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2001 DIGILAW 306 (JK)

Narotam Singh v. State Of J. &K.

2001-11-28

A.M.MIR

body2001
1. The petitioner was working as Manager In Bari Brahmana Farmers Co-operative Society (hereinafter referred) to as the lending society). Another Society the Vijaypur Co-operative Marketing Society (hereinafter referred to as the borrowing society) made a request to the lending society for transfer of the petitioner to the borrowing society. The request was agreed to and in this behalf State Co-operative Department passed an order vide no: CAD/Co-op/97-98/368-77 dated 07/07/1997 by virtue of which services of the petitioner were transferred from -lending society to the borrowing society. Vide above mentioned order, the petitioner was, however, adjusted as General Manager in the Borrowing Society. Subsequently the petitioner did not pull on well with the borrowing society. A number of allegations against him were levelled. The core allegation related to embezzlement of funds which according to Mr. Parihar, Addl. AG, run in crore. Borrowing society wanted to initiate an inquiry which according to Mr. Parihar, Addl. AG, was obstructed and forestalled by the petitioner. However, while passing an endorsement in order No. SS/RES/ 14-48 dated 26.04.2001 at No. 4., respondent No. 2 transferred the petitioner and attached him with Deputy Registrar, Co-operative Society Agriculture Jammu. The object of this attachment as reflected by endorsement seems to obstruct the access of the petitioner to Society record during the inquiry. 2. Director, Command Area Development Jammu passed an order No. CAD/ Coop-4/2001-2002/354-59 dated 26/06/ 2001. In terms of this order, the petitioners was reverted back to the lending society. It is this order which seems to have aggrieved the petitioner. He came to the court and this court on 12/07/2001, admitted the petition. The Court was pleased to stay the operation of the order. However, the petitioner according to the pleadings was relieved on 28/04/2001 and because of this Court direction, respondents took him back into the borrowing society. 3. Heard learned counsel for the parties at length. Only two questions in my opinion arise in this case: - i) What was the nature of assignment given to the petitioner by the borrowing society? ii) What will be the status of the petitioner after his reversion back to his parent society? Admittedly two Co-operative Societies are independent entities governed by different Boards of Directors and different bye-laws. 4. I propose to deal with above two question in the following manner: - i) Status of adjustment : Mr. ii) What will be the status of the petitioner after his reversion back to his parent society? Admittedly two Co-operative Societies are independent entities governed by different Boards of Directors and different bye-laws. 4. I propose to deal with above two question in the following manner: - i) Status of adjustment : Mr. Abrol, counsel for the petitioners has tried to canvas a view point that it was an appointment by transfer. The co-operative Societies Service Rules. 1988 (SRO 233) lay down the service conditions of employees working in Co-operative Society Rule 4, of-course. lays down the modes of appointment to be made in Co-operative Society. These four modes are as under: - a) Direct Recruitment. b) Transfer. c) Promotion. d) Deputation from the Government Departments/other institutions/employers. 5. I have gone through the whole scheme of Rules. The same do not envisage any transfer from one society to the other, therefore, it will be unsafe for the Court to deem it an appointment through transfer. The action of induction of the transfer squarely comes within clause(s) of the appointment. This is so because the borrowing department makes a request, the lending society concedes to that request and the order of appointment is made, of-course with the consent of the petitioner. The order of appointment squarely lays down that the petitioner would retain his lein in the lending society. It is worthwhile to place on record that the petitioner was appointed by the borrowing Society in the higher grade than one he used to enjoy in his parent society The assignment seems to have been given in terms of Rule 5 of the Rules Rule 5 reads us under: - "5. Appointment by transfer and deputation. - (1) The appointment in a cadre by transfer from another cadre, in an equivalent post of otherwise, shall be made by the Committee Authority on the recommendations of the Selection Board, on the terms and conditions mutually agreed upon by the two Committees with the written consent of the employee concerned? Provided that notwithstanding such appointment, the employee will retain lein and seniority in his parent cadre. Provided that notwithstanding such appointment, the employee will retain lein and seniority in his parent cadre. (2) No appointment by deputation from the Government Department or any other institution/employer will be made by any authority other than the Government/or the Registrar respectively?" It is also noteworthy that in terms of Rule 5 (supra) the appointment could have been ordered by Government or Registrar only. However, as no grouse seems to have been taken against the appointment, the petitioner continued. Proviso to Sub-Rule (1) of Rule 5 deserves paramount consideration. Under this proviso, the petitioner is deemed to have retained his lein and seniority in the parent society and in the parent cadre. The Rule 4 read with Rule 5 do not leave the court in any doubt that this arrangement was made by way of deputation only. 6. ii. Post reversion status of the petitioner: Law with respect to the status of a reverted employee after the termination of period of deputation is clear. In case titled The State of Mysore V.M.H. Bellary, reported in AIR 1965 SC 868, the reversion status of an employee came up for determination. Their Lordships of the Supreme Court maintained that after reversion to the parent department a government servant will be entitled to occupy the same position which he enjoyed prior to his deputation. His claim of promotion shall be considered in the parent department only. The service rendered by him on deputation shall however be counted towards his seniority. Ayyanger J. speaking for the Constitution Bench of Supreme Court held as under: "The service of an officer on deputation in another department is treated by the rule as equivalent to service in the parent department and it is this equation between the services in the two departments that forms the basis of Rule 50(b). So long therefore as the service of the employee in the new department is satisfactory and he is obtaining the increments and promotions in that department, it stands to reason that that satisfactory service, and the manner of its discharge in the post he actually fills, should be deemed be to rendered in the parent department also so as to entitled him to promotions which are open on seniority-cum-merit basis." 7. Thus it becomes clear that the promotions, to which a deputationist is entitled, shall be given to him by the parent department of the employee, and if the borrowing department confers any special status upon him that will not confer a special status to the employee to enable him to steal a march against those of the employees of his cadre with whom he has to contest the claim of promotion. 8. As already expressed the two societies are governed by different bye-lays, therefore, the order of the borrowing society placing the petitioner in the higher scale of General Manager will not be binding upon the Board of Directors of the lending society. It is for them to see as to when and how the petitioners promotion can be made to the higher post. This involves so many factors including the financial position of the lending society. 9. Having answered both the question in the above manner, I find that the petitioner™s challenge to the impugned order is not fortified by any solid legal ground. In fact the court cannot compel the Co-operative Society to retain a person who is on deputation, nor can it ask the lending society for placement of the petitioner in a higher grade. 10. I, therefore, dismiss this petition and withdraw the interim direction dated 12.7.2001. The respondents will be at liberty to conclude the inquiry.