IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6465 of 2010 1. SUSHIL KUMAR S/O RAM EKBAL RAM R/O VILL.- MOHANPUR, P.S.- DHAUSONI, DISTT.- BUXAR 2. SHAILENDRA KUMAR DEEPAK S/O SRI RAMYUKTA PRASAD YADAV R/O VILL.- RAMNAGAR, P.S.- PHULPARAS, DISTT.- MADHUBANI 3. GOPALJI S/O SRI CHATURBHUJ SAHAY R/O MOHALLA- KAILASHPURI, P.S.- DUMRA, DISTT.- SITAMARHI 4. MOHAMMAD MOJAHID RABBANI S/O MOHAMMAD ZAINUDDIN RABBANI R/O MOHALLA- SAHARSA BASTI, P.S.- TOWN, DISTT.- SAHARSA Versus 1. THE STATE OF BIHAR 2. THE BIHAR STATE EDUCATION COUNCIL, PATNA THROUGH ITS STATE PROJECT DIRECTOR 3. THE STATE PROJECT DIRECTOR, BIHAR STATE EDUCATION COUNCIL, PATNA 4. THE DISTRICT PROGRAMME CO-ORDINATOR-CUM-DISTRICT SUPERINTENDENT OF EDUCATION, DARBHANGA 5. THE DISTRICT PROGRAMME CO-ORDINATOR-CUM-DISTRICT SUPERINTENDENT OF EDUCATION, EAST CHAMPARAN 6. THE DISTRICT PROGRAMME CO-ORDINATOR-CUM-DISTRICT SUPERINTENDENT OF EDUCATION, ROHTAS 7. THE DIRECTOR PRIMARY EDUCATION, HUMAN RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA with CWJC No.6660 of 2010 1. RAJESH KUMAR, S/O LATE SHIVAJI RATHOUR, R/O MOHALLA - IMALI CHATI, P.O & P.S.- BRAHMPURA, DISTRICT-MUZAFFARPUR AT PRESENT POSTED AND WORKING AS ADDITIONAL DISTRICT PROGRAMME COORDINATOR, BIHAR EDUCATION PROJECT, SAMASTIPUR, DISTRICT- SAMASTIPUR. Versus 1. THE STATE OF BIHAR,THROUGH THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR,PATNA. 2. THE STATE PROJECT DIRECTOR, BIHAR EDUCATION PROJECT COUNCIL, BELTRON BHAWAN, SHASTRINAGAR, PATNA. 3. THE DIRECTOR, PRIMARY EDUCATION, BIHAR, PATNA. 4. THE ADMINISTRATIVE OFFICER, BIHAR EDUCATION PROJECT COUNCIL,BELTRON BHAWAN, SHASHTRI NAGAR, PATNA. 5. THE DISTRICT SUPERINTENDENT OF EDUCATION CUM DISTRICT PROGRAMME CO-ORDIANTOR, BIHAR EDUCATION PROJECT, SAMASTIPUR. ----------- For the Petitioners:- Mr. Rajendra Prasad Singh, Sr. Advocate. For the State:- Mr. P.K/ Sahi, Advocate General 3 12.05.2010 Reg:- I.A. Nos. 3803 of 2010 & I.A. No. 2 3782 of 2010 Petitioners have prayed for quashing of the order vide memo no.2122 dated 31.3.2010, issued by the State Project Director, Bihar State Education Council, Patna (Respondent no.3), whereby the District Programme coordinator- cum - District Superintendents of Education of Darbhanga, East Champaran, Rohtas, Samastipur and other districts have been asked to relieve such Additional District Programme Coordinators, for their repatriation to the parent department, with effect from 1.4.2010, whose deputation period has come to an end on 31.1.2010. Further prayer is to direct the respondents to renew and extend their appointment as Additional District Programmee Coordinators up to 2012, in view of the decision taken by the Executive Committee dated 11.12.2009, as the services of only those employees are being repatriated, 3 whose services have not been found satisfactory within the period of deputation. Petitioners have also prayed for quashing of uncommunicated adverse evaluation report, which is the basis for their repatriation to their parent department with effect from 1.4.2010. Petitioners’ have challenged the impugned order being stigmatic. Interlocutory application, filed by the petitioners, for staying the operation of the impugned order, was under consideration but writ application is being disposed, as pleadings are complete. In order to implement “Sarva Shiksha Abhiyan”, the Bihar Education Project Council, Patna published an advertisement in the Employment News dated 11th to 17th February, 2006, inviting applications for appointment of 62 Additional District Programme Co-ordinators on short term deputation basis. The appointment, as per 4 advertisement, was for a period of three years, which may be extended further on the basis of satisfactory performance as the life of “Sarva Shiksha Abhiyan” is up to 2012. Petitioners, also applied for the post, went through the selection process and finally their names were empanelled in the list of successful candidates. They were sent for training and on completion of the training appointed on the post of Additional District Programme Co- ordinator on short term deputation basis for three years in the Bihar Education Project Council, Patna and posted in the districts of Rohtas, East Champaran, Darbhanga and Samastipur ( Petitioner in CWJC No. 6660 of 2010), respectively. On 11.12.2009 the Executive Committee of Education Project Council in its 62nd meeting resolved that those Additional District Programme co-ordinators who have not rendered satisfactory work, during the deputation period will be 5 repatriated to their parent department and posts falling vacant should be filled, to complete the unfinished assignments, undertaken by these Additional District Programme Co-ordinators, without being affected adversely. Counsel for the petitioners submits that the grounds for refusal, to extend their deputation period, are unenquired allegations. In case any enquiry has been done, petitioners have no knowledge about it. Their repatriation to the parent department, based on uncommunicated adverse report is stigmatic and impressible, due to non-observance of the principles of natural justice. It has also been submitted that unfounded allegations could not have been made the basis for repatriation, specially when persons having similar allegations have been retained and given extension. The petitioners, have also complained, of being discriminated. Counsel 6 for the petitioners has placed reliance on a decision reported in AIR 1971 S.C. 998 ( K.H. Phadnis Vrs. State of Maharashtra). I find that this decision is more in support of that stand taken by the State than the petitioners. The repatriation in the present case can be termed as a general accident of service than in the nature of punishment. Mr. P.K. Sahi, Advocate General, appearing on behalf of the State, has submitted that the writ application at the instance of deputationists, challenging the order of repatriation, is devoid of any merit, as they have no right to continue on deputation and to claim permanent absorption in the department, where they have worked on deputation. Petitioners challenging the impugned order have taken this plea, that on the basis of unfounded allegation, without holding any inquiry, their services have been categorized 7 as unsatisfactory, in violation of rule of natural justice. Since, these allegations are the basis for repatriation of petitioners’, as such, it was essential that unless allegations are proved, in a proper enquiry, impugned order should not have been passed. This order has attached stigma to the ability and efficiency of petitioners; as such it must be quashed. In reply to this, the Advocate General has submitted that presuming that allegations are the reason for petitioners’ repatriation to their parent department, even then, it cannot be a ground for quashing of the impugned order, since the deputationists on expiry of the period of deputation, cannot claim to remain posted in the borrower department. Placing reliance on a decision reported in 2000 (5) SCC 362 (Kernel Nanda Vrs. Union of India & others), it was submitted that basic principle underlying deputation is that a deputationist, at any time be repatriated to his parent 8 department to serve in his substantive position. There is no vested right in such a person to continue for a long, on deputation. Counsel appearing for the petitioners has further contended that since in the advertisement itself, there was a provision that on completion of three years deputation, it may be further extended, subject to satisfactory performance, it gave a legitimate expectations to the petitioners that their deputation may be extended. In such case, performance being a condition precedent for extension, it was essential that the petitioners should have been given an opportunity to defend their cases before any adverse resolution was taken against them. Petitioners had legitimate expectation for continuing beyond the period of deputation and that has illegally been taken away, as such they have got a valuable right, despite the fact that they are deputationists. I find that the law is settled 9 in this regard i.e. the deputationists cannot claim their continuation in the borrower department as a matter of right. They can be repatriated even within the period of deputation, in case the parent department asks for return of their service or the borrowing department is of the view that their service is not required any more. The deputationists cannot claim any legitimate expectations in respect to a post on which they have been brought on deputation. The Advocate General has further submitted that, the development which has taken place in the recent past is the real reason for repatriation of the petitioners. On the basis of the recent constitutional amendment the education has been made a fundamental right of all children in between 6 to 14 years of age. This has come as a challenge before the Government, to provide education to all children in between 6 to 14 10 years of age. For this purpose a large number of teachers’ services are required. In this circumstance, the working teachers, cannot be allowed to remain on deputation. The State Government cannot afford to allow its’ teaching force to remain on deputation, in any department, not connected with the teaching work. Considering the pleadings of the parties, submission made by their counsels and the law settled in this regard, I find that the prayer of the petitioners regarding quashing of the impugned order dated 31.3.2010 contained in memo no. 2122 is not sustainable. Both the writ applications are dismissed. (Mridula Mishra,J.) A.Kumar