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2000 DIGILAW 1116 (PAT)

Ajit Kumar Hembram v. State Of Bihar

2000-09-14

D.P.S.CHOUDHARY, NAGENDRA RAI

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Judgment 1. The issues involved in all the three appeals are the same and as such they have been heard together and are being disposed of by this common order. 2. C.W.J.C. No. 709 of 2000, out of which L.P.A. No. 710 of 2000 arises, C.W.J.C. No. 710 of 2000, out of which L.P.A. No. 652 of 2000 arises and C.W.J.C. No. 986 of 2000, out of which L.P.A. No. 651 of 2000 arises, were filed by the appellants for quashing the order dated 6.1.2000 issued under the signature of the Director, Administration-cum Deputy Secretary, Department of Agriculture, Government of Bihar, taking back the services of the appellants from the Bihar State Agriculture Marketing Board {hereinafter referred to as the Board), where they were posted as Market Secretary, to their parent department i.e. the Agriculture Department on the substantive posts of Inspector, Weights and Measures and also for a direct on to the respondents to issue notification promoting them to the post of Market Secretary in the Board from the year 1990 when their services were transferred to the Board for the purposes of their absorption in terms of the Government policy. 3. The learned Single Judge heard all the three writ applications and dismissed the same by a common order dated 25.4.2000 and hence these appeals. 4. The admitted facts are that all the appellants belong to Bihar State Subordinate Agriculture Service, Category-8. Prior to the creation of the Board, the Marketing Wing, Category-8 in the Agriculture Department was looking after the function of marketing. After creation of the Board, its function was entrusted by the statutory provision to it. The Government of Bihar issued a notification in the year 1973 to the effect that all the Gazetted and Non-Gazetted employees of the Agriculture Department intending to join the services of the Board should exercise their option and, thereafter, their services shall be absorbed in the Board, It was further provided therein that those, who would not exercise their option, would be treated as Government employees on deputation in the Board. The services of many employees were put at the disposal of the Board. Some of them even exercised their option for absorption of their services but the matter of absorption could not be materialised for one reason or the other and such employees sent to the Board superannuated as the State Government employees. The services of many employees were put at the disposal of the Board. Some of them even exercised their option for absorption of their services but the matter of absorption could not be materialised for one reason or the other and such employees sent to the Board superannuated as the State Government employees. The State Government by resolution dated 27.1.1988 took a decision that the persons, whose services were deputed in the Board, would not be absorbed in the service of the Board unless they exercised their option to opt the services of the Board. It was also provided therein that on their superannuation, the department would not depute any other person in the Board. Clause-3 of the aforesaid resolution provided, interalia, that the posts lying vacant in the Board, including that of the Market Secretary, would be filled up from the Weights amd Measure Inspectors working in Category-8 of the Department of Agriculture. They would be asked to exercise their option and in case of exercising their option, they would be absorbed in the service of the Board and their lien with the Government would stand terminated. However, the State Government would be liable to pay pension for the period they remained in the Government service. 5. The appellants and others exercised their option for the posts of Market Secretary in the Board. On 2.6.1990, the State Government issued an office order transferring the services of 17 Inspectors of Weights and Measure including the appellants for being absorbed to the posts of Market Secretary in the Board and on that basis they were relieved from the Department on 5.6.1990. The Board issued an office order dated 16.7.1990 accepting the joining of the aforesaid 17 persons on the posts of Market Secretary. it was provided in the said office order that they would get the salary, which was being paid to them in the Department of Agriculture. After their joining, the Board while considering their cases for absorption, found some difficulties and sought cfarification from the State Government by letter dated 16.8.1990 (Annexure B to the counter-affidavit) with regard to the date of absorption, pay scale, determination of seniority etc. After their joining, the Board while considering their cases for absorption, found some difficulties and sought cfarification from the State Government by letter dated 16.8.1990 (Annexure B to the counter-affidavit) with regard to the date of absorption, pay scale, determination of seniority etc. Thereafter no final decision was taken regarding absorption, on the other hand, the Board in its meeting dated 10.7.1999 decided to repatriate the appellants and other Inspectors, Weights and Measure to their parent department and a letter to that effect was also written to the State Government to take back the services of the appellants and, thereafter, the department issued the impugned order dated 6.1.2000 recalling the services of the appellants with the parent department. 6. The stand of the appellants is that once the services of the appellants were transferred to the Board in pursuance of the policy decision of the State Government dated 27.1.1988, they would be deemed to be absorbed in the Board and their lien with the State Government came to an end and as such the State Government cannot return back their services by the impugned order. 7. The stand of the State Government and the respondent-Board is that the appellants are still the employees of the State Government as their services were neither absorbed in the Board nor was their lien with the State Government terminated at any point of time. The Government took a policy decision to sorb the services of some of the employees of the State Government in the Board in case they exercised their option and in pursuance of that, the services of the appellants and other employees were transferred in the Board for the purposes of their absorption, but the Board made certain queries with regard to pay scale, seniority etc. as a result of which no decision was taken. In the meantime, the Board having noticed that it is incurring heavy expenditure by allowing the persons on deputation to continue, decided to repatriate the deputationists to their parent department and communicated the aforesaid decision of the State Government and, thereafter, the State Government took the aforesaid decision. 8. The only question that falls for consideration in these appeals is as to whether the appellants services were absorbed in the Board or not and as a result of which their lien with the State Government stood terminated? 9. 8. The only question that falls for consideration in these appeals is as to whether the appellants services were absorbed in the Board or not and as a result of which their lien with the State Government stood terminated? 9. In the counter-affidavits filed in the writ applications, the stand of the State and the Board is very clear and specific that the services of the appellants have not been absorbed in the Board in terms of the decision taken on 27.1.1988. 10. In the writ applications, the appellants have stated that the Board has now merely to deposit the amount of pension and other contributions to the funds of the State Government in terms of the policy decision dated 27.1.1988, laying down the procedure regarding absorption and the State Government has to pass a formal order for terminating their lien from the services of the State Government and absorption in the services of the Board. Nowhere they have stated that they were absorbed in the service of the Board. No doubt, in the writ applications at one place they have stated that their lien with the State Government stood terminated because of letter dated 2.6.1990, but the said letter as stated above, only shows that their services were transferred to the Board and from that it cannot be inferred that their lien terminated with the State Government. 11. Thus, there is no material to show that by any specific decision, the Board, who has to absorb the services of the appellants, has absorbed them in the services of the Board, on the other hand, it appears that out of 17 Market Secretaries, 9 Market Secretaries have already superannuated. It is also clear that no material has been produced by the appellants to show termination of their lien and as such they still continue to be the employees of the State Government in the Agriculture Department and by the impugned order, their services have been taken back in the parent department. 12. The law is well-settled that a deputationist has no right to continue on deputation nor can he claim as a matter of right the absorption in the borrowing department unless the absorption is permissible in terms of the statutory rule, regulation or decisions. The service of the deputationists can be returned to their parent department either at the instance of it or the borrowing department. The service of the deputationists can be returned to their parent department either at the instance of it or the borrowing department. The Apex Court in the case of Kunal Nanda V/s. Union of India, reported in (2000)5 S.C.C. 362 held as follows: "A deputationist cannot assert and succeed in his claim for permanent absorption in the department where he works on deputation, unless his claim is based upon a statutory rule, regulation or order having the force of law. A deputationist can always and at any time be repatriated to his parent department, at the instance of either borrowing department or parent department. There is no vested right in such a person to continue for long on deputation or get absorbed in borrowing department." 13. Thus, we find that the learned Single Judge has rightly held that the impugned order repatriating the appellants to their parent department does not suffer from any legal infirmity. Accordingly, there is no merit in these appeals and as such they are dismissed. 14. However, it is clarified that the appellants should be provided their promotional benefits which they would have been entitled in case they had remained in their parent department.