w w w . L a w y e r S e r v i c e s . i n



Saurabh Gupta v/s Unique Identification Auth. of India Thru C.E.O & Others


Company & Directors' Information:- GUPTA CORPORATION PRIVATE LIMITED [Active] CIN = U40100MH2005PTC154038

Company & Directors' Information:- M R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1992PTC051324

Company & Directors' Information:- SAURABH (INDIA) PRIVATE LIMITED [Active] CIN = U74899DL1994PTC059163

Company & Directors' Information:- GUPTA INDIA PRIVATE LIMITED [Active] CIN = U51311DL1996PTC077255

Company & Directors' Information:- GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U52110DL1974PTC007339

Company & Directors' Information:- A. SAURABH AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1983PTC015394

Company & Directors' Information:- GUPTA AND GUPTA PRIVATE LIMITED [Active] CIN = U55204DL1954PTC002390

Company & Directors' Information:- S K GUPTA PRIVATE LIMITED [Active] CIN = U26900MH1973PTC016294

Company & Directors' Information:- R. K. GUPTA AND COMPANY INDIA PRIVATE LIMITED [Active] CIN = U74899DL1993PTC052138

Company & Directors' Information:- B R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U63013DL2000PTC107343

Company & Directors' Information:- T N GUPTA PVT LTD [Active] CIN = U02005WB1951PTC020141

Company & Directors' Information:- UNIQUE INDIA PRIVATE LIMITED [Strike Off] CIN = U65999DL1985PTC021157

Company & Directors' Information:- A V GUPTA AND COMPANY PRIVATE LIMITED [Converted to LLP] CIN = U24239DL1999PTC102248

Company & Directors' Information:- Y P GUPTA AND COMPANY PVT LTD [Under Process of Striking Off] CIN = U74899DL1983PTC016661

Company & Directors' Information:- J S GUPTA AND CO PVT LTD [Strike Off] CIN = U20211UP1975PTC004078

Company & Directors' Information:- M K GUPTA AND CO PRIVATE LTD [Strike Off] CIN = U74999DL1979PTC009517

Company & Directors' Information:- A J GUPTA AND CO PRIVATE LIMITED [Strike Off] CIN = U74210UP1980PTC004986

Company & Directors' Information:- D. R. GUPTA & COMPANY PRIVATE LIMITED [Strike Off] CIN = U74899DL1944PTC000794

Company & Directors' Information:- S P GUPTA AND CO PVT LTD [Strike Off] CIN = U26932RJ1972PTC001459

    Service Single No. 8234 of 2020

    Decided On, 01 October 2020

    At, High Court Of Judicature At Allahabad Lucknow Bench

    By, THE HONOURABLE MR. JUSTICE RAJAN ROY

    For the Petitioner: Shireesh Kumar, Advocate. For the Respondent: Suryabhan, Zoheb Hossain, Advocates.



Judgment Text

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.The petitioner is an employee of MMTC, Jaipur. In pursuance to office memorandum dated 10.10.2013 inviting 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."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.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.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.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.It is not in dispute that on 13.02.2020 the petitioner's deputation was 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.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.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.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 Officer reported that the work of the petitioner was unsatisfactory and not up to the mark.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.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.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.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.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.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.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 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.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.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 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.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 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 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 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 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.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.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."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. It is also clarified that cases which are not covered by the OM dated 17.06.2010 including those where Central Government is neither lending authority nor borrowing authority, will continue to be decided in terms of the relevant provisions / rules / instructions etc. governing them."The contention on behalf of the petitioner was that the lending and borrowing organisations, neither being departments of the Central Government, OM dated 17.06.2010 became inapplicable in view of Clause 6 of OM dated 17.02.2016, hence, reliance upon Clause 9 thereof to repatriate the petitioner was bad.UIDAI became a statutory authority and an autonomous body w.e.f 12.07.2016 when it was notified as such under Section 11 of the Act, 2016. Prior to 12.07.2016, UIDAI functioned as an attached office of the Planning Commission having been established as such by the notification dated 28.01.2009 and thereafter it functioned accordingly as an attached office of the Department of Electronics and Information Technology of the Government of India in view of notification dated 12.09.2015 by which the allocation of business rules were revised by the Government of India. Thus, till 11.07.2016 UIDAI functioned as part of the Planning Commission/Department of Electronics and Information Technology of the Government of India and Rules/OM of DoPT, Government of India regarding deputation etc. including the DoPT OM dated 17.06.2010 and 17.02.2016 were applicable to UIDAI. The Act, 2016 had not even been promulgated by then, therefore, the status of UIDAI was that of an attached office in the aforesaid Commission/Department under the Government of India.At this very stage it needs to be mentioned that the petitioner came on deputation in the year 2014 when UIDAI was still functioning as an attached office of the Planning Commission of the Government of India and his selection as also tenure of deputation were governed by the aforesaid DoPT OM's dated 17.06.2010 which was subsequently modified by OM dated 17.02.2016 and this fact was mentioned in the OM dated 10.10.2013 in pursuance to which the petitioner applied for being appointed on deputation as also in the order of his deputation dated 05.02.2014. Clause 6 of the DoPT OM dated 17.02.2016 therefore did not make these OM's inapplicable, at least till 11.07.2016 i.e. prior to Act, 2016 coming into force, if not, even thereafter.It is not out of place to mention that the Act, 2016 came into force on 12.07.2016 and the UIDAI was established by a notification under Section 11 of the said Act on 12.07.2016 itself. However, all the provisions of the Act, 2016 were not notified in terms of Section 1 (3) of the said Act, instead, Section 11 - 20, 22 - 23 and Section 48 - 59 came into force on 12.07.2016 as per notification issued in this regard under Section 1 (3) of the Act, 2016. Section 1 - 10 and 24 - 47 of the said Act came into force on 12.09.2016 vide a notification of the same date under Section 1 (3) of the Act, 2016.Section 21 of the Act, 2016 dealing with terms and conditions of service of officers and employees of UIDAI was not notified as per Section 1 (3) of the said Act at that time nor any regulations as are referred therein were framed prescribing the terms and conditions of service of officers and employees. In fact, the said provision, without being notified, was amended vide Act, 2019, which was published in the Gazette on 23.07.2019 and Section 1 to 30 of the Act, 2019 came into force on 25.07.2019 by a notification of the same date issued under Section 1 (2) of the Act, 2019. By the amendment in Section 21, the requirement of approval of the Central Government as was required under the unamended Section 21 was done away with.The regulations as are referred in Section 21 of the Act, 2016 were framed and notified only on 21.02.2020. Regulations no. 1 of 2020 which has already been referred earlier are relevant for the case at hand.In this context Section 59 of the Act, 2016 is relevant and it reads as under:-" 59. Anything done or any action taken by the Central Government under the Resolution of the Government of India, Planning Commission bearing notification number A-43011/02/2009-Admin. I, dated the 28th January, 2009, or by the Department of Electronics and Information Technology under the Cabinet Secretariat Notification bearing notification number S.O. 2492(E), dated the 12th September, 2015, as the case may be, shall be deemed to have been validly done or taken under this Act. "In view of the above quoted provision as UIDAI functioned as an office of the Central Government therefore, any action taken under the notification dated 28.01.2019 by which it was established as an attached office of the Planning Commission and the subsequent notification dated 12.09.2015 by which it was made an attached office of DIET, Government of India, are to be deemed to have been validly done or taken under the Act, 2016. The exercise of selection and appointment of the 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.In view of the above as unamended Section 21 of the Act, 2016 had not been notified under Section 1 (3) of the said Act and as no regulations had been framed as referred therein regarding terms and conditions of service of officers and employees of UIDAI, the tenure of deputation of the petitioner continued to be governed by the DoPT OM's dated 17.06.2010 and 17.02.2016 in accordance with the terms of deputation mentioned in the OM dated 10.10.2013 and the order of deputation of the petitioner dated 05.02.2014 at least till 21.02.2020, when, the regulations namely UIDAI (appointment of officers and employees) Regulations, 2020 were notified under Section 21 of the Act, 2019.Question is, whether, once the Regulations, 2020 were notified, the OM's dated 17.06.2010 and 17.02.2016 became inapplicable?, and, whether, in the absence of any provision for repatriation or curtailment of deputation in the Regulations, 2020, the impugned order of repatriation dated 16.03.2020 is illegal?Firstly, even in case of appointment on deputation based on selection, repatriation to parent organisation is permissible on grounds of unsatisfactory work or unsuitability. It cannot be done capriciously or arbitrarily but, if there is a rationale behind such decision it is permissible to do so. This legal positon is clear even from the dictum of the Supreme Court in S.N. Maity's (Supra) case upon which heavy reliance was placed by the petitioner's Counsel as also the earlier decision in Ashok kumar Patil Vs. Union of India; (2012) 7 SCC 757.Moreover, permissibility of repatriation during period of deputation as aforesaid is implicit in the very concept of deputation and it is not dependent on existence of a specific provision for repatriation in the statute or rules, unless the scheme of the Act/Rules intends otherwise. Concept of repatriation is inherent in the concept of deputation as long as the deputationist has not been permanently absorbed in the borrowing department and his lien has not been terminated in his parent organisation. This is considering the very nature of deputation and the absence of any indefeasible right to continue in the borrowing department. This is so even in case of an appointment on deputation based on selection, which is to be treated as slightly different from conventional deputation, in view of S.N. Maity's case (Supra) and the case of Ashok Kumar Patil (Supra). The only requirement in a case of appointment by deputation based on selection is repatriation cannot be done malafide, arbitrarily or merely because a person is on deputation. It can only be resorted on bonafide grounds of unsuitability or unsatisfactory work. There has to be some rationale behind such decision. Meaning thereby, even if the aforesaid OM's are held to be inapplicable w.e.f. 20.01.2020, repatriation was permissible for the reasons already given hereinabove.On perusal of the Act, 2016, the Court finds that there is no specific provision of recruitment and appointment including by a way of deputation instead there is a general provision contained in Section 21 as amended by the Act, 2019 which speaks of determination/specification of terms and conditions of officers and employees of UIDAI by regulations to be made by the UIDAI. Section 54 of the Act also empowers the UIDAI to frame such regulations. As already stated, Regulations, 2020 made by UIDAI were notified on 21.02.2020. Regulation 11 thereof deals with deputation and reads as under:-" 11. Deputation.- (1) The posts which are to be filled up by the method of deputation would be widely circulated among such Ministries or Departments of the Central Government, State Governments, Administration of Union Territories, Public Sector Undertakings and Statutory and Autonomous Bodies which are expected to have people with the qualifications and experience matching the requirements of the Authority and willing to join the Authority on deputation.(2) The selection of candidates for appointment on deputation basis shall be made on the recommendations of the Selection Committee.(3) All appointments made on deputation in the Authority under these regulations shall initially be for a period not exceeding five years which may be extended for such period and in such manner as prescribed by the Authority from time to time."As per Sub-regulation (3) initially all appointments made on deputation are required to be made for a period not exceeding 5 years which may be extended for such period and in such manner as prescribed by the authority i.e. UIDAI from time to time. No such decision of the "authority" as defined in Section 2 (e) of the Act, 2016 i.e. UIDAI, has been placed before the Court prescribing any period beyond 5 years up to which the deputation under Regulation 2020 could be extended nor the manner of such extension as having been prescribed by UIDAI has been placed before the Court. It being a specific power of regulation of the terms and conditions of service vested with the UIDAI, it has to be performed by it and none else. If the argument of the petitioner's Counsel that DoPT OM's dated 17.06.2010 and 17.02.2016 became inapplicable w.e.f. 21.02.2020, in view of Regulations, 2020, then, the logical corrollary of it would be that he would have to be repatriated, as his term of 5 years expired in February, 2019 and no such decision of the authority as defined in Section 2 (e) of the Act, 2016 has been brought on record prescribing the permissible period of extension of deputation beyond 5 years and the manner of doing it under Regulation 11 (3) of the Regulations, 2020. Thus, the extension of petitioner's deputation vide order dated 13.02.2020 wherein an OM dated 23.02.2017 has been referred which according to the opposite party is in continuation of the OM's dated 17.06.2010 and 17.02.2016 will itself fall in jeopardy being contrary to Regulations, 2020.Irrespective of the aforesaid, there is nothing in the Regulations, 2020 which may persuade this Court to hold that a person on deputation cannot be repatriated, not even on grounds of unsuitability and unsatisfactory work even though he has not been absorbed in UIDAI under the said Regulations. The scheme of the Regulations, 2020 do not lend support to such a view, which is also contrary to the general concept of deputation and repatriation as already discussed.Regulation 5 of the Regulations, 2020 merely gives such deputationist the right of being considered for absorption and of being offered absorption in UIDAI if they continue to hold the post mentioned in the Schedule annexed to the said regulations that too subject to conditions contained therein. Absorption under the Regulations, 2020 is not as a matter of right but is based on a consideration by a selection committee on the parameters mentioned in the said regulation. It does not promise absorption as a matter of right. A deputationist could be considered for absorption under the Regulations, 2020 but he may not be found suitable. Moreover, the petitioner has not been absorbed in the borrowing department nor has his lien been terminated in the parent organisation, therefore, he could, for justifiable reasons based on his unsuitability and unsatisfactory work, be repatriated to his parent organisation by a bonafide decision of the competent authority.Merely because there is no specific provision of repatriation of a deputationist or curtailment of deputation in the Regulations, 2020 it cannot be said that such a person cannot be repatriated as aforesaid or his deputation cannot be curtailed. As already stated, repatriation is implicit in the very nature of deputation. In the case of appointment by deputation also this can be done on grounds of unsuitability and unsatisfactory work, by a bonafide decision. This is the position even after assuming that w.e.f. 21.02.2020 DoPT OM's dated 17.06.2010 and 17.02.2016 became inapplicable as otherwise the said OM contains a specific provision governing repatriation by way of Clause 9 of OM dated 17.06.2010.Most importantly the order of petitioner's deputation dated 05.02.2014 categorically mentioned that the deputation of the petitioner was for a period of 3 years or until further orders. The word 3 years from the date of taking charge are followed by the words 'until further orders' which is indicative of the clear intent that deputation could be curtailed prior to 3 years and petitioner could be repatriated even earlier. Of course, there is no magic attached to the words "until further orders" as observed by the Supreme Court in S.N. Maity's case (Supra) but in the said decision itself repatriation has been held to be permissible even in a case of selection based deputation albeit on ground of unsatisfactory work, unsuitability and rationality. In view of the above, repatriation was permissible even under the Regulations, 2020.Now coming to the applicability of the OM's, once the UIDAI became a statutory authority under Section 11 of the Act, 2016 w.e.f. 12.07.2016 then it became an autonomous body and did not remain an office of the Government of India and DoPT OM's were not automatically applicable to it from 12.07.2016, however, in view of Section 59 of the Act, as the actions of the Central Government taken in respect of UIDAI prior to 12.07.2016 under the notification dated 28.01.2009 and 12.09.2016 were protected as being validly taken under the Act, 2016, therefore, as UIDAI functioned as an attached office of the Planning Commission and DIET, Government of India prior to 12.07.2016 when the petitioner was taken on deputation in UIDAI by the order dated 05.02.2014 according to which his tenure of deputation was to be governed by DoPT OM dated 17.06.2010 (which was modified by OM dated 17.02.2016), therefore, in view of Section 59 of the Act, 2016, the said OM's, in the absence of any regulations under Section 21 of the Act, 2016 to the contrary, continued to govern the terms of his deputation at least till 20.01.2020 and they continued to apply to his deputation to the extent they were not inconsistent with the Act, 2016, which they were not.If the aforesaid OM's are held to be inapplicable w.e.f. 12.07.2016 then it would create a situation where in the absence of notification of Section 21 of the Act, 2016 under Section 1 (3) thereof and in the absence of any regulations made by UIDAI under the said provision, there would be no provision for bringing persons on deputation to the UIDAI, as there was no such procedure in the Act, 2016, whereas, in the very nature of establishment of UIDAI most of the officers and employees were to be brought on deputation from other departments/organisations, and the terms and conditions of the deputationist who had already been brought to UIDAI prior to 12.07.2016 would also be put in jeopardy which can never be the intent of the rule making authority or of this Court.As the terms of deputation applicable to the petitioner's tenure of deputation vide order dated 05.02.2014 were in no manner in conflict with the Regulations, 2020 so far as repatriation is concerned, they continued to be applicable by of the order of deputation.Even if the OM's referred above were inapplicable w.e.f. 21.02.2020, it does not help the petitioner as even under the Regulations, 2020 which came into effect from 21.02.2020, for the reasons already given hereinabove, repatriation of the petitioner was permissible, therefore, merely because the order of repatriation dated 16.03.2020 refers to Clause 9 of the OM dated 17.06.2010, it cannot be held to be illegal whether repatriation was permissible and justified on facts is another aspect.The next question to be considered is whether in the garb of an order simplicitor a punitive order has been passed by the opposite parties? There can be no doubt that this Court can lift the veil to find out the true nature of the order based on the theory of motive and foundation. This Court would however like to refer to a 3 Judge Bench decision of the Supreme Court in the case of Kaushal Kishore Shukla Vs. State of U.P.; (1991) 1 SCC 691, wherein, the Supreme Court had the occasion to consider the nature of an order of termination in respect of a temporary employee, whether it was punitive or an order simplicitor? It opined that merely because a preliminary inquiry had been conducted on the basis of which the suitability of such temporary employee and his work and conduct was assessed so as to form the requisite satisfaction for the continuance of such officiating Government servant and based thereon an innocuous order of termination simplicitor was passed without referring to any misconduct instead of initiating formal disciplinary proceedings and issuing a charge sheet for punishing him, it would not render the order punitive. If however, the Government decides to take punitive action then formal proceedings will have to be undertaken as per law/rule. The Supreme Court also went on to observe that allegations made against the respondent in the counter affidavit by a way of defense filed on behalf of the appellant also do not change the nature and character of the order of termination.To the same effect is a decision of the Delhi High Court in the case of L/NK V.H.K. Murthy Vs. Special Protection Group; ILR (2000) Delhi 26 which was a case of repatriation of a deputationist wherein it was as under:-"29. I do not agree with the submissions of the petitioner that the impugned order visits with any stigma. Admittedly, the impugned order does not make any reflection on the work and conduct of the petitioners. Only when the petitioners filed the writ petitions and to meet the challenge of arbitrariness, respondents have stated in the counter-affidavit the reasons which compelled the respondents to repatriate the petitioners. The petitioners have tried to highlight the reasons stated in the counter-affidavit and argue on that basis that order is stigmatic. I do not agree. It may be mentioned that the respondents are in Catch- 22 situation. Had the counter-affidavit would not disclose any reason for repatriation of these petitioners, the petitioners would have contended that the impugned repatriation orders are passed without any basis and or material and, therefore, these orders are arbitrary. If the reasons are disclosed in the counter-affidavit to show that the exercise of power by the respondents was bona fide and it was on the basis of material on record which compelled the respondents to form an opinion about the unsuitability of the petitioners to retain them further in the SPG petitioners are challenging the action as sigmatic. It is only to satisfy the conscious of the Court and to further show that the impugned action was not arbitrary but based on relevant considerations and bona fide exercise of power that the reasons are disclosed in the counter-affidavit. From these reasons disclosed in the counter-affidavit, petitioners cannot be allowed to argue that the orders are stigmatic. No doubt it is the power of the Court to go behind the order passed and see the real motive by piercing the veil. However, as mentioned above, in such cases where the person come on deputation and has no vested right to remain with the host department, the Court has to interfere only when the order is passed arbitrarily and mala fide. If there was some material which shows some negligence or conduct of the petitioner and becomes the basis of decision of the respondents to repatriate such an officer, it cannot be called as a stigmatic, more so when the impugned order is innocuous and silent on the conduct of the petitioners. Once I take the aforesaid view, various judgments cited by the petitioners may not be of any consequence. I have already referred to the constitutional Bench Judgment of the Supreme Court in the case of K.H. Phadnis (supra) and observed that even as per that judgment a person who is unsuitable can be sent back to his parent department."The ratio of the aforesaid decisions of the Supreme Court and Delhi High Court apply on all its fours to the case at hand which is one of repatriation of a deputationist. A fact finding internal inquiry was instituted by the opposite party no. 2 who was the head of the regional office at Lucknow where the petitioner was posted as Deputy Director regarding two complaints dated 26.02.2020 and 27.02.2020 against the petitioner's conduct and behaviour by certain employees of the said office. This apart, inputs were sought by him regarding the work of the petitioner whether it was satisfactory or not from his reporting officer i.e. the Assistant Director General in the said office and based on these two exercises he recommended premature repatriation of the petitioner to the Chief Executive Officer of UIDAI at its headquarters at New Delhi who approved the same. Consequently, in pursuance to the communication of the decision of the Chief Executive Officer, UIDAI from the headquarters at New Delhi vide letter dated 12.03.2020 to the Regional Office at Lucknow, the impugned order dated 16.03.2020, communicating such decision to repatriate the petitioner prematurely was issued which is an order simplicitor without any reference to any misconduct or unsatisfactory work or unsuitability of the petitioner.It is only when this petition has been filed by the petitioner challenging the said decision on various grounds that the opposite parties have filed counter affidavit's mentioning therein the rationale and the material which is the basis for the impugned decision. As already held by the Supreme Court in Kaushal Kishore Shukla Case (Supra) and by the Delhi High Court in L/NK V.H.K. Murthy's case (Supra) merely because in the counter affidavit the reasons for taking the decision have been disclosed, obviously as a defense, this cannot be the basis for alleging or for treating the impugned decision as punitive by itself. After all what other course of action was open to the opposite parties. If they did not disclose the basis for the impugned decision then they would not be able to justify it in the eyes of law. As stated, mentioning of all the facts, as mentioned hereinabove, in the counter affidavit of the opposite parties by itself cannot and does not persuade the Court to hold that the impugned decision is punitive. In view of the aforesaid dictum of the Supreme Court in Kaushal Kishore Shukla's case (Supra) and the decision of the Delhi High Court in L/NK V.H.K. Murthy's case (Supra) it cannot be said that the order of repatriation in the facts of the present case was 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. In the present case, no disciplinary proceedings were initiated against the petitioner by the borrowing department nor was it recommended to the lending department prior to passing of the impugned order or thereafter. An assessment of suitability of the petitioner for his continuance on deputation in UIDAI was made by calling an input regarding his work performance from his Reporting Officer which was rendered on 06.03.2020 and also based upon the fact finding report of the internal Inquiry Committee dated 04.03.2020 regarding the complaints referred hereinabove and this was followed by an order of repatriation simplicitor. Of course on 13.02.2020, the deputation of petitioner had been extended for one year but prior to it in in August, 2019, the opposite party no. 2 i.e. Deputy Director General of the Regional Office at Lucknow had called for an explanation from the petitioner regarding huge pendency of grievance redressal complaints etc. under him as has already been mentioned while narrating the facts of the case and the explanation of the petitioner which is on record was not found satisfactory. In fact on the said explanation itself, the opposite party no. 2 observed "not so much that reports will not go on time. Explanation not acceptable." which was obviously a comment and an implicit caution regarding unsatisfactory working of the petitioner so that he may improve. In August, 2019, the process for absorption under Regulation 5 of the Regulations, 2020 had not even been initiated. It is true that thereafter on 13.02.2020, petitioner's deputation was extended for one year but then it is equally true that thereafter on 28.02.2020, work of the petitioner was reviewed by his immediate superior officer who was also his reporting officer for the purposes of performance appraisal after he took charge as such on 05.02.2020 and he found that about 7000 grievances/complaints, which the petitioner was required to supervise and ensure disposal in terms of the work distribution order dated 21.12.2018, were pending with the petitioner some of which were more than one year old, accordingly on 02.03.2020 he called for the explanation of the petitioner in this regard. By then the internal inquiry committee on the complaint of other employees had already been constituted and the fact finding inquiry (with regard to rude behaviour etc. of the petitioner) was underway. The show cause letter dated 02.03.2020 referred hereinabove reads as under:"Subject: Regarding huge pendency in cases related to Date of Birth, Name/Gender change and other exception cases.As per the work allocation dated 21.12.2018, the works related to Date of Birth, Name/Gender change and other exceptional cases were assigned to you with provision of sufficient staff. It is notices during review on 28.02.2020 that more than 7000 cases are pending for exceptional handling of Date of Birth in this RO. Many cases are pending for more than a year time. This has caused substantial delay in disposal of sensitive public complaints.2. It is noticed that you have neither taken any prompt action to dispose off these cases at your end as supervisor nor reported this issue to your superiors for prompt handling. You have also not devised any mechanism to supervise this issue at regular intervals at your level as a Deputy Director. Coordination mechanism among staff which is handling this issue is also not put in place.3. You are therefore asked to explain that why this non-monitoring, non-reporting and non-disposal of pendency has been continuing in this fashion?Your reply shall reach to the undersigned within three days."Petitioner submitted his reply on 05.03.2020 which is also on record.On an input being sought by the opposite party no. 2, the reporting officer i.e. the Assistant Director General, Shri Vivek Kumar Daksh sent the input to him on 06.03.2020 as under:-"Subject: Regarding inputs on the performance of Shri Saurabh Gupta, Deputy Director, UIDAI Regional Office Lucknow.Reference: Your letter no. F- 23015/02/2019MISC (Estt.)/UIDAI/Lko dated 05.03.2020Shri Saurabh Gupta, Deputy Director of this office has started reporting to the undersigned after issuance of Order No. A-22013/01/2011-UIDAI/LKO Dated 05.02.20202. I have reviewed two major works which are assigned to ShriSaurabh Gupta, Deputy Director, after reporting has been started-a. Exceptional handling of Date of birth cases &b. General Grievances.a. Exceptional handling of Date of birth cases: As on 28.02.2020 7226 cases of Exceptional cases handling of date of Birth were pending in this office (Copy enclosed). Some of the cases were found pending for more than a year time. The officer has not put any extra/special efforts to dispose of this huge number of grievances. For this, he has been asked to explain vide letter no. C-11018/02/2020/UIDAI/LKO Dated 02.03.2020 (Copy enclosed). His reply has not been found satisfactory and was vague and irrelevant (Copy enclosed).b. General Grievances- As far as other general complaints are concerned, 3168 complaints are pending in this office of different nature (Copy enclosed). No monitoring mechanism has been found in place for monitoring and prompt disposal at Deputy Director level.As such, more than 10000 grievances of different nature are pending which are being looked after by Shri Saurabh Gupta. He has neither taken any prompt action to dispose of these cases as supervisor at his level nor reported this issue to his superiors. As such, the performance of Shri Saurabh Gupta, Deputy Director in handling of official work, is found to be 'Unsatisfactory' and 'Not upto the mark'.This is for your kind information please."He reported the work of the petitioner to be unsatisfactory and gave reasons for the same. Thus, in spite of the displeasure shown by opposite party no. 2 in August, 2019 and rejection of petitioner's explanation regarding huge pendency and non-submission of reports timely etc. in August, 2019 there was no improvement in petitioner's functioning till 28.02.2020 when his work was reviewed as already stated hereinabove.The fact that petitioner's deputation was extended in the interregnum on 13.02.2020 does not wash off what is evident from the records as aforesaid regarding the working of the petitioner. This apart, there was a report of an internal inquiry committee dated 04.03.2020 against the petitioner which was in the nature of a fact finding report. One of the complainants Shri Devashish Bhatt was Assistant Section Officer under the petitioner with one Rajeev Srivastava as an intermediary officer between the two and the contention that he was not under his direct control is nothing but an eye wash. Reference may be made in this regard to the document annexed as Annexure R-9 to the supplementary affidavit of opposite parties no. 1 & 2 i.e. the work distribution order dated 21.12.2018 which clearly says that Shri Saurabh Gupta, Deputy Director (Petitioner) will be assisted by Rajeev Srivastava, SO and Devashish Bhatt, ASO.The other complainant, though he was a driver in the general pool and not attached to the petitioner, but, petitioner in his statement before the internal inquiry committee has accepted being driven by the said driver on the date of the incident wherein he is alleged to have conducted himself in a manner not befitting an officer of his rank, though he has denied these allegations. The conclusion of the internal inquiry committee report dated 04.03.2020 is as under:-" Recommendations: Committee feels that in an office like UIDAI where project work in being completed in a mission mode and officers have to interact with various eco partners including residents, cordial behaviour is utmost required. The behaviour of Shri Gupta, as intimated by various officials is undesirable and may hamper the work flow and ultimately damage the image of the organization."The recommendation dated 06.03.2020 for premature retirement of the petitioner is also on record. It refers to the aforesaid two exercises which pertain to petitioners functioning and his suitability to continue on deputation.The Court has perused the statement of the petitioner recorded by the internal inquiry committee wherein there is a reference to the complaints being shown to him while putting a question to him and he being confronted with its contents. Therefore, it is incorrect to say, as was stated by the learned Counsel for the petitioner that he came to know about the complaints only through the counter affidavit. The material aforesaid forms the basis for recommending the premature repatriation of the petitioner on the ground of unsatisfactory work and unsuitability for continuation on deputation in UIDAI.Based on the said recommendations, the Chief Executive Officer took the decision and approved the same on 12.03.2020 for premature repatriation of the petitioner. Consequently the impugned simplicitor order dated 16.03.32020 was issued mentioning the approval by the competent authority. No proceedings preliminary or otherwise were initiated against the petitioner by the disciplinary authority for punishing the petitioner for any misconduct, therefore, reliance placed by the learned Counsel for the petitioner in this regard on the decision of the Supreme Court

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in Chandra Prakash Shahi's case (Supra) does not help his cause, specially considering the status of the petitioner which was that of a deputationist even if based on selection as he was liable to be repatriated on account of unsatisfactory work or unsuitability even as per the decision in S.N. Maity's case (supra) and the decision in Ashok Kumar Patel's case (supra).In these circumstances, especially in the absence of any allegation of personal malafide against any officer or employee of UIDAI who may have been involved in the decision making process or in the process leading to it, it cannot be said that the repatriation of the petitioner is punitive or arbitrary. The reasons and material mentioned in the counter affidavit as noticed hereinabove may have been the motive but not the foundation of the order. In view of the above discussion, the impugned order cannot be said to be punitive. It is an order simplicitor.It can also not be said that the impugned decision suffers from legal malice as it was preceded by an assessment of petitioner's work and conduct i.e. his suitability for being continued on deputation and a decision was taken based on such exercise, therefore, it cannot be said to be whimsical or a motivated decision. No such norm or rule has been placed before the Court deviation of which may have occurred so as to form the basis for the plea of legal malice. The decision has been taken as per norms and the law applicable to the subject. To say, as Shri Shireesh Kumar, learned Counsel for the petitioner did, that the entire UIDAI ganged up against petitioner is unacceptable in law and on facts both. There cannot be a plea of malafide against the entire organisation, certainly not in the absence of any tangible material.At least two statements of the complainants and the petitioner's statement are on record so is a copy of the internal inquiry report dated 04.03.2020 which have been perused. The fact that the statement of other employees who had deposed against the petitioner before the fact finding internal Inquiry Committee is not on record, though their statements are mentioned in the report, does not make much of a difference. Considering the nature of the issue involved in a fact finding inquiry petitioner was sufficiently heard.There is nothing in law which restrains the borrowing department from curtailing the deputation after it has been extended i.e. during the extended period, if it finds the deputationist unsuitable for further continuance based on an assessment of his work and conduct. The only requirement is that such decision should be free from arbitrariness and malafide, which, it is, in this case. It appears that prior to extending the period of deputation of the petitioner on 13.02.2020, a proper assessment of the work and conduct of the petitioner was not undertaken and in any case in spite of the caution given to the petitioner in August, 2019, there was no improvement in his work when it was again reviewed on 28.02.2020 as has already been discussed.As regards, the contention, that the performance appraisal report of the petitioner for all the years during deputation were outstanding, there is material before this Court pertaining to the year 2019-20 in the form of comment of the opposite party no. 2 of August, 2019, report dated 04.03.2020 and input dated 06.03.2020 by the petitioner's Reporting Officer especially regarding 7000 complaints being pending, some for more than a year, which are adverse to the petitioner and which he has not been able to satisfactorily rebut. Therefore, this plea also does not cut much ice so far as the issue of repatriation is concerned.It is not open for this Court to dwell into factual issues regarding assessment of work and conduct of the petitioner and to draw inferences based on "a hunch" or "gut feeling" so long as there is absence of malafide and there is material or rationale to support the impugned decision. Since 12.03.2020, 16 officers who are on deputation in UIDAI have been repatriated as informed by the Counsel for the opposite parties. Out of 3 Deputy Directors i.e. the post which was held by the petitioner, 2 have been repatriated, therefore, it is not as if petitioner has been singled out for special treatment.The contention on behalf of the petitioner that repatriation was designed to deprive the petitioner of absorption in UIDAI is also not acceptable, firstly for the reason, there is no allegation of personal malafide against any officer or employee, secondly, legal malice is also not made out as already discussed, thirdly as already stated, absorption under Regulation 5 of Regulations, 2020 is not as a matter of right. It is not automatic. It is subject to consideration by a selection committee in terms of Sub-regulation 2 of Regulation 5 and on being found suitable for the same. A deputationist who is considered for absorption under Regulation 5 ultimately may not be found suitable for the same and there is no indefeasible right in this regard in the said Regulation. The right at best is/was of consideration for absorption but subject to the conditions mentioned therein. Apart from the conditions contained in Sub-regulation 2, 3 and 4 of Regulation 5, the authority could prescribe such further conditions for said absorption under Sub-regulation 6 of Regulation 5 as it may deem fit from time to time. Moreover, till passing of the order of repatriation, petitioner had merely applied for absorption but had not been considered, therefore, this plea for the reasons already discussed is also not acceptable.To contend, as the learned Counsel for the petitioner did, that even after passing of the order of repatriation petitioner is entitled to be considered for absorption is unacceptable and contrary to Regulation 5 which speaks of an offer of absorption to be given to such officers and employees "who are holding any post provided under the Schedule", therefore, a deputationist who has been repatriated to his parent organisation is not entitled to be considered as he does not hold any post referred in the Schedule to the regulation under UIDAI which includes the post of Deputy Director on which the petitioner was earlier working and as such he cannot be offered absorption, specially as this Court is upholding this repatriation. This plea is also rejected.This Court does not find any such requirement of seeking approval of the Chairman, UIDAI or the Minister of Electronics and Information Technology, Government of India before repatriating any officer or employee in the Regulations, 2020. This plea is also rejected.The decision to repatriate the petitioner has been taken by the Chief Executive Officer who was competent to take such decision under Regulation 2(1)(b) of Regulations, 2020 read with Section 18 (4) of the Act, 2016.For all these reasons none of the decisions cited by learned Counsel for the petitioner come to his rescue. For the same reasons, the order dated 28.05.2020 passed by the Chief Executive Officer on the representation of the petitioner also does not require any interference.In view of the above, this is not a fit case for exercise of extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for interference with the impugned order in favour of the petitioner.The writ petition is accordingly dismissed.
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