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PETITIONER: UMAPATI CHOUDHARY

       Vs.

RESPONDENT: STATE OF BIHAR & ANR.

DATE OF JUDGMENT:       14/05/1999

BENCH: SUJATA V.  MANOHAR, D.  P.  MOHAFATRA, R .  C .  LAHOTI.

JUDGMENT:

D.P.Mohapatras, J.

     These  two  cases  are inter-linked with  each  other. Both  the  case;,  have been filed by the same  person  Shri UmapatiCloudhary.While  Civil  Appeal  No.  336 of  1993  is directed against the Judgment and order dated 17.12.  ^91 of the  Patna High Court in C.W.J.C.  No.6054 of ’991, in  Writ Petition  (C)  No.   667 of 1992 the petitioner  has  sought quashing  of  the  orders  dated  17.3.1992,  20.3.1992  and 21.3.1992  filed as Annexures II, 12 and 13 respectively  of the writ petition which appear to

     have  been  passed on the basis of the judgment  dated 17.12.1991 in C.W.J.C.  No.  6054 of 199:.

     The  controversy  raised  in the case relates  to  the question  whether  the  appellant  ebould be  treated  as  a permanent  employee of the Bihar Sanskrit Shiksha Board (for short ’the Board’) or he was on deputation to the Board from Kameshwar  Sirigh  Darbhanga Sanskrit University (for  short ’the  University).   The  High Court having  held  that  the appellant  could not claim to be a permanent employee of the Board  and his service as Controller of Examinations of  the Board having been terminated on that basis, he has filed the two cases.

     The  factual  matrix  relevant  for  appreciating  the controversy may be stated thus :

     The  Board  was constituted under the  Bihar  Sanskrit Education  Board Act, 1981 (Act No.  31 of 1982) and it  was vested  with  the  power to direct,  supervise  and  control Sanskrit  education upto Madhyarna standard in the State  of Bihar.   The  Chairman  of the Board made a request  to  the University  to depute a competent and experienced person  to conduct and control the examinations

     conducted  by  the  Board vide his letter  No.   21/15 dated  29.7.1981.   The Registrar of the University  by  his letter  No.   8105/89  dated 14.8.1981 (Annexure- 2  to  the S.L.P.) communicated the decision of lhe University granting permission  for  the appeliant.  who was then a lecturer  in Post  Graduate department of the University to be deputed as Controller  of  Examinations  of  the  board  until  further orders.   The  Government  of  Bihar in  the  Department  of Education  by  Notification  date  17.9.1982  (Annexure-  3)

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authorised  the  appellant  to  discharge  all  duties  a.nd responsibilities  of  the Controller of Examinations of  the Board  and  made the order effective from the first  day  of deputation.   It  appears  from  the  letter  of  the  State Government to the Accountant General, Bihar dated 16th June, 1983  (Annexure-4)  that  the post  of  Assistant  Registrar (Sanskrit  Education)  which  was   created,  in  the  Bihar Sanskrit  Shiksha Parishad on being transferred to the ainar Sanskrit  Shiksha  Board was re-designated as Controller  of Examinations.   Thereafter  the quearion of confirmation  of the  appellant  on the post of Controller  Examinations  was taken  up  by  the Board and by the letter  dated  15.9.1983 {Annexure-5) the Chairmman( of the board

     wrote  to  the  State   Governiaent  recommending  his confirmation.   It  appears  from the said letter  that  the Board took the decision appreciating the efficiency and hard work  put in by the appellant as Controller of  Examinations took the decision for his confirmation.  In the letter dated 20.4.1985  (Annexure-7)  of the Registrar of the  University addressed  to  the  Chairman  of the Board  consent  of  the University  for permanent absorption of the appellant on the post  of  Controller  of  Examinations   of  the  Board  was communicated.   Thereafter,  by the Notification dated  10th November,  1986  (Annexure-8)  issued by the  Department  of Education  of  the  Government of Sihar  the  appellant  was appointed  as Controller of Examinations under the Board  on the  pay  scale of Rs.lOOO-1820/- from the date of issue  of the Notification till further orders.

     Some  employees  of  the   University  challenged  the deputation of the appellant as Controiler of Examinations of the  Board  before the Patna High Court in a writ  petition, C.W.J.G.   No .2 230 of 1982 which was disposed of bv Single Judge  of the Court by the judgment, dated 13.11.1987.   The operative portion of the said judgment raads as follows:

     "10.   Respondent  no.3  has been  given  a  temporary appointment  and  not  a substantive  appointment.   Service conditions for the post of the Controller of Examination are yet  to  be provided for.  The respondent -State Govt.   and the  Board  are  duty bound to decide finally  whether  they shall  have  a Controller of Examination or not and If  they decide  to  have  one they must have a procedure to  m&ke  a substantive appointment.  Since the office of the Controller of  Examination  is  not  yet permanently  filled  is  by  a qualified  person  in  my  view, ends of  justice  shall  be satisfied  by giving a direction to the State Government  to proceed  forthwith  to decide ’.-he mode of appointment  and service conditions of the posts of Controller of Examination and  make  substantive  appointment in the &aid  post.   The State  Government  will complete the  necessary  formalities within  six months from today.  If such formalities a.re not completed within six months and the temporary appointment of the  respondent  No.3 is continued any further it  shall  be open  to  the pet ir.  loners to Question the  validity  and genuineness,  of  the  appoinment   by  notification   dated 10.1.1387.

     11.   In  the result, with the directions made  above, this application.  is dismissed.  There shall be no order as to costs.  "

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     This  judgment  is under challenge in Civil Appeal  No .336 of 1993.

     In  pursuance  of the aforementioned judgment  of  the High  Court  the Secretary of the coard by the  order  dated 17.3.1992 (Annexure-ll of the Writ

     Petition)  communicated to the appellant the order  of the  Chairman terminating his service with immediate  effect in anticipation of approval of the Government.  The relevant portion of the communication reads as under :

     "In  pursuance of the Judgment dated 17.12.1991 passed by the Hon’ble High.  Court in C.W.J.C.  No.  6054/91 on the above  subject  and  under the order of the  Chairman  Bihar Sanskrit  Education Board your services are terminated  with immediate  effect  in  anticipation of the approval  of  the Government."

     The  decision of the Board to terminate the service of the  appellant  was  approved by the State  Government  vide Notification  dated  21.3.1992 Annexures 14 & 15) issued  by Commissioner-cum-  Secretary,  Human  Resources  Development Department,  Bihar.  These orders are under challenge in the writ  petition.   Therein  by order passed on  27.1.1993  in I.A.No.l  of  1992 this Court while issuing  notice  ordered that  in  the meantime operation of the impugned  orders  in Annexure-ll  dated  17.3.199S (Annexure-14) dated  21.3.1992 shall  remain stayed.  This Court further directed that  the petitioner be reinstated as Controller of Enamination and be paid  his arrears of salary upto date within two months from the date of the order,

     by  the Board.  The learned counsel appearing for  the petitioner/appellant submitted that in pursuance of the said order  the  petitioner/appeilant  continued on the  post  of Controller of Examinations of the Board and retired from the said post sometime in 1996.

     From  the  contents of the documents discussed in  the preceding paragraphs the position that emerges is that since 1981  the  appellant was holding the post of  Controller  of Examinations  of  the  Board.  Initially he was  brought  on deputation  from  the University and thereafter taking  into account  his  efficiency and sincerity in the job the  Board sought  permission  of the university for  regularising  his service  on  that  post and sent its recommendation  to  the State  Government.  The University also had communicated its consent  (no  objection)  for permanent  absorption  of  the appellant  on the post of Controller of Examinations of tlie Board.   Thereafter  the appointment to the post was  to  be made  by the Board and the Board had d.ecided t.o regularise the service of the appellant in the said post.  However, the Board  sought  permission of the State Government which  was also

     accorded.

     Deputatoion  can be aptly described as an  assignment’ of  an employee ( commonly referred to as the deputationist) of one department or cadrs or even an organisation (commonlv 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

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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  the case at hand  all  the  three conditions  were  fulfilled.   The  University,  the  parent department  or  lending authority, the Board, the  borrowing authority and the appellant the deputationist, had all given their  consent  for deputation of the appellant and for  his permanent  absorption in the establishment of the  borrowing authority.  There is no material to show that the deputation of the

     appellant  was  not.  in public interest or it  --.’as vitiated  by  favoritism or mala fide.  The  learned  single Judge  in the previous writ petition had neither quashed the deputation   order   nor  issued   any  direction  for   its termination.   Indeed the learned single Judge had dismissed the writ petition.  No material has been placed before us to show  that  between November 1987 when the judgment  of  the single  Judge  was  rendered  and  December  1991  when  the Division  Bench  disposed of the writ petition filed by  the appellant  the  petitioners of the previous case had  raised any grievance or made any complaint regarding non-compliance of the directions made in the judgment of the learned single Judge.   In  these  circumstances  the  Division  Bench  was clearly  in  error  in  declinig  to  grant  relief  to  the appellant.   Further,  the appellant has, in  the  meantime, retired  from  service, and therefore, the decision  in  the case  is  relevant only for the purpose of  calculating  his retiral benefits.

     On  consideration  of the entire matter we are of  the view that the High Court was in error in dismissing the writ petition filed by the appellant

     Accordingly  the  appeal  is  allowed.   The  impugned judgment  dated  17.12.1931 in C.W.J.C.  No.6054 of 1991  is set  a.side.  Conseqientially, the writ petition No .667  of 1992  is  allowed and the orders dated 17.3.1992,  20.3.1992 and  21.3.1992 which are based on the judgment in  C..W.J.C. No.   6054  of  1991 are quashed.  The  appellant  shall  be treated  to be a permanet employee of the Board on the  date of   his  retirement  from  the   post  of   Controller   of Examiliacions   and  his  retirement   benefits   shall   be calculated  on that basis.  There will, however, be no order as to costs.