W.P.NO.5809/2010.
17-05-2010
Shri Mrigendra Singh, learned counsel for the petitioner.
Shri Puneet Shroti, learned Panel Lawyer, for respondent nos.1
and 2.
Shri S.A.Khan, learned counsel for respondent no.3.
Shri Mukhtat Ahmed, learned counsel for respondent no.4.
Challenging the order dated 27-04-2010, passed by respondent
nos. 1 and 2 repatriating the petitioner back to his parent department
and posting him as Veterinary Officer, Veterinary Hospital,
Gairatganj, District Raisen and instead posting respondent no.3 as
Chief Executive Officer, M.P.Waqf Board, Bhopal, the petitioner has
filed this writ petition.
The facts in brief necessary for disposal of this writ petition are
that petitioner is an Assistant Veterinary Surgeon. Vide order dated
15-09-2008, he was sent on deputation on the post of Chief
Executive Officer of the Waqf Board. Thereafter the petitioner was
relieved by his parent department and an order was passed vide
Annexure P-4 dated 29-09-2008 by the parent department sending
his services on deputation to the Waqf Board through the State
Government for a period of one year or until further orders. The
petitioner is working as Chief Executive Officer in Waqf Board since
then and now by the impugned order he is repatriated back to his
parent department. Challenge to the impugned action is made mainly
on the ground that respondent no.4 Mohd. Siddiquie alias Chhiddi
Chacha who is the member of M.P. Haj Committee had filed a Public
Interest Litigation W.P. No.5558/2009 and the Division Bench of this
court vide Annexure P-6 dated 05-01-2010 directed for conducting
inquiry into allegation against the petitioner preferable within period
of 3 months and in the said inquiry it was directed that opportunity
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should be granted to the petitioner for defending himself. Inter alia
contending that without conducting inquiry and on the ground of
complaints received, the petitioner is being transferred , challenge is
made to the action repatriating the petitioner to his parent department.
It was argued by Shri Mrigendra Singh, learned counsel for the
petitioner that apart from the fact that no inquiry was held in
accordance to the directive issued by the Division Bench on 05-01-
2010 in W.P.N o.5558/2009 the petitioner is being repatriated in the
light of various complaints received against him. By referring to
various complaints filed by the respondents alongwith reply and
taking me through the provisions of M.P. Waqf Board Rules, 2000
Annexure P-7 and the provisions of Rule 7 thereof, it was argued by
Shri Mrigendra Singh, learned counsel for the petitioner that under the
Rules the inquiry into complaints should be held by the Govt. only if
a report is submitted by the Chairman of the Board. Taking me
through the provisions of Sub Rule (c ) of Rule 7, it was argued that
in this case there is neither any complaint to the Chairman nor is
there request for conducting inquiry by the Chairman and therefore,
the action taken is unsustainable. Contending that transfer of an
employee on complaint is unsustainable for the reasons and
principles laid down by the Supreme Court in the case of Somesh
Tiwari Vs. Union of India and others, (2009) 2 SCC 592 learned
counsel for the petitioner seeks interference into the matter. It was
emphasized by Shri Mrigendra Singh, learned counsel for the
petitioner that an order of transfer which is tainted with malafides
and is in lieu of punishment on complainant, is illegal and cannot be
sustained, accordingly it was argued that the action is unsustainable
and cannot be upheld.
The respondents have filed return and in the return the
respondents have brought on record various complaints received
against the petitioner vide Annexure R-1 & 2/2 to R-1 & 2/5 and the
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provisions of the policy in respect of sending person on deputation to
emphasize that the petitioner was sent on deputation for a period of
one year, the period is over and therefore, he can be repatriated .
The respondents relying on judgment rendered by this court in the
case of SNP Sharma Vs. State of M.P. and another, 2005 MPLJ
398 and another judgment in the case of Kunal Nanda Vs. Union
of India, AIR 2000 SC 2076 argued the petitioner was on deputation,
he has no right to continue on the post to which he was appointed
and as there are serious complaints with regard to his working in the
Board, a administrative decision is taken repatriating him, which is not
illegal. It was argued by Shri Puneet Shroti, learned counsel for the
State that even though the Division Bench in the PIL filed by
respondentno.4 W.P.N o.5558/2009 has directed for inquiry into the
matter but as the respondents are not conducting inquiry and have
taken an administrative decision to send back the petitioner to his
parent department , the action of the respondents is not illegal
warranting interference by this court.
Shri S.A.Khan and Shri Mukhtar Ahmed, learned counsel for
respondent nos. 3 and 4 respectively supported the arguments
advanced by the learned counsel for the State and by filing separate
return state that there is no malafides, the petitioner has no right to
continue on the post and he is only sent back to his parent
department, no case is made out for interference.
I have heard the learned counsel for the parties and perused
the record,.
As far as M.P. Waqf Board Rules 2000 and the provisions of
section 7 are concerned, the said provision reads as under:
“7. The terms and conditions of service of Chief Executive Officer-
The appointment, terms and conditions of service of Chief Executive
Officer under sub-section (2) of Section 23 of the Act shall be as given
below-
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(a) There shall be appointed a Chief Executive Officer by
the Government on deputation who shall be a Muslim
Government Servant not below the rank of Deputy
Collector;
(b) The Board shall pay to the Chief Executive Officer such
salary and allowances as fixed by the State Government
from time to time;
(c) When any disciplinary proceeding have to be initiated
against the Chief Executive Officer the Chairman shall
report the full facts to the Government and the
Government will take suitable action contemplated in
Madhya Pradesh Civil Service (Classification, Control
and Appeal) Rules, 1966;
(d) ——-”
A perusal of the aforesaid statutory provisions indicates that the
appointment, terms and conditions of service of the Chief Executive
Officer in the Waqf Board is governed by the provisions of Sub
Section (2) of Section 23 of the Act and Sub Rules 7(a) of the Rules
framed under the Property Act contemplates that every Board shall
have a Chief Executive Officer who shall be appointed by the
Government on deputation, the employee has to be a Muslim
Government servant and not below the rank of Deputy Collector.
Salary and allowance to the Chief Executive Officer is to be paid
by the Waqf Board as fixed by the State Government from time to
time. As far as initiating disciplinary action against the Chief Executive
Officer is concerned, sub rule 7(c ) contemplates that when
disciplinary proceeding is to be initiated against the Chief Executive
Officer, the Chairman of the Board shall report the full facts to the
Government and the Government will take suitable action as
contemplated in Madhya Pradesh Civil Service (Classification, Control
and Appeal) Rules, 1966. As far as the present case is concerned
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there is no report and recommendation of the Chairman of the Board
to initiate departmental inquiry against the petitioner. That being so
the provision of Rule-7 (c ) is not at all applicable in the case of the
petitioner. The petitioner admittedly was sent on deputation and his
substantive post is that of Assistant Veterinary Officer. Orders
Annexures P-3 and P-4 indicate that the period of deputation was one
year or until further orders , that period of one year is already over
and now the petitioner is being repatriated back. It is an admitted
position that an employee who is sent on deputation has not right to
continue on the post to which he was sent on deputation. The law in
this regard is well settled. The Supreme Court in the case of Union of
India through Govt. of Pondicherry and another Vs.
V.Ramakrishnan and others, (2005) 8 SCC 394 has clearly
approved the aforesaid principle. The said principle is also laid down
by this Court in the case of S.N.P. Sharma (supra). That being so the
petitioner cannot have any legal right enforceable by way of
mandamus to seek continuation on the deputed post.
However for making allegations of malafide the petitioner has
only placed reliance on the order passed by this court in W.P.
No.5558/2009 filed by the respondent no.4 to contend that without
conducting inquiry he is being repatriated and the respondent no.3 is
being accommodated at the instance of respondent no.4. From the
records it is seen that respondent no.4 had filed a writ petition
seeking inquiry against the petitioner and for cancellation of his
appointment and this court gave opportunity to the respondents to
conduct an inquiry and decide the representation, instead of
conducting inquiry into the matter, the petitioner has repatriated to his
parent department. If the Govt. so took a decision, administrative in
nature, the petitioner cannot challenge the same until and unless
the statutory rules enforceable by a writ of mandamus, are available
to the petitioner to seek continuation in foreign department on
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deputation. There is no such rule, regulation or statutory right
available to the petitioner to continue in the foreign department. The
respondents State Govt. has filed detailed reply and have brought on
record various complaints and have pointed out that while working
as Chief Executive Officer in the Waqf Board various complaints
were received against the petitioner and questions were asked in the
Legislative Assembly with regard to working of the petitioner, if on
these consideration an administrative decision is taken repatriating
the petitioner back to his parent department this court exercising
limited jurisdiction in a writ court cannot quash the aforesaid action
until and unless statutory rules are found to be violated. Neither any
statutory rule is found to be violated nor any malafides established in
the matter of repatriation of the petitioner. Once it is found that the
petitioner was on deputation and when his period of deputation is
over he has no right to continue on the deputed post, this court
cannot sit over the administrative decision of repatriating the
petitioner as if the Court has appellate jurisdiction. The judgment citied
by the learned counsel for the petitioner in the case of Somesh Tiwari
(supra) is to the effect that transfer on complaint is
unsustainable, this is of no assistance to the petitioner. In the present
case as the matter pertains to repatriation of the petitioner to his
parent department and when it is found that the petitioner has no
legal right to continue on the deputed post , the writ court cannot
interfere in the matter. That apart another Bench of the Supreme
Court in the case of Union of India and others Vs. Janardhan
Devanath and another, 2004 AIR SCW 955 has taken a view that
transfer order on complaint without following the inquiry is not perse
illegal. Be that as it may be the present is not a case of transfer of
an employee from one place to another but is a case of repatriation
of a deputed employee and once it is found that the petitioner does
not have any legal enforceable right to continue in the foreign
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department action of the respondents cannot be interfered with by
this court. Accordingly keeping in view the totality of the
circumstances and the administrative exigency established this
court does not find any ground for interference into the matter.
The petition, accordingly, stands dismissed.
(RAJENDRA MENON)
JUDGE
hsp.