Madhya Pradesh High Court
Govind Vallabh Shrivastava vs The State Of Madhya Pradesh on 23 September, 2019
Author: Vishal Mishra
Bench: Vishal Mishra
1
THE HIGH COURT OF MADHYA PRADESH
W.P. No.5861/2018(s)
(Govind Vallabh Shrivastava vs. State of M.P. and Ors.)
Gwalior, dated:23.09.2019
Shri Alok Katare, counsel for the petitioner.
Shri Sanjay Bahirani, Government Advocate for the
respondents/State.
This petition has been filed being aggrieved by the order dated 13/2/18 whereby the deputation of the petitioner has been cancelled and the petitioner has been repatriated to his parent post in parent Department without assigning any reason.
It is alleged that the order impugned is totally a non speaking order wherein it is mentioned that the petitioner services are not required in the department, therefore, he has been repatriated to the parent department. It is alleged by the counsel for the petitioner that the petitioner was not transferred by way of deputation and it is not the ordinary case of deputation rather the petitioner was appointed by way of deputation in Rajya Shiksha Kendra. Thus, he cannot be repatriated to his parent post in parent Department in such a manner as has been done by the impugned order passed by the respondent no. 3. The petitioner in the earlier round of litigation being W.P. No.1311/2014 has challenged the repatriation order dated 18/2/14 and the order was set aside by the Hon'ble Court on the ground that as per the terms of the deputation order, only the State Government can repatriate the petitioner and the Commissioner, Rajya Shiksha Kendra has no power to order repatriation of the petitioner. Again an order has been passed by the Director Public Instructions and not by the State Government repatriating the petitioner 2 THE HIGH COURT OF MADHYA PRADESH W.P. No.5861/2018(s) (Govind Vallabh Shrivastava vs. State of M.P. and Ors.) which itself is contrary to the order passed by this Hon'ble Court in the earlier round of litigation. It is further alleged that there is a distinction between appointment and transfer on deputation and the aforesaid aspect was taken into consideration by the Hon'ble Apex court in the case of Ashok Kumar Ratilal Patel v/s Union of India and another, reported in (2012) 7 SCC 757 and the Hon'ble Supreme Court has held that if an employee has been appointed on deputation than repatriation is permissible only if he has been found unsuitable to perform the duties and not otherwise. In the present case there is no allegation regarding non proper performance of duties by the petitioner. It is only a simple four line order wherein it is mentioned that -
**Jh xksfoUn oYyHk JhokLro ewy in lgk;d f'k{kd orZeku esa izfrfu;qfDr ij lgk;d ifj;kstuk leUo;d ¼foRr½ ftyk f'k{kk dsUnz f'koiqjh dh izfrfu;qfDr lekIr djrs gq;s] budh inLFkkiuk 'kkl-izkFk- 'kkyk FkkBh fodkl [k.M cnjokl ftyk f'koiqjh esa inLFk fd;k tkrk gS A** Thus, the repatriation order is per se illegal and is against the settled legal position by the Hon'ble Supreme Court in the case of Ashok Kumar (supra). He has prayed for quashment of the impugned order.
Per contra, an application for dismissal of the writ petition has been filed by the State Government and it has been contended that the order dated 13/2/18 has been passed by the competent authority. He has drawn attention of this Court to the deputation order wherein it is specifically mentioned that the continuation of deputation period shall be subject to the decision of the State authorities and considering the aforesaid the Commissioner, Rajya Shiksha Kendra has taken a decision 3 THE HIGH COURT OF MADHYA PRADESH W.P. No.5861/2018(s) (Govind Vallabh Shrivastava vs. State of M.P. and Ors.) to cancel the deputation of the petitioner and sending the petitioner back to his parent department. In pursuance to the same the petitioner has submitted his joining on the post at Government Primary School Thati, Block Badarwas, District Shivpuri and he has resumed the work in pursuance to the impugned order. Thus, the impugned order is executed and now nothing remains to be adjudicated in the present petition. He has prayed for dismissal of the writ petition.
A reply to the aforesaid application has been filed by the petitioner stating that as there was no interim relief in favour of the petitioner therefore, he was bound to comply with the instructions issued by way of impugned order, therefore, he has joined in the parent department but the fact remains that whether the petitioner who was sent on deputation by way of appointment can be repatriated to the parent department in the manner in which the petitioner has been sent is the question which is required adjudication by the Court. He has again drawn attention of this Court to an order passed in W.P No.20857/16 and other petitions which were analogously heard and decided by a common order dated 16/2/18 whereby the coordinate bench of this Court placing reliance upon the order passed by the Hon'ble Supreme Court in the case of Ashok Kumar (supra) has held as under:-
"7. This is trite law that in ordinary sense, the deputationist has no legal, vested or constitutional right to remain on deputation. The parent or borrowing department has a right to repatriate him at any time unless there exits any bar in any statutory rules. This view was taken by the Supreme Court in the case of Kunal Nanda (supra). However, in the case of Ashok Kumar Ratilal Patel (supra), the Apex Court opined that there is a difference between "appointment on deputation" and "transfer on deputation". The Court poignantly held as under:4
THE HIGH COURT OF MADHYA PRADESH W.P. No.5861/2018(s) (Govind Vallabh Shrivastava vs. State of M.P. and Ors.) "13. Ordinarily transfers on deputations are made as against equivalent post from one cadre to another, one department to another, one organisation to another, or one Government to another;
in such case a deputationist has no legal right in the post. Such deputationist has no right to be absorbed in the post to which he is deputed. In such case, deputation does not result into recruitment, as no recruitment in its true import and significance takes place as the person continues to be a member of the parent service.
14. However, the aforesaid principle cannot be made applicable in the matter of appointment (recruitment) on deputation. In such case, for appointment on deputation in the services of the State or organisation or State within the meaning of Article 12 of the Constitution of India, the provisions of Article 14 and Article 16 are to be followed. No person can be discriminated nor is it open to the appointing authority to act arbitrarily or to pass any order in violation of Article 14 of the Constitution of India. A person who applies for appointment on deputation has an indefeasible right to be treated fairly and equally and once such person is selected and offered with the letter of appointment on deputation, the same cannot be cancelled except on the ground of non-suitability or unsatisfactory work.
15. The present case is not a case of transfer on deputation. It is a case of appointment on deputation for which advertisement was issued and after due selection, the offer of appointment was issued in favour of the appellant. In such circumstances, it was not open for the respondent to argue that the appellant has no right to claim deputation and the respondent cannot refuse to accept the joining of most eligible selected candidate except on ground of unsuitability or unsatisfactory performance."
8. In the present case, the petitioner's appointment cannot be treated as 'transfer on deputation'. On the contrary, the petitioner's deputation falls within the purview of 'appointment on deputation'. The respondents admittedly issued an advertisement inviting the candidature of illegible candidates. Pursuant to this advertisement, the petitioners were selected and were appointed on deputation. Thus, the nature of present deputation is different than ordinary deputation on which judgment of Kunal Nanda (supra) can be made applicable. In the peculiar facts of these cases, in the considered opinion of this court, the judgment of Ashok Kumar Ratilal Patel (supra) will be applicable. In view of this judgment, the repatriation of petitioner on the basis of blanket decision taken by the government is impermissible."
It is further alleged that the aforesaid case is exactly identical to the facts and circumstances of the present case but as the petitioner has already executed the impugned order, therefore, he prays for a short direction that he may be permitted to file a detailed representation to the 5 THE HIGH COURT OF MADHYA PRADESH W.P. No.5861/2018(s) (Govind Vallabh Shrivastava vs. State of M.P. and Ors.) authorities and the authorities in turn may be directed to consider and decide his representation within a stipulated time frame.
Heard the learned counsel for the parties and perused the record. From the perusal of the record, it is seen that vide order dated 13/12/05 the services of the petitioner were handed over to the respondent-department by way of deputation and it is mentioned that the right of repatriating the petitioner will be with the State Government. A writ petition was preferred by the petitioner being W.P.No.1311/14 challenging the order of repatriation passed on 18.2.14 wherein the learned writ court has considered the aspect that the deputation of the petitioner on the post of Sahayak Pariyojna Samanvayak, Vitta is after advertisement and interview as revealed from the deputation order dated 13/12/2005 and it is specifically mentioned that for the post of Assistant Project Coordinator (Finance) right to repatriate is vested with the Government. Considering the same the writ petition was allowed. Again, the impugned order has been passed by the Director and not by the State Government. It is further seen that the appointment of the petitioner was by way of deputation after going through the entire procedure that is advertisement and interview, therefore, it cannot be termed as a routine deputation but as the impugned order has been executed by the petitioner, therefore, the only relief which can be granted to the petitioner is to submit a detailed representation to the State Government and Director/respondents No.2 and 3 within a period of 7 days from the date of passing of order and in turn the authorities are 6 THE HIGH COURT OF MADHYA PRADESH W.P. No.5861/2018(s) (Govind Vallabh Shrivastava vs. State of M.P. and Ors.) directed to dwell upon the representation filed by the petitioner and pass a self contained speaking order within a period of one month from the date of receipt of certified copy of this order along with representation.
Needless to say, that the authorities are required to look into the order passed in the earlier round of litigation i.e. in W.P. No. 1311/2014 and the order passed by the Hon'ble Supreme Court in the case of Ashok Kumar (supra).
With the aforesaid observations, the petition is disposed of. No order as to cost.
(Vishal Mishra) Judge van VANDANA VERMA 2019.10.01 10:50:41 +05'00'