In its recent Judgment, the Allahabad High Court has decided a significant question of law with respect to Deputation.
The Allahabad High Court has held that Deputation can continue, even after the lapse of lien in the parent department.
Brief Facts of the Case- Dr. Ransheel Kumar Upadhyay vs Union Of India And 6 Others
Central Institute of Higher Tibetan Studies, Sarnath, Varanasi, U.P.,is a deemed Central University. It issued an advertisement for appointment on the post of Registrar of the University.
The petitioner was selected and offered appointment vide letter dated 22.10.2016.
Petitioner accepted the offer and reported for joining on 16.11.2016. He was issued with a formal order of appointment dated 17.11.2016 on deputation basis. The appointment was for a period of 5 years from the date of joining. The agreement was executed on 15.12.2016.
The Banaras Hindu University, the previous employer permitted deputation for three years w.e.f. 16.11.2016 up to 15.11.2019. Thereafter it was extended for another six months i.e. 30.06.2020 when the petitioner would finally attain the age of 60 years.
Board of Directors of Tibetan Studies, in its meeting, resolved to continue Petitioner till 15.11.2021. This was date when five-year term will come to end. A consequential order was issued by the Vice-Chancellor extending the term of appointment of the petitioner till 15.11.2021.
However, the Joint Secretary, Ministry of Culture, Government of India who had put a note of dissent in the meeting of Board of Governors, issued a letter cum order to the Vice-Chancellor. The Letter stated that Government of India in exercise of power vested with it under clause 8 of the Memorandum of Association, overriding the decision of the Board, directed for relieving of the petitioner w.e.f. 30.06.2020
The Vice-Chancellor issued a consequential order on 01.07.2020. Hence feeling aggrieved the Petitioner approached Allahabad High Court
Submissions of the Petitioner:
- The term of appointment as per the offer letter of appointment is fully governed by the agreement between the employer and the employee.
- Though the petitioner had come on deputation but the petitioner had been appointed for a period of five years of short term contract basis. He cannot be made to retire prior to attaining the age of 62 years.
- Deputation would last until the time a person attains the age of superannuation.
- Even if a person is appointed for a period of five years but if he attains the age of 62 years, he would not be continued beyond that age.
- Joint Secretary, Ministry of Culture Government of India could not have given executive direction to the Vice-Chancellor.
- Vice-Chancellor has acted mechanically in the matter in complete derogation to the authority of Board of Governors
Submissions of the Respondents:
- Once the petitioner has been appointed on deputation basis, the appointment of the petitioner would only last till his services last in the parent department.
- A person on deputation means a person is to continue till his lien continues in Parent Department.
- University could not have extended the appointment dehors the rules
Observations of Allahabad High Court
Allahabad High Court held that even in case if term comes to end, it is quite extendable upto the age of 62 years in exceptional circumstances not ordinarily, but of course, subject to the discretion of the appointing authority.
The cardinal rule of fixing appointment under service jurisprudence is to go by appointment order and/ or terms of the agreement.
So even if deputation with the previous employer ended with the age of superannuation before the expiring of the term of appointment which is five years or upto 62 years of age as is in the present case, the University was well within its authority to continue with such appointment upto the period appointment was made.
One must remember that unless expressly barred by rules, in service jurisprudence, the term of appointment is always extendable at the discretion of the employer, at least up to the age of superannuation.
Allahabad High Court observed that in matters of appointment on deputation, the period of deputation is only at the discretion of the employer sanctioning deputation. But the continuance of such an applicant beyond the period is always at the discretion of the employer who has given an appointment on deputation unless and until the lending employer objects and withdraws deputation.
Decision of Allahabad High Court-
The Allahabad High Court allowed the Writ Petition. The Order dated 30.06.2020 passed by Government of India was quashed. The consequential Order of Vice-Chancellor has also been quashed.
Court has further directed that the petitioner shall be reinstated as Registrar of the Central Institute of Higher Tibetan Studies, Sarnath, Varanasi with immediate effect with all consequential financial benefits.
Title: Dr. Ransheel Kumar Upadhyay vs Union Of India And 6 Others
Case No.- WRIT – A No. – 5744 of 2020
Coram- Hon’ble Ajit Kumar J.
Date of Judgment: 12.10.2020
Appearance: Shri Radha Kant Ojha, learned Senior Advocate assisted by Sri Vikram D. Chauhan, learned counsel for the petitioner, Sri Rakesh Pande, learned Senior Advocate assisted by Sri Amit Kumar Singh, learned counsel for respondent nos. 5 & 6 and Sri S.P. Singh Additional Solicitor General of India assisted by Sri Kuldeep Singh Chauhan, learned Central Government Counsel for respondent nos. 1 to 4.