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2004 DIGILAW 357 (CAL)

PRADIP KUMAR ROY v. C. M. D. A.

2004-05-21

BHASKAR BHATTACHARYA

body2004
BHASKAR BHATTACHARYA, J. ( 1 ) THE judgment of the Court was as follows: by this writ application, the petitioners, five in number who were all appointed by the State of West Bengal and were sent to Calcutta Metropolitan development Authority (C. M. D. A.), have prayed fordirection upon the CMDA to absorb them in the service of C. M. D. A. permanently with all service benefits including promotional benefit. ( 2 ) THE following facts are not in dispute : a) The petitioners were all appointed by the Governor of West Bengal in Public Works (Road) Department and they were placed on deputation with the CMDA by the order of the Governor. The terms and conditions of such deputation are mentioned below :"i) The services of persons who immediately before the transfer held lien on or were appointed on probation to the permanent posts or were declared quasi-permanent or Govt. Servants with permanent status under Road Construction Circle No. VI in the P. W. (Roads) Department as shown in the statement (to allow) and their service in the posts to which they were appointed by the C. M. D. A. on transfer or to which they may subsequently be appointed or promoted substantively shall be continuous and treated as qualifying service for the purpose of pension. For these employees post will be retained under the P. W. (Roads) Department as shadow posts till such time as the incumbent would retire from service or finally opt for CMDA terms. The CMDA shall pay in respect of these employees contribution for pension under the relevant rules of the West bengal Service Rules, Part-l. ii) While these persons shall be subject to the control of the matters relating to conduct and discipline, they shall have the right of appeal to the state Government and none of them shall be removed or dismissed from service or reduced from substantive rank without orders of the Government. iii) None of these employees shall be granted extension of services except with the previous approval of the Government. iv) The leave of both gazetted and non-gazetted servants, who hold lien on the shadow posts or who have been declared quasi-permanent or govt. servants with parmanent status will be sanctioned by CMDA. The cmda will pay the actual leave salary and will not be required to pay and leave salary contribution to the same Govt. iv) The leave of both gazetted and non-gazetted servants, who hold lien on the shadow posts or who have been declared quasi-permanent or govt. servants with parmanent status will be sanctioned by CMDA. The cmda will pay the actual leave salary and will not be required to pay and leave salary contribution to the same Govt. The CMDA will, however, pay pension contribution for period of leave also. The leave accounts of the officers may in transferred to the CMDA who will maintain them. v) Pension of these Officer shall be sanctioned by the appropriate authority underthe Government in accordance with the West Bengal Service (Death-cum-Retirement benefit) Rules, 1971. vi) The statement containing the details of the employees mentioned in Para-l, namely, their names scales of pay and pay drawn on 1/11/73 i. e. the date of transfer from Govt. to CMDA, will be sent separately. vii) The services of all the temporary employees' with less than 3 years' services as on the date of transfer and the work-charged establishment are placed at the disposal of the CMDA for appointment in identical posts which such employees and establishment were holding; subject to the terms and conditions specified in the Govt. resolution cited above. This has the concurrence of the Finance Department. Yours faithfully, sd/-lllegible, 341/10/73 secretary"b) It further appears from record that since then the petitioners have been working in CMDA for the last 30 years or more and they have also been given promotion in the CMDA. c) It appears from letter dated 29th April, 1986, issued by the Deputy secretary, Government of West Bengal, that the petitioners and two other employees were selected along with others for appointment to the higher post carrying higher scale of pay under CMDA without the consent of the government and on their appointment to the higher post by CMDA, according to the Government of West Bengal, they became employee of cmda and the Government refused to take back those employees on repatriation. d) Ultimately, the State Government did not take back the petitioners from deputation and at the same time, the CMDA also refused to accept! the petitioners as their employee. It appears that the petitioner are all; willing to be absorbed in the CMDA but the CMDA had refused to absorb them on the ground that the petitioners are "not fit". d) Ultimately, the State Government did not take back the petitioners from deputation and at the same time, the CMDA also refused to accept! the petitioners as their employee. It appears that the petitioner are all; willing to be absorbed in the CMDA but the CMDA had refused to absorb them on the ground that the petitioners are "not fit". ( 3 ) ULTIMATELY, the petitioners have come up with the instant writ application thereby claiming absorption in CMDA. ( 4 ) THIS application is opposed by CMDA and in their affidavit-in-opposition, cmda has asserted that they have decided not to absorb the petitioners in cmda as the Selection Committee found them unfit. It is, however, admitted that two other persons who were also sent to CMDA on deputation, were absorbed in cmda as, according to the Selecting Authority, those two persons were suitable. ( 5 ) THEREFORE, the only question that arises for determination in this writ application is whether the petitioners have right to claim absorption in the CMDA although they were sent to CMDA on deputation by their employer viz. State of west Bengal. ( 6 ) MR. Ghosal, the learned Counsel appearing on behalf of the petitioner, submits before this Court that his clients are in a precarious condition, inasmuch as the State Government who employed the petitioners and who sent the petitioners on deputation, has refused to take them back and at the same time, the CMDA has refused to absorb them in CMDA. Mr. Ghosal contends that after serving in CMDA for the last 30 years, if they are not absorbed on the ground that they were "not fit", the same will cause miscarriage of justice and the petitioners will get no benefit. of their service although they diligently worked in CMDA and even were considered for promotion and got promotion. Mr. Ghosal further contends that the CMDA now cannot refuse to absorb them on the ground that they are unfit. According to Mr. Ghosal, once a person has been promoted to a higher post, it necessarily follows that he is a fit person and as such the absorption cannot be refused on the aforesaid ground. ( 7 ) MR. Mr. Ghosal further contends that the CMDA now cannot refuse to absorb them on the ground that they are unfit. According to Mr. Ghosal, once a person has been promoted to a higher post, it necessarily follows that he is a fit person and as such the absorption cannot be refused on the aforesaid ground. ( 7 ) MR. Panja, the learned Counsel appearing on behalf of the CMDA, has vehemently opposed the prayer of the petitioners and has contended that a deputationist has no right to be absorbeb in the post of deputation. According to mr. Panja, the petitioners being employed by the State Government and the state Government having sent them on deputation, it is the duty of the State government to take them back. ( 8 ) THE State respondents were subsequently added in this writ application but no affidavit-in-opposition has been filed. ( 9 ) MR. Sridhar Panja, however, appeared on behalf of added respondent with Mr. Rajdev Biswas and has simply relied upon the decisions of the Supreme court in the case of K. Phani Ramesh v. Deputy Director, Novoday Vidyalay and others reported in 2002 (9) SCC 506 and also in the case of Mahesh Kumar parmer and Others v. S. L G. of Police and Others reported in 2002 (9) SCC 485 and has submitted that this Court should follow the principles laid down in those decisions. ( 10 ) THEREFORE, the only question that arises for determination in this writ application is whether the petitioners are entitled to get a direction upon CMDA to absorb the petitioners in CMDA. ( 11 ) THE law relating to right of the deputationist is now well settled. There is no dispute as regards the proposition of law that long continuance in borrowing department confers no enforceable right on deputationist for permanent absorption in the borrowing department unless there is specific statutory rule conferring such right. ( 12 ) IN the present case, it appears that Calcutta Metropolitan Development authority (Recruitment) Regulations, 1974 provides for absorption of employees obtained on deputation. According to such regulation, notwithstanding anything contained in the regulation, the appointing authority may in the exigencies of work absorb in the service of the authority an employee obtained on deputation in terms of Regulation 4. According to such regulation, notwithstanding anything contained in the regulation, the appointing authority may in the exigencies of work absorb in the service of the authority an employee obtained on deputation in terms of Regulation 4. However, an employee on deputation should not be absorbed in a post superior to the one held by him immediately prior to such absorption. There is a special committee appointed in terms of regulation forthe purpose of considering suitability of the deputationists for absorption. It appears from record that two of the seven employees of the West Bengal Government have already been absorbed but the petitioners are the five who have not been absorbed on the ground that the selection committee found them "not suitable". ( 13 ) IT, however, appears from record that no specific reason has been assigned why the petitioners are not suitable, although they have been given promotion on deputation. It appears from the Division Bench decision of this court in the case of CMDA and Anotherv. Kishori Mohan Ghosh reported in 1982 (2) CHN 17 that the transferee deputationist although have shadow lien in the parent departments from which they have been transferred to CMDA, cannot now go back to the parent departments inasmuch as for all practical purposes the same have been abolished in view of "one umbrella scheme" of the Government of West Bengal. So CMDA now consists of three kinds of personnel (1) direct recruit, (2) regular deputationist and (3) transferee deputationist. ( 14 ) SINCE the regulation gives a right to be absorbed in CMDA in favour ot the petitioners, the petitioners can legitimately complain before this Court that their case of absorption has not been properly considered. ( 15 ) I find substance in the contention of Mr. Ghosal, the learned Advocate appearing on behalf of the petitioners, that simply by. saying 'not fit', the case of the petitioners for absorption cannot be rejected when it appears that there is no allegation against the petitioners in course of their service in CMDA for the last 30 years. Moreover, the CMDA authority itself having found the petitioners suitable for promotion it, prima facie, follows that the petitioners are fit persons to be absorbed in CMDA. Moreover, the CMDA authority itself having found the petitioners suitable for promotion it, prima facie, follows that the petitioners are fit persons to be absorbed in CMDA. It appears from the affidavit-in-opposition used by CMDA that no specific deficiency of the petitioners could be placed before this Court even the manner of consideration for absorption is not reflected from the materials) placed before this Court. The Selecting Authority did not resort to any system of marking wherefrom one can ascertain the assessment of the Selection Committee about the petitioners. ( 16 ) IN view of the aforesaid fact, I propose to dispose of this writ application! by directing the Selecting Authority to reconsider the case of absorption of the petitioners in CMDA on the basis of their performance for the last 30 years. If they are of the view that the petitioners are not fit, in that case, specific reason must be assigned pointing out the short-comings of the petitioners. This Court is quite conscious that in the matter of selection or absorption, ordinarily, the employer is not required to give specific reason, but after taking into consideration the fact that they have been working in CMDA for the last 30 years and they arej at the fag end of their service career and they have also been given promotion, the respondent authority must disclose the deficiency of the petitioners at least to some details why they are inferior to the other regular employees or those who have already been absorbed. ( 17 ) IT appears from record that the State Government, the parent department, is not willing to take the petitioners back. ( 18 ) UNDER such circumstances, by applying the decisions cited by Mr. Panja appearing on behalf CMDA I hold that in the event the Selecting Authority finds that the petitioners are not suitable for absorption and to that effect specific reasons are assigned, the State Government shall be bound to take back the petitioners in their parent department and they should be given all the service benefits as if they have performed their duties all along in the State Government. ( 19 ) THE writ application is, thus, disposed of with the above direction. The selecting Authority of the CMDA are directed to take decision as regards absorption of the petitioners afresh positively within one month from the date of communication of this order. ( 19 ) THE writ application is, thus, disposed of with the above direction. The selecting Authority of the CMDA are directed to take decision as regards absorption of the petitioners afresh positively within one month from the date of communication of this order. ( 20 ) THE writ application is disposed of with the above direction. In the facts and circumstances, there will be, however, no order as to costs.