Andhra Pradesh High Court - Amravati
Dr. K.Kavitha, vs The State Of Andhra Pradesh on 6 March, 2020
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
W.P.No.18792 of 2019
ORDER :
Petitioner before this court is a Doctor by profession, who seeks the following relief:
"To issue an appropriate writ order or direction more particularly one in the nature Writ of Mandamus declaring the impugned orders of the 1st respondent in G.O.Rt.No.632 HEALTH MEDICAL and FAMILY WELFARE (B1) DEPARTMENT, dated 18.11.2019 in illegally extending the deputation period of the 5th respondent contrary to law and rules and consequential relieving orders of the 2nd respondent in R.c.No.2390/E6.D/2013 dated 19.11.2019 as illegal, arbitrary, capricious and violative of Article 14 and 21 of the Constitution of India and consequently set aside the aforesaid impugned orders."
The petitioner has challenged the G.O.Rt.No.632, dated 18.11.2019 by which, order the deputation of the 5th respondent in this case is extended by a further period of two years beyond the permitted five year period at the Police Welfare Hospital, Tirupthi. Both the petitioner and the 5th respondent are civil surgeons. By virtue of G.O.(P).No.10 dated 22.01.1993, the terms of deputation of Government servants to Foreign Services has been settled. Although the term 'Foreign Services' is used, as can be seen from this case, these rules are being used for transfers within the country, 2 but to different services. Therefore, the word 'Foreign Service' appears to have been used liberally by all the parties to the dispute including the State as "deputation to a different department". In this case, the petitioner and the 5th respondent are both claiming to be deputed to the Urban Police Head Quarters Hospital at Tiupathi as Medical Officers. The case of the petitioner is that the 5th respondent has already completed five years of deputation to the Police Hospital at Tirupathi. It is her argument that despite orders being passed cancelling the deputation of the 5th respondent, petitioner was not allowed to join the duty. Later, she was allowed to join duty on 03.10.2019. However, on 18.11.2019, the impugned order was passed by which the deputation period of the 5th respondent was again extended for another two years. The essential contention of the learned counsel for the petitioner is that the deputation can only extended for five years. In terms of G.O.(P).No.10 dated 22.01.1993 and the subsequent clarifications in G.O.Ms.No.2 dated 02.01.2010 etc., the period of five years is mandatory and in case the employees who have completed five years, can be considered for further deputation only if they work for one year in their parent organization. Learned counsel for the petitioner relies upon the terms and conditions of G.O.Ms.No.10 dated 02.01.1993. He relies upon the following clauses:
(i) Period of Deputation: The total period of deputation should not exceed five years, the 3 period being reckoned from the date of relief from service to the date on which he takes charge of a post under the Government on reversion from foreign service. The period of deputation shall be subject to a maximum of five years of which the initial period of deputation up to 3 years shall be sanctioned by the Head of the Department if he is the competent authority to order transfers and postings, of his subordinates. Otherwise the Government in the Administrative Department not below the rank of Deputy Secretary to Government shall issue orders sanctioning the deputation to Foreign Service. Extension beyond the initial period of 3 years that is for a further period up to 2 years shall be decided by the concerned Secretary to Government where such extensions is considered necessary in public interest. In case where Government is the authority competent to order transfers and postings, the cases of deputation to Foreign Service should be sanctioned only by Government and not by the Head of the Department. However, in cases of deputation of the State Police employees to the Ministry of Railways and to the Central Bureau of Investigation (Special Police Establishment), the period of deputation shall be 7 years as already ordered in G.O.Ms.No.298, Fin & Plg., (FR-II) Department, dt.02-1-1974. Under no circumstances extensions beyond the above specified period will be considered by Government.
(vi) Deviation from the Standard terms: The terms and conditions laid down above should be strictly followed and no cases for deviation from the standard terms may be taken up.
With a view to ensure promptitude in cases of deputation/foreign service of cases, the competent authorities are requested to 4 ensure that no Government shall be relieved without specific sanction issued by Heads of Departments/Government as case may be. In regard to the cases of sanction of extension of deputation/foreign service, the borrowing department/foreign employer should necessarily initiate proposals at least two months prior to the date of expiry of the deputation period, failing which the lending department shall issue orders well in advance or repatriation of the deputationist to the parent department before expiry of the sanctioned/extended term of deputation. Under no circumstances, the deputation period should be extended beyond the initial extended period of deputation of 3 years and upto 5 years respectively." (emphasis supplied) In addition, he draws the attention of this Court to G.O.Ms.No.2 dated 02.01.2020 and more particularly, to clauses 3 and 5 (1), which are as follows:
3. In the reference third and fourth read above, orders were issued that if a Government Servant continues on Foreign Service beyond the period approved by the State Government, he shall be deemed to have resigned from the Service.
5. Fundamental Rules are silent for deputing Government Servants on foreign service again after completion of permitted period of five years and on repatriation to the parent departments. Therefore, it is felt expedient and necessary to issue orders stipulating cooling period between one deputation to another deputation of the Government employees. Accordingly, Government after careful examination of the issue, order as follows:
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(i) In case of the employees who have availed the maximum period of deputation of 5 years either in one organization or in different organizations, they have to necessarily work at least one year in the parent department before they are considered for further deputation to any organization. (Emphasis supplied) Learned counsel for the petitioner argues that the 5th respondent has been wrongly deputed to work at the same hospital without the completion of one year interregnum/cooling off period. This is an alternative submission made by the learned counsel, who essentially argues that the petitioner was repatriated to her parent department. Learned counsel also relies upon J.C.Yadav v.
State of Haryana1 to argue that the power to relax a condition should be very carefully exercised.
In reply to this, learned Government Pleader for Services argues in line with the counter affidavit that has been filed. He submits that the 5th respondent has rendered meritorious service and therefore the rules have been relaxed. He also points out that even though the five year term of the 5th respondent is completed on 24.08.2019, the Superintendent of Police himself recommended for the extension in view of her service. He therefore states that orders have been issued in view of the services rendered by the 5th respondent and 1 (1990) 2 SCC 189 6 therefore, he contends that there is no wrong committed by the State.
Sri J.Sudhir, learned counsel for the 5th respondent also argues on similar lines. He points out that the good services rendered by the 5th respondent led to her recommendations by the Police personnel and the Senior Officers also. He points out that as the 5th respondent has rendered meritorious services, the Superintendent of Police himself recommended the extension. He also points out that the Director of Public Health and Welfare-the 2nd respondent had sought clarification from the Government of Andhra Pradesh, on the said proposals for extension on 01.08.2019. Even the Director General of Police, according to the learned counsel, sought the extension of the 5th respondent on the ground of "in the interest of welfare of the police personnel". Learned counsel also relies upon the said letters and states that the ultimate order dated 18.11.2019 was passed relaxing the terms and conditions of G.O.Ms.No.2 dated 02.01.2010. It is his contention that all these orders were passed based on the recommendation of the HOD's and the meritorious service of the 5th respondent. Therefore, learned counsel for the 5th respondent argues that there are no merits in the writ petition and prays that the same may be dismissed.
This Court after hearing both the learned counsel notices that despite the vehement arguments of both sides, 7 the issue for decision falls within a narrow compass. Both the parties are relying upon the G.O.s which are issued from time to time. The important clauses of the G.Os referred to by the counsels are also reproduced above. In G.O.(P).No.10 dated 22.01.1993, in clause 2.1, it is very clearly mentioned that the total period of deputation should not exceed five years. Only in cases of deputation of State Police Employees to the Ministry of Railways and to the CBI, the period of deputation is prescribed as seven years. Sub-clause (vi) of which deals with deviation from standard terms, which states that the terms and conditions laid down should be strictly followed and no cases for deviation from standard terms must be taken up. Even while dealing with question of extension of service, the G.O. stipulated that the proposal should start well in advance, but again a note of caution is sounded that under no circumstances, the deputation can extend beyond five years.
In G.O.Ms.No.2 dated 02.01.2010, it is also clearly mentioned in clause (3) that if a Government servant continues on foreign service, beyond approved period, he deemed to have resigned from his service. Clause 5 (i) clearly stipulates that there should be cooling period between one deputation and another. It is specifically mentioned that unless a gap of one year is there and the petitioner works in the parent department, the case cannot be considered for further deputation.
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If the impugned G.O. is examined against the backdrop of this earlier G.Os, it is clear that there is no discussion about the relaxation of the condition. G.O.(P).No.10 dated 22.01.1993 very clearly states that the terms and conditions cannot be relaxed and no cases of deviation are allowed. At more than one place, it is stipulated that the period should not exceed five years. In order to clarify this position, G.O.Ms.No.2 dated 02.01.2010 was issued. It also very clearly states that if a person stays on deputation beyond five years, he should be "deemed to have been resigned" from his service. In case it is felt that the services of the employee are to be extended beyond five years, it was very clearly specified that they should work for one year in the parent department before they are considered for further deputation.
This Court finds support in the submission made by the learned counsel for the petitioner that the order of deputation does not actually speak of any compelling reason to relax the conditions. He submits that if at all the five year limit is to be relaxed, it can only be relaxed if the applicant or deputationist works for a period of one year in the parent department i.e. after a one year cooling off period. Learned counsel rightly points out that this important condition in G.O.Ms.No.2 dated 02.01.2010 has been totally over looked in the impugned G.O.Rt.No.632 dated 18.11.2019. 9
This Court finds strength in what is stated by the counsel for the petitioner. The services of the 5th respondent may be meritorious, but that by itself does not give her the right to seek an extension. If she wants to seek an extension and the receiving department or the borrower department wants to secure her presence once again, they can only do so one year after she was worked for her parent department. Till then, in view of the clear and categorical conditions laid in G.O.Ms.No.2 date 02.01.2010, the 5th respondent cannot seek an extension. It is also clear that by 25.08.2019, the 5th respondent's deputation was over. She was relieved on 19.10.2019. Therefore, it is clear that there was no deputation to be extended as on 18.11.2019.
After considering all of the above, this Court is of the opinion that the Government did not exercise its authority properly. No reasons are forthcoming as to why the stringent conditions prescribed in the two G.Os mentioned above (G.O.(P).No.10 and G.O.Ms.No.2) are actually relaxed.
In that view of the matter, this Court holds that the petitioner has made out a case. The order dated 18.11.2019 passed in favour of the 5th respondent by which her services were extended, is therefore set aside.
The writ petition is therefore, allowed. No order as to costs.
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As a sequel, the miscellaneous petitions if any shall stand dismissed.
________________________ D.V.S.S.SOMAYAJULU,J Date : 06.03.2020 KLP