UNION OF INDIA & ANR.versusS.N. MAITY & ANR.

                         [2015] 1 S.C.R. 580


A                     UNION OF INDIA & ANR.
                                   V.
                          S.N. MAITY & ANR.
                   (Civil Appeal No.5983 of 2007)
                         JANUARY 06, 2015
B
         [DIPAK MISRA AND V. GOPALA GOWDA, JJ.]

           Service Law - Appointment on deputation - Pre-mature
    re;:::itriation - Respondent appointed on deputation basis for
C   a period of five years or until further orders, whichever was
    earlier - After serving for one year, repatriated to his parent
    department - Challenge to - Order of repatriation upheld by
    the tribunal, however, High Court set aside the same and
    issued direction to reinstate the respondent to the said post
D   - On appeal, held: The scrutiny of the notification of
    appointment makes it clear that it is a tenure posting, fixed
    for five years unless it is curtailed - However, this curtailment
    cannot be done in an arbitrary or capricious manner - There
    has to have some rationale - Merely because the words 'until
E   further orders' are used, it would not confer allowance on the
    employer to act with caprice - Thus, the order passed by the
    High Court upheld - However, the period has been over since
    last six years and the respondent has come back to his parent
    department, to subserve the cause of justice, respondent to
F   be paid the entire salary that was payable to him for the
    deputation post for the balance period with interest@ 9% p.a

         Allowing the appeal, the Court

         HELD: 1.1. It is not a case of simple transfer. It is not
G   a situation where one can say that it is a transfer on
    deputation as against an equivalent post from one cadre
    to another or one department to another. It is not a
    deputation from a Government Department to a

H                                 580
   UNION OF INDIA & ANR. v. S.N. MAITY & ANR.             581


Government Corporation or one Government to the other.          A
There is no cavil over the fact that the post falls in a
different category and the 1st respondent had gone
through the whole gamut of selection. On a studied
scrutiny, the notification of appointment makes it
absolutely clear that it is a tenure posting and the fixed       s
tenure is five years unless it is curtailed. But, a pregnant
one, this curtailment cannot be done in an arbitrary or
capricious manner. There has to have some rationale.
Merely because the words 'until further orders' are used,
it would not confer allowance on the employer to act with       c
caprice. [Para 16] [591-G-H; 592-A-B]

     1.2. The letter as regards the order of repatriation is
absolutely silent and it has curtailed the tenure of posting
without any justifiable reason. Regard being had to the
nature of appointment, that is, tenure appointment, it really D
cannot withstand close scrutiny. Therefore, the judgment
passed by the High Court lancinating the said order cannot
really be found fault with. Though the reasoning of the
High Court for axing the order of repatriation is accepted,
yet at this distance of time, it would be difficult to give effect E
to the direction for reinstatement in the post of CGPDTM.
The 1st respondent was appointed on 29.7.2003. The
period has been over since last six years. There had been
an order of status quo by this Court on 01.11.2006. The 1st
respondent has come back to his parent Department and F -
working in the post of Scientist-G. The appellant should
not suffer the loss of salary, but if direction is issued for
his reinstatement as the High Court has done, it would
create an anomalous situation. It would be not apt at this
juncture and, therefore, the cause of justice would be best G
subserved if he is allowed to get the entire salary that was
payable to him f:or the post of CGPDTM for the balance
period, that is, five years minus the period he had actually
served and drawn salary. The balance amount shall be
                                                                 H
    582       SUPREME COURT REPORTS             [2015] 1 S.C.R.


A   paid with interest @ 9% p.a. within three months hence.
    The submission that it was as tenure posting and,
    therefore, he is entitled to get the equivalent pay which he
    was holding as a tenure-post holder, cannot be accepted.
    [Paras 18, 19, 22, 23, 24] [593-D-F; 597-A-E; 598-B]
8
       Debesh Chandra Das V. Union of India 1970 (1)
  SCR 220: (1969) 2 SCC 158; Ashok Kumar Ratila/ Patel V.
  Union of India and Another 2012 (6) SCR 545: (2012) 7 SCC
  757; Sri Justice S.K. Ray V. State of Orissa and others 2003
C (1) SCR 434: (2003) 4 SCC 21; Union of India & Others V.
  Bhanwar Lal Mundan 2013 (8) SCR 559: (2013) 12 SCC 433
  - referred to.

                         Case Law Reference :
          1970 (1) SCR 220        Referred to      Para 9, 23
D
          2012 (6) SCR 545        Referred to      Para 13, 23
          2003 (1) SCR 434        Referred to      Para 20
          2013 (8) SCR 559        Referred to      Para 24
E
        CIVIL APPELLATE JURISDICTION : CIVIL APPEAL
    No.5983 of 2007.

        From the judgment and Order dated 18.05.2006 of the
    High Court of Jharkhand at Ranchi in Writ Petition (Service)
F   No.6106 of 2005.

       Tushar Mehta, ASG, Sushma Manchanda, Jatendra
    Mahapatra, 8. Krishna Prasad for the Appellants.

G       Colin Gonsalves, P. K. Pattanaik, A. P. Mohanthy, Praveen
    Swarup for the Respondents.

          The Judgment of the Court was delivered by.

        DIPAK MISRA, J.1. In this appeal, by special leave, the
H justifiability and soundness of the judgment and order dated
   UNION OF INDIA & ANR. v. S.N. MAITY & ANR.               583
               [DIPAK MISRA, J.]
18.5.2006 passed by the High Court of Jharkhand at Ranchi           A
in W.P.(Service) No. 6106 of2005 whereby the Division Bench
of the High Court has overturned the order passed by the
Central Administrative Tribunal ('tribunal' for short), Circuit
Bench at Ranchi in O.A. NO. 215 of 2005, is called in question.
                                                                    B
     2. Shorn of unnecessary details, the facts which are
requisite to be stated are that the 1st respondent was working
as a Scientist E-11 in the Central Mining Research Institute
(Council of Scientific and Industrial Research). On 29.07.2003,
he was appointed on deputation to the post of Controller            C
General of Patents, Designs and Trade Marks ( (for short,
'CGPDTM'). After serving there for one year, by order F.No. 81
52/2001-PP&C dated 31.8.2004, he was repatriated to his
parent department. The said order was challenged before the
tribunal contending, inter alia, that he could not have been pre-
maturely repatriated to his parent department and there had         D
been a violation of the principle of audi a/tram partem. The said
stand of the 1st respondent was contested by the authorities
of Union of India proponing, inter alia, that he had no right to
continue in the post as he was on deputation. Be it stated, some
reliefs were claimed with regard to the TA bills and salary for     E
certain period. The tribunal accepted the stance put forth by the
Union of India and dismissed the Original Application. However,
as far as payment regarding T.A. and salary for certain period
is concerned, the tribunal directed that the same should be
decided by the respondents ;:ifter due verification in              F
accordance with law.

     3. Being dissatisfied with the aforesaid decision of the
tribunal, the 1st respondent invoked the jurisdiction of the High
Court under Article 226 and 227 of the Constitution of India. G
The High Court posed two questions, namely, whether the order
F.No.8/52/2001-PP&C dated 31st August, 2004 issued by
Under Secretary to the Government of India, Ministry of
Commerce and Industry, Department of Industrial Policy & ·
Promotion repatriating the petitioner to his parent department
                                                                  H
    584       SUPREME COURT REPORTS                [2015] 1 S.C.R.


A   was illegal; and whether the petitioner had the right to cont~nue
    as Controller General of Patents, Designs and Trade Marks.

       4. The High Court after posing the questions took note of
  the fact that the Union of India had issued an advertisement in
B the Employment News dated 20/26.10.2001 calling for
  applications from eligible candidates for appointment to the
  post of CGPDTM and the Ministry had proposed to fill up the
  post by transfer on deputation, including short-term contract.
  The 1st respondent, being eligible, applied through his parent
c department i.e. Central Mining Research Institute, Dhanbad and
  his selection was made by the Union Public Service
  Commission (for short, 'the UPSC') which held interview on
  4.6.2002 and finding him suitable, recommended his name for
  appointment. The competent authority approved the
D appointment of the 1st respondent, the petitioner before the
  High Court, for the post of CGPDTM in the pay scale of
  Rs.18,400-500-22,400/- on deputation basis for a period of five
  years or until further orders, whichever was earlier from the date
  of assumption of the charge of the post The said order was
E communicated vide letter no. 8/52/2001-PP&C (Vol.II) dated
  23.6.2003 issued by the Deputy Secretary to the Government
  of India, Department of Industrial Policy and Promotion.
  Thereafter, a letter of appointment dated 11.8.2003 was issued
  to the 1st respondent in the name of the President, appointing
F him on deputation basis for a period of five years or until further
  orders, whichever was earlier.

       5. In pursuance of the aforesaid order of appointme1n the
  1st respondent joined the said post and continued to function.
  but after eleven months, the Under Secretary to the Government
G of India, Ministry of Commerce and Industry, Department of
  Industrial Policy and Promotion, issued an order dated F No.
  8/52/2001-PP&C dated 31.8.2004 repatriating him to his
  parent department. The High Court, taking note of the fa~tual
  backdrop, and the nature of the appointment .of the 1st
H respondent, came to hold that his appointment was not a case
   UNION OF INDIA & ANR. v. S.N. MAITY & ANR.                585
               [DIPAK MISRA, J.]

of simplicter deputation: that the employer did not have the         A
prerogative to get him repatriated to his parent department as
the controversy fundamentally related to appointment and the
source of appointment i.e. deputation on transfer; that the
principles inhered under Articles 14 and 16 were violated, for
the authorities did not disclose the ground for which such           B
appointment had been disturbed by repatriating him to the
parent department; that in the absence of any reasonable or
valid ground, the order was bound to be treated as arbitrary
thereby inviting the frown of Article 14 of the Constitution of
India; and that the Under Secretary to the Government of India       c
could not have passed the order of repatriation as the order of
appointment was issued by the President of India. Being of this
view, the High Court set aside the impugned order of
 repatriation and directed the writ petitioner to be reinstated in
the post of CGPDTM on similar terms and conditions with all          D
consequential benefits.

     6. We have heard Mr. Tushar Mehta, learned Additional
Solicitor General for the Union of India, Mr. Colin Gonsalves,
learned senior counsel for the respondent no. 1 and Mr.
Praveen Swarup, learned counsel for the respondent no.2.             E

     7. To appreciate the defensibility and legal pregnability of
the judgment and order passed by the High Court, it is
necessary to reproduce the Notification dated 7.8.2003 by
which the 1st respondent was appointed. It reads as follows:         F
                        "NOTIFICATION

     No. 8/52/2001-PP&C: The President is pleased to appoint
     Dr. S.N. Maity, Scientist E-11 of Central Mining Research
     Institute (Council of Scientific and Industrial Research) as    G
     Controller General of Patents, Designs and Trade Marks
     under the Ministry of Commerce and Industry (Department
     of Industrial Policy and Promotion) on deputation basis for
     a period of five years with effect from the forenoon of 29th
                                                                     H
    586        SUPREME COURT REPORTS                 [2015] 1 S.C.R.

A         July, 2003 or until further orders, whichever is earlier.
                                                                  Sd/-
                                                     (Y.P. Vashishat)
                                               Under Secretary to the
                                                       Govt. of India"
B
       8. From the aforesaid order, it is luculent that the 1st
  respondent was appointed on deputation basis for a period of
  five years or until further orders, whichever was earli• r.
  Submission of Mr. Tushar Mehta, learned ASG is that the order,
c as is demonstrable, being an order of deputation, it is the
  prerogative of the employer to recall him to the parent
  department without assigning any reason before the term of five
  years was over as such a rider was postulated in the order of
  appointment. Per contra, Mr. Gonsalves, learned senior counsel
  appearing for 1st respondent would contend that in the absence
0
  of any reason, such an order could not have been passed as
  that smacks of absolute arbitrariness which the law does not
  countenance. It is the stand of respondent no.2, Council for
  Scientific and Industrial Research (CSIR), that the 1st
E respondent had only gone on deputation and on being
  released, he was bound to come back to the parent
  department.

        9. On an anxious appreciation of the facts, which include
  issuance of an advertisement, selection process which led to
F eventual recommendation by the UPSC and the ultimate issue
  of Notification, it is extremely difficult to accept the submission
  of Mr. Tushar Mehta that it is a deputation by one department
  to another or to put it differently, the parent department had lent
  the services of the 1st respondent to the borrowing department.
G It is not a deputation simpliciter. The Notification by which the
  1st respondent was appointed has a different nature and
  character. Mr. Gonsalves, learned senior counsel has
  commended us to the decision in Debesh Chandra Das V.
  Union of lndia 1 • In the said case, the appellant, a member of
H 1.   (1969) 2 sec 1ss.
   UNION OF l~DIA & ANR. v. S.N. MAITY & ANR.               587
             ' [DIPAK MISRA, J.]
Indian Civil Service, was chosen by the Appointments A
Committee of the Cabinet to function as the Secretary,
Depaftment of Social Security and he continued in that
Department. Thereafter, he received certain communications
on June 20, 1966 and September 7, 1966 from the Cabinet
Secretary, which he construed them as reduction in rank and B
challenged the same in a writ petition in the High Court of
Calcutta on September 19, 1966. Many a ground was urged
contending, inter alia, that there was reduction in rank. The High
Court did not accept the contention and dismissed the writ
petition. It was contended before this Court on behalf of the       c
appellant that the reversion being in the nature of penalty, the
procedure under Article 311 (2) was required to be followed and
as there was gross violation of the same, the order passed by
the Government of India could not be sustained. The said
submission was countered by the Government of India urging, D
inter alia, that he was on deputation and the deputation could
be terminated at any time; that his order of appointment clearly
showed that the appointment was "until further orders"; that he
had no right to continue in Government of India if his services
were not required and his reversion to his parent State did not
                                                                    E
amount either to any reduction in rank or a penalty and, therefore,
the order was quite legal and justified.

    10. The Court, as is evident, referred to various Rules in
vogue, the Rules of Indian Administrative Service (Cadre Rules),
especially the "Constitution of Cadres", "Strength of Cadres",      F
"Deputation of cadre officers" and adverted to the concept of
'permanent post', 'temporary post' and 'tenure post' and
addressing the issue from various angles, held thus:

     "11. The position that emerges is that the cadres for the      G
     Indian Administrative Services are to be found in the States
     only. There is no cadre in the Government of India. A few
     of these persons are, however, intended to serve at the
     Centre. When they do so they enjoy better emoluments and
     status. They rank higher in the service and even in the        H
    588        SUPREME COURT REPORTS                  [2015] 1 S.C.R.


A         Warrant of Precedence of the President. In the States they
          cannot get the same salary in any post as Secretaries are
          entitled to in the Centre. The appointments to the Centre
          are not in any sense a deputation. They mean promotion
          to a higher post. The only safeguard is that many of the
B         posts at the Centre are tenure posts. Those of Secretaries
          and equivalent posts are for five years and for lower posts
          the duration of tenure is four years.

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

         11. After so stating, the Court adverted to the concept of
    reversion and stigma and in the ultimate eventuate ruled that:
E
          "16. We have shown above that he was holding a tenure
          post. Nothing turns upon the words of the notification "until
          further orders" because all appointments to tenure posts
          have the same kind of order. By an amendment of
          Fundamental Rule 9(30) in 1967, a form was prescribed
F         and that form was used in his case. These notifications
          also do not indicate that this was a deputation which could
          be terminated at any time. The notifications involving
          deputation always clearly so state the fact. Many
          notifications were brought to our notice during the argument
G         which bear out this fact and none to the contrary was
          shown. Das thus held a tenure post which was to last till
          July 29, 1969. A few months alone remained and he was
          not so desperately required in Assam that he could not
          continue here for the full duration. The fact that it was found
H         necessary to break into his tenure period close to its end
     UNION OF INDIA & ANR. v. S.N. MAITY & ANR.              589
                 [DIPAK MISRA, J.]

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

     12. After so holding, the Court opined that the appellant
was being reduced in rank with a stigma upon his work without
following the procedure laid down in Article 311 (2) of the
Constitution and consequently quashed the order of reversion         C
and directed retention of the appellant in a post comparable
to the post of a Secretary in emoluments till such time as the
tenure lasted.

      13. Mr. Gonsalves, learned senior counsel, has also drawn      D
inspiration from a recent authority in Ashok Kumar Ratilal Patel
V. Union of India and Anothe~. In the said case, the appellant
while functioning as Director, Computer Department in
Hemchandracharya North Gujarat University applied through
proper channel pursuant to the advertisement for the post of         E
Director under the All India Council for Technical Education (for
short "AICTE"), the 2nd respondent therein. Eventually, the terms
and conditions attached to the letter were issued. It contained
that the deputation would be for a period of one year and
extendable for a total period of three years on yearly basis. The    F
communication that was sent by the appellant therein to the
AICTE was to the effect that he had requested his University
to relieve him to join AICTE on deputation within the joining date
suggested by the Council. The University, in its turn, by letter
dated 20.2.2010 informed the 2nd respondent, AICTE, that the
approval of the deputation given by the Executive Council by         G
the University with further information that the appellant would
be relieved on 17.3.2010. The salary component was also
mentioned in the said letter. Thereafter, the AICTE, on receipt
2.   (2012) 7 sec 757.                                               H
    590       SUPREME COURT REPORTS                  [2015] 1 S.C.R.


A   of the letter from the University withdrew the offer of
    appointment issued to the appellant on the ground that the
    deputation from higher post to lower post was not admissible
    under the Rules. This Court reproduced the relevant portion of
    the grounds of the impugned order. Be it noted, after the offer
8   was cancelled, another advertisement was published which was
    also assailed by the appellant before the Gujarat High Court
    which also did not meet with any success. It was contended
    before this Court that his was not a case of transfer on
    deputation, but a case of appointment on deputation after
c   following all due procedure for appointment and selection and,
    therefore, in the absence of any illegality in selection, it was not
    open to the respondent to cancel the offer of appointment as
    that would fall foul of Article 14 of the Constitution of India. On
    behalf of the respondents, the grounds mentioned in the letter
    were urged i.e the person getting the higher scale of pay could
0
    not be deputed against a lower scale of pay; and that the
    appellant therein had no right to claim his entitlement to the post
    of Director, AICTE.

      14. In the above backdrop, this Court made a distinction
E between 'transfer on deputation' a11d 'appointment on
  deputation' and proceeded to lay down thus:

          "14. However, the aforesaid principle cannot be made
          applicable in the matter of appointment (recruitment) on
F         deputation. In such case, for appointment on deputation in
          the services of the State or organisation or State within the
          meaning of Article 12 of the Constitution of India, the
          provisions of Article 14 and Article 16 are to be followed.
          No person can be discriminated nor is it open to the
          appointing authority to act arbitrarily or to pass any order
G
          in violation of Article 14 of the Constitution of India. A
          person who applies for appointment on deputation has an
          indefeasible right to be treated fairly and equally and once
          such person is selected and offered with the letter of
          appointment on deputation, the same cannot be cancelled
H
   UNION OF INDIA & ANR. v. S.N. MAITY & ANR.              591
               [DIPAK MISRA, J.]
    except on the ground of nc:>n-suitability or unsatisfactory    A
    work.

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

    15. Eventually, taking note of the communications, this
Court directed as follows:

    "18. For the reasons aforesaid, the impugned order of
                                                                   0
    withdrawal of appointment dated 11-3-2010 and the order
    of the Division Bench of the Gujarat High Court cannot be
    sustained and they are accordingly set aside. As the post
    of Director is vacant, in view of the interim order of this
    Court dated 9-5-2011, we direct the 2nd respondent to
                                                                   E
    accept the joining of the appellant for a period of one year
    on deputation which is to be counted from the date of his
    joining and other terms and conditions of deputation will
    remain same. North Gujarat University is directed to
    relieve the appellant with further direction to the 2nd
    respondent to accept the joining of the appellant within one   F
    week from the date of reporting by the appellant."

      16. The controversy that has emerged in the instant case
is to be decided on the touchstone of the aforesaid principles
of law. We have already opined that it is not a case of simple     G
transfer. It is not a situation where one can say that it is a
transfer on deputation as against an equivalent post from one
cadre to another or one department to another. It is not a
deputation from a Government Department to a Government
Corporation or one Government to the other. There is no cavil      H
    592       SUPREME COURT REPORTS               [2015] 1 S.C.R.


A over the fact that the post falls in a different category and the
  1st respondent had gone through the whole gdmut of selection.
  On a studied scrutiny, the notification of appointment makes it
  absolutely clear that it is a tenure posting and the fixed tenure
  is five years unless it is curtailed. But, a pregnant one, this
B curtailment cannot be done in an arbitrary or capricious manner.
  There has to have some rationale. Merely because the words
  'until further orders' are used, it would not confer allowance on
  the employer to act with caprice.

      17. Presently, we shall scrutinise under what circumstances
C the order of repatriation has been issued. The impugned
  communication dated 17.1.2005 by the Under Secretary to the
  Government of India, reads as follows:

                        "Immediate/confidential
D
                       No. 10/7/2004-EO(SM.ll)

                         Government of India

             Secretariat of the appointments committee of
E
                             The Cabinet

          Ministry of Personnel, Public Grievances & Pensions

                  Department of Personnel & Training
F
               New Delhi, dated the 17th January, 2005

          Reference correspondence resting with department of
          Industrial Policy & Promotion DO No. 8/52/2001-PP&C,
          dated 9.12.2004.
G
          2. The appointments committee of the Cabinet has
          approved the following proposals:

          i. Premature repatriation of Dr. S.N. Maity, controller
          General of Parents, Designs and trade Marks (CGPDTM)
H
   UNION OF INDIA & ANR. v. S.N. MAITY & ANR.                 593
               [DIPAK MISRA, J.]
    to his parent department w.e.f. 31.08.2004 (AN) and               A

    ii. entrusting current charge of the post of controller General
    of Patents, Designs and Trade Marks (CGPDTM) to Shri
    S. Chandrasekaran, Joint Controller of Patents and
    Designs w.e.f. 1st September, 2004 for a period of 1 year,
                                                                      B
    within which, the Department may be directed to finalise
    selection of a regular incumbent of the post.
                                                           Sd/-
                                            (Ravindra Kumar)
                         Under Secretary to the Govt. of India"       c
     18. The order is absolutely silent on any aspect. An
argument has been advanced by Mr. Gonsalves, learned senior
counsel for the 1st respondent that this letter was issued
because of some frivolous complaints made against the 1st
respondent and also regard being had to his stern and strict          D
dealings by him pertaining to certain aspects. Be that as it may,
the letter is absolutely silent and it has curtailed the tenure of
posting without any justifiable reason. Regard being had to the
nature of appointment, that is, tenure appointment, it really
cannot withstand close scrutiny. Therefore, the judgment              E
passed by the High Court lancinating the said order r.:;rnnot
really be found fault with.

     19. Though we have accepted the reasoning of the High
Court for axing the order of repatriation, yet at this distance of
time, we find it difficult to give effect to the direction for        F
reinstatement in the post of CGPDTM. The 1st respondent was
appointed on 29.7.2003. The period is since long over. The
stand of the 2nd respondent is that the 1st respondent, after
being relieved, joined in his parent department on 16.11.2004
and has been holding the post of Scientist-G w.e.f. 13.2.2007         G
and continuing on the same post. It is also the stand of the
respondents that a new person has been holding the post.
                   .              .
     20. Mr. Gonsalves, learned senior counsel would submit
with empha~is that the 1.st respondent should be allowed to           H
     594      SUPREME COURT REPORTS                  [2015] 1 S.C.R.


A    function for the rest of the period of the tenure which he could
     not because of unwarranted interference, as that would not only
     sub-serve the cause of justice but also would be· a redemption
     of a cause which has been scuttled and strangulated. Resisting
     the aforesaid stand it is submitted by Mr. Tushar Mehta, learned
B    ASG for the Union of India that the expiry of six years of time
     has to be kept in view, for it would be extremely difficult to put
     the clock back. In this context, we may refer with profit to an
     authority in Sri Justice S.K. Ray V. State of Orissa and others2.
     We a~2 conscious that the factual matrix in the said case was
C    different, but we are referring to it for the purpose of analogy.
     In the said case, the appellant, formerly a Chief Justice of the
     Orissa High Court was appointed as the Lokpal under the
     Orissa Lokpal and Lokayuktas Act, 1970. The said enactment
     was repealed by the Orissa Lokpal and Lokayuktas (Repeal)
     Ordinance, 1992 which came into effect on 16. 7.1992. He
D    ceased to hold the office of Lokpal. The said Ordinance was
     subsequently replaced by the Orissa Lokpal and Lokayuktas
     (Repeal) Act, 1992. The appellant therein filed a writ petition
     before the High Court contending that he incurred certain
     disabilities in ceasing to hold office being ineligible for further
E.   employment under the State Government or any other
     employment under an office in any such local authority,
     corporation, government company or society, which is subject
     to the control of the State Government and which is notified by
     the Government in that behalf. He claimed for compensation
F    for loss of salary for the remainder period of "his tenure as
     Lokpal, pension with effect from 16-7-1992 as per Rule 7 of
     the Orissa Lokpal (Conditions of Service) Rules, 1984, refund
     of the amount of pension deducted from his salary during the
     period 17-8-1989 to 16-7-1992 and payment of encashment
G    value of unutilised leave which accrued to him during the period
     17.8.1989 to 16.7.1992.

        21. The High Court declined to grant him the
     compensation for loss of salary; but certain other reliefs were
H 3. c2003) 4 sec 21.
   UNION OF INDIA & ANR. v. S.N. MAITY & ANR.                 595
               [DIPAK MISRA, J.]
granted by the High Court which need not be referred to. This         A
Court adverted to the issue whether the appellant was entitled
to any compensation for loss of salary for the remainder period
of his tenure as Lokpal, which stood curtailed by latter
enactment. The Court also took note of the fact of repeal,
abolition of post and ultimately opined that in the obtaining         B
factual matrix therein, adequate compensation shr,ulc .·e
granted and the compensation should be the ,oss of his salary
for the remainder tenure for which he would have held the office
of Lokpal.

     22. We will be failing in our duty, inter alia, if we do not     C
state the rationale behind that direction. It is as follows:

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

     10. The learned counsel for the respondents contended
     that loss of employment in such a situation is only a            H
    596        SUPREME COURT REPORTS                  [2015] 1 S.C.R.


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

          11. The learned counsel for the respondents further
D         submitted that the appellant had not presented his case or
          claimed compensation for loss of future employment but
          has claimed only the loss for the present tenure and,
          therefore, we should not grant any relief to him. A writ
          petition, which is filed under Article 226 of the Constitution,
E         sets out the facts and the claims arising thereto. Maybe,
          in a given case, the reliefs set forth may not clearly set out
          the reliefs arising out of the facts and circumstances of the
          case. However, the courts always have the power to mould
          the reliefs and grant the same."
F
        23. We repeat at the cost of repetition that we are
  absolutely conscious in the said case, the situation was
  different, but the Court moulded the relief and granted the
  compensation. The Court did not think to go for the alternative
G i.e. once there is an abolition of post, the restrictions of holding
  office would not be attracted to him. The Court did not think of
  the second situation as the result would be incongruous and
  baffle all logic. We ingeminate that we have referred to that
  authority only to keep in view, in certain circumstances relating
  to curtailment of tenure, the Court can mould the relief
H
     UNION OF INDIA & ANR. v. S.N. MAITY & ANR.             597
                 [DIPAK MISRA, J.]
depending upon the fact situation. In the obtaining factual         A
scenario, the period has been over since last six years. There
had been an order of status quo by this Court on 01.11.2006.
The 1st respondent has come back to his parent Department
and working in the post of Scientist-G. In distinction to the
decision in Debesh Chandra Das (supra), the period of tenure        B
is not available which was there in the said case. Similarly, in
Ashok Kumar Ratilal Patel (supra), the appellant was not
appointed and, therefore, the Court directed the authorities to
appoint him as per the orders of appointment. In the present
case, we are of the considered view, the appellant should not       C
suffer the loss of salary, but if we direct for his reinstatement
as the High Court has done, it will create an anomalous
situation. It would be, in our considered view, not apt at this
juncture and, therefore, the cause of justice would be best
subserved if he is allowed to get the entire salary that was
 payable to him for the post of CGPDTM for the balance period,      D
that is, five years minus the period he had actually served and
drawn salary. The balance amount shall be paid with interest
 @ 9% p.a. within three months hence.

      24. Another aspect that has been highlighted before us by     E
Mr. Gonsalves is that the 1st respondent should be entitled to
draw the same salary that he was drawing on the basis of his
last pay drawn when he came back to his parent Department.
It is an admitted fact that he was drawing a higher scale while
holding the post of CGPDTM, but the question is whether the         F
said pay scale should be maintained in the parent department.
Mr. Praveen Swarup, learned counsel appearing for the 2nd
respondent has commended us to the decision in Union of
India & Others V. Bhanwar Lal Mundan 4 . In the said case, a
deputationist was getting a higher scale of pay in the post while   G
he was holding a particular post as deputationist. After his
repatriation to the parent department, on selection to higher
post, he was given higher scale of pay as it was fixed keeping

4.   (2013) 12 sec 433.
                                                                    H
    598          SUPREME COURT REPORTS            [2015] 1 S.C.R.


A in view the pay scale drawn by him while he was working in
  the ex-cadre post. In that context, this Court opined that such
  fixation of pay was fully erroneous and, therefore, the authorities
  were within their domain to rectify it. Mr. Gonsalves, learned
  senior counsel would submit that here it was as tenure posting
B and, therefore, he is entitled to get the equivalent pay which he
  was holding as a tenure-post holder. The said distinction, on a
  first glance, may look attractive, but on a deeper scrutiny, has
  to pale into insignificance. Assuming he would have completed
  the entire tenure of five years, he would have definitely come
C back to his parent department. There is no rule or regulation
  that he will ge·t the equivalent pay scale in his parent
  department. The normal rule relating to pay scale has to apply
  to avoid any kind of piquant and uncalled for situation.
  Therefore, the submission does not commend acceptation and
  accordingly we repel the same.
0
        25. Consequently, the appeal is allowed to the extent
  indicated above. There shall be no order as to costs.

    Nidhi Jain                                         Appeal allowed.