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IN THE HIGH COURT OF DELHI AT NEW DELHI
Rajiv Shakdher, Jasmeet Singh, JJ.
Union Of India & Anr. - Appellants
Versus
Sh. Vijay Kumar Trivedi - Respondent
W.P.(C) 7531 of 2019 & CM Appl. 31336 of 2019
Decided On : 14-09-2022
Deemed Resignation - Foreign Deputation - OM dated 29.02.2008, Rule 7(2) of All India Service (Leave) Rules, 1955 - The court upheld the notification deeming the respondent to have resigned from service, effective from 04.02.2016, and set aside the impugned order of the Central Administrative Tribunal.
Fact of the Case:
The respondent, an Indian Foreign Service Officer, was on foreign deputation to the WHO Framework Convention on Tobacco Control in Geneva. The petitioners repeatedly requested the respondent to return to his parent cadre, but he sought extensions citing personal reasons. The petitioners eventually deemed the respondent to have resigned from service, which was challenged before the Central Administrative Tribunal.
Finding of the Court:
The court held that the petitioners had substantially complied with the principles of natural justice, as the respondent was aware of the consequences of his actions. The court also found that the deemed resignation was effective from the date of the order, 04.02.2016, and not retrospectively from 01.04.2014.
Issues: The issues involved the validity of the notification deeming the respondent to have resigned from service and the retrospective effect of the resignation.
Ratio Decidendi: The court found that the petitioners had informed the respondent of the consequences of his actions and had substantially complied with the principles of natural justice. The court also held that the deemed resignation was effective from the date of the order, 04.02.2016, and not retrospectively from 01.04.2014.
Final Decision: The court upheld the notification deeming the respondent to have resigned from service, effective from 04.02.2016, and set aside the impugned order of the Central Administrative Tribunal.
JUDGMENT
Jasmeet Singh, J. - The present writ petition has been filed by the Union of India through the Ministry of External Affairs (MEA) as well as Department of Personnel and Training (DoPT) seeking a challenge to the order dated 18.01.2019 passed by the Central Administrative Tribunal (CAT), Principal Bench, New Delhi in Original Application (O.A.) No. 1631 of 2017 titled 'Sh. Vijay Kumar Trivedi Vs. Union of India & Anr'.
2. Briefly stating the facts giving rise to filing of the present writ petition are :
3. The respondent is an Indian Foreign Service Officer (IFS) of 1994 Batch and was permitted to join as a 'Policy Advisor in the office of Director General, WHO Framework Convention on Tobacco Control in Geneva' on foreign deputation basis on 02.03.2009 for an initial period of 6 months. On expiry of that said initial period, on his request, the respondent was granted periodic extensions and the deputation term kept getting extended from time to time till August, 2013.
4. Since both the daughters of the respondent were admitted at schools in Geneva and were in crucial stages of their education and any kind of disturbance might have caused loss or adversely affect the academic careers of his daughters, the respondent vide an email dated 22.07.2013 further sought an extension of his deputation in Geneva till 31.08.2014. The request of the respondent was not acceded to by the petitioners vide their email dated 27.03.2014, and he was directed to return to his parent cadre forthwith.
5. The respondent, after almost 3 months vide email dated 30.06.2014 again made a representation to the petitioners reiterating his difficulties, particularly, about the educational concern of his daughters, and his requirement to complete the ongoing project, requested the petitioners to permit him to continue on deputation till the end of August, 2014.
6. On 05.07.2014, the petitioners informed the respondent vide an email, that for consideration to process his request for extension of tenure of deputation, the respondent would have to submit an undertaking that he would join the Ministry immediately on completion of his daughters' academic Session i.e for the year 2014-15, and will further communicate a probable date on which the respondent will thereby join the Ministry.
7. The respondent vide his reply letter dated 14.07.2014, gave an undertaking stating that the academic Session of his daughter would end in July, 2015, and he will join the Ministry in September, 2015. Albeit in another subsequent undertaking changed the date of his return from September, 2015 to 'no later than February, 2016'. However, the petitioner's after realizing that the respondent has no intention to join back his parent cadre/Ministry and was in fact procrastinating on the date of his return vide their email dated 11.08.2014 rejected the undertakings of the respondent and directed the respondent to return to his parent cadre immediately.
8. The respondent, as it appears refused to return and hence the petitioners vide another email dated 10.03.2015, directed the respondent to report to the Ministry immediately and stated that non-adherence to the same would be treated as a violation of clause 11 of DoPT O.M. dated 29.02.2008. The same is reproduced as under :
'Clause 11. The limit of 5 years in one stretch and 7 years in the entire career for foreign service to organizations covered under para 2.1 and 2.2 shall not be extended under any circumstances. The officer shall be deemed to have resigned from the service in case he/she fails to join the Government within one month of completion of his / her approved tenure with the concerned organization.'
9. Further, in the same letter, the respondent was informed that in terms of the OM dated 29.02.2008, he shall be deemed to have resigned from service, in case, he fails to join the Government within one month of the completion of his approved tenure with the concerned organisation.
10. Yet again on 11.06.2015, another OM was sent t
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