NATIONAL TECHNICAL RESEARCH ORGANIZATION & ORS versus DIPTI DEODHARE on 17 February 2023

1. The present appeal has been filed by the National TechnicalResearch Organization and others, feeling aggrieved and dissatisfied H

with the impugned judgment and order dated 08.10.2021 passed by theHigh Court of Karnataka at Bengaluru in Writ Petition No. 10867/2021,by which the High Court, while allowing the said writ petition preferredby the respondent herein and setting aside order dated 31.05.2021 passedby the Central Administrative Tribunal, Bengaluru Bench, Bengaluru(hereinafter referred to as the ‘Tribunal’) dismissing O.A. No. 170/1318/2019, has directed that the order dated 12.02.2019 issued by theappellant(s) shall be read as an order of discharge simpliciter and thatshe shall be entitled to all consequential benefits including the benefit ofpast service that she had rendered in DRDO for computing her terminalbenefits. The High Court has further made it clear that the respondent –original writ petitioner would be entitled to all such benefits as arepermissible to her on the premise that she held the post of Scientist ‘H’and the last drawn pay in that post would be the criteria for settling allher benefits.

2. The facts leading to the present appeal in a nutshell are asunder:

That the respondent herein – original writ petitioner joined theservices of Defence Research Development Organization (hereinafterreferred to as ‘DRDO’) on 12.09.1988, as Scientist ‘B’. That she gotperiodical promotions while working with the DRDO. That on 1.7.2013,she was promoted as Scientist ‘G’ and was heading the Intelligent Systemsand Robotics Division in Centre for Artificial Intelligence and Robotics(for short, ‘CAIR’) of DRDO at Bangalore. That in the month of January,2018, the NTRO issued a recruitment notification to fill up two posts ofScientist ‘H’ in Level 15 of the pay matrix. Initially, the notification statedthat the recruitment was to be made on deputation including short termcontract basis. However, subsequently, a corrigendum was published inthe month of January, 2018 to fill up these posts on deputation (includingshort term)/absorption, failing which, on direct recruitment basis. Theoriginal writ petitioner, who was holding the post of Scientist ‘G’ in Level14 of the pay matrix at CAIR, DRDO, applied for the post of Scientist‘H’ in NTRO through her parent department, i.e., DRDO. Consequentto the approval of the Appointments Committee of Cabinet (ACC) forappointment in NTRO as Scientist ‘H” dated 10.05.2018, the originalwrit petitioner was issued an offer of appointment on the terms andconditions mentioned in the offer of appointment including probation fora period of one year. On being selected and appointed as Scientist ‘H’ in AB

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ANTRO on direct recruitment basis, the respondent – original writ petitionertendered her technical resignation from the post of Scientist ‘G’ in DRDO,which came to be accepted on 22.6.2018 and DRDO relieved her totake up the new appointment in NTRO.

2.1 The original writ petitioner joined NTRO as Scientist ‘H’ onB26.2.2018 on direct recruitment basis with a probation period of oneyear. However, thereafter while she was on probation as Scientist ‘H’ inNTRO, the ACC vide order dated 12.02.2019 granted approval for herpremature repatriation from the post of Scientist ‘H’ (on probation) inNTRO to her parent department cadre – DRDO with immediate effect.Accordingly, the respondent was relieved from NTRO on 12.02.2019Cwith instructions to report to her parent cadre – DRDO. Pursuant to thesame, she reported for duty at CAIR, DRDO on 13.02.2019 andsimultaneously she submitted another application requesting the Chairman,DRDO to issue formal orders for her appointment in DRDO, afterrepatriation from NTRO. She also requested the DRDO to issue formalDorders to appoint her on a suitable post in the rank of Scientist ‘H’ inDRDO. Awaiting formal orders, she requested DRDO for three monthsleave on 19.2.2019. Vide approval dated 10.03.2019, NTRO conveyedapproval of DRDO Headquarters of her joining at DRDO w.e.f.13.02.2019 in the parent cadre as Scientist ‘G’ upon her prematurerepatriation from NTRO (Scientist ‘H’ on probation). That thereafter,Ethe original writ petitioner requested NTRO to reinstate her and treather application dated 19.03.2019 as three months’ notice from 13.02.2019,for voluntary retirement.

2.2 It appears that in the month of April, 2019, the case of theoriginal writ petitioner for promotion from Scientist ‘G’ to Scientist ‘H’Fin DRDO came to be considered and she was informed to participate inthe assessment for promotion. The original writ petitioner submitted herbio- data for such promotion and participated in the assessment. However,she was found ‘unfit’. Vide communication dated 13.11.2019, therespondent was directed to report to CIAR, DRDO to join duty byG16.12.2019, failing which disciplinary action was to be initiated againsther. That thereafter on 25.11.2019, the respondent herein filed OA beforethe CAT, Bengaluru challenging NTRO order dated 12.02.2019(repatriating her to DRDO), DRDO order dated 13.11.2019 (by whichshe was directed to report to CIAR, DRDO to join duty by 16.12.2019)and seeking direction to accept her VRS application dated 19.03.2019.H

Before the Tribunal, all throughout, her case was that she was wronglyrepatriated prematurely and sent to DRDO as Scientist ‘G’. It was thespecific case on behalf of the respondent – original writ petitioner thather VRS application ought to have been considered as Scientist ‘H’ inDRDO.

2.3 The Tribunal on consideration of the matter observed andheld that the order dated 12.02.2019, was an order of discharge simpliciterduring her probation period and as she had earlier rendered technicalresignation from DRDO and/or appointment with DRDO on tendering atechnical resignation, she continued to have lien with the DRDO andtherefore, she was rightly repatriated to DRDO. The Tribunal alsoobserved and held that once the respondent reported back to her parentorganization and thereafter sought promotion to the post of Scientist ‘H’and she was found ‘not fit’ thereafter, it was not open for her to contendthat she should be voluntarily retired on the post of Scientist ‘H’ byDRDO. Consequently, the Tribunal dismissed the OA filed by therespondent herein. The judgment and order passed by the Tribunal wasthe subject matter before the High Court by way of the present writpetition. By the impugned judgment and order, the High Court has setaside the judgment and order passed by the Tribunal by observing thatonce the respondent was appointed as Scientist ‘H’ in NTRO on directrecruitment basis, NTRO could not have repatriated her on a lower postthat she originally held in DRDO. The High Court has also observedthat the concept of reversion in the case of direct recruitment would notarise and therefore, her repatriation as Scientist ‘G’ to DRDO was illegal.However, thereafter the High Court has modified the order passed bythe Tribunal and ordered that the order dated 12.02.2019, shall be readas an order of discharge simpliciter and that she shall be entitled to allconsequential benefits including the benefit of past service that she hadrendered in DRDO for computing her terminal benefits. The High Courthas also made it clear that the respondent would be entitled to all suchbenefits as are permissible to her on the premise that she held the postof Scientist ‘H’ and the last drawn pay in that post would be the criteriafor settling all her benefits. At this stage, it is required to be noted thatthe learned counsel appearing on behalf of the original writ petitioner didnot press for the prayer to accept the VRS application.

2.4 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, the National Technical Research A

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AOrganization (NTRO) and others have preferred the present appeal.

3. Ms. Aishwarya Bhati, learned ASG appearing on behalf of theNTRO has vehemently submitted that in the facts and circumstances ofthe case, the High Court has committed a very serious error in directingto treat the order dated 12.02.2019 as an order of discharge simpliciter.B

3.1 It is vehemently submitted by Ms. Bhati that once therespondent was repatriated to the original parent department, i.e., DRDOand in fact she resumed the duty with the DRDO, the respondent ceasedto be the employee of the NTRO. It is submitted that therefore, the HighCourt has committed a serious error in directing to treat the order datedC12.02.2019 as an order of discharge simpliciter and further directing thatshe shall be entitled to all consequential benefits including the benefit ofpast services that she had rendered in DRDO for computing her terminalbenefits. It is submitted that the impugned judgment and order passed bythe High Court is contrary to the relevant Office Memorandum issuedby the DOPT - FR-9(13).D

3.2 It is submitted that DOPT O.M. dated 21.07.2014 (Probation& Confirmation) stipulates that during the probation period, the AppointingAuthority may revert him/her to the post held substantively by him/herimmediately preceding his/her new appointment, provided he/she holdsa lien thereon or in other cases may discharge or terminate him/her fromEservice. It is submitted that as per para 14 of the said O.M., a probationerreverted or discharged from service during or at the end of the period ofprobation shall not be entitled to any compensation.

3.3 It is submitted that in the present case, when the respondentwas appointed as a direct recruit in NTRO, she was appointed on probationFperiod and that she tendered the technical resignation from DRDO,however, her lien continued with the DRDO. It is submitted that therefore,during the probation period, when her work was not found satisfactory,a conscious decision was taken by the ACC to revert her back to theparent department, i.e., DRDO where she continued to have a lien. It isGsubmitted that therefore, repatriating the respondent to her original parentdepartment – DRDO, which was during the probation period when shewas working with the NTRO, was absolutely in consonance with theDOPT O.M. dated 21.07.2014.

3.4 It is submitted that as such, as per FR-9(13) the word ‘lien’means the title of a Government servant to hold on regular basis, eitherH

immediately or on the termination of a period or periods of absence, apost, including a tenure post, to which he/she has been appointed onregular basis and on which he/she is not on probation. It is submitted thatDOPT O.M. dated 17.08.2016 (Technical Resignation & Lien) stipulatesthat on technical resignation, seniority in the post held by the Governmentservant on substantive basis continues to be protected. It is submittedthat therefore, on technical resignation, the seniority of the respondentcontinued to be protected as Scientist-G in DRDO.

3.5 Ms. Bhati, learned ASG has taken us to the relevant paras ofthe DOPT O.M. dated 17.08.2016, more particularly, paras 2.6, 3.1,3.2(b), 3.3 and 3.4.1. It is submitted that therefore a permanentGovernment servant appointed in another Central Governmentdepartment/office/ State Government has to resign from his/her parentdepartment unless he/she reverts to that department within a period of 2years or 3 years in exceptional circumstances, if not confirmed in thedepartment where he/she has joined. It is submitted that in nocircumstances, lien on a post held substantively can be terminated evenwith his/her consent, if the result will be to leave him/her without a lienupon a permanent post. It is submitted that in the present case, therespondent being a permanent Government servant and having a lien inthe post of Scientist-G in DRDO, cannot avail of qualifying service forpensionary benefits as Scientist-H (on probation) under CCS (Pension)Rules, 1972, as she was on temporary service while on probation againstthe post of Scientist – H in NTRO.

3.6 It is further submitted that as per Rule 13 of the CCS (Pension)Rules, 1972, subject to provision of these Rules, qualifying service of aGovernment Servant shall commence from the date he/she takes chargeof the post to which he/she is first appointed either substantively or in anofficiating or temporary capacity……provided that officiating ortemporary service is followed without interruption by substantiveappointment in the same or another services or post.

3.7 It is submitted that therefore, the High Court has materiallyerred in directing that the respondent is entitled to all consequential benefitsincluding the benefit of past service that she had rendered in DRDO forcomputing her terminal benefits and to treat her discharge as dischargesimpliciter from the service with NTRO.

4. Shri Gopal Sankaranarayanan, learned senior counsel whileopposing the present appeal has vehemently submitted that in the facts A

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Aand circumstances of the case, no error has been committed by theHigh Court in directing to treat the communication dated 12.02.2019 asdischarge simpliciter and thereafter to consider and/or grant terminalbenefits as Scientist ‘H’ from NTRO while considering her past servicerendered in DRDO.B4.1 It is vehemently submitted by Shri Gopal Sankaranarayanan,learned senior counsel that vide communication dated 12.02.2019, theNTRO abruptly repatriated the respondent to DRDO as Scientist-G. Itis submitted that when the respondent was appointed as direct recruit asScientist -H with the NTRO and was on probation for a period of 2years, thereafter, she could not have been repatriated to DRDO andCthat too on a lower post, i.e., Scientist-G.

4.2 It is submitted that after 12.02.2019, right from very beginningthe respondent insisted for appointment/posting even with DRDO asScientist – H, which will be evident from various communications. It issubmitted that when the respondent was repatriated to a lower postDnamely Scientist-G at CAIR, DRDO and when no decision was takento appoint her on the post of Scientist-H at CAIR, DRDO, the respondentproceeded on three months’ leave. It is submitted that thereafter allthroughout she continued to be on leave and never worked as Scientist –G in CAIR, DRDO.

4.3 It is submitted that even giving the bio-data to DRDO forEpromotion/ appointment to the post of Scientist – H shall not come in theway of the respondent as in fact she was compelled to submit her biodata.

4.4 It is submitted that even the appellant passed on someinstructions to the respondent, received on 24.04.2019, asking her toFapply for leave through Director CAIR, DRDO and the respondentapplied for 3 months’ leave from 13.02.2019 to 28.06.2019. It is submittedthat in fact the respondent had clarified that she had sought EarnedLeave from 13.02.2019 to 28.06.2019.

4.5 It is submitted that the respondent chose to attend the PromotionGBoard as she was directed to do so and she had no choice in the matter.She attended without preparation at an extremely short notice of oneday; as failure to do so could have invited disciplinary action. It is submittedthat until resolution of her grievance against the NTRO order dated12.09.2019, which she had formally conveyed to her superiors orallyand in writing, the respondent was bound to obey every GovernmentHorder issued to her.

4.6 It is submitted that in her bio-data submitted to the PromotionBoard, she specifically stated that she was attending the Board while onleave. It is submitted that in the said bio-data it was stated by her thatshe received a letter from CAIR on 29.03.2019, stating that she hasbeen appointed to the post of Scientist G at CAIR, DRDO. This wasonly a statement of fact and the same cannot be said to be construed asthe respondent’s acceptance of DRDO’s invalid order appointing her asScientist-G.

4.7 It is further submitted that having worked as Scientist-H withthe NTRO, which was a direct recruitment, she could not have reverted/repatriated as Scientist-G to her parent department – DRDO.

4.8 Now, so far as the submission on behalf of the appellant onher lien having continued with the DRDO is concerned, it is submittedthat the said provision is in favour of the respondent and it is the respondent/employee, who had the discretion to continue the lien. It is submittedthat there cannot be any automatic lien, that too, at the instance of theemployer and/or subsequent employer. It is submitted that the lien is aright of a Government employee and the same is at the option of respondentand respondent cannot be forced to exercise her lien.

4.9 Relying upon the decisions of this Court in the case of Stateof Rajasthan and Anr. Vs. S.N. Tiwari and Ors., (2009) 4 SCC 700(paras 17 and 19) and Ramlal Khurana (Dead) By LRs. Vs. State ofPunjab and Ors., (1989) 4 SCC 99 (para 8), it is vehemently submittedthat as observed and held by this Court, a lien is entirely at the discretionof the employee. It is submitted that therefore, an employer cannot thrusta lien upon an employee, as it will have a detrimental impact on theemployee’s position and prospects.

4.10 It is further submitted by the learned senior counsel appearingon behalf of the respondent that even otherwise, the respondent is entitledto pension on the last pay drawn as Scientist-H. It is submitted thatthough the conditions of the NTRO appointment refers to the respondent’sservice being terminable under CCS (Temporary Service) Rules, 1965,the said rules nowhere states that the respondent is not entitled for pensionon the basis of the last pay drawn. It is submitted that CCS (TemporaryService) Rules, 1965 shall be applicable to those employees who “do nothold a lien or a suspended lien on any post under the Government ofIndia or any State Government”.

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A4.11 It is submitted that as per Rule 2 of CCS (Pension) Rules,1972, there is no distinction between temporary and permanentemployees in the application of Pension Rules. It is submitted that as perRule 13 of the Pension Rules, qualifying service of a Government servantcommences from the date he takes charge of the post to which he isfirst appointed substantively. It is submitted that in the present case, theBrespondent was first appointed substantively on 12.09.1988. She joinedDRDO in the entry grade of Scientist ‘B’ on this date and after twoyears, her probation was confirmed. It is submitted that therefore, therespondent’s qualifying service starts from 12.09.1988, i.e., the date onwhich she took charge of the post on which she was first appointedCsubstantively.4.12 Making above submissions, it is prayed to dismiss the presentappeal.

5. We have heard learned counsel appearing on behalf of therespective parties at length.D

6. By the impugned judgment and order, the High Court hasallowed the writ petition preferred by the respondent herein and hasquashed and set aside the judgment and order passed by the CentralAdministrative Tribunal dismissing the O.A. and has modified the orderdated 12.02.2019 issued by the NTRO and has directed that the sameEbe held and treated as an order of discharge simpliciter. By the impugnedjudgment and order, the High Court has also directed that under theorder dated 12.02.2019, the services of the original writ petitioner –respondent herein shall stand discharged and that she shall be entitled toall consequential benefits including the benefit of past services that sheFhad rendered in DRDO for computing her terminal benefits. The HighCourt has further clarified that the respondent herein – original writpetitioner would be entitled to all such benefits as permissible to her onthe premise that she had held the post of Scientist – H and the last paydrawn in that post would be the criteria for settling all her benefits.

G6.1 While considering the challenge to the aforesaid directions atthe instance of the NTRO, few glaring dates and events are required tobe noted, which are as under:-

(i) That the respondent herein – original writ petitioner wasserving as Scientist -G in DRDO. Applications were invitedby the NTRO for the post of Scientist – H for appointmentH

NATIONAL TECHNICAL RESEARCH ORGANIZATION v.DIPTI DEODHARE [M. R. SHAH, J.]

as direct recruit. The respondent – original writ petitionerapplied for the said post and was appointed in NTRO asScientist – H on the approval of the ACC dated 10.05.2018.The original writ petitioner was served with the offer ofappointment dated 11.05.2018 stipulating the terms andconditions, including the probation for a period of one year.

(ii) As the respondent – original writ petitioner was appointedin another Government organization, she was required totender the technical resignation, which she tendered bysubmitting a technical resignation from the post of Scientist– G in DRDO, which came to be accepted on 22.06.2018and the DRDO relieved her to take up the new appointmentin NTRO. However, on submitting the technical resignation,the lien of the respondent on the post of Scientist – G inDRDO continued as per the relevant O.M.

(iii) At this stage, it is required to be noted that tendering atechnical resignation from the post he/she was working onhis/her appointment in another organization of the Centre /State on probation and to continue the lien till the probationperiod in the new organization is satisfactorily completedand/or he/she is permanently appointed in the newestablishment, can be said to be in the interest of theemployee and to the benefit of the concerned employee sothat in case she is not made permanent and/or relieved duringthe probation period, she may not have to lose the job andshe can go back and join the duty in the earlier establishment.Under the circumstances, on submitting the technicalresignation from the post of Scientist -G in DRDO on herappointment on probation as Scientist – H in NTRO, shecontinued to have the lien on the post of Scientist – G inDRDO.

(iv) That during the probation period, it appears that her workwas not found satisfactory and a conscious decision wastaken by the ACC not to continue her in NTRO and torelieve her as Scientist – H in NTRO and to repatriate herto her parent department – DRDO on the post of Scientist– G as her lien on the post of Scientist – G came to becontinued as observed hereinabove. The respondent –

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original writ petitioner came to be relieved from NTRO on12.02.2019 on the approval of the ACC received for herpre-mature repatriation from the post of Scientist – H(probation) in NTRO to her parent cadre – DRDO. In fact,thereafter, the respondent reported for duty at CAIR,DRDO on 13.02.2019 itself. However, simultaneously, sherequested that she may be appointed in a suitable post inDRDO. No orders were passed and she continued to bethe employee of the DRDO on and after 13.02.2019.Thereafter, she proceeded on three months’ leave asScientist-G in DRDO. Therefore, once she reported forduty at CAIR, DRDO and she proceeded on leave for threemonths as Scientist – G at CAIR, DRDO on the post earlierheld by her, i.e., Scientist – G, on which her lien in DRDOcontinued on her submitting the technical resignation earlier,she ceased to be the employee of NTRO and, that too, asScientist – H in NTRO.

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(v) At this stage, it is required to be noted that even thereafter,the respondent requested NTRO to reinstate her and totreat her application dated 19.03.2019, as three months’notice for VRS. Therefore, her request for reinstatementin NTRO itself would suggest that the respondent – originalEwrit petitioner was relieved from NTRO as then and thenonly would the question of reinstatement arise.

(vi) That thereafter, the respondent- original writ petitionerinsisted for appointment/ posting as Scientist – H. Her casefor promotion to the post of Scientist – H came to beconsidered by the Recruitment Assessment Centre. Shesubmitted the application to the Director, RecruitmentAssessment Centre for promotion to the post of Scientist –H. She sent her bio-data. She reported for the performanceassessment at Hyderabad. Thereafter, she was found “notfit” for the promotion to the post of Scientist – H in DRDO.In the bio-data, she specifically stated that she is workingas Scientist – G. The case set up on behalf of the respondentthat she was compelled to submit the bio-data and/orcompelled to appear for assessment of appraisal forpromotion to the post of Scientist – H, cannot be accepted.

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NATIONAL TECHNICAL RESEARCH ORGANIZATION v.DIPTI DEODHARE [M. R. SHAH, J.]

No such grievance was made at the time when she appearedfor interview for promotion to the post of Scientist – H inDRDO. She applied for the leave/earned leave from13.02.2019 to 28.06.2019 as Scientist – G and eventhereafter, she applied for forty days leave extension.

6.2 Considering the aforesaid facts and circumstances, it can beseen that on and from 13.02.2019, the respondent can be said to be theemployee of DRDO and in any case, she cannot be said to have beencontinued in NTRO and/or on and from 13.02.2019, she cannot be treatedto be an employee of the NTRO. In that view of the matter, the HighCourt has committed a very serious error in issuing the directions asabove, more particularly, of treating the communication dated 12.02.2019,as an order of discharge simpliciter. The High Court has also committeda very serious error in ordering that under the order dated 12.02.2019,the services of the original writ petitioner – respondent herein shall standdischarged and she shall be entitled to all consequential benefits includingthe benefit of the past services that she had rendered in DRDO forcomputing her terminal benefits. We fail to appreciate under whichprovision, has the High Court issued such a direction that she shall beentitled to all consequential benefits including the benefit of past servicesthat she had rendered in DRDO for computing her terminal benefitsdirected to be paid by NTRO.The directions issued by the High Courtare self-contradictory.

6.3 Even otherwise, the High Court has committed a serious errorin observing that the original writ petitioner – respondent herein wouldbe entitled to all such benefits as are permissible to her on the premisethat she held the post of Scientist – H and the last pay drawn in that postwould be the criteria for settling all her benefits. Once, she was relievedfrom NTRO and she had reported for duty as Scientist – G in DRDO asobserved hereinabove, thereafter she cannot be permitted to claim thatshe had continued working as Scientist – H in NTRO.

6.4 Even otherwise, it is required to be noted that the respondentwas appointed as Scientist – H in NTRO as a direct recruit, on probationand her probation period was not completed. Before her probation periodwas completed/over, she was relieved. Therefore, even as per the CCS(Pension) Rules, 1972, she could not have been given the pensionarybenefits / terminal benefits as Scientist -H in NTRO.

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A7. In view of the above and for the reasons stated above, theimpugned judgment and order passed by the High Court is unsustainableand the same deserves to be quashed and set aside and is accordinglyquashed and set aside and the judgment and order passed by the CAT isrestored. However, to do complete justice, we direct that if the originalwrit petitioner – respondent herein so wishes, she may press the prayerBto accept her VRS application, which may be considered by the DRDO.If she presses her VRS application to voluntary retire her, the same maybe considered positively. However, the same shall be done by the DRDOon the post of Scientist – G so that the respondent can get all otherbenefits, which may be available to her on accepting her voluntaryCretirement application, as otherwise also, she continued to have a lien onthe post of Scientist – G in DRDO, as has been observed hereinabove.

With this, the present appeal is allowed. However, in the factsand circumstances of the case, there shall be no order as to costs.

DDivya Pandey

(Assisted by : Abhishek Pratap Singh and Roopanshi Virang, LCRAs)

Appeal allowed.

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