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Judgment
S.B. Sinha, C.J.—This appeal is directed against a judgment and order dated 19-4-2001 passed by a learned single Judge of this Court in Writ Petition No. 321 of 2001. The writ petition filed by the appellant herein praying for the following reliefs:
"...to issue an appropriate writ, order or direction, more particularly one in the nature of writ of Certiorari, to call for the records pertaining to the order of relieving No. EL/MNJIO/RCC/2000 dt. 29-12-2000 issued by the 1st respondent and consequently quash the same as illegal, arbitrary and mala fide and direct the respondents herein to continue the services of the petitioner in the post of Physicist in the 1st Respondent Institute." was dismissed.
The fact of the matter lies in a very narrow compass. The appellant was sent on deputation to Mehdi Nawaz Jung Institute of Oncology and Regional Cancer Centre, which was under the direct control of the Government, and the Government of India by a letter dated 13-3-1996 declared the said Institute as a Regional Cancer Centre. By reason of G.O. Ms. No. 128, H.M. & F.W. (M2) Department, dated 21-3-1996, it was declared to be an autonomous institution by the State Government. A Memorandum of Association and Rules and Regulations were drawn up and by reason of G.O. Ms. No. 382, H.M. & F.W. (M2) Department, dated 5-10-1996, the State Government approved the same. The Government of Andhra Pradesh thereafter passed G.O.Ms. No. 400, H.M. & F.W. (M2) dated 29-9-1997 directing:
"Every Officer or employee of the MNJ Institute of Oncology and Regional Cancer Centre who joined the Institute before 21-3-1996 and still working shall continue to work on deputation with the said institution on the terms and conditions specified in G.O.(P) No. 10, Finance and Planning (FW) Department dt. 22-01-1993 as amended from time to time, till such time he/she exercise option for absorption in the services of Institution or till the date of their repatriation to parent departments. However, the period of deputation shall be not more than 3 years."
The appellant herein joined the first respondent-Institute before 21-3-1996. Admittedly no option had been called for regarding absorption or otherwise. In terms of Rule 14, the first respondent was under statutory obligation to call for option and so long as no option is given by the appellant, he would be deemed to be on deputation. The learned single Judge dismissed the writ petition holding that having regard to Rule 15 (3) of the said Memorandum of Association as the Director has overall administrative control and management of the Institute, he had a power to relieve the appellant on administrative grounds.
Mr. Nooty Ram Mohan Rao, learned counsel appearing on behalf of the appellant would contend that in terms of G.O. Ms. No. 400 dated 29-9-1997 having regard to the fact that other employees had been allowed to continue on deputation, the appellant could not have been treated otherwise. The learned counsel would contend that even the Director himself is a deputationist.
The stand taken by the respondent No.2 herein is that the wife of the appellant sent an application to the then Superintendent of the first respondent offering her services as Nuclear Medicine Technologist on the basis of free service and the Government permitted the first respondent to utilize her services purely on honorary basis. It was later on detected that she was a learner rather than a qualified Nuclear Medicine Technologist as claimed by her. She allegedly used computers for making representation to the then Director, although she had no right to use hospital equipment. On 28-12-2000 the Director had received an anonymous letter and according to the respondents, the said letter was generated from the computer, which was placed in the appellant''s room. It is stated:
"In reply to para 7, it is to submit that on 28-12-2000 the Director on receiving an anonymous petition, it is noticed that, it is a computer generated print-out on "DOT MATRIX" printer, immediately he proceeded to check the computers with such printers and found the incriminating documents in the files/folders of the computer available in the Physicists'' room. He confiscated that equipment along with accessories shifted them to the Director''s room and sealed after taking certain printouts which were of complaining nature. Subsequently, a preliminary enquiry was ordered on the morning of 29-12-2000 by appointing Dr. G.V. Sudhakar, Professor of Plastic Surgery. The preliminary enquiry order, the preliminary enquiry report and the relieving order are enclosed for the perusal of the Hon''ble Court."
Having regard to the aforementioned, his services were surrendered to the State Government.
Clause (14) of the Memorandum of Association and the Rules and Regulations read thus:
"ABSORPTION OF STAFF:
The Institute shall, subject to sub-clause (3) here below, give to all the present employees of the Institute to seek an option from the Institute to continue on absorption in the Institute or to get repatriated;
The option to continue in the Institute or to get repatriated to Government service shall be subject to the decision of the Screening Committee constituted by the Governing Council and the availability of the particular post;
3.It shall be lawful to the Institute to retain and continue the services of such of the staff in the interest of satisfactory working of the Institute under the provisions contained in 14 (1) until such time as the decision of the Screening Committee are given effect to or until such time as the Institute recruits staff of its own in accordance with the Rules, Bye-laws, to be framed by the Governing Council;
It shall be lawful for the Institute to obtain at any time after the commencement of those Rules, the Services of any servant from the Government on deputation or to absorb in its service any servant of the Government - provided that for absorption into the service of the Institute the Officers/employees shall be found suitable by a Screening Committee to be constituted by the Governing Council-
Provided that the terms and conditions on which any servant of the Government may be so absorbed shall not in any way be less advantageous than the terms and conditions obtaining to him immediately before the date of his absorption in the service of the Institute.
5.It shall be lawful for the Institute to recommend to the Government as decided by the Governing Council for withdrawal of the services of any official who is on deputation from the Government on the expiry of the term of deputation or during the period of deputation."
The State Government in terms of G.O. Ms. No. 128, H.M. & F.W. (M2) Department, dated 21-3-1996 declared the Institute to be autonomous one. All the staff, who were working with the first respondent, were treated to be on deputation. The status of the employees, who are on deputation, would be evident from G.O. Ms. No. 400 dated 29-9-1997, which is in the following terms:
"Government after careful examination, hereby order that every officer or employee of the MNJK Institute of Oncology and Regional Centre who joined the Institute before 21-03-1996 and still working shall continue to work on deputation with the said institution on the terms and conditions specified in G.O. (P) No. 10, Finance & Planning (FW) Department, Dated: 22-01-1993 as amended from time to time, till such time he/she exercise option for absorption in the services of institution or till the date of their repatriation to parent departments. However, the period of deputation shall be not more than 3 years."
However, by reason of G.O.Ms.No. 10 dated 22-1-1993 it was clarified that the said period of deputation should not exceed five years.
A bare perusal of the aforementioned G.O. Ms. would clearly show that the period of deputation is ordinarily not to exceed a period of three years. The said period has elapsed. Assuming that the other deputationist including the second respondent herein had been allowed to continue, the same would not mean that the appellant has derived any legal right thereby.
The deputationist as is well known cannot have any legal right to continue on deputation, unless he is absorbed. In STATE OF MYSORE v. H. SRINIVASMURTHY 1, the Apex Court held that if the policy evolved by the State to the effect that the date of absorption will relate back to date of deputation is not followed in case of similarly situated employee, it is violative of Articles 14 and 16 of the Constitution of India. So far as the services of the deputationist are concerned, the parent department will always have the right to recall his services. In DEPUTATIONISTS ASSOCIATION. v. FOOD CORPN. OF INDIA 2, the petitioner therein and similarly situated employees were sent to Food Corporation of India on deputation and were absorbed as direct recruits on exercise of their options and they have filed writ petition seeking enhancement of age of retirement from 58 to 60 years. The age of retirement was enhanced by amendment to the Regulations of the Corporation during the pendency of the writ petition. In those circumstances, it was held that since the employees of the State who had subsequently been taken in service of F.C.I. as direct recruits on the basis of option exercised by those employees electing to the direct recruits in the service of F.C.I. and governed by Staff Regulations, they cannot claim to be equal to the employees covered by Section 12A of the Food Corporation of India Act and as such they cannot claim enhancement in the age of retirement from 58 to 60 years.
In a case of this nature where misconduct has been alleged, only the State Government can take action by initiation of departmental proceedings and for the said purpose if the services of the appellant had been surrendered, we are of the opinion that no fault can be found therewith. It will bear repetition to state that as the appellant did not have any legal right, no writ of or in the nature of Mandamus can issue. The grievance of the appellant, if any, could only be ventilated before the Secretary in terms of G.O. Ms. No. 10 dated 22-1-1993.
For the reasons aforementioned, we do not find merit in this appeal, which is accordingly dismissed. But in the facts and circumstances of this case, there will be no order as to costs.