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2006 DIGILAW 640 (PAT)

Satyendra Kumar Singh v. State of Bihar

2006-07-26

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ORDER Heard counsel for the parties. 2. All these writ applications since involve common questions of facts and law, the same were heard together and are being disposed of by this common order. 3. The petitioners of all these writ applications, employees of Bihar State Cooperative Marketing Union Ltd. (hereinafter to be referred to as "Biscomaun") in Engineering Wing, were sent on deputation in Urban Development Department and Science & Technology Department, Government of Bihar, where till date they are continuing. 4. The petitioners have prayed for issuance of a writ of mandamus commanding upon the respondents not to repatriate them to their parent Department, i.e. Biscomaun or to absorb them permanently in the concerned Departments, where they are continuing by virtue of the orders of dii1utation on the ground that Biscomaun is not viable to maintain them and it is virtually at the verge of liquidation. 5. The petitioners, as it appears from the pleadings of the parties, were sent on deputation in different Departments of the Government of Bihar, as referred to above, sometime in Nineteen Nineties as per the policy decision of the State Government, as recommended by High Level Committee constituted by the State of Bihar. 6. Counsel for the petitioners in sum and substance submitted that the petitioners were sent on deputation by way of a rehabilitation plan/scheme as their parent Department i.e. Biscomaun, was at the verge of liquidation. The State Government, owing to the inviability and particularly the financial condition of the Biscomaun, constituted a High Level Committee in early Nineteen Nineties to find out the ways and means for adjustment/ absorption of its employees of the Engineering Wing and other wings as well. The High Level Committee recommended for adjustment of the petitioners in different Departments of the State of Bihar, pursuant to which the petitioners were sent on deputation in the Urban Development Department and also in the Science & Technology Department, Government of Bihar, and, accordingly, they were posted on the basis of deputation in the Patna Regional Development Authority (hereinafter to be referred as "PRDA"), other places and in different Polytechnics as Lecturers and the petitioners, in that view of the matter, may be absorbed permanently under the Rehabilitation Plan/Scheme and the State of Bihar being Welfare State be restrained from disturbing their status. 7. 7. It is further contended by learned counsel for the petitioners that the State of Bihar in the past had permanently absorbed the services of many of the employees of other Corporations, and Public Undertakings in view of their crippled financial condition and inviability, and therefore, equity demands that the petitioners, who were employees of the Biscomaun and who are not being paid their salary, be permanently absorbed in different wings/ Departments of the State of Bihar as per policy decision earlier taken by it. In this connection, learned counsel for the petitioners referred to the counter affidavit filed on behalf of the respondent Biscomaun, wherein it is stated that the Biscomaun is not in a position to pay salary to its employees. In support of this contention, reliance has been placed in cases of G. Govinda Rajulu Vs. The Andhra Pradesh State Construction Corporation Ltd. and Anr. (AIR 1987 Supreme Court 1801) and State of Mysore & Anr. Vs. R.S. Kasi (AIR 1985 Supreme Court 651). 8. Different sets of counter affidavits have been filed on behalf of the respondents. 9. Mr. P.K. Shahi., learned Advocate General, appearing on behalf of the State and the PRDA, contended that the applications are liable to be dismissed and the petitioners do not have a right to continue on deputation for indefinite period, particularly beyond a period of three years from the date of their deputation. It is further contended by learned Advocate 'General that the State Government had never taken a decision to absorb the petitioners and similarly situated persons in different wings/ Departments of the State of Bihar and as a temporary measure the petitioners were sent on deputation, which, in no way, created any right in them to continue on deputation and the State Government, therefore, directed for their repatriation in the parent Department. It was further contended that had there been an occasion for the State of Bihar to shift the petitioners from Biscomaun to different Departments of the State of Bihar with a view to absorb them, notifications could not have been issued for their deputation, which necessarily connotes that as a stop gap arrangement and owing to the demand, the petitioners were sent on deputation in some of the Departments of the Government of Bihar. Learned Advocate General further contended that many of the Engineers of Biscomaun, where they were sent on deputation, came back in Biscomaun on repatriation and by virtue of the interim order passed by this Court, these petitioners are continuing on deputation even when the Biscomaun needs their services. The terms and conditions of the appointment of the petitioners in Biscomaun are quite different from that of the employees/Engineers of the State of Bihar. The Engineers in the State of Bihar are appointed through Bihar Public Service Commission, whereas the petitioners were appointed directly by the Biscomaun, and, therefore, they can not be allowed to continue on deputation for ever as it would be against interest of the State Engineering Cadre Group. 10. Lastly, it is contended by Mr. Shahi, learned Advocate General, that the Engineers, who were continuing on deputation in PRDA, were directed to be repatriated forthwith by virtue of the order passed by a Bench of this Court dated 8.2.2000 in C.W.J.C. No. 2290 of 1990 and the State Government accordingly, directed for their repatriation in their parent Department on request made by the Biscomaun itself, which would be evident from annexure A to the supplementary counter affidavit filed on behalf of the Urban Development Department in C.W.J.C. No. 1139 of 2001, and, in this view of the matter, the petitioners do not have any right to continue on deputation in view of the judgment of this Court in case of State of Bihar Vs. Gopal Prasad and Ors. [2003(4) Patna Law Journal Reports 495]. 11. Counsel appearing for BISCOMAUN with reference to its counter affidavit submitted that Bisconaun is financially cripled and it is not in a position to pay salary to its employees. 12. From, the pleadings of the parties, it is manifest that the petitioners were sent on deputation in different Departments of the State of Bihar and now the State Government has directed for their repatriation in their parent Department in view of its general policy as well as in compliance of the direction of this Court. Admittedly, the petitioners are in foreign services and till date no decision has been taken to absorb them permanently on the ground of inviability of the Biscomaun. The petitioners, in that view of the matter, do not have indefeasible right to continue on deputation, beyond a period of three years. 13. Admittedly, the petitioners are in foreign services and till date no decision has been taken to absorb them permanently on the ground of inviability of the Biscomaun. The petitioners, in that view of the matter, do not have indefeasible right to continue on deputation, beyond a period of three years. 13. It is true that on the basis of recommendation of the High Level Committee, the State Government decided to adjust the persons of Engineering Wing of the Biscomaun to different Departments of the State of Bihar and, accordingly, they were sent on deputation in different Departments of the State of Bihar, as referred to above, where till date they are continuing. But, at the same time, the decision of the State Government cannot be termed to be an order of absorption of the petitioners in the Government Department, and, therefore, the nature of their adjustment by way of deputation in different Departments of the State Government, in no way, entities them to continue on deputation under legitimate expectation that they will be absorbed permanently. 14. The question as to whether Biscomaun in viable or not, is altogether a different question, but it cannot be a ground for its employees to continue on deputation for an indefinite period in a Foreign Department, and, therefore, question of repatriation shall not be an exception, but as a rule, as it follows as corrollary to their deputation. 15. It appears from the supplementary counter affidavit filed on behalf of the PRDA in C.W.J.C. No. 1899 of 2001 that on different occasions, this Court issued necessary directions in C.W.J.C. Nos. 2290 of 1990 and 5862 of 2005 vide annexures A, B and C thereto, for repatriation of the Engineers, who were in PRDA by virtue of the orders of deputation. 16. In C.W.J.C. No. 2290 of 1990, a Bench of this Court, comprising Justice B.P. Singh (Hon'ble the Acting Chief Justice) and Justice A.K. Ganguly, on 8.2.2000 directed as follows: "It is also brought to our notice that in the Engineering Cell of the P.R.D.A. large number of Junior Engineers and other ranks have remained deputed for over three years, which is the normal tenure of deputation. Apparently, such officers have developed vested interest and it is not desirable to continue them on deputation for more than three years. Apparently, such officers have developed vested interest and it is not desirable to continue them on deputation for more than three years. We are told that the P.R.DA has already written to the State Government in this regard. We request the State Government to take an appropriate decision and to replace all those officers who have been in the Engineering Cell on deputation for more than three years in the P.R.D.A. This decision should be tak`en within two weeks from the date on which a copy of this order is produced before the Secretary of the concerned Department. The same direction will apply to the deputationists who have come from other organisations, such as Biscomaun etc." 17. From the facts, as enumerated above, it appears to me that the petitioners till date have not been terminated by their parent Department i.e. Biscomaun, rather they are continuing on deputation in different Departments of the State of Bihar, nor it is a case of transfer of the petitioners from one Department of the State Government to another, and, therefore, the decisions, rendered by the Apex Court in cases of G. Govinda Rajulu (supra) and State of Mysore & Am. Vs. R.S. Kasi (supra), are of no avail to the petitioners. 18. To sum up, it is held that the petitioners do not have indefeasible right to continue on deputation for ever and in view of the ratio laid down by this Court in case of State of Bihar and Ors. Vs. Gopal Prasad and Ors. (supra) the petitioners are liable to be repatriated. 19. In the result, these writ applications are dismissed. 20. However, before I part with this order, I would like to observe that in case the parent Department of the petitioners, i.e. Biscomaun, is liquidated, the petitioners may move the appropriate Government for their absorption in any of the Departments of the State of Bihar in accordance with law.