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Jharkhand High Court · body

2018 DIGILAW 301 (JHR)

Sunil Kumar Singh v. State of Jharkhand

2018-02-05

RONGON MUKHOPADHYAY

body2018
ORDER : Heard Mr. Prem Pujari Roy, learned counsel for the petitioner, learned J.C. to S.C. (Mines), Mr. Bejoy Kumar Pandey, learned counsel for the Bihar State Seed Corporation, Mr. Naresh Prasad Singh, learned counsel for the respondent No. 4 in W.P. (S) No. 1115 of 2007, Mr. Abhijeet Kumar Singh, learned J.C. to G.P. V and Mr. Rishikesh Girl, learned J.C. to G.P.-II in W.P. (S) No. 7546 of 2013. 2. Since the issues in all the 3 writ applications are interrelated, as such the same are being disposed of by this common order. 3. In W.P. (S) No. 1115 of 2007, the petitioner has prayed for a direction upon the respondents to pay the arrears of salary w.e.f. 29.12.2005 i.e., the date of joining of the petitioner against the post of Instructor, Extension Training Centre, Hehal, Ranchi on which post the petitioner is discharging his duty in view of the notification No. 2761 of 27.12.2005 issued under the signature of Under Secretary to the Government, Department of Agriculture and Cane Development, Government of Jharkhand, Ranchi. 4. In W.P. (S) No. 2492 of 2005, the petitioner has prayed for quashing of the order as contained in Memo No. 452 dated 1.3.2005 by the respondent No.2 wherein the representation of the petitioner had been rejected. A further prayer has been made for a direction upon' the respondents to pay the arrears of salary of the petitioner along with the statutory interest w.e.f. 1.2.2001 to 17.3.2003 which is the period during which the petitioner was posted under the Agriculture Department, Government of Jharkhand. The petitioner has further prayed for regularisation of his services w.e.f. 1.2.2001 till the date on which the petitioner is permitted to rejoin under Agriculture Department, Government of Jharkhand. 5. In W.P. (S) No. 7546 of 2013, the petitioner has challenged the Memo No. 231 dated 28.1.2013 issued by the respondent No.3 by which the letter No. 1289 dated 5.6.2006 directing the Principal, Extension Training Centre, Hehal, Ranchi to accept the joining of the petitioner on the post of Instructor (Engineering) has been cancelled as also the charge report of assumption of charge by the petitioner dated 29.12.2005 as contained in Memo No. 194 dated 20.6.2006. 6. 6. The factual aspects which are common in all the 3 cases briefly stated would reveal that the then Secretary, Agriculture Co-operative Animal Husbandry and Fisheries Department, Government of Jharkhand vide letter No. 74 dated 19.12.2000 requested the Agriculture Production Commissioner, Bihar, Patna for deputing the petitioner under the Government of Jharkhand. By virtue of letter dated 24.1.200 I, the services of the petitioner was deputed to the State of Jharkhand on the conditions that payment of salary etc. shall• be made by the State of Jharkhand and the services of the petitioner will be requisitioned back in case of need. Pursuant to the said letter, the petitioner joined. in the Agriculture Minister's Cell under the Government of Jharkhand w.e.f. 1.2.2001. A request was made by the Commissioner-cum-Secretary, Agriculture and Cane Development Department vide letter dated 10.11.2001 addressed to the •Managing Director, Bihar State Seed Corporation Limited (hereinafter referred to as the 'Corporation' for the sake of brevity) for permanent placement of the services of the petitioner under Agriculture Department, Government of Jharkhand w.e.f. 1.2.2001. The services of the petitioner was placed under the Government of Jharkhand vide Memo No. 394 dated 5.12.2001 in anticipation of the approval of the. Board of Directors of the Corporation. The Company Secretary of the Corporation vide his letter as contained in Memo No. 399 dated 29.8.2002 addressed to the Commission-cum-Secretary, Department of Agriculture and. Cane Development, Government of Jharkhand, Ranchi conveyed the decision of the approval of the Board of Directors of the Corporation by which in the 92nd meeting of the Board of Directors Convened on 19.6.2002, an approval was granted on the decision of permanent placement of the service of the petitioner under the Agriculture Department. Government of Jharkhand w.e.f. 01.02.2001. The petitioner submitted his joining which was accepted. The petitioner was posted as Deputy Agriculture Director. Ranchi (Farm) and subsequently he was given charge of seeds processing. Vide Memo No. 552 dated 22.03.2003. the services of the petitioner was terminated. The Company Secretary of the Corporation had once again conveyed the decision of the Board of Directors vide Memo No. 97 dated 19.3.2004 that there was no question of accepting the joining of the petitioner as his services was• permanently placed under the Agriculture Department, Government of Jharkhand. the services of the petitioner was terminated. The Company Secretary of the Corporation had once again conveyed the decision of the Board of Directors vide Memo No. 97 dated 19.3.2004 that there was no question of accepting the joining of the petitioner as his services was• permanently placed under the Agriculture Department, Government of Jharkhand. The petitioner challenged the order of termination in W.P. (S) No. 1447 of 2003 which was disposed of on 8.4.2003 and the question regarding the absorption of the services of the petitioner in the State of Jharkhand was not considered, as no order of absorption was enclosed. However with respect to the claim of the petitioner of salary, the respondents were directed to pay the admitted dues within 3 months, the petitioner rejoins the parent department Le., Bihar State Seed Corporation Ltd. The petitioner preferred an appeal being L.P.A. No. 291 of 2003 which was dismissed as withdrawn on 4.5.2004 with a liberty to the petitioner to make a representation putting forward his grievance and the representation was to be considered and disposed of strictly on merits. Pursuant to the order passed in L.P.A. No. 291 of 2003, the petitioner submitted a representation which however was rejected vide Memo No. 452 dated 1.3.2005. 7. So far as the factual aspects which led the petitioner me W.P. (S) No. 1115 of 2007 is concerned, it appears that •the petitioner vide notification No.2761 dated 27.12.2005 was posted as Instructor (Engineer) Extension Training Centre, Hehal, Ranchi where he submitted his joining to the Principal on 29.12.2005. The principal (respondent No.4) sought for some guidelines from the Under Secretary, Department of Agriculture and Cane Development vide letter No. 396 dated 30.12.2005 and refused to accept the joining of the petitioner. However, respondent No. 2 vide letter dated 5.2.2006 cancelled the letter of respondent No. 4 and directed the respondent No. 4 to accept the joining of the petitioner. Subsequently, thereto, the joining of the petitioner was accepted and the matter was informed to respondent No. 2 vide Memo No. 193 dated 19.6.2006. Again the respondent No. 4 sought guidelines from the respondent No. 2 with respect to payment of salary and a reply was given to make payment of salary on the basis of basic pay and allowances. Since the payment was not made, the petitioner had preferred the present writ application. 8. Again the respondent No. 4 sought guidelines from the respondent No. 2 with respect to payment of salary and a reply was given to make payment of salary on the basis of basic pay and allowances. Since the payment was not made, the petitioner had preferred the present writ application. 8. In W.P. (S) No. 7546 of 2013, it appears that in W.P. (S) No. 1115 of 2007, an order was passed which was not complied which led the petitioner to me a Contempt (Civil) Case No. 226 of 2012 and during the pendency of the said case, Memo No. 231 dated 28.1.2013 had been issued wherein the letter No. 1289 dated 05.6.2006 directing the acceptance of joining of the petitioner in the Extension Training Centre, Hehal, Ranchi had been cancelled as also the forwarding letter of the Principal, Extension Training Centre, Hehal, Ranchi as contained in Memo No. 194 dated 20.06.2006. 9. The primary question which needs to be answered in the present writ application is whether the services of the petitioner was absorped in the State of Jharkhand or whether the petitioner still continues to be ill employment under the Bihar State Seed Corporation Ltd. The prayer made by the petitioner with respect to payment of salary as also other consequential benefits shall follow whatever decision is taken by this Court in W.P. (S) No. 2492 of 2005 and W.P. (S) No. 7546 of 2013. 10. Mr. Prem Pujari Roy, learned counsel for the petitioner in all the cases has submitted that the service of the petitioner was permanently requisitioned and permanently placed under the Department of Agriculture, Government of Jharkhand and. therefore, the impugned order dated 1.3.2005 has been passed in arbitrary exercise of power. Learned counsel submits that the petitioner has lost his lien in the cadre of the Corporation and the State of Jharkhand is also not accepting the petitioner as its employee and the petitioner therefore virtually is in a no mans' land. Learned counsel further submits that the services of the petitioner cannot be treated as co-terminus with the tenure of the Minister as his service was requisitioned by the Government of Jharkhand. Learned counsel further submits that the services of the petitioner cannot be treated as co-terminus with the tenure of the Minister as his service was requisitioned by the Government of Jharkhand. Learned counsel draws the attention of the Court to the reply submitted by the Corporation as also to the letter No. 553 dated 13.6.2005 issued by the Company Secretary in which it was stated that the petitioner no longer remains an employee of the Corporation as his services was sent to Jharkhand following a requisition. Learned counsel submits that vide notification No. 2761 dated 27.12.2005, the petitioner had once again been invited' to be posted as, Instructor (Engineer) Ranchi where he had joined. Learned counsel submits that the office order dated 28.1.2013 is also a colourable exercise of power as a letter which had been issued in the year 2005 for accepting the joining of the petitioner has been sought to. be cancelled after almost 8 years. Learned counsel further submits that the documentary evidence produced by the petitioner sufficiently proves the fact that the service of the petitioner was permanently placed in the State of Jharkhand and at this stage, the State of Jharkhand cannot rescind from the earlier communications and therefore, the impugned orders are liable to be quashed and set aside and it be directed that the petitioner is an employee of the Government of Jharkhand and salary and other consequential benefits be made available to the petitioner expeditiously. 11. Learned counsel appearing for the State has stated that in W.P. (S) No. 1447 of 2003, the petitioner had prayed that his salary be paid by the State of Jharkhand, but since no order of absorption was brought on record, it was held that merely because the petitioner was posted in one or other posts under the State of Jharkhand, the same would not mean that he was absorbed in the service of the State of Jharkhand. Learned State counsel-submits that no interference was made by this Court in the order No. 552 dated 22.3.2003 and therefore, the same has attained finality. It has further been stated that the petitioner was merely posted in the State of Jharkhand on deputation and there is no order with respect to the service of the petitioner being absorbed in the State of Jharkhand. It has further been stated that the petitioner was merely posted in the State of Jharkhand on deputation and there is no order with respect to the service of the petitioner being absorbed in the State of Jharkhand. Learned State-counsel further submits that the petitioner still continues to be an employee of the Corporation and his deputation was purely on a temporary basis. It has been submitted that there is nothing on record to show that the service of the petitioner were ever sent by the Corporation to the Department of Agriculture and Sugarcane, Government of Jharkhand and as such, his claim for salary is also not maintainable. Learned counsel submits that the service of the petitioner was taken as a Technical Adviser to the Minister against an unsanctioned post and his service were returned back by the Government of Jharkhand on dissolution of the State Cabinet. It has thus been submitted that in absence of any proof which would show that the service of the petitioner had been absorbed by the Government of Jharkhand, the present application is liable to be dismissed and the petitioner is also not entitled to any monetary benefits. 12. Mr. Naresh Prasad Singh, learned counsel appearing for the respondent No. 4 in W.P. (S) No. 1115 of 2007 has stated that by no stretch of imagination it can be considered that the petitioner is in service in the Government of Jharkhand. Learned counsel submits that the whereabouts of the petitioner was not known therefore, his joining was not accepted after he reported for duty. It has further been stated that, the petitioner was posted in an unsanctioned post of Technical Adviser in the Agriculture Minister's Cell on the requisition of the Minister. Mr. Singh further submits that after dissolution of the said cabinet, the petitioner lost his assignment and accordingly, his services were returned back to his parent department vide Memo No. 552 Ranchi dated 22.3.2003. He further submits that the petitioner had made unsuccessful attempts in challenging the Memo dated 22.3.2003 and the representations submitted by him pursuant to the order passed in L.P.A. No. 291 of 2003 also stood rightly rejected. It has been stated that the petitioner is not entitled to hold any cadre post in the State of Jharkhand as his services belong to the Corporation. 13. Mr. It has been stated that the petitioner is not entitled to hold any cadre post in the State of Jharkhand as his services belong to the Corporation. 13. Mr. Bejoy Kumar Pandey, learned counsel appearing for the Corporation has stated that the petitioner's services were permanently placed under the Agriculture Department, Government of Jharkhand and as such, there is no question of accepting the joining of the petitioner under the Corporation. 14. In reply, learned counsel for the petitioner has stated that a departmental proceeding has initiated against respondent No.4 in W.P. (S) No. 1115 of 2007 on the directions of the department. 15. On consideration of the factual aspects as also on the arguments advanced by the learned counsel for the respective parties, it appears to be a case in which neither the State of Bihar nor the State of Jharkhand is willing to accept the services of the petitioner. It is indeed unfortunate that for no fault on the part of the petitioner, he is being victimised by the respective departments only on the ground that his services were never permanently placed in the State of Jharkhand by the Corporation. The State of Jharkhand continues to maintain and assert the fact that the petitioner was merely sent on deputation to the Government of Jharkhand on the requisition so made and was placed as a Technical Adviser in the Agriculture Minister's Cell. It is indeed surprising from the act of the authorities of the State of Jharkhand that time and again they have issued letters to the Corporation for returning the services of the petitioner, but they have posted the petitioner simultaneously. The Corporation on the request of the Secretary, Agriculture, Co-operative, Animal Husbandry and Fisheries Department, Government of Jharkhand vide letter dated 19.12.2000 had deputed the petitioner by virtue of letter dated 24.1.2001 on one of the conditions being that the service of the petitioner can be requisitioned back in case of need. In the context of the aforesaid, the letter No. 1966 dated 10.11.2001. assumes all the more significance in which the Secretary, Agriculture, Cooperative and Cane Development Department had requested the Managing Director of the Corporation for placement of the services of the petitioner in the department of Agriculture. In the context of the aforesaid, the letter No. 1966 dated 10.11.2001. assumes all the more significance in which the Secretary, Agriculture, Cooperative and Cane Development Department had requested the Managing Director of the Corporation for placement of the services of the petitioner in the department of Agriculture. Replying to the same, the Managing Director of the Corporation had given his consent subject to the decision of the Board of Directors and it was specifically indicated therein that if the Board of Directors is not in agreement with the said consent, the services of the petitioner will be taken back in the Corporation. The approval of the Board of Directors followed and the services of the petitioner was permanently placed in the Agriculture Department of the State of Jharkhand. In the midst of such communication which would indicate that the services of the petitioner has finally been placed on a permanent basis to the State of Jharkhand, the respondent No.2 in W.P. (S) No. 22492 of 2005 came out with an order dated 22.03.2003 pursuant to which it was indicated that the deputation of the petitioner had automatically come to an end on account of the dissolution of the State Cabinet and therefore, his services are being returned to the parent department which is the Bihar State Seed Corporation Ltd. 16. In a reply to the same, the Corporation has once again reiterated that the petitioner is not an employee of the Corporation as his services has been placed in the State of Jharkhand. 17. This Court in W.P. (S) No. 1447 of 2003 had the occasion to consider the order as contained in Memo No. 552 dated 22.03.2003 while not acceding to the prayer of the petitioner. The reiteration of the Corporation with respect to the service of the petitioner having been permanently placed in the State of Jharkhand was after the order was passed in W.P. (S) No. 1447 of 2003. In fact much water has flown after the disposal of W.P. (S) No. 1447 of 2003. The representation of the petitioner was rejected by the respondent No. 2 on 1.3.2005 which is also a subject-matter in W.P. (S) No. 2492 of 2003. In spite of issuance of Memo No. 552 dated 22.3.2003, the petitioner vide notification dated 27.12.2005 was posted as an Instructor (Engineer) Extension Training Centre, Hehal, Ranchi. The representation of the petitioner was rejected by the respondent No. 2 on 1.3.2005 which is also a subject-matter in W.P. (S) No. 2492 of 2003. In spite of issuance of Memo No. 552 dated 22.3.2003, the petitioner vide notification dated 27.12.2005 was posted as an Instructor (Engineer) Extension Training Centre, Hehal, Ranchi. The subsequent events had started after the petitioner had submitted his joining which was refused and guidelines were sought from the departmental head and the Principal of the Centre was directed to accept the joining of the petitioner which also has been cancelled by one of the impugned orders dated 28.1.2013. 18. Thus, it would reveal that repeatedly the petitioner has been posted in spite of the Government of Jharkhand informing the Corporation that his services have been returned back to the Corporation. The Corporation has been very categorical in its stand by claiming that petitioner does not have any lien in the Corporation and his services have been permanently placed in the State of Jharkhand. The act of the State authorities of Jharkhand therefore, reveals that the services of the petitioner was deemed to be placed in the State of Jharkhand although, no formal order was issued by the State authorities in the State of Jharkhand for reasons best known to them. The petitioner in fact has been treated as a pariah by the State of Jharkhand, as could be deduced from the entire factual aspects of the case. The Corporation is an instrumentality of the State and is governed under the Article 12 of the Constitution of India and therefore the Corporation was within its rights on the requisition submitted by the State of Jharkhand to place the service of the petitioner in the State of Jharkhand initially on deputation and therefore on further requests on a permanent basis with the approval of the Board of Directors. Although, learned counsel appearing for the respondents have repeatedly stated about the issue of absorption having already been decided by this Court in W.P. (S) No. 1447 of 2003, but the subsequent events and the subsequent acts of the respondent-authorities of the State of Jharkhand do unerringly point to the fact that the services of the petitioner was finally placed on a permanent basis in the State of Jharkhand. The impugned order dated 28.02.2003 in spite of rejecting the representation of the petitioner claiming that the responsibility lies with the Corporation for his posting as well as for his salary, but subsequently his services were once again put in the State of Jharkhand in the Extension Training Centre, Hehal, Ranchi. 19. In the case of Rameshwar Prasad v. Managing Director, U.P. Rajkiya Nirman Nigam Ltd. and others, (1999) 8 SCC 381 , in which it was held as follows : 17. "In our view, it is true that whether the deputationists should be absorbed in service or not is a policy matter, put at the same time, once the policy is accepted and rules are framed for such absorption, before rejecting the application, there must be justifiable reasons. Respondent 1 cannot can arbitrarily by picking and choosing the deputationists for absorption. The power of absorption, no doubt is discretionary but is coupled with the duty not to act arbitrarily, or at the whim or caprice of any individual. In the present case, as stated earlier, the General Manager (NEZ) specifically pointed out as early as in the year 1988 that the appellant's service record was excellent, he was use-full in service and appropriate order of his absorption may be passed his application for absorption was within three years' as provided in Rule 5. There is nothing on record to indicate that for any reason whatsoever, he was not required or fit to be absorbed or the power under Rule 5(1) of the U.P. Absorption of Government Servants in Public Undertakings Rules, 1984 was not required to be exercised in his favour. Interim order dated 17.7.1991 passed by the High Court would not be applicable in the case of the appellant because his case was considered for absorption in the year 1988. Further on completion of five years on 19.11.1990 he could not have ordinarily been continued on deputation in the service of the Nigam. It is apparent that he was absorbed from 19.11.1990 because from that date his deputation allowance was also discontinued. If he was to be continued on deputation, there was no reason for non-payment of the deputation allowance. So on the basis of the statutory rules as well as the policy, the appellant stands absorbed in the service of the Nigam." 20. If he was to be continued on deputation, there was no reason for non-payment of the deputation allowance. So on the basis of the statutory rules as well as the policy, the appellant stands absorbed in the service of the Nigam." 20. At the cost of repetition, it must be reiterated that the entire act of the State of Jharkhand points to the fact that the services of the petitioner was absorbed by the State of Jharkhand. although there was no order passed in that respect. The factual narration also reveals that he was variously posted and his services were also utilised fully and on request made by the State of Jharkhand his services were finally and permanently placed in the State of Jharkhand. The State of Jharkhand therefore, cannot now take a stand based on mere technicalities as the events which have unfolded leads to a conclusion that the petitioner has been deemed to be absorbed in the State of Jharkhand. 21. Accordingly, in view of what has been stated above. the impugned order as contained in Memo No. 452 dated 1.3.2005 issued by the respondent No. 2 as well as the office order as contained in Memo No. 231 dated 28.1.2013 passed by the respondent No.3 in W.P. (S) No. 7546 of 2013 are hereby quashed and set aside. The concerned respondents of the State of Jharkhand are directed to take further steps with respect to the payment of salary and consequential benefits, if any to be paid to the petitioner expeditiously, if the same has not already been paid to the petitioner. 22. All these writ applications stands disposed of. Applications disposed of.