In ordinarily transfers deputationist has no legal right to be absorbed in the post to which he is deputed: Jharkhand High Court
Ordinarily transfers on deputations are made as against equivalent post from one cadre to another, one department to another, or one Government to another; in such case, a deputationist has no legal right in the post. Such deputationist has no right to be absorbed in the post to which he is deputed. In such a case, deputation does not result in recruitment, as no recruitment in its true import and significance takes place as the person continues to be a member of the parent service. The judgement was passed by the High Court of Jharkhand in the case of Rajeshwar Prasad vs The State of Jharkhand &amp; Anr. [W.P.(S) No. 1935 of 2014] by Single Bench consisting of Hon’ble Justice Deepak Roshan. The facts of the case are the petitioner joined the service of BHALCO, was sent on deputation to the sanctioned post of correspondence clerk in the Minor Irrigation Department, the service condition of the petitioner was never done by the department. Thereafter, the petitioner made a representation before the respondent-authorities for payment of the arrear of salary and other retiral benefit withdrawn the benefit given to the petitioner on account of revision of pay scale based on the recommendation made by 6th pay revision. Learned counsel for the petitioner submits that the petitioner was appointed by deputation as the appointment of the petitioner was done in the Minor Irrigation Monitoring and Valuation Division, Ranchi on the sanctioned post of correspondence clerk and his service condition was to be determined by Minor Irrigation Department. Moreover, the parent department of BHALCO was on the verge of closure and at the stage of winding up and was not in a position to retain its employee. Further, till his retirement; the petitioner was never repatriated for the obvious reason that the parent department was almost on closure. learned counsel for the respondent submits that the petitioner was an employee of BHALCO which is a corporation of the State of Bihar. He referred to paragraph 5 of its counter-affidavit and submits that the petitioner was allowed to work on a deputation basis in the Minor Irrigation Department of the State Government and he was working on a deputation and he was paid his salary against the work done by him. He reiterated that he was never a State Government employee 5 and his claim for retiral benefit similar to the State Government employee is not sustainable in the eye of law. Relying on The Hon’ble Apex Court in the case of Ashok Kumar Ratilal Patel Vs. Union of India &amp; Another wherein “it was held that ordinarily transfers on deputations are made as against equivalent post from one cadre to another, however in cases where the deputation has been made by way of advertisement then, in that case, the same cannot be treated as deputation by transfer rather it will be considered as appointment by deputation.”
30 Dated: 15th March 2021 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 19314 Rajeshwar Prasad 1. State of Jharkhand. 2. The Secretary Water Resources Department State of Jharkhand having its office at Nepal House P.O.+P.S. Doranda District Ranchi. ..… Petitioner 3. The Chief Engineer Minor Irrigation Ranchi State of 4. State of Bihar through the Chief Secretary State of Bihar having office at New Secretariat Bailey Road P.O.+P.S Punai Chack District Patna. 5. The Managing Director JHALCO office at B 393 Road No. Respondents 4 C Ashok Nagar P.O.+P.S. Argora District Ranchi. CORAM: HON BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioner Mr. Prashant Pallav Advocate For the Respondent : Mr. Munna Lal Yadav S.C.(L&C) III For the Resp No.4 : Mr. Binit Chandra Advocate For the Resp No.5 : Mr. Gautam Rakesh Advocate Heard learned counsel for the parties through V.C. The instant writ application has been preferred by the petitioner praying therein for a direction upon the respondent authorities to pay the entire retiral benefits including unpaid wages gratuity earn leave ACP group insurance LIC etc. along with pension. The petitioner has further prayed for a direction upon the respondent authorities especially respondent State of Jharkhand to determine the service condition for regularization of service in the Minor Irrigation Department State of Jharkhand as directed by the State of Bihar at the time of deputation w.e.f. 11.01.2000 from Bihar Hill Area Lift Irrigation Corporationto Minor Irrigation Department at Ranchi Minor Irrigation Monitoring and Valuation Division which was subsequently shifted to Dhanbad. Petitioner has further prayed for quashing of the order as contained in Memo No. 1168 dated 26.10.2013 issued by the office of Executive Engineer Minor Irrigation Diversion Dhanbad whereby the revision of pay of the petitioner in the 6th Pay scale which was given earlier vide letter No. 279 dated 20.03.2009 was withdrawn. The facts of the case lie in a narrow compass. The petitioner joined service of BHALCO as Store Keeper on 01.11.1975 and worked till 10.01.2000. Subsequently petitioner was sent on deputation to the sanctioned post of correspondence clerk in Minor Irrigation Department Ranchi for three years w.e.f. 11.01.2000. Though the service conditions of the petitioner was to be decided by the Department subsequently but the same was never done. On 20.03.2009 vide office order No. 279 the benefit of 6th Pay revision commission was made applicable to this petitioner w.e.f. 01.01.2006. The petitioner subsequently retired from service from the Minor Irrigation Division Dhanbad w.e.f. 31.03.2013. Thereafter the petitioner made representation before respondent authorities payment of the arrear of salary and other retiral benefits. Pursuant thereto the respondent State of Jharkhand has withdrawn the benefit given to the petitioner on account of revision of pay scale on the basis of the recommendation made by 6th pay revision vide its order dated 26.10.2013. 4. Mr. Pallav learned counsel for the petitioner submits that the petitioner was appointed by deputation as the appointment of the petitioner was done in the Minor Irrigation Monitoring and Valuation Division Ranchi on the sanctioned post of correspondence clerk and his service condition was to be determined by Minor Irrigation Department. Moreover the parent department of BHALCO was on the verge of closure and at the stage of winding up and was not in a position to retain its employee. Further till his retirement the petitioner was never repatriated for the obvious reason that the parent department was almost on closure. Learned counsel further contended petitioner is duly entitled for the 6th pay revision as was applicable to the regular employee of the State of Jharkhand in view of the judgment passed in the case of Bihar State Beverages Corporation Limited and others Vs. Naresh Kumar Mishra & Others reported in5 SCC 110. He lastly submits that the petitioner’s claim may be separated in two parts first from the date of his joining in BHALCO till date of deputation in Minor Irrigation Division Ranchi i.e. from 01.11.1975 to 10.01.2000 for which State of Bihar may be directed to make payment of all dues if not paid and subsequently the period from the date of deputation in Minor Irrigation Department till the date of his retirement i.e. from 11.01.2000 till 31.03.2013. Before concluding his argument he categorically stated that the other similarly situated persons who were initially in BHALCO and were subsequently deputed and remained in the State of Bihar after bifurcation has been regularized by the State of Bihar and they are getting the salary and the other service benefits at par with the State Government employees as such instant writ application may be allowed and the State of Jharkhand may be directed to pass a formal order of regularization and calculate the benefits as per 6th pay revision what the other employees of the State of Jharkhand are getting. 7. Mr. Munna Lal Yadav learned counsel for the respondent State of Jharkhand submits that the petitioner was an employee of BHALCO which is a corporation of State of Bihar. He referred to paragraph 5 of its counter affidavit and submits that the petitioner was allowed to work on deputation basis in Minor Irrigation Department of the State Government and he was working on deputation and he was paid his salary against the work done by him. He reiterated that he was never a State Government employee and his claim for retiral benefit similar to the State Government employee is not sustainable in the eye of law. 8. Mr. Binit Chandra learned counsel for the State of Bihar without opposing the prayer of the petitioner confines his argument only to the extent that the entire payment has been made to the petitioner for the period he worked at BHALCO as such the State of Bihar is not responsible or accountable for any payment. 9. Mr. Gautam Rakesh appearing for the JHALCO only contended that though the organization is not closed but the winding up process is going on. Thus it is an admitted fact that BHALCO never revived after 2000 when its employees were sent on deputation to other different department of State Government. 10. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits and the averments made therein it is an admitted case that the petitioner was earlier appointed as Store Keeper in BHALCO and worked till 10.01.2000. Subsequently on 11.01.2000 he was sent on deputation to the sanctioned post of Correspondence Clerk in Minor Irrigation Department Ranchi for three years. However his services were extended and finally he retired from Minor Irrigation Department in the year 2013. It also appears that pursuant to the Resolution No. 660 dated 28.02.2009 whereby the Finance Department revised the pay in terms of 6th pay revision commission the benefits of such 6th pay revision was also extended to this petitioner vide office order No. 279 dated 20.03.2009 w.e.f. 01.01.2006. It is only when the petitioner retired and made representation for payment of his retiral benefits the benefit of 6th pay revision commission which was earlier given to the petitioner vide order No. 279 dated 20.03.2009 was withdrawn vide order dated 26.10.2013. 11. Thus the first issue that requires determination in the present case is whether the case of the petitioner can be treated as transfer by deputation or appointment by deputation In the instant case since the parent department i.e. BHALCO was at the stage of winding up and was not in position to retain its employees as such as per the policy decision of the Government every employee were sent on deputation to other government departments and the petitioner was also sent on deputation to Minor Irrigation Monitoring and Valuation Division Ranchi on sanctioned post of correspondence clerk. The Hon’ble Apex Court in the case of Ashok Kumar Ratilal Patel Vs. Union of India & Another reported in 2012) 7 SCC 757 has held that ordinarily transfers on deputations are made as against equivalent post from one cadre to another however in cases where the deputation has been made by way of advertisement then in that case the same cannot be treated as deputation by transfer rather it will be considered as appointment by deputation. instant case there was no advertisement but it was the policy decision of the Government that since BHALCO was on the verge of closure and under winding up process all the employees of BHALCO shall be deputed to other organizations of the State Government as such the case of this petitioner cannot be termed as transfer by deputation rather his case will be treated as an appointment on deputation. For better appreciation paragraph 13 and 14 of the judgment in the case of Ashok Kumar Ratilal Patel is quoted herein below: “13. Ordinarily transfers on deputations are made as against equivalent post from one cadre to another one department to another one organisation to another or one Government to another in such case a deputationist has no legal right in the post. Such deputationist has no right to be absorbed in the post to which he is deputed. In such case deputation does not result into recruitment as no recruitment in its true import and significance takes place as the person continues to be a member of the parent service. 14. However the aforesaid principle cannot be made applicable in the matter of appointment on deputation. In such case for appointment on deputation in the services of the State or organisation or State within the meaning of Article 12 of the Constitution of India the provisions of Article 14 and Article 16 are to be followed. No person can be discriminated nor is it open to the appointing authority to act arbitrarily or to pass any order in violation of Article 14 of the Constitution of India. A person who applies for appointment on deputation has an indefeasible right to be treated fairly and equally and once such person is selected and offered with the letter of appointment on deputation the same cannot be cancelled except on the ground of non suitability or unsatisfactory work.” 12. The next issue which is to be decided is that whether the petitioner was entitled to the benefit of 6th pay revision as was applicable to the regular employees instant case the respondent State of Jharkhand has taken a conscious decision to extend the benefits of 6th pay revision commission and an office order as contained in Memo No. 279 dated 20.03.2009 was also issued whereby the petitioner was made entitled to the benefits of 6th pay revision w.e.f. 01.01.2006. However the petitioner made representation after his retirement for his retiral benefits including arrears of salary the respondent authorities withdraw the benefit given earlier. This decision of the State Government is in the teeth of the judgment passed by the Hon’ble Apex Court in the case of Bihar State Beverages Corporation Limited and others Vs. Naresh Kumar Mishra & Ors reported in 5 SCC 110 wherein the Hon’ble Apex Court at paragraph nos. 22 23 27 and 28 has laid down the law as under: “22. At the outset it is required to be noted that by the impugned judgment and order the Division Bench of the High Court has directed the appellant Corporation to grant the benefit of pay scale to the respondents herein original writ petitioners as per the 6th PRC as per the decision of the Corporation itself in 2010. By the impugned judgment and order the High Court has also quashed and set aside the Resolution of the Corporation dated 27 3 2012 by which it was resolved to pay the salary to the employees of the Corporation as is being the employees working the parent 23. Now so far as the quashing and setting aside the Resolution dated 27 3 2012 by which the Corporation to pay salary the employees of Corporation as is being paid in the parent Board parent organisation is concerned it is required to be noted that it is not in dispute that the respective original writ Boards organisations. Therefore if the Resolution dated 27 3 2012 is permitted to be implemented in that case there shall be disparity in the pay scale salary of the employees of the Corporation doing the same similar work. There may be different pay scales salaries in the respective parent organisations. However when they are working with the Corporation and doing the similar work they have to be paid the salary which is paid to other employees doing the same similar work. It is not in dispute that the employees working on different posts in the Corporation are doing the same similar work. Therefore the Division Bench of the High Court has rightly applied the “principle of equal pay for equal work” and has rightly quashed and set aside the Resolution dated 27 3 2012. 27. Now so far as the impugned judgment and order passed by the High Court directing the appellant Corporation to grant pay scale to the respondents herein original writ petitioners as per the 6th PRC is concerned it is required to be noted that as such the appellant Corporation itself took a conscious decision in the year 2010 to grant the benefit of 6th PRC to the employees working with the Corporation. However on the advice of the Finance Department that the Corporation may grant the benefit of 6th PRC to their permanent employees and not to the employees on deputation the Corporation thereafter took a decision not to grant the benefit of the pay scale as per the 6th PRC. As rightly held by the Division Bench of the High Court the advice by the Finance Department was non application of mind inasmuch so far as the Corporation is concerned there is not a single employee appointed by the Corporation on permanent basis and the entire staff is either on Boards organisations. Therefore the Division Bench of the High Court has rightly directed the appellant Corporation to grant the pay scale to the respondent original writ petitioners as per the 6th PRC. However at the same time it is to be clarified that they will get the pay scale as per the 6th PRC so long as they continue to work with the appellant Corporation and as and when they are repatriated in that case they shall be governed by the pay scale paid to the employees in the parent 28. In view of the above submissions and for the reasons stated hereinabove both the present appeals fail and they deserve to be dismissed and are accordingly dismissed. However it is clarified that the original writ petitioners shall be entitled to the pay scale as recommended by the 6th PRC so long as they work in the appellant Corporation and as and when and in case they are repatriated to their parent Board organisation they shall be governed by the pay scales paid to the employees of the parent Board organisation concerned. No costs.” 13. Respectfully relying upon the aforesaid principle as laid down by the Hon’ble Apex Court this Court is of the firm opinion that the petitioner is entitled for the 6th pay revision and the withdrawal of the said benefit is non est in 14. Now the last and most important issue is that whether the petitioner is entitled for absorption in the State the eye of law. of Jharkhand From perusal of records it appears that the petitioner was deputed in Minor Irrigation Department in the background that his parent organization BHALCO was under process of winding up and it was not in a position to retain its own employees and a policy decision was taken by the Government to depute all the employees of BHALCO to its different departments. Therefore the petitioner was deputed with no scope of repatriation. Initially the period of deputation was for the three years which was further extended for an indefinite time by stating “until further orders”. The petitioner continued to work in the borrowing department for as long as 13 years and superannuated in the year 2013 from the Minor Irrigation Department State of Jharkhand. Moreover a similar matter relating to absorption of the deputationist in the borrowing department on account of closure of the parent department has been decided by this Court in W.P.(S) No. 347 of 2015 in the following “8.Having heard learned counsel for the parties and after going through the documents available on record it appears that the petitioner was sent on deputation to Ranchi Nagar Nigam in the year 1995 in view of the fact that High Tension Insulator Factory Malleable Cast Iron Foundry was closed down. It further transpires that from the date of deputation the petitioner continuously worked with the respondent Corporation till 31.12.2011 when he superannuated from his service. The petitioner was denied regular service and increment being paid to the regular employees of the Ranchi Nagar Nigam on the ground that the petitioner was taken on deputation and therefore he was not entitled for the regular pay scale and increment being paid to the regular employees of the corporation. After perusing the previous order passed by this Court in petitioner’s own case in W.P.(S) No. 4015 of 2012 it appears the Hon’ble Court has categorically held that where the parent Department has ceased to exist and an employee sent on deputation under the Government policy has worked for a long period of 16 years and was not ever released to join his parent department and could not be released because of the fact that the parent department has ceased to exist therefore petitioner was legally entitled for consideration for 13 absorption in the Ranchi Nagar Nigam.” The case of the petitioner in the instant case stands on the same footing and his services are entitled to be absorbed in the borrowing company on account of closure of the parent Corporation.” In view of the aforesaid facts and discussions all the three issues has been decided in favour of the petitioner. As such the impugned letter as contained in memo no. 1168 dated 26.10.2013 is hereby quashed and set aside. The petitioner shall make a representation before respondent no.4 for that period when he was posted at BHALCO and if any amount is still due then the respondent State of Bihar shall calculate the same and take a decision on the claim of the petitioner and pay the same. So far as the claim of regularization is concerned in view of the aforesaid findings the respondent State of Jharkhand shall take a formal decision for regularization of this petitioner in view of the fact that it was not a case of transfer on deputation rather it has been held to be appointment on deputation for the sole reason that the petitioner was never repatriated and the parent organization was on the verge of closure and is in winding up process and as per the statement of learned counsel for JHALCO it has never revived. At this stage it is necessary to mention here that similarly situated persons who were employees of BHALCO and who were deputed in different other organizations and were retained in the State of Bihar after bifurcation they are getting the same and similar benefits of State employees. As such the State of Jharkhand is directed to take a formal decision in the light of the aforesaid findings and pass a necessary order with respect to monetary benefits in favour of the petitioner. The petitioner is also at liberty to file a representation before the State of Jharkhand for claim of monetary benefit. It goes without saying that since the matter is very old the entire exercise shall be completed by the respondent authorities within a period of four months from the date of receipt production of copy of this order and or With the aforesaid terms instant writ application stands allowed. The pending I.A. stands disposed of. 