Jharkhand High Court

Rajeshwar Prasad vs State Of Jharkhand on 15 March, 2021

                                       1

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    W.P.(S) No. 1935 of 2014
     Rajeshwar Prasad                              ..... Petitioner
                            Versus
     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.
     3. The Chief Engineer, Minor Irrigation, Ranchi State of
        Jharkhand.
     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.
        4 C, Ashok Nagar, P.O.+P.S.-Argora, District-Ranchi.
                                      .....   Respondents
                               ---------

CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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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

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30/Dated: 15th March, 2021 Heard learned counsel for the parties through V.C.

2. 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 Corporation (hereinafter to be referred as the

BHALCO) to 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.

3. 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 the respondent-authorities for

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.

5. Learned counsel further contended that the

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 in (2019) 5

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.

6. 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 the 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 the

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.

In the instant case, though 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 (supra) 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 (recruitment) 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 ?

In the 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,

when 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 (2019) 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 paid to the employees working in the parent organisations.

23. Now, so far as the quashing and setting aside the Resolution dated 27-3-2012 by which the Corporation resolved to pay salary to the employees of the 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 petitioners are on deputation from different 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 deputation or on contract basis from other 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 Board/organisation.

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

the eye of law.

14. Now, the last and most important issue is that

whether the petitioner is entitled for absorption in the State

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

manner:

"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 that 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, the petitioner was legally entitled for consideration for

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."

15. 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 the

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