Allahabad High Court
Vimal Kumar Mishra (In Wria 14772 Of ... vs State Of U.P. Thru. Prin.Secy.Deptt. ... on 10 November, 2022
Bench: Devendra Kumar Upadhyaya, Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No. - 2 Case :- SPECIAL APPEAL DEFECTIVE No. - 61 of 2022 Appellant :- Vimal Kumar Mishra (In Writ-A No.14772 of 2020) Respondent :- State Of U.P. Thru. Prin.Secy.Deptt. Urban Deve. Urban Employment Poverty Alleviation Lko. And Ors Counsel for Appellant :- Apoorva Tewari Counsel for Respondent :- C.S.C.,Kazim Ibrahim Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Rajnish Kumar,J.
1. This intra-court appeal filed under Chapter VIII Rule 5 of the Rules of the Court assails the order dated 31.05.2022, passed by the learned Single Judge whereby Writ-A No.14772 of 2020 has been dismissed.
2. Before learned Single Judge, the appellant-petitioner, by filing the aforesaid writ petition, had challenged the order dated 08.07.2020, passed by the respondent No.2-Director, State Urban Development Agency (hereinafter referred to as "SUDA") whereby his deputation with SUDA was cancelled and he was repatriated to his parent department. The appellant-petitioner also challenged the order dated 15.07.2020, whereby he was relieved from the post of Project Officer, District Urban Development Agency (hereinafter referred to as "DUDA"), Sultanpur and the order dated 29.07.2020 whereby one Smt. Sunita Singh was posted on the post which was being occupied by the appellant-petitioner.
3. During pendency of the writ petition, an order dated 09.04.2021 was passed by the Director, SUDA in compliance of the interim order, dated 17.11.2020, passed by the learned Single Judge, refusing to reinstate the appellant-petitioner on the post in question and only paying the salary from 08.07.2020 till 4.12.2020. The said order dated 09.04.2021 was also challenged by the appellant-petitioner by amending the writ petition before the learned Single Judge.
4. Before adverting to the rival submissions made by the learned counsel for the parties, we may notice certain facts of the case.
5. By issuing a Notification on 21.06.2017, SUDA invited applications from the State Government employees working in different government departments to be appointed on deputation against various posts in SUDA/DUDA. In tune with the said Notification, an advertisement was published in the newspaper on 26.06.2017. The appellant-petitioner, who was working since 1989 in the department of Animal Husbandry, Government of U.P. made an application for appointment on deputation on the post of Project Officer. It is not in dispute that the appellant-petitioner was subjected to selection and on the basis of such selection, appointment order was issued on 27.10.2017 appointing him on deputation to the post of Project Officer. At the relevant point of time i.e. the time when the appellant-petitioner was appointed with SUDA, he was working on the post of Pashudhan Prasar Adhikari, Directorate of Animal Husbandry, Lucknow. The appointment by way of deputation made on 27.10.2017 was for the period of one year which was subject to further conditions given in the contract of appointment.
6. The contract of appointment entered into between the appellant-petitioner and SUDA is on record, according to which appellant-petitioner was to present himself under the orders and the officers of SUDA. Contract of appointment further stipulates that the appointment of the appellant-petitioner on deputation was for the initial period of one year and further that on conclusion of initial period of one year, his work and conduct was to be evaluated by SUDA and in case nothing adverse against the interest of SUDA was found, his term of deputation by the SUDA would be extended for further period of one year. Contract further provides that similarly the term of deputation would be extended for further one year each time on evaluation of work and conduct of the appellant-petitioner, however, the maximum term of deputation would not be extended for more than five years. The relevant clauses of initial engagement and extension of term on deputation of the appellant-petitioner are available in his contract of appointment which are quoted herein under :
Þ¼1½ izFke i{k vius dks vfHkdj.k ds vkns'kksa ds rFkk muds vf/kdkfj;ksa rFkk izkf/kdkfj;ksa ds v/khu izLrqr djsxk] ftuds v/khu vfHkdj.k }kjk mls le; le; ij j[kk tkrk gS rFkk izFker% ,d o"kZ dh vof/k ds fy, izfrfu;qfDr ij jgsxk tks lu ------------- ds ekg ----------- ds fnukad -------------- ls izkjEHk gksxh vkSj blesa varfoZ"V micU/kksa ds v/khu gksxhA ¼2½ ;g fd izFke i{k dh izfrfu;qfDr izFker% ,d o"kZ dh lsok dh lekfIr ij mlds }kjk fd;s x;s dk;ksZ ,oa vkpj.k dh leh{kk vfHkdj.k ¼nwljs i{k½ }kjk dh tk;sxh vkSj dk;Z ,oa vkpj.k esa dksbZ rF; vfHkdj.k ds fgr ds izfrdwy u ik;s tkus ij mldh izfrfu;qfDr nwljs i{k }kjk vkSj ,d o"kZ ds fy, c ¼3½ izFke i{k dh lsok fuEu izdkj ls Hkh lekIr dh tk ldrh gS%&
(i) izfrfu;qfDr dh ,d o"kZ dh vof/k lekIr gksus ij fcuk fdlh uksfVl dsA
(ii) dlh Hkh le; vfHkdj.k }kjk mldks ,d dys.Mj ekl lwpuk fn;s tkus ij ;fn vfHkdj.k dh jk; esa izFke i{k bl vuqcU/k dh vof/k esa vius drZR;ksa ,oa nkf;Roksa dks n{krkiwoZd ikyu djus esa vuqi;qDr fl) gksrk gSA
(iii) vfHkdj.k }kjk fcuk lwpuk ds ;fn vfHkdj.k fpfdRlk lk{; ij bl ckr ls larq"V gks fd izFke i{k ds vius [kjkc LokLF; ds dkj.k m0 iz0 esa vius drZO;ksa dk ikyu djus esa v;ksX; cus jgus dh lEHkkouk i;kZIr le; rd cuh jgsxh A izfrcU/k lnSo ;g gS fd izFke i{k ds vuqi;qDr cus jgus ds lEcU/k esa vfHkdj.k dk fu.kZ; izFke i{k ds fy, fu.kkZ;d rFkk ck/;dkjh gksxkA
(iv) vfHkdj.k }kjk vFkok mfpr vf/kdkj j[kus okys vf/kdkfj;ksa }kjk nh xbZ lwpuk ds ;fn izFke i{k voKk vla;e vFkok vU; izdkj ds nqjkpj.k dk nks"kh gks vFkok bl vuqcU/k ds fdlh micU/k ds Hkax djus ;k lkoZtfud lsok dh ml '''kk[kk ls lEcfU/kr fu;eksaa dk ikyu u djus dk nks"kh gks] ftlls fd og lEcfU/kr gks ¼bl vuqcU/k ds vUrxZr lsok ds nkSjku fdlh Hkh le;] dsoy izFke o"kZ dks NksMdj½ ml dSys.Mj ekl dh fyf[kr lwpuk ;k rks mlds }kjk vfHkdj.k dks vFkok vfHkdj.k ;k mlds }kjk izkf/kd`r vf/kdkjh }kjk mldks fcuk dksbZ dkj.k crk;s fn;s tkus ijA ¼4½ izfrcU/k lnSo ;g gS fd vfHkdj.k blesa micfU/kr fdlh lwpuk ds LFkku ij izFke i{k dks ,d ekg ds osru ds cjkcj /kujkf'k nsus vFkok ,d ekl dh de dh uksfVl Hkh nh tk ldrh gS] ;fn os mldks ml vof/k ds osaru dh /kujkf'k ds cjkcj /ku nsrs gSa ftrus ls fdlh ,slh ,d ekl esa de iMrh gSA fdUrq izfrcU/k ;g Hkh gS fd bl [k.M dh mi[k.M ¼2½ ds v/khu nh x;h uksfVl fn;s tkus dh n'kk esa] iwoZorhZ izfrcU/k esa 'kCn ¼,d ekg½ i ¼8½izFke i{k fdlh nqOZ;ogkj vFkok vuqcU/k dh fdlh 'krZ ds mYya/ku dk nks"kh ik;k tkrk gS rks f}rh; i{k }kjk fcuk uksfVl ds mldks mlds ewy foHkkx izR;kofrZr dj fn;k tk;sxkA ¼13½ iz{kr i{k dh lsok;sa iw.kZr% vLFkk;h izd`fr dh gksaxh vkSj in miyC/k u gksus ij mldh izfrfu;qfDr lekIr dj nh tk;sxhA izfrfu;qfDr vof/k lekIr gksus ij izFke i{k dh lsok,a Lor% lekIr le>h tk;saaxhA
7. Having been selected and appointed on deputation to the post of Project Officer in SUDA, the contract of appointment was entered into between the parties on 17.11.2017. The appellant-petitioner was accordingly relieved from his parent department on 04.12.2017 and submitted his joining before SUDA on 05.12.2017. On submission of his joining at SUDA on 05.12.2017, the appellant-petitioner was posted as Project Officer, DUDA at Sultanpur and pursuant to the said order of posting at Sultanpur, he submitted his joining at Sultanpur on 06.01.2018. The appellant-petitioner thereafter is said to have been working and discharging his duties on the post of Project Officer, DUDA at Sultanpur. However, as is apparent from perusal of the original records produced before the Court, on 25.06.2020, a letter was written from the Secretariat of Hon'ble the Chief Minister to the Principal Secretary, Urban Planning and Development Department enclosing therewith two letters of an Hon'ble Member of Legislative Assembly from Sultanpur Constituency, one of which was in respect of the appellant-petitioner. In the said letter, it was stated by the Hon'ble Member of Legislative Assembly that the appellant-petitioner had been working at DUDA, Sultanpur since long having been appointed on deputation and that the appellant-petitioner did not have even the basic knowledge of the works related to Urban Development Department because of which no development works were being carried out in different Wards of the city of Sultanpur; neither the beneficiaries of various government schemes were getting the benefits. The letter further stated that the appellant-petitioner did not act upon many of the proposals given to him by the Hon'ble Member of Legislative Assembly and that there have been certain complaints in respect of the process of allotment of houses under the Pradhan Mantri Shahri Awasiya Yojna and Kashi Ram Shahri Awasiya Yojna. The Hon'ble Member of Legislative Assembly, thus, requested the Hon'ble Chief Minister to repatriate the appellant-petitioner to his parent department and to post some other officer in his place.
8. Letter dated 25/26.06.2020 issued from the Secretariat of Hon'ble the Chief Minister accompanied by a letter written in respect of the appellant-petitioner by Hon'ble the Member of Legislative Assembly was considered by the SUDA and as desired by the letter dated 25/26.06.2020 from the Secretariat of Hon'ble the Chief Minister, the matter was considered for sending a report in the light of the transfer policy of the State Government. It is noteworthy that the Hon'ble Member of Legislative Assembly had desired to repatriate the appellant-petitioner in his letter submitted to the Secretariat of Hon'ble the Chief Minister, however, the Secretariat of Hon'ble the Chief Minister required the Administrative Department to submit a report in the light of the transfer policy of the State Government. Accordingly, in the office of the Director, SUDA, the matter was considered on 08.07.2020 and a decision was taken to terminate the term of deputation of the appellant-petitioner and to repatriate him to his parent department.
9. In view of the said consideration made by the Director, SUDA on 08.07.2020, the order dated 08.07.2020 was passed by the Director terminating the term of deputation of the appellant-petitioner and repatriating him to his parent department i.e. Directorate of Animal Husbandry, U.P., Lucknow.
10. It is noticeable that the letter dated 25/26.06.2020 whereby the report was asked to be submitted in the light of the transfer policy of the State Government was sent by the State Government in the department of Urban Development to the Director, SUDA, vide latter dated 08.07.2020 itself. By the said letter, dated 08.07.2020, though the State Government required the Director to furnish his report in the light of the transfer policy of the State Government mentioned to the letter of Hon'ble the Member of Legislative Assembly, however, when we examine the original record, what we find is that instead of submitting the report to the State Government in the light of the transfer policy of the State Government, the Director, SUDA took a decision to terminate the term of deputation of the appellant-petitioner and accordingly repatriated him to his parent department.
11. It is this order dated 08.07.2020, passed by the Director, SUDA whereby the term of deputation of the appellant-petitioner was terminated and he was repatriated to his parent department that became the subject matter of challenge in Writ-A No. 14772 of 2020.
12. The instant Special Appeal has been filed by the appellant-petitioner challenging the order dated 31.05.2022 whereby the writ petition filed by him has been dismissed.
13. It is noticeable that the Director, SUDA while passing the order of repatriation and termination of term of deputation of the appellant-petitioner on 08.07.2020 has stated therein that his term of deputation is being terminated on administrative ground.
14. Impeaching the judgment and order under appeal, the learned counsel representing the appellant-petitioner has argued that the learned Single Judge while dismissing the writ petition has erred in law, inasmuch as that the order under challenge before the learned Single Judge has not been set aside despite recording the finding that it was a case where the appellant-petitioner was appointed on deputation and not by way of transfer on deputation and hence the appellant-petitioner would stand on a higher pedestal as compared to a case of mere transfer on deputation. It has further been argued by the learned counsel for the appellant-petitioner that though the finding has been recorded by the learned Single Judge that the appellant-petitioner was repatriated during subsistence of his contract, however, no notice was issued before passing the order of repatriation, neither does the order of repatriation disclose any ground/reason, even then the Writ Petition has been dismissed which vitiates the order under appeal herein.
15. Learned counsel representing the appellant-petitioner has also argued that from the original record, it is apparent that it is not a case where on the basis of assessment of performance and work and conduct of the appellant-petitioner, a conscious decision was taken not to renew and extend the term of the deputation, rather it is a case of curtailment and cancellation of term of deputation and as such in terms of the provisions contained in the contract of appointment, the order impugned in the writ petition could not be justified.
16. Learned counsel for the appellant-petitioner has also contended that though by the interim order dated 17.11.2020, the operation of the order, which was under challenge in the writ petition, dated 08.07.2020, was stayed and a further direction was issued to reinstate the appellant-petitioner, however, in pursuance of the said order though the appellant-petitioner was paid remaining salary till completion of three years period, vide order dated 09.04.2021 but he was not reinstated and such an action on the part of the SUDA has clearly been ignored by the learned Single Judge while passing the order under challenge herein.
17. Per-contra, learned State Counsel as also learned counsel representing the SUDA have submitted that the order dated 08.07.2020 whereby the appellant-petitioner was repatriated to his parent department and his term of deputation was curtailed, does not suffer from any illegality or irregularity and the same having been passed in conformity with the contract of appointment did not require any interference. In this view the submission is that the order passed by the learned Single Judge which is under appeal before us is perfectly lawful and does not warrant any interference in this Special Appeal and accordingly the Special Appeal is liable to be dismissed at its threshold.
18. We have considered the rival submissions made by the learned counsel representing the respective parties in detail and have also perused the records available before us on this Special Appeal. On our direction, the original record from where the order dated, 08.07.2020 had emanated was also produced which we have also gone through.
19. First of all what needs to be noticed in this case is that the appointment of the appellant-petitioner in the borrowing department, namely, SUDA was not made by way of ''transfer on deputation'; rather it is a case of ''appointment on deputation' for the reason that before being offered appointment on deputation with SUDA the appellant-petitioner was not only required to make application but was also subjected to selection to judge his suitability to work on the post in question at SUDA.
20. Drawing the distinction between the ''appointment on deputation' and ''transfer on deputation', Hon'ble Supreme Court in the case of Ashok Kumar Ratilal Patel Vs. Union of India and another, reported in (2012) 7 Supreme Court Cases, 757 has observed, inter-alia, that ordinarily the ''transfer on deputation' is made from one cadre to another, one department to another, one organization to another, or one government to another, however, in such a case a deputationist does not have any legal right against the post to continue. Hon'ble Supreme Court has further observed in the said case of Ashok Kumar Ratilal Patel (supra) that the principle relating to ''transfer on deputation' cannot be made applicable in the matter of ''appointment (recruitment) on deputation'. Hon'ble Supreme Court has further stated that in case of ''appointment on deputation' the provisions of Article 14 and Article 16 of the Constitution of India are to be followed. The Hon'ble Supreme Court further observed that it is not open to the appointing authority to act arbitrarily or to pass any order in violation of Article 14 and Article 16 of the Constitution of India.
21. The aforesaid observations by Hon'ble Supreme Court in the case of Ashok Kumar Ratilal Patel (supra) were made noticing the facts of the said case that it was not a case of ''transfer on deputation'; rather it was a case of ''appointment on deputation' in which advertisement was issued and after due selection the offer of appointment was made in favour of the employee concerned. In this back-ground, Hon'ble Supreme Court, thus, observed in the case of Ashok Kumar Ratilal Patel(supra) that in the circumstances where it is a case of ''appointment on deputation' it is not open to the employer to submit that the employee does not have any right to claim deputation. Paragraphs 13, 14 and 15 of the judgment in the case of Ashok Kumar Ratilal Patel (supra) are relevant and are extracted herein below :
"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 is 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 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".
22. We must also note that Hon'ble Supreme Court in the case of Kumari Shrilekha Vidyarthi and others Vs. State of U.P. and others, reported in (1991) 1 Supreme Court Cases 212, which related to contractual appointment of the District Government Counsel, has clearly observed that even contractual appointment attracts Article 14 of the Constitution of India to exclude arbitrariness permitting judicial review of such State action. Hon'ble Supreme Court has further observed that applicability of Article 14 to all executive actions of the State with an object of excluding arbitrariness in such State action is very well settled. Hon'ble Supreme Court has further observed that the State cannot be permitted to exercise unbridled and unfettered powers by virtue of Article 14 of the Constitution of India even in the sphere of the contractual matters.
23. Action on the part of the SUDA in this case whereby the term of deputation of the appellant-petitioner has been terminated and he has been repatriated to his parent department is, thus, in our considered opinion, to be viewed in the light of the legal principles involved by the Hon'ble Supreme Court in the aforesaid judgment in the case of Ashok Kumar Ratilal Patel (Supra) and Kumari Shrilekha Vidyarthi(Supra).
24. From the record available before us, what is apparent is that at the time when the order dated 08.07.2020 cancelling the deputation of the appellant-petitioner and repatriating him to his parent department was passed, term of his deputation was continuing and accordingly the validity of the order, dated 08.07.2020 has to be adjudged on the basis of the provisions contained in the contract of appointment entered into between the appellant-petitioner and SUDA.
25. As per the contract of appointment, which is on record, initial term of deputation was to be one year which was to be extended for further period of one year in case nothing adverse to the interest of SUDA was found. The contract of appointment further states that such deputation shall be further extended for a period of one year each time, however, it further stipulates that term of deputation will not exceed five years. As regards the termination, contract of appointment stipulates that on conclusion of period of one year deputation it could be terminated without any notice. Clause 3 of the contract of appointment further stipulates that deputation can be terminated at any time after giving one calendar month notice, that too, in case in the opinion of SUDA, the appellant-petitioner is found to be unsuitable in discharge of his work and duties. Another situation where term of deputation can be terminated, as per term of contract, is that when it is found that deputationist is unable to perform his duties on account of health reasons.
26. Apart from the aforesaid, the contract of appointment further stipulates that in lieu of one month's notice, one month pay can be given and period of notice can also be reduced from one month. Clause 8 of the term of appointment also provides that in case the appellant-petitioner is found to be guilty of any misconduct or he is found to have violated any of the terms of appointment then in that situation he shall be repatriated to his parent department without any notice.
27. The order, dated 08.07.2020, passed by the Director, SUDA simply states that on administrative ground deputation of the appellant-petitioner is cancelled and he is repatriated to his parent department, namely, Directorate of Animal Husbandry, U.P. The order, thus, does not give any reason regarding termination of period of deputation and repatriation of the appellant-petitioner. It also does not mention that he is being paid salary of one month or of any other specific period in lieu of any notice as stipulated in the contract of appointment.
28. As a matter of fact, the reasons for passing the order dated 08.07.2020 can be found in the original record maintained by SUDA from where the said order, dated 08.07.2020 has emanated.
29. We have already discussed the circumstances in which the order dated 08.07.2020 was passed. At the cost of reiteration, we may indicate that entire exercise which culminated in passing of the order dated 08.07.2020 commenced from the letter written by the Hon'ble Member of Legislative Assembly which was sent to the Administrative Department, namely, department of Urban Development requiring the Administrative Department to submit a report in respect of the appellant-petitioner in the light of the transfer policy of the State Government. On the said asking by the Secretariat of Hon'ble the Chief Minister vide letter dated 25/26.06.2020 the State Government in the department of Urban Development directed the Director, SUDA, by means of letter dated 08.07.2020, to submit a report to the State Government in the light of the transfer policy of the State Government. The said letter dated, 08.07.2020 written by the State Government to the Director, SUDA makes a mention of the letter written in respect of the appellant-petitioner by the Hon'ble Member of Legislative Assembly. It also makes a mention of the letter dated 26.06.2020 along with which letter of Hon'ble Member of Legislative Assembly was sent to the Administrative Department.
30. When we peruse the original record from where the order dated 08.07.2020 cancelling the term of the appellant-petitioner and repatriating him to his parent department has emanated, what we find is that the entire consideration has been made on the basis of letter dated 08.07.2020 sent by the Administrative Department to the Director, SUDA to submit report in the light of the transfer policy of the State Government. However, in place of submitting any report to the State Government in the light of the transfer policy, as desired by the State Government in its letter dated 08.07.2020 as also in the letter dated 25/26.06.2020, the SUDA considered certain aspects of the alleged indiscipline and misconduct of the appellant-petitioner and noted the contents of the letter written by the Member of Legislative Assembly and further noted that during the period of lock-down imposed on account of pandemic caused by Covid 19, the appellant-petitioner had been absent in respect of which he was required to furnish explanation by means of letter, dated 19.05.2020. Consideration on file further reveals that the appellant-petitioner had also allegedly exerted pressure through State Government/ Government of India for his transfer to DUDA, Allahabad, which according to SUDA was a misconduct.
31. Thus, for passing the order, dated 08.07.2020 cancelling the term of the appellant-petitioner and repatriating him to his parent department, the following material was considered.
(a) The letter written by the Hon'ble Member of Legislative Assembly whereby he had required the appellant-petitioner to be repatriated to his parent department and posting of some other officer in his place.
(b) Explanation called from the appellant-petitioner in respect of his alleged absence during lock-down period caused on account of Covid 19.
(c) The alleged pressure exerted by the appellant-petitioner for his posting to DUDA, Allahabad through State Government/Government of India.
32. The original records, thus, nowhere show that while passing the order dated 08.07.2020, the Director, SUDA anywhere considered as to whether the term of deputation of the appellant-petitioner is to be extended or not in terms of contract of appointment. Admittedly, before passing the order dated 08.07.2020, no notice was issued to the appellant-petitioner; neither any explanation was called for from him about the matters which were considered at the time of passing of the order dated 08.07.2020.
33. It has been laid down in the case of Ashok Kumar Ratilal Patel (supra) by the Hon'ble Supreme Court that in case of ''appointment on deputation' it cannot be claimed by the employer that the employee did not have any right to continue till completion of his term of deputation. Had it been a case where while passing the order dated 08.07.2020, the Director, SUDA had considered the suitability of the appellant-petitioner for the purpose of extending his term of deputation, the situation would have been different. In that eventuality, it would have been open to the Director, SUDA not to extend the term of the deputation on the ground of alleged misconduct, absence or unsuitability etc., however, as observed above, from the record from where the order, dated 08.07.2020 has emanated, it does not transpire that there was any consideration for extension of term of deputation of the appellant-petitioner. As a matter of fact the entire exercise in the office of Director, SUDA commenced on the letter received from the State Government, dated 08.07.2020 whereby the Director was required to submit a report in the back-ground of letter of Hon'ble Member of Legislative Assembly and in the light of transfer policy of the State Government. However, the Director instead of submitting any report regarding the appellant-petitioner in the light of the transfer policy, passed the order terminating his deputation and repatriating him to his parent department. Such an act on the part of the Director, in our opinion, is, thus, arbitrary and in fact is based on alleged misconduct and absence from duty of the appellant-petitioner. The order dated 08.07.2020, thus, does not conform to the contract of appointment entered into between the appellant-petitioner and SUDA.
34. There is yet another aspect of the matter which needs to be noticed. Learned Single Judge while entertaining the writ petition filed by the appellant-petitioner challenging the order of termination of deputation and his repatriation to his parent department, dated 08.07.2020, passed an order on 17.11.2020 clearly providing therein that until further orders, operation of the order of repatriation dated 08.07.2020 shall remain stayed. By the said interim order, learned Single Judge had also provided that the respondents in the writ petition shall be at liberty to post the appellant-petitioner at any place elsewhere. The Court further directed that the appellant-petitioner shall be reinstated in service and shall be paid his salary regularly. The respondents, however, did not pass any order in compliance of the order dated 17.11.2020 passed by the learned Single Judge for about four and half months and it was only vide order dated 09.04.2021 that it was directed that the appellant-petitioner shall be paid his salary from the date of his repatriation i.e. from 08.07.2020 till 04.12.2020. However, the Director refused to reinstate the appellant-petitioner on some legal advise and giving the reason that three years period of deputation has come to an end on 04.12.2020, as such the appellant-petitioner could not be reinstated.
35. It is to be noticed that the order, dated 17.11.2020 was passed before expiry of the period of deputation of the appellant-petitioner which, according to the order dated 09.04.2021 passed by the Director, SUDA himself, expired only on 04.12.2020. It would have been entirely a different situation if on expiry of period of deputation on 04.12.2020, the Director, for some valid reason of non-suitability of the appellant-petitioner would have taken a decision not to extend the period of his deputation. However, the order dated, 09.04.2021 cannot be said to have been passed on consideration of the issue relating to extension of term of deputation of the appellant-petitioner as per contract of appointment; rather it is an order passed by the Director, SUDA in compliance of the order dated 17.11.2020, passed by the learned Single Judge in the writ petition.
36. When we peruse the order passed by the learned Single Judge which is under appeal before us, what we find is that the learned Single Judge has proceeded on the premise that the order dated 08.07.2020 was passed considering the work and conduct of the appellant-petitioner and the Director, SUDA was well within his jurisdiction and right not to extend the term of the appellant-petitioner. But, when we examine the original record from where the order dated 08.07.2020 has emanated, what we find is that the said order was not passed while considering the extension of term of deputation of the appellant-petitioner. The circumstances and situations in which the order dated 08.07.2020 was passed by the Director, SUDA has already been spelt out herein above in the preceding paragraphs.
37. Accordingly, we do not find ourselves in agreement with the judgment and order passed by the learned Single Judge which is under appeal before us in this Special Appeal.
38. The Special Appeal is, thus, allowed. The judgment and order dated 31.05.2022, passed by the learned Single Judge in Writ-A No.14772 of 2020 is hereby set aside. We also quash the order dated 08.07.2020, passed by the Director, State Urban Development Agency, U.P. whereby the term of deputation of the appellant-petitioner was terminated and he was repatriated to his parent department. The order dated 09.04.2021, passed by the Director, State Urban Development Agency, U.P. so far as it refuses reinstatement of the appellant-petitioner on the post of Project Officer, is also hereby quashed.
39. At this juncture, we may notice that the maximum period of deputation permissible under the contract of appointment is five years and the appellant-petitioner was first appointed on deputation on 27.10.2017, thus, five years period has already come to an end and accordingly he cannot be retained any further on deputation with SUDA. The appellant-petitioner, thus, will submit his joining with his parent department within 10 days from today.
40. The appellant-petitioner was wrongly denied his reinstatement in SUDA earlier but he has not worked during the intervening period. Thus, we find it appropriate to direct that he shall be paid 50% of his salary till 26.10.2022. Accordingly, he shall be paid this amount of salary by SUDA within six weeks from today.
41. The original record shall be remitted to the learned counsel representing SUDA.
42. There will be no order as to cost.
Order Date :-10.11.2022/Sanjay