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2015 DIGILAW 788 (JHR)

Lalan Prasad Deo v. State of Jharkhand

2015-07-10

PRAMATH PATNAIK

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JUDGMENT : Per Pramath Patnaik, J.: 1. In the aforesaid writ application, the petitioners have inter alia prayed for issuance of a writ/order/direction: (a) For a direction upon the respondents to absorb the services of the petitioners on the post since the date of deputation on which they are/were working in I.C.D.S. Project in the District of Garhwa under Department of Social Welfare, Govt. of Jharkhand, Ranchi. (b) For issuance of a writ of mandamus commanding upon the respondents to superannuate the petitioners from their service on completion of age of 60 years as applicable to other employees of Jharkhand Government. (c) For quashing the office order dated 31.12.2012 issued vide Memo no.75 by Child Development Project Officer, Bhandaria issued in the light of Memo no.576 dated 29.12.2012 of District Social Welfare Officer, Garhwa and Memo no.51 dated 08.01.2010 of Finance Department, Govt. of Jharkhand whereby the petitioner no.3 has been superannuated w.e.f. 30.11.2012 after completion of age of 58 years. 2. Sans details, the facts as delineated in the writ application in a nutshell is that in pursuance to selection made by the duly constituted selection committee by the Directorate of Social Welfare, Government of Bihar vide letter dated 10.01.1997 (as per Annexure-1 to the writ application), the petitioner nos.1 and 2 were appointed on 24.04.1997 and petitioner no.3 was appointed on 26.04.1997 in ICDS Project on deputation against vacant and sanctioned posts of Clerk in Nagar Untari, Bhavnathpur and Meral Block respectively under Garhwa district, as per annexure-2 to the writ application. After posting in the office of ICDS Project the petitioners continued to discharge their duties to the utmost satisfaction of authorities concerned and in the seniority list of clerk/typist of Palamu Division published by office of Deputy Director, Welfare, Palamu Division, Daltonganj, the names of the petitioners find place at Sl. No.15, 16 and 17 respectively, as evident from annexure-3 to the writ application. In pursuance to office order dated 16.11.2005 of Director, Social Welfare, petitioner no.1 was transferred from Nagar Untari to Bhavnathpur Project, petitioner no.2 was transferred from Bhavnathpur to Nagar Untari and petitioner no.3 was transferred from Piprakala Meral to Bhandaria Project. No.15, 16 and 17 respectively, as evident from annexure-3 to the writ application. In pursuance to office order dated 16.11.2005 of Director, Social Welfare, petitioner no.1 was transferred from Nagar Untari to Bhavnathpur Project, petitioner no.2 was transferred from Bhavnathpur to Nagar Untari and petitioner no.3 was transferred from Piprakala Meral to Bhandaria Project. As per letter dated 29.02.2012 issued by Principal Secretary, Department of Finance, Government of Jharkhand, 61 Treasury Clerks, who were deputed from Corporations/Enterprises/Board were absorbed by the Government of Jharkhand, looking to the fact that rest of the Treasury employees were taken on deputation, whose services was under Bihar Government, were absorbed by Government of Bihar vide letter no.1737 dated 08.06.2006, as evident from annexure-5 to the writ petition. On perusal of list of Treasury Employees, whose services were absorbed by annexure-5, it would be apparent that some employees of Bihar State Construction Corporation Ltd. were also taken on deputation like the services of the petitioners. After coming to know of the absorption of similarly situated employees, the petitioners made representation to District Social Welfare Officer, Garhwa for their absorption. On receipt of the said representation, the District Social Welfare Officer, Garhwa vide memo dated 17.11.2012 sent letter to Director, Social Welfare, Jharkhand, Ranchi seeking clarification for absorption of petitioners, as evident from annexure6 to the writ application that other employees of Bihar State Construction Corporation Ltd. and other Corporations/Boards/Public Sector undertakings/Enterprises of State of Bihar whose services were also taken on deputation in ICDS Project in the erstwhile State of Bihar have preferred a writ petition being C.W.J.C. No.10016 of 2007 and the Hon’ble Single Judge of Patna High Court allowed the said writ application by directing the respondents to pass necessary orders for absorption of those petitioners looking to the orders passed in various letters patent appeals by the Hon’ble High Court, Patna and which was confirmed by the Hon’ble Apex Court. Against the order passed in C.W.J.C. No.10016 of 2007, State of Bihar preferred L.P.A. No.1831 of 2011 in the Hon’ble High Court of Patna which was dismissed by the Hon’ble Division Bench and the order of the Hon’ble Single Judge passed in C.W.J.C. No.10016 of 2007 was affirmed by the Hon’ble Apex Court. The petitioner no.3 was superannuated on 30.11.2012 on completion of 58 years though the age of superannuation of the employees of State of Jharkhand was 60 years. The petitioner no.3 was superannuated on 30.11.2012 on completion of 58 years though the age of superannuation of the employees of State of Jharkhand was 60 years. It has been submitted in the writ application that similarly situated employees in the State of Bihar who were appointed alongwith petitioners in the Bihar State Construction Corporation Ltd. have been absorbed by the State of Bihar and are enjoying the privilege of Government employees also in the case of age of superannuation and similarly situated employees appointed and working with the petitioners in the Bihar State Construction Corporation Ltd. whose services were taken on deputation in the Treasury Department have also been absorbed and they are enjoying the same privilege as State Government employees. 3. Left with no alternative, efficacious and speedy remedy, the petitioners have approached this Court invoking extraordinary jurisdiction under Article 226 of the Constitution of India for redressal of their grievance. 4. Per contra, a counter affidavit has been filed on behalf respondent nos. 6 to 9 controverting the averments made in the writ application. In the counter affidavit, it has been stated that at the very outset petitioners were the staff working under ICDS Project and they were deputed to work under Social Welfare Department of the State Government of Jharkhand vide letter no.375 dated 11.04.1997. The petitioners were not the employee of the Social Welfare Department of the State of Jharkhand and they retired at the age of the 58 years. The State of Jharkhand (Finance) issued direction under letter dated 08.01.2010 that the employees/staffs of the Board/Corporation are not the Government servant and their retirement age shall be 58 years and accordingly, the petitioners retired, a photo copy of the letter dated 08.01.2010 has been annexed and marked as Annexure-A to the counter affidavit. It has further been stated in the counter affidavit regarding the appointment of the services under Bihar State Construction Corporation Ltd. and thereafter deputation of the petitioners in ICDS Project. The status of the employees of the Board /Corporation was at par with the State Government employees. The services of the petitioner continued on deputation without being absorbed as Government employee as the appointment originally was under the service of Corporation hence all such services continued and the status shall not be as that of Government employee. The status of the employees of the Board /Corporation was at par with the State Government employees. The services of the petitioner continued on deputation without being absorbed as Government employee as the appointment originally was under the service of Corporation hence all such services continued and the status shall not be as that of Government employee. Therefore, petitioner is not entitled to the reliefs as prayed for in the writ application. 5. Heard Mr. Deepak Kumar, learned counsel for the petitioners and Mr. Pratyush Lala, (J.C. to G.P.-IV) appearing for the respondents. 6. Learned counsel for the petitioners has strenuously urged that non-absorption of the petitioners’ amounts to arbitrary exercise of power actuated by mala fide and is hit by Article 14 of the Constitution on the principle of hostile discrimination. Learned counsel for the petitioners has further submitted that the petitioners are entitled to the same treatment and benefit which has been extended to other similarly situated employees and the benefits ought to be extended like that of regular employees of the State of Jharkhand including the date of superannuation on completion of sixty years of age. Learned counsel has further submitted that the action on the part of the respondents in meting out discriminatory treatment is violative of Article 14, 16 and 21 of the Constitution of India. 7. Learned counsel for the State on the other hand has dexterously argued that employees of various enterprises of the State Government working on deputation in various ICDS Project (Social Welfare Department) cannot claim absorption as their absorption was of temporary nature with well defined terms and conditions of such deputation. The terms and conditions of deputation do not include any clause, concerning absorption on permanent basis neither there was any such assurance. The service conditions of such deputed employees are governed by rules of their parent organization. They are only paid remuneration and other benefits as allowed by terms and conditions of such deputation. Learned counsel for the respondents has further submitted that out of three petitioners the petitioner no.3 has already been superannuated prior to filing of the writ application. 8. On perusal of the writ application and counter affidavit and documents on record, it appears that the averments of the writ application have not been specifically controverted as the counter affidavit apparently seems to be vague and evasive given in a generalised manner. 8. On perusal of the writ application and counter affidavit and documents on record, it appears that the averments of the writ application have not been specifically controverted as the counter affidavit apparently seems to be vague and evasive given in a generalised manner. The statement made in the counter affidavit is completely in contradiction to Annexures-5, 7 and 8 of the writ application. On being satisfied with the genuine claims of the petitioner for absorption, the District Welfare Officer vide Anmnexure-6, has referred the case to the Directorate, Social Welfare, Ranchi seeking clarification for absorption but due to inaction on the part of the respondents the petitioners have been subjected to hostile discrimination, as similarly situated employees as per Annexure-5 to the writ application, have already been absorbed. Now the respondents ought not to deny the benefit to the petitioners who have worked for such a long time with legitimate expectations of absorption. The case of the petitioner is also squarely covered by the decisions rendered by the Hon’ble Patna High Court in Annexures-7 and 8 of the writ application. 9. On cumulative effect of the facts, reasons and judicial pronouncements, the petitioner nos.1 and 2 are entitled to the relief claimed in the writ application. Accordingly, respondents are directed to consider the case of the petitioners in light of Annexures-5, 7 and 8 of the writ application within a period of four months from the date of communication of the order and if the decision comes in their favour, petitioners shall be entitled to all the consequential service benefits flowing from such absorptions. With these observations and directions, the writ petition stands disposed of.