High Court · 2009

The writ petitioner, who is on deputation to Council for Advance ment of Peoples’ Action and Rural Technology (CAPART), under aegis of Ministry o f Rural Development, Government India and appointed as Regional Representative a nd Member Convenor, Regional Centre, Guwahati, has by the present petition chall enged the order dated 01-09-2008 issued by the Chief Administrative Officer, CAP ART repatriating her to the parent Department of Personnel (A), Government of As sam.

2. The petitioner, who is a member of Assam Civil Services (ACS) an d at the relevant point of time was serving as Extra Assistant Commissioner in t he Department of Personnel (A), Government of Assam, was sent on deputation to C APART vide order dated 22-11-2006 issued by the Commissioner & Secretary to the Government of Assam, for appointment as Regional Representative and Member Conve nor, Regional Centre, Guwahati for a period of 1 (one) year with effect from the date of handing over the charge in the parent Department. The petitioner was a ccordingly appointed as Regional Representative and Member Convenor, Regional Ce ntre at Guwahati, CAPART, vide order dated 23-11-2006 issued by the Deputy Direc tor General of CAPART, on deputation basis on foreign service terms and conditio ns for a period of 1 (one) year, on her services being placed at the disposal of CAPART. The petitioner accordingly joined her services in CAPART. The Deputy S ecretary to the Government of Assam, Personnel (A) Department, vide communicatio n dated 11-04-2007 has also informed the Accountant General (A & E), Assam about the deputation of the petitioner to CAPART intimating the said authority that t he period of deputation will be for 1 (one) year for the present with effect fro m 28-11-2006. The tenure of deputation of the petitioner was, however, extended by 2 (two) more years with effect from 28-11-2007, i.e. the date when the 1 (one ) year period of deputation came to an end, by notification dated 21-11-2007 iss ued by the Deputy Secretary, Government of Assam, Personnel (A) Department, on t he basis of the request made by the CAPART for that purpose. The Chief Administ rative Officer, CAPART, vide office order dated 30-11-2007, consequently conveye d the approval of the competent authority for extension of deputation period in respect of the petitioner for a period of 2 (two) years with effect from 28-11-2 007 on the existing terms and conditions to work as Regional Representative and Member Convenor, Regional Centre, Guwahati. By such order of extension, the ten ure of deputation of the petitioner was to end on 28-11-2009. The Chief Adminis trative Officer of CAPART, however, by the impugned order dated 01-09-2008 has r epatriated the petitioner to the parent department, i.e. the Department of Perso nnel (A), Government of Assam, and placed her services at the disposal of the Go vernment of Assam with immediate effect, which gives rise to the present writ pe tition.

3. A single bench of this Court while issuing notice of motion vide order dated 05-09-2008, keeping in view the pleaded facts and documents annexed to the writ petition and also the proposition as propounded by the Apex Court i n Union of India through Government of Pondicherry & Anr. -Vs- V. Ramakrishnan & Ors. reported in (2005) 8 SCC 394 passed an interim order keeping the order of repatriation dated 01-09-2008 in abeyance. The said interim order has subsequen tly been extended by various orders passed including order dated 20-11-2008, by which order it has been observed that an endevour shall be made to dispose of th e writ petition at the admission stage itself. Accordingly, the writ petition h as been taken up for final hearing and disposal at the admission stage.

4. I have heard Mr. U. Bhuyan, learned counsel for the petitioner a s well as Mr. S.K. Rungta, learned counsel appearing on behalf of the respondent Nos.1 and 2 and Mrs. H.M. Phookan, learned State Counsel appearing on behalf of the respondent No.3. Mr. Bhuyan, learned counsel for the petitioner has submitted tha 5. t she has been repatriated to the parent department vide the impugned order date d 01-09-2008 on the basis of certain allegations, which are stigmatic and amount s to casting aspersion on the character and integrity of the petitioner and as s uch, a reasonable opportunity has to be given to the petitioner before taking a decision for repatriation, which has not been done. Referring to the provisions contained in FR 110 of the Fundamental Rules, it has further been submitted by Mr. Bhuyan, that the deputation being result of an agreement amongst the parent department, borrowing department and the officer concerned, before passing the o rder of repatriation, the parent department has to be consulted, which having ad mittedly not been done, the order of repatriation cannot stand the scrutiny of l aw. It has further been submitted by Mr. Bhuyan that in any case there is no bas is on the allegation made against the petitioner, based on which the order of re patriation has been passed by the borrowing department. According to the learne d counsel, the CAPART, i.e. the borrowing department, without first ascertaining the genuineness of the complain as well as the existence of the voluntary organ ization and identity of the signatories, who allegedly made the complain against the petitioner, has unilaterally decided to repatriate the petitioner to the pa rent department though the organization called (cid:28)Development Initiative of People s in Rural Area, Dimapur, Nagaland (cid:29) is non existent. The complain of Assam Sched ule Caste Workers’ Council, which is also the basis for passing the order of rep atriation is also false and baseless, as, such allegations have been levelled ag ainst the petitioner as she turned down the proposal submitted by them being not in terms of the guideline of the CAPART, submits Mr. Bhuyan. According to the learned counsel, the other organization, namely Assam Centre for Rural Developme nt, who also levelled certain allegations against the petitioner, is a doubtful organization being managed by the family members of a particular family having c onsiderable influence and power in Assam and the said organization has levelled allegations against the petitioner as she having found certain anomalies in the said organization subjected it to scrutiny and verification. It has further bee n submitted by the learned counsel that the allegation of taking financial benef it by her husband is out and out false and baseless. According to the learned c ounsel, though the borrowing department can repatriate an officer to the parent department, such power cannot be exercised arbitrarily, as has been done in the instant case and without having prior consultation with the parent department. According to Mr. Bhuyan, the fact that purported allegations, which are the basi s for the order of repatriation are nothing but created for the purpose of passi ng such an order, is evident from the fact that the management of CAPART having satisfied with the performance of the petitioner has requested the parent depart ment for extension of the period of deputation by 2 (two) years after the initia l period of deputation came to an end, i.e. on 28-11-2007. Mr. Bhuan, therefore , submits that there is no basis for passing the order of repatriation, during t he continuation of the deputation period and such order can only be passed for g ood and sufficient reason, which are lacking in the instant case. Mr. Bhuyan in support of his contention has placed reliance on the decision of the Apex Court in K.H. Phadnis Vs. State of Maharashta reported in AIR 1971 SC 998; Umapati Ch oudhary Vs. State of Bihar & Anr. reported in (1999) 4 SCC 659 and Union of Indi a through Government of Pondicherry & Anr. Vs. V. Ramakrishnan & Ors. reported i n (2005) 8 SCC 394. Mr. Rungta, learned counsel for the respondent Nos.1 and 2 in re 6. ply to the submission of the learned counsel for the petitioner, has submitted t hat though the law requires the consent of the parent department as well as of t he officer concerned before sending an officer on deputation to a foreign depart ment, under FR 110 of the Fundamental Rules, at the time of repatriation neither consultation with the parent department nor consent of the officer concerned is required. According to Mr. Rungta, the borrowing department can at any time ev en before the end of the period of deputation for good and sufficient reason rep atriate an officer to the parent department, as observed by the Apex Court in V. Ramakrishnan case. In the instant case, according to Mr. Rungta, the managemen t of CAPART upon receipt of certain allegations against the petitioner has made an enquiry to ascertain the truth or otherwise of such allegation, wherein the p etitioner was also given opportunity to present her case and having satisfied th at the services of the petitioner is no longer required, keeping in view the int erest of the CAPART, has passed the order of repatriation. Mr. Rungta further s ubmits that it is evident from the order of repatriation that there is no stigma attached to it, as contended by the petitioner and the enquiry, made by the CAP ART, was for the purpose of satisfying itself as to whether the allegations are prima facie true, and if so, whether the petitioner should be repatriated to the parent department. It has further been submitted that the sufficiency or otherw ise of the materials, which are taken into consideration by the CAPART for satis fying itself about the desirability of keeping the petitioner on deputation cann ot be gone into by this Court in a petition under Article 226 of the Constitutio n of India, more so, when there is no allegation of malafide against the managem ent of CAPART, who has taken a decision of repatriation. Mr. Rungta submits tha t a deputationist has no right to continue on deputation and the borrowing depar tment for good and sufficient reason can even during the continuance of the peri od of deputation repatriate the officer to the parent department. Mr. Rungta ha s placed reliance on the decision of the Apex Court in Ratilal B. Soni & Ors. Vs . State of Gujarat & Ors. reported in AIR 1990 SC 1132 as well as in Union of In dia through Government of Pondicherry & Anr. Vs. V. Ramakrishnan & Ors. reported in (2005) 8 SCC 394.

7. The law on deputation is by now well settled. (cid:28)Deputation (cid:29) mean s service outside the cadre or outside the parent department. It means deputing an officer to another department on temporary basis. After expiry of period of deputation, the employee has to come back to his parent department to occupy th e same position unless of course he has earned promotion in the parent departmen t in the meantime as per the recruitment rules. There is no dispute that there can be no deputation without the consent of the person so deputed and unless the parent department has agreed for such deputation. Ordinarily, a deputationist has no legal right to continue in the post to which he has been deputed. A depu tationist has even no right to get himself absorbed in the borrowing department and cannot claim as a matter of right for such permanent absorption. The right of the deputationist is very limited. A deputationist on completion of the tenu re of deputation has to go back to the parent department, unless of course such period of deputation is extended with the consent of the deputationist as well a s of the parent department. A deputationist, however, has a limited right to con tinue in the post to which he has been deputed till the completion of the tenure of deputation. It, however, does not necessarily mean that a deputationist can not be repatriated to the parent department, by the borrowing department before completion of the tenure of deputation. The borrowing department has always the right to repatriate a deputationist to the parent department in the midst of th e tenure of deputation. However, for exercising such right, there must be some just and reasonable ground. A deputationist can be repatriated to the parent dep artment if the borrowing department is of the view that continuance of such depu tation is not desirable in the interest of the borrowing department or his or he r performance is unsatisfactory. However, such an order of repatriation during t he continuance of the tenure of deputation cannot be arbitrary. The Apex Court in K.H. Phadnis (supra), on which the learned cou 8. nsel for the petitioner has placed reliance, while considering the right of a Go vernment servant to get the protection of Article 311 of the Constitution of Ind ia in the matter of reversion from temporary to substantive post, has held that though the Government has the right to revert a Government servant from the temp orary post to a substantive post, the matter has to be viewed as one of substanc e and all relevant factors are to be considered in ascertaining whether the orde r is a genuine one of (cid:28)accident of service (cid:29) in which a person sent from the subs tantive post to a temporary post has to go back to the parent post without an as persion against his character or integrity or whether the order amounts to reduc tion in rank by way of punishment. It has further been observed that though rev ersion by itself is not a stigma, if there is evidence that the order of reversi on is not (cid:28)a pure accident of service (cid:29) but an order in the nature of punishment, Article 311 will be attracted. The instant case being related to the deputatio n and the deputationist having limited right to continue in the post, the said d ecision of the Apex Court as such is not applicable in the case in hand. The dep utationist, as discussed above, has no right to the post to which he has been de puted and has also no right for permanent absorption. A deputationist’s right i s very limited, as discussed above. The provisions of Article 311 of the Constit ution of India as such cannot be applied in the matter of repatriation of a depu tationist to the parent department.

9. In Ratilal B. Soni (supra), the Apex Court has observed that a d eputationist can be reverted to his parent cadre at any time and he does not get any right to be absorbed in the deputation post.

10. The Apex Court in Umapati Choudhary (supra) has observed that th e necessity for sending on deputation arises in public interest to meet the exig encies of public service and the concept of deputation is consensual and involve s 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. Therefore, unl ess the parent department as well as the borrowing department agrees, so also th e employee concerned, there cannot be a legally valid deputation. FR 110 of the Fundamental Rules provides that no Government serv 11. ant be transferred to foreign service against his will. It is not the requireme nt of law that the consent of or prior consultation with the parent department i s required before passing an order of repatriation by the borrowing department o r the consent of the deputationist is required for that purpose, for the simple reason that the deputationist has no right to continue in the post to which he h as been deputed and the consent of the parent department is required only when t he person is sent on deputation and not at the time of repatriation. The conten tion of the petitioner that the impugned order of repatriation dated 01-09-2008 is not valid in the absence of the prior consultation and consent of the parent department, therefore, cannot be accepted and hence rejected.

12. As discussed above, the deputationist has, however, a limited ri ght of continuing in the post to which he has been deputed till the completion o f the tenure of deputation. The borrowing department, however, for good and suf ficient reason can repatriate a deputationist to the parent department even duri ng the tenure of deputation. The Apex Court in V. Ramakirshnan Case (supra) in paragraph 32, after discussing the various earlier judgments passed and the righ t of the deputationist to the post, has observed as follows: - (cid:28)32. Ordinarily, a deputationist has no legal right to continue in the post. A deputationist indisputably has no right to be absorbed in the post to which he i s deputed. However, there is no bar thereto as well. It may be true that when deputation does not result in absorption in the service to which an officer is d eputed, no recruitment in its true import and significance takes place as he is continued to be a member of the parent service. When the tenure of deputation i s specified, despite a deputationist not having an indefeasible right to hold th e said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability or unsatisfactory performance. But, even where the tenure is not specified, an order of reversion can be ques tioned when the same is malafide. An action taken in a post-haste manner also i ndicates malice. (cid:29)

13. It appears from the records produced before this Court that the initial order of deputation was passed on 22-11-2006 by the parent department, i .e. by the Commissioner & Secretary to the Government of Assam in Personnel (A) Department, on the basis of the request made by the CAPART for appointment of th e petitioner as Regional Representative and Member Convenor, Guwahati, initially for a period for 1 (one) year. The petitioner was consequently appointed in th e said post in CAPART vide order dated 23-11-2006 and his period of deputation f or 1 (one) year came to an end on 28-11-2006. The tenure of deputation of the p etitioner, however, extended by 2 (two) more years as requested by the managemen t of CAPART with effect from 28-11-2007, i.e. up to 27-11-2009. During the cont inuation of the tenure of deputation, the management of CAPART vide impugned ord er dated 01-09-2008 issued by the Chief Administrative Officer repatriated the p etitioner to the parent department. For better appreciation, the said order dat ed 01-09-2008 is reproduced below:- (cid:28)1st September, 2008 Order The Competent Authority has decided to repatriate Smt. Geetanjali S. Bhattachary ya, ACS, Extra Assistant Commissioner, Govt. of Assam working as Regional Repres entative & Member Convenor, CAPART RC, Guwahati to her parent Department. Accord ingly, services of Smt. Geetanjali Bhattacharyya is hereby placed at the disposa l of the Govt. of Assam with immediate effect. (S.K. Pandey) Chief Administrative Officer (cid:29) After the extension of the tenure of deputation, the management 14. of CAPART received certain allegations against the petitioner and involvements o f the petitioner’s husband, on the basis of which the management of CAPART made an enquiry to ascertain the truthfulness or otherwise of such allegation. 2 (two ) officers of the CAPART was deputed for that purpose. It also appears from th e records as well as the affidavit filed by the CAPART that the petitioner was a lso given the opportunity to explain her position and she accordingly replied to such allegation vide communication dated 01-08-2008 sent by e.mail to Sri R.K. Singh, R.O., who was one of the officers deputed for such enquiry (page 28 of th e counter affidavit filed by the respondent Nos.1 and 2). The management of CAP ART upon consideration of entire materials placed before it has taken a decision for repatriating the petitioner to the parent department, having found that the petitioner cannot be kept as Regional Representative and Member Convenor, Regio nal Centre at Guwahati and accordingly passed the impugned order of repatriation . The relevant note of the Director General, CAPART dated 18-08-2008, placed be fore the Minister of Rural Development and Chairman, CAPART, is reproduced below :- (cid:28)The note of the Vigilance Division from pages-1 to 10 and the subsequent note o f the Chief Vigilance Officer may please be seen. The complaint against Smt. Gi tanjali Bhattacharyya, RR & MC, CAPART-RC, Guwahati received from the organizati on called (cid:28)Development Initiative for People in Rural Area (cid:29), 4th Mile, Dimapur, Nagaland was enquired into by a team sent by Headquarters to Guwahati office.

2. It is clear from the note of Vigilance Division that Shri Samir Bhattach aryya, husband of Smt. Gitanjali Bhattacharyya, RR & MC, Guwahati received a che que for an amount of Rs.30,000/- from Dr. Sunita Changkakati, Executive Director , (cid:28)Assam Centre for Rural Development (cid:29), Guwahati. As per the certificate given by the Chief Manager, State Bank of India, South Guwahati, it is clear that mone y on the cheque for Rs.30,000/- was withdrawn by Shri Samir Bhattacharyya, husba nd of Smt. Gitanjali Bhattacharyya. It has also been proved by the record that a project for organizing Gram Shree Mela was sanctioned to the VO viz., (cid:28)Assam C entre for Rural Development (cid:29), Guwahati with CAPART assistance of Rs.8,00,000/- v ide sanction letter No.MKT/ASM/17/2/2006 on 21.11.2006. The entire sanctioned a mount was released in three installments i.e. Rs.4 lakhs as first installment on 20.12.2006, Rs.2 lakhs as second installment on 24.1.2007 and Rs.2 lakhs as thi rd and final installment on 2.3.2007. The entire grant received under the proje ct by the VO was deposited in the bank account No.10281987556 in State Bank of I ndia, South Guwahati Branch at Ulubari, Guwahati. The cheque bearing No.013599 for Rs.30,000/- issued in favour of Shri Samir Bhattacharyya husband of Smt. Git anjali Bhattacharyya by the VO was encashed from this account by Shri Samir Bhat tacharyya on 11.12.2006. A clear link has been established between sanction of the project for Gram Shree Mela to the VO viz., (cid:28)Assam Centre for Rural Developm ent (cid:29), Guwahati and the money received by Shri Samir Bhattacharyya, husband of Sm t. Gitanjali Bhattacharyya from the same VO.

3. Since there is a prima facie case against Smt. Gitanjali Bhattacharyya f or receiving pecuniary gain through her husband Shri Samir Bhattacharyya for san ction of a project to the VO concerned, it is proposed that Smt. Gitanjali Bhatt acharyya, RR & MC, CAPART-RC, Guwahati may be repatriated back to her parent Dep artment, Govt. of Assam. However, the matter relating to Rs.50,000/- and Rs.20, 000/- paid by the same VO to Shri Jayant Bhatacharya vide cheque No.67187 and 92 859 respectively will have to be enquired into in detail as to whether the payme nt for these cheques was also made to Shri Samir Bhattacharyya. The matter rela ting to (cid:28)Society for Social Development Training and Research (cid:29), Golaghat who is a first timer VO to CAPART for sanction of a workshop by accepting the fake and illegal terms & conditions of the said VO also needs further enquiry.

4. In view of the above, HMRD may kindly approve the repatriation of Smt. G itanjali Bhattacharyya, RR & MC, CAPART-RC, Guwahati to her parent Department, G ovt. of Assam. The disciplinary proceedings against Smt. Gitanjali Bhattacharyy a will be recommended to the Govt. of Assam only after a close examination of al l the relevant files by the Vigilance Division. Sd/- illegible (V. Venkatachalam) Director General 18.8.2008 (cid:29)

15. The record produced before the Court discloses the basis on whic h a decision has been taken by the management of CAPART for repatriation of the petitioner to the parent department and before taking such decision, an enquiry has been made by the authority about the truthfulness or otherwise of the allega tions levelled against the petitioner only for the limited purpose of satisfying itself as to whether in the interest of the CAPART the petitioner should be kep t on deputation. This Court in exercise of the jurisdiction under Article 226 o f the Constitution of India cannot go into the sufficiency or otherwise of the m aterials available before the management of CAPART for passing an order of repat riation but can definitely go into the question as to whether there are prima fa cie materials available before the management of CAPART to pass an order of repa triation, during the tenure of deputation, as a deputationist has the limited ri ght to continue in the deputed post till the end of the deputation period.

16. The materials available on records, as discussed above, disclose s existence of prima facie materials before the management of CAPART for passing an order of repatriation. The management of CAPART was satisfied about the exi stence of such materials and thereafter, has taken a decision for repatriation. Even the petitioner was given the opportunity to explain her position. The enq uiry, which was made by the authority of CAPART was only to find out the truth o r otherwise of the allegation for the purpose satisfying itself whether the peti tioner should be allowed to continue in the deputation post and not for any othe r purpose, namely the drawing of the departmental proceeding, which the borrowin g department otherwise has also no authority. The borrowing department, in case finds justifiable grounds for not keeping an officer on deputation, cannot be b urdened with the deputationist. If the services of a deputationist is not requi red by the borrowing department it can legitimately curtail the tenure of deputa tionist in the borrowing department, however, for good and sufficient reasons. As discussed above, the records produced by the management of CAPART discloses g ood and sufficient reason for curtailment of the tenure of deputation of the pet itioner. The order of repatriation, therefore, cannot be termed as punitive or stigmatic or arbitrary being devoid of any basis. Moreover, there is no allegat ion of malafide against the management or the officers of CAPART.

17. the writ petition and hence the same is dismissed. No cost. In view of the aforesaid discussion, I do not find any merit in