JUDGMENT Hon’ble Raj Mani Chauhan, J.—Heard Sri G.K. Singh, learned counsel for the petitioner and Sri K.N. Saxena, learned counsel for the respondent. 2. This Intra Court Appeal has been filed by the Respondent No. 5, the Director, Mansik Arogyashala/Mental Hospital, Agra, District Agra in Civil Misc. Writ Petition No. 48859 of 2002 (Santosh Kumar Gautam and 22 others v. State of U.P. and 4 others) against the judgment and order dated 23.9.2003 passed by the learned Single Judge in the above writ petition whereby he had allowed the writ petition filed by the petitioners. 3. The relevant facts giving rise to the present appeal may be summarized as under : The petitioners-respondent Nos. 1 to 22 were initially appointed as class IVth employee on different posts like Attendants, Rajmistri, Cook, Game Ardali and Sweeper by the appellant in Mansik Arogyashala/Mental Hospital, Agra which was under the control of Medical, Health and Family Welfare, Department of U.P. Government. A similar hospital known as Ranchi Mansik Arogyashala was being run by the Bihar Government. A writ petition No. 448/1994 was filed by one Aman Hingorani against Union of India and Others before the Hon’ble Supreme Court in which the Hon’ble Supreme Court directed that the Mansik Arogyashala be converted into autonomous institution which will be managed by a committee of management. In view of the direction of the Hon’ble Supreme Court in the above writ petition, the government of U.P. too decided to convert the Mansik Arogyashala/Mental Hospital, Agra as autonomous institution. Consequently, the government of U.P. got a society registered and converted the Mansik Arogyashala into “Mansik Swasthya Sansthan Evam Chikitsalaya, Agra”. The society was registered on 14.11.1996 under the Societies Registration Act. The certificate of registration was thereafter renewed on 14.11.2001. The Mental Hospital, Agra which was being run by the government was thereafter taken over by the society. The committee of management and the new institution became the autonomous body. 4. All the officers and employees who were previously working in Mental Hospital were government employees and they were treated to be on deputation in the new institution. The state government thereafter invited options of the officers and employees who wanted to remain as government servant or to work in the new institution on deputation. The petitioners did not opt to work in the institution on deputation; rather they wanted to continue as government servants. The state government thereafter invited options of the officers and employees who wanted to remain as government servant or to work in the new institution on deputation. The petitioners did not opt to work in the institution on deputation; rather they wanted to continue as government servants. Since none of the petitioners opted to be posted in the new institution on deputation, therefore the Commissioner, Agra Division as Chairman of the Society wrote a letter to the government to relieve the petitioners and others from the institution and send them to their parent department. The government accepted the request of the Commissioner, Agra Division and issued an order dated 23rd September 2002 directing the Director of Medical Health Services, U.P. government, Lucknow to see that all the employees who did not opt to continue in the institution on deputation run by the society be relieved and be absorbed in medical and health department of the government. Consequently, respondent No. 5 (appellant) vide order dated 29.10.2002 relieved all such employees including the petitioners-respondents. Thereafter, Additional Director, Medical Health and Family Welfare, Agra (Respondent No. 4) issued an order dated 31.10.2002 posting all such employees against various posts in government health department. The respondents-petitioner Nos. 1 to 22 and one another aggrieved by the aforesaid order dated 29.10.2002 and 31.10.2002 filed the aforesaid writ petition challenging the validity and correctness of the aforesaid orders passed by the respondent Nos. 5 and 4 respectively. 5. The writ petition was opposed by the respondents. Parties exchanged their affidavits. 6. The main question for consideration before the learned Single Judge was that whether the petitioners could be treated on deputation in the new institution run by the society or they could be sent back to their parent department? The learned Single Judge was of the view that two ingredients were essential for posting an employee on deputation : (1) The deputation period should be for a definite period. (2) The employee can be sent on deputation only with his consent. 7. The learned Single Judge found that in this case neither definite period for deputation had been given by the respondents to the petitioners nor their consent was obtained before they were treated to be posted on deputation. Therefore the petitioners could not be treated as posted on deputation in the new institution of the society. 7. The learned Single Judge found that in this case neither definite period for deputation had been given by the respondents to the petitioners nor their consent was obtained before they were treated to be posted on deputation. Therefore the petitioners could not be treated as posted on deputation in the new institution of the society. Consequently, the learned Single Judge held that the order dated 29.10.2002 passed by respondent No. 5 relieving the petitioners from the institution and order dated 31.10.2002 passed by the respondent No. 4 posting them against different posts in the Health Department were illegal. The learned Single Judge, therefore, by the impugned judgment and order allowed the writ petition and quashed the impugned orders dated 29.10.2002 and 31.10.2002. 8. The respondent No. 5 (appellant) being aggrieved by the impugned order has filed this Intra Court Appeal. 9. The facts of the case are almost undisputed. Undisputedly, the Mental Hospital, Agra was a government hospital which was under the control of Director of Health and Family Welfare of Government of U.P. 10. Undisputedly, it was converted into autonomous body and re-named as “Mansik Swasthya Sansthan Evam Chikitsalaya (Institute of Mental Health and Hospital) Agra” under the control of Society and it ceased to be under the direct control of U.P. government. 11. Undisputedly, the petitioners were appointed by the appellant in the Mental Hospital, Agra on different dates as class IVth employee as Attendants, Rajmistri, Cook, Game Ardali and Sweeper, etc. 12. After the conversion of Mental Hospital, Agra into new institution under management of society, the petitioners appointed by the Director continued to be government servants. They were treated on deputation in the new institution. 13. The question to be considered by this Court in the present appeal is, whether the petitioners (respondent Nos. 1 to 22) continued to be employees of new institution named as Mansik Swasthya Sansthan Evam Chikitsalaya, Agra as government servant? 14. The submission of learned counsel for the appellant is that the Mansik Arogyashala/Mental Hospital, Agra was a government hospital, petitioners were appointed by the appellant (respondent No. 5), the Director of the Institute of Mental Health and Hospital, Agra as such they were government servants. 15. The government of Uttar Pradesh on the pattern of Ranchi Mental Hospital decided to convert the hospital into autonomous body to be managed by a society constituted by it. 15. The government of Uttar Pradesh on the pattern of Ranchi Mental Hospital decided to convert the hospital into autonomous body to be managed by a society constituted by it. Consequently, the government formed a society to run the institution consisting of the following members: (i) Divisional Commissioner, Agra - Chairman (ii) District Magistrate, Agra - Member (iii) Sr. Superintendent of Police, Agra - Member (iv) Health Secretary, Govt. of U.P. or his representative - Member (v) Two non-officials at one of them shall be a woman - Members nominated by the Government of U.P. (vi) Principal, King George Medical College, Lucknow - Member (vii) Director of AMA -Member Secretary 16. The government got the society registered under the Societies Registration, Act on 14.11.1996. The Mansik Arogyashala/Mental Hospital, Agra was taken over by the society and it was re-named as “Mansik Swasthya Sansthan Evam Chikitsalaya, Agra”. As a result of conversion of the hospital into Mansik Swasthya Sansthan Evam Chikitsalaya, Agra, the officers and employees of the Mental Hospital, Agra did not automatically become the officers and employees of the new institution; rather they continued to be government servant. For the time being, the officers and other employees of the hospital were treated to be on deputation in the new institution as it is clear from the letter dated 18th February 1997 written by Dr. Bachhi Lal, the Special Secretary, Government of U.P. to Director General, Chikitsa Evam Swasthya Sevaye, Uttar Pradesh, Lucknow (Annexure 4). In this letter, it had clearly been mentioned that the officers and employees of the hospital will be treated to be on deputation in the new institution and only those officers and employees will be treated to be officers and employees of the new institution who will be directly appointed by the society running the new institution. The appellant thereafter passed an order (Annexure 5) calling option from the petitioners and other employees of the Mental Hospital, Agra to give their option as to whether they wanted to continue as government servant in their parental department or they wanted to continue in the new institution on deputation basis. Santosh Kumar Gautam one of the petitioners thereafter filed a written declaration (Annexure 6) that he did not want to continue in the new institution; rather he would like to remain in the government service. Santosh Kumar Gautam one of the petitioners thereafter filed a written declaration (Annexure 6) that he did not want to continue in the new institution; rather he would like to remain in the government service. Likewise Santosh Kumar Gautam, the other petitioners too opted to continue as government servants. Thereafter, Sri B.K. Sharma, the then Commissioner, Agra Division/Chairman of the Society running Mansik Swasthya Sansthan Evam Chikitsalaya, Agra wrote a letter (Annexure 7) to the Secretary, Chikitsa Evam Swasthya Anubhag 7, U.P. government, Lucknow to post the petitioners somewhere in their parental department as they were not cooperating in smooth functioning of the institution. 17. On the above letter the government of U.P. vide letter dated 23rd September 2002 (Annexure 8) took a decision that the petitioners and others who were reported by the Commissioner, Agra Division/Chairman of the Society running the new institution, be adjusted in their parental department. The Additional Director, Medical, Health and Family Welfare, Agra Division, Agra thereafter vide letter dated 31.10.2002 (Annexure 10) sent the petitioners and others back to their parental department. 18. Learned Counsel argued that the learned Single Judge had not treated the petitioners on deputation; even then he treated them to continue in the new institution which is inconsistent. The learned Single Judge had found that the applicants had not opted to be posted on deputation in the new institution. Therefore, they could not be treated as posted on deputation in the new institution. 19. Learned counsel argued that the new institution formed and re-named as Mansik Swasthya Sansthan Evam Chikitislaya, Agra run by the society is not the same as Mansik Arogyashala/Mental Hospital, Agra. The new institution is under the control of the society while the Mansik Arogyashala/Mental Hospital, Agra was purely governmental hospital run by the government. The status of the officers and employees of the new institution did not remain the same which was in the Mansik Arogyashala/Mental Hopital, Agra. The officers and employees of the hospital ceased to be government servant after conversion of hospital into new institution. The officers and employees of the Mansik Arogyashala/Mental Hospital, Agra were treated to be on deputation in the new institution for the time being and options were called for from them whether they wanted to be posted in the new institution on deputation or they wanted to continue in the government service. The officers and employees of the Mansik Arogyashala/Mental Hospital, Agra were treated to be on deputation in the new institution for the time being and options were called for from them whether they wanted to be posted in the new institution on deputation or they wanted to continue in the government service. The petitioner opted to remain as government servant. Therefore, they were rightly relieved by the appellant after they were posted by respondent No. 4 (Additional Director, Medical Health and Family Welfare, Agra Region) at different places. 20. Since the petitioners were government servants and they did not opt to be posted in the new institution on deputation, therefore, neither they could be forced to remain in the same institution as government servants nor they could be legally allowed to work in the institution run by the society. Moreover, the appellant could not be compelled to retain the petitioners against his will who did not opt to remain in the institution on deputation. 21. The learned Single Judge did not take into consideration of this aspect of the matter. The impugned judgment and order had been passed without appreciation of correct legal position, therefore, the impugned judgment and order dated 23.9.2003 is liable to be set aside and the appeal deserves to be succeed. 22. Learned counsel for the respondents supported the impugned judgment passed by the learned Single Judge and argued that the respondent Nos. 1 to 22 were employees of erstwhile Mansik Arogyashal/Mental Hospital, Agra. They were government servant after conversion of Mansik Arogyashal/Mental Hospital, Agra into new institution known as Mansik Swasthya Sansthan Evam Chiktsalaya, Agra, the officers and employees became the officers and employees of the new institution. They had no other parental department except the Mansik Arogyashal/Mental Hospital, Agra. Therefore, they could not be posted somewhere-else other than the new institution. The learned Single Judge had rightly treated them the employees of the new institution and allowed them to continue in the new institution which does not suffer from any infirmity or illegality. 23. We have given anxious consideration to the arguments advanced by the learned counsel for the parties. The ‘Mansik Arogyashala/Mental Hospital, Agra’ was purely a government Hospital run by the Director, Medical, Health and Family Welfare, Govt. 23. We have given anxious consideration to the arguments advanced by the learned counsel for the parties. The ‘Mansik Arogyashala/Mental Hospital, Agra’ was purely a government Hospital run by the Director, Medical, Health and Family Welfare, Govt. of U.P. The petitioners were employed there as class IVth employee on different posts like Attendants, Rajmistri, Cook, Game Ardali & Sweeper and they were purely government servants. The Mansik Arogyashal/Mental Hospital, Agra was converted into new institution and re-named as “Mansik Swasthya Sansthan Evam Chikitsalaya, Agra” which was under the control and management of a Society registered under the Societies Registration Act. The status of new institution became autonomous which is purely different form the status of Mansik Arogyashala/Mental Hospital, Agra. The officers and employees of the new institution were the officers and employees of the society not the employees of the government. The officers and employees of the Mansik Arogyashala/Mental Hospital, Agra were treated to be on deputation in the new institution for the time being. 24. From a perusal of letter dated 18th February 1997 (Annexure 4), it appears that the Special Secretary, U.P. Government had wrote a letter to Director General, Medical and Health Services, U.P. Government that the officers and employees of the Mansik Arogyashala/Mental Hospital, Agra would be treated to be officers and employees in the new institution on deputation. The Director of Medical and Health was requested to issue order accordingly treating them on deputation. Thereafter, the Director of Mansik Swasthya Sansthan Evam Chikitsalaya, Agra passed an order that the officers and employees of the Mansik Arogyashala/Mental Hospital, Agra were the officers and employees of the government their parental department was government department they will be posted in the new institution on deputation. The Director by the same order had asked every officer and employee to give a declaration to the effect that whether he wanted to be posted on deputation in the new institution or wanted to remain as government servant. Santosh Kumar Gautam one of the petitioners gave a declaration (Annexure 6) that he did not want to be posted on deputation in the new institution; rather he would continue to be government servant. The other petitioners too opted to remain in government service. 25. Santosh Kumar Gautam one of the petitioners gave a declaration (Annexure 6) that he did not want to be posted on deputation in the new institution; rather he would continue to be government servant. The other petitioners too opted to remain in government service. 25. From a perusal of letter dated 10.6.2002 written by the Commissioner, Agra Division/Chairman, Mental Health Institute and Hospital, Agra (Annexure 7), it appears that he had written a letter to Secretary, Medical, Health and Family Welfare, U.P. Government informing him that as many as 26 employees of erstwhile Mental Hospital, Agra were not cooperating in the smooth functioning of the institution they be returned to their parental department. 26. From a perusal of letter dated 23rd September 2002 (Annexure 8), it appears that the government on the basis of letter written by the Divisional Commissioner, Agra ordered for sending back the employees mentioned in the letter including the petitioners to their parental department. 27. From a perusal of letter dated 29.10.2002 written by Director, Mental Health Institute and Hospital, Agra(Annexure 9), it appears that the petitioners and others as mentioned above were ordered to be sent back to their parental department. 28. From a perusal of letter dated 31.10.2002, it appears that the Additional Director, Medical and Health Services, Agra Division (Respondent No. 4)placed the petitioners and others on different posts in different districts of Agra Division. 29. Since the petitioners opted to remain government servants and they did not opt to be posted on deputation in the new institution. Therefore, they were sent back to their parental department i.e. Health Department of U.P. Government. The petitioners who did not opt to be posted in the new institution on deputation cannot be posted there on deputation against their option. The society of the new institution too cannot be forced to retain those petitioners who were the government servants and did not opt to be posted on deputation in the new institution. 30. In view of the discussions hereinabove mentioned we are of the considered opinion that the petitioners cannot be treated to be employees of the new institution namely Mansik Swasthya Sansthan Evam Chiktsalaya, Agra. Therefore, they cannot be thrushted on the new institution against the wishes of the society. 31. The learned Single Judge did not take into consideration of this fact while allowing the writ petition of the petitioners. Therefore, they cannot be thrushted on the new institution against the wishes of the society. 31. The learned Single Judge did not take into consideration of this fact while allowing the writ petition of the petitioners. Therefore, the impugned judgment and order dated 23.9.2003 is liable to be set aside and the writ petition is liable to be dismissed. 32. Consequently, the special appeal is allowed and the judgment and order dated 23.9.2003 passed by the learned Single Judge in Civil Misc. Writ Petition No. 48859 of 2002 is set aside and the writ petition filed by the respondents is dismissed. ————