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Madhya Pradesh High Court · body

2014 DIGILAW 1500 (MP)

Anil Shrivastava v. State of M. P.

2014-11-19

ALOK ARADHE

body2014
JUDGMENT : Alok Aradhe, J.:- In this bunch of writ petitions singular issue, namely, the validity of the order of repatriation of services of petitioners to their parent department arises for consideration. Accordingly, the writ petitions were heard analogously and are being decided by this order. For the referred to. 2. The petitioner was appointed as Medical Officer in the year 1978 under the Health and Family Welfare Department, Government of Madhya Pradesh and was posted at Mini Primary Health Centre, Kesharpal, District Bastar (now in Chhattisgarh). Thereafter, the petitioner was promoted to the post of Medical Specialist vide order dated 13.4.2000 by the Parent Department i.e. Health and Family Welfare Department, Government of Madhya Pradesh. By an order dated 05.6.2000 passed by and in the name of Governor, the services of the petitioner were handed over on deputation to the Medical Education Department. The petitioner was posted in G.M. Hospital, Rewa. The petitioner performed various duties assigned to him from time to time in G.M. Hospital, Rewa. The Dean, Medical College, Rewa by an order dated 09.5.2013 assigned the duties of the post of Senior Resident, Department of Medicine to the petitioner. However, by order dated 04.9.2014 the services of the petitioner were repatriated to his parent department and he was posted in Civil Hospital, Teothar, District Rewa. In the aforesaid background the petitioners have approached this Court. 3. Mr.Rajendra Tiwari, learned senior counsel for the petitioners submitted that petitioners hold Class-I Gazetted Post and by order dated 05.6.2000 issued by and in the name of Governor by the State Government the services of the petitioner were handed-over on deputation to Medical Education Department. Therefore, withdrawal of order of deputation of the petitioner cannot be by any authority other than the State Government. However, in the instant case the impugned order has been passed by the Additional Director, Administration. It is further submitted that the aforesaid order has been passed in contravention of Business Rules framed by the State Government under Article 166 of the Constitution of India. In this connection the learned senior counsel has also invited the attention of this Court to Rule 20 of Madhya Pradesh (Control, Classification & Appeal) Rules, 1966. 4. It is further submitted that the aforesaid order has been passed in contravention of Business Rules framed by the State Government under Article 166 of the Constitution of India. In this connection the learned senior counsel has also invited the attention of this Court to Rule 20 of Madhya Pradesh (Control, Classification & Appeal) Rules, 1966. 4. It is urged that there is no mention in the impugned order dated 04.9.2014 that any post facto sanction has been accorded to the order of repatriation and, therefore, the same smacks of foul play. It is also urged that Commissioner, Health has no power to pass any order in respect of the employees holding Class-I Gazetted post. It is pointed out that the services of the petitioners who were posted in District Rewa alone have been repatriated to the Parent Department whereas such exercise has not been undertaken in any other district. Lastly, it is submitted that the consent of Borrowing Department has not been taken. In support of aforesaid submissions, reference has been made to decision of Supreme Court in the case of Jawaharlal Nehru University vs. Dr.K.S.Jaswatkar and others, AIR 1989 SC 1577 . 5. Mr.R.N.Singh, learned senior counsel has submitted that the services of the petitioners have been repatriated and the petitioners have been posted in various hospital in District Rewa in public interest. It is further submitted that petitioners were continuing on deputation for 14 years, 27 years, 16 years, 20 years and 19 years respectively and the impugned orders have been passed by the State Government. It is urged that there is no violation of Business Rules while passing the impugned orders and the petitioners have no legal right to continue on deputation. It is also urged that provisions of Article 166 of the Constitution of India are directory in nature. Learned senior counsel has also invited the attention of this Court to instructions dated 02.12.1988 and 31.3.2006 issued by General Administration Department to point out that maximum period of deputation shall be 4 years and thereafter, the order of deputation comes to an end automatically. Learned senior counsel has also invited the attention of this Court to instructions dated 02.12.1988 and 31.3.2006 issued by General Administration Department to point out that maximum period of deputation shall be 4 years and thereafter, the order of deputation comes to an end automatically. In support of aforesaid submissions, learned senior counsel has placed reliance on the decisions in the cases of State of Punjab and others vs. Inder Singh and others, (1997) 8 SCC 372 , Kunal Nanda vs. Union of India and another, (2000) 5 SCC 362 , Managing Director, U.P.Rajkiya Nirman Nigam vs. P.K.Bhatnagar and others, (2007) 14 SCC 498 and State of Bihar and another vs. Sunny Prakash and others, (2013) 3 SCC 559 . 6. By way of rejoinder reply learned senior counsel while referring to circular dated 31.3.2006 has submitted that Department of Health & Family Welfare ought to have approached the Medical Education Department for repatriation of services even as per the provisions of circular dated 31.3.2006. It is further submitted that since the petitioners have spent long period on deputation, it is deemed that the competent authority has given its consent. It is further submitted that the Borrowing Authority can repatriate the services of the petitioner. However it is fairly submitted by learned senior counsel for petitioners that parent department has the power to repatriate the services of the petitioner but the procedure prescribed in the circular has to be followed which has not been followed in the instant case. It is also submitted that the decisions on which reliance has been placed by the respondents have no application to the facts of the case. 7. I have considered the respective submissions made by learned senior counsel for the parties. The concept of deputation is well understood in service jurisprudence and has recognized meaning. In other words, the deputation means service outside the cadre or outside the parent department. The deputation is deputing or transferring an employee to a post outside his cadre to another department on a temporary basis. The deputation can be aptly described as an assignment of an employee of one department to another department. The necessity for sending on deputation arises in public interest to meet the exigency of public service. See: Umpati Choudhary Vs. State of Bihar and another, (1994) 4 SCC 659 . In State of Bombay Vs. The deputation can be aptly described as an assignment of an employee of one department to another department. The necessity for sending on deputation arises in public interest to meet the exigency of public service. See: Umpati Choudhary Vs. State of Bihar and another, (1994) 4 SCC 659 . In State of Bombay Vs. Purshottam Jog, AIR 1952 SC 317 , it has been held that if an order has not been passed in accordance with requirement of Article 166 of the Constitution, the order in question would be defective in form and it would be open to the State Government to prove by other means that such an order had been validly made. This view was affirmed by the Supreme Court subsequently, in the case Ghaiomal & Sons Vs. State of Delhi, AIR 1959 SC 65 . Recently, the Supreme Court in the case of State of Bihar and another (supra) while taking note of the aforesaid decision held that provisions of Article 166 of the Constitution are only directory and not mandatory in character and if they are not complied with, it can be established as a question of fact that the impugned order in fact was issued by the State Government. 8. While dealing with the amplitude of power under Article 226 of the Constitution of India in the case of State of Orissa vs. Madan Gopal Rungta, AIR 1952 SC 12 and in the case of Calcutta Gas Co. Vs. State of West Bengal, AIR 1962 SC 1044 it has been held that writs/directions/orders under Article 226 can be issued only after recording a finding that aggrieved party has a legal right and any such right has been infringed. It is well settled legal proposition that Article 226 of the Constitution grants an extraordinary remedy which is essentially discretionary. Accordingly, the granting or withholding of relief may properly be dependent upon consideration of public interest. [See: Shiv Shanker Dal Mills vs. State of Haryana, AIR 1980 SC 1037 ]. 9. In the instant case, from the data base of the Department of Health & Family Welfare, Government of Madhya Pradesh, it was found that 50 posts of Medical Specialists and 74 posts of Medical Officers are sanctioned in rural areas in Rewa District against which, only 6 Specialists and 55 Medical Officers are posted. 9. In the instant case, from the data base of the Department of Health & Family Welfare, Government of Madhya Pradesh, it was found that 50 posts of Medical Specialists and 74 posts of Medical Officers are sanctioned in rural areas in Rewa District against which, only 6 Specialists and 55 Medical Officers are posted. It was further noticed that on account of deficiency of the Medical Specialists and the Medical Officers, the department is unable to provide medical services in rural areas. It was also noticed that petitioners have been posted on deputation in Government Medical College, Rewa for 14, 27, 16, 20 and 19 years respectively. Accordingly, a decision was taken to repatriate their services and to post them in rural area. Accordingly, an order dated 4.9.2014 was issued which was duly approved by Health Commissioner as well as Principal Secretary of Health & Family Welfare Department, Government of Madhya Pradesh which is evident from the note-sheets available on record. Thus, it is evident that the order has been passed by the State Government, in public interest. 10. So far as contention made by learned senior counsel that procedure prescribed in circular dated 31.3.2006 has not been followed is concerned, suffice it to say that the instructions on which reliance has been placed do not have any force of law. Admittedly, the petitioners have continued for more than ten years in Government Medical College, Rewa and they are being posted in rural areas with a view to provide medical facilities to the public in general. Even assuming that the procedure prescribed in the executive instructions dated 31.3.2006 has been violated, the same does not confer any legal right to the petitioners to continue on deputation, as the executive instructions do not have any force of law. At the most the petitioners can approach the competent authority for redressal of their grievance, if any, by submitting representations. The petitioners do not have any legal right to continue on deputation. In the absence of infringement of any legal right, no relief in exercise of extraordinary discretionary jurisdiction under Article 226 of the Constitution of India can be granted to the petitioners, specially in view of the fact that the impugned orders have been passed in public interest i.e. with the object to provide medical facilities to the public in general in rural areas. 11. 11. In view of preceding analysis, I do not find any merit in the writ petitions. The same fail and are hereby dismissed.