The State Of Bihar vs Chanarik Baitha
2023 Latest Caselaw 5371 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Letters Patent Appeal No.1293 of 2019
                                      In
                Civil Writ Jurisdiction Case No.6834 of 2017
     ======================================================

1. The State of Bihar through Chief Secretary, Main Secretariat, Patna.

2. The Principal Secretary, Department of Social Welfare, Government of Bihar, Patna.

3. Joint Secretary, Department of Social Welfare, Government of Bihar, Patna.

4. Director, ICDS, Indira Bhawan, Patna.

5. The Commissioner & Secretary, Department of Finance Government of Bihar, Main Secretariat, Patna.

... ... Appellant/s Versus

1. Chanarik Baitha, Son of Sukhlal Baitha, Residence, Shipara East, P.S.- Beur, Patna.

2. The Accountant General, Bihar, Beer Chand Patel Path, Patna.

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Sunil Kumar Mandal, S.C. 3 Mr. Bipin Kumar, AC to SC- 3 Ms. Neelam Kumari, A.C. to S.C. -3 For the Respondent/s : Mr. Kishore Kumar Thakur, Advocate Mr. Braj Kishore Singh, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE RAJIV ROY CAV JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 17-10-2023

The obstinate recalcitrance of the State Government,

very evident from the above appeal filed, is to deny the first

respondent pension to live a peaceful retired life, as a

government employee, despite having succeeded in the various Patna High Court L.P.A No.1293 of 2019 dt. 17-10-2023

litigations before this Court. The learned Single Judge directed

that the writ petitioner, the first respondent herein, should be

treated to have been absorbed on and from the date of

deputation and should be granted the pensionary benefits in

terms of the pension rules which were operational at the relevant

time. The main plank of the State in challenging the impugned

judgment is the decision of the Hon'ble Supreme Court in an

appeal from the order in L.P.A. No. 608 of 2006 and connected

matters preferred by the State of Jharkhand, which judgment (in

L.P.A) was consistently relied on by various Benches of this

Court to allow the claim of the respondent and other similarly

situated deputationists.

2. We need to look at the various judgments as

available from the records before we look at the facts of the

case. The admitted facts are that many of the public sector

undertakings (PSUs) floated by the State failed to achieve the

desired objects and purposes and in course of time became

dysfunctional, having suffered huge losses, making their

continuation a burden on the exchequer. Faced with the prospect

of closing down, the State at first resorted to pruning of

manpower and permitted deputations to be carried out so that

the personnel of these PSUs/Corporations were accommodated Patna High Court L.P.A No.1293 of 2019 dt. 17-10-2023

in government departments. A selection procedure was resorted

to and many of the excess personnel were accommodated in the

various departments, wherein, based on their satisfactory

performance the deputations were extended. Some of them were

regularly absorbed in the Government but others were denied

such absorption.

3. Such regularization on mere whim and caprice also

led to repatriations to the parent department wherein the

deputationists would be denied of pension; especially when

cancellation of deputation resulting in the repatriations was

made just prior to retirement and to dysfunctional entities.

Solitary cases taken up by those employees whose deputations

were cancelled were allowed by this Court. But a batch of such

cases were dismissed by the learned Single Judge which led to

appeals being filed, eight of which were disposed of by

judgment dated 19.04.2010 in LPA No. 608 of 2006 and

connected matters (Avinash Vatsyayan v. The State of Bihar &

Ors.).

4. In L.P.A 608 of 2006 and connected cases, the

appellants who were also the writ-petitioners and employees of

a Cooperative Society (the BISCOMAUN) in which at the

relevant time, there was an Administrator appointed. The Patna High Court L.P.A No.1293 of 2019 dt. 17-10-2023

appellants were sent on deputation to Government departments

because of the poor financial condition of the Society, its very

viability having been threatened by its dismal performance. The

learned Single Judge found that the deputation of petitioners to

the Government departments, which saved their employment,

could only be treated as any other deputation, liable for

repatriation to the parent Organization at any time. The State

Government's stand that there was never a decision taken to

absorb those who were on deputation, which itself was a

temporary measure, was accepted by the Writ Court.

5. The Division Bench of this Court found that though

there was no formal notification of the government policy to

transfer the services of the petitioners to the government

departments, the mere term employed, of deputation cannot

deprive them of the benefit of the policy which has been

extended to many similarly situated persons.

6. There were also judgments of this Court, though in

solitary instances, wherein similar deputation of employees

under the government policy decision, culminated in their

absorption enabling every benefit due to a government

employee on superannuation; reckoning the period spent on

such deputation as government service.

Patna High Court L.P.A No.1293 of 2019 dt. 17-10-2023

7. It was held that the transfer of employees to the

government departments was not a simple deputation as is

ordinarily understood in service jurisprudence and it was rather

a good and acceptable mechanism to transfer services of

suitable employees to organizations and departments where the

vacant posts were available and their services could be utilized;

eventually leading to absorption in the light of the policy of the

Government.

8. Reliance placed on the Division Bench judgment in

State of Bihar v. Gopal Prasad; 2003 (4) PLJR 495 was found

to be not relevant since in the said case, the deputation orders

were issued after 16.11.1999, which was accepted as a cut-off

date as per the policy decision, on that very date, of the

Government, from which date general deputation of employees

other than government servants could not be made to

government departments.

9. Md. Amanullah v. State of Bihar; 2004 (1) PLJR

145 was another Division Bench judgment cited, to find the

concept of cut-off date introduced later, having not adversely

affected the regularization of deputations made before the cut-

off date. The Division Bench also referred to various judgments

of learned Single Judges wherein regularization was directed or Patna High Court L.P.A No.1293 of 2019 dt. 17-10-2023

declined, based on the distinguishing facts coming out therein.

10. Further, in Md. Shamim Ansari v. The State of

Bihar; 2002 (2) PLJR 579, the learned Single Judge found the

normal rule of deputation to have no application, where it is

made more in the nature of a rehabilitation. The parent

department had virtually ceased to exist, for all intent and

purposes and it would be futile and unrealistic to send back the

deputationist to the parent department was the finding.

11. Again, in Raghunath Sharma v. State of Bihar;

2003 (2) PLJR 396 deputation of the employee was made after

16.11.1999. The Division Bench in L.P.A. No. 608 of 2006 held,

as a logical corollary to the discussions made, that the

petitioner's appeals, except one, where the deputation was made

after 2001, should be allowed. An SLP filed from the aforesaid

judgment by the State of Bihar was dismissed.

12. When matters stood thus, there was an attempt to

cancel the deputation of similarly situated persons, including the

first respondent which was challenged by the Bihar State

Government Employee's Association and eleven individuals on

deputation, by filing CWJC No. 10016 of 2007 in which

judgment was delivered on 06.04.2011. The learned Single

Judge who disposed of the writ petition held so in the last Patna High Court L.P.A No.1293 of 2019 dt. 17-10-2023

paragraph, which is extracted hereunder:-

"I find that all petitioners who are members of Petitioner No. 1 "Association" as well as other petitioners, stands on similar footing as appellants of the LPA No. 608 of 2006 and its analogous appeals, as such entitled for similar relief. Accordingly, the Respondent Nos. 2, 3, 4 and 5 are directed to pass necessary order of absorption of all these petitioners. None of the petitioners shall be repatriated to those defunct Boards, Corporations, Public Sector Undertakings / Enterprises, which were their parent Department. Petitioners will be allowed to superannuate from the posts, they are working. They will be paid their salary, pensionary benefits, remaining on the same post.

With these direction / observations, this Writ Application is disposed of."

13. However, the Government continued its

recalcitrance which led to number of contempt cases and writ

petitions being filed. A batch of contempt cases were disposed

of by Annexure- P-10, which cases were filed for non-

compliance of the judgment in LPA No. 608 of 2006. The

Division Bench judgment and the terms therein were

emphasized to find the beneficiaries entitled to be treated as

government employees from the date of deputation for the

purpose of pensionary benefits.

14. The first respondent, issued with an order of

cancellation of deputation, challenged it by filing CWJC No. Patna High Court L.P.A No.1293 of 2019 dt. 17-10-2023

531 of 2011. It came to be disposed of on 14.07.2011 by

Annexure- P-13. The Hon'ble Single Judge quashed the letter

bearing Memo No. 861 dated 16.03.2010 passed by the

Director, Integrated Child Development Scheme ("ICDS" for

brevity), Bihar; by which his deputation was cancelled, as also

the consequential order/ letter no. 1124 dated 30.06.2010 and

the matter was remanded back to the Director, ICDS for fresh

consideration.

15. A contempt case was initiated as MJC No. 3694 of

2011 in which there was an order passed on 25.01.2012

(Annexure- P-14) directing a fresh show-cause to be filed on the

submission of the Government Pleader that the Director, ICDS

has been requested to reconsider the matter. An appeal filed

from the judgment in CWJC No. 531 of 2011 by the State of

Bihar was dismissed (Annexure-P-15) in LPA No. 634 of 2012

connected with LPA No. 172 of 2010.

16. MJC No. 3694 of 2011 was disposed of on

12.08.2015 (Annexure-P-18) wherein it was noticed that the

Director, ICDS had permitted the first respondent to continue in

service till attainment of 60 years of age. In so far as the first

respondent's apprehension regarding payment of gratuity, it was

directed to be agitated before the appropriate authorities. Patna High Court L.P.A No.1293 of 2019 dt. 17-10-2023

Despite all these litigations, the State refused to grant

pensionary benefits to the first respondent on the ground that he

was never regularized in service, which led to the writ petition

from which the instant appeal arises.

17. The bulwark of the contention of the State is the

judgment of the Hon'ble Supreme Court produced as Annexure-

10 in this L.P.A, which challenged the Division Bench judgment

of this Court in LPA No. 608 of 2006 and analogous cases. The

Civil Appeal before the Hon'ble Supreme Court arose from the

judgment of the High Court of Jharkhand in LPA No. 243 of

2008. Therein also, a similar claim of regularization was raised

in which the regularization had to be made by the State of

Jharkhand after the Bihar Reorganization Act, 2000 which

required the employees of the erstwhile Government of Bihar to

be dealt with according to Section 74 of that Act. The learned

Judges found that a deputation arrangement would not be

covered under Section 74 of the Bihar Reorganization Act,

which deals only with substantive employment in the State. The

grounds of legitimate expectation and promissory estoppel were

negatived and the reliance placed on the judgment of this Court

in L.P.A. No. 608 of 2006, which was upheld in the SLP by the

Hon'ble Supreme Court, was found to be of no consequence in Patna High Court L.P.A No.1293 of 2019 dt. 17-10-2023

so far as the State of Jharkhand was concerned.

18. Before the Hon'ble Supreme Court, the appellant

in LPA No. 243 of 2008 challenged the judgment of the High

Court of Jharkhand and the State of Jharkhand, after obtaining

leave, challenged the judgment in LPA No. 608 of 2006, of this

Court. The Hon'ble Supreme Court in Annexure-10 common

judgment found that the decision taken for deputation from

'BISCOMAUN' was of a committee comprising three officers

of the State of Bihar which cannot be deemed to be a High-

Powered Committee decision of the State of Bihar. A note

submitted before the 'Committee on Economic Policy and

Coordination of the Council of Ministers' was found to have

contained the stipulation of clear guidelines being required for

the scheme of rehabilitation of the surplus employees of

BISCOMAUN; which had to be presented before the Council of

Ministers. Neither was an approval granted by the Coordination

Committee of Economic Policy of the Cabinet nor was there a

Cabinet decision.

19. The judgment of the High Court of Jharkhand in

LPA No. 243 of 2008 was upheld and the judgment of the Patna

High Court in LPA No. 608 of 2006 was set aside in so far as it

relates to the two appellants. This does not in any manner affect Patna High Court L.P.A No.1293 of 2019 dt. 17-10-2023

the case of the first respondent herein, especially since even

now LPA No. 608 of 2006 and the subsequent judgment passed

in CWJC No. 10016 of 2007 and the later judgment passed in

CWJC No. 531 of 2011, the last filed by the first respondent

himself, as upheld in LPA No. 634 of 2012 remain in force.

These decisions regulate the relationship of the parties in the

present appeal also.

20. The judgment in the Civil Appeal filed by the

State of Jharkhand specifically interfered with the decision in

LPA No. 608 of 2006 only in so far as it relates to the appellants

therein, who claimed regularization under the State of

Jharkhand. We have to pertinently observe that this was also in

the circumstance of the decision taken for deputation of those

employees from BISCOMAUN, a Cooperative Society. When,

those employees who remained in the State of Bihar were

regularized by virtue of the common judgment in LPA No. 608

of 2006, there is no reason why the first respondent herein who

was deputed from the Bihar Construction Corporation to the

Integrated Child Development Services should be denied of

such regularization.

21. On the facts of the first respondent herein, he was

appointed and continuing as an Accounts Assistant in the Bihar Patna High Court L.P.A No.1293 of 2019 dt. 17-10-2023

State Construction Corporation Limited (henceforth for short

"the Corporation"). There was a decision taken to wind up non-

viable Corporations, but taking into account the pitiable

financial position of the employees serving there, the

Government as a measure of rehabilitation directed different

departments to consider such surplus employees for deputation

after examining their individual qualification and eligibility. The

Treasury and Accounts Directorate of the Finance Department

called for such names of surplus employees and laid down the

service conditions of rehabilitation as per Annexure- P-1.

Clause-6 of Annexure P-1 stipulated that the assessment of

performance of the deputationists would be made every year

and if their services are found satisfactory, their deputation as

also eventual absorption would be considered.

22. The Commissioner and Secretary of the Welfare

Department by communication dated 07.02.1996 called for the

list of surplus employees of Corporations for the purpose of

employing them on deputation in 'the ICDS' Projects as well in

the ICDS Directorate. The first respondent was declared

successful in the selection test and was placed on deputation by

an order dated 21.03.1997, produced as Annexure P-2.

23. The first respondent was thereafter appointed in Patna High Court L.P.A No.1293 of 2019 dt. 17-10-2023

the Class-III post of Clerk and continued till he was threatened

to be repatriated upon. He successfully challenged the order in

CWJC No. 531 of 2011, based on the judgment in CWJC No.

10016 of 2007, where his cause was also agitated by the

Government Employees' Association, which decision relied on

the principle in LPA No. 608 of 2006. The first respondent in the

memorandum itself has pointed out a number of cases where

identical deputationists were regularized in service. Even with

respect to the first respondent herein, the decisions in the writ

petitions filed by him cancelled his repatriation and allowed him

to continue till he was retired.

24. In fact, by Annexure-P-5 dated 25.09.2002, the

Finance Department of the State of Bihar circulated the policy

decision of the Government to allow those surplus employees,

accommodated on deputation till the cut-off date of 16.11.1999,

to be continued on deputation and those who were deputed after

the said date to be repatriated to the parent organization. The

first respondent attained the age of superannuation and despite

by Annexure- P-17 the Child Development Project Officer

ordered payment of gratuity, the Treasury refused to make such

payment on account of the fact that there was no permanent

absorption carried out. The first respondent on bringing it to the Patna High Court L.P.A No.1293 of 2019 dt. 17-10-2023

notice of the Writ Court in MJC No. 3694 of 2011, as noticed

earlier by Annexure P-18, was directed to make a representation

which was made as per Annexure P-19 which evoked no

response leading to the instant writ petition.

25. As we observed at the outset, the State has been

obstinate in its recalcitrance to deny the first respondent the

fruits of the litigation, thus acting in flagrant violation of the

various orders issued by this Court. The first respondent who

was working in a Public Sector Undertaking was sent on

deputation to a government department and work was extracted

from him for a long period, as is done from any other

government employee.

26. Further, as has been held by the various decisions,

the instant deputation was not a simple deputation as normally

understood in service jurisprudence rather it had an element of

rehabilitation. We cannot but observe that the State also

benefited from the same since otherwise by reason of the excess

employees in the PSUs they would have collapsed immediately

and such PSUs would have had the responsibility to retrench its

employees with suitable compensation. The deputation granted

by the State, to its own departments was on a definite policy

framed by the Government; which while providing succor to the Patna High Court L.P.A No.1293 of 2019 dt. 17-10-2023

employees of PSUs also ensured that the already unviable PSUs

were not saddled with further financial burden.

27. The employees from the PSUs were accepted by

the Government, which more than demonstrates the policy

decision; which we find is not only in the nature of

rehabilitation but also to ensure the survival of the PSUs, which

would have folded up for reason of continuance of such excess

employees or further liability being incurred for retrenchment of

the excess employees.

28. The Government having extracted the work from

the deputationists for long and a policy having been taken not to

repatriate those who were deputed before a cut-off date; i.e.

16.11.1999, there is no reason to deviate in solitary instances

from the policy decision taken. The judgments inter parties

regulate the issue dealt with.

29. In the aforesaid background, the observation of

the Hon'ble Single Judge in the impugned judgment; that

refusing to grant benefit of pension on account of the fact that

the petitioner has already superannuated is completely wrong

and arbitrary exercise of power is fully justified. The Writ Court

rightly directed the authority to treat the respondent petitioner to

have been absorbed on and from the date of deputation and be Patna High Court L.P.A No.1293 of 2019 dt. 17-10-2023

granted pensionary benefit in terms of pension rule operational

at that time.

30. We direct the first respondent herein to be treated

as having been regularized from the date of his deputation and

his further service in the Government shall be reckoned for the

purpose of pension. The entire pensionary benefits due to the

first respondent shall be paid to him within a period of three

months from today and the further pension due to him shall be

commenced from the fourth month from today.

31. The Letters Patent Appeal is dismissed with

exemplary cost of Rs. 10,000/- (ten thousand) payable to the

first respondent together with the other retirement dues

applicable to him; for the attitude of the Government, which

does not ordinarily behove a welfare State; especially in the

teeth of the inter-parties judgment. It is also made clear that if

the pension dues are not paid within the time stipulated, it shall

carry 9% interest from the beginning of the fourth month from

today, till it is paid. If any gratuity remains to be paid, it goes

without saying that it shall carry interest @ 9% from the expiry

of one month from the date of his retirement till the date of

payment; if not already paid.

32. The Letters Patent Appeal is dismissed with Patna High Court L.P.A No.1293 of 2019 dt. 17-10-2023

exemplary costs as indicated hereinabove.

33. Interlocutory Application(s), if any, shall stand

closed.

(K. Vinod Chandran, CJ)

I agree.

Rajiv Roy, J:

(Rajiv Roy, J) P.K.P./-

AFR/NAFR
CAV DATE                05.10.2023
Uploading Date          17.10.2023
Transmission Date