31vl©?or'y" 4—/ '5"- IB BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR WritAppealNo. |S^- Of 2009. APPELLANT Respondent No. 5 RESPONDENTS : 1) Respondents Tamreshwar Prasad Upadhyay, S/o. Bhagwat Prasad Upadhyay, aged about 42 years Lecturer Govt. Higher Secondary School, Chaitma, District Korba (C.G.) Versus State of Chhattisgarh, Through Secretary, Tribal Welfare Department, D.K.S.Bhawan, Raipur, District Raipur (C.G.) Collector, Tribal Welfare, Korba, District Korba (C.G.) Collector-cum-District Mission Director, Rajiv Gandhi Shiksha Mission, Korba, District Korba (C.G.) Block Education Officer, Pali, Tahsil Pali, District Korba (C.G.) , O.P.Sharma, S/o. late Shri B.P.Shukla, aged about 55 years, R/o. Village 85 Post Pali, Tahsil Pali, District Korba (C.G.) PETITIONER •^^/ s^ /'\iv' ^^ '" .Af' V- &7 APPEAL UNDER SECTION 2 CLAUSE (1)0F THE CHHATTISGARH HIGH COURT (APPEAL TO DIVLSIOILBENCH) ^ACT^ULES 2006, Being aggrieved with order dated 29.04.2009, passed in W.P(S) No. 7178 of 2008, by Hon'ble Justice Shri Satish K.Agnihotri, between O.P.Sharma Vs. Sta.tc of Chhattisgarh and 4 others allowing the ^ /K^Ate ^ HiGH COURT OF CHHATTISGARH AT BILASPUR Writ Appeal No. 134 of 2009 Ap°Ei,LANT: Respondent No.5 Tamreshwar Prasad Upadhyay •o. vUtN i S: \,'l State of Chhattisgarh & others IUDGMENT FOR CONSIDERATION Sdf- DhirendraMishra Judge HOM'RLP MR JiiSTif^CRM C S3Saa'Ss S'S'fi'\, ti^'hiiS-S1 s 'S'i^S, 'a\vS'i&i '«~r 3 CU.c Sd/- R.N. Chandrakar Judge POS7_EOR_JUDGMENT_ON5o T, 2009 Sd/- DhirendraMishra —^ Judge /- .'-'S:"ii'%v "^., ^ ^y :'^3t!?^?<? •I i Sespondent No.5 RESPONDENTS: 3' Writ Appeai N o. 1 34 of 200; Tamreshvvar Prasad Upadhyay, S/o Bhagwat Prasad Upadhyay, aged about 42 years, Lecturer, Govt. Higher Secondary Schooi, Chaitma, Dsstrict Korba (CG) Versus State of Chhattisgsm, Through Secretary, Tribal Welfare Department, D.K.S. Bhawan, Raipur, Dlstrict Raipur t Coilector, Triba! WeWare, Korba, District Korba (CG) Coiiector-cum-District Mission Director, Rajiv Gandhi Shiksha Mjssion. Korba, Districf Korba (C.G.) Biock Education Officer, Paii, Tahsi! Paii, District Korba (C.G'.) O.P. Sharma, S/o !ate Shri 3-P. Shukia, aged about 55 years, R/o Viiiage & Post Paii, Tahsii Pali, District Korba (CG) Present: Shri H.B. Agrawai, Sr. Advocate with Shri K,S. Pawar, Advocate for the ^^A- ai'jl. Shri Vinay Harlt, Deputy'Advocate Generai for respondents No.1 to 4. Shri V.R. Tiwari, counsei for respondent No.5. 3jyi. :nch: Hon'bie Shri Dhirendra Mishra & Hon'bje Shri R.N. Chandrak. J U Q fi M E N T IL-JJ. f< (Deijvered on .Qb' 'August, 2009) The fbliowing juagment of the Court was deljvered by Dhirendra Mishra, J. This writ appea! is directed against the judgment dated 29 April 2009 defivered in Writ Petition (S) No.7178/2008 wherebv writ oetition of resDondent No.5 has been K' ailowed and the order dated 15/12/2008 passed by the Collector and the District iy'ssion Director, Rajeev Gandhi Shiksha Misslon, Korba whereby the services of i'espondent No.5 was rspatriated to his parent department and the appeilant hsrei" 'vas posted in his piace, in regard to respondent No.5 has been quashed. -ereinafter the parties shai! be referred to as per iheir description before the Writ Coun. B'-iefly stated, facts of the case are that the petltioner was working on the post of Uopsr Division Teacher at Middie School. S"li, Biock Paii. Respondent No.3 vlde his order dated 28-7-2007 (Annexure-P/5) ordered that the pstitioner, pressntiy posted as Upper Dlvision Teacher in Government Higher Secondary Schooi, Beharehua, Block Kartaia be sivsn charae of Block Resource Coordinator, Raieev Gandhi Shlksha MJssion, Btock Pali. He gave hls joinlng on 31 Juiy, 2007. The order dated 28/7/2007 was chaiiengsd by one Shri N.K. Sharma by filing Writ Petition (S) No.4729/2007 which was disposed of by order dated 18/6/2008. Ths petitioner is vorldng as Block Resource Coordinator at Pali since 18/7/2008 (Annexure-P/10). 3" the JmDuaned order dated 15/12/2008, resoondent No.3 repatriated the services 3° 'Shs petitionsr to his parent department and in his place rsspondent No.5 (appeHant herein) was ordered to be posted. Fo'lowlng the order datsd 27/3/2008 passsd in WP(S) No.3997/2007-{Radhe Lal Nag V. State Govt. of Chhattisgarh & oi::hsrs) and in view ofthe clrcula' dated 2/12/1988, petitlon of respondent No.5 was a:!owed and it was held that the petitioner is entitied to rsmain on deputation for a "',i'ii;''3um period of 2 years from the dats ofjojning in the borrowing department i.e. Rsjsev'Qsndhi Shiksha Mission, S'-ri H.B. Agrawal, iearned senior counsel appearing on behaif of the appellant submitted that from bare perusal ofthe order of Annexure-P/5, it would be evident thst the petitioner was not sent on deputation, but he was entrusted with the charge of Siock Coordinator, Paii. His saiary was drawn from his original piace of postins iliETinaiiaisiaaaa €^\. !^NintL.^:^ @ !!N!i| i.e. Higher Secondap/ Schoo!, Seharchua, as would be eviden't Trom memo dated 7.'4,'2009 of respondent No.3 and, therefore, question of repatriation of services of ihe petitioner does not arise. Relymg upon the judgment of the Supreme Court in the matter of Kunal Nanda Vsfsus Union of Indi^ ^nd Bnothsr , It wss sfQLisd thst a dsDutstiQnlst cannct assert and succeed in his claim for permanent absorption in the department where he was on deputation, uniess his ciaim is based on a statutory ruie, regulation or order havina ths force of law. A deDutationist can aiwavs and at anv t'me be repatriated to h's parent dspartment, at the instance of either borrowing department or oarsnt departmenl. There is no vested right in such a oerson tQ continue for long on deputation or get absorbed in borrowing department. The circular relied upon by ihs iea'ned SSngle Judge is only advisory 'n nature and the same does not have any statutory backing. The cireular does not confer any legal right to the psSiiioner to chailenge his repatriation to his original department by respondent No.3. 5 On the other hand, Shri V.R. Tiwari, iearned counsei appearing for respondent No.5 suppoi'ting the impugned judgment argued that the impugned order was passed just io accommodate respondent No.5 and as such the same is malafide. r -. ReMng upon the judgment in the matter of Union of India Through Govt. of Fondicherry and another Versus V. Ramakrishnan and others^, It was argued '•hat even where tenure of deputation is not specified, the order'of reversion can be auestionsd when the same is malafide. 8 Ws bevs heard learned counsel for the parties. We have perused the record of WP(S) No.7178/2008 as aiso the impugned order. £ h Kunai Nanda's case (Supra), the Hon'ble Supreme Court has heid that it is weli sett'ed that unless the claim of the deputationist for a permanent absorption in the (2000) 5 Suoreme Court Cases 362 ('20051 8 Suwsme Court Cases 394 -<. iista 1|^L;>1 department where he works on deputation is based upon any statutory rule, regulation or order havina the force of iaw, he cannot assert and succeed In any such cialm for absorption. The bas'c principie underlying deputation Itseif is that the person concerned can aiways and at any time be repatriated to his parent department to seroe In his substaniive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on a'eputation. !n the matter ofV. Ramakrishnan and others (Supra), in para-32, it has been heid mus:- "Ordinarily, a deputa'lionist has no !egal right io conttnue in the post. A deputationist indisputably has no righi to be a'osorbed in the post to which he is deputed. However, there is no bar thereto as weil. It may be true that when deputation does not resuit in absorption in the service to whic'n an officer 's deputed, no recruitment tn its true import and significance takes piacs as he is continued to be a member of the parent service. When the tenure of deputation is specified; despite a deputationist not having an Indsfeasibte right to hoid the said post, ordinariiy the term of dsputation should not be curtaited except on such just grounds as, for exarnp'e, unsuitabiiity or unsatisfactory performance. But, even where the tenure is not specified, an ordsr of reversion can be questioned when the same is mala fide. An action taken in a post-haste manner also indi-cates maHce." -•Wy .earn°d Single Judge while aiiowing the writ petltion has observed in paras-10 and 11 thus:- "10. This issue of repatriation from deputation before compleiion of wo years came into consideration before this Court in Radhe La! Nag (supra), wherein this Court having considered al! the aspects of'ths matter observed as under:- I'TXtiS' ^ ^) lil'lfi "10. In view of the foregoing, it is ciear that ths petitioner is entitied to rematn on deputation for a minimum psriod or two years from the date of his joir.ing in the borrowing dspartment i.e. Rajeev Gandhi Shiksha Mission. The sewices of the petitioner cannot be repatriated before two years, without consent ofthe petitioner/employee concerned. Thus, the impugned order is bad and contrary to the circular riateri 7151 fiSfi " 1^1»»/} ^. , i ^. . 3 ^/^J'^» 11. For the reasons mentloned hereinabove, thte petition is allowed to the above extent that the petitioner shail continue on deputation for a minjmum period of hvo years from the date of his joining pursuant to the order dated 28.7.2007. The impugned order dated 15.12.2008 (AnnexureP/1), in regard to the petitioner is quashed." 2. From perusa! of the order of Annexure-P/5, it is evident that posting of the petitioner as Block Coordinator was for unspecified period; though the order does not msntion that the petitionsr was posted on deputation as Block Coordinator, but from perusal of orders of Annexure-P/5 and Annexure-P/1, it appears that he was sent on deputation. The respondent/State has piaced on record a memo dated 7/4/2009 sddressed by respondent No.3 to Block Education Officsr, Paii. From perusalofthe ssrne, it ap.pea.rs that his saiary was drawn from hls original place of posting i.e. Government Higher Secondary School Beharehua and' that he was nsver sent on deoutation 3. Be fhat as It may, ths quesoon for our consideration Is - whether the petitioner had any legai right to ciaim continuance as Block Education Coordinator in view of the C!rculardated2/12/1988? 4 From bare reading of th®above circui'ar, it is evident that it is an internal circuiaf of 'the State Govemment whereby guideline for deputation on externa! services and ex-cadre post has been notified and the same has not been issued under anv statutor/ provision and the same is advisory in characte.r. 0 " 5. !t is settied la.w that guidelines per se do not partake to the character of statute. Such guidelines in absence of the statutory backdrop are advisory in nature. The guideiines, by their very nature, do not fa!I into the category of legislation, direct, subordinate or anciliary. They have oniy an advisory roie to play and non- adherence to or deviation from them is necessari!y and implicitly permlssible. Guidelines being advssory in charactsr per se do not confer any iegat right. Vtfe are fortified in our visw from the judgments in the matters of Poonam Verma & Ors V. De!hi Dsvelopmsnt Authority (para-24) and New' India Assurance Company Ltd., Varsus Nusli Neviile Wadia and another (para23). 16. Shri V.R. Tlwari, ieamed counsei for respondent No.5, has. aiso impugned the order of Annexure-P/1 on the ground that the sarne was passed malafidely to accommodate respondent No.5. Howe'/er, after carefuiiy perusing the writ petition, we f'nd that there is no specific allegation of maiafides against the authority passing the impugned order; the authority has not been arrayed as respondent in person. Even othenvise, from perusai of the impugned order, we find that the ground of rnaiafide was nelther argued nor considered by the learned Singis Judge. "7. Learned S'ngle Judge in the matter of Radhe La! Nag (Supra) quoting para-2 of ths clrou'ar dated 2/12/1988 has hsld that the petitioner is entitied to remain on deputation for a minimum period of2 years from the date ofjoining in the borrcwing deoartment. 18. In the circumstances, we are of the considered view that the above circular dated 2/12/1988 rsferred to in the impugned order is an interna! guideline Issued by the ^t'. Stats Government and the sarne is advlsorv in character and It does not confsr anv legal rlght to the empioyee of the State Government posted on deputation to continue on deputatlon for a minimum period of 2 year.s. AIR 2008 SUPREME COURT 870 (2008^. 3 Supreme Court Cases 279 'Mcf.) / _y. 19. 't was also brought to our notice that the petitioner joined the borrowlng department on 31/7/2007 and he is stil! continuing there and thus he has aiready completed 2 yes.rs in Rajeev Gandhi Shiksha Mission. 20. 0" the basis of aforesa.id discussion, relying upon the judgments in the matters of Kunal Nanda and V. Ramaknshnan (supra) we hold that the petitioner had no vested right to continue on deputation; there is nothing to show that the impugned order of repatriation daied 15-12-2008 (Annexure-P/1) was passed with maiafide; the ciroular dated 2-12-1988 was not issued under anv statutory rule, reauiation or order having the force of law and the same does not confer any vested right to contlnue on degutation. . Acco.'dlngiy, we a!low this appeal, set aside the impugned order dated 29"' Aprii, 2009 passed in Writ Petition (S) No.7178 of 2008 and further dismiss the above writ "etition filed bv resDondent No.5. No orders as io costs. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge ssn/e ^y