Allahabad High Court
Chandrabhan Srivastava And Anr. vs State Of U.P.& 4 Ors. on 25 October, 2013
Bench: Rajes Kumar, M.C.Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED CIVIL MISC. WRIT PETITION NO.44100 OF 2013 Chandrabhan Srivastava and another. ....Petitioners Versus State of U.P. And others. ...Respondents Hon'ble Rajes Kumar, J.
Hon'ble M.C.Tripathi, J.
(Delivered by Hon'ble Rajes Kumar, J.) Heard Sri Shashi Nandan, learned Senior Advocate, assisted by Sri Tarun Verma, learned counsel appearing on behalf of the petitioners and learned Standing Counsel.
The petitioners have been appointed as Supervisors in the year 1982 and 1983 respectively in the Social Welfare Department. By the letters dated 04.04.2008 and 27.10.2008 written by the Secretary, Government of U.P. to Principal Secretaries/Head of various departments of Uttar Pradesh applications were invited from those employees, who were willing for the post of District Minority Welfare Officer in the Minority Welfare Department temporarily on transfer of service basis. The petitioners applied for the aforesaid post. By the order of Principal Secretary, dated 27.07.2009, annexure-2 to the writ petition, the petitioners have been appointed as District Minority Welfare Officer temporarily on transfer of service basis for the period of one year or till the selection of regular candidate by the Public Service Commission, whichever is earlier. By the order dated 04.09.2009, the petitioner no.1 was posted at J.P.Nagar and petitioner no.2 has been posted at Moradabad. It appears that the engagement of the petitioners have been extended time to time and now the period of three years have been expired on 31.03.2013. The last extension upto 31.03.2013 was given by Government Order dated 19.10.2012. By the impugned Government Order dated 31.05.2013, the Government has declined to extend the period of deputation on the ground that there is no reason to extend the period of deputation and has sent back the petitioners to their parent department. Being aggrieved, the petitioners filed the present writ petition.
Learned counsel for the petitioners submitted that till date no regular appointment has been made by Public Service Commission. The appointment of the petitioners were for the period of one year or till the date of regular appointment by the Public Service Commission, whichever is earlier and as such it should be read as the appointment till the date the regular appointment is made by the Public Service Commission. He submitted that almost in a similar situation while interpreting Section 18 of U.P. Secondary Education Services Commission and Selection Boards Act, 1982, (hereinafter referred to as the "Act") the Division Bench of this Court in the case of Committee of Management of Sanatan Dharm Intermediate College, Daulatpur, district Mainpuri Vs. District Inspector of Schools, Mainpuri and another, reported in 1985 UPLBEC, 496 has held that intention of Legislature was that a teacher once appointed on adhoc basis should continue in the post so long a regular incumbent is not selected by the Commission. It is observed that it is apt to create anomalous situation which may neither be beneficial to teachers nor the institution. For instance suppose an appointment after formalities that is advertisement and selection is made, as the Section 18 permits even direct appointment in January it shall come to an end on 30th June automatically if no candidate from Commission is recommended. In July advertise afresh and make appointments. This could not have been the intention nor it is conducive to the system. The said decision has been followed by another Division Bench of this Court in the case of Shiva Chandra Misra and others Vs. District Inspector of Schools, Allahabad and another, reported in 1986 UPLBEC, 248.
Further reliance has been placed on the decision of the Apex Court in the case of Union of India through Govt. of Pondicherry and another Vs. V.Ramakrishnan and others, reported in (2005) 8 SCC, 394 wherein it has been held that where deputation is for a specified term, that cannot be curtailed except on grounds such as unsuitability or unsatisfactory performance and even when the term is not specified, reversion can be challenged, if the same is malafide.
We do not find substance in the argument of learned counsel for the petitioners.
There is no dispute that both, the Social Welfare Department and the Minority Welfare Department are two separate departments. There is nothing to suggest by any of the Government Order, referred herein-above, that the petitioner was to be absorbed in the Minority Welfare Department at any point of time. The appointment letter dated 27.7.2009 reveals that the petitioner has been appointed temporarily as a District Minority Officer for a period of one year on transfer of service basis or till the regular selection of the candidate by the Public Service Commission, whichever is earlier, which the petitioner has accepted and joined. There is nothing to show that the petitioner at any stage has been absorbed in the Minority Welfare Department. There is no pleading in the writ petition that the lien of the service of the petitioner in the Social Welfare Department has ceased.
In view of the above, we are of the view that the petitioner has been sent to Minority Welfare Department on deputation and on the expiry of the period of engagement the repatriation of the petitioner to his parent department cannot be said to be justified.
In the case of Kunal Nanda v Union of India, reported in AIR 2000 SC 2076, the Apex Court has held that the employee who has been sent on deputation has no right to claim absorption.
In the case of U.P. Rajkiya Nirman Nigam v P.K. Bhatnagar, reported in 2007 (14) SCC 498, the Apex Court has held that mere fact that he has spent several years in service in the department where he has been sent on deputation will not alter the position from that of a deputationist to a regular employee.
In the case of Union of India v S.A. Khailiq Pusha, MANU/SC/1536/2009, the Apex Court has held that the basic principal 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.
In the case of Ratilal B. Soni and others v. State of Gujarat and others, reported in AIR 1990 SC 1132, the Apex Court has held that employee on deputation do not get any right to be absorbed on deputation post and can be reverted back to his parent department at any time.
Apex Court in the case of Union of India through Govt. of Pondicherry and another Vs. V.Ramakrishnan and others (Supra) was dealing with the case where before the expiry of period for which employee has been sent on deputation, the order of deputation has been cancelled. On these facts, the Apex Court held as follows:
"Ordinarily, a deputationist has no legal right to continue in the post. A deputationist indisputably has no right to be absorbed in the post to which he is deputed. However, there is no bar thereto as well. It may be true that when deputation does not result in absorption in the service to which an officer is deputed, no recruitment in its true import and significance takes place as he is continued to be a member of the parent service. When the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability or unsatisfactory performance. But, even where the tenure is not specified, an order of reversion can be questioned when the same is mala fide. An action taken in a post-haste manner also indicates malice."
We are of the view that the decision of the Apex Court in the case of Union of India through Govt. of Pondicherry and another Vs. V.Ramakrishnan and others, (Supra) relied upon by the learned counsel for the petitioner no where help the petitioners, rather it goes against the petitioners, wherein it has been held that the deputationist has no legal right to continue on the post. The deputationist indisputably has no right to be absorbed in the post to which he is deputed. The decision cited by learned counsel for the petitioners, namely, Committee of Management of Sanatan Dharm Intermediate College, Daulatpur, district Mainpuri Vs. District Inspector of Schools, Mainpuri and another (Supra) are not applicable to the present case and are clearly distinguishable on the facts as well as on law. In the said case, the appointment was on adhoc basis. The question for consideration was about the interpretation of Clause (c) of Section 18(3) of the Act. The appointment was made on adhoc basis. Section 18(3) of the Act provides that every appointment of an adhoc teacher under sub-section (1) or sub-section (2) shall cease to have effect from the earliest of the following dates, namely, thirtieth day of June following the date of such ahoc appointment. While interpreting this clause, the Court took the view that such adhoc basis appointment shall continue till the regular appointment is being made, if the adhoc appointment has been made following the proper procedure as contemplated in Removal of Difficulties Order and if the petitioners should have worked even after 30th June, he may be entitled to get the salary.
In view of the above, the writ petition is devoid of merit and is, accordingly dismissed.
Dt.25.10.2013.
R./