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2020 DIGILAW 395 (MP)

M. P. Public Health Services Corporation Ltd. v. Manoj Gura

2020-03-06

ATUL SREEDHARAN, SANJAY YADAV

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JUDGMENT Yadav, J. -- 1. This appeal under section 2 (1) of the M. P. Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 is directed against the interlocutory order dated 20.1.2020 passed in Writ Petition No. 522/2020. 2. The Writ Petition at the instance of respondent No. 1 is directed against the order dated 24.12.2019 whereby on his completion of deputation in the appellant Corporation, he is relieved. 3. Respondent No. 1 is an appointee of OILFED. With the liquidation of OILFED, its employees were declared surplus and were sent to various departments and State Corporation on deputation awaiting absorption. He was initially sent on deputation to Zila Panchayat and thereafter to Madhya Pradesh Housing & Infrastructure Development Board, from where he was sent to present appellant on deputation on 21.5.2015. Pertinent it is to note at this stage that as per staff pattern of present appellant, the appointment can be either on contract or by deputation. The deputation as per Circular No. FA-10-18/88/49/1 dated 2.12.1988, as per clause 2 thereof, was initially for 2 years extendable for maximum 4 years. The period of deputation thus expired in December, 2019. That, during deputation, the respondent No. 1 was adjudged suitable for absorption in District Cooperative Central Bank, Mandsaur by order dated 24.12.2019 passed by the Commissioner-cum-Registrar, Cooperative Societies, under section 55 (1) of Madhya Pradesh Cooperative Societies Act, 1960. Consequent whereof, the appellant relieved him on 3.1.2020. 4. Aggrieved, respondent No. 1 filed the Writ Petition in question, seeking quashment of order of absorption dated 24.12.2019 and the relieving order. Besides, the respondent No. 1 also sought the direction to present appellant for absorption of his services as Administrative Officer. By way of interim relief, respondent No. 1 sought stay of operation of order of absorption and of relieving order. Learned Single Judge, vide impugned order dated 20.1.2020, directed the continuation of respondent No. 1 in appellant Corporation till next date, which later on was extended to further date by order dated 16.1.2020. Learned Single Judge opined that to maintain parity with similar matter, the interim relief is granted. 5. The order is being questioned on the ground that being on deputation, the respondent No. 1 cannot as a matter of right seek absorption in the appellant Corporation for the reason that the Corporation has a staff pattern wherein the appointment is either on contract or by deputation. 5. The order is being questioned on the ground that being on deputation, the respondent No. 1 cannot as a matter of right seek absorption in the appellant Corporation for the reason that the Corporation has a staff pattern wherein the appointment is either on contract or by deputation. It is further contended that the respondent No. 1 was earlier on deputation in Zila Panchayat and Housing Board which have permanent cadre, wherefor no claim is laid for absorption. It is urged that on being absorbed in the District Cooperative Central Bank, the respondent No. 1 was rightly relieved from Corporation. In these fact-situation, it is urged that learned Single Judge is not justified in granting interim protection. 6. Respondent No. 1 contradicts the stand. It is urged that the appeal is not tenable against the interim order. The contention deserves to be rejected at the outset on the anvil of decision in Municipal Corporation, Gwalior v. Leela Ram & others [ AIR 2010 MP 219 = 2010 (4) MPLJ 110 ], wherein it is held: “7. The full Bench of this Court in Arvind Kumar Jain and Others v. State of M. P and Others [ 2007 (3) MPLJ 565 ] dealt with the point in issue while interpreting proviso to section 2 (1) of the Adhniyam, 2005. In para 18 it was categorically held that when an interlocutory order has semblance with final order or affects the rights of the party, it can be treated as an order for all practical purposes. For better understanding, it would be profitable to quote para 18 which reads thus : ‘18. Regard being had to the aforesaid fundamental concept of the term “order”, it has to be understood that the statute permits an order to be appealed against. The proviso stipulates that no appeal would lie against an interlocutory order. But an eloquent and pregnant one, when an interlocutory order has the semblance of final order or affects the rights of the parties, it can be treated as an order for all practical purposes. The said exception cannot be treated in absolute terms to nullify the enactment. Therefore, the order has to be a final order by way of final disposal. The said exception cannot be treated in absolute terms to nullify the enactment. Therefore, the order has to be a final order by way of final disposal. It cannot be regarded as the correct interpretation of the proviso in entirety, for a writ Court can issue directions or pass orders in its inherent jurisdiction which can assume the colour and contour of finality and, at an interim stage, can vitally affect the rights of the parties or destroy the rights or create a situation by which the relegation to the original stage would become impossible.’ Looking to the nature of the impugned interlocutory orders, we have no scintilla of doubt in holding that the effect of the impugned orders is having semblance of final order and have affected the rights of the appellant. Hence, according to us, the instant appeal is maintainable and the preliminary objection is thus rejected.” 7. As regards to merit, it is contended that learned Single Judge, on the basis of parity qua the issue as to whether an incumbent has a right of absorption in the department where he is sent on deputation, granted the interim protection. True it may be that it is within the jurisdiction of the Court to extend interim benefit on parity. However, the parity must be visible and existing. Thus, unless it is established that in a Corporation like the appellant where, as per staff pattern, the appointment can only be either on contract or on deputation, the principle of parity is not attracted. Furthermore, in the case at hand, the respondent No. 1 stands absorbed in District Cooperation Central Bank by order dated 24.12.2019 which is still in operation as the same has not been stayed, in that event the respondent No. 1 cannot as a matter of right seek stay of repatriation or relieving from deputation. 8. The impugned order, when tested on the anvil of above analysis, cannot be upheld; consequently, it is set aside. 9. The appeal is allowed to the extent above. No costs.