# Vimal Kumar Mishra v. State of U.P. & Ors - **Citation:** (2022) 5 ILRA 533 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-05-31 - **Case number:** Writ-A No. 14772 of 2020 - **Bench:** Suneet Kumar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vimal-kumar-mishra-v-state-of-u-p-ors-48556 - **Pages:** 11 ## Headnote A. Service Law - Temporary government servant as also the government servant appointed on deputation have no right to hold the post, his services are liable to be terminated by giving him one month notice without assigning any reason either as per the terms of the contract or the statutory rules regulating the terms and conditions of the service. In the present case, the Court earlier directed the reinstatement of the petitioner holding the termination/repatriation was arbitrary. But the respondent- State Urban Development Agency released the salary of the petitioner for the remaining period of the contract and declined to renew the contract of appointment further. As observed and held that SUDA was justified in not renewing the contract of appointment of the petitioner being based on an objective assessment of performance and utility of the petitioner, which was as per the terms and conditions governing the appointment of the government servant. (Para 36- 39) The decision of the respondent to repatriate the petitioner to his parent department and to not to renew the contract of the petitioner further was based on the performance, conduct and disutility of the petitioner, therefore valid and non-arbitrary. (Para 41) Writ Petition Rejected. (E-10) List of Cases cited: ## Text 5 All. Vimal Kumar Mishra Vs. State of U.P. & Ors. 533 14. In para 13, of the report Supreme Court observed and held as under: "13. In Avtar Singh [Avtar Singh v. Union of India, (2016) 8 SCC 471, though this Court was principally concerned with the question as to nondisclosure or wrong disclosure of information, it was observed in para 38.5 that even in cases where a truthful disclosure about a concluded case was made, the employer would still have a right to consider antecedents of the candidate and could not be compelled to appoint such candidate." 15. Recently, the Supreme Court in State of Rajasthan and others vs. Chetan Jeff, Civil Appeal No.3116 of 2002, decided on 11 May, 2022, upon considering the precedents, affirmed the decision of the authority (employer) in declining appointment on the post of Constable as the candidate had suppressed the information of pending criminal cases. The Court observed and held that acquittal or benefit of Probation of Offenders Act would not be sufficient to appoint the candidate on the post of Constable. 16. Having regard to the facts and circumstances of the case and the proposition of law and precedents, the writ petition being devoid of merit, is accordingly, dismissed. 17. No cost. ---------- (2022)05ILR A533 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 31.05.2022 BEFORE THE HON'BLE SUNEET KUMAR, J. Writ-A No. 14772 of 2020 Vimal Kumar Mishra ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: Abhishek Kumar Pandey, Apoorva Tewari Counsel for the Respondents: C.S.C., Atul Kumar Dwivedi, Dharmendra Kumar Dixit, Kazim Ibrahim, Pravin Singh, S.S. Rajawat A. Service Law - Temporary government servant as also the government servant appointed on deputation have no right to hold the post, his services are liable to be terminated by giving him one month notice without assigning any reason either as per the terms of the contract or the statutory rules regulating the terms and conditions of the service. In the present case, the Court earlier directed the reinstatement of the petitioner holding the termination/repatriation was arbitrary. But the respondent- State Urban Development Agency released the salary of the petitioner for the remaining period of the contract and declined to renew the contract of appointment further. As observed and held that SUDA was justified in not renewing the contract of appointment of the petitioner being based on an objective assessment of performance and utility of the petitioner, which was as per the terms and conditions governing the appointment of the government servant. (Para 36- 39) The decision of the respondent to repatriate the petitioner to his parent department and to not to renew the contract of the petitioner further was based on the performance, conduct and disutility of the petitioner, therefore valid and non-arbitrary. (Para 41) Writ Petition Rejected. (E-10) List of Cases cited: 1. Ashok kumar Ratilal Patel Vs U.O.I. (2012) 7 SCC 757 (distinguished) 2. U.O.I. Vs S.N. Maity (2015) 4 SCC 164 (distinguished) 534 INDIAN LAW REPORTS ALLAHABAD SERIES 3. U.O.I. Vs Ramakrishnan & ors. (2005) 8 SCC 394 4. Balmer Lawrie & Company & ors. Vs Partha Sarathi Sen Roy & ors. (2013) 8 CC 345 5. West Bengal State Electricity Board & ors. Vs Desh Bandhu Ghosh & ors. (1985) 3 SCC 116 6. Workmen Vs Hindustan Steel Ltd. AIR 1985 SC 251 7. St.of U.P. & ors. Vs Prem Lata Misra (Km) & ors. 1994 (4) SCC 189 8. St. of U.P. Vs Kaushal Kishore Shukla (1991) 1 SCC 691 (Delivered by Hon'ble Suneet Kumar, J.) 1. Heard Sri Apporva Tewari, learned counsel for the petitioner, Sri Kazim Ibrahim, learned counsel appearing for respondents No. 2 & 3 and learned Standing Counsel for the Staterespondents. 2. Petitioner has raised challenge to the order dated 8 July 2020, passed by the second respondent, Director State Urban Development Agency (for short ''SUDA'), repatriating the petitioner to his parent department. A further challenge has been raised to the consequential order dated 15 July 2020, whereby, the petitioner has been relieved from the post of Project Officer, District Unnao Development Authority Sultanpur, and order dated 29 July 2020, whereby, the fourth respondent has been posted on the said post. 3. The facts, briefly stated, for the purposes of the present writ petition, is that petitioner came to be appointed in 1987 on the post of Junior Clerk in the Department of Animal Husbandry, Government of U.P. Pursuant to a requisition issued by the State Urban Development Agency on 21 June 2017, petitioner applied for appointment on deputation for the post of Project Officer. The requisition was followed by an advertisement dated 26 June 2017, published in daily Amar Ujala. Petitioner applied for the post of Project Officer through proper channel on 3 July 2017, upon selection, petitioner was issued appointment order dated 27 October 2017. An agreement dated 17 November 2017, setting forth the terms and conditions of appointment was entered between the petitioner and SUDA, wherein, the maximum period of deputation was provided at 5 years, but renewable every year. On accepting the terms and conditions of appointment, petitioner came to be relieved by his parent department on 4 December 2017, thereafter, petitioner submitted his joining before the second respondent on 5 December 2017. Petitioner came to be posted Project Officer, District Urban Development Authority, Sultanpur (for short ''DUDA') on 2 January 2018, consequently, petitioner joined the post at Sultanpur on 6 January 2018. 4. Petitioner after putting in two and half years of service, by the impugned order dated 8 July 2020, came to be repatriated to his parent department on administrative ground. Consequently, petitioner came to be relieved by the District Magistrate, Sultanpur, on 15 July 2020. Aggrieved, petitioner instituted the instant writ petition, wherein, an interim order came to be passed on 17 November 2020, staying the effect and operation of the impugned order and a further direction was issued to reinstate the petitioner. It appears that the second respondent declined to reinstate the petitioner, but paid the salary for the remaining period of contract for that year. 5. Learned counsel for the petitioner has made the following submissions while assailing the impugned order: 5 All. Vimal Kumar Mishra Vs. State of U.P. & Ors. 535 (i) that the impugned order is unreasoned, non-speaking and arbitrary; (ii) that no opportunity of hearing was given before passing the impugned order; (iii) that status of the petitioner on appointment on deputation is distinct from a transferee on deputation; (iv) that petitioner could not have been removed/reverted during the term of deputation without affording opportunity or show cause; (v) that no reasons have been assigned in the impugned order. 6. In support of his submission reliance has been placed on the decisions rendered by the Supreme Court in Ashok Kumar Ratilal Patel vs. Union of India1; Union of India vs. S.N. Maity2; Union of India vs. V. Ramakrishnan and others3 & Balmer Lawrie and Company and others vs. Partha Sarathi Sen Roy and others4. 7. In rebuttal, in the counter affidavit filed by the second respondent, it has been stated that petitioner failed to discharge his duties satisfactorily with full dedication in the interest of SUDA. The organization is engaged in implementing various schemes of the Central Government and/or State Government for urban poor, consequently, the beneficiaries were deprived of the benefits of the scheme or suffered due to delay in getting the benefits, viz, dwelling houses, and funds for construction of houses. It is further stated that petitioner miserably failed to achieve the targets and in one such scheme 566 dwelling units was sanctioned, but petitioner failed to complete even a single dwelling unit. As against 6180 dwelling units only 2150 i.e. less than 30% was achieved showing lack of interest by the petitioner in the work of SUDA. 8. Further, in National Urban Livelihood Mission (for short ''NULM'), financial assistance to the urban poor for setting up establishment for source of livelihood, petitioner miserably failed to achieve the target. The comparative chart with regard to Prime Minister Awas Yojana (Urban) and progress of NULM Scheme has been placed on record along with the counter affidavit at Annexure-CA-1. 9. It is further stated that petitioner was issued notice on 5 December 2019, for meeting the targets under the various schemes, petitioner replied on 24 December 2019, assuring that he shall make an endeavour to achieve the target. It is further stated that petitioner did not show any interest to the work allotted at District Sultanpur, further, petitioner violated Conduct Rules and the transfer policy by invoking political pressure to transfer him to another district of his choice. It is alleged that the wife of the petitioner submitted several applications for his transfer, the office of Deputy Chief Minister was approached for transfer. Further, it is stated that petitioner absented from duty leaving the station headquarter on several occasions without sanctioned leave or information, for which he was issued notice on 29 January 2019 and 19 May 2020. 10. That apart it is further alleged that serious complaints were received against the petitioner demanding bribe at Rs. 50 thousand each from the beneficiaries under the Schemes, and on the said complaint Additional Director SUDA directed the Chairman, DUDA Sultanpur, to conduct an enquiry and submit a report. Petitioner on an earlier occasion was issued notice dated 11 April 2019, by the Director SUDA, to show cause with regard to his poor performance in achieving targets. Despite 536 INDIAN LAW REPORTS ALLAHABAD SERIES notice, petitioner did not show any inclination to improve the targets, rather, applied political pressure demonstrating that petitioner was not interested in the work and lacks the aptitude and positive approach towards implementation of the Schemes for urban poor. Several complaints were received from the beneficiaries alleging demand of bribe for grant of benefits under the Schemes, on which an enquiry was conducted. The authority taking a lenient view repatriated the petitioner to the parent department as per the terms and conditions of the contract of appointment. It is urged that petition lacks merit and is liable to be dismissed. 11. Rival submissions fall for consideration. 12. To ascertain, as to whether, the second respondent had applied his mind independently before passing the impugned order, the learned counsel appearing for the second respondent was directed to produce the records pertaining to the decision taken on the repatriation of the petitioner. Learned counsel produced the record and upon perusal of the record and the ordersheet, with the assistance of the learned counsels, it is noted that complaint was received from Member of the Legislative Assembly, through the office of the Chief Minister, alleging that petitioner lacks knowledge of the work, consequently, the wards inhibited by marginalized sections of society have been deprived of the development work under the Schemes. The beneficiaries have not received benefits of the Schemes, further, the proposed work was also not carried out by the petitioner under the Prime Minister National Awas Yojana and Kashi Ram Shahri Awas Yojana. Further, there is allegation of rampant corruption in allotment of the benefits under the Schemes. The complaint sought transfer of the petitioner. It is further noted that during Covid Pandemic petitioner without information and proper approval of his superior went missing from his duty for which petitioner was called upon to explain vide notice dated 19 May 2020. Further, it is noted that the petitioner for his transfer to another district i.e. DUDA Prayagraj, mounted pressure from the State Government/Central Government which is unbecoming of a government servant. In the aforenoted background, it was requested that petitioner be repatriated to his parent department as per the terms and conditions of appointment, which came to be duly approved by the second respondent on 8 July 2020. The decision of the second respondent is based on the noting endorsed by several officers. 13. Learned counsel for the petitioner was allowed to peruse the original record and the notings therein. 14. In the backdrop of the aforenoted satisfaction recorded by the second respondent pertaining to the performance, conduct and utility of the petitioner, learned counsel for the second respondent submits that the competent authority having regard to the terms and conditions of appointment, repatriated the petitioner. The second respondent in its wisdom did not desire to transfer the petitioner or to proceed departmentally against the petitioner for his incompetence, lack of interest, and/or, on allegations of misconduct/extraneous considerations, instead, passed an order simplicitor repatriating the petitioner to the parent department. 15. It is urged that the motive behind the impugned order rests upon the assessment of the overall work, 5 All. Vimal Kumar Mishra Vs. State of U.P. & Ors. 537 performance and conduct of the petitioner. The impugned order is not founded on misconduct perse. The entire record of the petitioner, including, complaints received against him were considered by the second respondent before passing the impugned order. 16. Submission of the learned counsel for the petitioner that since the petitioner's appointment was appointment on deputation and not by way of transfer on deputation, therefore, petitioner was entitled to a show cause notice before petitioner could have been repatriated to the parent department. He submits that there is a distinction between ''transfer on deputation' and ''appointment on deputation'. Petitioner came to be appointed on deputation after due process of selection against a post with the second respondent. 17. Reliance has been placed on Ashok Kumar (supra) wherein, Supreme Court noted that the appellant, therein, came to be selected on the post of Director AICTE for a period of three years. Before the petitioner could join the post, the appointment on deputation came to be cancelled as the grade-pay for the selected post was lower than the revised grade-pay which the petitioner was entitled in his parent department. The respondent withdrew the offered appointment of the appellant on the ground that the deputation from higher post to lower post is not admissible under the rules. The Court in the given facts noted that the appellant was prepared and submitted his willingness to join at the lower grade-pay, in the circumstances, the Court was of the opinion that the action of the authority in withdrawing the appointment of the appellant was arbitrary and in violation of Article 14 of the Constitution. The Court made the following observation. 14. ........... A person, who applies for appointment on deputation has indefeasible right to be treated fairly and equally and once such person is selected and offered with the letter of appointment on deputation, the same cannot be cancelled except on the ground of non- suitability or unsatisfactory work. 15. 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 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. 18. The case would not apply to the facts arising in the instant writ petition. It is not the case of the petitioner that appointment of the petitioner was recalled or cancelled before joining the post on deputation, rather, it is a case where the respondents after assessing the performance and utility of the petitioner declined to extend the contract of appointment and instead repatriated the petitioner to his parent department. The issue, in the facts of the case in hand, is as to whether the petitioner could be repatriated by an order simplicitor in terms of the appointment agreement. 19. In S.N. Maity (supra), the writ petitioner (respondent before the Supreme Court) was a Scientist in Central Mining Research Institute. He came to be 538 INDIAN LAW REPORTS ALLAHABAD SERIES appointed on deputation on the post of Controller General of Patents, Designs and Trade Marks. After serving for one year, he was repatriated to his parent department. The order was contested on the ground that principles of natural justice was violated, therefore, being arbitrary and violative of Article 14 of the Constitution. A finding was returned by the Court that the case of the petitioner was not a case of simplicitor deputation but appointment on a deputation, therefore, petitioner could not have been repatriated to his parent department prematurely without disclosing the grounds for repatriation. The Court returned a finding that the tenure of posting of the petitioner/respondent was curtailed without any justifiable reason. The Court, however, declined to reinstate the petitioner/respondent as the tenure had expired but in the interest of justice directed that the petitioner/respondent shall be entitled to salary for the said period at 9% interest. 20. The distinguishing feature of S.N. Maity (supra) is that petitioner/respondent came to be appointed after due process on the recommendation of the Union Public Service Commission (UPSC) for a period of five years. The premature repatriation was not backed/supported by the grounds/reasons for repatriation. As against the facts of the case in hand, the contract of appointment incorporates a condition that the deputation could be terminated at any time. Further, the conduct and performance of the petitioner would be assessed every year and upon satisfaction of the competent authority the contract would be renewed on year to year basis. The term of initial appointment would be for three years but not exceeding five years. In other words in the instant case the terms and condition of appointment of the petitioner was not a term appointment, but appointment on year to year basis. The contract of appointment was required to be renewed upon assessment of performance, suitability and conduct of the petitioner. In the event the contract of appointment not being renewed, on the ground of suitability and unsatisfactory performance petitioner could be repatriated. The nature of appointment on deputation was purely temporary. 21. Supreme Court in Balmer Lawrie (supra), observed and held that where the actions of an employer bear public character and contain an element of public interest, as regards the offers made by him, including the terms and conditions mentioned in an appropriate table, which invite the public to enter into contract, such a matter does not relegate to a pure and simple private law dispute, without the insignia of any public element whatsoever. Where an unfair and untenable, or an irrational clause in a contract, is also unjust, the same is amenable to judicial review. 22. Reliance was placed by the Court on the decision rendered in West Bengal State Electricity Board & others vs. Desh Bandhu Ghosh and others5, Supreme Court considered a case where the respondent-employee was terminated by giving him only three months' notice, and without holding any enquiry or informing him about any actions on his part that were unwarranted. The court, after placing reliance on the judgment in Workmen vs. Hindustan Steel Ltd.6, held that where a regulation enables an employer to terminate the services of an employee, in an entirely arbitrary manner and in a manner that confers vicious discrimination, the same must be struck down as being violative of Article 14 of the Constitution. 5 All. Vimal Kumar Mishra Vs. State of U.P. & Ors. 539 23. The decision relied upon is of no help to the petitioner as the petitioner has not challenged any terms and conditions of the contract of appointment to urge that respondents could not have terminated the services of the petitioner without assigning any reason. The repatriation of the petitioner rests upon review of his performance and suitability. The nonrenewal of contract of appointment of the petitioner is not based on the principle of ''hire and fire'. The second respondent has assigned reasons to support the impugned order as reflected from the record. 24. Reliance has been placed on the terms and conditions incorporated in the Government Order dated 26 May 2003, wherein, it has been provided that the government servant appointed on deputation should not be repatriated before three years and in no case the deputation should exceed five years. It is urged that petitioner was entitled to continue for the remaining tenure. The Government Order is not of much assistance to the petitioner as the terms and conditions agreed between the parties, governing the appointment of the petitioner, would be relevant. The service contract clearly provides (Clause-2) that after one year of service, the performance of work and conduct of the petitioner would be reviewed and in the event of a satisfaction being recorded by the authority, the deputation period shall be extended for another year. It further provides that the assessment of performance and suitability would be undertaken, on year to year basis and the deputation period in any case would not exceed beyond five years. 25. Clause 3(i) of the agreement provides that after one year the deputation could be terminated without any notice. Clause 2(ii) provides that SUDA can terminate the service by notice of one calendar month, if the petitioner fails in performance of his duty and efficiency. Clause 13 clearly provides that the services of the petitioner is absolutely temporary and the deputation would automatically terminate on the expiry of the term i.e. one year. 26. Clause 1, 2, 3 and 3(i) and (ii) is extracted for ready reference: **1- izFke i{k vius dks vfHkdj.k ds vkns'kksa ds rFkk muds vf/kdkfj;ksa rFkkizkf/kdkfj;ksa ds v/khu izLrqr djsxk] ftuds v/khu vfHkdj.k }kjk mls le; le;ij j[kk tkrk gS rFkk izFker% ,d o"kZ dh vof/k ds fy, izfrfu;qfDr ij jgsxk tks lu ------- ds ekg-------- - ds fnukad -------------- ls izkjEHk gksxh vkSj blesa varfoZ"V micU/kksads v/khu gksxhA 2- ;g fd izFke i{k dh izfrfu;qfDr izFker% ,d o"kZ dh lsok dh lekfIr ij mlds}kjk fd;s x;s dk;ksZa ,oa vkpj.k dh leh{kk vfHkdj.k 1⁄4nwljs Ik{k1⁄2 }kjk dh tk;sxhvkSj dk;Z ,oa vkpj.k esa dksbZ rF; vfHkdj.k ds fgr es izfrdwy u ik;s tkus ijmldh izfrfu;qfDr nwljs i{k }kjk vkSj ,d o"kZ ds fy, c