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2005 DIGILAW 426 (GAU)

Rockpo Dabu Lewi v. State of Arunachal Pradesh

2005-06-01

H.N.SARMA

body2005
H.N. SARMA, J.— Heard Mr. T. Michi, learned counsel appearing for the petitioner, and also heard Mr. A. Apang, learned Addl. Sr. Govt. Advocate, Arunachal Pradesh on behalf of the State respondents. 2. The petitioner is a regular employee in the capacity of Junior Engineer in the Public Works Department ( in short, PWD), Arunachal Pradesh. While the petitioner was so serving, he was appointed on deputation for a period of one year to the Urban Development Department, to serve as a Programming Officer vide order No. SUD/E-71/2K7 2001 dated 27.01.2001, issued by the Secretary, Urban Development Department, Govt. of Arunachal Pradesh. The said period of deputation having been expired, the Commissioner, Urban Development Department further extended the period of deputation vide order No. UD-3/96-97/pt/612 dated 09.05.2002 for another period of six months and after expiry of the said period, it was further extended up to 31.10.2003 vide order No. UD-3/96-97/pt dated 01.11.2002. Thereafter, even before expiry of the aforesaid period, the petitioner was repatriated to his parent department vide order DOH/Estt-119/01-02 dated 09.01.2003. Challenging the aforesaid repatriation order, the present writ petition has been filed by the petitioner praying for an order to permanently absorbing the petitioner in the Urban Development Department. 3. An affidavit-in-opposition has been filed on behalf of the respondents. The case of the respondent is that the petitioner being a borrowed officer, he has been repatriated to his parent department, and the allegation that such repatriation was made at the political instance has no legs to stand. Further, it is stated that the said repatriation was done even prior to the receipt of the note vide' Annexure D' to the writ petition and in fact, the said note dated 08.01.2003 was received by the Department in 30.01.2003, whereas the repatriation order was passed on 09.01.2003. It is submitted by Mr. Michi, learned counsel for the petitioner that the petitioner having been rendering meritorious service in the borrowed department, he should have been permanently absorbed like the other borrowed officials as mentioned in the Annexure E to the writ petition. It is submitted by Mr. Michi, learned counsel for the petitioner that the petitioner having been rendering meritorious service in the borrowed department, he should have been permanently absorbed like the other borrowed officials as mentioned in the Annexure E to the writ petition. Further submission on behalf of the petitioner is that, on the face of it, the impugned order of repatriation has been made at the instance of the confidential note issued by the Minister (SW & WCD), dated 08,01.2003, and accordingly, the impugned order is not sustainable, as the same has been passed in mala fide exercise bf power. 4. Mr. A. Apang, learned Additional Sr. Govt. Advocate o^i the bther hand submitted that the petitioner 1 tas no existing right to continue in the post w hen the borrowing department confirms an opinion that, a lenient officer like the petitioner should not be repatriated in the borrowing Department, which is absence of such a right, the decisions taken by the Department to repatriate the petitioner to his parent Department, does not cause any injustice to him, nor any condition of service is violated thereby. 5. I have considered the rival submissions made by the parties. Referring to the allegation of mala fide, raised by Mr. Michi, I find that the said note at "Annexure D of the writ petition'' is allegedly wrote by Mr. Yari Dulom, Minister (S W & WCD). Although mala fide has been levelled against the said person, but he has not been impleaded as a party. That apart, there is not adequate pleading in the writ petition as required under the law to come to a decision and/or finding regarding the mala fide, as submitted by Mr. Michi. The reference of word 'mala fide' in ParaNos. 5,10 & 12 of the petition is not sufficient enough to hold that the said order was passed in mala fide exercise of power, more particularly, in absence of the said person in this proceeding; I refrain from giving any comnient or finding on the plea of mala fide. The case cited by Mr. Michi, which is reported in "7995 (2) GLT 82” (Ramen Talukdar Vs. The case cited by Mr. Michi, which is reported in "7995 (2) GLT 82” (Ramen Talukdar Vs. State of Assam & Ors.) is not applicable to the facts of the instant case, and as much as the said case was a case, where in there was a issue regarding the illegality or otherwise of a transfer order of a School Teacher issued at the behest of the Minister. The said judgment also does not disclose whether the concerned Minister was made party to the proceeding or not. 6. The allegation of mala fide must be specifically pleaded on the basis of which Court can arrive at its conclusion. Mere use of word "mala fide" is not enough in order to arrive at a decision regarding mala fide. Factual assessment and evaluation is necessary and without having full particularsby setting out material facts, no such decision can be arrived at by the Court. [Ref: " (1986) 4 SCC 566 ", Para 39 (State of Madhya Pradesh Vs. Nandlal Jaisowal) and " AIR 1991 SC 1832 ", (Jindal Industries Ltd. Vs. State of Hariyana)]. That apart, it is no longer res integra that, a person against whom a mala fide is alleged is necessary to be impleaded. In the absence of such impleadment and in the absence of clear allegation of mala fide against him, such allegation cannot be substantiate, [State of U.P. Vs. N.N. Prasad reported in "1995 (Supp.) (2) SCC 151" and J.N. Banobhalikor (Dr.) Vs. Municipal Corporation of Delhi, reported in "1995 (Supp.) (4) SCC 89 "]. But in the instant case the said person, against whom mala fide is alleged, has not been impleaded and there is no factual material to support the plea. 7. It is to be noted herein that, by virtue of the order dated 20.01.2003, passed by this Court, directed the petitioner to continue in his service, the petitioner is serving in his deputed post till date. The law relating to deputation is no longer res integra. A Division Bench of this High Court in the case reported in "(2005) 2 GLT26" (M.V. Kartikeyan Nair Vs. The law relating to deputation is no longer res integra. A Division Bench of this High Court in the case reported in "(2005) 2 GLT26" (M.V. Kartikeyan Nair Vs. Stat ofArunachal Pradesh), this Court extensively dealt with the law regarding the deputation including the meaning of the terminology "DEPUTATION", referring to the decisions rendered by the Apex Court reported in: 1) (2000) 5 SCC 362 , 2) (199) 8 SCC 372, & 3) AIR 1990 SC 113 . At Para 15 of the aforesaid judgment, this Court held as follows: "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, prescribed 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 poosts in the parent Department and they can very well be repatriated back to their respective posts. 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 poosts 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." Although the petitioner was repatriated prior to the expiry of his term, as extended vide order dated 01.10.2002, the said period has also since been expired long back. 8. In view of the aforesaid discussiorjs and the provisions of law, mentioned herein above, I do not find any merit in this writ petition and the same is dismissed, in the facts and circumstances of the case, making no order as to costs. 9. The interim order dated 20.10.2003 passed by this Court stands vacated.