Madhya Pradesh High Court
Vivek Kumar Singh Kushwaha vs The State Of Madhya Pradesh on 24 November, 2016
W.P. No.4259/2016
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HIGH COURT OF MADHYA PRADESH : JABALPUR
SB : HON'BLE MS. JUSTICE VANDANA KASREKAR.
WRIT PETITION No.4259/2016
Vivek Kumar Singh Kushwaha
Vs.
State of M.P. and Others
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Shri Vipin Yadav, learned counsel for the Petitioner. Ms. Vandana Shrivastava, learned Panel Lawyer for the respondents/State
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Order (24/11/2016) Petitioner has filed the present petition challenging the order dated 24.02.2016 passed by respondent no.4, whereby repatriating the services of the petitioner from Panchayat and Rural Development Department to Water Resources Department.
2. The petitioner was initially appointed on 11.10.1984 as Assistant Draft Man in the Water Resources Department and he was thereafter promoted to the post of Sub-Engineer on 5.07.1989. The Madhya Pradesh State Employment Guarantee Council has issued an advertisement for appointment on the post of Assistant Engineer through Deputation. The petitioner has applied for appointment on the said post and he was called for Psychometric Test/Interview. After facing the interview, the petitioner was selected for appointment on the post of Assistant Engineer. As the W.P. No.4259/2016 2 petitioner was selected for appointment respondent no.2 vide letter dated 20.10.2006 has directed the respondent no.1 to relieve the petitioner and vide order dated 30.03.2007, the petitioner was posted at Balaghat. Thereafter, respondent no.3 has passed an order dated 24.2.2016 whereby repatriating the services of the petitioner to the parent department. Being aggrieved by the order of repatriation, the petitioner has filed the present writ petition.
4. Respondents have filed their reply and in the reply they have stated that the petitioner was sent on deputation in the year 2007 and the normal tenure of deputation is four years. Petitioner has completed normal period of deputation in M.P. Employment Guarantee Council and after completing four years, parent department has not given his consent to continue the petitioner on deputation. The Chief Engineer W.R.D. vide order dated 5.01.2016 has requested to repatriate the services of the petitioner to his parent department i.e. W.R.D. In pursuance of the said request made by the parent department, respondent no.3 has passed an order dated 24.2.2016 for repatriating the petitioner to his parent department. Order passed by respondent no.3 is duly approved by the Commissioner in pursuance of the order passed by respondent no.3. The Collector has also passed an order for relieving the petitioner from his present place of posting vide order dated 24.02.2016.
5. In view of the aforesaid facts, the respondents prays for dismissal of the writ petition.
W.P. No.4259/2016 36. Learned counsel appearing for the petitioner argues that the orders dated 24.02.2016 (Annexures P-5 & P-6) are illegal and contrary. He submits that the petitioner has been appointed on the post of Assistant Engineer after publishing an advertisement, therefore, the said appointment is an appointment on deputation and not the transfer on deputation as has been held by the Apex Court in the case of Ashok Kumar Ratilal Patel Vs. Union of India and others reported in 2012(7) SCC 757 . He further submits that relying on the said judgment, this Court has passed the order in W.P. No.17754/2013 on 03.02.2014 and has quashed the impugned order.
7. On the other hand, learned counsel appearing on behalf of the respondents argues that as the petitioner has completed the normal tenure of deputation i.e. a period of four years. The W.R.D. therefore, made a request to the Commissioner for repatriating the services of the petitioner to his parent department and after accepting the request the Employment Guarantee Council has repatriated the services of the petitioner to the parent department.
8. I have heard learned counsel for the parties and perused the record. From perusal of the record, I found that the advertisement was issued by the Employment Guarantee Council, thereby inviting the applications for appointment on the post of Assistant Engineer on deputation. The petitioner has submitted an application for appointment on deputation on the post of Assistant Engineer. After submitting his application, the petitioner was W.P. No.4259/2016 4 called for interview and after facing the interview he was selected for appointment on the post of Assistant Engineer on Deputation . Thereafter, a posting order was issued and the petitioner was posted at Janpad Panchayat Paraswara District Balaghat. However, the respondents have issued the orders dated 24.02.2016, thereby repatriating the services of the petitioner to the parent department considering that the petitioner has completed the four years of services on deputation. Apex Court in the case of Ashok Kumar Ratilal Patel Vs. Union of India and Others 2012(7) SCC 757 has held as under:-
"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 organization 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 pas 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-suitable 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 W.P. No.4259/2016 5 appointment was issued in favour of the appellant. In such circumstances, it was not open for the respondent to argue that the appellant has not 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."
9. Present case being a case of appointment on deputation. It is beyond the authority of respondent to repatriated the services of the petitioner by the order simplicitor. The respondents have not stated in their reply that the services of the petitioner are unsatisfactory.
10. In view of the aforesaid, the impugned order which is not sustainable in law. Consequently, the petition is allowed and the impugned orders dated 24.02.2016 (Annexure P-5 & P-6) are hereby quashed.
(MS. VANDANA KASREKAR) JUDGE Tabish W.P. No.4259/2016 6 W.P. No.4259/2016 7