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1984 DIGILAW 360 (MP)

VISHNA S/o KACHRUMALJI v. STATE OF M. P.

1984-07-23

GULAB C.GUPTA

body1984
GULAB GUPTA, J. ( 1 ) THIS order shall also dispose of Miscellaneous Petitions nos. 2814 of 1983, 900 of 1983, 901 of 1983 and 2812 of 1983, which involve common questions of law. ( 2 ) IT appears that by an order dated 16-7-1976, the State Government decided to separate the Handloom Department from the administrative control of the co-operative department and created a Directorate for that purpose (Annexure-I ). As a result of creation of this Directorate, all employees who were working in the handloom department, were transferred to the administrative control of the Director of Handloom. The petitioners, withoutany protest, accepted the said transfer and worked with the new department. It appears that while working, the petitioners were required to apply for selection to various posts created by the Handloom Directorate. They, accordingly applied and were selected by a selection committee on the basis of merits. Ultimately, by an order dated 3-9-1979 (Annexure-5), the petitioner No. 1 was appointed as a senior Inspector in the pay scale of Rs. 350-550. The other two petitioners were similarly appointed as Division Auditors by order dated 24-12-1979. It appears that by a subsequent letter, the petitioners, on 28-8-1981, were ^iven on option to merge in the Handloom Directorate. It is the averment of the petitioners that they opted for the service of the Directorate and continued working there. It appears to be reasonable also, because the petitioners had, by then been selected and appointed on a post carrying higher payscale. It appears that on 15-2-1983, the respondent Registrar, Co-operative societies, passed an order (Annexure-17) informing that the petitioners'service have been obtained from the Handloom Directorate and they were placed in different positions. As a consequence of this order, the Directorate of Handloom issued an order on 17-2-1983, relieving the petitioners and others from their positions. These petitions are filed by the persons so relieved. The petitioners challenge the legality of the order dated 15-2-1983 passed by the respondent no. 3 (Annexure-17) and the order dated 17-2-1983 passed by the respondent-directorate of Handloom (Annexure-16 ). It appears that inspite of the aforsaid, the petitioners have not joined their positions in the co-operative department as, on 2-3-1983, they were informed that they will be taken back on the same post in which they were working in the year 1976 (Annexure-19 ). 3 (Annexure-17) and the order dated 17-2-1983 passed by the respondent-directorate of Handloom (Annexure-16 ). It appears that inspite of the aforsaid, the petitioners have not joined their positions in the co-operative department as, on 2-3-1983, they were informed that they will be taken back on the same post in which they were working in the year 1976 (Annexure-19 ). ( 3 ) THE submission of the petitioners is that they have joined the newly set up Directorate of, Handloom on there be own as free-will and with the consent of the respondent-Government and have earned their promotion/ appointment to a higher post. Their reversion to the co-operajtive department, by the impugned order, on a lower post, is arbitrary and without any justifies-; tion. They challenge the legality of the order of their re-patriation as wholly unauthorised and otherwise violative of Articles 14 and 16 of the Constitution. The case of the respondents, however, is that even though the petitioners were, handed over to the newly created Directorate, they retain their lien in the parent department and, hence, they have rightly been re-called. It is also submitted that the parent department is restoring them to the same position in which they' were in the year 1976 ; and, hence, no injustice is being done to them. ( 4 ) IN my opinion, the petitioners have been subjected to an unfair and arbitrary treatment, and,, hence, these petitions deserve to be allowed. It is not disputed that even while working in the newly created Directorate of handloom, they did not change their employer or go out of State service. A change in the department, consequent upon re-organization, cannot have the effect of prejudicing them in any manner whatsoever. There is nothing on record to show that the services of the petitioners were lent to the directorate of Handloom on any particular basis. One would normally think that when there is a re-organization of departments, by creating a separate Directorate in the manner aforesaid, all persons working in the department remain automatically employed by the newly created department. There is no transfer involved in such a case, and lience, question of retaining lien in the earlier department, should not arise. One would normally think that when there is a re-organization of departments, by creating a separate Directorate in the manner aforesaid, all persons working in the department remain automatically employed by the newly created department. There is no transfer involved in such a case, and lience, question of retaining lien in the earlier department, should not arise. Even if it is to be assumed that the lien of the petitioners remained in the co-operative departmeit, the said lien must be deemed to have been terminated much before the isandflfance of the impugned order. The fact that the petitioners were selected for a new post, on which they were appointed after satisfying the required criteria, shows that they had lost the link with the earlier positions held by them. Whatever remained, came to an end after they exercised their option in the year 1981 to join the present Directorate of Handloom. Under the circumstances, to say that they have lien in the co-operative department, is neither correct nor other wise understood. The facts indisputably point out that they had lost their lien, if any, in the co-operative department by exercising their option in the year 1981. Even otherwise, the lien in the parent department is never kept for an indefinite period In the instant case, the petitioners had remained out of thsir department for about seven years, which should be considered long enough to. severe their connection with it. Any other interpretation is bound to create choses in the parent department, as these petitioners, on their repatriation, may demand their promotion etc. , which must have taken place during their absence of seven long years. Under the circumstances, it is not possible to accept the plea that the petitioners, even after having opted for Directorate of Handloom, remained the employees of co-operative department. As a necessary consequences it must follow that the respondent Registrar had no authority or jurisdiction to issue the impugned order dated 15-2-1983. The impugned order must, therefore, be held to be illegal and quashed. As a necessary consequence of it, the order dated 17-2-1983 passed by the respondent directorate (Annexure-17), must also be declared illegal and quashed. ( 5 ) THE aforesaid conclusion can also be supported by the fact that the order is arbitrary and in violation of principles of natural justice and fair play. As a necessary consequence of it, the order dated 17-2-1983 passed by the respondent directorate (Annexure-17), must also be declared illegal and quashed. ( 5 ) THE aforesaid conclusion can also be supported by the fact that the order is arbitrary and in violation of principles of natural justice and fair play. The fact that the petitioners have been selected and appointed on a higher post, is within the knowledge of the respondents. To make them loose the benefit of higher post for no reason whatever, is nothing but an arbitrary decision. The fact that they have not been given an opportunity to say anything in the matter, makes it vioiative of principles of natural justice. The injustice inherent in the procedure aad substance of the order, makes it vioiative of Articles 14 aad 16 of the Constitution. Since it has the effect of taking away the benefit which the petitioners have earned also it amount to reductioa in rank. ( 6 ) AS a result of discubsion aforesaid, the petitions succeed and are allowed. The impugned orders of the Registrar, Co-operative Societies, dated 15-2-1983, re-patriating the petitioners to the co-operative department, and the consequential order of the respondent Directorate of Handloom, dated 17-2-1983, directing release of the petitioners, are quashed. The petitioners shall be deemed to be the employees of the Directorate of Handloom and entitled to continue in the said department The petitioners shall also be entitled to costs of these petitions. Counsel's fee Rs. 100/- for each of the petitions, if certified. The outstanding amount of security deposit, if any, shall be refunded to the petitioners. Petitions allowed. .