State of
Madhya Pradesh & Ors Vs. Ashok Deshmukh & Anr
[1988] INSC 169 (11 May
1988)
Venkataramiah,
E.S. (J) Venkataramiah, E.S. (J) Ojha, N.D.
(J)
CITATION:
1988 AIR 1240 1988 SCR Supl. (1) 302 1988 SCC (3) 503 JT 1988 (2) 593 1988
SCALE (1)1099
ACT:
Madhya
Pradesh Civil Services Rules: Rule 14-Does not apply to a case of deputation
from one department to another-Mere allegations of bias and mala fides-Not
sufficient to quash administrative orders made in exigencies of administration.
HEAD NOTE:
Respondent
Ashok Deshmukh, was a Panchayat and Social Education Organiser in the Social
Welfare Department, Government of Madhya Pradesh, when he was temporarily
posted as an officiating Block Development Officer in the Panchayat and Rural
Development Department of the Government of Madhya Pradesh on 11th March, 1983. His services were returned back to
his parent department on 29th
June, 1984.
Aggrieved
by the order of repatriation, the respondent filed a suit in the Court of Civil
Judge, Udaipura, and obtained a temporary injunction. The temporary injunction
having been vacated, he filed a writ petition in the High Court. After the writ
petition was admitted and stay order issued, the respondent withdrew the civil
suit.
Two
principal contentions were urged before the High Court were; (1) that the order
of repatriation was contrary to Rule 14 of the M.P. Civil Services Rules, and
(2) that the order of repatriation was the result of bias and mala fide
attitude on the part of the Secretary, Panchayat and Rural Development
Department.
The
High Court held (1) that the order of repatriation had been passed in violation
of Rule 14 of the Rules, and (2) that although there was no material on record
to support the allegation of any bias and mala fide on the part of the
Secretary, the order of repatriation was the result of certain `wrong
complaints' made against him.
The
High Court quashed the order of repatriation and directed the State Government
to retain the respondent as officiating Block Development Officer so long as
persons junior to him were retained.
303
Allowing the appeal, it was, ^
HELD:
(1)
Rule 14 dealt with the question of reversion of a permanent Government servant
from the officiating higher grade to the lower grade, and did not apply to a
case of deputation from one department to another. The High Court was,
therefore, in error in holding that the impugned order of repatriation had been
passed in violation of rule 14 of the Rules. [307D-F]
(2)
The allegations of bias and mala fides made against the Secretary have remained
unsubstantiated. Unless the Court is sure that the impugned order is really
based upon allegations of bias and mala fides it should not proceed to quash
administrative orders which are made in exigencies of the administration. [310F-G;
C-D]
(3) If
mere existence of some allegations against an officer, which on enquiry had
been found to be untrue, were to be treated as the basis for quashing any order
of transfer or repatriation made in respect of any officer then almost every
such order of transfer or repatriation would have to be quashed because there
would always be some complaint by some party or other against every officer.
[310C-D]
(4)
The impugned order of repatriation did not on the face of it show that there
was any stigma attached to the respondent by reason of the said order. [310F]
(5) On
the material placed before it, the Court did not find that the order of
repatriation was arbitrary and violative of Article 14 of the Constitution.
[310G] C. Thiraviam Pillai v. State of Kerala, [1976] 2 S.L.R. 395, referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 2756 of 1987.
From
the Judgment and Order dated 2.9.1986 of the Madhya Pradesh High Court in
C.M.P. No. 742 of 1985.
S.N. Khare
and T.C. Sharma for the Appellants.
S.K. Gambhir
for the Respondents.
304
The Judgment of the Court was delivered by VENKATARAMIAH, J. The Ist respondent
Ashok Deshmukh was appointed as a Panchayat and Social Education Organizer in
the Social Welfare Department, Government of Madhya Pradesh, Bhopal on 16.8.1976. By an order dated
11th March, 1983 he along with 13 others was posted on deputation as an
officiating Block Development Officer in the Panchayat and Rural Development
Department of the Government of Madhya Pradesh. The relevant portion of the
said order, posting the Ist respondent on deputation, read as follows:
"GOVERNMENT
OF MADHYA PRADESH PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT (DEVELOPMENT) Bhopal, dated 11th March, 1983 O R D E R
Serial Number 1719/1463/22V-2/82. The following Panchayat and Social Education Organisers
are appointed on the post of officiating Block Development Officer, temporarily
and on deputation, from the date of taking charge in the pay scale of
Rs.350-25-400-25-500 E.B.-30- 650 until further orders and they are posted in
Development Block shown against their names. This posting on deputation would
be entirely temporary and they would not be entitled to become semi- permanent
or permanent on this post. If required their services may be transferred back to
their parental department at any time, after notice.
_____________________________________________
S. Name of Panchayat Name of Development No.and Social Educational block where
posted Organiser 1 2 3 _____________________________________________ 1 ...........................................
7. Shri
Ashok Deshmukh Kurwai (Vidisha) .............................................
In the
name and according to the order of Governor of Madhya Pradesh.
305 Sd/-
A.K.Chandra Secretary, Govt. of M.P. Rural Development Department" The Ist
respondent was transferred from the post of Block Development Officer, Kurwai,
in Vidisha district which he was holding on deputation as aforesaid to the
Development Block of Udaipura. District Raisen by an order dated August 1, 1983. On 29th June, 1984 the services of the Ist respondent were placed at the
disposal of his parent department by an order made by the Secretary to the
Government, Panchayat and Rural Development Department, Madhya Pradesh. The
said order read thus:
GOVERNMENT
OF MADHYA PRADESH PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT (DEVELOPMENT) BHOPAL, DATED 29TH JUNE, 1984 ORDER No. 6297/1031/22/V-2/Est. 84. The services of Shri Ashok
Deshmukh appointed temporarily on deputation as officiating Block Development
Officer, Development Block-Udaipura, Distt. Raisen, are returned back to his
parental department Social Welfare Department because the same are not required
in this department.
In the
name and according to the orders of Governor of Madhya Pradesh.
sd/-
Illegible Secretary Panchayat and Rural Development Department
(Development)" Aggrieved by the said order of the State Government sending
him back to his parent department, where he held his lien, the Ist respondent
filed a suit in Civil Suit No. 16A of 1984 in the Court of Civil Judge, Udaipura
for permanent injunction restraining the Government of Madhya Pradesh from
repatriating him to his parent department and he obtained an order of temporary
injunction in that suit on 15.11.1984 restraining the State Government from
relieving 306 him from the post of Block Development Officer at Udaipura and
directing the State Government to allow him to continue as the Block
Development Officer. After the State Government entered appearance in the suit
and filed its objections to the order of temporary injunction, the Civil Judge
vacated the order of temporary injunction by his order dated 15.3.1985.
Thereafter the Ist respondent filed a writ petition on the file of the High
Court of Madhya Pradesh at Jabalpur
requesting the High Court to quash the order of repatriation in Miscellaneous
Petition No. 742 of 1985.
After
the writ petition was admitted and a stay order was issued the Ist respondent
withdrew the suit filed by him before the Civil Judge, Udaipura. Thereafter the
High Court heard all the parties and passed an order dated 2.9.1986 quashing
the order of repatriation dated 29.6.1984 sending back the Ist respondent to
his parent department and directed the State Government to retain him as
officiating Block Development Officer on deputation in the Panchayat and Rural
Development Department so long as persons junior to the Ist respondent were
retained as Block Development Officers and there existed a vacancy. The High
Court also quashed the order of the State Government dated 20.5.1985 directing
the Ist respondent to vacate the Government quarter which had been occupied by
him and also the order of suspension which had been passed in the meanwhile.
The High Court also directed the State Government to pay all the salary due to
the Ist respondent as Block Development Officer. Aggrieved by the order of the
High Court the State Government along with its officers against whom orders
were made by the High Court has filed this appeal by special leave.
In the
writ petition two principal contentions were urged on behalf of the Ist
respondent (i) that the order of repatriation was contrary to rule 14 of the
Madhya Pradesh Civil Services Rules, (hereinafter referred to as `the Rules'),
and (ii) the order of repatriation was arbitrary and was the result of bias and
mala fide attitude on the part of Smt. Nirmala Buch, Secretary, Panchayat and
Rural Development Department. The High Court held that the order of
repatriation had been passed in violation of rule 14 of the Rules and that although
there was no material on record to support the allegation of any bias and mala
fides on the part of Smt. Nirmala Buch the order of repatriation was the result
of certain "wrong complaints" made by one Panbai who was a Member of
the Legislative Assembly of the state of Madhya Pradesh.
Rule
14 of the Rules is as follows:
307
"14. Reversion and re-appointment: Permanent Government servants
officiating in a higher grade of service may be reverted to the lower grade of
service from which they were promoted if there are no vacancies in the former
grade of service, and such reversion shall not be construed to be a reduction
in rank:
Provided
that the order in which such reversion shall be made will be the reverse of the
order in which officiating promotion was made except when administrative
convenience renders it necessary to revert an officiating Government servant
otherwise than in accordance with this proviso:
Provided
further that on the occurrence of a fresh vacancy the re-appointment to the
higher grade of service shall ordinarily be in order of relative seniority of
the reverted Government servant." The above rule deals with the question
of reversion of a permanent Government servant from an officiating higher grade
of service to the lower grade of service from which he had been promoted. This
rule in terms does not apply to a case of deputation from one department to
another department. Admittedly the Ist respondent had not been promoted from
the post of Panchayat and Social Education Organiser which he held in the
parent department to a higher post in the said department. He had been, in
fact, posted on deputation as officiating Block Development Officer in the Panchayat
and Rural Development Department. The High Court was, therefore, in error in holding
that the impugned order of repatriation had been passed in violation of rule 14
of the Rules.
It is,
however, argued that even in the case of an officer who is deputed on a
temporary basis to a post in another department the same procedure prescribed
in rule 14 of the Rules should be followed. It is also submitted that there is
no specific rule as to the procedure to be followed in the case of repatriation
of an officer deputed from one department to another in force in the State of Madhya Pradesh. Reliance is, however, placed in
this connection on the decision of this Court in K.H. Phadnis v. State of Maharashtra,
[1971] Suppl. S.C.R. 118 which was also a case in which the question of
repatriation of an officer, who had been posted on deputation in another
department, to his parent department was under consideration. This Court has
observed thus at page 123:
308
"The order of reversion simpliciter will not amount to a reduction in rank
or a punishment. A Government servant holding a temporary post and having lien
on his substantive post may be sent back to the substantive post in ordinary
routine administration or because of exigencies of service. A person holding a
temporary post may draw a salary higher than that of his substantive post and
when he is reverted to his parent department the loss of salary cannot be said
to have any penal consequence. Therefore though the Government has right to
revert a Government servant from the temporary post to a substantive post, the
matter has to be viewed as one of substance and all relevant factors are to be
considered in ascertaining whether the order is a genuine one of `accident of
service' in which a person sent from the substantive post to a temporary post
has to go back to the parent post without an aspersion against his character or
integrity or whether the order amounts to a reduction in rank by way of
punishment. Reversion by itself will not be a stigma. On the other hand, if
there is evidence that the order of reversion is not `a pure accident of service'
but an order in the nature of punishment, Article 311 be attracted." In
the above case this Court came to the conclusion that the impugned order of
repatriation was in fact in the nature of punishment and therefore this Court
quashed it.
C. Thiraviam
Pillai v. State of Kerala and others, [1976] 2 S.L.R. 395 was
a case relating to repatriation of an officer who was reverted to his parent
department from the post which he held on deputation. The High Court of Kerala
quashed the order or repatriation since in the counter affidavit filed on
behalf of the State Government it had been admitted that the order impugned
therein had been passed since there were local complaints about the work in the
block and instances where the officer in question had misused his powers and
acted irregularly had been cited. The Block Development Officer had to maintain
very close contact with the public. The post required persons of broad outlook
and service-mindedness. The State Government felt that the continuance of such
an officer would bring down the name of the Development Department in the eyes
of the public and so in the interests of service and the department, Government
considered that he should be reverted back to his parent department. It is thus
seen that the above averment clearly established that the order of repatriation
309 had been passed on account of allegations made against the officer
concerned and it carried a stigma. Moreover in the above case the relevant rule
provided that persons selected for the post of Block Development Officers would
be treated on deputation to the Development department for a period of five
years, the Development Commissioner having the right to revert any of them to
his parent department, if his work proved to be unsatisfactory and to extend
the period of deputation beyond five years in exceptional cases.
In the
case before us no specific period had been mentioned as the period during which
the Ist respondent would be on deputation either in the order sending him on
deputation or in any relevant rule or Government order. The only question which
remains to be considered is whether the impugned order is one which attached a
stigma to the Ist respondent. The allegations made in this behalf are that one Panbai,
MLA referred to above had when the petitioner was at Kurwai made complaint
against the Ist respondent in connection with certain local elections. The said
complaint was after enquiry found to be wrong. On the date on which the Ist
respondent was repatriated he was not working in Kurwai block which was the
block in which Smt. Panbai was interested. He was working at Udaipura block in
a different district altogether. The respondents had filed counter- affidavit
denying that Smt. Nirmala Buch, the Secretary to the Government of Madhya Pradesh
had any ill-will against the Ist respondent. The High Court also came to the
conclusion that there was no material on record to show that there was any bias
or mala fide on the part of Smt. Nirmala Buch. Yet it proceeded to observe as
follows:
"Although
there is no material on record to support the allegations of any bias and mala
fide on the part of Smt. Nirmala Buch, the Secretary, Panchayat and Rural
Development Department, but the wrong complaints of the said M.L.A. appear to
be the only basis for passing the impugned order of reversion as well as the
order of transfer of the petitioner who had incurred the displeasure of his
superiors because of the said reports which were found to be incorrect."
With respect to the High Court it has to be stated that having observed that
there was no material to support the allegation of any bias and mala fide on
the part of the Secretary to the Government it committed an error in assuming
that the basis of impugned order of repatriation could only be the displeasure
of his superiors which the Ist 310 respondent had incurred by reason of the
wrong complaints of a Member of the Legislative Assembly. It is significant
that the order is silent about the names of those superiors who were displeased
on account of the allegations said to have been made by the Member of the
Legislative Assembly. This part of the order of the High Court is based on mere
surmise. The High Court overlooked that the allegations of bias and mala fides
are easily made but when it comes to the question of proof of such allegations,
very often there will be no material in support of them. This is one such case.
If mere existence of some allegations against an officer which on inquiry had
been found to be untrue is to be treated as the basis for quashing any order of
transfer or repatriation made in respect of any officer then almost every such
order of transfer or repatriation would have to be quashed because there would
always be some complaint by some party or other against every officer. Unless the
court is sure that the impugned order is really based upon such allegations it
should not proceed to quash administrative orders which are made in the
exigencies of the administration.
The
counter-affidavit filed on behalf of the State Government before the High Court
also shows that some other officers who had been posted on deputation like the Ist
respondent also had been reverted to their parent department and again some of
them had been posted back as Block Development Officers. Perhaps even in the case
of the Ist respondent a similar order posting him back as Block Development
Officer would have been passed by the State Government had he not filed the
suit and then the writ petition making it difficult for the State Government to
take a decision on the question of again posting him as a Block Development
Officer during the pendency of the proceedings. The impugned order of
repatriation passed in respect of the Ist respondent does not on the face of it
show that there is any stigma attached to the Ist respondent by reason of the
said order. We are clearly of the opinion that the allegations of bias and mala
fides made against Smt. Nirmala Buch have remained unsubstantiated. The Ist
respondent had no vested right to continue on deputation as Block Development
Officer. On the material placed before us we do not find that the order of
repatriation is arbitrary and violative of Article 14 of the Constitution. We,
therefore, find it difficult to agree with the High Court.
The
order passed by the High Court is therefore liable to be set aside. It is quite
possible that the Ist respondent may again be sent on deputation as Block
Development Officer.
That,
however, is within the discretion of the State Government.
311 In
view of what we have stated above we have not considered it A necessary to
decide the question whether the Ist respondent could proceed with the writ
petition after having withdrawn the suit which he had filed earlier in the
Court of Civil Judge, Udaipura.
In the
result we set aside the judgment and order of the High Court and dismiss the
writ petition filed by the Ist respondent. In the circumstances there will be
no order as to costs.
R.S.S.
Appeal allowed.
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