# Noorul Huda v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 652
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-01
- **Case number:** Writ A No. 427 of 2022
- **Bench:** Rajiv Joshi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/noorul-huda-v-state-of-u-p-ors-49096
- **Pages:** 4

## Headnote

C.S.C.,
Sri
Durga
Singh,
Sri
Sanjay
Chaturvedi

A.
Service
Law
-
Repatriation
-
Opportunity of hearing - A deputationist
indisputably has no right to be absorbed
in the post to which he is deputed.
However, there is no bar thereto as well. It
may be true that when deputation does not
result in absorption in the service to which an
officer is deputed, no recruitment in its true
import and significance takes place as he is
continued to be a member of the parent service.
When
the
tenure
of
deputation
is
specified, despite a deputationist not
having an indefeasible right to hold the
said
post,
ordinarily
the
term
of
deputation should not be curtailed except
on such just grounds as, for example,
unsuitability
or
unsatisfactory
performance. But, even where the tenure
is not specified, an order of reversion can
be questioned when the same is mala fide.
An action taken in a post-haste manner
also indicates malice. (Para 15)

Record
reflects
that
the
petitioner
was
appointed as District Co-ordinator (Community
Mobilization) in the office of District Basic
Education Officer, Ballia and joined the said post
on deputation on 20.11.2019. The impugned
order has been passed by respondent-2
repatriating him to parent department i.e. on
the post of Assistant Teacher (Urdu) in
Government Inter College, Ballia. Ordinarily a
deputationist has no right to continue on the
said post but the impugned action of the
respondents by passing the impugned order
casts stigma to him as the same was passed on
the basis of some complaint lodged by the
political worker and without affording any
opportunity of hearing to the petitioner, even
9 All. Noorul Huda Vs. State of U.P. & Ors.
653
the copy of the complaint has not been served
to the petitioner and the same order cannot be
said to be a simplicitor order but punitive in
nature. (Para 11, 12)

It is apparent that the petitioner has not
been afforded any opportunity of hearing
before passing the impugned order, which
is totally mala fide. (Para 14, 16)

The impugned order dated 27.11.2021 passed
by the respondent No. 2-State Project Director,
Sarva Shiksha Abhiyan, State Project Office,
Vidya
Bhawan,
Nishatganj,
Lucknow,
is
quashed. The respondents are directed to pass
fresh order in accordance with law after giving
adequate
opportunity
of
hearing
to
the
petitioner and after serving a copy of the
complaint lodged by the political worker. (Para
17)

Writ petition allowed. (E-4)

Precedent followed:

## Text

652 INDIAN LAW REPORTS ALLAHABAD SERIES
dated February 15, 2021, which was not in
existence until time when the writ petition
giving
rise
to
the
present
appeal,
challenging the order dated December 31,
2020, was filed. A writ petition filed on a
subsequent cause of action cannot be
dubbed as a second petition.

9. To sum up, in substance, till date,
no order determining the employment of
respondent No. 1 has been passed by the
respondents that is enforceable under the
law. The respondents, therefore, cannot
stop payment of the petitioner's salary and
orally ask him not to work or permit him to
work but not pay his salary. The impugned
order is, therefore, flawless and must be
upheld.

10. Since the appellants have
suppressed material facts from this Court,
which are already indicated hereinabove,
they must be saddled with adequate costs,
which we quantify as ₹50,000/-.

11. As a result, the appeal fails and
stands dismissed. The costs of ₹50,000/-
shall be deposited by the appellants with
the Allahabad High Court Mediation and
Conciliation Center within one month from
the date of receipt of copy of the order and
receipt thereof shall be produced before the
Registrar General, which shall be retained
on record.
----------

(2022) 9 ILRA 652
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.07.2022

BEFORE

THE HON'BLE RAJIV JOSHI, J.

Writ A No. 427 of 2022
Noorul Huda ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Yakub Ali, Ms. Chhaya Gupta, Ms. Sarita
Mishra

Counsel for the Respondents:
C.S.C.,
Sri
Durga
Singh,
Sri
Sanjay
Chaturvedi

A.
Service
Law
-
Repatriation
-
Opportunity of hearing - A deputationist
indisputably has no right to be absorbed
in the post to which he is deputed.
However, there is no bar thereto as well. It
may be true that when deputation does not
result in absorption in the service to which an
officer is deputed, no recruitment in its true
import and significance takes place as he is
continued to be a member of the parent service.
When
the
tenure
of
deputation
is
specified, despite a deputationist not
having an indefeasible right to hold the
said
post,
ordinarily
the
term
of
deputation should not be curtailed except
on such just grounds as, for example,
unsuitability
or
unsatisfactory
performance. But, even where the tenure
is not specified, an order of reversion can
be questioned when the same is mala fide.
An action taken in a post-haste manner
also indicates malice. (Para 15)

Record
reflects
that
the
petitioner
was
appointed as District Co-ordinator (Community
Mobilization) in the office of District Basic
Education Officer, Ballia and joined the said post
on deputation on 20.11.2019. The impugned
order has been passed by respondent-2
repatriating him to parent department i.e. on
the post of Assistant Teacher (Urdu) in
Government Inter College, Ballia. Ordinarily a
deputationist has no right to continue on the
said post but the impugned action of the
respondents by passing the impugned order
casts stigma to him as the same was passed on
the basis of some complaint lodged by the
political worker and without affording any
opportunity of hearing to the petitioner, even
9 All. Noorul Huda Vs. State of U.P. & Ors.
653
the copy of the complaint has not been served
to the petitioner and the same order cannot be
said to be a simplicitor order but punitive in
nature. (Para 11, 12)

It is apparent that the petitioner has not
been afforded any opportunity of hearing
before passing the impugned order, which
is totally mala fide. (Para 14, 16)

The impugned order dated 27.11.2021 passed
by the respondent No. 2-State Project Director,
Sarva Shiksha Abhiyan, State Project Office,
Vidya
Bhawan,
Nishatganj,
Lucknow,
is
quashed. The respondents are directed to pass
fresh order in accordance with law after giving
adequate
opportunity
of
hearing
to
the
petitioner and after serving a copy of the
complaint lodged by the political worker. (Para
17)

Writ petition allowed. (E-4)

Precedent followed:

1. U.O.I. Through Govt. of Pondicherry & anr. Vs
V. Ramakrishnan & ors., AIR 2005 SC 4295;
(2005) 8 SCC 394

Present
petition
assails
order
dated
27.11.2021,
passed
by
State
Project
Director, Sarva Shiksha Abhiyan, State
Project Office, Vidya Bhawan, Nishatganj,
Lucknow.

(Delivered by Hon'ble Rajiv Joshi, J. )

1. Heard Ms. Chhaya Gupta, learned
counsel for the petitioner, learned Standing
Counsel for the respondents-1, 3 & 4 and
Sri Durga Singh, learned counsel for the
respondent-2.

2. Present writ petition under Article
226 of the Constitution has been filed for
quashing
the
impugned
order
dated
27.11.2021 passed by the respondent no.2State Project Director, Sarva Shiksha
Abhiyan, State Project Office, Vidya
Bhawan, Nishatganj, Lucknow, whereby
the petitioner was repatriated to his parental
department i.e. Secondary Education, U.P.
with immediate effect.

3. The facts giving rise to the present
writ petition are as under:

4. The petitioner was initially
appointed on the post of Assistant Teacher
(Urdu) in Government Inter College, Ballia
after due selection and subsequently, on the
basis
of
advertisement
issued
by
respondent-2, he was appointed on the post
of
District
Co-ordinator
(Community
Mobilization) vide order dated 02.11.2018
on deputation in the office of District Basic
Education
Officer,
Ballia.
In
the
appointment letter, it is mentioned that the
said appointment was on deputation for a
minimum period of three years and
maximum five years.

5. Subsequently, pursuant to the said
appointment on deputation, the petitioner
joined
as
a
District
Co-ordinator
(Community Mobilization) at Ballia on
20.11.2019 in the office of District Basic
Education Officer, Ballia. Subsequently, on
the basis of complaint lodged by one Sri
Rajesh Kumar (unionist and B.J.P. worker,
Sohaon Ballia) as well as on the basis of
recommendation dated 17.11.2021 and
18.11.2021 of respondent no.4-Assistant
Director of Education (Basic) Azamgarh
Division, Azamgarh, the impugned order
dated 27.11.2021 has been passed, whereby
the petitioner repatriated to his parental
department i.e. Secondary Education, U.P.,
which is impugned in the writ petition.

6. Learned counsel for the petitioner
submits that the impugned order has been
passed on the basis of some complaint
lodged by the political worker as well as on
the basis of recommendation made by the
654 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent-4, which is not only punitive in
nature but stigmatic and even the impugned
order has been passed without affording
any opportunity of hearing to the petitioner
and without serving any copy of the
complaint lodged by the political worker
against the petitioner and the same cannot
be sustained in the eyes of law.

7. In support of her contention,
learned counsel for the petitioner placed
reliance upon the judgement of the Apex
Court passed in Union of India Through
Govt. of Pondicherry and Another Vs. V.
Ramakrishnan and Others, (2005) 0
Supreme (SC) 1350.

8. Learned counsel for the petitioner
further submits that no inquiry with regard
to allegation made in the complaint lodged
by the political worker has been conducted.

9. Per contra, learned counsel for the
respondent-2 submits that the petitioner
does not hold any lien on the post of
District
Co-ordinator
(Community
Mobilization),
who
was
working
on
deputation on the said post and has rightly
been repatriated to his original department
on the post of Assistant Teacher (Urdu) in
Government Inter College, Ballia. He
further submits that due to confrontation
between teachers association and the
petitioner, for smooth functioning of the
department work, the impugned order has
been passed. There is no illegality or
infirmity in the order impugned.

10. I have considered the rival
submission so raised by counsel for the
parties and perused the record.

11. Record reflects that the petitioner
was appointed as District Co-ordinator
(Community Mobilization) in the office of
District Basic Education Officer, Ballia and
joined the said post on deputation on
20.11.2019. The impugned order has been
passed by respondent-2 repatriating him to
parent department i.e. on the post of
Assistant Teacher (Urdu) in Government
Inter College, Ballia.

12. Ordinarily a deputationist has no
right to continue on the said post but the
impugned action of the respondents by
passing the impugned order casts stigma to
him as the same was passed on the basis of
some complaint lodged by the political
worker
and
without
affording
any
opportunity of hearing to the petitioner,
even the copy of the complaint has not
been served to the petitioner and the same
order cannot be said to be a simplicitor
order but punitive in nature. Specific
averment in this regard has been made by
the petitioner in paragraph 28 of the writ
petition, which is quoted as under:

"That
the
reversion
of
the
petitioner is completely arbitrary and in
violation of the principles of natural justice
insofar as no notice or opportunity of
hearing had been given to the petitioner
whereas the alleged complaint on the basis of
which the impugned order has been passed is
a unilateral complaint which had not been
enquired into till date."

13. The said paragraph was replied in
paragraph 19 of the counter affidavit, in
which averment with regard to affording any
opportunity of hearing and serving any copy
of the complaint to the petitioner has not
specifically denied. The said paragraph is
quoted as under:

"That the contents of paragraph
Nos. 26, 27, 28, 29 and 30 of the writ petition
are not admitted as stated, hence are denied.
9 All. C/M Harijan Primary Pathshala, Madhopur, Kasia, Tehsil Kasia, Dist. Kushinagar & Anr.
 Vs. State of U.P. & Ors.
655
In reply thereto it is submitted that the action
has been taken against the petitioner. It is
further submitted that due to confrontation
between
teachers
association
and
the
petitioner
for
smooth
functioning
of
departmental works, the petitioner has been
repatriated to his parent department of
Madhyamik Shiksha, U.P. in accordance with
law. It is further submitted that normally
tenure of deputation is 03 years, however,
under special facts and circumstances as well
as keeping in view of work interest the tenure
of deputation of an employee can be curtailed
and the power of the repatriation of an
employee on deputation before the prescribed
tenure is vested in the answering respondent
no.2."

14. From the said paragraphs, it is apparent
that the petitioner has not been afforded any
opportunity of hearing before passing the
impugned order, which is totally malafide.

15. Paragraph 32 of the said judgement
relied upon by counsel for the petitioner in
Union of India Through Govt. of Pondicherry
and Another (supra), is quoted as under:

"Ordinarily, a deputationist has no
legal right to continue in the post. A deputationist
indisputably has no right to be absorbed in the
post to which he is deputed. However, there is no
bar thereto as well. It may be true that when
deputation does not result in absorption in the
service to which an officer is deputed, no
recruitment in its true import and significance
takes place as he is continued to be a member of
the parent service. When the tenure of deputation
is specified, despite a deputationist not having an
indefeasible right to hold the said post, ordinarily
the term of deputation should not be curtailed
except on such just grounds as, for example,
unsuitability or unsatisfactory performance. But,
even where the tenure is not specified, an order
of reversion can be questioned when the same is
mala fide. An action taken in a post haste
manner also indicates malice."

16. In view of the above, it is clear that the
impugned order has been passed against the
petitioner without affording any opportunity of
hearing and cannot be sustained being stigmatic
and is malafide.

17. Accordingly, the impugned order dated
27.11.2021 passed by the respondent no.2-State
Project Director, Sarva Shiksha Abhiyan, State
Project Office, Vidya Bhawan, Nishatganj,
Lucknow, is quashed. The respondents are
directed to pass fresh order in accordance with
law after giving adequate opportunity of hearing
to the petitioner and after serving a copy of the
complaint lodged by the political worker.

18. Till such order is passed, the petitioner
would be permitted to work on the post of
District Co-ordinator (Community Mobilization)
in the office of District Basic Education Officer,
Ballia and shall be paid arrears of salary, if any,
and to pay salary month to month basis
regularly.

19. The writ petition is, accordingly,
allowed.
----------

(2022) 9 ILRA 655
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.08.2022

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ-A No. 11943 of 2022

C/M
Harijan
Primary
Pathshala,
Madhopur,
Kasia,
Tehsil
Kasia,
Dist.
Kushinagar & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents