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2002 DIGILAW 541 (PAT)

Md. Shamim Ansari v. State Of Bihar

2002-04-25

AFTAB ALAM

body2002
Judgment 1. The petitioner was appointed in 1976 as a driver in the Bihar State Sugar Development Corporation. He was working there when the Corporation (like many other Corporations and Boards in this State) started going down the hill. By and by its financial position became from bad to worse and at one stage the Corporation was not even able to pay salary to its employees. In those circumstances, an idea appears to have been mooted to send out the employees of the Corporation on deputation to different Government departments. 2. According to the petitioner in June, 1999 he too made a request for being sent out on deputation. At that time a request was received in the Corporation from the Relief & Rehabilitation Department, Government of Bihar asking for employees on deputation to work on certain posts, including the post of driver. The Corporaton forwarded the names of the petitioner (for the post of driver) and another employee, namely, Barkatullah Khan for the post of peon. Thereupon the Deputy Secretary to the Government in the Department of Relief & Rehabilitation issued an office order under his memo no. 1651, dated 16.8.99 (Annexure 2) posting the petitioner and Barkatullah Khan on deputation, till further orders, as driver and peon respectively. 3. The petitioner and Barkatullah Khan were then relieved by the Corporation by order, dated 18.8.99 (Annexure 3) and they gave their joining in the Government department on the same date. By an office order, dated 4.9.94 issued by the Government Department the joining of the petitioner (and Barkatullah Khan) was accepted with effect from the fore-noon of 18.8.99. By another office order, dated 24.9.99 approval was granted for payment of salary to the petitioner (and Barkatullah Khan) on the basis of their last pay certificates. The petitioner was working there when by office order, dated 15.3.2000 his deputation in the Government department was terminated with effect from the date of issuance of the order and he was asked to go back to the Corporation. By the same order, the Corporation ws requested to send the services of one Muktinath Singh, a Class IV employee on deputation to the Government department. 4. This writ petition has been filed challenging the office order, dated 15.3.2000 in so far as it terminates the petitioners deputation and sends him back to the Corporation. 5. By the same order, the Corporation ws requested to send the services of one Muktinath Singh, a Class IV employee on deputation to the Government department. 4. This writ petition has been filed challenging the office order, dated 15.3.2000 in so far as it terminates the petitioners deputation and sends him back to the Corporation. 5. In the writ petition, it is stated that there were five posts of driver, three of which were duly filled up and against the remaining two posts, peons and other Class IV employees were being made to work. It is asserted by the petitioner that not only there were vacancies in the post of driver but the department, in fact, needed more employees as would be evident from the fact that Barkatullah Khan was retained on deputation and the department had also asked the Corporation to send another Class IV employee Muktinath Singh on deputation. According to the petitioner, he was unreasonably and arbitrarily singled out for being sent back to the Corporation. 6. The respondent authorities have filed a counter affidavit and a supplementary counter affidavit. The central theme of the counter affidavit is that the petitioner, being on deputation, had no right to the post and he must leave o.nce the department took the decision to end his deputation. In the counter affidavit, it is further stated that the Minister, Relief & Rehabilitation by his I.O.U., dated 26.11.99 had directed for the return of the petitioner to the Corporation "on account of his whimsical absence from duty" whereupon the department terminated his deputation taking advantage of the fact that the petitioner was inducted on deputation till further orders. In the counter affidavit it was admitted that there were five posts of driver but it was stated that Class IV employees knowing driving were employed as drivers in exigencies of the situation. 7. In the supplementary counter affidavit, it is stated that following the bifurcation of the State and the creation of the State of Jharkhand, two out of the five posts of driver were allocated to Jharkhand and the Department was now left with only three posts of driver. 8. Mr. Suresh Kumar, J.C. to S.C.V took the same line of resistance as indicated in the counter affidavit. Learned counsel submitted that the petitioner was on deputation and his deputation was till further orders. 8. Mr. Suresh Kumar, J.C. to S.C.V took the same line of resistance as indicated in the counter affidavit. Learned counsel submitted that the petitioner was on deputation and his deputation was till further orders. He, therefore, had no right to the post in the Government Department of Relief and Rehabilitation and once his deputation was terminated, the only course open to him was to leave the department and to go and rejoin the Corporation. 9. In support of his submissions, Mr. Suresh Kumar relied upon a decision of this court in Md. Serajuddin V/s. State of Bihar, 2001 (2) P.L.J.R. 594 . 10. Mr.Y.V. Giri, learned Senior counsel appearing in support of this writ petition, on the other hand, contended that the petitioner came to work in the Government department not on deputation in the ordinary sense of the term and it was more a case of rehabilitation than deputation. According to the petitioner, the Corporation in which he was appointed and in which he was previously working had for all intent and purposes ceased to exist as a functioning organisation and when the Corporation had reached a stage where its survival had become doubtful, a suggestion was made to send out its surplus staff to different Government departments and Government bodies. It was in those circumstances that the petitioner and Barkatullah Khan came to work in the Department of Relief and Rehabilitation. In the present state of the Corporation, it would be futile and un-realistic to suggest that the petitioner continued to have lien on the post held by him there. In these circumstances, it would be unreasonable and unfair to view this matter as an ordinary case of deputation and to non-suit the petitioner on the basis of the decision relied upon by the State. 11. I find considerable substance in the submissions made by Mr. Giri. 12. It is well settled that normally a deputationist has no right to the post and the decision in Md. Serajuddin (supra) simply reiterates that legal position but that decision has no application to the facts of this case and there is force in Mr. Girls submission that the case of the petitioner was not a case of deputation in the ordinary sense of the term. 13. The submissions made by Mr. Serajuddin (supra) simply reiterates that legal position but that decision has no application to the facts of this case and there is force in Mr. Girls submission that the case of the petitioner was not a case of deputation in the ordinary sense of the term. 13. The submissions made by Mr. Giri appear to be fully supported by another set of decisions in a case much similar on facts to the case in hand. Two employees of the Bihar State Agro Industries Dev. Corporation Limited were sent on deputation to the Department of Transport, Govt. of Bihar under similar circumstances. The deputation of one of them, namely, Amarnath Singh was terminated and he was sent back to the Agro Industries Corporation. He came to this court in CWJC No. 3513 of 1994 challenging the action of the Government in terminating his deputation and asking him to go back to the Agro Corporation. In that case too, the Government sought to justify its action by taking the plea that the deputationist had no right to the post. The action of the Government was further sought to be justified on the ground that complaints were received against the concerned deputationists. 14. A learned single judge of this court allowed the writ petition by judgment and order, dated 12.9.97. The learned Judge turned down the Governments contention that the deputationists had no right to the post pointing out that in the circumstances in which the employees from the Agro Dev. Corporation were sent to the Government department, it was not a case of deputation in the ordinary sense of the term.The court further pointed out that the primary reason for not keeping the concerned employee in the department was that certain unproved complaints had been received against him. The court took the view that it might have been open to the Government to proceed against the concerned employee in a disciplinary action on the basis of those complaints but the action of the Government to terminate the depuation and, thus, to render him, for all practical purposes without employment, using the complaints collaterally was not sustainable in the eyes of law. It was also pointed out that the action of the Government was discriminatory inasmuch as the concerned employee was sent back to the Corporation while another deputationist was allowed to continue in the department. 15. It was also pointed out that the action of the Government was discriminatory inasmuch as the concerned employee was sent back to the Corporation while another deputationist was allowed to continue in the department. 15. The Governments appeal being L.P.A. No. 1566 of 1997 preferred against the judgment and order passed by learned single Judge was dismissed by a reasoned order, dated 22.4.98 and a petition for special leave being S.LP. No. 00312 of 1999 met with a similar fate when it was dismissed by the Supreme Court on 1.2.1999. 16. The case of the employee from the Agro Dev. Corporation appears to be very similar to the case of the present petitioner. Both were sent on deputation to Government department in similar circumstances. The deputations in both the cases were terminated for similar reasons; in the case of the employee of the Agro Dev. Corporation there were complaints received against him; in the present case the Minister of the Department had complained about the petitioners whimsical absence from duty. In both the cases though the deputation of the concerned employee was terminated, others working on deputation were allowed to continue. 17. For all these reasons, I find and hold that the decisions in the case of Amarnath Singh applies fully to the facts of this case and this writ petition too must be allowed in the same terms. The impugned order at Annexure 8 to the writ petition is held to be neither just, reasonable or fair within the meaning of Arts. 14 and 21 of the Constitution. The impugned order cannot be sustained and is, therefore, quashed. 18. This will, however, not prevent the respondents from initiating a regular proceeding. If they are so advised, against the petitioner for his alleged whimsical absence, in accordance with law. 19. This writ petition is, thus, allowed to the extent indicated above but without any order as to costs.