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2014 DIGILAW 500 (JHR)

Bimal Kumar Jha v. State of Jharkhand

2014-04-11

R.BANUMATHI, SHREE CHANDRASHEKHAR

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JUDGMENT Shree Chandrashekhar, J. This Letters Patent Appeal has been filed challenging order dated 17.02.2014 passed in W.P.(S) No. 802 of 2014 by which challenge of the appellant to the Notification No. 7776 dated 21.12.2013 repatriating the appellant prematurely from the Urban Development Department to his parent Department that is, Water Resources Department, has been rejected by the learned Single Judge. 2. Shorn of unnecessary details, the brief facts of the case are that, the appellant was appointed on the post of Assistant Engineer on the recommendation of the Bihar Public Service Commission on 17.04.1989. In view of requisition dated 14.06.2010 from the Urban Development Department, Government of Jharkhand to the Water Resources Department for placing the services of Chief Engineer and 10 Assistant Engineers on deputation, vide Notification dated 30.06.2011 the appellant was sent on deputation to the Urban Development Department, Government of Jharkhand where he joined as Assistant Director, Directorate of Municipal Administration. The appellant took charge on 05.08.2011 and subsequently, he was given officiating charge of the Deputy Director, Municipal Administration vide Notification dated 29.06.2013. By Notification No. 7776 dated 21.12.2013 of the Water Resources Department, Government of Jharkhand, the appellant's services has been taken back to his parent Department though he has not completed even three years of posting on deputation. Aggrieved by the premature termination of his deputation, the appellant approached this Court by filing the writ petition which has been dismissed by the impugned order dated 17.02.2014. 3. We have heard the learned counsel appearing for the parties and perused the documents on record. 4. Mr. Anil Kumar Sinha, the learned Senior counsel appearing for the appellant has submitted that, though the appellant was sent on deputation in view of letter dated 14.06.2010 of the Urban Development Department requisitioning one Chief Engineer and 10 Assistant Engineers who are competent, hard working and have clean image however, his deputation has been prematurely terminated without communicating any reason and that is not permitted in law. Relying on a decision in “Union of India through Government of Pondicherry and Another Vs. Relying on a decision in “Union of India through Government of Pondicherry and Another Vs. V. Ramakrishnan and Others”, reported in (2005) 8 SCC 394 , it is submitted that the deputation of the appellant could have been terminated only on the ground of unsuitability or unsatisfactory performance but it cannot be curtailed on any other ground and therefore, the appellant's deputation to the Urban Development Department should have been permitted to continue. It is further submitted that generally, the period of deputation of the Assistant Engineers would extend for six years which can be noticed from Resolution framed under Memo No. 1078 dated 08.03.2007 (Annexure15) and the learned Single Judge has also observed that the Circular dated 08.03.2007 relied upon by the appellant may be said to have indicated tenure for deputation. Referring to letters dated 23.12.2013 and 06.02.2014, it is submitted that in view of the competence and suitability of the appellant, the Secretary, Urban Development Department wrote a letter to the Secretary, Water Resources Department, requesting further continuance of the appellant in the Urban Development Department on deputation and subsequently, the Board of Directors of Jharkhand Urban Infrastructure Development Company Limited in its meeting held on 17.01.2014 resolved to appoint the appellant as an Officer on Special Duty in JUIDCO Limited for two years and a communication in this regard has already been sent to the Secretary, Department of Water Resources on 06.02.2014 however, on a pretext of general transfer orders the deputation of the appellant was prematurely curtailed by Notification No. 7776 dated 21.12.2013. Narrating various instances of hostile and arbitrary action by the respondents disclosed in Paragraph No. 9 of the memo of appeal, the learned Senior counsel has submitted that, the request of the Secretary, Urban Development Department seeking retention of the appellant on deputation was refused by a general order dated 21.01.2014 issued by the Water Resources Department and by order dated 05.02.2014 the appellant and five other persons whose name appeared in the said letter were directed to give joining on their transferred posts. With a view to demonstrate further arbitrary and malafide action on the part of the respondents, it is submitted that, though the Urban Development Department was not relieving the appellant and in the meanwhile, by letter dated 06.02.2014 the deputation of the appellant for the period of further two years was requested by the Urban Development Department however, the appellant was put under suspension by the Water Resources Department on 15.02.2014. The appellant joined his place of posting in the Water Resources Department on 18.02.2014 and by order dated 04.03.2014, the order of suspension was revoked however, no order as to the effect of the period of suspension between 15.02.2014 and 03.03.2014 has been passed by the Water Resources Department. 5. As against the above, Mr. Srijit Choudhary, the learned counsel appearing for the respondent State of Jharkhand has submitted that, the impugned Notification dated 21.12.2013 is the general order of transfer of 84 engineers which has been issued on the recommendation of the Establishment Committee and as such, it does not suffer from any malice in law. It is further submitted that, in exigency of the work in the Water Resources Department, several engineers sent on deputation, were recalled and the appellant who was sent on deputation does not have legal right to continue on the post on deputation and while so, the allegation of various unsubstantiated instances of arbitrary action and harassment referred in memo of appeal cannot be taken into account for inferring that the order of transfer dated 21.12.2013 is actuated with malice in law. 6. Without going into various factual aspects of the matter, it is seen that in view of letter dated 14.06.2010 of the Urban Development Department and the subsequent deputation of the appellant vide Notification dated 30.06.2011, the suitability of the appellant to the post for which he was sent on deputation cannot be doubted. Further, in view of letter dated 23.12.2013 and 06.02.2014 the competence and satisfactory performance of the appellant are also accepted by the Urban Development Department. Further, in view of letter dated 23.12.2013 and 06.02.2014 the competence and satisfactory performance of the appellant are also accepted by the Urban Development Department. A perusal of the Notification dated 21.12.2013 whereby, the appellant and others are said to have been reverted to their parent cadre would disclose that by the said Notification, as many as 84 persons have been transferred to various other departments and it is factually incorrect to say that the Notification dated 21.12.2013 is an order by which all 84 Assistant Engineers have been reverted to their parent cadre that is, the Water Resources Department. For instance, one, Raj Kumar Prasad (at serial no. 8) who was posted as Assistant Engineer, Swarn Rekha Canal Subdivision, Kalajhor has been transferred to the Rural Works Department. In the same manner, as many as 20 Assistant Engineers have been sent on deputation to the Rural Works Department. It is further noticed that services of several Assistant Engineers have been placed on deputation to the Welfare Department (at serial no. 41), Urban Development Department (at serial no. 42) and Health Department (at serial no. 73). It is thus apparent that by Notification No. 7776 dated 21.12.2013 the services of the Assistant Engineers of the Water Resources Department posted on deputation in various other departments, have not been reverted back to their parent Department. We find no substance in the contention of the learned counsel appearing for the respondents that the Notification dated 21.12.2013 was issued in exigency of the work, that is, to say that due to shortage of Assistant Engineers several other important projects under the Water Resources Department were not being properly executed. 7. Though, from the materials on record, we find that the deputation of the appellant could not have been terminated on the ground of unsuitability or unsatisfactory performance, and it also cannot be said that the deputation of the appellant has been terminated in exigency of the work. However, since the appellant has already joined his parent cadre on 18.02.2014, we are not inclined to interfere with the impugned order dated 17.02.2014 passed by the learned Single Judge in W.P.(S) No. 802 of 2014 however, in view of the facts noticed above, we deem it necessary to issue a direction to the respondent no. However, since the appellant has already joined his parent cadre on 18.02.2014, we are not inclined to interfere with the impugned order dated 17.02.2014 passed by the learned Single Judge in W.P.(S) No. 802 of 2014 however, in view of the facts noticed above, we deem it necessary to issue a direction to the respondent no. 2 to respond to letter dated 06.02.2014 of the Secretary, Urban Development Department for considering/reconsidering the proposal for sending the appellant on deputation. It is made clear that, if the services of the appellant is still required in the Urban Development Department, in response to the letter dated 06.02.2014 of the Urban Development Department, a decision would be taken by the Secretary, Water Resources Department. The second respondent shall take a decision with respect to the period of suspension of the appellant between 15.02.2014 and 03.03.2014 within a period of three months from today. 8. In the result, this Letters Patent Appeal is disposed of with the aforesaid directions.