Premature Repatriation of Probationary Employee: Supreme Court Overturns High Court Decision in Service Law Matter (17 February 2023)

Date of the Judgment: 17 February 2023

Citation: (2023) INSC 123

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

Can an employee on probation be sent back to their previous job if their performance is not satisfactory? The Supreme Court of India recently addressed this question, clarifying the rules regarding repatriation of employees during their probation period. This case involves a dispute over the premature repatriation of an employee from the National Technical Research Organization (NTRO) to the Defence Research and Development Organisation (DRDO). The Supreme Court bench, comprising Justices M.R. Shah and Hima Kohli, delivered the judgment, overturning the High Court’s decision.

Case Background

The respondent, Dipti Deodhare, initially joined the Defence Research and Development Organization (DRDO) as Scientist ‘B’ on 12 September 1988. She received promotions over the years, 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) advertised two posts for Scientist ‘H’. Initially, the posts were to be filled on a deputation or short-term contract basis. Later, a corrigendum was issued to include absorption or direct recruitment as options. Ms. Deodhare, holding the position of Scientist ‘G’ in DRDO, applied for the Scientist ‘H’ post at NTRO through her parent department.

Following approval from the Appointments Committee of the Cabinet (ACC) on 10 May 2018, she received an offer of appointment at NTRO as Scientist ‘H’ with a one-year probation period. She accepted the offer and submitted a technical resignation from her post at DRDO, which was accepted on 22 June 2018. She then joined NTRO on 26 June 2018.

However, on 12 February 2019, while still on probation, the ACC approved her premature repatriation to DRDO. She was relieved from NTRO and instructed to report back to DRDO, which she did on 13 February 2019. She requested a formal order for her appointment in DRDO, seeking a position equivalent to Scientist ‘H’. Awaiting orders, she applied for three months’ leave on 19 February 2019. On 10 March 2019, NTRO approved her joining DRDO as Scientist ‘G’.

Subsequently, she requested NTRO to reinstate her, treating her application for voluntary retirement. Later, DRDO considered her for promotion to Scientist ‘H’ but found her ‘unfit’. She was then directed to report to CIAR, DRDO, by 16 December 2019, which she challenged by filing an Original Application (OA) before the Central Administrative Tribunal (CAT), Bengaluru.

Timeline:

Course of Proceedings

The Central Administrative Tribunal (CAT) dismissed Ms. Deodhare’s Original Application (OA), holding that her repatriation was a discharge simpliciter during her probation. The CAT noted that she had a lien with DRDO due to her technical resignation and was rightly repatriated. The Tribunal also stated that after reporting back to DRDO and being found unfit for promotion to Scientist ‘H’, she could not claim voluntary retirement on the higher post.

The High Court of Karnataka, however, set aside the CAT’s order, stating that once she 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 read as a discharge simpliciter and granted her consequential benefits, including past service at DRDO, with her last drawn pay as Scientist ‘H’ as the basis for her terminal benefits. The High Court also noted that the petitioner did not press for the prayer to accept the VRS application.

Legal Framework

The case revolves around the interpretation of several key legal provisions:

• Fundamental Rule 9(13) (FR-9(13)): This rule defines ‘lien’ as the title of a government servant to hold a post on a regular basis, either immediately or after a period of absence.
• DOPT O.M. dated 21.07.2014 (Probation & Confirmation): This memorandum allows the Appointing Authority to revert a probationer to their substantive post if they hold a lien, or discharge/terminate them. It also states that a probationer reverted or discharged is not entitled to compensation.
• DOPT O.M. dated 17.08.2016 (Technical Resignation & Lien): This memorandum protects the seniority of a government servant on technical resignation. It stipulates that a permanent government servant must resign from their parent department unless they revert within 2 years (or 3 in exceptional cases) if not confirmed in the new department. It also states that a lien cannot be terminated 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 for pension begins from the date a government servant takes charge of a post, either substantively or temporarily, provided the temporary service is followed by substantive appointment.

These rules and memorandums establish the framework for handling the employment, probation, and repatriation of government servants, and the protection of their lien and seniority.

Arguments

Arguments by the National Technical Research Organization (NTRO):

• NTRO argued that the High Court erred in treating the repatriation order as a discharge simpliciter.
• They submitted that once Ms. Deodhare was repatriated to DRDO and resumed duty there, she ceased to be an employee of NTRO.
• NTRO contended that the High Court’s order contradicted the DOPT O.M. regarding probation and lien.
• They emphasized that as per DOPT O.M. dated 21.07.2014, during probation, an employee can be reverted to their substantive post if they have a lien.
• NTRO argued that Ms. Deodhare’s lien with DRDO continued despite her technical resignation, and therefore, her repatriation was valid.
• NTRO cited DOPT O.M. dated 17.08.2016, stating that a lien cannot be terminated if it leaves the employee without a permanent post.
• NTRO stated that Ms. Deodhare was on temporary service while on probation in NTRO and thus, not eligible for pensionary benefits as Scientist ‘H’.
• NTRO referred to Rule 13 of the CCS (Pension) Rules, 1972, arguing that her qualifying service would not include her temporary service at NTRO.

Arguments by Dipti Deodhare:

• Ms. Deodhare argued that her repatriation to DRDO as Scientist ‘G’ was illegal, as she was appointed as Scientist ‘H’ in NTRO through direct recruitment.
• She contended that after her repatriation, she insisted on being appointed as Scientist ‘H’ in DRDO and never worked as Scientist ‘G’.
• She stated that her submission of bio-data for promotion to Scientist ‘H’ at DRDO was under compulsion and did not mean acceptance of her appointment as Scientist ‘G’.
• She argued that her lien was at her discretion, and the employer could not force it upon her.
• She cited the decisions in 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 support her argument that lien is at the discretion of the employee.
• She argued that even under CCS (Temporary Service) Rules, 1965, there is no bar on pension based on last pay drawn.
• She contended that as per Rule 2 of CCS (Pension) Rules, 1972, there is no distinction between temporary and permanent employees in pension matters.
• She argued that her qualifying service for pension should start from 12 September 1988, when she joined DRDO as Scientist ‘B’.

Submissions by Parties

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the following issues were considered:

• Whether the High Court was correct in treating the repatriation order dated 12.02.2019 as an order of discharge simpliciter.
• Whether the High Court was correct in directing that the respondent is entitled to all consequential benefits including the benefit of past services rendered in DRDO for computing terminal benefits from NTRO.
• Whether the High Court was correct in holding that the respondent would be entitled to all benefits as permissible to her on the premise that she held the post of Scientist ‘H’ and the last pay drawn in that post would be the criteria for settling all her benefits.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Cases:

• State of Rajasthan and Anr. Vs. S.N. Tiwari and Ors., (2009) 4 SCC 700 – The Supreme Court considered this case with respect to the discretion of the employee regarding lien. The Supreme Court did not agree with the interpretation of the High Court that lien is entirely at the discretion of the employee.
• Ramlal Khurana (Dead) By LRs. Vs. State of Punjab and Ors., (1989) 4 SCC 99 – The Supreme Court considered this case with respect to the discretion of the employee regarding lien. The Supreme Court did not agree with the interpretation of the High Court that lien is entirely at the discretion of the employee.

Legal Provisions:

• Fundamental Rule 9(13) (FR-9(13)): The court considered this rule to define ‘lien’.
• DOPT O.M. dated 21.07.2014 (Probation & Confirmation): The court considered this memorandum to understand the rules regarding probation and repatriation.
• DOPT O.M. dated 17.08.2016 (Technical Resignation & Lien): The court considered this memorandum to understand the rules regarding technical resignation and lien.
• Rule 13 of the CCS (Pension) Rules, 1972: The court considered this rule to understand the qualifying service for pension.

Authorities and Their Treatment

Judgment

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

How each authority was viewed by the Court?

• 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, but did not agree with the High Court’s interpretation that lien is entirely at the discretion of the employee.
• The Court relied on Fundamental Rule 9(13) (FR-9(13)) for the definition of ‘lien’.
• The Court relied on DOPT O.M. dated 21.07.2014 for the rules regarding probation and repatriation.
• The Court relied on DOPT O.M. dated 17.08.2016 for the rules regarding technical resignation and lien.
• The Court relied on Rule 13 of the CCS (Pension) Rules, 1972 for understanding qualifying service for pension.

What weighed in the mind of the Court?

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

• The fact that Ms. Deodhare had submitted a technical resignation from DRDO to join NTRO.
• The fact that her lien on the post of Scientist ‘G’ in DRDO continued.
• The fact that she was on probation as Scientist ‘H’ in NTRO and her services were not found satisfactory.
• The fact that she was repatriated to DRDO as per the rules and regulations and she had reported back to DRDO.
• The fact that she had applied for leave as Scientist ‘G’ in DRDO.
• The fact that she had applied for promotion to the post of Scientist ‘H’ in DRDO, and was found unfit.
• The fact that she had requested for reinstatement in NTRO which shows that she was relieved from NTRO.

The Court emphasized that the High Court’s decision was self-contradictory and that the respondent could not claim to have continued as Scientist ‘H’ in NTRO after being relieved and reporting back to DRDO.

Fact:Law

Logical Reasoning

Judgment Analysis

The Supreme Court overturned the High Court’s judgment, stating that the High Court had erred in treating the repatriation order as a discharge simpliciter. The Court emphasized that Ms. Deodhare was repatriated to her parent department, DRDO, as per the rules, and she had resumed duty there. The court also highlighted that her lien on the post of Scientist ‘G’ in DRDO continued despite her technical resignation, which was a crucial factor in the decision.

The Court rejected the High Court’s view that Ms. Deodhare was entitled to all benefits as if she had continued as Scientist ‘H’ in NTRO. The Supreme Court clarified that once she was relieved from NTRO and reported for duty in DRDO, she could not claim to have continued working in NTRO. The Court also noted that since Ms. Deodhare was on probation at NTRO, she was not eligible for pensionary benefits as Scientist ‘H’ under the CCS (Pension) Rules, 1972.

The Supreme Court stated:

“…once she reported for duty at CAIR, DRDO and she proceeded on leave for three months as Scientist – G at CAIR, DRDO on the post earlier held by her, i.e., Scientist – G, on which her lien in DRDO continued on her submitting the technical resignation earlier, she ceased to be the employee of NTRO and, that too, as Scientist – H in NTRO.”

The Court also observed:

“Even otherwise, the High Court has committed a serious error in observing that the original writ petitioner – respondent herein would be entitled to all such benefits as are permissible to her on the premise that she held the post of Scientist – H and the last pay drawn in that post would be the criteria for settling all her benefits. 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 Court also noted:

“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 restored the order of the Central Administrative Tribunal (CAT) but directed that if Ms. Deodhare wished to press her application for voluntary retirement, DRDO should consider it positively. This was to ensure that she could receive benefits available to her on voluntary retirement, as she continued to have a lien on the post of Scientist ‘G’ in DRDO.

Key Takeaways

• An employee on probation can be repatriated to their parent department if their performance is not satisfactory and if they hold a lien on a post in that department.
• A technical resignation does not necessarily terminate the lien of an employee on their previous post.
• An employee cannot claim to have continued working in a new organization after being relieved and reporting back to their parent department.
• Pensionary benefits are not available for temporary service during probation if the probation is not completed.
• The discretion of the employee regarding lien is not absolute, and the employer can repatriate the employee to the parent department if the rules and regulations are followed.

Directions

The Supreme Court directed that if Ms. Deodhare wishes to press her application for voluntary retirement, DRDO should consider it positively. This was to ensure that she could receive benefits available to her on voluntary retirement, as 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 a probationary employee can be repatriated to their parent department if their performance is not satisfactory, provided they have a lien on a post in that department. The Supreme Court clarified that the lien of an employee is not entirely at their discretion and that the employer can repatriate the employee to the parent department if the rules and regulations are followed. The court also clarified that pensionary benefits are not available for temporary service during probation if the probation is not completed. This judgment clarifies the scope of lien and repatriation during probation, which was not clearly defined before.

Conclusion

The Supreme Court’s judgment in the case of National Technical Research Organization & Others vs. Dipti Deodhare sets a precedent regarding the repatriation of probationary employees. The court overturned the High Court’s decision, emphasizing that a probationary employee can be repatriated to their parent department if their performance is not satisfactory, provided they have a lien on a post in that department. This judgment clarifies the rules regarding probation, lien, and repatriation in government service.