Central Administrative Tribunal - Chandigarh
Rekha Rani Wife Of Sh. Satpal Bansal Age ... vs Chandigarh Administration Through on 27 March, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH ORIGINAL APPLICATION N0. 060/00711/2015 Chandigarh, this the 27TH day of March, 2017 CORAM: HONBLE MR. JUSTICE M.S. SULLAR, MEMBER (J) & HONBLE MR. UDAY KUMAR VARMA, MEMBER (A) Rekha Rani wife of Sh. Satpal Bansal age 49 years working as Lecturer (Biology), Government Model Senior Secondary School, Sector 10, Chandigarh. .APPLICANT (Argued by: Shri K.B. Sharma proxy for Mr. D.R. Sharma , Advocate) VERSUS 1. Chandigarh Administration through, the Secretary Education, Education Department, U.T. Secretariat, Sector 9, Chandigarh. 2. The Director Pubic Instructions (School), Additional Town Hall Deluxe Building, Sector 9, Chandigarh. .RESPONDENTS (By Advocate: Shri Arvind Moudgil) ORDER (Oral)
JUSTICE M.S. SULLAR, MEMBER(J) The challenge, in this Original Application (O.A.), instituted by applicant Smt. Rekha Rani wife of Sh. Satpal Bansal, Lecturer (Biology), is to the impugned order dated 9.7.2015 (Annexure A-1), whereby she was repatriated to her parent State of Punjab, with immediate effect, on administrative grounds by the Competent Authority.
2. Tersely, the facts and material, which needs a necessary mention, for the limited purpose of deciding the core controversy, involved in the instant O.A., and emanating from the record, is that the applicant was appointed on the post of Lecturer in Biology (PGT) in her parent State of Punjab vide order dated 12.12.1997. She was appointed, by way of transfer on deputation, from her parent State of Punjab to U.T. Chandigarh initially for a period of one year vide order dated 10.8.2010 (Annexure A-9), and further extension of period of deputation was to be considered only if her work and conduct is found satisfactory. Consequently, she was appointed on deputation as Lecturer in Biology in Govt. Model Senior Secondary School, Sector 10, Chandigarh by way of order dated 19.8.2010 (Annexure A-8).
3. Having completed her tenure of almost 5 years on deputation, the applicant was repatriated to her State of Punjab, vide impugned order dated 9.7.2015 (Annexure A-1) by the Competent Authority.
4. Aggrieved thereby, the applicant has preferred the instant O.A., challenging the impugned order on the following grounds:
A) That the impugned order is unsustainable in the eyes of law as applicant is being repatriated to be replaced by another set of deputationists as is evident from the newspaper advertisement of Education Department, Chandigarh Administration calling the candidates from the State of Punjab and Haryana to fill up various posts including the post of Lecturer in Biology, by transfer on deputation (A-4). The repatriation of applicant is against the mandate of the Punjab Reorganization Act, 1966 and Rules, 1991 providing 60% deputation quota of the State of Punjab and 40% from Haryana.
Applicant is not in excess of quota. There are number of vacancies available in 60:40 deputation quota of the State of Punjab and Haryana and that is why applications have been invited from the State of Punjab and Haryana to fill up various posts including the post of Lecturer in Biology, by transfer on deputation.
B) That the impugned order has been issued in the middle of academic session. The daughter of applicant is studying in class XI (Non-Medical). She is also taking coaching in MIIT for IIT JEE Examination. The transfer of Applicant at this juncture of time will certainly have adverse effect on her daughters studies. Further, the mid-session transfer of Applicant will also have adverse effect on the studies of students to whom the applicant is imparting education.
C) That many other Lecturer from Punjab and Haryana are continuing in U.T., Chandigarh Department for last more than 15-20 years having much longer stay than the applicant, as is evident from list annexed as Annexure A-7, whereas the applicant is working only for the last four years. Only three lecturers namely Sanjay, Ritu and Applicant have been repatriated. In the case of Ritu she was repatriated to Himachal Pradesh but her repatriation has been withdrawn/cancelled by the Chandigarh Administration despite the fact that there is no provision in the Rules to make appointment by Transfer on deputation from the State of Himachal Pradesh. Though the impugned order mentions repatriating the applicant to State of Punjab on administrative grounds but no such ground exist in reality. The Honble Court would consider and appreciate that it is not a case where the work and conduct of an employee/deputationist is not proper or some disciplinary action has been taken or contemplated against an employee/deputationst. On the contrary the applicant has been performing her duties diligently and continuing without anything adverse against her. Her performance in school result in excellent. She has been awarded Appreciation Certificate as well.
D) That the mother of applicant is under constant treatment for the serious ailments in heart & kidney from PGIMER, Chandigarh. Her both legs got fractured and she undergone hip-replacement surgeries at PGIMER, Chandigarh. Her is also a couple case her husband being working in Punjab Irrigation, Department, Sector 18, Chandigarh. At present only two Lecturers in Biology including the Applicant are working in Education Department, U.T., Chandigarh.
5. On the strength of aforesaid grounds, the applicant seeks to quash the impugned order dated 9.7.2015 (Annexure A-1), in the manner indicated hereinabove.
6. The respondents have refuted the claim of the applicant and filed the reply interalia pleadings following preliminary submissions.
That in accordance with Column (10) of Chandigarh Education Service (School Cadre) (Group-C) Recruitment Rules, 1991 (Annexure A-5) 20% of the posts of Lecturers, Headmasters, Masters/Mistresses and JBT Teachers are to be filled-up on deputation. For taking on deputation of officials/officers on deputation with Chandigarh Administration in Group B G & D the Chandigarh Administration, Personal Department vide letter no. 28/1/93-IH(7)/15476 dated 18.8.1993 (Annexure R-1) has issued policy guidelines according to which the official/officer shall initially be taken on deputation for a period of three years. This period can be extended on year to year basis as per merit of each case. Vide order No. DPI-UT-SI-11 (122) 2002-II dated 10.8.2010 (Annexure A-9), the applicant was taken on deputation from the State of Punjab for a period of one year. She joined her service on deputation to U.T. Chandigarh on 16.8.2010 (Annexure A-8) and completed her deputation period on 15.8.2011. Thereafter no order for extension in her deputation period has been issued. As department did not replaced the existing employees working on deputation for a long period, the U.T. Cadre Educational Employees Union, Chandigarh and others started making representations to higher authorities for replacement/repatriation of such deputationists, who have completed their deputation period and continuing in U.T. Chandigarh. A copy of such representation dated 11.11.2014 received from the Prime Ministers Office vide letter No. PMO/PMP/14/00054888 dated 24.12.2014 is attached as Annexure R-2. As such to replace the existing Lecturers, the Director Public Instruction (SE), Mohali Punjab and Director Secondary Education, Panchkula, Haryana were requested vide Memo. No. 4823-DPI-UT-S1-11 (180) 2003 dated 12.9.2014 (Annexure R-3 & R-4) and subsequent reminder dated 21.10.2014 (Annexure R-5 & R-6) to send the panel of Lecturers against deputation quota in respect of 19 subjects including the subject of Biology in which applicant is working on deputation. In response to the above letter NO. 4823-DPI-UT-S1-11 (180)2003 dated 21.10.2014 (Annexure R-5 & R-6), the Govt. of Punjab vide Memo NO. 2054/2012-2 Edu-6/406501/1 dated 4.2.2015 (Annexure R-7) has recommended the cases of Lecturers in various subjects including that of 13 cases in the subject of Lecturers Biology. After considering the deputation cases of Lecturers recommended by the State Govt., to replace the applicant, order no. DPI UT-S1-11 (180) 2003 dated 9.7.2015 (Annexure A-1) for her repatriation were issued and order No. DPI-UT-S1-11 (180) 2003 dated 9.7.2015 (Annexure R-8) for taking of another person on deputation i.e. Mrs. Seema Khera, Lecturer Biology, State Institute of Science Education, Punjab, Chandigarh was issued. The above orders are covered within the provisions of rules and Policy notified by the Administration/Respondents. Moreover, it is not in the case of applicant only, besides her, other similar persons have also been repatriated to their parent States. Copies of such repartition order No. DPI-UT-SI-11 (180) 2003 dated 15.6.2015 (Annexure R-9 in respect of Mrs. Ritu Chitkara, Lect. Chemistry, GMSSS-35, Chandigarh, order NO. DPI-UT-S1-11 (180)2003 DATED 15.6.2015 (Annexure R-10) in respect of Mrs. Ritu Awasthi, Lect. Chemistry, GMSSS-18, Chandigarh and order No. DPI-UT-S1-11 (180) 2003 dated 9.7.20015 (Annexure R-11) in respect of Sh. Sanjay Kumar, Lect. Chemistry, GMSSS-16, Chandigarh are attached.
7. However, on merits, it was admitted that applicant was posted on deputation only for one year. She joined on 16.8.2010 and completed her deputation period on 15.8.2011. After completion of sanctioned period, she has no right to continue on deputation. Moreover, by now she has already completed the tenure of deputation for more than 5 years on 15.8.2015. She was repatriated in view of the existing policy of the Education Department of U.T. Chandigarh on administrative grounds. She has no legal right to remain/continue on deputation. Even senior officers like IAS, IPS, PCS and HCS working on deputation n U.T., Chandigarh were also repatriated by Administration on completion of their deputation tenure. Similar principle is applicable in the case of the applicant. It was pleaded that there is no such condition in the deputation policy and rules that an employee cannot be repatriated/replaced. In fact, the Competent Authority has every right to repatriate an employee, after completion of her period of deputation, as per policy dated 18.8.1993 (Annexure R-1). It was alleged that as per policy (Annexure R-1), U.T. Chandigarh officers/officials shall initially be taken on deputation for a period of 3 years. This period can be extended on year to year basis, as per merit of each case.
8. According to the respondents, that as per the policy (Annexure R-1) of Education Department of U.T. Chandigarh the period of deputation is one year and further extension can be considered only if work and conduct of an employee is found satisfactory. Even Smt. Ritu Chitkara, Smt. Ritu Awasthi and Sanjay Kumar, Lectures in Chemistry were repatriated under the same set of circumstances vide orders dated 15.6.2015 (Annexure R-9 & R-10) and dated 9.7.2015 (Annexure R-11) respectively. Instead of reproducing the entire contents of the reply and in order to avoid the possibility of repetition of the facts, suffice to say that virtually acknowledging the factual matrix and reiterating the validity of the impugned order (Annexure A-1), the respondents have stoutly denied all other allegations and grounds, contained in the O.A. and prayed for its dismissal.
9. Controverting the pleadings of the reply filed by the respondents and reiterating the grounds contained in the O.A. the applicant filed the replication. That is how we are seized of the matter.
10. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after considering the entire matter, we are of the firm view that there is no merit, and the instant O.A. deserves to be dismissed, for the reasons mentioned herein below.
11. Ex. facie the argument of the learned counsel for the applicant that since the Competent Authority has retained other lecturers having more stay on deputation and discriminated the applicant, so the impugned order is arbitrary and illegal, is not only devoid of merit, but misplaced as well.
12. As is evident from the record, the facts of the case are neither intricate nor much disputed and fall within a narrow compass, for the purpose of deciding the real controversy between the parties. It is not a matter of dispute that the applicant was working as a Lecturer in her parent State of Punjab. She was transferred on deputation, only for a period of one year, with a clear stipulation that further extension of the deputation on will be considered, if her work and conduct is found satisfactory, vide order dated 19.8.2010 (Annexure A-9). She was posted as such in Govt. Model Sec. Sr. School, Sec. 10, Chandigarh against a vacant post, by virtue of order dated 19.8.2010 ( Annexure A-8). Having completed the extended period of deputation she was ordered to be repatriated to her parent State of Punjab vide impugned order dated 9.7.2015 (Annexure A-1). However, the implementation of the same was stayed by a Coordinate Bench of this Tribunal, as back as, on 19.8.2015. By now she has completed about six and half years on deputation.
13. Such being the position on record, now the short and significant question that arise for our consideration in this case, at this stage is as to whether the applicant has any legal and vested right to remain on deputation after the expiry of deputation period of 5 years as per policy (Annexure R-1), in the given facts and circumstances of the case or not ?
14. Having regard to the rival contentions of learned counsel for the parties, to our mind the answer must obviously be in the negative, in this regard.
15. Although the applicant has vaguely alleged some allegations of malafide and discrimination against the authorities, which have been emphatically denied by the respondents. Moreover, the applicant has miserably failed to substantiate the specific instance of malice, as to how and in what manner she was perversed in this regard by the respondents. It is now well settled principle of law that malafide is very easy to allege, but difficult to prove. The onus to prove malafide/discrimination lies on the person who alleges it.
16. The Honble Apex Court in the case State of Punjab & Anr. Vs. Gurdial Singh & Ors. (1980) 2 SCC 471 has ruled as under:-
9. The question then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfaction - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfillment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated. "I repeat..... that all power is a trust- that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist." Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to affect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power of extraneous to the statute, enter the verdict or impels the action mala fides on fraud on power vitiates the acquisition or other official act. The same view was reiterated by the Principal Bench of the Tribunal in T.M. Sampath Vs. Union of India, [OA No. 188/2012 decided on 30.08.2013] and Naresh Wadhwa Vs. Union of India [OA No. 810/2013 decided on 29.10.2013], wherein, it was held that the malice has to be proved beyond any reasonable doubt, which is totally lacking in the present case.
17. What cannot possibly be disputed here is that the applicant was initially appointed on deputation for a period of one year vide order dated 10.8.2010 (Annexure A-9). As such, she was appointed in Govt. Model Sr. Sec. School, Sec. 10, Chandigarh vide order dated 19.8.2010 (Annexure A-9). However, in pursuance of the policy decision (Annexure R-1), period of her deputation was extended on year to year basis.
18. Be that as it may, by now she has completed more than six and half years of her deputation. In this manner she has no legal right to remain on deputation, which can legally be enforced by this Tribunal.
19. Moreover, it is now well settled principle of law that a deputationist has no legal right for extension after expiry of his period of extended tenure of 5 years. A deputationist cannot assert and succeed in this regard on his wishful thinking and on speculative grounds. The basic principles 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 parent or borrowing department. There is no vested right for such a person to continue for long deputation. This matter is no more res integra and is now well settled.
20. An identical question came to be decided by Honble Apex Court in case of State of Punjab and Others Vs. Inder Singh and Ors. JT 1997 (8) SC 466. Having considered the rights of the deputationist and another judgments in case of Ratilal B. Soni and Ors. Vs. State of Gujarat and Ors. & Puranjit Singh Vs. Union Territory of Chandigarh and Ors. [1994] Supp. 3 SCC 471, it was ruled that a deputationist could be reverted to his parent cadre at any time and he has got no right for extension. It was further held as under:-
19. 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 Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head Constables as the case may be.
21. Again Honble Punjab and Haryana High Court in case of Gurinder Pal Singh V. State of Punjab ( P&H) (D.B.) 2005 (1) S.C.T. 17: 2005 (1) SLR 629 has held as under:
In service jurisprudence, deputation is described as an assignment of an employee of one department or cadre to another department or cadre. The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is based upon consent and voluntary decision of the employer to lend the services of his employee, corresponding acceptance of service by the borrowing employer and the consent of the employee to go on deputation. A deputation subsists so long as the parties to this tripartite arrangement do not abrogate it. However, if any one of the parties repudiate the agreement, the other two have no legally enforceable right to insist upon continuance of the deputation. Even in the cases where deputationists continue for a pretty long period and options for their absorption in the borrowing department were taken, yet their repatriation to the parent Gujarat, AIR 1990 SC 1132 after holding that the appellants being on deputation they could be repatriated to their parent cadre at any time and they do not get any right to be absorbed on the deputation post. Deputation per se being a contractually made ad hoc arrangement, seldom confers any right upon a deputationist, either for completion of the term of deputation or regularisation of such stop-gap arrangement. The judgments relied upon by the learned counsel for the College in this regard squarely answer the controversy.
22. Not only that Honble Punjab and Haryana High Court in case of Inspector Om Parkash Vs. State of Haryana 2002 (1) SCT 1008 has ruled that a deputationist has no vested right to continue on deputation in the borrowing department, civil rights of employees are not affected in case of his repartition from deputation to parent state and an opportunity of hearing is not required to an employee before passing order of repatriation. Same view was reiterated by Honble High Court of Delhi in case of Shyam Singh, Net Ram Chourasiya Vs. Union of India and Ors. 128 (2206) DLT 346 and this Tribunal in O.A. NO. 060/00031/2017 Gurnam Singh Vs. Union of India & Ors. decided on 20.01.2017 as upheld by the Honble Punjab and Haryana High Court.
23. Meaning thereby, once it is proved on record that applicant has already completed her extended period of deputation, in that eventuality, she has neither any legal nor vested right for extension of her tenure on deputation in the obtaining circumstances of the case. The mere fact that the respondents have retained other employees on deputation, ipso facto, is not a ground, much less cogent, to extend the period of the applicant by the Competent Authority. Hence the contrary argument of the learned counsel of the applicant , stricto sensu, deserves to be and hereby repelled and the ratio of law laid down in the indicated judgments is mutatis mutandis applicable in the instant controversy and is complete answer to the problem in hand.
24. No other point, worth consideration, has either been urged or pressed by learned counsel for the applicant.
25. In the light of the aforesaid reasons, as there is no merit, so instant O.A. is hereby dismissed as such. However, the parties are left to bear their own costs.
(UDAY KUMAR VARMA) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J)
Dated: 27.03.2017
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(OA No. 060/00711/2015 )