Dr. Hem Chandra Joshi v. State of Uttarakhand

challenged the order of the learned Single Judge dated 28.6.2010 passed in Writ Petition (S/S) No. 459 of 2010 filed by the petitioner where the petitioner had challenged the order dated 11.6.2010, by which his appointment on deputation as District Coordinator was prematurely terminated. The learned Single Judge did not find any fault or illegality in the impugned order dated 11.6.2010 and the Writ Petition was, therefore, dismissed. Aggrieved, the petitioner has filed present Special Appeal.

#2. Brief facts of the case are as follows: The petitioner was working as an Assistant Teacher in Govt. Higher Secondary School, Nathuwakhan, Nainital when response to an advertisement published on 8.2.2006 (in Hindi daily newspaper “Amar Ujala”) he applied for appointment to the post of District Coordinator. The said advertisement has been perused. The advertisement was issued by the Government of Uttarakhand as a part of its ongoing scheme of Universal Education for appointment of District Coordinators on the pay scale of Rs. 6500-10500 on the vacant 22 posts of District Coordinators. These appointments were to be made by way of deputation from amongst teachers in the Education Department of the State of Uttarakhand. The advertisement clearly states appointments by deputation will only be for a period of five years and that the appointment can come to an end even before this period of five years. Now these appointments were made under a Scheme of the Government for Universal Education. This scheme was being funded by the World Bank, as we are told at the bar. The work of a District Coordinator is to supervise and distribute the funds, which come through the Government of India, to those who are working in the area of Universal Education. The work of a District Coordinator is not a teaching work, but it is a routine administrative or even supervisory work. As the project is related to education, the applications were invited from only eligible teachers for appointment on the post of District Coordinator. The petitioner applied and was consequently appointed. The appointment order dated 20.6.2006 (Annexure – 2 to the writ petition) clearly states that the appointment will work till 31.3.2010 and will start from the date the petitioner takes charge of the post of District Coordinator. It is also undisputed that before 31.3.2010 i.e. the date when this period of deputation was to come to an end, it was extended for a further period till 31.3.2011. In the office memorandum dated

31.3.2010 (Annexure-4 to the writ petition), it was clearly stipulated that this appointment by deputation can come to an end without prior notice even prior to 31.3.2011.

#3. Now on these set of facts, the case of the petitioner before the learned Single Judge was that though he was appointed on a deputation, yet the period of deputation was fixed and was to come to an end on 31.3.2011, the unceremonious curtailment of this period vide impugned order dated 11.6.2010 (Annexure-5 to the writ petition) is bad in the eyes of law as, inter alia, it is stigmatic and the respondents have no right to curtail the period of deputation once it is a fixed period of deputation. There are other grounds raised by the petitioner as well, such as violation of principle of natural justice and fair play and mala fide. A bald averment, for mala fide is made against respondent no. 5, who was impleaded in the Writ Petition as private party i.e. District Project Officer/District Education Officer, Nainital, but the main thrust of the petitioner’s argument was violation of principle of natural justice and fair play in Paragraph 13 of the Writ Petition, in which he has stated as follows: “13. That it is thus apparent that the impugned cancellation order dated 11.6.2010 is punitive. However it has been passed without assigning any reason. Petitioner was not given notice or hearing while passing the impugned order which renders the same non-est in the eyes of law. The Hon’ble Apex Court in the case of Parshotam Lal Dhingra Vs. Union of India has held that an appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put to an end during that period unless he is, by way of punishment, dismissed or removed from service. Para 12 of the said judgment clinches the issue which shall be produced during arguments.”

#4. In its counter affidavit, however, the State Government contended firstly that the appointment of the petitioner was purely on deputation on the post of District Coordinator and the settled position of law being that a deputationist does not have any lien on the post, as his original appointment is of an Assistant Teacher in the Govt. Higher Secondary School, Nathuwakhan, Nainital, and therefore, there is no illegality or impropriety in the impugned order dated 11.6.2010, by which the services of the petitioner have come to an end, even prior to the period of deputation on 31.3.2011. Apart from the above, the respondents have stated in the counter affidavit that though the order dated 11.6.2010 is an order simplicitor terminating the appointment of the petitioner on deputation (as it is the condition stipulated in the advertisement that the appointment can come to an end even prior to the period for which it was without prior notice), but it has further been stated in the counter affidavit that the work and conduct of the petitioner as a District Coordinator was far from satisfactory and there were complaints against the work and conduct of the petitioner. As such, after giving a prior show cause notice and considering the reply of the petitioner on that show cause, the impugned order dated 11.6.2010 was passed. In other workds, the State alleges that the petitioner had not approached the Court with clean hands inasmuch as material facts had not been stated before the Court, which is that prior to passing the impugned order, a show cause notice and an opportunity of hearing was given (although it was not required to be given to the petitioner). To substantiate this argument, the respondents have annexed as C.A. -1 a complaint of one Smt. Tara Sati to the District Magistrate, Nainital made vide her letter dated

19.3.2010, in which Smt. Tara Sati, Prinicipal, “Pushpak Purva Madhyamik Vidhyalaya”, Ram Nagar, Nainital, who was entitled to get certain amount from the State being a Participatory in a programme known as “Pahal”, which is a part of Universal Education, alleged that the petitioner i.e. Dr. Hem Chandra Joshi asked for a “bribe” and when she refused to oblige these approvals were not granted. On this complaint, the District Magistrate, Nainital delegated the matter to the District Education Officer. The District Education Officer gave a copy of the complaint to the petitioner and asked for a reply on the said complaint. On this, the petitioner also replied vide his letter dated

23.4.2010, which is annexed as Annexure C.A.-4 to the Counter Affidavit. It has also been noticed by this Division Bench that the petitioner in its rejoinder affidavit has not denied the factum or the veracity of these notices.

#5. The contention of the petitioner is that he was not in-charge of the Scheme “Pahal” and therefore there was no question of asking for illegal gratification. Be that as it may, the petitioner first and foremost has not come with the clean hands before this Court and has given an incorrect statement in the Writ Petition to the effect that he was not given any opportunity of hearing. This is incorrect as has been proved in the counter affidavit, rejoinder affidavit and the documents filed therein. Therefore, this much is clear that before passing the impugned order, an opportunity of hearing was given to the petitioner. Since the petitioner was working only on deputation, at least on the basis of evidence before the concerned Authority an opinion can be formed about performance of the petitioner, while on deputation as District Coordinator is far from satisfactory. Since this performance was unsatisfactory the period of deputation was curtailed. Under these given set of facts, it is difficult to find any fault with the orders passed by the concerned Authorities terminating the appointment of the petitioner vide order dated 11.6.2010.

#6. The petitioner had cited certain judgments before learned Single Judge saying that it was not an ordinary deputation but a deputation which was after a selection and for a fixed period. Before the learned Single Judge, the petitioner had cited two judgments, namely, (a) Union of India and another Vs. V. Ramakrishnan and others (2005) 8 SCC 394 and (b) K.H. Phadnis Vs. State of Maharashtra 1971 (1) SCC 790. The first case cited by the petitioner was a case, where the Apex Court itself in Paragraph 32 had made it clear that deputationist does not have any indefeasible right to hold the post and ordinarily the term of the deputationist should not be curtailed except on such grounds as, for example unsuitability or unsatisfactory performance. Relevant portion of paragraph 32 of the said judgment is reproduced hereunder: tenure of deputation is specified, despite a “…When 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.”

#7. In the present case, the performance of the petitioner was definitely unsatisfactory. Moreover, it was not a special category of deputation as is being alleged. Appointments were to be made on the post of District Coordinators, for which applications were called for from the Assistant Teachers and consequently, the petitioner / appellant being one of the applicant, he was appointed. The petitioner has not been able to make out any case of rigorous selection or appointment as well as is being claimed. In view of the facts that the appointment was on deputation, this Court finds no illegality in the order dated 11.6.2010.

#8. The facts of the second case cited by the appellant/petitioner are totally different from the facts of the present case. In the case of Union of India Vs. V. Ramakrishnan (supra), the petitioner was working on deputation in the Public Works Department, Government of Pondicherry, but was repatriated to his parent Department on the basis of alleged complaint and inquiry against him, but what is more relevant is that this repatriation was in fact a “reversion” as the post on deputation was higher than the post to which he was reverted. It was purely on the parameters of Article 311 of the Constitution of India that the Apex Court adjudicated the matter in K.H. Phadnis (supra). Relevant paragraph 17 of the said judgment reads as under: “17. The order of reversion simpliciter will not amount to a reduction in rank or a punishment. A Government servant holding a temporary post and having lien on his substantive post may be sent back to the substantive post in ordinary routine administration or because of exigencies of service. A person holding a temporary post may draw a salary higher than that of his substantive post and when he is reverted to his parent department the loss of salary cannot be said to have any penal consequences. Therefore though the Government has right to revert a Government servant from the temporary post to a substantive post, the matter has to be viewed as one of substance and all relevant factors are to be considered in ascertaining whether the order is a genuine one of “accident of service” in which a person sent from the substantive post to a temporary post has to go back to the parent post without an aspersion against his character or integrity or whether the order amounts to a reduction in rank by way of punishment. Reversion by itself will not be a stigma. On the other hand, if there is evidence that the order of reversion is not “a pure accident of service” but an order in the nature of punishment, Article 311 will be attracted.”

#9. This case is not a case, where the petitioner has been reverted to his parent Department by way of punishment. The petitioner has been repatriated to his parent department purely on the ground that the work and conduct was found unsatisfactory by the Borrowing Authority. Under these circumstances, the Borrowing Department had every right to terminate the services of the petitioner, which was purely on the basis of deputation. The learned Single Judge, therefore, while dismissing the Writ Petition of the petitioner has also relied upon various Supreme Court Judgments. In sum and substance, the learned Single Judge has held that a deputationist does not have any right or lien on the post.

#10. No order as to costs. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J.)

27.07.2010 Rathour