Madhya Pradesh High Court
Awadh Kishore Pureha vs National Highways Authority Of India ... on 25 November, 2019
Author: Sanjay Yadav
Bench: Sanjay Yadav
1 M.P.No.5194/2019
THE HIGH COURT OF MADHYA PRADESH
M.P.No.5194/2019
(Awadh Kishore Pureha vs. National Highways Authority of India & others)
Jabalpur, Dated : 25.11.2019.
Ms. Shobha Menon, learned Senior counsel with Shri
Rahul Choubey, learned counsel for the petitioner.
Shri Vivek Ranjan Pandey, learned Government Advocate
for the State and its functionaries.
This petition under Article 227 of the Constitution of India
is directed against the order dated 26.09.2019 passed by Central
Administrative Tribunal Jabalpur, Bench Jabalpur in Original
Application No.200/00880/2016; whereby challenge to the order
of repatriation and for direction for grant of NOC for
appointment on the post of Deputy General Manager
(Technical), National Highways Authority of India (referred as
NHAI) on deputation has been negatived.
The relevant facts are carved out from the Tribunal's order.
The petitioner joined the then Irrigation Department as Sub-
Engineer on 14.05.1980 and continued to get promotion as
Assistant Engineer and further up-gradation in the respondent
No.4 and 5 Department. That the petitioner applied for the post
of Manager (Technical) on deputation against the notification
issued by NHAI. He was selected for the same vide letter dated
16.12.2010 on deputation basis for a period of 3 years.
Thereafter, the deputation period was extended to 5 years by
NHAI with the approval of the Competent Authority vide office
order dated 10.07.2014 i.e. upto 30.06.2016. That, NHAI issued
notification in the month of August 2015 for the post of Deputy
2 M.P.No.5194/2019
General Manager (Technical) on deputation basis. The petitioner
applied for it. Accordingly, NHAI vide letter dated 01.02.2016
requested office of respondent No.5 for ACRs of 5 years,
Vigilance clearance and NOC. This was followed by another
letter dated 16.03.2016. That respondent No.5 issued office order
17.05.2016 to get the petitioner repatriated to the parent
department and posted him at Tikamgarh. That respondent No.5
again wrote to NHAI on 02.08.2016 to repatriate the petitioner
quickly as the parent department is facing acute shortage of
Engineers. The NHAI vide order dated 23.08.2016 repatriated
the petitioner to his parent department. With the contention that
the office of respondent No.5 discriminated the petitioner by not
granting NOC, whereas one Shri V.P.Tentwal was allowed to
continue on deputation beyond 5 years. And one Shri B.P.Gupta
was granted NOC for the post of DGM (T) in NHAI.
The respondents before the Tribunal denied the
contentions. It was stated that deputation is not the right of the
applicant and it is for the department to take the decision
whether it will be administrative exigency of the parent
department to send an incumbent on deputation. It was urged
that selection of the applicant for any post under NHAI will not
create an indefeasible right for extension on deputation or for
grant of NOC. It was urged that the applicant cannot claim to
continue on deputation merely because some other Engineers are
working on deputation in different departments.
The Tribunal after due consideration declined the relief
sought. The Tribunal found that the petitioner's initial deputation
3 M.P.No.5194/2019
was for three years which was extended to 5 years upto
30.06.2016. It held :
"13. Perusal of order dated 17.05.2016 (Annexure
A-5) indicates that the applicant was initially sent
on deputation for a period of 3 years vide Govt.
order dated 28.06.2011. Order of NHAI dated
10.07.2014 (Annexure A-2) speaks of approval of
Competent Authority, but there is no mention of
consent of lending department to extend the
deputation period from 3 to 5 years. It is not clear
from the documents available on record that
extension was with the consent of lending
department.
14. Order dated 17.05.2016 (Annexure A-5) does
not talk of premature repatriation. It is to be seen
that this is issued just 6 weeks prior to the end of 5
years deputation period on 30.06.2016. Through
this order, the applicant was called on
administrative ground and was posted at Tikamgarh.
15. Apart from this, the ground that NHAI is
having shortage of officers is neither the concern of
the applicant nor of lending department. The WRD
department has stated that they are having shortage
of Engineers. Since the deputation period got over
on 30.06.2016, the respondents-NHAI have issued
repatriation orders on 23.08.2016.
...
19. Further, the assertion of the applicant that several Engineers have been sent on deputation during 2015-2018, hence denial of NOC to him is discrimination does not cut much ice. After all, the applicant has also been on deputation for a period of 5 years from 2011 to 2016. It is the discretion of the parent department to take a call on the issuance of NOC. Further, as highlighted by Hon'ble High Court in WA 885/2014 (supra), negative equality 4 M.P.No.5194/2019 cannot be applied for granting benefit. If required, he can represent to the State Government." Though the order has been criticized on the ground that Tribunal grossly erred in non-suiting the petitioner. It is urged that the petitioner having been adjudged suitable for the post of Deputy General Manager (T) by the borrowing department, it was improper for the Authorities of the Water Resources Department to have withheld the NOC and other credentials. It is contended that the findings arrived at by the Tribunal qua the repatriation, which though was not by the competent Authority, yet the Tribunal came to conclusion that it was valid and proper.
Evidently, in furtherance to offer of appointment dated 16.12.2010 on the post of Manager (Technical) in pay band of Rs.15600-34100 + grade pay Rs.6600 in National Highways Authority of India on deputation basis initially for a period of 3 years, the petitioner vide order dated 28.06.2011 was relieved from the parent department i.e. Water Resources Department for a specific period of three years. Apparently, the order was in the name of Governor. Later, the deputation period was extended from 3 years to 5 years by NHAI vide office order dated 10.07.2014. And though the order says that it has the approval of Competent Authority, however, it is not clear from record that the competent Authority is that of borrowing or of lending department. And if it was of the leading department who was the said Authority. Be that as it may. As non-sending on deputation or repatriation to the parent department does not tantamount to punishment. It is not necessary that the order should be by the State Government.
5 M.P.No.5194/2019In State of Punjab vs. Inder Singh (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. ..."
In Managing Director, U.P. Rajkiya Nirman Nigam vs. P.K.Bhatnagar & ors. (2007) 14 SCC 498, it is held :
"11. In our opinion, Respondent 1 cannot, by reason of any attitude adopt by the State Government, claim to continue in service with the appellant. The records of the case clearly show that Respondent 1 at all material times was on deputation with the appellant. The State Government had sent Respondent 1 on deputation 6 M.P.No.5194/2019 to the appellant and also passed the order of repatriation on the basis that Respondent 1 was an employee of the State Government. If the State Government desires to take any other stand at this stage that would have to be decided in the proceedings other than these. For the purposes of this case we have no hesitation holding that Respondent 1 was the State Government's employee and was sent on deputation to the appellant. Now that the repatriation order has been passed by the State Government, Respondent 1 cannot claim to be in service with the appellant. The mere fact that he has spent several years in service of the appellant will not alter Respondent 1's position from that of a deputationist to a regular employee (See State of Punjab v. Inder Singh.) In the circumstances of the case, the appeal is allowed and the decision of the High Court is set-aside. ..."
In view whereof, we do not perceive any error in the impugned order passed by the Tribunal. Consequently, petition fails and is dismissed. No costs.
(Sanjay Yadav) (B.K.Shrivastava)
Judge Judge
anand
Digitally signed by
ANAND KRISHNA SEN
Date: 2019.12.19
18:21:47 +05'30'