JUDGMENT Sudhir Agarwal, J.
1. Heard learned Counsel for the parties.
2. This writ petition has been filed against the order dated 21.7.2005, issued by Additional Commissioner (Administration), Gram Vikas, U.P. Lucknow (Respondent No. 2) communicating the decision of the State Government issued on 14.7.2005 whereby all the posting on deputation in D.R.D.A. have been cancelled and the employees sent on deputation have been directed to repatriate.
3. The petitioner working as health worker under Chief Medical Officer, Allahabad was sent on deputation vide order dated 8.2.2005 in Rural Development Authority, Allahabad for a period of three years. It is stated that the said deputation was without any deputation allowance.
4. Learned Counsel for the petitioner submitted that the appointment of the petitioner was fixed for a period of 3 years. Repatriation before expiry of the aforesaid period by means of the impugned order is arbitrary and discriminatory.
5. Learned Counsel for the respondents however, submits that the Government servant has no right to continue on deputation and it is open to the parent department to recall the person sent on deputation at any time.
6. It is not disputed by the parties that the petitioner was sent on deputation vide an order dated 8th February 2005, to work as Assistant Project Officer under District Rural Development Project, Allahabad, and the said deputation has been cancelled by means of the order dated 21st July 2005. It is not the case of the petitioner that the said order has been passed either with mala fide intention or to favour somebody else. The only case of the petitioner is that once she has joined on deputation, the same could not have been cancelled. A right of an employee to continue on deputation has been considered in a catena of cases. In Kunal Nunda v. Union of India , the Apex Court held as under:
... The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his Parent Department to serve in his substantive position therein at the instance of either of the Departments, and there is no vested right in such a person to continue for long on deputation or to get absorpted Department to which he had gone on deputation.... (para 6)
7. This Court in Ashok Kumar Pandey v. State of U.P. and Ors. Writ Petition No. 52527 of 2005 decided on 3rd August 2005, has held as under:
...It is well settled that a deputationist has no right to remain on deputation and he can be sent back to his Parent Department at any time....
8. In the case of Devi Kumar v. Rajya Krishi Utpadan Mandi Parishad 2004, 3 UPLBC 2318, this Court observed as under:
...The period of deputation originally fixed can be cut short, if considering necessary, a deputationist has no right to continue in the deputation post....
9. A Division Bench of this Court in the Gauri Shanker v. State of U.P. and Ors. 2005 (1) AWL 426 held as under:
...A deputationist has no right to remain on deputation and he can be sent back to his Parent Department at any time....
10. The same view has been followed by another Division Bench of this Court in the case of Dr. Seema Kundra v. State of U.P. 2003 (1) AWL 520 para 4.
11. It is not the case of the petitioner that as a result of cancellation of the deputation either her status would be adversely affected or salary to which she was entitled in the Parent Department would be reduced in any manner. Learned Counsel for the petitioner submitted that once having been sent on deputation for a period of 3 years she had a right and legitimate expectation to expect that she would continue for a period of three years on deputation, cancellation of deputation pre mature is, therefore, arbitrary. In my view, the doctrine of legitimate expectation is not at all applicable and attracted in the present case. In the case of National Buildings Construction Corporation v. S. Raghunathan and Ors., the Apex Court has considered in detail the doctrine of legitimate expectation, its genus and development in detail:
18. The doctrine of "Legitimate Expectation" has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without any iota of abuse of discretion. The policy statements cannot be disregarded unfairly or applied selectively. Unfairness in the form of unreasonableness is akin to violation of natural justice. It was in this context that the doctrine of "Legitimate Expectation" was evolved which has today become a source of substantive as well as procedural rights. But claims based on "Legitimate Expectation" have been held to require reliance on representations and resulting detriment to the claimant in the same way as claims based on promissory estoppel.
19. Lord Scarman in R. v. Inland Revenue Commissioners ex p. Preston (1985) AC 835 laid down emphatically that unfairness in the purported exercise of power can amount to an abuse or excess of power. Thus the doctrine of "Legitimate Expectation" has been developed, both in the context of reasonableness and in the context of natural justice.
20. Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service (1985) AC 347 laid down that doctrine of "Legitimate Expectation" can be invoked if the decision which is challenged in the court has some person aggrieved either (a) by altering rights or obligations of that person which are enforceable by or against him in private law; (b) by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that it will not be withdrawn without giving him first an opportunity of advancing reasons for contending that it should not be withdrawn.
21. The Indian scenario in the filed of "Legitimate Expectation" is not different. In fact, this Court, in several of its decisions, has explained the doctrine in no uncertain terms.
22. In Navjyoti Co-op. Group Housing Society v. Union of India, , the decision of the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service 1985 AC 374 (Supra) was followed and that decision was summarized in the following words, (at p. 3089 of AIR SCW:
It has been held in the said decision that an aggrieved person was entitled to judicial review if he could show that a decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he was given reasons for withdrawal and the opportunity to comment on such reasons.
23. This Court further observed as under (1992 AIR SCW 3075 paras 15 and 16):
The existence of 'legitimate expectation' may have a number of different consequences and one of such consequences is that the authority ought not to act to defeat the 'legitimate expectation' without some overriding reason of public policy to justify its doing so. In a case of legitimate expectation' if the authority proposes to defeat a persons 'legitimate expectation' it should afford him an opportunity to make representations in the matter....
It may be indicated here that the doctrine of 'legitimate expectation' imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such 'legitimate expectation'. Within the conspectus of fair dealing in case of 'legitimate expectation", the reasonable opportunities to make representation by the parties likely to be affected by any change of consistent past policy, come in.
24. In Food Corporation of India v. Kamdhenu Cattlefield Industries , it was held that in all State actions, the State has to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. It was further observed that there is no unfettered discretion in public law and a public authority possesses powers only to use them for public good. It was further observed as under (at p. 1513 of AIR SCW) :
The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in lamer public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.
25. In Union of India v. Hindustan Development Corporation (1993) 3 SCC 499 : 1993 AIR SCW 494, the meaning of word "Legitimate Expectation" was again considered. Ouoting from the case of Attorney General for New South Wales v. Quin (1990) 64 Aust LJR 327, the following lines :
To strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the courts adrift on a featureless sea of pragmatism, Moreover, the notion of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law.
The Court observed as under :
If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to consider but the Court must lift the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognized general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the Courts for the review of administrative action, must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is "not the key which unlocks the treasury of natural justice and it ought not to unlock the gates which shuts the Court out of review on the merits", particularly when the element of speculation and uncertainty is inherent in that very concept.
26. This doctrine was reiterated in M.P. Oil Extraction v. State of M.P. in which it was also laid down that though the doctrine of "Legitimate Expectation" is essentially procedural in character and assures fair play in administrative action, it may, in a given situation, be enforced as a substantive right.
12. In the case in hand, it is not the case of the petitioner, that her deputation has been cancelled on account of some misconduct or allegations attaching stigma to her service. It appears that the State Government took a decision not to make such deputations vide its order date 14th July 2005, and following the same the deputation of the petitioner has been cancelled by order dated 21st July 2005. In these circumstances, I do not find any reason to interfere with the order impugned in the present writ petition.
13. Lastly, the learned Counsel for the petitioner, however, submits that as a result of cancellation of her deputation she could not have joined her Parent Department and now after such a long time, the Parent Department is likely not to allow her to join her services and, therefore, this Hon'ble Court may be pleased to protect her interest to the extent that the Parent Department may allow her to join her services.
14. This Court hope and trust if the petitioner submits her joining report within a period of 6 weeks along with the certified copy of this order, the Parent Department would allow her to join her services. However, with respect to the past period for which the salary to the petitioner has not been paid, if any representation is made by the petitioner to the competent authority, it shall be considered and appropriate speaking order in accordance with law shall be passed by the competent authority within a period of 1 month from the date the representation is made by the petitioner.
15. With these observations the writ petition is dismissed.