Meena Srivastava vs Lieutenant Governor & Ors.
- Court
- Delhi High Court
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 11301/2018
MEENA SRIVASTAVA .....Petitioner
Through: Ms. Kamlakshi Singh Chauhan,
Ms. Divya Chauhan and Ms. Paraamba
Raghuvanshi, Advs.
versus
LIEUTENANT GOVERNOR & ORS. ....Respondents
Through: Ms. Archana Gaur, CGSC with
Ms. Ridhima Gaur and Mr. Deepu Kumar,
Advs. R-3 to 5
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE VINOD KUMAR
ORDER (ORAL)
% 10.07.2026
C. HARI SHANKAR, J.
1. The petitioner was appointed as temporary Lower Division
Clerk in the Union Territory of Andaman and Nicobar, on a basic pay
of ₹ 260, on 25 January 1978. On 22 August 1984, she was appointed
1
as ad hoc Trained Graduate Teacher for three months. This ad hoc
appointment was made temporary on 6 September 1988 with effect
from 25 August 1986. In the interregnum, on 31 August 1987, she
was appointed TGT in the Navodaya Vidyalaya Samiti, with the
permission of the Union Territory Administration in Andaman and
Nicobar on a scale of ₹ 1400-2600/-.
1
“TGT”, hereinafter
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
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2. On 14 January 1988, the petitioner was sent on deputation as
TGT in the Navodaya Vidyalaya Samiti in Faizabad. She was relieved
on 15 January 1988 in order to join her deputation post. The
deputation was subject to retention of lien in the post of TGT in the
Union Territory Administration in Andaman and Nicobar for two
years with effect from 16 January 1988.
3. On 17 July 1991, the petitioner was repatriated to her parent
department, i.e., the Union Territory of Andaman and Nicobar. She
challenged the repatriation before the High Court of Allahabad by way
of WP 494 (W)/1991. The following interim order was passed by the
High Court of Allahabad in the said writ petition on 20 August 1991:
“Connect with writ petition No.4547 of 1991 and along with the
said petition.
Till the next date of listing, the petitioner shall be allowed to
continue in the Institute where she is present working and shall her
join parent be required department. The opposite parties are
directed to indicate as to whether the option given by the petition
for absorption has been considered or not and if not, for what
reasons it was though not to absorb the petitioner.”
(Emphasis supplied)
4. Subsequently, the aforesaid writ petition was transferred to the
2
Allahabad Bench of the Central Administrative Tribunal , where it
was registered as TA 3/2004. The Tribunal disposed of the TA on 9
January 2008 with the following brief order:
2
“the Tribunal”, hereinafter
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
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“This T.Α. stands disposed of with a direction to the respondents
that in the event applicant confirms to the eligibility criteria at the
time of appointment, her case shall be considered for permanent
absorption within period of 2 months from the date of receipt of a
copy of this order. No costs.”
5. It is acknowledged, in paragraph 14 of the impugned order
passed by the Tribunal, that the interim order dated 20 August 1991
passed by the High Court of Allahabad continued to remain in force
till disposal of the said writ petition by the Tribunal, on 9 January
2008.
6. In compliance with the afore-extracted order dated 9 January
2008 passed by the Allahabad Bench of the Tribunal, the petitioner’s
case was considered for absorption as TGT by the Absorption
Committee of the Navodaya Vidyalaya Samiti, which did not find her
suitable for absorption. She was, therefore, repatriated to the Union
Territory of Andaman and Nicobar by order dated 25 November 2008.
7. The petitioner reported for work in the Union Territory
Administration on 9 January 2009. However, the petitioner was not
permitted to join duty, resulting in her having to make several
representations. On a query being raised by the Ministry of Home
3
Affairs , as to why the petitioner was not being permitted to rejoin
4
duty, the Directorate of Education in the Andaman and Nicobar
Administration provided the following explanation by its letter dated
19 February 2014:
“Smt. Meena Srivastava, reported for duty in this Directorate on
3
“MHA”, hereinafter
4
“DOE”, hereinafter
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
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09.01.2009 (FN) but her duty report has not been accepted by this
Directorate as it was found to be infirmity of rules. When
Government servant abandons service to take up alternative
employment to attend to personal affairs and does not bother to
send any letter seeking permission for continued deputation or
letter or permission for approaching the court for redressel of her
grievance and the records do not shows that she is treated as being
in service, she cannot after two decades, represents that she should
be taken back to duty. The Hon'ble High Court did not direct the
parent department to accept the duty report in the event of her
permanent absorption was not being considered by the NVS and
NVS has no right to direct her to join her parent department after
expiry of her permitted deputation and serving, the NVS for more
than two decades which is impermissible under the existing rules
provision and also no exemption was obtained from the Govt. of
India for such extended deputation by JMV or Smt. Meena
Srivastava either and there is no court order to accept her duty
report.
Smt. Meena Srivastava, TGT writ petition No.4941/1991 in the
Hon'ble High Court Lucknow Bench Lucknow challenging the
order of repatriation issued from the NVS. The court granted
Interim stay order dated 20.08.1991, petitioner whereby the Smt.
Meena Srivastava, TGT was allowed to continue in the same and
organisation respondents were directed that she shall be required to
join at her parent department. The letter dated 28.06.2004 from the
NVS reveals that the aforesaid interim stay order was existing and
the case was pending in the Hon'ble High Court, Lucknow till
28.06.2004. However, consequent to her repatriation in 25.11.2008
after a gap of 20 years 10 months and 10 days she approached
Directorate of Education to report for duty. Copy enclosed
(Annexure-II & III).
Her (Personnel File maintained in this Directorate) was referred to
the Administration for consideration. The matter was examined by
personnel and legal section of Administration.
Finally as instructed by the then Chief Secretary on 31.05.2010,
she was allowed to join this Directorate vide Memorandum No.4-
3711/Estt./Edn/4040 dated 16.06.2010. Copy enclosed Annexure-
XVI.
To regularize her joining time and the overstay for the extended
period of deputation, the Administration has submitted the case to
the Director (Estt.) Department of Personnel & Training, New
Delhi vide Admn's letter No.5-1(31/2013-D-III dated 8.10.2013
Copy enclosed (Annexure-XVI).
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
Signing Date:20.07.2026
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W.P.(C) 11301/2018 Page 4 of 24
She has reported duty on 28.06.2010. As such, there is ground for
taking action against any officials Smt. Meena Srivastava is to
blame for such a situation as she showed no intention to return to
the parent department.”
8. Ultimately, it was only after the Chief Secretary of the Union
Territory of Andaman and Nicobar issued a direction on 31 May 2010
for permitting the petitioner to rejoin duty, that she was allowed to
rejoin on 16 June 2010.
9. Following this, on 8 October 2013, the Union Territory
Administration in Andaman and Nicobar wrote to the Department of
Personnel and Training for regularisation of the period during which
the petitioner had overstayed her deputation at the Navodaya
Vidyalaya Samiti, Faizabad. The stand of the Union Territory
Administration was – and is – that the lien of the petitioner in the
Navodaya Vidyalaya Samiti, Faizabad was alive only for a period of
two years with effect from 16 January 1988 and that, in any case, her
lien could not continue beyond 17 July 1991, when she had been
repatriated to her parent department. The Union Territory
Administration adopted the stand that the entire period after 20 August
1991 till the petitioner reported back for duty in 2009 amounted to
unauthorised absence, for which she was departmentally accountable.
10. Despite being permitted to join duty with effect from 11 August
2010, the petitioner was not paid her salary for the intervening period,
except for a short spell, and was also denied her retiral benefits which
were paid to her in part after a delay of 34 months. An amount of ₹
94,479/- was also recovered from her.
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
Signing Date:20.07.2026
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W.P.(C) 11301/2018 Page 5 of 24
11. Aggrieved by these actions of the respondents, the petitioner
approached the Principal Bench of the Tribunal by way of OA
2472/2017, praying that the communication dated 26 September 2016
addressed by the DOE to the MHA be quashed and set aside and that
the petitioner be disbursed all her retiral benefits treating her as
continuing in service during the period she remained in the Navodaya
Vidyalaya Samiti, Faizabad as per the interim order passed by the
High Court of Allahabad on 20 August 1991.
12. For ready reference, we deem it appropriate to reproduce the
entire letter dated 26 September 2016, though question (iv) and the
reply thereto have already been separately extracted earlier, thus:
“ANDAMAN AND NICOBAR ADMINISTRATION
DIRECTORATE OF EDUCATION
th
Fort Blair, dated the 26 September, 2016
To,
The Under Secretary to the Govt. of India
Ministry of Home Affairs
Grih Mantralaya,
New Delhi-110001
Sub: Regularization of overstay for the extended period of
deputation in respect of Smt. Meena Srivastava, TGT (now Retd.1-
Reg.) –
Sir,
I am directed to refer MHA's letter No.U-14023/3/2013-ANI
received from Under Secretary to the Govt. of India, Ministry of
th
Home Affairs, Grih Mantralaya, New Delhi, 12 February, 2016
on the subject cited above and to say that the reply for
clarification/information sought by the Under Secretary on the
following points are stated below:
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
Signing Date:20.07.2026
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(i) What actions
were taken by
them to see that
its employee,
Smt. Meena
Srivastava, TGT
(now Retd.) joins
duty after
15.01.1991 (after
completion of her
deputation period)
Navodaya Vidyalaya Samiti has
repatriated the services of Smt.
Meena Srivastava, TGT to the parent
department vide order dated
17.07.1991, but Sat. Meena
Srivastava, TGT filed writ petition
No.4941/1991 in the Hon'ble High
Court, Lucknow Bench. Lucknow
Challenging the order of repatriation
issued from the NVS. The court
granted interim stay order dated
20.08.1991, whereby the petitioner
ant. Meena TGT Srivastava, allowed
to continue in the same organization
and respondents were directed that
she shall not be required to join at
her parent department. The letter
dated 28.06.2004 from the NVS
reveals that the aforesaid interim stay
order was existing and the case was
pending in the Hon'ble Court,
Lucknow till 28.06.2004.Copy
Annexure-I, II & III). enclosed
With reference to NVS letter dated
28.04.1990 placed at Flag D this
Directorate had informed vide letter
dated 24th May 1990 addressed to
Deputy Director: NVS Lucknow by
stating that the deputation period in
r/o Smt. Meena Srivastava, 767
hereby extended for further period
one year w.e.f. 16.01.1990 to
15.01.1991 with the direction to
make necessary arrangement to
relieve dat. Meena Srivastava, before
expiry of her above deputation
period or she may be permanently
absorbed as further extension of her
deputation beyond 15.1.1991 is not
permissible under the rules. Copy
enclosed (Annexure-IV).
Smt. Meena Srivastava continued to
remain in JNV as per the order of
Hon'ble High Court. However she
was repatriated from to Directorate
of Education A&N Administration
after considering her case in view of
Hon'ble CAT Lucknow Bench
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
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Lucknow.
(ii) On perusal of the
order dated
20.08.1991 of the
Hon’ble High
Court of
Judicature at
Allahabad,
Lucknow Bench
Lucknow in WP
No.4941 (W) of
1991 S/S (Meena
Srivastava Vs.
Navodaya
Vidyalaya Samiti
Others), it is
observed that the
Hon'ble High
Court has passed
order that till the
next date listing,
the petitioner
should be allowed
to continue in the
institute where
she is presently
working and shall
not be required to
join at her parent
department. The
respondents were
also directed to
indicate as to
whether the
option given by
the petitioner for
absorption has
been considered
or not and if not,
for what reasons
it was thought not
to absorb the
petitioner.
However the
borrowing
authority after
long period
17Yrs.) issued
In compliance to the judgement and
order dated 09.01.2008 from the
Tribunal, Lucknow Bench Lucknow,
the case of Smt. Meena Srivastava,
has been considered and it has been
observed that her case of
absorption/repatriation was placed
before the Absorption Committee
which did not approve, the
absorption because the academic
qualification of the teacher is M.A.
M.Ed., but the percentage of marks
obtained by her in Graduation is only
44.68 i.e. below criteria and as such
is not eligible for absorption in NVS.
The deputationists having 50%
marks in Graduation and in particular
subject were recommended for
absorption by the Absorption
Committee. Copy enclosed
(Annexure-V).
Finally, Smt. Meena Srivastava was
repatriated by an order issued on
25.11.2008 after a gap of 20 years 10
months and 10 days. Copy enclosed
(Annexure-VI).
th
Vide DE's letter dated 24 May 1990
placed at Flag addressed to no, NVS
Lucknow with reference to NVS
letter dated 28.04.1990 placed at
Flag 'D' stating that the deputation
period in Smt. Meena Srivastava,
TGT hereby extended for further
period of one year w.e.f.16.01.1990
to 15.01.1991 with the direction to
make necessary arrangement to
relieve Sat. Meena Srivastava before
expiry of her above deputation
period or she may be permanently
absorbed as further extension of her
deputation beyond 15.01.1991 15 not
permissible under the rules. Copy
enclosed (Annexure-VIII.
The following correspondences were
made with DOPT New Delhi for
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
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order dated
25.11.2008
rejecting her
claim for
absorption in the
Navodaya
Vidyalaya Samiti
in compliance of
another order
dated 09.01.2008
of Hon'ble
of CAT, Lucknow
Bench Lucknow
in TA 3/2004. It
may kindly be
explained whether
any action was
taken by the UT
Administration to
repatriation Smt.
Meena
Srivastava, as she
was holding the
post on
deputation for
considerably long
period. In fact, a
proposal for
regularization of
the extended
period of
deputation should
have been
initiated by the
UT
Administration.
This may be
sufficiently
explained.
regularization of the extended period
of deputation by UT Administration.
1. Director (Estt.) Department of
personnel & training, New Delhi vas
requested vide Adan's letter dated
No.3-15/2011-D-I dated 10
September, 2013 regarding
regularization of overstay for the
extended period of deputation. Copy
enclosed [Annexure-VIII).
2. Director (Estt.) Department of
personnel & training, New Delhi was
requested vide Adan's letter dated
No.5-1(3)/2013-D-III dated
08.10.2013 regarding treatment the
period spent for awaiting posting
order as duty for all purposes in
respect of Sat. Meena Srivastava.
Copy enclosed (Annexure-IXI.
3. Director Estt.) Department of
personnel & training, New Delhi
M88 requested vide Admn's letter
dated No.3-15/2011-D-III (PF) dated
23 December, 2013 regarding
regularization of overstay for the
extended period of deputation In
respect Smt. Meena Srivastava. Copy
enclosed (Annexure-X).
4. Joint Secretary (UT), NHA, Gol,
New Delhi was requested vide
Admn's letter No.3-15/2011-D-III
(PF) dated 17 February, 2014
regarding regularization of overstay
for the extended period of deputation
in respect of Smt. Meena Srivastava
in response to MHA's letter. No.0-
14023/3/2013-ANL dated
26.12.2013.
5. Joint Secretary (UT), NHA Gol,
New Delhi was requested vide
Admn's letter No.3-15/2011-D-III
(PF) dated April, 2014 regarding
regularization of overstay 1 for the
extended period of deputation in
respect of Smt. Meens Srivastava in
response to MHA's letter No.D-
14023/3/2013-ANL dated
24.03.2014. Copy enclosed
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
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(Annexure-XI).
6. Joint Secretary (UTI, MILA Gol,
New Delhi was requested vide
Admn's letter No.3-15/2011-D-
th
III(PF) dated 20 May, 2014
regarding regularization of overstay
for the extended period of deputation
in respect of Smt. Meena Srivastava.
Copy enclosed (Annexure-XII).
7. Joint Secretary (OT), MHA Gol,
New Delhi was requested vide
Admn's letter No.3-15/2011-D-
th
III(PF) dated 09 September, 2014
regarding regularization of overstay
for the extended period of deputation
in respect of Sat. Meena Srivastava.
Copy enclosed (Annexure-XIII.
(iii) It is observed
from the letter
No.3-15/2011-D
-III dated
10.09.2013 that
the writ petition
of Smt.
Meena
Srivastava,
pending in the
High Court,
Lucknow
transferred to the
Hon'ble Lucknow
CAT, as
transferred appeal
which was
disposed of by the
Hon'ble CAT
dated 9.1.2008. A
copy of the court
order vide which
the said writ
petition of the
petitioner
transferred to
CAT, Lucknow
Bench may be
provided to this
Ministry.
A copy of the court order vide which
the said writ petition of the petitioner
was transferred to CAT, enclosed.
Lucknow Copy Bench is enclosed
(Annexure-XIV).
(iv) The reply given Smt. Meena Srivastava, reported for
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
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by the UT
Administration
vide their letter
No.3-15/2011-D-
III (PF)
dated 19.02.2014
with regard to
reasons for not
permitting her
join a duty at the
time when she
had submitted
joining report on
09.01.2009 is not
tenable as it is
against the instant
rule position on
the subject. Is it is
not a fit case for
taking action
against the
official(s)
responsible for
the Lapse?
duty in this Directorate on
09.01.2009 (FN) but her duty report
has not been accepted by this
Directorate as it was found to be
infirmity of rules. When Government
servant abandons service to take up
alternative employment to attend to
personal affairs and does not bother
to send any letter seeking permission
for continued deputation or letter or
permission for approaching the court
for redressal of her grievance and the
records do not shows that she is
treated as being in service, she
cannot after two decades, represents
that she should be taken back to
duty. The Hon'ble High Court did not
direct the parent department to
accept the duty report in the event of
her permanent absorption was not
being considered by the NVS and
NVS has no right to direct her to join
her parent department after expiry of
her permitted deputation and serving,
the NVS for more than two decades
which is impermissible under the
existing rules provision and also no
exemption was obtained from the
Govt. of India for such extended
deputation by JMV or Smt. Meena
Srivastava either and there is no
court order to accept her duty report.
Smt. Meena Srivastava, TGT writ
petition No.4941/1991 in the Hon'ble
High Court Lucknow Bench
Lucknow challenging the order of
repatriation issued from the NVS.
The court granted Interim stay order
dated 20.08.1991, petitioner whereby
the Smt. Meena Srivastava, TGT was
allowed to continue in the same and
organisation respondents were
directed that she shall be required to
join at her parent department. The
letter dated 28.06.2004 from the
NVS reveals that the aforesaid
interim stay order was existing and
the case was pending in the Hon'ble
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
Signing Date:20.07.2026
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W.P.(C) 11301/2018 Page 11 of 24
High Court, Lucknow till
28.06.2004. However, consequent to
her repatriation in 25.11.2008 after a
gap of 20 years 10 months and 10
days she approached Directorate of
Education to report for duty. Copy
enclosed (Annexure-II 6 111).
Her (Personnel File maintained in
this Directorate) was referred to the
Administration for consideration.
The matter was examined by
personnel and legal section of
Administration.
Finally as instructed by the then
Chief Secretary on 31.05.2010, she
was allowed to join this Directorate
vide Memorandum No.4-
3711/Estt./Edn/4040 dated
16.06.2010. Copy enclosed
Annexure-XVI.
To regularize her joining time and
the overstay for the extended period
of deputation, the Administration has
submitted the case to the Director
(Estt.) Department of Personnel &
Training, New Delhi vide Admn's
letter No.5-1(31/2013-D-III dated
8.10.2013 Copy enclosed (Annexure-
XVI).
She has reported duty on 28.06.2010.
As such, there is ground for taking
action against any officials Smt.
Meena Srivastava is to blame for
such a situation as she showed no
intention to return to the parent
department.
(v) The reasons given
by the UT
Administration
for delay in
forwarding her
case for of
regularization
extended period
of deputation to
the DOPT/MHA
is also not Had
satisfactory. the
Smt. Meena was under lien upto
15.01.1991 after completion of her
lien period she neither bothered to
return back to parent department nor
intimated the parent department
about her intention of overstaying
beyond the lien period. The available
records reveal that she preferred to
remain in NVS by challenging the
repatriation order issued by NVS
before Hon'ble High Court Lucknow.
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
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UT
Administration
pursued sincerely
to get back
relevant records
with the
borrowing
authority, the
same could have
been received
without wastage
of such a long
period which is
one of the reasons
stated to have
been delay in
submission of her
case.
The UT sincerely was
Administration requested to provide
information regarding service book,
leave account UTGEIS, No Dues
Certificate for the deputation period.
Schedule of GPF Subscription with
to request furnish all the details and
related documents vide 7-
620/DEO/WG/14/996 dated
15.10.2014.
Deputy Director, NVS was requested
vide letter dated 01.05.2013
regarding settlement of pension in
respect of Smt. Meena Srivastava,
Retd. GTT and with the Principal,
JNV, vide letter dated 07.03.2014.
th nd
17 July 2014, 22 August, 2014,
th th
15 Oct. 2014, 26 May 2015, and
th
09 July 2015 regarding settlement
of pension in respect of Smt. Meena
Srivastava, Retd. GTT. Copy
enclosed.
Her case was also referred -to MHA
and MHA directed to deal her case as
per the provision contained in OM
No.6/8/2009-Estt. (Pay II), Gol,
Ministry of personnel Public
Grievances & Pensions, department
of Personnel & Training, New Delhi
dated 17th June, 2010 and OM
No.6/8/2009-Estt. (Pay II) Gol,
Ministry of Personnel Public
Grievances & pensions, Department
of Personnel & Training, New Delhi,
st
dated 1 March 2011.
Relevant portion of the OMs is
reproduced below :
8. Tenure of Deputation / Foreign
Services
8.1 The period of
deputation/Foreign service shall be
as per the Recruitment Rules of the
ex-cadre post or case no tenure 3
years in regulations exist for the ex-
Signature Not Verified
Digitally Signed By:AJIT
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cadre post.
8.2. In case where the period of
deputation/Foreign service
prescribed in the recruitment rules of
the ex-cadre post in 3 years or
Administrative borrowing less, the
Ministry/may organization grant
extension upto the 4th year after
obtaining orders of their Secretary(in
the- Central Government) /Chief
Secretary(in
the State Government)/ equivalent
officer(in respect of other. cases) and
th
for the 5 year with the approval of
the Ministry of the borrowing
Ministry/Department and in respect
of other organizations with the
approval of the Minister of the
borrowing Ministry/Department with
which they are administratively
concerned.
The OM No.6/8/2009-1 Estt. (Pay
II)-, GoI, Ministry of Personnel
Public Grievances & Pensions,
Department of Personnel & Training,
st
New Delhi dated 1 March, 2011
reveals that:
Subject : Overstay while on
deputation
Undersigned is directed to refer to
this department OM of even number
th
dated 17 June, 2010 and to say that
as per existing instructions nо
extension in deputation beyond the
5th year is allowed. Further as per
the O.M. No.14017/30/2006-Estt.
th
(RR) Dated 29 November, 2006,
The deputationist officer is deemed
to have been relieved on the date of
expiry of the deputation period
unless the competent authority has
with requisite approvals, extended in
the period of deputation, writing,
prior to the date of its expiry. It is
observed that despite these clear
Signature Not Verified
Digitally Signed By:AJIT
KUMAR
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instruction, proposals for
regularization of overstay of officer
on deputation beyond the five year
period continue to be received in the
Department. It is reiterated that it
will be the responsibility of the
immediate superior officer to ensure
that the deputationist does not
overstay. In the event of the officer
overstaying for any reason
whatsoever, he/she is liable to
disciplinary action and other adverse
Civil/Service consequences which
would include the period of
unauthorized overstay not being
counted service for the purpose of
pension and that any increment due
during the period of unauthorized
overstay being deferred with
cumulative effect, till the date on
which the officer re-joins his parent
cadre.
Henceforth no ex-post facto
approval for regularization of
overstay on deputation would be
allowed.
In view of the provisions of the
above referred 2 OMs, Smt. Meena
Srivastava is not eligible for any kind
of benefits on account of
unauthorized overstay beyond the
deputation period.
(vi) Status of the
pensioner benefits
/ other dues given
to Smt. Meena
Srivastava, if any
may also be
intimated to this
Ministry.
The GPF amount was paid and the
pension was prepared and submitted
to pay & accounts office, Port Blair,
but the case was returned by PAO
with certain observations i.e. (i)
Reason for re-casting of 'service
Book may be recorded in the Service
Book under proper attestation of
HOO.
(ii) No entry regarding extension of
lien or resigning from the post of
GTT has been found recorded in the
Service Book.
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(iii). Service verification for the
entire period.
(iv). Leave account found incomplete
and incorrect.
Further it is also to state that Smt.
Meena Srivastava, had not put in
minimum amount of service required
for consideration of pension / retiral
benefits.
With the above submission it is requested that MHA may advise
for any course correction for settlement of pension case of Smt.
Meena Srivastava.
Yours faithfully
Sd/-
Assistant Director (Admn.-I)”
13. By the impugned judgment dated 2 July 2018, the Tribunal has
dismissed the petitioner’s OA. The reasoning of the Tribunal is
contained in the following paragraphs from the impugned judgment:
“13. The facts not in dispute are that the applicant was sent on
deputation to NVS vide order dated 14.01.1988. In the Order No.
74 dated 14.01.1988, it was made clear that her lien in the post of
TGT will be kept in the parent department for a period of two years
w.e.f. 16.01.1988 after which she was required to revert to the
parent organization or to resign from there. On issuance of the
repatriation order dated 17.07.1991, the applicant obtained a stay
order from the Hon'ble High Court of Allahabad and continued to
work with the borrowing organization at NVS Faizabad, UP till she
was ordered to be repatriated vide order dated 25.11.2008, after her
case for permanent absorption was rejected by the Absorption
Committee.
14. Clearly, the over stay of the applicant, though covered by
the stay of the Hon'ble High Court, was never regularized by the
competent authority. The respondents have relied upon various
OMS issued by DOP&T, GOI, which lay down the provisions of
overstay of an Officer, while on deputation. The relevant portion of
O.M. dated 17.06.2010 governing such situations is reproduced
below :
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"(i) The period of deputation/foreign deputation/foreign
service shall be as per the Recruitment Rules of the ex-
cadre post or 3 years in case no tenure regulations exist for
the ex-cadre post.
(ii) In case where the period of deputation/foreign
service prescribed in the recruitment rules of the ex-cadre
post is 3 years or less, the Administrative
Ministry/borrowing organisation may grant extension upto
the 4th year after obtaining orders of their Secretary (in the
Central Government)/Chief Secretary (in the State
Government)/ equivalent officer (in respect of other cases)
and for the fifth year with the approval of the Minister of
the borrowing Ministry/Department and in respect of other
organisations with the approval of the Minister of the
borrowing Ministry/Department with which they are
administratively concerned."
Similarly, O.M. No. 6/8/2009-Estt. (Pay-ll) of DOP&T dated
01.03.2011 also stipulates that :-
"Undersigned is directed to refer to this Departments OM
th
of even number dated the 17 June, 2010 and to say that as
per existing instructions no extension in deputation beyond
the fifth year is allowed. Further, as per the OM No.
1401713012006-Estt (RR) dated the 29th November, 2006,
the deputationist officer is deemed to have been relieved on
the date of expiry of the deputation period unless the
competent authority has with requisite approvals, extended
the period of deputation, in writing, prior to the date of its
expiry. It is observed that despite these clear instructions,
proposals for regularization of overstay of officers on
deputation beyond the five year period continue to be
received in the Department. It is reiterated that it will be the
responsibility of the immediate superior officer to ensure
that the deputationist does not overstay. In the event of the
officer overstaying for any reason whatsoever, he/she is
liable to disciplinary action and other adverse Civil/Service
consequences which would include the period of
unauthorised overstay not being counted for service for the
purpose of pension and that any increment due during the
period of unauthorized overstay being deferred with
cumulative effect, till the date on which the officer rejoins
his parent cadre."
There is also an advisory issued by DOP&T vide O.M. dated
16.05.2013 in respect of “Proper Monitoring of deputation by the
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lending departments", which lays down the tenure of deputation
and other terms and conditions which the Government employees
are mandated to follow. Para-8.2 deals with tenure of deputation,
categorically stating that:-
"In case where the period of deputation/foreign service
prescribed in the recruitment rules of the ex-cadre post is 3
years or less, the Administrative Ministry/borrowing
organisation may grant extension upto the 4th year after
obtaining orders of their Secretary (in the Central
Government)/Chief Secretary(in the State Government)
equivalent officer (in respect of other cases) and for the
fifth year with the approval of the Minister of the
borrowing Ministry/Department and in respect of other
organisations with the approval of the Minister of the
borrowing Ministry/Department with which they are
administratively concerned."
In Para-8.3 of the same O.M. it is stated that:-
"8.3.1 The following Ministries/Departments/
Organisations may extend the period of deputation upto the
fifth year where absolutely necessary in public interest,
subject to the following conditions:
(i) The extension would be subject to the prior
approval of the lending organisation, the consent of the
official concerned and wherever necessary, the approval of
the UPSC/State Public Service Commission ad
Appointment Committee of Cabinet(ACC).
(ii) If the borrowing organisation wishes to retain an
officer beyond the prescribed tenure, it shall initiate action
for seeking concurrence of lending organisation, individual
concerned etc. six months before the date of expiry of
tenure.
In no case it should retain an official beyond the sanctioned
term unless prior approval of the competent authority to
grant further extension has been obtained.
(iii) No further extension beyond the fifth year shall be
considered."
15. In the instant case, not just the applicant but even the
borrowing and parent organisation have erred in not being vigilant
in following the norms mandated to be followed in case of the
applicant.
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16. Be that as it may, obviously the applicant was not keen on
returning back to her parent department and reported back only
when it became unavoidable to continue in terms of the repatriation
order dated 25.11.2008. The respondents took up her case with
DOP&T and Ministry of Home Affairs for regularization of her
over stay of "extended period" from her parent organisation, which
was rejected. Despite the clear instructions on the over stay of
officers on deputation, the officer, over stayed and became liable
for disciplinary action and other civil service consequences. As per
the O.M. No. 14017/30/2006-Estt. (RR) dated 29.11.2006, the
deputationist officer is deemed to have been relieved on the date of
expiry of the deputation period unless the competent authority has
with requisite approvals, extended the period of deputation, in
writing, prior to the date of its expiry. The respondents have also
clarified that her service period in the department for the purpose
of pension was not sufficient, since she did not have any relaxation
for continuation of service in the borrowing organisation after a
period of two years.
17. In my view, the respondents have already shown enough
indulgence to the applicant and have made efforts to regularize her
overstay by referring her case to MHA & DOP&T etc. The same
has however been rejected due to clear instructions governing such
cases of overstay. I also find that the facts of the citations relied
upon by the applicant are different from the facts of the instant case
and hence are not applicable here.
18. In view of the aforementioned discussions, I have no
hesitation in concluding that benefits claimed by the applicant in
the O.A. are totally devoid of merit and she is not entitled to any
relief as claimed by her in the O.A. In view of the same, O.A. is
dismissed. No costs.
14. Aggrieved by the aforesaid decision of the Tribunal, the
petitioner is before us.
15. We have heard Ms. Kamlakshi Singh Chauhan, learned counsel
for the petitioner and Ms. Archana Gaur, learned CGSC, for the
respondents, at length.
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16. Ms. Chauhan submits that in as much as the petitioner was
continuing in the Navodaya Vidyalaya Samiti, Faizabad, in terms of
the order dated 20 August 1991 passed by the High Court of
Allahabad, which remained in force till 9 January 2008 when the writ
petition filed by the petitioner before the High Court, after it was
transferred to the Tribunal, was disposed of by the Tribunal, it cannot
be said that her stay was unauthorised or that she had continued on
deputation beyond the terminus ad quem of the deputation period. She
points out that, in fact, no order of repatriation was even passed in her
case. In as much as she rendered service from 1978 to 2013, she
cannot be denied her retiral benefits.
17. Ms. Gaur submits, by way of response, that the OMs issued by
the DOPT in respect of overstay on deputation are clear and
categorical. The lien of the petitioner expired at the end of two years
from the date she was sent on deputation to Faizabad and in no case
could deputation continue for more than five years from the date when
it commenced. There is no way in which the petitioner can be treated
as having been on deputation till 2008. In that view of the matter, she
has voluntarily chosen not to report back at Andaman & Nicobar on
the completion of her deputation period and to continue to work at
Faizabad. This amounted to abandonment of service and taking up of
alternate employment. The petitioner, therefore, remained absent
without authorization after the expiry of her two years’ lien period till
the date when she rejoined duties with the Andaman and Nicobar
Administration. The petitioner is not, therefore, according to Ms.
Gaur, entitled to retiral benefits and the Tribunal has correctly
appreciated the legal position.
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18. Having considered the submissions of learned counsel for both
sides, we are unable to sustain the order of the Tribunal.
19. We do not deem it necessary to burden this judgment by
referring to the various OMs cited by Ms. Gaur or relied upon by the
UT Administration in Andaman and Nicobar as, to our mind, none of
them are applicable.
20. The question is not of whether deputation can or cannot
continue for more than two years or even for more than five years.
The submissions of Ms. Gaur overlook the impact of the order dated
20 August 1991 passed by the Allahabad High Court, which
admittedly remained in force till 9 January 2008. The words of this
order are of great significance. The High Court of Allahabad allowed
the petitioner to continue in the Institute where she was working and
specifically stated that “she shall not be required to join at her parent
department”. Thus, there was a positive permission granted to the
petitioner to continue in the Navodaya Vidyalaya Samiti at Faizabad
and, side by side, there was a positive proscription on the respondent
requiring the petitioner to rejoin with the UT Administration in
Andaman and Nicobar. No application was ever moved to alter,
modify or vary this order, which was never challenged. It remained in
force till 9 January 2008.
21. In such circumstances, we are flabbergasted at the stand of the
UT Administration in Andaman and Nicobar that the petitioner was
absent without authority from 17 July 1991 till she reported for duty in
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2009/2010. The submission is preposterous.
22. We express our undisguised displeasure at the stand reflected in
the letter dated 26 September 2016 by the DOE of the Andaman and
Nicobar Administration in response to query (iv) of the MHA. It is
clear from a reading of the said reply that the author thereof had least
concern for the orders passed by the Tribunal or by the Court and
apparently regarded himself as a super-judicial authority. The intent to
punish the petitioner, for having the temerity to approach the High
Court and obtain an order of stay, is transparent from the said
communication. It is a matter of great regret that such a stand has been
taken by a Senior Officer in the UT Administration in Andaman and
Nicobar.
23. Inasmuch as the petitioner had, even if she wanted to, no option
to return to the UT Administration in Andaman and Nicobar in light of
the order dated 20 August 1991 passed by the Allahabad High Court,
the stand of the respondent is practically contemptuous of the said
order. In the light of the said order, which remain unvaried till 2009
when the writ petition was disposed by the Tribunal after it was
renumbered as a TA, no adverse consequences could visit the
petitioner from having remained in the Navodaya Vidyalaya Samiti in
Faizabad, till the passing of the final order by the Tribunal, the
reconsideration of her case and her repatriation to the Andaman and
Nicobar Administration.
24. The author of the letter dated 26 September 2016 appears to be
oblivious of the position that a citizen cannot be penalized for acting
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in accordance with a court order.
25. There was, therefore, also no justification for the Andaman and
Nicobar Administration not allowing the petitioner to rejoin duty after
she reported back consequent to her repatriation. The act is plainly in
the teeth of judicial orders passed in the petitioner’s case and deserves
to be deprecated. We do so.
26. The only ground on which Ms. Archana Gaur, learned Counsel
for the respondents defends the withholding of the retiral benefits of
the petitioner is that she overstayed her deputation in the Navodaya
Vidyalaya Samiti.
27. Withholding of the retiral benefits of the petitioner on the
ground that she overstayed deputation is, therefore, perilously in the
teeth of the order passed by the High Court of Allahabad and may
even tantamount to contempt thereof.
28. Clearly, therefore, the ground on which the petitioner’s retiral
benefits were withheld is unsustainable in law.
29. As such, we are of the view that the Tribunal erred in rejecting
the petitioner’s OA.
30. The writ petition is accordingly allowed.
31. We hold that the petitioner was entitled to be disbursed her
retiral benefits consequent to her superannuation.
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32. Let the needful be paid to the petitioner, less any payments
already made to her, within a period of six weeks from today, failing
which the amount shall carry interest at the rate of 12% per annum till
the date of actual payment.
33. Re-notify on 13 October 2026 for reporting compliance.
C. HARI SHANKAR, J
VINOD KUMAR, J
AR/aky/yg
JULY 10, 2026/
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