Dhiraj Singh vs State Of U.P.& Others
2017 Latest Caselaw 7319 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										AFR
 
Court No. - 28
 

 
Case :- WRIT - A No. - 39239 of 2000
 

 
Petitioner :- Dhiraj Singh
 
Respondent :- State Of U.P.& Others
 
Counsel for Petitioner :- Arvind Vashisth,Kulveer Singh,Sunil Vashishtha,Y.K.Sinha
 
Counsel for Respondent :- C.S.C.,S. Vashishth
 

 
Hon'ble Siddharth,J.

Heard learned counsel for the parties.

The petitioner has filed the above noted writ petition, praying for a direction to the respondents to fix his pension, on the basis of his last drawn salary i.e., Rs.12887/- at the basic pay scale of Rs.8100/-.

The brief facts of the case are that the petitioner was a Constable in Uttar Pradesh Civil Police and was sent on deputation to Intelligence Bureau on 20.01.1967. On 09.01.1971, he was promoted to the post of Head Constable, on 13.12.1972, he was promoted to the post of Junior Investigation Officer (Assistant Sub Inspector), thereafter, he was promoted to the post of Assistant Central Intelligence Office, Grade-II (Sub Inspector) in the pay scale of 575-15-580-81-626. There after the petitioner got another promotion to the post of Assistant Central Intelligence Officer, Grade-I, w.e.f., 26.12.1995 in the pay scale of 2000-60-23-EB-75-3200. After serving the Intelligence Bureau on the above noted posts, he was sent back to his parent department, Uttar Pradesh Civil Police on 02.03.2000, when he was to retire on 31.03.2000 and he was made to join on the post of Constable as per order dated 24.03.2000 of the Police Head Quarters and superannuated on 31.03.2000. At the time of repatriation from Intelligence Bureau to Uttar Pradesh Civil Police, the petitioner was drawing the Basic Pay Scale of 8100/-. After his superannuation his pension was being fixed on the Basic Pay Scale of 4650/- and his G.P.F. was not paid and therefore, he approached this Court by way of this writ petition.

In the Counter Affidavit filed on behalf of the respondents, it has been simply stated that the petitioner had lien only on the post of Constable in U.P. Civil Police and therefore after coming back from deputation, he was posted on the parent post of Constable and retired there from. He is entitled to get his post retirement dues on the basis of the prevalent Basic Pay of the post of Constable at the time of his superannuation.

The petitioner has filed Rejoinder Affidavit denying the averments in the Counter Affidavit and stating that after 33 years of service on deputation he can not be denied the benefits accrued to him on deputation in Violation of Article 14 of the Constitution of India.

The learned Counsel for the petitioner has relied upon the Judgment of this Court in the case of Vishwa Nath Rai Vs. Central Intelligence Officer, Ministry of Home Affairs and others, 1992 (19) AIR 170 , wherein this Court held that the denial of the benefits of 19 years of the service to a deputationist amounts to punishment and without reasonable opportunity being heard it can not be done, since it is violation of 311 (2) of the Constitution of India and the respondents were directed to pay the petitioner, the pay and allowances of the post equal to the last post held by the petitioner on deputation.

The learned Standing Counsel has stated that the petitioner had no right to claim benefit of higher posts in his parent department, since his lien was confined to the post of Constable.

The case law of Vishwa Nath Rai (Supra) cited by the petitioner does not lays down the correct law. In the case of "Umapati Chaudhary Vs. State of Bihar, (1994) 4 SCC 659" the Supreme Court clarified the legal position with regard to deputation as follows:-

"Deputatoion can be aptly described as an assignment' of an employee ( commonly referred to as the deputationist) of one department or cadre or even an organisation (commonly 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 "D.M. Bharati Vs. L.M. Sud, 1991 Supp (2) SCC 162: AIR 1991 SC 940: 1991 Lab IC 423" wherein the Court was dealing with a case whether the employee had got a promotion in the department to which he was sent on deputation. While considering the effect of the said promotion after repatriation the Court observed thus: "7..... that the appellant's promotion as junior draftsman and proposed promotion as Surveyor-cum-Draftsman in the Town Planning Establishment cannot confer any rights on him in his parent department. When he left the Municipal Corporation and joined the Town Planning Establishment he was a tracer and he can go back to the Estate Department or any other department of the Municipal Corporation only to his original post i.e. as tracer, subject to the modification that, if in the meantime he had qualified for promotion to a higher post, that benefit cannot be denied to him."

Thus, the repatriation has to be to the original post and benefit of promotion in the department to which an employee is deputed is of no consequence, subject to his entitlement of status otherwise available in the parent department.

In "Puranjit Singh Vs. UT of Chandigarh, 1994 AIR SCW 3892: 1994 Supp (3) SCC 471, AIR 1994 SC 2737 it has been held that when a deputation is repatriated he cannot claim promotions in the parent department on the basis of officiation in a higher post in the borrower organization.

In "State of Punjab Vs. Inder Singh, (1997) 8 SCC 372: 1998 Lab IC 133: AIR 1998 SC 7 the learned Judges elaborately adverted to the concept of deputation and the right of a deputation and in that context opined thus:

"18. The concept of 'deputation' is well understood in service law and has a recognized meaning. "Deputation' has a different connotation in no help. In simple words 'deputation' means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the Recruitment Rules."

In view of the legal position set out in the case of "Union of India and others Vs. Bhanwar Lal Mundan, (2013) 12 SCC 433: 2013 AIR SCW 6675", the petitioner is not entitled to get pay protection after his repatriation to the parent department. However, the petitioner was entitled to be considered for promotion in his parent department and it was obligatory on the part of the authorities in the parent department to intimate him, when the selection for the higher post was taken by them. There is no pleading in the writ petition whether the contemporaries of the petitioner, in the parent department got promotions while he was serving on deputation in Intelligence Bureau.

Therefore, the petitioner may represent his case before the respondent concerned for revision of his basic pay in the parent department at par with employees, who were appointed with him in the parent department of U.P. Civil Police and during his period of deputation got promotions or increase in the pay scale.

With the aforesaid observations, the writ petition is disposed of.

Order Date :- 27.11.2017

Ruchi Agrahari