Tripura High Court
Bodhjungnagar vs The State Of Tripura Represented ... on 17 August, 2022
1
HIGH COURT OF TRIPURA
AGARTALA
WA 237 of 2020
Sri Nikhil Chandra Das, son of late Ridhan Das, resident of
Village- Baldakhal, PO - West Champamura, P.S-
Bodhjungnagar, Sub -Division- Jirania, District- West Tripura.
-------Appellant(s)
Versus
1.The State of Tripura represented by the Commissioner and
Secretary to the Revenue Department, Government of Tripura,
having his office at New Secretariat Complex, Gorkhabasti,
Agartala, PO- Kunjaban, PS - New Capital Complex, Sub -
Division- Sadar, District- West Tripura
2.The Commissioner and Secretary to the Revenue
Department, Government of Tripura, having his office at New
Secretariat Complex, Gorkhabasti, Agartala, PO- Kunjaban, P.S.
- New Capital Complex, Sub -Division- Sadar, District- West
Tripura
3.The District Magistrate and Collector West Tripura,
Agartala
-----Respondent(s)
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2
BEFORE
HON'BLE MR.JUSTICE ARINDAM LODH
HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY
For the Appellant(s) : Mr. Somik Deb, Sr. Adv.
Mr. Abir Baran, Adv.
For the Respondent(s) : Mr. D.Bhattacharjee, GA.
Mr. S.Saha, Adv.
Date of hearing : 08.07.2022
Date of delivery of : 17.08.2022
Judgment and Order
Whether fit for
reporting Yes No
JUDGMENT
(S.G.Chattopadhyay), J
[1] This Writ Appeal has been filed against the
judgment and order dated 23.09.2020 passed by learned
Single Judge, in WP(C) No.309 of 2020.
[2] The factual context of the case is as under:
(i) Appellant Nikhil Chandra Das was appointed
as a sales-man / assistant in the pay scale of Rs.970-
2400/- purely on contractual basis in the establishment of
Tripura State Cooperative Consumers Federation Ltd.
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(TSCCF for short) by a memorandum issued by the
administrator of TSCCF on 23.05.1990[Annexure-A to the
Writ Petition] for a period of 01 year w.e.f the date of his
joining.
(ii) On 30th March, 2006, the Chief Secretary to
the Government of Tripura in the Revenue Department
issued a memorandum [Annexure-2 to the Writ petition]
which provided that 10 employees of TSCCF Ltd. in Group-
C shall be appointed and posted in the office of Sub-
divisional Magistrates of Santirbazar and Teliamura and
the respective District Collectors were asked to issue
appointment order in favour of those employees of TSCCF
and post them in the offices of SDM, Santirbazar and
Teliamura against available vacancies. The said
memorandum contained the list of those 10 employees
which included the name of the appellant.
(iii) District Magistrate and Collector of the
erstwhile South Tripura District by issuing order dated
30.03.2006[Annexure-3 to the Writ Petition] had posted
the appellant in the office of the Sub-divisional Magistrate
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Santirbazar and the appellant was asked to report to the
Deputy Collector and Magistrate of Santirbazar Revenue
circle immediately after his release from TSCCF.
(iv) On the same day i.e. on 30.03.2006, the
Chief Executive Officer of TSCCF released all the 10
employees including the appellant who were so appointed
in the office of the Sub-divisional Magistrate at Santirbazar
and Teliamura and the said employees were asked to hand
over their charges to the next senior staff of their
respective units on the same day or within the next week
so as to enable them to join their new assignment.
(v) It would appear from the record that
pursuant to the order of his appointment in the office of
SDM, Santirbazar and the subsequent release order issued
from TSCCF Ltd., appellant joined the office of the Deputy
Collector and Magistrate, Santirbazar, Tripura on
31.03.2006 in the fore noon and joining of the appellant
was accepted by the Deputy Collector and Magistrate,
Santirbazar by a written order dated 31.03.2006
[Annexure-5 to the Writ Petition].
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(vi) On 02.06.2006, the DM and Collector,
South Tripura issued an order [Annexure-6 to the Writ
Petition] indicating that the appellant along with other 05
employees of TSCCF Ltd. who were posted at Santirbazar
Sub-division would be treated as on deputation for a
period of 02 years from the date of joining. The said order
dated 02.06.2006 was duly communicated to the
appellant.
(vii) The appellant continued to discharge his
duties without raising any question with regard to the
nature of his appointment and posting. Only on
29.09.2009 i.e more than 03 years after his appointment
in the office of DCM Santirbazar on deputation, the
appellant filed an application to the Commissioner and
Secretary, Revenue Department seeking absorption in the
post held by him.
(viii) But the State Government treated the
appellant and the other employees of TSCCF who were
posted in the office of SDM, Teliamura and Santirbazar as
the employees of TSCCF Ltd. serving on deputation. By an
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order dated 26.05.2020[Annexure-8 to the Writ Petition]
the DM and Collector repatriated the appellant to his
parent department on the ground that he was due to retire
on 31.08.2020. The appellant who was then working as an
LDC in the office of DM was treated to have been released
from the said office w.e.f. the afternoon of 31.05.2020 and
he was directed to join his parent department on
01.06.2020 for duty.
[3] Challenging the order dated 26.05.2020, the
appellant filed WP(C)No.309 of 2020 mainly on the ground
that in the memorandum dated 30.03.2006[Annexure-2 to
the Writ Petition] whereunder appellant along with 9 other
employees of TSCCF Ltd. were appointed and posted in the
office of SDM Santirbazar and Teliamura and in the
subsequent order dated 30.03.2006[Annexure-3 to the
Writ Petition] whereunder he was posted in the office of
SDM, Santirbazar and even in the order dated 30.03.2006
[Annexure-4] whereby he was released from TSCCF Ltd.,
there was no indication that the appellant was sent to the
government department from TSCCF on deputation. The
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writ petitioner [Appellant herein] contended that after
serving the government department without any blemish
for as many as 14 years from 2006, he was suddenly
repatriated to TSCCF Ltd. by the impugned order dated
26.05.2020[Annexure-8 to the writ petition] only 06
months prior to his retirement which was totally illegal and
uncalled for.
[4] The state respondents submitted their reply
asserting that the Chief Secretary to the Government of
Tripura vide note No.F.2(1)ES.Gen/2006 dated 16.03.2006
conveyed several decisions of the Government on different
issues which under Paragraph (iv) provided that the
clerical staff, who have so opted, may be withdrawn and
posted to the newly created sub-division of Teliamura and
Santirbazar. The state respondents contended further that
the appellant who was sent on deputation to government
service was repatriated before the date his superannuation
so that all retiral benefits can be disbursed from his parent
department. Moreover after considering the proposal for
absorption of employees of PSUs/ Boards in government
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departments after they rendered service in the
government departments for a long time, the state
government decided that at least 6 months prior to their
retirement, they should be repatriated to their parent PSU/
Board and on reversion to their parent organization, their
pay will be re-fixed in the original level/ grade. The
decision of the Government was circulated in the form of
guidelines under Memorandum dated 21.05.2020 and all
HODs were advised to follow the instructions contained in
these guidelines. Therefore, it was contended that the
state respondents acted in terms of the decision of the
State Government contained in office memorandum dated
21.05.2020[Annexure-R/10] by repatriating the appellant
and other employees of TSCCF to their parent department
from government department.
[5] Learned counsel of the appellant argued before
the learned Single Judge that there was no indication in
the memorandum dated 30.03.2006[Annexure-2] and in
the consequential order dated 30.03.2006[Annexure-3]
issued by the State Government that the petitioner was
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sent on deputation from TSCCF after appointment and
posting in the government department. Counsel argued
that in memorandum dated 30.03.2006[Annexure-2 to the
writ petition] it was stated that the employees of TSCCF
whose name appeared in the document were appointed
and posted in the office of the SDM Santirbazar and SDM
Teliamura. Similarly, in the subsequent document i.e.
order dated 30.03.2006[Annexure-3 to the Writ Petition] it
was stated that the employees of TSCCF named in the said
document was posted in the office of the SDM Santirbazar.
Subsequently, the State Government should not have
changed the terms of their appointment and posting by
saying that they were sent on deputation for two years
which was sought to be done under order dated
02.06.2006[Annexure-6 to the writ petition]. Learned
counsel of the appellant also referred to Rule 110 of the
Fundamental Rules (FR) to contend that the sad Rule did
not envisage deputation of a person to government
service. The rule only envisages deputation of a
government servant to another organization. Counsel,
therefore, argued before the learned Single Judge that in
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terms of Rule 110 of FR, posting of the appellant under the
Government department could not have been treated as
posting on deputation. This apart, learned counsel of the
appellant contended before the learned Single Judge that
the appellant discharged his duties in the Government
department for about 14 years from 2006 without blemish.
He never even thought that he was placed on deputation
and he would be repatriated to TSCCF as there was no
such indication in his appointment and posting order.
Counsel further argued before the learned Single Judge
that no expressed consent of him was obtained for sending
him on deputation to the government department and as
such it cannot be said that he consented for such
deputation. Counsel urged before the learned Single Judge
for quashing the repatriation order dated 26.05.2020 of
the appellant whereunder he was repatriated to TSCCF 6
months prior to his retirement.
[6] To nourish his contention, learned counsel of
the petitioner placed reliance on the following decisions:
(i) Raja Singh and another versus State of Uttar
Pradesh and another reported in (2019)6 SCC 528
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(ii)Judgment dated 04.03.2016 rendered by the learned
Single Judge of this High Court in the case of Sri
Debashish Majumder vs. State of Tripura and Ors. ,
WP(C) No.349 of 2015.
[7] Learned counsel of the state respondents on the
other hand argued before the learned Single Judge that
the appellant was aware of the fact that he along with
other employees of TSCCF was sent on deputation to the
government department pursuant to the decision of the
State Government to save them from termination since
TSCCF was in serious financial crunch and it was necessary
to reduce the financial burden of TSCCF in order to save
the organization. Therefore, the State Government decided
to utilize their service in government department on
deputation for a particular period with a view to prevent
their retrenchment owing to the financial constraints of
their parent organization namely TSCCF. The State counsel
also argued before the learned Single Judge that by order
dated 02.06.2006[Annexure-6] issued by the DM and
Collector, South Tripura it was made clear that the
services of the appellant and his colleagues of TSCCF in
government department would be treated as on
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deputation. Even thereafter, the appellant and all other
employees of TSCCF continued to work in the government
department without raising any objection to their status.
Counsel contended that as a deputationist the appellant
had no right to be absorbed in government service.
Therefore, the challenge to his repatriation to the parent
department was devoid of merit. In support of his
contention, the state counsel relied on the judgment dated
09.07.2020 of the learned Single Judge of this court
passed in case No. Mrinal Kanti Ghosh vs. State of Tripura
and Ors. [WP(C)1263 of 2016].
[8] On perusal of entire facts and circumstances
of the case and on consideration of the submissions made
by learned counsel representing the parties the learned
Single Judge held that even though there was no indication
in memorandum dated 30.03.2006 and in the written
order dated 30.03.2006 that the appellant was posted to
the government department on deputation, the state
government in the order dated 02.06.2006[Annexure-6]
specified the terms and conditions on which employees of
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TSCCF were brought over to the Government organization
in which it was clearly stated that they would be on
deputation. Learned Single Judge further held that even
the intention of the government was very clear from the
note dated 16.03.2006[Annexure-R/4] that the clerical
staff of TSCCF who had so opted, would be withdrawn and
posted to the newly created sub-division of Teliamura and
Santirbazar and the said note contained the various other
measures to save TSCCF which was in serious financial
crunch. Appellant never pleaded ignorance of such decision
of the State Government and particularly the order dated
02.06.2006[Annexure-6] issued by the DM and Collector,
South Tripura specifying that service of the appellant was
placed to the state government on deputation.
Furthermore, the appellant never objected to his status
being described as a deputationist in the said order.
According to the learned Single Judge, the petitioner
clearly understood and accepted that he was discharging
his duties in the government office as a deputationist and
not as a government servant. Learned Single Judge also
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discarded the argument of the counsel of the appellant
that FR 110 would come to the aid of the appellant.
[9] Referring the contention of the counsel of the
appellant that in the case of Raja Singh and another
(supra), the apex court has approved such absorption in
government service, the learned Single Judge held that the
apex court in the case of Raja Singh and another
(supra) while reiterating that the employee, even if he has
spent several years in service in the government
department on deputation, will have no right of absorption.
But in the peculiar facts and circumstances of the given
case, the Hon'ble apex court had observed absorption of
the concerned employee in government service with an
observation that the said judgment shall not be treated as
a precedence since it was rendered in the peculiar facts
and circumstances of the case. Therefore, learned Single
Judge was of the view that the ratio decided in the case of
Raja Singh (supra) would not apply in the present case.
[10] With regard to the application of the decision of
this court in the case of Debashish Majumder(supra),
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the learned Single Judge held that the facts and
circumstances in the case of Debashish Majumder
(supra) are completely distinguishable because in that
case after the petitioner's relationship with his former
employer had come to end and the petitioner no longer
had any lien over his post in the former organization, he
was absorbed in the new department in which he was
appointed through due process of selection in regular scale
of pay.
[11] Having relied on the decision of this court in the
case of Mrinal Kanti Ghosh(supra), learned Single Judge
was of the view that the appellant being on deputation
had no right to be absorbed in the deputation post even
though he pleaded that he rendered unblemished service
for a considerable period of time in the borrowing
government department. Learned Single Judge held and
observed as under:
"11. As per settled law, a deputationist has no right of
permanent absorption in the borrowing department. The same
must depend on the policy of the lending and the borrowing
organizations. As pointed out by the Government Advocate,
the State of Tripura has taken a conscious decision not to
absorb any staff of the PSUs or the Boards who may be
working in the Government on deputation. The provision that
such official should be repatriated to the parent department at
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least six months before his retirement is directory and cannot
be seen as mandatory, at any date giving a right to the
petitioner to insist that if such a condition is breached, the
same would result into crystallization of a right of absorption
in his favour.
12. Similar issues had come up for consideration before this
Court on number of occasions. In case of Mrinal Kanti Ghosh
(supra), it was held and observed as under:-
"[16] I am prepared to proceed on the basis that all
petitioners were on deputation to Government
service but retired without absorption. Short
question is, can the petitioners press for their
absorption in Government service as a matter of
right, mainly on the ground that they had put in long
service as deputationists before they were
repatriated and retired. The answer obviously has to
be in the negative. The petitioners have not cited
any statutory rule which vests any right in favour of
a deputationist to be absorbed in Government
service upon completion of requisite number of
years of service on deputation. In fact, the
respondents have been citing recruitment rules for
the respective posts contending that only mode of
recruitment to Group - C and D posts is by direct
recruitment and appointment by absorption of
deputationist is not one of the means of recruitment.
[17] Further, it is well settled in series of judgments
of the Supreme Court that a deputationist does not
have a vested right of absorption in the service of
the borrowing organization. In case of Kunal Nanda
Vs. Union of India and Anr., reported in (2000) 5
SCC 362 it was held and observed as under : "6. On
the legal submissions made also there are no merits
whatsoever. It is well settled that unless the claim
of the deputationist for permanent absorption in the
department where he works on deputation is based
upon any statutory Rule, Regulation or Order having
the force of law, a deputationist cannot assert and
succeed in any such claim for absorption. The basic
principle underlying deputation itself is that the
person concerned can always and at any time be
repatriated to his parent department to serve in his
substantive position therein at the instance of either
of the departments and there is no vested right in
such a person to continue for long on deputation or
get absorbed in the department to which he had
gone on deputation. The reference to the decision
reported in Rameshwar Prasad Vs M.D., U.P. Rajkiya
Nirman Nigam Ltd. and Others [1999 (8) SCC 381] is
inappropriate since, the consideration therein was in
the light of statutory rules for absorption and the
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scope of those rules. The claim that he need not be a
graduate for absorption and being a service
candidate, on completing service of 10 years he is
exempt from the requirement of possessing a degree
need mention, only to be rejected. The stand of the
respondent department that the absorption of a
deputationist being one against the direct quota, the
possession of basic educational qualification
prescribed for direct recruitment i.e., a degree is a
must and essential and that there could no
comparison of the claim of such a person with one to
be dealt with on promotion of a candidate who is
already in service in that department is well merited
and deserves to be sustained and we see no
infirmity whatsoever in the said claim."
[18] In case of Ratilal B. Soni and Ors. Vs. State of
Gujarat and Ors., 1990 (Supp.) SCC 243, it was
observed as under :
"5. The appellants being on deputation they could be
reverted to their parent cadre at any time and they
do not get any right to be absorbed on the
deputation post. We see no infirmity in the judgment
of the High Court and as such we dismiss the appeal.
There shall be no order as to costs."
[19] In case of Dilip Kumar Saha Vs State of Tripura
and Ors., WP(C) No.237/2020, in an judgment dated
20th March, 2020 Single Judge of this Court had
observed as under :
"As per settled law, a deputationist has no right of
absorption in the borrowing department. The
petitioner was an employee of the said Federation
and strictly speaking, was not a Government
servant. It was only because the Federation ran into
acute financial difficulties that the Government in
order to obviate the difficulties of the staff of the
Federation, out of sympathetic consideration called
for options and protected the services of those who
were willing to work in other Government
organizations or departments. This option itself
clearly provided that those who are not so willing,
may apply for VRS. In other words, if the petitioner
or any other staff member of the Federation at the
relevant time had shown disinclination to work in
any other Government organization or department,
the Federation would have had no choice but to
terminate the service through voluntary retirement.
It was only in order to protect the petitioner and
other similarly situated employees of the Federation
from such premature termination, that the
Government out of sympathetic consideration
decided to take work from them in other
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Government organizations or departments. The
petitioner thus continued from 2006 till date on
deputation basis. Absorption of a deputationist must
depend on range of factors, principally the policy of
the borrowing department. Therefore, the petitioner
has no legal right to insist on being absorbed. One
isolated incident of the year 1999 of absorption of
one such deputationist is cited before me. Such
considerations and situation prevailing in the year
1999, cannot be applied after two decades. No
directions for absorbing the petitioner, therefore,
can be passed."
[20] It appears, as is stated by the petitioners in
their rejoinders, that because of surplusage of
employees in their parent organizations, the State
Government had utilized the services of the
petitioners on deputation. In plain terms, if the State
Government had not intervened and utilized the
services of the petitioners on deputation basis, in all
likelihood, the petitioners would have faced possible
retrenchment. It was an order to avoid such an
unpleasant consequence for a sizeable number of
employees of State-owned Corporations that this
formula of utilizing the services of permanent
employees of such Corporations on deputation
seemed to have been devised by the State
Government. At no stage, the petitioners ever
opposed continued prolonged deputation. In other
words, the petitioners never sought repatriation to
their parent organizations. As is well settled,
deputation is a method of temporarily borrowing the
services of an employee of one organization or
department by another organization or department.
In the process, consent of all three agencies i.e. the
employer as the lending organization, the borrowing
organization where the employee would be sent on
deputation and also that of the employee himself, is
necessary. Thus the petitioners consented to be sent
on deputation and to continue to work on deputation
for long period of time. They now cannot turn
around and claim regularization dehors statutory
rules and in absence of Government policy."
13. In case of Debasish Majumder (supra), facts were entirely
different. It was a case where the petitioner was previously
working as Accountant in the District Rural Development
Agency. Subsequently, the Society for Women's Polytechnic
issued employment advertisement for various posts including
the post of Accountant on deputation. The petitioner applied
for the said post, was selected and joined as an Accountant in
Society for Women's Polytechnic. The Principal of the said
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institute also wrote to the Director of Higher Education for
absorption of the petitioner on the post of Accountant on
several occasions. It was found that the petitioner's
relationship with his former employer had come to an end and
the petitioner no longer enjoyed a lien over his post in the said
organization. It was, therefore, held that the petitioner could
not have been treated as a deputationist. Since the
petitioner's lien with the former employer had come to an end,
he could not have been repatriated to his parent organization.
It was under such circumstances that the Court directed that
the respondents shall consider the petitioner for absorption on
the post of Accountant on regular scale.
14. In case of Raja Singh and another (supra) while
reiterating that the employee even if he has spent several
years in service in the department on deputation, will not have
a right of absorption, in peculiar facts of the case, had ordered
absorption of the concerned employees in Government
service. In the concluding paragraph, the Supreme Court had
observed that the said judgment shall not be quoted as a
precedent and had been rendered in a peculiar facts and
circumstances of the case.
15. Under the circumstances, I do not find any merits in the
petition. The same is dismissed. If the petitioner had enjoyed
any interim relief pending this petition, the same shall be
vacated......"
[12] Heard Mr. Somik Deb, learned Sr. Advocate
assisted by Mr. Abir Baran, learned advocate representing
the appellant. Also Heard Mr. D.Bhattacharjee, learned GA
assisted by Mr.S.Saha, learned advocate appearing for the
state respondents who have reiterated their submissions
made before the learned Single Judge.
Perused the entire facts and circumstances of
the case.
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[13] The apex court in Kunal Nanda Versus Union of
India reported in (2000) 5 SCC 362 and also in Rati Lal
B.Soni and Ors. Vs. State of Gujarat and Ors., 1990
(Supp)SCC 243 has clearly culled out that a deputationist
cannot assert and succeed in a claim for absorption in the
department where he works on deputation unless such
claim is based on any statutory rule, regulation or order
having the force of law. Following the law laid down by the
apex court, this high court in Dilip Kumar Saha Vs.
State of Tripura and Ors., [WP(C)No.237 of 2020]
also held that a deputionist has no vested right to
absorption in the borrowing department and he can be
repatriated to his parent department at any point of time.
[14] In the case of Mrinal Kanti Ghosh(supra), this
high court refused relief to the petitioner who sought for
absorption in the borrowing department and held that the
petitioner could not cite any statutory rule which vest any
right in his favour to be absorbed in government service
while on deputation.
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[15] Therefore, there cannot be any dispute that in
absence of any statutory rule, regulation or order having
the force of law, a deputationist cannot claim to have a
vested right for absorption in the borrowing department
even though he may have put in long service as a
deputationist before his repatriation to his parent
department.
[16] The argument of Mr.Somik Deb, learned Sr.
Advocate appearing for the appellant that the appellant
cannot be treated to be a deputationist in the government
department because his posting order did not indicate that
he was sent on deputation is not acceptable in the given
facts and circumstances of the case. We find no infirmity
in the observation of the learned Single Judge that
pursuant to the decision of the State Government the
appellant and his colleagues in TSCCF came to be brought
over to government service on deputation and the
appellant never pleaded his ignorance of the order dated
02.06.2006[Annexure-6] issued by the DM and Collector,
South Tripura in which it was specified that the appellant
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was posted in the office of SDM Santirbazar on deputation
and the terms and conditions of his service were also
clearly laid down in the said order. The appellant never
contended that he ever objected to his status being
described as a deputationist in the said order. Thus the
appellant clearly understood and accepted that he was
discharging his duties in government office as a
deputationist. Therefore, there was no illegality in his
repatriation to his parent organization.
[17] Having observed thus, we find no merit in the
appeal. Accordingly the Writ Appeal stands dismissed and
the case is disposed of.
[18] Pending application(s), if any, shall also stand
disposed of.
JUDGE JUDGE
Saikat Sarma, P.S-II
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