Shiv Shankar Lal vs State Of Jharkhand & Ors. on 28 July, 2017

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Jharkhand High Court

Shiv Shankar Lal vs State Of Jharkhand & Ors. on 28 July, 2017

2. Petitioner has challenged the Notification dated 12.10.2009 issued by the Department of Urban Development, Government of Jharkhand, Ranchi whereby the services of the petitioner has been returned to his parent organization-Bihar State Co-operative Marketing Union (BISCOMAUN) without assigning any reason. Further prayer has been made to release salary and other dues under the different headings to the petitioner.

3. Petitioner's case in short is that the petitioner was initially appointed as a Junior Engineer in BISCOMAUN on 07.04.1979 thereafter, on request made by the Urban Development Department, Govt. of united Bihar, the services of the petitioner was handed over to the said Department on deputation basis by the BISCOMAUN vide its memo dated 22.05.1998. In compliance thereof, the petitioner joined the services of respondent-Urban Development Department and he was posted as an Assistant Engineer in Ranchi Regional Development Authority which was communicated to him vide memo dated 25.06.1998. The petitioner worked continously for 11 years and presently working as Assistant Engineering Mineral Area Development Authority, Dhanbad under the Urban Development Department, Govt. of Jharkhand. It is further stated that while the petitioner was working under the respondent-Department, the parent organization of the petitioner was declared sick and a decision was taken by the State of Bihar to appoint Administrator to look after the 2. affairs of BISCOMOUN. In the meantime, the co-operative Department, Govt. of Bihar has made request to the Secretaries of all the Department of the Govt. of Bihar to absorb the services of employees working under the BISCOMOUN. Consequently, vide memo dated 06.07.1999 issued by the Govt. of Bihar, most of the employees of the BISCOMOUN got deputation under different departments under the Govt. of Bihar. It is further case of the petitioner that as he was already on deputation with the respondents hence he could not be absorbed by other Departments by virtue of the above stated memo dated 06.07.1999 of the Govt. of Bihar. It was specifically mentioned in the said memo dated 06.07.1999 that if the services of the deputationist is returned to BISCOMOUN, it will amount to their virtual termination. It is further stated that the position of BISCOMOUN deteriorated up-to that extent that it has become more or less defunct organization/institution of the Govt. of Bihar. And now when the position of the parent department has become defunct the respondent Urban Department has decided to send back the services of the petitioner to his parent organization vide letter dated 12.10.2009 and that too without assigning any reason which is illegal arbitrary and not sustainable in the eyes of law.

4. Learned Counsel for the petitioner Mr. Amit Sinha argues that the repatriation of the services of the petitioner to a dying organization amounts to termination of the services of the petitioner in view of memo dated 06.07.1999 of the Govt. of Bihar and as such taking away of the livelihood of the petitioner and his family without any fault on behalf of the petitioner is illegal, arbitrary and not sustainable in the eyes of law.

5. To butress his argument the learned Counsel for the petitioner has relied upon the order dated 12.09.1997 passed in C.W.J.C.No.3513/1994 in the case of "Amarnath Singh vrs. State of Bihar"

6. On the other hand, Mr. Bhavesh Kumar and Mr. Prashant Kumar Singh learned Counsels for the respondents vehemently opposes the contention and argument advanced by the learned Counsel for the petitioner. Learned Counsel further argues that the petitioner was not the only person, who was repatriated. Several departments have sent back several other employees to BISCOMAUN. Petitioner, being a deputationist , had no right over the 3. post. And as such there is no infirmity and illegality in the impugned order and on this ground itself this writ petition is liable to be dismissed in limine.

However, the stand of the Urban Development Department, Government of Jharkhand, Ranchi is that it is the discretion of the Department to utilize the services of the deputationist or to return him to his parent department and he cannot claim absorption as a matter of right, in the absence any policy decision to that effect. There is no wrong committed by the respondent in passing of the impugned order and this writ petition is liable to be rejected.

To butress their argument the leaned Counsel for the respondents heavily relied on the judgment passed in the case of "Satyendra Singh & Ors. vrs. State of Bihar & Ors., reported in 2006 4 BBCJ 322; 2006 3 PLJR 458; 2006 0 Supreme (Pat)

635.

7. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that no case is made out by the learned Counsel for the petitioner in his favour and there is no merit in this writ petition. The main contention is that the services of the petitioners cannot be returned to BISCOMAUN and he should be absorbed on the posts on which the petitioner was working on deputation. The case of Amarnath Singh (supra) is of no help to the petitioner. In the said case the Bihar State Agro Industries Development Corporation Ltd. was closed and the employees were declared surplus and a decision was taken by the Chief Secretary to adjust them in other government departments, which is not the position in this case. There is nothing to show that the employees of BISCOMAUN has been declared surplus and that any decision has been taken by the State Government to adjust/absorb them in other departments.

8. The case of the petitioner is squarely covered by the ratio of the judgment of Patna High Court in the case of Satyendra Kumar Singh (Supra), paragraphs No.12 to 20 of which reads as follows:-

"12 From the pleadings of the parties, it is manifest that the petitioners were sent on deputation in different Departments of the State of Bihar and now the State Government has directed for their repatriation in their parent Department in view of its general policy as well as in compliance of the direction of this Court.

Admittedly, the petitioners are in foreign services and till date no decision has been taken to absorb them permanently on the ground of inviability of the BISCOMAUN. The petitioners, in that view of the matter, do not have indefeasible right to continue on deputation, beyond a period of three years.

13. It is true that on the basis of recommendation of the High Level Committee, the State Government decided to adjust the persons of Engineering Wing of the BISCOMAUN to different Departments of the State of Bihar and ,accordingly, they were sent on deputation in different Departments of the State of Bihar, as referred to above, where till date they are continuing. But, at the same time, the decision of the State Government cannot be termed to be an order of absorption of the petitioners in the Government Department, and, therefore, the nature of their adjustment by way of deputation in different Departments of the State Government, in no way, entitles them to continue on deputation under legitimate expectation that they will be absorbed permanently.

14. The question as to whether BISCOMAUN is viable or not, is altogether a different question, but it cannot be a ground for its employees to continue on deputation for an indefinite period in a Foreign Department, and, therefore, question of repatriation shall not be an exception, but as a rule , as if follows as corollary to their deputation.

15. It appears from the supplementary counter affidavit filed on behalf of the PRDA in CWJC No.1899 of 2001 that on different occasions, this Court issued necessary directions in CWJCNos. 2290 of 1990 and 5862 of 2005 vide annexures A,B and C thereto, for repatriation of the Engineers , who were in PRDA by virtue of the orders of deputation.

16. In CWJC No.2290 of 1990, a Bench of this Court, comprising Justice B.P.Singh (Hon'ble the Acting Chief Justice) and Justice A.K.Ganguly, on 8.2.2000 directed as follows:

"It is also brought to our notice that in the Engineering Cell of the P.R.D.A. a large number of Junior Engineers and other ranks have remained deputed for over three years, which is the normal tenure of deputation. Apparently, such officers have developed vested interest and it is not desirable to continue them or deputation for more than three years. We are told that the P.R.D.A. has already written to the State Government in this regard. We request the State Government to take an appropriate decision and to replace all those officers who have been in the Engineering Cell on deputation for more than three years in the P.R.D.A. This decision should be taken within two weeks from the date on which a copy of this order is produced before the Secretary of the concerned Department. The same direction will apply to the deputationists who have come from other organization, such as BISCOMAUN etc."

17. From the facts, as enumerated above, it appears to me that the petitioners till date have not been terminated by their parent Department i.e. BISCOMAUN, rather they are continuing on deputation in different Departments of the State of Bihar, nor it is a 5. case of transfer of the petitioners from one Department of the State Government to another, and, therefore, the decisions, rendered by the Apex Court in cases of G. Govinda Rajulu (supra) and State of Mysore & Anr. Vs. R.S.Kasi (supra) are of no avail to the petitioners.

18. To sum up, it is held that the petitioners do not have indefeasible right to continue on deputation for ever and in view of the ratio laid down by this Court in case of State of Bihar and Ors. Vrs. Gopal Prasad and Ors. (supra) the petitioners are liable to be repatriated.

19. In the result, these writ applications are dismissed.

20. However, before I part with this order, I would like to observe that in case the parent Department of the petitioners may move the appropriate Government for their absorption in any of the Departments of the State of Bihar in accordance with law."

9. I fully agree with the said judgment, and it is made applicable to the case of the petitioner, including paragraph 20 thereof. Accordingly, neither any direction can be issued to the respondents for absorption of the petitioner, nor the impugned notification sending him back to his parent Corporation can be held to be illegal. In the result, this writ petition is dismissed.

[Dr.S.N.Pathak,J.] P.K.S.

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