ASHOK KUMAR RATILAL PATEL Vs UOI
Bench: G.S. SINGHVI,SUDHANSU JYOTI MUKHOPADHAYA
Case number: C.A. No.-005225-005225 / 2012
Diary number: 11282 / 2011
Advocates: NIKHIL GOEL Vs
NAVIN PRAKASH
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5225 OF 2012 (arising out of SLP(C)No.10577 of 2011)
ASHOK KUMAR RATILAL PATEL …. APPELLANT
VERSUS
UNION OF INDIA AND ANOTHER ….RESPONDENTS
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
1. Leave granted. This appeal has been
preferred against the order dated 23rd March, 2011
passed by the Gujarat High Court whereby the High
Court dismissed the writ petition and affirmed
the order of cancellation of offer of appointment
as was issued to the appellant.
2. The appellant who was initially appointed on
25th August, 2000 as Director, Computer Department
in the Hemchandracharya North Gujarat University
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(hereinafter referred to as the ‘North Gujarat
University’) in the scale of pay of Rs.12,000
42018,300, applied for the appointment to the
post of Director on deputation pursuant to an
advertisement No.Estt.09(01)2009 dated 13th
September, 2009 published in the Newspaper (Times
of India) by the 2nd respondent. By the said
advertisement the candidates were informed that
the prerevised scale of pay of the post of
Director is Rs.14,30040018,300 with further
intimation that the said scale of pay will be
revised to the pay band + Grade Pay of PB4
Rs.37,00067,000 + 8,700. Applications were
called for from amongst suitable and eligible
persons having Master Degree with 12 years’
experience in Teaching or Research in Central or
State Government or University.
3. The appellant in his application dated 24th
September, 2009 shown details of his
qualifications in the prescribed proforma,
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including the scale of pay as he was receiving,
as shown below:
“11. Employment Record (details in reverse chronological order, starting with the last job)
Sl.No
.
Name & address of the employer
Period of service in each post From to
Designatio n of Post held & Scale of pay
Nature of work and level of responsibi lities
1. H. North Gujarat University, PATAN Gujarat State (State University)
Since August 2000
Director Computer Department Rs.12000 18300
Research, Teaching & Administra tion of department conducting UG, PG & Ph.D Prog.
In the PartB of the said application, apart
from the last pay scale he was receiving, the
appellant also mentioned the pay he was
expecting, as mentioned below:
“ PARTB
1. (a) Present Pay Scale : Rs.12000420 18300 (University/State Govt.) (Pay likely to
revise as per 6th pay)
(i) Basic Pay Rs.15,780.00 (ii) Dearness Pay+DA Rs.19,015.00 (iii) Others Rs.03,559.00
Total Rs.38,354.00
=========
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(b) Basic Pay expected: as per AICTE norms.”
4. The case of the appellant was considered
along with others and after due selection the 2nd
respondent issued an offer of appointment on 15th
February, 2010 and the letter was forwarded to
the Registrar, North Gujarat University
requesting the University to obtain acceptance of
the above offer from the appellant and forward it
to the Council (AICTE) by 26th February, 2010. In
the said letter, it was further requested that in
the event of the acceptance of the above offer,
the appellant may be relieved as early as
possible so as to enable him to join the Council
latest by 13th March, 2010. The relevant terms
and conditions for deputation attached with the
offer letter dated 15th February, 2010 are quoted
hereunder:
“TERMS & CONDITIONS FOR DEPUTATION
1. Period of deputation: The deputation shall be for a period of one year and extendable for a total period of not exceeding three years on yearly basis
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w.e.f. the date, the offer assumes the charge of the post.
2. Post and scale of pay: Director PB4 Rs.37,40067,000 + Rs.8700 (Grade Pay).
3. Pay: During the period of deputation Dr. PATEL ASHOK RATILAL will have the either to get his/her pay fixed in the deputation post under the operation of normal rules or to draw pay of the post held by him in the parent Department plus a deputation (duty) allowance in accordance with and subject to the conditions, as modified from time to time and such other general or special orders issued by the Ministry of Finance.”
5. The appellant by his letter dated 20th
February, 2010 informed the 2nd respondent his
readiness and acceptance to join the post of
Director, AICTE, New Delhi. He also informed his
parent University to relieve him to join AICTE on
deputation within the joining date suggested by
the Council, as evident from the letter dated
20th February, 2010 and is quoted hereunder:
“Hemchandracharya North Gujarat University
P.B.No.21, University Road Patan – 384265(N.G)
Dated 20th February, 2010
NAAC Accredited “B” (CGPA) State University
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To Chief Administrative Officer All India Council for the Technical Education, New Delhi.
Subject : An Application for the post of “DIRECTOR” on
Deputation (Dr. A.R. Patel)
Ref. An advertisement letter from your office dated 15th
February, 2010, with Ref. No.: FNo.2 4/07/ AICTE/ Rectt./Estt/2009/815.
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Sir, With respect to above subject, I am
thankful to Council for opportunity given to me for work as a Director on deputation basis at AICTE. I am a Director at Computer Department of H. North Gujarat University in Pay Scale of Rs.1640045020900500 22400, with present basic pay Rs.19100/. (To be revised, very shortly, as per the 6th
Pay UGC Pay Scale of PB1, Rs.3740067000 + Rs.10,000 (Academic grade pay).
I hereby accept the offer of post of Director at AICTE, with my present pay as described above, I have requested my University to relieve me to join AICTE on deputation within joining date suggested by Council. Hence, I will join the Council as soon as HNG University relieve me.
Thanking you Yours sincerely
(Dr. Ashok R. Patel)”
6. The North Gujarat University in turn by
letter dated 5th March, 2010 informed the 2nd
respondent the approval of deputation given by
the Executive Council of the North Gujarat
University with further information that the
appellant will be relieved on 17th March, 2010.
The 2nd respondent was further informed that the
present basic pay of the appellant is Rs.19,100
in the pay scale of Rs.16,40045020,900500
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22,400 and very shortly the same will be revised
as per the 6th Pay Commission and will be fixed
in Revised Pay Band + Academic Grade Pay of
Rs.37,400 – 67,000 + Rs.10,000. The 2nd
respondent on receipt of the said letter issued
the impugned letter dated 11th March, 2010 and
withdrew the offer of appointment of the
appellant on the ground that deputation from
higher post to lower post is not admissible under
rules. The relevant portion of the ground given
in the impugned letter dated 11th March, 2010 is
extracted hereunder:
“I am directed to inform you that your office vide their letter No.Estt/1572/2010 dated 5th March, 2010 has informed that your present basic pay is Rs.19,100 in the pay scale of Rs.1640045022400 and very shortly it will be revised as per the UGC 6th Pay Commission and will be fixed in the revised pay band+Academic Grade Pay ofRs.3740067000+Rs.10,000/. The post of Director, in AICTE, offered to you is in the revised bay band of Rs.37400 67000+Rs.8700/, which is a lower grade. Deputation from higher post to lower post is not admissible under rules, the aforesaid offer letter dated 1522010 issued to you, hereby stands withdrawn with immediate effect.”
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7. The cancellation of offer of appointment was
followed by another advertisement which was
challenged by the appellant initially by filing a
representation dated 20th January, 2011 but
having not received any information he preferred
a writ petition before the Gujarat High Court.
8. The Division Bench of the Gujarat High Court
by the impugned judgment dated 23rd March, 2011,
dismissed the writ petition on the ground that
the appellant has no right to claim entitlement
to the post of Director and cannot compel the
respondent to take him on deputation.
9. Learned Counsel appearing on behalf of the
appellant submitted that the case of the
appellant was not a case of transfer on
deputation but was a case of appointment on
deputation after following all due procedures for
appointment and selection. In absence of any
illegality in selection, it was not open to the
Respondents to cancel the offer of appointment.
Such action is arbitrary and violative of Article
14 of the Constitution of India.
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10. On the other hand, according to the
respondents, they having realised that the pay of
the parent department of the appellant could not
be paid as he was getting higher pay as Director
in the North Gujarat University, the offer of
deputation was withdrawn. It was further
contended that a person getting higher scale of
pay cannot be deputed against a lower scale of
pay and the appellant has no right to claim his
entitlement to the post of Director, AICTE.
11. Ordinarily transfers on deputations are made
as against equivalent post from one cadre to
another, one department to another, one
organisation to another, or one Government to
another; in such case a deputationist has no
legal right in the post. Such deputationist has
no right to be absorbed in the post to which he
is deputed. In such case, deputation does not
result into recruitment, as no recruitment in its
true import and significance takes place as the
person is continued to be a member of the parent
service.
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12. However, the aforesaid principle cannot be
made applicable in the matter of
appointment(recruitment) on deputation. In such
case, for appointment on deputation in the
services of the State or organisation or State
within the meaning of Article 12 of the
Constitution of India, the provisions of Article
14 and Article 16 are to be followed. No person
can be discriminated nor it is open to the
appointing authority to act arbitrarily or to
pass any order in violation of Article 14 of the
Constitution of India. A person, who applies for
appointment on deputation has indefeasible right
to be treated fairly and equally and once such
person is selected and offered with the letter of
appointment on deputation, the same cannot be
cancelled except on the ground of nonsuitability
or unsatisfactory work.
13. The present case is not a case of transfer
on deputation. It is a case of appointment on
deputation for which advertisement was issued and
after due selection, the offer of appointment was
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issued in favour of the appellant. In such
circumstances, it was not open for the respondent
to argue that the appellant has no right to claim
deputation and the respondent cannot refuse to
accept the joining of most eligible selected
candidate except for ground of unsuitability or
unsatisfactory performance.
14. In the advertisement dated 13th September,
2009, the prerevised scale of pay of the post of
Director was shown at Rs.14,30040018,300. It
was mentioned that the said pay scale will be
revised to the pay band + grade pay of Rs.37,000
67,000 + 8700. No stipulation was made therein
that a person receiving higher pay of scale or
higher qualification is ineligible for
appointment on deputation. On the contrary, in
the offer of appointment, “the terms and
conditions for deputation” it was specifically
mentioned that the scale of pay of Director is
PB4 Rs.37,40067,000 + 8700 (Grade Pay) with
following stipulation at Clause 3:
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“3. Pay: During the period of deputation Dr. PATEL ASHOK RATILAL will have the either to get his/her pay fixed in the deputation post under the operation of normal rules or to draw pay of the post held by him in the parent Department plus a deputation (duty) allowance in accordance with and subject to the conditions, as modified from time to time and such other general or special orders issued by the Ministry of Finance. ”
(emphasis added)
Once such terms and conditions for
deputation was intimated by the 2nd respondent to
the North Gujarat University, it was for the
appellant to decide whether he will accept the
scale of pay as was offered or will continue to
receive his fixed pay on deputation as per Clause
3. The appellant by his letter dated 20th
February, 2010, accepted the offer and had shown
his desire to join the post of Director, AICTE
with the pay as mentioned in the said letter;
such acceptance being in consonance with the
terms and conditions of deputation and the offer
of appointment dated 15th February, 2010, it was
not open for the 2nd respondent to cancel and
withdraw the offer of appointment. Going by the
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principles as referred above, we are constraint
to state that the High Court failed to appreciate
the difference between “transfer on deputation”
and “appointment on deputation” and erred in
holding that the appellant has no right to claim
entitlement to the post of Director. As the
appellant was selected after due selection and
was offered appointment on deputation, and, in
absence of any valid ground shown by the
respondents, we hold that the appellant has a
right to join the post and the respondents were
bound to accept his joining.
15. For the reasons aforesaid, the impugned
order of withdrawal of appointment dated 11th
March, 2010 and the order of the Division Bench
of Gujarat High Court cannot be sustained and
they are accordingly set aside. As the post of
Director is vacant, in view of the interim order
of this Court dated 9th May, 2011, we direct the
2nd respondent to accept the joining of the
appellant for a period of one year on deputation
which is to be counted from the date of his
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joining and other terms and conditions of
deputation will remain same. The North Gujarat
University is directed to relieve the appellant
with further direction to 2nd respondent to
accept the joining of the appellant within one
week from the date of reporting by the appellant.
The appeal is allowed with the aforesaid
observations and directions. There shall be no
order as to costs.
………..……………………………………………..J. ( G.S. SINGHVI )
……………………………………………………….J. ( SUDHANSU JYOTI MUKHOPADHAYA )
NEW DELHI, JULY 16, 2012.
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