ORDER
M.A. Khan, J. (Vice Chairman)
1. The applicant, who was working as Inspector in the Weights and Measures in Food and Civil Supplies Department of Government of Maharashtra, was appointed as Assistant Controller, Weights and Measures in the Government of NCT of Delhi on 22.2.2005 on deputation basis initially for a period of one year which as per terms of appointment letter was extendable depending upon the performance and results. The Government of NCT of Delhi prematurely terminated the deputation and sought his repatriation by order dated 11.11.2005. The applicant challenged this order before the Tribunal in OA No. 2522/2005. He prayed that the impugned repatriation order dated 11.11.2005 be quashed and the respondents be directed to continue with his services till the expiry of the stipulated period of one year. At the preliminary stage, the Tribunal had stayed the operation of the impugned repatriation order as such the applicant continued to serve on the deputation post in the Government of NCT of Delhi. At the time of hearing of the OA on 14.3.2006, the Tribunal found that the deputation period of one year was coming to an end on 15.3.2006 and thereafter the OA itself would become infructuous. The Tribunal accordingly disposed off the OA.
2. During the pendency of the said OA, the respondent issued a Memorandum dated 19.1.2006 whereby the terms of deputation of the applicant were settled by the Government of NCT of Delhi. One of the terms and conditions of deputation was that it was for one year. The applicant by way of an amendment sought to challenge that memorandum and also substitute his original relief with a relief that he should be allowed to continue in service on deputation for the remaining term of three years. The amendment application was dismissed by separate order dated 14.3.2006 for the reasons given in the application but the applicant was permitted to challenge the validity of the above memorandum. At the time of hearing in the OA he did not raise this plea. However, he filed a writ petition against the order of this Tribunal dated 14.3.2006 passed in the OA. It was dismissed as withdrawn with liberty to the applicant to challenge the memorandum dated 19.1.2006 before the Tribunal. He has now filed the present OA for the following relief:
(a) Quash and set aside the impugned order dated 19.1.2006 and office order dated 16.3.2006.
(b) To direct the respondents to continue the applicant on deputation for the period stipulated under the recruitment rules i.e. 3 years.
3. It will be pertinent to note that the applicant has already been relieved from the deputation post and repatriated to his parent department, i.e., Controller of Legal Metrology, Maharashtra State, Maharashtra. It is submitted that the applicant has not so far joined his parent office. As regards memorandum dated 19.1.2006, the Hon’ble High Court while disposing off the application for amendment of the OA had allowed the applicant to challenge the validity of this memorandum, yet he chose not to assail this memorandum specifically when previous OA was decided. Any how he requested the Hon’ble High Court to grant him liberty to challenge that OM, which has been granted so his challenge to OM dated 19.1.2006 may now be considered.
4. The only grievance of the applicant against the OM dated 19.1.2006 is that the terms of deputation were settled after his appointment on deputation and that they were settled behind his back and without his consent so they are invalid. The grievance of the applicant against this OM is confined to the extent that it is not provided that after the expiry of initial period of one year it was extendable depending upon the performance and results. Delving into the legality and validity of the impugned OM term extendable depending upon the performance and results as was initially stipulated in the order of deputation, to our view, would be only an academic exercise since undisputedly the applicant was appointed on initial deputation period of one year and after expiry of that period, he had been relieved and repatriated to his parent office. The applicant does not have any indefeasible legal right to continue on deputation after the expiry of the period of deputation. In the present case the terms of deputation so far as the period is concerned, were settled. The period was one year. The borrowing department had prerogative to extend or not to extend the deputation further on the expiry of one year. In fact, it had by order dated 11.11.2005 curtailed deputation period and ordered premature repatriation of the applicant to his parent office thereby indicating that he was not acceptable to continue on deputation in the service of State of Delhi. The suitability and performance of the applicant was to be judged by the borrowing department and the State and the applicant had no legal right to force himself on the borrowing department to continue on the expiry of one year period at least. Learned Counsel for the applicant has himself cited a judgment of the Hon’ble Supreme Court in Union of India v. V. Ramakrishnan and Ors. 2005 SCC (L&S) 1150 where the Honble Court has held that when the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability or unsatisfactory performance. It was further held that where the tenure is not specified, an order of reversion can be questioned when the same is mala fide. In the present case the term of the period of deputation specified was one year and the Government of NCT of Delhi decided to repatriate the applicant prematurely. Any how since the only relief claimed in the earlier OA was that he should be allowed to continue till March, 2006 and that period was coming to an end on 15.3.2006, the OA was to become infructuous after 15.3.2006, so the OA was accordingly disposed off.
5. Any exercise in deciding the legality and validity of the memorandum dated 19.1.2006, when the applicant has been relieved and stood repatriated to his parent office with effect from 16.3.2006 on the expiry of one year of deputation period, will be an exercise in futility as the Government of NCT of Delhi, the borrowing State, had full right to decide about the performance and suitability of the service of the applicant and the repatriation of applicant to his parent office on the expiry of the initial deputation of one year. Accordingly, we do not find that memorandum dated 19.1.2006 may be set aside simply because the terms of deputation were settled after the initial appointment of the applicant on deputation or that his consent was not obtained to it.
6. Furthermore the learned Counsel for the respondents has submitted that the applicant had given his consent acceptance to the memorandum dated 19.1.2006 and has drawn our attention to the document Annexure R-1 to the counter reply which was signed by the applicant on 15.2.2006 and has stated as under:
With reference to Terms and Conditions settled vide letter No. 2 (28) MWM/2005/6924 dated 19.1.2006 I opt for the pay scale of Rs. 6500-10500.
7. It is argued that the applicant conveniently omitted to mention this fact in his previous OA as well as in the writ petition and the present OA. Conversely the learned Counsel for the applicant submitted that document Annexure R-1 simply showed that applicant had exercised option as to the pay scale and it will not debar the applicant from challenging its validity. There is ample force in the argument of the learned Counsel for the respondents that the document Annexure R-1 may be deemed to be a consent of the applicant to the terms of deputation settled by the memorandum dated 19.1.2006. The applicant if did not agree with its terms could have raised objection to any of its terms in Annexure R-1 itself or could have submitted objection soon after he was served with its copy. Raising objection at the fag end of the deputation term or thereafter is clearly afterthought, cannot be allowed.
8. As regards the second relief, it was the case of the applicant that he was initially appointed for a period of one year and in OA 2522/2005 he sought the relief that he should not be repatriated before the expiry of the deputation term of one year, i.e. up to 15.3.2006. The applicant has already served Government of NCT of Delhi on deputation period up to 15.3.2006. Thereafter he had been repatriated to his parent office, i.e. State of Maharashtra where he had a lien to a post. Therefore, the applicant cannot claim nor can he be granted the relief to continue to work with the Government of NCT of Delhi under general terms and conditions of deputation under the service rules of the Delhi Government employees. This relief was even otherwise available to the applicant when initially he had filed OA 2522/2005 but he chose to seek relief only for a period of one year. At the fag end of the case when it was listed for hearing he did seek amendment in the OA to pray for relief for his continuation on deputation post for three years, which amendment was rejected for the reason which had been recorded in the separate order dated 14.3.2006. The applicant cannot file a second OA in respect of the same cause of action which he ought to have agitated in the previous OA.
9. Accordingly, we do not find merit in the OA and dismiss it. His application MA No. 1219/2006 praying for interim relief has become infructuous and is accordingly rejected.