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2002 DIGILAW 798 (PAT)

Triloki Nath Singh v. State Of Bihar

2002-07-25

S.N.JHA

body2002
Judgment S.N. Jha, J. 1. The petitioner is aggrieved by an order by which his services have been returned by Bihar State Agriculture Marketing Board (hereinafter referred to as the Board) to the Agriculture Department of the State Government. The order has been communicated by the Managing Director of the Board to the Agriculture Department vide his memo no. 30/GO. dated 30.3.2002. The petitioner seeks quashing of the said letter and a direction upon the respondents to allow him to remain in the service of the Board as Market Secretary. He also seeks direction to grant him the scale of Market Secretary with all consequential benefits pursuant to order dated 5.8.95 by which he was promoted as Market Secretary in the scale of Rs. 1640-2900. 2. The case of the petitioner, briefly stated, is as follows. The petitioner was initially appointed on the post of Laboratory Attendant by the Dy. Director, Agriculture Marketing, Government of Bihar on 18.1.74 and directed to submit his joining in the office of the Bihar State Agriculture Marketing Board. Pursuant to his above- said appointment the petitioner joined the Board on 19.1.74 and started discharging his functions under the Board. In 1976 vacancies occurred on class III posts of Lower Division Clerk. The petitioner being the seniormost and eligible was promoted as Lower Division Clerk alongwith others on 19.11.76. According to the petitioner, pursuant to policy decision the State Government had issued notification no. 13906 dated 31.10.72 in terms of which all officers/employees working under the Agriculture Marketing wing of the Agriculture Department, except those mentioned in the schedule of the notification, stood transferred to the Board in the same pay scale with facilities admissible to the Government servants. The order with respect to their service conditions was to be issued later. In the light of the abovesaid notification dated 31.10.72 the State Government in the Agriculture Department took a decision, by way of resolution, vide memo no. 900 dated 26,1.88, in terms of which the employees sent on deputation to the Board were to exercise their option in the matter of their absorption in the service of the Board. Such of them working on posts sanctioned by the State Government under the Board opting to be absorbed in the services of the Board were to be treated as Boards employees and their relationship with the Department i.e. the State Government were to stand terminated. Such of them working on posts sanctioned by the State Government under the Board opting to be absorbed in the services of the Board were to be treated as Boards employees and their relationship with the Department i.e. the State Government were to stand terminated. Such of those who did not exercise option, or do not do so in future, in favour of absorption were to continue in the service of the Board but on deputation basis. The case of the petitioner is that in 1989 a decision was taken by the then Chief Minister to abolish market fee on sugarcane and molasses. The petitioner believing that such a move would cause recurring loss of Rs. 72 lacs per annum to the Government and the Board objected to the abolition. Though similar decision was taken by the next Chief Minister between November 1989 and March 1990, in view of the objection raised by the petitioner, the successor Chief Minister recalled the earlier decision, and thus the Government/Board was saved of a loss of Rs. 72 lacs, and in appreciation of his work he was promoted on the post of Market Secretary Grade-B. Initially, by mistake, order of posting as Market Secretary was issued on 18.7.95 but later a modified order promoting him on the post was issued on 5.8.95. The petitioner thereafter started performing the duties of the post of Market Secretary. On 7.9.97 the Managing Director of the Board reduced his pay against which he filed CWJC No. 9055/97. In the counter affidavit filed in the case the State Government took the stand that the Board has no authority under to Act to take any decision without consulting the State Government and this supported the case of the petitioner. The petitioner has referred to certain incidents which took place during his tenure at Raxaul which do not appear to be relevant for the purpose of this case. The petitioner has made averments in praise of his work and performance and it is not necessary to notice them too for the purpose of this case. Suddenly, on 30.3.2002 the Managing Director of the Board issued the impugned letter and returned his services to the Agriculture Department. Earlier his salary had been stopped since July, 2001. 3. The respondent Marketing Board and the State Government have filed separate counter affidavits taking opposite stand. Suddenly, on 30.3.2002 the Managing Director of the Board issued the impugned letter and returned his services to the Agriculture Department. Earlier his salary had been stopped since July, 2001. 3. The respondent Marketing Board and the State Government have filed separate counter affidavits taking opposite stand. While the Board has opposed the claim of the petitioner, the stand of the State Government is in his favour. The case of the Board may be noticed first. According to the Board, the petitioner is an employee of the State Government. He was appointed on a class IV post of Laboratory Attendant on temporary basis in the scale of Rs. 155-190 and his services were placed at the disposal of the Board where he joined on 19.1.74. He remained in the service of the Board on deputation till passing of the impugned order. The service conditions of the petitioner, such as, seniority, promotion etc. are governed by his parent department i.e. Agriculture Department which is evident from the fact that the petitioner was promoted on the post of Lower Division Clerk in the scale of Rs. 220-315 on 19.1.76. It has been stated that in the gradation list of Lower Division/Upper Division Clerk of the Agriculture Department, the name of the petitioner is mentioned at SI. No. 15. It has further been stated that when the employees of the Marketing wing of the Agriculture Department being category-8 employees were transferred to the Board, they challenged the decision before this Court. Their grievance was upheld and it was held that they could not be transferred without their consent. The State Government thereafter issued amended notification dated 7.8.73. As per the amended notification, the employees on transfer to the Board were to serve the board on deputation basis till further orders and accordingly, they continued in the service of the Board on deputation. The petitioner also belongs to category-8 and he too thus remained in the Board on deputation. After the scale of Lower Division Clerks of the Board was enhanced from Rs. 220-315 to Rs. 348-570 and they were designated as Upper Division Clerk, the benefit was extended to the petitioner also which was objected to by the Audit wing of the office of Accountant General on the ground that the petitioner being an employee of the State Government he would get the scale admissible to the employees of the State Government. 220-315 to Rs. 348-570 and they were designated as Upper Division Clerk, the benefit was extended to the petitioner also which was objected to by the Audit wing of the office of Accountant General on the ground that the petitioner being an employee of the State Government he would get the scale admissible to the employees of the State Government. In view of the said audit objection the Board had to cancel its order allowing the Boards scale to the petitioner. All on a sudden on 18.7.95 the State Government in the Agriculture Department posted the petitioner as Market Secretary Grade-B. The Board expressed its difficulty to post the petitioner as Market Secretary as there was no provision in the Service Regulation of the Board to grant promotion out of turn. Also, from the order it was not clear as to whether the posting of the petitioner was on the basis of appointment or promotion. The Board further pointed out that the petitioner was not even eligible for the post of Market Secretary as he was only a matriculate while the minimum educational qualification for the post of Market Secretary was graduate. Similar objection was raised on 22.10.97 with a request to the Government to review its decision. However, the State Government did not pay heed to the remonstrations of the Board and ultimately the petitioner was posted as Market Secretary. His performance as Market Secretary was not found to be appreciable. It has further been stated that most of the employees of the State Government who were on deputation belonged to category-8 and they have either retired or died. In some cases the State Government itself recalled their services as the modality of then absorption in the service of the Board could not materialise for one reason or the other. The petitioner is one of such employees whose services have not been absorbed in the Board. Some of the persons whose services were recalled by the Agriculture Department, filed writ petition before this Court being CWJC Nos. 710 and 986 of 2000 which were dismissed. Letters Patent Appeals being LPA Nos. 651, 652 and 710 of 2000 were also dismissed by the Division Bench. This Court held that as deputationist they have no right to continue on deputation nor could they claim absorption. 710 and 986 of 2000 which were dismissed. Letters Patent Appeals being LPA Nos. 651, 652 and 710 of 2000 were also dismissed by the Division Bench. This Court held that as deputationist they have no right to continue on deputation nor could they claim absorption. The Board, in the circumstances, contends that the petitioner has no vested right to continue in the services of the Board on deputation as long as he likes; as a deputationist, his services can always be repatriated to his parent department at the instance of the borrowing department or the parent department. 4. The State Government has filed three affidavits. While two of them are sworn by Shri Ashok Prasad, a Leave Reserve Officer, Directorate of Agriculture, the third one is sworn by Shri Madan Mohan Singh, Agriculture Production Commissioner pursuant to the direction of this Court vide order dated 23.5.2002. The stand of the State Government may briefly be stated as follows. The initial appointment of the petitioner was on class IV post, namely, Laboratory Attendant from which he was promoted as Lower Division Clerk in the scale of Rs. 220-315 on 19.1.76. On merger of the post of Lower Division and Upper Division Clerk, he was allowed the Scale of 348-570 with effect from 1.3.77. Later he was granted promotion on the post of Market Secretary Grade-B. Regarding nature of the petitioners service under the Board it has been stated that the petitioner was sent on deputation to the Board in accordance with notification no. 13906 dated 31.10.72. He is a State Government employee having his lien in the Agriculture Department. The State Government is competent to fix service condition of the employees and that is binding on the Board. By resolution no. 900 dated 26.1.88 it was decided that deputation of a Government servant working under the Marketing Board will continue till their retirement. There is no post of Market Secretary under the State Government, and in this view of the matter, the Government by its letter dated 22.4.2002 informed the Managing Director of the Board that it was not possible to accept the petitioners services in the Agriculture Department. Copy of the said letter has been enclosed as Annexure-B to the first affidavit. There is no post of Market Secretary under the State Government, and in this view of the matter, the Government by its letter dated 22.4.2002 informed the Managing Director of the Board that it was not possible to accept the petitioners services in the Agriculture Department. Copy of the said letter has been enclosed as Annexure-B to the first affidavit. In the affidavit of the Agriculture Production Commissioner, it has been stated that after the creation of the Agriculture Marketing Board the marketing wing of the Agriculture Department became irrelevant and even the Board in its affidavit has admitted this fact. It was for this reason that the services of the employees of the marketing wing being category-8 employees, were transferred to the Board. The affidavit does not deny that the parent department of the employees is the Agriculture Department but it is submitted that in resolution no. 900 dated 26.1.88 laying down the service conditions of the deputationists, it was clarified that the services of the State Government employees deputed to the Marketing Board will remain with the Marketing Board till retirement. As regards the promotion of the petitioner on the post of Market Secretary Grade-B, it has been stated that Section 20(1) of the Bihar Agriculture Market Produce Act, 1960 empowers the State Government to appoint Market Secretary to the Agriculture Produce Market Committees, and the petitioner was appointed to the post of Market Secretary Grade-B through promotion "considering commendable and excellent work of the petitioner as special case with the approval of the then Hon ble Minister of Agriculture". It has been stated that in view of the then existing Rule 64(1) (c) proviso, lack of educational qualification was no bar to promotion provided the service records of the person was otherwise satisfactory. The amendment in the said rule making the educational qualification mandatory even in the case of promotion was made only in 1996 i.e. later than the petitioners promotion. Thus appointment/promotion of the petitioner as Market Secretary cannot be said to be illegal. 5. Shri J. P. Shukla, learned counsel for the petitioner submitted that though the petitioner was sent on deputation to the Board and remained there all along as such, in view of the second paragraph of the resolution of the State Government dated 26.1.88 he is entitled to continue in the service of the Board till his retirement. 5. Shri J. P. Shukla, learned counsel for the petitioner submitted that though the petitioner was sent on deputation to the Board and remained there all along as such, in view of the second paragraph of the resolution of the State Government dated 26.1.88 he is entitled to continue in the service of the Board till his retirement. In any view, after the transfer of the entire marketing wing of the Agriculture Department to the Board, no post of Market Secretary is available in the Agriculture Department on which the petitioner could be adjusted. He submitted that under Section 20(1) of the Bihar Agriculture Produce Act, the State Government is competent to appoint Market Secretary for the market committees on such terms and conditions as may be prescribed. The appointment of the petitioner on the post of Market Secretary was thus binding on the Board. On behalf of the Board Shri Hamendra Prasad Singh submitted that the petitioner was never absorbed in the services of the Board. He is still an employee of the State Government, having lien in the Agriculture Department, as admitted by the Department in paragraph 8 of the first counter affidavit. Being a deputationist in the Board, the Board was competent to return his services to the parent department and the petitioner cannot claim any right in this regard. 6. The sheet-anchor of the claim of the petitioner is the aforementioned resolution dated 26.1.88. The preface of the resolution indicates the background in which the decision, as contained in the resolution, was taken. It states that from the very beginning employees have been transferred from one wing to another and promoted there and this had continued even after the establishment of the Bihar State Agriculture Marketing Board in 1972. The State Government after full consideration of the matter has decided to allow the officers/employees working on the departmental posts in the Marketing Board sanctioned by the State Government, to give option to accept the services of the Marketing Board. Such of those who have accepted the service of the Board will continue to work under the Board and their relationship with the Department (Agriculture Department) would stand terminated. Such of those who have accepted the service of the Board will continue to work under the Board and their relationship with the Department (Agriculture Department) would stand terminated. Such of the officers/employees deputed to the Bihar State Agriculture Marketing Board, who have not or do not exercise their option to accept the service of the Board, shall continue on deputation basis under the Board till their retirement. It is this part of the resolution which is relied upon on behalf of the petitioner. 7. There is no dispute between the parties that the status of the petitioner under the Board was of deputationist. The law is settled on the point that the services of deputationists can either be recalled by the parent department or returned by the deputee or borrowing department at any time. In Kunal Nanda vs. Union of India, (2000)5 SCC 362 , the Apex Court has held : "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." There is no doubt a resolution of the State Government in terms of which such of the officers/employees who do not exercise their option to accept the services of the Board are to continue in the Board but such continuance will be on deputation basis. Reading the resolution as a whole it is manifest that the Officers/employees deputed to the Board had option to accept the services of the Board and those who exercised their option in favour, became employees of the Board and their relationship with the Department i.e. the State Government stood terminated. Those who did not exercise their option also continued in the service of the Board but on deputation basis. A distinction therefore has to be drawn between two sets of officers/employees. If those who did not exercise their option and thus continued on deputation basis too are allowed the same position as their counterparts, who exercised their option, it would amount to doing violence to the spirit of the resolution. A distinction therefore has to be drawn between two sets of officers/employees. If those who did not exercise their option and thus continued on deputation basis too are allowed the same position as their counterparts, who exercised their option, it would amount to doing violence to the spirit of the resolution. Reading the resolution as a whole, I have no doubt in my mind that the status of the Officers/- employees continuing in the Board on deputation basis must be held to be different from their counter-parts who opted for the service of the Board, and thus those who remained on deputation basis cannot claim parity with them. Otherwise the very purpose of allowing them to remain in the Board "on deputation" would lose its meaning and object. The petitioner admittedly did not exercise such option and remained in service of the Board "on deputation". There is no dispute about this. In fact it is clear from the stand of the State Government, vide paragraph 8 of the first counter affidavit, that the petitioner still holds lien in the Agriculture Department. 8. The term lien has been defined under Rule 28 of the Bihar Service Code to mean "the title of a Government servant to hold substantively either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively". Rule 68 of the said Code provides that unless it is otherwise provided in these Rules i.e. Bihar Service Code, "a Government servant on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired to any other post." In other words, had the petitioner been substantively appointed in the service of the Board, say, by absorption on exercising his option in terms of first paragraph of the resolution dated 26.1.88, he would have acquired lien on the post in question under the Board and thereby the lien on the post in the Agriculture Department would have stood terminated. Thus a person cannot hold lien on two posts simultaneously. In fact, this is nobodys case. 9. Thus a person cannot hold lien on two posts simultaneously. In fact, this is nobodys case. 9. If that is the admitted case of the Board and the State Government that the petitioner was working under the Board on deputation basis and he all along held lien in the Agriculture Department, it would be difficult to uphold the stand of the petitioner and the Department that for want of post the petitioners services cannot be accepted in the Department. It may be that there is no post of Market Secretary as such, in the Agriculture Department after the transfer of the erstwhile Marketing wing of the Agriculture Department to the Bihar State Agriculture Marketing Board, but it does not mean that the petitioner cannot be repatriated to his parent department. Clearly, irrespective of the post which an employee may be holding in the borrowing department/organisation, on his return/ repatriation to his parent department, he goes on his substantive post held by him in the parent department. Clause (a) of Rule 71 of the Bihar Service Code would lend support to this view. The said Rule runs as under : "71 (a).A Government servants lien on a post may in no circumstances be terminated even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post." 10. The appointment of the petitioner as Market Secretary which is another plank of his case, in my opinion, has to be understood as co-terminus with the period of deputation. The power of the State Government to appoint Market Secretary for the Market Committee under Section 20(1) of the Act cannot be doubted but while considering the nature of such appointment and status of the appointee, the fact cannot be lost sight of that he is a mere deputationist. Being a deputationist, the subsequent appointment cannot confer upon him a higher status. As a matter of fact, it is the usual phenomenon that persons serving other department or organisation on deputation are granted higher position but that does not amount to his elevation in the parent service. The only difference in the instant case is that instead of the borrowing organisation, the parent department conferred upon the petitioner the higher status, but that was in view of the provision of Section 20(1) of the Act. The only difference in the instant case is that instead of the borrowing organisation, the parent department conferred upon the petitioner the higher status, but that was in view of the provision of Section 20(1) of the Act. But for that provision the State Government could not have made him Market Secretary under the Board, and if the Board had done it, upon his repatriation to the parent department, he would have gone on his substantive post. Thus the mere fact that the State Government appointed him as Market Secretary, in exercise of a statutory power, it would not mean that he became Market Secretary for all times to come. If as a deputationist his tenure in the Board could at any time be terminated, the appointment as Market Secretary cannot extend beyond the period of deputation. Thus the appointment as Market Secretary has to be treated as co-terminus during his tenure under the Board. Once he was repatriated to the parent department, his appointment also automatically came to an end. 11. As a matter of fact, in the facts and circumstances, I have grave doubt if the appointment of the petitioner as Market Secretary was not made in colourable exercise of powers. Admittedly, in the words of the Agriculture Production Commissioner himself, he was appointed on the post of Market Secretary Grade-B, considering "commendable and excellent work of the petitioner as special case". The so called commendable and excellent work is said to be the petitioners objection to decision of the two successive Chief Ministers to grant exemption in the matter of levy of market fee on sugar, sugarcane and molasses. It is said that even though two Chief Ministers successively passed orders on the file to exempt the said articles from market fee, the petitioner despite being a petty clerk, showed "courage" and opposed the exemption which finally found favour with the successor Chief Minister. To find out circumstances in which such promotion was given, the relevant file of the Agriculture Department was sent for, and the same was produced by the Government Pleader being File No. Vip. Vividh-1760-88. From perusal of the file it appears that the proposal to grant exemption from market fee on Sugar, Sugarcane and molasses was pending since 1981. Several representations had been made including one by Sugar Mills Association, pointing out that exemption had been granted in many States. Vividh-1760-88. From perusal of the file it appears that the proposal to grant exemption from market fee on Sugar, Sugarcane and molasses was pending since 1981. Several representations had been made including one by Sugar Mills Association, pointing out that exemption had been granted in many States. Apparently the question as to whether the Sugar, sugarcane etc. should be exempted was a vexed issue involving conflicting interests of the Industry on the one hand and Revenue on the other. The Sugar Mills had become sick and it was represented that for their revival it was necessary to give them some facilities. Naturally, any facility in the shape of exemption would be at the cost of revenue. Thus, while Sugarcane Department was in favour of exemption, the Agriculture Department was opposed to the move since it would have inevitably affected its revenue. From the file it appears that a decision to exempt sugarcane from 1987-88 crushing season was taken on 8.4.87. However, it could not be implemented for various reasons including pendency of a case in the Supreme Court. Meanwhile cross-views were expressed by different functionaries/Departments. High level meetings were held at different times. Finally, on 28.2.89 the then Chief Minister passed the order. However, before the formalities would be completed, such as consultation with the Finance Department, it appears, new Chief Minister took over and a note was put up to reconsider the earlier decision dated 26.2.89. Again, several rounds of discussions were held, but nothing materialised until 14.2.1990 when the next Chief Minister passed similar order as one passed on 28.2.89. The decision, however, was upturned on 22.6.90 by the next Chief Minister (after general elections). In the above background it is wholly ununderstandable as to how the petitioner could be credited with saving the Government and Board of annual recurring loss of Rs. 72 lacs on account of exemption from market fee on sugar, sugarcane etc. The petitioner as a dealing clerk may have put up some notes but it is too farfetched to say that he opposed the order of the two Chief Ministers to exempt the commodities from market fee. 72 lacs on account of exemption from market fee on sugar, sugarcane etc. The petitioner as a dealing clerk may have put up some notes but it is too farfetched to say that he opposed the order of the two Chief Ministers to exempt the commodities from market fee. Even if -in his notes he stated something of that kind that the exemption would result in loss of revenue, it is apparent that the note was in consonance with the consistent stand of the Agriculture Department or the Marketing Board that such exemption should not be granted. The petitioner thus merely pointed out something which was too obvious. A bogey however, was created with respect to his so called courageous act of opposing the decision of the Chief Minister and thus saving the Department or the Board of annual recurring loss of Rs. 72 lacs. 12. As stated above, the earlier decision to exempt the commodities from levy of market fee was reversed by the successor Chief Minister on 22.6.90. On 3.11.93 the petitioner filed a representation to grant him promotion as Market Secretary on the ground that he had saved the department of loss of 72 lacs by his "bold and courageous" act. On 16.6.94 the Additional Secretary, Agriculture Department requested the Managing Director of the Board to send his comments. On 13.7.94 the Additional Secretary sent reminder letter. On 18.7.95 office order was issued posting the petitioner as Market Secretary under the Board. The said order was modified on 5.8.95 to the effect that by the earlier order he had been promoted as Market Secretary Grade-B and he was to continue under the Board on deputation basis till further orders. 13. It is relevant to mention here that during this period the petitioner was working in the Agriculture Department. When I discovered this while perusing the file, I was not able to appreciate as to how being supposedly in the Board all along on deputation basis from the date of his appointment i.e. 19.1.74, the petitioner could work in the Department i.e. Agriculture Department under the State Government. The case was listed under the heading To be mentioned on 10.7.2002 for clarification in this regard. The case was listed under the heading To be mentioned on 10.7.2002 for clarification in this regard. I was informed that the petitioner came back to the Department sometime in the year 1988 and since then functioned as clerk in the Department until he was posted/promoted as market Secretary in the Board. The petitioners joining in the Agriculture Department in 1988 is not understandable to me at all. Admittedly he went to the Board on deputation on 19.1.74. If he was serving the Board on deputation, how could he return to his parent department without terminating the deputation? It was curious to find the description of the petitioner status in the Agriculture Department as a deputationist during the relevant period. If he was deputationist under the Marketing Board, he could not be deputationist in the Agriculture Department too. Apparently, though he worked in the Agriculture Department between 1988-95 he notionally remained on the deputation post under the Board and from there he received his salary etc. It is clear that he enjoyed the patronage of powers-that-be who ultimately found a device to appoint him as Market Secretary on the specious ground that it is he who had saved the department of annual loss of Rs. 72 lacs by his bold and courageous act. It was clearly a ploy to confer on him an advantage out of turn. In the facts and circumstances the submission of the counsel for the Board that the petitioner had influential and powerful patrons in the State Government through whom he acquired unauthorised promotion, appears to have substance. I wonder, having obtained so called appointment/promotion as Market Secretary in the manner mentioned above, the Court should favourably consider his claim for his continuance on the post until his superannuation from service. 14. If the petitioner admittedly functioned as office clerk between 1988-1995, it is not understandable as to what objection can the Department have to his adjustment on a suitable post after his repatriation. If the stand of the Department is that the entire marketing wing of the Agriculture Department comprising of category 8 employees stood transferred to the Marketing Board and therefore, the petitioner could not be adjusted/accommodated in the Department, it is not understandable as to how he was allowed to work between 1988-95. If the stand of the Department is that the entire marketing wing of the Agriculture Department comprising of category 8 employees stood transferred to the Marketing Board and therefore, the petitioner could not be adjusted/accommodated in the Department, it is not understandable as to how he was allowed to work between 1988-95. if the petitioners services in the Department could be accepted during that period, even without passing a formal order of recall, it is obvious that the borrowing department having returned his services, he cannot object to such repatriation nor the department can be allowed to raise any objection. 15. In the case of V.Sridharan Nair vs. State of Kerala, AIR 1986 SC 2201 , the petitioner, a Laboratory Attendant (the same post on which the petitioner herein was initially appointed) in Collegiate Education Department in the State of Kerala was deputed to City Improvement Trust. His deputation was extended from time to time. During the deputation period he was promoted as Upper Division Clerk (as in the instant case). Before the period of deputation ended, he made representation requesting the State Government to allow him to continue in the City Improvement Trust terminating his lien in the Collegiate Education Department. No order was passed by the Directorate of Collegiate Education or by the Government. The petitioner continued in the City Improvement Trust on deputation. Meanwhile, the City Improvement Trust was merged with the Kerala State Housing Board. On 29.3.72 an order was passed terminating his lien in the Department by the Collegiate Education Directorate on the ground of continuous absence from duty for more than 5 years under Rule 24 of the Kerala Service Rules (akin to Rule 76 of the Bihar Service Code). The Supreme Court relying, inter alia, on Rule 19(a) of the Kerala Service Rules struck down the order of termination. Rule 19(a) of the Kerala Service Rules runs as follows: "An Officers lien on a post may in no circumstances be terminated even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post." It will be seen that the Rule 71(a) of the Bihar Service Code, already quoted above, is pari materia Rule 19(a) of the Kerala Service Rules. Upholding the claim of the appellant in that case the Supreme Court observed that "to sustain the order would virtually mean to deny the petitioner his service in the parent department and throwing him to the mercies of the Housing Board". 16. Reference also may be made to a Bench decision of this Court in the case of Syed Mohammad Zeyaul Haque vs. The State of Bihar, 1991 (2) PLJR 698. In that case the petitioner was appointed as Subdivisional Clerk in the then Public Works Department. He was promoted as Junior Accounts Clerk and then Accounts Clerk there. When a work circle called State Family Welfare Bureau under the Health Department was created and the services of the Accounts Clerk were needed the petitioner opted to go to the said Bureau on deputation. After being relieved from parent department he joined the Bureau on 12.7.89. He was asked by the Road Construction Department to join the post of Sr. Accounts Clerk in the Bridge Design Circle by 25.7.89 failing which his lien on the post was to be terminated. The Executive Engineer of the State Family Welfare Bureau requested the Superintending Engineer of the Bridge Design Circle not to terminate the lien of the petitioner. However, on 25.7.91 the Additional Commissioner-cum-Secretary of the Health, Medical Education and Family Welfare Department of which the State Family Welfare Bureau was a part, returned the services of the petitioner with immediate effect to parent department i.e. Bridge Design Circle under the Road Construction Department with request to the Department to accept his joining. On 30.7.91 the Superintending Engineer of the Bridge Design Circle, Road Construction Department, informed the Additional Commissioner-cum- Secretary, Health Department that the petitioners lien in the parent department i.e. Road Construction Department stood terminated on 25.7.89 itself notwithstanding that the petitioner was relieved from the State Family Welfare Bureau. On 30.7.91 the Superintending Engineer of the Bridge Design Circle, Road Construction Department, informed the Additional Commissioner-cum- Secretary, Health Department that the petitioners lien in the parent department i.e. Road Construction Department stood terminated on 25.7.89 itself notwithstanding that the petitioner was relieved from the State Family Welfare Bureau. This Court noticed the relevant provisions of the Bihar Service Code and the aforesaid decision of the Apex Court in V. Sridharan Nair (supra) and held that had the petitioner, working in the State Family Welfare Bureau since 1982, been absorbed in the Bureau, his lien in the Bridge Design Circle of the Road Construction Department would have stood terminated under Rule 68 of the Bihar Service Code, but as it did not happen, the petitioners lien in the Bridge Design Circle of the Road Construction Department remained intact and there could not be automatic termination of his lien. The Court further held that the impugned orders amounted to petitioners removal from service. In the circumstances, while quashing letter of the Superintending Engineer of the Bridge Design Circle dated 30.7.91, he was directed to accept the joining of the petitioner on a post commensurate with his status in the Department forthwith. 17. The cases of both V. Sridharan Nair (supra) and Syed Md. Zeyaul Haque (supra), appear to be decided in almost similar circumstances. As a matter of fact, in the latter case the parent department had refused to accept the petitioners joining, though on different ground that his lien stood terminated, but on principle, the petitioner was granted relief on the ground that notwithstanding the long officiation in the deputee Department his lien in the parent department remained intact. The instant case stands on lesser footing from the petitioners point of view for the reason that even the Agriculture Department, unlike the above case admits that the petitioner has a lien in parent department. If that is so, I am not able to appreciate as to how his joining in the Department cannot be accepted. I have already stated above that the appointment of the petitioner as Market Secretary, besides being fortuitous in nature and made in colourable exercise of power, was co-terminus with deputation. 18. In the result, for the reasons stated above, I do not find any merit in the case of the petitioner. The writ petition is accordingly dismissed but without any order as to costs.