Uttarakhand High Court
SPA/533/2018 on 11 March, 2025
Author: Pankaj Purohit
Bench: Manoj Kumar Tiwari, Pankaj Purohit
Office Notes,
reports, orders or
SL. proceedings or
Date COURT'S OR JUDGES'S ORDERS
No directions and
Registrar's order
with Signatures
SPA No.533 of 2018
Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Pankaj Purohit, J.
Mr. Devendra Singh Bohra, learned Standing Counsel for
the State/appellants.
2. Mr. M.C. Pant, learned counsel for the respondent.
3. As per office report, there is delay of 91 days in preferring
this appeal. Application (CLMA/9650/2018) is filed by the
appellant seeking condonation of delay. For the reasons
indicated, we are inclined to condone the delay of 91 days. Delay
condonation application stands allowed accordingly.
4. Heard learned Counsel for the parties on the merits of
appeal and perused the record.
5. This intra-court appeal is directed against the judgment and
order dated 09.03.2018 passed by a learned Single Judge of this
Court in WPSS No.800 of 2009 (Kunwar Singh Gusain v. State).
The operative portion of the impugned judgment is reproduced
below: -
"It has come on record that similarly situated persons were transferred to Sub
Water Shed Management namely Roop Singh Rawat, R.P. Badoni, Rakesh Upreti
were promoted in the Sub Water Shed Management. They were also repatriated
alongwith the petitioner but they were permitted to discharge the duties on
promotional posts held by them in the Sub Water Shed Management, Pokhra.
The petitioner has been discriminated against. The petitioner should have
been given same treatment, which has been given to the persons mentioned
hereinabove by permitting him to discharge the duties of Junior Clerk on the basis of
letter dated 19.08.1986. It is a case of invidious discrimination. The similarly situated
persons cannot be treated differently. The action of the respondents for not permitting
the petitioner to discharge his duties as Junior Clerk and to force to do the work of
Peon is unfair labour practice and is also arbitrary.
Accordingly, the writ petition is allowed. Impugned orders are quashed and
set aside. The petitioner would be deemed to be working as Junior Clerk till his
retirement. The respondents are directed to pay and release pensionary/retiral
benefits to the petitioner by treating him Junior Clerk w.e.f. 19.08.1986 till his
retirement, within a period of ten weeks from today."
6. It is not in dispute that the respondent-writ petitioner was
appointed against a Group-D post of Peon in Forest Department
in the year 1982. He had gone on deputation to the Water Shed
Management Project (upgraded as State Department in the year
1986). While on deputation, he was promoted by the borrowing
organization, as a Junior Clerk. However, in the year 1993, he
was repatriated to his parent Department and he was asked to
serve on his substantive post of Peon. This was objected to by
respondent as he asserted that he was promoted as Junior Clerk,
while on deputation, therefore, he cannot be asked to serve as a
Peon. Respondent approached this Court by filing WPSS No.800
of 2019 which was decided in his favour by the impugned
judgment.
7. Learned Standing Counsel appearing for the State-
appellants submits that the ground, on which the writ petition
filed by respondent was allowed, is factually not correct; three
persons named in the impugned judgment i.e. Roop Singh
Rawat, R.P. Badoni and Rakesh Upreti were appointed as Class-
III employees in Forest Department and they had also gone on
deputation to Water Shed Management Project; upon their
repatriation, they also resumed duties as Class-III employees and
their status was the same before and after repatriation. Learned
Counsel for the appellants thus, submits that promotion, if any,
given to aforesaid three persons by the borrowing organization,
was not permitted to be retained by them after repatriation, and
they resumed duties in the Forest Department in the same
capacity as they were serving before going on deputation.
8. Perusal of record reveals that the submission made by
learned Standing Counsel appearing for appellants is correct.
Those three persons, referred in the impugned judgment, served
in the same capacity after repatriation, as they were serving
before going on deputation. Thus, no discrimination was made
against the respondent-writ petitioners.
9. Law is well settled that the benefit of promotion, if any, given
to a deputationist in the borrowing organization cannot be
retained by him upon repatriation to his parent organization and
he has to join duties on the same post, which he was holding
before going on deputation as held in the case of D.M. Bharati v
L.M. Sud reported as 1991 Supp (2) SCC 162.
10. Since the respondent was serving as a Group-D employee
before he had gone on deputation, therefore, he cannot now
claim a status better than what he was enjoying before his
deputation.
11. Thus, the impugned judgment passed by learned Single
Judge is unsustainable. We, accordingly, allow the appeal and
set aside the judgment dated 09.03.2018 passed by learned
Single Judge in WPSS No.800 of 2019.
12. However, the respondent would be at liberty to make a
representation to the competent authority in respect of Prayer
Clause 2, 2(A) and 2(B) made in the writ petition. The
representation, if moved, shall be decided within six months from
the date of its receipt, independently, without being influenced by
any observation made by us here-in-above.
13. Pending application, if any, stands disposed of.
(Pankaj Purohit, J (Manoj Kumar Tiwari, J.)
11.03.2025
Rdang
