Madhya Pradesh High Court
Mukut Singh Jat vs The State Of Madhya Pradesh Thr on 22 August, 2017
Author: Sanjay Yadav
Bench: Sanjay Yadav
:: 1 ::
WA-427-2016
HIGH COURT OF MADHYA PRADESH :
BENCH AT GWALIOR
Writ Appeal No.427/2016
Ram Singh Jadav and others ...Appellants
versus
State of M.P. and others ...Respondents
Writ Appeal No.437/2016
Vinod Kumar Soni and others ...Appellants
versus
State of M.P. and others ...Respondents
Writ Appeal No.440/2016
Satish Sharma and others ...Appellants
versus
State of M.P. and others ...Respondents
and
Writ Appeal No.62/2017
Mukut Singh Jat ...Appellant
versus
State of M.P. and others ...Respondents
---------------------------------------------------------------------------------------------------
CORAM :
Hon'ble Shri Justice Sanjay Yadav
Hon'ble Shri Justice S.K. Awasthi
---------------------------------------------------------------------------------------------------
Shri Shivendra Singh, Smt. Meenu Sharma, Shri Abhishek
Parashar, learned counsel for the appellants.
Shri Praveen Newaskar, learned Govt. Advocate for the
respondents/State.
:: 2 ::
WA-427-2016
-------------------------------------------------------------------------------------------
Whether approved for reporting :
------------------------------------------------------------------------------------
ORDER
(22/08/2017) Per Sanjay Yadav, J.
These intra Court appeals take exception to the order passed in W.P.No.8482/2015 (S), W.P.No.8121/2015 (S), W.P.No.2555/2016 (S) and W.P.No.238/2016 (S).
2. As the issue involved is similar in these appeals, they are analogously heard and decided by this order.
3. The issue which crops up for consideration is whether it is lawful for the Authorities of Madhya Pradesh Rajya Shiksha Kendra to have excluded Upper Division Teacher/Adhyapak having put in 4 years of service as Block Resources Co-ordinator and Jan Shikshak from being considered for posting as Block Academic Co-ordinator and Jan Shikshak.
4. The relevant facts briefly are that the appellants (hereinafter referred to as "petitioners") who are Adhyapak, Upper Division Teacher, at the relevant time discharging their duties as Block Resource Co-ordinator on Jan Shikshak posts brought into vogue with the enactment of Madhya Pradesh Jan Shiksha Adhiniyam, 2002. An act to translate the constitutional vision of the right of every child to access elementary education of quality and to provide for decentralized planning and participatory management of :: 3 ::
WA-427-2016 elementary and adult education redefining roles and creating institutions sensitive to the needs of quality education for all.
5. Section 15 of the Adhiniyam provides that there shall be Janpad Shiksha Kendra at the head quarter of every Janpad Panchayat for coordination, supervision and support of the Jan Shiksha Yojna at the Block Level. It further provides for that the Kendra shall be constituted in such manner as may be prescribed. Section 20 of the Adhiniyam envisages that there shall be a Shiksha Mission or any other successor, as the State Government may determine, shall be responsible for planning and coordinating in the implementation of elementary and adult education programme for the State. Section 21 provides for that there shall be a Rajya Shiksha Kendra at State Level which shall be responsible for co- ordination, supervision and support of the Jan Shiksha Yojna at the State level. That section 36 empowers the State Government to frame rules.
6. The State Government in exercise of the powers conferred vide sub-section (1) of Section 36 framed Madhya Pradesh Jan Shiksha Niyam, 2003. Rule 15 whereof provides for that the existing Block Resource Centre of the Shiksha Mission shall be the Janpad Shiksha Kendra. That it shall have Janpad Shiksha Kendra Coordinator who shall be responsible for co-ordinating all activities related to elementary education and adult literacy. This co-ordinator is known as Block Resource Co-ordinator.
7. Rule 13 of the Rules of 2003 envisages that each Jan Shiksha Kendra shall have two Jan Shikshak to act as co- ordinator between Kendra and its Schools. These Jan :: 4 ::
WA-427-2016 Shikshak are drawn from Upper Division Teacher or Adhyapak by a committee constituted for said purpose. Sub-Rule (3) of Rule 13 clearly stipulates that the Jan Shikshak shall be nominated for a period of three years. It further provides that after the stipulated period of three years the Jan Shikshak may continue to hold the post till the nomination of his successor.
8. Petitioners by various orders passed in the years 2011 and 2012 were nominated and posted as Jan Shikshak. The orders clearly stipulated that the posting is for a period of three years and also subject to the decision in Writ Petition No.12205/2011 (S).
9. That Rajya Shiksha Kendra issued circular No. jkf'k ds @fu;q@2015@7812 dated 30.10.2015 in respect of nomination/appointment of Jan Shikshak whereby following process for selection was directed to be adhered to:
Þlfefr }kjk ftys esa Ldwy f'k{kk foHkkx@vkfnoklh fodkl foHkkx esa dk;Zjr xf.kr@foKku fo"k; lewg rFkk dyk fo"k; lewg ds ,sls mPp Js.kh f'k{kd@v/;kid ftuds fo:) dksbZ xaHkhj vuf;ferrk dh dk;Zokgh izpfyr u gks rFkk tks iwoZ esa fodkl[k.M vdknfed leUo;d ,oa tuf'k{kd ds in ij dk;Zjr u jgs gksa] dh i`Fkd&i`Fkd fo"k; lewgokj mPp Js.kh f'k{kdksa gsrq ofj"Brk ds vk/kkj ij ,oa v/;kid laoxZ gsrq ,twds'ku iksVZy }kjk fu;qfDr fnukad ds vk/kkj ij ojh;rk lwph rS;kj dh tkosA lwph esa mPpJs.kh f'k{kd ojh;rk dze esa Åij j[ks tkosa rFkk ftys esa fodkl [k.M vdknfed leUo;d ,oa tuf'k{kd ds inksa dh la[;k dh frxquh la[;k dh lwph rS;kj dh tkosA ;g lwph ftyk f'k{kk dsanz dk;kZy; ds lwpuk iVy ij fnukad 27@11@2015 dks pLik dh tkosA ojh;rk lwph esa fodkl [k.M vdknfed leUo;d ,oa tuf'k{kd ds inksa dh la[;k dh nksxquh la[;k rd 'kkfey mPp Js.kh f'k{kdksa@v/;kidksa dks 10@12@2015 dks dkmalfyax gsrq ftyk Lrj ij LFky fu;r dj vkeaf=r fd;k tk,Aß
10. Being aggrieved by exclusion from the zone of consideration petitioner filed respective petitions challenging the action of respondents and sought direction to respondents :: 5 ::
WA-427-2016 to permit the petitioner to participate in selection process. It was the contention on behalf of the petitioners that Rule 13 of the Rules 2003 though provide that a Jan Shikshak is appointed for three years; however, it does not prohibit their right for reconsideration for appointment. It was urged that keeping such Jan Shikshak who have already worked for four years away from the zone of consideration is contrary to the statutory provisions and the State Government or its functionaries cannot amend statutory provisions by issuing executive directions. It was contended that the instructions contrary to statutory provisions cannot prevail thereover nor can it override the statutory provisions. It was also contended that Rajya Shiksha Kendra is a separate entity, therefore, any decision taken by it has to be in collective and not by its Commissioner in individual capacity. On these contentions, petitioners sought for quashment of the stipulation contained in the impugned circular of excluding all such Jan Shikshak from the zone of consideration for appointment as Jan Shikshak.
11. Respondents on their turn denied the contentions and the right of the petitioners for reconsideration. Relying on the circular No. F1-45/2010/20-1 dated 26.12.2011 issued by the State Government through School Education Department, it was urged that since maximum limit for taking service was four years and since the petitioners had already completed said period, fresh consideration was confined to those who had not earlier worked for four years. It was also contended the posting was in the nature of deputation and it being a discretion of the borrowing department to lay down the criteria for taking the incumbent on deputation, it was within the discretionary powers of the Rajya Shiksha Kendra to not :: 6 ::
WA-427-2016 to consider all such Upper Division Teacher/Adhyapak for reappointment. The respondents accordingly sought dismissal of the writ petitions.
12. Learned Single Judge after taking into consideration various provisions of the Act of 2002 and Rules of 2003 and the factual aspect observed that the appointments as Jan Shikshak was in the nature of deputation and deputationist has no right to seek direction to continue on deputation or to seek fresh lease of deputation. Learned Single Judge observed:
"6. In the present case, nobody, who has been on deputation, can claim deputation as a matter of right and has to report back to parent department as the lien of the petitioners stand vested in the School Education Department. In this regard, the General Administration Department Circular No.FA10- 18/88/49/1, dated 02.12.1988 provides that in case the period of foreign service or deputation on non- cadre post is for a period exceeding four years, then without concurrence of the Chief Minister through the General Administration Department, the period of deputation cannot be extended beyond the period of four years. This Circular has been amended vide Circular No.C-3-18/94/3-1, dated 12.12.1994, in which it is provided that in case the period of deputation is to be extended beyond a period of four years, then a decision has to be taken by the borrowing and the lending department in consultation with each other. In the present case, the lending department is School Education Department whereas the borrowing department is the Chief Executive Officer of Zila Panchayat and other Local Bodies. If the School Education Department is not ready to lend the services of its employees for a period of more than four years on deputation, then no fault can be attributed to such instructions as they are in conformity with the General Administration Department Circular issued under the provisions of Fundamental Rules pertaining to principle of foreign service/deputation.
:: 7 ::
WA-427-2016
7. Therefore, it is thus apparent that the petitioners have no indefeasible right to seek deputation on the post of Jan Shikshak, and the ratio of the law in the case of Ashok Kumar Ratilal Patel (supra) is not in favour of the petitioners. In fact, there is a specific provision under rule 13 (3) of the Madhya Pradesh Jan Shiksha Niyam, 2003 for lending services of a Jan Shikshak on deputation for a period of three years. It is nowhere provided that this period of deputation can be claimed as a matter of right and can be extended to indefinite period permitting a teacher to keep himself away from the duties of teaching and render functions which are largely administrative/coordinating in nature as laid down under rule 14, which deals with the responsibilities of Jan 9 WP No.8482/2015(S) (Dilip Singh Raghuwanshi v. State of Madhya Pradesh & Others) Shikshak as this Court has held that the petitioners are not having any indefeasible right to seek transfer/appointment on deputation. It is also held that there is no violation of Articles 14 and 16 of the Constitution of India in denying renewal of the deputation beyond a period of four years. They are not entitled to claim the deputation as a matter of right."
13. It is this order which has been challenged on the ground that learned Single Judge misconstrued the nomination/appointment of Jan Shikshak as on deputation, instead, it was an appointment on the post though for a term of four years and since there is no rider in the statutory Rules from being reconsidered, the Writ Court grossly erred in denying the petitioners from reconsideration for the appointment to the post of Jan Shikshak.
14. Respondents on their turn have supported the impugned order.
15. Considered the rival submissions.
16. Before examining as to whether it was within the :: 8 ::
WA-427-2016 competence of the Rajya Shiksha Kendra to prevent all such Upper Division Teachers/Adhyapaks, who have already put in four years of service as Jan Shikshak from being reconsidered, we propose first to deal with the aspect as to whether the nomination/appointment as Jan Shikshak is in the nature of deputation or a term appointment.
17. In State of Punjab and others Vs. Inder Singh and others, (1997) 8 SCC 372, it is held:
"18. The concept of "deputation" is well understood in service law and has a recognised meaning. `Deputation' has a different connotation in service law and the dictionary meaning of the word `deputation' is of no help. In simple words `deputation' means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head Constables as the case may be."
(Emphasis supplied)
18. In Prasar Bharti and others Vs. Amarjeet Singh and others, (2007) 9 SCC 539, it is held:
"13. There exists a distinction between 'transfer' and :: 9 ::
WA-427-2016 'deputation'. 'Deputation' connotes service outside the cadre or outside the parent department in which an employee is serving. 'Transfer', however, is limited to equivalent post in the same cadre and in the same department. Whereas deputation would be a temporary phenomenon, transfer being antithesis must exhibit the opposite indications.
14. There cannot be any doubt whatsoever that ordinarily no employee can be transferred without his consent from one employer to another. [See Jawaharlal Nehru University v. Dr. K.S. Jawatkar and Ors. [(1989) Supp. (1) SCC 679]. But, the said principle has no application in the instant case.
15. A transfer of an employee may be governed by the provisions of a statute or the terms and conditions of a contract of service.
16. The situation as obtaining in the present case, however, in our opinion, would amount to be a case of deemed deputation. It is true that no order has been passed by the Central Government in this behalf, but the respondents acted in the manner as if such an order had been passed. The respondents have been working with the Corporation for a long time without any demur whatsoever. They are undoubtedly under the control and supervision of the officers of the Corporation. There exists a hierarchy of the officers in the Corporation. There are a large number of departments. Each department has separate functions. Work of one department, however, would be related to another."
(Emphasis Supplied)
19. In this context reference can also be had of the decision in Union of India and another Vs. Shardindu, (2007) 6 SCC 276, wherein it is held :
"26. Learned Addl. Solicitor General next submitted that the appointment of the respondent was purely on deputation basis and since the deputation period has been terminated the appointing authority has full right to terminate his deputation. Therefore, the respondent can be sent back to his parent department i.e. the State of Uttar Pradesh. We :: 10 ::
WA-427-2016 regret to say that this appointment of the respondent cannot be said to be purely an appointment on deputation basis. Strictly speaking, it is not a deputation post because the incumbent has been selected under the Act and he has not come on deputation as such though loosely it can be said to be on deputation in the sense that since the incumbent holds his lien in the State of Uttar Pradesh and the State of Uttar Pradesh has permitted him to join the post for a fixed period of four years or till he attains the age of superannuation i.e. sixty years. Since the respondent holds a lien in the State of U.P. therefore, to some extent he can be said to be on deputation but it is not in the sense of deputation as in the case of an all India Service person who is sent on deputation to the Central Government or to other organization. It is an independent selection under the statute and the State of U.P. has permitted the respondent to join his assignment as he holds a lien and after completion of the period of four years he will come back to the State till he attains the age of superannuation. If the incumbent was to retire within the period of four years perhaps it would not have been necessary to have moved the State of U.P. for its permission to join this assignment. Even after expiry of four years the respondent is left with some period of service. Therefore, formal permission was sought from the State of U.P. to permit the incumbent to join the post for a fixed term. Therefore, it is the permission by the State of U.P. to join the post and in case the incumbent comes back he can join the service under the State of U.P.. Therefore, it is almost like a permission and not in strict terms of deputation but loosely it can be termed as deputation. This is not the situation when the period of deputation can be cut short and the incumbent can be sent back to his parent department i.e. the State of U.P. unlike the officers of an all India service. This appointment is for a fixed tenure after due selection under the Act. Therefore, this kind of deputation stands on an entirely different category. However, learned Addl. Solicitor General tried to justify that a person who is sent on deputation has no right to continue in the :: 11 ::
WA-427-2016 post and his period of deputation can be cut short and he may be repatriated back to his parent department."
20. In the case at hand Adhiniyam, 2002 does not define Jan Shikshak, however, clause (b) of sub-section (2) of section 14 envisages that each Jan Shikshak Kendra shall have two Jan Shikshaks to act as co-ordinator between the Kendra and its Schools and the Jan Shikshaks shall be selected from amongst the teachers in the district. That the State Government in exercise of the powers conferred upon it by sub-section(1) of Section 36 of Adhiniyam, 2002 has framed Rules viz. Madhya Pradesh Jan Shiksha Niyam, 2003; Rule 13 whereof stipulates :
"13. Jan Shikshak . - "(1) Each Jan Shiksha Kendra shall have two Jan Shikshak to act as co- ordinator between Kendra and its schools. The Upper Division Teacher or Adhyapak shall be selected for the post of Jan Shikshak. A committee shall be formed to select Jan Shikshak.
(2) Jan Shikshak shall be selected from amongst Upper Division Teachers and Adhyapaks. (3) The Jan Shikshak shall be nominated for a minimum period of 3 years. After the stipulated period of 3 years the Jan Shikshak may continue to hold the post till the nomination of his successor. (4) The Janpad Shiksha Kendra can remove the Jan Shikshak with the permission of the Zila Shiksha Kendra if he/she is irresponsible towards his/her duties, found incompetent to perform the expected activities and due to other administrative reasons.
21. Three factors are borne out from the scheme of sub-rule (3) of Rule 13 of the Rules, 2008. Firstly that the Jan Shikshak are nominated from amongst the Upper Division Teacher and Adhyapak meaning thereby that the Upper Division Teacher and Adhyapak continue to hold their lien in the substantive :: 12 ::
WA-427-2016 post. Secondly, the nomination is for minimum three years with a further stipulation that such nominee will have to give way to his successor, this is the third aspect of the scheme of appointment of Jan Shikshak. In the context of appointment i.e. appointment for a limited period Fundamental Rule 9 (30A) defines such post as " a permanent post which an individual Government servant may not hold for more than a limited period". Trite it is that in public services there are statutory service rules or administrative instructions which governs the condition of service In Rohsan Lal Tandon Vs. Union of India, AIR 196t7 SC 1889 it is observed.
"(6) We pass on to consider the next contention of the petitioner that there was a contractual right as regards the condition of service applicable to the petitioner at the time he entered Grade 'D' and the condition of service could not be altered to his disadvantage afterwards by the notification issued by the Railway Board. It was said that the order of the Railway Board dated January 25, 1958, Annexure 'B', laid down that promotion to Grade 'C' from Grade 'D' was to be based on seniority-cum-suitability and this condition of service was contractual and could not be altered thereafter to the prejudice of the petitioner. In our opinion, there is no warrant for this argument. It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties."
(Emphasis supplied) :: 13 ::
WA-427-2016 That, in order to govern the condition of service of Jan Shikshak, Rajya Shiksha Kendra in discharge of its statutory function under section 20 of Adhiniyam, 2002 has been issuing instructions from time to time. Earlier instruction as borne out from the circular No. jkf'k ds @fu;q@2015@7812 dated 30.10.2015 (Annexure P/1) was issued by the State Government vide circular No.F1-45/2010/20-1 dated 26.12.2011 which was prior to constitution of State Education Service (Rajya Shiksha Sewa) (vide order No. F 27-56/2012/20-2 dated 25.7.2013) which stipulates:
"3 ;g izfrfu;qfDr izkjaHk esa 2 o"kZ ds fy, gksxh ftls dk;Z O;ogkj dh xq.koRrk ds lEiknu ds vk/kkj ij vkxkeh 2 o"kZ ds fy, izfrfu;qfDr ij ysus okys vf/kdkjh }kjk c<+k;k tk ldrk gSA mDr dkyko/kh ds iw.kZ gksus ds mijkar izfrfu;qfDr fdlh Hkh fLFkfr esa vkxs ugha c<+kbZ tk;sxhAß Thus the nomination as Jan Shikshak is a new form of appointment, however, since the person drawn from the post of Upper Division Teacher/Adhypak retain their lien on substantive post in their parent department and the post of Jan Shikshak is not the cadre post of the service they belong to, the appointment as Jan Shikshak thus can be deemed to be on deputation.
22. Question next is whether it was within the competence of the Rajya Shiksha Kendra to have framed the policy of keeping all such Upper Division Teacher/Adhyapak who had rendered four years as Jan Shikshak and from the zone of consideration.
23. Evidently, by virtue of order No. F-27-56/2012/20-2, dated 25.7.2013 Govt. of Madhya Pradesh through School Education Department brought in vogue Rajya Shiksha Sewa :: 14 ::
WA-427-2016 resulting in change in the staff pattern. However, Rajya Shiksha Kendra continued to enjoy the powers and function conferred upon it vide section 21 of Adhiniyam, 2002 which envisages that it shall be responsible for co-ordination, supervision and support of the Jan Shiksha Yojana at State Level. It further provides that the Rajya Shiksha Kendra shall merge within it the existing function of the State Council of Educational Research and Training. Sub-section (2) of Section 21 further hold Rajya Shiksha Kendra shall be responsible for activities such as planning, budgeting, monitoring and academic and financial management of elementary education and total literacy in the State. As the Rajya Shiksha Kendra is responsible for academic management, in our considered opinion, it is within its power to lay down the criteria for appointment of Jan Shikshak in consonance with the provisions contained in Rule 13 of Rules 2003. Thus, it being within the powers of Rajya Shiksha Kendra to lay down the stipulation for appointment of Jan Shikshak it did not exceed in discharge of its statutory function in preventing the Upper Division Teachers and Adhyapak who was worked for four years from being reconsidered for appointment.
24. Trite it is that the right to be considered for appointment is not a vested right. In P. Suseela and others Vs. University Grants Commission, (2015) 8 SCC 129, it is held:
"16. Similar is the case on facts here. A vested right would arise only if any of the appellants before us had actually been appointed to the post of Lecturer/Assistant Professors. Till that date, there is no vested right in any of the appellants. At the highest, the appellants could only contend that they have a right to be considered for the post of Lecturer/Assistant Professor. This right is always subject to minimum eligibility conditions, and till such :: 15 ::
WA-427-2016 time as the appellants are appointed, different conditions may be laid down at different times. Merely because an additional eligibility condition in the form of a NET test is laid down, it does not mean that any vested right of the appellants is affected, nor does it mean that the regulation laying down such minimum eligibility condition would be retrospective in operation. Such condition would only be prospective as it would apply only at the stage of appointment. It is clear, therefore, that the contentions of the private appellants before us must fail."
25. In view whereof, we respectfully disagree with the view taken in W.P.No.6626/2010 (S) Rajmal Rathore and others Vs. State of Madhya Pradesh and others decided on 25.11.2010 [ILR (2011) MP1164], Writ Petition Nos.583/2016, 856/2016, 1086/2016, 1822/2016, 1983/2016 and 1986/2016, W.P.No.21972/2015 Ashok Kumar Sharma Vs. State of Madhya Pradesh and others and connected Writ Petitions decided on 9.12.2016 reliance whereon has been placed on behalf of petitioners during course of hearing. And uphold the view taken in Writ Petition no.6650/2010 (S), Smt. Mamta Sharma and others Vs. State of Madhya Pradesh and others and batch of writ petitions decided on 11.11.2010, we also affirm the orders under challenge.
26. Appeals stand disposed of finally in above terms. No costs.
(Sanjay Yadav) (S.K.Awasthi)
Judge Judge
Pawar/-