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Uttarakhand High Court · body

2015 DIGILAW 539 (UTT)

Gambeer Singh Tomar v. State of Uttarakhand

2015-11-19

K.M.JOSEPH, V.K.BIST

body2015
JUDGMENT : K.M. Joseph, J. 1. Petitions being connected and having raised similar question, we are disposing of the same by a common following judgment. We treat Writ Petition SB No. 258 of 2015 as the leading case. 2. Petitioners, in both the writ petitions, were appointed as Junior Engineers through Public Service Commission. While so, on the basis of applications invited by the Govt., they applied and according to them, after undergoing a process of selection, they were appointed on deputation in the Prime Minister Gram Sarak Yojana (hereinafter referred to as ‘PMGSY’). There is no order of appointment as such, but the order posting them (English translated version of which has been supplied by the petitioner) reads as follows:- Office of Chief Engineer (Level-2) PMGSY, Uttarakhand. Letter No. 1130/26 Adhi./2014 Dated - 27.05.2014 Office Memo In compliance of the Government Order No. 950/XI/14/53(12)/14 dated 20.05.2014, Sri Gambhir Singh, Additional Assistant Engineer, Provincial Division, PWD, Haridwar is hereby posted on deputation for three years, or till regular appointment is made on the post of Assistant Engineer in PMGSY, Irrigation Division, Kotdwar. Aforesaid deputation is only for three years. If the regular posting is made by the Government/Department on the vacant post of Assistant Engineer in PMGSY, then the aforesaid deputation would come into an end with immediate effect. Aforesaid personnel will have to join his service till 30.06.2014. (K.K. Jain) Chief Engineer, Level-2, PMGSY. 3. Prior to the expiry of three years, they stand repatriated by the impugned order to the PWD department. It is this action, which is called in question by the petitioners in these two writ petitions. 4. We heard learned Senior Counsel Sri Manoj Tewari, assisted by Sri Bhupesh Kandpal, Advocate in Writ Petition (S/B) No. 258 of 2015, Sri Bhupesh Kandpal, Advocate appears in the other writ petition and also Sri P.C. Bisht, learned Standing Counsel on behalf of the Department. 5. Learned Senior Counsel for the petitioner would submit that this is a case where actually it is an appointment on deputation and, therefore, the petitioners could not have been repatriated back in the manner done. He would further submit that there is no occasion, at all, to repatriate them back to the PWD department. 5. Learned Senior Counsel for the petitioner would submit that this is a case where actually it is an appointment on deputation and, therefore, the petitioners could not have been repatriated back in the manner done. He would further submit that there is no occasion, at all, to repatriate them back to the PWD department. It is further argued that they are the victims of discrimination, inasmuch as, one Sri Pooran Singh Phartiyal is treated differently from them and he is allowed to continue in PMGSY. It is pointed out by Sri Manoj Tewari, learned Senior Counsel that the stand taken by the respondent that there is shortage of engineers in PWD is not borne out by the records produced by the petitioner. In this regard, petitioners have produced the figures to show that the sanctioned strength is 1010 in PWD, whereas there are more than 1010 engineers already working in PWD. This itself is sufficient to show that the reason pointed out to repatriate them prematurely is unjustified. In this context, to buttress his argument that this is an appointment by deputation, learned Senior Counsel for the petitioner sought support from the judgment reported in 2015 (4) SCC 164 Union of India and another vs. S.N. Maity and another and he would submit that the Hon’ble Apex Court has frowned upon the practice of repatriation and that too without justifiable cause, particularly when it is a case of an appointment by deputation. He would point out that in several service Rules, deputation is a matter of recruitment and if this is a case of an appointment by deputation, therefore, in terms of the order, which we have adverted to earlier, unless a period of three years expires, or a regular appointment takes place, before the expiry of three years the petitioners could not be repatriated back to the parent department. He would submit that the action is afflicted with the vice of legal mala-fide. He would submit that the reasons referred to by the Government, namely, shortage of officer, being bereft of any substance, exposes the Government to the charge of having committed an arbitrary act, and therefore, warrants interference by this Court. 6. He would submit that the action is afflicted with the vice of legal mala-fide. He would submit that the reasons referred to by the Government, namely, shortage of officer, being bereft of any substance, exposes the Government to the charge of having committed an arbitrary act, and therefore, warrants interference by this Court. 6. Per contra, learned Standing Counsel for the State would submit that from all the statistics produced by the petitioners themselves, it becomes clear that from sanctioned strength of 1010; only 646 are regular appointments, 19 are ad-hoc, 5 are serving on the basis of the Court orders, 14 are taken on deputation from Rural Engineering Service and 420 are contractual appointees and making it grand total of 1104. He would, in fact, have a case that the petitioners could not have sent on deputation as there is no sanctioned post in the PMGSY and in the absence of posts, deputation could not have been resorted to. As far as the more favourable treatment meted out to Sri Pooran Singh Phartiyal is concerned, the explanation is given in paragraph-9 of the supplementary counter affidavit, which reads as follows:- “9. That insofar as the case of Pooran Singh Phartiyal is concerned, he was sent purely under temporary arrangement as in-charge Assistant Engineer in PMGSY vide office memorandum dated 20.08.2015 of URRDA whereas the petitioner has been sent on deputation. In case of Sri Phartiyal he has not being paid any additional salary or allowance for the post of in-charge Assistant Engineer as held by him. However, at present Sri Phartiyal is also working as Additional Assistant Engineer and the order posting him as in-charge Assistant Engineer has also been cancelled on 06.11.2015. Therefore, presently he is working as Additional Assistant Engineer in the PMGSY.” 7. It is the argument of learned Senior Counsel Sri Manoj Tiwari that the petitioners, in fact, are posted as Assistant Engineers, which is a higher post and if at all anybody had a right to ventilate any grievance, it would have been the borrowing Organisation as regards the petitioners serving on higher post. 8. The first question, we would have to address and have to render finding on is, whether the cases on hand represent instances of appointment by deputation. In this regard, we must notice the facts in the judgment of 2015 (4) SCC 164 (supra). 8. The first question, we would have to address and have to render finding on is, whether the cases on hand represent instances of appointment by deputation. In this regard, we must notice the facts in the judgment of 2015 (4) SCC 164 (supra). It is necessary to notice paragraph no. 4, as also paragraph no. 7, which read as follows:- “4. The High Court after posing the questions took note of the fact that the Union of India had issued an advertisement in the Employment News dated 20/26.10.2001 calling for applications from eligible candidates for appointment to the post of CGPDTM and the Ministry had proposed to fill up the post by transfer on deputation, including short-term contract. The 1st respondent, being eligible, applied through his parent department i.e. Central Mining Research Institute, Dhanbad and his selection was made by the Union Public Service Commission (for short, 'the UPSC') which held interview on 4.6.2002 and finding him suitable, recommended his name for appointment. The competent authority approved the appointment of the 1st respondent, the petitioner before the High Court, for the post of CGPDTM in the pay scale of Rs.18,400-500-22,400/- on deputation basis for a period of five years or until further orders, whichever was earlier from the date of assumption of the charge of the post. The said order was communicated vide letter no. 8/52/2001-PP&C (Vol. II) dated 23.6.2003 issued by the Deputy Secretary to the Government of India, Department of Industrial Policy and Promotion. Thereafter, a letter of appointment dated 11.8.2003 was issued to the 1st respondent in the name of the President, appointing him on deputation basis for a period of five years or until further orders, whichever was earlier.” “7. To appreciate the defensibility and legal pregnability of the judgment and order passed by the High Court, it is necessary to reproduce the Notification dated 7.8.2003 by which the 1st respondent was appointed. It reads as follows: "NOTIFICATION No. 8/52/2001-PP&C: The President is pleased to appoint Dr. S.N. Maity, Scientist E-II of Central Mining Research Institute (Council of Scientific and Industrial Research) as Controller General of Patents, Designs and Trade Marks under the Ministry of Commerce and Industry (Department of Industrial Policy and Promotion) on deputation basis for a period of five years with effect from the forenoon of 29th July, 2003 or until further orders, whichever is earlier. Sd/- (Y.P. Vashishat) Under Secretary to the Govt. of India." 9. And it is thereafter, that the Hon’ble Apex Court proceeded to make the following observations: “8. From the aforesaid order, it is luculent that the 1st respondent was appointed on deputation basis for a period of five years or until further orders, whichever was earlier. Submission of Mr. Tushar Mehta, learned ASG is that the order, as is demonstrable, being an order of deputation, it is the prerogative of the employer to recall him to the parent department without assigning any reason before the term of five years was over as such a rider was postulated in the order of appointment. Per contra, Mr. Gonsalves, learned senior counsel appearing for 1st respondent would contend that in the absence of any reason, such an order could not have been passed as that smacks of absolute arbitrariness which the law does not countenance. It is the stand of respondent no. 2, Council for Scientific and Industrial Research (CSIR) that the 1st respondent had only gone on deputation and on being released, he was bound to come back to the parent department. “9. On an anxious appreciation of the facts, which include issuance of an advertisement, selection process which led to eventual recommendation by the UPSC and the ultimate issue of Notification, it is extremely difficult to accept the submission of Mr. Tushar Mehta that it is a deputation by one department to another or to put it differently, the parent department had lent the services of the 1st respondent to the borrowing department. It is not a deputation simpliciter. The Notification by which the 1st respondent was appointed has a different nature and character. Mr. Gonsalves, learned senior counsel has commended us to the decision in Debesh Chandra Das vs. Union of India, (1969) 2 SCC 158 . In the said case, the appellant, a member of Indian Civil Service, was chosen by the Appointments Committee of the Cabinet to function as the Secretary, Department of Social Security and he continued in that Department. Thereafter, he received certain communications on June 20, 1966 and September 7, 1966 from the Cabinet Secretary, which he construed them as reduction in rank and challenged the same in a writ petition in the High Court of Calcutta on September 19, 1966. Many a ground was urged contending, inter-alia, that there was reduction in rank. Thereafter, he received certain communications on June 20, 1966 and September 7, 1966 from the Cabinet Secretary, which he construed them as reduction in rank and challenged the same in a writ petition in the High Court of Calcutta on September 19, 1966. Many a ground was urged contending, inter-alia, that there was reduction in rank. The High Court did not accept the contention and dismissed the writ petition. It was contended before this Court on behalf of the appellant that the reversion being in the nature of penalty, the procedure under Article 311(2) was required to be followed and as there was gross violation of the same, the order passed by the Government of India could not be sustained. The said submission was countered by the Government of India urging, inter-alia, that he was on deputation and the deputation could be terminated at any time; that his order of appointment clearly showed that the appointment was "until further orders"; that he had no right to continue in Government of India if his services were not required and his reversion to his parent State did not amount either to any reduction in rank or a penalty and, therefore, the order was quite legal and justified.” “16. The controversy that has emerged in the instant case is to be decided on the touchstone of the aforesaid principles of law. We have already opined that it is not a case of simple transfer. It is not a situation where one can say that it is a transfer on deputation as against an equivalent post from one cadre to another or one department to another. It is not a deputation from a Government Department to a Government Corporation or one Government to the other. There is no cavil over the fact that the post falls in a different category and the 1st respondent had gone through the whole gamut of selection. On a studied scrutiny, the notification of appointment makes it absolutely clear that it is a tenure posting and the fixed tenure is five years unless it is curtailed. But, a pregnant one, this curtailment cannot be done in an arbitrary or capricious manner. There has to have some rationale. Merely because the words ‘until further orders’ are used, it would not confer allowance on the employer to act with caprice.” 10. But, a pregnant one, this curtailment cannot be done in an arbitrary or capricious manner. There has to have some rationale. Merely because the words ‘until further orders’ are used, it would not confer allowance on the employer to act with caprice.” 10. The Court also took the view that the order impugned is silent regarding the rationale for premature repatriation. 11. In this case, petitioners have a case that there was a process of selection; in that, 79 persons had applied, their suitability was evaluated on the basis of evaluation of the ACRs, therefore, there was a selection process. We have noticed the order of posting. The order does not refer to any appointment as such; it simply says that the petitioners are posted on deputation. We notice, on the other hand in the decision of the Hon’ble Apex Court chiefly relied on by the learned Senior Counsel Sri Manoj Tewari, it was a case, where there was an advertisement, a selection process, recommendation by the Union Public Service Commission and finally culminating in an order of appointment in the name of the President. 12. In the case of Ashok Kumar Ratilal Patel vs. Union of India and another, reported in (2012) 7 SCC 757 , appellant was working on appointment as Director, Computer Department in the North Gujarat University in a scale of pay and there was an advertisement for appointment on the post of Director by the 2nd respondent therein (AICTE). The appellant therein applied showing his qualifications. The 2nd respondent, in fact, made an offer of appointment and the appellant informed his willingness to join as directed by the AICTE. The University was also requested to relieve him. The University, which was the employer, also informed the 2nd respondent of the approval of deputation given by the Executive Council of the University. It is, thereafter, that the 2nd respondent went back on the offer made. It is in the said context that the Hon’ble Apex Court proceeded to observe as follows: “13. Ordinarily transfers on deputations are made as against equivalent post from one cadre to another, one department to another, one organisation to another, or one Government to another; in such case a deputationist has no legal right in the post. Such deputationist has no right to be absorbed in the post to which he is deputed. Ordinarily transfers on deputations are made as against equivalent post from one cadre to another, one department to another, one organisation to another, or one Government to another; in such case a deputationist has no legal right in the post. Such deputationist has no right to be absorbed in the post to which he is deputed. In such case, deputation does not result into recruitment, as no recruitment in its true import and significance takes place as the person continues to be a member of the parent service.” 13. Thereafter, the Hon’ble Apex Court proceeded to hold that the said principle, however, is not applicable in the case of recruitment on deputation and held as follows: “14. However, the aforesaid principle cannot be made applicable in the matter of appointment (recruitment) on deputation. In such case, for appointment on deputation in the services of the State or organisation or State within the meaning of Article 12 of the Constitution of India, the provisions of Article 14 and Article 16 are to be followed. No person can be discriminated nor is it open to the appointing authority to act arbitrarily or to pass any order in violation of Article 14 of the Constitution of India. A person who applies for appointment on deputation has an indefeasible right to be treated fairly and equally and once such person is selected and offered with the letter of appointment on deputation, the same cannot be cancelled except on the ground of non-suitability or unsatisfactory work.” “15. The present case is not a case of transfer on deputation. It is a case of appointment on deputation for which advertisement was issued and after due selection, the offer of appointment was issued in favour of the appellant. In such circumstances, it was not open for the respondent to argue that the appellant has no right to claim deputation and the respondent cannot refuse to accept the joining of most eligible selected candidate except on ground of unsuitability or unsatisfactory performance.” “17. Going by the principles as referred to above, we are constrained to state that the High Court failed to appreciate the difference between “transfer on deputation” and “appointment on deputation” and erred in holding that the appellant has no right to claim entitlement to the post of Director. Going by the principles as referred to above, we are constrained to state that the High Court failed to appreciate the difference between “transfer on deputation” and “appointment on deputation” and erred in holding that the appellant has no right to claim entitlement to the post of Director. As the appellant was selected after due selection and was offered appointment on deputation, and, in absence of any valid ground shown by the respondents, we hold that the appellant has a right to join the post and the respondents were bound to accept his joining.” 14. Therefore, we may notice that the facts of the two cases would appear to clearly suggest that they were cases, which were not dealing with orders of deputation as is commonly understood, i.e. deputation by transfer and they were clearly cases of recruitment by way of deputation, after undergoing the process of selection. We do not think that the said principle can be invoked by the petitioners. We have already noticed the order of the Chief Engineer, Level II, by which the petitioners were posted on deputation on the post of Assistant Engineer. No doubt, it is mentioned that the aforesaid deputation is for a period of three years and it can be cut short undoubtedly if a regular person is appointed before the said period, but there is no serious dispute raised by the learned Senior Counsel that if it is a deputation by transfer, the deputationist cannot have a right to resist being repatriated. There, however, he would submit that even there, the deputationist has a right to be treated fairly. In this regard, he drew our attention to the judgment of the Hon’ble Apex Court in the case of Union of India and another vs. V. Ramakrishan and others reported in (2005) 8 SCC 394 . There, the Hon’ble Apex Court held as follows: “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 bar there to 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. However, there is no bar there to 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.” 15. In this case, we may at once notice that there is no allegation of mala-fides we are called upon to deal with. In other words, we must proceed on the basis that it was a bona fide act on the part of the Government in the absence of any allegations even. Therefore, it was an exercise of the executive power by the State to repatriate. The reason given is shortage of officers. Though we notice that there are more persons than sanctioned strength are working, we also notice that only 646 are regular appointees; there are many persons working on deputation; many are ad hoc appointees; some are working on the strength of Court orders and a large chunk of them are working on contractual basis. Petitioners are regular appointees. They are being repatriated when they have no right as we have already ruled that it is not an appointment by deputation. They cannot in our view, in the facts of this case, seek protection from being repatriated. It is not the function of the Court to run the Government. It is the Government Authorities, who are charged with such function to decide what is in the best interests of the administration. Interference of the Court is premised on the foundation of illegality or arbitrariness or mala-fides in state action. 16. The fact that Sri Pooran Singh Phartyal is allowed to continue by itself may not justify our interference. In first place, according to the learned Standing Counsel, he was not sent on deputation. We have already noticed the contents of Paragraph 9 of the affidavit. 16. The fact that Sri Pooran Singh Phartyal is allowed to continue by itself may not justify our interference. In first place, according to the learned Standing Counsel, he was not sent on deputation. We have already noticed the contents of Paragraph 9 of the affidavit. Apparently, according to the learned Standing Counsel, there are some persons also required for functioning of PMGSY. Sri Pooran Singh Phartyal has been shown as senior to the petitioners. Therefore, if they have no right not to be called back and if they are repatriated, we would think that it may be a weak argument to point out the continued presence of Sri Pooran Singh Phartyal in PMGSY. In fact, it is not a case of deputation also. 17. The continued existence of contractual appointees, and not filling up posts in regular manner, does not conduce to public welfare particularly in a department like the Public Works Department. The posts involve taking of very important decisions and implementing them with the attendant financial rectitude is of the highest importance. Therefore, in the facts and circumstances of this case, we are of the view that the petitioners have not made out a case for interference. 18. Learned Standing Counsel would, in fact, point out in this case that actually, there is no scope of deputation of the petitioners as there was no sanctioned post. Moreover, it is also pointed out that the petitioners were drawing the same salary as they were drawing in the parent Department. 19. We are not impressed by the argument of the learned Senior Counsel for the petitioner that it is for the borrowing Authority to have raised an objection on the score that the post of Assistant Engineer, being a higher post than the post he was occupying, petitioners be not allowed to continue. We notice that this is a case, where both the borrowing Authority and the lending Authority are under the same Government and they are actually two different Departments. In such circumstances, we find no reason to interfere. 20. Learned Senior Counsel would submit that even though there was an interim order was passed, in violation of the order, petitioner was relieved, which is of course disputed by the Standing Counsel, who would submit that he was relieved on an earlier date. Learned Senior Counsel for the petitioner apprehends that there would be break in service. 20. Learned Senior Counsel would submit that even though there was an interim order was passed, in violation of the order, petitioner was relieved, which is of course disputed by the Standing Counsel, who would submit that he was relieved on an earlier date. Learned Senior Counsel for the petitioner apprehends that there would be break in service. In the circumstances of the case, we would think that we direct that the Department will not treat the period, the petitioner was not able to join, as break in service and the petitioner will be allowed to join, and the period will be considered for regularization on the basis of leave available. As far as the other petitioner is concerned, it is submitted that he has already joined on being repatriated. 21. Subject to the above, the writ petitions will stand dismissed. No order as to costs. 22. All the pending applications stand disposed of.