Ashok Kumar Ratilal Patel Vs Uoi

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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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