Madhya Pradesh High Court
Laxman Kumar Richhariya vs The State Of Madhya Pradesh on 16 February, 2018
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. W.P. No.20857/2016
Parties Name Prabhu Shankar Shukla
Vs.
State of M.P. And Ors.
Case No. W.P. No.20853/2016
Parties Name Lal Bahadur Singh
Vs.
State of M.P. & Ors.
Case No. W.P. No.21284/2016
Parties Name Krishna Kumar Athya
Vs.
State of M.P. & Ors.
Case No. W.P.No.21287/2016
Parties Name Hemraj Rana
Vs.
State of M.P. & Ors.
Case No. W.P. No.21311/2016
Parties Name Subhash Chandra Khare
Vs.
State of M.P. & Ors.
Case No. W.P.No.21327/2016
Parties Name Laxman Kumar Richhariya
Vs.
State of M.P. & Ors.
Date of Judgment 16.2.2018
Bench Constituted Single
Judgment delivered by Hon'ble Shri Justice Sujoy Paul
Whether approved for reporting No
Name of counsels for parties Petitioner: Shri Sanjay K. Agrawal, Shri
Darshan Soni, Shri Siddharth Sharma,
Shri R.K. Rao, Shri K.S. Chouhan,
Advocates
Respondent/State: Shri G.P. Singh, G.A.
Law laid down -
Significant paragraph numbers -
(Order)
16.2.2018
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Regard being had to the similitude of the question involved, on the joint
request of the parties, the matters were analogously heard and decided by this
common order. The facts are taken from W.P.No.21311/2016.
2. Briefly stated, the case of the petitioner is that he was initially appointed as
Assistant Teacher in School Education Department (parent department) by the
Government of M.P. in the year 2007. An advertisement was issued by the
respondent no.3 whereby the applications were invited from eligible government
servants for appointment on deputation in the M.P. State Employment Guarantee
Council (Council). In response to the said advertisement, the petitioner submitted
his candidature. In turn, the petitioner was interviewed by the duly constituted
divisional committee. On the basis of recommendation of said committee, he was
appointed on deputation by order dated 30.6.2017. Furthermore, he was posted
at Janpad Panchayat, Amarpatan District Satna. Copy of posting of order dated
28.7.2007 is filed as Annexure P-2. Admittedly, the petitioner in obedience of
the said order joined the said Janpad Panchayat on 6.2.2008. The petitioner has
categorically pleaded that he performed his duties in the Council to the best of
his ability, sincerity and honesty.
3. The petitioner is aggrieved by the order dated 16.12.2016 Annexure P-4
whereby the petitioner's services were repatriated to the parent department by the
Council. This order is assailed on the singular ground that the nature of
deputation in the present case is different than the normal deputation. Since, it is
a case of 'appointment on deputation', the petitioner cannot be repatriated
unceremoniously. The repatriation is permissible, if the petitioner's services were
unsatisfactory or he was found to be not suitable to perform his duties on
deputation. Reliance is placed on (2012) 7 SCC 757 (Ashok Kumar Ratilal Patel
Vs. Union of India & Another).
4. Per contra, Shri G.P. Singh, learned G.A. Supported the impugned order
on the basis of return filed. It is urged that deputationist has no legal right
whatsoever to remain on deputation for unlimited period. The judgment of
Ashok Kumar Ratilal Patel (supra) nowhere prohibits the employer to repatriate
an employee from deputation if valid and plausible reasons are available. He
-:- 3 -:-
relied on (2000) 5 SCC 362 (Kunal Nanda Vs. Union of India and another). In
nutshell, Shri Singh submits that petitioner has already completed more than 5
years on deputation. As per the circular dated 9.7.2017 Annexure R-1, all the
employees working on deputation were directed to be repatriated. Hence, no fault
can be found in the action of repatriating the petitioner.
5. No other point is pressed by counsel for the parties.
6. I have heard counsel for the parties and perused the record.
7. This is trite law that in ordinary sense, the deputationist has no legal,
vested or constitutional right to remain on deputation. The parent or borrowing
department has a right to repatriate him at any time unless there exits any bar in
any statutory rules. This view was taken by the Supreme Court in the case of
Kunal Nanda (supra). However, in the case of Ashok Kumar Ratilal Patel
(supra), the Apex Court opined that there is a difference between "appointment
on deputation" and "transfer on deputation". The Court poignantly held as under:
"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 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 an 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
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most eligible selected candidate except on ground of unsuitability or
unsatisfactory performance."
8. In the present case, the petitioner's appointment cannot be treated as
'transfer on deputation'. On the contrary, the petitioner's deputation falls within
the purview of 'appointment on deputation'. The respondents admittedly issued
an advertisement inviting the candidature of illegible candidates. Pursuant to this
advertisement, the petitioners were selected and were appointed on deputation.
Thus, the nature of present deputation is different than ordinary deputation on
which judgment of Kunal Nanda (supra) can be made applicable. In the peculiar
facts of these cases, in the considered opinion of this court, the judgment of
Ashok Kumar Ratilal Patel (supra) will be applicable. In view of this judgment,
the repatriation of petitioner on the basis of blanket decision taken by the
government is impermissible.
9. In this view of the matter, the impugned orders of repatriation cannot
sustain judicial scrutiny. The impugned orders of repatriation in all the cases are
therefore set aside. It is made clear that this order will not come in the way of the
respondents to repatriate the petitioner in accordance with law.
10. The petitions are allowed.
(Sujoy Paul)
Judge
P/
Digitally signed by PREETI TIWARI
Date: 2018.02.16 15:55:59 +05'30'
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
SINGLE BENCH : HON'BLE SHRI JUSTICE SUJOY PAUL
W.P. No.20857/2016
Prabhu Shankar Shukla
Vs.
State of M.P. And Ors.
W.P. No.20853/2016
Lal Bahadur Singh
Vs.
State of M.P. & Ors.
W.P. No.21284/2016
Krishna Kumar Athya
Vs.
State of M.P. & Ors.
W.P.No.21287/2016
Hemraj Rana
Vs.
State of M.P. & Ors.
W.P. No.21311/2016
Subhash Chandra Khare
Vs.
State of M.P. & Ors.
W.P.No.21327/2016
Laxman Kumar Richhariya
Vs.
State of M.P. & Ors.
ORDER
Post for : ___.2.2018 (Sujoy Paul) JUDGE