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2013 DIGILAW 341 (MP)

Madhubala Sharma v. Union of India

2013-03-13

J.K.MAHESHWARI, SHANTANU KEMKAR

body2013
JUDGMENT : As per Shantanu Kemkar, J.:- All these writ appeals involve identical facts and question of law and they arise out of common order dated 21-11-2012 passed by the learned Single Judge as such they were being heard together and are decided by this common order. For the sake of convenience facts are taken from Writ Appeal No. 621/2012 arising out of Writ Petition No. 4237/2012. 2. Challenging the order dated 3-2-2012 issued by the State Government repatriating her services which were on deputation with the Employees State Insurance Corporation under the Central Government (for short 'ESIC') to the State Government and the consequential orders issued by the ESIC to implement the order of repatriation issued by the State Government, the petitioner had filed the aforesaid writ petition seeking declaration of her to have been absorbed in the services of the ESIC. 3. The petitioner is a Doctor by profession. She is an employee of the State Government. She was posted in the ESI Hospital run by the State Government. On account of the decision being taken for handing over the said hospital belonging to the State Government to the ESIC, it was resolved that all the employees serving in the said hospital of the State Government situated at Nandanagar, Indore shall be treated as on deputation with ESIC initially for a period of one year which can be extended upto three years. In furtherance to the said decision various correspondence including Annexures P-1 to P-11 took place between the State Government and the ESIC, reflecting therein that a process for absorption of those employees who were sent on deputation was also initiated. 4. It is not in dispute that the initial period of deputation was extended by the State Government from time to time upto 31 -11 -2012. However, by the impugned order dated 3-2-2012 the State Government informed the petitioner and the ESIC that the petitioner's period of deputation is not extended further and she along with the entire staff which was on deputation was ordered to be repatriated on account of shortage of employees with the State Government. Feeling aggrieved, the petitioner and various other Doctors have filed the writ petitions which have been decided by the common order impugned in this writ appeal. 5. Feeling aggrieved, the petitioner and various other Doctors have filed the writ petitions which have been decided by the common order impugned in this writ appeal. 5. The learned Single Judge after considering the record and after hearing the parties dealt with the matter exhaustively and rejected the petitioner's prayer for absorption of her services in the ESIC holding that the deputationist does not have any right to be absorbed on the deputation post. The learned Single Judge held that the relief claimed by the petitioner cannot be granted as she is employee of the State Government and she has rightly been repatriated. The learned Single Judge also considered the judgment passed by the Supreme Court in the case of Rameshwaram Prasad Vs. Managing Director, U.P. Rajkiya Nirman Nigam Ltd. and others, (1999) 8 SCC 381 , on which strong reliance was placed by the petitioner. The learned Single Judge was of the view that in the said case rules were framed for absorption and in the circumstances it was held by the Supreme Court that though the power of absorption is discretionary it cannot be exercised arbitrarily or at the whim or capricious of any individual. 6. Feeling aggrieved by the said order dated 21-11-2012 passed by the learned Single Judge the petitioner has filed this intra Court appeal under Section 2 (1) of the M.P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005. 7. We have heard learned Counsel for the parties at length and perused the documents. 8. Shri A.M. Mathur, learned Senior Counsel for the petitioner strenuously urged that the decision of sending the petitioner along with other employees on deputation in the ESIC and for absorption of their services in ESIC could not have been revoked by the State Government, by way of cancellation of the deputation and by issuance of the order of repatriation. He argued that the petitioner having been given an understanding that her services will be absorbed in the borrowing Department where she has been sent on deputation and the various steps being taken towards process of absorption by the lending and the borrowing department, her services could not have been repatriated. In support of his submissions, he has taken us to the various documents filed along with writ petition including Annexures P-1 toP-11. 9. On the other hand, Shri S.C. Agrawal, learned Counsel for the respondent Nos. In support of his submissions, he has taken us to the various documents filed along with writ petition including Annexures P-1 toP-11. 9. On the other hand, Shri S.C. Agrawal, learned Counsel for the respondent Nos. 1, 2 and 3 and Ms. Mini Raveendran, learned Dy. Govt. Advocate for the respondent Nos. 4, 5 and 6 have supported the order passed by the learned Single Judge. According to them, the parent department has a right to recall the services of employees sent on deputation. They contended that although there was some correspondence going on for absorption of the petitioner with other Doctors in the borrowing department but it never took a final shape and it remained only proposal. In the circumstances, according to them mere proposal for absorption as would be clear from the correspondence will not come in the way of the parent department for recalling of service of its employees which were sent on deputation. 10. Admittedly, the appellant/petitioner is a State Government employee and was sent on deputation to the ESIC. True it is, that there was some correspondence going on between the lending and borrowing department about the absorption of the deputationist in the borrowing department, however as would be clear from the correspondence" that no final decision about absorption of employees could be taken. Be that as it may, the petitioner is undisputably a State Government employee and she was sent on deputation to the ESIC and before any order of absorption was passed she has been ordered to be repatriated by her parent department along with all the similarly placed employees. 11. A Division Bench of this Court in the case of Dr. S.M.P. Sharma Vs. State of M.P., 2005(1) M.P.H.T. 380 (DB) = 2004 Part 2 MPJR 89 had occasion to deal with somewhat identical situation. Taking note of the law laid down by the Supreme Court in the case of Kunal Nanda Vs. Union of India and another, AIR 2000 SC 2076 , the Division Bench held that the parent department has always right to recall the services of its employees sent on deputation. Taking note of the law laid down by the Supreme Court in the case of Kunal Nanda Vs. Union of India and another, AIR 2000 SC 2076 , the Division Bench held that the parent department has always right to recall the services of its employees sent on deputation. In the absence of any specific contract assuring the employee of a particular tenure in respect of the deputation post, the person concerned can always and at any time be repatriated to its parent department to serve in his substantive post therein at the instance of either of the department and there is no vested right in such a person to continue for a long on deputation. It further observed that unless the claim of the deputationist for permanent absorption in the department where he works on deputation is based upon statutory Rule, Regulation or Order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. 12. In the present case no statutory Rules, Regulation and Order is being pointed out giving any right to the petitioner for being absorbed. Mere correspondence without there being any order for absorption cannot come in the way of the State Government which is the lending department for recalling the service of the petitioner from the borrowing department. We find no malafides or arbitrariness in issuance of the order by the State Government for recalling of the petitioner's service. On the other hand, we find that there exists a justified reason for issuing order of repatriation which as is clear from the order is shortage of staff in the State Government services. 13. In this view of the matter and the clear legal position in our considered view the learned Single Judge has committed no error in upholding the decision of the State Government to repatriate the services of the petitioner and denying the petitioner the relief of declaring her to be absorbed in the borrowing department. No case for interference in this intra Court appeal is made out. 14. Accordingly, the appeal fails and is hereby dismissed. No orders as to the costs.