Rajasthan High Court - Jodhpur
Smt. Sudha Yadav vs State & Ors on 1 November, 2017
Author: Sangeet Lodha
Bench: Sangeet Lodha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 5324 / 2016
1. Naina Ram S/o Mangi Lal, aged 52 years, by caste Jat,
resident of Shakti Nagar, Paota C Road, Jodhpur.
2. Bharat Kumar S/o Bakta Ram, aged 51 years, by caste
Brahman, resident of Barmer, District Barmer.
3. Indra Ram S/o Lichman Ram, aged 52 years, by caste Jat,
resident of Devnagar, Post Gora Kalan, via Bhensroli, District
Nagaur.
4. Khuma Ram S/o Bhagu Ram, aged 48 years, by caste Jat,
resident of Dhokaliya, Post Khokhar, Tehsil Parbatsar, District
Nagaur.
5. Pawan Kumar S/o Omprakash, aged 52 years, by caste
Agrawal, resident of Srikaranpur, District Sriganganagar.
6. Ram Prakash S/o Ram Chandra, aged 47 years, by caste Jat,
resident of Near Officers Colony, Abohar Road, Sriganganagar.
7. Gopi Ram Chahar S/o Sahi Ram Chahar, aged 42 years, by
caste Jat, resident of VPO Khotawali, Tehsil Pilibanga, District
Hanumangarh.
8. Jugta Ram Choudhary S/o Hukam Singh, aged 47 years, by
caste Jat, resident of Gandhi Nagar, Barmer.
9. Ratana Ram S/o Nema Ram, aged 53 years, by caste
vishnoi, resident of village Arwa, Post Bhimguda, Village Harecha,
Tehsil Sanchore, District Jalore.
10. Vijay Kumar S/o Budh Lal, aged 50 years, by caste Suthar,
resident of Phalodi, District Jodhpur.
11. Ram Kishore Choudhary S/o Gheesa Ram, aged 47 years, by
caste Jat, resident of Laxmi Nagar, Tausar B Road, Nagaur.
12. Mehram Rajawat S/o Rambux, aged 54 years, resident of
C/o Rajawaton Ka Bas, VPO Kuchera, District Nagaur.
13. Ram Niwas Vishnoi S/o Rampal Vishnoi, aged 46 years,
resident of VPO Rotu, CID Jayal, District Nagaur.
14. Amba Lal Paliwal S/o Panna Lal, aged 51 years, resident of
Kamaltalai, Kankroli, Rajsamand.
15. Poonma Ram Vishnoi S/o Ram Kishan, aged 51 years,
resident of Village Hapudhani Bhalani, Tehsil Bagdoa, Jalore.
16. Bhagirath Bishnoi S/o Bheema Ram, aged 52 years, resident
of village Data, Post Sarnau, Tehsil Sanchore, District Jalore.
17. Deepa Ram Bishnoi S/o Har Lal, aged 51 years, resident of
Village Badsam, Tehsil Sanchore, Post Hadetar, District Jalore.
(2 of 25)
[ CW-5324/2016 & connected matters]
18. Dharmveer S/o Hetram, aged 51 years, resident of Village
and Post Gholipal, Tehsil Hanumangarh.
19. Ashok Lal Mathur S/o Shankar Lal Mathur, aged 54 years,
resident of Shivaji Nagar, Jalore.
20. Girish Kumar Sharma S/o Harishankar Sharma, aged 55
years, resident of NTG 60 RPS Colony, Rawatbhata, Chittorgarh.
21. Chandra Ram Choudhary S/o Dhanna Ram Choudhary, aged
51 years, resident of Village Anghanwa, Porst Surpura, Jodhpur.
22. Shiv Ram S/o Gordhan Ram, aged 48 years, by Caste Jat,
resident of Bijarniyon Ki Dhani, Post Singhrawat, District Sikar.
23. Bhawani Singh Shekhawat S/o Bajrang Singh, aged 49
years, by caste Rajpurt, resident of Mehroli, District Sikar.
24. Bhupendra Singh Mehla S/o Khem Singh Mehla, aged 46
years, by caste Jat, resident of Alapsar, District Sikar.
25. Nemichand Swami S/o Chimandas Swami, aged 47 years, by
caste Swami, resident of Oppostie Krishi Mandi Ward No.49,
Sujangarh, District Churu.
26. Rajveer Singh S/o Harphool Singh, aged 52 years, by caste
Jat, resident of Bhensroli, Tehsil Rajgarh, District Churu.
27. Ashok Upadhyay S/o Dashrath Lal, aged 51 years, by caste
Sharma, resident of A20 Kesri Nagar, Bundi.
28. Sandeep Saxena S/o Malkrishna Saksena, aged 50 years,
resident of 44 Shiv Colony, Devpura, Bundi.
29. Bacchu Singh S/o Padam Singh, aged 51 years, by caste Jat,
resident of 35 Shakti Nagar, Kakaji Koti, Bundi.
30. Narendra Kumar S/o Balchand, aged 49 years, by caste
Sharma, resident of Tilak Nagar, Bharatpur.
31. Umesh Chand Gupta S/o Panchi Ram Gupta, aged 50 years,
by caste Agarwal, resident of Katra School ke Pas, Bharatpur.
32. Nandan Ram Sharma S/o Jagveer, aged 51 years, resident of
C20, Subhash Nagar, Bharatpur.
33. Shiv Singh Choudhary S/o Ramroop, aged 48 years, resident
of Village Nehroli, Barewall, Tehsil Deeg, District Bharatpur.
34. Shiv Kumar Sharma S/o Mahaveer Prasad Sharma, aged 52
years, resident of Village Post Kajada, Jhunjhunu.
35. Shankar Singh Meena S/o Ramkhiladi Meena, aged 50 years,
resident of House No.3, Village Chak Kherali Gurjar, Tehsil Vair,
District Bharatpur.
36. Krishna Mohan Pandey S/o Manohar Lal Pandey, aged 46
years, resident of 152, Naya Gopal Vihar, Police Line, Kota.
(3 of 25)
[ CW-5324/2016 & connected matters]
37. Anil Katara S/o Shivdev Katara, aged 51 years, resident of A-
104, New Subhash Colony, Kherali Phatak, Nayapura, Kota.
38. Shambhu Dayal S/o Shrinath Gupta, aged 51 years, resident
of C-194, Talwati Sector C, Kota.
39. Kailash Chand Patodiya S/o Virdi Lal, aged 47 years, resident
of Village Post Dobara, Tehsil Khanpur, District Jhalawar.
40. Om Prakash Nagar S/o Madho Lal Nagar, aged 52 years,
resident of Village Marayata, Tehsil Khanpur, District Jhalawar.
41. Dharmendra Sharma S/o Kailash Chand Sharma, aged 48
years, resident of 493 Ganeshji Ki Chhatari, Bada Bajar, Khanpur,
District Jhalawar.
42. Sumer Singh Choudhary S/o Heera Lal Choudhary, aged 49
years, resident of Vasundhara Vihar Colony, Bhawani Mandi,
District Jhalawar.
43. Rishabh Kumar Jain S/o Devi Lal Jain, aged 48 years,
resident of Khandupura, Near Dakghar, Peedawa, District Jhalawar.
44. Dilip Kumar Swamkar S/o Bhola Ram Swamkar, aged about
53 years, resident of 163 out of Sayanath Khidkiya Madhuvan,
Bihar, Dist Sawai Madhopur.
45. Krishna Nand Gupta S/o Damodar Lal Gupta, aged about 52,
resident of Uded road, Near Chulara Marriage Garder, Gangapur
City, Dist Sawai Madhopur.
----Petitioners
Versus
1. State of Rajasthan through the Secretary, Education
Department, Group-I, Department, Government of
Rajasthan, Secretariat, Jaipur.
2. Director, Primary/Secondary Education, Rajasthan, Bikaner.
3. Rajasthan Council of Primary Education Society, Second &
Third Floor, Block-5, Dr. S. Radhakrishnan Shiksha Sankool,
Jawahar Lal Nehru Marg, Jaipur through its Commissioner.
4. Director, Rashtriya Madhyamik Shiksha Abhiyan, Shiksha
Sankool, Jaipur.
----Respondents
Connected with
1. S.B. Civil Writ Petition No. 9441 / 2016
Ramdev Bhalia S/o Sanwat Ramji, aged 54 years, by caste Jat,
R/o 64, Sapar Colony, Nagaur.
----Petitioner
(4 of 25)
[ CW-5324/2016 & connected matters]
Versus
1. State of Rajasthan through Secretary, Department of
Education (Group I) Secretariat, Govt. of Rajasthan, Jaipur.
2. The Director, Elementary Education, Rajasthan, Bikaner.
3. The District Education Officer, Elementary Education,Nagaur.
4. Rajasthan Council of Primary Education Parishad, Second &
Third Floor, Block-5, Dr. S. Radhakrishnan Shiksha Sankool,
Jawahar Lal Nehru Marg, Jaipur through its Commissioner.
5. The District Project Co-ordinator, Sarva Shiksha Abhiyan,
Nagaur.
6. Block Primary Education Officer, Sarva Shiksha Abhiyan,
Mundwa, Nagaur.
----Respondents
2. S.B. Civil Writ Petition No. 15153 / 2016
Kalyan Singh Sindap S/o Late Shri Devi Singh, aged 52 years,
Resident of A-22, Saraswati Nagar, Jodhpur, Presently the petition
is working as Junior Engineer, Rajasthan Council of Secondary
Education, District Project Office, Jalore.
----Petitioner
Versus
1. State of Rajasthan through Secretary, School Education
Department, Government of Rajasthan, Secretariat, Jaipur.
2. Director, Primary Education, Rajasthan, Bikaner.
3. Rajasthan Council of Secondary Education, Second & Third
Floor, Block-6, Dr. S. Radhakrishnan Shiksha Sankool,
Jawahar Lal Nehru Marg, Jaipur through its Commissioner.
4. The State Project Director, Rashtriya Madhyamik Shiksha
Abhiyan, Shiksha Sankool, Jaipur.
5. The Additional State Project Director, Rajasthan Council of
Secondary Education, Second & Third Floor, Block-6, Dr. S.
Radhakrishnan Shiksha Sankool, Jawahar Lal Nehru Marg,
Jaipur.
6. The Additional District Project Coordinator, Rajasthan Council
of Secondary Education, Jalore.
----Respondents
(5 of 25)
[ CW-5324/2016 & connected matters]
3. S.B. Civil Writ Petition No. 6207 / 2016
Anand Kumar S/o Shri Balbir Singh, age 41 yrs, R/o Q-7, Dr. B.R.
Ambedkar Government Senior Secondary Residential School,
Mandore, Jodhpur.
----Petitioner
Versus
1. State of Rajasthan through the Secretary, Social Justice and
Empowerment Department, Government of Rajasthan,
Secretariat, Jaipur.
2. The Director, Social Justice and Empowerment Department,
Goverment of Rajasthan cum Secretary, Rajasthan
Residential Educational Institutions Society, Room No.411,
Ambedkar Bhawan, Near Civil Line Fata, Jaipur.
3. Dr. Bheem Rao Ambedkar Government Senior Secondary
Residential School, Mandore, Jodhpur, through its Principal.
----Respondents
4. S.B. Civil Writ Petition No. 6209 / 2016
Smt. Sudha Yadav W/o Shri Shyam Singh, aged 50 years, R/o Q-
5, Dr. B.R. Ambedkar Government Senior Secondary Residential
School, Mandore, Jodhpur.
----Petitioner
Versus
1. State of Rajasthan through the Secretary, Social Justice and
Empowerment Department, Government of Rajasthan,
Secretariat, Jaipur.
2. The Director, Social Justice and Empowerment Department,
Government of Rajasthan cum Secretary, Rajasthan
Residential Educational Institutions Society, Room No.411,
Ambedkar Bhawan, Near Civil Line Fata, Jaipur.
3. Dr. Bheem Rao Ambedkar Government Senior Secondary
Residential School, Mandore, Jodhpur, through its Principal.
----Respondents
5. S.B. Civil Writ Petition No. 6210 / 2016
Ghanshyam S/o Shri Tarachand, age 54 years, R/o Q-1, Dr. B.R.
Ambedkar Government Senior Secondary Residential School,
Mandore, Jodhpur.
----Petitioner
(6 of 25)
[ CW-5324/2016 & connected matters]
Versus
1. State of Rajasthan through the Secretary, Social Justice and
Empowerment Department, Government of Rajasthan,
Secretariat, Jaipur.
2. The Director, Social Justice and Empowerment Department,
Goverment of Rajasthan cum Secretary, Rajasthan
Residential Educational Institutions Society, Room No.411,
Ambedkar Bhawan, Near Civil Line Fata, Jaipur.
3. Dr. Bheem Rao Ambedkar Government Senior Secondary
Residential School, Mandore, Jodhpur, through its Principal.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. M.S.Singhvi, Senior Advocate with, Mr.
Akhilesh Rajpurohit, Mr. Sunil Beniwal,
Mr. Vivek Agarwal, Mr. Sridhar Mehta,
Mr. Rajendra Kataria and Mr. Gaurav Thanvi
For Respondent(s) : Mr. P.R.Singh, Additional Advocate General
with Mr. Dinesh Ojha, Mr. B.L.Bhati, GC and
Mr. S.R.Paliwal, Deputy Government Counsel
_____________________________________________________
HON'BLE MR. JUSTICE SANGEET LODHA
Judgment 1st November, 2017
1. These writ petitions based on similar facts and involving common question of law were heard together and are being disposed of by this common order.
2. By way of writ petitions (No.5324/16, 9441/16 and 15153/16), the petitioners have questioned legality of the action of the respondents in substituting the persons working as Junior Engineer on deputation in Sarva Shiksha Abhiyan and Rashtriya Madhyamik Shiksha Abhiyan in Rajasthan Council of Primary Education Society ('the Council') by another set of (7 of 25) [ CW-5324/2016 & connected matters] deputationists/contract employees. The petitioners have also challenged the advertisement dated 28.4.16 issued by the Council whereby the eligible candidates are invited to participate in walk- in-interview to be conducted on the dates specified for filling in the various existing and anticipated vacant posts in the Council by way of deputation.
3. By way of Writ Petitions (No.6207/16, 6209/16 and 6210/16), the petitioners have questioned legality of advertisement dated 6.5.16 issued by the Director, Social Justice and Empowerment Department, Government of Rajasthan, inviting the applicants to participate in walk-in-interview for appointment on deputation on the various posts including Senior Teacher Gr.II and the Teacher Gr.III (Level II) in Government Residential Schools. It is further prayed that if during the pendency of the petitions, fresh appointments on deputation are made substituting the petitioners pursuant to the impugned advertisement, the same may be declared illegal and quashed.
4. At the outset, it would be appropriate to notice brief facts of each case:
S.B.Civil Writ Petition No.5324/16
(i) The petitioners were initially appointed on the post of Lab Assistant in the Department of Education in between the year 1988 to 1993 after following the regular recruitment process under the Rajasthan Education Subordinate Service Rules, 1971.
The post of Lab Assistants in the Department of Education were abolished and therefore, the petitioners were declared surplus.
(8 of 25) [ CW-5324/2016 & connected matters] However, the petitioners were absorbed on the post of Teacher Gr.III by relaxing the requirement of training.
(ii) The State Government implemented a scheme in the name of Lok Jumbish which was funded by Central Government and there was some foreign funding as well. Since the scheme required technical qualification Diploma/Degree in Civil Engineering and therefore, some of the petitioners were sent on deputation under Lok Jumbish Scheme vide order dated 9.10.03. After the project of Lok Jumbish was over, the State Government implemented Sarva Shiksha Abhiyan through Department of Education. The vacancies were notified, however, a Public Interest Litigation came to be filed and the vacancies were not filled in. While disposing of the PIL, a Bench of this court directed the State Government to consider larger impact on sending the persons from other departments on deputation. The State Government constituted a High Level Committee, which submitted its report recommending that to meet out the technical issues of the project, the preference should be given to take the persons who are already in Government departments including Engineering, Accounts and General Administrative Department.
(iii) For implementation of Rajasthan Primary Education Project, the State Government constituted Rajasthan Council for Primary Education Society, which is registered under Rajasthan Societies Act, 1958. The Council is headed by the Education Minister of the State as President; The Chief Secretary as Vice President and number of Government officials are the members of its Governing (9 of 25) [ CW-5324/2016 & connected matters] Council. It is submitted that the Council works as integral part of Education Department of Government of Rajasthan as almost all the projects which are being implemented and over viewed by the Council are connected with Primary and Secondary Education.
(iv) The Council issued an advertisement dated 4.7.08 inviting applications for selection and preparation of panel to fill up the post of Assistant Engineer/Junior Engineer by way of deputation of the Government employees. For filling in the post of Junior Engineer in the pay scale of 4000-5000, the applications were invited from the Lab Assistant/Teacher working in the Department of Education holding the qualification of Degree/Diploma in Civil Engineering. Deputation posting on the posts pursuant to the advertisement issued as aforesaid was to be made for a period of one year, however, the same was liable to be brought to an end pre maturely on the persons appointed failing in achieving the target or his behaviour and services are being found unsatisfactory.
(v) The petitioners herein holding the post of Teacher Gr.III possessing the requisite qualification applied for appointment on the post of Junior Engineer on deputation. The petitioners were found eligible to be appointed on the post of Junior Engineer and accordingly, they were accorded appointment on the said post on deputation for a period of one year vide order dated 23.8.08. As per the terms of the appointment, the period of deputation was initially for a period of one year from the date of joining, however, the same was opened to be extended further on their services (10 of 25) [ CW-5324/2016 & connected matters] being found satisfactory and was liable to be terminated pre maturely on the services being found unsatisfactory.
(vi) Pursuant to the order dated 3.8.08, some of the petitioners who were relieved from their parent department, joined duties at their respective place of posting. It is submitted that remaining petitioners were also appointed as Junior Engineer under Sarva Shiksha Abhiyan on deputation basis between 2008 to 2010, however, the details of their deputation posting is not set out in the petition filed. It is submitted that while the project Sarva Shiksha Abhiyan was still in force yet another project in the name of Rashtriya Madhyamik Abhiyan was floated by the Central Government in the year 2009 which is also being implemented parallel to Sarva Shiksha Abhiyan. The petitioners were asked to undertake both the projects simultaneously and the post held by the petitioner was re-designated as Junior Engineer, Sarva Shiksha Abhiyan and Rashtriya Madhyamik Shiksha Abhiyan.
(vii) Though the petitioners were appointed on deputation on the post of Junior Engineer by the Council for a period of one year, they are still continuing on the said post on deputation without issuing any order extending the term. However, all of a sudden, the Council issued an advertisement dated 26.4.16 inviting applications from eligible candidates to participate in walk-in- interview to fill up the existing and anticipated vacant posts in the Council by way of deputation. According to the petitioners, the advertisement issued covers the post held by them as well and thus, the petitioners who are already working on the post of Junior (11 of 25) [ CW-5324/2016 & connected matters] Engineer in the Council on deputation for last 8 to 10 years are sought to be substituted by another set of deputationists. S.B.Civil Writ Petition No.9441/16 The petitioner herein initially appointed as Laboratory Assistant Gr.III was declared surplus on abolition of the post of Laboratory Assistant and was absorbed on the post of Teacher Gr.III vide order dated 8.10.97. Later, on being selected, he was posted as Junior Engineer on deputation in the Council and pursuant thereto he was relieved vide order dated 3.7.13 by the Block Elementary Education, Panchayat Samiti, Mundwa to join duties on the said post on deputation. The petitioner continued on the said post on deputation thereafter, however, by the order impugned dated 28.7.16 issued by the Additional Commissioner of the Council, the petitioner's posting on deputation has been brought to an end and he has been repatriated to his parent department.
S.B.Civil Writ Petition No.15153/16 The petitioner who was initially appointed on the post of Lab Assistant in the Department of Education, on abolition of the post, was declared surplus and was absorbed on the post of Teacher Gr.III vide order dated 4.11.97. Later, the petitioner was appointed on the post of Assistant Project Officer (Building Development on deputation in Lok Jumbish Parishad. It is submitted that in the year 2004 after the project of Lok Jumbish was over another scheme was floated by Central Government in the name of Sarva Shiksha Abhiyan which is implemented by the (12 of 25) [ CW-5324/2016 & connected matters] State Government through the Education Department. The State Government needed technical persons and therefore, notified vacancies vide advertisement dated 28.7.04 and 25.9.04 whereby the post of Junior Engineer was sought to be filled through director recruitment in DPEP/Sarva Shiksha Abhiyan Project which was subject matter of the PIL before this court which was dismissed by a Bench of this court vide order dated 2.5.08. Later, pursuant to recommendation of the High Level Committee constituted by the State Government, the decision was taken that preference should be given to take services of the persons who are already in the Government department which includes Engineering, Accounts and General Administration on deputation. The petitioner herein pursuant to an advertisement issued by the Council in the year 2011 applied for the selection to the post of Junior Engineer on deputation. On being selected, the petitioner was appointed on the said post vide order dated 20.6.11. The term of the deputation was till the construction period or the period upto which regularly selected candidates are available, however, by the order impugned dated 24.11.16 issued by the Additional State Project Director of the Council, the deputation of the petitioner was terminated and he has been repatriated to his parent department. Aggrieved thereby, the petitioner preferred an appeal before the Rajasthan Civil Services Appellate Tribunal Circuit Bench, Jodhpur, which stands dismissed by the order impugned dated 15.12.16.
(13 of 25) [ CW-5324/2016 & connected matters] S.B.Civil Writ Petition No.6207/16 The petitioner initially appointed on the post of Teacher Gr.III in Department of Education vide order dated 1.3.05, was promoted to the post of Senior Teacher (Maths.) vide order dated 8.1.07. The petitioner was posted as Lecturer (Mathematics) on deputation at Dr. B.R.Ambedkar Government Residential School, Mandore run by Rajasthan Residential Educational Society, vide order dated 27.11.09 issued by the Deputy Director, Secondary, Department of Education, Jodhpur for a period of three years. It appears that the petitioner was continued on deputation beyond the period of three years. The petitioner is aggrieved by the process for fresh appointment on deputation initiated by the Department of Social Justice & Empowerment vide advertisement dated 6.5.16.
S.B.Civil Writ Petition No.6209/16 The petitioner working as Senior Teacher in the Department of Education vide order dated 5.9.06 was appointed on deputation in Dr. B.R.Ambedkar Government Residential School, Mandore as Senior Teacher in her existing pay scale. While the petitioner's deputation was in vogue, the Director, Social Justice & Empowerment Department issued an advertisement inviting eligible candidates to participate in walk-in-interview for appointment on various posts including the post of Senior Teacher Gr.II on deputation in various Residential Schools run by Department of Social Justice & Empowerment, Government of Rajasthan. The petitioner participated in the interview and on (14 of 25) [ CW-5324/2016 & connected matters] being selected, was posted as Senior Teacher (Hindi) at Dr. B.R. Ambedkar Government Residential School, Mandore vide order dated 8.9.15, where she was working earlier on deputation. The petitioner is aggrieved by the impugned advertisement dated 6.5.16 issued by the Department of Social Justice & Empowerment inviting the candidates to participate in walk-in-interview for appointment on deputation to the post of Senior Teacher inasmuch as, the advertised posts include the post occupied by the petitioner and thus, she apprehends pre mature termination of her appointment on deputation.
S.B.Civil Writ Petition No.6210/16 The petitioner working as Teacher Gr. III in the Department of Education vide order dated 5.9.06 was appointed on deputation on the post of Physical Training Instructor (PTI) in his existing pay scale at Dr. B.R.Ambedkar Government Residential School, Mandore vide order dated 21.8.08 issued by Director, Secondary Education, Rajasthan. The petitioner is aggrieved by the impugned advertisement dated 6.5.16 issued by the Department of Social Justice & Empowerment inviting the candidates to participate in walk-in-interview for appointment on deputation to the post of Senior Teacher inasmuch as, the advertised posts include the post occupied by the petitioner and thus, she apprehends pre mature termination of her appointment on deputation.
5. The respondents have filed reply to the writ petitions (No.5324/16, 9441/16 and 15153/16), taking the stand that the (15 of 25) [ CW-5324/2016 & connected matters] petitioners holding the post of Teacher Gr.III in the Department of Education, cannot claim any right to continue on deputation in the Council. It is submitted that as per Rule 144 A of Rajasthan Service Rules ('RSR'), the deputation posting of the State Government servants is regulated in accordance with orders issued by the Government from time to time and as per the order issued by the Government in this regard initially the deputation shall be for a period of one year but the same can be extended by the Administrative Department in the public interest for a period of three years and thus, the deputation posting of the State Government servant cannot be continued beyond four years. It is submitted that in no case the deputation posting can be extended beyond five years and thus, the petitioners who have already completed the maximum period for which a Government servant may remain on deputation have to be repatriated to their parent department.
6. Similar stand is taken by the respondents in reply to the writ petitions (No.6207/16, 6209/16 and 6210/16) filed by the other petitioners posted on deputation in Dr. B.R. Ambedkar Government Residential School, Mandore.
7. Mr. M.S.Singhvi, Senior Advocate, appearing for the petitioners contended that the Council constituted for implementation of Rajasthan Primary/Secondary Education Project is integral part of the Department of Education, Government of Rajasthan. Learned counsel submitted that pursuant to the directions issued by a Division Bench of this court in the matter of (16 of 25) [ CW-5324/2016 & connected matters] "Rajesh Vyas & Ors. vs. State & Ors." (D.B.Civil Writ Petition No.4345/04), the State Government constituted a High Level Committee to consider the larger impact on sending the persons on deputation on account of which his parent department suffers, which in its meeting held on 2.8.06 specifically arrived at the conclusion that SSA/DPEP are supportive programmes of Elementary Education and eventually get merged in form of routine function of the Department and it imperatively needs experienced persons of the Education Department itself for pedagogical initiatives. The Committee recommended that for other technical and managerial posts also preference should be given to take people from the State Government's engineering accounts and general administrative departments on deputation and on sufficient people not being available from within the government set up only people on contract should be taken. Learned counsel submitted that pursuant to the recommendation of the Committee, the advertisement dated 4.7.08 was issued by the Council for selection of inter alia the employees of Department of Education, Government of Rajasthan, holding the post of Degree/Diploma in Civil Engineering to fill up the post of Junior Engineer and the petitioners have been accorded appointment after due selection on the said post on deputation. Learned counsel submitted that there exists difference between 'Appointment on deputation' and 'Transfer on deputation'. Learned counsel would submit that transfer on deputation are generally made against the equivalent post in which case deputationist has (17 of 25) [ CW-5324/2016 & connected matters] neither any legal right to deputed post nor right to be absorbed on deputed post inasmuch as such deputation does not result in recruitment; on the other hand, the candidate who acquires appointment on deputation after due selection has indefeasible right to be treated fairly and thus, once such person is selected and offered letter of appointment, same cannot be cancelled except on the ground of non suitability or unsatisfactory work and thus, the action of the respondents in substituting the petitioners by another set of deputationists without any justifiable reason, is ex facie illegal and arbitrary. Learned counsel submitted that on the basis of the long continuance, the petitioners can even claim absorption in the Council but in any case, the petitioners holding the post of Junior Engineer in the Council on deputation for years together cannot be substituted by another set of deputationists till the completion of the project. In support of the contentions, learned counsel has relied upon the decisions of the Hon'ble Supreme Court in the matters of "Ashok Kumar Ratilal Patel vs. Union of India & Anr." (2012) 7 SCC 757, "Mohd. Abdul Kadir & Anr. vs. Director General of Police, Assam & Ors.", (2009) 6 SCC 611, "Union of India & Anr. vs. S.N. Maity & Anr.", (2015) 4 SCC 164, "Mahesh Kumar K. Parmar & Ors. vs. S.I.G. of Police & Ors.", (2002) 9 SCC 485 and "I.K.Mansoori vs. Union of India & Ors.", 2016 LabIC 2861 and a decision of this court in the matter of "Mrs. Shashi Singh vs. State of Rajasthan & Ors." (S.B.Civil Writ Petition No.3299/2002, decided on 8.12.16). Learned counsel submitted that Rule 144A of the RSR does not create any bar (18 of 25) [ CW-5324/2016 & connected matters] against the extension of the period of deputation beyond five years rather, it is the Government order wherein such provision has been incorporated. Learned counsel submitted that it is true that the period of deputation fixed in the order of appointment as one year has not been extended by issuing any formal order but the fact remains that the petitioners have been continued on deputation for all these years and thus, the period of deputation is deemed to have been extended. It is submitted that in the exceptional cases, in the public interest, the period of deputation can be extended even beyond the period specified and therefore, there is no reason as to why the respondents should be permitted to substitute the petitioners by way of another set of deputationists when they are not found unsuitable and their services have not been found unsatisfactory.
8. The counsels appearing for the writ petitioners in other writ petitions have adopted the arguments advanced by Mr. M.S.Singhvi, Senior Advocate.
9. On the other hand, Mr. P.R. Singh, Additional Advocate General while reiterating the stand taken in the reply to the writ petitions, submitted that as per the order issued by the Government in exercise of the power conferred under Rule 144A of RSR, the initial posting on deputation is permissible only for a period of one year which may be extended for a period of three years in the public interest and only in exceptional circumstances, the period of deputation can be further extended with the sanction of Department of Personnel and Department of Finance on the (19 of 25) [ CW-5324/2016 & connected matters] concerned administrative department sending the proposal for extension of the period two months prior to expiry of the period of deputation with the justification therefor. Learned AAG submitted that in any case, the period of deputation cannot be extended beyond five years and thus, the petitioners who have already completed period of five years on deputation cannot be continued further. Learned AAG submitted that continuance of the petitioners beyond five years does not create any right in their favour to continue on deputation any further and thus, the action of the respondents in initiating the fresh process for appointment on the various posts on deputation cannot be faulted with. Learned AAG submitted that for parity of reasons the orders issued by the competent authority impugned in the Writ Petition No.9441/16 and 15153/16 are absolutely justified. It is submitted that the learned Tribunal has committed no error in dismissing the appeal preferred by the writ petitioner Kalyan Singh (Writ Petition No.15153/16). In support of the contentions, learned counsel has relied upon decisions of the Hon'ble Supreme Court in the matters of "Kunal Nanda vs. Union of India & Anr." 2000(5) SCC 362 and "U.P. Gram Panchayat Adhikari Sangh & Ors. vs. Daya Ram Saroj & Ors." 2007(2) SCC 138. Learned AAG submitted that in Ashok Kumar Ratilal Patel's case (supra) relied upon by the counsel for the petitioner, while drawing distinction between 'Transfer on deputation' and 'Appointment on deputation', the cancellation of the deputation before the expiry of the term specified was held to be bad in law by the court. But in the instant case, the petitioners' (20 of 25) [ CW-5324/2016 & connected matters] term of appointment on deputation already stands expired and therefore, the petitioners cannot claim continuance of the deputation posting further as a matter of right. It is submitted that as per the mandate of the order issued by the Government in exercise of the power conferred under Rule 144A, the period of deputation cannot be extended beyond five years and thus, the said decision has no application to the facts of the present cases. Learned AAG further submitted that the decision of the Hon'ble Supreme Court in Mohd. Abdul Kadir's case (supra) is not also applicable to the present case inasmuch as, the said matter related to the staff employed on adhoc and temporary basis under the project or scheme which was held to be co-terminus with the scheme. Learned AAG submitted that the deputation does not create any vested right in deputationist and cancellation thereof is a matter of policy of the Government which cannot be interfered with by this court. In support of the contention, reliance is placed on a decision of this court in the matter of "Anada Ram & 19 Ors. vs. State of Rajasthan & Ors.", WLC 2011(1) 212.
10. I have considered the rival submissions and perused the material on record.
11. Indisputably, the petitioners in Writ Petitions Nos.5324/16, 9441/16 and 15153/16, substantively holding the post of Teacher Gr.III in the Department of Education, Government of Rajasthan, possessing the requisite qualification prescribed for the post of Junior Engineer, were posted on the said post on deputation in the Council after due selection pursuant to the advertisement issued (21 of 25) [ CW-5324/2016 & connected matters] on 5.7.08 or subsequent thereto. A bare perusal of the order dated 23.8.08 issued by the Commissioner of the Council reveals that the petitioners were given posting on deputation on the post of Junior Engineer in their existing pay scale for a period of one year. It is true that as per the terms of the order, the period of deputation was opened to be further extended on the services being found satisfactory and the petitioners have continued on deputation for all these years without an appropriate order extending the period of deputation being issued. But the fact remains that the deputation posting of the employees of the State Government is governed by Rule 144A of RSR, which specifically provides that the deputation of the Government servant shall be regulated in accordance with the order issued by the Government from time to time. It is not disputed before this court that as per the Government order in force, initially a Government servant may be appointed on deputation for a period of one year which can be further extended in the public interest by the administrative department concerned for a period of three years and in exceptional cases, the period of three years can be further extended with the sanction of the Department of Personnel and Department of Finance, on concerned administrative department forwarding the proposal with justification therefor two months prior to the expiry of the period of deputation. In any case, as per the Government order issued in exercise of the power conferred under Rule 144A of RSR, it is not permissible to extend the period of deputation beyond five years. Merely because, the petitioners (22 of 25) [ CW-5324/2016 & connected matters] have continued on deputation beyond the period of five years, it does not create any indefeasible right in their favour to continue on deputation for indefinite period and thus, the action of the respondents in declining to continue the petitioners on deputation and initiating the fresh process for appointment on various posts by way of deputation cannot be faulted with.
12. There cannot be any quarrel with the preposition that there exists difference between 'Appointment on deputation' and 'Transfer on deputation' inasmuch as, the former does not result in recruitment whereas, the later falls within the definition of recruitment which creates a legal right in favour of the deputationist to hold the post and therefore, the letter of appointment issued in his favour cannot be cancelled except on the ground of non suitability and unsatisfactory work during the period of deputation specified. But then, the appointment by way of deputation does not create any vested right in favour of the deputationist to continue on the post to which he is deputed, beyond the term of the appointment and therefore, no deputationist appointed on any post can claim to continue on deputation for indefinite period.
13. In Ashok Kumar Ratilal Patel's case (supra), relied upon by the learned counsel appearing for the petitioners, it is nowhere laid down by the Hon'ble Supreme Court that the persons appointed on deputation has indefeasible right to continue on the post beyond the period of deputation specified in the letter of appointment rather, while deciding the issue raised as aforesaid, (23 of 25) [ CW-5324/2016 & connected matters] the court has issued directions to the employer to accept joining of the person appointed on deputation for a period of one year from the date of joining i.e. the period of deputation fixed under the letter of appointment. In this view of the matter, in the considered opinion of this court, the decision of the Hon'ble Supreme Court in Ashok Kumar Ratilal Patel's case (supra) does not help the petitioners in any manner.
14. In Mohd. Abdul Kadir's case (supra), the Hon'ble Supreme Court while deprecating the practice of giving artificial break from time to time and then reappointing the same staff on adhoc and temporary basis, taking into consideration the particular scheme, issued directions to continue the staff appointed against a particular scheme purely on adhoc and temporary basis till the scheme is continued. Thus, the ratio of the decision of the Hon'ble Supreme Court in Mohd. Abdul Kadir's case (supra) cannot be applied to the facts of the present case which relate to appointment on deputation made for specified period, the extension whereof is governed by the order issued by the State Government in exercise of the power conferred under the relevant Rules.
15. In S.N. Maity's case (supra), where the person was appointed on deputation for a period of five years or until further orders, the Hon'ble Supreme Court observed that the deputation was fixed tenure posting for five years and therefore, in the garb of 'until further orders', the period fixed cannot be curtailed arbitrarily or capriciously. In the instant cases, the petitioners (24 of 25) [ CW-5324/2016 & connected matters] herein have already completed their term of deputation posting fixed under the letter of appointment and it is not the case of any of the petitioners that their term of appointment has been arbitrarily curtailed rather, they are claiming extension beyond the term specified. Thus, the said decision has also no application to the facts of the present cases.
16. Similarly, in I.K. Mansoori's case (supra) also, the Hon'ble Supreme Court held that the tenure of appointment on deputation could have been curtailed only on the ground of non suitability. Thus, the ratio of decision is that the tenure appointment on deputation cannot be brought to an end pre maturely.
17. In Mrs. Shashi Singh's case (supra) relied upon by the learned counsel, the learned Single Judge of this court noticing the fact that one Smt. Chitra Rathore was continued on deputation whereas the petitioner therein was denied extension observed that the cancellation of deputation without furnishing any reasons therefor is unjustified. As noticed hereinabove, in the instant cases, it is not the case of the petitioners that the period of deputation fixed under the letter of appointment is curtailed arbitrarily or any person who continued on deputation beyond the period fixed is being retained on deputation in defiance of the order issued by the Government in exercise of the power conferred under Rule 144A of RSR and thus, the decision of the coordinate Bench of this court in Shashi Singh's case (supra) also does not support the petitioners in any manner.
18. Suffice it to say that the petitioners who have completed (25 of 25) [ CW-5324/2016 & connected matters] their tenure of appointment on deputation, have no vested right whatsoever to remain with the borrowing department and their repatriation to their substantively held posts in the lending department, cannot be faulted with.
19. There is yet another aspect of the matter. The petitioners herein are substantively holding the post of Teacher and therefore, taking into consideration the nature of duties they are expected to discharge, it would not be appropriate to continue them on deputation for indefinite period on the post carrying non teaching duties. As a matter of fact, looking to the important function of imparting education to the children being discharged by the teachers, unless it is absolutely necessary for the administrative exigency, ordinarily, the teaching staff should not be posted on deputation or otherwise to discharge non teaching duties.
20. Thus, viewed from any angle, no case for interference by this court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India is made out.
21. In the result, the petitions fail, the same are hereby dismissed. No order as to costs.
(SANGEET LODHA), J.
aditya/