Sunita Anand vs State Of Chhattisgarh

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.

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?â€​

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 & othersâ€

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 doneâ€. 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

The writ petition accordingly stands allowed and disposed of. No order as to costs.