Research › Search › Judgment

Orissa High Court · body

2021 DIGILAW 478 (ORI)

Sakti Prasad Das v. Union Of India

2021-11-25

B.R.SARANGI

body2021
JUDGMENT Dr. B.R. Sarangi, J. - The petitioner, by way of this writ petition, seeks to quash the advertisement under Annexure-11, by which the Ministry of Social Justice and Empowerment, Department of Empowerment of Persons with Disabilities has invited applications for the post of Director, Swami Vivekananda National Institute for Rehabilitation, Training and Research (SVNIRTAR), Cuttack, an autonomous body, and to issue direction to the opposite parties to allow the petitioner to continue in the post of Director, SVNIRTAR, Cuttack for a total period of seven years from his initial date of appointment, i.e. 27.01.2016. 2. The factual matrix of the case, in a nutshell, is that SVNIRTAR, Cuttack is an autonomous body under the administrative control of the Department of Empowerment of Persons with Disabilities, Ministry of Societal Justice and Empowerment, Government of India, which has been formed for rehabilitation of physically handicapped and for research and training in the said field. 3. The petitioner was appointed as an Assistant Professor/General Duty Medical Officer (PMR), SVNIRTAR, Cuttack on 18.01.1995 by following due procedure of selection, pursuant to an advertisement. While the petitioner was so continuing, pursuant to an office memorandum dated 08.01.2016, he was selected and appointed on deputation to the post of Director initially for a period of 3 years. On 27.01.2016, after accepting the terms and conditions, he was appointed as the Director, SVNIRTAR. Thereafter, his deputation period was extended on 10.12.2018 for a further period of 2 years, i.e. total period of deputation of the petitioner to the post of Director was made to be 5 years, instead of 3 years. Since the period of deputation was going to over on 27.01.2021, the petitioner wrote a letter to opposite party no.1 on 07.10.2020 stating inter alia that as per the DOPT Office Memorandum dated 17.02.2016, the deputation period for government employees has been revised to the maximum period of 7 years instead of 5 years, therefore, his period of deputation may be extended to 7 years in accordance with the aforesaid office memorandum. While the representation of the petitioner was pending, since the period of deputation of 5 years was going to complete on 27.01.2021, opposite party no.1 issued an order on 21.01.2021 allowing the petitioner to continue to function as Officiating Director, SVNIRTAR with effect from 28.01.2021 till appointment of a regular Director or till further orders, whichever is earlier. While the representation of the petitioner was pending, since the period of deputation of 5 years was going to complete on 27.01.2021, opposite party no.1 issued an order on 21.01.2021 allowing the petitioner to continue to function as Officiating Director, SVNIRTAR with effect from 28.01.2021 till appointment of a regular Director or till further orders, whichever is earlier. But, without considering the extension of deputation period of the petitioner till completion of 7 years, as per the office memorandum dated 17.02.2016, a fresh advertisement was issued for recruitment of regular Director of SVNIRTAR, Cuttack by the opposite party no.1 under Annexure-11. Hence this writ petition. 4. Mr. J.K. Rath, learned Senior Advocate appearing along with Mr. B.P. Das, learned counsel for the petitioner argued with vehemence that the petitioner was appointed on 18.01.1995 under Annexure-3 as Assistant Professor/General Duty Medical Officer (PMR). While he was continuing as such, he was selected and appointed in the post of Director, SVNIRTAR, Cuttack on deputation basis for a period of 3 years vide office memorandum dated 08.01.2016 issued by opposite party no.1 under Annexure-4. Consequent upon acceptance of the terms and conditions contained in the offer of appointment issued vide office memorandum dated 08.01.2016, he was allowed to continue as Director of SVNIRTAR, Cuttack in the pay band of Rs.37,400- Rs.67,000/- with grade pay of Rs.8,700/- for a period of three years vide Annexure-5. Consequentially, before the period of deputation was going to expire on 27.01.2019, the competent authority vide order dated 10.12.2018 under Annexure-6, conveyed the approval of extension of the period of deputation of the petitioner for a further period of two years beyond 27.01.2019 up to 27.01.2021 on the same terms and conditions. While he was continuing as the Director, SVNIRTAR, the petitioner had also remained in charge of the post of Director, National Institute of Locomotor Disabilities (NILD), Kolkata, pursuant to the order dated 27.05.2019. Before the term of the petitioner as Director, SVNIRTAR was going to expire on 27.01.2021, the petitioner submitted a representation on 07.10.2020 to allow him to continue for another period of two years subject to maximum period of seven years. Before the term of the petitioner as Director, SVNIRTAR was going to expire on 27.01.2021, the petitioner submitted a representation on 07.10.2020 to allow him to continue for another period of two years subject to maximum period of seven years. However, while his representation was pending, at this point of time on 21.01.2021, a communication was made by the Joint Secretary to Government of India & Chairperson, Executive Council of SVNIRTAR, Cuttack-opposite party no.2, that as his deputation period as Director is expiring on 27.01.2021, he will continue to function as Officiating Director, SVNIRTAR, with effect from 28.01.2021 till appointment of a regular Director or till further orders, whichever is earlier. When he was continuing as such, an advertisement was issued under Annexure-11 where the maximum age limit has been prescribed as 56 years, which shall be reckoned as on the closing date of receipt of application. Thereby, the petitioner, having crossed the age limit, may not be eligible to participate in the process of selection and as per the office memorandum dated 17.02.2016, he should be allowed to continue till he completes 7 years of period at a stretch as the Director. Thereby, the issuance of such advertisement, without considering the representation dated 07.10.2020, is arbitrary, unreasonable and contrary to the provisions of law and as such the same is liable to be quashed. 5. Mr. P.K. Parhi, learned Assistant Solicitor General of India appearing along with Mr. D.R. Bhokta, learned Central Government Counsel, referring to office memorandum dated 17.02.2016, vehemently contended that as per the said office memorandum, if the administrative ministries/ departments and other borrowing organizations wish to retain an officer beyond 5 years, they may extend tenure of deputation covered by office memorandum dated 17.06.2010 where absolutely necessary in public interest up to a period of not exceeding 7 years at a stretch. The petitioner was allowed to continue for a period of 5 years and his deputation period was going to expire on 27.01.2021. However, the administrative ministry/department and also the borrowing organization have not expressed their willingness to retain the petitioner for a period beyond 5 years, i.e. up to a period of not exceeding 7 years. The petitioner was allowed to continue for a period of 5 years and his deputation period was going to expire on 27.01.2021. However, the administrative ministry/department and also the borrowing organization have not expressed their willingness to retain the petitioner for a period beyond 5 years, i.e. up to a period of not exceeding 7 years. Therefore, vide order dated 21.01.2021 under Annexure-10 the borrowing organization, namely, the Chairperson, Executive Council of SVNIRTAR, Cuttack-opposite party no.2 has intimated that as his deputation period as Director is expiring on 27.01.2021, he will continue to function as Officiating Director, SVNIRTAR, with effect from 28.01.2021 till appointment of a regular Director or till further orders, whichever is earlier. Therefore, for appointment of regular Director if the advertisement has been issued under Annexure-11, no illegality or irregularity has been committed by the authority concerned so as to cause interference by this Court at this stage. 6. Mr. A.K. Parija, learned Senior Advocate enters appearance along with Mr. A. Patnaik, learned counsel for the intervener-petitioner, who had filed an Interlocutory Application bearing I.A. No. 9424 of 2021. Though the said I.A. was not allowed, however, the intervener was permitted to participate in the process of hearing. Mr. Parija, learned Senior Advocate contended that the office memorandum dated 17.02.2016 issued by the Government of India, Ministry of Personnel, Public Grievance and Pensions, Department of Personnel and Training clearly reveals that in the event the administrative ministries/ departments and other borrowing organizations wish to retain an officer beyond 5 years, they may extend the tenure of deputation covered by office memorandum dated 17.06.2010 where absolutely necessary in public interest up to a period of not exceeding 7 years at a stretch. There is no valid and justifiable reason indicated that the continuance of the petitioner is absolutely necessary in public interest for extension of period of deputation up to a period not exceeding 7 years. According to him, though the petitioner had filed a representation on 07.10.2020 under Annexure-8, the same has been considered by the borrowing organization, namely, opposite party No.2 and it has been decided that his deputation period as Director is expiring on 27.01.2021 and he will continue to function as officiating Director, SVNIRTAR, with effect from 28.01.2021 till appointment of a regular Director or till further orders, whichever is earlier. In view of such position, since an advertisement was issued for appointment of regular Director, no illegality or irregularity has been committed by the authority by issuing such advertisement. More so, the petitioner has not challenged the order dated 21.01.2021 under Annexure-10. Consequentially, the writ petition has to be dismissed, in view of the fact that the petitioner has no vested right to continue beyond the period of deputation, i.e. 5 years, as neither the administrative ministry/department nor the borrowing organization- opposite party no.2 wishes to retain him beyond 5 years by extending the period up to seven years, as his continuance is not absolutely necessary in public interest. More so, after the deputation period is over, the petitioner cannot claim, as a matter of right, to continue till 7 years and consequentially seek for quashing of the advertisement issued for regular appointment of Director. It is further contended that pursuant to such advertisement, the selection process has continued, but because of the interim order passed by this Court on 08.04.2021 in I.A. No. 5676 of 2021, the post of regular Director of opposite party no.2 has not been filled up as it has been directed by this Court that the authority may proceed with the advertisement, but there shall be no appointment of Director of SVNIRTAR, Olatpur, without leave of the Court, until further orders. It is further contended that though the intervener, who is continuing as Associate Professor, has participated in the process of selection for appointment of regular Director, because of the interim order passed by this Court, result of such selection has not been published, which caused prejudice to the persons those who have applied for the post of Director. Therefore, the intervener seeks for dismissal of the writ petition, as at the instance of the petitioner, who has completed tenure of deputation of 5 years, the prayer made in this writ petition cannot sustain in the eye of law. 7. This Court heard Mr. J.K. Rath, learned Senior Advocate appearing along with Mr. B.P. Das, learned counsel for the petitioner, Mr. P.K. Parhi, learned Assistant Solicitor General appearing along with Mr. D.R. Bhokta, learned Central Government Counsel for opposite parties; and Mr. A.K. Parija, learned Senior Advocate appearing along with Mr. A.K. Patnaik, learned counsel for intervener, by hybrid mode and perused the record. J.K. Rath, learned Senior Advocate appearing along with Mr. B.P. Das, learned counsel for the petitioner, Mr. P.K. Parhi, learned Assistant Solicitor General appearing along with Mr. D.R. Bhokta, learned Central Government Counsel for opposite parties; and Mr. A.K. Parija, learned Senior Advocate appearing along with Mr. A.K. Patnaik, learned counsel for intervener, by hybrid mode and perused the record. Pleadings having been exchanged between the parties, with their consent, the writ petition is being disposed of finally at the stage of admission. 8. It is the admitted fact that pursuant to office memorandum dated 08.01.2016 vide Annexure- 4, the petitioner was appointed on deputation basis as the Director, SVNIRTAR, Cuttack for a period of 3 years, which was duly approved by opposite party no.1 on 27/28.01.2016. In pursuance thereof, the petitioner joined the post and continued with effect from 28.01.2016. The said deputation period of 3 years was extended to 5 years, pursuant to order dated 10.12.2018 under Annexure-6, which was going to expire on 27.01.2021. Though the petitioner submitted a representation vide Annexure-8 on 07.10.2020 for extension of his period of deputation, the authority, instead of doing so, issued an order on 21.01.2021 stating therein that since his deputation period as Director was expiring on 27.01.2021, he will continue to function as officiating Director, SVNIRTAR, with effect from 28.01.2021 till appointment of a regular Director or till further orders, whichever is earlier. Pursuant threto, the petitioner continued as officiating Director beyond 27.01.2021, by which his 5 years deputation period has already been over. Therefore, for appointment of regular Director, if an advertisement is issued, the petitioner cannot and could not have challenged the same, as neither the ministry/department, nor the borrowing organization, namely, opposite parties 2 and 3 wish to retain the petitioner beyond 5 years and or to extend the tenure of deputation covered by the office memorandum dated 17.06.2010, up to a period not exceeding 7 years at a stretch. Thereby, the grievance made by the petitioner by way of filing representation dated 07.10.2020 vide Annexure-8 has already been considered and mitigated vide Annexure- 10 dated 21.01.2021 allowing the petitioner to continue as Officiating Director, SVNIRTAR, after expiry of deputation period with effect from 28.01.2021 till appointment of a regular Director or till further orders, whichever is earlier. Thereby, the grievance made by the petitioner by way of filing representation dated 07.10.2020 vide Annexure-8 has already been considered and mitigated vide Annexure- 10 dated 21.01.2021 allowing the petitioner to continue as Officiating Director, SVNIRTAR, after expiry of deputation period with effect from 28.01.2021 till appointment of a regular Director or till further orders, whichever is earlier. The petitioner has also not challenged such order dated 21.01.2021 under Annexure-10 in this writ petition, rather prayer has been made with regard to quashing of the advertisement issued for appointment of regular Director. 9. The moot question which falls for consideration in this case is whether appointment of the petitioner as Director, SVNIRTAR, Cuttack on deputation basis accrues a right in his favour to be appointed as such on regular basis? 10. While analyzing the word 'deputation', in the case of State of Punjab Vs. Inder Singh, (1998) 7 SCC 372 ; AIR 1998 SC 7 the apex Court held that the 'Concept of 'deputation' is well understood in service law and has a recognized meaning. 'Deputation' has a different connotation in service law and the dictionary meaning of the word 'deputation' is of no help. In simple words 'deputation' means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that it is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per Recruitment Rules. 11. In Umapati Choudhury v. State of Bihar, (1999) 4 SCC 659 ; AIR 1999 SC 1948 , the apex Court held that deputation can be aptly described as an assignment of an employee ( commonly referred to as the deputationist) of one department or cadre or even an organisation (commonly referred to as the parent department or lending authority) to another department or cadre or organisation (commonly referred to as the borrowing authority). The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves 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. 12. In the case at hand, the petitioner was assigned the responsibility of Director of SVNIRTAR being an employee of it, to discharge his duty under opposite party nos. 2 and 3 and that deputation was for a fixed period. After expiry of such fixed period, he has no vested right to continue unless the same is extended either by the administrative ministry/department or the borrowing organization. 13. In J.S. Yadab v. State of U.P., (2011) 6 SCC 570 , the apex Court held that the 'vested right' is a right independent of any contingency. Such a right can arise from a contract, statute or by operation of law. A vested right can be taken away only if the law specifically or by necessary implication provides for such a course. 14. When the petitioner was appointed as the Director on deputation basis vide Annexure-4 for a period of 3 years on 08.01.2016 and the same was extended vide order dated 10.12.2018 for a period of 5 years, which was expired on 27.01.2021, in such eventuality, if subsequently either the administrative ministry/department or borrowing organization wishes to retain him beyond 5 years, it can extend tenure of his deputation covered by office memorandum dated 17.06.2010 up to a period of not exceeding 7 years at a stretch, if his continuance is absolutely necessary in public interest. Thereby, there is no compulsion on the part of the administrative ministry/department or the borrowing organization to allow the petitioner to continue by extending the period up to 7 years at a stretch, as there is absolutely no need in public interest for his continuance. 15. In T.M.A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 , the apex Court held that 'Public Interest' means those interest which concerns the public at large. 16. 15. In T.M.A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 , the apex Court held that 'Public Interest' means those interest which concerns the public at large. 16. In State of Uttaranchal v. Balwant Singh, (2010) 3 SCC 402 , the apex Court explained the 'public interest' referring the meaning attached to Black's Law Dictionary to the following effect:- "Public Interest - Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, state or national government...." 17. The above being the settled position of law, nothing has been placed on record to indicate that the continuance of the petitioner up to a period of 7 years at a stretch is absolutely necessary in public interest. Thereby, the borrowing organization, namely, opposite party Nos.2 and 3, vide order dated 21.01.2021, specifically mentioned that as the period of deputation of the petitioner as Director is expiring on 27.01.2021, he will continue to function as Officiating Director, SVNIRTAR, with effect from 28.01.2021 till appointment of a regular Director or till further orders, whichever is earlier. That itself clearly indicates that the borrowing organization was also not inclined to extend his period of deputation up to 7 years. As a consequence whereof, Annexure-11, the advertisement was issued for appointment of regular Director. More so, the petitioner having attained the age of 56 years has become ineligible pursuant to such advertisement, as has been contended by learned Senior Advocate appearing for the petitioner. Merely because the petitioner is ineligible to make an application, at his instance, the advertisement issued under Annexure-11 cannot be quashed. 18. In view of the conspectus of facts and law, as discussed above, this Court is of the considered view that the petitioner has no vested right to continue after his deputation period of 5 years is expired on 27.01.2021, as the same has not been extended up to 7 years at a stretch. Thereby, at his instance, the advertisement issued in Annexure-11 for regular recruitment of Director cannot be quashed. As such, the validity of the advertisement has not been challenged in any manner whatsoever. Thereby, at his instance, the advertisement issued in Annexure-11 for regular recruitment of Director cannot be quashed. As such, the validity of the advertisement has not been challenged in any manner whatsoever. More so, the petitioner, having not challenged the order passed on 21.01.2021 under Annexure-10, he cannot claim to quash the advertisement issued under Annexure-11 in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. 19. Resultantly, the writ petition merits no consideration and the same stands dismissed. There shall be no order as to costs. 20. Consequentially, the interim order passed on 08.04.2021 in I.A. No. 5676 of 2021, which was extended from time to time, stands vacated. The opposite parties are directed to proceed pursuant to the advertisement in Annexure-11 for regular recruitment of Director, SVNIRTAR, Cuttack, as expeditiously as possible.