National Technical Research Organization & Others Versus Dipti Deodhare
National Technical Research Organization & Others Versus Dipti Deodhare
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 413 OF 2023
National Technical Research Organization & Others ..Appellants
Versus
Dipti Deodhare ..Respondent
J U D G M E N T
M.R. SHAH, J.
1. The present appeal has been filed by the National Technical
Research Organization and others, feeling aggrieved and dissatisfied
with the impugned judgment and order dated 08.10.2021 passed by the
High Court of Karnataka at Bengaluru in Writ Petition No. 10867/2021,
by which the High Court, while allowing the said writ petition preferred by
the respondent herein and setting aside order dated 31.05.2021 passed
by the Central Administrative Tribunal, Bengaluru Bench, Bengaluru
(hereinafter referred to as the ‘Tribunal’) dismissing O.A. No.
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170/1318/2019, has directed that the order dated 12.02.2019 issued by
the appellant(s) shall be read as an order of discharge simpliciter and
that she shall be entitled to all consequential benefits including the
benefit of past service that she had rendered in DRDO for computing her
terminal benefits. The High Court has further made it clear that the
respondent – original writ petitioner 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 drawn pay in that post would be the criteria for
settling all her benefits.
2. The facts leading to the present appeal in a nutshell are as under:
That the respondent herein – original writ petitioner joined the
services of Defence Research Development Organization (hereinafter
referred to as ‘DRDO’) on 12.09.1988, as Scientist ‘B’. That she got
periodical promotions while working with the DRDO. That on 1.7.2013,
she was promoted as Scientist ‘G’ and was heading the Intelligent
Systems and Robotics Division in Centre for Artificial Intelligence and
Robotics (for short, ‘CAIR’) of DRDO at Bangalore. That in the month of
January, 2018, the NTRO issued a recruitment notification to fill up two
posts of Scientist ‘H’ in Level 15 of the pay matrix. Initially, the
notification stated that the recruitment was to be made on deputation
including short term contract basis. However, subsequently, a
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corrigendum was published in the month of January, 2018 to fill up these
posts on deputation (including short term)/absorption, failing which, on
direct recruitment basis. The original writ petitioner, who was holding the
post of Scientist ‘G’ in Level 14 of the pay matrix at CAIR, DRDO,
applied for the post of Scientist ‘H’ in NTRO through her parent
department, i.e., DRDO. Consequent to the approval of the
Appointments Committee of Cabinet (ACC) for appointment in NTRO as
Scientist ‘H” dated 10.05.2018, the original writ petitioner was issued an
offer of appointment on the terms and conditions mentioned in the offer
of appointment including probation for a period of one year. On being
selected and appointed as Scientist ‘H’ in NTRO on direct recruitment
basis, the respondent – original writ petitioner tendered her technical
resignation from the post of Scientist ‘G’ in DRDO, which came to be
accepted on 22.6.2018 and DRDO relieved her to take up the new
appointment in NTRO.
2.1 The original writ petitioner joined NTRO as Scientist ‘H’ on
26.2.2018 on direct recruitment basis with a probation period of one
year. However, thereafter while she was on probation as Scientist ‘H’ in
NTRO, the ACC vide order dated 12.02.2019 granted approval for her
premature repatriation from the post of Scientist ‘H’ (on probation) in
NTRO to her parent department cadre – DRDO with immediate effect.
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Accordingly, the respondent was relieved from NTRO on 12.02.2019
with instructions to report to her parent cadre – DRDO. Pursuant to the
same, she reported for duty at CAIR, DRDO on 13.02.2019 and
simultaneously she submitted another application requesting the
Chairman, DRDO to issue formal orders for her appointment in DRDO,
after repatriation from NTRO. She also requested the DRDO to issue
formal orders to appoint her on a suitable post in the rank of Scientist ‘H’
in DRDO. Awaiting formal orders, she requested DRDO for three
months leave on 19.2.2019. Vide approval dated 10.03.2019, NTRO
conveyed approval of DRDO Headquarters of her joining at DRDO w.e.f.
13.02.2019 in the parent cadre as Scientist ‘G’ upon her premature
repatriation from NTRO (Scientist ‘H’ on probation). That thereafter, the
original writ petitioner requested NTRO to reinstate her and treat her
application dated 19.03.2019 as three months’ notice from 13.02.2019,
for voluntary retirement.
2.2 It appears that in the month of April, 2019, the case of the original
writ petitioner for promotion from Scientist ‘G’ to Scientist ‘H’ in DRDO
came to be considered and she was informed to participate in the
assessment for promotion. The original writ petitioner submitted her biodata for such promotion and participated in the assessment. However,
she was found ‘unfit’. Vide communication dated 13.11.2019, the
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respondent was directed to report to CIAR, DRDO to join duty by
16.12.2019, failing which disciplinary action was to be initiated against
her. That thereafter on 25.11.2019, the respondent herein filed OA
before the CAT, Bengaluru challenging NTRO order dated 12.02.2019
(repatriating her to DRDO), DRDO order dated 13.11.2019 (by which
she was directed to report to CIAR, DRDO to join duty by 16.12.2019)
and seeking direction to accept her VRS application dated 19.03.2019.
Before the Tribunal, all throughout, her case was that she was wrongly
repatriated prematurely and sent to DRDO as Scientist ‘G’. It was the
specific case on behalf of the respondent – original writ petitioner that
her VRS application ought to have been considered as Scientist ‘H’ in
DRDO.
2.3 The Tribunal on consideration of the matter observed and held that
the order dated 12.02.2019, was an order of discharge simpliciter during
her probation period and as she had earlier rendered technical
resignation from DRDO and/or appointment with DRDO on tendering a
technical resignation, she continued to have lien with the DRDO and
therefore, she was rightly repatriated to DRDO. The Tribunal also
observed and held that once the respondent reported back to her parent
organization and thereafter sought promotion to the post of Scientist ‘H’
and she was found ‘not fit’ thereafter, it was not open for her to contend
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that she should be voluntarily retired on the post of Scientist ‘H’ by
DRDO. Consequently, the Tribunal dismissed the OA filed by the
respondent herein. The judgment and order passed by the Tribunal was
the subject matter before the High Court by way of the present writ
petition. By the impugned judgment and order, the High Court has set
aside the judgment and order passed by the Tribunal by observing that
once the respondent was appointed as Scientist ‘H’ in NTRO on direct
recruitment basis, NTRO could not have repatriated her on a lower post
that she originally held in DRDO. The High Court has also observed that
the concept of reversion in the case of direct recruitment would not arise
and therefore, her repatriation as Scientist ‘G’ to DRDO was illegal.
However, thereafter the High Court has modified the order passed by the
Tribunal and ordered that the order dated 12.02.2019, shall be read as
an order of discharge simpliciter and that she shall be entitled to all
consequential benefits including the benefit of past service that she had
rendered in DRDO for computing her terminal benefits. The High Court
has also made it clear that the respondent 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 drawn pay in that post would be the criteria
for settling all her benefits. At this stage, it is required to be noted that
the learned counsel appearing on behalf of the original writ petitioner did
not press for the prayer to accept the VRS application.
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2.4 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court, the National Technical Research
Organization (NTRO) and others have preferred the present appeal.
3. Ms. Aishwarya Bhati, learned ASG appearing on behalf of the
NTRO has vehemently submitted that in the facts and circumstances of
the case, the High Court has committed a very serious error in directing
to treat the order dated 12.02.2019 as an order of discharge simpliciter.
3.1 It is vehemently submitted by Ms. Bhati that once the respondent
was repatriated to the original parent department, i.e., DRDO and in fact
she resumed the duty with the DRDO, the respondent ceased to be the
employee of the NTRO. It is submitted that therefore, the High Court
has committed a serious error in directing to treat the order dated
12.02.2019 as an order of discharge simpliciter and further directing that
she shall be entitled to all consequential benefits including the benefit of
past services that she had rendered in DRDO for computing her terminal
benefits. It is submitted that the impugned judgment and order passed
by the High Court is contrary to the relevant Office Memorandum issued
by the DOPT - FR-9(13).
3.2 It is submitted that DOPT O.M. dated 21.07.2014 (Probation &
Confirmation) stipulates that during the probation period, the Appointing
Authority may revert him/her to the post held substantively by him/her
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immediately preceding his/her new appointment, provided he/she holds
a lien thereon or in other cases may discharge or terminate him/her from
service. It is submitted that as per para 14 of the said O.M., a
probationer reverted or discharged from service during or at the end of
the period of probation shall not be entitled to any compensation.
3.3 It is submitted that in the present case, when the respondent was
appointed as a direct recruit in NTRO, she was appointed on probation
period and that she tendered the technical resignation from DRDO,
however, her lien continued with the DRDO. It is submitted that
therefore, during the probation period, when her work was not found
satisfactory, a conscious decision was taken by the ACC to revert her
back to the parent department, i.e., DRDO where she continued to have
a lien. It is submitted that therefore, repatriating the respondent to her
original parent department – DRDO, which was during the probation
period when she was working with the NTRO, was absolutely in
consonance with the DOPT O.M. dated 21.07.2014.
3.4 It is submitted that as such, as per FR-9(13) the word ‘lien’ means
the title of a Government servant to hold on regular basis, either
immediately or on the termination of a period or periods of absence, a
post, including a tenure post, to which he/she has been appointed on
regular basis and on which he/she is not on probation. It is submitted
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that DOPT O.M. dated 17.08.2016 (Technical Resignation & Lien)
stipulates that on technical resignation, seniority in the post held by the
Government servant on substantive basis continues to be protected. It
is submitted that therefore, on technical resignation, the seniority of the
respondent continued to be protected as Scientist-G in DRDO.
3.5 Ms. Bhati, learned ASG has taken us to the relevant paras of the
DOPT O.M. dated 17.08.2016, more particularly, paras 2.6, 3.1, 3.2(b),
3.3 and 3.4.1. It is submitted that therefore a permanent Government
servant appointed in another Central Government department/office/
State Government has to resign from his/her parent department unless
he/she reverts to that department within a period of 2 years or 3 years in
exceptional circumstances, if not confirmed in the department where
he/she has joined. It is submitted that in no circumstances, lien on a
post held substantively can be terminated even with his/her consent, if
the result will be to leave him/her without a lien upon a permanent post.
It is submitted that in the present case, the respondent being a
permanent Government servant and having a lien in the post of
Scientist-G in DRDO, cannot avail of qualifying service for pensionary
benefits as Scientist-H (on probation) under CCS (Pension) Rules, 1972,
as she was on temporary service while on probation against the post of
Scientist – H in NTRO.
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3.6 It is further submitted that as per Rule 13 of the CCS (Pension)
Rules, 1972, subject to provision of these Rules, qualifying service of a
Government Servant shall commence from the date he/she takes charge
of the post to which he/she is first appointed either substantively or in an
officiating or temporary capacity……provided that officiating or
temporary service is followed without interruption by substantive
appointment in the same or another services or post.
3.7 It is submitted that therefore, the High Court has materially erred in
directing that the respondent is entitled to all consequential benefits
including the benefit of past service that she had rendered in DRDO for
computing her terminal benefits and to treat her discharge as discharge
simpliciter from the service with NTRO.
4. Shri Gopal Sankaranarayanan, learned senior counsel while
opposing the present appeal has vehemently submitted that in the facts
and circumstances of the case, no error has been committed by the High
Court in directing to treat the communication dated 12.02.2019 as
discharge simpliciter and thereafter to consider and/or grant terminal
benefits as Scientist ‘H’ from NTRO while considering her past service
rendered in DRDO.
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4.1 It is vehemently submitted by Shri Gopal Sankaranarayanan,
learned senior counsel that vide communication dated 12.02.2019, the
NTRO abruptly repatriated the respondent to DRDO as Scientist-G. It is
submitted that when the respondent was appointed as direct recruit as
Scientist -H with the NTRO and was on probation for a period of 2 years,
thereafter, she could not have been repatriated to DRDO and that too on
a lower post, i.e., Scientist-G.
4.2 It is submitted that after 12.02.2019, right from very beginning the
respondent insisted for appointment/posting even with DRDO as
Scientist – H, which will be evident from various communications. It is
submitted that when the respondent was repatriated to a lower post
namely Scientist-G at CAIR, DRDO and when no decision was taken to
appoint her on the post of Scientist-H at CAIR, DRDO, the respondent
proceeded on three months’ leave. It is submitted that thereafter all
throughout she continued to be on leave and never worked as Scientist
– G in CAIR, DRDO.
4.3 It is submitted that even giving the bio-data to DRDO for
promotion/ appointment to the post of Scientist – H shall not come in the
way of the respondent as in fact she was compelled to submit her bio
data.
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4.4 It is submitted that even the appellant passed on some instructions
to the respondent, received on 24.04.2019, asking her to apply for leave
through Director CAIR, DRDO and the respondent applied for 3 months’
leave from 13.02.2019 to 28.06.2019. It is submitted that in fact the
respondent had clarified that she had sought Earned Leave from
13.02.2019 to 28.06.2019.
4.5 It is submitted that the respondent chose to attend the Promotion
Board as she was directed to do so and she had no choice in the matter.
She attended without preparation at an extremely short notice of one
day; as failure to do so could have invited disciplinary action. It is
submitted that until resolution of her grievance against the NTRO order
dated 12.09.2019, which she had formally conveyed to her superiors
orally and in writing, the respondent was bound to obey every
Government order issued to her.
4.6 It is submitted that in her bio-data submitted to the Promotion
Board, she specifically stated that she was attending the Board while on
leave. It is submitted that in the said bio-data it was stated by her that
she received a letter from CAIR on 29.03.2019, stating that she has
been appointed to the post of Scientist G at CAIR, DRDO. This was only
a statement of fact and the same cannot be said to be construed as the
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respondent’s acceptance of DRDO’s invalid order appointing her as
Scientist-G.
4.7 It is further submitted that having worked as Scientist-H with the
NTRO, which was a direct recruitment, she could not have reverted/
repatriated as Scientist-G to her parent department – DRDO.
4.8 Now, so far as the submission on behalf of the appellant on her
lien having continued with the DRDO is concerned, it is submitted that
the said provision is in favour of the respondent and it is the respondent/
employee, who had the discretion to continue the lien. It is submitted
that there cannot be any automatic lien, that too, at the instance of the
employer and/or subsequent employer. It is submitted that the lien is a
right of a Government employee and the same is at the option of
respondent and respondent cannot be forced to exercise her lien.
4.9 Relying upon the decisions of this Court in the case of State of
Rajasthan and Anr. Vs. S.N. Tiwari and Ors., (2009) 4 SCC 700 (paras
17 and 19) and Ramlal Khurana (Dead) By LRs. Vs. State of Punjab
and Ors., (1989) 4 SCC 99 (para 8), it is vehemently submitted that as
observed and held by this Court, a lien is entirely at the discretion of the
employee. It is submitted that therefore, an employer cannot thrust a
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lien upon an employee, as it will have a detrimental impact on the
employee’s position and prospects.
4.10 It is further submitted by the learned senior counsel appearing on
behalf of the respondent that even otherwise, the respondent is entitled
to pension on the last pay drawn as Scientist-H. It is submitted that
though the conditions of the NTRO appointment refers to the
respondent’s service being terminable under CCS (Temporary Service)
Rules, 1965, the said rules nowhere states that the respondent is not
entitled for pension on the basis of the last pay drawn. It is submitted
that CCS (Temporary Service) Rules, 1965 shall be applicable to those
employees who “do not hold a lien or a suspended lien on any post
under the Government of India or any State Government”.
4.11 It is submitted that as per Rule 2 of CCS (Pension) Rules, 1972,
there is no distinction between temporary and permanent employees in
the application of Pension Rules. It is submitted that as per Rule 13 of
the Pension Rules, qualifying service of a Government servant
commences from the date he takes charge of the post to which he is first
appointed substantively. It is submitted that in the present case, the
respondent was first appointed substantively on 12.09.1988. She joined
DRDO in the entry grade of Scientist ‘B’ on this date and after two years,
her probation was confirmed. It is submitted that therefore, the
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respondent’s qualifying service starts from 12.09.1988, i.e., the date on
which she took charge of the post on which she was first appointed
substantively.
4.12 Making above submissions, it is prayed to dismiss the present
appeal.
5. We have heard learned counsel appearing on behalf of the
respective parties at length.
6. By the impugned judgment and order, the High Court has allowed
the writ petition preferred by the respondent herein and has quashed
and set aside the judgment and order passed by the Central
Administrative Tribunal dismissing the O.A. and has modified the order
dated 12.02.2019 issued by the NTRO and has directed that the same
be held and treated as an order of discharge simpliciter. By the
impugned judgment and order, the High Court has also directed that
under the order dated 12.02.2019, the services of the original writ
petitioner – respondent herein shall stand discharged and that she shall
be entitled to all consequential benefits including the benefit of past
services that she had rendered in DRDO for computing her terminal
benefits. The High Court has further clarified that the respondent herein
– original writ petitioner would be entitled to all such benefits as
15
permissible to her on the premise that she had held the post of Scientist
– H and the last pay drawn in that post would be the criteria for settling
all her benefits.
6.1 While considering the challenge to the aforesaid directions at the
instance of the NTRO, few glaring dates and events are required to be
noted, which are as under:-
(i) That the respondent herein – original writ petitioner was
serving as Scientist -G in DRDO. Applications were invited
by the NTRO for the post of Scientist – H for appointment as
direct recruit. The respondent – original writ petitioner
applied for the said post and was appointed in NTRO as
Scientist – H on the approval of the ACC dated 10.05.2018.
The original writ petitioner was served with the offer of
appointment dated 11.05.2018 stipulating the terms and
conditions, including the probation for a period of one year.
(ii) As the respondent – original writ petitioner was appointed in
another Government organization, she was required to
tender the technical resignation, which she tendered by
submitting a technical resignation from the post of Scientist –
G in DRDO, which came to be accepted on 22.06.2018 and
the DRDO relieved her to take up the new appointment in
NTRO. However, on submitting the technical resignation, the
lien of the respondent on the post of Scientist – G in DRDO
continued as per the relevant O.M.
(iii) At this stage, it is required to be noted that tendering a
technical resignation from the post he/she was working on
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his/her appointment in another organization of the Centre /
State on probation and to continue the lien till the probation
period in the new organization is satisfactorily completed
and/or he/she is permanently appointed in the new
establishment, can be said to be in the interest of the
employee and to the benefit of the concerned employee so
that in case she is not made permanent and/or relieved
during the probation period, she may not have to lose the job
and she can go back and join the duty in the earlier
establishment. Under the circumstances, on submitting the
technical resignation from the post of Scientist -G in DRDO
on her appointment on probation as Scientist – H in NTRO,
she continued to have the lien on the post of Scientist – G in
DRDO.
(iv) That during the probation period, it appears that her work
was not found satisfactory and a conscious decision was
taken by the ACC not to continue her in NTRO and to relieve
her as Scientist – H in NTRO and to repatriate her to her
parent department – DRDO on the post of Scientist – G as
her lien on the post of Scientist – G came to be continued as
observed hereinabove. The respondent – original writ
petitioner came to be relieved from NTRO on 12.02.2019 on
the approval of the ACC received for her pre-mature
repatriation from the post of Scientist – H (probation) in
NTRO to her parent cadre – DRDO. In fact, thereafter, the
respondent reported for duty at CAIR, DRDO on 13.02.2019
itself. However, simultaneously, she requested that she may
be appointed in a suitable post in DRDO. No orders were
passed and she continued to be the employee of the DRDO
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on and after 13.02.2019. Thereafter, she proceeded on
three months’ leave as Scientist-G in DRDO. Therefore,
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.
(v) At this stage, it is required to be noted that even thereafter,
the respondent requested NTRO to reinstate her and to treat
her application dated 19.03.2019, as three months’ notice for
VRS. Therefore, her request for reinstatement in NTRO
itself would suggest that the respondent – original writ
petitioner was relieved from NTRO as then and then only
would the question of reinstatement arise.
(vi) That thereafter, the respondent- original writ petitioner
insisted for appointment/ posting as Scientist – H. Her case
for promotion to the post of Scientist – H came to be
considered by the Recruitment Assessment Centre. She
submitted the application to the Director, Recruitment
Assessment Centre for promotion to the post of Scientist –
H. She sent her bio-data. She reported for the performance
assessment at Hyderabad. Thereafter, she was found “not
fit” for the promotion to the post of Scientist – H in DRDO. In
the bio-data, she specifically stated that she is working as
Scientist – G. The case set up on behalf of the respondent
that she was compelled to submit the bio-data and/or
compelled to appear for assessment of appraisal for
promotion to the post of Scientist – H, cannot be accepted.
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No such grievance was made at the time when she
appeared for interview for promotion to the post of Scientist –
H in DRDO. She applied for the leave/earned leave from
13.02.2019 to 28.06.2019 as Scientist – G and even
thereafter, she applied for forty days leave extension.
6.2 Considering the aforesaid facts and circumstances, it can be seen
that on and from 13.02.2019, the respondent can be said to be the
employee of DRDO and in any case, she cannot be said to have been
continued in NTRO and/or on and from 13.02.2019, she cannot be
treated to be an employee of the NTRO. In that view of the matter, the
High Court has committed a very serious error in issuing the directions
as above, more particularly, of treating the communication dated
12.02.2019, as an order of discharge simpliciter. The High Court has
also committed a very serious error in ordering that under the order
dated 12.02.2019, the services of the original writ petitioner –
respondent herein shall stand discharged and she shall be entitled to all
consequential benefits including the benefit of the past services that she
had rendered in DRDO for computing her terminal benefits. We fail to
appreciate under which provision, has the High Court issued such a
direction that she shall be entitled to all consequential benefits including
the benefit of past services that she had rendered in DRDO for
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computing her terminal benefits directed to be paid by NTRO. The
directions issued by the High Court are self-contradictory.
6.3 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.
6.4 Even otherwise, it is required to be noted that the respondent was
appointed as Scientist – H in NTRO as a direct recruit, on probation and
her probation period was not completed. Before her probation period
was completed/over, she was relieved. 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.
7. In view of the above and for the reasons stated above, the
impugned judgment and order passed by the High Court is
unsustainable and the same deserves to be quashed and set aside and
is accordingly quashed and set aside and the judgment and order
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passed by the CAT is restored. However, to do complete justice, we
direct that if the original writ petitioner – respondent herein so wishes,
she may press the prayer to accept her VRS application, which may be
considered by the DRDO. If she presses her VRS application to
voluntary retire her, the same may be considered positively. However,
the same shall be done by the DRDO on the post of Scientist – G so that
the respondent can get all other benefits, which may be available to her
on accepting her voluntary retirement application, as otherwise also, she
continued to have a lien on the post of Scientist – G in DRDO, as has
been observed hereinabove.
With this, the present appeal is allowed. However, in the facts and
circumstances of the case, there shall be no order as to costs.
………………………………….J.
[M.R. SHAH]
NEW DELHI; ………………………………….J.
FEBRUARY 17. 2023 [HIMA KOHLI]
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