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2022 DIGILAW 984 (ALL)

Noorul Huda v. State of U. P.

2022-07-01

RAJIV JOSHI

body2022
JUDGMENT : RAJIV JOSHI, J. 1. Heard Ms. Chhaya Gupta, learned counsel for the petitioner, learned Standing Counsel for the respondents-1, 3 & 4 and Sri Durga Singh, learned counsel for the respondent-2. 2. Present writ petition under Article 226 of the Constitution has been filed for quashing the impugned order dated 27.11.2021 passed by the respondent no.2-State Project Director, Sarva Shiksha Abhiyan, State Project Office, Vidya Bhawan, Nishatganj, Lucknow, whereby the petitioner was repatriated to his parental department i.e. Secondary Education, U.P. with immediate effect. 3. The facts giving rise to the present writ petition are as under: 4. The petitioner was initially appointed on the post of Assistant Teacher (Urdu) in Government Inter College, Ballia after due selection and subsequently, on the basis of advertisement issued by respondent-2, he was appointed on the post of District Co-ordinator (Community Mobilization) vide order dated 02.11.2018 on deputation in the office of District Basic Education Officer, Ballia. In the appointment letter, it is mentioned that the said appointment was on deputation for a minimum period of three years and maximum five years. 5. Subsequently, pursuant to the said appointment on deputation, the petitioner joined as a District Co-ordinator (Community Mobilization) at Ballia on 20.11.2019 in the office of District Basic Education Officer, Ballia. Subsequently, on the basis of complaint lodged by one Sri Rajesh Kumar (unionist and B.J.P. worker, Sohaon Ballia) as well as on the basis of recommendation dated 17.11.2021 and 18.11.2021 of respondent no.4-Assistant Director of Education (Basic) Azamgarh Division, Azamgarh, the impugned order dated 27.11.2021 has been passed, whereby the petitioner repatriated to his parental department i.e. Secondary Education, U.P., which is impugned in the writ petition. 6. Learned counsel for the petitioner submits that the impugned order has been passed on the basis of some complaint lodged by the political worker as well as on the basis of recommendation made by the respondent-4, which is not only punitive in nature but stigmatic and even the impugned order has been passed without affording any opportunity of hearing to the petitioner and without serving any copy of the complaint lodged by the political worker against the petitioner and the same cannot be sustained in the eyes of law. 7. In support of her contention, learned counsel for the petitioner placed reliance upon the judgement of the Apex Court passed in Union of India Through Govt. 7. In support of her contention, learned counsel for the petitioner placed reliance upon the judgement of the Apex Court passed in Union of India Through Govt. of Pondicherry and Another Vs. V. Ramakrishnan and Others, (2005) 0 Supreme (SC) 1350. 8. Learned counsel for the petitioner further submits that no inquiry with regard to allegation made in the complaint lodged by the political worker has been conducted. 9. Per contra, learned counsel for the respondent-2 submits that the petitioner does not hold any lien on the post of District Co-ordinator (Community Mobilization), who was working on deputation on the said post and has rightly been repatriated to his original department on the post of Assistant Teacher (Urdu) in Government Inter College, Ballia. He further submits that due to confrontation between teachers association and the petitioner, for smooth functioning of the department work, the impugned order has been passed. There is no illegality or infirmity in the order impugned. 10. I have considered the rival submission so raised by counsel for the parties and perused the record. 11. Record reflects that the petitioner was appointed as District Co-ordinator (Community Mobilization) in the office of District Basic Education Officer, Ballia and joined the said post on deputation on 20.11.2019. The impugned order has been passed by respondent-2 repatriating him to parent department i.e. on the post of Assistant Teacher (Urdu) in Government Inter College, Ballia. 12. Ordinarily a deputationist has no right to continue on the said post but the impugned action of the respondents by passing the impugned order casts stigma to him as the same was passed on the basis of some complaint lodged by the political worker and without affording any opportunity of hearing to the petitioner, even the copy of the complaint has not been served to the petitioner and the same order cannot be said to be a simplicitor order but punitive in nature. Specific averment in this regard has been made by the petitioner in paragraph 28 of the writ petition, which is quoted as under: "That the reversion of the petitioner is completely arbitrary and in violation of the principles of natural justice in so far as no notice or opportunity of hearing had been given to the petitioner where as the alleged complaint on the basis of which the impugned order has been passed is a unilateral complaint which had not been enquired in to till date." 13. The said paragraph was replied in paragraph 19 of the counter affidavit, in which averment with regard to affording any opportunity of hearing and serving any copy of the complaint to the petitioner has not specifically denied. The said paragraph is quoted as under: "That the contents of paragraph Nos.26, 27, 28, 29 and 30 of the writ petition are not admitted as stated, hence are denied. In reply there to it is submitted that the action has been taken against the petitioner. It is further submitted that due to confrontation between teachers association and the petitioner for smooth functioning of departmental works, the petitioner has been repatriated to his parent department of Madhyamik Shiksha, U.P. in accordance with law. It is further submitted that normally tenure of deputation is 03 years, however, under special facts and circumstances as well as keeping in view of work interest the tenure of deputation of an employee can be curtailed and the power of the repatriation of an employee on deputation before the prescribed tenure is vested in the answering respondent no. 2." 14. From the said paragraphs, it is apparent that the petitioner has not been afforded any opportunity of hearing before passing the impugned order, which is totally malafide. 15. Paragraph 32 of the said judgement relied upon by counsel for the petitioner in Union of India Through Govt. of Pondicherry and Another (supra), is quoted as under: "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 thereto as well. of Pondicherry and Another (supra), is quoted as under: "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 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." 16. In view of the above, it is clear that the impugned order has been passed against the petitioner without affording any opportunity of hearing and cannot be sustained being stigmatic and is malafide. 17. Accordingly, the impugned order dated 27.11.2021 passed by the respondent no.2-State Project Director, Sarva Shiksha Abhiyan, State Project Office, Vidya Bhawan, Nishatganj, Lucknow, is quashed. The respondents are directed to pass fresh order in accordance with law after giving adequate opportunity of hearing to the petitioner and after serving a copy of the complaint lodged by the political worker. 18. Till such order is passed, the petitioner would be permitted to work on the post of District Co-ordinator (Community Mobilization) in the office of District Basic Education Officer, Ballia and shall be paid arrears of salary, if any, and to pay salary month to month basis regularly. 19. The writ petition is, accordingly, allowed.