Nikhil Chandra Das vs State Of Tripura And Ors

Petitioner has challenged an order dated 26.05.2020 at Annexure-8 to the petition by which he was repatriated to his parent department of Tripura State Co-operative Consumers Federation (TSCCF, for short).

Brief facts are as under:

The petitioner was appointed on the post of Salesman/Office Assistant under TSCCF by an order dated 23.05.1990 in the pay scale of Rs.970-2400/-. On 30.03.2006 the Under-Secretary to the Government of Tripura issued a memorandum which provided that 10 employees of TSCCF shall be appointed and posted in the office of Sub-Divisional Magistrate, Santirbazar and Sub-Divisional Magistrate, Teliamura, the petitioner was one of them. Pursuant to the said memorandum; under order dated 30.03.2006 the petitioner was posted in the office of Sub-Divisional Magistrate, Santirbazar. This order records that on being released from TSCCF they should report to the Deputy Collector and Magistrate, Santirbazar. On the same day, TSCCF passed an order releasing all 10 employees including the petitioner for joining their duties under the Government. The petitioner reported for duty on 31.03.2006. On 02.06.2006 District Magistrate & Collector, South Tripura passed an order recording joining and posting of the petitioner and other employees from TSCCF to the Government service. This order clarified that in terms of letter dated 15.05.2006 services of these employees will be treated as on deputation for a period of two years from the date of joining their service.

The petitioner continued to discharge his duties in the Government department on deputation. On 29.09.2009 the petitioner wrote to the Secretary, Revenue Department that he has not been issued letter of appointment absorbing him as an employee of Sub-Divisional Magistrate. He requested such an appointment order be issued. This arrangement continued for several years till eventually by the impugned order dated 26.05.2020 the petitioner was sought to be repatriated to his parent organization since his date of superannuation which was 31.08.2020 was close, which order the petitioner has challenged in this petition.

The respondents have appeared and filed reply. The Government affidavit states that the Chief Secretary, Government of Tripura had conveyed the decision of the Government dated 16.03.2006 that with respect to the staff of TSCCF, those who had opted, may be withdrawn and posted to the newly created Sub-Divisions of Teliamura and Santirbazar. It was thus clear that the petitioner was sent on deputation to Government service. Copies of relevant Government orders are produced on record, reference to which shall be made at a later stage. It is further stated that the petitioner was repatriated before the date of his superannuation so that all his financial benefits from the parent department can be regulated. It is pointed out that the Government has taken a decision circulated by a memorandum dated 21.05.2020 that the employees of PSUs and Boards cannot be absorbed in the Government department and they should be repatriated to the parent organisation at least six months prior to the retirement of the official.

Appearing for the petitioner, learned counsel Mr. Somik Deb submitted that the memorandum dated 30.03.2006 and the consequential order dated 30.03.2006 passed by the Government give no indication that the petitioner was sent on deputation. In fact, these documents use the words "appointed and posted". Subsequently, the Government could not have changed the position as was sought to be done under order dated 02.06.2006 where the posting of the petitioner was described as by way of deputation. He drew my attention to Rule 110 of the Fundamental Rules to contend that this rule does not envisage deputation of a person to Government service and envisages only deputation of a Government servant to another organisation. He, therefore, contended that posting of the petitioner under the Government can never be treated as by way of deputation. He next contended that the petitioner had discharged his duties under the Government for several years without any blemish. At the fag end of his service he could not have been repatriated even if he is to be treated as deputationist. Counsel referred to the Government office memorandum dated 21.05.2020 which provides that a deputationist should be repatriated to the parent department at least six months prior to the retirement which in the present case was not observed. Counsel also contended that an employee cannot be sent on deputation without his consent. Such consent must be expressed and cannot be presumed. In the present case, there is no record suggesting that the petitioner had consented for such deputation.

In support of his contentions, counsel relied on following decisions:

(i) Raja Singh and another vrs. State of Uttar Pradesh and another, reported in (2019) 6 SCC 528; and

(ii) A decision of learned Single Judge of this Court in case of Shri Debasish Majumder vrs.The State of Tripura & others dated 04.03.2016 in WP(C) No.349 of 2015.

On the other hand, learned Government Advocate Mr. Debalay Bhattacharjee opposed the petition contending that all along the petitioner discharged his duties as a deputationist. He never objected to this status. A deputationist has no right of absorption in the Government service. The Government policy does not permit any such absorption.

Counsel submitted that since the financial condition of TSCCF which was an organization established by the Government was weak; it would have been difficult for the said organization to pay the salary of large number of clerical staff. Instead of terminating the services of such staff members, the Government at the relevant time decided to utilize their services in the vacant Government posts on deputation. This would ensure that the financial burden on the TSCCF would be reduced, the employees concerned would not have to be retrenched and their services could be utilized for Government work. However, at no stage the Government had any intention of permanently absorbing such employees and undertaking the responsibility of the post retiral benefits also. Counsel relied on a decision of learned Single Judge of this Court in case of Shri Mrinal Kanti Ghosh vrs. The State of Tripura and others dated 09.07.2020 in WP(C) No.1263 of 2016 where similar issues came up for consideration.

I have no doubt in my mind that the petitioner was sent on deputation under the State Government service and that is how he continued to discharge his duties all throughout. It is true that in the memorandum dated 30.03.2006 and order dated 30.03.2006 the administration has loosely described the petitioner and other employees of TSCCF being appointed and posted under Santirbazar and Teliamura Sub-Divisions. However, in the detailed order dated 02.06.2006 passed by the District Magistrate & Collector, South Tripura which contains the terms and conditions on which such employees were brought over to Government organization it is clearly specified that they would be on deputation for a period of two years. Even the intention of the Government from the outset was clear namely to send the existing staff of TSCCF who had given consent, on deputation to Government service. On 16.03.2006 the Chief Secretary to the Government of Tripura had conveyed the decision of the Chief Minister that in case of clerical staff of TSCCF who have so opted may be withdrawn and posted to the newly created Sub-Divisions of Teliamura and Santirbazar. On 15.05.2006 the Joint Secretary of Government of Tripura wrote to the District Magistrate & Collector, South Tripura that as per the Government decision appointment of the employee of TSCCF will be on deputation and they may be allowed to draw their existing salary. It was pursuant to such deliberations and decisions of the Government that the petitioner and other co-employees of TSCCF came to be brought over to Government service, on deputation. The petitioner has not pleaded ignorance of the said order dated 02.06.2006 passed by the District Magistrate & Collector, South Tripura. In fact, this order has been produced by the petitioner himself at Annexure-6 to the petition. Nor has the petitioner contended that he ever objected to his status being described as a deputationist in the said order. Thus, the petitioner clearly understood and accepted that he is discharging his duties in the Government office as a deputationist and not as a Government servant.

The fact that F.R. 110 refers to deputation of a Government servant outside Government service is of no consequence. For sending an employee of a corporation established by the Government on deputation to Government service, no authority of statutory rule would be necessary. Sending an employee on deputation would principally require readiness of the lending as well as the borrowing organizations and unless statutory rules provide to the contrary, consent of the concerned employee. There is nothing to suggest that such consent must be expressed and cannot be culled out from facts and attending circumstances. As noted, the decision of the Chief Minister of the State was that those Group-C employees of TSCCF who have opted, may be sent on deputation to Government service. Further in the said order dated 02.06.2006 the District Magistrate & Collector had made it clear that the petitioner was being sent to Government service on deputation. The petitioner never objected to this condition. It can, therefore, be safely presumed that the petitioner had opted for being sent on deputation. In any case, his silence for years together can be construed as his unconditional consent. Even in the petition the petitioner has not averred that he had not consented for being sent on deputation.

As per settled law, a deputationist has no right of permanent absorption in the borrowing department. The same must depend on the policy of the lending and the borrowing organizations. As pointed out by the Government Advocate, the State of Tripura has taken a conscious decision not to absorb any staff of the PSUs or the Boards who may be working in the Government on deputation. The provision that such official should be repatriated to the parent department at least six months before his retirement is directory and cannot be seen as mandatory, at any date giving a right to the petitioner to insist that if such a condition is breached, the same would result into crystallization of a right of absorption in his favour.

Similar issues had come up for consideration before this Court on number of occasions. In case of Mrinal Kanti Ghosh (supra), it was held and observed as under:-

"[16] I am prepared to proceed on the basis that all petitioners were on deputation to Government service but retired without absorption. Short question is, can the petitioners press for their absorption in Government service as a matter of right, mainly on the ground that they had put in long service as deputationists before they were repatriated and retired. The answer obviously has to be in the negative. The petitioners have not cited any statutory rule which vests any right in favour of a deputationist to be absorbed in Government service upon completion of requisite number of years of service on deputation. In fact, the respondents have been citing recruitment rules for the respective posts contending that only mode of recruitment to Group - C and D posts is by direct recruitment and appointment by absorption of deputationist is not one of the means of recruitment.

[17] Further, it is well settled in series of judgments of the Supreme Court that a deputationist does not have a vested right of absorption in the service of the borrowing organization. In case of Kunal Nanda Vs. Union of India and Anr., reported in (2000) 5 SCC 362 it was held and observed as under :

"6. On the legal submissions made also there are no merits whatsoever. It is well settled that unless the claim of the deputationist for permanent absorption in the department where he works on deputation is based upon any statutory Rule, Regulation or Order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation. The reference to the decision reported in Rameshwar Prasad Vs M.D., U.P. Rajkiya Nirman Nigam Ltd. and Others [1999 (8) SCC 381] is inappropriate since, the consideration therein was in the light of statutory rules for absorption and the scope of those rules. The claim that he need not be a graduate for absorption and being a service candidate, on completing service of 10 years he is exempt from the requirement of possessing a degree need mention, only to be rejected. The stand of the respondent department that the absorption of a deputationist being one against the direct quota, the possession of basic educational qualification prescribed for direct recruitment i.e., a degree is a must and essential and that there could no comparison of the claim of such a person with one to be dealt with on promotion of a candidate who is already in service in that department is well merited and deserves to be sustained and we see no infirmity whatsoever in the said claim."

[18] In case of Ratilal B. Soni and Ors. Vs. State of Gujarat and Ors., 1990 (Supp.) SCC 243, it was observed as under :

"5. The appellants being on deputation they could be reverted to their parent cadre at any time and they do not get any right to be absorbed on the deputation post. We see no infirmity in the judgment of the High Court and as such we dismiss the appeal. There shall be no order as to costs."

[19] In case of Dilip Kumar Saha Vs State of Tripura and Ors., WP(C) No.237/2020, in an judgment dated 20th March, 2020 Single Judge of this Court had observed as under :

"As per settled law, a deputationist has no right of absorption in the borrowing department. The petitioner was an employee of the said Federation and strictly speaking, was not a Government servant. It was only because the Federation ran into acute financial difficulties that the Government in order to obviate the difficulties of the staff of the Federation, out of sympathetic consideration called for options and protected the services of those who were willing to work in other Government organizations or departments. This option itself clearly provided that those who are not so willing, may apply for VRS. In other words, if the petitioner or any other staff member of the Federation at the relevant time had shown disinclination to work in any other Government organization or department, the Federation would have had no choice but to terminate the service through voluntary retirement. It was only in order to protect the petitioner and other similarly situated employees of the Federation from such premature termination, that the Government out of sympathetic consideration decided to take work from them in other Government organizations or departments. The petitioner thus continued from 2006 till date on deputation basis. Absorption of a deputationist must depend on range of factors, principally the policy of the borrowing department. Therefore, the petitioner has no legal right to insist on being absorbed.

One isolated incident of the year 1999 of absorption of one such deputationist is cited before me. Such considerations and situation prevailing in the year 1999, cannot be applied after two decades. No directions for absorbing the petitioner, therefore, can be passed."

[20] It appears, as is stated by the petitioners in their rejoinders, that because of surplusage of employees in their parent organizations, the State Government had utilized the services of the petitioners on deputation. In plain terms, if the State Government had not intervened and utilized the services of the petitioners on deputation basis, in all likelihood, the petitioners would have faced possible retrenchment. It was an order to avoid such an unpleasant consequence for a sizeable number of employees of State-owned Corporations that this formula of utilizing the services of permanent employees of such Corporations on deputation seemed to have been devised by the State Government. At no stage, the petitioners ever opposed continued prolonged deputation. In other words, the petitioners never sought repatriation to their parent organizations. As is well settled, deputation is a method of temporarily borrowing the services of an employee of one organization or department by another organization or department. In the process, consent of all three agencies i.e. the employer as the lending organization, the borrowing organization where the employee would be sent on deputation and also that of the employee himself, is necessary. Thus the petitioners consented to be sent on deputation and to continue to work on deputation for long period of time. They now cannot turn around and claim regularization dehors statutory rules and in absence of Government policy."

In case of Debasish Majumder (supra), facts were entirely different. It was a case where the petitioner was previously working as Accountant in the District Rural Development Agency. Subsequently, the Society for Women's Polytechnic issued employment advertisement for various posts including the post of Accountant on deputation. The petitioner applied for the said post, was selected and joined as an Accountant in Society for Women's Polytechnic. The Principal of the said institute also wrote to the Director of Higher Education for absorption of the petitioner on the post of Accountant on several occasions. It was found that the petitioner's relationship with his former employer had come to an end and the petitioner no longer enjoyed a lien over his post in the said organization. It was, therefore, held that the petitioner could not have been treated as a deputationist. Since the petitioner's lien with the former employer had come to an end, he could not have been repatriated to his parent organization. It was under such circumstances that the Court directed that the respondents shall consider the petitioner for absorption on the post of Accountant on regular scale.

In case of Raja Singh and another (supra) while reiterating that the employee even if he has spent several years in service in the department on deputation, will not have a right of absorption, in peculiar facts of the case, had ordered absorption of the concerned employees in Government service. In the concluding paragraph, the Supreme Court had observed that the said judgment shall not be quoted as a precedent and had been rendered in a peculiar facts and circumstances of the case.

Under the circumstances, I do not find any merits in the petition. The same is dismissed. If the petitioner had enjoyed any interim relief pending this petition, the same shall be vacated.

Pending application(s), if any, also stands disposed of.