Umapati
Choudhary Vs. State of Bihar
& ANR [1999] INSC 218 (14 May 1999)
SUJATA
V. MANOHAR, D. P. MOHAFATRA, R . C . LAHOTI. D.P.Mohapatras, J.
These
two cases are inter-linked with each other.
Both
the case;, have been filed by the same person Shri UmapatiCloudhary.While Civil
Appeal No. 336 of 1993 is directed against the Judgment and order dated 17.12.
^91 of the Patna High Court in C.W.J.C. No.6054 of '991, in Writ Petition (C)
No. 667 of 1992 the petitioner has sought quashing of the orders dated 17.3.1992,
20.3.1992 and 21.3.1992 filed as Annexures II, 12 and 13 respectively of the
writ petition which appear to have been passed on the basis of the judgment
dated 17.12.1991 in C.W.J.C. No. 6054 of 199:.
The
controversy raised in the case relates to the question whether the appellant ebould
be treated as a permanent employee of the Bihar Sanskrit Shiksha Board (for
short 'the Board') or he was on deputation to the Board from Kameshwar Sirigh Darbhanga Sanskrit University (for short 'the University). The High
Court having held that the appellant could not claim to be a permanent employee
of the Board and his service as Controller of Examinations of the Board having
been terminated on that basis, he has filed the two cases.
The
factual matrix relevant for appreciating the controversy may be stated thus :
The
Board was constituted under the Bihar Sanskrit Education Board Act, 1981 (Act
No. 31 of 1982) and it was vested with the power to direct, supervise and
control Sanskrit education upto Madhyarna standard in the State of Bihar. The
Chairman of the Board made a request to the University to depute a competent
and experienced person to conduct and control the examinations conducted by the
Board vide his letter No. 21/15 dated 29.7.1981. The Registrar of the University
by his letter No. 8105/89 dated 14.8.1981 (Annexure- 2 to the S.L.P.)
communicated the decision of lhe University granting permission for the appeliant.
who was then a lecturer in Post Graduate department of the University to be
deputed as Controller of Examinations of the board until further orders. The
Government of Bihar in the Department of Education by Notification date
17.9.1982 (Annexure- 3) authorised the appellant to discharge all duties a.nd
responsibilities of the Controller of Examinations of the Board and made the
order effective from the first day of deputation. It appears from the letter of
the State Government to the Accountant General, Bihar dated 16th June, 1983
(Annexure-4) that the post of Assistant Registrar (Sanskrit Education) which
was created, in the Bihar Sanskrit Shiksha Parishad on being transferred to the
ainar Sanskrit Shiksha Board was re-designated as Controller of Examinations.
Thereafter the quearion of confirmation of the appellant on the post of
Controller Examinations was taken up by the Board and by the letter dated
15.9.1983 {Annexure-5) the Chairmman( of the board wrote to the State Governiaent
recommending his confirmation. It appears from the said letter that the Board
took the decision appreciating the efficiency and hard work put in by the
appellant as Controller of Examinations took the decision for his confirmation.
In the letter dated 20.4.1985 (Annexure-7) of the Registrar of the University
addressed to the Chairman of the Board consent of the University for permanent
absorption of the appellant on the post of Controller of Examinations of the
Board was communicated. Thereafter, by the Notification dated 10th November,
1986 (Annexure-8) issued by the Department of Education of the Government of Sihar
the appellant was appointed as Controller of Examinations under the Board on
the pay scale of Rs.lOOO-1820/- from the date of issue of the Notification till
further orders.
Some
employees of the University challenged the deputation of the appellant as Controiler
of Examinations of the Board before the Patna High Court in a writ petition,
C.W.J.G. No .2 230 of 1982 which was disposed of bv Single Judge of the Court
by the judgment, dated 13.11.1987. The operative portion of the said judgment raads
as follows:
"10.
Respondent no.3 has been given a temporary appointment and not a substantive
appointment. Service conditions for the post of the Controller of Examination
are yet to be provided for. The respondent -State Govt. and the Board are duty
bound to decide finally whether they shall have a Controller of Examination or
not and If they decide to have one they must have a procedure to m&ke a
substantive appointment. Since the office of the Controller of Examination is
not yet permanently filled is by a qualified person in my view, ends of justice
shall be satisfied by giving a direction to the State Government to proceed
forthwith to decide '.-he mode of appointment and service conditions of the
posts of Controller of Examination and make substantive appointment in the
&aid post. The State Government will complete the necessary formalities
within six months from today. If such formalities a.re not completed within six
months and the temporary appointment of the respondent No.3 is continued any
further it shall be open to the pet ir. loners to Question the validity and
genuineness, of the appoinment by notification dated 10.1.1387.
11. In
the result, with the directions made above, this application. is dismissed.
There shall be no order as to costs. " This judgment is under challenge in
Civil Appeal No .336 of 1993.
In
pursuance of the aforementioned judgment of the High Court the Secretary of the
coard by the order dated 17.3.1992 (Annexure-ll of the Writ Petition)
communicated to the appellant the order of the Chairman terminating his service
with immediate effect in anticipation of approval of the Government. The
relevant portion of the communication reads as under :
"In
pursuance of the Judgment dated 17.12.1991 passed by the Hon'ble High. Court in
C.W.J.C. No. 6054/91 on the above subject and under the order of the Chairman
Bihar Sanskrit Education Board your services are terminated with immediate
effect in anticipation of the approval of the Government." The decision of
the Board to terminate the service of the appellant was approved by the State
Government vide Notification dated 21.3.1992 Annexures 14 & 15) issued by
Commissioner-cum- Secretary, Human Resources Development Department, Bihar. These orders are under challenge in the writ
petition. Therein by order passed on 27.1.1993 in I.A.No.l of 1992 this Court
while issuing notice ordered that in the meantime operation of the impugned
orders in Annexure-ll dated 17.3.199S (Annexure-14) dated 21.3.1992 shall
remain stayed. This Court further directed that the petitioner be reinstated as
Controller of Enamination and be paid his arrears of salary upto date within
two months from the date of the order, by the Board. The learned counsel
appearing for the petitioner/appellant submitted that in pursuance of the said
order the petitioner/appeilant continued on the post of Controller of
Examinations of the Board and retired from the said post sometime in 1996.
From
the contents of the documents discussed in the preceding paragraphs the
position that emerges is that since 1981 the appellant was holding the post of
Controller of Examinations of the Board. Initially he was brought on deputation
from the University and thereafter taking into account his efficiency and
sincerity in the job the Board sought permission of the university for regularising
his service on that post and sent its recommendation to the State Government.
The University also had communicated its consent (no objection) for permanent
absorption of the appellant on the post of Controller of Examinations of tlie
Board. Thereafter the appointment to the post was to be made by the Board and
the Board had d.ecided t.o regularise the service of the appellant in the said
post. However, the Board sought permission of the State Government which was
also accorded.
Deputatoion
can be aptly described as an assignment' of an employee ( commonly referred to
as the deputationist) of one department or cadrs or even an organisation (commonlv
referred to as the parent department or lending authority) to another
department or cadre or organisation (commonly referred to as the borrowing
authority). The necessity for sending on deputation arises in public interest
to meet the exigencies of public service. The concept of deputation is
consensual and involves a voluntary decision of the employer to lend the
services of his employee and a corresponding acceptance of such services by the
borrowing employer. It also involves the consent of the employee to go on
deputation or not. In the case at hand all the three conditions were fulfilled.
The University, the parent department or lending authority, the Board, the
borrowing authority and the appellant the deputationist, had all given their
consent for deputation of the appellant and for his permanent absorption in the
establishment of the borrowing authority. There is no material to show that the
deputation of the appellant was not. in public interest or it --.'as vitiated
by favoritism or mala fide. The learned single Judge in the previous writ
petition had neither quashed the deputation order nor issued any direction for
its termination. Indeed the learned single Judge had dismissed the writ
petition. No material has been placed before us to show that between November
1987 when the judgment of the single Judge was rendered and December 1991 when
the Division Bench disposed of the writ petition filed by the appellant the
petitioners of the previous case had raised any grievance or made any complaint
regarding non-compliance of the directions made in the judgment of the learned
single Judge. In these circumstances the Division Bench was clearly in error in
declinig to grant relief to the appellant. Further, the appellant has, in the
meantime, retired from service, and therefore, the decision in the case is
relevant only for the purpose of calculating his retiral benefits.
On
consideration of the entire matter we are of the view that the High Court was
in error in dismissing the writ petition filed by the appellant Accordingly the
appeal is allowed. The impugned judgment dated 17.12.1931 in C.W.J.C. No.6054
of 1991 is set a.side. Conseqientially, the writ petition No .667 of 1992 is
allowed and the orders dated 17.3.1992, 20.3.1992 and 21.3.1992 which are based
on the judgment in C..W.J.C. No. 6054 of 1991 are quashed. The appellant shall
be treated to be a permanet employee of the Board on the date of his retirement
from the post of Controller of Examiliacions and his retirement benefits shall
be calculated on that basis. There will, however, be no order as to costs.
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