Punjab-Haryana High Court
Jiwan Kumar vs State Of Punjab And Others on 16 July, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
CWP No.4047 of 2009 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.4047 of 2009 (O&M)
Date of decision:16.07.2012
Jiwan Kumar
......Petitioner
Vs.
State of Punjab and others
...Respondents
CORAM:- HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA.
Present: Mr. Puneet Bali, Sr. Advocate with
Ms. Priyanka Ahuja, Advocate for the petitioner.
Mr. Suveer Sehgal, Additional Advocate General, Punjab.
***
Tejinder Singh Dhindsa, J.
The petitioner was initially appointed as a Panchayat Secretary in the Department of Rural Development and Panchayat, State of Punjab on 08.04.1980. Thereafter, he was appointed as a Child Development Project Officer in the Department of Social Security, Women & Child Development, Punjab on 06.01.1999 by way of direct recruitment. In terms of order dated 14.09.2001, the petitioner was taken on deputation in the Department of Rural Development and Panchayat on the post of Block Development & Panchayat Officer against a post meant for direct recruitment for a period of one year subject to further extension from time to time. Petitioner while on deputation on the post of Block Development & Panchayat Officer was granted extensions from time to time and finally vide order dated 16.04.2007, he was ordered to be repatriated back to his parent CWP No.4047 of 2009 (O&M) -2- department. The petitioner preferred CWP No.6346 of 2007 impugning the order of repatriation dated 16.04.2007 terming the same to be unjust and arbitrary and the same having been passed without affording him any opportunity of hearing. CWP No.6346 of 2007 was disposed of by this Court on 25.08.2008 in terms of directing the respondent/authorities to decide the legal notice dated 14.2.2008 that the petitioner had already served upon the respondent/authorities. In deference to the order passed by this Court, respondent No.1 has passed order dated 27.11.2008, whereby, the legal notice preferred by the petitioner has been filed and the order of repatriation to his parent department has been upheld.
It is against such factual background that the present writ petition has been filed by the petitioner under Article 226 of the Constitution of India impugning the order of repatriation dated 16.04.2007 (Annexure P-8) as also the order dated 27.11.2008 (Annexure P-11) whereby, the legal notice has been decided against the petitioner and the order of repatriation of the petitioner to his parent department has been upheld. Further challenge in the present writ petition has been laid to the condition contained in the deputation order dated 12.09.2001, wherein, it had been stipulated that the petitioner would have no right to claim absorption permanently in the department of Rural Development & Panchayat.
I have heard Mr. Puneet Bali, Senior Advocate with Ms. Priyanka Ahuja, Advocate for the petitioner and Mr. Suveer Sehgal, CWP No.4047 of 2009 (O&M) -3- Additional Advocate General, Punjab for the respondents.
Learned senior counsel for the petitioner has placed heavy reliance upon recommendation dated 16.08.2006 issued by the Minister Rural Development & Panchayat to contend that the petitioner had a right to be appointed in the Rural Development & Panchayat Department by way of transfer under Rule 10.21 Sub clause 1 of the Punjab Civil Services Rules, Volume I and as such, the impugned order of repatriation dated 16.04.2007, is illegal. Learned senior counsel has further argued that the petitioner had served for almost six years in the Department of Rural Development & Panchayats and on account of his unblemished service while on deputation, he had right to be absorbed on the post of Block Development and Panchayat Officer and the order of repatriation is highly inequitable. Still further, a plea of discrimination has also been raised with one Rajesh Chadha, who had been working as Fishery Officer in the Department of Fisheries, Punjab and who had also been taken on deputation in the Department of Rural Development and Panchayats as Social Education and Panchayat Officer and thereafter, has been absorbed on such post by the department on a permanent post.
Per contra, learned State counsel has submitted that a deputationist has no vested right to continue on such post and as such, the impugned repatriation order was perfectly legal and tenable in law. Learned State counsel further submits that under the Punjab Development and Panchayat (Class-II) Service Rules, 1974, in the CWP No.4047 of 2009 (O&M) -4- cadre of Block Development and Panchayat Officers, 50% posts are to be filled by direct recruitment and 40% by way of promotion from the cadre of SEPO and 10% to be filled by way of promotion from the cadre of Senior Assistants Accounts. Learned State counsel would accordingly argue that there was no provision in the service rules to entertain the claim of the present petitioner for being appointed on the post of BDPO and as such, no exception could be taken to the repatriation order. Learned State counsel would further submit that the claim of the petitioner has further been decided in terms of passing a speaking order dated 27.11.2008, which was in pursuance to the directions passed by this Court to decide his legal notice.
The petitioner had been taken on deputation on the post of BDPO and the terms thereof would be governed in the light of the order dated 14.09.2001 (Anneuxre P-3). Condition No.5 of such order read in the following terms:
"Even after remaining on deputation in this department he would not have any such right to get himself absorbed permanently in this department and nor in near future he will have to be absorbed in this department permanently, in future."
As such, at the very outset, the petitioner had been apprised that he would have no right to claim absorption permanently in the Rural Development & Panchayat Department. It is only upon consenting to the conditions contained in the order of deputation dated 14.09.2001 that the petitioner came to hold the post of BDPO in the CWP No.4047 of 2009 (O&M) -5- Department of Rural Development and Panchayat. It is also not under dispute that the petitioner had even furnished an undertaking in the form of an affidavit dated 22.11.2000 (Annexure P-5), where he had clearly deposed that he was bound to go back to his parent department and that he would have no right to stay permanently on the post of BDPO in the Department of Rural Development & Panchayat.
The petitioner in the capacity of a deputationist would be governed by the terms and conditions contained in the order of deputation. The challenge raised in the present writ petition filed in the year 2009 to condition No.5 contained in the order of deputation dated 14.09.2001, is wholly misconceived. It would not be open for the petitioner to have accepted the conditions stipulated in the order of deputation, having proceeded on deputation to hold the post of BDPO and subsequently, having been ordered to be repatriated in the year 2007 to turn around to lay a challenge to a specific condition contained in the order of deputation and to which he had expressly consented.
The concept of deputation, absorption and repatriation are well crystallized in service jurisprudence. The Hon'ble Supreme Court in State of Punjab & others Vs. Inder Singh & others 1998 (2) SCT 765 had held in the following terms:
"Concept of "deputation" is well understood in service law and has a recognised meaning. 'Deputation' has a different connotation in service law and the dictionary meaning of the word 'deputation' is of no help. In simple words 'deputation', means service outside the cadre or outside the parent department. Deputation is CWP No.4047 of 2009 (O&M) -6- deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per Recruitment rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent department and work there as Constables and Head Constables as the case may be."
The impugned order of repatriation dated 16.04.2007 has not been passed in derogation and in violation of any statutory provision. The petitioner is not vested with any right in law to claim absorption in the Department of Rural Development & Panchayat and as such, the challenge to the order of repatriation in terms of seeking issuance of a writ of Certiorari for quashing the same can not be accepted.
As regards the plea of discrimination and claiming parity with the case of one Rajesh Chadha is concerned, learned senior counsel has placed reliance upon a judgment of Hon'ble Supreme Court in Union of India Vs. V. Ramakrishnan & others 2005 (8) SCC 394. CWP No.4047 of 2009 (O&M) -7- In the light of the facts of that case, the Hon'ble Supreme Court had observed in the following terms:
"Ordinarily, a deputationist has no legal right to continue in the post. A deputationist indisputably has no right to be absorbed in the post to which he is deputed. However, there is no bar thereto as well. It may be true that when deputation does not result in absorption in the service to which an officer is deputed, no recruitment in its true import and significance takes place as he is continued to be a member of the parent service. When the tenure of deputation is specified, despite, a deputationist not having an indefeasible right to hold the said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability of unsatisfactory performance. But, even where the tenure is not specified, an order of reversion can be questioned when the same is mala fide. An action taken in a post-haste manner also indicates Malice."
Even otherwise, once it is held that the petitioner is not vested with a legal right to stay on deputation or to claim absorption, the plea of discrimination in the absence of such a right would not be open to the petitioner. That apart, the State has even sought to justify such action in terms of drawing out a distinction between the petitioner as opposed to Rajesh Chadha as it has been pleaded that the petitioner had been taken on deputation as BDPO (Group-A post) against the direct quota post, which is under the purview of the Punjab Public Service Commission. On such ground also parity could not have been claimed by the petitioner with another official. The plea of CWP No.4047 of 2009 (O&M) -8- discrimination and violation of Article 16 of the Constitution of India can not extend to the matters relating to a deputationist being repatriated strictly in terms of conditions stipulated in the order of deputation itself.
For the reasons recorded above, I find no infirmity in the impugned order dated 16.04.2007 (Annexure P-8), whereby the petitioner has been ordered to be repatriated to his parent department as also to the order dated 27.11.2008 (Annexure P-11), whereby his legal notice has been decided in terms of upholding the order of repatriation.
The petition is accordingly dismissed.
July 16, 2012 (TEJINDER SINGH DHINDSA) harjeet JUDGE