Supreme Court of India
ASHOK KUMAR RATILAL PATELversusUNION OF INDIA AND ANR.
- Citation
- 2012 INSC 283
- Decided
- 16 July 2012
- Disposal
- Appeal(s) allowed
- Bench
- G S SINGHVI
Holding
An appointment on deputation, once offered after due selection, cannot be withdrawn except on grounds of non‑suitability; the appellant was entitled to join the post and the respondents were bound to accept his joining.
Summary
Dr. Ashok Kumar Ratilal Patel, a Director at North Gujarat University, applied for the post of Director on deputation at AICTE after a public advertisement. He was selected, offered appointment, and accepted the terms, which allowed him to either draw the deputation pay or retain his higher parent‑department pay with a deputation allowance. The AICTE later withdrew the offer, citing that deputation from a higher‑pay post to a lower‑pay post was not admissible. The Gujarat High Court upheld the withdrawal, holding that the appellant had no right to claim the post. The Supreme Court distinguished between "transfer on deputation" (which confers no right) and "appointment on deputation" (which is a recruitment governed by Articles 14 and 16), and held that the offer could not be cancelled except for non‑suitability. Consequently, the Court set aside the withdrawal order, directed AICTE to accept the appellant’s joining for one year, and ordered the university to relieve him.
Issues considered
- Whether a withdrawal of an offer of appointment on deputation is permissible when the appointee receives a higher pay scale in the parent department.
- Whether appointment on deputation is subject to the constitutional guarantees of equality and non‑discrimination under Articles 14 and 16.
- Whether the distinction between transfer on deputation and appointment on deputation affects the right of the selected candidate to join the post.
- Whether the respondent authority can refuse to accept the joining of a candidate selected through a valid recruitment process.
Subjects
appointment on deputationtransfer on deputationArticle 14Article 16service lawequalitypay scalerecruitmentcancellation of offer
Judgment
[2012) 6 S.C.R. 545
ASHOK KUMAR RATILAL PATEL A
v.
UNION OF INDIA AND ANR.
(Civil Appeal No. 5225 of 2012)
JULY 16, 2012
B
[G.5. SINGHVI AND SUDHANSU JYOTI
MUKHOPADHAYA, JJ.]
Service Law· - Appointment on deputation - Post of
Director, A/GTE - Offer of appointment to appellant - C
Withdrawal of, on the ground that appellant was receiving
higher pay scale in his parent department and deputation from
higher post to lower post is not admissible - Challenged - Held:
The High Court while· affirming the order of cancellation of offer
of appointment failed to appreciate the difference between D
"appointment on deputation" and "transfer on deputation" -
The case of appellant is not a case of transfer on deputation
- It is a case of appointment on deputation for which
advertisement was issued and after d.ue selection, offer of
appointment was issued in favour of the appellant - A person, E
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 - Further, in the
F
instant case there was no stipulation in the advertisement that
a person receiving higher pay of scale or higher qualification
is ineligible for appointment on deputation - Once terms and
conditions for deputation were· intimated, it was for the
appellant to decide whether to accept the scale of pay as
offered or to continue to receive fixed pay on deputation - As G
appellant was selected after due selection and was offered
appointment on deputation, and, in absence of any valid
ground shown by the respondents, the appellant has a right
545 H
546 SUPREME COURT REPORTS [2012] 6 S.C.R.
A to join the post and the respondents were bound to accept his
joining.
The appellant, a Director in the North Gujarat
University in the scale of pay of Rs.12,000-420-18,300,
applied for the appointment to the post of Director on
8
deputation pursuant to an advertisement published by
the 2nd respondent. By the said advertisement the
candidates were informed that the pre-revised scale of
pay of the post of Director is Rs.14,300-400-18,300 and
C that the said scale of pay will be revised to the pay band
+ Grade Pay of PB-4 Rs.37,000-67,000 + 8,700.
The case of the appellant was considered along with
others and after due selection the 2nd respondent issued
an offer of appointment and the letter was forwarded to
D the Registrar, North Gujarat University requesting the
University to obtain acceptance of the above offer from
the appellant and forward it to the Council (AICTE). The
appellant informed the 2nd respondent his readiness and
acceptance to join the post of Director, AICTE, New Delhi.
E He also requested his parent University to relieve him to
join· AICTE on deputation. The North Gujarat University
in turn informed the 2nd respondent the approval of
deputation given by the Executive Council of the North
Gujarat University. The 2nd respondent was further
F informed that the present basic pay of the appellant is
Rs.19,100 in the pay scale of Rs.16,400-450-20,900-500-
22,400 and very shortly the same will be revised as per
the 6th Pay Commission and will be fixed in Revised Pay
Band + Academic Grade Pay of Rs.37,400 - 67,000 +
G Rs.10,000. The 2nd respondent on receipt of the said
letter issued letter withdrawing the offer of appointment
of the appellant on the ground that deputation from
higher post to lower post is not admissible under rules.
The cancellation of offer of appointment was followed by
another advertisement which. was challenged by the
H
ASHOK KUMAR RATILAL PATEL v. UNION OF INDIA 547
AND ANR.
appellant initially by filing a representation but having not A
received any information he preferred a writ petition
before the High Court. The High Court dismissed the writ
petition on the ground that the appellant has no right to
claim entitlement to the post of Director and cannot
compel the respondent to take him on deputation and 8
thus affirmed the order of cancellation of offer of
appointment as was issued to the appellant.
In the instant appeal, the appellant contended that
his case was not a case of transfer on deputation but was
a case of appointment on deputation after following all C
due procedures for appointment and selection; that in
absence of any illegality in selection, it was not open to
the Respondents to cancel the offer of appointment and
that such action was arbitrary and violative of Article ·14
of the Constitution of India. D
Allowing the appeal, the Court
HELD: 1.1. Ordinarily transfers on deputations are
made as against equivalent post from one cadre to
another, one department to another, one organisation to E
another, or one Government to another; in such case a
deputationist has no legal right in the post. Such
deputationist has no right to be absorbed in the post to
which he is deputed. In such case, deputation does not
result into recruitment, as no recruitment in its true import F
and significance takes place as the person is continued
to be a member of the parent service. [Para 11] [555-0-E]
1.2. However, the afores~id principle cannot be made
applicable in the matter of appointment (recruitment) on G
deputation. In such case; for appointment on deputation
in the services of the State or organisation or State within
the meaning of· Article 12 of the Constitution of India, the
provisions of Article 14 and Article 16 are to be followed.
No person can be discriminated nor it is open to the H
548 SUPREME COURT REPORTS [2012] 6 S.C.R.
A appointing authority to act arbitrarily or to pass any order
in violation of Article 14 of the Constitution of India. 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
8 appointment on deputation, the same cannot be
cancelled except on the ground of non-suitability or
unsatisfactory work. [Para 12] [555-F-H; 556-A]
2.1. The present case is not a case of transfer on
deputation. It is a case of appointment on deputation for
C 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
D accept the joining of most eligible selected candidate
except for ground of unsuitability or unsatisfactory
performance. [Para 13] [556-B-C]
2.2. In the advertisement dated 13th September, 2009,
E the pre-revised scale of pay of the post of Director was
shown at Rs.14,300-400-18,300. It was mentioned that the
said pay scale will be revised to the pay band + grade pay
of Rs.37,000-67,000 + 8700. No stipulation was made
therein that a person receiving higher pay of scale or
F higher qualification is ineligible for appointment on
deputation. On the contrary, in the offer of appointment,
"the terms and conditions for deputation" it was
specifically mentioned that the scale of pay of Director is
PB-4 Rs.37,400-67,000 + 8700 (Grade Pay) with a
stipulation at Clause 3.0nce such terms and conditions
G for deputation was intimated by the 2nd respondent to
the North Gujarat University, it was for the appellant to
decide whether he will accept the scale .of pay as was
offered or will continue to receive his fixed pay on
deputation as per Clause 3. The appellant by his letter
H
ASHOK KUMAR RATILAL PATEL v. UNION OF INDIA 549
AND ANR.
dated 20th February, 2010, accepted the offer and had A
shown his desire to join the post of Director, AICTE with
the pay as mentioned in the said letter; such acceptance
being in consonance with the terms and conditions of
deputation and the offer of appointment dated 15th
February, 2010, it was not open for the 2nd respondent B
to cancel and withdraw the offer of appointment. The
High Court failed to appreciate the difference between
"transfer on deputation" and "appointment on
deputation" and erred in holding that the appellant has
no right to claim entitlement to the post of Director. As c
the appellant was selected after due selection and was
offered appointment on deputation, and, in absence of
any valid ground shown by the respondents, the
appellant has a right to join the post and the respondents
were bound to accept his joining. [Para 14] [556-D-E, H; D
557-A-D]
2.3. The impugned order of withdrawal of
appointment dated 11th March, 2010 and the order of the
High Court cannot be sustained and they are accordingly
set aside. As the post of Director is vacant, in view of the E
interim order of this Court dated 9th May, 2011, the 2nd
respondent is directed to accept the "joining of the
appellant for a period of one year on deputation which
is to be counted from the date of his joining and other
terms and conditions of deputation will remain same. The F
North Gujarat University is directed to relieve the
appellant with further direction to 2nd respondent to
accept the joining of the appellant within one week from
the date of reporting by the appellant. [Para 15] [557-E-
~ G
CIVIL APPELLATE JURISDICTION : Civil AppealNo.
5225 of 2012. ·
From the Judgment & Order dated 23.03.2011 of the High
Court of Gujarat at Ahmedabad in Special Civil Application No. H
550 SUPREME COURT REPORTS [2012) 6 S.C.R.
A 3731 of 2011.
Nikhil Goel for the Appellant.
Amitesh Kumar, Navin Prakash for the Respondents.
B The Judgment of the Court was delivered by
SUDHANSU JYOTI MUKHOPADHAYA, J. 1. Leave
granted. This appeal has been preferred against the order
dated 23rd March, 2011 passed by the Gujarat High Court
C whereby the High Court dismissed the writ petition and affirmed
the order of cancellation of offer of appointment as was issued
to the appellant.
2. The appellant who was initially appointed on 25th
August, 2000 as Director, Computer Department in the
D Hemchandracharya North Gujarat University (hereinafter
referred to as the 'North Gujarat University') in the scale of pay
of Rs.12,000-420-18,300, applied for the appointment to the
post of Director on deputation pursuant to an advertisement
No.Estt.09-(01 )2009 dated 13th September, 2009 published
E in the Newspaper (Times of India) by the 2nd respondent. By
the said advertisement the candidates were informed that the
pre-revised scale of pay of the post of Director is Rs.14,300-
400-18,300 with further intimation that the said scale of pay will
be revised to the pay band +Grade Pay of PB-4 Rs.37,000-
F 67,000 + 8,700. Applications were called for from amongst
suitable and eligible persons having Master Degree with 12
years' experience in Teaching or Research in Central or State
Government or University.
3. The appellant in his application dated 24th September,
G 2009 shown details of his qualifications in the prescribed
proforma, including the scale of pay as he was receiving, as
shown below: ·
H
ASHOK KUMAR RATILAL PATEL v. UNION OF INDIA 551
AND ANR. [SUDHANSU JYOTI MUKHOPADHAYA, J.]
"11. Employment Record (details in reverse A
chronological order, starting with the last job)
SI. Name & address Period of service Designation of Nature of
No. of the employer in each post Post held & work and
From to Scale of pay level of
responsibilities B
1. H. North Gujarat Since Director Research,
University, PATAN August2000 computer Teaching &
Gujarat State Department Administration
(State University) Rs.12000- of department
18300 conducting c
UG, PG &
Ph.D Prog.
In the Part-B of the said application, apart from the last pay
scale he was receiving, the appellant also mentioned the pay
0
he was expecting, as mentioned below:
" PART-B
1. (a) Present Pay Scale : Rs.12000-420-18300
'
(University/State Govt.) '(Pay likely to revise as per 6th pay)
E
(i) Basic Pay Rs.15,780.00
(ii) Dearness Pay+DA Rs.19,015.00
(iii) Others Rs.03,559.00
F
Total Rs.38,354.00
---------
(b) Basic Pay expected: as per AICTE norms."
4. The case of the appellant was considered along with G
others and after due selection the 2nd respondent issued an
offer of appointment on 15th February, 2010 and the letter was
forwarded to the Registrar, North Gujarat University requesting
the University to obtain acceptance of the above offer from the
appellant and forward it to the Council (AICTE) by 26th
H
552 SUPREME COURT REPORTS [2012) 6 S.C.R.
A February, 2010. In the said letter, it was further requested that
in the event of the acceptance of the above offer, the appellant
may be relieved as early as possible so as to enable him to
join the Council latest by 13th March, 2010. The relevant terms
and conditions for deputation attached with the offer letter dated
8 15th February, 2010 are quoted hereunder:
"TERMS & CONDITIONS FOR DEPUTATION
1. Period of deputation: The deputation shall be for a
period of one year and extendable for a total period
C of not exceeding three years on yearly basis w.e.f.
the date, the offer assumes the charge of the post.
2. Post and scale of pay: Director PB-4 Rs.37,400-
67,000 + Rs.8700 (Grade Pay).
D 3. Pay: During the period of deputation Dr. PATEL
ASHOK RATILAL will have the either to get his/her
pay fixed in the deputation post under the operation
of normal rules or to draw pay of the post held by
him in the parent Department plus a deputation
E (duty) allowance in accordance with and subject to
the conditions, as modified from time to time and .
such other general or special orders issued by the
Ministry of Finance."
F 5. The appellant by his letter dated 20th February, 2010
informe'd the 2nd respondent his readiness and acceptance to
join the post of Director, AICTE, New Delhi. He also informed
his parent University to relieve him to join AICTE on deputation
within the joining date suggested by the Council, as evident from
G the letter dated 20th February, 2010 and is quoted hereunder:
"Hemchandracharya
North Gujarat University
P.B.No.21, University Road
Patan - 384265(N.G)
H Dated 20th February, 2010
ASHOK KUMAR RATILAL PATEL v. UNION OF INDIA 553
AND ANR. [SUDHANSU JYOTI MUKHOPADHAYA, J.]
NAAC Accredited "B" (CGPA) State University A
To
Chief Administrative Officer
All India Council for the Technical Education,
New Delhi.
B
Subject : An Application for the post of "DIRECTOR"
on Deputation (Dr. A.R. Patel)
Ref. An advertisement letter from your office dated 15th
February, 2010, with Ref. No.: FNo.2-4/07/ AICTE/
Rectt./Estt/2009/815. C
Sir,
.
With respect to above subject, I am thankful to
Council for opportunity given to me for work as a Director D
on deputation basis at AICTE. I am a Director at Computer
Department of H. North Gujarat University in Pay Scale of
Rs.16400-450-20900-500-22400, with present basic pay
Rs.19100/-. (To be revised, very shortly, as per the 6th Pay
UGC Pay Scale of PB-1, Rs.37400-67000 + Rs.10,000
(Academic grade pay). E
I hereby accept the offer of post of Director at AICTE,
with my present pay as described above, I have requested
my University to relieve me to join AICTE on deputation
within joining date suggested by Council. Hence, I will join F
the Council as soon as HNG University relieve me.
Thanking you
Yours sincerely
. (Dr. Ashok R. Patel)" G
6. The North Gujarat University in turn by letter dated 5th
March, 2010 informed the 2nd respondent the approval of
deputation given by the Executive Council of the North Gujarat
University with further information that the appellant will be
relieved on 17th March, 2010. The 2nd respondent was further H
554 SUPREME COURT REPORTS [2012] 6 S.C.R.
A informed that the present basic pay of the appellant is
Rs.19, 100 in the pay scale of Rs.16,400-450-20,900-500-
22,400 and very shortly the same will be revised as per the 6th
Pay Commission and will be fixed in Revised Pay Band +
Academic Grade Pay of Rs.37,400 - 67,000 + Rs.10,000. The
B 2nd respondent on receipt of the said letter issued the
impugned letter dated 11th March, 2010 and withdrew the offer
of appointment of the appellant on the ground that deputation
from higher post to lower post is not admissible under rules.
The relevant portion of the ground given in the impugned letter
c dated 11th March, 2010 is extracted hereunder:
"I am directed to inform you that your office vide their letter
No.Estt/1572/2010 dated 5th March, 2010 has informed
that your present basic pay is Rs.19,100 in the pay scale
of Rs.16400-450-22400 and very shortly it will be revised
D as per the UGC 6th Pay Commission and will be fixed in
the revised pay band+Academic Grade Pay ofRs.37400-
67000+Rs.10,000/-. The post of Director, in AICTE,
offered to you is in the revised bay band of Rs.37400-
67000+Rs.8700/-, which is a lower grade. Deputation from
E higher post to lower post is not admissible under rules, the
aforesaid offer letter dated 15-2-2010 issued to you,
hereby stands withdrawn with immediate effect."
7. The cancellation of offer of appointment was followed
F by another advertisement which was challenged by the
appellant initially by filing a representation dated 20th January,
2011 but having not received any information he preferred a
writ petition before the Gujarat High Court.
8. The Division Bench of the Gujarat High Court by the
G impugned judgment dated 23rd March, 2011, dismissed the writ
petition on the ground that the appellant has no right to claim
entitlement to the post of Director and cannot compel the
respondent to take him on deputation.
H 9. Learned Counsel appearing on behalf of the appellant
ASHOK KUMAR RATILAL PATEL v. UNION OF INDIA 555
AND ANR. [SUDHANSU JYOTI MUKHOPADHAYA, J.]
submitted that the case of the appellant was not a case of A
transfer on deputation but was a case of appointment on
deputation after following all due procedures for appointment
and selection. In absence of any illegality in selection, it was
not open to the Respondents to cancel the offer of appointment.
Such action is arbitrary and violative of Article 14 of the B
Constitution of India.
10. On the other hand, according to the respondents, they
having realised that the pay of the parent department of the
appellant could not be paid as he was getting higher pay as
Director in the North Gujarat University, the offer of deputation C
was withdrawn. It was further contended that a person getting
higher scale of pay cannot be deputed against a lower scale
of pay and the appellant has no right to claim his entitlement to
the post of Director, AICTE.
D
11. Ordinarily transfers on deputations are made as
against equivalent post from one cadre to another, one
department to another, one organisation to another, or one
Government to another; in such case a deputationist has no
legal right in the post. Such deputationist has no right to be E
absorbed in the post to which he is deputed. In such case,
deputation does not result into recruitment, as no recruitment
in its true import and significance takes place as the person is
continued to be a member of the parent service.
12. However, the aforesaid principle cannot be made F
applicable in the matter of appointment(recruitment) on
deputation. In such case, for appointment on deputation in the
services of the State or organisation or State within the
meaning of Article 12 of the Constitution of India, the provisions
· of Article 14 and Article 16 are to be followed. No person can G
be discriminated nor it is open to the appointing authority to
act arbitrarily or to pass any order in violation of Article 14 of
the Constitution of India. 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 H
556 SUPREME COURT REPORTS [2012] 6 S.C.R.
A letter of appointment on deputation, the same cannot be
cancelled except on the ground of non-suitability or
unsatisfactory work.
13. The present case is not a case of transfer on
deputation. It is a case of appointment on deputation for which
8
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 t~e
respondent cannot refuse to accept the joining of most eligible
C selected candidate except for ground of unsuitability or
unsatisfactory performance.
14. In the advertisement dated 13th September, 2009, the
pre-revised scale of pay of the post of Director was shown at
D Rs.14,300-400-18,300. It was mentioned that the said pay
scale will be revised to the pay band + grade pay of Rs.37,000-
67,000 + 8700. No stipulation was made therein that a person
receiving higher pay of scale or higher qualification is ineligible
for appointment on deputation. On the contrary, in the offer of
E appointment, "the terms and conditions for deputation" it was
specifically mentioned that the scale of pay of Director is PB-
4 Rs.37,400-67,000 + 8700 (Grade Pay) with following
stipulation at Clause 3:
"3. Pay: During the period of deputation Dr. PA TEL
F ASHOK RAT/LAL will have the either to get his!
her pay fixed in the deputation post under the
operation of normal rules or to draw pay of the post
held by him in the parent Department plus a
deputation (duty) allowance in accordance with
G and subject to the conditions, as modified from .
time to time and· such other general or special
orders issued by the Ministry of Finance."
(emphasis added)
H Once such terms and conditions for deputation was
ASHOK KUMAR RATILAt..: PATEL v. UNION OF INDIA 557
AND ANR. [SUDHANSU JYOTI MUKHOPADHAYA, J.]
intimated by the 2nd respondent to the North Gujarat University, A
it was for the appellant to decide whether he will accept the
scale of pay as was offered or will continue to receive his fixed
pay on deputation as per Clause 3. The appellant by his letter
dated 20th February, 2010, accepted the offer and had shown
his desire to join the post of Director, AICTE with the pay as B
mentioned in the said letter; such acceptance being in
consonance with the terms and conditions of deputation and
the offer of appointment dated 15th February, 2010, it was not
open for the 2nd respondent to cancel and withdraw the offer
of appointment. Going by the principles as referred above, we c
are constraint to state that the High Court failed to appreciate
the difference between "transfer on deputation" and
"appointment on deputation" and erred in holding that the
appellant has no right to claim ent!tlement to the post of Director.
As the appellant was selected after due selection and was 0
offered appointment on deputation, and, in absence of any valid
ground shown by the respondents, we hold that the appellant
has a right to join the post and the respondents were bound to
accept his joining.
15. For the reasons aforesaid, the impugned order of E
withdrawal of appointment dated 11th March, 2010 and the
order of the Division Bench of Gujarat High Court cannot be
sustained and they are accordingly set aside. As the post of
Director is vacant, in view of the interim order of this Court
dated 9th May, 2011, we direct the 2nd respondent to accept F
the joining of the appellant for a period of one year on deputation
which is to be counted from the date of his joining and other
terms and conditions of deputation will remain same. The North
Gujarat University is directed to relieve the appellant with further
direction to 2nd respondent to accept the joining of the G
appellant within one week from the date of reporting by the
appellant The appeal is allowed with the aforesaid
observations and directions. There shall be no order as to
costs.
H
B.B.B. Appeal allowed.
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