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1999 DIGILAW 1025 (PAT)

Shiv Kant Jha v. State Of Bihar

1999-09-30

SUDHANSU JYOTI MUKHOPADHAYA

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Judgment S.J.Mukhopadhaya, J. 1. The petitioners, who are working under the respondent North Bihar Industrial Area Development Authority, Muzaffarpur (N.B.I.A.D.A. for short), have preferred this writ petition for direction on the respondents to provide them with current and arrears of deputation allowance, as per law with interest for delayed payment. 2. According to the petitioners, they are employees of the State of Bihar, holding substantive posts in their parent department under the State of Bihar, having lien over same and being on deputation under NBIADA, are entitled for deputation allowance as per rule/guide line of the State. The respondent-NBIADA, Muzaffarpur and its authority have taken plea that the services of petitioners were transferred by Industries Department, Government of Bihar alongwith all assets and liabilities into the NBIADA, Muzaffarpur and there by there is no question of giving deputation allowance to them. The State of Bihar, in spite of time granted, has not filed any counter- affidavit. The counsel for the State opposed the writ petition and made submission relying on the statement made by the parties and the enclosures attached to the writ petition. He mainly placed reliance on letter dated 2.2.76 issued by the State(Annexure-1/1) to show that it is only those temporary employees who were working under the State, posted in North 3ihar, their services were transferred under the NBIADA, Muzaffarpur. It was submitted that employees being temporary and having transferred outside the department of State Government, they retained no lien against any post under the State Government and thereby not entitled for deputation allowance. 3. The main thrust as was made on behalf of the petitioners was that the petitioners have been confirmed by the State Government and thereby they have lien in their parent department under the State. The transfer under NBIADA, Muzaffarpur as amounts to deputation in foreign service, the petitioners are entitled for deputation allowance. He placed reliance on the letter dated 3.1.1974(Annexure-1), (para-2) wherein stipulation has been made in respect of permanent employees of the State whose services were transferred and placed under Patna Industrial Area Development Authority, Patna (PIADA for short) w.e.f. 1.3.74. In para-2 of the said decision contained in letter dated 3.1.1974(Annexure-1), it is stated that the permanent employees are being transferred in term of deputation to foreign service in respect of whom condition of service would be issued subsequently. In para-2 of the said decision contained in letter dated 3.1.1974(Annexure-1), it is stated that the permanent employees are being transferred in term of deputation to foreign service in respect of whom condition of service would be issued subsequently. In respect of aforesaid submission, stand was taken by the counsel for the State and the counsel for the NBIADA, Muzaffarpur that the letter dated 3.1.74(Annexure-1) is not applicable in the cases of petitioners whose services have been placed on transfer under the NBIADA, Muzaffarpur. The said letter relates to employees whose services were transferred and placed under PIADA. At one stage, the counsel for the petitioners stated that some of the petitioners were initially transferred and placed under PIADA, Patna whereinafter they were transferred and placed under NBIADA, Muzaffarpur. 4. In the writ petition, no specific pleadings relating to date of transfer of each petitioners under PIADA and/or NBIADA, Muzaffarpur has been given. Specific date of confirmation in the services of the State has also not been shown, nor all individual letters of confirmation have been enclosed. From the letter issued by Secretary, NBIADA, Muzaffarpur dated 9.3.1979 and the order no.23024 dated 29.11,78, part of which has been enclosed with the said letter, it appears that the services of the petitioner no. 1, 2, 3, 4 & 6 were confirmed by the State of Bihar, from its Industries Deparment w.e.f. 1.4.75 but by order issued on 29.11.78 while they were posted and working under NBIADA, Muzaffarpur. In the order dated 29.11.78 confirming the aforesaid petitioners the Industries Department has referred Personnels department Memo no.450 dated 2.6.1973 but copy of the same has not been enclosed. 5. So far as the rest of the petitioners are concerned, their date of confirmation has not been stated, nor any order to that effect has been enclosed though it is stated that they have also been confirmed in the services of the State of Bihar. From letter no.641 dated 3.7.96(Annexure-11) issued by the Managing Director, NBIADA, Muzaffarpur, it appears that certain State employees were transferred under the said authority (NBIADA, Muzaffarpur) in pursuance of Memo no. 82 dated 3.1.1974 (Annexure-1) like Sri C.P.Sinha, clerk and Sri Ramanuj Mishra Lower Division Assistant. In the aforesaid circumstances, the submission as made by the counsel for the State that the letter contained in Memo no. 82 dated 3.1.1974 (Annexure-1) like Sri C.P.Sinha, clerk and Sri Ramanuj Mishra Lower Division Assistant. In the aforesaid circumstances, the submission as made by the counsel for the State that the letter contained in Memo no. 82 dated 3.1.1974(Annexure-1) related to those posted under PIADA, Patna, cannot be accepted. From the aforesaid letter dated 3.7.96 (Annexure-11), it further appears that the services of the employees of the State Government were placed at different stages. While services of some persons were placed under NBIADA, Muzaffarpur in pursuance of letter dated 3.1.74, petitioner-Daya Shankar Pandey and some others, their services were placed in pursuance of letter dated 2.2.76. Other persons like Baleshwar Prasad etc. their services were placed under the same authority at Muzaffarpur vide letter dated 15.6.78. 6. In the aforesaid circumstances, in absence of the specific date of transfer of one or other petitioner under the NBIADA, Muzaffarpur, it is not possible to determine as to whether they were confirmed under the State prior to their transfer and thereby entitled for deputation allowance since their date of transfer or not. However, it appears that most of the petitioners have been confirmed in the services of the State, including petitioner nos. 1, 2, 3, 4 & 6, as referred above. They appeared to be permanent employees .of the State will be evident from the proceeding of NBIADA, Muzaffarpur dated 3.10.1994 having proceeding no.1/42/94 wherein it is stated that the permanent employees want to revert back to their parent department in their cadre and thereby decided to return back their services. From other letters issued from time to time, including the letter no.10708 dated 5.11.93 issued from Industries Department and letter no. 334 dated 16.3.1994 issued from NBIADA and other similar tetters as contained in Annexure-4 series, it appears that the petitioners have been asked to file their details and option as to whether they want their services to be treated on deputation under the authority on foreign service or not. Thereby, prima facie, it appears that the petitioners have their lien under the State. However, in absence of specific averment and documents, no such specific finding can be given by Court. 7. In the circumstances, I remit the matter to the Secretary, Industries Department for decision in respect of petitioners. Thereby, prima facie, it appears that the petitioners have their lien under the State. However, in absence of specific averment and documents, no such specific finding can be given by Court. 7. In the circumstances, I remit the matter to the Secretary, Industries Department for decision in respect of petitioners. The petitioners will file their individual representation before the Secretary, Industries Department with a copy to the Managing Director of NBIAD, Muzaffarpur giving therein the details relating to services career including the order by which they were initially appointed; the order by which their services were placed under the authority; the order by which they were confirmed by the State Government and the order of promotion, if any, issued by the authority, Muzaffarpur. On receipt of such representation, the Secretary of the Industries Department, Government of Bihar, if so required, may make necessary enquiry from the office of NBIADA, Muzaffarpur. A decision in respect of lien held by one or other petitioner; deputation allowance, if any, to which they are entitled is to be taken and communicated to the petitioners within a period of six months from the date of receipt of such representation. It is needless to say that if the petitioners have been confirmed in the services of the State and hold lien against one or other post under the State of Bihar, they will be entitled for deputation allowance in terms with rules as laid down under the Bihar Service Code, as prescribed in respect of persons whose services are placed on deputation in foreign service. 8. The writ petition stands disposed of, with the aforesaid observations/directions.