# Saurabh Gupta v. The Unique Identification Authority of India, New Delhi & Ors

- **Citation:** (2024) 5 ILRA 412
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-31
- **Case number:** Special Appeal No. 312 of 2020
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saurabh-gupta-v-the-unique-identification-authority-of-india-new-delhi-ors-52116
- **Pages:** 17

## Headnote

A. Service Law - Aadhaar (Targeted
delivery of Financial and other subsidies,
benefits and services) Act, 2016 -
Section
54
-
Unique
Identification
Authority
of
India
(appointment
of
officers and employees) Regulations,
2020 - Permanent Absorption - Deemed
absorption on expiry of three year of
deputation was claimed - Instead of
absorption, authority passed the order
for premature repatriation - Validity
challenged - Held, there is no concept of
'deemed
absorption'
or
'automatic
absorption' as these are terms absolutely
foreign
to
service
jurisprudence
-
Absorption has to be done as per the
rules & regulations and the law on that
aspect stands settled that, even if a
person is found to be eligible it does not
mean that he would be absorbed as a
matter of right. Thus, when eligibility
does not guarantee a deemed absorption,
how can merely completing a particular
tenure of service on deputation amount
to 'deemed' or 'automatic absorption' -
The absorption/transfer in the borrowing
organisation would be complete only
when the borrowing company passes an
order absorbing the deputationist. An
affirmative action is required from both
the lender as well as the borrowing
department
for
absorption
of
a
government servant in the borrowing
department. (Para 12 and 31)

Special Appeal dismissed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,746 of 58,696. This is a partial read: ask again with offset=39746 for what follows._

412 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2024) 5 ILRA 412
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2024

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Special Appeal No. 312 of 2020

Saurabh Gupta ...Appellant
Versus
The Unique Identification Authority of
India, New Delhi & Ors. ...Respondents

Counsel for the Appellant:
Sri Sankalp Dewari, Sri Abhishek Bose, Sri
Lalit Shukla, Sri Mohd. Shujauddin Waris, Sri
Praveen Kumar, Sri Sachin Chaturvedi

Counsel for the Respondents:
A.S.G., Lakshmi Gurung, Sri Varun Pandey

A. Service Law - Aadhaar (Targeted
delivery of Financial and other subsidies,
benefits and services) Act, 2016 -
Section
54
-
Unique
Identification
Authority
of
India
(appointment
of
officers and employees) Regulations,
2020 - Permanent Absorption - Deemed
absorption on expiry of three year of
deputation was claimed - Instead of
absorption, authority passed the order
for premature repatriation - Validity
challenged - Held, there is no concept of
'deemed
absorption'
or
'automatic
absorption' as these are terms absolutely
foreign
to
service
jurisprudence
-
Absorption has to be done as per the
rules & regulations and the law on that
aspect stands settled that, even if a
person is found to be eligible it does not
mean that he would be absorbed as a
matter of right. Thus, when eligibility
does not guarantee a deemed absorption,
how can merely completing a particular
tenure of service on deputation amount
to 'deemed' or 'automatic absorption' -
The absorption/transfer in the borrowing
organisation would be complete only
when the borrowing company passes an
order absorbing the deputationist. An
affirmative action is required from both
the lender as well as the borrowing
department
for
absorption
of
a
government servant in the borrowing
department. (Para 12 and 31)

Special Appeal dismissed. (E-1)

List of Cases cited:

1. Civil Appeal Nos. 9252-9253 of 2022; Kerala
St. Electricity Board & ors. Vs Thomas Joseph @
Thomas M. J. & ors. decided on 16.12.2022

2. Appeal (Civil) No. 5027 of 1999; Nathi Devi Vs
Radha Devi Gupta decided on 17.12.2004

3. Civil Appeal No. 152 of 2022; Employees' St.
Insurance Corporation Vs U.O.I.decided on
20.01.2022

4. U.O.I.& anr. Vs Shardinhu; (2007) 6 SCC 276

5. St. of A.P Vs Subbarayudu V.C. & ors.; 1998
(2) SCC 516

6. Brij Mohan Lal Vs U.O.I.& ors.; (2012) 6 SCC
502

7. Kunal Nanda Vs Union of India; AIR 2000 SC
2076: (2000) 5 SCC 362

8. Pawan Kumar & ors. Vs U.O.I.& ors.; 2018 SCC
OnLine Del 12615

9. Chandra Mohan Singh Bhandari Vs U.O.I.&
ors.; 2019 SCC OnLine Del 10002

10. Prasar Bharti & ors.Vs Amarjeet Singh & ors.;
2007 (2) SCALE 486

11. St. of U.P. Vs Ashok Kumar Saxena; AIR 1998
SC 925

12. Mohd. Masood Ahmad Vs St. of U.P. & ors.;
JT 2007 (12) SC 467

(Delivered by Hon'ble Om Prakash Shukla, J.)
5 All. Saurabh Gupta Vs. The Unique Identification Authority of India, New Delhi & Ors.
413

(1) Heard Shri Lalit Shukla and Shri
Praveen
Kumar,
learned
Counsel
representing the appellant, Ms. Shraddha
Deshmukh assisted by Shri Varun Pandey,
learned Counsel representing the respondent
No.1 and Shri Vaibhav Tewari, learned
Counsel representing the other respondents.

(2) This special appeal has been filed
by the appellant under Rule 5, Section-C of
Chapter-VIII of the Allahabad High Court
Rules
impugning
judgment/order
dated
01.10.2020 passed by the learned Single Judge
of this Court in Writ Petition No. 8234 (S/S)
of 2020. Apparently, the learned Single Judge,
vide impugned Judgment, due to various
reasons, did not find the case of the appellant
fit for exercise of extraordinary jurisdiction of
this Court under Article 226 of the
Constitution of India and as such, dismissed
the writ petition.

(3) It would be apt to mention herein
that the appellant in writ petition No. 8234
(S/S) of 2020 had sought to challenge the
curtailment of his deputation and repatriation
from the Unique Identification Authority of
India (herein after referred as 'UIDAI') to his
parent Corporation, namely, Metals and
Minerals
Trading
Corporation,
Jaipur
(hereinafter referred as 'MMTC') and in that
regard, the appellant had challenged two
orders, (i) dated 16.03.2020 which is the
notice of his repatriation; and (ii) by an
amendment in the said writ petition, another
order dated 28.05.2020 passed by the Chief
Executive Officer (CEO) of UIDAI rejecting
the petitioner's representation against the order
dated 16.03.2020.

Brief facts

(4) First to the factual exposition.
This Court abjures from a detailed narrative
and refer to only those facts and to the
extent, as is necessary and is well captured
in the writ petition. The appellant being an
employee of MMTC, Jaipur and in view of
the
OM
dated
10.10.2013
inviting
applications from eligible persons for filling
up various posts in UIDAI on deputation
basis at its regional office, Lucknow,
applied, and was selected for
such
deputation. He was appointed on deputation
as Deputy Director at the regional office of
UIDAI, Lucknow vide an order dated
05.02.2014 for a period of 3 years from the
date of taking over charge of the post or until
further orders, whichever event takes place
earlier. The terms and conditions of
deputation in UIDAI were to be governed by
the Department of Personnel and Training
(herein after referred as 'DoPT') OM dated
17.06.2010, as was also mentioned in the
order of deputation dated 05.02.2014 and
the OM dated 10.10.2013.

(5) Pursuant to his selection on
deputation basis as Deputy Director, the
appellant joined at the regional office of
UIDAI at Lucknow in 2014 itself and his
initial tenure came to expire on 19.02.2017,
however, his deputation was extended on
yearly basis from time to time. It is apparent
from records that last yearly extension was
granted by the Chief Executive Officer of
the UIDAI wherein his approval for
extension of the appellant's tenure was
granted for a further period of one year from
18.02.2020, that is, upto 18.02.2021. Albeit,
in the intervening period in August, 2019,
the Deputy Director General of UIDAI
sought explanation from the appellant
regarding his day to day work and the
reasons for non-submission of reports on
time. Although, the appellant submitted a
written reply on 30.08.2019, however, his
reply was not found to be satisfactory and,
accordingly, a comment was recorded by the
Deputy Director General, who incidentally
414 INDIAN LAW REPORTS ALLAHABAD SERIES
was also the head of the regional office at
Lucknow.

(6) In the meantime, on 21.01.2020,
the Unique Identification Authority of India
(appointment of officers and employees)
Regulations, 2020 (hereinafter referred to as
'2020 Regulations') was framed under
Section 21 (1) read with Sub-section 1 of
Section 54 and Clause (x) of Sub-section 2
of Section 54 of the Aadhaar (Targeted
delivery of Financial and other subsidies,
benefits and services) Act, 2016 (herein
after referred as Act, 2016), as amended vide
the Aadhaar and Other Laws (Amendment)
Act, 2019 (herein after referred as Act,
2019), were notified.

(7) Pursuant to the notification of
the aforesaid regulations, on 29.01.2020,
applications were invited from eligible
candidates for permanent absorption in the
cadre of UIDAI under Regulation 5 of the
Regulations,
2020
with
standard
stipulations, including that mere fulfilment
of the eligibility criteria by a candidate and
submission of application form by him/her
would not confer a right to get him/her
absorbed in the cadre of UIDAI, which was
to be contingent upon the recommendations
of the selection Committee, etc.

(8) The appellant claiming himself
to be eligible for such permanent absorption
is said to have applied on 07.02.2020 and his
application was forwarded by his superior
officer
on
12.02.2020.
However,
admittedly, the absorption process did not
take place as it was held up in view of certain
queries made by the Officers' from the
UIDAI which in turn made queries in this
regard from the concerned departments, but
the said queries have not been resolved.
However, in the interregnum on 13.02.2020.
the appellant's deputation was extended for
a further period of one year from
18.02.2020, that is, upto 17.02.2021.

(9) Furthermore, it has come on
record that on 26.02.2020 and 27.02.2020,
two complaints were received by UIDAI
against the appellant, one lodged by Shri
Devashish Bhatt, Assistant Section Officer
and the other by Shri Praveen Dixit, Driver
in the general pool. Both were employees
working at the regional office at Lucknow
and in both the complaints, misbehaviour
and improper conduct by the appellant
towards them was alleged. The Deputy
Director General, being Head of the regional
office, constituted an internal inquiry
committee on 27.02.2020 comprising of
Shri Dev Shankar, Assistant Director
General, Regional Office, Ranchi and Shri
Anil Kumar, Deputy Director, Regional
Office, Ranchi (at Patna). The aforesaid
two-member fact finding inquiry committee
is said to have recorded the statement of
aforesaid complainants as well as other
Officers and employees of the Regional
Office
and
submitted
its
report
on
04.03.2020 which was found to be averse to
the appellant.

(10) It has come on record that in
the meantime, Shri Vivek Kumar Daksh
came to be posted as Assistant Director
General in the Regional Office, Lucknow on
05.02.2020 and from the said date he
became the Reporting Officer of the
Appellant and as such on 02.03.2020, while
the aforesaid fact finding inquiry against the
appellant, instituted on 27.02.2020, was still
pending, an explanation was called from
him by the aforesaid reporting officer
relating to huge pendency of grievances/
complaints, which, as per the work
distribution order dated 21.12.2018, the
appellant was required to dispose of. The
said letter invariably alleged that the review
5 All. Saurabh Gupta Vs. The Unique Identification Authority of India, New Delhi & Ors.
415
of work as on 28.02.2020, revealed that
more than 10000 cases were pending for
exceptional handling of date of birth cases in
the Regional Office at Lucknow, wherein
many cases were pending for more than a
year which had caused substantial delay in
disposal of sensitive public complaints. It
was alleged that the appellant had neither
taken any prompt action to dispose of these
cases at his end as Supervisor nor reported
this issue to his superior for prompt
handling. Further, allegations have been
levelled to the effect that the appellant had
failed to devise any mechanism to supervise
this issue at regular intervals at his level as
Deputy Director and even the coordination
mechanism among staff which was handling
this issue was also not put in place.
Consequently, the appellant was asked for
an explanation of the aforesaid nonmonitoring, non-reporting and non-disposal
of pendency, within 3 days.

(11) Although, the appellant replied
on 05.03.2020, however, as aforesaid, since
a day prior to this i.e., on 04.03.2020, the
report of the fact finding internal inquiry
committee came to be submitted; the
Assistant Director General (Admn./HR) in
the office of Deputy Director General,
Regional Office, Lucknow on 05.03.2020
itself, sought inputs from the reporting
Officer-Shri Vivek Kumar Daksh, Assistant
Director General regarding performance of
the appellant and apparently on 06.03.2020
the said reporting Officer commented that
the work of the appellant was unsatisfactory
and not up to the mark.

(12) Thus, in the aforesaid
background, the Deputy Director General,
Regional Office, Lucknow vide letter
dated
06.03.2020,
addressed
to
the
Assistant Director General (Admn./HR),
UIDAI
Headquarters,
New
Delhi
recommended for appellant's premature
repatriation
to
his
parent
Department/Office.
Apparently,
on
12.03.2020, the competent authority, who
is said to be the Chief Executive Officer,
granted
approval
for
premature
repatriation of the appellant and the same
was conveyed to the Regional Office,
Lucknow.

(13) Coincidently, on the same
date i.e., 12.03.2020, the absorption
process was also put on hold on account of
certain
unresolved
issues
by
the
Headquarters of UIDAI, New Delhi, as
mentioned earlier and on 16.03.2020, the
order curtailing the deputation of the
appellant and giving notice for his
repatriation citing Clause 9 of the OM
dated
17.06.2010
was
issued
and
subsequently, as the notice period was 3
months, the appellant was relieved on
completion of the said period during the
pendency of the Writ Petition. However,
the said relieving was subject to final
orders in the said Writ petition, in view of
certain interim orders passed in favour of
the appellant.

(14) The records reveal that
against
the
aforesaid
order
dated
16.03.2020 for repatriation, the appellant
preferred a representation to the Chief
Executive Officer of UIDAI, which came
to be rejected on 28.05.2020 and the said
order also had been impugned by the
appellant in the writ petition along with
the original order dated 16.03.2020.

(15) The learned Single Judge
objectively dealt with each and every
contention of the parties therein, and vide a
very reasoned Judgment dated 01.10.2020,
the learned Single Judge dismissed the writ
petition of the appellant. It is this order,
416 INDIAN LAW REPORTS ALLAHABAD SERIES
which has been sought to be challenged in
the present appeal.

Contention of the parties

(16) The learned Counsel for the
appellant Mr. Lalit Shukla has vociferously
argued that the appellant was not on
deputation on the date of the impugned order
dated 16.03.2020 as he had already got
absorbed in the UIDAI, by rule of
immediate absorption with effect from
expiry of three years of deputation on
19.02.2017. The learned Counsel in this
regard has submitted that the appellant was
recommended
for
appointment
on
deputation for three years from 19.02.2014
to 18.02.2017 and in view of a letter dated
23.12.2016
from
MMTC
to
UIDAI,
obtained by the appellant under the
provisions of RTI, MMTC, has stated that
the appellant would reach the maximum
deputation period of three years on February
18, 2017. Thus, it has been sought to be
argued by the appellant that since UIDAI
instead of repatriating the appellant before
the aforesaid expiry of deputation period,
sought the appellant's cadre clearance from
MMTC, which was promptly obliged, but
without obtaining exemption from the "Rule
of Immediate Absorption" for the post of
Deputy Director, he should be deemed to be
absorbed with the obtaining of his cadre
clearance from MMTC.

(17) The edifice of the argument of
the learned Counsel for the appellant seems
to be built on the proposition that, since
clause 6 & 9 of the Office Memorandum
dated 31.10.2007 issued by the Department
of
Pension
&
Pensioner's
Welfare,
specifically provided, that if a Central
Government servant is allowed to proceed to
a Central Autonomous body on deputation
basis without obtaining specific exemption
for the post, the Official will have to be
treated as having resigned from the Central
Government and absorbed in the Central
Autonomous body.

(18) The learned Counsel has relied
on DoPT OM dated 17.06.2010, which
provided for the period of deputation as per
the recruitment rules of the ex-cadre post or
3 years in case no tenure regulation exists
for the ex-cadre post. According to the
learned Counsel, when the said OM is read
along with the proviso to Fundamental Rule
13, it is ample clear that "no lien" of a
Government servant would be retained,
where he has proceeded on immediate
absorption basis and in case his deputation
is beyond the maximum limit admissible
under the orders of the government issued,
from time to time. Therefore, drawing an
inference, it has been submitted that in
absence of exemption for the post of deputy
director in the Authority, the appellant
stands already absorbed in services of
UIDAI with the cadre clearance by MMTC
with effect from 19.02.2017 and since he
stands already absorbed, his lien in the
parent
organisation/MMTC
also
got
terminated from the date of absorption in
UIDAI. According to the appellant, the
respondents very well knew of the aforesaid
legal position; although, instead of issuing
an order of absorption, the appellant had
been arbitrarily extending the deputation,
even though the said extension was not
permissible as per law.

(19) It has also been argued that
Regulation 4 of the Regulations, 2020
enacted with effect from 21.01.2020, is in
violation of Section 58 of the Aadhar Act,
inasmuch as, it failed to consider employees
as part of initial cadre who had already been
absorbed into its services through the rule of
immediate absorption during the operation
5 All. Saurabh Gupta Vs. The Unique Identification Authority of India, New Delhi & Ors.
417
of Section 58 of the Aadhar Act. The learned
Counsel in this regard has relied on the
judgment of Kerala State Electricity
Board & Ors. Vs Thomas Joseph Alias
Thomas M. J. & Ors. (Civil Appeal Nos.
9252-9253 of 2022, decided on 16.12.2022)
to urge that regulations cannot violate the
parent Act.

(20) The next argument addressed
by the learned Counsel for the appellant is to
the effect that CEO is not competent to
terminate
statutory
appointment
of
appellant.
According
to
him,
before
25.07.2019, the appointing authority of the
appellant was Chairman of UIDAI, who had
approved
initial
appointment
from
19.02.2014 and after the amendment,
UIDAI itself by virtue of Section 21 (1) is
the appointing authority and not any Officer
or CEO in absence of any delegation of such
powers to make appointment by general or
special orders, to either CEO or any other
Officer under section 51 of the Aadhar Act.
Thus, it has been argued that in case the
CEO is considered as an appointing
authority as defined in Regulation 2(1)(b) of
the
Regulations,
2020,
then
such
interpretation would render Section 51 of
the Aadhar Act redundant and bad in eyes of
law and in this regard, he has relied on the
Constitutional Bench judgment of the Apex
Court in Nathi Devi Vs Radha Devi Gupta
[Appeal (Civil) No. 5027 of 1999, decided
on 17.12.2004] to argue that in interpreting
a statute, effort should be made to give effect
to each and every word used by the
legislature. As such, according to him, the
CEO is not competent authority to pass the
impugned order of repatriation as the same
is vested only in the authority i.e., UIDAI.

(21) The third line of argument
addressed by the learned Counsel for the
appellant is that OM dated 17.06.2010 is not
applicable after 21.01.2020. According to
the learned counsel, UIDAI in exercise of
powers under section 21 of the Aadhar Act
notified
two
regulations,
namely,
Appointment Regulations 2020 and Service
Regulations 2020, to regulate appointment
and
all
other
service
conditions
of
employees of UIDAI with effect from
21.01.2020 and as such, in the absence of
any saving clause in these regulations and
according to him, even the Removal of
Difficulty Order 2016 notified by the
respondents under Section 58 of the Aadhar
Act does not help, as the same was for a
limited time period i.e., upto 3 months
effective from 12.07.2016 or until all
provisions of Aadhar Act and regulations
became effective or in force, whichever is
earlier. Thus, according to him since the
Aadhar Act came to be enforced with effect
from 21.01.2020, the OM dated 17.06.2010
came to be stopped and therefore, the
impugned order dated 16.03.2020 passed
under the said non-existing OM dated
17.06.2010 is illegal and in violation of
Section 21 of the Aadhar Act and in that
regard, he relied on the judgment of the
Apex Court in the case of Employees' State
Insurance Corporation Vs. Union of
India (Civil Appeal No. 152 of 2022,
decided on 20.01.2022).

(22) The fourth line of argument is
based on the premises that inquiry was in
violation of statutory Regulation 60 of
UIDAI service Regulations 2020 under
section 21 of the Aadhar Act. According to
the learned Counsel, the impugned order
dated 16.03.2020 was issued based on
inquiry
report
dated
04.03.2020
for
misconduct
allegations,
through
two
complaints and a report of inefficiency dated
06.03.2020.
But
in
eventualities
of
misconduct and inefficiency, inquiry was to
be held by disciplinary authority only in
418 INDIAN LAW REPORTS ALLAHABAD SERIES
accordance with regulation 60 and in this
regard, he has relied on the judgment of the
Apex Court rendered in the case of Union of
India and another Vs Shardinhu : (2007)
6 SCC 276. The competence of the inquiry
committee was also doubted and according
to him, the approval of such constitution of
inquiry committee was not done by the
disciplinary authority of appellant and as
such, the same is illegal and bad in law.
Further,
according
to
him,
although
misconduct is a ground of repatriation, the
same does not find any mention in the
preliminary inquiry nor the same was
reported anywhere in the finding that the
two complaints were found to be correct.
Thus, according to the appellant, the said
complaints were manipulated for obvious
reasons and shows collusion of the
respondents and has, as such prayed for
quashing the judgment of the learned Single
Judge and allowing the present appeal.

(23) Per contra, Ms. Shraddha
Deshmukh learned Counsel in her own
eloquent manner appearing for UIDAI, has
defended the impugned order by submitting
that a very detailed reasoning has been
recorded by the learned Single Judge while
dismissing the writ petition of the appellant
and it does not call for any interference. Ms.
Deshmukh after narrating the factual matrix
of the present case, has taken this court
through
the
provisions
of
Unique
Identification
Authority
of
India
(Appointment of Officers and Employees)
Regulations,
2020,
which
came
into
operation on 21st of January, 2020.
According to her, the appellant cannot take
benefit of the regulations for permanent
absorption into the cadre of UIDAI, as
complaint
of
misdemeanour
and
unsatisfactory performance, was raised prior
to the coming into force of the said
regulations and most importantly, the
regulation itself states that mere fulfilment
of the eligibility criteria by a candidate and
his submission of application form does not
confer a right to him/her to be absorbed in
the cadre of UIDAI.

(24)

Ms.
Deshmukh
has
vociferously contended that the regulations
clearly mention that absorption in the cadre
is contingent on the recommendation of the
selection committee and the concurrence of
the parent organisation/cadre, as well as, the
decision of the appointing authority and
availability of vacancy in the respective
post. She has taken this Court through the
declaration dated 07.02.2020 filed by the
appellant in this regard, while preferring the
application seeking absorption. Anyhow, it
has been stated by the learned Counsel
appearing for UIDAI, that a policy decision
has been taken by UIDAI to keep the
absorption policy in abeyance vide OM
dated 12.03.2020, which had not only
affected the Appellant but across pan-India,
and as a matter of fact, no employee of
UIDAI has been absorbed into the cadre
under the regulations of 2020 and therefore,
there could be no question of arbitrariness
on the part of UIDAI.

(25) The learned Counsel for the
respondent thereafter, has pointed the
attention of this Court to regulation 5 of the
2020 regulations, which provides for
constitution of the initial constitution of the
cadre, wherein various requirements have to
be fulfilled by a person to be considered for
absorption. According to her, when a
regulation is already at place, the appellant
or for that matter, any person claiming
absorption in the UIDAI has to fulfill the
requirement of regulation 5 of the 2020
regulations, which is mandatory in nature.
Ms. Deshmukh lays emphasis on the point
that as per regulation 5, offer of absorption
5 All. Saurabh Gupta Vs. The Unique Identification Authority of India, New Delhi & Ors.
419
can be given only to those persons who are
holding any post provided under the
schedule and meet the requirements as
specified in regulation 5(2)(3) and (4),
which according to the learned Counsel for
UIDIA is not being fulfilled by the appellant
and as such, he cannot claim any right of
absorption.

(26) The learned Counsel for
UIDAI has also submitted that the appellant
has not challenged the policy decision of
UIDAI for keeping the absorption policy at
abeyance and per se, any argument running
contrary to the said policy decision should
not be entertained by this court and to fortify
her stand, she has relied on the judgment of
the Hon'ble Apex Court in State of A.P Vs.
Subbarayudu V.C. and others : 1998 (2)
SCC 516 and Brij Mohan Lal Vs Union of
India and others : (2012) 6 SCC 502.
Further, the learned Counsel has also relied
on the judgment of Kunal Nanda Vs.
Union of India : AIR 2000 SC 2076 and
other cases to argue that there is no vested
right in any person to continue for long
deputation or get absorbed in the department
to which he had gone on deputation. Thus, it
has been summed up by her that no grounds
have been made out by the appellant and the
present appeal may be dismissed.

Discussion & Findings

(27) Having heard the parties at
length, this Court must at the very outset
record that, after the order of repatriation
of the appellant, which is the subject
matter engaging the attention of this court
in the present appeal, it has come on
record that the parent organisation of the
appellant, namely, MMTC, vide its emails
dated
11.01.2021
and
22.02.2021,
requested the appellant to join his parent
organisation. Apparently, it seems that the
appellant did not join the services of
MMTC
and
as
such
disciplinary
proceedings have been initiated against
the appellant on the ground of misconduct.
This Court was informed during the course
of hearing that a writ petition bearing No.
8943/2022
has
been
filed
by
the
Appellant, which is pending before the
learned Single Judge of this court, wherein
although a notice had been issued to the
Respondents, however no stay against the
said departmental proceedings have been
granted in favour of the petitioner. This
Court, vide order dated 14.12.2023
requisitioned the said writ petition.
However, during the course of hearing,
this Court expressed its reservation to hear
the said writ petition along with the
present appeal, as any decision in that writ
petition would not only cause prejudice to
the Appellant for losing a chance of appeal
(Special Appeal), but would also result in
non-joinder of issues as the grounds
espoused by the appellant in the present
appeal are at variance to the grounds
mentioned in the writ petition. Thus, this
Court vide an order 27.04.2024 has
delinked the writ petition No. 8943/2022,
which shall be decided on its own merit by
the learned Single Judge and without
being influenced by any observation made
by this court in the present appeal.

(28) First & foremost, it is not in
dispute that after the establishment of
UIDAI under Section 11 of the Act, 2016, it
has become a statutory authority and is no
longer an attached office of the Government
of India or the Planning Commission nor is
it in dispute, that the parent corporation of
the appellant is also an autonomous body,
therefore, both the lending and borrowing
corporation/authority are not departments of
the
Government
of
India
but
are
autonomous bodies as of now and were so,
420 INDIAN LAW REPORTS ALLAHABAD SERIES
on the date of passing of the impugned order
of repatriation dated 16.03.2020 and
disposal of representation dated 28.05.2020.

(29) The hinge of the argument
addressed by the learned Counsel for the
appellant belies the factual matrix. It has
been contended that the appellant was not on
deputation on the date of the impugned order
dated 16.03.2020 as he had already been
absorbed in the UIDAI by rule of immediate
absorption with effect from expiry of three
years of deputation on 19.02.2017. The
learned Counsel has tried to develop a
concept
of
"deemed
absorption"
or
"automatic absorption" and in that regard
has given various corollary arguments. The
first argument being that clause 6 & 9 of the
OM dated 31.10.2017 issued by the
Department of Pensions & Pensioner's
Welfare, provided, that in case a central
government servant proceeds to a central
autonomous body on deputation basis
without obtaining specific exemption for the
post, the official would be treated as having
resigned from the central Government and
absorbed in the central Autonomous body.
Apparently, it has come on record that
although in the appellant's case no specific
exemption for the post was obtained, but he
was never treated to have resigned from his
parent organisation, which is fortified from
the issuance & request email dated
11.01.2021
and
22.02.2021,
wherein
MMTC has requested the appellant to join
his parent organisation. The said OM was
issued for preparation of shield that, in case
no specific exemption for the post is
obtained, then in that case, the person would
be treated to have resigned, so that there is
no lien created on the post held by that
particular person in the parent organisation,
which would give a meaningful & purposive
understanding of the tenure of service for
consideration of service benefits, including
pensions, etc. According to this Court, the
said OM is of no help to appellant as he has
not been treated as having resigned from
MMTC.

(30) Further, the contention of the
learned Counsel for the appellant that DoPT
OM dated 17.06.2010 provided for a
maximum tenure of 3 years and since the
appellant has been on deputation in UIDIA
for close to seven years and fundamental
Rule 13 provides, that in case a person is on
deputation beyond the maximum limit
admissible, there would be "no lien" on the
post held by that person/Government
servant in the parent organisation. At the
first blush, the contention of the appellant
seems to be appealing, however on a closer
look, it is apparent from the facts of the
present case that the proposition is out of
context. The said rule prescribed for an
eventuality when a government servant is
given only two choices i.e., either return to
the parent organisation within the prescribed
period or there would be "no lien".
Unfortunately, in the present case, the
deputation has been extended by UIDAI
much beyond the prescribed period and the
appellant had been accepting the said
extension. Further, there had been no
endeavour by MMTC to put to notice the
appellant to either return or loose the lien in
his parent organisation. Apparently, all the
parties have been working in tandem with
each other and it is only when UIDAI
repatriated the appellant, the controversy
crept. In any case, it is borne from the record
itself that "lien" existed on the post held by
the appellant in his parent organisation-
MMTC on his repatriation from UIDAI and
by itself, even this OM is of no help to the
appellant.

(31) Anyway, it has to be
understood that there is no concept of
5 All. Saurabh Gupta Vs. The Unique Identification Authority of India, New Delhi & Ors.
421
"deemed
absorption"
or
"automatic
absorption" as these are terms absolutely
foreign to service jurisprudence. One has to
understand that deputation or permanent
absorption, is a bilateral phenomenon. There
is no provision under law, of deemed
absorption. Pertinently, absorption has to be
done as per the rules & regulations and the
law on that aspect stands settled that, even if
a person is found to be eligible it does not
mean that he would be absorbed as a matter
of right. Thus, when eligibility does not
guarantee a deemed absorption, how can
merely completing a particular tenure of
service on deputation amount to 'deemed' or
'automatic absorption'. It has to be
understood, that, merely applying for
absorption as per the regulations also does
not give a right for being absorbed as it
would depend on various factors, including
suitability and most importantly, the
necessary NOC and/or the permission of the
parent
department/organisation.
The
absorption/transfer
in
the
borrowing
organisation would be complete only when
the borrowing company passes an order
absorbing the deputationist. An affirmative
action is required from both the lender as
well as the borrowing department for
absorption of a government servant in the
borrowing department and as such, it can be
safely understood that deemed absorption or
automatic absorption is not permissible
under service law and nothing has been
brought on record by the appellant to
demonstrate any rule or regulations akin to
the said concept.

(32) The next argument addressed
by the learned Counsel for the Appellant is
Regulation 4 of the Regulations 2020 is in
violation of section 58 of the Aadhar Act, as
it fails to consider employees as part of
initial cadre, who has already been absorbed
into its services through the rule of
immediate absorption during the operation
of Section 58 of the Aadhar Act. This
ground presupposes that the appellant had
already been given immediate absorption
with the lapse of his tenure of three years,
which this could have already been held to
be untenable in the eyes of law.

(33) As regards the other ground of
the appellant that the CEO is not competent
to terminate the statutory appointment of the
appellant is concerned, this court finds that
a co-joint reading of section 18 (4) of the
Aadhar Act, 2016 and Regulation 2 (1) (b)
of the Regulations, 2020 sufficiently
indicates that the Chief Executive Officer
(CEO) had administrative control over the
officers and other employees of the
Authority. Further, Regulation 3 of the
Regulations, 2020 empowered the Chief
Executive Officer to implement the said
Regulations.
Apparently,
the
decision
communicated to the Appellant vide order
dated 16.03.2020 for repatriation had been
taken with the approval of the Chief
Executive Officer who was competent to
take a decision in this regard, as such, the
contention of the appellant appears to be
untenable both, on facts and in law.

(34) As regards the contention of
the appellant relating to non-applicability of
OM dated 17.06.2010 as the same became
redundant after the enforcement of the
Aadhar Act and the notice of repatriation
dated 16.03.2020 having been issued under
the said non-existing OM and in violation of
section 21 of the Aadhar Act is concerned,
this Court finds that the learned Single Judge
has very extensively dealt with the said
ground and has returned a finding to the
following effect;

"At this very stage it needs to be
mentioned that the petitioner came on
422 INDIAN LAW REPORTS ALLAHABAD SERIES
deputation in the year 2014 when UIDAI
was still functioning as an attached office of
the
Planning
Commission
of
the
Government of India and his selection as
also tenure of deputation were governed by
the aforesaid DoPT OM's dated 17.06.2010
which was subsequently modified by OM
dated 17.02.2016 and this fact was
mentioned in the OM dated 10.10.2013 in
pursuance to which the petitioner applied
for being appointed on deputation as also in
the
order
of
his
deputation
dated
05.02.2014. Clause 6 of the DoPT OM dated
17.02.2016 therefore did not make these
OM's inapplicable, at least till 11.07.2016
i.e. prior to Act, 2016 coming into force, if
not, even thereafter.

 It is not out of place to mention
that the Act, 2016 came into force on
12.07.2016 and the UIDAI was established
by a notification under Section 11 of the said
Act on 12.07.2016 itself. However, all the
provisions of the Act, 2016 were not notified
in terms of Section 1 (3) of the said Act,
instead, Section 11 - 20, 22 - 23 and Section
48 - 59 came into force on 12.07.2016 as per
notification issued in this regard under
Section 1 (3) of the Act, 2016. Section 1 - 10
and 24 - 47 of the said Act came into force
on 12.09.2016 vide a notification of the
same date under Section 1 (3) of the Act,
2016.

Section 21 of the Act, 2016 dealing
with terms and conditions of service of
officers and employees of UIDAI was not
notified as per Section 1 (3) of the said Act
at that time nor any regulations as are
referred therein were framed prescribing
the terms and conditions of service of
officers and employees. In fact, the said
provision, without being notified, was
amended vide Act, 2019, which was
published in the Gazette on 23.07.2019 and
Section 1 to 30 of the Act, 2019 came into
force on 25.07.2019 by a notification of the
same date issued under Section 1 (2) of the
Act, 2019. By the amendment in Section 21,
the requirement of approval of the Central
Government as was required under the
unamended Section 21 was done away with.

The regulations as are referred in
Section 21 of the Act, 2016 were framed and
notified only on 21.02.2020. Regulations no.
1 of 2020 which has already been referred
earlier are relevant for the case at hand.

In this context Section 59 of the
Act, 2016 is relevant and it reads as under:-
 " 59. Anything done or any action
taken by the Central Government under the
Resolution of the Government of India,
Planning Commission bearing notification
number A-43011/02/2009-Admin. I, dated
the 28th January, 2009, or by the
Department of Electronics and Information
Technology under the Cabinet Secretariat
Notification bearing notification number
S.O. 2492(E), dated the 12th September,
2015, as the case may be, shall be deemed to
have been validly done or taken under this
Act."

In view of the above quoted
provision, as UIDAI functioned as an office
of the Central Government therefore, any
action taken under the notification dated
28.01.2019 by which it was established as
an attached
office
of
the
Planning
Commission and the subsequent notification
dated 12.09.2015 by which it was made an
attached office of DIET, Government of
India, are to be deemed to have been validly
done or taken under the Act, 2016. The
exercise of selection and appointment of the
Appellant on deputation was initiated by
UIDAI after its constitution by the
notification dated 28.01.2009 but prior to
12.07.2016, therefore, this action is to be
treated as validly done under the Act, 2016
in view of Section 59.

In
view
of
the
above
as
unamended Section 21 of the Act, 2016 had
5 All. Saurabh Gupta Vs. The Unique Identification Authority of India, New Delhi & Ors.
423
not been notified under Section 1 (3) of the
said Act and as no regulations had been
framed as referred therein regarding terms
and conditions of service of officers and
employees of UIDAI, the tenure of
deputation of the petitioner continued to be
governed by the DoPT OM's dated
17.06.2010 and 17.02.2016 in accordance
with the terms of deputation mentioned in
the OM dated 10.10.2013 and the order of
deputation
of
the
petitioner
dated
05.02.2014 at least till 21.02.2020, when,
the regulations namely UIDAI (appointment
of officers and employees) Regulations,
2020 were notified under Section 21 of the
Act, 2019.

(35) Further, this court finds that a
very pertinent question in the context was
framed by the learned Single Judge in the
impugned order, which inter-alia says:

 "Question is, whether, once the
Regulations, 2020 were notified, the OM's
dated 17.06.2010 and 17.02.2016 became
inapplicable? and, whether, in the absence
of any provision for repatriation or
curtailment
of
deputation
in
the
Regulations, 2020, the impugned order of
repatriation dated 16.03.2020 is illegal?

(36) The aforesaid question framed
by the learned Single Judge was dealt very
vividly covering all aspects of the matter and
returning a finding in the following words;