IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 898 of 2007 Date of Decision:16.1.2008 Vijay Singh ...Petitioner Versus State of Haryana and another ...Respondents CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. R.K.Malik, Advocate for the petitioner Mr. Harish Rahtee, Senior Deputy Advocate General, Haryana for the respondents. -.- JASBIR SINGH, J.(ORAL) By filing this writ petition, the petitioner has laid challenge to the order dated 16.1.2007 (Annexure P-7) vide which he has been repatriated to Industrial Training Department from the Directorate of Urban Local Bodies, Haryana. It is case of the petitioner that when he was appointed as a Driver vide Annexure P-3, he was actually selected against the substantive post of Driver and was not taken on deputation with the Directorate of Urban Local Bodies, Haryana, Chandigarh. It is apparent from the record that vide Annexure P-1, two posts of the Driver were created in the aforesaid Directorate. To fill up of those posts, requisition was sent to all the Heads of Departments in the State of Haryana, wherein it was mentioned that applications be sought from the Drivers, Restorers and Daftri, with three years experience, having Heavy/Light Vehicle Driving License, who can read and write Hindi/English language for their appointment against above-said posts. Petitioner was working as Chowkidar in the Industrial Training Department. He, being eligible for the above-said post, applied for the same and out of the eligible candidates, the petitioner was selected as Driver vide C.W.P. No. 898 of 2007 -2- Annexure P-3 dated 22.11.2001. Reading of Annexure P-3, clearly indicates that the petitioner in fact was selected against the post of Driver and was not taken on deputation as is the case of the respondents. This order further indicates that the petitioner was put on probation for a period of one year. Rule 9 of The Haryana Local Bodies Department Directorate (Group C) Service Rules, 1997” reads thus:- “9.(1) Recruitment to the service shall be made- (h) in case of Driver; (i) by direct recruitment; or (ii)by transfer of deputation of an official already in the service of any State Govt. or Govt. of India;” Perusal of the aforesaid provision, clearly indicates that the recruitment to the post of Driver can be made either directly from the open market or on transfer or on deputation. Petitioner has placed reliance upon the judgment of Hon'ble Supreme Court of India in Ram Kumar Makkar vs. State of Haryana and others, 1992 (5) SLR, and argued that once after selection, petitioner was put on probation, his appointment cannot be termed as appointment on deputation rather it was substantive appointment against the post of Driver, in the department where he is working now. We feel that the arguments raised by counsel for the petitioner is justified. In para 6 in Ram Kumar Makkar's case (supra), it was observed as under:- “The main question in this appeal is whether the appellant was appointed by transfer as an Assistant in the Directorate or whether it was a mere case of deputation. We have set out hereinbefore the order of his appointment in the Directorate. The order has to be read as a whole. It says that the appellant is “appointed on transfer basis as an Assistant in the Directorate. It also says that his appointment is purely temporary and that he can be reverted to his C.W.P. No. 898 of 2007 -3- parent department as and when his services are not required. The order further says that the appellant shall be on probation for one year and that his lien in the Civil Secretariat Service will remain until he is confirmed in the Directorate. Now what do these three features read together mean? The Division Bench has laid emphasis upon the second feature, ignoring the first and the third. With respect we are unable to agree with its view. The fact that it is termed as an appointment on transfer basis coupled with the fact that his probation is commenced shows that it was a case of appointment by transfer and not one of deputation. Indeed, the order expressly contemplates his confirmation in Directorate. It is true that the order does recite that his appointment is purely temporary and he is liable to be reverted back to his parent department at any time. But this clause must be read along with other recitals in the order and if so read, it must be understood as operative during the period of his probation only. Once his probation was declared to have been satisfactorily completed and particularly after he was also promoted as Personal Assistant in the Department, and his probation commenced and declared in such post also-it appears rather odd to say that he was only on deputation in the Directorate. The correspondence between the Directorate and Secretariat referred to hereinbefore further reinforces our opinion. When the appellant expressed his desire to be absorbed as Personal Assistant in the Directorate and requested the Director to approach the Secretariat for terminating his lien, the Director agreed with his request and requested the Secretariat to terminate the appellant's lien therein so as to enable him to absorb the appellant in his service. In his letter dated 15th February, 1989, the Chief Secretary replied that his lien will be C.W.P. No. 898 of 2007 -4- terminated only when he is confirmed in the Directorate. In his letter dated 23rd February, 1989, the Director requested the Chief Secretary again to terminate the appellant's lien in the Secretariat service so as to enable his absorption in the Directorate. All this correspondence goes to show that all that was remaining to be done was a formal order of termination of his lien in the Secretariat Service and a corresponding order of confirmation in the Directorate. It is not without significance that at no stage did any one suggest that the appellant was no deputation-not even in the impugned order. It was put forward as a defence for the first time, in the writ petition. In the face of all this material, we find it difficult to agree with the respondents that the appellant was merely deputed to serve in the Directorate and his reversion back to the Secretariat is unexceptionable.” To the same effect is the ratio of the judgment of a Division Bench of this Court in Balbir Singh versus The State of Haryana and others, 1993 (3) RSJ 288. Otherwise also we feel that no loss is going to be caused to the respondents. The post of the driver in one of the departments is bound to remain vacant . If the petitioner is sent back to his parent department, one post will fall vacant in the present department and vice versa. In view of the above, the order dated 16.1.2007 (Annexure P-7) is hereby set aside and this writ petition stands allowed. (Jasbir Singh) Judge 16.1.2008 (Jaswant Singh) mk Judge