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Allahabad High Court · body

2018 DIGILAW 1765 (ALL)

Vinod Kumar Singh v. State of U. P.

2018-08-09

D.K.UPADHYAY, RANG NATH PANDEY

body2018
JUDGMENT : 1. Heard Shri. Amit Dwivedi and Sri. Umesh Chandra Tripathi, learned counsel appearing for the petitioners and learned Additional Chief Standing Counsel representing the State-respondents. 2. The petitioners, who were appointed by way of deputation in a scheme sponsored by the Central Government which is being implemented by the State Government, known as "Support to State Extension Programmes for Extension Reforms", are aggrieved by an order dated 27.06.2018, whereby they have been repatriated to their parent department. The petitioner No. 1 was appointed as Deputy Project Director in the said scheme on 01.07.2013, and petitioner No. 2 was also appointed as Deputy Project Director on 11.06.2013 on deputation. The parent department of the petitioners is the Basic Education Department. 3. Learned Counsel for the petitioner has argued that the impugned order of repatriation runs contrary to the provisions of the Scheme, the Government order dated 02.12.2010, the advertisement dated 04.10.2011 as also the terms of appointment of the petitioners, whereby they were appointed on deputation in the Scheme. 4. Opposing the prayer made by learned counsel for the petitioners, learned Additional Chief Standing Counsel has stated that the impugned order does not suffer from any illegality or irregularity for the reason that in terms of the clear stipulation made in the advertisement pursuant to which petitioners were appointed on deputation in the Scheme, the term of appointment on deputation of the petitioners is to be governed as per the determination made by the State Government in this regard and since the maximum period of deputation as per the Government Order dated 26.05.2003 is five years, the petitioners have rightly been repatriated to their parent department. His further submission is that the repatriation of the petitioners to the parent department has become inevitable for the reason that the work of the parent department has been suffering on account of non-availability of adequate manpower. 5. The question which falls for consideration in this matter is as to whether appointment of the petitioners on deputation can be permitted to be continued till the subsistence of the scheme, as has been argued by learned counsel for the petitioners or it can be curtailed in terms of the Government Order dated 26.05.2003. 6. 5. The question which falls for consideration in this matter is as to whether appointment of the petitioners on deputation can be permitted to be continued till the subsistence of the scheme, as has been argued by learned counsel for the petitioners or it can be curtailed in terms of the Government Order dated 26.05.2003. 6. The scheme in which the petitioners were appointed by way of deputation is sponsored by the Central Government and is being implemented by the State Government as per the work Plan. Under the said scheme, Agriculture Technology Management Agency has been created for appointment against two posts of Deputy Project Director in the said Agency, an advertisement was issued on 04.10.2011 which has been annexed as annexure No. 3 to the writ petition. The said advertisement was issued pursuant to the Government Order dated 02.12.2010. The petitioners made application pursuant to the aforesaid advertisement dated 04.10.2011 and after being selected they were appointed on deputation on the post of Deputy Project Director in the said Agency. The appointment order of the petitioners is also on record as annexure No. 4 to the writ petition. 7. For arriving at a correct conclusion in relation to the issue involved in the present petition, we need to examine the terms of the Government Order dated 02.12.2010, the terms of the advertisement dated 04.10.2011 as also the terms of the appointment order of the petitioners. The Government Order dated 02.12.2010 accords permission to make appointment on certain posts by way of deputation/secondment. Clause 3 of the said Government order provides that the tenure of the employees so appointed, their pay-scale, the minimum eligibility, experience and age etc. shall be determined according the State Extension work plan approved for the year 2010-11 under the Scheme of the Central Government. The learned counsel for the petitioners has stated that, thus, the Government Order dated 02.12.2010 provided that in term of the persons appointed on deputation shall be determined in accordance with the scheme. He has also drawn attention of the Court to the page 87 of the writ petition, which is a part of the scheme and according to note-2 appended therewith, the posts were to be filled by deputation/secondment/appointment/selection from among eligible candidates in the Government department/organization or in the private sector for the "Scheme Period" or such other mode as the State Government may deem appropriate. 8. 8. The submission, thus, is that in terms of the Government Order dated 02.12.2010, the term of deputation of the petitioners in the scheme would be till subsistence of the Scheme and any curtailment of the said term before culmination of the scheme would, thus, be against the Government Order dated 02.12.2010 and the scheme itself. 9. We may refer to the advertisement pursuant to which the petitioners were selected and appointed on deputation. Clause 2 of the said advertisement dated 04.10.2011 makes a clear stipulation that deputation/secondment/appointment in the scheme shall be made subject to the relevant Government Orders, Rules and Conditions. Clause 2 of the advertisement dated 04.10.2011 is extracted herein below:- "2- (Deputation/Secondment Appointment) ‘kklu ds lqlaxr ‘kkldh; fu;eksa vkns’kksa ,oa ‘krksZ ds v/khu dh tk;sxhA^^ 10. The appointment order of the petitioners does not make any mention about the term of the deputation, however it says that work of every Deputy Project Director appointed on deputation shall be assessed every year and in case work of any particular Deputy Project Director is not found suitable, he can be repatriated in the parent department. The appointment order, as observed above, is thus silent as to the term of the petitioners' appointment on deputation in the Agency. It is not a case where petitioners are being repatriated on account of their work having not been found satisfactory; rather they have been repatriated keeping in view the provisions contained in the Government Order dated 26.05.2003, which prescribes that any Government servant shall be posted on deputation anywhere for a maximum period of five years. 11. The petitioners were initially appointed in the month of June, 2013 and July, 2013 and as such they have completed the maximum period of five years on deputation in terms of the Government Order dated 26.05.2003, thus they have rendered themselves liable to be repatriated to their parent department of Basic Education in terms of Government Order dated 26.5.2003. 12. It is noticeable that note-2 of the scheme (at page 87 of the writ petition), if read in its correct perspective, makes it clear that scheme gives the State Government ample space to chose the method of appointment which may be deputation/secondment/appointment or selection from amongst the eligible candidates in the Government departments or even in the private sector for the scheme period or such other mode as the State Government may deem appropriate. The occurrence of the words "Such other mode as the State Government may deem appropriate" thus gives ample elbow room to the State Government to determine the term of appointment with the scheme. The Government Order dated 02.12.2010 is, thus, to be construed accordingly. It is in this background that while issuing the advertisement on 04.10.2011, an unambiguous and clear stipulation was made therein that deputation shall be subject to the relevant Government Rules, Orders or Conditions. The general conditions of the deputation in respect of the Government servants are governed by the Government Orders which have been issued from time-to-time including the Government Order dated 26.05.2003., clause 3 whereof provides as under:- ^^05 o”kZ ds mijkUr fdlh Hkh fLFkfr esa izfrfu;qfDr vof/k dks vkxs uk c<+k;k tk; rFkk mDr vof/k iw.kZ djus okys ljdkjh lsodksa dks muds iSr`d foHkkxksa dks okil dj fn;k tk;A^^ 13. Thus if the stipulations made in the advertisement are read in conjunction with the Government Order dated 02.12.2010 (page 87 of the writ petition), the conclusion is that the maximum period for which the petitioners were entitled to continue in the Agency under the scheme is five years and thereafter, they are to be repatriated. It is also observed that there exists a rationale for issuing the Government Order dated 26.05.2003 permitting the maximum deputation period of five years and the rationale is that such employees who are appointed on deputation still maintain their lien in their parent department and their services may be required in the exigencies of the administration and public interest in the parent department. 14. For the aforesaid reason, the submission made by learned Counsel for the petitioner does not convince us to grant the prayers made in this writ petition. 15. At this juncture, learned Counsel for the petitioners has relied upon a decision of Hon'ble Supreme Court rendered in the case of Union of India and another v. S.N. Maity and another, (2015) 4 SCC 164 : ( AIR 2015 SC 1008 ), whereby a distinction has been drawn between "deputation by way of transfer" and "appointment by way of deputation". There is no ambiguity that these two terms denote different situations. There is no ambiguity that these two terms denote different situations. In the case of deputation by way of transfer, the employee concerned, on his consent and with the consent of the borrowing and parent department, is sent on deputation on certain conditions to be determined by the borrowing and the parent departments, of course, with the consent of the employee. However, such deputation by way of transfer does not precede any selection or advertisement etc. We have no doubt in our mind that the instant case is a case of "appointment by way of deputation" for the reason that petitioners' appointment by deputation in the Agency under the aforementioned scheme was based on a selection pursuant to the advertisement, however in view of the clear stipulation made in the advertisement dated 04.10.2011 that the deputation of the petitioners shall be subject to the extant rules or orders of the State Government, we have no doubt in our mind that the term of deputation of the petitioners in this case shall be governed by the prescriptions available in the Government Order dated 26.05.2003. 16. For the reasons disclosed above, we find no merit in this case. 17. The writ petition is accordingly dismissed.