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2019 DIGILAW 1419 (JHR)

Ramani Raman Sharma v. State of Jharkhand

2019-08-13

SANJAY KUMAR DWIVEDI

body2019
ORDER : Heard learned counsel for the parties. The petitioner has preferred this writ petition for quashing the order dated 26.3.2013 whereby the claim of the petitioner for absorption has been rejected. He has also prayed for direction to the respondents to absorb the service of the petitioner in the Government of Jharkhand. Mrs. Ritu Kumar, learned counsel for the petitioner submits that the petitioner was appointed on the post of Accountant in Bihar State Textile Corporation on 26.5.1988.As the said Corporation was facing trouble, the State Government decided to absorb the employees of the said corporation in another department of the State Government. In this regard the Managing Director of the said Corporation approached the State Government to accommodate their employees against the vacancy available in the different department of the State Government. The petitioner was appointed on the post of Accountant in Readymade Garments Project, Hajipur which was an unit of Bihar State Textile Corporation. It was decided by the government to send the employees of that Corporation on deputation to another department with intention to absorb them later on and accordingly, the petitioner was sent on deputation to the State Programme for Elementary Education Development seeing the shortage of man power and the financial situation of Radymade Garment Project, Hajipur, an unit of Bihar State Textile Corporation. By order dated 6.11.2000 the petitioner was allowed to join on the post of Accounts personnel and was placed on DLO Pakur. Pursuant to that, the petitioner gave his joining before the District Programme Officer, Pakur on 10.11.2000 which was duly accepted and the petitioner was working with that department without any hindrance and was being paid salary as they were being paid in the Corporation. The deputation period of the petitioner was extended from time to time. The petitioner was transferred from one place to another place on deputation which is evident from the office order dated 2.9.2009.It is submitted that at the time of filing the writ petition, the petitioner is on deputation on the post of Accountant in the Jharkhand Education Project Council where he got his posting by the order dated 3.12.2009. It is stated that the petitioner is still working on that post on deputation. It is stated that the petitioner is still working on that post on deputation. By order dated 9.5.2005, the Special Secretary, Finance Department Jharkhand Ranchi had informed the Chairman-cum-Managing Director, Bihar State Food and Civil Supplies Corporation Limited that a proposal is pending before the Government of Bihar with regard to the absorption of the employees who are on deputation. The Government of Jharkhand is awaiting for the said decision. The petitioner earlier moved before this court be way of filing writ petition being W.P(S) No. 195 of 2012 which was disposed of on 25.1.2012 with a direction to the petitioner to file a representation before the competent authority for redressal of his grievance and the concerned authority was directed to dispose of the same in accordance with law within six months from the date of receipt of the representation. Pursuant to that, the petitioner filed representation along with documents and copy of the order dated 25.1.2012 before the Chief Secretary, Government of Jharkhand and by order dated 26.3.2013 the case of the petitioner has been rejected by the authority concerned. Mrs. Ritu Kumar, assailed the impugned order on the ground that the persons, who have been deputed along with the petitioner, have been absorbed in the department of the government and the petitioner has been left out without any cogent reasons. She has drawn the attention of this court to the annexure-13 which is the order of Government of Jharkhand by which the persons figures in the chart have been absorbed in the different department and by referring to serial nos. 14, 43 and 44 and submits that these persons were also working with the Corporation and they have been absorbed in the Treasury whereas the petitioner is working with Jharkhand Education Project Council and he has been left out. She further submits that grounds mentioned in the rejection order is also not tenable because the order has been passed by the Secretary, Government of Jharkhand wherein it is stated that the Jharkhand Education Project Council is working under a scheme and the petitioner was knowing about the nature of posting in that council and on this ground, the claim of the petitioner has been rejected which is not tenable in the eyes of law. She further submits that other persons including the petitioner whose names are mentioned at serial nos. She further submits that other persons including the petitioner whose names are mentioned at serial nos. 42,53,44 have approached this court in W.P(S) No. 1693 of 2012 which was allowed vide order dated 31.7.2013 wherein direction was issued for payment of the retiral dues from the date of initial appointment and not from the date of their absorption and against that, the State has filed L.P.A No. 340 of 2013 and its analogous cases before this court and Division Bench of this Court dismissed the same vide order dated 14.1.2015 and confirmed the order of the learned Single Judge. Being aggrieved with the said order, the State moved before Hon'ble the Apex Court in Civil Appeal No. 13372 of 2015 which was dismissed vide order dated 7.9.2017 and it was directed that pension and retiral benefits as also the arrears shall be calculated giving the benefit of order of this court within a period of six months. She submits that the matter has been set at rest and other similarly situated persons, pursuant to the above orders, have been absorbed and the superannuated persons are being paid pensionary benefits taking into account their service with effect from initial appointment and not from the date of absorption. On the other hand, Mr. Saket Upadhyay (A.C to G.A III) appearing on behalf of the State submits that the petitioner is not regular employee which is apparent from the annexures 3 and 5 as his service was extended from time to time . He further submits that the petitioner is working under a scheme and such he submits that there is no illegality in the impugned order. Mr Krishna Murari, the learned counsel for the JEPC submits that in view of the direction of this court passed in W.P(S) No. 195 of 2012 by which direction was issued to the State of Jharkhand taking into account as to why the petitioner will not be absorbed in any government department of the State of Jharkhand whereas the Secretary has passed the order stating that the petitioner is working with the Jharkhand Education Project Council and there is no rule and regulation with respect to government employees and there is no regular post. Having heard the learned counsel for the parties and looking to the facts and circumstances of this case, this court comes to the conclusion that the prayer of the petitioner is fit to be allowed for the following reasons:- (i) The State is an abstract entity and so can act only through the instrumentality or agency of natural or juridical persons. The State thus acts through public corporations which are its instrumentality. The public corporation has thus emerged into a third arm of government. In so far as public corporation fulfill public tasks on behalf of the government, they are public authorities and as such subject to control by government. Therefore, there is nothing strange in the notion of the state acting through a corporation and making it an agency or instrumentality of the state. In the modern era of welfare State, when there is government action on a vast scale, a procedure to obtain speedy and effective redress against an illegal exercise of power by the executive is extremely desirable. (ii) The State Government came with the notification dated 12.8.1969 wherein it is decided that that the State after careful consideration have, therefore, been pleased to decide that, if the service of the temporary or officiating Government servant who is not confirmed in any post is continuous and is more that 15 years, it will be considered as pensionable under Rule 59 of Bihar Pension Rules.. (iii) No option had been taken from the petitioner for deputation, had the option would have been taken the matter would have been otherwise. 1. (iv) Bargain power of the State needs to be considered in this case as the petitioner, who is employee of a corporation which was facing financial trouble and the petitioner was not in a position to bargain with the respondent-State. (v) Similarly situated persons have been absorbed/provided retiral dues in terms of order of this court in W.P(S) No. 1693 of 2012,L.P.A No. 340 of 2013 and Civil Appeal No. 13372 of 2015. As a cumulative effect of all the facts and circumstances, reasons the impugned order dated 26.3.2013 is quashed and the writ petition is allowed. The respondent State is directed to pass a consequential order in the light of the observation made herein above and looking to the W.P(S) No. 1693 of 2012,L.P.A no. As a cumulative effect of all the facts and circumstances, reasons the impugned order dated 26.3.2013 is quashed and the writ petition is allowed. The respondent State is directed to pass a consequential order in the light of the observation made herein above and looking to the W.P(S) No. 1693 of 2012,L.P.A no. 340 of 2013 and Civil Appeal No. 13372 of 2015, respondent no.3 shall pass an order within the period of eight weeks from the date of receipt/production of a copy of this order, so that fruit of that order may come in favour of the petitioner at the earliest. With the aforesaid observation, this writ petition stands allowed and disposed of.