Joseph Mathew v Union of India and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE SMT. JUSTICE P.V.ASHA THURSDAY, THE 4TH DAY OF FEBRUARY 2016/15TH MAGHA, 1937 OP (CAT).No. 49 of 2016 (Z) ---------------------------- AGAINST THE ORDER IN OA 180/2016 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 02-02-2016 PETITIONER: ----------JOSEPH MATHEW AGED 56 YEARS S/O. T.A.MATHAI, PRIVATE SECRETARY CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH COCHIN - 682 017, RESIDING AT: MUPRAMANNIL HOUSE CHOTTANIKKARA P.O., PIN - 682 312, ERNAKULAM DISTRICT. BY ADVS.SRI.T.C.GOVINDA SWAMY SMT.KALA T.GOPI SMT.T.N.SREEKALA RESPONDENT(S): ---------------------------- 1. UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA MINISTRY OF URBAN DEVELOPMENT, NIRMAN BHAVAN NEW DELHI - 110 001. 2. THE PRINCIPAL REGISTRAR HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NO.61/35, COPERNICUS MARG NEW DELHI - 110 001. 3. THE REGISTRAR HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH, SASTHA TEMPLE ROAD, KOCHI - 682 017. R1-R3 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 04-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 49 of 2016 (Z) --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------- P1 - TRUE COPY OF ORDER DATED 2ND FEBRUARY 2016 IN OA NO.180/00081/2016 RENDERED BY THE LEARNED CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. P2 - TRUE COPY OF OA NO. 180/00081/2016 DT. 28TH JANUARY 2016 ALONG WITH ITS ANNEXURES, FILED BY THE PETITIONER, BEFORE THE LEARNED CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. P3 -TRUE COPY OF CIRCULARS BEARING NO.PB/1/6/2010-ESTT.I DT. 20.3.2015 ISSUED BY THE SECOND RESPONDENT. RESPONDENT(S)' EXHIBITS ----------------------- NIL. /TRUE COPY/ P.S TO JUDGE ## **K.SURENDRA MOHAN & P.V ASHA, JJ. ----------------------------------------------------O.P(CAT) No.49 of 2016 ---------------------------------------------------Dated this the 4[th] day of February, 2016** ## **JUDGMENT** ## Surendra Mohan, J. The petitioner, who had unsuccessfully invoked the jurisdiction of the Central Administrative Tribunal (hereinafter referred to as the `C.A.T’) by filing O.A No.180/00081/2016, has filed this Original Petition challenging Ext.P1 order. 2. The petitioner is at present working on deputation as a Private Secretary at the Ernakulam Bench of the C.A.T. He had filed the Original Application challenging Annexures A1 to A5 orders by which, he has been directed to be repatriated to his parent Department. The petitioner is a Central Secretariat Stenographers Service Cadre Private Secretary under the Ministry of Urban Development. He had joined the service in June 1983 under the Ministry of Home Affairs in the Directorate of Co-ordination (Police Wireless) and subsequently on his qualifying the Grade C Stenographers Examination, he was posted in the Ministry of Earth Sciences, New Delhi. He has requested the Ministry to post him at one of the attached offices 2 **O.P(CAT) No.49 of 2016** of the Ministry located in Ernakulam, so as to take care of his family. In 2014 while he was working in the Ministry of Urban Development, in response to a vacancy circular issued by the C.A.T, Principal Bench, New Delhi, the petitioner submitted an application to the 1[st] respondent with request to forward the same to the C.A.T, for consideration. He was selected and appointed in the C.A.T on deputation basis as per Annexure-A6 order dated 16.01.2015. The petitioner reported for duty in the forenoon on 4.2.2015, as evidenced by Annexure-A7. 3. According to the petitioner, a maximum period of 3 years is prescribed for deputation by Annexure-A9. However, the petitioner was posted on deputation for a period of one year only. On completion of the said period of one year, his deputation was extended upto 4.2.2016. The petitioner was under the impression that the period would be extended further. However, he has been directed to be repatriated as per Annexures-A1 and A2. According to the petitioner, though the repatriation has been stated to be due to exigency of service, the said statement is not proper. It is contended that a number of persons are working in different places, from the various Ministries under the Central Government. Only the Ministry of **O.P(CAT) No.49 of 2016** 3 Urban Development has issued, such an order seeking repatriation of all the employees who are working on deputation. For the above reason, he contends that, he is discriminated against. 4. The contentions of the petitioner were disputed by the respondents, who were represented by the Central Government Standing Counsel. The C.A.T considered the Original Application and has dismissed the same by Ext.P1 order, holding that the petitioner has no right to claim that he should be allowed to continue on deputation. The petitioner is aggrieved by the said order. 5. According to Advocate T.C.Govindaswamy, who appears for the petitioner, there is a difference between appointment on deputation and transfer on deputation. The right to be recalled at any time, that is available to the parent Department, would apply in full force where an employee is transferred on deputation. However, in the case of appointment on deputation, no arbitrary action of repatriation to the parent Department is permissible, as held by the Apex Court in a number of decisions. The learned Counsel has placed reliance on the decision of the Apex Court dated 6.1.2015 in Civil Appeal 4 **O.P(CAT) No.49 of 2016** No.5983 of 2007, the decision in **Ashok Kumar Ratilal Patel v. Union of India** [(2012) 7 SCC 757] as well as the judgment in **U.O.I v. V.Ramakrishnan** [AIR 2005 S.C 4295], to drive home this point. In the present case, according to the learned counsel, Annexure-A8, the Rules governing deputation, particularly Rule 8.2 and Rule 9 mandate that ordinarily, deputation shall be for a period of 3 years. Any employee on deputation would be recalled after giving advance notice of at least 3 months to him from the Department. According to the learned Counsel, therefore, the petitioner was under the impression that his period of deputation would be extended until expiry of the maximum period of 3 years. It is contended that, C.A.T has not considered the above aspects in the proper perspective. Therefore, he seeks interference with the impugned order. We have heard the learned Assistant Solicitor General of India (ASGI) also. 6. It is not in dispute that, Annexure-A6 is the order by which the petitioner was appointed on deputation. As per the said order, he has been appointed initially “for a period of one year from the date of his assumption of the charge of the post at Ernakulam Bench. His period of deputation may be extended or curtailed in administrative exigencies”. It was therefore a 5 **O.P(CAT) No.49 of 2016** special condition of his appointment that, his initial period of appointment was only for a period of one year and that the said period could either be extended or curtailed in administrative exigencies. It was accepting the above terms of Annexure-A6 that, the petitioner had joined duty as evident from Annexure-A7. Annexure-A1 is the office memorandum by which, the Under Secretary to the Government of India for Ministry of Urban Development has recalled the persons who are continuing on deputation. It is stated in Annexure-A1 that, “due to unforeseen and unavoidable administrative exigencies in the Ministry, the work pressure in the Ministry has increased substantially. In order to cope up with the present unavoidable situation, the Competent Authority has decided to call back all the officers/officials who are presently on deputation to other Departments”. It is clear from the above that, the officers on deputation have been called back, due to administrative exigencies. The proceedings list the names of 20 persons who are directed to be repatriated. Annexure-A2 also is to the same effect. Nothing has been produced before us, to warrant a conclusion that, the reasons of “administrative exigencies” put forth in Annexures-A1 and A2 are non existent. We also notice 6 **O.P(CAT) No.49 of 2016** that, Annexures-A1 and A2 are orders issued uniformly recalling all the employees of the Ministry who are on deputation. Therefore, it is a general order applicable alike to all the employees of the Ministry. For the above reasons, it cannot be said that the petitioner has been discriminated. Apart from the above, we notice that the period of deputation of the petitioner is to expire on 4.2.2016, ie. today. Therefore, the repatriation of the petitioner has not curtailed the period of his deputation also. The petitioner may have expected that his deputation would be extended for another period of one year. However, as already noticed above, the parent Department has the liberty to recall him at any time in view of the stipulations contained in Annexures-A6 and A7 proceedings. The petitioner had accepted his appointment on deputation subject to the conditions stipulated therein. Therefore, it is not open to the petitioner to question the same after having accepted appointment subject to the terms of Annexure-A6. 7. With respect to the contention that the appointment by deputation cannot be terminated in violation of the principles of Articles 14 and 16, we are not satisfied that the impugned proceedings are violative of the principles of equality enshrined 7 **O.P(CAT) No.49 of 2016** in the said provisions of our Constitution. As already noticed above, in the present case, the term of deputation of the petitioner is expiring. The C.A.T has considered the various aspects of the case in the proper perspective. We are in full agreement with the conclusions drawn and the findings entered by the C.A.T in Ext.P1. For the above reasons, we find no grounds to admit the Original Petition or to grant any reliefs sought for. The same is accordingly dismissed. _Sd/-_ _**K.SURENDRA MOHAN Judge** Sd/-_ _**P.V.ASHA Judge**_ rtr/ /true copy/ P.S to Judge