Full Judgment Text
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CASE NO.:
Appeal (civil) 2676 of 2007
PETITIONER:
Union of India & Anr
RESPONDENT:
Shardindu
DATE OF JUDGMENT: 16/05/2007
BENCH:
A.K.MATHUR & TARUN CHATTERJEE
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 2676 OF 2007
[Arising out of S.L.P.(c) No. 17366 of 2006]
A.K. MATHUR, J.
1. Leave granted.
2. This appeal is directed against the order passed by the
Division Bench of the High Court of Delhi whereby the Division
Bench of the High Court has confirmed the order passed by learned
Single Judge whereby learned Single Judge has set aside the order
passed by the Union of India dated 18.11.2005 purporting to
terminate the deputation of the respondent as Chairperson, National
Council for Teacher Education ( for short, NCTE).
3. Brief facts which are necessary for disposal of this appeal
are that the respondent herein was informed on 31.12.2003 that he
has been selected as Chairperson of the NCTE for a period of four
years or till he attains the age of 60 years, whichever is earlier. After
this appointment the respondent herein was relieved by the
Government of Uttar Pradesh on 21.1.2004 and he assumed the
charge of Chairperson, NCET on 22.1.2004. It was alleged that the
respondent while working as Director, State Council for Educational
Research and Training in the State of Uttar Pradesh, Lucknow an
inquiry was conducted by the State Vigilance Commission at the
behest of Government of Uttar Pradesh in respect of examination of
2001, in 2004. The State Vigilance Commission submitted the report
on 27.3.2005 and on the basis of that report, a First Information
Report was registered on 19.9.2005 implicating seven persons
including the respondent herein and a separate order was passed by
the State Government placing the respondent under suspension
pending commencement of disciplinary proceeding. When this fact
came to the notice of the Union of India, it passed an order on
18.11.2005 terminating the deputation of the respondent as
Chairperson, NCTE. This order was subject matter of challenge in
the writ petitioner filed by the respondent before the Delhi High Court.
In order to appreciate the controversy involved in the matter the
impugned order dated 18.11.2005 is reproduced below:
" F.No.26-39/2005-EE-10
Government of India
Ministry of Human Resource Development
Deparptment of Elementary Education & Literacy
November 18, 2005.
O R D E R
The Central Government hereby terminates
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the deputations of Dr.Shardindu as Chairperson,
NCTE, appointed on 22.1.2004 vide order No.61-4/
2003- D(TE) EE-10 dated 15.12.2003 and
prematurely repatriates him to his parent cadre, with
immediate effect.
Sd/-
( PRERNA GULATI)
Director (EE)."
4. The respondent filed a writ petition challenging this order before
learned Single Judge that he was not on deputation, therefore, his
tenure could not be terminated and he could not be repatriated back
to the State of Uttar Pradesh. The principal submission of the
respondent before the learned Single Judge was that the respondent
was appointed under sub-section (3) of Section 4 of the National
Council for Teacher Education Act, 1993 (hereinafter to be referred to
as ’the Act’) and the services of the respondent could only be
terminated in terms of Sections 5 & 6 of the Act. It was submitted that
the respondent has not become disqualified under Section 5 of the
Act, therefore, the Central Government could not remove a person
under Section 6 of the Act. The plea of the appellants before learned
Single Judge was that the respondent was on deputation, therefore,
deputation period has been terminated and he has been repatriated
back to his parent Department as Education Officer of the State
Government. It was also submitted that the appointment of the
respondent was a pleasure appointment of the President of India
under Article 310 of the Constitution of India. The appointing authority
being the Central Government, therefore, as per General Clauses
Act, the appointing authority could terminate the services of an
incumbent.
5. Learned Single Judge after considering the matter took
the view that there was no question of invoking the pleasure doctrine
in the present case under Article 310 of the Constitution of India and
the respondent was not on deputation, therefore, his services could
not be terminated and he could not be repatriated back to the State of
Uttar Pradesh. It was also held that since the incumbent was
appointed under the Act of 1993 and he had not incurred any of the
disqualifications mentioned in the Act, therefore, his services could
not be terminated. It was also held that as per the method of
termination of an incumbent as provided under the Act, his services
could only be terminated in the manner as provided under the Act
and none else. Learned Single Judge allowed the writ petition and
set aside the order passed by the Union of India. Against the order
passed by learned Single Judge of the High Court, a writ appeal was
filed by the appellants before the Division Bench of the High Court
which confirmed the order passed by the learned Single Judge, by
order dated 27.7.2006. Hence aggrieved against the impugned
order dated 27.7.2006 passed by the Division Bench of the High
Court of Delhi, the present Special Leave Petition was filed by the
appellants.
6. We have heard learned counsel for the parties and
perused the records. Mr. Vikas Singh, learned Additional Solicitor
General of India submitted that the appointing authority in the
present case is the Union of India and it is a pleasure appointment.
Therefore, under Article 310 of the Constitution of India, the
President can terminate the services of an incumbent. Therefore,
they need not to follow the procedure laid down under Sections 5 & 6
of the Act. On the question of pleasure doctrine, learned ASG invited
our attention to the following decisions of this Court.
i) (1985) 3 SCC 398
Union of India & Anr. v. Tulsiram Patel etc.
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ii) (1985) 4 SCC 252
Satyavir Singh & Ors. v. Union of India & Ors. etc.
iii) (1980) 2 SCC 593
Gujarat Steel Tubes Ltd. & Ors. v.
Gujarat Steel Tubes Mazdoor Sabha & Ors.
7. It was next submitted that when the Act is silent, then the
vacuum can be filled up by the Court. It was submitted that the
present contingency was never visualized by draftsmen that if the
incumbent is charge-sheeted for his past conduct then what is the
remedy in that contingency. Therefore, learned counsel submitted
that the lacunae be filled up by the Court and in that connection
learned counsel for the appellants invited our attention to a decision
in Seaford Court Estates, Ltd. v. Asher [ (1949) 2 All ER 155].
8. However, our attention was also invited to a decision of
this Court in Standard Chartered Bank & Ors. v. Directorate of
Enforcement & Ors. [ (2005) 4 SCC 530 ] wherein this ratio of
English Court has not been followed by the Constitution Bench of
this Court.
9. Learned counsel submitted that the respondent was in
the service of State of Uttar Pradesh and he was selected under the
Act of 1993, he was an appointee of the State of Uttar Pradesh and
he has a lien in the State of Uttar Pradesh, therefore, even if he has
not been sent on deputation by the State of Uttar Pradesh, still he
would be deemed to be on deputation and in that connection, learned
counsel invited our attention to the following decisions of this Court.
i) JT 2007 (3) SC 89
Prasar Bharti & Ors. v. Amarjeet Singh & Ors.
ii) (2004) 5 SCC 714
Secretary, Ministry of Information & Broadcasting v.
Gemini TV (P) Ltd. & Ors.
iii) (1977) 1 SCC 130
Union of India v. Agya Ram
iv) 1995 Supp. (2) SCC 13
Election Commission of India v.
State Bank of India Staff Association, Local Head
Office, Unit Patna & Ors. etc.
v) (1996) 4 SCC 727
Jai Jai Ram & Ors. v. U.P.State Road Transport
Corporation, Lucknow & Anr.
vi) (2005) 8 SCC 394
Union of India through Government of Pondicherry
& Anr. v. V.Ramakrishnan & Ors.
10. In the alternative, Mr. Singh submitted that this Court
should invoke Article 142 of the Constitution as the contingency
which has happened in the present case was never contemplated in
the Act. Therefore, it will not be proper to keep the incumbent like the
present one who is facing disciplinary proceeding in the State of
Uttar Pradesh. Therefore, this Court should invoke its inherent
jurisdiction under Article 142 to do complete justice to the parties in
the present case and in support of his submission has invited our
attention to the following decisions of this Court.
i) (1998) 4 SCC 409
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Supreme Court Bar Association v.
Union of India & Ors.
ii) (2004) 9 SCC 741
Textile Labour Association & Anr. v.
Official Liquidator & Anr.
iii) (2000) 6 SCC 213.
M.C.Mehta v. Kamal Nath & Ors.
11. As against this, learned senior counsel for the
respondent, Mr. Sunil Gupta submitted that since the appointment of
the respondent was a statutory appointment, the termination of the
appointment of the respondent could only be done in the manner
provided under the Act and in support of this contention, invited our
attention to the following decisions of this Court.
i) (1975) 1 SCC 421
Sukhdev Singh & Ors. v. Bhagat Ram Sardar Singh
Raghuvanshi & Anr. etc.
ii) (1986) 4 SCC 746
State of Kerala v. Mathai Verghese & Ors.
12. Learned senior counsel for the respondent submitted that there
is no question of filling up the lacunae in the present case as the Act
is very clear and therefore, the termination could only be done in the
manner as provided under the Act i.e. Section 6 of the Act. Lacunae
could only be filled in where it is found that the Act does not provide
any method or the Act is silent but in the present case, the Act is very
clear and there is no lacunae to be filled up and in support of his
contention learned counsel invited our attention to the following
decisions of this Act.
i) (1986) 4 SCC 746
State of Kerala v. Mathai Verghese & Ors.
ii) 1992 Supp.(1) SCC 323
Union of India & Anr. v. Deoki Nandan Aggarwal
iii) (2002) 3 SCC 533.
Padma Sundara Rao (Dead) & Ors. v.
State of Tamil Nadu & Ors.
13. Learned senior counsel also filed an article written by him in
Journal Section of (1988) 2 SCC.
14. Before we proceed to examine the rival contention of the
parties, it will be proper to refer to necessary provisions bearing on
the subject i.e. the National Council for Teacher Education Act, 1993
and the Rules framed there under, known as the National Council
for Teacher Education Rules, 1997. This Act of 1993 was
promulgated by the Parliament to provide for establishment of
National Council for Teacher Education with a view to achieving
planned and co-ordinated development of the teacher education
system throughout the country, the regulation and proper
maintenance of norms and standards in the teacher education
system and for matters connected therewith. Section 2 (b) defines
"Chairperson which reads as under :
" 2. (b) "Chairperson" means the
Chairperson of the Council appointed under clause
(a) of sub-section (4) of section 3."
15. Section 4 lays down the terms of office and conditions of
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service of Members. Section 4 reads as under :
" 4. (1) The Chairperson, Vice-
Chairperson and the Member- Secretary shall hold
office on a full-time basis.
(2) The term of office of the Chairperson,
the Vice-Chairperson and the Member- Secretary
shall be four years, or till they complete the age of
sixty years, whichever is earlier.
(3) The conditions of service of the
Chairperson, the Vice-Chairperson and the Member-
Secretary shall be such as may be prescribed.
(4) The term of office of Members [other
than the Members specified in clauses (a) to (l) and
clauses (n) and (o) of sub-section (4) of section 3]
shall be two years or till fresh appointments are
made, whichever is later, and other conditions of
service of such Members shall be such as may be
prescribed.
(5) If a casual vacancy occurs in the
office of Chairperson, whether by reason of death,
resignation or inability to discharge the functions of a
Chairperson owing to illness or other incapacity, the
Vice-Chairperson holding office as such for the time
being, shall act as the Chairperson and shall, unless
any other person is appointed earlier as Chairperson,
hold office of the Chairperson for the remainder of
the term of office of the person in whose place the
said person is to so act.
(6) If a casual vacancy occurs in the
office of the Vice-Chairperson or any other Member,
whether by reason of death, resignation or inability to
discharge his functions owing to illness or other
incapacity, such vacancy shall be filled up by making
fresh appointment and the person so appointed shall
hold office for the remainder of the term of the office
of the person in whose place such person is so
appointed.
(7) The Chairperson shall, in addition to
presiding over the meetings of the Council, exercise
and discharge such powers and duties of the
Council as may be delegated to him by the Council
and such other powers and duties as may be
prescribed.
(8) The Vice-Chairperson shall perform
such functions as may be assigned to him by the
Chairperson from time to time."
16. Section 5 deals with disqualification for office of Members.
Section 6 lays down the vacation of office of Member. We are not
concerned with rest of the provisions of the Act as it deals with
various functions and other connected matters of education. In
purported exercise of the powers under Section 31 of the Act the
Central Government framed the Rules known as National Council for
Teacher Education Rules, 1997 ( hereinafter to be referred to as ’ the
Rules’). Rule 5 of the Rules lays down the conditions of service of
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the Chairperson, the Vice-Chairperson and the Member-Secretary,
like their pay, dearness allowance, house rent allowance and city
compensatory allowance and other terminal benefits. Rule 6 deals
with traveling and daily allowances to Members. Rule 7 deals with
the powers and duties of the Chairperson. Therefore, from the
scheme of the Act and the Rules it is apparent that the appointment
of the Chairperson of the NCTE is a tenure post for a period of four
years or any person attaining the age of sixty years whichever is
earlier. Section 5 deals with disqualification and none of the
disqualifications mentioned in that section has been incurred by the
respondent. Neither he has been convicted nor sentenced to
imprisonment for an office which in the opinion of the Central
Government, involves moral turpitude, nor has he been un-
discharged insolvent, nor was of unsound mind and has been
removed or dismissed from the service of the Government or a body
corporate owned or controlled by the Government, and has in the
opinion of the Central Government such financial or other interest in
the Council as is likely to affect prejudicially the discharge by him of
his functions as a Member nor has committed any financial
irregularity while working as Chairperson. Therefore, the respondent
has not incurred any of the disqualifications as mentioned above.
Section 6 deals with vacation of office of Member. Section 6 lays
down that the Central Government can remove if any person has
incurred any of the disqualifications as mentioned in Section 5.
Proviso to Section 6 (a) further clarifies that the incumbent shall be
removed on the ground that he has become subject to the
disqualification mentioned in clause (e) of that section, unless he has
been given a reasonable opportunity of being heard in the matter or
refuses to act or becomes incapable of acting or without obtaining
leave of absence from the Council, absent from three consecutive
meetings of the Council or in the opinion of the Central Government
has abused his position as to render his continuance in office
detrimental to the public interest. Therefore, under these
contingencies if a member is to be removed, then notice is required
to be given to the incumbent. On the basis of the analysis of
Sections 5 & 6 it is more than clear that the respondent has not
incurred any of these disqualifications.
17. Now, the position that emerges is that the respondent
was appointed for a fixed tenure of four years or till he attains the
age of sixty years whichever is earlier under Section 4 of the Act and
while discharging his duties he did not incur any of the
disqualifications as mentioned in Sections 5 & 6. Therefore, so far as
this statutory appointment is concerned, it cannot be terminated
because he had not incurred any of the disqualifications. But while
he was working in the State of Uttar Pradesh an inquiry was
conducted in 2004 for an incident said to have happened in 2001 and
in that a vigilance report was submitted before the State of Uttar
Pradesh and on that basis the respondent was placed under
suspension and a disciplinary proceeding was also initiated against
the respondent and others by the State of U.P. None of these acts
comes within the purview of Sections 4,5 & 6. If there was any
provision that for his previous misconduct his tenure could be cut
short, then it is understandable that the Central Government could
have exercised their powers. But in absence of such provision can a
statutory appointment be cut short, specially when the incumbent has
not incurred any disqualifications under the Act. It may appear to be
embarrassing but nonetheless we can not ignore the statutory
provisions. If the provisions of disqualification and removal were not
there perhaps something could be done but in face of clear provisions
bearing on the subject it will be travesty of justice to cut short the
statutory appointment of an incumbent.
18. Learned Additional Solicitor General tried to support his
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submission on pleasure doctrine under Article 310 of the Constitution
and submitted that the respondent has been appointed by the
Central Government and therefore, it is the pleasure of the President
to cut short his appointment. In this connection, learned ASG invited
our attention to a decision of this Court in Union of India & Anr. v.
Tulsiram Patel etc. [(1985) 3 SCC 398] especially to paragraphs 34
and 44. The distinction between statutory appointment and pleasure
appointment has to be kept in mind. The pleasure appointments are
such where the incumbents are appointed at the pleasure of the
President, like Governors etc. As against this, statutory appointments
are made under the statute and the service conditions of the
incumbents are governed by the statute. They are not pleasure
appointments. Governor appointed under the Constitution is purely
pleasure appointment or appointment of such nature which the
incumbent holds at the pleasure of the President or the Governors as
the case may be. Such appointments may be cut short. Their
Lordships in the aforesaid case have dealt with the distinction
between the pleasure appointment and appointment under the civil
services. Their Lordships held that in India the doctrine of pleasure
appointment received Constitutional sanction under Article 310 but
unlike in United Kingdom in India it is not subject to any law made
by the Parliament but is subject to only whatever expressly provided
by the Constitution. Therefore, the distinction has to be borne in mind,
the doctrine of pleasure appointment as it existed in feudal set up
and in the democratic set up. Their Lordships discussed the doctrine
of pleasure appointment in U.K. where the incumbent was appointed
at the pleasure of the King but in India this concept has been
adopted under Article 310 of the Constitution and how it is to be
exercised has also been laid down in the Constitution. Therefore,
the concept of pleasure doctrine cannot be invoked in the present
case. Every appointment made by the Central Government is in the
name of the President but by that it does not mean that all the
appointments are pleasure appointments de hors the Constitution or
statutory rules bearing on the subject. In the present case, the
appointment made was of statutory appointment and the service
conditions of the Chairperson and Members have been laid down,
likewise their removal has also been laid down on incurring certain
disqualifications. Therefore, the submissions of learned Addl.
Solicitor General has no legs to stand.
19. In this connection, learned Addl. Solicitor General also
invited our attention to a decision of this Court in Satyavir Singh &
Ors. v. Union of India & Ors. etc. [ (1985) 4 SCC 252]. The same
view has been reiterated by their Lordships in this case also where a
distinction made in Tulsiram Patel’s case (supra) has been
summarized that the doctrine of pleasure appointment made in
United Kingdom is subject to what may be expressly provided
otherwise by legislation. Their Lordships have also reiterated the
pleasure appointment made in India has been incorporated under
Article 310 of the Constitution.
20. In this connection, our attention was also invited to a
decision of this Court in Gujarat Steel Tubes Ltd. & Ors. v. Gujarat
Steel Tubes Mazdoor Sabha & Ors. [ (1980) 2 SCC 593]. This was a
case where the termination of the workmen was involved and in that
context, their Lordships observed that in case the termination is
found to be bad in law then on reinstatement the incumbent is
entitled to full back wages. This case does not provide any
assistance.
21. As against this, learned senior counsel for the
respondent, Mr.Gupta has strenuously urged before us that in case of
statutory appointment there is no scope to cut short except to
terminate the services of the incumbent in the manner provided under
the Act. In this connection, our attention was invited to a decision of
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this Court in Sukhdev Singh & Ors. v. Bhagatram Sardar Singh
Raghuvanshi & Anr. etc. [ (1975) 1 SCC 421] wherein the
Constitution Bench held that the termination of service of an
incumbent by the Corporation created by statute without complying
with the regulations framed by the Corporation cannot be made. The
reason was that the termination contravened the provisions contained
in the Regulations. In short, when the appointment is made, the
service conditions are laid down. The termination of such
appointment could only be made in the manner provided in the
statute and by no other way. Once the regulations have been framed
and detailed procedure laid down therein, then in that case if the
services of an incumbent are required to be terminated then that can
only be done in the manner provided and none else. Similar view has
been taken in the case of State of Kerala v. Mathai Verghese & Ors.
[ (1986) 4 SCC 746 ]. Therefore, in this background, we are of
opinion that the submission of learned Additional Solicitor General
cannot be sustained.
22. Learned Addl. Solicitor General; next submitted that
whenever the Act is silent in that contingency, this Court can fill the
vacuum by interpreting the provision in such a manner that that
vacuum can be filled up by order of the Court. In that connection,
learned Addl. Solicitor General heavily relied on a decision in Seaford
Court Estates, Ltd. v. Asher [ (1949) 2 All ER 155]. In that context
their Lordships observed as follows :
" Whenever a statute comes up for
consideration it must be remembered that it is not
within human powers to foresee the manifold sets of
facts which may arise, and, even if it were, it is not
possible to provide for them in terms free from all
ambiguity. The English language is not an instrument
of mathematical precision. Our literature would be
much the poorer if it were. This is where the
draftsmen of Acts of Parliament have often been
unfairly criticized. A judge, believing himself to be
fettered by the supposed rule that he must look to the
language and nothing else, laments that the
draftsmen have not provided for this or that, or have
been guilty of some or other ambiguity. It would
certainly save the judges trouble if Acts of
Parliament were drafted with divine prescience and
perfect clarity. In the absence of it, when a defect
appears a judge cannot simply fold his hands and
blame the draftsman. He must set to work on the
constructive task of finding the intention of
Parliament, and he must do this not only from the
language of the statute, but also from a consideration
of the social conditions which gave rise to it and of
the mischief which it was passed to remedy, and
then he must supplement the written word so as to
give "force and life" to the intention of the legislature."
23. This is an objective statement of law that in changing world. it
is difficult to foresee future contingencies but if such contingency has
not been anticipated then can a Court sit in to make it good. In the
present case it is true that the contingency which has arisen i.e. the
incumbent who has been appointed being a statutory appointment or
saddled with investigation for his past conduct. Can this be made a
good ground for cutting short his tenure?
24. Our attention was also invited to a decision of this Court
in Standard Chartered Bank & Ors. v. Directorate of Enforcement &
Ors. [ (2005) 4 SCC 530]. In this case the question was whether any
company or corporation being a juristic entity be prosecuted for
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offence for which mandatory imprisonment and fine is provided. The
majority took the view overruling the earlier judgment in Velliappa
Textiles [(2003) 11 SCC 405] that the company can be prosecuted
and sentence of fine imposed and may not be sent for imprisonment.
The question was whether this should be left for the Legislature to
correct it or Court should step in and their Lordships steered of clear
the controversy by overruling the earlier judgment in Vellappa
Textiles that the company can be prosecuted and sentence of fine
can be imposed. In that case, their Lordships observed as follows :
" Hence it is not open to the court remedy
an irretrievable legislative error by resort to the
theory of presumed intention of the legislature. We
do not subscribe to the view of Denning, L.J., that
"judicial heroics" were warranted to cope with the
difficulties arising in statutory interpretation. If by
upholding Vellappa it would be impossible to
prosecute a number of offenders in several statutes
where strict liability has been imposed by the statute,
then so be it. Judicial function is limited to finding
solutions within specified parameters. Anything more
than that would be "judicial heroics" and "naked
usurpation of legislative function". "
25. Therefore, the Constitution Bench of this Court has not
followed the judicial dictum laid down by Lord Denning, J. in Seaford
Court Estates, Ltd. (supra). Mr.Gupta, learned Senior Counsel for the
respondent submitted that the mandate of legislature is very clear as
contained in Section 6. Therefore, there is no lacunae left in the
statute. In support of his submission, Mr.Gupta invited our attention
to a decision of this Court in Mathai Verghese & Ors. (supra). Their
Lordships held that the Court can merely interpret a provision so as to
make explicit the intention of the legislature. It cannot rewrite, recast
or redesign the provisions since the power to legislate has not been
conferred on the court. Their Lordships further observed that the
Court should make a purposeful interpretation so as to ’effectuate’ the
intention of the legislature and not a purposeless one in order to
’defeat’ the intention of the legislators wholly or in part. Our attention
was also invited to a decision of this Court in Union of India & Anr. v.
Deoki Nandan Aggarwal [ 1992 Supp. (1) SCC 323]. In this case,
their Lordships have observed that there is a limited scope of judicial
activism and in exercise of judicial activism the Court cannot adopt or
resort to legislative function and the Court cannot supply the omission
of the statute.
26. Our attention was also invited to a decision of this Court
in Padma Sundara Rao (Dead) & Ors. v. State of T.N. & Ors. [(2002)
3 SCC 533]. Their Lordships held that casus omissus cannot be
supplied by the Court. The provisions of the statute have to be read
as a whole and in its context. When language of the provision is plain
and unambiguous the question of supplying casus omissus does not
arise. The Court can interpret a law but cannot legislate. Therefore,
the submission of learned Addl.Solicitor General that since the
contingency which has arisen in the present case was not foreseen
by the draftsmen or by the Parliament, therefore, the casus omissus
may be supplied by this Court i.e. since the incumbent has been
facing the charge, his tenure should be cut short. We regret we
cannot cure the lacunae by exercising the power under Article 142 of
the Constitution and uphold the order of termination especially when
such contingency has not been made a ground for disqualification for
holding the post. Therefore, the submission of learned Addl. Solicitor
General cannot be accepted.
27. Learned Addl. Solicitor General next submitted that the
appointment of the respondent was purely on deputation basis and
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since the deputation period has been terminated and the appointing
authority has full right to terminate his deputation. Therefore, the
respondent can be sent back to his parent department i.e. the State
of Uttar Pradesh. We regret to say that this appointment of the
respondent cannot be said to be purely an appointment on deputation
basis. Strictly speaking, it is not a deputation post because the
incumbent has been selected under the Act and he has not come on
deputation as such though loosely it can be said to be on deputation
in the sense that since the incumbent holds his lien in the State of
Uttar Pradesh and the State of Uttar Pradesh has permitted him to
join the post for a fixed period of four years or till he attains the age of
superannuation i.e. sixty years. Since the respondent holds a lien in
the State of U.P. therefore, to some extent he can be said to be on
deputation but it is not in the sense of deputation as in the case of an
all India Service person who is sent on deputation to the Central
Government or to other organization. It is an independent selection
under the statute and the State of U.P. has permitted the respondent
to join his assignment as he holds a lien and after completion of the
period of four years he will come back to the State till he attains the
age of superannuation. If the incumbent was to retire within the
period of four years perhaps it would not have been necessary to
have moved the State of U.P. for its permission to join this
assignment. Even after expiry of four years the respondent is left
with some period of service. Therefore, formal permission was
sought from the State of U.P. to permit the incumbent to join the post
for a fixed term. Therefore, it is the permission by the State of U.P. to
join the post and in case the incumbent comes back he can join the
service under the State of U.P.. Therefore, it is almost like a
permission and not in strict terms of deputation but loosely it can be
termed as deputation. This is not the situation when the period of
deputation can be cut short and the incumbent can be sent back to
his parent department i.e. the State of U.P. unlike the officers of an all
India service. This appointment is for a fixed tenure after due
selection under the Act. Therefore, this kind of deputation stands on
an entirely different category. However, learned Addl. Solicitor
General tried to justify that a person who is sent on deputation has no
right to continue in the post and his period of deputation can be cut
short and he may be repatriated back to his parent department.
28. In this connection, our attention was invited to a decision
of this Court in Prasar Bharti & Ors. v. Amarjeet Singh & Ors. [ JT
2007 (3) SC 89]. This is entirely a different case. In this case when
the Prasar Bharati (Broadcasting Corporation of India) Act, 1990 was
incorporated, certain employees who were working in the All India
Radio their services were taken in the Corporation . In that context,
their Lordships made a distinction on deputation and transfer.
Deputation only connotes service outside the cadre or outside the
parent department in which an employee is serving. Therefore, so far
as this case is concerned, those persons who were put on deputation
with the Prasar Bharati, in that context their Lordships held that those
persons will be treated on deputation and their service conditions will
be governed by the principle of deputation. Their Lordships observed
as follows :
" We do not find that the action taken by the
appellants herein in transferring the respondents is
in any way arbitrary or irrational."
Therefore, this case does not provide any useful assistance to us.
29. Our attention was invited to a decision of this Court in the
case of Umapati Choudhary v. State of Bihar & Anr. [ (1999) 4 SCC
659]. In this case, this Court held that an incumbent who is on
deputation, can be repatriated back to his parent department and
such order cannot be said to be bad.
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30. Our attention was invited to a decision of this Court in
Union of India v. Agya Ram [(1977) 1 SCC 130]. In this case an
employee under the State of Government was sent on deputation to
the Office of Regional Settlement Officer and he was repatriated back
to his parent substantive post without any notice. Their Lordships
held that it did not amount to termination. This case is distinguishing
on its facts i.e. a person sent on deputation to another department
therefore, the deputationist has no right and he can always be
repatriated to his parent department.
31. Learned Addl. Solicitor General next invited our attention
to a decision of this Court in Jai Jai Ram & Ors. v. U.P. State Road
Transport Corporation, Lucknow & Ors. [ (1996) 4 SCC 727 ]. In that
case their Lordships observed that the incumbents were on
deputation to foreign service and during the period of deputation to
the U.P. State Road Transport Corporation their services were
terminated. In that context, their Lordships held that since they were
Government servants and were on deputation with the Corporation,
the U.P. Fundamental Rules 9 (7-B) would be applicable. Therefore,
they will be deemed to be the Government servants irrespective of
the fact that they were on deputation with the Corporation. This case
has no relevance so far as the present controversy is concerned.
32. Our attention was invited to a decision of this Court in
Election Commission of India v. State Bank of India Staff Association
Local Head Office Unit, Patna & Ors. [ 1995 Supp. (2) SCC 13 ]. This
was a case where the District Election Officer had requisitioned the
services of the employees of the State Bank of India for conducting
election. Their Lordships after interpreting clause (6) of Article 324 of
the Constitution held that the order of the District Election Officer
requisitioning the services of the employees of the State Bank of
India for election duty is not sustainable and accordingly quashed
the same. This case is of no relevance so far as the present
controversy is concerned.
33. Our attention was also invited to a decision of this Court
in Union of India through Govt. of Pondicherry & Anr. v. V.
Ramakrishnan & Ors. [ (2005) 8 SCC 394 ]. In this case an
incumbent was on deputation and he was repatriated back from his
deputation to his parent department. Their Lordships observed that if
the incumbent is on deputation he can always be sent back to his
parent department and there is no malice. Therefore, this case is of
no assistance so far as the present controversy is concerned.
34. Lastly, learned Additional Solicitor General submitted that
Article 142 of the Constitution should be exercised in the present
case as there is no such provision for the contingency which has
arisen in the matter and the termination of the respondent should be
upheld. In this connection, our attention was invited to a decision of
this Court in Supreme Court Bar Association v. Union of India & Anr.
[(1998) 4 SCC 409 ]. This was a case where their Lordships
exercised the inherent power under Article 142 of the Constitution.
The Constitution Bench held that this Court in exercise of power
under Article 142 of the Constitution cannot ignore any substantive
statutory provision dealing with the subject. It is a residuary power,
supplementary and complementary to the powers specifically
conferred on the Supreme Court by statutes in order to do complete
justice between the parties wherever it is just and equitable to do so.
It is only intended to prevent any obstruction to the stream of justice.
None of such contingencies exists in the present case so as to
invoke the power under Article 142 of the Constitution. This case
stands reaffirmed in Textile Labour Association & Anr. v. Official
Liquidator & Anr. [ (2004) 9 SCC 741].
35. Our attention was invited to a decision of this Court in
M.C.Mehta v. Kamal Nath & Ors. [ (2000) 6 SCC 213 ]. In this case,
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their Lordships held that power under Article 142 of the Constitution
cannot be exercised by the Supreme Court where issue can be
settled only through substantive provisions of the statute. Therefore,
there is no occasion for us to exercise power under Article 142 of the
Constitution.
36. Learned Addl. Solicitor General invited our attention to a
decision of this Court in Secretary, Ministry of Information and
Broadcasting v. Gemini TV (P) Ltd & Ors. [ (2004) 5 SCC 714]. This
was a case in which Election Commission of India was directed to
suggest the modalities as regards the advertisements to be telecast
on electronic media by cable operators and television channels. This
was after reviewing the provisions of the Representation of People
Act, 1951; Cable Television Networks (Regulation ) Act, 1995 and
Cable Television Networks Rules, 1994; this Court issued certain
directions under Article 142 of the Constitution. This case has hardly
any relevance so far as the present case is concerned.
37. As a result of our above discussion, we are of opinion that
the view taken by the High Court of Delhi is correct and there is no
ground to interfere with the same. Consequently, the appeal is
dismissed. The respondent be restored back in his post and he shall
be paid all his dues which are payable to him in accordance with law.
There would be no order as to costs.