Allahabad High Court
Satendra Pal Singh Bhadoria vs State Of U.P. & Others on 11 January, 2013
Author: Rajes Kumar
Bench: Rajes Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Civil Misc. Writ Petition No. 54757 of 2012 Satendra Pal Singh Bhadoria..............................................Petitioner. Vs. State of U.P. and others......................................................Respondents. Hon'ble Rajes Kumar, J.
Heard Sri Ashok Khare, Senior Advocate, assisted by Sri Kartikeya Saran, learned counsel appearing on behalf of the petitioner and Sri Pankaj Rai, learned Additional Chief Standing Counsel for the respondents.
The brief facts of the case are that the petitioner was appointed on the post of Assistant Accountant by the District Magistrate, Mainpuri on 15.6.1987. When District Firozabad was carved out from District Mainpuri on 7.7.1990 the petitioner joined on a permanent basis as Accountant by the order of District Magistrate, Firozabad where he worked till 2000 in the Treasury, Firozabad. On 30.12.2000, the petitioner was attached with the office of Additional Director, Treasury & Pension, Agra Zone, Agra-respondent no. 4.
On 27.1.2009, the Pension Directorate, U.P., Lucknow- respondent no. 2 sent a Circular notice to the Chairman of all the State Government Departments inviting applications from interested persons working as Accountants for appointment in different division of Additional Director, Treasury & Pension office. The petitioner applied vide letter dated 13.2.2009. By the office memorandum dated 26.6.2009, the Director Pension Secretariate appointed the petitioner as Accountant in the office of Divisional Additional Director, Treasury & Pension office Agra on transfer basis for a period of two years and the appointment was made temporarily. In the appointment letter, it has also been stated that the lien of service shall be in the parent department and in case there would be no need without any notice he may be sent back to the parent departments and this right would be vested with the Director Pension. The petitioner took the charge in pursuance of the aforesaid appointment letter as an Accountant in the office of Additional Director, Treasury & Pension, Agra Zone, Agra. By the order dated 13.7.2009, the District Magistrate, Firozabad has relieved the petitioner. It appears that on the request of the petitioner, the Director, Pension Secretariate vide its letter dated 24.5.2011 has extended the appointment for three years. It also appears that the petitioner has requested for his absorption in the Pension Secretariate and the same appears to have been forwarded by the Director vide order dated 10.5.2012 to the Joint Secretary (Finance) General Anubhag 3 U.P., Lucknow.
By the impugned letter dated 6.8.2012, the District Magistrate, Firozabad wrote a letter to the Director Pension Secretariate stating therein that the petitioner has been relieved for a period of two years and vide letter dated 24.5.2012 the period of transfer has been extended to three years. The period of transfer has been completed. In the said letter, he stated that there is a shortage of employees in the Koshagar and due to the work load on account of promotion or retirement. Therefore, he terminated the transfer of the petitioner and requested for immediate release. In pursuance of the letter dated 6.8.2012, the Director Pension by the letter dated 11.9.2012 has released the petitioner to his parent departments. By the office memorandum dated 29.9.2012 the petitioner has been asked to join within one week from the date of receipt of the letter. By the order dated 4.10.2012, the Additional Director relieved the petitioner in view of the letter of the Director dated 11.9.2012 and the District Magistrate, Firozabad by the office memorandum dated 29.9.2012.
The petitioner is challenging the orders dated 6.8.2012, 29.9.2012 passed by the District Magistrate, Firozabad and the order dated 11.9.2012 passed by the Director, Pension Directorate Government of U.P., Lucknow and the order dated 4.10.2012 passed by the Additional Director, Treasury & Pension, Agra Zone, Agra.
Counter and rejoinder affidavits have been exchanged.
Learned Standing Counsel submitted that by the letter dated 7.9.2012, the Director has cancelled its earlier order dated 24.5.2011 by which the period of transfer has been extended to three years. The copy of the order dated 7.9.2012 has been annexed as C.A.-1. The petitioner has filed rejoinder affidavit challenging the said order being concocted and manipulated and having been passed after filing of the writ petition. It is stated that though in the other letters dispatch numbers are mentioned but in the said order there is no dispatch number. By way of amendment the petitioner has challenged the order dated 7.9.2012 passed by respondent no. 2.
Learned counsel for the petitioner submitted that when the period of transfer has been extended for another period of three years by the Director vide its order dated 24.5.2011 there was no occasion for the District Magistrate, Firozabad to recall the petitioner before expiry of the said period. He submitted that the cancellation order dated 7.9.2012 by which the earlier order dated 24.5.2011 has been cancelled is concocted and manipulated. Though in the earlier letters and orders the dispatch numbers are mentioned but in the present order no dispatch number is mentioned. The said order has been passed after filing of the writ petition by manipulation and, therefore, all the impugned orders are liable to be quashed.
Sri Pankaj Rai, learned Additional Chief Standing Counsel submitted that the petitioner was transferred for a period of two years only. In the appointment letter it was specifically mentioned that the appointment was temporary and the lien would be in the parent department and in case there would be no need without any notice he can be returned by the Director. When the petitioner was transferred for a period of two years only, there was no occasion to extend further period by the Director. In any view of the matter, when the District Magistrate vide his letter dated 6.8.2012 written to the Director has informed that there is a shortage of employees in the Koshagar and requested for the release of the petitioner, the Director acted upon the letter and by the letter dated 11.9.202 has released the petitioner. The order of the Director dated 11.9.2012 is in consonance with the term and condition of the appointment letter dated 26.6.2009 wherein it was categorically stated that in case of no need, without any prior notice the Director can direct for the return to the parent department. In pursuance thereof, the Additional Director, Treasury & Pension, Agra Zone, Agra in whose office the petitioner was working has also relieved the petitioner. As per the appointment letter even after transfer, his lien was in parent department and, therefore, the petitioner has no legal right to claim his appointment and continuity of his service in the Pension Secretariate. He submitted that it is absolutely wrong that the order dated 7.9.2012 is concocted and manipulated. Merely because the dispatch number is not mentioned, the validity of the existence of the order cannot be disputed. He submitted that even the order dated 7.9.2012 may be ignored, the order of Director relieving the petitioner was in accordance to term of the appointment letter dated 26.6.2009 and, therefore, the petitioner cannot claim his legal right to continue in the Pension Directorate. He further submitted that the petitioner has not suffered any loss inasmuch as he has been sent back to his parent department.
I have considered rival submissions.
I do not find any merit in the claim of the petitioner. The petitioner was a regular employee in the office of Koshagar under the control of the District Magistrate, Firozabad. By the appointment letter dated 26.6.2009 the petitioner has been appointed and transferred to the office of Additional Director, Treasury & Pension, Agra Zone, Agra. The service lien of the petitioner continued with the parent department. Under the term of the appointment, the Director has been given power to return back the petitioner to his parent department without any notice in case if the service of the petitioner is not required. The District Magistrate, Firozabad has requested the Director Pension for the release of the petitioner and acting upon the said order, the Director has relieved the petitioner vide letter dated 11.9.2012. The order of the Director was in consonance with the term of the appointment letter. The petitioner has also been relieved by the Additional Director, Treasury & Pension, Agra Zone, Agra under whom he was working. Since the lien of the petitioner continued with the parent department and at no stage the petitioner has been permanently absorbed in the Pension Directorate, the petitioner has no legal right to claim his continuity in the pension Secretariate. More so, merely because in the order dated 7.9.2012 despatch number is not mentioned, the order will not become invalid and nonest.
In the case of Kunal Nanda v. Union of India and another, reported in (2000) 5 SCC 362, the Supreme Court held in very categorical terms that a deputationist can always at any time be repatriated to his parent department to serve in his substantive position therein either at the instance of borrowing or lending department and he has no vested right to continue for long on deputation or absorbed to the department to which he had gone on deputation. The relevant portion of the judgment reads as under :
"...........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." [emphasis supplied] In the case of Dr. O.P. Singh Vs. State of U.P. and others, reported in 2002 (4) AWC 3067, the Division Bench of this Court following the aforesaid decision of the Supreme Court in the case of Kunal Nanda v. Union of India and another (supra) has held that it is the prerogative of an employer to call back its employee from deputation or to post any other officer of higher rank in his place. The petitioner can have legitimate expectation where he has permanent lien but he has no right or lien on the deputation post even if, he has been sent to the borrowing department for a specific period. It has been further held that the period of deputation can be curtailed by the employer at any point of time on administrative ground or in public interest.
To implement the Central Government policy to launch a mission, namely, "Sarva Shiksha Abhiyan", the State Government issued an order dated 1.9.2001 providing for a methodology for selecting coordinators/co-ordinators at Block Resource Centres and Coordinator at Nyaya Panchayat Resource Centres. The Government order contemplated selection of coordinator at Block Resource Centre from amongst Head-masters of primary high schools or Assistant Teachers of junior high schools or a teacher who has worked as coordinator at Nyaya Panchayat Resources Centre for two years. Similarly for Co-coordinator at Block Resource Centres Assistant Teachers of primary schools having four years experience were eligible. For Coordinator at Nyaya Panchayat Resource Centre, Head-master of primary schools or Assistant Teacher of junior high schools having 8 years service were eligible. Necessary posts for coordinator/co-coordinator at Block Resources Centres and coordinator at Nyaya Panchayat Resource Centres were created by the State Government. Large number of coordinator/co-coordinator at Block Resource Centres and coordinator at Nyaya Panchayat Resource Centres were appointed in pursuance of the Government order as modified from time to time. The engagements of coordinator/co-coordinator were initially for a period of two years. The State Government while implementing the scheme realized that Nyaya Panchayat Resource Centres have completely failed to achieve the object and due to large number of teachers being posted at Nyaya Panchayat Resource Centres there is shortage of teachers in the Primary/Junior High Schools. The State Government decided to reconstitute the Block Resource Centre and Nyaya Panchayat Resource Centres. A Government order dated 2.2.2011 was issued by the State Government for reconstituting the aforesaid resource centres. As a result of the Government order dated 2.2.2011, the earlier scheme has been given up and a new scheme has been implemented as a consequence of which large number of teachers were to be repatriated to their parent institutions for teaching work which was suffering. The Government order dated 2.2.2011 has been challenged by the Assistant Teachers and the Head-masters, who were working as coordinators and co-coordinators, by filing writ petitions being Writ Petition No. 9393 of 2011, Har Pal Singh and others Vs. State of U.P. and others along with other writ petitions. All the writ petitions were dismissed by the learned Single Judge. The Special Appeal being Special Appeal No. 371 of 2011 filed against the order of the learned Single Judge has been dismissed on 27.5.2011. Despite the order of the Division Bench in Special Appeal upholding the validity of the Government order dated 2.2.20111, writ petition being Writ Petition No. 1178 (SS) of 2011, Sunil Dutt and others v. State of U.P. and others, and other writ petitions have been filed at Lucknow Bench of this Court. The writ petitions were entertained and finally allowed. The learned Single Judge has held the judgements of the learned Single Judge and Division Bench in Har Pal Singh's case as per-incuriam. Since there was a difference of opinion, the matter has been referred to the Full Bench. The Full Bench in the case of Arun Kumar Singh and others Vs. State of U.P. and others, reported in 2013 (1) ADJ 1 has upheld the view taken by the Division Bench in Har Pal Singh's case. The Full Bench has held that entitlement to receive higher pay-scale is no impediment in sending back to such teachers to their parent institutions.
In view of the above discussion, the writ petition has no merit and is accordingly dismissed.
Dated: 11th January, 2013 OP