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Madhya Pradesh High Court · body

2007 DIGILAW 326 (MP)

Kamlesh Kumar Sharma v. State of M. P.

2007-03-20

P.K.JAISWAL

body2007
ORDER 1. The petitioner in this writ petition under Article 226 of the Constitution of India challenging the order dated 6.5.2006 passed by respondent No.3 Directors Sports and Youth Welfare Department, Bhopal, whereby he has been repatriated to his parent department. This order of repatriation is challenged by the petitioner on the ground that it is contrary to the policy decision of the State Government and when the matter for absorption of the petitioner in the Sports and Youth Welfare Department was under active consideration, the respondents passed the impugned order repatriating the petitioner to his parent department. 2. Brief facts of the case are that the petitioner was originally appointed and posted as Constable in the Railway Police and his parent department is the respondent No.3 Home Department. In the year 1988, he was deputed in the Economic Offence Wing, Bhopal, vide Annexure P-4. Thereafter, he submitted an application for his deputation-in the Sports and Youth Welfare Department and consequently, he was deputed in the said department of respondent No.3 vide order dated 31.10.1992 (Annexure P-5). Annexure P-6 is policy on deputation issued by the State Government. Annexure P-7 is M.P. Sports and Youth Welfare Department Class III (Non-Gazetted Post) Service Recruitment Rules, 1998. The petitioner was working on deputation in the Department of Sports and Youth Welfare on the post of District Sports and Youth Welfare Officer. This post is under supervision of respondent No.4 Superintendent of Police, Morena. 3. At the instance of petitioner, the respondent No.3 initiated proceedings for his absorption on the post of District Sports and Youth Welfare Officer and issued letter dated 6.4.1999 (Annexure P-8). Respondent No.2 i.e. parent department of the petitioner issued no objection on 4.5.1999 vide Annexure P-9. On 31.7.1999, the respondent No.3 directed the petitioner to submit original documents regarding his qualifications, etc. On 10.8.1999, respondent No.4 directed the petitioner for submitting the documents before respondent No.3. Thereafter, vide Annexure P-12, District Authorities recommended the name of the petitioner for absorption on the post of District Sport and Youth Welfare Officer in the Department of respondent No.3. 4. On 10.8.1999, respondent No.4 directed the petitioner for submitting the documents before respondent No.3. Thereafter, vide Annexure P-12, District Authorities recommended the name of the petitioner for absorption on the post of District Sport and Youth Welfare Officer in the Department of respondent No.3. 4. It is submitted by the learned counsel for the petitioner that when his case for absorption in the department of respondent No.3 was in active consideration, the respondent No.3 vide order dated 16.10.2006 (Annexure P-16) absorbed one Shri Vikas Kharadkar, who was on deputation and working as District Sports and Youth Welfare Officer. It is also submitted that respondent No.4 vide letter dated 28.4.2006, recommended the name of one Shri Brijesh Singh Tomar for his deputation on the post of District Sports and Youth Welfare Officer, Morena. Thereafter, vide letter dated 3.5.2006, SP Morena recommended the name of Pranay Kumar Sharma for deputation on the post of District Sports and Youth Welfare Officer, Morena. Due to the recommendation made by respondent No.4 SP Morena for deputation of Pranay Kumar Sharma and Brijesh Singh Tomar on the post of District Sports and Youth Welfare Officer, Morena, the respondent No.3 repatriated the services of the petitioner to his parent department vide order dated 6.5.2006. It is this action, which is impugned in this writ petition. 5. Learned counsel for the petitioner has submitted that the petitioner has been repatriated just to accommodate Brijesh Singh Tomar and Pranay Kumar Sharma. It is also submitted that the petitioner is working from last 14 years on deputation on the post of District Sports and Youth Welfare Officer at Morena and his name was recommended for absorption in the department of respondent No.3, therefore, respondent No.3 acted illegally in repatriating him to his parent department. The post is still lying vacant and no regular appointment is made on the post of District Sports and Youth Welfare Officer, therefore, his services be absorbed on the said post. 6. The respondents filed their return and averred that the question of absorption of the petitioner on the post of District Sports and Youth Welfare Officer was earlier considered by the respondent No.3 and after considering the same the respondent No.3 rejected the same vide order dated 11.9.1997 (Annexure R -1) and repatriated him to his parent department. 6. The respondents filed their return and averred that the question of absorption of the petitioner on the post of District Sports and Youth Welfare Officer was earlier considered by the respondent No.3 and after considering the same the respondent No.3 rejected the same vide order dated 11.9.1997 (Annexure R -1) and repatriated him to his parent department. He never challenged the decision of respondent No.3, therefore, he cannot claim absorption as a matter of right. It is also averred that the petitioner was temporarily on deputation vide order dated 6.12.1997 (Annexure R-2) for a period of one year on temporary basis. Thereafter vide order Annexure R-3, dated 8.1.1998, the petitioner was temporarily sent on deputation for a period of one year or till anyone is appointed on deputation or till regular appointment is made or whichever is earlier. 7. As per the return filed by the respondents, absorption of the petitioner has already been decided and the same was rejected vide order dated 11.9.1997 (Annexure R-1), therefore, he has no legal right to hold the post on deputation. Mere recommendation made by the authorities for adjusting one Pranay Kumar Sharma will not in any way help to the petitioner. The petitioner has no legal right for absorption in the Department of Sports and Youth Welfare Department and the order passed by the respondent No.3 on 6.5.2006 is just and proper. 8. I have heard the arguments of the parties and perused the record of the case. 9. Deputation means service out side the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, i.e. to another department on a temporary basis. An employee has no vested right to continue on deputation, he can be sent back to his parent department where he held a lien. The petitioner is the employee of Home Department, holding the post of Constable in the Railway Police. He was taken on deputation in the department of respondent No.3, that is to say, Sports and Youth Welfare Department. Earlier, he applied for his absorption in the Sports and Youth Welfare Department. The respondent No.3 vide order dated 11.9.1997 rejected his absorption and he was repatriated to his parent department. The petitioner never challenged the order dated 11.9.1997 (Annexure R-1). He has no legal right to get absorbed in the department to which he. Earlier, he applied for his absorption in the Sports and Youth Welfare Department. The respondent No.3 vide order dated 11.9.1997 rejected his absorption and he was repatriated to his parent department. The petitioner never challenged the order dated 11.9.1997 (Annexure R-1). He has no legal right to get absorbed in the department to which he. had gone on deputation. 10. The respondent No.1 vide circular dated 2.12.1988 (Annexure P6) framed a policy for sending the employee on deputation. As per this policy, deputation is possible only with the consent and voluntary decision of the deputationist, lending authority in the parent department and the borrowing authority in the borrowing Department. 11. With the consent of parent department dated 17.9.1997 and borrowing department dated 6.12.1997, the services of the petitioner is repatriated by the impugned order dated 6.5.2006 (Annexure P-1) and he was relieved by the respondent No.4 on the same day, i.e. 6.5.2006 vide letter No.B/3643 dated 6.5.2006. 12. Learned counsel for the petitioner drew my attention to rule 6 of M.P. Sports and Youth Welfare Class II (Non-Gazetted) Service Recruitment Rules, 1998 of the department of respondent No.3, i.e. borrowing department, and submitted that as per rule 6.1(Gha), he can be recruited in the department of respondent No.3. The respondent No.3 considered the case of petitioner for absorption in the year 1997 and once the same is rejected, he cannot claim his absorption as a matter of right and the above rule will not in any way help him. The doctrine of legitimate expectation to be absorbed cannot be invoked for challenging the order of repatriation. 13. Learned counsel for the petitioner drew my attention to the decision of apex Court in the case of Union of India and another v. V.Ramakrishnan and others [ (2005)8 SCC 394 ], in which the apex Court has held that where deputation is for a specific term, that cannot be curtailed except on such ground such as unsuitability or unsatisfactory performance and even where the tenure is not specified, reversion can be challenged if the same is mala fide. 14. Ordinarily, a deputationist has no legal right to continue in the post. He has no right to be absorbed in the post to which he is deputed. However, there is no bar thereto as well. 14. Ordinarily, a deputationist has no legal right to continue in the post. He has no right to be absorbed in the post to which he is deputed. However, there is no bar thereto as well. It may be true that when deputation does not result in absorption in the service to which an officer is deputed, no recruitment in its true import and significance takes place as he is continued to be a member of the parent service. 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 just grounds as, for example, unsuitability or unsatisfactory performance. But, even where the tenure is not specified, an order of reversion can be questioned when the same is mala fide. An action taken in a post-haste manner also indicates malice. {See Bahadursingh Lakhubhai Gohil v. Jagdishbhai M. Kamalia [ (2004)2 SCC 65 ]). 15. In the case of Rameshwar Prasad v. Managing Director, U.P. Rajkiya Nirman Nigam Limited and others [ (1999)8 SCC 381 ], the apex Court has held that deputationist's right to be considered for, when statutory rules provide for absorption. Although an employee on deputation has no right to be absorbed in the service where he is working on deputation, in some cases depending upon the statutory rules the position may be to the contrary. 16. Here in the present case, there is no such rule nor the learned counsel for the petitioner drew my attention to any rules by which he cannot be repatriated from borrowing department. Therefore, the case of V. Ramakrishnan (supra), and Rameshwar Prasad (supra), will not be applicable in the present facts and circumstances of the case. The apex Court in the case of Kunal Nanda v. Union of India, reported in (2000)5 SCC 362 , has held that the 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 having the force of law, a deputationist cannot assert and succeed in 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 in substantive post therein at the instance of either of departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation. The petitioner, undisputedly was only a deputationist as far as Sports and Youth Welfare Department is concerned and his parent department is Home Department and his substantive post and appointment is only in that department. The absorption is already rejected by the respondent No.3 in the year 1997 and therefore, Sports and Welfare Department cannot be compelled to absorb him and consequently the order of repatriation did not call for interference. 17. The Division Bench of this Court in the case of S.M.P. Sharma v. State of M.P. and another [ 2005(1) JLJ 7 = 2005(1) MPLJ 398 ], has held that parent department has always the right to recall the services of its employees sent on deputation. While recalling, consent of employee is not required where there is no specific contract about his tenure. Unless an employee on deputation has already been absorbed in the borrower department, he can always be called by parent department. Mere proposal for absorption, even if true, cannot come in the way of recalling the services of its any employees, at any time before absorption. 18. Admittedly, in this case, the petitioner was not absorbed in the borrowing department and his absorption was rejected on 11.9.1997 (Annexure R-1). Mere proposal for absorption and recommendation for his absorption, where he works on deputation, is not based upon any statutory rules and, therefore, the same cannot come in the way of borrowing department for repatriating recalling the services of the petitioner to his parent department, at any time before absorption. 19. In view of the law laid down by the apex Court in the case of Kunal Nanda (supra), which has been relied upon by the Division Bench of this Court in the case of S.M.P. Sharma (supra), I do not find any error in the impugned order dated 6.5.2006 passed by the respondent No.3. 19. In view of the law laid down by the apex Court in the case of Kunal Nanda (supra), which has been relied upon by the Division Bench of this Court in the case of S.M.P. Sharma (supra), I do not find any error in the impugned order dated 6.5.2006 passed by the respondent No.3. After passing the order dated 6.5.2006, the petitioner was immediately on the same day relieved by the respondent No.4 (Annexure A-1) vide order dated 6.5.2006 filed by the respondents alongwith an application for vacating stay. 20. From the above facts and circumstances of the case, I do not find any legal substance in any of the contentions advanced by the learned counsel for the petitioner and the writ petition filed by the petitioner has no merit to interfere with the order dated 6.5.2006. On the legal submissions also made there are no merits whatsoever. Accordingly, the writ petition is dismissed with costs of Rs.3,000/-. Counsel fee, if pre-certified.