Smt. Sunita Anand vs State Of Chhattisgarh
2022 Latest Caselaw 278 Chatt

                                        1

                                                                              NAFR
            HIGH COURT OF CHHATTISGARH, BILASPUR

                        Writ Petition (S) No. 495 of 2021

                            Reserved On 08.09.2021

                            Delivered on 17.01.2022

Smt. Sunita Anand W/o Prakash Anand, Aged About 61 Years, R/o E-4, Cultury
Awas, Rajkishor Nagar, Bilaspur, District Bilaspur Chhattisgarh
                                                                    ---- Petitioner

                                     Versus

1.    State Of Chhattisgarh Through Secretary, School Education Department,
      Mahanadi Bhawan, Mantralaya, Capital Complex, Atal Nagar, Nawa
      Raipur, District Raipur, Chhattisgarh

2.    Director, Public Education, Directorate, First Floor, Block C, Indrawati
      Bhawan, Mantralaya, Atal Nagar, Nawa Raipur, District Raipur
      Chhattisgarh

3.    Director, Public Instruction, Directorate, First Floor, Block C, Indrawati
      Bhawan, Mantralaya, Atal Nagar, Nawa Raipur, District Raipur
      Chhattisgarh

4.    District Education Officer, Bilaspur, District Bilaspur, Chhattisgarh

5.    Block Education Officer, Bilha, District Bilaspur, Chhattisgarh

6.    Joint Director Education, Division Bilaspur, District Bilaspur Chhattisgarh

7.    Government Of Arunachal Pradesh, Office Of Secretary Education, Civil
      Secretariat, Itanagar, District Papumpare (Arunachal Pradesh) 791111.

8.    Director Of School Education Department, Arunachal Pradesh Itanagar,
      Civil Secretariat, Itanagar, District Papumpare (Arunachal Pradesh)
      791111.

9.    Head Master, Government Middle School, Torwa, Block Bilha, District
      Bilaspur, Chhattisgarh
                                                                ---- Respondents

For Petitioner                 :      Mr. Manoj Paranjpe, Advocate
For State                      :      Mr. Amrito Das, Addl. Advocate General


                     Hon'ble Shri Justice P. Sam Koshy

1. The instant is a petition with peculiar set of facts filed by the petitioner

assailing the order dated 23.12.2020. Vide the impugned order the

petitioner has been repatriated to her parent department after crossing

the age of superannuation in the parent department, when there is just

about less than 1 ½ years of service left for superannuation in the

borrowing department.

2. The issue involved in the present writ petition is that "could the services

of the petitioner be repatriated when by efflux of time and by the conduct

of the respondent - present employer, the services of petitioner were

deemed and treated to be absorbed under the respondent - present

employer?"

3. To put the facts straight so as to give a clear picture of the issue involved

in the instant petition the brief factual matrix of the case is that, the

petitioner is a lady aged around 61 years and with just around 15

months of service left for attaining the age of superannuation under the

respondents. The petitioner under the present employer i.e. the Govt. of

Chhattisgarh is due for retirement in March, 2022. The petitioner in the

instant case is a permanent resident of the state of Chhattisgarh. She

was born and brought up in the state of Chhattisgarh. Her education

was also in the state of Chhattisgarh. She is a Post Graduate with M.Sc.

Degree, having done her M.Sc. way back in the year 1984.

4. The petitioner had applied for the post of Assistant Teacher in the

recruitment process initiated by the State of Arunachal Pradesh way

back in the year 1994. The petitioner got selected and an order of

appointment was issued on 12.09.1994 on the post of Assistant Teacher.

The petitioner worked with the state of Arunachal Pradesh till 2002.

5. Later the new State of Chhattisgarh was carved out in the year 2000 and

there arising large number of vacancies, the petitioner on 15.07.2002,

vide Annexure P-7, got an application for transfer on

deputation/absorption in the Directorate of School Education, Govt. of

Chhattisgarh, recommended and forwarded by the Govt. of Arunachal

Pradesh. The said recommendation was acceded by the Govt. of

Chhattisgarh and the petitioner was allowed for deputation service in the

State of Chhattisgarh.

6. Accordingly, vide Annexure P-8 dated 17.12.2002, the Govt. of

Arunachal Pradesh placed the services of petitioner at the disposal of

the Director of School Education, Govt. of Chhattisgarh on deputation

initially for a period of one year w.e.f. 01.01.2003. While relieving the

petitioner on deputation to the borrowing State i.e. State of Chhattisgarh,

the Govt. of Arunachal Pradesh had also given NOC in respect of

permanent absorption of petitioner under the Education Department,

Govt. of Chhattisgarh on completion of one year deputation period.

7. This would also be clear from the terms and conditions attached to the

order of relieving. Pursuant thereto the petitioner stood released from

the services of Arunachal Pradesh so as to enable her to join at her new

service under the Govt. of Chhattisgarh on deputation vide letter dated

31.12.2002. The School Education Department, Govt. of Chhattisgarh

accepting the deputation service of petitioner handed over her services

for an appropriate posting to be given to her and accordingly she was

placed under the services of the District Education Officer, Bilaspur as

would be evident from the order Annexure P-9 dated 21.10.2002. Based

upon the same, the School Education Department, Govt. of Chhattisgarh

again issued a letter on 01.01.2003 in modification to their earlier order

dated 21.10.2002 and posted the petitioner at Primary School,

Khaparganj, district Bilaspur. The petitioner immediately joined her

service at Govt. Primary School at Khaparganj, Bilaspur and since then

was discharging her duties.

8. The Govt. of Arunachal Pradesh again vide letter dated 07.04.2005

issued a No Objection Certificate in favour of the petitioner expressing

their No Objection upon the petitioner getting permanent absorption

under the Education Department of the Govt. of Chhattisgarh as would

be evident from Annexure P-11. Since then the petitioner has been

uninterruptedly working under the Education Department of the Govt. of

Chhattisgarh. The petitioner was subsequently granted promotion in the

State of Chhattisgarh vide order dated 01.05.2010 promoting her from

the post of Assistant Teacher to the post of Upper Division Teacher as

would be evident from Annexure P-15 dated 24.05.2010. The name of

petitioner got included in the gradation list of Assistant Teacher in the

State of Chhattisgarh and on the basis of which she was considered for

promotion and was granted the same. That subsequently the name of

petitioner also got included in the gradation list of the post of Upper

Division Teacher. The petitioner was permitted to work in the State of

Chhattisgarh for a period of well over 18 years without any objection

whatsoever and to the utmost satisfaction of the respondent authorities.

9. The date of birth of the petitioner is 03.03.1960 and she crossed the age

of superannuation in the State of Arunachal Pradesh in March, 2020

where the age of superannuation is 60 years. However, without any

reason, justification or for any unsatisfactory discharge of duties, the

impugned order was abruptly issued by the respondent State of

Chhattisgarh on 23.12.2020 whereby the services on deputation of the

petitioner was cancelled and she was repatriated to her parent State i.e.

the State of Arunachal Pradesh. Based upon the impugned order dated

23.12.2020 the petitioner's services stood relieved on 30.12.2020 which

is Annexure P-2. It is these two orders which are under challenge in the

present writ petition.

10. The contention of the petitioner is that by the conduct of the respondents

it has to be presumed that the services of petitioner stood absorbed and

for all practical purposes, she was treated as a regular employee of the

State of Chhattisgarh. Hence, there was no necessity for repatriation

order to have been issued and thereafter the impugned relieving order

Annexure P-2. It is the contention of the petitioner that having been

repatriated now the petitioner would be put to an irreparable loss

inasmuch as the State of Arunachal Pradesh has not protected the

petitioner's lien after they had issued the No Objection Certificate for

absorption of the petitioner under the State of Chhattisgarh and the

petitioner not reporting back for long. It is also the contention of

petitioner that as a consequence of the impugned order, the petitioner

would not be in a position to even get her retiral pensionary benefits

from the parent department neither would she be getting any benefit

from the State of Chhattisgarh. This would have a cascading effect so

far as the survival of petitioner itself is concerned.

11. It is also the contention of petitioner that by the conduct of the

respondents and the periodical promotions and other benefits that the

petitioner has received from the State of Chhattisgarh coupled with the

fact that the name of the petitioner was reflected in the gradation list

both in the cadre of Assistant Teacher and subsequently in the cadre of

Upper Division Teacher, thus for all practical purposes it has to be

construed as if the respondents had absorbed the services of petitioner

under the State of Chhattisgarh. Though they may not have passed any

formal order in this regard but the action by itself speaks that they had

absorbed the services of petitioner. It is the further prayer of the

petitioner that equity also required that the respondents to have taken a

pragmatic approach in the instant case and permitted the petitioner to be

treated as an absorbed employee and she should have been further

permitted to discharge her duties till she reaches the age of

superannuation in the State of Chhattisgarh i.e. the age of 62 years

which she would attain by March, 2022.

12. Per contra, learned Additional Advocate General opposing the petition

submits that the two impugned orders do not warrant any interference as

they are strictly in accordance with the rules governing the field and that

there is no illegality or malafides in the issuance of the same.

13. According to the State counsel there is no reason why the impugned

order needs an interference by this Court for the reason that

undisputedly the petitioner was serving under the respondents only as a

deputationist and a deputationist as such does not have an indefeasible

right in the borrowing Department unless the services are absorbed. It

was contended by the State that the petitioner's services was not

absorbed under the respondents and therefore the petitioner had to be

repatriated and relieved to join his parent State.

14. The State counsel also submitted that the Chhattisgarh School

Education Service (Educational and Administrative Cadre) Recruitment

and Promotion Rules, 2019 under which the services of the petitioner

stands governed, does not provide for recruitment under the

respondents by way of absorption. The recruitment has to be 100% by

direct recruitment alone. The State counsel also opposing the petition

submits that once when service Rule does not provide for a mode of

recruitment other than direct recruitment. The petitioner could not have

been absorbed in the services and as such the only option left with the

respondents was to ensure repatriation of the petitioner.

15. Learned counsel for the State drew the attention of the Court to the

various judicial pronouncements on the issue of right of a deputationist.

Learned State counsel referred to judgment of the Hon'ble Supreme

Court in the case of "G. Muniyappa Naidu v. State of Karnataka &

others" 1976 (4) SCC 543 "Kunal Nanda v. Union of India & another"

2000 (5) SCC 362 "State of Uttar Pradesh & another v. Uttar Pradesh

Rajya Khanij Vikas Nigam Sangharsh Samiti & others" 2008 (12)

SCC 675 "Hari Krishna Mandir Trust v. State of Maharashtra &

others" 2020 (9) SCC 356 and submitted that since the prayer of the

petitioner was one which could not be accepted under the statutory rule

governing the statutory provisions of law, the prayer of the petitioner

cannot be accepted. Therefore the action on the part of the respondents

also cannot be termed to be in any manner arbitrary or illegal, nor can it

be said to be contrary to Rules and prayed for the dismissal of the writ

petition.

16. Having heard the contentions put forth on either side and on perusal of

the pleadings, some of the admitted factual matrix that needs to be

accepted is that the petitioner was first appointed under the State of

Arunanchal Pradesh on 12.09.1994. The petitioner had moved an

application for serving under the State of Chhattisgarh on deputation.

The application was routed through proper channel from the State of

Arunanchal Pradesh. The application was forwarded by the parent State

along with an NOC. The NOC also was giving no objection in case if the

services of the petitioner has to be absorbed in the State of

Chhattisgarh. The respondents accepted the application and the

recommendation and accepted the service of the petitioner on

deputation w.e.f. 21.10.2002. The petitioner was given appointment on

the post of Assistant Teacher.

17. Admittedly, the Petitioner on 21.10.2002 vide Annexure P-9 on

deputation taken in service under the State of Chhattisgarh in the School

Education Department. The Petitioner was initially appointed on

deputation as an Assistant Teacher and since then the Petitioner has

been uninterruptedly working under the Respondents without any

grievance to the Respondents whatsoever and to the utmost satisfaction

of the superior authorities.

18. What needs to be taken note of at this juncture is that, along with the

recommendation made by the Government of Arunachal Pradesh, they

had also issued a No Objection Certificate for the absorption of the

services of the Petitioner with the Government of Chhattisgarh.

19. Under the Service Rules governing the State Government, particularly

the service rules applicable upon the Petitioner, in the normal

circumstances, the duration of deputation is only two years which under

the exceptional circumstances can be further extended for a maximum

period of two years. Thus, the maximum period an employee can be on

deputation is only 4 years. This, in other words, means that the

Petitioner's service when it was taken on deputation with the

Government of Chhattisgarh on 21.10.2002, under the normal

circumstances, the deputation would have been come to an end on

21.10.2004. That, if at all, if the deputation service would have been

extended it could have been extended only till 21.10.2006 and not

beyond that. The Petitioner was not repatriated back to her parent State

i.e. Arunachal Pradesh neither on the completion of the first two years of

tenure which came to an end on October, 2004 nor did the deputation

service of the Petitioner came to an end even beyond the permissible

period of tenure of the Petitioner i.e. October, 2006.

20. In the instant case, the Petitioner continued under the State of

Chhattisgarh beyond 2006 as well. Not only that, the name of the

Petitioner stood reflected in the Gradation List of the Assistant Teacher

in the School Education Department of the State of Chhattisgarh. The

entire service record of the Petitioner was sent from the State of

Arunachal Pradesh to the State of Chhattisgarh. By virtue of the name of

the Petitioner being reflected in the Gradation List, the Petitioner was

also in the year 2010 i.e. with effect from 1.5.2010 (Annexure P-15), to

be précise, promoted on the post of Upper Division Teacher. The

Petitioner immediately took charge on the post of Upper Division

Teacher and continue to work on the promoted post up till the impugned

Order was passed on 22.12.2020.

21. In the State of Arunachal Pradesh, the age of retirement is 60 years

whereas in the State of Chhattisgarh, the age of retirement is 62 years.

The Petitioner was not even repatriated to her parent State before she

attained the age of 60 years i.e. the age of retirement to the State of

Arunachal Pradesh, so that she could resume her duties there and could

have retired with all consequential benefits from the State of Arunachal

Pradesh. The Petitioner was permitted to continue beyond the age of 60

years in the State of Chhattisgarh accepting and treating her to be a

substantive employee of the State of Chhattisgarh. The Petitioner also

was thus made to believe that she was in-fact a substantive employee of

the State of Chhattisgarh. Since the Respondents did not take any steps

against the Petitioner for repatriating her either in the year 2004 or in

2006 and also before she crossed the age of 60 years, the Petitioner

took it as it being absorbed in the services of the Respondents and that

she would be permitted to superannuated under the Respondents only

on crossing the age of superannuation in the State of Chhattisgarh,

which is 62 years. However, contrary to all this, the Petitioner abruptly

was issued with an order cancelling the deputation posting and

repatriating her to the parent State of Arunachal Pradesh.

22. Now, the difficulty with the Petitioner is that by efflux of around 20 years

of time, the Petitioner has lost her lien in the State of Arunachal Pradesh.

At the same time, the Petitioner was being treated as a regular

employee in the School Education Department of the Government of

Chhattisgarh. Now, as on date, the Petitioner is placed with a situation

where she would neither being treated as an employee of Arunachal

Pradesh as by efflux of time her lien stood cancelled and also having

crossed the age of superannuation, the name of the Petitioner also

stands deleted from the rolls of the School Education Department of the

Government of Chhattisgarh. The adverse consequence of the said

action would be that the Petitioner would be deprived of her retiral dues

both from the State of Arunachal Pradesh as also from the State of

Chhattisgarh, leading to a situation where the Petitioner would not even

be getting pension for her sustenance beyond the age of

superannuation.

23. True it is that this Court is quite conscious of the scope of interference by

the High Court under Article 226 of the Constitution of India on the issue

of deputation and repatriation of a deputationist. The legal position by

this time is well settled by the Hon'ble Supreme Court time and again

right from the landmark judgment of the Hon'ble Supreme Court in the

case of Kunal Nanda Vs. Union of India & Others [2000 (5) SCC 362].

In emphatical terms, the Hon'ble Supreme Court has held that the

deputationist as such does not have an indefeasible right conferred upon

him or her to be retained in the borrowing department or to be absorbed

in the borrowing department and on the completion of the deputation

period, the natural consequence would be that of repatriation of the

deputationist to the parent department.

24. But, instant case is an exception from the routine matter of deputation

and repatriation. This Court is reminded of the principles which have

been taught right from the stage of the College times when in the course

of studying law it has been taught to a student of law that in the course

of deciding the matter the Court should be conscious of the fact "justice

should not only to be done, but also appears to have been done". The

High Court while exercising the Writ jurisdiction should also as far as

possible try to do complete justice in the matters which are heard and

decided by it. In the course of taking a decision of doing a complete

justice, equity also has to be borne in mind.

25. In the instant case, from the conduct of the Respondent - State

Government and the periodical developments that took place in the

service career of the Petitioner while serving under the Respondents, it

would be clear that the Respondent State of Chhattisgarh treated the

Petitioner to be substantially an employee of the State of Chhattisgarh

and in the process the Petitioner also was granted promotion that too

around 10 years back treating her to be substantially an employee of the

State of Chhattisgarh.

26. It is by now well settled proposition of law that the power to issue writ

though is discretionary in nature, yet it is unbounded in its limits and

such discretion can be exercised only on sound legal principles. The

exercise of writ jurisdiction should not smack arbitrariness as absence of

arbitrary power is the first essential for the principle of rule of law. It is

upon this that the whole constitutional system is based. One has been

repeatedly reminded of the fact that the constitutional law itself states

that law is supreme and no one is above law. The courts are also bound

by the laws framed by the State. The constitutional remedy provided

upon the High Court is to act as a guardian to strike and check a

balance for the whole system. The writ jurisdictions are exercised or

invoked as judicial restrains on policy decisions and actions which are

unreasonable, unfair and contrary to the public interest.

27. The power exercised by the High Court under Article 226 of the

Constitution of India i.e. the power of judicial review can be exercised

not only against the any order or decision of the government, but can

also be a decision making process. No doubt existence of a legal right is

the foundation of the jurisdiction of a writ court.

28. In the instant case also though as has been discussed in the preceding

paragraph this court is conscious of the fact that an employee who is on

deputation does not have an indefeasible right as long as he or she is on

deputation. However, the records of the respondents do not show that

the period of the petitioner on deputation to have been extended from

time to time except for the initial order of the government taking the

petitioner's services in the School Education Department of the Govt. of

Chhattisgarh on deputation. There does not seem to be any further order

issued either extending the period of deputation or treating the petitioner

to be a deputationist or on deputation. On the contrary, the name of the

petitioner stood reflected in the gradation list as a regular employees of

the State Govt. Not only did the name of the petitioner find place in the

gradation list, but granting her the benefit of the corresponding seniority

the petitioner was granted promotion also under the respondents. The

petitioner also had discharged the duties on the promoted post, received

all the benefits attached to the promotional post for almost a decade till

the impugned orders were passed.

29. The question in the given circumstances is, can a decision of the State

Govt. be one which is putting the employee at a totally disadvantageous

position. In the instant case the lien of the petitioner was not protected in

the State of Arunachal Pradesh. Working under the respondent-State of

Chhattisgarh, the petitioner had crossed the age of superannuation that

is applicable in the State of Arunachal Pradesh. The entire service

records of the petitioner was sent by the Govt. of Arunachal Pradesh to

the Govt. of Chhattisgarh and was being maintained in the State of

Chhattisgarh. Thereafter, as a consequence the petitioner would be

deprived of her pensionary benefits as also the retiral dues from both the

States.

30. From the factual matrix of the case, undoubtedly it can be safely

concluded that the petitioner is not at any point of time responsible. Nor

can she be charged of having suppressed or mislead the respondent

authorities in order to get any undue advantage in the course of serving

the respondent State of Chhattisgarh.

31. Given the said facts and circumstances of the case, this court is of the

opinion that as an exceptional matter, particularly taking into

consideration the equity factor involved between the petitioner and the

respondents, this court has no hesitation in holding that the decision of

the respondents in issuance of the impugned order Annexure P/1 dated

23.12.2020 i.e. the order of repatriation and the order Annexure P/2

dated 30.12.2020 whereby the petitioner was ordered to be relieved

from her service with immediate effect being excessive, harsh and

unjustified. Rather, it was a case where the respondents Governments

being a welfare State ought to have as an exceptional case considered

the case of the petitioner to be absorbed and should have permitted her

to continue in service till she attains the age of superannuation in terms

of the rules governing the field in the State of Chhattisgarh.

32. The two orders Annexure P/1 and P/2 therefore are not sustainable and

th same deserves to be and are accordingly set aside/quashed. The

respondent-State is directed to consider the case of the petitioner firstly

by taking a decision on the aspect of absorption in service and secondly

taking her back in service with all consequential benefits.

33. The respondent authorities should take an appropriate decision in this

regard at the earliest preferably within a period of 45 days from the date

of receipt of copy of this order.

34. The writ petition accordingly stands allowed and disposed of. No order

as to costs.

Sd/-

(P. Sam Koshy) Judge Ved