Nikhil Chandra Das vs State Of Tripura & Ors

S.G. Chattopadhyay, J

[1] This Writ Appeal has been filed against the judgment and order dated 23.09.2020 passed by learned Single Judge, in WP(C) No.309 of 2020.

[2] The factual context of the case is as under:

(i) Appellant Nikhil Chandra Das was appointed as a sales-man / assistant in the pay scale of Rs.970-2400/- purely on contractual basis in the establishment of Tripura State Cooperative Consumers Federation Ltd.(TSCCF for short) by a memorandum issued by the administrator of TSCCF on 23.05.1990[Annexure-A to the Writ Petition] for a period of 01 year w.e.f the date of his joining.

(ii) On 30th March, 2006, the Chief Secretary to the Government of Tripura in the Revenue Department issued a memorandum [Annexure-2 to the Writ petition] which provided that 10 employees of TSCCF Ltd. in Group-C shall be appointed and posted in the office of Sub-divisional Magistrates of Santirbazar and Teliamura and the respective District Collectors were asked to issue appointment order in favour of those employees of TSCCF and post them in the offices of SDM, Santirbazar and Teliamura against available vacancies. The said memorandum contained the list of those 10 employees which included the name of the appellant.

(iii) District Magistrate and Collector of the erstwhile South Tripura District by issuing order dated 30.03.2006[Annexure-3 to the Writ Petition] had posted the appellant in the office of the Sub-divisional Magistrate Santirbazar and the appellant was asked to report to the Deputy Collector and Magistrate of Santirbazar Revenue circle immediately after his release from TSCCF.

(iv) On the same day i.e. on 30.03.2006, the Chief Executive Officer of TSCCF released all the 10 employees including the appellant who were so appointed in the office of the Sub-divisional Magistrate at Santirbazar and Teliamura and the said employees were asked to hand over their charges to the next senior staff of their respective units on the same day or within the next week so as to enable them to join their new assignment.

(v) It would appear from the record that pursuant to the order of his appointment in the office of SDM, Santirbazar and the subsequent release order issued from TSCCF Ltd., appellant joined the office of the Deputy Collector and Magistrate, Santirbazar, Tripura on 31.03.2006 in the fore noon and joining of the appellant was accepted by the Deputy Collector and Magistrate, Santirbazar by a written order dated 31.03.2006 [Annexure-5 to the Writ Petition].

(vi) On 02.06.2006, the DM and Collector, South Tripura issued an order [Annexure-6 to the Writ Petition] indicating that the appellant along with other 05 employees of TSCCF Ltd. who were posted at Santirbazar Sub-division would be treated as on deputation for a period of 02 years from the date of joining. The said order dated 02.06.2006 was duly communicated to the appellant.

(vii) The appellant continued to discharge his duties without raising any question with regard to the nature of his appointment and posting. Only on 29.09.2009 i.e more than 03 years after his appointment in the office of DCM Santirbazar on deputation, the appellant filed an application to the Commissioner and Secretary, Revenue Department seeking absorption in the post held by him.

(viii) But the State Government treated the appellant and the other employees of TSCCF who were posted in the office of SDM, Teliamura and Santirbazar as the employees of TSCCF Ltd. serving on deputation. By an order dated 26.05.2020[Annexure-8 to the Writ Petition] the DM and Collector repatriated the appellant to his parent department on the ground that he was due to retire on 31.08.2020. The appellant who was then working as an LDC in the office of DM was treated to have been released from the said office w.e.f. the afternoon of 31.05.2020 and he was directed to join his parent department on 01.06.2020 for duty.

[3] Challenging the order dated 26.05.2020, the appellant filed WP(C)No.309 of 2020 mainly on the ground that in the memorandum dated 30.03.2006[Annexure-2 to the Writ Petition] whereunder appellant along with 9 other employees of TSCCF Ltd. were appointed and posted in the office of SDM Santirbazar and Teliamura and in the subsequent order dated 30.03.2006[Annexure-3 to the Writ Petition] whereunder he was posted in the office of SDM, Santirbazar and even in the order dated 30.03.2006 [Annexure-4] whereby he was released from TSCCF Ltd., there was no indication that the appellant was sent to the government department from TSCCF on deputation. The writ petitioner [Appellant herein] contended that after serving the government department without any blemish for as many as 14 years from 2006, he was suddenly repatriated to TSCCF Ltd. by the impugned order dated 26.05.2020 [Annexure-8 to the writ petition] only 06 months prior to his retirement which was totally illegal and uncalled for.

[4] The state respondents submitted their reply asserting that the Chief Secretary to the Government of Tripura vide note No.F.2(1)ES.Gen/2006 dated 16.03.2006 conveyed several decisions of the Government on different issues which under Paragraph (iv) provided that the clerical staff, who have so opted, may be withdrawn and posted to the newly created sub-division of Teliamura and Santirbazar. The state respondents contended further that the appellant who was sent on deputation to government service was repatriated before the date his superannuation so that all retiral benefits can be disbursed from his parent department. Moreover after considering the proposal for absorption of employees of PSUs/ Boards in government departments after they rendered service in the government departments for a long time, the state government decided that at least 6 months prior to their retirement, they should be repatriated to their parent PSU/ Board and on reversion to their parent organization, their pay will be re-fixed in the original level/ grade. The decision of the Government was circulated in the form of guidelines under Memorandum dated 21.05.2020 and all HODs were advised to follow the instructions contained in these guidelines. Therefore, it was contended that the state respondents acted in terms of the decision of the State Government contained in office memorandum dated 21.05.2020[Annexure-R/10] by repatriating the appellant and other employees of TSCCF to their parent department from government department.

[5] Learned counsel of the appellant argued before the learned Single Judge that there was no indication in the memorandum dated 30.03.2006[Annexure-2] and in the consequential order dated 30.03.2006 [Annexure-3] issued by the State Government that the petitioner was sent on deputation from TSCCF after appointment and posting in the government department. Counsel argued that in memorandum dated 30.03.2006 [Annexure-2 to the writ petition] it was stated that the employees of TSCCF whose name appeared in the document were appointed and posted in the office of the SDM Santirbazar and SDM Teliamura. Similarly, in the subsequent document i.e. order dated 30.03.2006 [Annexure-3 to the Writ Petition] it was stated that the employees of TSCCF named in the said document was posted in the office of the SDM Santirbazar. Subsequently, the State Government should not have changed the terms of their appointment and posting by saying that they were sent on deputation for two years which was sought to be done under order dated 02.06.2006 [Annexure-6 to the writ petition]. Learned counsel of the appellant also referred to Rule 110 of the Fundamental Rules (FR) to contend that the sad Rule did not envisage deputation of a person to government service. The rule only envisages deputation of a government servant to another organization. Counsel, therefore, argued before the learned Single Judge that in terms of Rule 110 of FR, posting of the appellant under the Government department could not have been treated as posting on deputation. This apart, learned counsel of the appellant contended before the learned Single Judge that the appellant discharged his duties in the Government department for about 14 years from 2006 without blemish. He never even thought that he was placed on deputation and he would be repatriated to TSCCF as there was no such indication in his appointment and posting order. Counsel further argued before the learned Single Judge that no expressed consent of him was obtained for sending him on deputation to the government department and as such it cannot be said that he consented for such deputation. Counsel urged before the learned Single Judge for quashing the repatriation order dated 26.05.2020 of the appellant whereunder he was repatriated to TSCCF 6 months prior to his retirement.

[6] To nourish his contention, learned counsel of the petitioner placed reliance on the following decisions:

(i) Raja Singh and another versus State of Uttar Pradesh and another reported in (2019)6 SCC 528

(ii) Judgment dated 04.03.2016 rendered by the learned Single Judge of this High Court in the case of Sri Debashish Majumder vs. State of Tripura and Ors. , WP(C) No.349 of 2015.

[7] Learned counsel of the state respondents on the other hand argued before the learned Single Judge that the appellant was aware of the fact that he along with other employees of TSCCF was sent on deputation to the government department pursuant to the decision of the State Government to save them from termination since TSCCF was in serious financial crunch and it was necessary to reduce the financial burden of TSCCF in order to save the organization. Therefore, the State Government decided to utilize their service in government department on deputation for a particular period with a view to prevent their retrenchment owing to the financial constraints of their parent organization namely TSCCF. The State counsel also argued before the learned Single Judge that by order dated 02.06.2006[Annexure-6] issued by the DM and Collector, South Tripura it was made clear that the services of the appellant and his colleagues of TSCCF in government department would be treated as on deputation. Even thereafter, the appellant and all other employees of TSCCF continued to work in the government department without raising any objection to their status. Counsel contended that as a deputationist the appellant had no right to be absorbed in government service. Therefore, the challenge to his repatriation to the parent department was devoid of merit. In support of his contention, the state counsel relied on the judgment dated 09.07.2020 of the learned Single Judge of this court passed in case No. Mrinal Kanti Ghosh vs. State of Tripura and Ors. [WP(C)1263 of 2016].

[8] On perusal of entire facts and circumstances of the case and on consideration of the submissions made by learned counsel representing the parties the learned Single Judge held that even though there was no indication in memorandum dated 30.03.2006 and in the written order dated 30.03.2006 that the appellant was posted to the government department on deputation, the state government in the order dated 02.06.2006[Annexure-6] specified the terms and conditions on which employees of TSCCF were brought over to the Government organization in which it was clearly stated that they would be on deputation. Learned Single Judge further held that even the intention of the government was very clear from the note dated 16.03.2006[Annexure-R/4] that the clerical staff of TSCCF who had so opted, would be withdrawn and posted to the newly created sub-division of Teliamura and Santirbazar and the said note contained the various other measures to save TSCCF which was in serious financial crunch. Appellant never pleaded ignorance of such decision of the State Government and particularly the order dated 02.06.2006[Annexure-6] issued by the DM and Collector, South Tripura specifying that service of the appellant was placed to the state government on deputation. Furthermore, the appellant never objected to his status being described as a deputationist in the said order. According to the learned Single Judge, the petitioner clearly understood and accepted that he was discharging his duties in the government office as a deputationist and not as a government servant. Learned Single Judge also discarded the argument of the counsel of the appellant that FR 110 would come to the aid of the appellant.

[9] Referring the contention of the counsel of the appellant that in the case of Raja Singh and another (supra), the apex court has approved such absorption in government service, the learned Single Judge held that the apex court in the case of Raja Singh and another (supra) while reiterating that the employee, even if he has spent several years in service in the government department on deputation, will have no right of absorption. But in the peculiar facts and circumstances of the given case, the Hon’ble apex court had observed absorption of the concerned employee in government service with an observation that the said judgment shall not be treated as a precedence since it was rendered in the peculiar facts and circumstances of the case. Therefore, learned Single Judge was of the view that the ratio decided in the case of Raja Singh (supra) would not apply in the present case.

[10] With regard to the application of the decision of this court in the case of Debashish Majumder(supra), the learned Single Judge held that the facts and circumstances in the case of Debashish Majumder (supra) are completely distinguishable because in that case after the petitioner’s relationship with his former employer had come to end and the petitioner no longer had any lien over his post in the former organization, he was absorbed in the new department in which he was appointed through due process of selection in regular scale of pay.

[11] Having relied on the decision of this court in the case of Mrinal Kanti Ghosh(supra), learned Single Judge was of the view that the appellant being on deputation had no right to be absorbed in the deputation post even though he pleaded that he rendered unblemished service for a considerable period of time in the borrowing government department. Learned Single Judge held and observed as under:

“11. 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......”

[12] Heard Mr. Somik Deb, learned Sr. Advocate assisted by Mr. Abir Baran, learned advocate representing the appellant. Also Heard Mr. D.Bhattacharjee, learned GA assisted by Mr.S.Saha, learned advocate appearing for the state respondents who have reiterated their submissions made before the learned Single Judge.

Perused the entire facts and circumstances of the case.

[13] The apex court in Kunal Nanda Versus Union of India reported in (2000) 5 SCC 362 and also in Rati Lal B.Soni and Ors. Vs. State of Gujarat and Ors., 1990 (Supp)SCC 243 has clearly culled out that a deputationist cannot assert and succeed in a claim for absorption in the department where he works on deputation unless such claim is based on any statutory rule, regulation or order having the force of law. Following the law laid down by the apex court, this high court in Dilip Kumar Saha Vs. State of Tripura and Ors., [WP(C)No.237 of 2020] also held that a deputionist has no vested right to absorption in the borrowing department and he can be repatriated to his parent department at any point of time.

[14] In the case of Mrinal Kanti Ghosh(supra), this high court refused relief to the petitioner who sought for absorption in the borrowing department and held that the petitioner could not cite any statutory rule which vest any right in his favour to be absorbed in government service while on deputation.

[15] Therefore, there cannot be any dispute that in absence of any statutory rule, regulation or order having the force of law, a deputationist cannot claim to have a vested right for absorption in the borrowing department even though he may have put in long service as a deputationist before his repatriation to his parent department.

[16] The argument of Mr.Somik Deb, learned Sr. Advocate appearing for the appellant that the appellant cannot be treated to be a deputationist in the government department because his posting order did not indicate that he was sent on deputation is not acceptable in the given facts and circumstances of the case. We find no infirmity in the observation of the learned Single Judge that pursuant to the decision of the State Government the appellant and his colleagues in TSCCF came to be brought over to government service on deputation and the appellant never pleaded his ignorance of the order dated 02.06.2006[Annexure-6] issued by the DM and Collector, South Tripura in which it was specified that the appellant was posted in the office of SDM Santirbazar on deputation and the terms and conditions of his service were also clearly laid down in the said order. The appellant never contended that he ever objected to his status being described as a deputationist in the said order. Thus the appellant clearly understood and accepted that he was discharging his duties in government office as a deputationist. Therefore, there was no illegality in his repatriation to his parent organization.

[17] Having observed thus, we find no merit in the appeal. Accordingly the Writ Appeal stands dismissed and the case is disposed of.

[18] Pending application(s), if any, shall also stand disposed of.