Madhya Pradesh High Court
Trilok Kumar Shrivastava vs The State Of Madhya Pradesh on 8 March, 2016
WP-19129-2015
(TRILOK KUMAR SHRIVASTAVA Vs THE STATE OF MADHYA PRADESH)
08-03-2016
Shri Aditya Khandekar, counsel for the petitioner.
Shri Pushpendra Yadav, GA for respondents No.1 to 3.
Shri Swapnil Ganguly, counsel for respondent No.4.
With the consent of parties finally heard. Order dictated in open court
and annexed on a separate sheet.
ORDER
(Passed on 08.03.2016.) Per : Sujoy Paul J.
This petition, filed under Article 226 of the Constitution challenges the order dated 16.09.2015 whereby the petitioner is repatriated and attached to the parent department/ Directorate Technical Education. Petitioner is also aggrieved by order dated 31.10.2015 whereby he is transferred to Government Polytechnic College, Ujjain.
2. Learned counsel for the petitioner criticizes these orders by contending that the petitioner was working at SV Polytechnic College, Bhopal before commencement of M.P.Technical Education Polytechnic College (Teaching Cadre) Service (Recruitment) Rules,2004 (Recruitment Rules). Thus by operation of Rule 4 of the said Rules, petitioner's services shall be included within the definition of âserviceâ. By placing reliance on Rule 14 of the said Rules, it is urged that petitioner's lien will remain with the parent department and he for all practical purposes was on deputation to SV Polytechnic College. The respondents have erred in repatriating the petitioner to parent department and they further erred in sending him on deputation to an autonomous college, namely, Government Polytechnic College, Ujjain. Learned counsel for the petitioner has taken pains to submit that both the polytechnic colleges, namely, SV Polytechnic College, Bhopal and Government Polytechnic College, Ujjain are autonomous bodies. Thus petitioner could not have been sent on deputation from one autonomous body to another. Lastly, it is urged that without obtaining consent of the petitioner, it was not open to the parent department to send him on deputation by order dated 31.10.2015. He submits that the impugned orders are passed because petitioner intended to take action against the erring official, namely, Nilesh Jain. The whole exercise was undertaken to save Nilesh Jain. It is urged that the impugned orders are passed with malafide intention and, therefore, interference be made.
3. The aforesaid prayer is opposed by the other side. Shri Yadav, submits that petitioner is not transferred or sent on deputation from one autonomous polytechnic college to another. On the contrary, the parent department repatriated him and thereafter on administrative exigency, transferred him to polytechnic college, Ujjain. There is no legal infirmity in the impugned order.
4. Shri Ganguly, learned counsel for respondent No.4 almost borrowed the same arguments.
5. No other point is pressed by learned counsel for the parties.
6. I have heard learned counsel for the parties at length and perused the record.
7. As per the provision of Recruitment Rules, it is clear that the petitioner's lien remained with the parent department. The word âlienâ is defined in the Fundamental Rules. âLienâ is a substantive right of a government servant to hold the post on which he is substantively appointed. It is trite law that lien of an employee remains on a post and not at any particular place. The first question is whether parent department is well within its authority in repatriating the petitioner. This point is no more res integra. As held by the Apex Court in the case of Kunal Nanda vs Union Of India & Another - (2000) 5 SCC 362 the parent department can at any point of time seek repatriation of its employee. Thus there is no jurisdictional error in the order of repatriation dated 16.9.2015. The petitioner is unable to show any legal, vested, statutory or constitutional right to remain posted at SV Polytechnic College, Bhopal.
8. The second aspect is related to validity of the order dated 31.10.2015 whereby the petitioner is transferred.
9. Learned counsel for the petitioner in nutshell contended that although by the impugned order Annexure P/3 petitioner is shown as transferred, for all purposes, he is sent on deputation. For government employees, F.R.110 is the governing provision by which the aspect of deputation is dealt with. F.R. 110 reads as under :-
2. " F.R. 110. Authorities competent to transfer a Government servant to foreign service :- (a) No Government servant may be transferred to foreign service against his will :
Provided that this sub-rule shall not apply to the transfer of a Government servant to the service of a body, incorporated or not, which is wholly or substantially owned or controlled by the Government."
Emphasis supplied
10. A bare perusal of the provision makes it clear that when an employee of government department to the service of a body which is owned and controlled by the State Government, it is not necessary to obtain the consent. The Gwalior Bench of this Court in the order dated 02.03.2015 passed in W.P.No.1104/15 Malkhan Singh vs The State Of Madhya Pradesh has taken the same view. It cannot be doubted that Polytechnic College, Ujjain is owned and controlled by the State Government. Hence it is a âbodyâ as per F.R.110.
11. Considering the aforesaid, even assuming that the order Annexure P/3 is an order by which the petitioner is sent on deputation, it cannot be interfered with. No consent of the petitioner was required for the same.
12. The last contention of the petitioner was relating to malafide but the petitioner has not chosen to implead anybody against whom malice is attributed. The Apex Court in the matter of State of Punjab and others Vs. Chaman Lal Goyal -(1995) 2 SCC 570 opined that in the absence of impleading the person eo nomine against whom allegation of malice are made, the allegations cannot be entertained. The division Bench of this Court in the case of Bhagwat Singh Verms Vs. State of M.P. and others- (2011) 3 MPHT 479 matter has taken the same view.
13. In this view of the matter, no case is made out for interference on the ground of malice also.
14. Resultantly, I find no reason to interfere in this matter. Petition fails and is hereby dismissed.
(SUJOY PAUL) JUDGE