# Saurabh Gupta v. UIDAI & Ors

- **Citation:** (2020) 10 ILRA 415
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-01
- **Case number:** Service Single No. 8234 of 2020
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saurabh-gupta-v-uidai-ors-45352
- **Pages:** 24

## Headnote

A. Service Law - Adhaar (Targeted delivery
of Financial and other subsidies, benefits
and services) Act, 2016: Section 1(3),
2(e), 21(1)/54(1)/54(2)(x), 11, 18, 22, 59
- Adhaar and other laws (Amendment)
Act, 2019 - Appointment & selection -
Unique Identification Authority of India
(appointment of officers and employees)
Regulations, 2020: Regulation 2(1)(b), 3,
5, 11

The petitioner came on deputation in the year
2014 when UIDAI was still functioning as an
attached office of the Planning Commission/
Department of Electronics and Information
Technology of the Government of India and his
selection as also tenure of deputation were
governed by the aforesaid Department of
Personnel
and
Training
(DoPT)
Office
Memorandum's (OM) 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 deputation. Clause 6 of the
DoPT OM dated 17.02.2013 therefore did not
make these OM's inapplicable, at least till
11.07.2016 i.e., prior to Act, 2016 coming into
force. (Para 25)
The exercise of selection and appointment of
the petitioner 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.
The tenure of deputation of the petitioner
continued to be governed by the DoPT OM's
dated 17.06.2010and 17.02.2016. (Para 30, 31)

In case of appointment on deputation based
on
selection,
repatriation
to
parent
organization is permissible on ground of
unsatisfactory work or unsuitability. There has
to be some rationale behind such decision.
There is o specific provision of recruitment
and appointment by way of deputation but a
general provision contained in Section 21 as
amended by the Act, 2019 which specifies the
terms
and
conditions
of
officers
and
employees of UIDAI by regulations to be
made by the UIDAI. There is nothing in the
Regulation, 2020 which expounds that a
person on deputation cannot be repatriated,
not even on grounds of unsuitability and
unsatisfactory work. More so, the Court
observed that even in the absence of any
specific
provision
of
repatriation
of
a
deputationist or curtailment of deputation in
the Regulation, 2020 it cannot be said that
such
a
person
cannot
be
repatriated.
Absorption under the Regulations, 2020
is not a matter of right but is based on
consideration by a selection committee
on being find suitable for the position.
Further, the petitioner has not been
absorbed in the borrowing department
not has his lien been terminated in the
parent organization, therefore, he could,
for justifiable reasons based on his
unsuitability and unsatisfactory work, be
repatriated to his parent organization by
a bonafide decision of the competent
authority. (Para 33, 34, 36, 37, 38)

Order of the deputation mentioned that the
deputation of the petitioner was for a period of
3 years or until further orders. The words 'until
further orders' is indicative of the clear intent
that deputation could be curtailed prior to 3
years and could be repatriated even earlier.
(Para 39)
416 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Nature of the Order - Mentioning of all
facts by opposite parties by itself cannot and
does not persuade the Court to hold that the
impugned decision is punitive. The application
of the concept of "motive" and foundation for
determining the nature of the order is quite
tricky and the line which divides the two is
rather thin. (para 47)

In absence o any allegation of personal
malafide against the officer or employee of
UIDAI who may have been involved in the
decision making process leading to it, it
cannot be said that the repatriation of the
petitioner is punitive or arbitrary. It is an
order simplicitor. (Para 56)

Writ Petition Rejected. (E-10)

List of Cases cited:-

## Text

_Characters 0–39,794 of 82,882. This is a partial read: ask again with offset=39794 for what follows._

10 All. Saurabh Gupta Vs. UIDAI & Ors.
415

26. Thus, the petition fails and is,
accordingly, dismissed.
----------
(2020)10ILR A415
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.10.2020

BEFORE
THE HON'BLE RAJAN ROY, J.

Service Single No. 8234 of 2020

Saurabh Gupta ...Petitioner
Versus
UIDAI & Ors. ...Respondents

Counsel for the Petitioner:
Shireesh Kumar

Counsel for the Respondents:
Suryabhan, Zoheb Hossain

A. Service Law - Adhaar (Targeted delivery
of Financial and other subsidies, benefits
and services) Act, 2016: Section 1(3),
2(e), 21(1)/54(1)/54(2)(x), 11, 18, 22, 59
- Adhaar and other laws (Amendment)
Act, 2019 - Appointment & selection -
Unique Identification Authority of India
(appointment of officers and employees)
Regulations, 2020: Regulation 2(1)(b), 3,
5, 11

The petitioner came on deputation in the year
2014 when UIDAI was still functioning as an
attached office of the Planning Commission/
Department of Electronics and Information
Technology of the Government of India and his
selection as also tenure of deputation were
governed by the aforesaid Department of
Personnel
and
Training
(DoPT)
Office
Memorandum's (OM) 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 deputation. Clause 6 of the
DoPT OM dated 17.02.2013 therefore did not
make these OM's inapplicable, at least till
11.07.2016 i.e., prior to Act, 2016 coming into
force. (Para 25)
The exercise of selection and appointment of
the petitioner 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.
The tenure of deputation of the petitioner
continued to be governed by the DoPT OM's
dated 17.06.2010and 17.02.2016. (Para 30, 31)

In case of appointment on deputation based
on
selection,
repatriation
to
parent
organization is permissible on ground of
unsatisfactory work or unsuitability. There has
to be some rationale behind such decision.
There is o specific provision of recruitment
and appointment by way of deputation but a
general provision contained in Section 21 as
amended by the Act, 2019 which specifies the
terms
and
conditions
of
officers
and
employees of UIDAI by regulations to be
made by the UIDAI. There is nothing in the
Regulation, 2020 which expounds that a
person on deputation cannot be repatriated,
not even on grounds of unsuitability and
unsatisfactory work. More so, the Court
observed that even in the absence of any
specific
provision
of
repatriation
of
a
deputationist or curtailment of deputation in
the Regulation, 2020 it cannot be said that
such
a
person
cannot
be
repatriated.
Absorption under the Regulations, 2020
is not a matter of right but is based on
consideration by a selection committee
on being find suitable for the position.
Further, the petitioner has not been
absorbed in the borrowing department
not has his lien been terminated in the
parent organization, therefore, he could,
for justifiable reasons based on his
unsuitability and unsatisfactory work, be
repatriated to his parent organization by
a bonafide decision of the competent
authority. (Para 33, 34, 36, 37, 38)

Order of the deputation mentioned that the
deputation of the petitioner was for a period of
3 years or until further orders. The words 'until
further orders' is indicative of the clear intent
that deputation could be curtailed prior to 3
years and could be repatriated even earlier.
(Para 39)
416 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Nature of the Order - Mentioning of all
facts by opposite parties by itself cannot and
does not persuade the Court to hold that the
impugned decision is punitive. The application
of the concept of "motive" and foundation for
determining the nature of the order is quite
tricky and the line which divides the two is
rather thin. (para 47)

In absence o any allegation of personal
malafide against the officer or employee of
UIDAI who may have been involved in the
decision making process leading to it, it
cannot be said that the repatriation of the
petitioner is punitive or arbitrary. It is an
order simplicitor. (Para 56)

Writ Petition Rejected. (E-10)

List of Cases cited:-

1. Chandra Prakash Shahi Vs St. of U.P. &ors.
(2000) 5 SCC 152 (distinguished)

2. S.B.I. & ors. VS Palak Modi & ors. (2013) 3
SCC 607

3. Anoop Jaiswal Vs Govt. of India & ors. (1984)
2 SCC 369

4. St. of A.P. & ors. Vs Goverdhanlal Pitti (2003)
4 SCC 739

5. St. of Bihar Vs P.P. Sharma 1992 Supp. (1)
SCC 222

6. Rameshwar Prasad Vs M.D., U.P.R.N.I (1999)
8 SCC 381

7. U.O.I. & anr. Vs S.N. Maity & anr. (2015) 4
SCC 164 (followed)

8. U.O.I. Vs V. Ramakrishnan (2005) 8 SCC 394

9. St. of Raj. & ors. Vs Trilok Ram (2019) 10
SCC 383

10.
Bank
of
India
&
ors..
Vs
Degala
Suryanarayana (1999) 5 SCC 762

11.
Bhaskar
Gajanan
Kajrekar
Vs
Administrator, Dadar & Agar Haveli & ors.
(1993) 3 CC 237
12. Delhi Jal Board Vs Mahinder Singh (2000) 7
SCC 210

13. Uttar Pradesh Gram Panchayat, Adhikari
Sangh Vs Dayaram Saroj (2007) 2 SCC 138

14. Union of India & anr. Vs S.N. Maity & anr.
(2015) 4 SCC 164

15. Dayanand Katariya Vs U.O.I. 2015 SCC
Online Delhi

16. Umesh Kumar Vs U.O.I. & ors. 2013 SCC
Online Delhi 2768

17. U.O.I. Vs Bhanwar Lal Mundan (2013) 12
SCC 433

18. Ashok kumar Patil Vs U.O.I. (2012) 7 SCC
757 (followed)

19. Kaushal Kishore Shukla Vs State of U.P.
(1991) 1 SCC 691 (followed)

20. L/NK V.H.K. Murthy Vs Special Protection
Group ILR (2000) Delhi 26 (followed)

(Delivered by Hon'ble Rajan Roy, J.)

1. By means of this Writ Petition the
petitioner has challenged the curtailment of
his deputation and his repatriation by the
Unique Identification Authority of India
(herein after referred as UIDAI) to his
parent corporation namely Metals and
Minerals
Trading
Corporation,
Jaipur
(herein after referred as MMTC). The
petitioner has challenged two orders, one
dated 16.03.2020 which is the notice of his
repatriation and by an amendment in the
writ
petition
another
order
dated
28.05.2020 passed by the Chief Executive
Officer of UIDAI rejecting the petitioner's
representation against the order dated
16.03.2020 has also been challenged.

2. The petitioner is an employee of
MMTC, Jaipur. In pursuance to office
memorandum dated 10.10.2013 inviting
10 All. Saurabh Gupta Vs. UIDAI & Ors.
417
applications from eligible persons for
filling up various posts including that of
Deputy
Director
in
the
UIDAI
on
deputation basis at its regional office,
Lucknow, the petitioner also applied and
was selected for such deputation. He was
appointed on deputation, consequent to his
selection, as Deputy Director at the
regional office of UIDAI, Lucknow vide a
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 during his tenure
of deputation in UIDAI were to be
governed by the Department of Personnel
and Training (herein after referred as
DoPT) OM dated17.06.2010 and this fact
was mentioned in the order of deputation
dated 05.02.2014 as also the OM dated
10.10.2013. In pursuance to the aforesaid,
the petitioner joined at the regional office,
Lucknow in 2014 itself. The deputation
period
was
extended
sometime
in
2017/2018. In August, 2019 the opposite
party no. 2 sought explanation from the
petitioner regarding his day to day work
and the reasons for non submission of
reports on time. The petitioner submitted a
written reply on 30.08.2019, a copy of
which is annexed as Annexure-10 to
supplementary
affidavit
filed
by
the
petitioner. The reply of the petitioner was
not found to be satisfactory and a comment
was recorded by the opposite party no. 2
who was the head of the regional office at
Lucknow to the effect- "not so much that
reports will not go on time. The
explanation not acceptable."

3. Be that as it may, on 21.01.2020,
the Unique Identification Authority of India
(appointment of officers and employees)
Regulations, 2020 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 Adhaar (Targeted delivery of
Financial and other subsidies, benefits and
services) Act, 2016 (herein after referred as
Act, 2016) , as amended vide the Adhaar
and other laws (Amendment) Act, 2019
(herein after referred as Act, 2019), were
notified.

4. 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
but with the clear stipulation that mere
fulfillment 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
shall
be
contingent
upon
the
recommendations of the selection Committee
etc. as mentioned in Paragraph 4 of the said
office memorandum dated 29.01.2020, a
copy of which is annexed as Annexure-6 to
the writ petition. The petitioner claiming
himself to be eligible for such permanent
absorption is said to have applied on
07.02.2020 which was forwarded by his
superior officer on 12.02.2020.

5. The undisputed fact is that the
absorption process did not take place and 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
had not been resolved.

6. It is not out of place to mention that
18.02.2020 was the last date for submitting
an
application
for
consideration
for
permanent absorption as aforesaid in terms
of the OM dated 29.01.2020.

7. It is not in dispute that on
13.02.2020 the petitioner's deputation was
418 INDIAN LAW REPORTS ALLAHABAD SERIES
extended. This extension order has been
filed by the opposite party along with their
written submissions in pursuance to the
liberty granted by this Court while
reserving the judgment on 10.07.2020, with
the consent of the Counsel for the
petitioner.

8. On 26.02.2020 and 27.02.2020,
two complaints were received by the
opposite parties against the petitioner, one
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.
In
both
the
complaints
misbehaviour and improper conduct by the
petitioner towards them was alleged. The
opposite party no. 2 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). It is
said that the opposite party no. 2 i.e. the
Deputy Director General, Regional Office,
Lucknow was also holding the charge of
Deputy Director General, Regional Office,
Ranchi at the relevant time. The aforesaid
inquiry committee is said to have recorded
the statement of aforesaid complainants as
well as other Officers' and employees' of
the Regional Office. Accordingly, it
submitted its report on 04.03.2020 which
was adverse to the petitioner. This was in
the nature of a fact finding inquiry on the
complaints.

9. In the meantime, Shri Vivek Kumar
Daksh was 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
petitioner. On 02.03.2020, while the
inquiry against the petitioner instituted on
27.02.2020
was
still
pending,
an
explanation was called from him by the
aforesaid Assistant Director General, Vivek
Kumar Daksh regarding huge pendency of
grievances/complaints, which, as per the
work distribution order dated 21.12.2018,
he was required to dispose of. A copy of
the show cause is annexed as Annexure -
R14 at Page 171 to the supplementary
affidavit filed by the opposite parties. The
said letter mentioned about the review of
work on 28.02.2020 which revealed that
more than 7000 cases were pending for
exceptional handling of date of birth cases
in the Regional Office at Lucknow, 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 petitioner had neither
taken any prompt action to dispose of these
cases at his end as Supervisor nor reported
this issue to his superior's for prompt
handling. It was also alleged that he had not
devised any mechanism to supervise this
issue at regular intervals at his level as
Deputy Director. Coordination mechanism
among staff which was handling this issue
was also not put in place. He was therefore
asked to explain that why this non
monitoring, non reporting and non disposal
of pendency has been continuing in this
fashion, within 3 days. The petitioner
replied on 05.03.2020. A day prior to this
i.e. on 04.03.2020, the report of the internal
inquiry committee referred earlier had
already been submitted.

10. On 05.03.2020, the Assistant
Director General (Admn./HR) in the office
of Deputy Director General, Regional
Office, Lucknow sought inputs from Shri
Vivek Kumar Daksh, Assistant Director
General regarding performance of the
petitioner and on 06.03.2020 the said
10 All. Saurabh Gupta Vs. UIDAI & Ors.
419
Officer reported that the work of the
petitioner was unsatisfactory and not up to
the mark.

11. On 06.03.2020, the Deputy
Director
General,
Regional
Office,
Lucknow
(opposite
party
no.
2)
communicated to the Assistant Director
General
(Admn./HR),
UIDAI
Headquarters, New Delhi through Shri
Nitish Sinha, Assistant Director General at
the Regional Office, Lucknow about the
report
dated
04.03.2020
against
the
petitioner and the assessment of his
performance by the Reporting Officer, Shri
Vivek Kumar Daksh dated 06.03.2020 as
noticed hereinabove and recommended his
premature
repatriation
to
his
parent
Department/Office for kind consideration
of the Headquarters at New Delhi.

12. On 12.03.2020, the competent
authority, who is said to be the Chief
Executive Officer is said to have granted
approval for premature repatriation of the
petitioner and the same was conveyed to
the Regional Office, Lucknow. On the
same date i.e. 12.03.2020, the absorption
process was put on hold on account of
certain
unresolved
issues
by
the
Headquarters of UIDAI, New Delhi as
mentioned earlier.

13. On 16.03.2020, the impugned order
curtailing the deputation of the petitioner and
giving notice for his repatriation citing Clause
9 of the OM dated 17.06.2010 was issued.
The notice period being 3 months, the Court
was
informed,
during
the
course
of
arguments, that the petitioner had been
relieved on completion of the said period but
with the condition that the relieving would be
subject to further orders/result of this writ
petition in view of the interim orders passed
herein to the said effect.

14. Against the aforesaid order dated
16.03.2020,
the
petitioner
preferred
a
representation to the Chief Executive Officer
which was rejected on 28.05.2020 and the
said order is also under challenge.

15. It is not out of place to mention that
the reply submitted by the petitioner on
05.03.2020 to the show cause dated
02.03.2020 given by Shri Vivek Kumar
Daksh, Assistant Director General, Regional
Office, Lucknow was ultimately decided by
the Officer on 18.05.2020, however, the said
order has not been challenged specifically in
this writ petition.

16. It is not out of place to mention that
the Act, 2016 came into force on 12.07.2016.
Prior to establishment of UIDAI as a
statutory authority under Section 11 of the
said Act, 2016, it was functioning as an
attached
office
of
the
Planning
Commission/NITI
Aayog
under
the
notification of the Government of India,
Planning Commission dated 28.01.2009 and
thereafter it functioned as an attached office
of Department of Electronics and Information
Technology w.e.f. 12.09.2015 till it became a
statutory authority w.e.f 12.07.2016. These
facts are borne out from Section 22 and 59 of
the Act, 2016, a copy of which is on record,
as, also from the written submissions of the
opposite parties.

17. 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 petitioner
is also an autonomous body, therefore, both
the
lending
and
borrowing
corporation/authority are not departments
of the Government of India but are
420 INDIAN LAW REPORTS ALLAHABAD SERIES
autonomous bodies as of now and they
were so on the date of passing of the
impugned order dated 16.03.2020 and
28.05.2020.

18. Against the aforesaid factual
background the arguments of Shri Shireesh
Kumar, learned Counsel for the petitioner
can be summarised as under:-

i.) Repatriation of the petitioner to
his parent corporation invoking Paragraph 9
of OM dated 17.06.2010 was legally
unsustainable as the said OM ceased to be
applicable to the case of the petitioner in view
of Paragraph 6 of the subsequent OM dated
17.02.2016.
According
to
the
learned
Counsel for the petitioner, in view of Clause
6 of the OM dated 17.06.2010, as neither
borrowing
nor
the
lending
departments/corporations were a department
of the Central Government, therefore,
deputation of the petitioner would not be
governed by the aforesaid OM's issued by the
Government of India.

ii.) The aforesaid OM's issued by
DoPT dated 17.06.2010 and 17.02.2016
ceased to apply to UIDAI w.e.f. 21.01.2020
when the Regulations, 2020 made under the
Act, 2016 came into force and the same
would be governed by the Regulations, 2020,
as such, the order dated 16.03.2020 which is
based on the aforesaid OM's is not
sustainable.

iii.) There was no provision for
premature repatriation of a deputationist in
the Regulations, 2020 nor for curtailment of
the term of appointment on deputation, hence
the order dated 16.03.2020 was ultra vires the
Regulations, 2020. Regulation 11 provides
for deputation and Sub-regulation 3 thereof
provided
for
the
maximum
term
of
deputation of 5 years which could be
extended for such period and in such manner
as prescribed by the Authority from time to
time. The opposite parties having extended
the deputation of the petitioner vide a order
dated 13.02.2020 till 18.02.2021, they could
not have curtailed it nor could they have
ordered for premature repatriation, as such,
they had violated Regulation 11 (3) of the
Regulations, 2020. Section 16 of the General
Clauses Act, 1897 would have no application
in the matter, as, they relate to competence of
the authority to appoint or to suspend or
dismiss whereas the present case was not of
competence of the authority but of malicious
exercise of power which rendered the order
dated 16.03.2010 bad.

iv.) The impugned order dated
16.03.2020 was not an order simplicitor but
was punitive. The counter affidavit of the
opposite parties itself reveals the basis for
passing the said order as being two
complaints against the petitioner and the
report dated 04.03.2020 by the Inquiry
Committee in this regard as also the report
of Assistant Director General, Mr. Vivek
Kumar Daksh dated 06.03.2020. There was
no adverse material till 18.02.2020 which
was the last date for submission of
application for permanent absorption. All
adverse material was created within a
period of 7 days from 26.02.2020 to
04.03.2020 and on 06.03.2020 curtailment
of
petitioner's
deputation
was
recommended by the Regional Office,
Lucknow to the Headquarters of UIDAI at
New Delhi. The order dated 16.03.2020 is
thus punitive. He placed reliance upon the
decision of the Supreme Court in this
regard in the case of Chandra Prakash
Shahi Vs. State of U.P. and others; 2000 (5)
SCC 152. The petitioner also relied in this
regard upon the decision of the Supreme
Court in the case of State Bank of India and
others Vs. Palak Modi and others; 2013 (3)
SCC 607 and in the case of Anoop Jaiswal
Vs. Government of India and others; 1984
(2) SCC 369.
10 All. Saurabh Gupta Vs. UIDAI & Ors.
421

v.)
The
petitioner's
Counsel
alleged legal malice as accordng to him the
issuance of order dated 16.03.2020 was a
wrongful act done intentionally without just
cause or legal excuse and at the behest of
opposite party no. 2 who had no role in the
deputation of officers. In this regard he
relied upon the decisions of the Supreme
Court in the case of State of Andhra
Pradesh and others Vs. Goverdhanlal Pitti;
2003 (4) SCC 739; and State of Bihar Vs.
P.P. Sharma; 1992 Supp. (1) SCC 222.

It was also contended that the
Court is empowered to lift the veil so as to
find out the actual nature of the order
whether it is punitive or simplicitor based
on the principle of motive and foundation.
But for the aforesaid adverse material, the
petitioner's performance and conduct was
throughout outstanding during the period of
deputation. The alleged adverse material
came to the knowledge of the petitioner
only through the counter affidavit.

vi.) The petitioner's repatriation
was designed to deprive him of his
statutory
right
of
consideration
for
absorption under Regulation 5 of the
Regulations, 2020. Absorption, as it is
provided
under
Regulation
5
of
Regulations, 2020, was a right of the
petitioner in view of the dictum of the
Supreme Court in the case of Rameshwar
Prasad Vs. M.D., U.P.R.N.I; 1999 (8) SCC
381. The order dated 16.03.2020 was
passed with the intent to deprive the
petitioner of the aforesaid right which
accrued in his favour by 18.02.2020 as he
had applied for such consideration prior.

vii.) The case at hand was one of
appointment
on
deputation
which
is
different from transfer on deputation. In
view of the decision of the Supreme Court
in the case of Union of India and another
Vs. S.N. Maity and another; (2015) 4 SCC
164. The petitioner had an indefeasible
right to continue on deputation and could
be repatriated only on the ground of non
suitability and unsatisfactory work which
had to be assessed in a fair and reasonable
manner and not arbitrarily. The petitioner's
Counsel also relied upon the decision of the
Supreme Court in this regard in the case of
Union of India Vs. V. Ramakrishnan; 2005
(8) SCC 394; The adverse material against
the
petitioner
was
created
between
26.02.2020 to 16.03.2020 but none of the
documents established that the petitioner
was not suitable for the post. False
complaints were made which did not
disclose any specific instance or illustration
of misbehaviour. The Inquiry report dated
04.03.2020 mentioned the statements of
various officials/ employees which had not
been brought on record of this writ petition.
Moreover, in none of the statements any
specific instance of misbehaviour or
misconduct by the petitioner had been
alleged. None of the said persons were
examined in the presence of the petitioner.
The driver and the Assistant Section
Officer who submitted the complaint on
26.02.2020 and 27.02.2020 were not under
the jurisdiction and control of the petitioner
and did not report to him directly. The
report/input of Shri Vivek Kumar Daksh
dated 06.03.2020 regarding unsatisfactory
performance of the petitioner was not valid
as his reply dated 05.03.2020 was decided
by him only on 18.05.2020. Therefore, any
opinion formed by him prior to it could not
have been acted upon. The petitioner
disposed of 95,000 grievances in the year
2019 and this fact was not denied by the
opposite parties. The petitioner was always
categorised as an officer of outstanding
category in his annual appraisal report and
this fact had also not been disputed by the
opposite parties. As such, the material for
premature repatriation of the petitioner is
motivated and fabricated. It cannot be said
422 INDIAN LAW REPORTS ALLAHABAD SERIES
to be an exercise free from arbitrariness.
Therefore, the order dated 16.03.2020 was
not sustainable in law. The service record
of the petitioner only up to 18.02.2020 was
required to be considered for the purposes
of absorption. Reliance was placed in this
regard upon decision of the Supreme Court
in the case of State of Rajasthan and others
Vs. Trilok Ram; 2019 (10) SCC 383.

viii.) The petitioner was entitled
to be considered for absorption under
Regulation 5 of the Regulations, 2020
irrespective of the order of repatriation as
the right had accrued in his favour prior to
18.02.2020 when he had applied for the
same. In this regard he relied upon the
Supreme Court in the case of Bank of India
and others Vs. Degala Suryanarayana; 1999
(5) SCC 762; Bhaskar Gajanan Kajrekar
Vs. Administrator, Dadar and Nagar Haveli
and others; 1993 (3) SCC 237; and Delhi
Jal Board Vs. Mahinder Singh; 2000 (7)
SCC 210.

ix.) The appointment of the
petitioner on deputation having been made
after approval by the Chairman, UIDAI
who was of the rank of Cabinet Minister of
the Government of India, repatriation order
could not have been passed without the
approval of such Chairman or the Hon'ble
Minister concerned in the Government of
India. Therefore, the impugned action is
not sustainable on this ground.

19. On the other hand Mr. Zoheb
Hossain, learned Counsel for the opposite
parties no. 1 & 2 contended as under:-

i.) He refuted the submission of
Shri Shireesh Kumar, learned Counsel for
the
petitioner,
that
the
OM
dated
17.06.2010 did not apply in view of Clause
6 of the subsequent DoPT OM dated
17.02.2016 by which it was modified and
which contained a provision for premature
repatriation. He contended that on the date
of taking the petitioner on deputation, the
UIDAI was not a statutory authority, as, the
Act, 2016 had not been promulgated nor
had the Regulations, 2020 been made under
the said Act. The UIDAI was at the
relevant time functioning in pursuance to a
notification
of
the
Planning
Commission/NITI Aayog dated 28.01.2009
as it's attached office and thereafter, it
functioned in pursuance to the notification
of the Department of Electronics and
Information Technology, Government of
India
dated
12.07.2016,
accordingly.
Therefore, in these circumstances, the
DoPT OM dated 17.06.2010 was clearly
applicable and in fact it was specifically
mentioned in the OM dated 10.10.2013 by
which applications were invited from
eligible persons desirous of coming on
deputation to UIDAI and in pursuance to
which the petitioner also applied, that the
terms and conditions of deputation would
be governed by the DoPT OM dated
17.06.2010. Furthermore, even in the order
of deputation of the petitioner dated
05.02.2014, it was clearly mentioned that
the terms and conditions of his deputation
during his tenure of deputation at UIDAI
would be governed by the DoPT OM dated
17.06.2010. Therefore, reliance placed
upon Clause 6 of the subsequent DoPT OM
dated 17.02.2016 by the learned Counsel
for the petitioner to contend that the OM
dated 17.06.2010 was not applicable, as,
the Central Government was neither the
lending department nor the borrowing
department, was not tenable, as, at the
relevant time UIDAI was functioning as an
attached office of the Planning Commission
and, thereafter, of the Department of
Electronics and Information Technology of
the Government of India. He contended
that the petitioner having come on
deputation as per the terms and conditions
10 All. Saurabh Gupta Vs. UIDAI & Ors.
423
mentioned in the OM dated 10.10.2013 and
as the order of deputation dated 05.02.2014
clearly mentioned about the applicability of
the DoPT OM dated 17.06.2010, therefore,
it was not open for him to resile from the
said condition and take a contrary stand
after having taken the benefit of same for 6
years. He also submitted that extension of
deputation of the petitioner after the third
year had been made with the specific
condition that the said deputation shall be
governed by the aforesaid DoPT OM,
which the petitioner accepted without
demurr.
The
last
extension
dated
13.02.2020 refers to the DoPT OM dated
23.02.2017 which in turn relies upon earlier
DoPT
OM
dated
17.06.2010
and
17.02.2016.

He further contended that Section
21 of the Act, 2016 regarding the terms and
conditions of the officers and employees of
the UIDAI was not notified till 25.07.2019,
when the Amending Act came into force.
Therefore, in view of Section 59 of the Act,
2016, the aforesaid notifications of the
Planning Commission dated 28.01.2009
and of the D.I.E.T. dated 12.09.2015 were
deemed to be operative even after coming
into force of the Act, 2016 till Section 21
was notified on 25.07.2019 with certain
modifications by the amending Act, 2019.
The contention was that the deputation of
the petitioner having been made prior to the
Act, 2016, it was governed by the DoPT
OM
referred
hereinabove
and
the
subsequent enactment of 2016 and the
Regulations of 2020 did not make them
inapplicable in his case, especially as, there
was nothing contrary in the said Act and
Regulations to the DoPT OM as regards the
subject matter covered by it. It was
submitted that the very extension of the
deputation of the petitioner was under
Clause 3 of the DoPT OM dated
17.02.2016.

ii.)
He
contended
that
a
deputationist does not have a vested right to
continue on the post of deputation. If the
deputation is for a fixed period, even then,
it can be curtailed on grounds of
unsuitability or unsatisfactory work. The
scope of judicial review in such cases is
very limited and the Courts are loathe to
interfere with the subjective decision of the
employer/borrowing
department
to
repatriate a deputationist based on some
rationale. The principles of natural justice
did not apply in such cases. A deputationist
can always be repatriated even if the
deputation is for a fixed term. He placed
reliance upon the decisions reported in
(2007) 2 SCC 138; Uttar Pradesh Gram
Panchayat, Adhikari Sangh Vs. Dayaram
Saroj; (2015) 4 SCC 164; Union of India
and another Vs. S.N. Maity and another;
2015
SCC
Online
Delhi;
Dayanand
Katariya Vs. Union of India and others;
2013 SCC Online Delhi 2768; Umesh
Kumar Vs. Union of India and others;
(2013) 12 SCC 433; Union of India Vs.
Bhanwar Lal Mundan.

iii.) The petitioner's deputation
had
been
curtailed
on
grounds
of
unsuitability or unsatisfactory work which
was permissible even as per the dictum of
the Supreme Court in S.N. Maity's Case
(Supra) which had been relied upon by the
petitioner. The Regional Office of UIDAI
recommended to the Headquarters at New
Delhi for repatriation of the petitioner in
view of the report of the internal Inquiry
Committee dated 04.03.2020 and the
assessment of the petitioner's work by his
immediate superior Officer, Shri Vivek
Kumar Daksh, Assistant Director General
as contained in his input dated 06.03.2020.
Therefore, not only there was rationale
behind
the
decision
to
curtail
the
petitioner's deputation and to repatriate him
to his parent organisation but there also
424 INDIAN LAW REPORTS ALLAHABAD SERIES
existed requisite material on which such
decision was based. He referred to the
aforesaid documents which are on record.

As regards the contention made
on behalf of the petitioner that he had
decided 95,000 complaints in the year 2019
he submitted that out of these 80,000 were
CRM complaints which were resolved
automatically at the level of the Operator
without the petitioner having to do
anything. He invited the attention of the
Court to the work distribution order to
drive home the point that the petitioner was
given the work of grievance redressal
which
was
an
important
facet
of
functioning of UIDAI. Based on the
aforesaid documents he contended that
there were several complaints pending
regarding which the petitioner did not take
requisite steps as had been stated by his
Reporting Officer in his report dated
06.03.2020 wherein he had expressed
dissatisfaction with the functioning of the
petitioner. Some of the complaints were
pending for more than a year. His
behaviour towards his colleagues and lower
rank officers as mentioned in the internal
inquiry report dated 04.03.2020 was also
not conducive to his continuance on
deputation at UIDAI. The decision was
thus bonafide, justified and permissible in
law and there was no scope for interference
with this decision under Article 226 of the
Constitution of India.

iv.) He invited the attention of the
Court to Section 18 (4) of the Act, 2016,
Regulation 2 (1) (b) of the Regulations,
2020 to contend that the Chief Executive
Officer had administrative control over the
officers and other employees of the
authority. He also invited the attention of
the
Court
to
Regulation
3
of
the
Regulations, 2020 which empowered the
Chief Executive Officer to implement the
said Regulations. Based on it he contended
that the decision communicated to the
petitioner vide order dated 16.03.2020 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 petitioner to the contrary
was not tenable on facts and in law. There
was no requirement under the Act, 2016 or
the Regulations, 2020 of taking the
approval of the Hon'ble Minister for
Electronics and Information Technology in
the Government of India before repatriating
the petitioner. He also contended that the
petitioner had taken contradictory stand on
this issue in his pleadings. At Page 6 of his
petition (synopsis), he concedes that the
Chief Executive Officer is the competent
authority to curtail his period of deputation
whereas at Page 15 of his Rejoinder
Affidavit dated 01.06.2020, he says that his
deputation can only be curtailed by the
Hon'ble Minister. The petitioner was not
brought on deputation to UIDAI with the
approval of the Hon'ble Minister but on the
recommendation
of
the
Departmental
Selection Committee.

v.) The petitioner has admittedly
not raised any plea of personal malafide
against any Officer who may have had
some role to play in the decision making,
resulting in curtailment of his deputation
and his repatriation. The Chief Executive
Officer joined towards the end of 2019 and
there are no allegations of personal
malafide against him. It is he who took the
decision to repatriate the petitioner albeit
on the recommendation of the Regional
Office
at
Lucknow.
The
immediate
superior Officer of the petitioner who was
also his Reporting Officer was posted in
UIDAI since 2016 but became the
immediate superior Officer of the petitioner
on 05.02.2020 and even against him no
personal malafides have been alleged. No
malafides had been alleged against the
10 All. Saurabh Gupta Vs. UIDAI & Ors.
425
opposite party no. 2 who was Head of the
Regional Office at Lucknow.

He submitted that as far as the
plea of legal malice was concerned, it is
evident from the records that the required
norms had been followed and there had
been no deviation from the settled norms
while deciding to curtail the deputation of
the petitioner and to repatriate him,
therefore, there is no question of any legal
malafide. He said that the submission of
Shri Shireesh Kumar, learned Counsel for
the petitioner that the entire UIDAI was
against the petitioner was unacceptable on
facts and in law. The decision had been
taken bonafide and there was no malafide
involved in it at all. He also contended that
the members of the internal Inquiry
Committee belonged to the Regional
Office, Ranchi and there is no allegation of
malafide against the said members also. As
regards the contention that they were under
the supervision of the Head of the Regional
Office at Lucknow, i.e. opposite party no.
2, during the course of arguments Shri
Hossain stated that he was merely looking
after the Regional Office at Ranchi
additionally and as it was an internal fact
finding by the Regional Office, therefore,
the opposite party no. 2 was justified and
well within his jurisdiction to constitute
such an internal Inquiry Committee so as to
ensure fairness by not including any
officers
from
the
Regional
Office,
Lucknow where the petitioner was posted.

vi.) He invited the attention of
the Court to the statement of the
petitioner as recorded on 03.03.2020
during the internal inquiry which clearly
demonstrated that he was shown the
complaints
dated
26.02.2020
and
27.020.2020 and was confronted with the
same, therefore, the contention of the
petitioner to the contrary that he came to
know about the complaints only through
the counter affidavit was blatantly false
and an attempt to mislead the Court. He
said that considering the nature of the fact
finding inquiry, there was sufficient
compliance of principles of natural
justice though these were not attracted in
case of deputation and repatriation.
Furthermore, the petitioner availed the
remedy of representation to the Chief
Executive Officer vide e-mail dated
24.03.2020 which was dismissed by the
Chief Executive Officer on 28.05.2020,
therefore due process of law has been
followed.
The
Regional
Office
at
Lucknow
comprised
of
only
18
officers/employees
out
of
which
a
substantial number of them complained
about the inappropriate behaviour of the
petitioner towards them.

vii.) The process of absorption
was put on hold on 12.03.2020 on
account of certain queries made by the
eligible
Officers
which
remained
unresolved and not, as stated by the
petitioner, to oust him from the zone of
consideration.
The
Chief
Executive
Officer took the decision and approved
the recommendation of the Regional
Office at Lucknow to repatriate the
petitioner on 12.03.2020 itself which was
communicated to the Regional Office by
the Headquarters on 16.03.2020. After,
12.03.2020,
16
officers
had
been
repatriated
back
to
their
parent
organisation from UIDAI, therefore, it is
not as if the absorption was put on hold
merely to harm the petitioner. Out of the
3 Deputy Directors, 2 at Regional Office,
Lucknow, including the petitioner had
been repatriated.

viii.) The order of deputation is a
simplicitor order which has been made well
within the ambits of law considering the
nature of deputation and the status of a
deputationist, for justifiable and bonafide
426 INDIAN LAW REPORTS ALLAHABAD SERIES
reasons and not by way of punishment.
Disputed questions of facts cannot be gone
into by this Court under Article 226 of the
Constitution of India.

20. Having noticed the facts, issues
and arguments advanced by the learned
Counsel for the parties, the Court now
proceeds to decide the relevant issues
involved.

21. Impugned order of repatriation
has been passed relying upon Clause 9 of
DoPT OM dated 17.06.2010. Clause 9
reads as under:-

" 9. Premature reversion of
deputationist to parent cadre.

Normally, when an employee is
appointed on deputation / foreign service,
his services are placed at the disposal of
the parent Ministry / Department at the end
of the tenure. However, as and when a
situation arises for premature reversion to
the parent cadre of the deputationist, his
services could be so returned after giving
an advance notice of at least three months
to the lending Ministry / Department and
the employee concerned."

22. It is in this context that the
petitioner relies upon Clause 6 of the DoPT
OM dated 17.02.2016 by which the earlier
OM dated 17.06.2010 was modified.
Clause 6 referred above reads as under:-

" 6.