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2000 DIGILAW 282 (GAU)

State of Tripura v. Ramendra Nath Dey

2000-08-31

H.K.KUMAR SINGH, J.N.SARMA

body2000
J. N. Sarma, J.— A11 these writ appeals have been filed by the State of Tripura against the common judgment dated 7.10,98 passed by the learned Single Judge in Civil Rule No.84 of 1992,279 of 1992 and 92 of 1992. The facts of the civil rules are given below : Civil Rule No. 84 of 1992:2. This writ petition has been filed by the petitioner, Ramendra Nath Dey praying the following reliefs (a) to direct the respondents to pay the pay scale recommended by the University' Grants Commission, hereinafter called as UGC, to the petitioner as Assistant Professor with effect from 1. 12.1977 and in the senior scale of pay with effectfrom 1.12.1977 and 1.12.1985 respectively. (b) to direct the respondents not to appoint any person as Vice Principal in the Government Music College, B. Music Wing (Degree Course). 3. The petitioner herein is an M. A, (Classical Vocal) Music and M. A. in Bengali, B. Ed. and Sangeet Visharad. The petitioner was offered the post of Senior Lecturer in the Govt Music College, Agartala vide Annexure 1 to the writ petition. The Annexure 1 reads as follows : “MEMORANDUM With reference to his/her application dated to the Secretary, Tripura Public Service Commission for appointment under the Govt of Tripura and his/her subsequent interview the Governor has been pleased to offer Shri Ramendra Nath Dey a temporary/permanent post of Senior Lecturer in Vocal Music in the scale of pay ofRs.5(X)-40-900-50-1300(EB after8th& 15thstages).” 4. In 1977 the B. Music Wing of the Govt Music College was affiliated to the Calcutta University and recognised the said B. Music Wing as Degree Course. After establishment of the Tripura University, the B. Music Wing came under the jurisdiction of the Tripura University as affiliated to it. That notification to that effect dated 29.10.87 i.e. the Annexure 2 to the writ petition reads as follows : “Notification In exercise of the powers conferred by sub-section (2) of section 6 of the Tripura University Act, 1987 (Act No. 11 of 1987), the Government of Tripora hereby appoint the 2nd day of November, 1987 as the date on which the following colleges existing within thelimitsof the State ofTripura shall be deemed to be affiliated until the University otherwise directs.” and the name of this college is at SI No. 15 and it is specifically mentioned that it is the B. Music Wing which was affiliated. 5. 5. There are two sections in the Music College one is a diploma course and the other is the degree course. Only the B. Music Wing which holds classes in day time has been affiliated firstly to the Calcutta University and then to the Tripura University. It is the case of the petitioner that according to the Govt notification which extended the UGC scale in 1986 to the college teachers of Tripura, the petitioner is entitled to receive the said scale meant for Assistant Professor with effect from 1.12,1987. The petitioner was originally appointed, as Senior Lecturer and later on it was redesignated as Assistant Professor. It is the farther case of the petitioner that after expiry of eight years i.e. after 1.12.1977 the petitioner is entitled to senior scale meant for Assistant Professor, under UGC Rules. 6. Earlier to it, one Tripurendra Bhowmik, the then Principal of the college filed a writ petition being Civil Rule NoJ8 of 1980 claiming pay scale recommended by the UGC and the matter came up for decision before a Division Bench of this Court. When this claim was made by the Principal, the contention of the Govt was that the petitioner meaning here the Principal has no legal rights to claim the above pay scale which was rejected by the Division Bench of this Court as follows : “if we find any element of discrimination this writ Court is legally bound to grant relief.” . It is the further finding of the Division Bench which reads as follows : 5. The decision of the Government is absolutely clear and unambiguous. The Government decided to grant University Grants Commission pay scales to teachers of all colleges affiliated to University. From the supplementary affidavit filed by the petitioner we find that recently State Government decided to grant the said pay scale even to the members of the Regional College of Physical Education affiliated to University for the purpose of degree as well as diploma. That being the position we do not find any justification for not granting the University Grants Commission pay scale to the present petitioner of the college as the college is conducting B. Music Course and it is affiliated to the University. Mr. That being the position we do not find any justification for not granting the University Grants Commission pay scale to the present petitioner of the college as the college is conducting B. Music Course and it is affiliated to the University. Mr. Majumcfar has raised another contention that as the college is also conducting diploma and certificate courses the petitioner is not entitled to get the pay scale as those courses are not affiliated to any University. In reply, Mr. Lodh has rightly submitted that this is an additional work conducted by the college in question and for that reason the present petitioner cannot be denied of his right to get the pay scale of the University Grants Commission. From the affidavit-in-reply filed by the State on 4.1.89 we find that three members of the teaching staff including the Principal of the Music College are conducting B. Music Course. This is the admitted position. So, we are constrained to hold that denial of University Grants Commission pay scale to the present petitioner is discriminatory and also arbitrary and is hit by Article 14 of the Constitution.” Thereafter, in paragraph 6, the Division Bench gave the following directions: “6. In the result, the present petition is allowed and we direct the respondent to pay the pay scale prescribed by the University Grants Commission to the petitioner, who is the Principal of the college, from the date of affiliation of the college to the University which was sometimes in the year 1976-1977. This order shall be implemented by the respondents by April, 1989. Parties to bear their own cost.” 7. Thereafter on 31.5.1993 an Addendum was issued by the Govt which reads as follows: “Please add the words “Principal, Govt Music College (for B. Music) Agartala” after the words 'Govt Law College' as occurred in the 4th line of para 2 of this Department Notification No. F.I(499)-PHE/88 dated 31.3.89.” 8. In terms of this notification the earlier Principal, Sri Bhowmik was given the benefit of UGC scale, but when he retired, the present petitioner who became the Principal was not given the same benefit. This present petitioner filed the Civil Rule No. 195 of 1997 before this Court, but that case was with regard to seniority and the claim of seniority was against the respondent No.5 and this Court dismissed that writ application. This present petitioner filed the Civil Rule No. 195 of 1997 before this Court, but that case was with regard to seniority and the claim of seniority was against the respondent No.5 and this Court dismissed that writ application. Reference has been made to this aspect of the matter as it has also been argued on behalf of the appellant that this case will have a role to play in the shape to constructive res judicata in this case. 9. The petitioner was apprehending that the authority may appoint Vice Principal and that is why there was other prayer not to appoint any person as Vice Principal. The petitioner herein filed the representation vide Annexure 6 to the writ petition on 18.7.91 by which he claimed that he was entitled to get the UGC scale of pay but that has not been given to him and he claimed the scale of pay with retrospective effect from the date of his joining i.e. from 29.4.1977. As nothing was done, so this writ application. 10. Affidavit-in-opposition has been filed on behalf of the State-respondents wherein it has been stated, inter alia, as follows : (a) There is no separate Senior Lecturer for B. Music Course. Besides, the petitioner was already in service in the Music College before the B. Music Course was introduced in the said college. Therefore, he cannot claim any special benefit by way of his designation of his post as Assistant Professor and the pay scale under University Grants Commission. (b) The name of the Govt Music College was not included in the Govt notification introducing the UGC scale of pay. So there is no question of extending the said UGC scale of pay to the petitioner. (c) That the case of the Principal of the Govt Music College cannot be compared with that of the petitioner. (d) As the petitioner is not entitled to any benefit, there remains nothing for consideration of this representation by the authority. 11. It maybe stated herein that in the meantime the petitioner has retired from his service and any benefit if available to him that only will be of some monetary benefit. Civil Rule No.279 of 1992 and Civil Rule No.92 of 1992 : In Civil Rule 92 of 1992, the petitioner is an M.A. in Music from Rabindra Bharati University, Calcutta, West Bengal. Civil Rule No.279 of 1992 and Civil Rule No.92 of 1992 : In Civil Rule 92 of 1992, the petitioner is an M.A. in Music from Rabindra Bharati University, Calcutta, West Bengal. She is also Sangeet Prabhakar in Rabindra Sangeet from Prayag Sangeet Samiti, Allahabad. She is Graduate in Arts from the Calcutta University and obtained B. Ed degree from the Calcutta University. In the year 1966, the petitioner joined as Assistant Teacher in the Maharani Tulsibati Girls Higher Secondary School, Agartala under the respondents. The Music College was established in the year 1964 but it became a degree college in the year 1977 when the Calcutta University gave affiliation to it and since then degree course is being conducted in the said institution. As the Music College required teacher having Master degree in Music who were able to conduct classes hi the B. Music Course of the college in the stream of Rabindra Sangeet, Western Music and Karnataka Music, the name of the petitioner was recommended by the Head Mistress of Maharani Tulsibati Girls higher Secondary School in response to the said requisition. The petitioner was found suitable person to be deputed to such a position hi the Govt Music College and accordingly she was sent on deputation to the college and she joined the same on 9.12.1977 and that reads as follows : “Smti Ashima BhattacHarjee (MA in Music) Assistant Teacher, MT Girls' HS School, Agartala is temporarily deputed to work in the Govt Music College, Agartala with her existing pay and scale of pay plus admissible allowances until further orders. She will report for her duties to the Principal, Govt Music College, Agartala, immediately.” 12. In Civil Rule 279 of 1992, the petitioner was appointed as Lecturer in 1966 in a Higher Secondary School and thereafter she worked in different Higher Secondary Schools and lastly she was transferred to Budhiung Girls' Higher Secondary School at Agartala. The petitioner is an M.A. in Bengali with Honours and also possessed a B. T. degree. By order dated 21.11.77 the petitioner was temporarily deputed to work in the Govt Music College, Agartala with his existing scale of pay plus admissible allowances until further orders. Thereafter both these petitioners continued in Govt Music College and they were not recalled at any time by the authority. By order dated 21.11.77 the petitioner was temporarily deputed to work in the Govt Music College, Agartala with his existing scale of pay plus admissible allowances until further orders. Thereafter both these petitioners continued in Govt Music College and they were not recalled at any time by the authority. These two petitioners also claimed that they were working as Lecturer in the college and they were entitled to receive UGC scale of pay and with a further prayer that they may be absorbed in the degree college, the Govt Music College in the post of Assistant Professor/Lecturer as may be found suitable. There were some other prayers made in the writ application, but as it then was, at the present we are not concerned with them. 13. An affidavit-in-opposition has been filed in both the cases on behalf of the State-respondents and the stand of the State of Tripura is that these petitioners are not entitled to receive the UGC scale of pay as at no point of time they were appointed as Lecturer or Assistant Professor in the college. They were only sent on deputation, and, as such, they were not entitled to claim absorption in the h college. It may be stated herein that after filing of the writ petition sometime in the year 1995, the authority passed an order asking Smti Ashima Bhattacharjee to come back to the parent department. That order was also cancelled/withdrawn in view of theorderof thiis Court. Itls on this back ground that tne mattercame up for hearing before the learned Single Judge. Earlier the Division Bench of this Court decided that the teachers *&£ Musk JGollegeaje entitled to receive the UGC scale x>f payand thereafter by issuing notification this Music College was specifically excluded. So the admitted position in this case is that the Govt vide notification dated 31.3.1989 extended--the UGCscale to the college teachers of Tripura with effect from 1.1.1986. While implementing the UGC scale in respect of college teachers; the Govt excluded from its purview certain colleges including the Govt Music College and that finds place in para 2 of the Govt notification. The question which arose for determination before me learned Single Judge was whether this exclusion was an arbitrary exercise of power and the learned Single Judge on consideration of the materials on records has inter alia, found as follows: “15. The question which arose for determination before me learned Single Judge was whether this exclusion was an arbitrary exercise of power and the learned Single Judge on consideration of the materials on records has inter alia, found as follows: “15. The above decision irresistibly leads to the conclusion that the Senior Lecturers of the Music College who are similarly situated with the Principal cannot be denied the UGC scale unless they fall short of UGC norms, or otherwise disqualified. So far the petitioner Shri Dey is concerned, the materials on record show that he is a Master Degree holder in Bengali and Music and also posses a Bachelors degree in Education. Annexure 4 issued by the Joint Secretary to the Government of Tripura itself shows that the petitioner Shri Dey, on consideration of his qualification and other eligibility was allocated to the degree course in the Government Music College along with Smti Ashima Bhattachatjeeithe writ petitioner of Civil Rule No. 92 of 1992. This allocation was made or fulfillment of the eligibility criteria prescribed by the University Grants Commission. This is evident from the penultimate para of the office order referred to above. Therefore, the eligibility of the petitioner for entitlement to the UGC scale also stands cleared from the order passed by the Joint Secretary, Education Department. That apart, there is no effective challenge to the claim that the petitioner is a whole time teachers. This narrow down the scope of enquiry in this case to the sole question where non-receipt of UGC scale from before would be an acceptable ground to keep them out of the purview of the Scheme.” 14. It was further found by the learned Single Judge that the eligible teachers of the Music College (B. Music Wing) melliding the writ petitioner, Ramendra Nath Dey have been left out only' on the ground that they were not covered by the UGC scale from before. It was further found that exclusion of the college from the purview of UGC scale was arbitrary and is impermissible. It was further found that exclusion of the college from the purview of UGC scale was arbitrary and is impermissible. Next coming to the question of other two persons, Smti Namita Deb Choudhury and Smti Ashima Bhattaeharjee, learned Single Judge found that though they Were sent on deputation in the year 1977, they were allowed to continue there in the college for a period of more than twenty years and arrived at a finding that there was no justification to give a different scale of pay to them as they have been discharging the same duties as have been done by the teachers of other colleges, and it was found that there was differential treatment and they Were asked to be given the same UGC scale of pay arid the learned Single Judge observed that the two petitioners deserved absorption in the Music College as well as pay benefit, and, accordingly, direction was given to give pay benefit and other benefits within a period of three months and, it is this order which is challenged in this writ appeals. 15. We have heard Sri UB Saha, learned Senior Govt Advocate assisted by Sri S. Chakraborty learned counsel for the appellants and Mr. A. Chakraborty learned senior counsel assisted by Mr. PK Pal, learned counsel for the respondents. 16. In AIR 1997 SC 645 (Air India Statutory Corporation vs. United Labour Union) the Supreme Court in para 59 has pointed out as follows: “59. The founding fathers placed no limitation or fetters on the power of the High Court under Article 226 of the Constitution except self imposed limitations. The arm of the Court is long enough to reach injustice wherever it is found. The Court is sentinel in the qui vive is to mete out justice in given facts.” 17. In (1999) 1 SCC 741 (UP State Co-operative Land Development Bank Ltd vs. Chandra Bhan Dubey) in paragraph 27, the Supreme Court has pointed out as follows : “27. The Constitution is not a statute. It is a fountain head of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Court to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. The Constitution is not a statute. It is a fountain head of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Court to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a co-operative society or association or body of individuals, whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this Court has laid down certain guidelines and self imposed limitations have been put there subject to which the High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. The High Court does not interfere when an equally efficacious alternative remedy is available or when there is an establish procedure to remedy a wrong or enforce right. A party may not be allowed to by pass the normal channel of civil and criminal litigation. The High Court does not act like a proverbial 'but in a china shop in the exercise of its jurisdiction under Article 226.” 18. No doubt the writ Court is a Court of equity and equity must supplement the law meaning thereby that in exercising the power under Article 226 of the Constitution we cannot issue a Mandamus or any other writ directing the authority to violate the law. But at the same time relief can be moulded by the writ Court in such a manner that justice is given/made as pointed out by the Apex Court in the judgments quoted above. Writ Court is not a horned bull in a China day shop to put all things topsy turvy, but whenever and where ever without violating the law or without causing a topsy turvy situation, relief can be given within the bounds of law, such relief should be given because after all the aim of the Court is to wipe out injustice, the genuine tears from the eyes of persons. It is in this back ground that we must decide this case in hand. Another aspect of the matter is that a writ appeal is an appeal on principle meaning thereby that this Court is exercising the co-ordinate jurisdiction and accordingly, when we examine the legality and validity of the judgment of the learned Single Judge, it should be set aside or it should be quashed only when there is patent error on the face of the record or judgment is against the established/settled principle of law. If two views are possible and a view which is reasonable and logical, has been adopted by the learned Single Judge and the second view has not been accepted, the decision view adopted by the learned Single Judge, should be allowed to prevail. 19. Next let us take the submissions made by the learned Govt Advocate for the appellants. The learned counsel for the appellants submits as follows : (a) Court can not issue a Mandamus to the authority to pay a particular scale of pay to a person, as the fixation of pay and the payment of the same is a policy decision of the State Govt. (b) That there cannot be any direction by the Court to the authority not to repatriate or call back a person sent on deputation and there cannot be any direction to absorb a person sent on deputation in the Department to which he is sent. (c) As the notification was not under challenge the Court could not have given the direction for payment of UGC scale. 20. Learned Govt Advocate places reliance on the following, decisions AIR 1996 SC 3201 (State of WB vs. Tropical School Employees' Union). That is a case with regard to equal pay for equal work. The question which arose in the case was whether non-teaching technical staff and Class IV staff in Govt educational institution can claim UGC scale. That case is absolutely not relevant for the decision of the case in hand inasmuch as this is not a case of an employee of non-teaching staff or a Grade IV employee. (1997) 3 SCC 568 (Union of India vs. PV Hariharan). That also a case with regard to equal pay for equal work. In paragraph 5, the Supreme Court has pointed out as follows: “5. (1997) 3 SCC 568 (Union of India vs. PV Hariharan). That also a case with regard to equal pay for equal work. In paragraph 5, the Supreme Court has pointed out as follows: “5. Very often, the doctrine of equal pay for equal work is also being misunderstood and misapplied, freely revising and enhancing the pay scales across the board. We hope and trust that the Tribunals will exercise due restraint in the matter. Unless a clear case of hostile discrimination is made out, there would be no justification for interfering with the fixation of pay scales.” This case is also of no help to the appellants in resolving the dispute or the questions which arise for determination. (1996) 3 SCC 709 (State of AP vs. Mcdowell and Co & others). That is a case wherein the Supreme Court pointed out that the Court can not question the policy decision of the Govt and/or wisdom of the policy. That was a case with regard to prohibition in AP and it was in that back ground that the Supreme Court pointed out that the policy decision requires application, of mind by the proper authority with proper reasons. An authority by issuing a notification or order cannot claim that it is the policy decision of the Govt. Policy decision is something else than a mere order or notification issued according to the pleasure or whim. Nothing was shown to as to what was the necessity to exclude this college from the purview of the UGC scale. The only ground which has been advanced is that there is financial constraint. Financial constraint is no ground to exclude one college when it included so many colleges and it was rightly found by the learned Single Judge that there is something behind the exclusion of this college. AIR 1997 SC 2391 ( Union of India vs. Makhan Chandra Roy), the Supreme Court pointed out in that case that the Court cannot decide the pay a scale attached to a particular office and the Court should not tinker or make an attempt to determine the scale of pay of office, that is not the position in the case in hand. Here there was a circular by the UGC. The circular was accepted by the State of Tripura for some colleges save and except this college. Here there was a circular by the UGC. The circular was accepted by the State of Tripura for some colleges save and except this college. Learned Single Judge also found no justification to exclude the Music College. So this case is also of no help to the appellants. (1998) (2) SC 514 (State of Orissa & another vs. Aswini Kumar Dash & others). That is a case where the State of Orissa decided to provide grants-in-aid to cover the revised UGC scales of pay for those teachers in existing colleges which have received Government concurrence and University affiliation on or before 1st of April, 1989. The date has a direct nexus with the date of the decision to provide for such higher pay scales in the grant-in-aid to be given to the concerned colleges. The date which is so fixed cannot be considered as arbitrary or unreasonable, and the Supreme Court on the back ground of that case pointed out that the date cannot be deemed to be arbitrary or unreasonable, that is not the position in the case in hand. The position of the case in hand is something different. That disposes the question No.l and 3 as urged by the learned Govt Advocate for the appellant. 21. Then we come to the second question, whether the Court can give direction to the authority to absorb a person sent on deputation even though that person is working for a sufficiently long period. Sri Saha on this point legally is on a strong ground. He is correct in contending that the Court cannot issue such a direction and in support of this contention Sri Saha places reliance on two decisions. 1990 (Supp) SCC 243 (Radial B. Soni vs. State of Gujrat) wherein the Supreme Court pointed out that absorption on deputation post that depends on the Rules for deputation and the rule of the Department where person is on deputation. If the Rules of the Department gives an option to that particulars person to be absorbed there, then he may exercise the option, otherwise he does / not have a right to claim absorption in the Department to which he was sent on deputation. If the Rules of the Department gives an option to that particulars person to be absorbed there, then he may exercise the option, otherwise he does / not have a right to claim absorption in the Department to which he was sent on deputation. The next case is (1997) 8 SCC 372 (State of Punjab vs. Inder Singh).That was a case where certain Constables in Punjab Police were taken on deputation to the Criminal Investigation Department (CID) of Punjab for organising it. They continued on deputation in the CID Department for a Jong period of more than 20/22 years, even some persons had received further promotion in the CID Department, retired from the Department and received their pension and others were continuing there. It was at that point of time when CID Department became a full-fledged department with its own persons, the Constables who were on deputation they were asked to go back to their parent h ' department. In the Department of CID, they were also getting higher salary and they were enjoying promotion thereunder. Naturally they were not inclined to go back to the parent department at the post they will have to serve as Constables or Head Constables. Accordingly, they filed a writ petition before the Punjab and Haryana High Court to quash the order of repatriation of those persons to the parent department that was done. Against that there was an appeal before the Apex Court and in that case, the Apex Court in paragraph 18 has pointed out that what is deputation and what is meaning of deputation. “18. The concept of 'deputation' is well understood in service law and has a recognised meaning. 'Deputation' has a different connotation in service law and the dictionary meaning of the word 'deputation' is of no help. In simple words 'deputation' means service outside the cadre or outside the parent department, cadre that is to say to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he was earned promotion in his parent department as per the Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who Controls the service or post from which the employee' is transferred. Whether the transfer is outside the normal field of deployment or not is decided by the authority who Controls the service or post from which the employee' is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head Constables as the case may be.” The Supreme Court pointed out in the case that whatever may be length of period of service of a person in the Department to where they were deputed, they cannot claim absorption and must go back to the parent Department. But even in that particular case also, the Supreme Court in view of the hard facts moulded the relief and gave the relief to those persons in exercise of the power under Article 142. 22. On the other hand, Sri Chakraborty learned senior counsel for the respondents contends that the benefit which were available to this college under the earlier decision of this Court in the Civil Rule 78 of 1980 to which reference has been made that benefit also will be available to the respondents and in support of his contention, he has relied on 1975 (1) SLR, Amrit Lal vs. Collector of Central Excise Delhi (SC) wherein in paragraph 24 the Supreme Court pointed out as follows: “24. We may, however, observe that when a citizen aggrieved by the action of a Government Department has approached the Court and obtained a declaration of law in his favour, others, in like circumstances should be able to rely on the sense of responsibility of the Department concerned and to expect that they will be given the benefit of this declaration without the need to take their grievances to Court.” 23. It is the submission of Sri Chakraborty that in the earlier Division Bench judgment, it was found that this college shall come within the purview of the UGC scale and to exclude the benefits the notification in the year 1989 i.e. 31.3.89 was issued and as indicated above the learned Single Judge has found it to be an arbitrary and impermissible exercise of power and to be discriminatory also and we do not find anything to differ with that finding of the learned Single Judge. 24. The next case relied by Sri Chakraborty is AIR 2000 SC 634 Chandigarh Administration vs. Rajni Vali. That is a decision with regard to equal pay for equal work. The Supreme Court has pointed out in the case that financial constraint is not a ground not to give relief to a person if that person is otherwise entitled to the reliever the benefits and it is the financial constraint which has been taken as the ground by the State of Tripura not to extend such benefit to the teachers of the Music College and the teachers are also not many. There are only three or four in the degree course and we do not understand as to how this can be a financial constraint. Regarding the submission of Sri Saha that the deputation is do not have any right to claim absorption, Sri Chakraborty has placed reliance in AIR 1995 SC 1123 , T. Santharam vs. State of Karnataka. In that case what happened, the appellant before the Apex Court was a Second Division Clerk in the Revenue Department and by mistakenly he was deputed to hold higher post in Food Wing of Department and he was discharging this duties satisfactorily and with higher responsibilities in Food Wing and he was working in the said higher post uninterruptedly for about 32 years and thereafter he was sought to be repatriated to the parent Department and the Supreme Court pointed out that will be a hardship and sheer injustice and on the facts of that case, the Supreme Court found that the appellant was entitled to be absorbed on higher post in the Food Wing of the Department. Earlier the matter came up before the Tribunal and the Tribunal asked for repatriation and that was set aside by the Supreme Court. Earlier the matter came up before the Tribunal and the Tribunal asked for repatriation and that was set aside by the Supreme Court. Sri Chakraborty on the authority of this decision submits that these persons also have been working though on deputation but for a period of more than 23 years as on today and they have been discharging their duties satisfactorily and it is not the case of the authority that these persons are not duly qualified to the posts. So it will be highly unjust to ask them to go back to the parent department and there is no necessity to go back to the parent department, that also they were asked to go back only, after filing this writ petition and not earlier. The State Govt was in deep slumber and it woke up only when it got a shake from this Court and not earlier to it. So it is better that the State Govt should remain in its slumber and should not disturb these two poor employees. They have spent the best part of their life in that particular college and let them retire peacefully from that particular college. So legally though we find that Sri Saha is correct that this sort of direction not to call back the respondents to the parents department cannot be given but this Court in exercise of its jurisdiction can mould the relief and considering the human problem and looking at the human face, we decline to interfere with the direction of the learned Single Judge. 25. Appeals stand dismissed. Earlier stay "order shall stand vacated. We give three months time to the authority to implement the order of the learned Single Judge. 26. It is needless to say that the authority may also consider the case of other persons similarly situated and this is under consideration as found from the instructions received by the learned Government Advocate in writing vide File No. 10 (85)-DHE/98, which he produced before us and a photo copy of it is placed in record.