointment of the petitioner is treated on contract basis it would amount to holding two substantive post, one in UGC, albeit on contract basis, and other in NIEPA. It is admitted position in law that one cannot hold two substantive posts at the same time.

       Here lien is coupled with deputation and he has joined UGC on deputation while keeping his lien with the parent department. In view of this fact, contention of the petitioner that if his lien is terminated the consequence thereof would be termination of his services by NIEPA which the petitioner is ready to face but he is entitled to serve UGC for 5 yrs also has no force. Once petitioner is on deputation, the moment his services are terminated in the parent department his deputation to UGC will also come to an end forthwith. In view of this position it cannot also be said that impugned action of UGC in repatriating back the petitioner, when NIEPA did not extend the period of deputation beyond 3 yrs is arbitrary and unreasonable. As aforesaid that is the consequence which has to follow in law when the appointment is on deputation basis.

       No doubt the petitioner was appointed for a period of 5 years as Secretary, UGC. It was a tenure appointment. UGC also wanted him for a period of 5 years. thereforee the decision to repatriate him after the expiry of 3 years, when there is nothing against the petitioner otherwise regarding his work and conduct in UGC may be harsh. But this is the situation which has been created by the circumstances that cannot be helped. It may be unfortunate for him but law has to take its own course. If Service Regulations of NIEPA do not permit deputation beyond three years and if executive committee does not agree to relax the said provision then as per the existing Service Regulation deputation could be up to a maximum period of 3 years and the appointment of the petitioner as Secretary UGC being on deputation, after the expiry of this period, he has to revert back.

       Moreover, in order to get injunction petitioner ha to satisfy all three ingredients viz., prima facie case, irreparable loss/injury which cannot be compensated in terms of money as well as balance of convenience. In this case balance of convenience may not be in favor of the petitioner inasmuch as he is not loosing his job but going back to NIEPA. If the succeeds in the writ petition ultimately, he can always be put back to complete the tenure and be compensated monetarily for intervening period. On the other hand if the writ petition is ultimately dismissed he would have continued beyond 8th July, 1999 unauthorized which position cannot be reversed. His application for interim award warrants to be dismissed on this ground also.