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 (hereinafter referred to as the ‘North Gujarat University’) in
the scale of pay of Rs.12,000-420-18,300, 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 pre-revised scale of pay of the post of Director is
Rs.14,300-400-18,300 with further intimation that the said scale of pay
will be revised to the pay band + Grade Pay of PB-4 Rs.37,000-67,000 +
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, 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 |Period of |Designation |Nature of |
| |of the employer |service in |of Post held|work and |
| | |each post |& Scale of |level of |
| | |From to |pay |responsibili|
| | | | |ties |
| 1. |H. North Gujarat|Since |Director |Research, |
| |University, |August 2000 |Computer |Teaching & |
| |PATAN Gujarat | |Department |Administrati|
| |State (State | |Rs.12000-183|on of |
| |University) | |00 |department |
| | | | |conducting |
| | | | |UG, PG & |
| | | | |Ph.D Prog. |
In the Part-B 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:
“ PART-B
1. (a) Present Pay Scale : Rs.12000-420-18300
(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
=========
(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 w.e.f. the date, the offer assumes
the charge of the post.
2. Post and scale of pay: Director PB-4 Rs.37,400-67,000 + 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
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.
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.16400-450-20900-500-22400, with
present basic pay Rs.19100/-. (To be revised, very shortly, as per
the 6th Pay UGC Pay Scale of PB-1, Rs.37400-67000 + 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.16,400-450-20,900-500-22,400 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.16400-450-
22400 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.37400-67000+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 15-2-
2010 issued to you, hereby stands withdrawn with immediate effect.”
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.
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.
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 non-
suitability 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 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 pre-revised
scale of pay of the post of Director was shown at Rs.14,300-400-18,300. 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 PB-4 Rs.37,400-67,000 + 8700
(Grade Pay) with following stipulation at Clause 3:
“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 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 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.
-----------------------
15
