Punjab-Haryana High Court
Shri Gobind Ram Sharma vs The State Of Haryana And Ors. on 6 September, 1993
Equivalent citations: (1993)105PLR355
JUDGMENT A.L. Bahri, J.
1. The question involved in this case being of importance and likely to arise in other cases of repatriation of the deputationists, employees of Bhakra Beas Management Board (hereinafter called 'the BBMB') to parent States, R.S. Mongia, J. referred the case to a larger Bench vide order dated November 3, 1992.
FACTS IN BRIEF:
The petitioner, Gobind Ram Sharma, a Senior Scale Stenographer working with Bhakra Beas Management Board was repatriated to the Irrigation Department in the State of Haryana vide order dated July 15, 1991-Annexure P.26 which is impugned in this writ petition. The petitioner is a permanent employee of the State of Haryana and was deputed to work with the BBMB against the share quota of Haryana State in BBMB i.e. 40% of the Staff. In 1988 a policy decision was taken by the BBMB vide instruction Annexure P.1 that the employees who were working with the BBMB on 89 days basis (ad hoc) be adjusted against their posts. The family of the petitioner consists of six members as per details given in the petition. One of them being Miss Purnima, daughter, aged about 23 years, who after qualifying Matriculation examination in 1984 and Prabhakar (Honours in Hindi) in 1985; took training in English and Hindi Typing and thus could be employed as a Clerk/Hindi Typist with the BBMB. The petitioner approached the BBMB several times for appointment of his daughter since 1986 but she was not considered. The BBMB, however, recruited numerous dependent children of the employees of other departments. One of the representations for seeking employment for his daughter was submitted on January 10, 1990 - Annexure P.2. On February 25, 1988, on 89 days basis, Purnima aforesaid was appointed by the Board. With notional breaks, her service continued upto October 28, 1989. Some of the appointment letters were produced. (Copies Annexures P.4 to P.6). Another representation of her seeking appointment was filed on November 22, 1988 (Copy Annexure P.7). This request was declined on December 22, 1988. (Copy Annexure P.8). Instructions were issued on April 20, 1989 (Copy Annexure P.9) by the BBMB laying down the qualifications and experience for filling the posts of Clerks. In 1989 post of Hindi Typist was sought to be filled and petitioner's daughter applied for the same. However, the Board was not keen to select her. The test was postponed. The petitioner's daughter was, however, appointed on 89 days basis from August 1, 1989 to October 28, 1989 vide letter - Annexure P.6. Her Service stood terminated on expiry of the aforesaid period. However, children of other employees were retained. A representation was submitted by the petitioner on January 29, 1990 (Annexure P.11). On that account respondents Nos. 3 to 5 became inimical towards the petitioner and his daughter. They did not take any decision on the representation moved by petitioner's daughter and did not offer next vacancy occuring to her. Instead one Gian Prakash was transferred from Sundernagar and posted as Hindi typist at Chandigarh. Subsequently, aforesaid Gian Chand was promoted. Such was discriminatory treatment given to petitioner's daughter. Services of other employees of the Board were regularised in view of the decision in Piara Singh's case. However, petitioner's daughter's services stood terminated. Departmental action was also sought to be taken against the petitioner when on petty matters show-cause notices were sent to him. Such like letters are Annexures P.13, P.15 to P.19. The petitioner submitted replies/representations thereto, copies of which are Annexures P.20 to P.21. In a vindictive attitude the petitioner was repatriated to the State of Haryana in the Irrigation Department. A general allegation was also leveled that the employees of the State of Haryana were being dominated and ill-treated by the employees of the Punjab State working with the BBMB. On receipt of letter-Annexure P-25 dated July 14, 1991, the petitioner made representation. However, the petitioner was occupying house which he was required to vacate immediately as directed by respondent No.5. This action was also uncalled for a several employees were continuing to occupy such like quarters even after their transfer from the BBMB. Details of such like persons were given in the petition. It is on the basis of these allegations that the order of repatriation of the petitioner by the BBMB to Irrigation Department of State of Haryana was challenged. In the written statement filed by the BBMB and the officials, the writ petition has been contested inter alia asserting that the order of repatriation of the petitioner to the parent State of Haryana is not an order of punishment. The allegations of mala fide and bias were denied. Such an order was passed with the consultation and approval of the Irrigation Department of the State of Haryana. After repatriation the petitioner had no claim to the house allotted to him during his tenure of service with the BBMB. A replication was also filed by the petitioner re-iterating his stand as given in the writ petition.
2. Shri S.C. Mohunta, Senior Advocate, for the petitioner, has raised a legal argument that the petitioner who was an employee of the State of Haryana, being allocated on re-organisation of the States as such, could not be repatriated to the State of Haryana by the BBMB unless such an action was approved by the State Government. Reliance has been placed in support of this contention on the provision of Section 79 of the Punjab Reorganisation Act, 1966.
3. The Bhakra Management Board was constituted for the administration, maintenance and operation of the works as mentioned in Section 79(1) of the Act, Section 79 (4) and (6) of the Act which is relevant for the decision of the present case reads as under:-
" (4) The Bhakra Management Board may employ such staff as it may consider necessary for the efficient discharge of its functions under this Act;
Provided that every person who immediately before the constitution of the said Board was engaged in the construction, maintenance or operation of the works in Sub-section (1) shall continue to be so employed under the Board in connection with the said works on the same terms and conditions of service as were applicable to him before such constitution until the Central Government by order directs otherwise:
Provided further that the said Board may at any time in consultation with State Government or the Electricity Board concerned and with the previous approval of the Central Government return any such person for service under that Government or Board.
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(6) The Bhakra Management Board shall be under the control of the Central Government and shall comply with such directions, as may from time to time, be given to it by that Government."
4. The counsel relied upon the decision of this Court in P.C. Jain v. The Union of India etc.,1, 1971 Cur. L.J. 691, wherein with respondent to the employees already working with Beas Construction Board, it was held that they could not be repatriated to the parent State without prior consultation to the State Government and without prior approval of the Central Government. The contention of the learned counsel for the petitioner that the service conditions of the petitioner were governed by Section 79 (4) of the Act aforesaid cannot be accepted for the simple reason that it was in 1979 that the petitioner was appointed on transfer to the BBMB. During arguments, copy of the order dated July 27, 1979, passed in this respect, was produced. It may be observed that it was not specifically pleaded in the writ petition as to when the petitioner was inducted into the service of the BBMB. It may be that at one time earlier the petitioner had served in the Beas project. However, subsequently he was transferred back to his parent State where he worked for two years i.e. from 1977 to July 1979. Thus before he was posted in the BBMB, he was serving in the Irrigation Department of the State of Haryana. Section 79(4) of the Act will not be attracted to the case in hand. Previous service of the petitioner with Beas Project is not to be taken into consideration for deciding the controversy.
5. Reliance placed on the instructions Annexure P.27 on behalf of the petitioner to challenge the order of repatriation of the petitioner is misconceived. These instructions were issued in respect of repatriation of surplus staff from the BBMB to their parent State/State Electricity Boards. These instructions provide that no person will be repatriated until his orders regarding his withdrawal from the BBMB are issued by this parent department and are received in the BBMB meaning thereby that the parent department should accept its employee on withdrawal from the BBMB. In the present case the Irrigation Department of State of Haryana in fact accepted the repatriation of the petitioner as is apparent from order dated July 15, 1991- Annexure P.26, issued by the Deputy Secretary of the Irrigation Department. The petitioner was further directed to obtain his posting order from the Chief Engineer, Canal/Irrigation Department, Haryana. Before this was done, the matter was discussed with the Chief Engineer Shri J.P. Gupta, Letter Annexure P.22, dated July 9, 1991, issued by the BBMB is indicative of that fact. It was communicated to the Chief Engineer that repatriation of Shri Gobind Ram Sharma, Senior Scale Stenographer, was necessary and a panel of three Senior Scale Stenographers be sent for his substitute. Letter dated July 12, 1991, Annexure P.23, from the Chief Engineer to the Secretary, BBMB, is his concurrence in this respect. Learned counsel for the petitioner argued that this concurrence should not be taken as prior approval of the State Government for repatriation of the petitioner. This contention loses its significance when the State Government having accepted repatriation directed the petitioner to take posting orders from the Chief Engineer vide order dated July 15, 1991 - Annexure P.26, already referred to above.
6. Another argument has been addressed by the learned counsel for the petitioner that throughout the petitioner remained an employee of the State of Haryana, his allocation to the State of Haryana on reorganisation of the State. At that time i.e. in 1961 the petitioner was already working in the Project for construction of Bhakra. That Project was ultimately taken over by the BBMB for maintenance, operation etc. under section 79(1) of the Act. The BBMB is in fact owned by different States including the State of Haryana. The thrust of this argument is to gain strength to the plea that when a house is allotted to the petitioner at Chandigarh by the BBMB he would be entitled to retain the same even on repatriation. The posting of the petitioner to the BBMB cannot legally be treated as on deputation. In support of this contention reference was made to the decision of this Court in Sohanlal and Ors. v. Union of India,2, 1978 LAB. I.C. 1198. That was also a case of employees engaged in the construction work of Bhakra Nangal and Beas Project immediately before November 1966. It was observed that such persons could not be deemed on foreign service or on deputation to the respective management boards. In para 20 of the judgment while referring to the meaning to be attached to the definition of "deputation" in Service Rules, it was observed as under:-
" It was fairly conceded before us that there was no statutory definition of the work 'deputation' in the Service Rules. However, it appears to be plain that the concept of deputation is equally consensual and involves the voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. It may equally involve the consent of the employee to go on deputation or not. Neither of these conditions are remotely satisfied in the context of Section 79(4) of the Act. All the considerations which have been noticed above in the context of foreign service seem to apply mutatis mutandis as regards deputation as well."
7. The matter was also under consideration before the Supreme Court in Jaswant Singh and Ors. etc. etc. v. Union of India,3, A.I.R. 1980 Supreme Court 115. A clear cut distinction was drawn with respect to the employees of Beas Project directly recruited and the deputationists from the State Governments. With respect to the persons directly recruited in the Project, on completion of the same their services were liable to be terminated. With respect to employees of the States working in the project, their services could not be terminated.
8. The petitioner cannot take any benefit of the decision in Sohan Lal's case, referred to above. The petitioner may have been in the service of Bhakra Nangal and Beas Project immediately before November 1, 1966 when the reorganisation Act came into force. However, afterwards he was repatriated to the State of Haryana in 1977 and for two years he worked there when he was transferred to the BBMB.
9. In several judicial pronouncements the matter of transfer has been considered and the ratio of such decisions which is common needs to be kept in view. The Supreme Court in Gujrat Electricity Board v. Atmaram Sungomal Poshani,4, (1989)2 S.C.C. 602, observed that the transfer is an incident of service and an employee could not claim to be posted at a particular place. It was observed as under:-
"Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to other is an incident of service. No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration. Whenever a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceedings on transfer it is open to make representation to the competent authority, for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed modified or cancelled, the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made representation or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance with the transfer order, he would expose himself to disciplinary action under the relevant rules, as has happened in the instant case."
10. Similar view was expressed by the Supreme Court in J.K. Dave v. State of Gujarat and Ors.,5, (1989) 1 30 (I) GLR 571, After referring to the aforesaid two decisions of the Supreme Court, the Gujarat High Court, in Dr. Hayesh Vasudevbhai Trivedi v. State of Gujarat and Ors.,6, 1990(4) S.L.R. 459, in para 6 of the judgment observed as under:-
"The law on the point of transfer is now well settled that the transfer is an incident of service and Government servants or employees of the public undertaking holding the transferable posts, are supposed to carry out the transfer order and take charge at the place of transfer and cannot insist for the particular place of transfer. If at all any such Government servant or the employee has personal reasons or is likely to be caused inconvenience by the transfer, the remedy is by way of representation to the transferring authority but except the malafides or similar such grounds are established, the transfer order cannot be set aside by the Court."
11. Posting on deputation is also a transfer. The Supreme Court in R.S. Makashi v. I.M. Menon, (1982) 1 SCC 379 observed as under:-
" There is not much difference between deputation and transfer. Indeed, when a deputationist is permanently absorbed in the C.B.I. he is under the rules appointed on transfer. In other words, deputation may be regarded as a transfer from one Government to another:-
12. The aforesaid judgment was relied upon by the Chandigarh Administrative Tribunal in Mrs. G.I. Singh v. Union of India and Ors.,8, 1989 (5) SLR 748. This Court in Balraj Singh Sood v. The Chief Commissioner Union Territory, Administration Chandigarh,9, 1985(1) SLR 587, observed that the reversion to parent department of the deputationist would be proper and not arbitrary more-so, when made on his request. No question of discrimination arises when an employee is sent to the parent department.
13. As to when an order of transfer would amount to punishment, the matter was considered by the Supreme Court in K.H. Phadnis v. State of Maharashtra,10, 1971 (2) S.L.R. 345. That was a case in which reversion order was not passed on abolition of post or the employee was found unsuitable. The parent department expressed that it did not want him back. It was in these circumstances that it as held that the order was passed by way of punishment attracting the provision of Article 311 of the Constitution. The ratio of the decision aforesaid cannot be applied to the facts of the present case when the Haryana State has accepted the petitioner back in service.
14. The question as to whether order of repatriation of the petitioner to the parent department has been passed mala fide, the allegations made in the petition again be briefly noticed. The main thrust of the petitioner in this context is that the BBMB did not favour him by appointing his daughter on any post. This was done in order to harass the petitioner and in the chain of such harassment the petitioner was being deprived of the facility of enjoyment of the allotted house. Otherwise it is stated that on account of show-cuase notice with respect to an error in preparing draft of a letter the order of repatriation to the parent department was uncalled for. There is no merit in this contention. The daughter of the petitioner was being accommodated on temporary basis some time in the past and for non-availability of post or for other relevant consideration it was considered not appropriate to accommodate her later on. It cannot be said that the officers of the BBMB were acting mala fide against the interest of the petitioner. A typographical error in preparing the draft as such, if proved to be so, could not be the basis for his repatriation. It may be observed that if such an error was noticed and attention of the petitioner was drawn thereto, it could not be held that the officers were acting mala fide against the interest of the petitioner. Mere mentioning in the show cause notice of taking disciplinary action in the matter was only a temporary expression of opinion. It could not be said that the authority was pre-determined to take action. It was only after the receipt of the reply that such an opinion was required to be formed. Since it was the duty of the immediate officer to point out even petty mistakes to the official concerned during the course of service, as was done in the present case, no mala fides, personal or legal, could be attributed.
15. The petitioner having failed to establish that order of repatriation was passed with a mala fide intention, cannot succeed in this behalf. The petitioner could not claim as a matter of right to slay on the post with the BBMB when the BBMB and the State of Haryana decided that the petitioner should be repatriated and he was so ordered. Such an order cannot be held to be illegal.
16. Since the petitioner joined the BBMB in 1979. It was thereafter that he was allotted a house which is now being occupied by him even after his repatriation. The contention of the learned counsel for the petitioner is that on his transfer back to the BBMB he continued to be the employee of the State of Haryana, and is entitled to retain the house, which through belonged to the BBMB, the State of Haryana has a share therein. This contention is again devoid of merit. The BBMB, a statutory entity, could hold and dispose of property. Quarters were constructed by the BBMB after allotment of land by the Union Territory, Chandigarh, and thereafter allotted to its own employees as well as the employees working with the BBMB on deputation. The allotment of house in such circumstances is nothing but a licence or permission that can be revoked any time. No right can be claimed qua such a house when the petitioner is no more an employee of the BBMB. The petitioner has thus no legal right to keep the house on his repatriation to the State of Haryana and no direction can be given to allow the petitioner to remain in the house till his retirement which is in 1995.
17. For the reasons recorded above, this writ petition is dismissed with no order as to costs.