RAVINDRA v. GHUGE AND S. G. CHAPALGAONKAR, JJ.RESERVED ON
Facts
(1) WP-1508-2024IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 1508 OF 2024Sanjay s/o Eknath Baviskar,Age – 57 Years, Occupation – Service,Resident of Plot No. -407, DnyanDeep Society,Dhule Road, Nandurbar – 425412Cellphone No. - 8828067162Email- [email protected] State of Maharashtra,Through – the Secretary, Rural Development,Department, Mantralaya, Mumbai – 400032.2.Maharashtra Jeevan Pradhikaran,Through – The Chief Administrative Officer,Cidco Bhavan, South Wing, Belapur,New Mumbai – 400614Email – [email protected] Nos – 022 – 27571673, 27570166, 27578409.3.The Zilla Parishad,Nandurbar,Through – The Chief Executive Officer,01st Floor, New Administrative Building,Tokartalao Road, Nandurbar – 425412Email Id – [email protected] Nos – 02564 – 210224, 210241...Respondents...Mr. Anand Chawre, Advocate for the Petitioner.Mr. S. K. Tambe, AGP for Respondent No.1.Mr. Vinod Patil, Advocate for Respondent No.2.Mr. P. S. Patil, Advocate for Respondent No.3.... CORAM : RAVINDRA V. GHUGE AND S. G. CHAPALGAONKAR, JJ.RESERVED ON : 15th FEBRUARY, 2024. PRONOUNCED ON: 23rd FEBRUARY, 2024. (2) WP-1508-2024JUDGMENT (Per: S. G. Chapalgaonkar, J.):- 1.Rule. Rule made returnable forthwith and heardfinally by the consent of the parties.2.The Petitioner has approached this Court underArticle 226 of the Constitution of India and has impugned theorder dated 23.01.2024 passed by Respondent No.3-Zilla Parishad,Nandurbar thereby repatriating him to the parent department i.e.Respondent No.2-Maharashtra Jeevan Pradhikaran.3.The Petitioner contends that he is an executiveengineer appointed by Respondent No.2-Maharashtra JeevanPradhikaran. On 27.08.2021 he was sent on deputation to theestablishment of Respondent No.3-Zilla Parishad, Nandurbar inits Rural Water Supply Division. When the Petitioner joined hisduty, the implementation of Jal Jeevan Mission Programme waslagging behind and the Petitioner by his efforts substantiallyimproved ranking of Respondent No.3 from 34th to 7th position inpreparing plans, estimates and draft project report in the State.His performance has been appreciated by the higher Authoritiesduring periodic meetings.4.According to the Petitioner, on 01.09.2023 in thegeneral meeting of the Zilla Parishad, bald and baselessallegations were leveled against him. Consequently, ResolutionNo.316 was passed to send him on compulsory leave. ThePetitioner was neither given prior notice of agenda, nor was hegiven an opportunity to put up his stand. Further RespondentNo.3 is not empowered to take disciplinary action against Class-Iofficers on deputation. As such, Resolution passed by Respondent
Legal Reasoning
(8) WP-1508-2024system on mobile number of the Petitioner. A copy of thestatement showing various payments made during the periodfrom 25.01.2024 to 15.02.2024 is placed before us. We find thatexplanation tendered on behalf of Respondent No.3-ZillaParishad, Nandurbar is acceptable.15.In that view of the matter, we do not find any merit inthe Writ Petition. Hence, Writ Petition stands dismissed.16.Rule is discharged.(S. G. CHAPALGAONKAR) (RAVINDRA V. GHUGE) JUDGE JUDGEDevendra/February-2024
Arguments
(3) WP-1508-2024No.3 is per se ultra vires. On 08.12.2023, the RevenueCommissioner at Nasik communicated that the provisions of theMaharashtra Zilla Parishad and Panchayat Samitis Act, 1961does not contain enabling provisions empowering Zilla Parishadto initiate any administrative or departmental action againstClass-I employee on deputation. The action under impugnedcommunication thereby repatriating the Petitioner to his parentdepartment without issuing three months advance notice violatesmandatory condition of deputation. Therefore, the Petitionerurges to quash and set aside the impugned communication.5.Mr. Chaware, learned Advocate appearing for thePetitioner vehemently contends that bare perusal of Resolutiondated 01.09.2023 would depict adverse and defamatory contentsthat attributes stigma on the Petitioner. Such stigmatic andpunitive action without compliance of principles of natural justicecannot be sustained in law.6.Mr. Vinod Patil, learned Advocate appearing forRespondent No.2-Maharashtra Jeevan Pradhikaran and Mr. P. S.Patil, learned Advocate appearing for Respondent No.3-ZillaParishad, Nandurbar submits that the employee on deputationdoes not posses any right to continue on the post of hisdeputation. His deputation is always subject to the requirementof the parent department and at the pleasure of the department.Considering the exigency of administration, the employee can berepatriated to the parent department. The repatriation of thePetitioner is done to secure better administration. Mr. VinodPatil, learned Advocate appearing for Respondent No.2-Maharashtra Jeevan Pradhikaran, on instructions submits, (4) WP-1508-2024although no advance notice has been issued by Respondent No.3before repatriating the Petitioner, however, Respondent No.2 hasno complaint and has no difficulty to accommodate Petitioner onhis original post.7.We have heard the learned Advocates appearing forthe respective parties so also perused the record made available.Apparently, the Petitioner is employee of Respondent No.2-Maharashtra Jeevan Pradhikarn. However, on his request hewas deputed on establishment of Zilla Parishad, Nandurbar in itsRural Water Supply Department as per office order dated27.08.2021. The Annexure to the deputation order containscertain terms and conditions. Clause No.1 states as under:-“1-izfrfu;qDrhpk dkyko/kh & gs vf/kdkjh T;k rkj[ksyk izkf/kdj.kkrhylsosrhy inkpk dk;ZHkkj lqiwnZ djrhy R;k rkj[ksiklwu Loh;sRrj lsospk izkjaHkgksbZy vkf.k rh lsok T;k rkj[ksyk rs vkiY;k izkf/kdj.kkP;k inkpk dk;ZHkkjiqUgk Lohdkjrhy R;k rkj[ksyk lekIr gksbZy rlsp laca/khr vf/kdk&;kaphizfrfu;qDrh led{k inkoj dj.;kr ;koh-izFker% rhu o”kkZP;k dkyko/khlkBh gs vf/kdkjh ;sFks izfrfu;qDrhojjkgrhy] ijarq---(,d) tj R;kaph lsok yksdlsosP;k fgrkP;k n`”Vhus ‘kklukyk vko’;d okVyhrj] izfrfu;qDrhP;k dkyko/kh lai.;kiwohZ dks.kR;kgh osGh R;kauk ijr cksykowu?ks.;kpk vf/kdkj izkf/kdj.k jk[kwu Bsohy-(nksu) tj R;kaph lsok Loh;sRrj fu;ksDR;kyk vko’;d okVyh ukgh rj] R;kaukewG foHkkxkdMs ijr ikBfo.;kph eqHkk Loh;sRrj fu;ksDR;kyk jkghy-ek= ;kizek.ks ijr ikBfo.;kiwohZ Loh;sRrj fu;ksDR;kus izkf/kdj.kkyk@l{keizkf/kdk&;kyk 3 efgU;kph uksVhl fnyh ikfgts-vkf.k(rhu) R;kauh ewG foHkkxkdMs ijr tk.;kpk vkiyk mnns’k vkgs v’kh dehrdeh 3 efgU;kaph ys[kh uksVhl izkf/kdj.kkyk@l{ke izkf/kdk&;kyk fnY;kuarjR;kauk ewG foHkkxkdMs ijr ;s.;kph eqHkk jkghy-”English Translation“1.Period of deputation: The external service shallcommence from the date on which the officer hands over thecharge of the post in the service of Pradhikaran and such a (5) WP-1508-2024service shall end on the date on which the officer assumesthe charge of the post of Pradhikaran and the officerconcerned shall be posted on an equivalent post.Initially such an officer/s shall remain ondeputation for a period of three years, however…..(One)The Pradhikaran reserves the right to recallsuch an officer at any time before the expiry of the period ofdeputation if there services are deemed necessary by theGovernment in the public interest.(Two)If their services are not considered necessary bythe external (Foreign) employer, the external employer mayrefer them back to their original department. However,before such repatriation, the external employer shouldgiven 3 months notice to the Pradhikaran/CompetentAuthority.AND(Three)Such an officer/s shall be allowed afternotifying the Pradhikaran/Competent Authority of hisintention of returning to original Department in advance ofthree months minimum.”8.The bare perusal of the aforesaid clauses indicatesthat normal period of deputation of employee shall be three yearssubject to sub-Clause Nos.1, 2 and 3. The sub-Clause No.1reserves right of the parent department to recall employee at anytime. The sub-Clause no.2 reserves right of the department whoreceived the employee on deputation to repatriate him to parentdepartment with advance notice of three months to the parentdepartment. Even the employee by giving three months advancenotice can seek repatriation to his parent department.9.The harmonious reading of the aforesaid Clauseswould indicate that the employee does not possess absolute rightto continue on deputation till end of three years normal tenure.Depending upon administrative exigency of the parentdepartment or the department of deputation, employee can berepatriated to the parent department. (6) WP-1508-202410.The learned Advocate appearing for the Petitionervehemently submits that sub-Clause No.2 mandates three monthsadvance notice before repatriation of the employee. However, wefind that such condition is incorporated for convenience of theparent department and the department of deputation. It does notpostulate any right in favour of the employee. The condition ofthree months advance notice cannot be interpreted as mandatory.The parent department in its discretion can waive such notice. Inthe present case, a statement is made across the bar on behalf ofRespondent No.2-Maharashtra Jeevan Pradhikaran i.e. parentdepartment of the Petitioner that they have no difficulty toaccommodate Petitioner and waive off the notice period of threemonths as indicated in sub-Clause No.2 of Clause No.1 ofdeputation order dated 27.08.2021. We have no hesitation to holdthat the Petitioner had no vested right to remain on deputationnor he suffered infringement of such right for want of threemonths advance notice to parent department before hisrepatriation.11.Although submission is made that impugned order isstigmatic, we are not inclined to accept the same. True thatimpugned order refers some contents of Resolution passed by theZilla Parishad and communication made by the President, plainreading of impugned order merely suggests that Petitioner isrepatriated in the interest of administration with a view to avoidwrath of the members of Zilla Parishad. As observed by SupremeCourt in case of Union of India vs Janardhan Debanath,(2004) SCC 245, a transfer of employee would amount to apunishment if such order has entailed penal consequences.Deputation does not mean transfer. It is not the case of Petitioner (7) WP-1508-2024before us that by reason of the impugned order, he has been askedto discharge duty on a post lower than presently held ordowngraded his pay or his promotional prospects are affected. Onthe contrary, impugned order appears to have been issued toavoid further conflict between the Petitioner and elected membersof Zilla Parishad and ensure smooth administration. Even it isnot demonstrated before us that impugned order is stigmatic andthat will carry an indelible stain for the rest of his service careerwithout there being any finding of guilt recorded against him.12.We are therefore inclined to observe that the contentsof the impugned communication shall not be read as adverseremarks against the Petitioner, since those are in the form ofopinion expressed by President of Zilla Parishad and it’smembers, formulated without offering any opportunity toPetitioner for tendering his explanation.13.At this stage Mr. Chaware, learned Advocateappearing for the Petitioner submits that the Petitioner has beenunilaterally relieved by Respondent No.3-Zilla Parishad,Nandurbar and his ‘Digital Signature’ (DSC) has been misused forreleasing various payments using his ID.14.In response to the aforesaid submissions, Mr. PravinPatil, learned Advocate for Respondent No.3 has placed before usa communication dated 15.02.2024 addressed to him by ExecutiveEngineer. It is clarified that from the date of reliving Petitioner,all the payments have been released from DSC of Mr. ShekharMarathe, In-charge Executive Engineer and none of the paymentis made using Digital Signature of the Petitioner, however,because of technical reasons, the messages are sent from online