Allahabad High Court
Dr. O.P. Singh vs State Of U.P. And Ors. on 26 July, 2002
Equivalent citations: 2002(4)AWC3067
Author: Jagdish Bhalla
Bench: Jagdish Bhalla, Kamal Kishore
JUDGMENT Jagdish Bhalla, J.
1. Petitioner is a Member of Agricultural Services of the State of U. P. and was working as a Deputy Director/Officer Incharge, Sambhagiya Krishi Parikshan Evam Pradarshan Kendra, Varanasi.
2. By the order dated 22nd June, 2001, some Members of Agricultural Services including the petitioner were sent on deputation to different departments. Petitioner, who was working as a Deputy Director at Varanasi was sent on deputation on the post of Chief General Manager (Marketing) in U. P. Agro by the said order dated 22nd June, 2001 on which he took charge on 26th June, 2001. In the order, it was clearly mentioned that this arrangement was purely an interim/temporary arrangement.
3. By the order dated 29th June, 2002. the State Government has posted one Sri Nathu Ram, Joint Director, Agricultural (Prasar), Saharanpur as Chief General Manager, U. P. State Agro Industrial Corporation Ltd. hereinafter referred to as the 'Corporation', (Lucknow). This post was held by the petitioner prior to passing of the impugned order.
4. Aggrieved by this order dated 29th June, 2002, the petitioner has filed this writ petition.
5. Heard learned counsel for the parties.
6. Learned counsel for the petitioner has submitted that though initially the deputation of the petitioner was temporary and no terms and conditions for deputation were framed. Subsequently, on 25th May, 2002 the terms and conditions regarding the posting of the petitioner in the corporation were framed wherein one of the conditions was that the term of petitioner who is in outer services and is working on deputation on the post of Chief General Manager (Marketing) in U. P. Agro will be of three years but without amending, altering or cancelling the order dated 25th May, 2002 the impugned illegal and arbitrary order dated 29.6.2002 has been passed. According to the learned counsel, there is nothing adverse against the petitioner and he has been successfully working on deputation.
7. It has been further contended the post of the Chief General Manager has not been upgraded as such the opposite party No. 4, who has now been posted as Chief General Manager (Marketing) being an officer of the Additional Director rank and not of the cadre of Deputy Director cannot be posted. Learned counsel for the petitioner has also invited our attention towards the letter dated 29th January, 2002 of Managing Director, of the corporation, contained in Annexure-6 and submitted that the corporation is suffering huge loss and posting of an officer of higher rank will cause further loss to the corporation, as such, the posting of the opposite party No. 4 is against the Interest of the corporation.
8. We are not satisfied with this contention of the learned counsel, as by this letter dated 29th January, 2002, Managing Director has brought to the knowledge of the State Government that the post of Chief General Manager (Marketing) is a post of corporation services and not a post of deputation. Filling this post permanently by deputatlonist will cause injustice to the equivalent officers of the corporation.
9. Learned standing counsel appearing for the State has submitted that the petitioner has no right to continue on a deputation post and the State Government is fully competent to pass the impugned order dated 29th June, 2002. In the order dated 25th May. 2002 nowhere it is mentioned that the petitioner cannot be repatriated to his parent department at any point of time prior to the expiry of the period of deputation, i.e., before three years.
10. Learned counsel for opposite party No. 4, Sri Robin Mitra, Senior Advocate has submitted that Sri Nathu Ram, opposite party No. 4 has already joined on the post of Chief General Manager (Marketing) on 6.7.2002 and by the order dated 11th July, 2002, the petitioner has been attached in Agriculture Directorate and in pursuance whereof, the petitioner has been relieved on the same date, i.e., 11.7.2002.
11. Sri Robin Mitra, while referring to the order dated 11th July, 2002 contained in Annexure A-1 to the affidavit filed by opposite party No. 4, has further submitted that the State Government took a policy decision for appointing an Officer of the rank of Additional Director as Chief General Manager (Marketing) in the Corporation and as such, the appointment of opposite party No. 4 on the said post is in consonance with the policy decision taken by the State Government.
12. Sri Robin Mitra, relying upon the decision in Balco Employees' Union v. Union of India and Ors., (2O02) 2 SCC 333, submitted that the Court cannot compel the State Government to adopt a particular policy or to drop it. It is neither within the domain of the courts nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. He further added that the Court should avoid from striking down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. In the instant case, the Government has dropped its earlier policy of posting a person of the rank of Deputy Director as Chief General Manager (Marketing) and took a decision that now the post will be filled by an officer of rank of Additional Director Agriculture, Group-Ka.
13. Relying upon the decisions in D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC 259 ; Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 and National Buildings Construction Corporation v. S. Raghunathan and Ors., AIR 1998 SC 2779, Dr. L.P. Misra, learned counsel for the petitioner contended that even the principles of natural justice and doctrine of "Legitimate Expectation" have been not adhered to by the respondents while passing the impugned order repatriating the petitioner to his parent department. The authorities should have proceeded in a way, which is patently impartial and meets the requirements of natural justice. Further, the period of the petitioner on deputation was fixed for three years by the State Government and as such, the petitioner has the legitimate expectation to continue on the post of Chief General Manager (Marketing), U. P. Agro Ltd. and he cannot be forced to be sent back to the parent department prior to 26.6.2004, i.e.. after completing three years period as laid down in the order dated 25th May, 2002.
14. We have given our anxious consideration to the decisions given in the case of Mohinder Singh Gill's case and D.K. Yadav's case (supra) and are of the opinion that the ratio of the judgment given in these cases do not give any protection to the petitioner when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reason so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order based in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out.
15. We may mention that, as held by the Supreme Court in catena of cases, repatriation amounts to transfer and the Court should generally avoid to interfere in such matters unless there is violation of law or allegations of mala fide have been made in the writ petition. No such foundation has been made in the writ petition. Learned counsel for the petitioner has even failed to substantiate any malice in law.
16. In Food Corporation of India v. Kamdhenu Cattlefield Industries, (1993) 1 SCC 71, the Supreme Court observed as under :
"..... the question whether the expectation and the claim is reasonable or legitimate, is a question of fact in each case. It was also observed that this question had to be determined not according to the claimants' perception but in larger public interest."
17. We are of the considered opinion that the right of legitimate expectation claimed by the petitioner cannot be examined according to the petitioner's perception but it is to be determined in the larger public interest. There is no iota of doubt in our mind that the policy decision has been taken in public interest while deciding that an officer of higher rank be posted as Chief General Manager (Marketing). It is important to mention that not only in the corporation where the petitioner was working but in other Public Undertakings and Corporations, same policy has been adopted, which is clear from the perusal of the order dated 23.1.2001 produced by the learned standing counsel. Further, this Court would be exceeding its jurisdiction, if we declare that the policy is unfair, unreasonable or is violative of the principles of natural justice. We do not find any substantive right of the petitioner which has been affected by the impugned order because the petitioner has only been repatriated to his parent department from his tenure posting.
18. In National Buildings Construction Corporation Case (supra), the Supreme Court while dealing with the doctrine of "Legitimate Expectation" observed as under :
"The doctrine of "Legitimate Expectation" has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without any iota of abuse of discretion. The policy statements cannot be disregarded unfairly or applied selectively. Unfairness in the form of unreasonableness is akin to violation of natural justice. It was in this context that the doctrine of "Legitimate Expectation" was evolved which has today become a source of substantive as well as procedural rights. But claims based on "Legitimate Expectation" have been held to require reliance on representations and resulting detriment to the claimant in the same way as claims based on promissory estoppel"
19. It is important to mention at this place that the learned standing counsel appearing for the State Government produced before us an order, a perusal whereof Indicates that State Government on 23rd January, 2002 took a policy decision of filling the posts in different corporations including the post of Chief General Manager (Marketing) in U. P. State Agro Industrial Corporation by an officer of the rank of Additional Director Agriculture, as such, the contention of the learned counsel for the petitioner that without upgrading the post, an officer of the rank of Additional Director Agriculture has been posted instead of posting Deputy Director Agriculture as Chief General Manager (Marketing) is not correct and has no force.
20. Speaking for the Bench, His Lordship Hon'ble Mr. Justice S. Saghir Ahmad, J. (as he then was) further held in paragraph 31 of the report as under :
"Incidentally, in this case, the question of "Legitimate Expectation" was not raised in the petition and no foundation was laid in the pleadings for such a plea being advanced before the Court. Strangely, the High Court allowed this plea at the stage of arguments and allowed the petitions only on the ground of "Legitimate Expectation" without least realizing that there was hardly any legitimacy in the claim of the respondents. In the absence of pleading and the affidavit of the respondents in support thereof, the whole exercise done by the High Court cannot but be termed to be speculative."
21. Incidentally, in this case, the question of "Legitimate Expectation"
has not been raised in the writ petition and no foundation has been laid in the pleadings for applying this doctrine to the facts of the case. Only during the course of arguments, learned counsel has made submissions that the petitioner was legitimately hoping to continue on the post of Chief General Manager (Marketing), U. P. Agro Ltd. at least for a period of three years from the date he took charge on the deputation post. Therefore, the National Buildings Construction Corporation Case (supra) is of no help to the petitioner.
22. Now, coming to the question what rights the petitioner have to continue on the deputation post? In Ratilal B. Soni and Ors. v. State of Gujarat and Ors., 1990 (supp) SCC 243, the question for consideration before the Hon'ble Supreme Court was whether the appellants have a right to be absorbed in the cadre of Circle Inspectors. In this case, the appellants were sent on deputation as Circle Inspectors in the State Cadre. Later on, qualified officials became available for promotion to the post of Circle Inspectors in the State cadre and as such, the appellants were reverted to their parent cadre of Talatis in the Panchayat Service. The Supreme Court, while answering the question in negative, held as under :
"The appellants being on deputation, they could be reverted to their parent cadre at any time and they do not get any right to be absorbed on the deputation post."
23. In Kunal Nanda v. Union of India and another, (2000) 5 SCC 362. the Supreme Court held in very categorical terms that a deputationist can always at any time be repatriated to his parent department to serve in his substantive position therein either at the instance of borrowing or lending department and he has no vested right to continue for long on deputation or absorbed to the department to which he had gone on deputation. The relevant portion of the judgment reads as under :
"............It is well-settled that unless the claim of the deputationist for a permanent absorption in the department where he works on deputation is based upon any statutory rule, regulation or order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle 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."
24. Applying the above principles, we are of the view that it is the prerogative of an employer to call back its employee from deputation or to post any other officer of higher rank in his place. Petitioner can have legitimate expectation where he has permanent lien but he has no right or lien on the deputation post even if he has been sent to the borrowing department for a specific period. We are further of view that the period of deputation can be curtailed by the employer at any point of time on administrative ground or in public interest. The policy pointed out by the petitioner is equivalent to the policy of transfer which does provide for minimum stay of a Government, employee on a particular station for three years but the State Government or for that matter, the authority competent, may transfer the employee prior to three years period on administrative ground or in administrative exigencies. Policies are merely guidelines and have no statutory force of law.
25. In view of the above discussions, the writ petition fails and is dismissed accordingly.
26. No order as to costs.