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2003 DIGILAW 516 (PAT)

Md. Shamim v. State Of Bihar

2003-05-01

CHANDRAMAULI KR.PRASAD

body2003
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for quashing the order dated 21.12.2002 whereby the service of the petitioner has been returned to his parent organisation, i.e., Bihar State Agriculture Development Corporation. Further prayer made by the petitioner is to quash the consequential order dated 3.1.2002 whereby the petitioner has been relieved to join at the parent organisation. Further prayer of the petitioner is for a direction to absorb him in the service under the State Agriculture Marketing Board and for grant of revised pay scale. 2. Short facts giving rise to the present application are that the petitioner was initially appointed as Accounts Assistant in the Bihar State Agro Industries Development Corporation, hereinafter referred to as the Corporation w.e.f. from 16.1.1970. The Corporation incurred heavy loss in the year 1981-82 and the Chief Secretary of the State in order to mitigate the hardship of the employees of the Corporation, by letter dated 24th of May, 1984 (Annexure-4) addressed to all the Secretaries of the State Government and Managing Directors of the Corporation, directed that againstthe sanctioned vacant posts, no direct recruitment be made and the surplus employees of the Corporation be considered. The Additional Secretary to the Government in the department of Agriculture, by its teleprinter message dated 25.7.1984 (Annexure-5), referred to the letter of the Chief Secretary dated 24.5.1984 and directed the Managing Director of various Corporations including the Bihar State Agriculture Marketing Board, hereinafter referred to as the Board, to fill up the vacant posts from the surplus employees of the Corporation. In pursuance of the aforesaid decision, by order dated 24.11.1987, petitioner as also one Bishwanath Chandra were deputed to work as Accountants in Board and while doing so, it was made clear that they shall not be entitled to any deputation allowance. In the light of the aforesaid order, petitioner as also aforesaid Bishwanath Chandra were relieved by the Corporation by its memo dated 22.12.1987 (Annexure-6/1). Petitioner thereafter joined as Accountant in the Board on 22.12.1987. The Board, by its order dated 2.2.1998 (Annexure-7), granted him the scale of pay of the Accountant w.e.f. 22.12.1987. By order dated 7.2.1990 (Annexure-8), petitioner was given time bound promotion w.e.f. 16.1.1980 in the scale of pay of Rs. 850-1360. 3. Petitioner thereafter joined as Accountant in the Board on 22.12.1987. The Board, by its order dated 2.2.1998 (Annexure-7), granted him the scale of pay of the Accountant w.e.f. 22.12.1987. By order dated 7.2.1990 (Annexure-8), petitioner was given time bound promotion w.e.f. 16.1.1980 in the scale of pay of Rs. 850-1360. 3. It is relevant here to state that Bishwanath Chandra who was also an employee of the Corporation and was appointed in the Board on deputation along with the petitioner, his service was regularised by order dated 31.12.1997 (Annexure-11/1) but the petitioner was left out. While the petitioner was working in the Board, by the impunged order dated 21.12.2002 (Annexure-1), his service was returned to the Board and by memo dated 31.1.2003 (Annexure-1/1), he was relieved by the Board to join the Corporation. 4. It is the stand of the petitioner that the Corporation is virtually non-existent and sending the petitioner back to the Corporation, in sum and substance, will lead to termination from service. It has been pointed out that appointment of the petitioner on deputation is not a case of ordinary deputation but adjustment of the surplus employees of the Corporation and as such, his service ought not to have been returned to the Corporation. It has also been pointed out that Bishwanath Chandra, who was also appointed on deputation basis, like the petitioner and is junior to the petitioner, has been retained whereas the petitioner has been sent back to the parent department. 5. Counter affidavit has been filed on behalf of respondent nos. 2 to 5 in which the assertions of the petitioner have not been denied but their stand is that deputationist has no right to be absorbed and the Board has right to return the services of the petitioner. 6. Mr. R.N. Mukhopadhyaya, appearing on behalf of the petitioner submits that the case of the petitioner cannot be treated as an ordinary case of deputation and sending the petitioner back to the parent department, in sum and substance, amounts to termination of his service. He also points out that the person junior to the petitioner having been retained by the Board, the action of the respondent Board to send back the petitioner to his parent organisation, is highly discriminatory. In support of his submission, he has placed reliance on a judgment of this Court in the case of Amar Nath Singh and ors. He also points out that the person junior to the petitioner having been retained by the Board, the action of the respondent Board to send back the petitioner to his parent organisation, is highly discriminatory. In support of his submission, he has placed reliance on a judgment of this Court in the case of Amar Nath Singh and ors. V/s. The State of Bihar and Ors. reported in 2003 (1) P.L.J.R. 778 and my attention has been drawn to the following passage from the said judgment : "It is obviously not the case of the State Government that the regular appointment is made. In that view of the matter, the services of the petitioner cannot be sent back to the Corporation which is virtually non-existing Corporation where the petitioner has been declared surplus. Apart from that the State Government has not answered why only the petitioner has chosen for such deputation and sent back to the Corporation and another person who was sent along with the petitioner namely, Mr. K.R Yadav is still continuing on deputation. This shows that the State Government is acting in discriminatory and pick and choose manner." 7. Mr. Mukhopadhyaya points out that the aforesaid judgment has been affirmed by a Division Bench of this Court in the case of the State of Bihar and others V/s. Amar Nath Singh and others reported in 2003 (1) P.L.J.R. 783 . 8. Mr. Shashi Bhushan Kumar, however, appearing on behalf of respondent nos. 2 to 5 submits that a deputationist has no vested right to continue on deputation and the Board has right to return the service of deputationist, whenever it desires. In support of his submission, learned counsel has placed reliance on a judgment of the Supreme Court in the case of Kunal Nanda V/s. Union of India and others reported in (2000) 5 SCC 362 and my attention has been drawn to the following passage from paragraph 6 of the said judgment : "The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and get absorbed in the department to which he had gone on deputation." 9. Mr. Mr. Kumar has also drawn my attention to a Division Bench judgment of this court dated 9.8.2002 passed in L.P.A. No. 866 of 2002 (Triloki Nath Singh V/s. The State of Bihar and others) and my attention has been drawn to the following passage from the said judgment : "It is well known rule of the law that both the department i.e. the parent department and the department where the service of the employee is deputed have right to recall or return the service of such employees" 10. Having appreciated the rival submissions, I find substance in the submission of Mr. Mukhopadhyaya. It is relevant here to state that the case of the petitioner is not covered under the ordinary terms of deputation. He was an employee of the Corporation and the State Government directed all the Corporations of the State to absorb the services of the employees of the Corporation in which the petitioner was working. The aforesaid decision was taken by the State Government on account of the fact that the Corporation in which the petitioner was working, had gone in loss and virtually non-functional. To mitigate the hardship of the employees of the Corporation, petitioner as also other employees were appointed on deputation basis in different Boards and Corporations. Hence, the case of the petitioner cannot be said to be a case of ordinary deputation in which the department in which such employee is working or from where he has gone, shall have the right to send or recall such employee. In that view of the matter, the decision of the Supreme Court in the case of Kunal Nanda (supra) and of the Division Bench of this court, referred to above, which related to the right of the employee in a case of ordinary deputation was considered, are clearly distinguishable. The view which I have taken finds favour from the judgment of this court in the case of Amar Nath Singh (supra) which has been affirmed by the Division Bench of this court in the case of The State of Bihar & Ors. (supra). 11. In view of what has been found above, the impugned order cannot be allowed to stand. It is relevant here to state that the matter of absorption of the petitioner is pending whereas the person juniors to him has been absorbed. (supra). 11. In view of what has been found above, the impugned order cannot be allowed to stand. It is relevant here to state that the matter of absorption of the petitioner is pending whereas the person juniors to him has been absorbed. In case, the respondent Board believes that the services of the petitioner is not fit to be absorbed for any reason or any legal ground, nothing shall prevent them from terminating the petitioners deputation after giving opportunity to him. However, this exercise must be done within six months from the date of receipt/production of a copy of this order. 12. So far as the prayer for grant of revised pay scale is concerned, same gives the petitioner a separate cause of action and I am not inclined to go into this grievance of the petitioner in the present application. Petitioner, if so advised, may initiate an appropriate proceeding for the said relief. 13. In the result, the application is allowed with the observations made above. The impugned orders dated 21.12.2002 (Annexure-1) and the memo dated 3.1.2003 (Annexure-1/1) are quashed and the petitioner is directed to be reinstated in service forthwith with all consequential benefits. No costs.