Service Period Under Judicial Orders Cannot Be Deemed Unauthorized Absence or Deputation Overstay

The Petitioner was appointed as a temporary LDC in the Andaman and Nicobar Administration in 1978 and later as a Trained Graduate Teacher (TGT).

In 1988, she was sent on deputation to Navodaya Vidyalaya Samiti (NVS), Faizabad, with a lien on her parent post for two years.

When NVS ordered her repatriation on July 17, 1991, she challenged it before the Allahabad High Court, which stayed the repatriation on August 20, 1991, directing that she "shall not be required to join at her parent department".

This interim order remained in force until January 9, 2008, when the Tribunal (where the case was transferred) directed NVS to consider her for absorption.

After being found unsuitable for absorption, she was repatriated in November 2008 and reported to the UT Administration on January 9, 2009.

The UT Administration initially refused her joining, labeling her 17-year stay as "unauthorized absence" and "abandonment of service".

Consequently, her retiral benefits were partially withheld or delayed.

The Central Administrative Tribunal (Principal Bench) dismissed her original application in 2018, upholding the government's stand.

Whether the Petitioner’s stay at the borrowing organization (NVS) from 1991 to 2008, pursuant to a judicial stay order, constitutes "unauthorized absence" or "overstay on deputation" attracting disciplinary consequences.

Whether the Respondents are legally justified in withholding retiral benefits based on DOPT Office Memorandums (OMs) regarding the maximum tenure of deputation.

The Court focused on the doctrine of judicial supremacy and the principle that a citizen cannot be penalized for complying with a court order.

DOPT OMs (O.M. No. 6/8/2009-Estt. (Pay II) dated June 17, 2010, and March 1, 2011) stipulate that deputation cannot exceed five years and that overstay results in the period not being counted for pension.

Administrative instructions are inapplicable when a stay is granted by a Constitutional Court.

The Court found that the UT Administration’s reliance on DOPT OMs was misplaced because the Petitioner’s stay was governed by a "positive permission" from the Allahabad High Court.

The Court emphasized that the 1991 interim order specifically proscribed the parent department from requiring the Petitioner to rejoin.

The period from 1991 to 2008 could not be termed "unauthorized" as it was sanctioned by a judicial mandate that remained unchallenged for 17 years.

The Court criticized the Directorate of Education's stand as "preposterous" and "practically contemptuous," noting that an administrative officer cannot act as a "super-judicial authority" to punish an employee for seeking legal redress.

The Court concluded that since the Petitioner was legally barred from returning to her parent cadre by the High Court's stay, no adverse service consequences or "abandonment of service" theories could be applied.

The Petitioner is entitled to full retiral benefits treating her service as continuous.

The Respondents were directed to disburse all pending retiral benefits within six weeks, failing which a 12% per annum interest rate would apply.

The Court expressed "undisguised displeasure" at the UT Administration's attempt to penalize a citizen for acting in accordance with a court order.