Gujarat High Court
Jani Sagarkumar Umeshbhai & 14 vs State Of Gujarat & 2 on 14 March, 2017
Author: R. Subhash Reddy
Bench: R.Subhash Reddy
C/LPA/342/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 342 of 2017
In
SPECIAL CIVIL APPLICATION NO. 21655 of 2016
With
CIVIL APPLICATION NO. 3427 of 2017
In
LETTERS PATENT APPEAL NO. 342 of 2017
With
LETTERS PATENT APPEAL NO. 331 of 2017
In
SPECIAL CIVIL APPLICATION NO. 4240 of 2017
With
CIVIL APPLICATION NO. 3094 of 2017
In
LETTERS PATENT APPEAL NO. 331 of 2017
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JANI SAGARKUMAR UMESHBHAI & 14....Appellant(s)
Versus
STATE OF GUJARAT & 20....Respondent(s)
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Appearance:
LPA No.342 of 2017
SHRI SHALIN MEHTA, SENIOR COUNSEL assisted by Ms.VIDHI J. BHATT,
ADVOCATE for the Appellant(s) No. 1 - 15
Ms.MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER assisted by
SHRI D.M. DEVNANI, AGP for the Respondent(s) No. 1.
LPA No.331 of 207
SHRI SS PATEL, ADVOCATE for the appellants no.1 -1 5
SHRI DHAWAN JAYSWAL, AGP for respondent no.1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
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C/LPA/342/2017 ORDER
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 14/03/2017
COMMON ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY) In both these appeals similar issues call for consideration. As such they are heard together and disposed of by this common order. For the purpose of disposal we refer to the facts in Letters Patent Appeal No.342 of 2017.
2. This appeal is filed under Clause 15 of the Letters Patent by the original petitioners in Special Civil Application No.21655 of 2016, aggrieved by the order of the learned Single Judge dated 28.12.2016. The Special Civil Application is filed with the prayers, which read as under:
"A. This petition be admitted and allowed.
B. Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order and to quash and set aside order dated 22122016 passed by the respondent No.2 and retain the present petitioners on their respective original posts as BRC / CRC Coordinators.
C. Your Lordships may be pleased to held that the respondent no.1 and 2 have no power to remove the present petitioners as the petitioners have been appointed under the Page 2 of 12 HC-NIC Page 2 of 12 Created On Mon Aug 14 09:02:32 IST 2017 C/LPA/342/2017 ORDER Sarva Shiksha Abhiyan project of respondent no.3.
D. Pending hearing and final disposal of this petition, implementation and execution of order Dt.22122016 passed by the respondent no.2 for terminating the services for the post of BRC / CRC Coordinators may be stayed and the petitioners may not be removed from the post of BRC / CRC Coordinators.
E. Any other relief that may be deemed just, proper and necessary may also be kindly granted."
3. The learned Single Judge following the earlier orders passed in identical circumstances in Special Civil Application No.21604 of 2015, has passed the order dismissing the Special Civil Application No.21655 of 2016.
4. The appellants- petitioners are working as Coordinators, in Coordinating Centres on deputation basis in a scheme called, Sarv Shiksha Abhiyan (SSA) . By order impugned in the petition they are repatriated to their parent department as Primary Teachers. Such orders are under challenge in the petition.
5. As per the provisions under Right of Children to Free and Compulsory Education Act, 2009, various schemes are started by the Union of India as well as the State Government. One of the schemes is Sarv Shiksha Abhiyan, which has been implemented by the Gujarat Council of Elementary Education. In the said scheme, Page 3 of 12 HC-NIC Page 3 of 12 Created On Mon Aug 14 09:02:32 IST 2017 C/LPA/342/2017 ORDER there are posts of Coordinators at block level, at cluster level and also at urban level. The appellants- petitioners were brought on deputation to the post of Coordinators from their substantive posts of Primary Teachers. It is the grievance of the petitioners that they were selected, after conducting examination, and were appointed on deputation basis as Coordinators, but the respondents have abruptly ended their deputation without any fault on the part of the petitioners and similarly placed persons and they are repatriated to their parent department as Primary Teachers. It is their grievance that decision is taken at the instance of the Teachers' Union and some interested persons, and same is arbitrary, illegal and contrary to the terms and conditions of their appointment. The learned Single Judge, having considered their plea, dismissed the petition in limine, mainly on the ground that they were posted as Coordinators on ad hoc basis, and on deputation, but as policy decision, in consultation with the Union members, the Government has taken decision to repatriate all the Coordinators to their parent department. It is further observed by the learned Single Judge that those, who are repatriated are permitted to apply once again for deputation, after expiry of the prescribed cooling period of one year. Having considered various pleas, the learned Single Judge found that the respondents have taken policy decision without any discrimination, intervention of the Court is unwarranted and therefore, rejected the petition.
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6. We have heard Shri Shalin Mehta, learned senior counsel assisted by Ms.Vidhi J. Bhatt, learned counsel appearing for the appellants and Ms.Manisha Lavkumar Shah, learned Government Pleader assisted by Mr.D.M. Devnani, learned Assistant Government Pleader for respondent no.1 in LPA No.342 of 2017; and also heard Shri S.S. Patel, learned counsel for the appellants and Shri Dhawan Jayswal, learned AGP for respondent no.1 in LPA No.331 of 2017.
7. In this appeal it is contended by Shri Shalin Mehta, learned senior counsel for the appellants that they were appointed after conducting test as Coordinators and after reviewing their performance, Government took decision to repatriate only 50 Block Resource Coordinators and 797 Cluster Resource Coordinators, viz. 1/3rd of the total strength of persons, who are working on deputation and the appellants are not within the identified persons to be repatriated to parent department but subsequently, after consulting the Union, the impugned orders are passed to repatriate all the Coordinators, viz. Block Resource Coordinators (BRCs), Cluster Resource Coordinators (CLCs) and Urban Resource Coordinators (URCs), contrary to their terms and conditions of appointment, in arbitrary and illegal manner. It is submitted by Shri Shalin Mehta, learned senior counsel appearing for the appellants that as they were appointed after conducting test, as such they cannot be repatriated to the parent department contrary Page 5 of 12 HC-NIC Page 5 of 12 Created On Mon Aug 14 09:02:32 IST 2017 C/LPA/342/2017 ORDER to the terms and conditions of their appointment. It is submitted that the decision of the Government is only at the behest of the Union, which has no role to play and no reasons are stated for such decision. The learned senior counsel in support of his arguments has placed reliance on the judgments of the Hon'ble Supreme Court of India (i) in the case of Ashok Kumar Ratilal Patel Vs. Union of India and another, reported in (2012) 7 SCC 757; (ii) in the case of Union of India and another Vs. S.N. Maity & another, reported in A.I.R. 2015 SC 1008, (iii) in the case of Union of India, through Govt of Pondicherry and another Vs. V. Ramakrishnan and others, reported in (2005) 8 SCC 394; and
(iv) in the case of Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia and others, reported in (2004) 2 SCC
65.
8. On the other hand it is contended by Ms.Manisha L. Shah, learned Government Pleader appearing for respondent no.1-State that the original petitioners are regular employees working as Vidya Sahayaks in primary schools and they were posted temporarily on deputation basis as Coordinators in the scheme- Sarv Shiksha Abhiyan. It is submitted that as appointment is on year to year basis and as a policy decision, Government has taken decision, no rights of the petitioners are affected for seeking reliefs as prayed for. It is submitted that as they were on deputation, it is always open for the concerned to repatriate to his/ her parent Page 6 of 12 HC-NIC Page 6 of 12 Created On Mon Aug 14 09:02:32 IST 2017 C/LPA/342/2017 ORDER department to serve in substantive position and there is no vested right for such persons to continue or to seek absorption in deputation-post. It is further submitted that merely because the union was consulted, that by itself it cannot be said the decision was taken at their instance. The learned Government Pleader has placed reliance on the judgments of the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Inder Singh and others, reported in (19997) 8 SCC 372; and in the case of Kunal Nanda Vs. Union of India and another, reported in (2000) 5 SCC 362.
9. We have perused the letters of appointment issued to the petitioners appointing them as Coordinators on deputation basis. It is not in dispute that their substantive post is Vidya Sahayak and they were working in different primary schools. From perusal of the orders of appointment it is clear that they were appointed on temporary and on year to year basis in the posts of Coordinators at block level, at cluster level, and also at urban level in the scheme- Sarva Shiksha Abhiyan. It is true that earlier there was decision to repatriate only 1/3rd of the total number of Coordinators, but subsequently, after consulting the associations of teachers, the Government has taken decision to repatriate all the Coordinators, who are working and decided to make a fresh recruitment. From the material placed on record it is also clear that the persons who are repatriated are permitted to apply, for appointment on Page 7 of 12 HC-NIC Page 7 of 12 Created On Mon Aug 14 09:02:32 IST 2017 C/LPA/342/2017 ORDER deputation basis as Coordinator, after completing the cooling period of one year. The basic principle underlying deputation is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position, at the instance of either of the department and there is no vested right in such person to continue for long on deputation or to seek absorption. When appointment itself is on temporary and year to year basis, when the Government has taken policy decision to repatriate all Coordinators, it is not open for the appellant- petitioners to agitate against such repatriation, in absence of any statutory right or Constitutional right guaranteed to them. By repatriation, the appellants- petitioners are repatriated to their substantive post of teachers and the same cannot be said to be in violation of the terms and conditions of appointment. It is clear from the terms and conditions of appointment that such appointment is temporary and on year to year basis. Learned senior counsel Shri Shalin Mehta placed reliance in the case of Ashok Kumar Ratilal Patel Vs. Union of India and another, reported in (2012) 7 SCC 757 (supra). In the aforesaid judgment the Hon'ble Supreme Court has held that a candidate, who is appointed on deputation in State services has an indefeasible right to be treated fairly and equally. In the case of Union of India and another Vs. S.N. Maity & another, reported in A.I.R. 2015 SUPREME COURT 1008 (supra), the Hon'ble Supreme Court, as regards curtailment of deputation abruptly, when it is a fixed Page 8 of 12 HC-NIC Page 8 of 12 Created On Mon Aug 14 09:02:32 IST 2017 C/LPA/342/2017 ORDER tenure posting, has held that the period of deputation cannot be curtailed in arbitrary and capricious manner. In the judgment in the case of Union of India, through Govt of Pondicherry and another Vs. V. Ramakrishnan and others, reported in (2005) 8 SCC 394 (supra), the Hon'ble Supreme Court has held that when the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term of deputation should not be curtailed, except on such grounds, for example, unsuitability, unsatisfactory performance, etc.
10. From the proposition of law as decided in the aforesaid judgments, it is required to be examined in each case, the terms and conditions of deputationists. There cannot be a straightjacket formula to apply in all cases of deputations. Rights of deputationists, if any, are to be considered with reference to the terms and conditions of deputation. In the very appointment of the appellants when it is clearly mentioned that deputation is on year to year basis, we are of the view that all the aforesaid three judgments are of no help to the appellants- petitioners. When policy decision is taken by the Government, without any discrimination and in detriment to conditions of service in parental post, the deputationist cannot raise plea for his continuance in the deputation-post. In support of his argument that the impugned decision is taken only at the instance of the union, Shri Shalin Mehta, learned senior counsel placed reliance on judgment in the Page 9 of 12 HC-NIC Page 9 of 12 Created On Mon Aug 14 09:02:32 IST 2017 C/LPA/342/2017 ORDER case of Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia and others, reported in (2004) 2 SCC 65 (supra). We are of the view that merely because the union is consulted, that by itself is no ground to hold that decision is only at the instance of the union. In para 26 of the judgment referred to above, the Hon'ble Supreme Court has held that if decision is taken by the Statutory Authority, at the behest of or at the suggestion of a person, who has no statutory role to play, the same would be ultra vires. The said judgment would not support the case of the appellants, having regard to the fact situation in the present case. Merely because, the union is consulted before taking decision to repatriate all the coordinators, it cannot be presumed that the very decision of the authorities is only at the behest of the union.
11. Further, in the case of State of Punjab and others Vs. Inder Singh and others, reported in (19997) 8 SCC 372 (supra) relied on by the learned Government Pleader, it is clearly held that neither employee can resist repatriation on the ground that he has continued on deputation for a long time nor can he seek absorption in deputation- post. Further in the case of Kunal Nanda Vs. Union of India and another, reported in (2000) 5 SCC 362 (supra), in clear terms the Hon'ble Supreme Court has held that the deputationist can always, at any time, be repatriated to his parent department, at the instance of either borrowing department or the parent department. In the very same judgment it is held that Page 10 of 12 HC-NIC Page 10 of 12 Created On Mon Aug 14 09:02:32 IST 2017 C/LPA/342/2017 ORDER there is no right vested in the person either to seek continuance for long period on deputation or to get absorbed in the borrowing department. Both these judgments also support the case of the respondents.
12. As we are of the view that the decision of the Government is a policy decision, which is applied to one and all, who are working as Coordinators, we do not find any discrimination, or any violation of any rights guaranteed under the Constitution of India. It is also brought to our notice by the learned Government Pleader that cooling period is prescribed to see that as they are authorized to spend money on various schemes and to avoid developing any vested interest, such a period is mentioned. In that view of the matter we do not find any merit in these appeals so as to interfere with the order passed by the learned Single Judge. Both these appeals are devoid of merit. Accordingly, the same are dismissed. No order as to cost.
13, Consequently, the Civil Applications do not survive. The same are disposed of accordingly.
(R. SUBHASH REDDY, CJ) Page 11 of 12 HC-NIC Page 11 of 12 Created On Mon Aug 14 09:02:32 IST 2017 C/LPA/342/2017 ORDER (VIPUL M. PANCHOLI, J.) karim Page 12 of 12 HC-NIC Page 12 of 12 Created On Mon Aug 14 09:02:32 IST 2017