Full Judgment Text
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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
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preferred against the order dated 23 March, 2011
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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
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25 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
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advertisement No.Estt.09(01)2009 dated 13
September, 2009 published in the Newspaper (Times
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of India) by the 2 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
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persons having Master Degree with 12 years’
experience in Teaching or Research in Central or
State Government or University.
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3. The appellant in his application dated 24
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
| last job) | ||||
| Sl.No<br>. | Name &<br>address of<br>the employer | Period of<br>service in<br>each post<br>From to | Designatio<br>n of Post<br>held &<br>Scale of<br>pay | Nature of<br>work and<br>level of<br>responsibi<br>lities |
| 1. | H. North<br>Gujarat<br>University,<br>PATAN Gujarat<br>State (State<br>University) | Since<br>August<br>2000 | Director<br>Computer<br>Department<br>Rs.12000<br>18300 | Research,<br>Teaching &<br>Administra<br>tion of<br>department<br>conducting<br>UG, PG &<br>Ph.D Prog. |
| In the PartB of the said application, apart<br>from the last pay scale he was receiving, the<br>appellant also mentioned the pay he was |
expecting, as mentioned below:
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“ PARTB
1. (a) Present Pay Scale : Rs.12000420
18300
(University/State Govt.) (Pay likely to
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revise as per 6 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
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along with others and after due selection the 2
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respondent issued an offer of appointment on 15
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
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to the Council (AICTE) by 26 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
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latest by 13 March, 2010. The relevant terms
and conditions for deputation attached with the
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offer letter dated 15 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.”
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5. The appellant by his letter dated 20
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February, 2010 informed the 2 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
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deputation within the joining date suggested by
the Council, as evident from the letter dated
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20 February, 2010 and is quoted hereunder:
“Hemchandracharya
North Gujarat University
P.B.No.21, University Road
Patan – 384265(N.G)
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Dated 20 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
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your office dated 15
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/.
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(To be revised, very shortly, as per the 6
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
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letter dated 5 March, 2010 informed the 2
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respondent the approval of deputation given by
the Executive Council of the North Gujarat
University with further information that the
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appellant will be relieved on 17 March, 2010.
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The 2 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
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as per the 6 Pay Commission and will be fixed
in Revised Pay Band + Academic Grade Pay of
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Rs.37,400 – 67,000 + Rs.10,000. The 2
respondent on receipt of the said letter issued
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the impugned letter dated 11 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
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in the impugned letter dated 11 March, 2010 is
extracted hereunder:
“I am directed to inform you that your
office vide their letter No.Estt/1572/2010
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dated 5 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
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6 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
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representation dated 20 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
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by the impugned judgment dated 23 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
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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
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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
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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.
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14. In the advertisement dated 13 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
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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
get to 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
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deputation was intimated by the 2 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
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3. The appellant by his letter dated 20
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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
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of appointment dated 15 February, 2010, it was
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not open for the 2 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
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order of withdrawal of appointment dated 11
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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
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of this Court dated 9 May, 2011, we direct the
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2 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
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with further direction to 2 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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