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Madhya Pradesh High Court

Dr. Sunil Singh Baghel vs The State Of Madhya Pradesh on 9 January, 2017

                               WP-1954-2016
             (DR. SUNIL SINGH BAGHEL Vs THE STATE OF MADHYA PRADESH)


09-01-2017
   HIGH COURT OF MADHYA PRADESH: PRINCIPAL SEAT AT
                    JABALPUR

                   Writ Petition No.1954/2016
                       Dr. Sunil Singh Baghel

                                 Vs.

                        State of M.P. & others

Present: Justice Sujoy Paul



Shri Prashant Singh, learned counsel for the petitioner.

Shri Pushpendra Yadav, learned Govt. Advocate for the
respondents/State. Shri Manish Kumar Verma, learned counsel for
the respondent Nos.2 & 3.

ORDER

( 09/01/2017) The core issue to be decided in this petition filed under Article 226 of the Constitution is : whether the petitioner has any indefeasible and enforceable right to join on deputation as Dy. Director in the State Backward Class Commission ?

2. Briefly stated, the facts are that the petitioner is substantively holding the post of District Coordinator in Centre for Entrepreneurship Development. His parent department is Centre For Entrepreneurship Development of Madhya Pradesh (CEDMAP). The petitioner submitted his candidature pursuant to an advertisement published in “Rojgar Aur Nirman” on 15.09.2014. The petitioner preferred an application on 04.10.2014 seeking permission of parent department to participate in the selection process pursuant to advertisement (Annexure-P/8). The permission was duly granted by the respondents by communication (Annexure-P/9) to (Annexure-P/11). The petitioner, after obtaining necessary permission, participated in the selection process and was selected and appointed as Dy. Director (Class I) on deputation for a period of three years. The order dated 31.07.2015 (Annexure-P/1) shows the said appointment of the petitioner.

3. The respondents did not relieve the petitioner to join the post of Dy. Director. Shri Prashant Singh, learned counsel for the petitioner submits that after having given permission to participate in the selection process, the respondent No.3 cannot take a different stand and say that the petitioner cannot be relieved for joining the post in the borrowing department. More so, when various other employees were permitted to join the posts in different departments of the State Government on deputation. He submits that the action of the respondents in not relieving the petitioner is arbitrary and capricious in nature. It is also submitted in the rejoinder that one Shri Sagar Bisen was sent on deputation but after receiving the notices of this petition, he was called back from deputation to join his duties in parent department.

4. Shri Manish Verma, learned counsel for the respondents opposed the said contention. It is submitted that although initially permission was granted to the petitioner to participate in the selection process and join the post on deputation, in a subsequent meeting held on 05.10.2016 (Agenda No.6) (Annexure-R/2) a conscious decision was taken that permission (for allowing the prayer to go on deputation) given by the Governing Body earlier is withdrawn. To support this reason, Shri Verma advanced two fold contention. Firstly, it is submitted that the advertisement (Annexure-P/8) makes it clear that the deputation is permissible for the employees who are working in “other Government Departments”. The petitioner is not working in any Government Department. “CEDMAP”, by no stretch of imagination can be said to be a “Government Department”. Secondly, the petitioner has no legal right to go on deputation to borrowing department. Petitioner's services are required in the parent department and, therefore, the parent department has rightly decided that the petitioner cannot be relieved and earlier permission regarding deputation is withdrawn.

5. During the course of argument, learned counsel for the parties agreed that the writ petition is maintainable against the CEDMAP as held by this Court in W.P. No.20615/2011 (IFCI Ltd. Vs. Chairman, CEDMAP). In this view of the matter, this Court is not required to decide whether this petition is maintainable against the CEDMAP.

6. Shri Prashant Singh, learned counsel for the petitioner, in his rejoinder submission, contended that whether or not the petitioner is eligible to be considered for deputation, is a question which was required to be decided by the borrowing department/State Government. The borrowing department did not raise any such objection and, therefore, the parent department has no authority on this aspect to raise its eyebrows.

7. No other point is pressed by the learned counsel for the parties.

8. I have heard learned counsel for the parties and perused the record.

9. The admitted facts show that the petitioner was initially given permission by the parent department to submit his candidature for appointment on deputation in the State Government. However, the employer, later on, decided to withdraw such permission. The pivotal question is : whether the parent department can subsequently take a different view ? In other words, after having given permission to go on deputation, whether the parent department can withdraw such permission. Secondly, whether the petitioner has any indefeasible/enforceable right to go on deputation ?

10. This is settled in law that writ jurisdiction can be exercised for enforcement of any legal vested, statutory or constitutional right. If any such right is violated, writ petition can be entertained. The Apex Court in (2002) 4 SCC 638 (Director of Settlements , A.P. & others vs. M.R. Apparao and another) held as under:-

“A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by a statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be sustaining on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law."

11. The same view is taken by Division Bench of this Court in 2007 (4) MPLJ 548 (Bhartiya Kishan Sangh, District Bhind vs. Union of India).

12. So far petitioner's legal right is concerned, in my view, he has a lien on the substantive post occupied by him in his parent department. He was appointed to render services to the parent department. The parent department being the employer/master of the petitioner/servant, has every right to decide whether the services of the petitioner are required with the parent department. No doubt, at one point of time, the parent department decided to permit the petitioner to join the post on deputation. However, this permission cannot be treated as an indefinite license given to the petitioner to join the post as deputationist. The parent department, as per its administrative exigency, can very well review its decision and take a different view. In other words, if at a later point of time, it was decided that the petitioner cannot be spared and his services are required in the parent department, such decision is neither without jurisdiction nor it can be said to be arbitrary or capricious in nature.

13. In AIR 2000 SC 2076 (Kunal Nanda Vs. Union of India), the Apex Court held that the parent department or borrowing department at any point of time can seek/direct repatriation. The deputationist has no vested right to continue on deputation. Although this judgment is related with a case where the employee is already sent on deputation, principle flowing from it is clear that even after joining as deputationist, the employee has no indefeasible right to continue as deputationist or get absorbed in the borrowing department. In the present case, the petitioner did not join the borrowing department as deputationist. Thus, it cannot be said that any legal, vested or constitutional right of the petitioner is infringed. The view taken in Kunal Nanda (supra) is followed by a Division Bench of this Court in 2005 (1) MPLJ 398 (S.M.P. Sharma Vs. State of M.P. and another).

14. In view of the foregoing analysis, this Court is unable to hold that any such enforceable/indefeasible right of the petitioner is infringed by the respondents. Thus, no writ of mandamus can be issued for directing respondent No.3 to relieve the petitioner. Merely because certain employees of respondent No.3 were relieved to join on deputation, no parallel can be drawn by the petitioner from such cases. The administrative exigency may differ from post to post, person to person or from situation to situation. In nutshell, I find no reason to interfere in this petition. Petition fails and is hereby dismissed. No costs.

(Sujoy Paul) Judge Biswal HIGH COURT OF MADHYA PRADESH: PRINCIPAL SEAT AT JABALPUR Writ Petition No.1954/2016 Dr. Sunil Singh Baghel Vs. State of M.P. & others

-------------------------------------------------------------------------- Shri Prashant Singh, learned counsel for the petitioner. Shri Pushpendra Yadav, learned Govt. Advocate for the respondents/State. Shri Manish Kumar Verma, learned counsel for the respondent Nos.2 & 3.

Order Post for : 09/01/2017 (Sujoy Paul) Judge /01/2017 (SUJOY PAUL) JUDGE Biswal