Hon'ble Ashok Pal Singh,J.
(Delivered by Hon'ble Rakesh Tiwari, J) Heard learned counsel for the parties and perused the record.
This intra-court special appeal has been preferred against the judgement and order dated 19.5.2014 passed in Civil Misc. Writ Petition No. 20496 of 1998 (Ram Singh Jatav Vs. Principal Secretary, Nagariya Garibi Unmulan Shahariya Rozagar Yojna, Lucknow & Others).
The background of the dispute has been summarised by the writ court in the judgement impugned, hence instead of recapitulating the facts and arguments again we reproduce the relevant extract of the judgement which reads thus :-
"Heard learned counsel for the petitioner, learned Standing Counsel for the respondents no. 1, 3 & 4, and Sri Sujeet Kumar, learned counsel for the respondents no. 2 & 6.
It appears that the petitioner, who was a clerk in Nagar Nigam, Bareilly, was sent on deputation to the State Urban Development Agency (for short 'SUDA') and was posted as Assistant Project Officer in District Urban Development Agency (for short 'DUDA'), Rampur vide order of Additional Director, SUDA dated 28th June, 1996, until further orders. Later on, he appears to have been transferred from DUDA, Rampur to DUDA, Farrukhabad.
However, by an order dated 8th May, 1998, the Director of SUDA, in reference to the letter dated 18th April, 1998 of District Magistrate/Chairman DUDA, Farrukhabad as well as his own letter dated 28th June, 1996, repatriated the petitioner to his parent department on the ground that his services were not found satisfactory. In pursuance of the said order, the District Magistrate/Chairman DUDA, Farrukhabad, vide his order dated 12th May, 1998 relieved the petitioner from DUDA, Farrukhabad to join his original post of clerk in the parent department i.e. Nagar Nigam, Bareily.
Being aggrieved, the petitioner filed this writ petition challenging the aforesaid order of his repatriation dated 12th May, 1998 (referred in the writ petition as order of reversion). Initially, the challenge in the writ petition was on the ground that the repatriation of the petitioner was in violation of Article 311 (2) of the Constitution of India and the same had actuated with malice and ulterior motive. However, no person was impleaded by name as respondent.
Subsequently, by means of Amendment Application No. 93476 of 1999, filed on 21st December, 1999, Sri Moti Lal Gupta, the then General Secretary, Bhartiya Janta Party, Farrukhabad, Sri Sushil Kumar Shakya, the then Member of Legislative Assembly and Sri S.N.Jha, the then Director of SUDA, were sought to be impleaded by name in the writ petition.
Along with the aforesaid application for impleadment, a detailed supplementary affidavit was filed, wherein it was alleged that the repatriation of petitioner was at the instance of aforesaid political persons. In support of the allegation, a letter dated 6th March, 1998 of aforesaid Sri Gupta and two letters dated 20th March, 1998 & 11th April, 1998 of aforesaid Sri Shakya, were brought on record. Vide letter dated 20th March, 1998 of Sri Shakya, the District Magistrate/Chairman DUDA, Farrukhabad was requested to write to the Director of SUDA for transfer of the petitioner and in the order of the Director of SUDA dated 8th May, 1998, there is a reference to a letter of District Magistrate/Chairman DUDA, Farrukhabad dated 18th April, 1998 regarding unsatisfactory work of the petitioner, but said letter of the District Magistrate/Chairman DUDA, Farrukhabad dated 18th April, 1998 has not been brought on record by either of the parties.
It was asserted by the petitioner that the Chairman of DUDA, Farrukhabad wrote aforesaid letter dated 18th April, 1998 to the Director SUDA as a result of which, the impugned order of repatriation was passed and accordingly, it was contended by the learned counsel for petitioner that the impugned order of repatriation was passed under political influence.
Besides this, certain other documents were also annexed to the said supplementary affidavit to show that the work of the petitioner was satisfactory and he achieved requisite targets but was unnecessarily harassed by the persons with vested interest. It was also asserted that the petitioner had already requested for being absorbed in SUDA to which his parent department i.e. the Nagar Nigam, Bareily had no objection. Certain recommendations for his absorption in SUDA were also brought on record. It was also stated that certain other persons were also repatriated from SUDA to their parent departments but subsequently their repatriation orders were set aside. However, the petitioner was treated differently and was discriminated in the matter. It was also stated that after passing of the repatriation order, the petitioner was not paid his salary for several months.
The aforesaid amendment application of petitioner was allowed on 18th January, 2008 and notices were issued to the newly impleaded private respondents. The order-sheet reveals that as per the office report dated 20th September, 2008, notices issued to the said respondents no. 7, 8 & 9, were received back in the office unserved with the report that the addressees were not residing at the addresses mentioned in the notices and had moved away. The record does not indicate any further notice having been issued or served on the said respondents. As such, no one put in appearance on behalf of the private respondents nor any counter affidavit has been filed on their behalf.
Subsequently, another amendment application was filed in the year 2008, by means of which, a prayer for directing the respondents to pay arrears of salary to petitioner for the period w.e.f. 01st March, 1998 to 30th April, 200, was sought to be added.
Again a supplementary affidavit was filed along with the said amendment application stating therein that after receipt of the repatriation order, the petitioner had submitted his joining report in his parent department on 16.06.1998 but he was not permitted to resume duties. Therefore, in this regard he submitted several other applications dated 16.12.1998, 14.06.1999, 23.08.1999 and 27.12.1999 in the Nagar Nigam, but he was not allowed to join. Ultimately, pursuant to another application dated 01.05.2000, he was allowed to join and ever-since then, the petitioner is discharging his duties in Nagar Nigam, Bareilly i.e. his parent department.
It was also stated in paragraph 6 of the 3rd supplementary affidavit that on account of his illness, the petitioner had been granted leave w.e.f. 08.05.1998 to 30.05.1998 by the Project Director, DUDA, Farrukhabad. The illness of the petitioner continued up to 30th April, 2000. Various medical certificates issued in this regard were also annexed with the affidavit. The petitioner was relieved from DUDA, Farrukhabad on 12th May, 2000 but he has not been paid salary for the period w.e.f. 1st March, 1998 to 30th April, 2000. The aforesaid amendment application was allowed on 6th May, 2013 and the amendments were incorporated.
A counter affidavit has been filed on behalf of the respondents no. 2 & 6, which refers to certain FIRs having been lodged against the petitioner on 4th August, 1998 and 14th August, 1998 u/s 409/420/467/468/471 I.P.C. regarding issuance of some backdated cheques as well as for indulging in various financial irregularities while posted under SUDA. In rejoinder affidavit, the petitioner has tried to rebut said allegations made in the counter affidavit, by stating that final reports had been filed in the aforesaid FIRs, which had been duly accepted by the competent court, as the petitioner was not at all involved in any of the offences alleged against him and the FIRs had been lodged malafide. The respondents have concealed the aforesaid material facts.
The judgement in this Special Appeal is challenged on the ground that the court in the writ petition has incorrectly observed that the notices issued to respondent Nos. 7 & 8 were received back unserved, whereas the correct fact is that they were not received back unserved and notice to respondent no. 9, namely, Shri S.N. Jha, Director of SUDA only was received back unserved; that at no stage it was brought to the notice of the appellant or his counsel by the court about this fact, hence the petitioner could not take fresh steps for service upon the private respondent nos. 7 & 8 and as respondent No. 9, at the relevant time, was posted as Principal Secretary, Garibi Unmulan and Shahariya Rozgar Yojna, in the Government of Uttar Pradesh. Therefore, notice sent to him at the office address of SUDA should have been deem to be sufficient by the Court.
The impugned judgement is also assailed on merits on the ground that the writ court erred in holding that no relief could be granted against an order of repatriation, which according to the appellant was malafide, arbitrary, unjustified and without any basis. The counsel for the appellant vehementally argued that the order of repatriation is discriminatory as other persons who had been posted on deputation continued on their posting and were absorbed in service there on the post of Assistant Project Officer (hereinafter referred as A.P.O.), even after the impugned order dated 08.05.1998 of repatriation of the appellant reverting him from pay scale of Rs. 1400-2600, which he was getting on the post of Assistant Project Officer in D.U.D.A. to the post of Clerk (Lipik), Nagar Nigam in pay scale of Rs. 950-1500 in his parent department, which caused him not only pecuniary loss but also loss of higher designation on which he was working on deputation in DUDA. According to him the order is also malafide and arbitrary having been passed on the complaint of an M.L.A., who was uncomfortable with working of the appellant in the various projects of DUDA and for this reason that an F.I.R. was lodged against appellant in which final report has been submitted and accepted by the Court particularly when the circumstances did not warrant passing of such an order. Article 14 and 16 of Constitution of India were violated.
Hence, the petitioner appellant was entitled to the relief in the writ petition as order dated 08.05.1998 repatriating him to his parent department having based on a complaint was stigmatic, punitive and ought to have been preceded by a disciplinary enquiry, which was not conducted in accordance with law. Rather it proceeded ex-parte without affording any opportunity to the appellant to defend himself or even to show cause prior to passing of the order impugned which is apparent from letter dated 18.04.1998 passed by the District Magistrate / Chairman, DUDA.
Appellant cited certain instances where certain deputationists in S.U.D.A. / D.U.D.A. were repatriated to their parent department allegedly due to their unsatisfactory work but were taken back again on deputation there. It is argued that the writ court failed to consider this aspect and erred in denying the relief to the petitioner / appellant against the impugned orders dated 08.05.1998 and 12.05.1998 to undo the wrong by exercise of its extra ordinary powers under Article 226 of the Constitution of India.
Per contra learned Standing Counsel has defended the order and submits that the petitioner / appellant was on deputation and was not in service of DUDA, therefore, retained his lien on his substantive post of clerk in his parent department in Nagar Nigam. It is urged that during his service the petitioner / appellant may have worked on deputation drawing higher pay of Rs. 1400-2600 consumerating with that post but on repatriation to his parent department on the post on which he retained his lien was working and prior to going on deputation cannot be said to be illegal or arbitrary as the order of deputation and repatriation are in accordance with Rule. Moreover he could only have remained in SUDA/DUDA for the period of his deputation which was not extended. Thus having retired from the Nagar Nigam from his substantive post he has no right to claim relief from the trasferee department, were he was sent on deputation for a limited period. Since he had not right to such relief, it has rightly been ... devoid to him by the writ court.
The learned Standing Counsel further submits that even if, there is a clerical mistake in the office report to the effect that notice sent in respect of respondent nos. 7 and 8 were received unserved would not have any effect on the merits of the case in the facts and circumstances of this case as admittedly, according to own case of the appellant, respondents have been served. It is the duty of petitioner to see the record and the report of the Registry regarding service before advancing arguments and not for the Court to find out any mistake in the report and inform him. Therefore, after the notices were issued by the court, counsel for the appellant ought to have inspected the record and inform the court about any discrepancy in the office report regarding service.
Before expressing our view on the judgement impugned, we would like to analyse the findings recorded by the writ court in the operative portion of its judgement which reads as under :-
"Having heard the learned counsel and after perusal of the record, this Court gave its anxious and thoughtful consideration to the facts and circumstances of the case and finds that the impugned order of repatriation was passed on 12th May 1998 and the writ petition was filed on 31st May, 1998, but no interim stay order was granted in favour of the petitioner. Admittedly the petitioner resumed his duty in his parent department w.e.f. 1st May, 2000. More than 16 years have passed since passing of the order of repatriation. After repatriation, the petitioner has been working in his parent department for the past about 14 years. A deputationist has lien in his parent department. He does not have any enforceable/indefeasible right to continue in the borrowing department, certainly not at such belated stage.
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 get absorbed in the department to which he had gone on deputation.
The private respondents, against whom malafide has been alleged in the supplementary affidavit filed in 1999, have not been served. Notices were issued to them in 2008. In their absence, as also in the absence of letter dated 18th Aplril, 1998 sent by the District Magistrate/ Chairman DUDA, Farrukhabad, it is not practicable to consider the allegations of malafide. Assuming for a moment, only for the sake of discussion, that the order of repatriation was passed illegally in the year 1998, no substantive relief can be granted with respect to repatriation of the petitioner after expiry of more than 16 years, when the petitioner has joined in his parent department on 01.05.2000 and has been working there for the past 14 years.
In view of the above discussions, the writ petition, in so far as it relates to relief no. 1, has for all practical purposes, lost its efficacy. Consequently, this relief cannot be granted at such belated stage.
The only question, which remains alive for consideration, is as to whether the petitioner had submitted his joining report in the parent department pursuant to the order of repatriation or not, and whether he was permitted to join in the parent department or not, and whether he is entitled to the arrears of salary w.e.f. 1st March, 1998 to 30th April, 2000. In this regard, it is noted that in the 3rd supplementary affidavit filed by the petitioner, though he has stated that he had submitted the joining report in his parent department on 16th June, 1998 but he was not allowed to join and he has also submitted subsequent letters till 1999 without any success and that he was allowed to join only in May, 2000 but in paragraph 6 thereof, a somewhat contradictory statement has been made by him to the effect that the illness of the petitioner continued up to 30th April, 2000.
The aforesaid issues involve disputed questions of fact, which is not possible for this Court to adjudicate at this belated stage, therefore, in this regard this Court is of the considered opinion that the petitioner may make a detailed representation on this issue claiming salary for the aforesaid period annexing therewith all necessary documents before the respondents no. 2 and 5 respectively, as the case may be, and in the event such a representation is submitted within a period of one month from the date of receipt of the certified copy of this order, the said respondents shall look into the matter with all seriousness and after affording due opportunity of hearing to the petitioner, shall take a considered decision and pass a reasoned order with regard to continuity in service of the petitioner and his entitlement to salary for the aforesaid period. The decision so taken shall be communicated to the petitioner forthwith. Needless to say that the petitioner shall have right to challenge the said decision, if it goes against him, before the appropriate forum.
Accordingly, the writ petition is disposed of."
From a perusal of the judgement, we find that the appellant was sent on deputation by the Nagar Nigam to SUDA / DUDA and the discretion to take him in service by absorption vested in the Chairman of SUDA who is the Competent Authority. The strained relation of the petitioner with public persons in implementation of project works was not found conducive and beneficial to the work of the departments and complaint were recorded against him. It has for the appellant to have moved the department for being considered for absorption but it appears that he did not make any such application. It is equally true that the appellant had been repatriated from SUDA/DUDA to his parent department,i.e. Nagar Nigam, Bareilly and had joined there about 14 years back on his substantive post of clerk on which he was having his lien.
In our considered opinion, the writ court has given cogent reasons for not accepting the prayers of the appellant made in the writ petition impugned which does not suffer from any illegality or infirmity. The appellant has failed to establish violation of any of his legal rights, therefore, the judgement impugned is upheld.
For all the reasons stated above, we do not find any illegality or infirmity in the order impugned. The Special Appeal is dismissed. No order as to costs.
Order Date :- 9th September, 2014 S. Kumar