Madhya Pradesh High Court
Ashok Kumar Mishra vs The State Of Madhya Pradesh Thr on 5 August, 2020
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
THE HIGH COURT OF MADHYA PRADESH
W.P. No. 5616/2016
Ashok Kumar Mishra vs. State of MP
Gwalior, Dated :05/08/2020
Shri D.S. Raghuvanshi, Counsel for the petitioner
Shri Sankalp Sharma, Counsel for the State
Shri Raghvendra Dixit, Counsel for the respondent no. 2.
Heard finally through Video Conferencing. This petition under Article 226 of the Constitution of India has been filed seeking the following relief(s) :-
(I) That, the present petition filed by the petitioner may kindly be allowed;
(II) That, the impugned order order dated 5-8-2016 Annexure P/1, passed by the respondents may kindly be directed to be set aside and the respondents may kindly be directed to permit the petitioner on his present place of posting as Accountant in GDA.
(III) That, it may be directed that the petitioner's services be absorbed on the post of Accountant or any other equivalent post carrying similar regular pay scale by granting the benefits attached to such post including the promotional prospects with all consequential benefits. (IV) That, any other just, suitable and proper relief, which this Hon'ble Court deems fit, may also kindly be granted to the petitioner. Costs be also awarded in favour of the petitioner.
The necessary facts for disposal of the present petition in short are that the petitioner was appointed in Gwalior Dugdha Sangh. Since, there were excess employees in Gwalior Dugdha Sangh, therefore, a policy was formulated by the Govt. for absorption of the excess employees in other departments. Accordingly, the petitioner was sent on deputation to G.D.A. pending his absorption. By the THE HIGH COURT OF MADHYA PRADESH W.P. No. 5616/2016 Ashok Kumar Mishra vs. State of MP impugned order dated 5-8-2016 (Annexure P/1), the petitioner was repatriated to his parent department. Accordingly, the order of repatriation has been challenged mainly on the ground that since, the proposal for absorption of the petitioner was pending, therefore, he should not have been repatriated to his parent department.
This Court by order dated 12-8-2016, stayed the effect and operation of the order dated 5-8-2016 and accordingly, by virtue of the interim order, the petitioner is still working in G.D.A. The respondent no. 2 has filed its return and submitted that the representation of the petitioner for his absorption has been rejected by order dated 27-1-2018. The relevant part of the return is as under :
2. That, present writ petition deserves to be dismissed on the simple ground that in compliance of the order dated 1-12-2010 passed in W.P. No. 4491/2009, petitioner's representation has been considered and rejected vide order dated 27-1-2018 in aforesaid has been communicated to the answering respondent authority (borrowing department) vide covering letter dated 22-5-2019.
Not only this parent department has also demanded petitioner's services under its own control and administration vide letter no. 4465 dated 7-8-2015........
It is submitted that in the light of the letter dated 7-8-2015 sent by the parent department, by which the services of the petitioner were demanded back, the impugned order of repatriation has been passed.
THE HIGH COURT OF MADHYA PRADESH W.P. No. 5616/2016 Ashok Kumar Mishra vs. State of MP Although the petitioner has filed his rejoinder also, but could not point out any policy decision of the State Govt. to the effect that the respondent no.2 is under obligation to absorb the petitioner inspite of the fact that the parent department has demanded his services back.
Only the excess employees were directed to be sent on deputation and to be absorbed in other departments, but where the parent department is in need of the services of the petitioner, then the petitioner cannot claim that his deputation should be maintained and he should be absorbed in another department.
The Supreme Court in the case of Kunal Nanda Vs. Union of India reported in (2000) 5 SCC 362 has held as under :
6. On the legal submissions also made there are no merits whatsoever. 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. The reference to the decision reported in Rameshwar Prasad v.
M.D., U.P. Rajkiya Nirman Nigam Ltd. is inappropriate since the consideration therein was THE HIGH COURT OF MADHYA PRADESH W.P. No. 5616/2016 Ashok Kumar Mishra vs. State of MP in the light of the statutory Rules for absorption and the scope of those Rules. The claim that he need not be a graduate for absorption and being a service candidate, on completing service of 10 years he is exempt from the requirement of possessing a degree needs mention, only to be rejected. The stand of the respondent Department that the absorption of a deputationist being one against the direct quota, the possession of basic educational qualification prescribed for direct recruitment i.e. a degree is a must and essential and that there could be no comparison of the claim of such a person with one to be dealt with on promotion of a candidate who is already in service in that Department is well merited and deserves to be sustained and we see no infirmity whatsoever in the said claim.
The Supreme Court in the case of Union of India Vs. Bhanwar Lal Mundan reported in (2013) 12 SCC 433 has held as under :
11. It is not in dispute that the respondent was sent on deputation and his lien in the parent department continued and hence, it was obligatory on the part of the authorities in the parent department to intimate him when the selection process for the higher post was undertaken as he had already come within the zone of consideration. In this context, we may refer with profit to the authority in D.M. Bharati v. L.M. Sud wherein the Court was dealing with a case whether the employee had got a promotion in the department to which he was sent on deputation. While considering the effect of the said promotion after repatriation the Court observed thus: (SCC p. 167, para 7) "7. ... that the appellant's promotion as junior draftsman and proposed promotion as Surveyor-cum-Draftsman in the Town Planning Establishment cannot confer any THE HIGH COURT OF MADHYA PRADESH W.P. No. 5616/2016 Ashok Kumar Mishra vs. State of MP rights on him in his parent department. When he left the Municipal Corporation and joined the Town Planning Establishment he was a tracer and he can go back to the Estate Department or any other department of the Municipal Corporation only to his original post i.e. as tracer, subject to the modification that, if in the meantime he had qualified for promotion to a higher post, that benefit cannot be denied to him."
Thus, the repatriation has to be to the original post and benefit of promotion in the department to which an employee is deputed is of no consequence, subject to his entitlement of status otherwise available in the parent department.
12. In Puranjit Singh v. UT of Chandigarh it has been held that when a deputationist is repatriated he cannot claim promotions in the parent department on the basis of officiation in a higher post in the borrower organisation.
13. In State of Punjab v. Inder Singh the learned Judges elaborately adverted to the concept of deputation and the right of a deputationist and in that context opined thus:
(SCC pp. 384-85, para 18) "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 the Recruitment Rules."
THE HIGH COURT OF MADHYA PRADESH W.P. No. 5616/2016 Ashok Kumar Mishra vs. State of MP The Supreme Court in the case of U.P. Rajkiya Nirman Nigam v. P.K. Bhatnagar, reported in (2007) 14 SCC 498 has held as under :
11. In our opinion, Respondent 1 cannot, by reason of any attitude adopted 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 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 in 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. The State Government shall give effect to the orders passed by the State Government as well as by the appellant on 18-1-
1994, 14-9-1994 and 29-1-1993.
If the facts of the case are considered in the light of the judgments passed by the Supreme Court, then it is clear that the State Govt. has rejected the representation of the petitioner for absorption.
THE HIGH COURT OF MADHYA PRADESH W.P. No. 5616/2016 Ashok Kumar Mishra vs. State of MP Once, the claim of the petitioner for his absorption in Gwalior Development Authority has been rejected and his services have been demanded back by his parent department, then the petitioner has no right to claim absorption or continuation on deputation in Gwalior Development Authority.
Accordingly, this Court is of the considered opinion, that nothing survives in the present petition in the light of the orders dated 27-1-2018 and 7-5-2018 passed by State of M.P. And Gwalior Sahakari Dugdh Sangh Maryadit, respectively.
The interim order granted on earlier occasion is hereby vacated.
The petitioner is directed to immediately join in his parent department.
The petition fails and is hereby dismissed.
(G.S. Ahluwalia) Judge MAHENDR Digitally signed by MAHENDRA KUMAR BARIK DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH A KUMAR COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474011, st=Madhya Pradesh, 2.5.4.20=f592da990684fe30f8e1e29a4a1a BARIK 9e3451ee450d883083a8e4cc8020eee6f7 cb, cn=MAHENDRA KUMAR BARIK Date: 2020.08.07 19:51:31 +05'30'