Gauhati High Court
M.V. Kartikeyan Nair vs State Of Arunachal Pradesh And Ors. on 1 February, 2005
Author: H.N. Sarma
Bench: I.A. Ansari, H.N. Sarma
JUDGMENT H.N. SARMA, J.
1. This batch of writ petitions involve common question of law and facts. The grievance of the petitioners, in all these petitions, is against the order of repatriation from different Departments of the Government of Arunachal Pradesh, i.e. their parent Departments, by the Accountant General, who posted the petitioners on deputation as Divisional Accountants in various offices of Arunachal Pradesh. It is the further prayer of the petitioners, in all the writ petitions, that they should be permanently absorbed in their existing deputation posts of Divisional Accountant under the State of Arunachal Pradesh. With similar prayer, some of the petitioners, namely, petitioners in W.P(c) No. 221(AP)/02, W.P(c) No. 256/03, W.P(c) No. 409(AP)/02 and W.P(c) No. 410(AP)/02 initially approached the Central Administrative Tribunal, Guwahati and the learned Tribunal having dismissed their prayers, they have challenged the respective orders before this High Court and accordingly, those cases came to be taken up by the Division Bench of this Court. The petitioners in other writ petitions namely WP(c) No. 229(AP)/01, WP(c) No. 820(AP)/01, WP(c) No. 459(AP)/03, WP(C) No. 517(AP)/01, WP(C) No. 112(AP)/02, WP(c) No. 301(AP)/02, WP(c) No. 473/02 directly approached this High Court and those cases were taken up by the learned Single Judge. In WP(c) No. 409(AP)/02 and W.P(c) No. 410(AP)/ 02 a Division Bench of this Court by order, dated 11.08.2003, directed that all these writ petitions referred to above, which are pending before the Single Bench, be listed for the hearing before a Division Bench along with the said writ petitions. Accordingly, all the aforesaid have come up for hearing before the Division Bench.
2. The common case of the petitioners are that while they were serving as Upper Division Clerks in various offices of the Government of Arunachal Pradesh, the office of the Accountant General, Arunachal Pradesh and Meghalaya, vide Circular No. DA. Cell/2-49/97-98/ Vol. 117 245, dated 20.01.1998, invited applications from candidates, who are willing to serve temporarily as Divisional Accountant in Public Works Department in Manipur, Arunachal Pradesh and Tripura for a period of one year on deputation basis. In pursuance of the aforesaid circular, the petitioners gave their consent for such deputation, and duly applied for the same. On consideration of their applications, the Accountant General (A&E), Meghalaya and Arunachal Pradesh, posted the petitioners on deputation as Divisional Accountant for a period of one year in the following manner :
1. Dilip Kr. Dey, UDC, Office of the Executive Engineer, PWD Yingkiong Division (petitioner in W.P(c) No. 409(AP)/02) posted as Divisional Accountant, Boneng PWD Division on deputation for a period of one year by order, dated 5.4.1999.
2. Toshi Namgey, UDC, Office of the Executive Engineer, PWD Bomdila Division (petitioner in WP(c) No. 410(AP)/02) posted on deputation as Divisional Accountant, Seppa PWD Division for one year.
3. Jumi Kamum, UDC, Office of the Executive Engineer, PWD Basar Sub-Division (petitioner in WP(c) No. 221(AP)/02) posted on deputation as Divisional Accountant, Daporijo I & F.C. Division for one year.
4. Lani Bhushan Karmakar, UDC, Office of the Executive Engineer, PWD Anini Division (petitioner in WP(c) No. 256(AP)/02) posted on deputation as Divisional Accountant, Dumporijo PWD Division for one year.
5. Thankeswar Borah, UDC, Office of the Executive Engineer, PWD Damporijo Civil Division PWD (petitioner in WP(c) No. 729(AP)/ 02) posted on deputation as Divisional Accountant, Dumporijo Civil Division PWD by order dated 22.1.1997 for one year.
6. Sanchyan Kumar Dam, LDC, Office of the Executive Engineer, PWD Kalaktang Division (petitioner in WP(c) No. 459(AP)/02) posted on deputation as Divisional Accountant, Division Nalkatha, Tripura vide order dated 27.1.1997 for one year.
7. V.K. Nair, UDC, Office of the Executive Engineer, PWD Bomdila Division (petitioner in WP(c) No. 459(AP)/01) posted on deputation as Divisional Accountant, Chandel PWD Chandel, Manipur vide order dated 23.2.1996 for one year.
8. Bidhu Bhusan De, UDC, Office of the Executive Engineer, Deomali Electrical Division (petitioner in WP(c) No. 517(AP)/02) posted on deputation as Divisional Accountant in Thoubal Project Division No. II (I&FC), Thoubal, Manipur vide order, dated 26.4.1996 for one year.
9. Lendi Chatung, UDC, Office of the Executive Engineer, Ziro Electrical Divison (petitioner in WP(c) No. 112(AP)/02) posted on deputation as Divisional Accountant, Along Electrical Division vide order, dated 11.3.1999 for one year; and Shri Love Rao, LDC, Office of the Executive Engineer, PWD Along Division (petitioner in WP(c) No. 112(AP)/02) posted on deputation as Divisional Accountant, Along PWD Division vide order dated 10.3.1999 for one year.
10. Santanu Ghosh, Assistant, Office of the Executive Engineer, PWD Bomdila Division (petitioner in WP(c) No. 473(AP) /02) posted on deputation as Divisional Accountant, Yingking Division, PWD vide order dated 5.3.1999 for one year.
11. Pradip Kumar Paul, UDC, Office of the Chief Engineer, I & FC Itanagar (petitioner in WP(c) No. 172(AP)/03) posted on deputation as Divisional Accountant, Resoruce Division Agartala, Tripura vide order dated 16.7.1999 for one year.
3. In the aforesaid deputation orders, it has been specifically provided that the said deputation is only for a period of one year from the date of joining by the petitioners as Divisional Accountant and no right shall accrue to the petitioners nor they will be entitled to permanent absorption as Divisional Accountant. It is also provided that the said period of deputation may be extended up to 3 years, if his service is considered to be needed and in no case, the period will be extended beyond a period of 3 years. Paragraph 6 of the order of deputation reads as under -
"6. The period of deputation of......... will be for a duration of 1 (one) year only from the date of joining as Divisional Accountant on deputation and no way he shall accrue any right to claim for permanent absorption as Divisional Accountant. The period of deputation may be extended upto three years, if his service is considered to be needed. But in no case, the period of deputation will be extended beyond the period of 3 years."
4. Pursuant to such deputation orders, the petitioners, on being released from their respective parent Departments, duly joined in their deputed costs and served accordingly. The said period of deputation was extended for a further period of 2 years from the date of expiry. In the meanwhile, the Joint Director of Accounts and Treasuries, Government of Arunachal Pradesh, vide letter No. DA/TRY/15/99, dated 15.11.1999, wrote to the Accountant General, inter alia, informing that the issue of recruitment and posting of Divisional Accountants to 38 Public Works Divisions of the State of Arunachal Pradesh, which are presently manned by deputationists were under active consideration of the State Government and that before placing the petitioners on deputation, the Government of Arunachal Pradesh was never consulted and although the salaries etc. for the petitioners were borne from the State exchequer, the pay scale presently enjoyed by the cadre of Divisional Accountants has been posing problem for granting huge sum in the form of pay and allowances. It was also intimated that the State Government of Arunachal Pradesh is of the view that recruitment and posting of Divisional Accountants for the 38 Divisions of the Public Works Department may not be done since final decision of the Government is still awaited and the persons, who have been serving on deputation, may be allowed to continue for a further period of 2 years in the interest of public service.
5. On receipt of the aforesaid letter as well as on consideration of the terms of deputation orders, the Accountant General, vide letter No. DA. Cell/194/200, dated 11.6.2001, intimated the petitioners that on expiry of the period of deputation to the posts of Divisional Accountant under the administrative control of the Accountant General (A&E), Meghalaya, etc., the petitioners are to be repatriated to their parent Departments. When the Accountant General took such decision, the same was challenged before the Central Administrative Tribunal, Guwahati Bench, by the petitioners in WP(c) Nos. 221/02, 256/03, 409/ 02 and 410/02 by different similarly situated deputationists in O.A. Nos. 230/01, 234/01 and 276/01 and the learned Central Administrative Tribunal by judgment and order, dated 11.1.2002, was pleased to hold, inter alia, that the applicants, who came under the Accountant General (A&E), Meghalaya on deputation are holding the permanent posts in the respective parent Department and at the end of deputation period, they are repatriated and, therefore, nothing illegality is discernible from the orders of repatriation. Accordingly, the applications were dismissed. Similar other applications filed before the learned Tribunal by other employees were also dismissed on the same footing. Thereafter, the Accountant General (A&E), Meghalaya, wrote to various Departments of the State of Arunachal Pradesh informing them that the Divisional Accountants posted in their offices on deputation has been released and are reverted back to their parent Departments. When the judgment and order of the Central Administrative Tribunal was challenged by the deputationists before the Division Bench of this Court along with the orders of repatriation of the deputationists to their parent Department on expiry of the period of deputation, this Court while admitting the petition was pleased to stay the said order of repatriation. The petitioners also prayed for permanent absorption in their deputed posts. The respondent Nos. 1 and 2 filed affidavit-in-opposition refuting the prayer made by the petitioner in the writ petitions.
6. We have heard learned counsel appearing for the petitioners. Also . heard Mr. M. Partin, learned senior CGSC, and Mr. B.L. Singh, learned senior Government advocate, Arunachal Pradesh.
7. Learned counsel for the petitioners have submitted that since the petitioners are working on deputation for a considerable period, they are entitled for permanent absorption in their deputed posts. It has further been submitted that since there is a move for bifurcation towards creation of a new cadre of Accountant General (A&E) for the State of Arunachal Pradesh and necessary process is going on, it would be highly prejudicial to the petitioner, if they are repatriated to their parent Departments without considering their cases for permanent absorption. It has also been submitted that the State Government having taken a decision to take over the administrative control of the accounts cadre from the Accountant General to absorb the services of the existing incumbents, the decision to repatriate the petitioners to their parent Department is illegal and in the aforesaid situation, petitioners are entitled to be permanently absorbed in their deputed posts.
8. Mr. M. Partin, learned senior CGSC, on the other hand, refuting the submissions made on behalf of the petitioners contends that as per the recruitment rules governing the service conditions of the petitioners, which came into force with effect from 24.9.1998, the period of deputation cannot be extended beyond 3 years. Further, in the deputation order itself, it has been specifically provided that the terms of deputation would be only for a period of one year and at any rate, it cannot be extended beyond the period of 3 years and the petitioners, having joined as per the aforesaid terms and conditions without any reservation, are not now entitled to raise claim for permanent absorption in their deputed posts. It is further submitted that the petitioners have no enforceable right, fundamental or otherwise, and there is no illegality or irregularity in deciding and/or passing the order to repatriate the petitioners to their respective parent Departments after expiry of the period of deputation and, as such, the petitions are not maintainable.
9. Mr. B.L. Singh, learned senior Government advocate on behalf of the State respondents, has submitted that the State of Arunachal Pradesh has not yet taken any decision to take over the Divisional Accountants from the administrative control of the Accountant General. He submits that it is absolutely within the domain of the Accountant General to keep the petitioners on deputation or not. Mr. Singh has also submitted that the terms of the order of deputation having specifically provided that the period cannot be extended beyond three years, the petitioners have ho enforceable right or locus to pray for permanent absorption in their deputed posts. It is further submitted that the financial burden of the deputed employees are being borne by the State Government as the deputationists are being paid much higher pay and allowances for the service rendered by them in the deputed posts and due to extreme financial stringency, the State is not in a position to bear the said burden any more. However, due to interim orders passed by this Court, the petitioners are continuing, therefore, he prays for dismissal of the writ petitions. He further contends that there is no illegality in the orders passed by the learned Central Administrative Tribunal and the learned Tribunal has rightly rejected their applications.
10. We have heard learned counsel for the parties at length and considered the rival submissions. The appointment to the posts of Divisional Assistant is regulated by a set of rules framed under Article 148(5) of the Constitution of India, which is applicable to the petitioners. As per the said rules, the method of recruitment to the posts of Divisional Accountant is by way of direct recruitment. It is also provided in the said rules that vacancies caused due to certain exigencies for a duration of one year or more may be filled up on transfer on deputation from the State Public Works Department Clerks holding the posts equivalent or comparable with that of Accountant/Senior Accountant on regular basis for a period of 5 years including two years experience in public works accounts and the period of deputation shall ordinarily not exceed three years. The petitioners, in the instant case, have not shown that they are eligible for deputation to the posts of Divisional Accountant, as per the aforesaid qualification and experience prescribed in the statutory service rules. Be that as it may" it is an admitted fact that the petitioners were posted on deputation as Divisional Accountant as per the order of the Accountant General (A&E) and the said period of deputation as per the statutory rules cannot exceed beyond three years. In fact, the order/orders, by which the petitioners were placed on deputation, has/ have specifically provided that the period of deputation is for a period of one year and under no circumstances, the same would be extended beyond a period of three years.
11. Learned senior C.G.S.C has submitted that the Accountant General has decided to release and repatriate the petitioners to their parent Departments and in fact, necessary orders of release have been passed in most of the cases. The learned senior Government advocate, Arunachal Pradesh, has submitted that the State Government has not decided to absorb the petitioners permanently and continuation of the petitioners in the deputed posts has caused serious financial hardships to the State Government. We also find that there is no decision of the State Government to create a separate wing of Accountant General (A&E) for Arunachal Pradesh and as has been submitted by Mr. Singh, the State Government has taken no such decision. Viewed from the aforesaid factual situation, now the question arises as to whether the petitioners are entitled for an order to be absorbed permanently in their deputed posts or not.
12. The decision reported in State of Punjab v. Inder Singh and Ors., reported in (1997) 8 SCC 372, is sought to be pressed into service on behalf of the petitioners and it has been submitted that since the petitioners are on deputation for a considerable period, their cases for permanent absorption may be directed to be considered by the Government. In Inder Singh (supra) the petitioner who was enrolled in the Punjab Police, on 31.8.1966, as Constable was sent on deputation to C.I.D. in the same rank on 13.4.1969. He was sought to be repatriated on 15.9.1990, while he was holding the rank of ad hoc Sub-Inspector. During the period of deputation, he was promoted as officiating Head Constable and in the parent Department, he was holding substantive rank of Head Constable. In the background of the aforesaid facts, the Apex Court observed that after allowing to remain on deputation for a period of 20 years, a hope, though not true, still in his mind, that he would be allowed to continue in the C.I.D. holding higher rank till he attained the age of superannuation and accordingly affirmed the order of the High Court to the extent for option given to all those respondents, who put in 20 years qualifying service to seek voluntary retirement from the C.I.D. in the ranks they are holding and they would be deemed to have worked in the C.I.D. up to the date of the judgment. The facts of the present case are entirely different. The petitioners, in the instant cases, were deputed some time in the year 1999 and on expiry of three years they were sought to be repatriated to their parent Departments. No promotion was also affected to the petitioners', while they were serving in the deputed Department and at present, they are continuing as per interim orders of the Court. Accordingly the said case is of no assistance to the petitioners. On the otherhand, the learned C.G.S.C. has placed reliance on a decision of the Apex Court reported in Rati Lal B. Soni and Ors. v. State of Gujarat and Ors., AIR 1990 SC 113, and reiterated his submission that the petitioners have no right to continue in their deputed posts. In the aforesaid case, the Apex Court, inter alia, held that the appellant being on deputation, they can be reverted to their parent cadre at any time are they do not get any right to be absorbed on the deputation post and accordingly affirmed the order passed by the High Court and dismissed the appeal of the deputationist.
13. Exigencies of public service may occasion an employee to be sent on deputation with the consent of the employee. Now, we are to see as to what the terminology "Deputation" connotes. The concept of "Deputation" in essence derived from the significance of the word 'deputy' and the appropriate meaning of 'deputy', in this context, would be "substantive". In Black's Law Dictionary, the word 'deputy' has been defined as "a person appointed or delegated to act as a substitute for another especially for an "official". The Apex Court has explained the concept of deputation in the case of State of Punjab v. Inder Singh (supra), at para 18 in the following term :
"18. The 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 the 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 the 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 law 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 the parent Departments and working there as Constables or Head Constables as the case may be.
14. In Kunal Nanda v. Union of India, reported in (2000) 5 SCC 362, the Apex Court dealing with the question relating to the validity of an order of repatriation of a deputationist, inter alia, held at para 6 as follows :
"6..... On the legal submissions also made there are no merits whatsoever. It will settle that unless the claim of the deputationist for permanent absorption in the Department where he works on deputation is based upon any statutory rule, regulation or order bearing the force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent Department to serve his substantive position therein at the instance of either of the Departments and there is no vested right in such a person to continue for long on deputation ......"
15. Recruitment to service may be made by way of deputation also apart from other modes; but when it is made on deputation, it does not result in absorption in the service to which an employee is deputed unless the concerned Department decides to do so. In that sense, it is not recruitment in its true import and significance and the employee continues to be a member of parent service from where he is posted on deputation. By passing an order of deputation or putting an employee on deputation in another service, it does not confer any right to be absorbed in the deputed post and the deputationist can, therefore, be reverted to the parent cadre at any time. A deputationist may be absorbed in substantive capacity in the borrowed Department provided the borrowed Department so desires and the parent Department so agrees. In the instant case, neither the parent Department nor requisitioning Department is willing to have the petitioners absorbed permanently. The statutory rule, which is the source of right of the petitioners to be on deputation, prescribe the maximum limit of the period of deputation for three years only. The orders by which the petitioners were deputed from the parent Department is very specific that the period of deputation would not exceed beyond three years. The petitioners have lien to their respective posts in the parent Department and they can very well be repatriated back to their respective posts. The materials available on record do not disclose any infirmity or illegality in passing the orders of repatriation after expiry of the period of deputation, nor do the said orders, in any way, violate any of the provisions of the statutory rules or regulations holding the field.
16. In view of the aforesaid discussion and decisions, we find that no right of the petitioners have been violated nor the petitioners have been able to show any violation of the any of fundamental rights guaranteed under the Constitution of India in deciding and/or passing the order of repatriation of the petitioner to their parent Departments justifying interference by this Court in exercise of its power of judicial review under Article 226 of the Constitution of India. In view of the above, we do not find any merit in this batch of writ petitions. Accordingly the petitions are dismissed with no order as to costs.