Ram Ganga Command Area Development Authority & Anr Vs. Sheetal
Kumar Vaish & Ors  Insc 163 (12 March 2003)
V. Patil & Arijit Pasayat.
2119-2120/1999) ARIJIT PASAYAT J.
appeals are classic examples of how simple controversies can be turned into
confusions galore. The chameleonic somersaults in stands taken by the concerned
authorities has added to the confusion in no less measure.
controversy related to simple question as to whether Seethal Kumar Vaish
(hereinafter referred to as 'the employee') was on deputation, and if not, what
was his status in employment. The High Court rightly noted that there has been
great shift of stands by the parties and ultimately came to the conclusion that
the employee was in substantive employment with Ram Ganga Command Area
Development Project (hereinafter referred to as the 'Project') and thereafter
in the Ram Ganga Command Area Development Authority (hereinafter referred to as
'the Authority'). He was not liable to be treated as employee of the Kanpur Sakkari
Milk Board Limited (in short 'Milk Board').
stand has shifted and there is no consistency therein, it would be appropriate
to cull out the basic features so that the controversy can be best resolved.
The judgment of the High Court has been assailed by both the authority and the
State of Uttar Pradesh.
factual scenario, keeping out the contradictions, as essentially are as
employee was appointed by the Milk Board by order of appointment dated
5/9.4.1974 as Assistant Sales Officer on probation for six months, which period
could be extended; the appointment was purely on temporary basis and could be
terminated without notice and assigning any reason at any time even before the
stipulated period. The authority requested the Area Development Department of
the State Government for sending the employee on deputation, by its letter
dated 6.2.1977, for being posted in the newly created Animal Husbandry
Department. At that point of time, the employee was working as Field Officer.
The Milk Board by its letter dated 25.2.1977/1.3.1977 acted on the said
letter of the Milk Board is of great significance in the present controversy.
The same is reproduced:
of the Kanpur Cooperative Milk Board Ltd. Nirala Nagar, Kanpur. Letter No. 2128/Admn. Dated
25.2.77/1.3.77 The Administrator, Ram Ganga
Block Development Authority, 3/A/245 Azad Nagar, Kanpur.
Deputation of the field officer Shri S.K. Vasya.
With reference to your letter No.15015/Est/77 dated February 8, 1977, it is respectfully submitted that Shri S.K. Vashya Filed
Officer has given his consent in writing for going to Ram Ganga Authority on
Mr. Vashya is being relieved from this Institute in the after noon of 28.2.1977 so that he may submit his joining report as
per the rules in the Authority Office. Rules regarding the deputation be sent
(Ram Janam Singh) Secretary." Employee submitted his joining report on
1.3.1977. On 13.6.1977 the State Government intimated the authority about the
sanction to appoint the employee as live stock expert.
was a notification about the temporary appointment of the employee on purely ad
hoc basis as Subject Matter Specialist (Pashudhan). Employee requested the
State Government for extending benefits of service rendered by him in the Milk
Board and prayed for grant of increments. The same was turned down by the State
Government by letter dated 7.5.1979. The employee continued to write to the
Milk Board that he was on deputation and, therefore, the benefits should be
available to him. He also questioned the propriety of the Milk Board taking
stand that he was not on deputation. Subsequently, the Authority in expectation
of Government approval sent the employee on foreign service on deputation for a
period of one year. Thereafter the Milk Board at different points of time
accepted that the employee was on deputation to the Authority. On 26.5.1982 the
Milk Board intimated the Agricultural Production and Rural Development
Department that the employee was on deputation.
said department by letter dated 4.6.1982 considered the question regarding
appointment of the employee in the Authority. This letter is also of great
significance in the present controversy and reads as follows:
Order No.2944/4.1.1982/Regional Department-1/ From Shri Shamshad Ahmed,
Commissioner and Secretary, Agriculture Produce and Rural Development
Department, Govt. of Uttar Pradesh Lucknow.
Sumita Khandpal, Commissioner and Secretary, Ramganga Command Project, Azad Nagar,
Development Department Section-1 Dated Lucknow: June the 4th, 1982 Subject:
Regarding appointment in Kanpur Ramganga Command Authority of Shri S.K. Vaish,
Subject Matter Expert, Dairy and Animal Husbandry, Ramganga Command Project.
Kindly refer to your demi official letter No.P.E.R.-2/V-11/405 dated 4.5.1982
regarding the above said subject matter under consideration of the Government.
In this regard I am directed to say that after examining the related documents
placed before the before the Government it has come to the fore that Shri Vaish
was appointed as Assistant Sales Officer in Kanpur Milk Board on basic post at
the salary of Rs.300-900 by the order of Milk Board No. 4211/Admn./Personal
above pay scale was revised and Rs.300- 900 was converted to Rs.550-1200 from
1.4.1974. Shri Vaish before joining Ramganga Command Project on the above said
post was working on this pay scale from 1.4.1974 to 1.3.19877 in Milk Board.
appointment of Shri Vaish in Ramganga Command Project at the post of Subject
Matter Expert, Animal Husbandry was done at the request of the then
Administrator Shri Ramakrishna by Government Order No.3678/(2)/12(Regional Department
1)/77 dated 13.6.77.
Before joining Ramganga Command Project, Shri Vaish was working at the salary
of Rs.550-1200 in Milk Board and was getting Rs.640/- per month and on 1.4.77
his further increment in salary was due. However, when Shri Vaish demanded the
enhancement in salary over Rs.640/- from 1.4.767 it was contended by the office
that determination of salary of Shri Vaish was not to be done by the Head of
the Department and was to be done by the Government. Therefore, after
explaining the circumstances to Shri Vaish the proposal for determination of
salary of Shri Vaish was sent. However, the Government does not agree with the
basis of the above proposal that Shri Vaish has been appointed in Ramganga
Command Project on deputation. On the other hand Shri Vaish was given fresh
appointment in Ramganga Command Project by the Government. It has become a
subject matter of correspondence between the Government and the officers of the
Project and today the situation is that even after five years Shri Vaish is
being paid the same salary of Rs.640/- which he was getting before joining Ramganga
Command Project and the increment in salary from 1.4.77 has not been approved.
can be some force in the above said opinion of the Government on purely technical
basis. However, the reality is that from 1.3.77 Shri Vaish is continuously
under great financial loss. Certainly, therefore, Shri Vaish has to face
unexpected mental and economic harassment.
After considering this subject liberally, the Government has come to the
conclusion that to give justice to Shri Vaish only one alternative is left that
Shri Vaish shall be appointed in Ramganga Command Authority at the pay scale of
Rs.550-1200 as Subject Matter Expert (Dairy and Animal Husbandry) or on any suitable
equivalent post and from 1.3.1977 after also approving the five increments over
basic salary of Rs.640/- being paid to him by Milk Board the salary of Shri Vaish
be determined by Ramganga Command Authority.
Kanpur Milk Board shall also be informed
about the above said appointment of Shri Vaish in the Authority. Shri Vaish
also holds lien over the basic post of Assistant Sales Officer at the pay scale
of Rs.550- 1200.
the opinion of the Government, this is the only correct and just alternative.
you please carry out the formalities as aforesaid.
Order, Sd/- Illegible (Shamshad Ahmed) Government Order No. 2944/4.1.82(1)/Regional
carbon copy of the above said Government Order is being sent to the Secretary, Kanpur
Cooperative Milk Board, Nirala Nagar (Juhi), Kanpur for his information with
reference to his demi official letter dated 26.5.1982 By Order, (Shamshad
Ahmed) Commissioner & Secretary" In compliance with the said order,
employee was appointed on a temporary basis as Assistant General Manager with
clear stipulation that his services are totally temporary and can be terminated
at any time by the other side by giving notice for one month or payment of
salary in lieu thereof. In terms of the Government order, the basic pay was
also fixed. In the meantime the State Government took the decision in March
1982 for abolishing all posts of the Authority except that of Chief Engineer
Irrigation. In the resolution it was stipulated that those employees who were
directly appointed by the Authority should be absorbed in the vacant posts with
the Project and till their absorption with the Project they were to be retained
with the Authority. At this juncture came the letter of Milk Board requesting
for relieving the employee immediately so that he could join the Milk Board by
1.3.1983. This letter dated 17/24.2.1983 is also of importance and reads as
Sakkari Milk Board Limited Ref. No. 238/Admn./17/03 Dated: 17/24.2.1983 The
Chairman & Project Administrator, Ram Ganga
Command & Development Authority, 3A/101, Azad Nagar, Kanpur 2.
Sir, Sri S.K.Vaish, Asstt. Sales Officer, Kanpur Sahkari Milk Board Ltd., Kanpur,
who has been to the Ram Ganga Command Authority on deputation since 1977 is
required to join this institution as Asstt. Sales Officer immediately. You are,
therefore, requested to please relieve him immediately so that he may be able
to join his duties as above by 1.3.1983. In case Sri Vaish is not interested to
join back in this institution, his resignation may please be obtained and
forwarded so that further action may be taken at this end.
faithfully, Sd/- General Manager" In line with the request, the Authority
relieved the employee so that he can join the Milk Board. This order was the
subject matter of challenge before the High Court in which the impugned
judgment came to be passed.
make the narration of facts complete, one more document needs to be referred
i.e. the letter dated 20.5.1985 written by the Milk Board to the authority. The
position regarding employee's employment was indicated as follows:
far as the termination of line of Mr. Vashya is concerned, from the post of the
Assistant Sales Officer in the Kanpur Milk Board, in the above subject, copy of
the letter No. ANW dated 25.3.1980 of Mr. Vashya is being enclosed. Vide above
mentioned letter, Shri Vashya had admitted himself his services as terminated
claiming it as false and improper and on the same ground, he obtained a
Certificate from the general Manager Shri B. Dingar of this Institute on
31.3.82 that his lien was existing in the Kanpur Cooperative Milk Board in the
month of March, 1982 and it had not been ended. On the basis of the
abovementioned grounds and reasons, he was called back vide this Institute
letter No. 238/Admin/PF/83 dated 17/21.2.83. But instead of this, Mr. Vashya,
as far as it is in the knowledge, had filed a writ petition in the Hon'ble High
Court against the order of the Ram Ganga command Authority, regarding
submitting the joining report in this Institute and that his position of lien
is being maintained as it is about which Shri Vashya is fully aware."
Before approaching the High Court, questioning the legality of the relieving
order, the employee had moved the U.P. Public Service Tribunal (in short 'the
Tribunal') questioning refusal of the increments in 1980. It is relevant to
note that before the Tribunal, the State Government and the authorities
concerned as well as Milk Board took varying stands, which were highlighted by
the employee before the High Court and in these appeals also.
Subramanian, learned senior counsel for the appellant-Authority submitted that
the High Court erred on the basic premises by attaching great importance to two
aspects, which were really inconsequential. The employee all through took the
stand that he was on deputation. Similar was the stand taken by the Milk Board.
In fact, the action for sending the employee back was taken by the Authority on
the basis of Milk Board's letter. It is not now open to it to take a different
stand. Additionally, the High Court has failed to notice that the order dated
4.6.1982 passed by the State Government was essentially in the matter of
fixation of pay and was not determining the question of deputation or otherwise
of the employee. Even if it is accepted for the sake of argument that the
employee was given employment by the Authority, same was on purely temporary
basis as order of appointment clearly indicates. There being no substantive
appointment, the question of employee being retained in the Authority after
decision of the Government for abolition of posts cannot be countenanced.
Similar stand was adopted by learned counsel for the State. Per contra, learned
counsel for the Milk Board and the employee submitted that the Authority and
the State Government are estopped from taking stand that the employee was on
deputation, after having taken a positive stand before the Tribunal about the
employee's status of employment. He supported the views expressed by the High
noted above, in view of the conflicting stands of the parties, most of which
were self-serving stands and in some cases without reference to the relevant
documents, it would be appropriate to find out the essence of the dispute by
taking note of various documents, more particularly the order of appointment,
the order by which employee's services were placed at the disposal of the
Authority and subsequently orders passed. One thing is clear that from the
beginning the employee and the Milk Board as well as the Authority proceeded on
the footing that employee was on deputation. This becomes clear from the stand
taken by the employee asserting that he was on deputation. That was also his
positive stand before the Tribunal. Interestingly, the Milk Board initiated the
action for repatriation of the employee by writing to the Authority, clearly
indicating that the employee was on deputation. In response to the said letter
the Authority acted. Therefore, it is not open to the Milk Board to take a contrary
stand. The High Court seems to have lost way amidst the maze of factual red
herrings. Great stress was laid on the order dated 4.6.1982 of the Government.
As rightly submitted by learned counsel for the Authority, the same was not
directly on the question of deputation, but primarily related to fixation of
that letter was not of any conclusive or determinative value so far as the
controversy at hand is concerned.
view of materials available from the documents referred to above, the
inevitable conclusion is that the employee was on deputation from the Milk
Board and appointment on temporary basis with the Authority can, by no stretch
of imagination, be considered to be substantive appointment. Abolition of posts
is an aspect which cannot be lost sight of. Therefore, the order of
repatriation which formed subject matter of challenge does not suffer from any
infirmity. The High Court erred in interfering with the same. The appeals are
allowed with costs fixed at Rs.5,000/-.