State Of Bihar v. Gopal Prasad,Arvind Kumar Sahi,Bipin Kumar Singh,Abdul Rahman,Harinarayan Jha,Md. Ainul Haque
2003-09-02
NAGENDRA RAI, R.S.GARG
body2003
DigiLaw.ai
Judgment Nagendra Rai, J. 1. All these six appeals are time-barred. After hearing learned counsel for the parties and taking into consideration the averments made in the limitation petitions, we are satisfied that good grounds have been made out to condone the delay in filing the appeals. Accordingly, the delay in filing the appeals is condoned and the limitation petitions stand disposed of. 2. The questions involved in ail the appeals are the same and as such they have been heard together and are being disposed of by this common order. L.P.A. Nos. 483/03 and 485/03 arose out of C.W.J.C. Nos. 9447/02 and 7910/02, respectively, [reported in 2003 (2) PLJR 493 ] which were disposed of by common order dated 20.2.2003. L.P.A. Nos. 482/03 and 502/03 arose out of C.W.J.C. Nos. 12364/02 and 12949/02, respectively, which were disposed of along with C.W.J.C. No. 12053/ 02 by a common order dated 26.2.2003. L.P.A. Nos. 492/03 and 510/03 arose out of C.W.J.C. Nos. 95/03 and 96/03, respectively which were disposed of by common order dated 31.3.2003. 3. The writ petitioner-respondents are, admittedly, employees of the Corporation and Undertakings of the State Government and they were deputed to the State service and by different orders, their deputations were cancelled, which were challenged in the aforesaid writ applications and the learned Single Judge by the aforesaid orders have quashed the orders of the State Government and directed them to continue on their posts of deputation as according to the learned Single Judge their repatriation will virtually amount to their dismissal from service. 4. The cases are falling in the two categories. So far as L.RA. Nos. 483/03 and 485/03, arising out of C.W.J.C. Nos. 9447/02 and 7901/02, respectively, are concerned, the appellants of the said appeals were deputed in the different District Treasuries in terms of the notification dated 7.10.1999, which provided for their deputation subject to their absorption in the State service in terms of the decision to be taken by the State Government. In other four appeals, the deputations of the appellants were made in view of the orders passed by the different authorities, which were cancelled by the impugned orders.
In other four appeals, the deputations of the appellants were made in view of the orders passed by the different authorities, which were cancelled by the impugned orders. The writ petitioner-appellants are Class III and Class IV employees of the Bihar State Sugar Corporation, Bihar State Small Scale Industries Corporation, Bihar State Pharmaceutical and Chemical Corporation, Bihar State Construction Corporation Limited, Bihar State Food & Civil Supplies Corporation, Bihar State Textiles Corporation, Bihar State Leather Corporation, Bihar State Cooperative Marketing Union Limited (BISCOMAUN). 5. The case of the writ petitioner- respondents of L.P.A. Nos. 483/03 and 485/ 03, arising out of C.W.J.C. Nos. 9447 and 7901, both of 2002, respectively, is that the State Government issued a notification on 7.10.1999, annexed as Annexure 1 to the writ petitions, laying down the terms and conditions of deputation of Class III employees of the Corporation and Undertaking in the Government Treasuries. From a perusal of the said notification, it appears that earlier the selection of employees for the Treasuries used to be made by the Directorate of Treasuries at the level of the Finance Department, but the same was abolished and the District Magistrates of the districts were made incharge of the Treasuries and the Government decided to employ persons on deputation in the Government Treasuries and laid down certain terms and conditions. One of the said conditions was that the Corporation/Undertaking should be under the control of the Bureau of Public Enterprises. The deputation will be for a period of three years and if their services will be found satisfactory then the question of their absorption will be considered. A procedure was also laid down for the selection of person on deputation. It is an admitted position that in terms of the aforesaid notification, the writ petitioner- respondents in both the cases were deputed in the Treasuries of Muzaffarpur district and Munger district, respectively. It is also an admitted position that the deputations were made in the year 2001. 6. So far as the cases of other writ petitioner-respondents are concerned, it is said that they were employees of the Corporation and Public Undertakings, which are statutory bodies of the State Government. They were not getting their salaries therein and were on the verge of death and as such their deputations were for the purpose of absorption in the Government service.
They were not getting their salaries therein and were on the verge of death and as such their deputations were for the purpose of absorption in the Government service. Their repatriation in terms of the Government policy at this stage will amount to dismissal of their service, or deprivation of life. 7. The stand of the respondent-appellants is that the Directorate of Treasuries was abolished in 1999 and the Treasuries were put under the control of the District Magistrates of the districts. By notification dated 7.10.1999, a decision was taken to take services of the employees of the Corporations/Undertakings on deputation. The Government appointed a Fitment Committee to recommend the revision of pay and allowance and also condition of service of the employees of the State Government on the basis of the employees of the Central Government. The Fitment Committee submitted a report with regard to the same as well as with regard to deputation and deputation allowance. After considering the said report, the Government took a decision that no employee would be taken on deputation from the autonomous bodies/institutions of the State Government. The decision of the State Government (Cabinet) was communicated to all the concerns by notification dated 16.11.1999, annexed as Annexure 33 to C.W.J.C. No. 12364/2002. The said decision was taken in supersession of all the earlier decisions taken by the individual department allowing deputation. Again the State Government issued letters reiterating the said decision and directed the concerned officers to cancel the deputations, which were in breach of the policy decision of the State Government dated 16.11.1999. As the writ petitioner-respondents were, admittedly, on deputation after 16.11.1999, the orders were passed cancelling their deputations. 8. Thus, the admitted position is that the writ petitioner-respondents are employees of the Corporations/Public Undertakings. It is also an admitted position that they were deputed in the Government departments by various orders after 16.11.1999. It is also an admitted position that the State Government (Cabinet) took a decision, which has been incorporated in the notification dated 16.11.1999, that there shall be no deputation of the employees of the autonomous bodies/Corporations/Undertakings in the State service. 9. Learned counsel for the writ petitioner-respondents had conceded before the learned Single Judge and also before this Court that so far as the deputations are concerned, they have no right to continue in the loanee department and they can be repatriated to the parent department.
9. Learned counsel for the writ petitioner-respondents had conceded before the learned Single Judge and also before this Court that so far as the deputations are concerned, they have no right to continue in the loanee department and they can be repatriated to the parent department. They however, submitted that as the Corporations/Public Undertakings have become defunct, the repatration of the writ petitioner-respondents will virtually amount to their dismissal from service and as such a direction was rightly given by the learned Single Judge by the impugned orders to allow them to continue in service on deputation. In this connection, reliance was placed on a recent judgment of the Supreme Court in the case of Kapila Hingorani V/s. State of Bihar, reported in 2003(3) P.L.J.R. 17, wherein certain direction has been issued by the Apex Court with respect to safeguarding the interest of the employees of the different Corporations/Undertakings on the ground that it is the duty of the State of Bihar to see that the life and liberty of the employees of the Corporations/Undertakings are safeguarded. 10. Admittedly, as stated above, the writ petitioner-respondents are the employees of the Corporations and Undertakings and they were on deputation in different departments of the State Government. The question as to whether the employees of other Corporations and Public Undertakings are to be deputed in the Government Department or not is a policy decision, which affects the finance of the State. The State Government (Cabinet) in the light of the report of the Fitment Committee has taken a decision vide notification dated 16.11.1999 that on employee of the autonomous bodies/Corporations/Undertakings would be taken on deputation in the State service. Thus, the said policy decision does not suffer from any legal infirmity and as such no individual department has power to depute any person in the State service after 16.11.1999. However, individual department made deputations even after the said policy decision and the same have been cancelled by issuance of the impugned orders by the State Government. The said decision cannot be said to be either arbitrary or mala fide. 11. A policy decision was taken to put the employees of the Corporations/Public Undertakings on deputation for three years in terms of the notification dated 7.10.1999.
The said decision cannot be said to be either arbitrary or mala fide. 11. A policy decision was taken to put the employees of the Corporations/Public Undertakings on deputation for three years in terms of the notification dated 7.10.1999. As such, any deputation made pursuant to the same prior to 16.11.1999 would be valid but after 16.11.1999, no deputation can be made in the Government Treasury in view of the subsequent decision of the State Government dated 16.11.1999. Admittedly, deputations in the Government Treasuries were also made after 16.11.1999 and the same were cancelled as being in breach of the aforesaid policy decision. Neither there is any order of the State Government nor has any document been produced by the learned counsel for the writ petitioner-respondents to show that at any time any decision was taken by the State Government to absorb them in service. In absence of any such direction/decision, no direction can be given for absorption of their services. The fact that the employees are not getting their salaries because the Corporations/Undertakings are sick is a different matter and on that ground the orders of repatriation of the writ petitioner-respondents to their parent departments cannot be held to be invalid and impermissible in law nor the repatriation will amount to their dismissal or removal from service. The question of payment of salaries to the employees of the Corporations/Public Undertakings is already pending before the Apex Court in the aforesaid case and directions have been issued and are being issued. Thus, the decision taken by the State Government to repatriate the services of the writ petitioner-respondents, whose deputations have been, admittedly, made in breach of its policy decision dated 16.11.1999, cannot be faulted on the ground of lack of power, arbitrariness or mala fide. 12. In the result, all the six appeals are allowed and the impugned orders passed by the learned Single Judge are set aside. R.S.Garg, J. 13 I agree.