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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5983 OF 2007

Union of India & Anr.      ... Appellants

                               VERSUS

S.N. Maity & Anr.                                ...Respondents

J U D G M E N T

Dipak Misra, J.

In  this  appeal,  by  special  leave,  the justifiability  and  

soundness  of  the  judgment  and  order  dated  18.5.2006  

passed by  the  High  Court  of  Jharkhand at  Ranchi  in  W.P.

(Service) No. 6106 of 2005 whereby the Division Bench of  

the  High  Court  has  overturned  the  order  passed  by  the  

Central Administrative Tribunal (‘tribunal’ for short), Circuit  

Bench  at  Ranchi  in  O.A.  NO.  215  of  2005,  is  called  in  

question.  

2. Shorn  of  unnecessary  details,  the  facts  which  are  

REPORTABLE

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requisite  to  be  stated  are  that  the  1st respondent  was  

working as a Scientist  E-II  in the Central  Mining Research  

Institute (Council of Scientific and Industrial Research).  On  

29.07.2003, he was appointed on deputation to the post of  

Controller General of Patents, Designs and Trade Marks ( (for  

short, ‘CGPDTM’).  After serving there for one year, by order  

F.No. 8/52/2001-PP&C dated 31.8.2004, he was repatriated  

to his parent department.  The said order was challenged  

before the tribunal contending, inter alia, that he could not  

have  been  pre-maturely  repatriated  to  his  parent  

department and there had been a violation of the principle  

of audi altram partem.  The said stand of the 1st respondent  

was  contested  by  the  authorities  of  Union  of  India  

proponing, inter alia, that he had no right to continue in the  

post as he was on deputation.  Be it  stated, some reliefs  

were  claimed  with  regard  to  the  TA  bills  and  salary  for  

certain period.  The tribunal accepted the stance put forth  

by the Union of India and dismissed the Original Application.  

However,  as far  as payment regarding T.A.  and salary for  

certain period is  concerned, the tribunal  directed that the  

same  should  be  decided  by  the  respondents  after  due  

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verification in accordance with law.   

3. Being  dissatisfied  with  the  aforesaid  decision  of  the  

tribunal,  the 1st respondent invoked the jurisdiction of the  

High Court under Article 226 and 227 of the Constitution of  

India.   The  High  Court  posed  two  questions,  namely,  

whether the order F.No.8/52/2001-PP&C dated 31st August,  

2004 issued by Under Secretary to the Government of India,  

Ministry of Commerce and Industry, Department of Industrial  

Policy & Promotion repatriating the petitioner to his parent  

department was illegal; and whether the petitioner had the  

right to continue as Controller General of Patents, Designs  

and Trade Marks.

4. The High Court after posing the questions took note of  

the fact that the Union of India had issued an advertisement  

in  the  Employment  News  dated  20/26.10.2001  calling  for  

applications from eligible candidates for appointment to the  

post of CGPDTM and the Ministry had proposed to fill up the  

post  by  transfer  on  deputation,  including  short-term  

contract.  The 1st respondent, being eligible, applied through  

his parent department i.e. Central Mining Research Institute,  

Dhanbad and his selection was made by the Union Public  

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Service  Commission  (for  short,  ‘the  UPSC’)  which  held  

interview  on  4.6.2002  and  finding  him  suitable,  

recommended his name for appointment.   The competent  

authority approved the appointment of the 1st respondent,  

the petitioner before the High Court, for the post of CGPDTM  

in  the  pay  scale  of  Rs.18,400-500-22,400/-  on  deputation  

basis  for  a  period  of  five  years  or  until  further  orders,  

whichever was earlier from the date of assumption of the  

charge of the post.  The said order was communicated vide  

letter no. 8/52/2001-PP&C (Vol.II) dated 23.6.2003 issued by  

the  Deputy  Secretary  to  the  Government  of  India,  

Department of Industrial Policy and Promotion.  Thereafter, a  

letter of appointment dated 11.8.2003 was issued to the 1st  

respondent in the name of the President, appointing him on  

deputation basis for a period of five years or until  further  

orders, whichever was earlier.   

5. In pursuance of the aforesaid order of appointment, the  

1st respondent  joined  the  said  post  and  continued  to  

function, but after eleven months,  the Under Secretary to  

the  Government  of  India,  Ministry  of  Commerce  and  

Industry,  Department  of  Industrial  Policy  and  Promotion,  

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issued  an  order  dated  F  No.  8/52/2001-PP&C  dated  

31.8.2004 repatriating him to his parent department.  The  

High  Court,  taking  note  of  the  factual  backdrop,  and the  

nature of the appointment of the 1st respondent,  came to  

hold  that  his  appointment  was  not  a  case  of  simplicter  

deputation; that the employer did not have the prerogative  

to  get  him  repatriated  to  his  parent  department  as  the  

controversy fundamentally related to appointment and the  

source of appointment i.e. deputation on transfer; that the  

principles inhered under Articles 14 and 16 were violated,  

for the authorities did not disclose the ground for which such  

appointment had been disturbed by repatriating him to the  

parent department; that in the absence of any reasonable or  

valid ground, the order was bound to be treated as arbitrary  

thereby inviting the frown of Article 14 of the Constitution of  

India; and that the Under Secretary to the Government of  

India could not have passed the order of repatriation as the  

order of appointment was issued by the President of India.  

Being of this view, the High Court set aside the impugned  

order of repatriation and directed the writ petitioner to be  

reinstated  in  the  post  of  CGPDTM  on  similar  terms  and  

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conditions with all consequential benefits.  

6. We  have  heard  Mr.  Tushar  Mehta,  learned  Additional  

Solicitor General for the Union of India, Mr. Colin Gonsalves,  

learned  senior  counsel  for  the  respondent  no.  1  and  Mr.  

Praveen Swarup, learned counsel for the respondent no.2.  

7. To appreciate the defensibility and legal pregnability of  

the  judgment  and  order  passed  by  the  High  Court,  it  is  

necessary to reproduce the Notification dated 7.8.2003 by  

which the 1st respondent was appointed.  It reads as follows:

“NOTIFICATION

No. 8/52/2001-PP&C: The President is  pleased to  appoint  Dr.  S.N.  Maity,  Scientist  E-II  of  Central  Mining Research Institute (Council of Scientific and  Industrial  Research)  as  Controller  General  of  Patents,  Designs  and  Trade  Marks  under  the  Ministry of Commerce and Industry (Department of  Industrial  Policy  and  Promotion)  on  deputation  basis for a period of five years with effect from the  forenoon of 29th July, 2003 or until further orders,  whichever is earlier.  

Sd/- (Y.P. Vashishat)

Under Secretary to the Govt. of India”

8. From  the  aforesaid  order,  it  is  luculent  that  the  1st  

respondent was appointed on deputation basis for a period  

of five years or until further orders, whichever was earlier.  

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Submission  of  Mr.  Tushar  Mehta,  learned  ASG is  that  the  

order, as is demonstrable, being an order of deputation, it is  

the prerogative of the employer to recall him to the parent  

department without assigning any reason before the term of  

five years was over as such a rider was postulated in the  

order of appointment.   Per contra,  Mr.  Gonsalves,  learned  

senior counsel appearing for 1st respondent would contend  

that in the absence of any reason, such an order could not  

have been passed as that smacks of absolute arbitrariness  

which  the  law  does  not  countenance.   It  is  the  stand  of  

respondent  no.2,  Council  for  Scientific  and  Industrial  

Research (CSIR), that the 1st respondent had only gone on  

deputation and on being released, he was bound to come  

back to the parent department.   

9. On an anxious appreciation of the facts, which include  

issuance of an advertisement, selection process which led to  

eventual  recommendation  by  the  UPSC  and  the  ultimate  

issue of Notification, it  is extremely difficult to accept the  

submission of Mr. Tushar Mehta that it is a deputation by one  

department to  another  or  to  put  it  differently,  the parent  

department had lent the services of the 1st respondent to  

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the borrowing department.  It is not a deputation simpliciter.  

The Notification by which the 1st respondent was appointed  

has a different nature and character.  Mr. Gonsalves, learned  

senior  counsel  has  commended  us  to  the  decision  in  

Debesh Chandra Das V.  Union of  India1.   In  the  said  

case, the appellant, a member of Indian Civil Service, was  

chosen by the Appointments Committee of the Cabinet to  

function as the Secretary, Department of Social Security and  

he continued in that Department.  Thereafter, he received  

certain communications on June 20, 1966 and September 7,  

1966 from the Cabinet Secretary, which he construed them  

as  reduction  in  rank  and  challenged  the  same  in  a  writ  

petition  in  the  High  Court  of  Calcutta  on  September  19,  

1966.  Many a ground was urged contending, inter alia, that  

there was reduction in rank.  The High Court did not accept  

the  contention  and  dismissed  the  writ  petition.   It  was  

contended before this Court on behalf of the appellant that  

the reversion being in the nature of penalty, the procedure  

under  Article  311(2)  was  required  to  be  followed  and  as  

there was gross violation of the same, the order passed by  

the Government of India could not be sustained.  The said  

1  (1969) 2 SCC 158

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submission  was  countered  by  the  Government  of  India  

urging,  inter  alia,  that  he  was  on  deputation  and  the  

deputation could be terminated at any time; that his order of  

appointment clearly showed that the appointment was “until  

further  orders”;  that  he  had  no  right  to  continue  in  

Government of India if his services were not required and his  

reversion to his parent State did not amount either to any  

reduction in rank or a penalty and, therefore, the order was  

quite legal and justified.  

10. The Court,  as is  evident,  referred to various Rules in  

vogue,  the  Rules  of  Indian  Administrative  Service  (Cadre  

Rules), especially the “Constitution of Cadres”, “Strength of  

Cadres”, “Deputation of cadre officers” and adverted to the  

concept of ‘permanent post’, ‘temporary post’ and ‘tenure  

post’  and  addressing  the  issue  from various  angles,  held  

thus:

“11. The position that emerges is that the cadres  for  the  Indian  Administrative  Services  are  to  be  found in the States only. There is no cadre in the  Government of India. A few of these persons are,  however,  intended to serve at the Centre. When  they  do  so  they  enjoy  better  emoluments  and  status. They rank higher in the service and even in  the Warrant of Precedence of the President. In the  States they cannot get the same salary in any post  as Secretaries are entitled to in the Centre.  The  

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appointments to the Centre are not in any sense a  deputation. They mean promotion to a higher post.  The only safeguard is that many of the posts at  the Centre are tenure posts. Those of Secretaries  and  equivalent  posts  are  for  five  years  and  for  lower posts the duration of tenure is four years.

12.  Now,  Das held  one of  the tenure posts.  His  tenure ordinarily was five years in the post. He got  his  Secretaryship  on  July  30,  1964  and  was  expected to continue in that post for  five years,  that is, till 29th July, 1969. The short question in  this  case is  whether  his  reversion to  the Assam  State before the expiry of the period of his tenure  to  a  post  carrying  a  smaller  salary  amounts  to  reduction in rank and involves a stigma upon him.”

11. After so stating, the Court adverted to the concept of  

reversion and stigma and in the ultimate eventuate ruled  

that:

“16. We have shown above that he was holding a  tenure post. Nothing turns upon the words of the  notification  “until  further  orders”  because  all  appointments to tenure posts have the same kind  of order. By an amendment of Fundamental Rule  9(30)  in  1967,  a  form  was  prescribed  and  that  form was used in his case. These notifications also  do not indicate that this was a deputation which  could be terminated at any time. The notifications  involving  deputation  always  clearly  so  state  the  fact. Many notifications were brought to our notice  during the argument which bear out this fact and  none to the contrary was shown. Das thus held a  tenure post which was to last till July 29, 1969. A  few months  alone remained and he was  not  so  desperately required in Assam that he could not  continue here for the full duration. The fact that it  was  found  necessary  to  break  into  his  tenure  

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period close to its end must be read in conjunction  with  the  three  alternatives  and  they  clearly  demonstrate that the intention was to reduce him  in  rank  by  sheer  pressure  of  denying  him  a  secretaryship. No secretary, we were told, has so  far  been  sent  back  in  this  manner  and  this  emphasises the element of penalty. His retention  in Government of India on a lower post thus was a  reduction in rank.”

12. After  so holding,  the Court opined that  the appellant  

was  being  reduced  in  rank  with  a  stigma  upon  his  work  

without following the procedure laid down in Article 311(2)  

of the Constitution and consequently quashed the order of  

reversion and directed retention of the appellant in a post  

comparable  to  the post  of  a  Secretary in  emoluments  till  

such time as the tenure lasted.  

13. Mr. Gonsalves, learned senior counsel, has also drawn  

inspiration from a recent authority in Ashok Kumar Ratilal  

Patel V. Union of India and Another2. In the said case,  

the  appellant  while  functioning  as  Director,  Computer  

Department in Hemchandracharya North Gujarat University  

applied  through  proper  channel  pursuant  to  the  

advertisement for  the post of Director under the All  India  

Council  for Technical Education (for short “AICTE”), the 2nd  

2  (2012) 7 SCC 757

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respondent therein.   Eventually,  the terms and conditions  

attached to the letter were issued.   It  contained that  the  

deputation would be for a period of one year and extendable  

for  a  total  period  of  three  years  on  yearly  basis.   The  

communication that was sent by the appellant therein to the  

AICTE was to the effect that he had requested his University  

to relieve him to join AICTE on deputation within the joining  

date suggested by the Council.  The University, in its turn,  

by  letter  dated  20.2.2010  informed  the  2nd respondent,  

AICTE,  that  the  approval  of  the  deputation  given  by  the  

Executive Council by the University with further information  

that  the  appellant  would  be  relieved  on  17.3.2010.   The  

salary  component  was  also  mentioned  in  the  said  letter.  

Thereafter,  the  AICTE,  on  receipt  of  the  letter  from  the  

University withdrew the offer of appointment issued to the  

appellant  on  the  ground  that  the  deputation  from higher  

post to lower post was not admissible under the Rules. This  

Court reproduced the relevant portion of the grounds of the  

impugned order.  Be it noted, after the offer was cancelled,  

another  advertisement  was  published  which  was  also  

assailed  by  the  appellant  before  the  Gujarat  High  Court  

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which also did not meet with any success.  It was contended  

before  this  Court  that  his  was  not  a  case  of  transfer  on  

deputation, but a case of appointment on deputation after  

following all  due procedure for  appointment and selection  

and, therefore, in the absence of any illegality in selection, it  

was  not  open  to  the  respondent  to  cancel  the  offer  of  

appointment  as  that  would  fall  foul  of  Article  14  of  the  

Constitution  of  India.   On  behalf  of  the  respondents,  the  

grounds mentioned in the letter were urged i.e the person  

getting the higher scale of pay could not be deputed against  

a lower scale of pay; and that the appellant therein had no  

right to claim his entitlement to the post of Director, AICTE.   

14. In the above backdrop, this Court made a distinction  

between  ‘transfer  on  deputation’  and  ‘appointment  on  

deputation’ and proceeded to lay down thus:

“14. However,  the aforesaid principle cannot be  made  applicable  in  the  matter  of  appointment  (recruitment)  on  deputation.  In  such  case,  for  appointment on deputation in the services of the  State or organisation or State within the meaning  of  Article  12  of  the  Constitution  of  India,  the  provisions of Article 14 and Article 16 are to be  followed. No person can be discriminated nor is it  open to the appointing authority to act arbitrarily  or to pass any order in violation of Article 14 of the  Constitution  of  India.  A  person  who  applies  for  appointment  on  deputation  has  an  indefeasible  

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right  to  be  treated  fairly  and  equally  and  once  such person is selected and offered with the letter  of appointment on deputation, the same cannot be  cancelled except on the ground of non-suitability  or unsatisfactory work.

15. The present case is not a case of transfer on  deputation.  It  is  a  case  of  appointment  on  deputation  for  which  advertisement  was  issued  and after due selection, the offer of appointment  was  issued  in  favour  of  the  appellant.  In  such  circumstances, it was not open for the respondent  to argue that the appellant has no right to claim  deputation and the  respondent  cannot  refuse to  accept  the  joining  of  most  eligible  selected  candidate  except  on  ground  of  unsuitability  or  unsatisfactory performance”.

15. Eventually,  taking  note  of  the  communications,  this  

Court directed as follows:

“18. For  the  reasons  aforesaid,  the  impugned  order  of  withdrawal  of  appointment  dated  11-3- 2010 and the order of the Division Bench of the  Gujarat High Court cannot be sustained and they  are accordingly set aside. As the post of Director is  vacant, in view of the interim order of this Court  dated 9-5-2011, we direct the 2nd respondent to  accept the joining of the appellant for a period of  one  year  on  deputation  which  is  to  be  counted  from the date of his joining and other terms and  conditions of deputation will  remain same. North  Gujarat  University  is  directed  to  relieve  the  appellant  with  further  direction  to  the  2nd  respondent to accept the joining of the appellant  within one week from the date of reporting by the  appellant.”

16. The controversy that has emerged in the instant case is  

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to be decided on the touchstone of the aforesaid principles  

of  law.   We have already opined that  it  is  not  a  case  of  

simple transfer.  It is not a situation where one can say that  

it is a transfer on deputation as against an equivalent post  

from one cadre to another or one department to another.  It  

is  not  a  deputation  from a  Government  Department  to  a  

Government Corporation or one Government to the other.  

There  is  no  cavil  over  the  fact  that  the  post  falls  in  a  

different category and the 1st respondent had gone through  

the whole gamut of selection.  On a studied scrutiny, the  

notification of appointment makes it absolutely clear that it  

is a tenure posting and the fixed tenure is five years unless  

it is curtailed.  But, a pregnant one, this curtailment cannot  

be done in an arbitrary or capricious manner.  There has to  

have  some  rationale.   Merely  because  the  words  ‘until  

further orders’ are used, it would not confer allowance on  

the employer to act with caprice.  

17. Presently, we shall scrutinise under what circumstances  

the order of repatriation has been issued.  The impugned  

communication dated 17.1.2005 by the Under Secretary to  

the Government of India, reads as follows:  

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“Immediate/confidential No. 10/7/2004-EO(SM.II)

Government of India Secretariat of the appointments committee of

The Cabinet Ministry of Personnel, Public Grievances &  

Pensions Department of Personnel & Training

New Delhi, dated the 17th January, 2005

Reference  correspondence  resting  with  department  of  Industrial  Policy  &  Promotion  DO  No. 8/52/2001-PP&C, dated 9.12.2004.

2. The appointments committee of the Cabinet  has approved the following proposals:

i. Premature  repatriation  of  Dr.  S.N.  Maity,  controller  General  of  Parents,  Designs and trade  Marks (CGPDTM) to  his  parent department  w.e.f.  31.08.2004 (AN) and  

ii. entrusting  current  charge  of  the  post  of  controller  General  of  Patents,  Designs and Trade  Marks (CGPDTM) to Shri S. Chandrasekaran, Joint  Controller  of  Patents  and  Designs  w.e.f.  1st  September,  2004  for  a  period  of  1  year,  within  which, the Department may be directed to finalise  selection of a regular incumbent of the post.

Sd/- (Ravindra Kumar)

Under Secretary to the Govt. of India”

18. The  order  is  absolutely  silent  on  any  aspect.   An  

argument  has  been  advanced  by  Mr.  Gonsalves,  learned  

senior  counsel  for  the  1st respondent  that  this  letter  was  

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issued because of some frivolous complaints made against  

the 1st respondent and also regard being had to his stern  

and strict dealings by him pertaining to certain aspects.  Be  

that  as  it  may,  the  letter  is  absolutely  silent  and  it  has  

curtailed  the  tenure  of  posting  without  any  justifiable  

reason.   Regard being had to  the nature of  appointment,  

that is, tenure appointment, it really cannot withstand close  

scrutiny.  Therefore, the judgment passed by the High Court  

lancinating the said order cannot really be found fault with.   

19. Though we have accepted the reasoning of the High  

Court for axing the order of repatriation, yet at this distance  

of time, we find it difficult to give effect to the direction for  

reinstatement in the post of CGPDTM.  The 1st respondent  

was appointed on 29.7.2003.  The period is since long over.  

The stand of the 2nd respondent is that the 1st respondent,  

after  being  relieved,  joined  in  his  parent  department  on  

16.11.2004  and  has  been  holding  the  post  of  Scientist-G  

w.e.f. 13.2.2007 and continuing on the same post.  It is also  

the stand of the respondents that a new person has been  

holding the post.   

20. Mr.  Gonsalves,  learned  senior  counsel  would  submit  

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with emphasis that the 1st respondent should be allowed to  

function for the rest of the period of the tenure which he  

could  not  because  of  unwarranted  interference,  as  that  

would not only sub-serve the cause of justice but also would  

be a redemption of a cause which has been scuttled and  

strangulated.  Resisting the aforesaid stand it is submitted  

by Mr. Tushar Mehta, learned ASG for the Union of India that  

the expiry of six years of time has to be kept in view, for it  

would be extremely difficult to put the clock back.  In this  

context,  we  may  refer  with  profit  to  an  authority  in  Sri  

Justice S.K. Ray V. State of Orissa and others3.  We are  

conscious  that  the  factual  matrix  in  the  said  case  was  

different,  but  we  are  referring  to  it  for  the  purpose  of  

analogy.  In the said case, the appellant, formerly a Chief  

Justice of the Orissa High Court was appointed as the Lokpal  

under the Orissa Lokpal and Lokayuktas Act, 1970.  The said  

enactment  was  repealed  by  the  Orissa  Lokpal  and  

Lokayuktas (Repeal) Ordinance, 1992 which came into effect  

on 16.7.1992.  He ceased to hold the office of Lokpal.  The  

said  Ordinance  was  subsequently  replaced  by  the  Orissa  

Lokpal  and Lokayuktas (Repeal) Act,  1992.   The appellant  

3  (2003) 4 SCC 21

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therein filed a writ petition before the High Court contending  

that he incurred certain disabilities in ceasing to hold office  

being  ineligible  for  further  employment  under  the  State  

Government or any other employment under an office in any  

such local  authority,  corporation,  government company or  

society,  which  is  subject  to  the  control  of  the  State  

Government and which is notified by the Government in that  

behalf.  He claimed for  compensation for loss of salary for  

the remainder period of his tenure as Lokpal, pension with  

effect  from 16-7-1992 as per  Rule  7 of  the Orissa Lokpal  

(Conditions of Service) Rules, 1984, refund of the amount of  

pension deducted from his  salary  during the period 17-8-

1989  to  16-7-1992  and payment  of  encashment  value  of  

unutilised  leave  which  accrued  to  him  during  the  period  

17.8.1989 to 16.7.1992.

21. The High Court declined to grant him the compensation  

for loss of salary; but certain other reliefs were granted by  

the High Court which need not be referred to.  This Court  

adverted to the issue whether the appellant was entitled to  

any compensation for loss of salary for the remainder period  

of  his  tenure  as  Lokpal,  which  stood  curtailed  by  latter  

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enactment.   The Court also took note of the fact of repeal,  

abolition of post and ultimately opined that in the obtaining  

factual  matrix  therein,  adequate  compensation  should  be  

granted  and  the  compensation  should  be  the  loss  of  his  

salary  for  the  remainder  tenure for  which he would have  

held the office of Lokpal.  

22. We will  be failing in our duty, inter alia, if we do not  

state the rationale behind that direction.  It is as follows:

“9. There  are  two  ways  of  understanding  the  effect  of  abolition  of  the  office  of  Lokpal,  which  resulted in curtailment of the tenure of the office  of the appellant. One is that the appellant having  held the office at least for some time is subject to  all the restrictions arising under the provisions of  the  Act,  including  those  which  debar  him  from  holding any office on his ceasing to be Lokpal. The  other point of view could be that on the abolition  of the post the restrictions as to holding of office  on the appellant ceasing to be the Lokpal will not  be attached to him. The latter view, if taken, would  lead  to  incongruous  results  because  the  incumbent  in  the  Office  of  the  Lokpal,  having  functioned as such at least for some time, would  have dealt with many matters and, therefore, to  maintain the purity of that office, the restrictions  imposed under the Act should be maintained. The  only  other  reasonable  way,  therefore,  is  to  interpret  the  provisions  to  the  effect  that  even  when such restrictions continue to be operative on  abolition  of  the  office,  the  incumbent  in  office  should  be  reasonably  compensated  not  for  deprivation of the office but for attachment of the  restrictions thereafter.

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10. The  learned  counsel  for  the  respondents  contended  that  loss  of  employment  in  such  a  situation is only a contingency of service and the  right  to  abolish  the  post  is  available  with  the  Government in the same manner as the right to  create a post and a person whose post has been  abolished should not be entitled to salary. In our  view,  these  arguments  have  absolutely  no  relevance  to  the  question  which  we  have  examined. The crux of the matter in this case is  the effect of the disqualification of not holding any  office  after  ceasing  to  hold  the  Office  of  the  Lokpal.  He  is  deprived  of  all  other  offices  or  business interest when he holds the Office of the  Lokpal  and  the  office,  which  he  holds,  is  also  denied to him by reason of the repealing Act. If the  argument  of  the  learned  counsel  for  the  respondents  is  accepted,  it  would  lead  to  incongruity and would baffle all logic.

11. The  learned  counsel  for  the  respondents  further  submitted  that  the  appellant  had  not  presented his  case  or  claimed compensation  for  loss of  future employment  but  has claimed only  the loss for the present tenure and, therefore, we  should not grant any relief to him. A writ petition,  which is filed under Article 226 of the Constitution,  sets out the facts and the claims arising thereto.  Maybe, in a given case, the reliefs set forth may  not  clearly  set  out  the  reliefs  arising out  of  the  facts and circumstances of the case. However, the  courts always have the power to mould the reliefs  and grant the same.”

23. We  repeat  at  the  cost  of  repetition  that  we  are  

absolutely  conscious  in  the  said  case,  the  situation  was  

different, but the Court moulded the relief and granted the  

compensation.   The  Court  did  not  think  to  go  for  the  

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alternative  i.e.  once  there  is  an  abolition  of  post,  the  

restrictions of holding office would not be attracted to him.  

The Court did not think of the second situation as the result  

would be incongruous and baffle all logic.  We ingeminate  

that we have referred to that authority only to keep in view,  

in certain circumstances relating to curtailment of tenure,  

the  Court  can  mould  the  relief  depending  upon  the  fact  

situation.  In the obtaining factual scenario, the period has  

been over since last six years.  There had been an order of  

status quo by this Court on 01.11.2006.  The 1st respondent  

has come back to his parent Department and working in the  

post of Scientist-G.  In distinction to the decision in Debesh  

Chandra Das (supra), the period of tenure is not available  

which  was  there  in  the  said  case.   Similarly,  in  Ashok  

Kumar  Ratilal  Patel (supra),  the  appellant  was  not  

appointed and, therefore, the Court directed the authorities  

to appoint  him as per  the orders of appointment.   In the  

present case, we are of the considered view, the appellant  

should not suffer the loss of salary, but if we direct for his  

reinstatement as the High Court has done, it will create an  

anomalous situation.  It would be, in our considered view,  

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not apt at this juncture and, therefore, the cause of justice  

would be best subserved if he is allowed to get the entire  

salary that was payable to him for the post of CGPDTM for  

the balance period, that is, five years minus the period he  

had actually served and drawn salary.  The balance amount  

shall be paid with interest @ 9% p.a. within three months  

hence.   

24. Another aspect that has been highlighted before us by  

Mr. Gonsalves is that the 1st respondent should be entitled to  

draw the same salary that he was drawing on the basis of  

his  last  pay  drawn  when  he  came  back  to  his  parent  

Department.  It is an admitted fact that he was drawing a  

higher  scale  while  holding  the  post  of  CGPDTM,  but  the  

question is whether the said pay scale should be maintained  

in  the  parent  department.   Mr.  Praveen  Swarup,  learned  

counsel appearing for the 2nd respondent has commended  

us to the decision in Union of India & Others V. Bhanwar  

Lal Mundan4.  In the said case, a deputationist was getting  

a higher scale of pay in the post while he was holding a  

particular post as deputationist.  After his repatriation to the  

parent  department,  on  selection  to  higher  post,  he  was  

4  (2013) 12 SCC 433

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given higher scale of pay as it was fixed keeping in view the  

pay scale drawn by him while he was working in  the ex-

cadre  post.   In  that  context,  this  Court  opined  that  such  

fixation  of  pay  was  fully  erroneous  and,  therefore,  the  

authorities  were  within  their  domain  to  rectify  it.   Mr.  

Gonsalves, learned senior counsel would submit that here it  

was as tenure posting and, therefore, he is entitled to get  

the equivalent pay which he was holding as a tenure-post  

holder.   The  said  distinction,  on  a  first  glance,  may  look  

attractive,  but  on  a  deeper  scrutiny,  has  to  pale  into  

insignificance.   Assuming  he  would  have  completed  the  

entire tenure of five years, he would have definitely come  

back  to  his  parent  department.   There  is  no  rule  or  

regulation that he will  get the equivalent pay scale in his  

parent department.  The normal rule relating to pay scale  

has to apply to avoid any kind of piquant and uncalled for  

situation.   Therefore,  the  submission  does  not  commend  

acceptation and accordingly we repel the same.

25. Consequently,  the  appeal  is  allowed  to  the  extent  

indicated above.  There shall be no order as to costs.  

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............................J. (Dipak Misra)

.............................J. (V. Gopala Gowda)

New Delhi; January 06, 2015

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