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2005 DIGILAW 436 (ALL)

P. K. BHATNAGAR v. STATE OF U. P

2005-03-07

JAGDISH BHALLA, KAMAL KISHORE

body2005
JAGDISH BHALLA, J. ( 1 ) RESERVED ( 2 ) THE grievance of the petitioner in the instant writ petition is that he was selected and appointed as Research Assistant in the Planning Institute in substantive capacity in Mach, 1978 and in the year 1984, the petitioner was sent on deputation to the U. P. Rajkiya Nirman Nigam Ltd as Assistant Resident engineer but at present neither he is being treated as the employee of the Planning Department nor of the Nirman nigam, as a result whereof, the petitioner is deprived of his service benefits and his entire service career has become blurred. ( 3 ) BRIEFLY stated facts of the case are that the petitioner was appointed as Research Assistant (Engineering) in the Planning institute in March 1978. Thereafter, he was selected and appointed as Research Officer (Engineering) vide order dated 13. 5. 1982. Pursuant to the circular dated 2. 3. 1982, issued by the U. P. Rajkiya Nirman Nigam ( in short referred to as the nigam ), the petitioner applied for appointment on deputation as Assistant Resident Engineer (Electrical ). On being selected, the petitioner was relieved on 8. 6. 1994 and on 13. 6. 1984, the petitioner joined on the deputation post. It may be mentioned here that the post of Assistant Resident Engineer wasre-designated as Resident Engineer (Electrical) with effect from 7. 8. 1985. During the period, when the petitioner was working on deputation post, his services on the post of Research assistant (Engineering), in his parent department, were regularized by the order dated 5th November 1985. In the meantime, the parent department wrote a letter to the petitioner that he will not be entitled for increment, pension, gratuity etc. from the parent department and on 16. 1. 1988, the petitioner wrote a letter to the Nigam informing that the petitioner has not been treated on deputation and the Nigam is required to remit leave salary and pensionary contribution. ( 4 ) DURING the pendency of the writ petition, by an order dated 14. 9. 1994, the Managing Director the opp. party no. 3, repatriated the petitioner to the Planning Department and directed him to hand over the charge to one Sri A. K. Tiwari. On 23. 3. 1995, a division Bench of this Court passed an order, which reads as under:"the affidavits have been exchanged between the parties. 9. 1994, the Managing Director the opp. party no. 3, repatriated the petitioner to the Planning Department and directed him to hand over the charge to one Sri A. K. Tiwari. On 23. 3. 1995, a division Bench of this Court passed an order, which reads as under:"the affidavits have been exchanged between the parties. List writ petition for final disposal in week commencing from24. 4. 1995. In the meantime we direct the Managing director, U. P. Rajkiya Nirman Nigam, Lucknow to pay the salary of the petitioner which he was drawing last and permit him to continue on the post he was working. The petitioner would be entitled to his salary from the date, he resumes his duties and would be entitled to the payment of salary alongwith allowances that he was being paid earlier. The ultimate adjustment of this amount would be considered at the time of final disposal of the writ petition. " ( 5 ) LEARNED counsel appearing for the Nigam while advancing his arguments submitted that the petitioner is a deputationist and was allowed basic pay of his parent department plus 20% deputation allowance, but by a letter dated 16. 11. 1988, the State Planning Institute informed the nigam that the petitioner has not been treated to be a deputationists, while the Nirman Nigam reiterated its stand that the petitioner is working in Nirman Nigam on deputation. The petitioner in his supplementary rejoinder affidavit, dated nov. 22,1994 has mentioned in paragraph 9 that he was working on adhoc basis in the Planning Institute at the relevant time and was not a permanent employee hence the services of the petitioner could not be made available to the nigam on deputation as provided in the G. O. dated16. 2. 1993. But as the Nigam insisted the Planning Department to relieve the petitioner and the petitioner was also willing to be appointed to the services of Nigam, the petitioner was ultimately relieved to join in the services of the Nigam. The Administrative Officer Sri R. N. Singh of State planning Institute filed an affidavit dated 8th Feb. 1995, para 3 whereof reads as under:"it is submitted that Sri P. K. Bhatnagar, the petitioner is appointed in Rajya Niyojan Sansthan, U. P. Naveen Prabhag on the post of Research officer ( Abhiyantaran) since 14. 5. 82 on adhoc basis. The Administrative Officer Sri R. N. Singh of State planning Institute filed an affidavit dated 8th Feb. 1995, para 3 whereof reads as under:"it is submitted that Sri P. K. Bhatnagar, the petitioner is appointed in Rajya Niyojan Sansthan, U. P. Naveen Prabhag on the post of Research officer ( Abhiyantaran) since 14. 5. 82 on adhoc basis. The petitioners lien is with the Institute, namely Rajjya Niyojan Sansthan, U. P. Lucknow while he has been sent on deputation in the Rajkiya Nirman Nigam Ltd, which is quite clear after the perusal of the G. O. No. 3/2 (7) /82 -T. C. dated 8thjune 1984 (Annexure nao. 2 to the writ petition), so in this way, the petitioner is the employee of the Rajya Niyojan Sansthan, U. P. "from the record it also appears that in the meantime the post of the petitioner was re-designated as Additional Project manager (Electrical) vide order dated 2. 3. 1994. In September 1997, a supplementary counter affidavit on behalf of State of u. P. (opp. party no. 1) and Director Samanya Prashakshan ( opp. party no. 2) was filed by one Sri L. N. Garg, Administrative officer. In this affidavit, the opp. party no. 1 and 2 took altogether a different stand and stated that it was wrongly presumed that the lien of the petitioner is still being maintained in the State Planning Department U. P. and accordingly, earlier affidavits were filed. The relevant paragraph reads as under: ( 6 ) THAT it is worthwhile to mention that the petitioner has never been treated as on deputation, hence his papers pertaining to pension gratuity yearly increment, leave encashment etc were returned by the State Planning Department. ( 7 ) THAT as the petitioner was appointed on adhoc basis on the post of Research Officer of the Planning Department, there is absolutely no question of any lien being maintained against any post in the Government and the said Nigam is at likely to grant all the service benefits to the petitioner in accordance with the procedure being followed by it and the State Planning department or the State Government has no concern to it. ( 8 ) THAT it is thus apparent that initially the petitioner having been appointed to the services of the Nigam is continuing as an employee of the Nigam and he is entitled to all service benefits from the Nigam only. ( 8 ) THAT it is thus apparent that initially the petitioner having been appointed to the services of the Nigam is continuing as an employee of the Nigam and he is entitled to all service benefits from the Nigam only. He can not claim any service benefits from the Planning Department. ( 9 ) THUS the sole question involved in the writ petition is as to whether the petitioner is an employee of the Planning department or is an employee of the U. P. Rajkiya Nirman nigam Ltd. where the petitioner is working since 1984. It is really unfortunate that the State Government and the Nirman nigam, which is fully controlled and managed by the State government, have not made any sincere efforts to settle the controversy and instead both of them dribbled the petitioner with their stick. Firstly, the State Government took the stand that the petitioner was sent on deputation and his lien is with the State Planning Institute. Lateron, it took a summersault and filed affidavit that the State Planning Institute or the State government has no concern and the petitioner is an employee of the Nigam. ( 10 ) IN the case of State of Punjab Vs. Inder Singh and others (1997) 8 SCC 372 , the Honble Supreme Court has observed that whether the transfer is out side the normal field of deployment or not is to be decided by the authority who control the service of post from which the employee is transferred. In short the facts of the aforesaid case of Inder singh (supra) are that the respondents were Constable in the police Department and later deputed to the Criminal investigation Department of Punjab Police. During the course of their deputation, they earned promotion on adhoc basis and some of the respondents reached even the rank of adhoc Sub-Inspector. After several years, (about 20 years) they were sought to be repatriated to their parent department, where they had to go back as Constable or Head Constable, the supreme Court in paragraph 20 of the report observed as under:"it is in fact an admitted position that Constables on deputation to CID have reached higher ranks and retired from CID in those ranks. A hope, though not true, is instilled in officers like the respondents that they would continue in the CID holding higher ranks till the age of superannuation. A hope, though not true, is instilled in officers like the respondents that they would continue in the CID holding higher ranks till the age of superannuation. The conduct of the appellants of now suddenly asking the respondents to go back to their parent departments when they have put in best years of their lives in the CID would appear to be rather unjust. It would have been more appropriate for the appellant to repatriate the respondents after the expiry of the initial period of deputation or at least they should have been told the consequences of their continuing on deputation and sudden repatriation. " ( 11 ) LEARNED counsel for the petitioner in support of his contention that he has worked for several years on deputation in the Nigam but neither he is being treated on deputation by the borrowing department nor the parent department is treating him to be his employer, has relied upon 1992 (4) SCC 725 ; Ram Prakash Makkar Vs. State of Haryana and others and 1999 (8) SCC; 381; Rameshwar Prasad Vs. Managing director, U. P. Rajkiya Nirman Nigam. ( 12 ) BEFORE deciding the question involved in the present writ petition, we would like to mention that by the order dated 26. 9. 2003, the petitioner was suspended by the State government for certain irregularities committed by him while working in the Nirman Nigam. However, we deliberately refrain ourselves from entering into this aspect of question whether the State Government was right or wrong in placing the petitioner under suspension or the State Government was authority competent to place the petitioner under suspension as the same is not under challenge in the present writ petition. ( 13 ) HAVING examined the submissions made by the rival parties and the case law cited by the parties, we are of the view that petitioner being an adhoc employee of the State planning Department, his appointment in the Nigam was an appointment by transfer and not by deputation because the government Order dated 16. 2. 1983 lays down in clear words that in case a Government employee applies for selection under a new employer and is selected and appointed under the new employer, then the provisions relating to deputation would not be applicable and he will be treated to be employee of the new employer. 2. 1983 lays down in clear words that in case a Government employee applies for selection under a new employer and is selected and appointed under the new employer, then the provisions relating to deputation would not be applicable and he will be treated to be employee of the new employer. It is in this backdrop that the State government and the Planning Institute filed an affidavit stating therein that it was wrongly presumed that the lien of the petitioner is still maintained in the Planning Department and amended their earlier affidavit saying therein that the petitioner is an employee of the Nigam. The Planning department even had cancelled the order by which he was regularized. ( 14 ) PETITIONER is working in the Nigam since 1984, and the present writ petition was filed after eight years, praying inter-alia for payment of salary of the post of Resident Engineer (Electrical) and to treat him as a regular employee of the nigam. The Nigam sought to repatriate the petitioner by the order dated 14. 9. 1994 but a Division Bench of this Court vide order dated 23. 3. 1995 directed the Nigam to allow the petitioner to continue on his post and pay salary. This order of directing the Nigam to allow the petitioner to work in the nigam perhaps was passed considering the long service of the petitioner in the Nigam and balance of convenience. The petitioner on account of various interim orders, passed by this court, is still continuing in the Nigam and as such, we are not impressed by the arguments advanced by the counsel for the nigam that the petitioner came on deputation and his request for absorption in the services of the Nigam has been rejected and as such, no legal right accrues to the petitioner for continuing in the Nigam. ( 15 ) WE are conscious of the fact that an employee on deputation has no right to be absorbed in the service, where he is working on deputation, but in some cases, depending upon the statutory rules, a person may be allowed to be absorbed in the borrowing department. U. P. Absorption of government Servants in Public Undertaking Rules 1984 provides that generally a person should not be permitted to remain on deputation for more than five years. These rules are applicable to the deputationist from the other public undertakings or instrumentality of State. U. P. Absorption of government Servants in Public Undertaking Rules 1984 provides that generally a person should not be permitted to remain on deputation for more than five years. These rules are applicable to the deputationist from the other public undertakings or instrumentality of State. The power of absorption, no doubt, is discretionary but is coupled with the duty not to act arbitrary or at the whims or caprice of an individual. However, from the perusal of the facts and the correspondence between the Nigam and the Planning department of the State Government, it is established that the appointment of the petitioner is by way of transfer and not on deputation. ( 16 ) IN case, we accept the contentions of the Nigam, then result would be that petitioner would be in air as the State government has already taken a decision that the petitioner is an employee of the Nigam and the State Government or the planning Department has no concern. In simple words, we can say that he would be out of employment. Considering the equity and balance of convenience, it would be in the fitness of things that, if the petitioner is allowed to work in Nigam. If the impugned order is viewed in the light of aforesaid, it could be said that the rejection of regularization/absorption of the petitioner by the respondent no. 3 is absolutely arbitrary and without consideration of material on record because the state Government had already taken decision and filed affidavit indicating that the Planning Department or the State government has no concern with the petitioner. Needless to say that fair play is the very essence of the State authorities and it would have been better had the State Government and its instrumentality i. e. Nigam would have settled the matter across the table instead of throwing ball in each other courts. Every human law contains an aspiration towards ideal justice or an approximation to ideal justice. Principle of equity represents the conscience of law, and a moral correction of law in order to accord more with justice. Equity means that no wrong should go un-redressed if it is capable of being remedied by courts. Every human law contains an aspiration towards ideal justice or an approximation to ideal justice. Principle of equity represents the conscience of law, and a moral correction of law in order to accord more with justice. Equity means that no wrong should go un-redressed if it is capable of being remedied by courts. Justice oriented approach as is the present trend in Indian jurisprudence shall have to be read as an inbuilt requirement of the basic concept of justice, to wit, the doctrine of natural justice, fairness, equality and rule of law. ( 17 ) TAKING the holistic view of the matter and the equity, it would be proper if the petitioner is treated to be an employee of the Nigam, where the petitioner has put in best years of his life (about 20 years) and it would be unjust and harsh if he is thrown out of employment. ( 18 ) ACCORDINGLY, the order dated 14. 9. 1994 is hereby quashed and the opposite party no. 3 is directed to treat the petitioner to be employee of Nigam and allow him all the benefits of the post as the petitioner is working and discharging his duties of the post of Additional Project manager (Electrical ). The writ petition stands decided accordingly. There will be no order as costs. .