Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 2168 (GUJ)

Rajendra Vashishtha Bhatt v. State of Gujarat

2016-11-11

S.G.SHAH

body2016
JUDGMENT : S.G. Shah, J. Heard learned advocate Mr. A.D. Oza for the petitioner and learned AGP Mr. Krutik Parikh for the respondent Nos. 1 and 2 and learned advocate Mr. P.A. Jadeja for respondents No. 3 and 4. Perused the record. 2. The petitioner has been appointed as Demonstrator on 19.1.1982 with respondent No. 3 - College after following due process of law. From 1.10.1991, petitioner was given senior scale after he was appointed as Lecturer on 1.10.1983. It is not disputed that respondent No.3 - College is managed by respondent No.4 Society and is grant-in-aid College. It is also undisputed fact that the petitioner has chosen the option of pension at the relevant point of time and was covered by General Provident Fund (GPF) and such GPF account has been opened wherein contribution of both the petitioner and the employer has been credited from the date of initial appointment. 3. The petitioner was appointed by way of deputation as Assistant Professor in the Post Graduate Department of respondent No.3 - College w.e.f. 1.7.1998 and he worked there till December, 2010. On 1.1.2011, petitioner has been repatriated and reverted back to his original post as Assistant Professor (UG) of respondent No.3 - College and since then, he is working on the said post. It is not disputed fact that so far as Post-Graduation Department of respondent No.3 - College is concerned, it is aided by All India Committee for Technical Education (AICTE) and accordingly, petitioner was paid salary from such fund. However, during the period of deputation, amount of PF has been kept by respondent No.4 - Society and not deposited in provident fund account of the petitioner, which was opened with the Provident Fund Department of respondent No.1. 4. It is the case of the petitioner that only because of his deputation with Post-Graduate Department for certain period, when he was repatriated to his parent department, unfortunately, respondents have failed to consider him on continuous service and treated the service of the petitioner as a fresh appointment. It is further submitted that by all means, when petitioner has been repatriated to his parent department, the respondent No.3 - College has to treat his service as continuous one with pay protection and also for restitution of GPF account, but even after repeated representations, the respondents have failed to do so. 5. It is further submitted that by all means, when petitioner has been repatriated to his parent department, the respondent No.3 - College has to treat his service as continuous one with pay protection and also for restitution of GPF account, but even after repeated representations, the respondents have failed to do so. 5. Ultimately, by communication dated 2.6.2012, the respondent No.1 has rejected the request to regularise the service of the petitioner, which was rendered in Post-Graduation Department of the same College being respondent No.3 from 1.7.1998 to 31.12.2010 for counting the said period for all purposes viz. the continuous service in the Post-Graduate Department, leave benefits and pension etc., including benefits of old pension scheme so also restitution of GPF account. It is further submitted that thereafter, petitioner has sent representations on 18.6.2012, 29.6.2012 and 3.9.2012, but all in vain. Thereafter, on 24.9.2012, the respondent No.3 - College has provided some details as asked for, but confirmed that the College has deducted the amount of provident fund regularly and the same amount is lying with the College. Thereby, it seems that there is material irregularity committed by the respondents in dealing with the payment of salary and contributing the amount towards the share of the employer so far as provident fund is concerned during the period for which petitioner was on deputation. Petitioner has further contented that though the petitioner was denied all such benefits, and though petitioner was not at fault on any count, the respondents have denied such benefits to him while extending similar benefits to similarly situated persons, namely, Dr. G.K. Jani and Mr. Urvish Pathak. Therefore, petitioner has preferred this petition for extending similar benefit to him and to declare the action of respondent No.1 as unjust, illegal, discriminatory, arbitrary and against the established principles of law. 6. In above background, the petitioner has prayed for appropriate writ, order or direction to quash and set-aside the order dated 2.6.2012 passed by respondent No.1 with further direction to the respondents to regularise the services rendered by the petitioner on deputation in the Post-Graduation Department of respondent No.3, which is a grant-in aid institution and to treat the period of his services in deputation i.e. 1.7.1998 to 31.12.2010 as continuous services for all the purposes, including the pension as well as pensionary benefits and also to protect the pay as well as the pay-scale. 7. 7. The petitioner has also prayed for appropriate writ, order or direction to pay the unpaid salary from 1.1.2011 with 18% interest and to continue to pay regular salary by protecting the pay as well as pay-scale. The petitioner has also prayed to declare that the action on the part of respondents is bad in law, unjust, improper, illegal, discriminatory and arbitrary in not giving similar treatment to the similarly situated persons, details of which is discussed herein above. 8. The respondent No.2 has filed affidavit-in-reply for respondents No.1 and 2 contending that the State Government is not providing any grant for Post-Graduate programme in Pharmacy College at respondent No.3 and therefore, when petitioner has opted the pension scheme at relevant time and thereby, when he is not covered under the General Provident Fund Scheme and was getting all other benefits like similarly placed employees of grant-in-aid institute under the State Government, he is not entitled to reliefs as prayed for. It is further submitted that the respondent No.4 and governing body of respondent No.3 has promoted the petitioner and other Lecturers to the cadre of Assistant Professor - Class-I post at PG level Pharmacy discipline without getting approval of the State Education Department, though such approval is mandatory. It is further submitted that initially the petitioner was deputed for one year by the Trust and later on deputation was continued. It is also submitted by respondent Nos.1 and 2 that since petitioner has agreed by his letter dated 25.8.2009 that if he is reverted back to Under Graduate Program, he does not have any objection, even if he has to suffer financially or otherwise and that he will not file any legal suit/claim in case of grievance. It is also submitted that pursuant to such agreement, respondent No.2 has vide its letter dated 22.12.2010, permitted to reinstate the petitioner as Lecturer in UG level with the condition that in future he shall not claim any financial benefit in this regard. Therefore, they have appointed the petitioner in New Pension Scheme from 1.1.2011. 9. Before discussing the factual details any further, it would be appropriate to recollect the settled legal position so far as deputation is concerned. Therefore, they have appointed the petitioner in New Pension Scheme from 1.1.2011. 9. Before discussing the factual details any further, it would be appropriate to recollect the settled legal position so far as deputation is concerned. It is settled legal position that deputation is nothing but rendering services with borrowing department as a rented services by the parent department and thereby, not only the lien, but the post and several other rights of the employee with the parent department, remains unaltered, unchanged and protected by all means irrespective of anything else. At the same time, it is also settled legal position that if such deputationist is getting any better benefits in the post of deputation in the borrowing department, then on the date of repatriation, he cannot claim equality of benefits received by him in borrowed department, from the parent department and thereby, if at all he is placed on a better position in borrowed department, including better pay scale or otherwise, when he is repatriated to the parent department, he will be placed in the scale of the parent department. However, it does not mean that when person repatriates to the parent department, he is to be treated as a fresh appointee and thereby, he cannot be placed in to the lowest scale of the same post in parent department. It is undisputed fact that petitioner has served with the parent department from 19.1.1982 till June, 1998 i.e. almost for 16 years and therefore, when he was repatriated in the year 2011, after serving on deputation between July 1998 to December, 2010, he cannot be paid the salary which he was getting in the year 1982, as it is being done in the present case. On the contrary, in fact though petitioner has got salary and other service benefits from the borrowing department, the petitioner is entitled to fixation of his pay-scale on repatriation i.e. 1.1.2011, as if he has served continuously till January, 2010 in the parent department. Thereby, even regular increments are to be released between the period from July, 1998 till December, 2010 in favour of the petitioner. Even at the cost of repetition, let it be made more clear that when petitioner is repatriated, he is entitled to the salary, which he was otherwise entitled to as if he was not on deputation at all. 10. Even at the cost of repetition, let it be made more clear that when petitioner is repatriated, he is entitled to the salary, which he was otherwise entitled to as if he was not on deputation at all. 10. So far as extending the benefit of deputation is concerned, when the issue has been raised before the Hon'ble Supreme Court of India in different matters, Hon'ble Supreme Court of India has repeatedly and recently in the case of Union of India v. Bhanwar Lal Mundan reported in (2013)12 SCC 433 while relying upon the case of D.M Bharati v. L.M. Sud & Ors. reported in AIR 1991 SC 940 has observed and held that the repatriation has to be to the original post and benefit of promotion in the department to which an employee is deputed is of no consequence subject to his entitlement of status otherwise available in the parent department. Thereby, whatever is earned by the deputanist in the borrowing department is though to be ignored, he is certainly entitled to status otherwise available in the parent department on the date of repatriation. 11. Whereas in the case of State of Punjab v. Inder Singh & Ors. reported in AIR 1998 SC 7 , Hon'ble the Supreme Court of India has elaborately adverted to the concept of deputation and right of deputationist and opined as under:- "Concept of "deputation" is well understood in service law and has a recognised meaning. 'Deputation' has a different connotation in service law and the dictionary meaning of the word 'deputation' is of no help. In simple words 'deputation' means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per Recruitment Rules." 12. There are several other reported cases. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per Recruitment Rules." 12. There are several other reported cases. However, there is no need to burden this judgment by referring to all such cases except to recollect that service jurisprudence is quite clear that when person is sent on deputation, he is not able to serve with the borrowing department unless he has a permission for such deputation by the parent department and unless borrowing department has selected him for deputation. Therefore, contention of the respondent that deputation of the petitioner was without their approval, is ill-founded. Even factually such contention is negatived when petitioner has produced a copy of roster at Annexure-D, which confirms that it is endorsed by the officers of the respondents and thereby, it cannot be said that the respondents are not aware about the deputation or that deputation was without their approval. With reference to such plea by the respondents, the petitioner has in his affidavit-in-rejoinder, categorically contended that he was deputed/posted as Asst. Professor in P.G. Department of respondent No.3 - College w.e.f. 1.7.1998 after being interviewed by the Committee, wherein representatives of respondent No.2 - State authority and Gujarat University were present. It is further stated that such posting by way of deputation was with pay protection and salary was paid looking to the total length of service of the petitioner. It is also stated that when he was posted as such, no objection was raised by the respondents and on the contrary pay protection was granted. 13. Therefore, the basic principle applicable to the present case is to the effect that when the petitioner has been permitted to serve on the post of deputation and thereafter, when he is repatriated, though he is not entitled to any additional benefit that might have been availed by him on the post with borrowing department, he is certainly entitled to all the benefits in the parent department so as to occupy the same position, including the promotion and increment, if any which is otherwise earned by him in his parent department as per the Recruitment Rules as if he was in services with the parent department during the period of deputation. Thereby, if by passage of time, deputationist is entitled to promotion and/or increment in pay-scale during the period of his deputation, then, in fact the service record of the petitioner is to be endorsed accordingly and periodically by the parent department and thereby, when he returns back to the parent department, he is entitled to all such benefits. The principle is quite clear that deputationist is to be treated on service of the parent department because in fact he is renting the service to other department because of the requirement and consents of the two departments and not because of his own choice. In the present case, the parent and borrowing department are one and the same i.e. the same College where though the petitioner was initially appointed for Under Graduate (U.G.) Courses, because of non-availability of proper and qualified Lecturers for Post Graduate (P.G.) Department, his services were rented by the U.G. Department on the request of the P.G. Department to be utilised to teach the students of the P.G. students and therefore, now, Department cannot say that he may be because of change in the pension scheme in between, now petition is to be placed in a basic or minimum scale. 14. The second issue raised by the respondent is regarding agreement by the petitioner that he will not claim any benefit, if he is repatriated. Less said is better for all such plea and documents on record, for the simple reason that all such disclosure even if it is signed by the employee, practically, it is unconstitutional, since no authority can take anything in writing from anybody so as to restrict or restrain his legitimate rights, which is otherwise available to him in accordance with law or Rules. Irrespective of such basic principle, even if we consider the factual details so far as so-called agreement dated 25.8.2009 signed by the petitioner is concerned, the perusal makes it clear that though such document is named or shown as an undertaking and though it is allegedly in the form of an agreement, it is not an agreement because it is not signed by both the parties to fulfil any condition on either side and it is not an undertaking because though word 'the undertaking' is mentioned on the top and at the end of such document, practically, what is disclosed by writing and signing by the petitioner is limited only to the effect that petitioner has no objection if he is repatriated and reverted to the U.G. Department from the P.G. Department. However, when pursuant to the decision of the Hon'ble Supreme Court of India, referred herein above, the petitioner is not entitled to additional benefits, which otherwise he is entitled in P.G. Department and thereby, when petitioner has confirmed that by such repatriation, if at all there is any immediate financial loss to him, he will not raise any issue, it is interpreted by the respondent as reducing his pay-scale to the lowest or minimum. Therefore, though such undertaking is termed as an agreement and admitted by the petitioner and relied upon by the respondents as an undertaking by the petitioner to accept the repatriation on lower scale, in fact, it cannot be treated as an undertaking to accept the original post in a lower cadre or lower scale in any manner whatsoever. On the contrary, parent department should behave and act like a guardian/parent so as to ensure protection of rights of its employees. 15. At this stage it would be relevant to refer the decision of Hon'ble the Supreme Court of India in the case of Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma & Ors. reported in AIR 1998 SC 2909 wherein with reference to the service conditions Hon'ble the Supreme Court of India has held that - "Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law". 16. 16. So far as the third contention regarding grant-in-aid and selection of new pension scheme is concerned, the discussion upto the point makes it clear that when petitioner's service is to be treated as continuous service with parent department, there is no question of change in service condition on the date of repatriation, Hon'ble the Supreme Court has specifically confirmed in the above-referred judgments that after expiry of the period of deputation, the employee has to come back to his parent department to occupy the same position as if he was not on deputation. 17. So far as rights and benefit in details are concerned, at this stage, it would not be necessary for this Court to enter into minute details except to confirm that petitioner is entitled to all relevant benefits such as protection of pay-scale and protection of position so also payment of P.F., with contribution of the employer and arrears of unpaid amount with interest. 18. It cannot be ignored that so far as similarly situated persons, namely, Dr. G.K. Jani and Urvish Pathak are concerned, the department has extended all the benefits to them. Judgments/orders in favour of both such persons are on record at Annexure-K, dated 27.6.2006 and 4.6.1999 respectively. 19. The petitioner is also relying upon the decision of Co-ordinate Bench dated 30.6.2014 in Special Civil Application No. 16629 of 2012 in the case of Ishwarsinh Shivsinh Rathod v. State of Gujarat wherein also petitioner was serving in the same department and same College and thereby, similarly situated with the present petitioner. In such judgment, the Court has quoted the relevant G.R. of the Central Government for allowing the petition, directing the respondent to consider the case of petitioner before it on the same lines of Mr. Pathak and Mr. Jani as aforesaid, and granted the retiral benefits and directed to grant the pensionary benefits after clubbing the post and considering the services rendered by the petitioner in U.G. Courses as well as P.G. Courses. The only difference is with reference to the length of service i.e. in the cited case, the petitioner has retired, and in the present case, the petitioner is in service and therefore, the respondents have to fix the pay-scale as discussed herein above and to pay regular pay herein after and to release the arrears. 20. The only difference is with reference to the length of service i.e. in the cited case, the petitioner has retired, and in the present case, the petitioner is in service and therefore, the respondents have to fix the pay-scale as discussed herein above and to pay regular pay herein after and to release the arrears. 20. It would be relevant to refer following decisions:- a. State of Mysore v. M.H. Bellary, AIR 1965 SC 868 ; b. Rajasthan State Electricity Board v. Mohan Lal, AIR 1967 SC 1857 ; c. State of Mysore v. P.N. Nanjundiah, AIR 1968 SC 1113 ; d. R.L. Gupta v. Union of India, AIR 1989 SC 968; e. K.Gopinathan v. Union of India, (1992)4 SCC 701 ; f. Paramjit Singh v. Union Territory of Chandigarh, AIR 1994 SC 2737 ; g. Narayan Yeshwant Gore v. Union of India, (1995)4 SCC 470 ; h. Gangadhar Kar v. Durgacharan Panda and Ors., 1995 Supp.(3) SCC 133; i. Balkrishna Pandey v. State of Bihar & Ors., AIR 1996 SC 888 ; j. Satya Narayan Pareek v. State of Rajasthan & Anr., AIR 1997 SC 256 . The sum and substance of all above decisions is to the effect that so long the service of the employee in the new department is satisfactory, and he is obtaining the increments and promotions in that department, it stands to reason that the satisfactory service and the manner of its discharge in the post he actually fills should be deemed to be rendered in the parent department also, so as to entitle him for promotion in parent department, which are open on seniority-cum-merit basis. Thereby, a person on deputation to another department is entitled to be considered for promotion in parent department. It is well-known that many officers have to be sent on deputation in the public interest to other department. It is well-settled that many officers have to be sent on deputation in the public interest to other departments in order to meet the exigencies of public service and that before sending them on deputation their consent is invariably taken. Merely because they have given their consent to go on deputation they could not be allowed to suffer unless there is a specific rule to the contrary or other good reason for it. Merely because they have given their consent to go on deputation they could not be allowed to suffer unless there is a specific rule to the contrary or other good reason for it. An officer on deputation is entitled to get increments in the pay scale attached to the post in their parent department and also to get promotion when it is based on seniority-cum-merit as and when his junior in the parent department is promoted by the application of the 'next below rule'. On repatriation from deputation, basic pay cannot be refused and seniority is to be continued in parent department, thereby, deputationist should be deemed to have been confirmed the promotion from the date his juniors were promoted because seniority must be determined on the basis as if he had continued in his parent department, retaining his original seniority. Thus, the basic principle is quite clear that deputationist must be deemed to have continued to hold his lien in the parent department and he will be entitled to all the rights and to further promotion, if any, in that department in accordance with rules. 21. The petitioner has produced relevant documents on record at Annexures-A to L, which has been taken care of. It is pertinent to note that the respondent No.4 has already conveyed to respondent No.2 by its letter dated 6.8.2010 that post of the petitioner in U.G. Department is kept vacant and that the selection is made by Selection Committee in presence of representatives of respondent No.2. At Annexure-E, there is letter dated 27.2.2002 addressed by the respondent No.3 to respondent No.2 wherein also it is categorically stated that the deputation of the petitioner is as approved by the respondent No.2 and it is made clear that as and when regular Lecturers are available in P.G. Department, their services will be repatriated. By such communication, respondents No.3 and 4 have disclosed the relevant P.F. Account number of the petitioner to the respondent No.2 for doing the needful, but it seems that respondent No.2 has failed to take appropriate steps. By such communication, respondents No.3 and 4 have disclosed the relevant P.F. Account number of the petitioner to the respondent No.2 for doing the needful, but it seems that respondent No.2 has failed to take appropriate steps. It cannot be ignored that by order dated 11.4.2011, petitioner was extended the benefit of 6th Pay Commission while he was serving in P.G. Department and therefore, they are entitled to similar benefit in parent department as if they are in service, considering his service as continuous service in parent department and thereby, respondent has to release relevant increments so also benefit of Pay Commission at par with other similarly situated employees in the parent department. 22. In view of above facts and circumstances, the petition needs to be allowed as prayed for with a direction to the respondents to fix the pay-scale of the petitioner as if he is in continuous service right from 19.1.1982 in the parent department itself and thereby to release all increments and all other benefits, including promotion, if any so also benefits of all the Pay-Commissions that may be applicable for the period in question. So far as the general provident fund is concerned, if contribution of the petitioner is not deducted from his salary or if not deposited in his account, then, the respondents have to manage to deposit such amount with their contribution with interest applicable as per G.P.F. Rules for the concerned period in his account without fail within four months thereafter. So far as regular salary is concerned, considering the difference of payscale that has been fixed as per the above direction and the pay-scale that is granted on the date of repatriation, there would be considerable arrears. Therefore, respondents are directed to pay such arrears also within four months from today with 6% interest thereof on such arrears. 23. The petition stands allowed to the aforesaid extent. Rule is made absolute.