Allahabad High Court
Arun Kumar Singh & Others vs State Of U.P. & Others on 30 April, 2012
Author: Arun Tandon
Bench: Arun Tandon
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 33 Case :- WRIT - A No. - 20740 of 2012 Petitioner :- Arun Kumar Singh & Others Respondent :- State Of U.P. & Others Petitioner Counsel :- Siddharth Khare,Ashok Khare Respondent Counsel :- C.S.C.,S.K. Verma Hon'ble Arun Tandon,J.
Learned Standing Counsel has accepted notice on behalf of Respondent Nos. 1 and 2. Sri S.K. Verma, Advocate has accepted notice on behalf of Respondent No.3.
Three weeks' time is allowed for filing counter affidavit. Rejoinder affidavit may be filed within one week thereafter.
List on 13th May, 2012.
On behalf of the petitioners, it is contended that under the Government Order dated 02.02.2011 and by Circular dated 10.02.2011, a policy decision has been taken by the Government in the matter of appointment of Coordinator and Assistant Coordinators, Block Resource Centers to be appointed at various Blocks throughout the State of Uttar Pradesh. It is stated that because of the said change of policy, Headmaster and Assistant Teachers of the Parishadiya Vidyalaya, who were earlier selected for appointment as Block Coordinator and Assistant Block Coordinators, were to repatriated to their parent posts in Parishidiya Vidhyalaya. Such Government Order was challenged before the Hon'ble High Court at Allahabad by means of Writ Petition No. 9393 of 2011. The writ petition was dismissed vide order dated 17.02.2011 after recording of finding that has been challenged in the policy and therefore, the persons, who were working on deputation as Block Coordinator, Assistant Block Coordinators had no right to continue specifically when they were being repatriated to their substantive post. Against the judgment and order of the Hon'ble Single Judge, Special Appeal No. 371 of 2011 was filed. The Division Bench dismissed the said Special Appeal along with connected appeals vide judgment dated 27.05.2011. It has been held that there was no infirmity in the judgment of the Single Judge. The Division Bench specifically noted that even if the deputation of the Headmaster and Assistant Teachers was for a fixed time, such deputation could be terminated for good and valid reasons even before expiry ofthe term of the deputation.
Petitioners before High Court have been selected for the post of Assistant Block Coordinators in terms of the new policy. Some of the earlier Block Coordinator and Assistant BlockCoordinators filed writ petition before Lucknow Bench of this Court being Writ Petition No. 1178 of 2011, challenging their repatriation after change inthe policy. The writ petition has been decided under the judgment dated 09.02.2012. The Single Judge at Lucknow has held that judgments of the Single Judge and that of the Division Bench of the High Court at Allahabad referred to above are per incuriam for non-consideration of the issue that there was increase in the honorarium, which was to be paid while working as Block Co-ordinator and Assistant Block Coordinators vis-a-vis, the salary which the incumbent was getting on the substantial post of Headmaster / Assistant Teachers of Parishadiya Vidyalaya. The Single Judge has thereafter proceeded to record that tenure appointments by deputation could not have been put to an end before expiry of its term. As a consequence to the said judgment impugned order has been issued cancelling the slection/ appointment of the petitioners.
Sri Ashok Khare, Senior Advocate, submits that if the Single Judge while deciding Writ Petition No. 1178 of 2011 and connected writ petitions had some doubts about the correctness of the Division Bench Judgment of this Court in Special Appeal No. 317 of 2011. Larger Bench, prima facie, holding on the same Government Order could have referred the matter to a larger bench. He is not justified in declaring the judgments per incuriam only because some more monetory benefits were made available to Block coordinator/ Assl. Block Coordinators while working on deputation.
This Court finds that merely because there was some difference in the total amount paid while working on the post of Headmaster / Assistant Teachers vis-a-vis that paid while working on the post of co-ordinator/ Assistant Coordinator, it will not mean that the power of the State to cancel such deputation even before expiry of the term of deputation for good and valid reason is lost. In my opinion what is required to be seen is as to whether cancellation of the deputation even before expiry of the term was for good and valid reasons. The Division Bench had recorded that because of the change in the policy of the State, such termination of deputation even before expiry of the term was for valid and good reasons.
Even otherwise, the petitioners were not being a party to the said writ proceedings before the Division Bench and therefore the order passed therein will not adversely affect their selection/ appointment.
In view of the aforesaid, petitioners have made out a case for grant of interim order. Till the next the date of listing, operation of the order passed by the Director dated 13.04.2012 shall remain stayed and no further action shall be taken in pursuance thereof.
In the facts and circumstances of the case, this Court feels it just and proper to refer following questions which arise in this petition to a larger Bench:
(a) Whether the power of the parent department to revoke the deputation even before the expiry of the term for good and valid reason is lost, only due to the fact that the deputationist was getting some additional monetary benefits while working on deputation.
(b) Whether the decision of the employer in revoking the deputation even before expiry of the term on good and valid reasons would be bad merely because the employee during deputation was getting better salary / allowances.
(c) Whether the Single Judge was justified in declaring the judgment of the Single Judge and of the Division Bench dated 17.02.2011 and dated 27.05.2011 respectively as per incuriam or he was obliged to refer the matter to a larger bench if he had doubts about the said judgments.
Let the papers be placed before the Hon'ble the Chief Justice for the matter being referred to a larger Bench.
Order Date :- 30.4.2012 N.S.Rathour