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Madhya Pradesh High Court · body

2015 DIGILAW 96 (MP)

Seema Malhotra v. State of M. P.

2015-01-27

A.M.KHANWILKAR, C.V.SIRPURKAR

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JUDGMENT : 1. Heard counsel for the parties. 2. These petitions, essentially, question the inaction of the respondents in not absorbing the petitioner in Madhya Pradesh Transport Appellate Tribunal. 3. It is not in dispute that the petitioner was appointed as Stenographer (Assistant Grade-III) in District Judicial Establishment, Shivpuri. After establishment of State Transport Appellate Tribunal, the petitioner was sent on deputation to the said Department. The petitioner has been working as Stenographer in State Transport Appellate Tribunal since 2003. 4. The petitioner, relying on the order of absorption issued in favour of other employees sent on deputation to the State Transport Appellate Tribunal, originally working with District Judicial Establishment, made representation to the appropriate Authority to issue absorption order even in her favour. The appropriate Authority, however, rejected the said request. In this backdrop, the grievance of the petitioner, is that, the Authority has treated similarly placed persons differently. To buttress this submission, reliance has been placed on communication Exhibit-8 in W.P. No. 9862/2014 and Exhibit 19-B in W.P. No. 14735/2008. Reliance is also placed on the decision of the Supreme Court in the case of Rameshwar Prasad v. Managing Director U.P. Rajkiya Nirman Nigam Limited and others : AIR 1999 SC 3443 . 5. The respondents have resisted this petition by filing reply and placing on record that the appropriate Authority of the State Transport Appellate Tribunal took a conscious decision on the representation made by the petitioner not to absorb the petitioner. It is the case of the said Authority that the fact that the other employees have been absorbed, does not create any right in favour of the petitioner for being absorbed in the post of Stenographer (Assistant Grade-III). Further, reliance placed on the two documents by the petitioner is inapposite. In that, document Exhibit-8 in W.P. No. 9862/2014 is, essentially, a proposal submitted by the Transport Commissioner that, in the first place, post of Stenographer be filled by candidate on deputation from District Judicial Establishment and thereafter, by direct recruitment. Only one post of Steno-typist was available as per this proposal. Against that post, the petitioner was sent on deputation by the District Judicial Establishment and that since the Authority decided to fill up that post by direct recruitment, the services of the petitioner were not required any more. As a result, the representation submitted by the petitioner for absorption has been rejected. 6. Against that post, the petitioner was sent on deputation by the District Judicial Establishment and that since the Authority decided to fill up that post by direct recruitment, the services of the petitioner were not required any more. As a result, the representation submitted by the petitioner for absorption has been rejected. 6. As regards the document Exhibit 19-B in W.P. No. 14735/2008, it is submitted that the same is only a consent given by District Judge, Shivpuri to the High Court for accepting the request for absorption of the petitioner and not repatriation. That proposal is obviously inter-departmental correspondence between District Judge and the High Court. The petitioner has not produced any document to even remotely suggest that the parent Department (High Court/District Judicial Establishment) had finally consented for absorption. Be that as it may, as the State Transport Appellate Tribunal did not require the services of the petitioner any more, was not obliged to absorb the petitioner merely because she has been working as Stenographer in the Tribunal from 2003. 7. The respondents have also distinguished the decision of the Supreme Court referred to above on the argument that, in that case, express provision by way of Rules of 1980 and of 1984 were in force providing for absorption of employees, who were on deputation. No such Rules have been framed much less any administrative instructions having the backing of law have been issued regarding absorption. The proposal of absorption has been considered on case to case basis and as per the requirement of the Tribunal. Accordingly, it is submitted by the respondents that the writ petition is devoid of merits and deserves to be dismissed. 8. Having considered the rival submissions, we are in agreement with the respondents that the petitioner can succeed only if she is able to substantiate that refusal to absorb her as Stenographer in State Transport Appellate Tribunal is infringement of any fundamental right or for that matter, statutory and/or legal right. No express provision or any administrative instructions having backing of law regarding absorption of employees sent on deputation from District Judicial Establishment to State Transport Appellate Tribunal have been brought to our notice. 9. The two documents pressed into service, in our opinion, will be of no avail. No express provision or any administrative instructions having backing of law regarding absorption of employees sent on deputation from District Judicial Establishment to State Transport Appellate Tribunal have been brought to our notice. 9. The two documents pressed into service, in our opinion, will be of no avail. Insofar as the first document Exhibit-8 is only a proposal regarding the manner in which the solitary post of Steno-typist should be filled by the State Transport Appellate Tribunal, which has been created after its establishment. It does not deal with the issue of absorption of the employees appointed on deputation from District Judicial Establishment. Similarly, the document Exhibit 19-B is only an inter-departmental correspondence between the District Judge and the High Court and cannot enure any right in favour of the petitioner; much less non-compliance whereof would result in infringement of any legal provision or instructions having the force of law. In absence of any express provision/statutory Rules governing the issue of absorption, we fail to understand as to how a writ can be issued in favour of the petitioner in absence of infringement of her constitutional/statutory or legal right. The decision of the Supreme Court in Rameshwar Prasad (supra) pressed into service, therefore, will be of no avail to the petitioner. 10. The fact that other employees sent on deputation from the District Judicial Establishment to State Transport Appellate Tribunal have been later on absorbed, cannot create any legal right in favour of the petitioner. The argument of discrimination also does not commend to us. That cannot be pursued in abstract and in absence of any legal right in favour of the petitioner and more so, when it is the complete prerogative of the employer whether to absorb the employee concerned in the establishment where the employee is working on deputation. 11. As aforesaid, as per the proposal, only one post of Steno-typist was created after the establishment of the Tribunal and which was to be initially filled up by appointing person from District Judicial Establishment on deputation and thereafter to be filled by direct recruitment. In other words, the requirement of the Tribunal at the relevant point of time was only of one Steno-typist and the Tribunal was required to fill up that post on regular basis by direct recruitment. In other words, the requirement of the Tribunal at the relevant point of time was only of one Steno-typist and the Tribunal was required to fill up that post on regular basis by direct recruitment. In this backdrop, the appropriate Authority of the Tribunal having rejected the representation made by the writ petitioner for absorption, no fault can be found with that decision. Judicial review of that decision cannot be permitted on the basis of absorption of some other employee whose services were required by the Tribunal. 12. Accordingly, we find no merits in these petitions. Both these petitions are dismissed. Interim order operating in favour of the petitioner is vacated forthwith.