Full Judgment Text
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PETITIONER:
STATE CF MADHYA PRADESH & ORS.
Vs.
RESPONDENT:
ASHOK DESHMUKH & ANR.
DATE OF JUDGMENT11/05/1988
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
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.
HEADNOTE:
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
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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.
JUDGMENT:
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
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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
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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
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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
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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
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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.
312