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2006 DIGILAW 398 (PAT)

Pramod Kumar Pandey v. State Of Bihar

2006-05-01

RAMESH KUMAR DATTA

body2006
Judgment Ramesh Kumar Datta, J. 1. The petitioner has come to this Court for payment of arrears of salary as well as deputation allowances for the period after 30.4.2002 on which date he joined in the Bihar. State Water and Sewage Board pursuant to Government Notification dated 19.3.2002. 2. It is stated by the learned Counsel for the petitioner that during the pendency of the writ petition petitioner has already been paid his arrears of salary and is being paid current salary but no deputation allowance is being paid to him in terms of the Government of Bihar Finance Department Circular No. 4468 dated 16.8.1991 as amended by Memo No. 7469 dated 16.11.1999. Learned Counsel for the petitioner has also drawn attention to Annexure -11 which is Memo No. 713 dated 2.9.2004 whereby a Junior Engineer deputed to the Board from the Urban Development Department has been directed to be paid deputation allowance in terms of the said circular. 3. Learned Counsel fore the Board vehemently opposed the claim of the petitioner on the ground that his case does not stand on the same footing as that of the said Tarun Kumar Sharma because in the case of do the Government employee deputed from other department deputation allowance is being paid whereas those who are deputed from the Public Health Engineering Department they are treated as transferred employees in terms of sec. 17 of the Bihar State Water and Sewage Board Act, 1982. Learned Counsel for the State accepts, on the basis of the counter affidavit filed by him, that the petitioner is a deputationist but states that no liability for the payment of deputation allowance. If any can be imposed on the State Government. 4. So far as the stand of the counsel for the Board is concerned the same has to be rejected as it is based upon a wrong interpretation of sec. 17 of the Act. Sec. 3 of the Act provides that the State Government shall by notification in the official Gazette constitute a Board to be called Bihar State Water and Sewage Board Sub-sec. (2) of the said Section specifically provides that the Board shall be a body corporate by the said name having perpetual succession and a common seal and shall sue and be sued by the said name and shall have power to acquire hold or dispose of property. (2) of the said Section specifically provides that the Board shall be a body corporate by the said name having perpetual succession and a common seal and shall sue and be sued by the said name and shall have power to acquire hold or dispose of property. From the said provision it is evident that the Board is a legal person having aseparate legal identity from the State Government and for the said reason there cannot be a transfer of an employee of the State Government to the Board. Any such movement of employment between the State Government and the Board can only be by way of deputation. So far as the relevance of sec. 17 is concerned the said section speaks of the transfer of State Government employees on the appointed date to the Board on the same terms and conditions with an option to the employee concerned to either get absorbed in the service of the Board or to revert to the service of the State Government. The said section is a one time measure under the provisions of sec. 17 of the Act and can have no can have no relavance to the deputation of an employee like the petitioner in the year 2002. Hence, it can hardly be doubted that the case of the petitioners is one of deputation of State Government employee to a Board created and controlled by the State Government. That being the position the Circular dated 16.8.1991 and 16.11.1999 would be directly applicable to the case of the petitioner and he would be entitled to deputation allowance as laid down in the said circular. 5. In the result this writ petition is allowed and the respondent Board is directed to pay the deputation allowance to the petitioner from the date of his joining i.e. 30.4.2002 within a period of three months from the date of receipt/production of a copy of this order. In the facts and circumstances of the case, however, there shall be no order as to cost.