M.S. Parihar vs State of M.P. and Others

Sujoy Paul, J.—This writ petition filed under Article 226 of the Constitution challenges the repatriation order dated 23.11.2012 (Annexure P/1) and consequential order dated 04.12.2012 (Annexure P/2). The petitioner was taken on deputation by M.P. State Employment Guarantee Council (Council). The case of the petitioner is that the petitioner was selected pursuant to advertisement Annexure P/4. Thus, this is not a normal deputation, but is a deputation by way of appointment. In support of this contention, reliance is placed on Ashok Kumar Ratilal Patel Vs. Union of India (UOI) and Another, It is contended that in this kind of deputation where deputationist is selected pursuant to an advertisement, he cannot be repatriated.

The second attack is on the ground that impugned order is adverse order and therefore, before repatriating petitioner to the parent department, principles of natural justice should have been followed. Shri Harish Dixit relied on Shri Shekhar Ghosh Vs. Union of India (UOI) and Another,

Smt. Nidhi Patankar, Govt. Advocate for official respondents and Shri D.S. Raghuvanshi, Advocate for respondent No. 5 drew the attention of this Court on the terms and conditions of deputation order and also relied on various documents. It is contended that petitioner is repatriated to the parent department because of unsuitability and it does not cast stigma and therefore, principles of natural justice are not applicable.

I have heard learned counsel for the parties and perused the record.

It is true that in Ashok Kumar Ratilal Patel (supra) the Apex Court has drawn distinction between normal appointment and appointment on deputation. However, a minute reading of this judgment also shows that even in cases of appointment on deputation, the repatriation can be made on the ground of unsuitability or unsatisfactory work. In para 14 and 15 of the said judgment, the Apex Court opined that unsuitability or unsatisfactory performance can be a ground to repatriate or cancel the deputation. Thus, even assuming that the petitioner''s deputation is by way of appointment, the said judgment does not help the petitioner. Annexure P/1 itself shows that petitioner''s work was not found satisfactory and therefore, he is directed to be repatriated. Respondents have filed other documents from Annexure R/1 to R/3 to show that the petitioner''s repatriation was because of unsatisfactory work and performance. The matter needs to be examined from another angle. Terms and conditions of order dated 14/11/2007 (Annexure P/5) by which the petitioner was appointed on deputation shows that the conditions of deputation shall be governed by the circular issued in this regard by General Administration Department from time to time. As per GAD circular No. FA-13/17/85/ (1) dated 06.01.1986, the maximum period of deputation prescribed by the Government is four years.

Thus, the order appointing the petitioner on deputation has to be read for a limited period beyond which the petitioner has no enforceable right to continue on deputation.

The second contention is regarding applicability of the principles of natural justice. The judgment relied in the case of Shekhar Ghosh (supra) has no application in the present case. The judgment is passed by the Supreme Court on the basis of concession of the respondents. Para 23 of the judgment makes it clear that the department accepted that the principles of natural justice needs to be followed. In the light of that admission/concession, the Supreme Court decided the said matter. However, it is settled in law that the deputationist cannot ask for his continuance as a matter of right. He can be repatriated to parent department. Such repatriation does not violate any vested right of such person. This view was taken by the Supreme Court in Kunal Nanda Vs. Union of India and Another, Relevant portion reads as under:-

A deputationist cannot assert and succeed in his claim for permanent absorption in the department where he works on deputation, unless his claim is based upon a statutory rules, regulation or order having the force of law. A deputationist can always at any time be repatriated to his parent department, at the instance of either borrowing department or parent department. There is no vested right in such a person to continue for long on deputation or get absorbed in borrowing department.

(Emphasize supplied)

A Division Bench of this Court in case of repatriation in Dr. Madhubala Sharma and Others Vs. Union of India and Others, has followed the ratio decidendi of the judgment of Kunal Nanda (supra). Thus neither principle of natural justice can be pressed into services nor it can be held that petitioner''s legal, vested or fundamental rights are infringed by the impugned order. Respondents have merely stated that services of petitioner were not satisfactory, it does not cast any stigma on the petitioner. On the basis of aforesaid analysis, I find no merit in the petition. Petition is accordingly dismissed. No Costs.