# Bina Pandey v. State of U.P. and others

- **Citation:** (2006) 1 ILRA 102
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-12-09
- **Case number:** Civil Misc. Writ Petition No. 54962 of 2005
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bina-pandey-v-state-of-u-p-and-others-40790
- **Pages:** 6

## Headnote

Constitution
of
India,
Art.
226appointment on deputation-Legal Right
of such appointee-explained-petitioner
working as health visitor-under chief
medical officer-by order dated 8.2.2005
sent on deputation to work in rural
Development authority for 3 years-by
1 All] Bina Pandey V. State of U.P. and others
103
order dated 21.7.2005 based on policy
decision of government-petitioner was
send to her parent department-helddeputanist has no right to claim the post
on deputation-petition dismissed

Held: Para 9

In the case in hand, it is not the case of
the petitioner, that her deputation has
been cancelled on account of some
misconduct
or
allegations
attaching
stigma to her service. It appears that the
State Government took a decision not to
make such deputations vide its order
date 14th July 2005, and following the
same the deputation of the petitioner
has been cancelled by order dated 21st
July 2005. In these circumstances, I do
not find any reason to interfere with the
order impugned in the present writ
petition.
Case law discussed:
2000 (5) SCC 362
W.P. No. 52527 of 05 decided on 3.8.05
2004 (3) UPLBEC-2318
2005 (1) AWL 426
2003 (1) AWL 520 Para 4

## Text

102 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
elaborately, which decision is reported in
1999 A.C.J. (2) 1429.

8. The law, therefore, was settled by
this court that the son of a predeceased
son, who was dependent on his grand
father was entitled to be considered for
compassionate appointment in the event
the grand father died in harness. There is
absolutely no ambiguity in the law laid
down by this court in the division Bench
judgment referred to herein above, which
is binding on me and was more binding
on the officer concerned, who has passed
this order.

9. The impunity with which the
impugned order was passed clearly
indicates that the officer concerned did
not even care to have a glance of the
judgment of the Division Bench, which
reference has been made in the direction
of this court contained in the order dated
9.8.2005.
The
aforesaid
procedure
adopted by the respondent no. 2 is
reprehensible and is deprecated.

10. Learned standing counsel could
not successfully defend the impugned
order in view of the decision of the
Division
Bench
of
this
court
and
therefore, has urged that appropriate
orders be passed and the matter be finally
disposed of.

11. Keeping in view the facts and
circumstance, stated herein above and the
law applicable to the controversy, the
impugned order dated 13.12.2005 is
quashed with a direction to the Director of
Education Basis respondent no. 2 to issue
necessary directions for appointment of
the petitioner giving him the benefit of
compassionate appointment Rules in the
light of the observations made herein
above.

12. This order is being passed in
view of the fact that the respondent no. 2
ahs no where disputed the status of
destitution of the petitioner, who claims
himself to be solely dependent on his
grand father.

13. The writ petition accordingly
succeeds and is allowed. The impugned
order dated 13.12.2005 Annexure VIII to
the writ petition, is quashed and the
respondents 2 and 3 are directed to
implement this judgment within three
weeks from today.

14. With the aforesaid directions, petition
is disposed of.
Petition disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2005

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 54962 of 2005

Bina Pandey

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri V.K. Singh
Sri Pradeep Kumar Pandey

Counsel for the Respondents :
S.C.

Constitution
of
India,
Art.
226appointment on deputation-Legal Right
of such appointee-explained-petitioner
working as health visitor-under chief
medical officer-by order dated 8.2.2005
sent on deputation to work in rural
Development authority for 3 years-by
1 All] Bina Pandey V. State of U.P. and others
103
order dated 21.7.2005 based on policy
decision of government-petitioner was
send to her parent department-helddeputanist has no right to claim the post
on deputation-petition dismissed

Held: Para 9

In the case in hand, it is not the case of
the petitioner, that her deputation has
been cancelled on account of some
misconduct
or
allegations
attaching
stigma to her service. It appears that the
State Government took a decision not to
make such deputations vide its order
date 14th July 2005, and following the
same the deputation of the petitioner
has been cancelled by order dated 21st
July 2005. In these circumstances, I do
not find any reason to interfere with the
order impugned in the present writ
petition.
Case law discussed:
2000 (5) SCC 362
W.P. No. 52527 of 05 decided on 3.8.05
2004 (3) UPLBEC-2318
2005 (1) AWL 426
2003 (1) AWL 520 Para 4

(Delivered by Hon'ble Sudhir Agarwal, J.)

Heard learned counsel for the parties.

1. This writ petition has been filed
against the order dated 21.7.2005, issued
by
Additional
Commissioner
(Administration),
Gram
Vikas,
U.P.
Lucknow
(respondent
No.
2)
communicating the decision of the State
Government issued on 14.7.2005 whereby
all the posting on deputation have been
directed to repatriate.

2. The petitioner working as health
worker under Chief Medical Officer,
Allahabad was sent on deputation vide
order
dated
8.2.2005
in
Rural
Development Authority, Allahabad for a
period of three years. It is stated that the
said
deputation
was
without
any
deputation allowance.

3. learned counsel for the petitioner
submitted that the appointment of the
petitioner was fixed for a period of 3 yeas.
Repatriation
before
expiry
of
the
aforesaid
period
by means of the
impugned
order
is
arbitrary
and
discriminatory.

4.

Learned
counsel
for
the
respondents however, submits that the
Government servant has no right to
continue on deputation and it is open to
the parent department to recall the person
sent on deputation at any time.

5. It is not disputed by the parties
that the petitioner was sent on deputation
vide an order dated 8th February 2005, to
work as Assistant Project officer under
District
Rural
Development
Project,
Allahabad, and the said deputation has
been cancelled by means of the order
dated 21st July 2005. It is not the case of
the petitioner that the said order has been
passed either with mala fide intention or
to favour somebody else. The only case of
the petitioner is that once she has joined
on deputation, the same could not have
been cancelled. A right of an employee to
continue
on
deputation
has
been
considered in a catena of cases. In Kunal
Nunda Vs. Union of India, 2000 (5)
SCC 362, the Apex Court held as under :

".......
The
basis
principle
underlying deputation itself is that the
person concerned can always and at any
time be repatriated
to his Parent
Department to serve in his substantive
position therein at the instance of either
of the Departments, and there is no vested
right in such a person to continue for long
104 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
on deputation or to get absorpted
Department to which he had gone on
deputation . . . . . . ."(para 6)

6. This court in Ashok Kumar
Pandey Vs. State of U.P. and Others,
writ petition no 52527 of 2005 decided
on 3rd August 2005, has held as under :

"........It is well settled that a
deputationist has no right to remain on
deputation and he can be sent back to his
parent Department at any time............."

In the case of Devi Kumar Vs.
Rajya Krishi Utpadan Mandi Parishad
2004, 3 UPLBC 2318, this court observed
as under :

"..........The period of deputation
originally fixed can be cut short, if
considering necessary, a deputationist has
no right to continue in the deputation post.
. . . ."

A division Bench of this court in the
Gauri Shanker Vs. State of U.P. and
Others 2005 (1) AWL 426 held as under
:

"..........A deputationist has no right
to remain on deputation and he can be
sent back to his Parent Department at any
time ............"

7. The same view has been followed
by another Division Bench of this court in
the case of Dr. Seema Kundra Vs. State
of U.P. 2003 (1) AWL520 para 4.

8. It is not the case of the petitioner
that as a result of cancellation of the
deputation either her status would be
adversely affected or salary to which she
was entitled in the Parent Department
would be reduced in any manner. Learned
counsel for the petitioner submitted that
once having been sent on deputation for a
period of 3 years she had a right and
legitimate expectation to expect that she
would continue for a period of three years
on deputation, cancellation of deputation
pre mature is, therefore, arbitrary. In may
view,
the
doctrine
of
legitimate
expectation is not at all applicable and
attracted in the present case. In the case of
National
Buildings
Construction
Corporation Vs. S. Raghunathan and
others, the Apex Court has considered in
detail
the
doctrine
of
legitimate
expectation, its genus and development in
detail:

18. The
doctrine
of
"legitimate
Expectation" has its genesis in the
field of administrative law. The
Government and its departments, in
administering the affairs of the
country, are expected to honour their
statements of policy or intention and
treat the citizens with full personal
consideration without any iota of
abuse of discretion. The policy
statement cannot be disregarded
unfairly
or
applied
selectively.
Unfairness
in
the
form
of
unreasonableness is akin to violation
of natural justice. It was in this
context
that
the
doctrine
of
"Legitimate
Expectation"
was
evolved which has today become3 a
source of substantive as well as
procedural rights. But claims based
on "legitimate Expectation" have
been held to require reliance on
representations
and
resulting
detriment to the claimant in the same
way as claims based on promissory
estoppel.
1 All] Bina Pandey V. State of U.P. and others
105
19. Lord
Scarman
in
R.V.
Inland
Revenue Commissioners exp. Preston
(1985)
AC
835
laid
down
emphatically that unfairness in the
purported exercise of power can
amount to an abuse or excess of
power.
Thus
the
doctrine
of
"legitimate Expectation" has been
developed, both in the context of
reasonableness and in the context of
natural justice.
20. Lord Diplock in Council of Civil
Service Unions vs. Minister for the
Civil Service (1985) AC 347 laid
down that doctrine of "legitimate
Expectation" can be invoked if the
decision which is challenged in the
court has some person aggrieved
either (a) by altering rights or
obligations of that person which are
enforceable by or against him in
private law; (b) by depriving him of
some benefit or advantage which
either 9i) he had in the past been
permitted by the decision-maker to
enjoy and which he can legitimately
expect to be permitted to continue to
do
until
there
has
been
communicated to him some rational
grounds for withdrawing it on which
he has been given an opportunity to
comment; or (ii) he has received
assurance from the decision maker
that it will not be withdrawn without
giving him first an opportunity of
advancing reasons for contending
that it should not be withdrawn.
21. The Indian scenario in the filed of
"Legitimae
Expectation"
is
not
deifferent. In fact, this Court, in
several
of
its
decisions,
has
explained
the
doctrine
in
no
uncertain terms.
22. In Navjyoti Co-op. Group Housing
Society v. Union of India, 91992) 4
SCC 477 : (1992 AIR SCW 3075),
the decision of the House of Lords in
Council of Civil Service Unions v.
Minister for the Civil Service (1985
AC 374) (Supra) was followed and
that decision was summarized in the
following words. (at p. 3089 of AIR
SCW:
"It has been held in the said decision
that an aggrieved person was entitled to
judicial review if he could show that a
decision of the public authority affected
him of some benefit or advantage which
in the past he had been permitted to enjoy
and which he legitimately expected to be
permitted to continue to enjoy either until
he was given reasons for withdrawal and
the opportunity to comment on such
reasons."
23. This court further observed as under
(1992 AIR SCW 3075 paras 15 and
16):-
"The existence of 'legitimate
expectation' may have a number of
different consequences and one of
such
consequences
is
that
the
authority ought not to act to defeat
the 'legitimate expectation' without
some overriding reason of public
policy to justify its doing so. In a
case of legitimate expectation' if the
authority proposes to defeat a
persons 'legitimate expectation' it
should afford him an opportunity to
make
representations
in
the
matter............
It may be indicated here that the
doctrine
of
'legitimate
expectation'
imposes in essence a duty on public
authority to act fairly by taking into
consideration all relevant factors relating
to such 'legitimate expectation'. Within
the conspectus of fair dealing in case of
'legitimate expectation", the reasonable
opportunities to make representation by
106 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
the parties likely to be affected by any
change of consistent past policy, come
in."
24. In Food Corporation of India v. M/s
Kamdhenu
Cattlefield
Industries,
91993) 1 SCC 71 : (1993 AUR SCW
1509), it was held that in all State
actions, the State has to conform to
Article 14 of the Constitution of
which
non-arbitrariness
is
a
significant facet. It was further
observed that there is no unfettered
discretion in public law and a public
authority possesses powers only to
use them for public good. It was
further observed as under (at p. 1513
of AIR SCW) :-
"The mere reasonable or legitimae
expectation of a citizen, in such a
situation, may not by itself be a distinct
enforceable right, but failure to consider
and give due weight to it may render the
decision arbitrary, and this is how the
requirement of due consideration of a
legitimate expectation forms part of the
principle
of
non-arbitrariness,
a
necessary concomitant of the rule of law.
Every legitimate expectation is a relevant
factor requiring due consideration in a
fair decision-making process. Whether the
expectation of the claimant is reasonable
or legitimate in the context is a question
of fact in each case. Whenever the
question arises, it is to be determined not
according to the claimant's perception
but in larger public interest wherein other
more
important
considerations
may
outweigh what would otherwise have been
the legitimate expectation of the laimant.
A bona fide decision of the public
authority reached in this manner would
satisfy
the
requirement
of
nonarbitrariness
and
withstand
judicial
scrutiny. The doctrine of legitimate
expectation gets assimilated in the rule of
law and operates in our legal sysem in
this manner and to his extent."
25. In Union of India v. Hindustan
Development Corporation, 91993) 3
SCC 499 : 91993 AIR SCW 494), the
meaning
of
word
'Legitimate
Expectation" was again considered.
Quoting from the case of Attorney
General for New South Wales v,
Quin, (1990) 64 Aust LjR 327, the
following lines :-
"To strike down the exercise of
administrative power solely on the ground
of avoiding the disappointment of the
legitimate expectations of an individual
would be to set the courts adrift on a
featureless sea of pragmatism. Moreover,
the notion of a legitimate expectation
(falling short of a legal right) is too
bebulous to form a basis for invalidating
the exercise of a power when its exercise
otherwise accords with law."
The Court observed as under"-
"If a denial of legitimate expectation
in a given case amounts to denial of right
guaranteed
or
is
arbitrary,
discriminatory, unfair or biased, gross
abuse of power or violation of principles
of natural justice, the same can be
questioned on the well-known grounds
attracting Article 14 but a claim based on
mere
legitimate
expectation
without
anything more cannot ipso facto give a
right to invoke these principles. It can be
one of the grounds to consider but the
Court must lift the veil and see whether
the decision is violative of these principles
warranting interference. It depends very
much on the facts and the recognized
general principles of administrative law
applicable to such fact and the concept of
ligitimate expectation which is the latest
recruit to a long list of concepts fashioned
by
the
Courts
for
the
review
of
administrative action, must be restricted
1 All] Bishan Singh V. State of U.P. and another
107
to the general legal limitations applicable
and binding the manner of the future
exercise of administrative power in a
particular case. It follows that the concept
of legitimate expectation is "not the key
which unlocks the treasury of natural
justice and it ought not to unlock the gates
which shuts the Court out of review on the
merits", particularly when the element of
speculation and uncertaintyh is inherent
in that very concept."
26. This doctrine was reiterated in M.P.
Oil Extration v. State of M.P., (19970
7 SCC 592: (1997 AIR SCW 4104) in
which it was also laid down that
though the doctrine of "Legitimate
Expectation"
is
essentially
procedural in character and assures
fair play in administrative action, it
may, in a given situation, be enforced
as a substantive right.

9. In the case in hand, it is not the
case of the petitioner, that her deputation
has been cancelled on account of some
misconduct
or
allegations
attaching
stigma to her service. It appears that the
State Government took a decision not to
make such deputations vide its order date
14th July 2005, and following the same the
deputation of the petitioner has been
cancelled by order dated 21st July 2005. In
these circumstances, I do not find any
reason to interfere with the order
impugned in the present writ petition.

10. Lastly, the learned counsel for
the petitioner, however, submits that as a
result of cancellation of her deputation
she could not have joined her Parent
Department and now after such a long
time, the parent Department is likely not
to allow her to join her services and
therefore, this Hon'ble Court may be
pleased to protect her interest to the extent
that the Parent Department may allow her
to join her services.

11. This court hope and trust if the
petitioner submits her joining report
within a period of 6 weeks along with the
certified copy of his order, the Parent
Department would allow her to join her
services. However, with respect to the
past period for which the salary to the
petitioner has not been paid, if any
representation is made by the petitioner to
the competent authority, it shall be
considered and appropriate speaking order
in accordance with law shall be passed by
the competent authority within a period of
1 month from the date the representation
is made by the petitioner.

With these observations the writ
petition is dismissed.
Petition dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.01.2006

BEFORE
THE HON'BLE M.K. MITTAL, J.

Criminal Misc. Application No. 308 o 2006

Bishan Singh

...Applicant
Versus
State of U.P. & another ...Opposite party

Counsel for the Applicant:
Sri Sanjay Srivastava

Counsel for the Opposite Parties:
Sri Ramesh Sinha
A.G.A.

Code of Criminal Procedure-Section-482Quashing of Summoning order-offence
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