Writ Appeal No. 318 of 2013 · High Court
Case Details
WA 318/2013 BEFORE HON’BLE MR JUSTICE A. K. GOEL, THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE A. K. GOSWAMI (A. K. Goel, CJ) This order will dispose of Writ Appeal Nos.318 and 320 of 2013 as both the appea ls have been preferred against common order of learned Single Judge dealing with the claim of the appellants that they were entitled to be permanently absorbed in the Sarba Siksha Abhijan Mission (SSA Mission) and could not be repatriated t o their parent department i.e. Education Department of the State of Assam. 2. We have heard Sri K. K. Mahanta, learned Senior Advocate and Sri D. Das, learned Senior Advocate for the appellants and Sri D. Saikia, learned Additiona l Advocate General for the State of Assam and also for the Mission Director of t he SSA. Case of the appellants (in Writ Appeal No.318 of 2013) as pleaded in the 3. ir original writ petition is that they were working as Assistant Teachers of Low er Primary and Upper Primary Schools in the Education Department of the State of Assam on regular basis. In pursuance of advertisement for appointment as Cluste r Resource Centre Coordinators (CRCC), Additional Block Resource Centre Coordina tors (ABRCC), Resource Teachers, Resource persons, District Programme Officers, Teachers Training they made applications in the year 2002 for appointment on dep utation basis. After due selection they were given appointments in the year 2003 , 2004 and 2008 on terms and conditions mentioned in their appointment letters. As per clause 5 of the terms and conditions, the deputation was initially for on e year and the SSA was to remit leave salary and pension contribution to the par ent department. The Mission was also required to pay HRA and fixed TA as admissi ble to Government employees. The terms and conditions are set out in one of the order dated 03.11.2003 annexed to the writ petition. After the appellants were s ent on deputation they were sought to be repatriated by which the appellants are aggrieved and they moved this Court. Some writ petitions were filed by the Asso ciation and some writ petitions were filed by the individuals and certain interi m orders were granted from time to time. It was submitted that since they had al ready worked for more than 8 years and undergone training in various seminars an d acquired long experience, the same will be wasted if they are repatriated whic h will be against public interest. 4. On 17.10.2012 an advertisement was issued by the Mission Director, SSA for appointment of fresh candidates for the post of CRCC which was also challeng ed by the appellants with the apprehension that it may result in their repatriat ion in violation of their right to be absorbed with the SSA. 5. The stand of the appellants was opposed either by filing affidavit in op position or filing applications for vacation of interim orders. It was submitted that the teachers taken on deputation to various posts for implementation of SS A activities are the key persons for implementing the Right to Education Act by providing academic support as well as monitoring and coordinating various academ ic programmes in elementary schools different blocks/clusters. Their basic role was to promote primary education at grassroot level in accordance with various a ction plans prepared from time to time. Appointment of the appellants on deputat ion was not intended to be for ever and the same was a temporary measure by way of stop gap arrangement which did not in any way debar the SSA to make its own a rrangement in due course. 6. After considering the rival submissions, learned Single Judge formulated following questions for consideration : Whether on the facts and in the circumstances of the case, petitioners a (cid:28)(1) re entitled to continue in SSA on deputation and should not be repatriated to Ed ucation Department, Government of Assam being their parent department? (2) Whether as deputationists, petitioners are entitled to challenge impugne d advertisement dated 17.10.201? (cid:29) 7. The above questions were answered against the appellants by holding that while sending an employee on deputation has to be consensual, the deputationist could not claim right to be absorbed unless such a right was created under the applicable rules. It was observed : (cid:28)33. consensual, there is no requirement of such consensus in the case of repatriatio n. A deputationist indisputably has no legal right to continue on deputation and he has also no right to claim absorption in the post to which he is deputed. Thus, while the process of sending an employee on deputation is Viewed in the context of the above legal position, claim of the 34. petitioners lacks substance. Petitioner joined service in SSA on deputation for 12 months. Though they have continued much beyond that period, there is no admin istrative order or decision extending their period of deputation. Reliance place d on Regulation 7 of the SSA Service Regulations appears to be misplaced as the said provision relates to reversion within the deputation period. The said provi sion cannot be read in a manner to contend that once deputed to SSA, a deputatio nist cannot be reverted back to his parent department unless his service in SSA is found not satisfactory. Thus, petitioners cannot claim as a matter of right t hat they should be allowed to continue in SSA or that they should be permanently absorbed in SSA in the absence of any statutory enactment or policy framed in t his regard. It is also not open to the petitioners to question eligibility quali fications prescribed by SSA for recruitment in SSA on the ground that such quali fication shall debar them from competing. SSA being the employer, it is for the SSA to prescribe the qualifications for the various posts under it as it is the best judge of its requirement. Moreover, as per the stand taken, graduation has been prescribed as the minimum educational qualification for recruitment of CRCC in view of laying down of such qualification as per NCTE norms framed under RTE Act. (cid:29) 8. After deciding the issue as above, learned Single Judge observed that th e grievances expressed by the appellants that they may be prejudiced by orders o f repatriation, as they had already continued beyond maximum period of deputatio n permitted under the Government orders and on that ground they may be deprived of their legitimate dues by being blamed for overstaying the permitted period of deputation ought to be fairly redressed.
Legal Reasoning
In our view answer has to be in the negative. 18. It is well settled that deputation, by itself, does not create a right t o be absorbed to the post to which a person is appointed on deputation. Claim fo r absorption depend on terms of deputation or applicable rules. Only provision w hich has been relied upon is the Office Memorandum dated 19.07.1997 laying down that if a person continued on deputation beyond five years he will be deemed to have been absorbed. There is nothing to show that appellants have continued on d eputation beyond five years under any decision of the State. Their continuation under interim orders cannot be taken into account. Similarly, continuation by wa y of attachment clearly manifests the intention that the appellants are not to b e absorbed. Deputation was by way of stop gap arrangement and regularization of period beyond five years is for the purpose of ensuring that the employees is no t deprived of his service benefits by treating such deputation beyond stipulated period to be unauthorized or illegal. It is not a case where steps for repatria tion have not been taken within the stipulated time or intention of the SSA was not to make any arrangement other than deputation even after five years of the p eriod of deputation. The order of regularization dated 07.02.2011, reproduced ab ove, does not result in absorption to the deputed post. The object of the said o rder is to regularize the period of deputation beyond five years so as to avoid any prejudice to the employee. The policy underlying in the order dated 17.02.20 11 ought to be universally followed for all the employees who have continued to remain on deputation in absence of absorption orders either on account of court order or otherwise if they have actually served with the SSA. We are, thus, unab le to hold that in terms of Office Memorandum dated 19.07.1997 the appellants st and regularized merely because they have continued beyond the period of five yea rs. Order dated 23.05.2008, Annexure-5 to the writ petition, shows that this Cou rt directed maintenance of status quo of the members of the petitioners Associat ion who had not been released from the Mission. Learned Additional Advocate Gene ral points out that on account of interim orders the deputation continued beyond five years and but for such interim order, the deputation would have expired wi thin five years. Advertisement for fresh recruitment was issued on 24.05.2008 it self as mentioned in writ petition giving rise to Writ Appeal No.320 of 2013 (pa ge 204 of the compilation) which was within five years of the deputation i.e. 08 .05.2004. 19. observed : In State of Punjab Vs. Inder Singh and others, (1997) 8 SCC 372, it was (cid:28)18. The concept of (cid:28)deputation (cid:29) is well understood in service law and has a rec ognised meaning. (cid:28)Deputation (cid:29) has a different connotation in service law and the dictionary meaning of the word (cid:28)deputation (cid:29) is of no help. In simple words (cid:28)dep utation (cid:29) means service outside the cadre or outside the parent department. Deput ation 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 o f deputation the employee has to come back to his parent department to occupy th e same position unless in the meanwhile he has earned promotion in his parent de partment as per the Recruitment Rules. Whether the transfer is outside the norma l field of deployment or not is decided by the authority who controls the servic e or post from which the employee is transferred. There can be no deputation wit hout the consent of the person so deputed and he would, therefore, know his righ ts and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referr ed to above. There is no escape for the respondents now to go back to their pare nt departments and working there as Constables or Head Constables as the case ma y be. 20. 2 , it was observed : Again in Union of India v. V. Ramakrishnan, (2005) 8 SCC 394, at page 40 (cid:28)32. Ordinarily, a deputationist has no legal right to continue in the post. A d eputationist 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 dep utation does not result in absorption in the service to which an officer is depu ted, no recruitment in its true import and significance takes place as he is con tinued to be a member of the parent service. When the tenure of deputation is sp ecified, despite a deputationist not having an indefeasible right to hold the sa id post, ordinarily the term of deputation should not be curtailed except on suc h just grounds as, for example, unsuitability or unsatisfactory performance. But , even where the tenure is not specified, an order of reversion can be questione d when the same is mala fide. An action taken in a post-haste manner also indica tes malice. (See Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia, (2004) 2 SCC 65 para 25.) 21. sorbed in the SSA. Thus, it cannot be held that the appellants have acquired right to be ab 22. We may also mention that though there is no adequate ground to hold that the appellants have served on deputation for more than five years and they are (cid:28)deemed (cid:29) to have been absorbed, we cannot ignore the principle of interpretation that (cid:28)deemed (cid:29) cannot always be treated as conclusive proof and if the context s o requires, it may be treated only as a rebuttable presumption. 23. was observed : In M.S. Madhusoodhanan v. Kerala Kaumudi (P) Ltd., (2004) 9 SCC 204, it (cid:28)118. & &... The word (cid:28)deemed (cid:29) literally means (cid:28)thought of (cid:29) or, in legal parlance (cid:28)presumed (cid:29). 119. There is a distinction between (cid:28)presumption (cid:29) and (cid:28)proof (cid:29). A presumption has been defined as (cid:28)an inference, affirmative or disaffirmative of the truth or falsehood of a doub tful fact or proposition drawn by a process of probable reasoning from something proved or taken for granted (cid:29) (Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1 052, AIR at p. 1060, para 18). They are rules of evidence which attempt to assist the judicial mind in the matt er of weighing the probative or persuasive force of certain facts proved in rela tion to other facts presumed or inferred (ibid.). Sometimes a discretion is left with the court either to raise a presumption or not as in Section 114 of the Ev idence Act. On other occasions, no such discretion is given to the court so that when a certain set of facts is proved, the court is bound to raise the prescrib ed presumption. But that is all. The presumption may be rebutted. 120. While construing Section 28-B of the U.P. Sales Tax Act which inter alia pr ovides that if a transit pass is not produced at the checkpost on entry and at t he point of exit, (cid:28)it shall be presumed that the goods carried thereby have been sold within the State (cid:29) (emphasis supplied), the contention that the phrase (cid:28)it shall be presumed that (cid:29) meant that (cid:28)it shall be conclusively held (cid:29) was negatived . After referring to Section 4 of the Evidence Act it was held by this Court in Sodhi Transport Co. v. State of U.P. (1986) 2 SCC 486,(AIR at p. 1105) : (SCC p. 495, para 12) (cid:28)The words ’shall presume’ require the court to draw a presumption accordingly, unless the fact is disproved. They contain a rule of rebuttable presumption. The se words i.e. ’shall presume’ are being used in Indian judicial lore for over a century to convey that they lay down a rebuttable presumption in respect of matt ers with reference to which they are used and we should expect that the U.P. Leg islature also has used them in the same sense in which Indian courts have unders tood them over a long period and not as laying down a rule of conclusive proof. In fact these presumptions are not peculiar to the Indian Evidence Act. They are generally used wherever facts are to be ascertained by a judicial process. (cid:29)
Arguments
9. Sri Mahanta, learned Senior Counsel, submitted that the view taken by le arned Single Judge is erroneous. As per orders passed by the Commissioner and Se cretary to the Government of Assam, deputation beyond the period of five years h as been regularised. One such order is referred to in para 15 of the order of le arned Single Judge which is as follows :- (cid:28)No.AEE 238/2009/260: In pursuance of the Cabinet decision in its meeting held o n 03/02/2011 the Governor of Assam is pleased to regularize the term of deputati on of 369 teaching and non-teaching staff of Elementary Education and 53 teachin g and non-teaching staff of Secondary Education deputed to Sarba Siksha Abhijan, Assam beyond the 5th year deputation period. List of deputationist is enclosed in Annexure-I & II respectively. (cid:29) 10. He also referred to Office Memorandum dated 19.07.1997 to the effect tha t after expiry of five years, an employee on deputation will stand reverted to h is parent department failing which he/she will be deemed to be permanently absor bed in the deputed organization. The said Office Memorandum is as follows :- (cid:28)OFFICE MEMORANDUM NO.FEG.13/92/Pt/14 Dated, Dispur, the 19th July/97 Maximum period of deputation will be for a period of 5 years. After expi 1) ry of 5 years the employee shall revert to his parent department failing to whic h he/she shall deem to be permanently absorbed in the deputed organization. In n o circumstances, Finance will accept proposal for deputation beyond 5 years. 2) Once initial deputation is finalized in concerned department, Finance de partment and administrative department will be competent to extend the deputatio n upto the 4th year as terms and conditions of initial deputation. Deputation fo r the 5th year when considered necessary in interest of public service may be al lowed only with prior approval of Finance (Estt-A) Department. (cid:29) 11. He submitted that in the present case some of the employees have already worked for 10 years and have acquired lot of experience. The nature of job whic h they were performing during deputation is different from their original job of teaching and they will find it difficult to perform their duty if they are repa triated. In these circumstances, they are entitled to (cid:28)deemed absorption (cid:29) under the above office order. Reliance has also been placed on Rameswar Prasad vs. Man aging Director, U.P. Rajkiya Nirman Nigam Limited and others, (1999) 8 SCC 381, to submit that even in absence of the right to be absorbed, repatriation after l ong period on deputation may prejudice the employee. In para 14 of the said judg ment it was observed : (cid:28)14. t an employee who is on deputation has no right to be absorbed in the service wh ere he is working on deputation. However, in some cases it may depend upon statu tory rules to the contrary. If the rules provide for absorption of employees on deputation then such employee has a right to be considered for absorption in acc ordance with the said rules. As quoted above, Rule 16(3) of the recruitment rule s of the NIgam and Rule 5 of the U.P. Absorption of Government Servants in Publi c Undertakings Rules, 1984 provide for absorption of employees who are on deputa tion. (cid:29) We agree with the learned counsel for Respondent 1 and make it clear tha 12. He submitted that if fresh recruitment is to be made the same could be d one in the Education department in stead of in the SSA Mission. He further submi tted that while on deputation they are getting Rs.1384.00 extra and if they are repatriated it may amount to demotion even though they have rendered efficient s ervice while working on deputation. He also pointed out that to cover up the ext ension to their deputation tenure beyond the permissible time, the Government us ed the expression (cid:28)attachment orders (cid:29) which in substance was extension of deputa tion period beyond the prescribed period which entitled the appellants to (cid:28)deeme d absorption (cid:29). 13. Sri D. Das, learned Senior Counsel appearing in Writ Appeal No.320 of 20 13, submitted that even though the appellants may not have any legal right to co ntinue on deputation, when they have continued on deputation and have received t heir salaries, the said period in excess of permitted deputation period ought to be regularized so that they are not deprived of their pension and other dues. S uch period may be either in excess of original period of deputation or extended period of deputation or the maximum permissible period of deputation. Learned Additional Advocate General appearing for the respondents submit 14. ted that deputation was a stop gap arrangement till the Mission made its own arr angement. Accordingly, after due advertisement in accordance with the prescribed higher qualification, recruitment has already been made. The office memorandu, dated 19.7.1997 did not stipulate absorption of employees sent on deputation. Th ere is no intention to absorb the said employees by way of (cid:28)deemed absorption (cid:29). The judgment in U.P. Rajkiya Nirman Nigam Limited (supra) is distinguishable as the rules considered for interpretation therein provided for absorption. He reli ed upon State of Punjab vs. Inder Singh and others, (1997) 8 SCC 372, laying dow n that absorption of employees sent on deputation will be only as per the terms of the deputation or the rules. He, however, assured the Court that the apprehen sion expressed by the employees who have continued beyond the original deputatio n period of one year or more under interim orders or otherwise will be duly redr essed and they will not be prejudiced in any manner only on that account. He fur ther submitted that none of the appellants had factually continued beyond five y ears except under interim. 15. 16. We have given anxious consideration to the rival submissions. Question for consideration is whether the appellants have acquired right to be absorbed with the SSA and their proposed repatriation is illegal. 17.
Decision
121. It was accordingly held that the words (cid:28)shall presume (cid:29) contained in Section 28-B of the U.P Sales Tax Act only require the authorities concerned to raise a rebuttable presumption that the goods must have been sold in the State if the t ransit pass is not handed over at the checkpost at the point of exit and that it was open to the transporter to still prove that the goods had been disposed of in a different way. (See also Syad Akbar v. State of Karnataka, (1980 1 SCC 30 a nd State of Madras v. A. Vaidyanatha Iyer, AIR 1958 SC 61). 122. Raising of a presumption, therefore, does not by itself amount to proof. Th e result of a mandatory requirement for raising a presumption cast on the court, as there is under Section 53(2) of the Companies Act, is that the burden of pro of is placed on the person against whom the presumption operates for disproving it. It is only if such person is unable to discharge the burden, that the court will act on the presumed fact. (See Dahyabhai Chhaganbhai Thakkar v. State of Gu jarat, AIR 1964 SC 1563) A presumption, however, is of course not always rebutta ble. But the mere use of the word (cid:28)shall (cid:29) before the word (cid:28)presume (cid:29) or other lik e word does not mean that the presumption is irrebuttable or conclusive. An irre buttable presumption is couched in different language, normally indicating that proof of one set of facts shall be (cid:28)conclusive proof (cid:29) of a second set. An exampl e of this is Rule 3 of the Rules framed in 1956 under Section 18 of the Citizens hip Act, 1955 which was the subject-matter of challenge in Izhar Ahmad case, AIR 1962 SC 1052, Section 53(2) contains no such language. (cid:29) 24. In the present context, it cannot be held that in every situation workin g beyond five years results in presuming that a person stands absorbed with the SSA when intention clearly is otherwise. 25. As regards submission that the appellants have acquired experience and training of the work which they were performing while on deputation, it is diffi cult to accept it as a ground to continue on deputation as in every case where a person is sent on deputation, he/she will acquire certain experience for workin g on the deputed post. This experience cannot create a right to continue on the deputation post. Similarly, any extra benefit given on account of deputation is incidental and if, on repatriation, such benefit is lost there is no demotion in volved. Thus, repatriation cannot be held to be either contrary to the terms of engagement or the rules nor it can be held to be against public interest so as t o call for interference by this Court. 26. We, thus, do not find any ground interfere with the view taken by learne d Single Judge. The appeals are dismissed except for clarifying that the grievan ce of the appellants who continued on deputation either on account of Court orde r or otherwise beyond the period for which they were initially recruited or beyo nd the extended period will be considered by the department so that they may not be deprived of their legitimate dues as per rules and such period will be regul arized for purposes of all admissible dues subject to the condition that such re gularization will not give rise to claim for absorption.