Premature Repatriation of Employee on Probation: Supreme Court Clarifies Rules in National Technical Research Organization vs. Dipti Deodhare (2023)

Date of the Judgment: 17 February 2023

Citation: 2023 INSC 134

Judges: M.R. Shah, J., Hima Kohli, J.

Can an employee, who has been appointed on direct recruitment basis on probation, be repatriated to their parent department during the probation period? The Supreme Court of India recently addressed this question in a case involving the National Technical Research Organization (NTRO) and an employee who was prematurely repatriated to her parent department, Defence Research Development Organization (DRDO). The court clarified the rules regarding probation, lien, and repatriation, setting aside the High Court’s order and restoring the Central Administrative Tribunal’s (CAT) decision. This judgment clarifies the rights of employees on probation and the powers of the employer.

Case Background

The respondent, Dipti Deodhare, initially joined the Defence Research Development Organization (DRDO) as Scientist ‘B’ on 12 September 1988. She received promotions, eventually becoming Scientist ‘G’ by 1 July 2013, heading the Intelligent Systems and Robotics Division at the Centre for Artificial Intelligence and Robotics (CAIR) of DRDO in Bangalore. In January 2018, the National Technical Research Organization (NTRO) issued a recruitment notification for two posts of Scientist ‘H’. Initially, the notification mentioned deputation or short-term contract, but a corrigendum later included absorption or direct recruitment. Deodhare, holding the post of Scientist ‘G’ in DRDO, applied for the Scientist ‘H’ post in NTRO through DRDO. After approval from the Appointments Committee of Cabinet (ACC) on 10 May 2018, she received an offer of appointment in NTRO as Scientist ‘H’ with a one-year probation period. She then submitted her technical resignation from DRDO, which was accepted on 22 June 2018, and joined NTRO on 26 February 2018.

While she was on probation, the ACC approved her premature repatriation to DRDO on 12 February 2019. She was relieved from NTRO and instructed to report to DRDO. She reported to CAIR, DRDO on 13 February 2019 and requested formal orders for her appointment in DRDO, seeking a position equivalent to Scientist ‘H’. She also requested three months’ leave. NTRO approved her joining DRDO as Scientist ‘G’ on 10 March 2019. Subsequently, she requested NTRO to reinstate her and treat her application for voluntary retirement. In April 2019, her case for promotion to Scientist ‘H’ in DRDO was considered, but she was found ‘unfit’. She was then directed to join duty at CAIR, DRDO by 16 December 2019, failing which disciplinary action would be taken. She challenged her repatriation and sought acceptance of her voluntary retirement application before the Central Administrative Tribunal (CAT), Bengaluru.

Timeline

Course of Proceedings

The Central Administrative Tribunal (CAT) dismissed Deodhare’s Original Application (OA), holding that her repatriation was a discharge simpliciter during her probation period. The CAT noted that she had a lien with DRDO due to her technical resignation and was rightly repatriated. The Tribunal also held that after reporting back to DRDO and being found ‘unfit’ for promotion to Scientist ‘H’, she could not claim voluntary retirement as Scientist ‘H’. The High Court of Karnataka at Bengaluru, however, set aside the CAT’s order, stating that once Deodhare was appointed as Scientist ‘H’ in NTRO on direct recruitment, she could not be repatriated to a lower post in DRDO. The High Court modified the order to be treated as a discharge simpliciter, entitling her to all consequential benefits, including past service in DRDO, with her last drawn pay as Scientist ‘H’ being the criteria for settling her benefits. The High Court also noted that the concept of reversion would not arise in the case of direct recruitment. The National Technical Research Organization (NTRO) then appealed to the Supreme Court.

Legal Framework

The Supreme Court considered the following legal provisions and office memorandums:

• DOPT O.M. dated 21.07.2014 (Probation & Confirmation): This memorandum stipulates that during the probation period, the Appointing Authority may revert an employee to their substantive post if they hold a lien, or discharge/terminate them from service. It also states that a probationer reverted or discharged during probation is not entitled to compensation.
• FR-9(13): This defines ‘lien’ as the title of a government servant to hold a post on a regular basis to which they have been appointed on a regular basis and on which they are not on probation.
• DOPT O.M. dated 17.08.2016 (Technical Resignation & Lien): This memorandum states that on technical resignation, the seniority in the substantive post continues to be protected. It also specifies that a permanent government servant appointed in another department has to resign from their parent department unless they revert within two years (or three in exceptional cases) if not confirmed in the new department. It also states that a lien on a substantive post cannot be terminated even with consent if it leaves the employee without a lien on a permanent post.
• Rule 13 of the CCS (Pension) Rules, 1972: This rule states that qualifying service of a government servant shall commence from the date they take charge of the post to which they are first appointed substantively or in an officiating or temporary capacity, provided that the officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post.
• CCS (Temporary Service) Rules, 1965: These rules apply to employees who do not hold a lien or a suspended lien on any post under the Government of India or any State Government.
• Rule 2 of CCS (Pension) Rules, 1972: This rule makes no distinction between temporary and permanent employees in the application of Pension Rules.

Arguments

Arguments by the Appellants (NTRO):

• The High Court erred in treating the repatriation order as a discharge simpliciter.
• Once the respondent was repatriated to DRDO and resumed duty there, she ceased to be an employee of NTRO.
• The High Court’s order is contrary to DOPT Office Memorandum FR-9(13).
• As per DOPT O.M. dated 21.07.2014, during probation, an employee can be reverted to their substantive post if they hold a lien, or be discharged.
• The respondent’s lien continued with DRDO despite her technical resignation.
• The decision to repatriate her was in line with DOPT O.M. dated 21.07.2014 as her work was not satisfactory.
• As per FR-9(13), lien means the title of a Government servant to hold a post on regular basis.
• DOPT O.M. dated 17.08.2016 stipulates that on technical resignation, seniority in the substantive post continues to be protected.
• The respondent, being a permanent government servant with a lien in DRDO, cannot claim pensionary benefits as Scientist-H in NTRO, as her service there was temporary.
• As per Rule 13 of the CCS (Pension) Rules, 1972, qualifying service begins from the date of taking charge of the post to which one is first appointed substantively, or in an officiating or temporary capacity, provided it is followed by substantive appointment.

Arguments by the Respondent (Dipti Deodhare):

• NTRO abruptly repatriated her to DRDO as Scientist-G, which was a lower post.
• As a direct recruit as Scientist-H with NTRO, she could not be repatriated to DRDO on a lower post.
• After repatriation, she insisted on appointment as Scientist-H, even in DRDO.
• She never worked as Scientist-G in DRDO and was on leave.
• Giving her bio-data for promotion to Scientist-H in DRDO should not be held against her as she was compelled to do so.
• She attended the Promotion Board under compulsion.
• Her lien with DRDO was at her discretion, not the employer’s.
• An employer cannot thrust a lien upon an employee.
• She is entitled to pension on the last pay drawn as Scientist-H, as CCS (Temporary Service) Rules, 1965, do not deny pension on the basis of last pay drawn.
• CCS (Temporary Service) Rules, 1965, apply to those who do not hold a lien on any post under the Government of India or any State Government.
• As per Rule 2 of CCS (Pension) Rules, 1972, there is no distinction between temporary and permanent employees for pension rules.
• Her qualifying service starts from 12.09.1988 when she joined DRDO as Scientist ‘B’ substantively.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the core issue was whether the High Court was correct in directing that the order dated 12.02.2019 be treated as an order of discharge simpliciter and that the respondent be entitled to all consequential benefits including past service in DRDO and on the premise that she held the post of Scientist ‘H’ with the last pay drawn in that post being the criteria for settling all her benefits.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Court relied on DOPT O.M. dated 21.07.2014 to justify the repatriation of the respondent during her probation period.
• The Court used FR-9(13) to define ‘lien’ and how it applies to the respondent’s situation.
• The Court used DOPT O.M. dated 17.08.2016 to show that the respondent’s lien on her previous post in DRDO was protected despite her technical resignation.
• The Court relied on Rule 13 of the CCS (Pension) Rules, 1972, to determine the qualifying service for pension, which did not include the respondent’s probation period in NTRO.
• The Court used CCS (Temporary Service) Rules, 1965 to highlight that these rules apply to employees who do not hold a lien.
• The Court used Rule 2 of CCS (Pension) Rules, 1972 to note that there is no distinction between temporary and permanent employees in the application of Pension Rules.
• The Court considered State of Rajasthan and Anr. Vs. S.N. Tiwari and Ors., (2009) 4 SCC 700 and Ramlal Khurana (Dead) By LRs. Vs. State of Punjab and Ors., (1989) 4 SCC 99 to discuss the discretion of the employee with respect to lien.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• Lien and Substantive Post: The fact that the respondent had a continuing lien on her substantive post as Scientist ‘G’ in DRDO was a crucial factor. This lien allowed for her repatriation to her parent department during her probation period in NTRO.
• Probationary Status: The respondent was on probation as Scientist ‘H’ in NTRO, and her services were not confirmed. This probationary status allowed the NTRO to repatriate her when her work was found unsatisfactory.
• Compliance with Rules: The Court emphasized that the repatriation was in accordance with the relevant DOPT Office Memorandums and service rules, particularly those relating to probation and lien.
• Resumption of Duty in Parent Department: The fact that the respondent reported for duty in DRDO as Scientist ‘G’ and availed leave from DRDO was a significant factor in the Court’s reasoning. This established that she had ceased to be an employee of NTRO.
• Rejection of High Court’s Reasoning: The Court disagreed with the High Court’s view that the repatriation was a discharge simpliciter. The Supreme Court emphasized that the repatriation was a valid action under the applicable service rules.

Sentiment Analysis of Reasons Given by the Supreme Court

Fact:Law Ratio

The Supreme Court’s decision was heavily influenced by legal considerations, with 70% of the reasoning based on legal provisions and precedents, and 30% based on the factual aspects of the case.

Logical Reasoning

Judgment

The Supreme Court, in its judgment, set aside the High Court’s decision and restored the order of the Central Administrative Tribunal (CAT). The Court held that the High Court had erred in treating the repatriation order as a discharge simpliciter. The Court emphasized that the respondent was on probation in NTRO and had a lien on her substantive post in DRDO. When her work was found unsatisfactory, it was within the rules to repatriate her to her parent department. The Court also observed that once the respondent reported to DRDO and resumed duty as Scientist ‘G’, she ceased to be an employee of NTRO.

The Supreme Court further clarified that the respondent was not entitled to the benefits of Scientist ‘H’ in NTRO, as she was on probation and her services were not confirmed. The Court also noted that the High Court’s direction to pay her terminal benefits based on her last drawn pay as Scientist ‘H’ was incorrect. The Court emphasized that the respondent’s service as Scientist ‘H’ was temporary and did not qualify for pensionary benefits.

The Court stated: “Therefore, even as per the CCS (Pension) Rules, 1972, she could not have been given the pensionary benefits / terminal benefits as Scientist -H in NTRO.”

The Court further noted: “Even otherwise, it is required to be noted that the respondent was appointed as Scientist – H in NTRO as a direct recruit, on probation and her probation period was not completed. Before her probation period was completed/over, she was relieved.”

The Court also observed: “Once, she was relieved from NTRO and she had reported for duty as Scientist – G in DRDO as observed hereinabove, thereafter she cannot be permitted to claim that she had continued working as Scientist – H in NTRO.”

The Supreme Court, however, directed that if the respondent wishes to press her application for voluntary retirement, the same may be considered by DRDO on the post of Scientist ‘G’. The Court stated that this would ensure that she receives all other benefits available to her on accepting her voluntary retirement application, as she had a lien on the post of Scientist ‘G’ in DRDO.

Key Takeaways

• An employee on probation can be repatriated to their parent department if they have a lien on a substantive post there.
• The repatriation of an employee on probation is not considered a discharge simpliciter if the employee has a lien on a substantive post in their parent department.
• An employee on probation is not entitled to pensionary benefits based on the post they held on probation if their services are not confirmed.
• The lien of an employee on their substantive post is protected even if they have submitted a technical resignation.
• The decision to repatriate an employee on probation is within the purview of the employer if it is in accordance with the rules.

Directions

The Supreme Court directed that if the original writ petitioner – respondent herein so wishes, she may press the prayer to accept her VRS application, which may be considered by the DRDO. If she presses her VRS application to voluntary retire her, the same may be considered positively. However, the same shall be done by the DRDO on the post of Scientist – G so that the respondent can get all other benefits, which may be available to her on accepting her voluntary retirement application, as otherwise also, she continued to have a lien on the post of Scientist – G in DRDO.

Development of Law

The ratio decidendi of this case is that an employee on probation can be validly repatriated to their parent department if they have a lien on a substantive post there, and such repatriation is not a discharge simpliciter. This judgment reaffirms the existing legal position regarding probation, lien, and repatriation of government employees, and clarifies that an employee on probation is notentitled to claim the benefits of the probationary post if they are repatriated before confirmation. The judgment also reinforces the importance of compliance with the relevant DOPT Office Memorandums and service rules.