Uttarakhand High Court
Dr. Lalta Prasad vs State Of Uttarakhand And Others on 27 July, 2017
Author: K.M. Joseph
Bench: K.M. Joseph, Alok Singh
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. 179 (SB) of 2014
Dr. Lalta Prasad. ........Petitioner.
Versus
State of Uttarakhand
and others. ...... Respondents.
Present:
Mr. Sandeep Tiwari, Advocate for the petitioner.
Mr. Pradeep Joshi, Standing Counsel for the State of Uttarakhand.
Mr. Dinesh Gahatori, Advocate for respondent no. 5.
Coram:
Hon'ble K.M. Joseph, CJ.
Hon'ble Alok Singh, J.
Dated: July 27, 2017 Hon. K. M. Joseph, C.J. (Oral)
1. Petitioner has approached this Court seeking following reliefs:
"i. Issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 26.02.2014 passed by respondent no. 2.
ii. Issue a writ, order or direction in the nature of Mandamus directing the respondents to consider the candidature of the petitioner being senior most as officiating Director, Culture in Culture Directorate."
2. Petitioner was appointed as Technical Assistant Archives on 23.01.1985. On 24.12.2007, he became Deputy Director Archives in the pay scale of Rs. 8550-14600. Petitioner was given charge of Deputy Director, Culture on 29.12.2007. He was also made DDO of the Department on 11.08.2009. According to the petitioner, respondent no. 5 was appointed as Regional Employment Officer on 04.03.1996. On 22.04.2000, she was sent on deputation as Assistant Director, Hill Culture Department. She 2 functioned as Deputy Director, Culture from 10.09.2002 to 22.12.2003. Thereafter, on 11.08.2009, respondent no. 5 came on deputation as Joint Director, Culture. It is while she was working as Deputy Director in Culture Department in the pay scale 15600 - 39100 with Grade Pay 7600. On 26.02.2010, the Government has created a post of Director, Culture. Three methods of appointment of Director, Culture are provided: first priority goes to Joint Director, Culture. If there is no one available in that category, person working in the rank of Additional Director in other Departments having two years experience in the pay scale of Rs. 37400 - 67000 with Grade Pay 8700 are eligible and in absence of earlier two categories, person working regularly in the pay scale of Joint Director for 5 years may be absorbed on transfer of service / deputation. On 03.07.2010, it is complained that respondent no. 5 took charge of DDO without obtaining prior permission from Finance Department. On 13.02.2013, petitioner became Director Archives by way of promotion. Impugned order thereafter came to be passed on 26.02.2014 english translation whereof reads as under:
"From Dr. Umakant Panwar, Secretary, Government of Uttarakhand.
To The Director, Directorate of Culture, Uttarakhand, Dehradun.
Culture, Sports and Tourism Section - 2 Dehradun dated 26.02.2014 Subject: Regarding the permanent transfer of services/ absorption in Department of Culture.
With reference to your letter no. 3035/san.ni. u/ ek - 1 / 2013-14 dated 27 December, 2013, I have been directed to say that after due consideration the Government has taken a view that in the interest of Department of Culture and on the basis of nearly 08 years of service given by Ms. Beena 3 Bhatt in Culture Department and NOC received by order no. 106/VIII/2014 - 19 (Seva)/2009 dated 17 February 2014, the services of Ms. Beena Bhatt are permanently transferred to the Directorate of Culture. She is hereby absorbed on the post of Joint Director (Pay Scale Rs. 15600 - 39100 Grade Pay Rs. 7600) in the Directorate of Culture.
Ms. Beena Bhatt will keep discharging her duties as Director Incharge, Directorate of Culture as earlier for which she will not be given any additional pay or perks."
3. Therefore, petitioner would contend that order of absorption of respondent no. 5 is not correct. Firstly, respondent no. 5 was absorbed on the post of Joint Director, then she was given charge of Director, Culture by the impugned order, which was done on the basis of wrong information that no officer in the feeding cadre is available. This was done without obtaining prior permission from the Finance Department and the Personnel Department. The candidature of the petitioner was overlooked for giving charge of officiating Director. Petitioner is the senior most officer, working in the pay scale of 15600 - 39100 with grade pay 7600. There is no dispute that actual grade pay of the Director, Archives is Rs 6600 but according to the petitioner on the length of service he is getting grade pay Rs. 7600. There is contention of the petitioner that Department of Archives is subordinate unit of Department of Culture. There is no specific contention that Government has no power to absorb but it is contended that due process was not followed.
4. We heard Mr. Sandeep Tiwari, Advocate for the petitioner, Mr. Pradeep Joshi, Standing Counsel for the State of Uttarakhand and Mr. Dinesh Gahatori, Advocate for respondent no. 5.
5. Mr. Pradeep Joshi, Standing Counsel for the State of Uttarakhand would point out that respondent no. 5 had long stint in the Department of Culture as already noted above. Petitioner has not challenged the order dated 26.02.2010 by which post of 4 Director, Culture was created. Petitioner may not be entitled, in terms of the said order, to become Director Culture. He would also submit that actually, the pay scale of Director Archives is less than the pay scale of Joint Director, Culture so far as grade pay of Director Archives is Rs. 6600 whereas the grade pay of Joint Director, Culture is Rs. 7600.
6. Learned counsel for the petitioner would in fact refer to a decision of Hon'ble Apex Court in Civil Appeal No. 368-369 of 2009 (Union of India Vs. S.A. Khailiq Pasha) decided on 13.01.2009. In that case, no doubt Court noted that in absence of statutory rules, an employee does not have any legal right to be absorbed in the service. While dealing with controversy, the Court referred to the judgment reported in 2000 (5) SCC 362 in the case of Kunal Nanda Vs. Union of India, relevant portion whereof reads as under:
"On the legal submissions also made there are no merits whatsoever. It is well settled that unless the claim of the deputationist for a permanent absorption in the department where he works on deputation is based upon any statutory rule, regulation or order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation."
7. But we must notice the stand of learned Standing Counsel in this regard that there is power under Article 162 and there is no need to consult with Finance Department as there is no financial implication and there is also no need to consult with 5 Department of Personnel. He further points out that as far as lending Department is concerned, it has given its NOC, which is reflected in the order itself and having regard to the long period of service, the Government decided to absorb respondent no. 5 as Joint Director and thereafter, charge was given.
8. With regard to the judgment cited by Mr. Sandeep Tiwari, Advocate for the petitioner, we notice that in that case, respondent no. 1 was Head Constable in State of Andhra Pradesh. He was sent on deputation to the Subsidiary Intelligence Bureau (SIB), Ministry of Home Affairs, Hyderabad for a period of 5 year. Thereafter, he was promoted as Assistant Central Intelligence Officer - II. He represented praying for his absorption, which was rejected. It was in this context, the Court proceeded to lay down that he has no legal right for permanent absorption in absence of any statutory Rules. Here, the Government has decided to absorb a person, having regard to her long stint of service, which we don't think we should interfere with.
9. Learned counsel for the petitioner would submit that if absorption is interfered with then petitioner being the senior most person, he could make claim as officiating Director, Culture.
10. We are not shown any principle, rule or order on the basis of which petitioner can make such claim. He also invokes doctrine of legitimate expectation on the basis of past practice. Even though learned counsel for the petitioner referred to past practice, but this past practice is not based on any pleadings.
11. We must notice in this case that there are no Rules at all governing the Department of Culture. In the Department of Culture, there is a post of Director (Culture) and a post of Director (Archives), which the petitioner is currently holding. There is also one post of Director, Museum, which is unit of Culture Department. But we noticed that post of Director has been created 6 by Government order wherein method for regular appointment was given.
12. We would think that respondent no. 2 must take decision in accordance with law regarding filling up the post of Director Culture on regular basis. It is certainly not in the interest of Department and therefore, not in the interest of public also that the highest post of the Department is not filled up in regular way. Therefore, while not interfering with the impugned order, we direct respondent no. 2 to take decision for regular appointment on the post of Director, Culture, as early as possible, in any case, within six weeks from the date of production of certified copy of this judgment.
13. Another disturbing feature, we notice is that there are no Rules in the Department. No doubt Government can constitute a service by executive orders. It is certainly well within the powers of the Government to do so but absence of Rules certainly will create room for arbitrariness and delay in making the appointment, therefore, we would only observe that it will be highly desirable that respondent no. 2 also looks into this aspect and consider the framing of appropriate Rules.
14. Accordingly, petition stands disposed of. No order as to costs.
(Alok Singh, J.) (K.M. Joseph, C.J.)
27.07.2017 27.07.2017
SKS