Madhya Pradesh High Court
Dr. Vijay Kumar Pandey vs The State Of Madhya Pradesh on 26 April, 2017
WP-14230-2013
(DR. ASHOK KUMAR KHARE Vs THE STATE OF MADHYA PRADESH)
26-04-2017
Challenging the orders of repatriation passed by the State Government
with respect to the petitioners to send them back in their parent
departments, the petitioners have filed all these petitions under Article
226 of the Constitution of India seeking quashment of those orders and
also for their absorption in the State Government and in some of the
cases, the continuation of the petitioners in the various projects where
they have been redeployed.
2. On perusal of the facts of the present cases, it is not in dispute that
all the petitioners were appointed in the M.P.Dugdh Sangh. As per
joint meeting of the officials of the State Government dated
30.11.1998, the decision was taken to send the employees of the
M.P.Dugdh Sangh as well as the Tilhan Sangh in Agricultural Dairy,
Cooperative and Veterinary Services of the State of Madhya
Pradesh on deputation subject to the condition enumerated therein
and in furtherance to the said meeting, the orders were passed to
send the petitioners on deputation on 24.3.1999, 20.4.1999,
20.4.1999, 20.7.1999, 24.3.1999, 24.3.1999, 3.5.2005 in Writ
Petition (S) Nos.14230/2013, 8073/2014, 8802/2014, 9504/2014,
9890/2014, 15128/2014, 10696/2015 respectively and accordingly
on joining the petitioners have continued with those departments
of the State Government and are discharging their duties and
thereafter the orders of repatriation were passed against the
petitioners on 7.8.2013, 19.5.2014, 19.5.2014, 16.6.2014,
19.5.2014, 1.9.2014, 29.4.2015 in Writ Petition(S) Nos.14230/2013,
8073/2014, 8802/2014, 9504/2014, 9890/2014, 15128/2014,
10696/2015 respectively.
3. These petitions have been preferred by the petitioners interalia
contending that as per the brief note prepared for the cabinet
decision, it reveals that at the relevant point of time, the financial
position of the M.P.Dugdh Sangh was not good, however, to uplift
it, the employees of M.P.Dugdh Sangh, who were sent on
deputation and working with the State Government for a long time,
may be continued with the departments of the State Government
and the cabinet decision for their absorption may be taken. The
State Government has not taken any decision in the matter of
absorption of the petitioners and after sometime the orders of
repatriation have been passed, which have been assailed in these
petitions.
4. The State Government filed their reply interalia contending that the
absorption has been sought similar to the employees of the Tilhan
Sangh wherein the Government has floated a policy for absorption of
those employees because the establishment of Tilhan Sangh was
abolished. In the present cases, the M.P.Dugdh Sangh is functioning and
it is on a better position, therefore, the orders of repatriation have
rightly been passed. It is further contended that the petitioners do not
have any right to continue on deputation for a long time. However,
placing reliance on a decision of Hon'ble the Supreme Court in the case
of Kunal Nanda Versus Union of India and another reported in AIR
2000 SC 2076, it is urged that the petitioners do not have any right to
continue on deputation and their services can be repatriated at any
point of time.
5. Shri Pranay Gupta, learned counsel representing
respondent/M.P.Dugdh Sangh has argued with vehemence that the
services of the petitioners are required because various senior officers of M.P.Dugdh Sangh have already attained the age of superannuation and the State Government has rightly taken a decision to repatriate their employees, who were working with the State Government for a long time. More so, the deputation is not a right of the employees of the M.P.Dugdh Sangh, therefore, the orders of repatriation have rightly been passed.
6. Shri Kapil Duggal, learned counsel representing respondent/Mandi Board has stated across the bar that as per rule 6(2)(9) of the Mandi Board Service Rules 1998, the unilateral deputation after four years is not permissible. The said deputation can be continued by consent of the borrowing department and the parent department. In the present cases, the borrowing department as well as the parent department are not agreeing, however, the employees of the Mandi Board cannot be continued on deputation with the State Government, therefore, the orders of repatriation have rightly been passed to send the petitioner in Writ Petition No.10696/2015.
7. In counter, Shri K.C.Ghildiyal, Shri Naveen Kumar, Shri Abhay Pandey, learned counsel representing the petitioners have placed reliance on the judgments of Hon'ble the Supreme Court in the cases of Food Corporation of India Verus F.C.I.Deputationist Association and others reported in (1996) 6 SCC 90,T.Shantharam Versus State of Karnataka and others reported in (1995) 2 SCC 538, Rameshwar Prasad Versus Managing Director, U.P.Rajkiya Nirman Nigam Limited and others reported in (1999) 8 SCC 381 and urged that the petitioners have served for a long time on deputation, therefore, they are entitled to be absorbed.
8. After hearing learned counsel for the parties and looking to the undisputed facts of the present cases, it is apparent that the petitioners were the employees of M.P.Dugdh Sangh. As per the joint meeting of the officials of the State Government dated 30.11.1998, the petitioners were sent on deputation to work under various departments of the State Government. The petitioners continued in the departments of the State Government but, however, after sometime, the orders of their posting were passed in DPIPs. It is true that the brief history was prepared to put up the issue in the cabinet for their absorption but finally the services of the petitioners have not been absorbed and the State Government by passing the orders impugned repatriated them to their parent departments. As the parent department has agreed to take them back on the pretext that their senior employees have attained the age of superannuation and such persons are required for upliftment of the department. However, merely on the saying of the petitioners, who were the employees of the M.P.Dugdh Sangh, to continue with the employment of the State Government without any absorption is not permissible. The petitioners are employees of the M.P.Dugdh Sangh and Krishi Upaj Mandi. At the initial stage, when they were sent on deputation, there was financial crunch with the department, however, the State Government with intent to uplift the department withdrew some of the officers and allowed them to post on deputation, however, they continued for a long time. The State Government has not yet passed any order of absorption of those employees and has not brought any policy for their absorption, therefore, such employes cannot be continued with the State Government if the Government is not agreeing to continue them on deputation. On the contrary, the parent department itself is agreeing to take them back. Under such circumstances, without having any right to the petitioners, they cannot continue in the employment of the State Government as deputationist and in absence of having any rule of absorption, they do not have any right to continue on deputation.
9. At this stage, the judgments relied upon by learned counsel for the petitioners are required to be considered. In the case of Food Corporation of India (supra), the issue came for consideration was not of absorption but it was an issue for grant of the pay scale of Assistant Grade-II after his absorption in the department. The Apex Court found that the action of the department is unjust and arbitrary. In the case of T.Shantharam (supra), the issue of absorption was not under consideration but the petitioner was already absorbed in the borrowing department and he was given promotion by mistake and continued for a long period of twenty-seven years and in the said context, the observations have been made by the Apex Court. In the case of Rameshwar Prasad (supra), there were rules of the department for absorption on having eligibility by the employees and the Apex Court observed that the denial of absorption can be on a justifiable reason otherwise consideration may be made of the deputationist for absorption.
10. In the present cases, it is apparent that neither there is statutory rule nor there is policy of the State Government to absorb the employees of the Dugdh Sangh or Krishi Upaj Mandi in various departments of the State Government. On the contrary, a brief note was submitted restating the fact of absorption by way of a cabinet decision but the cabinet has not approved the same and thereafter the Government has passed the orders of repatriation of the petitioners. Thus, in the facts of the present cases, the judgments as relied upon by learned counsel for the petitioners are not applicable, therefore, the judgments cited hereinabove by learned counsel for the petitioners are distinguishable and petitioners are not entitled to claim any benefit in the light of the said pronouncement of law.
11. In view of the foregoing discussion, it is apparent that the deputationists do not have any right to continue in the borrowing departments if they do not want to continue them. The State Government passed the orders of repatriation of the petitioners and the lending departments want to take them back. In my considered opinion, the orders passed by the State Government repatriating the petitioners cannot be said to be arbitrary and discriminatory.
12. Resultantly, the petitions filed by the petitioners are hereby dismissed. No cost.
(J.K. MAHESHWARI) JUDGE amit