High Court · 2025 on 06 Feb 2025

Judgment

1. Heard Sri Anand Mani Tripathi, Advocate assisted by Sri Anurag Tripathi, learned counsel for the petitioner, Sri P.K.Singh, learned Additional Chief Standing counsel appearing on behalf of the respondents no. 1 to 3, Sri Gaurav Mehrotra, Advocate assisted by Sri Utsav Mishra, learned counsel appearing on behalf of the respondent no. 4 and Sri Gyanendra Kumar Srivastava, learned counsel for the respondent no. 5.

2. Instant writ petition has been filed praying for the following main reliefs:- "(i) To issue a writ, order or direction in the nature of Certiorari thereby quashing the impugned office order dated 10.10.2023 passed by the Opposite Party No. 3, as contained annexure no. 1 to the writ petition. (i) (a) To issue writ, order or direction in the nature of Certiorari thereby quashing the order dated 01.11.2023 passed/issued by opposite party no. 4 in view of the letter/order passed by the Under Secretary/Deputy Secretary as contained in annexure no. 8 to this writ petition. (ii) To issue a writ, order or direction in the nature of Certiorari thereby quashing the order dated 25.09.2023 passed by the Opposite Party No. 5, as contained annexure no. 2 to the writ petition so far as it relates to the petitioner. (iii) To issue a writ, order or direction in the nature of Mandamus thereby commanding/directing the opposite parties to allow the petitioner to continue to work and discharge his duties on the post of Accountant with present department on deputation basis and pay him salary and other allowances each and every month regularly ." 2

3. Contention of learned counsel for the petitioner is that the petitioner is an employee of the respondent no. 5 i.e Director, Post Graduate Institute of Child Health, Noida, Uttar Pradesh. An advertisement dated 26.03.2021, a copy of which is annexure 3 to the writ petition was issued by the respondent no. 4 inviting applications from various persons on deputation/transfer etc for various posts including the post of Accountant. The petitioner being perfectly eligible applied in pursuance to the said advertisement and was declared selected vide order dated 17.07.2021 and thereafter vide order dated 02.08.2021, copies of which are cumulatively annexed as

annexure 4 to the writ petition, was sent by his parent department i.e the respondent no. 5 on deputation to the respondent no. 4 for a period of three years and was relieved. The selection order dated 17.07.2021 provided that the deputation of the petitioner would be governed by the Government orders with regard to deputation.

4. Contention of learned counsel for the petitioner is that the relevant Government order governing deputation is dated 26.05.2003, a copy of which is annexure 7 to the writ petition which provides that the minimum period of deputation would be three years and maximum period would be five years.

5. Initially, a letter dated 25.09.2023 was issued by the parent department of the petitioner i.e the respondent no. 5, a copy of which is annexure 2 to the writ petition indicating the difficulties being felt by the respondent no. 5 and praying for ending the attachment of various persons including the petitioner. In the said order, it was specifically indicated that as the petitioner is working on deputation, the same is hampering the medical facilities of the patients.

6. It is contended that despite existence of the aforesaid Government order and the petitioner having been sent on deputation to the borrowing department i.e the respondent no. 4 yet vide order 3 dated 20.10.2023, a copy of which is annexure 1 to the writ petition, the petitioner has been repatriated by the respondent no. 3. The said order has been passed in pursuance through an order dated 25.09.2023 as addressed to the Principal Secretary of the Namami Ganga.

7. Subsequent thereto, vide order impugned dated 01.11.2023, a copy of which is annexure 8 to the writ petition passed by the respondent no. 4, the petitioner has been relieved. The said order also refers to the order dated 20.10.2023 as referred to above.

8. Being aggrieved with the aforesaid orders, the instant writ petition has been filed.

9. This Court vide order dated 03.01.2024 has stayed the operation of the orders impugned until further orders. On the basis of the same, the petitioner still continues on deputation with the respondent no. 4.

10. The argument of the learned counsel for the petitioner is that the order impugned dated 25.09.2023 which is the order issued by the parent department does not pertain to the petitioner as it only pertains to those employees who have been attached to various department and does not pertain to those who are working on deputation.

11. Further argument is that the order impugned dated 20.10.2023 has been passed by the Deputy Secretary who has got no jurisdiction to pass the said order.

12. Another argument is that as per the Government order dated

26.05.2023, once a maximum period specified for deputation is five years and the petitioner having still not completed five years on deputation, he cannot be repatriated.

13. Placing reliance on the averments made in paragraph 6 of the supplementary affidavit dated 22.01.2025, the argument is that on the one hand, the petitioner, an employee of the respondent no. 5 is sought to be repatriated while various persons of his parent 4 department are still working in the other departments. Thus, the repatriation of the petitioner is clearly discriminatory.

14. In this regard, reliance has been placed by the learned counsel for the petitioner on the following judgment:- (i) Ashok Kumar Ratilal Patel Vs. Union of India and Anr- (2012) 7 SCC 757.

14. On the other hand, Sri Utsav Mishra, learned counsel for the respondent no. 4 has argued that after the petitioner had applied for deputation in terms of the advertisement dated 26.03.2021 and he was found fit for being sent on deputation, the parent department i.e the respondent no. 5 relieved the petitioner for deputation for a period of three years as would be apparent from a perusal of the order dated

02.06.2021. Consequently, the petitioner would be bound by the aforesaid conditions as specified for his deputation as indicated by the parent department.

15. So far as the reliance placed by the learned counsel for the petitioner on the Government order dated 26.05.2003 is concerned, Sri Mishra argues that a perusal of the said Government order would indicate that a reference has been given to another order dated

24.06.2002.

16. Sri Mishra has produced the copy of the aforesaid order dated

24.06.2002 along with a Government order dated 16.03.1999. The Court being a court of record, takes the aforesaid orders on record.

17. Sri Mishra argues that a perusal of the order dated 24.06.2002 would indicate that the term of all deputations has been specified as three years and in case the term is to be extended beyond three years, then concurrence of the Finance Department has been made mandatory. The said condition is also contained in Government order dated 16.03.1999 which provides that the normal tenure of deputation would be three years but in special circumstance with the concurrence 5 of Finance Department, the term can be extended as five years.

18. Placing reliance on the aforesaid orders, the argument of Sri Mishra is that once the Government order dated 26.05.2003 itself indicates the normal tenure for deputation as three years as such continuance beyond that upto five years, as has been argued by the learned counsel for the petitioner, would necessarily have to have the concurrence of the Finance Department which is lacking in the instant case and consequently, there cannot be any occasion for extension or continuance of the deputation of the petitioner beyond three years and as such, the respondents have correctly repatriated the petitioner to his parent department.

19. It is also contended that the order dated 25.09.2023 was issued by the parent department indicating that it was having difficultly on account of its staff having gone on deputation and attachment to various departments and as such it was requested to end the attachment and repatriate the said employees to the parent department which resulted into the order dated 20.10.2023 being passed directing the respondent no. 4 to cancel the deputation which in turn has resulted into the order dated 01.11.2023 and the petitioner being relieved from the borrowing department and thus there is no infirmity in the said order.

20. Placing reliance on the averments made in paragraph 16, 18 & 21 as well as ground (b) of the petition, the argument of Sri Mishra is that the petitioner himself admits that he was sent on deputation for a period of three years and consequently, there cannot be any occasion for the petitioner to now claim that he is to continue beyond three years in the borrowing department more particularly when neither the borrowing department nor the parent department want the deputation to continue.

21. In this regard, reliance has been placed on the following 6 judgments:- (i) Dr. O.P.Singh Vs. State of Uttar Pradesh and Ors- 2002 SCC OnLine All 463 (ii) Kunal Nanda Vs. Union of India and Ors- (2000) 5 SCC 362 (iii) Ratilal B. Soni and Ors Vs. State of Gujarat and Ors- 1990 (Supp) SCC 243 (iv) State of Punjab and Ors Vs. Inder Singh and Ors- (1997) 8 SCC 372 (v) Umapati Choudhary Vs. State of Bihar and Ors- (1999) 4 SCC 659

22. Sri G.K.Srivastava, learned counsel for respondent no. 5 has also adopted the arguments of Sri Mishra, learned counsel for the respondent no. 4.

23. Heard learned counsel appearing on behalf of the contesting parties and perused the records.

24. From the arguments as raised by the learned counsel appearing on behalf of the contesting parties and perusal of records it emerges that the petitioner who is an employee of the respondent no. 5- Institute had applied for deputation in pursuance to an advertisement dated 26.03.2021 issued by the respondent no. 4 inviting applications from various persons on deputation/transfer including the post of Accountant. The petitioner was found eligible and was sent by his parent department i.e the respondent no. 5 on deputation to the respondent no. 4 for a period of three years vide order dated

02.08.2021. This fact was duly indicated in the order dated

02.08.2021. The petitioner submitted his joining. The appointment order on deputation which was issued by the respondent no. 4 on

17.07.2021 indicated that the petitioner was being appointed on 7 deputation and his deputation would be governed by the Government orders issued in this regard.

25. An order dated 25.09.2023 was passed by the parent department indicating the difficulties being felt by it and praying for ending of the attachment of various persons including the petitioner. However, in the said order, against the name of the petitioner, it was specifically indicated that the petitioner is on deputation.

26. In pursuance thereof, the order dated 20.10.2023 was issued whereby the deputation of the petitioner was directed to be ended and for being relived for his parent department.

27. Thereafter, an order dated 01.11.2023 was passed by the respondent no. 4 and the petitioner was relieved.

28. Being aggrieved, the instant writ petition has been filed.

29. Argument of the learned counsel for the petitioner is that as the appointment order of the petitioner on deputation dated 17.07.2021 specifically indicated that the deputation of the petitioner would be governed by the relevant Government orders and as the Government order dated 26.05.2003 indicates that a deputationist should not be returned to his parent department prior to three years and that the deputation period can continue upto five years as such, the petitioner who has not yet rendered five years of service in the borrowing department could not have been repatriated to his parent department. It is also contended that various persons who were sent on deputation/ on attachment basis are still continuing in other departments and there cannot be any occasion for the petitioner to have been repatriated to his parent department.

30. From a perusal of the arguments it is thus apparent that the sheet anchor of the claim of the petitioner for continuing on deputation beyond three years is the Government order dated

26.05.2003. 8

31. However, the said Government order refers to an order dated

24.06.2002 which has been placed on record from which it emerges that those persons on deputation who have completed three years, their deputation should only be extended after approval from the Finance Department. Incidentally, the Government order dated

16.03.1999 provides that normal period of a deputationist would be three years but in the special circumstances and with the approval of the Finance Department, the term can be continued upto five years.

32. In the instant case, upon a request being made by the parent department, the petitioner has been repatriated to his parent department. The petitioner has already completed three years on deputation, having gone on deputation in August, 2021 and having rendered three years of service in August, 2024 when a request was made by the parent department for repatriation of the petitioner and others may be on account of the difficulties being faced by the department. However, even if the letter date 25.09.2023 issued by the department is not considered even then the petitioner would not have any right for continuing on deputation beyond a period of three years more particularly when the Government order upon which he has placed reliance also indicates that the period of deputation would be three years and should not be more than five years and the earlier Government order dated 16.03.1999 read with the order dated

24.06.2002 specifically provide that the normal period of deputationist would be three years and anything beyond three years would have to receive the approval of the Finance Department in special circumstances which is not present in the instant case. Thus, the reliance placed on the Government order dated 26.05.2003 is patently misconceived as the same would have to be read along with the earlier Government orders in this regard.

33. In this regard, the concept of deputation may also be considered as per law laid down by the Apex Court in the case of Umapati 9 Choudhary (supra) wherein the Apex Court has held that the deputation involves voluntary decision of the lending authority, borrowing authority and the employee concerned.

34. In the instant case, though there is a decision by the petitioner for continuing on deputation yet neither the borrowing department nor the lending department is interested in continuance of the deputation of the petitioner and consequently, no error is found in the repatriation order of the petitioner.

35. Likewise, the Apex Court in the case of Inder Singh (supra) has held that the deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis and after expiry period of deputation the employee has to come back to his parent department to occupy the same position unless he has earned promotions in his parent department. The Apex Court has also held that there cannot be any escape to go back to the parent department and for being sent back to the parent department.

36. Likewise, the Apex Court in the case of Ratilal B. Soni (supra) has held that a person being on deputation can be reverted to his parent department at any time and he does not get any right to be absorbed on the deputation post.

37. So far as the judgment over which reliance has been placed by the learned counsel for the petitioner namely the judgment of the Apex Court in the case of Ashok Kumar Ratilal Patel (supra), the same was a case wherein an application had been invited for appointment on the basis of deputation on the post of Director. Despite the petitioner being found eligible and being issued an offer an appointment on deputation and he having given his readiness and having accepted to join on the said post, the borrowing department cancelled the offer of appointment which was challenged by the employee concerned. In this view of the matter, the Apex Court has 10 held that even for the appointment on deputation in the services of the State, the provisions of Articles 14 & 16 of the Constitution of India are to be followed and no person can be discriminated.

38. In the instant case, the petitioner has been repatriated to his parent department after the end of the three years period although no period of deputation was specified in the appointment order yet the period was specified in the relieving order issued by the parent department. The period of deputation would be governed by the Government orders issued in this regard and once the Government order itself indicates that the normal period of deputation would be three years and anything beyond that would have to have the approval of the finance department consequently, merely because other persons might have been continued on deputation, the same cannot give a right to the petitioner to continue on deputation in the borrowing department more particularly when both borrowing and the parent department had expressed their unwillingness of continuing the petitioner on deputation.

39. Keeping in view the aforesaid discussion, no case for interference is made out. Accordingly, the writ petition is dismissed. Order Date :- 06.2.2025 Pachhere/- (Abdul Moin, J.) SATYENDRA SINGH PACHHERE High Court of Judicature at Allahabad, Lucknow Bench