Patna High Court
Kameshwar Prasad Singh & Anr vs The State Of Bihar & Ors on 19 April, 2010
Author: Shiva Kirti Singh
Bench: Shiva Kirti Singh, C.M.Prasad
Letters Patent Appeal No.608 OF 2006
--------------------
Against the judgment and order dated 26-7-2006
Passed in C.W.J.C. No. 7462 of 2000 by a Bench of
this Court.
----------------
AVINASH VATSYAYAN, SON OF LATE SHIV NANDAN MISHRA,
RESIDENT OF 81, JAGAT AMARAWATI, MAHESH NAGAR, POLICE
STATION,KOTWALI,DISTRICT- PATNA.......... APPELLANT
Versus
1. THE STATE OF BIHAR THROUGH THE SECRETARY, SCIENCE AND
TECHNOLOGY DEPARTMENT, GOVT. OF BIHAR, PATNA.
2. THE SECRETARY, SCIENCE AND TECHNOLOGY
DEPARTMENT,GOVT. OF BIHAR, PATNA.
3. THE SECRETARY, CO-OPERATIVE DEPARTMENT,GOVT. OF BIHAR,
PATNA..
4. THE BISCOMAUN, THROUGH ITS ADMINISTRATOR,PATNA,BIHAR.
5. THE ADMINISTRATOR,BISCOMAUN, PATNA. BIHAR... RESPTS.
6. DINESH CHANDRA SINGH, SON OF DR. LALA PD. SINGH R/O + P.S.
IDHEDHI, DISTRICT- BUXAR... PERFORMA RESPONDENT
WITH
LPA No.628 oF 2006
1. JAINATH TIWARY, SON OF SRI GANESH TIWARY, RESIDENT OF
VILLAGE- MATULI, P.S. SIDHWALIA,DISTT. GOPALGANJ
2 SATYENDRA KUMAR SINGH SON OF SRI SHEO SHANKAR SINGH,
RESIDENT OF VILLAGE- NAINI, P.S. MUFFASIL,DIST. SARAN-
CHHAPRA.................................................. APPELLANTS
Versus
1. THE STATE OF BIHAR, THROUGH THE SECRETARY, URBAN
DEVELOPMENT DEPARTMENT,GOVT. OF BIHAR,PATNA.
2. THE SECRETARY, URBAN DEVELOPMENT DEPARTMENT,GOVT.
OF BIHAR, PATNA
3. THE SECRETARY, CO-OPERATIVE DEPARTMENT, GOVT. OF
BIHAR, PATNA.
4. THE PATNA REGIONAL DEVELOPMENT AUTHORITY THROUGH
ITS VICE-CHAIRMAN, MAURYALOK, PATNA.
5. THE VICE-CHAIRMAN, THE PATNA. REGIONAL DEVELOPMENT
AUTHORITY, MAURYALOK, PATNA.
6. THE BIHAR STATE CO-OPERATIVE MARKETING UNION
THROUGH ITS MANAGING DIRECTOR, BIHAR, PATNA
7. THE MANAGING DIRECTOR, BIHAR STATE CO-OPERATIVE
MARKETING UNION, PATNA....................... RESPONDENTS.
8. SRI KAMESHWAR PRASAD SINGH, SON OF SRI SHANKAR SINGH,
RESIDENT OF VILLAGE- KOHARGARH, P.S. EKMA, DIST.CHAPRA
9. SANTOSH KUMAR SINGH, SON OF SRI MANINDRA NATH SINGH,
RESIDENT OF MOHALLA- MACKCHUND TOLI, P.S. CHUTIA,
DISTRICT- RANCHI............... PETITIONERS..... RESPONDENTS.
WITH
LPA No.680 oF 2006
SURENDRA KUMAR, SON OF SRI DUDHESHWAR PRASAD,
2
RESIDENT OF VILLAGE- TITAI BIGHA, P.S. MAKHDUMPUR,
DISTRICT- JEHANABAD.................................. APPELLANT
VERSUS
1. THE STATE OF BIHAR, THROUGH THE SECRETARY, URBAN
DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA.
2. THE SECRETARY, URBAN DEVELOPMENT DEPARTMENT,
GOVERNMENT OF BIHAR, PATNA.
3. THE SECRETARY, COOPERATIVE DEPARTMENT,GOVT. OF
BIHAR, PATNA..
4.THE PATNA. REGIONAL DEVELOPMENT AUTHORITY THROUGH
ITS VICE-CHAIRMAN, MAURYALOK, PATNA
5.THE GAYA REGIONAL DEVELOPMENT AUTHORITY THROUGH
ITS VICE-CHAIRMAN, GAYA
6. THE BIHAR STATE CO-OPERATIVE MARKETING UNION
THROUGH ITS MANAGING DIRECTOR, BIHAR PATNA
7. SRI NARENDRA SINGH, S/O SRI YADUNATH SARAN SINGH, R/O
MOHALLA- RAJENDRA NAGAR,P.S. KADAMKUAN,DISTT.PATNA
8. THE GAYA MUNICIPAL CORPORATION THROUGH ITS CHIEF
EXECUTIVE OFFICER, GAYA ................ RESPONDENTS.
WITH
LPA No.720 oF 2006
1. SHIV SHANKAR PRASAD SINGH , SON OF LATE SURYA
NR.SINGH,
PRESENTLY POSTED AS SENIOR LECTURER, GOVT.
POLYTECHNIC, MUZAFFARPUR
2. SHAILESH BIHARI PANDAY, SON OF SRI SWAIMBER PANDEY
EARLIER WORKING AS SENIOR LECTURER, GOVT.
POLYTECHNIC, MUZAFFAPUR, PRESENTLY WORKING AS
LECTURER, GOVT. POLYTECHNIC, GULZARBAGH, PATNA.-7
3. SUSHIL KUMAR MISHRA, SON OF SRI INDRA NARAYAN
MISHRA,
PRESENTLY WORKING AS LECTURER, GOVERNMENT
POLYTECHNIC, GAYA
4. AWADHESH PD.SINGH, SON OF SRI BANWARI SINGH,
PRESENTLY WORKING AS LECTURER, GOVT. POLYTECHNIC,
BARAUNI ............................................... APPELLANTS
Versus
1. THE STATE OF BIHAR THROUGH SECRETARY, SCIENCE AND
TECHNOLOGY DEPARTMENT,GOVT. OF BIHAR
2. THE SECRETARY, SCIENCE AND TECHNOLOGY DEPARTMENT,
GOVT. OF BIHAR, PATNA.
3. THE SECRETARY,COOPERATIVE DEPT. GOVT. OF BIHAR,PATNA.
4. THE BISCOMAUN THROUGH ITS ADMINISTRATOR,PATNA.
5. THE ADMINISTRATOR, BISCOMAUN- PATNA..... RESPTS.
WITH
LPA No.787 oF 2006
1. SUSHIL KUMAR SRIVASTAVA , SON OF JALESHWAR PRASAD
SRIVASTAVA, RESIDENT OF MOHALLA SRI NAGAR HATA, P.S.
KHAZANCHI HAT, DISTRICT- PURNEA, PRESENTLY WORKING AS
LECTURER, GOVT. POLYTECHNIC, PURNEA... APPELLANT
Versus
1. THE STATE OF BIHAR THJROUGH SECRETARY, SCIENCE AND
TECHNOLOGY DEPARTENT GOVT. OF BIHAR, PATNA.
3
2. THE SECRETARY, SCIENCE AND TECHNOLOGY DEPARTMENT,
GOVT. OF BIHAR, PATNA.
3. THE SECRETARY, INDUSTRIES DEPARTMENT, GOVT. OF BIHAR,
PATNA.
4. THE BIHAR STATE PHARMACEUTICAL AND CHEMICAL
DEVELOPMENT CORPORATION LIMITED THROUGH ITS
MANAGING DIRECTOR, BIHAR, PATNA.
5. THE MANAGING DIRECTOR, BIHAR STATE PHARMACEUTICAL
AND CHEMICAL DEVELOPMENT CORPORATION LIMITED, BIHAR,
PATNA..................................................... RESPONDENT.
WITH
LPA No.788 oF 2006
1. TRIVENI PRASAD SINGH , SON OF LATE BHIKSHUK PRASAD
SINGH, PRESENTLY WORKING AS LECTURER, GOVT.
POLYTECHNIC, SAHARSA
2. RAMESH KUMAR, SON OF LATE PRABHU MAHTO, PRESENTLY
WORKING AS LECTURER, GOVT. POLYTECHNIC,
GAYA........................................................APPELLANTS
Versus
1. THE STATE OF BIHAR THROUGH SECRETARY, SCIENCE AND
TECHNOLOGY DEPARTMENT, GOVT. OF BIHAR, PATNA.
2. THE SECRETARY, SCIENCE AND TECHNOLOGY DEPARTMENT,
GOVERNMENT OF BIHAR, PATNA.
3. THE SECRETARY, AGRICULTURE DEPARTMENT, GOVT. OF
BIHAR, PATNA
4. THE BIHAR STATE AGRO INDUSTRIES DEVELOPMENT
CORPORATION LIMITED THROUGH ITS MANAGING DIRECTOR,
BIHAR, PATNA.
5. THE MANAGING DIRECTOR, BIHAR STATE AGRO INDUSTRIES
DEVELOPMENT CORPORATION LIMITED, BIHAR, PATNA.
6. AMRENDRA KUMAR SINGH, SON OF SRI CHANRA KISHORE PD.
SINGH EARLIER WORKING AS LECTURER, GOVT.
POLYTECHNIC, SAHARSA, PRESENTLY RETIRED... RESPTS.
WITH
LPA No.795 oF 2006
1. KAMESHWAR PRASAD SINGH SON OF SRI SHANKAR SINGH,
RESIDENT OF VILLAGE KOHARGARH, P.S. EKMA, DISTT-
CHAPRA, AT PRESENT- RESIDING AT ROAD NO. 14, RAJIV
NAGAR, P.S. DIGHA, DISTRICT- PATNA.
2. SANTOSH KUMAR SINGH SON OF SRI MANINDRA NATH SINGH,
RESIDENT OF MOHALLA- MACKCHUND TOLI, P.S. CHUTIYA,
DISTRICT- RANCHI..........................................APPELLANTS
Versus
1. THE STATE OF BIHAR THROUGH ITS SECRETARY, URBAN
DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA.
2. THE SECRETARY, URBAN DEVELOPMENT DEPARTMENT, GOVT.
OF BIHAR, PATNA.,
3. THE SECRETARY, COOPERATIVE DEPARTMENT, GOVT. OF
BIHAR, PATNA.
4. THE PATNA REGIONAL DEVELOPMENT AUTHORITY, THROUGH
ITS VICE- CHAIRMAN, MAURYALOK, PATNA.
4
5. THE VICE-CHAIRMAN, PATNA REGIONAL DEVELOPMENT
AUTHORITY, MAURYA LOK, PATNA.
6. THE BIHAR STATE COOPERATIVE MARKETING UNION LIMITED,
THROUGH ITS ADMINISTRATOR, BIHAR, PATNA.
7. THE ADMINISTRATOR,BISCOMAUN, PATNA
8. SRI NARAYAN YADAV S/O NAME NOT KNOWN TO THE
APPELLANT, MINISTER URBAN DEVELOPMENT DEPARTMENT
AND CHAIRMAN, P.R.D.A. PATNA R/O 22 BAILEY ROAD,
SHASHTRINAGAR, P.S. SHASHTRINAGAR, DISTT. PATNA...
................................................ RESPONDENTJS.
9. SATYENDRA KR. SINGH S/O SHRI SHEO SHANKAR SINGH,
RESIDENT OF VILLAGE- NAINI, P.S. MUFASSIL, DISTRICT-
SARAN, CHAPRA
10. JAINATH TIWARY SON OF SRI GANESH TIWARY, RESIDENT OF
VILLAGE- MATAULI, P.S. SIDHWALIA, DISTRICT-
GOPALGANJ........................................ RESPONDENTS.
WITH
LPA No.1110 oF 2004
1. RAM VINAY ROY SON OF LATE CHITAN RAI, REISEDENT OF
VILLAGE PAVITRA NAGAR, POST. OFFICE, HARNAHI, P.S. SHEOHAR,
DISTT.- SHEOHAR, AN EMPLOYEE OF BIHAR STATE AGRO
INDUSTRIES DEVELOPMENT CORPORATION LTD. SINHA LIBRARY
ROAD, PATNA. ON DEPUTATION TO BIHAR STATE HYDROELECTRIC
POWER CORPORATION LTD. SONE BHAWAN, BIRCHAND PATEL
MARG, PATNA.
2 JAIRAM CHAUDHARY SON OF KEDAR CHAUDHARY, RESIDENT
OF MOHALLA YADUBANSHI NAGAR, P.O. DIGHAGHAT, P.S.
DIGHA, DISTT. PATNA, AN EMPLOYEE OF BIHAR STATE AGRO
INDUSTRIES DEVELOPMENT CORPORATION LIMITED, SINHA
LIBARARY ROAD, PATNA. ON DEPUTATION TO BIHAR STATE
HYDROELECTRIC POWER CORPORATION LTD. SONE BHAWAN,
BIRCHAND PATEL MARG, PATNA.
3 DEVENDRA PRASAD SINGH SON OF LATE KAMLA SINGH,
RESIDENT OF MOHALLA DIGHAGHAT ( AKHARA ROAD), P.O.
DIHGA GHAT, P.S. DIGHA, PATNA, AN EMPLYEE OF BIHAR
STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION
LIMITED, SINHA LIBRARY ROAD, PATNA. ON DEPUTATION OF
BIHAR STATE HYDRO ELECTRIC POWER CORPORATION
LIMITED, SONE BHAWAN, BIRCHAND PATEL MARG, PATNA.
4 SHYAMDEO PRASAD SON OF LATE MOHIT RAI, RESIDENT OF
VILLAGE MAKHDUMPUR, P.O. DIGHA GHAT, P.S. DIGHA, DIST.
PATNA, AN EMPLYEE OF BIHAR STATE AGRO INDUSTRIES
DEVELOPMENT CORPORATION LIMITED, SINHA LIBRARY
ROAD, PATNA. ON DEPUTATION TO BIHAR STATE HYDRO
ELECTRIC POWER CORPORATION LIMITED, SONE BHAWAN,
BIRCHAND PATEL MARG, PATNA.
5 CHANDRA KANT LAL DAS SON OF LATE KALA NANDLAL DAS,
RESIDENT OF MOHALLA NEPALI NAGAR, DIGHA ASHIANA
ROAD, P.O. ASHIANA NAGAR, P.S. DIGHA, DISTT. PATNA, AN
EMPLOYEE OF BIHAR STATE AGRO INDUSTRIES DEVELOPMENT
CORPORATION LIMITED, SINHA LIBRARY ROAD, PATNA, ON
DEPUTATION TO BIHAR STATE HYDRO ELECTRIC POWER
5
CORPORATION LIMITED, SONE BHAWAN, BIRCHAND PATEL
MARG, PATNA.
6 SHRINATH RAI SON OF BHOLA RAI, RESIDENT OF MOHALLA
DIGHA GHAT, HARIPUR COLONY, POST OFFICE DIGHA GHAT,
P.S. DIGHAGHAT, DISTT. PATNA. , AN EMPLOYEE OF BIHAR
STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION
LIMITED, SINHA LIBRARY ROAD, PATNA ON DEPUTATION TO
BIHAR STATE HYDRO ELECTRIC POWER CORPORATION
LIMITED, SONE BHAWAN, BIRCHAND PATEL MARG- PATNA.
7 HIRA MANI DEVI WIFE OF LATE UPENDRA PRASAD SINGH,
RESIDENT OF VILLAGE RAJEYAN, P.O. RAJEYAN, P.S. PIRO,
DISTT. BHOJPUR, AN EMPLOYEE OF BIHAR STATE AGRO
INDUSTRIES DEVELOPMENT CORPORATION LIMITED, SINHA
LIBRARY ROAD, PATNA, ON DEPUTATION TO BIHAR STATE
HYDRO ELECTRIC POWER CORPORATION LIMITED, SONE
BHAWAN, BIRCHAND PATEL MARG, PATNA.
8 SACHCHIDANAND RAI, SON OF RAM KRIPAL RAI, RESIDENT OF
VILLAGE NAKATA DIYARA, P.O. DIGHA, P.S. DIGHA, DISTT.
PATNA., AN EMPLOYEE OF BIHAR STATE AGRO INDUSTRIES
DEVELOPEMTN CORPCPORATION LIMITED, SINHA LIBRARY
ROAD , PATNA. ON DEPUTATION TO BIHAR STATE HYDRO
ELECTRIC POWER CORPORATION LIMITED, SONE BHAWAN,
BIRCHAND PATEL MARG, PATNA....... APPELLANTS
Versus
1. THE STATE OF BIHAR THROUGH ITS CHIEF SECRETARY, GOVT.
OF BIHAR, PATNA.
2. THE BIHAR STATE HYDRO ELECTRIC POWER CORPORATION
LMITED THROUGH THE MANAGING DIRECTOR, HAVING HIS
OFFICE AT SONE BHAWAN, 2ND FLOOR, BIHARCHAND PATEL
MARG, PATNA.
3. THE MANAGING DIRECTOR, BIHAR STATE HYDRO ELECTRIC
POWER CORPORATION LIMITED, SONE BHAWAN, SECOND
FLOOR, BIRCHAND PATEL MARG, PATNA.
4. THE MANAGER ( PERSONNEL AND ADMINISTRATION), BIHAR
STATE HYDRO ELECTRIC POWER CORPORATION LIMITED, SONE
BHAWAN, 2ND FLOOR, BIR CHAND PATEL MARG, PATNA.
5. THE ASSISTANT MANAGER ( ACCOUNTS ), BIHAR STATE
HYDRO ELECTRIC CORPORATION LIMITED, SONE BHAWAN
, 2ND FLOOR, BIRCHAND PATEL MARG, PATNA.
6. THE BIHAR STATE AGRO INDUSTRIES DEVELOPMENT
CORPORATION LIMITED , THROUGH ITS MANAGING DIRECTOR,
SINHA LIBRARY ROAD, PATNA.
7. THE MANAGING DIRECTOR, BIHAR STATE AGRO INDUSTRIES
DEVELOPMENT CORPORATION LIMITED, SINHA LIBRARY
ROAD, PATNA.
8 .THE SECRETARY, BIHAR STATE AGRO INDUSTRIES
DEVELOPMENT CORPORATION LIMITED, SINHA LIBRARY ROAD,
PATNA............................... RESPONDENTS
( L.P.A. 608 OF 2006 )
FOR THE APPELLANT ;- MR. CHITRANJAN SINHA,
SR. ADVOCATE &
6
MR. RAM SHANKAR DAS,ADVOCATE
FOR THE STATE MR. LALIT KISHORE,A.A.G. III,
MR. ANSHUMAN AC TO AAG III.
FOR BISCOMAUN ;- MR. RAJESH PD. CHOUDHARY,ADVOCATE
( L.P.A. 628,680 AND 795 OF 2006)
FOR THE APPELLANTS :- MR. SHASHI ANUGRAH NARAYAN
SR. ADVOCATE
MR. Y.V. GIRI, SR. ADVOCATE
MR. CHITRANJAN SINHA,SR.ADVOCATE
MR. AJAY KUMAR, ADVOCATE
FOR THE STATE :- MR. LALIT KISHORE, A.A.G. III,
MR. ANSHUMAN SINGH,A.C. TO AAG III
FOR BISCOMAUN MR. RAJESH PD. CHOUDHARY,ADVOCATE
FOR P.M.C. :- MR. SHEKHAR SINGH, ADVOCATE
( L.P.A. 720 OF 2006 )
FOR THE APPELLANTS :- DR. K.N. SINGH,SR. ADVOCATE
MR. MIRTUNJAY KR. ADVOCATE
FOR THE STATE :- MR. LALIT KISHORE, A.A.G. III,
MR. ANSHUMAN SINGH,AC TO AAGIII
FOR BISCOMAUN :- MR. RAJESH PD. CHOUDHARY, ADV.
( L.P.A.787 AND 788 OF 2006)
FOR THE APPELLANTS : MR. PUSHKAR NARAYAN SAHI,ADVOCATE,
MR. MIRTUNJAY KUMAR, ADVOCATE.
FOR THE STATE :- MR. LALIT KISHORE, A.A.G. III,
MR. P.K. VERMA, A.A.G. XI
MR. ANNSHUMAN SINGH,AC TO AAG III
MR. NAND KUMAR SINGH,AC TO AAG XI
----------------
PRESENT
THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH
THE HON'BLE MR. JUSTICE C.M.PRASAD
Shiva Kirti Singh,J All these eight Letters Patent Appeals have been
treated analogous to each other and have been heard together
because of a common issue of law as well as facts as to
whether the appellants were sent to their present employers
7
on simple deputation and therefore liable to be repatriated or
whether their services had, in fact, been transferred in the
name of deputation for the purpose of absorption in
accordance with a policy decision. While two of the Letters
Patent Appeals bearing nos.787 and 788 of 2006 arise out
from a different judgment dated 13-7-2006, the remaining
appeals arise out of a common judgment dated 26-7-2006.
2. Mr. Shashi Anugarah Narain, learned senior
counsel for both the appellants of L.P.A. No. 795 of 2006 led
the arguments in all the cases, mainly on the basis of facts
available in the records of that appeal. For the sake of
convenience, the facts will be referred to from the records of
that appeal only unless it is deemed necessary to refer
specifically to the facts from some other appeals.
3. As noticed earlier L.P.A. No. 795 of 2006 and five
other L.P.As. seek to challenge a common judgment dated
26-7-2006 whereby the writ court dismissed four writ
petitions bearing C.W.J.C. Nos.1139 and 1899 of 2001 and
C.W.J.C.Nos. 7462 and 13598 of 2000, after rejecting the
contention advanced on behalf of the petitioners that
petitioners had been sent on deputation from BISCOMAUN
because Biscomaun at that time was under an Administrator
8
and like several other public undertakings of Bihar was
suffering from poor financial condition and inviability and as
per recommendation of a High Level Committee constituted
by the State of Bihar the deputation was for the purpose of
being absorbed in different wings/ departments of the State of
Bihar and equality of treatment also requires that petitioners
be treated as permanently absorbed like similar deputationists
from BISCOMAUN and several other public undertakings
who have been permanently absorbed. The writ court
accepted the stand of the State and the Patna Regional
Development Authority (P.R.D.A.) that petitioners should be
treated like ordinary deputationists whose deputation can be
terminated at any time. The stand of the State Government
was that it had never taken a decision to absorb the
petitioners and similarly situated persons in different wings/
departments of the State and only as a temporary measure the
petitioners had been sent on deputation. The learned single
Judge also accepted the stand of the State that engineers who
were continuing on deputation in P.R.D.A. had to be
repatriated because of an order dated 8-2-2000 passed in a
Public Interest Litigation bearing C.W.J.C.No. 2290 of 1990.
4. On behalf of appellants the judgment under
9
appeal have been challenged mainly on the ground that the
learned single Judge has failed to distinguish several other
judgments rendered in identical situations including a
judgment by the same Judge taking a different view that such
transfer of service, in view of policy decision at highest level
of the State Government could not be treated as a case of
simple deputation, rather it was a case of transfer of service
for the purpose of absorption because the concerned Public
undertakings, Corporations etc. had become financially
unviable and it had become difficult for them either to take
work from many categories of employees or to pay them
their salary and emoluments. According to learned counsel
for the appellants the writ court has taken an over simplistic
and technical view in these cases by disregarding the fact that
even according to State the petitioners were sent on
deputations some time in 1990 as per the policy decision of
the State Government, as recommended by High Level
Committee constituted by the State of Bihar and that in the
counter affidavit filed on behalf of Biscomaun it was clearly
stated that Biscomaun is not in a position to pay salary to its
employees.
5. Before coming to the detailed arguments
10
advanced by Mr. Shashi Anugrah Narain, learned Sr.
Advocate, it will be useful to take note of certain basic
relevant facts. The appellants in L.P.A. No. 795 of 2006 are
degree holder engineers who were appointed in Biscomaun in
1982-83. Annexure-1 to the memorandum of appeal contains
minutes of decisions taken on 12-2-1993 in presence of High
Officials like Development Commissioner, Bihar,
Administrator, Cooperative Bank, Patna, Administrator,
Bisomaun, Patna and representative of Finance/Personnel
Department. As per that decision, working of various units
and department of Biscomaun were reviewed and relevant
decisions were taken which included a decision to close the
Engineering Department and to take steps for absorption of
such engineers who have necessary qualifications for being
absorbed in Government Department against vacant posts.
Annexure-2 is a proposal contained in memo no. 3359 dated
16-12-1993 issued by the Co-operative Department which is
the controlling department of BISCOMAUN containing
proposal for consideration by a Committee of the Cabinet for
approval of Economic policy and economic co-ordination.
That proposal included a proposal to close the engineering
department of BISCOMAUN and for absorption of qualified
11
engineers in Government department against vacant posts.
The proposal shows that it had the approval of State Minister
for Cooperatives. Although no formal policy decision was
issued by the State of Bihar but in pursuance of decision
noticed above, it is not in dispute that the engineering
department of Bisomaun was closed and services of several
graduate engineers as well as some diploma engineers of
Bisomaun were transferred on deputation basis to different
departments of the State Government like Science and
Technology, Transport, Urban Development, Labour and
Employment etc. Annexures 3 and 4 series to the connected
writ petition (C.W.J.C.No. 1139 of 2001) show that services
of appellant no.1, Kameshwar Prasad Singh were handed
over to Urban Development Department for being posted
under P.R.D.A. in January/February,1993. Some other
engineers of Biscomaun had also been sent on deputation to
Science and Technology Department, Transport Department,
Cooperative Department. Copies of deputation orders of
1994 and of 1997 have also been annexed. Services of
appellant no.2, Santosh Kumar Singh were handed over to
Urban Development Department on deputation pursuant to
their request through letter dated 14-2-1995 contained in
12
annexure-6 series. That letter simply asked for his services
without mentioning that it was required on deputation.
6. In the connected writ petition specific pleadings
were made that several other similarly situated engineers of
Bisomaun were absorbed elsewhere and also in P.R.D.A. but
the matter of absorption of the appellants remained pending.
Since the writ petitioners had apprehension that on account of
delay in passing formal orders of their absorption, the
respondents may create a situation for their services being
returned to Biscomaun where the engineering department
was closed and they would not get service or salary for
moved this court through writ petition. The prayer in the
writ petition was (1) To absorb the services of the petitioners
under the Urban Development Department and (2) to restrain
the respondents concerned from returning their services to
their parent organization. Judgment in the case of one
Amarnath Singh who was sent on deputation to Transport
Department was mentioned to show that order for his
repatriation was quashed by judgment dated 12-9-1997 in
C.W.J.C. No. 3513 of 1994 on the finding that repatriation, in
the facts of the case would amount to termination of his
service. That judgment ( annexure-13) was challenged by the
13
respondents State of Bihar but the L.P.A. before the Division
Bench of this Court as well as S.L.P. (Civil) No. 312 of 1999
were dismissed. A similar judgment dated 9-12-99 passed by
a learned single Judge of this Court in the case of Ramashray
Singh and the concerned department of Industry and
Technology, directed the Government of Bihar to take a
decision in the matter of absorption of Ramashray Singh and
others within two months keeping in view the Government
decision dated 24-27th May,1984 following which those
petitioners were sent on deputation and also keeping in mind
the judgment in the case of Amarnath Singh (Annexure-13) .
7. On the basis of aforesaid facts learned Senior
Counsel for the appellants, Mr. Shashi Anugrah Narain made
a pointed challenge to the four reasons indicated by learned
single Judge for dismissing the writ petition. The first reason
that the Government policy to send the eligible engineers of
Biscomaun on deputation for absorption was not formally
notified, was assailed on the ground that for a number of
years such policy held the field, and was acted upon. The
surplus employees of various Boards, Corporations under
Government control were sent on deputation and absorbed.
Simply because the policy communicated to all concerned
14
has not been formally notified, should not make any adverse
impact upon the right of the appellants to receive similar
benefits of absorption and retention of their services in the
transferred departments as has been done in case of large
number of other employees who were similarly situated. It
was pointed out that Government cannot be allowed to take
advantage of its own lapses in not notifying the policy
although it was implemented over a long period under orders
of the State Government itself. It was further submitted that
employees are entitled to legitimate expectation that they
would also get the same benefits as given to other similarly
situated employees even if the policy has not been formally
notified as a resolution of the State Government. Once a
decision was actually taken by the Competent Authority and
communicated to all Boards, Corporations under the State
Government as well as to concerned department, according to
learned senior counsel for the appellants, it would not matter
at all that such policy was not formally notified.
8. We have no hesitation in accepting the aforesaid
submission, both on the basis of requirements of equality,
reasonableness and equity as well as on the well established
principle of administrative law that decision by a public
15
authority when communicated to the concerned parties,
becomes effective and cannot be treated as mere notings in
the files.
9. The next reason adopted by the learned writ court is
that the deputationists, in law, can have no right to oppose an
order of repatriation as is being assailed on behalf of some of
the appellants. To meet this reason,it has been submitted that
once it is held that even in absence of a formal notification,
the Government policy to transfer the services of persons like
the petitioners for absorption is valid, then use of the term
"deputation" while transferring the services of the appellants
to Government departments cannot deprive them of the
benefit of the government policy noticed above whose
benefits had been given to many similarly situated persons.
Secondly, it has been shown from judgments in the case of
similarly situated deputationists that in the past this Court had
treated the transfer of services of similar employees under
government policy decision to be really not a deputation but
a transfer for the purpose of absorption. In some of the
judgments it was held that generally a deputationist has no
right to continue in the loanee department and he can be sent
back to his present department but if the earlier department or
16
organization is closed or has become so crippled financially
as not to be in a position to continue the service and pay
salary,there cannot exist any lien for the concerned
employees over the earlier service/ post. In fact, prior to the
two judgments under appeal, as the discussions would reveal,
this Court had always taken the view that the transaction in
question was not a simple deputation as is ordinarily
understood in service jurisprudence rather, as a fact the term
deputation was used only as a good and acceptable
mechanism to transfer services of suitable employees to
organizations and departments where vacant posts were
available and where their services could be utilized and
absorbed in the light of policy decision noticed and discussed
earlier.
10 In our considered view the aforesaid submissions in
respect of second reason adopted by the writ court also have
merits and in the peculiar facts of the case the principle that
deputationists have no right to continue on deputation could
not have been invoked against the appellants.
11. Thirdly, it was submitted that the learned writ court
has wrongly placed reliance upon a Division Bench Judgment
in the case of State of Bihar Vrs. Gopal Prasad, 2003 (4)
17
PLJR 495. It was pointed out that in that case the deputation
orders were found to be illegal because they had been issued
after 16-11-1999 which was accepted as the cut off date and
as per subsequent policy decision of the government, general
deputation of employees other than government servants
could not be made in government departments. It was
pointed out that the concept of cut- off date and that earlier
deputations had not been adversely affected by such judgment
stands explained by another Division Bench judgment of this
court in the case of Md. Amanullah Vrs. State of Bihar,
reported in 2004 (1) 145. Undisputedly the deputation of the
appellants in these appeals is prior to 16-11-99 except of the
appellants of L.P.A. No. 1110 of 2004. It may be mentioned
here that nobody has appeared on behalf of the appellants in
the aforesaid L.P.A. No. 1110/04 but so far as appellants in
other appeals are concerned their deputations being prior to
16-11-99,it has rightly been submitted that the Division
Bench judgment in the case of State of Bihar Vrs. Gopal
Prasad (supra) could not have been used against such
appellants.
12. The fourth and the last reasoning of the learned writ
court that repatriation was required to be made in view of
18
order dated 8-2-2000 passed in Arun Mukherjee's case ( a
Public Interest Litigation) has also been assailed by pointing
out that the said absorption was only in respect of such staff
of P.R.D.A. working on deputation whose services were not
satisfactory and on account of poor performance of those
employees a general observation was made that they could be
repatriated. It was further submitted that services of the
appellants were never found unsatisfactory and the said order
in Arun Mukherjee's case could not be used against the
appellants in view of special facts and policy decision
discussed above and also because the appellants were not a
party to that case and were not even aware of that order. It
was also pointed out that recently a learned single judge of
this Court has allowed the writ petitions of similarly situated
employees vide judgment and order dated 28-2-2007 passed
in C.W.J.C.No. 3381 of 2006 ( Lalan Prasad Singh Vrs. The
State of Bihar and others) and C.W.J.C.No. 3565 of 2006
(Abhinash Kumar Singh and others Vrs. State of Bihar and
ors)
13. A perusal of the aforesaid judgments show that
petitioners in those two cases were Assistant Engineers in
BISCOMAUN and like the appellants of these cases they
19
were also sent on so called deputation to P.R.D.A. where their
services were absorbed after obtaining opinion of the
Advocate General but the Secretary of Urban Development
Department, Government of Bihar directed for return of their
service to BISCOMAUN on the ground that their absorption
was without adequate authority and without the approval of
the State Government. In that case also a stand was taken that
the repatriation was required on account of order dated 14-10-
2004 passed in Arun Kumar Mukherjee's case. The learned
single Judge gave a finding that observations made in various
orders in the case of Arun Kumar Mukherjee had been
wrongly interpreted to serve narrow interests and not the
wider directions of the Court to which were issued in different
back-grounds. Ultimately the repatriation orders were
quashed after observing that after long years of service those
petitioners had been left in a blind alley. The aforesaid
judgment was affirmed by a Division Bench of this Court by
order dated 21-4-2008 whereby L.P.As 419 and 373 of 2007
were dismissed by a reasoned order in which reliance was
placed upon judgment of the Supreme Court in the case of
Jamil Ahmad Vrs. Industrial Development Commissioner and
others, reported in (2004 ) 13 SCC 736. We are also of the
20
view that order passed in Arun Mukherjee case was for a
different purpose and has no application to the appellants.
14. Although the reasons and grounds given out in the
order under appeal have been noticed above and found to be
not sustainable in law, in deference to the learned counsel
appearing in this appeal it is deemed necessary to take note of
some judgments cited on behalf of the appellants and also
some submissions by different counsels appearing in different
appeals. In the case of Md. Shamim Ansari Vrs. The State of
Bihar, 2002 (2) PLJR 579 a learned single Judge in somewhat
similar circumstances considered the submissions on behalf
of the State that as a deputionist the petitioner of that case had
no right to the post of deputation. In that case the petitioner
who was a driver in the Sugar Development Corporation had
been transferred to a Government department on deputation
because the Corporation like many other Corporations and
BISCOMAUN was not in good financial position and
deputation was for the purpose of rehabilitation of eligible
employees. The learned single Judge, in somewhat similar
circumstances as in these cases, held that the normal rule
governing a deputationist has no application to a case where
deputation is not in the ordinary sense of the term and is
21
more a case of rehabilitation. Since the parent department of
that petitioner has ceased to exist for all intent and purposes,
it was further held that it would be futile and unrealistic to
suggest that the deputationist continued to have lien in his
parent department. That judgment clearly covers the main
issue in theses cases also.
15. The aforesaid view was followed by another learned
single Judge in the case of Raghunath Sharma Vrs. State of
Bihar, 2003(2) PLJR 396. However, in this case the
deputation was made after 16-11-1999 and as per subsequent
Division Bench judgment in the case of State of Bihar Vrs.
Gopal Prasad (supra) it has been held that deputations of
employees other than Government Servants made in a
Government department after 16-11-99 would be illegal and
in violation of a clear policy decision of the State
Government.
16. On behalf of appellants of L.P.A. No. 720 of 2006
Shri Krishnandan Singh, learned Senior Advocate, while
adopting the arguments of Mr. Shashi Anugrah Narayan,
learned Senior Counsel noticed earlier, highlighted the facts
that the appellant in his case was still working on deputation
in Science and Technology Department, Government of Bihar
22
on the basis of deputation made on 13-12-1994 which was
actually for the purpose of absorption as per government
policy decision; the prayer of this appellant is that he should
not be repatriated because the Engineering wing of
BISCOMAUN where he was earlier employed has been
closed under policy decision and the appellant cannot be
taken back in service. Materials including annexures 3 to 5
and 19 to the connected writ petition were highlighted to
show that even for deputation there was a selection process
and after interview only suitable and eligible persons were
taken on deputation. It was shown that in the communication
contained in annexure-19 dated 13-12-1994 it was mentioned
that selection was made for deputation with provisions for
absorption. It was also contended on the basis of facts noticed
earlier that several similarly situated employees of
BISCOMAUN working on similar nature of deputation have
been absorbed and hence denial of absorption in the case of
appellants would violate Article 14 of the Constitution of
India. Reliance was placed on a judgment dated 12-2-2004
passed in C.W.J.C.No. 2471 of 1998 (Amarnath Singh Vrs.
State of Bihar) which is appended as annexure-4 to reply to
the counter-affidavit available in records of this appeal. That
23
judgment has been passed by the same learned single Judge
whose orders are on appeal. He considered the prayer of
Amarnath Singh for issuance of a direction either to
regularize him on the post of Motor Vehicle Inspector or to
appoint him on regular basis against vacant post. That
petitioner was earlier working in Bihar State Agro Industries
Development Corporation Ltd and he was also deputed like
the appellants to a department of the Government of Bihar
which happened to be department of Transport. In 1993 an
order for his repatriation was issued but was quashed by order
dated 12th September, 1997 passed in C.W.J.C. No. 3513 of
1994. That order was confirmed up to the Apex Court and
thereafter he moved this Court again for being regularized or
appointed in the concerned department. An order to that
effect was passed by the learned single Judge fixing a time
limit of six months to complete the exercise for his
absorption/ appointment. On a careful consideration of the
aforesaid submission, we have no option but to agree that the
State Government has been taking discriminatory and
conflicting stand. Since the deputation of the appellants is of
the same nature as in the case of Amarnath Singh (supra), the
learned writ court should have adhere to its own earlier views
24
which would be also in consonance with the principle of
equality in treatment of its employees by the State.
17. Mr. Chitranjan Sinha, learned senior Advocate has
appeared for the appellant of L.P.A. No. 608 of 2006 who
was, in a similar manner deputed from Biscomaun to Science
and Technology Department on 13-12-1994 and posted in
Govt. Polytechnic at Ranchi. He has referred to a counter-
affidavit filed on behalf of State in L.P.A. No. 342/96 ( Shri
Jagarnath Prasad Vrs. The State of Bihar and ors) which has
been appended as part of annexures-5 series to C.W.J.C.No.
1139 of 2001 ( Satyendra Kumar Singh and others Vrs. State
of Bihar and ors). In paragraph-20 of that counter affidavit
the State took a stand and admitted the extant policy of the
State Government to absorb the services of the eligible and
suitable employees/ officers of the Biscomaun or other semi
Govt. Institutions whose financial position was not good, in
departments/, Boards/ Corporations/ Authority. There is no
reply to this contention and hence it must be accepted that
such a policy of the State Government was admittedly in
operation at the relevant time. Even in the order under appeal
the learned single Judge has observed in paragraph-2 at page-
2 of the judgment that the writ petitioners were sent on
25
deputation in different departments of the Government of
Bihar some time in the year 1990, as per policy decision of
the State, as recommended by High Level Committee
constituted by the State of Bihar.
18. It was further submitted on behalf of appellant of
L.P.A. 608 of 2006 that on account of dismissal of the writ
petition by order under appeal, the appellant has been
dismissed by the order of Jharkhand Government dated 13-
10-2008 which is merely a consequential order which has
been brought on record through I.A. No. 7174 of 2008 and
either the same should be set aside by a specific order or a
general clarification be issued that all consequential orders of
dismissal or repatriation pursuant to orders under appeal shall
stand set aside.
19. On behalf of State learned A.A.G. 3, Mr. Lalit
Kishore placed reliance upon a catena of decisions by the
Supreme Court and by this Court on the well accepted general
principle of law that ordinarily an order of deputation does
not create any legal right to continue on deputation. With due
respect to the learned AAG-3 those judgments need not be
enumerated and considered because the Principle relating to
deputation as understood in ordinary terms is well settled and
26
has not been disputed by the appellants. As noticed earlier,
by placing reliance upon several judgments of this Court the
appellants have taken a clear and categorical stand that in the
case of appellants the deputation was not an ordinary
deputation as understood generally in service- jurisprudence,
rather it was a device for rehabilitation of eligible employees
of the defunct or loss making Boards and Corporations etc.
under a policy decision which was acted upon and benefited
large number of employees, except the appellants.
20. Learned AAG-3 further submitted that no mandamus
can be issued in favour of the appellants unless they can
establish a legal right to the posts which they are/ were
holding under deputation. For this reliance was placed upon
judgment of the Supreme Court in the case of State of Punjab
Vrs. Suraj Prakash reported in AIR 1963 SC 507. In reply it
was submitted on behalf of the appellants that right of
employees to receive fair treatment and corresponding duty of
the State as employer to act fairly has been well recognized
by catena of recent judgments and hence the appellants
cannot be denied relief on the technicality that their claims are
not based upon any Statute or Rules. We find merit in the
contention advanced on behalf of the appellants that now
27
requirements of acting reasonably and fairly is an essential
constituent of Article 14 of our Constitution.
21. Learned senior counsel for the State has placed
reliance upon judgment of the Supreme Court in the case of
Bachhitra Singh Vrs. State of Bihar, AIR 1963 SC 395 for
advancing and supporting the contention that the opinion of
the concerned authority will amount to a decision of the
Government only when it is communicated to the persons
concerned. It was also submitted that as per Rules of Business
that action must be taken by the authority concerned in the
name of the Governor as per well established principle of
law. The appellants have not expressed any reservation
against aforesaid proposition of law as already noticed earlier.
In the instant case, although the decision taken at the highest
level was not expressed formally as a resolution of the State
Government but the same was communicated to the
concerned authorities who acted upon the same. Many
departments of BISCOMAUN were closed and its eligible
employees were transferred to different departments for the
purpose of rehabilitation and not on simple deputation. The
issue, in such a situation would be, whether for non-
publication of a formal "Resolution", the employees like the
28
appellants can be made to suffer and left in lurch after many
years of service under so called deputation which they
accepted as a measure for their rehabilitation. On the
promise made by the authorities who were competent to take
such a policy decision the appellants gave up their old service
and its legal benefits and opted for a rehabilitation scheme
which was to work under the technicality of absorption after
deputation. In such circumstances, non-issuance of the
requisite " Resolution" in the name of head of the State
cannot be allowed to adversely affect the employees like the
appellants. It has rightly been submitted on behalf of the
appellants that in such circumstances the principle of
Promissory Estoppel will come to their aid and they will
have legitimate expectation of being rehabilitated against
vacant posts on which they have worked for long period on
being found eligible in all respects. There is no complaint
that the services of the appellants were unsatisfactory.
22. The judgment of the Apex Court in the case of M.P.
Sugar Mills Vrs. State of U.P., AIR 1979 SC 621 explains the
meaning of promissory estoppel as a principle evolved by
equity to avoid injustice so that where one party has by his
words or conduct made to the other a clear promise intended
29
to create legal relations or effect a legal relationship to arise
in the future, knowing or intending that such promise would
be acted upon by the other party, the maker would not be
entitled to go back upon it, if it would lead to inequitable
consequences having regard to dealings between the parties.
The appellants did not fight for their rights against the
erstwhile employer and on the promise of rehabilitation
apparent from the policy which was acted upon in the past,
they agreed for and accepted the transfer of their services to
different departments in the garb of deputation. Equity
warrants in such a situation that the State Government should
complete its promise or assurance so that the appellants may
be treated as employees of the concerned departments and not
as mere deputationists. It is not in dispute that the appellants
are in the late evening of their service life and some of them
have only 2-3 years to superanuate .
23. In support of the submissions based on the doctrine
of Legitimate Expectation, learned senior counsel for the
appellants has placed reliance upon a Division Bench
Judgment of this Court in the case of Vijay Choudhary Vrs.
State of Bihar and others, 1995(2) PLJR 201. In paragraph-
14 of that judgment a statement of law from the Halsbury
30
laws of England ( 4th Edition ) Volume 1 (1) 151 has been
extracted and the same reads as follows:-
" A person may have legitimate expectation of being
treated in a certain way by an administrative authority, even
though he has no legal right in private law to receive such
treatment. The expectation may arise either from a
representation or promise made by the authority including an
implied representation or from consistent past practice. In
common parlance it means that the authority ought not to act
so as to defeat the expectations without some overriding
reason of public policy to justify its doing so."
In the facts of the case, the counsels for the
appellants have rightly advanced submissions in support of
case of the appellants on the basis of doctrine of legitimate
expectation.
24. In the light of what has been discussed and held
above, it follows as a logical corollary that all the appeals
must succeed except L.P.A. No. 1110 of 2004. Accordingly,
the judgment and orders under challenge in other appeals are
set aside. Further, the impugned orders or actions under
challenge whereby the appellants have either been ordered to
be repatriated or are threatened with repatriation are quashed.
The respondent-authorities are directed to treat the deputation
of appellants not as simple deputation but one under a valid
policy for the purpose of rehabilitation or absorption through
the device of transfer of service and to take follow up action,
if required, within three months. The respondents will also
31
keep in mind and act as per earlier judgments which were
accepted by them and similarly situated employees were
absorbed because the State and its officials, ie., the
respondents are duty bound to ensure equality of treatment to
the appellants. Till such decision or follow up actions are
taken the appellants shall be allowed to continue on the posts
which they held on deputation and for all practical purposes
they shall be treated to be the employees of the concerned
departments where they are/ were working on deputation.
The writ petitions are allowed to the aforesaid extent. It is
made clear that if, on account of the judgment and orders
under appeals any of the appellants whose appeals have been
allowed have been repatriated from their posts under the State
or dismissed from service, such impugned or consequential
orders of repatriation or dismissal shall stand quashed and
they shall be reinstated and allowed to work with all
consequential benefits. In the facts of the case there shall be
no order as to costs.
23. 25. L.P.A. No. 1110 of 2004 has to be dismissed for
two reasons. Firstly, because nobody has appeared to press
this appeal and secondly because the appellants of this appeal
were admittedly sent on deputation in the year 2001 which
32
was after the cut off date of 16-11-1999 and hence their initial
deputation itself was illegal and contrary to the revised policy
of the State Government as per law declared by a Division
Bench of this Court in the case of State of Bihar Vrs. Gopal
Prasad, 2003(4) PLJR 495. Hence,while other appeals stand
allowed as indicated above, this appeal is dismissed but
without costs.
(Shiva Kirti Singh,J)
I agree
Chandra Mohan Prasad,J
( Chandra Mohan Prasad,J )
Patna High Court, Patna
Dated the 19th April,2010
AFR Naresh