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2015 DIGILAW 2387 (ALL)

Rajesh Kumar v. State of U. P.

2015-08-13

AKHTAR HUSAIN KHAN, NARAYAN SHUKLA

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JUDGMENT The petitioner is aggrieved with the order dated 16.04.2015 issued by the State Project Management Unit under the National Health Mission (NHM), whereby petitioner has been repatriated to parent department. 2. Pursuant to the advertisement dated 21 August 2014 issued by the National Health Mission the petitioner was appointed on the post of Deputy General Manager in the Unit, namely SPMU. The petitioner joined the post on 19 February 2015 and started work in the department from the date of joining, however, just within two months he was repatriated to the parent department by means of order impugned. 3. Learned counsel for the petitioner Mr. Sandeep Dixit has submitted that respondent has not assigned any reason for his repatriation. He has brought on record the government order which was issued by the State Government which provides the term of deputation as 3 to 5 years. Accordingly, he had to continue in present department on deputation minimum for three years, but he has been repatriated just within two months. It is stated that such an order of repatriation could not have been passed without assigning any reason as has been held by the Hon'ble Supreme Court in the case of Union of India through Govt. of Pondicherry and another Vs. V. Ramakrishnan and others (2005) 8 SCC, 394. "32. Ordinarily, a deputationist has no legal right to continue in the post. A deputationist indisputably has no right to be absorbed in the post to which he is deputed. However, there is no bare 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 Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia SCC para25.) 35. 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 Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia SCC para25.) 35. In Parshotam Lal Dhingra, it is categorically stated that when an appointment is made for a specific period, unless any disciplinary proceeding is initiated, a person will be entitled to hold the said post." 4. Per contra Mr. I.P. Singh, learned Senior Counsel appearing for the respondent has submitted that petitioner's conduct was bad and as such he was no longer entitled to remain posted on deputation. Furthermore, no reason has been assigned. In support of his submission, he has placed relevant record of his office which contains complaint made by one Balram Tiwari, Regional Coordinator to the General Manager, community process on 15.04.2015. In his complaint Mr. Tiwari, had stated that petitioner approached him to do favour of some of the candidates which was assured to be kept secret. Three other employees had also complained about misconduct of the petitioner. 5. Learned counsel appearing for the respondents has also placed a decision of the Hon'ble Supreme Court rendered in the case of K.H. Phadnis Vs. State of Maharashtra 1971(1) SCC 790 . "17. The order of reversion simpliciter will not amount to a reduction in rank or a punishment. A Government servant holding a temporary post and having lien on his substantive post may be sent back to the substantive post in ordinary routine administration or because of exigencies of service. A person holding a temporary post may draw a salary higher than that of his substantive post and when he is reverted to his parent department the loss of salary cannot be said to have any penal consequence. Therefore, though the Government has right to revert a Government servant from the temporary post to a substantive post, the matter has to be viewed as one of substance and all relevant factors are to be considered in ascertaining whether the order is a genuine one of "accident of service" in which a person sent from the substantive post to a temporary post has to go back to the parent post without as aspersion against his character or integrity or whether the order amounts to a reduction in rank by way of punishment. Reversion by itself will not be a stigma. On the other hand, if there is evidence that the order of reversion is not "a pure accident of service" but an order in the nature of punishment, Article 311 will be attracted." 6. Record placed by the learned counsel for the respondent was also provided to learned counsel for the petitioner for his perusal, after perusal of which with consultation of his client (petitioner), he declined from any such complaint and submitted that it is frivolous one. Therefore, the same cannot be taken note of. 7. On consideration of the rival submissions of the learned counsel for the parties, as well as, law laid down by the Hon'ble Supreme Court on the subject of deputation, we are of the view, that definitely the petitioner has no right to claim continuity on deputation in the Program Management Unit of the department. 8. However, since the petitioner states that the complaints made against him are frivolous, it should be necessarily inquired by competent authority i.e. Principal Secretary of the Department, so that no such happening may be made in future. 9. Accordingly direction is issued. 10. With the aforesaid direction the writ petition stands dismissed. 11. The record placed before this Court is returned to the learned counsel for the respondents.