RANJIT ROY v. THE STATE OF TRIPURA
Court: High Court of Tripura
Bench: HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY,HONBLE THE CHIEF JUSTICE AKIL KURESHI
Judgment date:
Case summary
High Court of Tripura judgment dated 2020-12-01. RANJIT ROY v. THE STATE OF TRIPURA. Read the judgment and case details on LawSphereX.
Judgment text
HIGH COURT OF TRIPURA AGARTALA W. A. No. 47/2018 Sri Ranjit Roy .. …Appellant(s) Versus The State of Tripura and another .. …Respondent(s) For Appellant(s) : Ms. R. Purkayastha, Advocate. For Respondent(s) : Mr. D. Sarma, Addl. GA. HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON’BLE MR. JUSTICE S. G. CHATTOPADHYAY Order 01/12/2020. (Akil Kureshi, CJ). This Appeal is filed by the original petitioner. He has challenged the judgment of the learned Single Judge dated 06. 03. 2018 passed in W. P. (C) No. 256 of 2018. The petitioner was an employee of Tripura Forest Development and Plantation Corporation Limited (hereinafter to be referred to as „the said Corporation‟). In the year 2001, Government of Tripura after conducting interviews of willing and eligible candidates recommended the petitioner for the post of Head Clerk-cum-Accountant in the Audit Directorate on deputation basis. The petitioner accordingly joined the said post on deputation on 31. 05. 2002.
In due course he also got promotion to the higher post of Office Superintendent in August, 2010. The petitioner wanted permanent absorption in the Government service. He made representations for such purpose, one such representation being made on 26. 06. 2010. Without permanent absorption in the Government service, the petitioner crossed the age of superannuation and retired from service on 30. 04. 2011. Till then, his representation for permanent absorption was not decided. For several years thereafter, the petitioner took no further steps. Presumably, he received post retiral benefits as available to employees of the said Corporation. In the year 2018, the petitioner filed the present petition in which he raised the question of his permanent absorption in Government service. He prayed that he should be treated to have been absorbed in the Finance Department of the Government from the date of joining.
His contention was that some other persons, who are also sent on deputation from various Departments, had filed petitions. Such petitions were decided on17. 11. 2016 by the Court and subsequently, some of these petitioners were absorbed in Government service. The petition came to be dismissed by the learned Single Judge by the impugned judgment. The learned Judge was of the opinion that in absence of any statutory provision permitting absorption of deputationist in Government service, no direction as prayed for, can be granted. It is this judgment which the petitioner has challenged in this Appeal. Having heard the learned counsel for the parties, we do not find any reason to interfere. It is by now well settled through series of judgments of the Supreme Court that the deputationist has no vested right of absorption in the borrowing department. In a recent judgment dated 09. 07. 2020 in W. P. (C) No. 1263 of 2016 and connected petitions, in case of Shri Mrinal Kanti Ghosh vs.
The State of Tripura and others, following observations were made by the Single Judge: “[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. [21] In case of Biplabendu Roy(supra), the Division Bench of this Court did not lay down an absolute proposition that after long passage of deputation a deputationist would have a vested right for absorption.
One of the significant aspects of the matter in the said case was that the State Government which was the borrowing department had refused to repatriate the petitioner to his parent organization when a request to that effect was made by the Corporation in which the petitioner was an employee. Even after completion of the period of deputation, he was not released, instead the Government went on utilizing his service. Thus the refusal of the State Government as a borrowing organization to release the petitioner from service even after the Corporation in which the petitioner was holding a lien had requested for his repatriation, was one of the main features of the case and which persuaded the High Court to hold that under such circumstances the Government would be estopped from denying absorption to the petitioner in Government service. No such fact emerges in the present group of petitions.
[22] In the office memorandum dated 3 rd October 2013, the State Government has tried to streamline the procedure for appointment in Government services on deputation. It decided that the term of such deputation would be maximum up to 3(three) years in the first instance and extension beyond this period can be granted maximum to 1(one) year where such extension is absolutely necessary in public interest. It is true that these guidelines envisaged a maximum period of deputation. However, these are merely internal guidelines and do not vest any right in favour of a deputationist, to be absorbed in the Government service after completion of maximum period of deputation envisaged in the said office memorandum. [23] Further, as noted in many of these cases, the petitioners had not only served through the entire period of deputation but were also repatriated shortly before their retirements.
They retired on superannuation from their parent organizations upon which they were also paid their postretiral benefits such as gratuity and payable pension. The petitions were filed after retirement, in some cases, after several years. ” Question of serious delay and laches in filing the Writ Petition also is relevant. As noted, the petitioner retired on superannuation on 30. 04. 2011. He filed the petition in the year 2018. In the mean time, he received all retiral benefits as the employee of the Corporation. There is no explanation for such inordinate delay of nearly 7 years in filing the petition. Merely making representations before and after retirement would not explain such delay. Counsel for the petitioner, however, placed heavy reliance on the Recruitment Rules for the posts of Head Clerk-cum-Accountant and Office Superintendent to contend that in both the posts, one of the modes of filling up the vacancies is by way of deputation.
For two reasons, we are not inclined to change our opinion on this ground. Firstly, for example, in case of the post of Head Clerk-cum-Accountant, the mode of filling up the post is 100% by promotion, failing which by transfer or deputation, failing which, by direct recruitment. Thus, the first preference for filling up the post is by promotion. There is nothing on record to suggest that all throughout when the petitioners were working on deputation, candidates eligible for claiming promotion were not available. Further, when the Recruitment Rules referred to filling up the post in the alternative by way of transfer on deputation, it is doubtful whether the Rule refers to absorption of a deputationist. Secondly, even if there is an avenue available to the employer to fill up the post by way of absorption of a deputationist, no corresponding vested right can be claimed by a deputationist of being permanently absorbed.
The same must depend on the policy of the lending and borrowing organizations. Counsel for the appellant also placed reliance on a decision of Supreme Court in case of Raja Singh and another vs. State of U. P. and another, Civil Appeal No. 4642 of 2019, dated 06. 05. 2019. It was the case in which the Court found that at the time of appointment of the appellants, there were no Service Rules. They were appointed prior to come into force of the relevant Service Rules. It was in such background, the Court held that the appellants cannot be said to have been appointed on deputation. Facts therefore are vastly different. In the result, Appeal is dismissed. Pending application(s), if any, also stands disposed of. (S. G. CHATTOPADHYAY), J (AKIL KURESHI), CJ sima
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