1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.3888/1996 Dr.S.C. Maheshwari vs. State Date of order : 9/3/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Ms. Shweta Pareek for the petitioner. Ms. Raj Sharma, Addl. Government Counsel for the respondents. ****** Heard learned counsel for the parties. This writ petition was filed by the petitioner challenging the order dated 9.4.1996 by which in a disciplinary enquiry under Rule 16 of the Rajasthan Civil Service (Classification, Control and Appeal), Rules, 1958, he was awarded penalty of stoppage of reduction of three stages in the pay. Ms. Shweta Pareek, learned counsel for the petitioner has argued that petitioner was sent on deputation with the Republic of Iraq. His deputation was made at the initiative of the Government of India. Learned counsel in this connection referred to the letter of Government of India dated 27.8.1980 (Annexure-1). Learned counsel then referred to the agreement, which was lastly executed between the petitioner and the Ministry of Higher Education and Scientific 2 Research, the Republic of Iraq. It was argued on the basis of Clause-16 of the agreement, petitioner could terminate such agreement only after notice of four months. The agreement was signed on 12.3.1986. Petitioner was granted extension for deputation invariably by ex-post facto sanction order and this would be evident from order dated 30.10.1981 whereby deputation of the petitioner was approved by respondent-government for the period of one year from 13.12.1980 to 12.12.1981. Subsequently, also ex-post facto approval was granted for the period of deputation from 13.12.1981 to 16.12.1984 for a period of three years at one go by order dated 16.10.1984. Deputation for the period 17.12.1984 to 12.12.1985 was approved by order of the government dated 25.5.1985. Learned counsel argued that respondent department failed to prove before the enquiry officer that copy of this order dated 25.5.1985 was ever served upon the petitioner. Petitioner submitted an application to the Commissioner Medical and Health Department, Government of Rajasthan, 3 Jaipur on 24.12.1985 stating therein that he has been informed by Iraq authorities that they wanted his services over there for a further period of one year from December, 1985 to December, 1986 and therefore they have renewed the annual service contract for such period. It was therefore requested to extend the deputation period for one year upto December, 1986. Learned counsel also cited the letter of intent of Embassy at Bagdad on 23.1.1986 approved by Commissioner and Secretary Medical and Health Department, Government of Rajasthan, Jaipur recommending the extension of deputation. Petitioner submitted a representation to the Indian Embassy also on 12.5.1986. Learned counsel submitted that charge sheet is absolutely vague and charges against petitioner are not specific. In the charge sheet it is stated that despite being repeatedly required, petitioner did not resume on duty in the medical and health department, but no details of such communication has been given. Learned counsel submitted that it is only after the Government of Rajasthan declined to extend the deputation and such 4 information was received in the Embassy, then they passed on the said information to the Iraq authorities by their letter dated 27.5.1986 and petitioner also by his letter dated 12.5.1986 requested them to relieve him to join back his services in India. The petitioner thereupon joined his duties on 23.10.1986 (Annexure-20). It was argued that since on earlier occasions also, the request of the petitioner for extension of deputation was received by the orders passed in later point of time. In other words, ex post facto extension of deputation was granted. The petitioner in that belief entered into a fresh contract with the Iraq authorities for serving them. Learned counsel submitted that while on the one hand, the petitioner has been penalised for over staying by 10 months, on the other, the respondents have considered the entire period as spent on deputation for the purpose of pension. The impugned order be therefore quashed and set aside. Learned counsel argued that in similar cases, no adverse was taken by the respondents for those who over stayed the period of 5 deputation. Examples of Dr. Syed Ajmal Hussain, Dr. J.P. Gupta, Dr. S.P. Sudrania, Dr. K.G. Mathur, Dr. U.B. Jain, Dr. B.L. Asawa, Dr. B.P. Kalani etc. have been given. It was argued that either no departmental enquiry was initiated against them or they were dealt with very lightly by awarding the penalty of censure or warning. Ms.Raj Sharma, learned Additional Government Counsel opposed the writ petition and submitted that the fact that petitioner immediately after expiry of the original term of five years of deputation on 12.12.1985 by his application written soon after on 24.12.1985 requested for extension of the term of deputation, thus he was fully aware of the developments in his parent department. It is contended that the outer limit of deputation was five years and which is why in the last sanction order dated 25.5.1985, it was clearly indicated that while the deputation was extended from 17.12.1984 to 12.12.1985, a copy of that order was endorsed to the petitioner with specific direction that period of deputation will not be extended for further period 6 beyond five years and after expiry date, therefore, he was directed to return to India in time. Petitioner having taken advantage of that order, cannot be now allowed to say that he was unaware of that order and that copy of that order has not been served upon him. Learned counsel submitted that in order to cover up this delay, petitioner in the last application dated 24.12.1985 played a mischief by stating that extension of his deputation for the period December, 1984 to December, 1985 was still awaited and therefore necessary permission be sent, whereas the fact was that it was already sent and soon after expiry of the period from December, 1984 to December, 1985, he sent another application. Learned counsel submitted that no argument of discrimination can be allowed to be raised in disciplinary matters where misconduct of the individual has to be judged on the basis of his own action on his part and the supporting evidence proving such misconduct. It was submitted that the application dated 24.12.1985 by itself show that contention of the petitioner where he 7 says that he was informed by the Iraq authorities that they wanted his services there for further one year and therefore his annual service contract was renewed. What was thus intended to be shown as if it was a unilateral action on the part of the Iraq authorities, whereas agreement which is on record at Annexure-2 clearly show that it was a bilateral agreement duly signed, not by the Iraq authorities alone but also by petitioner as well. Learned counsel therefore submitted that the writ petition be dismissed. I have given my anxious consideration to the rival arguments and perused the material on record. It is indeed surprising that when the petitioner entered into a bilateral agreement with the Iraq authorities and signed such agreement / contract on 12.3.1986, in the last application that is sent to the parent department in the Government of Rajasthan on 24.12.1985, he would be writing that the Iraq authorities have renewed his annual service contract and because they informed that they wanted his 8 service for further one year. That clearly show that evidence on the part of the petitioner that he not only intended to get fresh agreement of employment beyond the period of five years, which is the outer limit of deputation, but also had the intention of concealing this fact from the parent department and yet wanted extension of deputation. Initial period of deputation of petitioner was one year was fully known to the petitioner because order dated 30.10.1981 passed by the parent department conveyed so, which document the petitioner has himself placed on record at Annexure-3. Subsequent order dated 16.10.1984 sought to extend the period from 13.12.1981 to 16.12.1984 i.e. for a period of three years at one go. Last extension order dated 25.5.1985 extended the term of deputation of the petitioner from 17.12.1985 to 12.12.1985. A copy of this order was endorsed to the petitioner which is forwarded as Dr. S.C. Maheshwari Reader in P & S.M., Deptt. Of Community Medicine, College of Medicine, Al Mustansiriyah University, Post Box 14132, Baghdad (Iraq). 9 He was thereby directed that his deputation period will not be extended for further beyond the period of five years after expiry of such period and hence, he was directed to return in India in time. The petitioner should have taken timely steps to ensure his return to the parent department. On the contrary, the petitioner has feigned ignorance about this letter of such extension and to cover up such an ignorance, he in his application dated 24.12.1985 was still requesting the parent department that the extension of his deputation for the earlier period from December, 1984 to December, 1985 was still awaited and therefore the same be issued and necessary permission for the next year be also sent. Having availed of the benefit of last extension granted by order dated 25.5.1985 and immediately on expiry of period of deputation in December, 1985, having applied for extension of deputation for one more year, petitioner's submission is that he was completely unaware of the last extension of deputation order dated 25.5.1985 and that therefore he was not aware of the 10 stipulation therein that outer limit for deputation was five years, hardly inspires any confidence. In the enquiry proceedings, his evidence was that he was not aware of the terms and conditions and the period for which a deputation would be valid. It is well settled proposition of law that ignorance of law is not an excuse in law. When the petitioner was in government service and when he was sent on deputation, he should be aware of the fact as to what is the outer limit for such deputation. However, in the present case, this condition was specifically intimated to him. A somewhat similar matter came up before me earlier in S.B. Civil Writ Petition No.3503/1994, Dr. Suraj Mohan Lal Rai vs. State & Ors. decided on 21.4.2009 in which also also despite refusal to extend the period of deputation, the petitioner overstayed deputation and returned back to his parent department much belatedly. He was by communication dated 3.6.1991 directed to report back to the parent department within one month. Instead of doing so, he requested for extension of 11 deputation period and kept avoiding to join back and joined after much delay. In that case too, the similar argument was raised including the one about discrimination. In para 13 and 14 of the judgement, it was held as under: 13) It is trite law that deputation is a consensus concept where consent of three parties is a must. First is the principal employer, second is borrowing authority and third is employee himself. In case one of these is absent, such an assignment cannot be termed as deputation. In the present case, overstay of the petitioner beyond the period of two years was nothing but willful absence because despite having been specifically instructed and required by the authorities to join the duties, he did not do so. 14) Let me now examine to the argument of discrimination, because petitioner has given examples of aforesaid four doctors, who according to him, were allowed to work with the private hospitals for five years and were granted extension in deputation, it must be held that no specific particulars in their cases have been furnished by the petitioner and even if it is granted that some of such doctors were granted extension beyond two years, that would be a case of extension granted to them. In the case of petitioner, it is not disputed that no such extension was granted to him. Rather he was required to report back to duties and yet he insisted to continue with the employer at Saudi Arabia. Secondly, argument of discrimination would not be available to the petitioner in the facts situation like this because even if other doctors were unduly favoured, such an undue favour cannot be claimed by the petitioner in the name of alleged discrimination. It is trite law that equality is a positive concept which cannot be enforced in negativity and two wrongs cannot make one right. Remedy of writ, besides being plenary remedy, is 12 also an equitable remedy and no such writ, which would result in inequitable results, justifying an illegality, can be issued. Judgment of Supreme Court in Sengara Singh and others supra is distinguishable on facts and cannot be applied to the present matter. In the present case, I find that the petitioner has been rather dealt with very leniently because above cited case of Dr. Suraj Mohan Lal Rai, was a case in which penalty of removal was awarded, whereas, in the present case, the petitioner has been awarded penalty of only reduction of pay by three stages. I therefore do not find any merit in this writ petition, which is accordingly dismissed. (MOHAMMAD RAFIQ), J. RS/