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2019 DIGILAW 454 (GUJ)

Bhalchandra Sitaram Joshi v. State of Gujarat

2019-04-22

A.S.SUPEHIA

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JUDGMENT : A.S. SUPEHIA 1. The present writ petition has been filed seeking following prayers: “(A) That Your Lordship be pleased to issue an order, direction and/or writ in the nature of certiorari or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 1st January, 2000 marked Annexure-B in so far as the said order reduces the basic salary from Rs.6200 to Rs.4800, as being illegal, arbitrary and against the Rules; (B) That Your Lordship be further pleased to quash and set aside the order dated 11th June, 2004, transferring the petitioner back to the parent department, being arbitrary and without any cause or reason; (C) That Your Lordship be pleased to direct the respondent to grant the pensionary benefit and other retiral dues as if the basic salary of the petitioner was Rs.6200 on the date of retirement i.e. 30th June, 2004.” 2. The petitioner has retired from the service in the police department as Assistant Sub Inspector on 30.06.2004. He was sent on deputation in Intelligence Bureau Department (I.B.), which carries the pay-scale of Rs.5500-175-9000. The petitioner was serving as Assistant Sub Inspector (Armed Head Constable), who was placed in the pay-scale of Rs.4000- 100-6000. By an order dated 01.01.2000, the respondent authorities passed an order posting the petitioner in the I.B. Department with effect from 01.01.2000. Initially the petitioner was sent on deputation for three years and thereafter, was repatriated on 11.06.2004 just before 19 days from his date of retirement. The petitioner resumed duty at his parent department i.e. the office of Police Commissioner on 12.06.2004 and retired on superannuation on 30.06.2004. 3. Learned advocate Mr. T.R. Mishra appearing for the petitioner has vehemently submitted that the respondents could not have repatriated the petitioner just before 19 days of his retirement. He has submitted that the petitioner, after his retirement, joined his parent department and his salary was revised in the pay-scale of Rs.4000-6000 and accordingly, also the pension and retiral benefits are fixed on the reduced pay-scale. 4. Learned advocate Mr. Mishra has submitted that the pension of the petitioner is required to be fixed on the pay-scale of Rs.5500-9000. He has placed reliance on the resolution dated 29.06.2002 wherein the services of such personnel, who are appointed on deputation in the I.B. Department, are extended for a period of five years. 4. Learned advocate Mr. Mishra has submitted that the pension of the petitioner is required to be fixed on the pay-scale of Rs.5500-9000. He has placed reliance on the resolution dated 29.06.2002 wherein the services of such personnel, who are appointed on deputation in the I.B. Department, are extended for a period of five years. He has submitted that the persons employed on deputation in I.B. Department cannot be reverted except if they are found unfit on duty. 5. Learned advocate Mr.Mishra for the petitioner has submitted that the respondent authorities have acted contrary to their own resolution dated 29.06.2002 pursuant to the same, the service of the petitioner was extended till five years. It is further asserted by learned advocate Mr.Mishra that the other personnel, who were sent on deputation, were allowed to retire in the same department and their pension is also fixed on the pay-scale, which they received in the I.B. Department. He has placed reliance on the communication dated 07.09.2007 issued by the Additional Director General of Police, State Intelligence Bureau, in support of his submission. He has also submitted that the aforesaid order dated 07.09.2007 specifically reflects that the constables, who are at the verge of retirement cannot be repatriated to their original department since that would discourage the Police Officers in coming to the I.B. Department. 6. Learned AGP Mr.Ronak Raval appearing for the respondents has submitted that the petitioner had no right to continue in the I.B. Department since he was sent on deputation. He has placed reliance on the decision dated 18.02.2014 passed in Letters Patent Appeal No.378 of 1999 and allied matters wherein the Division Bench of this Court while considering the deputation of such police personnels, who are deputed in the I.B. Department and have challenged repatriation, had not acceded to the request of such employees. He has also placed reliance on the judgment of the Supreme Court rendered in the case of Kunal Nanda V/s. Union of India & Anr., reported in (2000) 5 SCC 362 for the proposition of law and submitted that the deputationist can also be repatriated to his parent department and there is no vested right in such a person to continue for long on deputation or getting absorption in parent department. 7. 7. Responding to the contention raised by the learned advocate Mr.Mishra for the petitioner apropos the resolution dated 29.06.2002, learned AGP has submitted that the same is general in nature and will apply to such officers, who are sent on deputation in the I.B. Department and hence, it is submitted that the procedure prescribed in the said resolution was not required to be followed in the case of the present petitioner while repatriating him. He has further submitted that the petitioner had also given an undertaking on 01.01.2000 when he was issued the appointment order stating that he will not claim any benefits during three years on deputation and as and when he is asked to report back to his parent department, he would act as per the instructions. Thus, he has submitted that the petitioner is not entitled to fixation of pension on the basis of the pay-scale, which he was drawing at the time of posting in I.B.Department. 8. In response to the aforesaid submission, learned AGP Mr.Ronak Raval has placed reliance on the judgment of the Supreme Court in the case of High Court of Punjab & Haryana & Ors. V/s. Jagdev Singh, reported in (2016) 14 SCC 267 and submitted that the petitioner is bound by his undertaking. 9. Responding the aforesaid submission advanced by learned AGP, learned advocate Mr. Mishra for the petitioner has placed reliance on the judgment of the Supreme Court in the case of State of Punjab & Anr. V/s. Dharam Pal, reported in (2017) 9 SCC 395 and has submitted that the incorporation or undertaking in the order or giving an undertaking cannot debar the petitioner to claim the benefits. He has submitted that in the usual or normal course, the petitioner would have no right on the post, however, the petitioner is reverted only 19 days before his retirement which is in violation of the procedure prescribed in the resolution dated 29.06.2002 and he was discriminated and the other persons were allowed to retire in the I.B. Department and were also paid the pension on the basis of their retirement in the I.B. Department. Thus, he has submitted that the petitioner is also entitled to fixation of the pension, which is granted to other personnel’s, who were retired while serving in the I.B. Department. 10. Thus, he has submitted that the petitioner is also entitled to fixation of the pension, which is granted to other personnel’s, who were retired while serving in the I.B. Department. 10. Learned advocate Mr.Mishra has further placed reliance on Rule 43 of the Gujarat Civil Services Rules, 2002 and submitted that as per the definition of pensionable pay, the pension of the petitioner is required to be fixed on the average of last 10 months' service. 11. I have heard learned advocates appearing for the respective parties. 12. In the instant case, the undisputed fact is that the petitioner is repatriated to the parent department under the Police Commissioner on 11.06.2004 when there were 19 days left for his retirement. The petitioner retired on 30.06.2004. The petitioner was sent on deputation vide order dated 10.12.1999 and by an order dated 01.01.2000, the petitioner was considered as deputationist in the I.B. Department with effect from 01.01.2000. As per the terms and conditions of the appointment, the petitioner was placed for three years in the I.B. Department. The condition in the appointment order states that the petitioner will not claim any right and he would be repatriated to his parent department on the ground of unsatisfactory service or for any administrative reasons. 13. The petitioner was placed in the pay-scale of Rs.5500-9000 in the I.B. Department. The Home Department of the State Government issued a resolution dated 29.06.2002 whereby it is stated that the police officers/employees, who are serving in the CID and Intelligence Bureau department, are to be continued till five years. The condition no.4 specifically stipulates that such personnel’s, who are serving in the I.B. Department can be repatriated on the ground if their services are found unsatisfactory or they are unable to perform the requisite duties, and only after such report of Director General of Police/Additional Director General of Police (Intelligence) is obtained in this regard, the aforesaid period of five years can be reduced and they can be repatriated to their original department. It is not denied by the respondent authorities that the aforesaid resolution is not applicable to the employees of the I.B. Department, who are sent on deputation. It is not denied by the respondent authorities that the aforesaid resolution is not applicable to the employees of the I.B. Department, who are sent on deputation. Para-6 of the affidavit dated 29.03.2005 filed by the respondent specifically refers to the resolution dated 29.06.2002 and it is stated that “for the appointing authority i.e. the CID (Intelligence), it is not mandatory to return the employee appointed on the basis of deputation for a period of five years and if they are found unsuitable or otherwise on administrative grounds, they can be repatriated as per the resolution dated 29.06.2002.” Thus, the applicability of the resolution dated 29.06.2002 is not denied. The petitioner was initially appointed for three years on deputation in the I.B.Department with effect from 01.01.2000 and hence, his deputation period would get over after completion of three years as per his appointment order on 01.01.2003. It appears that after issuance of the resolution dated 29.06.2002, the deputation period of the petitioner was extended to five years and the same would have come to an end on 01.01.2005. However, the petitioner was repatriated just before 19 days prior to his retirement by the impugned order dated 11.06.2004. Thus, he was not allowed to complete five years of service on deputation. Para-4 of the resolution dated 29.06.2002 prescribes that the employees, who are serving in the Intelligence Branch can only be repatriated on the ground of unsatisfactory working or if they are unable to perform a specific duties, and as per the report prepared by the Director General of Police/Additional Director General of Police (Intelligence) in this regard, the period as specified above in the resolution i.e. five years can be relaxed and they can be sent back to their parent department. This Court while hearing the present matter had repeatedly asked the learned AGP to show such report, which indicated that the service of the petitioner was unsatisfactory or he was unable to perform any duties, which were assigned to him; however, no such report is made available to this Court. 14. Thus, the petitioner could not have been repatriated on the verge of his retirement prior to 19 days, which resulted into his reduction of pension before completion of five years. 14. Thus, the petitioner could not have been repatriated on the verge of his retirement prior to 19 days, which resulted into his reduction of pension before completion of five years. Though, there cannot be any cavil on the proposition of law that an employee on deputation can be repatriated at any time since he does not have any right to continue, however in the present case the deputation and repatriation of the petitioner is governed by the Resolution date 29.06.2002, which stipulates the procedure of repatriation of the employees who are assigned to I.B department on deputation. The petitioner is repatriated to his parent department when there were 19 days left to retire and the persons, whose name reflect in the affidavit filed by the present petitioner, were continued in the I.B. Department and they have been granted pension and retrial benefits on the pay-scale, which they were drawing in the I.B. Department. The contents of the affidavit dated 20.02.2007 filed by the petitioner, incorporate names of five persons, who were allowed to retire in the I.B. Department and are granted the pension on the basis of their last pay drawn in the I.B. Department; are not denied by the respondents. Nothing is produced on record by the respondent authorities pointing out that the persons, who are named in the communication dated 05.02.2007 produced by the petitioner along with the affidavit, are not being paid the pension on the basis of their service in the I.B.Department. Thus, the petitioner cannot be discriminated by reverting him to his parent department before 19 days of his retirement. Had he been continued like other employees, he would have been paid the pension as per his last pay drawn in the I.B.Department. 15. The contentions raised by learned AGP apropos the undertaking given by the petitioner along with his appointment order will not rescue the Government in paying fixation of pension as per his last pay. The observation made by the Supreme Court in the case of Dharam Pal (supra), which reads as under: “22. In the instant case, the Rules do not prohibit grant of pay scale. The decision of the High Court granting the benefit gets support from the principles laid down in P.Grover and Hari Om Sharma. The observation made by the Supreme Court in the case of Dharam Pal (supra), which reads as under: “22. In the instant case, the Rules do not prohibit grant of pay scale. The decision of the High Court granting the benefit gets support from the principles laid down in P.Grover and Hari Om Sharma. As far as the authority in A. Francis is concerned, we would like to observe that the said case has to rest on its own facts. We may clearly state that by an incorporation in the order or merely by giving an undertaking in all circumstance would not debar an employee to claim the benefits of the officiating position. We are disposed to think that the controversy is covered by the ratio laid down in Hari Om Sharma and resultantly we hold that the view expressed by the High Court is absolutely impeccable.” In the present case, the petitioner had given an undertaking when he was appointed on deputation where he has stated that he is selected on temporary basis as Intelligence Officer on deputation for the period of three years only. He will not demand any seniority, claim, right in the department and in the Court. It is further stated in the undertaking that he will not counter or intercept against the order of sending him back and the one step promotion which is granted to him is on the temporary basis in the CID, I.B. Department. The aforesaid undertaking would have certainly bind the petitioner if his repatriation would have been in a normal course. Such an undertaking will not eclipse the provision of the resolution dated 29.06.2002, which prescribes a particular procedure for repatriating such personnel to their parent department. The resolution dated 29.06.2002 has been issued after the appointment and undertaking given by the petitioner. The petitioner cannot be discriminated in view of such undertaking in light of the fact that the persons, who have continued in the I.B.Department, their pension has been fixed on their last drawn pay-scale in such department. Unquestionably, the provisions of the resolution dated 29.06.2002 have been violated. There is no report produced before this Court depicting that the petitioner was unfit for his duties in the CID, IB Department and hence, for the said reasons he is repatriated to his parent department. Unquestionably, the provisions of the resolution dated 29.06.2002 have been violated. There is no report produced before this Court depicting that the petitioner was unfit for his duties in the CID, IB Department and hence, for the said reasons he is repatriated to his parent department. In absence of such findings, the action of the respondent authorities repatriating the present petitioner only before 19 days of his retirement is liable to be deprecated. The respondents on their own volition have extended the period of deputation of the petitioner from three years to five years by applying the resolution dated 29.06.2002 and therefore, have not allowed him to complete the same. Though the respondents had the legal right to repatriate the petitioner during the aforesaid period of deputation, the same could have been done after following the procedure as prescribed in the resolution dated 29.06.2002. The judgments cited by learned AGP cannot be applied in the present case since the provisions of the resolution dated 29.06.2002 were not pointed out and this Court had no occasion to deal with the resolution dated 29.06.2002 wherein the Home Department of the State Government has laid down the conditions of repatriation of the employees, who are not on deputation in I.B. Department. 16. As mentioned hereinabove, the respondents have not denied the applicability of the resolution dated 29.06.2002 in the case of the petitioner and hence, they were required to follow the procedure by preparing a report of the Director General of Police/Additional Director General of Police (Intelligence) by declaring that the petitioner was either unfit for duties or he was unable to perform the duties, which were assigned to him. In absence of any such reports of the finding, the repatriation of the present petitioner can be said to be in violation of their own resolution. 17. Under the circumstances, the present writ petition succeeds. The impugned order dated 11.06.2004 is hereby quashed and set aside. The respondents are hereby directed to re-fix and pay the pension of the petitioner on the pay-scale of Rs.5500-175-9000.i.e on the last pay-scale. Appropriate benefits and arrears shall also be paid to the petitioner. The entire exercise shall be carried out within a period of two months from the date of receipt of this order. Rule is made absolute.