M.Jayaraman v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 16.07.2009C O R A M:THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLAandTHE HONOURABLE MR.JUSTICE B.RAJENDRANW.A.No.973 of 2007 and M.P.Nos.1 & 2 of 2007M.Jayaraman .. Appellant vs.1. The State of Tamil Nadu Represented by Secretary to Government, Rural Development (E4), Secretariat, Chennai – 600 009.2. Managing Director, TWAD Board, Chepauk, Chennai – 600 005.3. Director of Rural Development, Panagal Building, Saidapet, Chennai – 600 015.4. District Collector, Collectorate, Anna Bus Stand (Near), Madurai – 625 002.5. P.Selvaraj6. Chief Engineer, TWAD Board, Southern Region, Ganesh Nagar, Madurai – 625 002... RespondentsWrit Appeal filed under Clause 15 of the Letters Patent Actagainst the order of this Court in W.P.No.5427 of 2005 dated26.06.2007. This Writ Petition presented to this Hon'ble Courtunder Article 226 of the constitution of India praying this Court toissue a writ of certiorarified mandamus calling for the recordsrelating to the proceedings of the second respondent herein dated11.02.2005 in proceedings C2/110/EE/12092/2005-1 and consequentialorder of the fourth respondent dated 14.02.2005 in ROCNO.13395/2005/RD4 and quash the same and direct the respondentsherein to forthwith absorb the petitioner permanently as AsstExecutive Engineer, Rural Development Department with effect from https://hcservices.ecourts.gov.in/hcservices/ the date of depution to the Rural Development Department.For Appellant : Mr.M.Jayaraman Party-in-personFor respondents 1,3 & 4 : Mr.G.Desinghu Special Government PleaderFor respondents 2 & 6 : Mrs.Sudharsana Sundar Standing Counsel- - - - -J U D G M E N T(Judgment of the Court was delivered by F.M.IBRAHIM KALIFULLA, J.)The appellant seeks to challenge the order of the learnedSingle Judge dated 26.06.2007, passed in W.P.No.5472 of 2005.2. The petitioner joined the services of the second respondentBoard as an Assistant Engineer on 10.11.1980. By an order dated10.05.1999, he was deputed to the Rural Development Department inthe very same post of Assistant Engineer for a period of two years.Though the period of deputation as per the said order dated10.05.1999, was for a period of two years, he was allowed to work inthe Rural Development Department even after expiry of the initialperiod of two years. 3. Be that as it may, the appellant along with 126 AssistantEngineers were promoted temporarily as Assistant Executive Engineersby an order dated 21.05.2004, of the second respondent. Thepetitioner's name was found in Serial No.90 of the said proceedings.That apart, in the column "Present Station" it was specificallymentioned that he was working in RWS Division, Madurai and that hewas on O.D. with DRDA, Theni i.e. in the Department of RuralDevelopment. 4. However, by an order dated 11.02.2005, on administrativegrounds, the appellant was reverted back to the TWAD Board and wasposted to the Northern Region, Vellore in the existing vacancy andhe was directed to join duty in the new station forthwith aftergetting proper relief from the present station. In pursuance to thesaid order, the 4th respondent issued proceedings dated 14.02.2005,relieving the appellant from his duties with the district anddirected him to contact the Chief Engineer of the second respondentBoard, Northern Region, Vellore for reposting. It was at thatstage, the petitioner has come forward with the writ petitionseeking to challenge the proceedings dated 11.02.2005, of the second https://hcservices.ecourts.gov.in/hcservices/ respondent as well as the relieving order dated 14.02.2005, of the4th respondent.5. Initially an order of status quo was ordered on 18.02.2005,in W.P.M.P.5988 of 2005 in W.P.No.5427 of 2005. In the meantime,the Chief Engineer of Northern Region by an order dated 16.02.2005,directed the appellant to report to the P.F.Divn.I, Vellore underthe control of the Superintending Engineer of Vellore-TiruvanamalaiCircle. 6. The said interim order was subsequently vacated by thisCourt on 14.03.2008, when the writ petition was taken up for finalhearing. The appellant apart from challenging the proceedings dated11.02.2005 and 14.02.2005, of the second and the fourth respondent,also sought for a direction to implement the D.O. letter of theState Government dated 21.07.2005. The learned Single Judge afterhearing the appellant, as well as, the standing counsel for therespondent Board and the Government Pleader for the State dismissedthe writ petition by holding that persons on deputation willcontinue to remain on deputation unless, as per the permissiblerules or regulations, his service stood absorbed in the borrowingdepartment. The learned Judge while examining the facts involvedherein held that a mere continuance of the appellant's engagement inthe deputed post of the 4th respondent beyond the sanctioned periodof two years by itself would not create any legal right in him toclaim that his services should be deemed to have been regularised orabsorbed on a regular basis in the Rural Development Department.7. In this context, the learned Judge took note of thesubsequent promotion in the post of Assistant Executive Engineerordered by the second respondent in its communication dated25.02.2002, which order specifically made it clear that theappeallant's lien in the parent department continue to remain andthat at no point of time his service stood transferred to the RuralDevelopment Department. In this context, the learned Judge reliedupon the decision of the Hon'ble Supreme Court reported in AIR 2000Supreme Court 2076 (Kunal Nanda Vs. Union of India and another)which made it clear that unless the claim of deputationist forpermanent absorption in the department where he works on deputationis based upon any statutory rule, regulation or order having theforce of law, a deputationist cannot assert and succeed in any suchclaim for absorption. The law thus having been made very clear andas the same was applied by the learned Single Judge to the facts ofthe present case, we do not find any scope to interfere with thesame. It is not the case of the appellant that after his initialdeputation on 10.05.1999, his service stood transferred to theDepartment in which he was deputed to work viz., Rural DevelopmentDepartment. On the other hand, as rightly held by the learnedSingle Judge, the subsequent temporary promotion dated 25.02.2002, https://hcservices.ecourts.gov.in/hcservices/ in the parent Department from the post of Assistant Engineer to thepost of Assistant Executive Engineer, made it very clear that evenafter four years, the lien of the appellant service continued withthe second respondent Board.8. In any event, there is absolutely no order passed byeither the second respondent or the fourth respondent or the firstrespondent State Government transferring the service of theappellant from the second respondent to the fourth respondent or byway of passing any positive order of absorption of the appellantinto the services of the fourth respondent. In such circumstances,the vain attempt of the appellant to rely upon the subsequentproceedings of the State Government in the D.O. Letter dated21.07.2005, which came to be issued by the first respondent, inorder to get over the action for contempt initiated based on theorder of status quo dated 18.02.2005, can never be the basis for theappellant to claim that his service stood absorbed in the RuralDevelopment Department. When such a contention was raised beforethe learned Judge, the learned Judge dealt with the same in thefollowing manner in paragraph 8:"8.....It is further submitted by the petitioner thatthe first respondent decided not to contest this writpetition and wrote a letter dated 21.07.2005, addressed tothe fourth respondent, instructing to withdraw the counterfiled in this writ petition, which was stated to have beenfiled by the fourth respondent without the permission ofthe first respondent and restore him in the previous postand prayed for a direction to implement the said letter.The said letter dated 21.07.2005, was issued under theimpression that the status-quo order dated 18.02.2005 wasin force, but the same was vacated by this Court by orderdated 14.03.2005 itself, hence, it became infructuous atthis stage."9. We fully concur with the conclusion of the learned SingleJudge in regard to the submission made based on the D.O. Letter ofthe first respondent dated 21.07.2005. In the light of our aboveconclusion, we do not find any merit in this writ appeal. 10. Further, when this writ appeal was initially entertained,while dealing with the application for stay, the appellant wasdirected to join duty in his parent department and the respondentswere also directed to give him an order of posting in the parentdepartment at Madurai itself and the appellant was issued a postingorder at Madurai and he joined duty on 14.09.2007 and continue todischarge his duties till this date. However, it is learnt that forhis failure to join duty after the dismissal of the stay petitiondated 14.03.2005, charge memo was issued on 14.06.2005 and after https://hcservices.ecourts.gov.in/hcservices/ enquiry by an order dated 28.02.2009, he has now been imposed with apunishment of increment cut for one year without cumulative effect.In as much as the second respondent has shown its gesture bygranting the posting order and thereby enabled the appellant to joinduty on and from 14.09.2005, we only direct the appellant to prefernecessary appeal against the present order dated 28.02.2009, beforethe appropriate authority. We hope and trust that in order to put aquietus to the litigative intent by the appellant and also to ensurethat he is allowed to concentrate on his duties without furtherdistraction, appropriate orders will be passed by the secondrespondent Board by exhibiting its magnanimity which was displayedwhile reposting him and enabling him to join duty on 14.09.2007.The writ appeal however fails and the same is dismissed. If in thefiling of the appeal by the appellant against the order dated28.02.2009, any delay is involved, the second respondent shallconsider the same sympathetically, in order to pass appropriateorders in the main appeal itself. In the interest of justice wemake it clear that, in as much as, the writ appeal has also beendismissed and the appellant has rejoined duty in the parentdepartment viz., the second respondent, there should be noimpediment for the second respondent to restore his servicesnotionally as before i.e. as and from the date of his initialappointment, without any disruption, in order to enable him to gainhis terminal benefits at a latter point of time. Consequently, theconnected miscellaneous petitions are closed. kkSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo 1. The Secretary to Government, Rural Development (E4), Secretariat, Chennai – 600 009.2. The Managing Director, TWAD Board, Chepauk, Chennai – 600 005.3. The Director of Rural Development, Panagal Building, Saidapet, Chennai – 600 015. https://hcservices.ecourts.gov.in/hcservices/

4. The District Collector, Collectorate, Anna Bus Stand (Near), Madurai – 625 002.5. The Chief Engineer, TWAD Board, Southern Region, Ganesh Nagar, Madurai – 625 002.+ 1 cc to Mr. Sudharshana Sundar, Advocate CCSR No.31875MBS(CO)SR/11.8.2009 W.A.No.973 of 2007 andM.P.Nos.1 & 2 of 2007