H. S. MINHAS v. CENTRAL POLLUTION CONTROL BOAIDL — 1993 DIGILAW 518 (DEL)

CHAUDHRY ( 1 ) THE petitioner has invoked the provision of Article 226 of the Constitution of lndia for quashing the office memorandum dated 22/23rd September, 1992. The facts giving rise to this petition are that the petitioner was a permanent employee of the Central Public Works Department (for short called C. P. W. D.) from 15th November, 1961 to 30th July, 1987. By office letter dated 22nd July, 1987, the services of the petitioner were put at the disposal of the Central Pollution Control 985 Board, (for short called the Board ) on deputation basis. The deputation period was initially for one year which was extended from time to time by the Government till 31st January, 1991. The Director General of C. P. W. D. by letter dated 26th February, 1990 wrote to the Board while extending the term of deputation of the petitioner that no further extension of deputation beyond 31st March, 1990 would be given on any ground whatsoever. However, later on the C. P. W. D. further extended the period of deputation of the petitioner upto 31st January, 1991 clearly stating that no further extension was possible beyond that period. It is alleged that in view of the fact that the period of extension was not to be extended beyond 31st January, 1991, but the Board needed the services of the petitioner, therefore, the Board expressed its desire that the petitioner should give his option for being absorbed permanently by the Board on the post of Assistant Engineer. The petitioner gave his option in writing intimating the Board that he was willing to be permanently absorbed. By office letter dated 13th February, 1991 the Board informed the petitioner that he was absorbed in the Board w. e. f. 1st February, 1991. The Board by letter dated 18th March, 1992 sought the concurrence of the C. P. W. D. for repatriation of the petitioner on the ground that it had not been possible for the respondent Board to sanction a permanent post of Assistant Engineer. The case of the petitioner is that in view of the fact that the petitioner had already been absorbed in the post of Assistant Engineer w. e. f. 1st February, 1991, no question could ever arise for taking further steps in the matter of his absorption with the Board. The case of the petitioner is that in view of the fact that the petitioner had already been absorbed in the post of Assistant Engineer w. e. f. 1st February, 1991, no question could ever arise for taking further steps in the matter of his absorption with the Board. The Member Secretary of the Board by office memorandum dated 22nd September, 1992 informed the petitioner that letter dated 13th February, 1991 was erroneously issued by the then Administrative Officer of the Board and as such it was being withdrawn. The Member Secretary of the Board by letter dated 22nd September, 1992 also wrote to the Director General of C. P. W. D. that the petitioner would be relieved and repatriated from 30th September, 1992 and he had been directed to report to him on 1st October, 1992 for further posting in C. P. W. D. . It was requested in this letter that period from 1st February, 1991 to 30th September, 1992 might be treated as extended period of deputation under special circumstances. A copy of this letter was endorsed to the petitioner which is under challenge in this petition. The case of the petitioner is that after permanent absorption by the Board as Assistant Engineer with his consent as indicated in the letter dated 13th February, 1992, the Board was not competent to unilaterally withdraw the letter of his absorption without the consent of the petitioner. The order dated 22/23rd September, 1992 withdrawing the letter dated 13th February, 1992 is wholly arbitrary, void and is violative of the petitioner s fundamental rights guaranteed by Article 14 and 16 of the Constitution of India. The case of the petitioner is that the respondents are estopped from turning around and asking the petitioner to go back to the C. P. W. D. The letter dated 13th February, 1991 was written with the approval of the Chairman of the Board and as such it could not be subsequently withdrawan. Needless to say that the petition is being contested on behalf of the respondents. ( 2 ) IN the affidavit filed on behalf of the Board, the case pleaded is that the petitioner had not come before this Court with clean hands and he has concealed the facts that his parent organisation had accepted his repatriation and issued his posting orders by office letter dated 7th May, 1992. ( 2 ) IN the affidavit filed on behalf of the Board, the case pleaded is that the petitioner had not come before this Court with clean hands and he has concealed the facts that his parent organisation had accepted his repatriation and issued his posting orders by office letter dated 7th May, 1992. It is also stated that the petitioner has also concealed the fact that he was drawing deputation allowance up to 30th September, 1992. Since the petitioner was drawing the deputation allowance, it was well within his knowledge that he had not been absorbed in the services of the Board nor he had treated himself in that manner. The plea is that the board has been created basically for the purpose of protection of environment and ensuring implementation of policies of the Government with regard to prevention of pollution. There is no permanent post of Assistant Engineer for electrical works with the Board and there is no requirement of an Engineer in Electrical Engineering with the Board. The respondents were allotted a plot of land in East Arjun Nagar, Delhi for construction of their offices and the construction started in 1987. In order to advise the board regarding progress in works related to provision of electricity in the building complex and for liaising with the contractor and other authorities, a temporary need for a person with the knowledge of electrical engineer was felt. The requirement was for limited period, till the construction of the building was completed. Therefore, the respondent board decided to have an officer of the rank of an Assistant Engineer (electrical) on deputation from C P. W. D. for the limited period of construction. The hoard thereafter created a temporary post of an AE (Electrical) for a limited period to he filled on deputation basis. The construction of the building was completed in 1990-91. The deputation was initially for a period of one year which was extended upto 31st January, 1991. The board in its meeting held on 10th December, 1990 decided that for maintenance of the building and day-to-day maintenance of electrical and machanical facilities, contractual arrangement should be explored. The board in its meeting on 28th February. 1992 considered the issue of creation of post of Assistant Engineer (building) on regular basis. The board in its meeting held on 10th December, 1990 decided that for maintenance of the building and day-to-day maintenance of electrical and machanical facilities, contractual arrangement should be explored. The board in its meeting on 28th February. 1992 considered the issue of creation of post of Assistant Engineer (building) on regular basis. The board decided that post should not be rilled on regular basis but it would be filled only on deputation basis. There are no rules in existence with the Board to allow the absorption of permanent employees of the government against the temporary post. Even otherwise the services of the petitioner could not be transferred on deputation without the consent and approval of the parent employer namely C. P. W. D. under whom the petitioner was a permanent employee. The Chairman of the board has no power to over rule the board in matters of appointment. The letter dated 13th February, 1991 was written without any authority and carried an incorrect statement that it was issued with the approval of the Chairman of the board. There is no such approval accorded by the Chairman for the absorption of the petitioner. The petitioner had connived with the Administrative Officer to get this letter issued falsely as no such letter was placed on record and had not been issued by the authority. The Chairman of the respondent, having come to know of the irregularity on the part of the then Administrative Officer ordered to initiate disciplinary proceedings against the officer. There is no decision of the Chairman of the board to allow absorption of the petitioner in the services of the board ( 3 ) I have heard the learned counsel for the parties and perused the record placed before me. The contention of the petitioner is that he was permanently absorbed by office order dated 13th February, 1992 and as such there was no occasion for the respondent to withdraw that order. The letter dated 13th February, 1991 could. not be withdrawn by the respondent without affording an opportunity to the petitioner to show cause. The contention of the petitioner is that he was permanently absorbed by office order dated 13th February, 1992 and as such there was no occasion for the respondent to withdraw that order. The letter dated 13th February, 1991 could. not be withdrawn by the respondent without affording an opportunity to the petitioner to show cause. The letter dated 13th February, 1991 which is the subject matter of this controversy reads in the following terms:- With reference to his request dated 25th January, 1991 for absorption in the Central Board, Shri H. S. Minhas, AE (E) is informed that he is absorbed in the Central Board w. e. f. 1st February, 1991 as per rules and is requested to maintain a lien in his parent department for two years so that in case of any eventuality he can still go back to his parent department i. e. C. P. W. D. This issues with the approval of the Chairman, Central Board. ( 4 ) THE contention of the petitioner is that it was unequivocally mentioned in this letter that the petitioner was absorbed on 1st February, 1991 according to the rules of the board and it was issued with the approval of the Chairman of the Board. This letter could not be subsequently withdrawn by the Board. On the other hand, the contention of the respondents is that the letter dated 13th February, 1991 was not issued with the approval of the Chairman of the board and more over there was no permanent post of Assistant Engineer (Electrical) existing as on 13th February, 1991 in the Board against which the petitioner could be absorbed. Moreover, the services of the petitioner could not be transferred on absorption to the Board without the consent and approval of the parent employer namely C. P. W. D. under whom the petitioner was a permanent employee. The board in its meeting on 28th February, 1992 considered the issue of creation of post of AE on regular basis for building and it was decided by the Board that the post of AE building may be created but would be filled up only on deputation. ( 5 ) I have given my thoughtful consideration to the entire controversy. The board in its meeting on 28th February, 1992 considered the issue of creation of post of AE on regular basis for building and it was decided by the Board that the post of AE building may be created but would be filled up only on deputation. ( 5 ) I have given my thoughtful consideration to the entire controversy. I have perused the record placed before me by the respondent On 31st January, 1991, the Chairman of the Board recorded a note which reads as under: "there seems to be no other choice but to absorb Shri H. S. Minhas in the Board. Shri Minhas may be informed that absorption is under the Rules and under which he can maintain a lien in his parent department for two years so that in case of any eventuality, he can still opt to go back to his parent department I would like to know whether there is any post of EE or AEE vacant against which Shri Minhas can be accommodated till the post is created by the Board because the powers for creation of temporary post mentioned by you at flag "x are limited to the post where me maximum of the scale is Rs. 1600. 00- per month or below. " ( 6 ) ON 12th February, 1991. the administrative officer recorded another note which reads as under: "kindly peruse the above note of SO. Shri Minnas has already submitted an application for his permanent absorption in the Central Board. He is to be permanently absorbed w. e. f. 1. 2. 1991. Position of the vacancy of AE (E) is ex-plained above, as one pose of AE (E) reserved for ST category is shortly being advertised. It will be better if CCB using his powers create a post of AE (E) (Elect) in the pay scale of Rs. 2200. 00-4000. 00 so that orders for absorption of Sh. Minhas be issued against this post. The creation of post and absorption of Shri Minhas will be put up in the ensuing Board meeting for ratification by the Board. Submitted for consideration and approval please. "- On this note the Member Secretary wrote: "please adjust temporary against the AE post" ( 7 ) THEREAFTER, the letter dated 13th February, 1991 in question was issued by the administrative, officer. Submitted for consideration and approval please. "- On this note the Member Secretary wrote: "please adjust temporary against the AE post" ( 7 ) THEREAFTER, the letter dated 13th February, 1991 in question was issued by the administrative, officer. From the record it is quite clear that no final decision was taken by the board to absorb the petitioner. From the office note dated 12th February, 1991,member Secretary of the Board clearly noted that the petitioner may be adjusted temporary against the AE post. There is nothing on the file to indicate that a decision was taken by the Chairman to absorb the petitioner permanently. The letter dated 13th February, 1992 was not written with the approval of the Chairman. Moreover the matter came up before the Board on 28th February, 1992 regarding creation of the post of AE (Building) on regular basts. The board took, the following decision: "item NO. 4. 1; Creation of Post of A. E. (Building) on Regular basis for Building Cell. The Board was of the view that Shri H. S. Minhas, incumbent should not be absorbed and he should be repatriated to CPWD if his period of deputation cannot be extended by another year. The Board was of the view that this post should not be filled up on regular basis as such incumbent will after a few years ask for a higher post which is not necessary considering the quantum of work in the Board. Therefore, the Board decided that the post of A. E. (Building) is created but shall be filled up only on deputation basis. "in view of the decision of the Board, I think the petitioner cannot claim that he was permanently absorbed w. e. f. 1st February, 1992. No decision was taken by the Chairman or the Board for the permanent absorption of the petitioner. Even otherwise, I also agree with the contention raised by the respondent that the petitioner could not be permanently absorbed with the board without me approval of the C. P. W. D. under whom the petition was a permanent employee. In my opinion, the decision taken by the respondent in invoking office memorandum dated 13th February, 1992 was justified and does not suffer from any legal infirmity. In my opinion, the decision taken by the respondent in invoking office memorandum dated 13th February, 1992 was justified and does not suffer from any legal infirmity. Consequently, the challenge to the office memorandum dated 22nd September, 1992 communicating the decision of the Board to the petitioner withdrawing the letter dated 13th February, 1992 fails. The rule is dis-charged. ( 8 ) THIS petition came up for hearing before a Division Bench of this court on 28th September, 1992. On that date notice was issued to the respondents to show cause as to why rule nisi be not issued. The operation of the impugned order was also stayed. The petitioner has remained with the board on the basis of the stay granted by this Court. As the writ petition has been dismissed, the interim order by which operation of me impugned order was stayed automatically stands vacated. The petitioner is to be repatriated to his parent department i. e, C. P. W. D. The respondent will ensure that the period from 28th September, 1992 to the date he is actually repatriated to his permanent department is regularised and may be treated as extended period of deputation under special circumstances.