Patna High Court
Case Details
Patna High Court CWJC No.2213 of 2003 (17) dt.20-12-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2213 of 2003 ====================================================== Braj Bhushan Choubey son of Pahwari Choubey, permanent resident of village Raghunathpur, P.O. Rudalpur, P.S. Bahore District Gopalganj, presently posted as Accountant, District Treasury, Muzaffarpur Versus .... .... Petitioner/s 1.The State Of Bihar 2.The Commissioner, Department Finance, Bihar, Patna 3. The Additional Commissioner (Resources) Department of Finance, Bihar, Patna 4.The Special Secretary, Department of Finance, Bihar, Patna 5. The District Magistrate, Muzaffarpur, Bihar 6. The Treasury Officer, Muzaffarpur, Bihar 7. The Deputy Development Commissioner-cum-Chairman, Muzaffarpur, Bihar 8. The District Establishment Deputy Collector, Muzaffarpur, Bihar 9. The District Nazarat Deputy Collector, Muzaffarpur, Bihar .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.9579 of 2002 ====================================================== 1.Firoz Alam son of Md. Yunush Ansari, resident of village Madhepur, P.S. Madhepur, District Madhubani 2. Sawaliya Singh, son of Sri Jagarnath Singh, resident of Village Masrakh, P.S. Masrakh, District Chapra 3. Fakira Singh son of late Raghav Mahto, resident of village Makhanpur, P.S. Nursarai, Districrt Biharsharif at Nalanda 4. Raj Narayan Yadav son of Suraj Narayan Yadav, resident of Village Asama, P.S. Rasiari District Darbhanga, all posted as Assistant in the District treasury, Darbhanga, Bihar Versus .... .... Petitioner/s 1.The State Of Bihar 2.The Commissioner, Department Finance, Bihar, Patna 3. The Additional Commissioner (Resources) Department of Finance, Bihar, Patna 4.The Special Secretary, Department of Finance, Bihar, Patna 5. The District Magistrate, Darbhanga,, Bihar 6. The Treasury Officer, Darbhanga, Bihar .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.9867 of 2002 ====================================================== 1.Md.Sabir son of Md. Moinuddin, resident of Village Andhana, P.S. Andhana, District Biharsharif at Nalanda 2. Anjani Kumar Pandit son of late Surya Narayan Pandit, resident of village Rangra P.S. Gopalpur, District Bhagalpur 3. Pawan Kumar son of Sri Rajendra Prasad Sharma, resident of Mohalla Patna High Court CWJC No.2213 of 2003 (17) dt.20-12-2013 2 4M-162 Bhadurpur Housing Colony, Patna P.S. Kankarbagh, District Patna 4. Pankaj Kumar son of Sri Kamla Kant Sahay, resident of Mohalla Anisabad Brahasthan, P.S. Anisabad, District Patna All posted as Assistant in District Treasury, Bhagalpur 5. Ram Binod Pandey son of late Ram Padarath Pandey, resident of Village Katarmala, P.S. Goraul, District Vaishali Posted as Assistant in District Treasury Hazipur, Vaishali 6. Daya Nand Prasad Yadav son of late Lelhu Prasad Yadav, resident of Village Pathra, P.S. Pipra, District Supaul 7. Parmeshwar Sharma son of Sri Uttam Sutihar, resident of village Kunauli Bazar P.S. Kunauli Bazar, District Supaul All posted as Assistant in District Treasury, Supaul Versus .... .... Petitioner/s 1.The State Of Bihar 2.The Commissioner, Department Finance, Bihar, Patna 3. The Additional Commissioner (Resources) Department of Finance, Bihar, Patna 4.The Special Secretary, Department of Finance, Bihar, Patna 5. The District Magistrate, Bhagalpur 6. The District Magistrate, Hazipur, Vaishali 7. The District Magistrate, Supaul 8. The Treasury Officer, Bhagalpur 9. The Treasury Officer, Hazipur, Vaishali 10. The Treasury Officer, Supaul
Legal Reasoning
department. It is well settled that a deputationist would have no indefeasible right to continue on deputation infinitely. None the less the Employer’s action has to be free of arbitrariness and it cannot adopt pick and choose method while taking a decision to absorb some of them and denying it to others. In the instant matter, the decision dated 7.8.2002 which has been upheld in L.P.A. Nos. 482, 483, 485, 492, 502, 510 of 2003 cannot be said to be arbitrary as it seeks to repatriate those who have been deputed to Treasuries, Sub Treasuries despite ban imposed on deputation vide resolution dated 16.11.1999. The petitioner in support of his case against repatriation has relied upon order dated 10.9.2009 passed by learned Single Judge in C.W.J.C. No.4511 of 2009 (Rama Raman Singh vs State of Bihar). Reliance upon the said judgment would not be of any help to the petitioner as therein the petitioner raised a grievance that whereas other similarly placed employees of almost defunct Siwan Cooperative Spinning Mill Limited were absorbed in government service, the petitioner alone was Patna High Court CWJC No.2213 of 2003 (17) dt.20-12-2013 9 discriminated. The facts of the instant case is different as the government by the resolution dated 7.8.2002 decided to repatriate all employees taken on deputation in Treasury, Sub Treasury and Accounts after 16.11.1999. I find that the government decision dated 7.8.2002 directing repatriation of employees deputed to Treasury and Sub-Treasuries after 16.11.1999 was founded on the premises that they were deputed in breach of the government resolution dated 16.11.1999 which banned deputation. But much water has flown since the resolution dated 16.11.1999 and government decision dated 7.8.2002. The Cabinet/Government vide its resolution dated 21.7.2011 reiterated on 4.9.2013 has annulled its earlier resolution dated 16.11.1999 with a rider that deputation would be made through process of selection after inviting application through open advertisement as per requirement. The Government took the said decision as it found acute shortage of Class III employees in the government employment, the filling of which may be time consuming. Thus, the government itself finds the need to fill up Class III post by way of deputation. In the changed scenario and also on account of the fact that more than 11 years have elapsed since passing of the order dated 7.8.2002, the respondents would be required to Patna High Court CWJC No.2213 of 2003 (17) dt.20-12-2013 10 take a fresh decision whether to continue the petitioner on deputations or to repatriate them to their parent department. In case the respondents take a fresh decision to repatriate them, their cases too would be considered along with other employees for deputation in terms of government resolution no.6655 dated 21.7.2011 partially modified vide resolution no.9147 dated 4.9.2013. With the aforesaid observations and directions, these writ
Arguments
.... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.9577 of 2002 ====================================================== 1.Ashok Kumar son of Sri Bindhyachal Prasad, resident of Mohalla-Krishna Nagar, Patna Quarter No.144, Road No.22, Police Station Budha Colony, District Patna 2. Thakur Dhananjay Pratap, son of Sri Kamleshwar Singh, resident of Village-Chandi, P.S. Chandi, District Bhojpur 3. Mahendra Kumar Singh son of Sri Ramayan Singh, resident of Village Musepur, P.S. Bihta, District Patna All posted as Account Assistant in the District Treasury, Ara, Bihar 4. Md. Aslam Ansari, son of Hafiz Abdulla Ansari, resident of Village Khoripakar, P.S. Harshidhi, District East Champaran 5. Md. Gani Ansari, son of Shahid Ansari, resident of Vilalge Bhelwa Kothi, P.S. Ghora Sahan, District East Champaran All posted as Account Assistant in the District Treasury, Motihari, East Champaran Versus .... .... Petitioner/s 1.The State Of Bihar 2.The Commissioner, Department Finance, Bihar, Patna 3. The Additional Commissioner (Resources) Department of Finance, Bihar, Patna 4.The Special Secretary, Department of Finance, Bihar, Patna 5. The District Magistrate, Bhojpur, Ara, Bihar Patna High Court CWJC No.2213 of 2003 (17) dt.20-12-2013 3 6. The District Magistrate, East Champaran, Motihari, Bihar 7. The Treasury Officer, Bhopur, Ara 8. The Treasury Officer, Motihari, East Champaran .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.10362 of 2002 ====================================================== Ajay Kumar son of Late Baleshwar Pd. Dutta, resident of Mohalla-Rajiv Nagar, P.S. Digha Ghat, P.O. Patliputra District Patna presently posted as Assistant Clerk in the District Treasury, Vaishali, Hajipur, Bihar Versus .... .... Petitioner/s 1.The State Of Bihar 2.The Commissioner, Department Finance, Bihar, Patna 3. The Additional Commissioner (Resources) Department of Finance, Bihar, Patna 4.The Special Secretary, Department of Finance, Bihar, Patna 5. The District Magistrate, Vaishali 6. The Treasury Officer, Vaishali .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.3346 of 2003 ====================================================== Kumod Kumar Verma son of Dr. Narendra Narain Verma, resident of Mohalla Nayatola Madhopur, P.S. Kotwali, District Munger Versus .... .... Petitioner/s 1.The State Of Bihar 2.The Secretary, Department of Industries, Bihar, Patna 3. Director, Handloom & Sericulture, Department of Industries, Bihar, Patna 4. Director of Industries, Department of Industries, Bihar, Patna .... .... Respondent/s ====================================================== Appearance : (In CWJC No.2213 of 2003) For the Petitioner/s : Mr. Rakesh Kumar Singh Mr. Upendra Kumar Singh For the Respondent/s : Mr. D.K. Sinha (AAG2) (In CWJC No.9579 of 2002) For the Petitioner/s : Mr.Rajendra Narayan Singh, Sr. Advocate Mr. Raj Kumar Mishra, Advocate For the Respondent/s : Mr. D.K. Sinha (AAG2) Patna High Court CWJC No.2213 of 2003 (17) dt.20-12-2013 4 (In CWJC No.9867 of 2002) For the Petitioner/s : Mr. Rajendra Narayan Singh, Sr. Advocate Mr. Raj Kumar Mishra, Advocate For the Respondent/s : Mr. D.K. Sinha (AAG2) (In CWJC No.9577 of 2002) For the Petitioner/s : Mr. Rajendra Narayan Singh, Sr. Advocate Mr. Raj Kumar Mishra, Advocate For the Respondent/s : Mr. D.K. Sinha (AAG2) (In CWJC No.10362 of 2002) For the Petitioner/s : Mr. Rajesh Ranjan Mr. Anil Kumar Upadhyay For the Respondent/s : Mr. D.K. Sinha (AAG2) (In CWJC No.3346 of 2003) For the Petitioner/s : Mr. Umeshwar Pd.Singh Mr. Mukesh Kumar For the Respondent/s : Mr. D.K. Sinha (AAG2) ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 17 20-12-2013 Noticing large number of vacancies of Class III employees in Treasury and Sub-treasuries, the Government took a decision to fill up that post on deputation from employees of various Boards/Corporations having five years of experience in accounts. The Finance Department by its letter dated 7.10.1999 laid down the qualification, terms and conditions and mode of payment of such employees deputed from Corporation/Board to Treasury and Sub-treasuries. Later on pursuant to the Cabinet Patna High Court CWJC No.2213 of 2003 (17) dt.20-12-2013 5 decision, the State Government vide its resolution dated 16.11.1999 made a ban on further deputation of employees from Board/Corporation in government service. As a follow up measure to the government resolution dated 16.11.1999, the Finance Department vide its letter no.6403 dated 9.8.2002 and 7752 dated 25.9.2002 directed repatriation of employees of Board/Corporation deputed to Treasury and Sub-Treasuries after 16.11.1999. The resolution dated 16.11.1999 was challenged before this Court in writ applications which was ultimately upheld in L.P.A. being L.P.A. No.482, 483, 485, 492, 502, 510 of 2003 (State of Bihar vs Gopal Prasad & Ors) reported in 2003(4) PLJR 495. The Division Bench held that the decision of the State Government to repatriate the services of the writ petitioners-respondents deputed from Board/Corporation to Treasury and Sub-treasuries were justified as it were made in breach of its policy decision dated 16.11.1999. The Division Bench observed that the policy decision to repatriate such deputationists to its parent department cannot be faulted on the ground of lack of power, arbitrariness or mala fide. Paragraph 11 of the judgment is quoted herein below: “11. A policy decision was taken to put the employees of the Corporations/Public undertakings on deputation for three years in terms of the notification dated 7.10.1999. As such, any deputation made pursuant to Patna High Court CWJC No.2213 of 2003 (17) dt.20-12-2013 6 in the same prior to 16.11.1999 would be valid but after 16.11.1999, no deputation can be made the in view of the subsequent Government Treasury decision of the State Government dated 16.11.1999. Admittedly, deputations in the Government Treasuries were also made after 16.11.1999 and the same were cancelled as being in breach of the aforesaid policy decision. Neither there is any order of the State Government nor has any document been produced by the learned counsel for the writ petitioner-respondents to show that at any time any decision was taken by the State Government to absorb them in service. In absence of any such direction/decision, no direction can be given for absorption of their services. The fact that the employees are not getting their salaries because the Corporations/Undertakings are sick is a different matter and on that ground the orders of repatriation of the writ petitioner-respondents their parent departments cannot be held to be invalid and impermissible in law nor the repatriation will amount to their dismissal or removal from service. The question of payment of salaries to the employees of the Corporations/Public Undertakings is already pending before the Apex Court in the aforesaid case and directions have been issued are being issued. Thus, the decision taken by the State Government to repatriate the services of the writ petitioner- respondents, whose deputations have been, admittedly, made in breach of its policy decision dated 16.11.1999, cannot be faulted on the ground of lack of power, arbitrariness or mala fide. to In view of the decision of LPA Bench, there would have been no occasion to interfere with the policy decision of the State Government which is again in challenge in this batch of writ petitions. In fact, the hearing of some of the batch cases were deferred pending challenge made to the said resolution in C.W.J.C. No.9447 of 2002 which failed in LPA No. 483 of Patna High Court CWJC No.2213 of 2003 (17) dt.20-12-2013 7 2003. The matter would have rested and no interference would have been called for had the Cabinet and Bihar Government not retracted from its earlier resolution dated 16.11.1999 imposing ban on deputation, which was basis for repatriation order dated 9.8.2002 for those who were put on deputation from Corporation/Board to Treauries. It would appear from the letter dated 2.3.2007 of the Finance Department that subsequently Cabinet took a decision to relax the resolution dated 16.11.1999 by which it had put a ban on deputation of employees of Board and Corporation. Again under the order of Governor of Bihar, the Finance Department vide its resolution No.6655 dated 21.7.2011 annulled the ban made vide clause 2(g)(v) of resolution no. 7469 dated 16.11.1999 on deputation of employees from Board/Corporation to government body, laying down elaborate selection mode for deputation of employees from Board/Corporation for filling up unfilled Class III posts in government organization for which advertisement would be published. The Finance Department vide its resolution no. 9147 dated 4.9.2013 also under order of Governor of Bihar while reiterating the earlier resolution dated 16.11.1999 slightly modified the criteria for selection a well as terms and conditions Patna High Court CWJC No.2213 of 2003 (17) dt.20-12-2013 8 of deputation. It would be apparent from government resolution dated 21.7.2011 and resolution no.9147 dated 4.9.2013 that deputationist would have no right for absorptions and towards the end of their service would have to go back to their parent
Decision
applications stand disposed of. (Samarendra Pratap Singh, J) KHAN/-