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Sanjay Kumar v. Union of India and Ors. - (Central Administrative Tribunal) (30 May 2017)

A deputationist can be reverted to his parent cadre at any time



Applicant has filed present O.A. under Section 19 of Administrative Tribunals Act, 1985, seeking to set aside impugned order dated 12th February, 2017 and direct Respondents to allow Applicant to continue in FRRO/IB Headquarter till conclusion of departmental enquiry initiated against him. Further, to declare action of Respondents in repatriating Applicant prematurely as illegal and arbitrary and issue directions for considering case of Applicant for completion of deputation period of 3 years as well as further extension at par with other similarly placed persons as per OM dated 17thFebruary,2016.

Supreme Court in Ratilal B. Soni & others Vs. State of Gujarat & Others, has held that, a deputationist can be reverted to his parent cadre at any time. Further, in Kunal Nanda Vs. Union of India and another, Supreme Court has held that, basic principle underlying deputation itself is that person can always and at any time be repatriated to his parent Department to serve in his substantive position at instance of either of Departments and there is no vested right in such a person to continue on deputation in Department to which he had gone on deputation. In Gurinder Pal Singh Vs. State of Punjab, Hon'ble Punjab & Haryana High Court, has held that, a deputationist would have no vested right to continue in borrowing Department even till completion of stipulated period of deputation. It is a tripartite contract and can be continued only if all the parties like it to continue.

Order dated 6th August,2014, by which Respondent-BSF placed services of Applicant at disposal of Respondent-IB, clearly stipulated that, period of deputation of Applicant would be three years subject to premature repatriation on grounds of unsuitability and exigency of service as well as if any other unforeseen factor so demand. Applicant would be governed by standard terms and conditions of deputation as laid down by Ministry of Personnel & Public Grievances and Pensions (Department of Personnel & Training) O.M. No. 2/29/91/Estt. (Pay II) dated 5th January, 1994, OM No. 6/8/2009-Estt. (Pay II) dated 17th June, 2010 and as amended from time to time. Paragraph 9 of DoP & T's O.M. dated 17th June, 2010, stipulates that normally, when an employee is appointed on deputation, his services are placed at disposal of parent Ministry/Department at end of tenure. However, as and when a situation arises for premature reversion to parent cadre of deputationist, his services could be so returned after giving him an advance notice of at least three months to lending Ministry/Department and employee concerned.

In view of nature of allegations made in FIR registered against Applicant, Respondent-IB, i.e., borrowing Department found that, Applicant was unsuitable to continue on deputation and that continuance of Applicant on deputation basis would potentially jeopardize national security. Accordingly, Respondent-IB decided to repatriate Applicant to his parent Department (BSF) after giving him and his parent Department (BSF) three months' notice. Thus, there is no question of any stigma being attached to impugned notice/order of repatriation of Applicant to his parent Department (BSF). Impugned order of repatriation of Applicant to his parent Department (BSF) cannot also be termed as punitive in nature.

Rule 20 of CCS (CCA) Rules, 1965 stipulates that where services of a Government servant are lent by one Department to another Department, borrowing authority shall have powers of appointing authority for purpose of placing such Government servant under suspension and of disciplinary authority for purpose of conducting disciplinary proceedings against him. Rule 21(2)(ii) of CCS (CCA) Rules, 1965, stipulates, that where a disciplinary proceeding is conducted against a Government servant whose services have been borrowed by one Department from another Department, if Disciplinary Authority is of opinion that, any of penalties specified in Clauses (v) to (ix) of Rule 11 (major penalties) should be imposed on Government servant, it shall replace services of such Government servant at disposal of lending authority and transmit it to proceedings of inquiry for such action, as it may deem necessary.

In instant case, disciplinary proceeding has been contemplated by Respondent-IB, i.e., borrowing Department, against Applicant under CCS (CCA) Rules, 1965. When before initiation of disciplinary proceedings against Applicant, Respondent-IB, i.e., borrowing Department issued impugned notice/order dated 22nd February, 2017 giving three months' notice to Applicant and Respondent-BSF for repatriation of Applicant to his parent Department (BSF) with stipulation that, Applicant would stand repatriated to his parent Department (BSF) with effect from 22nd May, 2017 and that Applicant would report for duty to his parent Department (BSF), Respondent-IB has no other option than to transmit all papers/documents pertaining to contemplated disciplinary proceedings to the respondent-BSF for such action as it may deem necessary. Thus, after joining in his parent Department (BSF) Applicant would get full opportunity to defend him in the disciplinary proceedings, if at all his parent Department (BSF) decides to proceed with the said disciplinary proceedings. Therefore, Applicant's challenge to impugned repatriation notice/order dated 22nd May, 2017 on ground of contemplation/initiation of disciplinary proceedings against him by Respondent-IB is without any substance.

Neither order dated 6th August, 2014 issued by Respondent-BSF placing services of Applicant at disposal of Respondent-IB, nor DoP & T's O.Ms. dated 5th January, 1994 and 17th June, 2010, which govern conditions of deputation of Applicant in Respondent-IB, stipulate that, in event of any disciplinary proceeding against Applicant being contemplated/initiated by Respondent-IB, Applicant has to continue on deputation in borrowing Department-IB till conclusion of departmental enquiry contemplated/initiated against him. Applicant has also not placed before this Tribunal any rule, or instruction, or order, issued by Respondents stipulating that, where disciplinary proceeding has been contemplated/initiated against a deputationist-Government servant by borrowing Department, such deputationist-Government servant has to continue in the borrowing Department till conclusion of said disciplinary proceedings by borrowing Department. There is no infirmity or illegality in impugned order of repatriation of Applicant to his parent Department (BSF). Thus, Applicant is not entitled to any of the reliefs sought by him in O.A.

Relevant : Ratilal B. Soni & others Vs. State of Gujarat & Others,MANU/SC/0207/1990 : 1990 (Supp.) SCC 243, Kunal Nanda Vs. Union of India and another, MANU/SC/0302/2000: AIR 2000 SC 2076, Gurinder Pal Singh Vs. State of Punjab, MANU/PH/1412/2004: 2005 (1) SLR 629


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