Patna High Court
Shahshi Bhushan Kumar vs The Union Of India & Ors on 4 August, 2017
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6884 of 2017
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Shahshi Bhushan Kumar, Son of Ram Shish Singh, resident of Village- Khamhar,
P.O.- Khamhar, P.S. Begusarai, District- Begusarai.
.... .... Petitioner/s
Versus
1. The Union of India.
2. The University Grant Commission, New Delhi.
3. The Principal Secretary, Ministry of Human Resources Development, Govt. of
India, New Delhi.
4. The Vice Chancellor, Central University of South Bihar, B.I.T. Campus, Patna.
5. The Registrar, Central University of South Bihar, BIT Campus, Patna.
6. The Finance Officer Central University of South Bihar, B.I.T. Campus, Patna.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Anjani Kumar, Sr. Advocate with
Mr. Hansraj, Advocate
For the Respondent/s : Mr. S.D. Sanjay, Sr. Advocate
Mr. Aloc Kumar Agrawal, Adv.
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL JUDGMENT
Date: 04-08-2017
Heard Mr. Anjani Kumar, learned senior counsel
appearing on behalf of the petitioner who appears with Mr. Hansraj,
the Advocate on record and Mr. S.D. Sanjay, learned senior counsel
appearing for the Central University of South Bihar and its
authorities assisted by Mr. Alok Kumar Agrawal.
With the consent of the parties the writ petition has been
heard with a view to its final disposal at the stage of admission itself.
The petitioner prays for quashing of the speaking order
dated 7.4.2017 of the Registrar, Central University of South Bihar
(hereinafter referred to as 'the Central University') whereby the
petitioner who was appointed as Internal Audit Officer on deputation
Patna High Court CWJC No.6884 of 2017 dt.04-08-2017 2
to the 'Central University' has been repatriated to his parent
organization i.e. the Finance Department of the Government of
Arunachal Pradesh, Itanagar with all consequential benefits. A copy
of the order is impugned at Annexure-10 to the writ petition.
Primarily three issues have been raised by Mr. Anjani
Kumar, learned senior counsel appearing for the petitioner to
question the repatriation order, namely:
(a) Whereas the stipulations present at clause 9 of the office
memorandum dated 17.6.2010 which finds reference in
the appointment order of the petitioner, a copy of which
is enclosed at Annexure-3 to the writ petition, inter alia,
provides a notice period of three months before any
premature order of repatriation is to be passed but this
obligation has not been discharged;
(b) The order of repatriation is without any notice or hearing
to the petitioner and thus is in violation of the principles
of natural justice; and
(c) The order is mala-fide and is an outcome of the
interaction in between the petitioner and the Registrar as
spelt out in paragraphs 8 to 10 of the writ petition as also
in the representation filed before the Vice-Chancellor, a
copy of which is present at Annexure-4.
According to Mr. Anjani Kumar, the order of
Patna High Court CWJC No.6884 of 2017 dt.04-08-2017 3
appointment present at Annexure-3 refers to the office memorandum
dated 17.6.2010 for the purpose of determination of salary and other
allowances admissible to the petitioner and includes the provision
relating to the procedure to be followed in cases of premature
repatriation at paragraph-9 thereof. He submits that since the
petitioner was not agreeable on the opinion of the Registrar in
relation to a file relating to an Associate Professor namely Dr. H.K.
Nigam that the whole exercise has been generated. He further
submits that in any event the petitioner was entitled to an
opportunity of hearing before the order of repatriation was passed.
The argument of Mr. Kumar, learned senior counsel
appearing for the petitioner has been contested by Mr. S.D. Sanjay,
learned senior counsel appearing for 'the Central University' to
submit that even though the office memorandum dated 17.6.2010
present at Annexure-14 at page 86 of the proceedings (wrongly
mentioned as Annexure-10) finds noted in the appointment order at
Annexure-3 and is also annexed at Annexure-15 to the interlocutory
application but the reliance is restricted to the pay and allowances
payable to the petitioner. He submits that in so far as the terms and
conditions of deputation is concerned, the appointment order has
clearly mentioned that his service shall be governed by the Act,
Statutes and Ordinances of the University and the conditions
stipulated in the appointment order, the complete copy of which is
Patna High Court CWJC No.6884 of 2017 dt.04-08-2017 4
present at Annexure-15.
Opposing the reliance of Mr. Kumar on the office
memorandum dated 17.6.2010 for the purpose of premature
repatriation, he submits that it is only applicable to Central
Government employee sent on deputation on an ex-cadre post under
the Central Government, State Government, Public-Sector
Undertakings, Autonomous Bodies, Universities, etc. and vice-versa
but not to an employee of the State Government of Arunachal
Pradesh on deputation to the Central University.
Responding to the objection on absence of service of
notice, he submits in reference to paragraphs 16 to 18 of the counter
affidavit that since the work and performance of the petitioner was
not found satisfactory that he was asked to submit a self appraisal
report and alongside reports were also called for from the Finance
Officer. It is stated that it is on consideration of the reports that it
was decided to repatriate him which order was passed in consonance
with rule 25 of the Central University of South Bihar, Cadre
Recruitment (Non-Teaching Employees) Rules, 2016 (hereinafter
referred to as 'the Rules') which inter alia, gives a discretion to the
University to repatriate any employee prematurely on grounds of
unsatisfactory performance or on grounds of integrity or conduct.
According to Mr. Sanjay, it is protecting the interest of the petitioner
that the repatriation order has been passed which merely refers to
Patna High Court CWJC No.6884 of 2017 dt.04-08-2017 5
his unsatisfactory performance as the reason for repatriation and for
which he was given opportunity to submit his self appraisal report
which was not found satisfactory. Responding to the argument of
malice he submits that it is the self opinion of the petitioner.
I have heard learned counsel for the parties and I have
perused the records.
There is no right vested in any employee to remain on
deputation and law stands well settled on this issue. Reference is
made to a Division Bench judgment of this Court reported in
2002(1) PLJR 707 (Lalit Kumar Vs. State of Bihar) wherein the
Division Bench specifically opining on the issue has held that a
deputationist does not have any right to hold the post on deputation
and that he can be there only till the requirement of the department
and can be sent back at any time. Rule 25 of 'the Rules', a copy of
which has been enclosed at Annexure R4/A vests jurisdiction in the
University to prematurely repatriate any employee on deputation, on
grounds, which can be anything in between unsatisfactory
performance to integrity or conduct. In so far as the present case is
concerned, it is on grounds of unsatisfactory performance that the
petitioner has been repatriated in exercise of powers vested under
rule 25 of the 'Rules'.
In my opinion, where the borrowing authority is not
satisfied by the performance of an incumbent on deputation he
Patna High Court CWJC No.6884 of 2017 dt.04-08-2017 6
would be well within its jurisdiction to repatriate him and in such
cases no exhaustive reason is required to be assigned. In so far as the
present case is concerned, it is manifest from the speaking order
present at Annexure-10 that a self appraisal report was called for
from the petitioner and was considered in the backdrop of the report
of the Finance Officer and was not found satisfactory leading to the
repatriation order under rule 25 of 'the Rules'.
There is a distinction when the period of deputation is
restricted on the basis of performance and when it is on the issue of
conduct or integrity. The moment the foundation for a repatriation
order rests on the questionable integrity or conduct of an incumbent
on deputation, definitely he is entitled to a hearing on such stigma
but that is not the case herein and the repatriation is on account of
unsatisfactory performance of the petitioner which is regulated
under rule 25 of 'the Rules'.
Mr. Anjani Kumar has very strenuously argued that the
office memorandum dated 17.6.2010 a copy of which is placed at
Annexure-14 to the writ petition as well as at Annexure A/1 to the
rejoinder to the counter affidavit would apply to the case of the
petitioner and even in the case of a repatriation on unsatisfactory
performance, the incumbent would be entitled to a notice period as
held by this Court in the judgment rendered in CWJC No.6235 of
2017 (Lallan Kumar Pandey @ Lalan Kumar Pandey vs. The
Patna High Court CWJC No.6884 of 2017 dt.04-08-2017 7
Ministry of Home Affairs, Government of India) but in my
opinion the reliance of Mr. Kumar on the office memorandum dated
17.6.2010as well as the judgment of this Court in the case of Lallan Kumar Pandey (supra), is completely misplaced.
It is eloquent from a reading of the subject of the office memorandum dated 17.6.2010 that it deals with the case of deputation of a Central Government employee to ex-cadre posts under the Central Government, State Government, Public-Sector Undertakings, Autonomous Body, University, Union Territory Administration, Local Bodies etc. and vice-versa. Meaning thereby it would cover the cases of all such Central Government employees who are posted on deputation within the Central Government or any State Government or to other bodies mentioned therein or when the Officers and employees in the Central Government, the State Government, Public Sector Undertakings, University etc. are sent on deputation to the Central Government but the office memorandum certainly does not extend to a State Government employee on deputation to the Central University. Even otherwise the reference of the office memorandum in the appointment order is merely in connection with emoluments and does not extend the provisions relating to deputation. In fact the appointment order very clearly informs that the service of the petitioner shall be governed by the Act, Statutes and Ordinances of the University and thus it is the Patna High Court CWJC No.6884 of 2017 dt.04-08-2017 8 'Rules' present at Annexure R4/A which would regulate his deputation and not the office memorandum dated 17.6.2010.
For the reasons and discussions above, I am not persuaded to interfere with the order under challenge herein.
The writ petition is disposed of accordingly.
(Jyoti Saran, J) SKPathak/-
AFR/NAFR AFR CAV DATE NA Uploading Date 30.08.2017 Transmission NA Date