HIGH COURT OF CHHATTISGARH.BILASPUR D.B. Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. Writ Appeal No. 313 of 2007 State of Chhattisgarh and others Vs. Dr. Rajendra Prasad Shukla JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge Hpn'ble Shri Justice Raieev Gupta Sd/- Chief Justice C^P Post for Judgment :^/07/2008 Sd/- Sunil Kumar Sinha Judge ({^ HIGH COURT OF CHHATTISGARH. BILASPUR D.B. Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. WRIT APPEAL N0.313 OF 2007 APPELLANTS State of Chhattisgarh, through the Secretary, Government of Chhattisgarh, Tribal Welfare Department, D.K.S. Bhawan, Mantralaya, Raipur (C.G). The Secretary, Government of Chhattisgarh, Panchayat & Rural Development Department, D.K.S. Bhawan, Mantralaya, Raipur (C.G). The Collector, District Jashpur, Chhattisgarh Vs, Dr. Rajendra Prasad Shukla, Aged about 41 years, s/o Late Shri Ramprati Shukla, Chief Executive Officer, Janpad Panchayat, Pathalgaon, Distt. Jashpur (C.G). Presently R/o Village Dhakhara, Post Deogaon, Tahsil Raipur Karkarchuliyan, District Rewa WRIT APPEAL UNDER SECTION 2(1) OF THE CHHATTISGARH APPEAL TO DIVISION BENCH ACT,2006 RESPONDENT Appearance: Shri Yashwant Singh Thakur, Deputy Advocate general for the State/Appellants. Shri Rakesh Pandey, counsel for the respondent. WritADpealNo.313/2007 ^v JUDGMENT ^.07.2008) Following judgment of the Court was delivered by Sunil Kumar Sinha, J, (1) The State has filed this appeal being aggrieved with the order dated 20th ofApril, 2007 passed by the learned single Judge in W.P.(S). No.6477/2006. (2) The facts briefly stated are as under: As per the pleadings in the writ petition, the respondent was appointed on the post of Veterinary Assistant Surgeon in the Animal Husbandry Department on 25.8.1988 through the Public Service Commission in the erst-while State of Madhya Pradesh. His services were confirmed on the said post vide order dated 14.9.1992. The respondent pleaded that in the year 1996, he was selected to the post of Chief Executive Officer in the Panchayat and Rural Development Department and a posting order dated 29.6.1996 (Annexure P-3) was issued in his favour. Later on, he was posted in the Tribal Development Department, Jashpur at Block Pathalgaon and during his such tenure a decision was taken by the Government of Madhya Pradesh on 12.12.1998 that the Chief Executive Officers, who are posted in Tribal Development Department, shall maintain the lien of those selected Chief Executive Officers in the same department. He had also filed a hand written document (Annexure P-4) dated 12.12.1998 saying it to be the decision of the Cabinet of the erst-while State of Madhya Pradesh. After .some time, while working on the said post, the respondent was suspended vide order dated 20.9.2005 on account of alleged irregularities committed by him. By the impugned order dated WritADpealNo.313/2007 1'it 27.9.2006 (Annexure P-1), the Government passed an order of revocation of suspension and reinstatement of the respondent and his services were returned to the Panchayat and Rural Development Department. It is at this stage, the respondent filed Writ Petition(8) No.6477/2006 and claimed for the following reliefs: 7,1 The Hon'ble Court may kindly be pleased to issue an appropriate wriVorder/direction in the nature of mandamus thereby commanding the respondents to give the posting order with work and regular salary to the petitioner along with back wages with interest at the rate of 24% per annum as the suspension order is revoked by the respondents, in the ends ofjustice. 7.2 The Hon'ble Court may kindly be pleased to set aside the second portion of the order P-1 whereby the petitioner is sent back from Tribal Development Department to Panchayat and Rural Development Department on the ground his services is not required to Tribal Development Department being illegal and unreasonable, in the ends ofjustice. 7.3 Any other relief, which this Hon'ble Court deems fit and proper, be passed in favour of the petitioner. 7.4 Costofthepetition." (3) In this writ petition, the appellants filed their return on 16.3.2007 and, amongst others, made averments as under: "That the petitioner was appointed as Assistant Surgeon in the Veterinary Department in the then State of Madhya Pradesh on 14.9.1992. That the petitioner was sent on deputation, vide Madhya Pradesh Government Order dated 29.6.1996, as Chief Executive Officer, Janpad Panchayat, Malkharoda. At present, he was working as Chief Executive Officer, Janpad Panchayat, Patthalgaon in Tribal Block. By the impugned order, the deputation of petitioner was revoked and he was sent back to his parent department i.e., Panchayat and Rural Development Department. Hence, the petition of petitioner is without any ground and deserves to be dismissed." (4) In view of the said return, the respondent filed his rejoinder on 20.03.2007. It was a short rejoinder which reads as under: WritADpealNo.313/2007 [\^ "The petitioner has impleaded the two departments of the State i.e., Tribal welfare department and Panchayat and Rural Development Department for resolving the dispute that the petitioner has lien in either of which department. The respondents, in counter affidavit, have stated that the parent department of the petitioner is Panchayat and Rural Development Department. In view of the statement made by the State the dispute is resolved. The Hon'ble Court may kindly direct the respondent no.2 to give posting and work assignment in Panchayat and Rural Development Department with regular salary and back wages to the petitioner." (5) This writ petition came up for hearing before the learned single Judge on 20th of April 2007. On that date, the counsel for respondent, in view of the statement made in the return, submitted that so far as relief 7.2 is concerned, he is satisfied and nothing survives. With regard to the relief 7.1, the State Counsel submittedthat since the respondent was sent back to parent department i.e., Panchayat and Rural Development Department, there is no difficulty in giving him the posting order and the payments of arrears of his salary. On this, the Court hetd that this second prayer also does not survive and in view of the above, the appellants were directed to pass an appropriate posting order with payment of salary, which has not been paid to the respondent, and the writ petition was accordingly disposed of by the learned single Judge. (6) Learned counsel for the appellants submitted that the parent department of the respondent is Veterinary Department, which is later renamed as Animal Husbandry Department. By order dated 29.6.1996 the respondent was sent on deputation to Panchayat and Rural Development Department and was posted as Chief Executive Officer, Janpad Panchayat, Malkharoda. Thereafter, he was transferred as WritADpealNo.313/2007 T^) Chief Executive Officer, Janpad Panchayat, Jashpur and again by an order dated 10.7.1998 the respondent was transferred as Chief Executive Officer, Patthalgaon. The respondent was then suspended vide order dated 20.9.2005 and after revocation of his suspension, his services were sent back to Panchayat and Rural Development Department by the impugned order dated 27.9.2006 and it was also directed that about the suspension period, a decision shall be taken at the final stage of the Departmental Enquiry. He further submitted that by mistake, the state in its return mentioned the Panchayat and Rural Development Department as the parent department of the respondent whereas, the parent department of the respondent was the veterinary department and counselfor the State, appearing before the learned single Judge, also argued the matter holding the Panchayat and Rurat Development department to be the parent department of the respondent. He argued that even while filing the rejoinder the respondent did not disclose this fact and has malafidely accepted the return of the State on this point, whereas, the claim of the respondent was just opposite in the writ petition, wherein, he himself had pleaded that he was appointed in the veterinary department and by a cabinet decision of the erstwhile State of M.P., he had a lien in the Tribal Development Department and on these grounds, the impugned order was bad in law. Learned counsel further added that after return of the services of the respondent to the Panchayat and Rural Development Department, now he has been repatriated to his parent department i.e., Animal Husbandry Department vide order dated 02.1.2007 which has been filed as Annexure A-12 along with the synopsis in the writ appeal. He submitted that on account of an incorrect admission or a wrong iiSKSEat. aiaa saairs WritATOealNo.313/2007 @'. averment made or a wrong word used in the pleadings, the complexion of the true facts in relation to the rights and liabilities of the respondent vis-a-vis the state would not be changed. He submitted that for all this, a review petition was filed before the learned single Judge, but the same was dismissed. Therefore, he prayed for setting aside the order passed by the learned single Judge. (7) On the other hand, learned counsel for the respondent opposed these arguments and supported the order passed by the learned single Judge. (8) We have heard learned counsel for the parties at length and have also perused the records of the writ petition, review petition and connected M.C.C.No.778/2007. (9) Admittedly, the respondent was appointed on the post of Assistant Veterinary Surgeon on 25.8.1988 and his semces were confirmed on the said post vide order dated 14.9.1992 which is clear from Annexure P-2 and the pleadings ofthe respondent vide para 5.2 of the writ petition. The respondent claimed that thereafter some vacancies were notified for filling up the post of C.E.Os, in the erstwhile State of M.P. in the year 1996 and the respondent appeared in the examination and was selected to the post of C.E.O. in the Panchayat and Rural Development department. He claimed that after such selection, a posting order dated 29.6.1996 (Annexure P-3) was issued. But a perusal of Annexure P-3 would show that, in fact, it was a deputation order of the respondent in the Panchayat and Rural Development Deptt., which is clear from the caption of the order itself. Therefore, the contention of the respondent that his posting in the WritADpealNo.313/2007 5^; J Panchayat and Rural Development Department was on fresh selection basis and the nature of posting was other than deputation; cannot be accepted. This contention ofthe respondent is totally misconceived on the face of the contents of the deputation orderdated 29.6.1996 (Annexure P-3) relied on by the respondent himself. By the said order, the respondent was posted as the Chief Executive Officer, Janpad Panchayat, Malkharoda and thereafter he was transferred on 14.2.1997 from Malkharoda to Jashpur which was a tribal area situated in the District of Raigarh and further by an order dated 10.7.1998 passed by Collector, Raigarh, he was transferred and posted as the Chief Executive Officer, Patthalgaon within the same district. Since these were the tribal areas, they were under the Executive control of the Tribal Development Department, hence the authorities of the Tribal Development Department, while reinstating the respondent after revoking the suspension dated 20.9.2005, returned back the services of the respondent to the Panchayat and Rural Development Department by the impugned order dated 27.9.2006. It would be clear from the contents of Para-2 of the impugned order that the words like "parent departmenf have not been used by the concerned authority of the State while passing the order and the authority has simply used the words like returning back the services of the respondent to the Panchayat Department, Raipur. If the impugned order would have been passed to repatriate the respondent to the Panchayat Department holding that the Panchayat Department was the parent department of the respondent, the authorities would have used the words like "parent department" for the Panchayat and Rural Development Department ^^"^^ /'^... ^,^ %- WritADpealNo.313/2007 ® which they have not used. More over, such instances would make no difference to the factual aspects appearing in a case. (10) In the realm of a service law, the expression like "selection", "appointment", "Posting", "transfer", "deputation" as also "repatriation" and many more such words have their own importance as they denote the incidence of service which are subject to control by the statutory provisions made for the same. If the respondent was in fact a fresh recruittee or a newly selected candidate on the post of Chief Executive Officer, it would have been mentioned in the posting order of the respondent, which has been filed by him. As stated above, the order on which the respondent is relying clearly shows that he was sent on deputation to the Panchayat Department. Therefore, the contention of the respondent that his parent department, on the basis of the order dated 29.6.1998, would be Panchayat and Rural Development Department is factually incorrect and a wrong averment was made in the return of the State by using the words like "parent department" for the Panchayat and Rural Development department, due to which, the learned Single Judge passed the impugned order. (11) So far as the averments of the respondent in relation to acquisition of lien in the Tribal department by virtue of cabinet decision of the Government of M.P., and challenge to the impugned order on the ground of jurisdiction of the Tribal Development Department to return his services to the Panchayat Department is concerned, the same has no force because no orders in this regard were ever issued in favour of the respondent. The respondent has filed a hand written document (Annexure P-4) which, if relied on, appears to be a copy of decision on © WritADpealNo.313/2007 Agenda No.5. What was that Agenda ? What was the nature and background of the Agenda ? Whether the decision, if any, taken like above, was binding over the Government ? and whether in lieu of such decision, the Government has taken any step ?, this all has not been brought on record by the respondent. In absence of any statutory provision in this regard and further in absence of any order of the Government, particularly issued for the same, and the specific order like an order of absorption in favour of the respondent, this can hardly be a ground to make a claim bythe respondent that he has acquired a lien in the Trible Development Department of the State on such decision. Therefore, the contention raised by the respondent in this regard is baseless and unfounded. (12) On the foregoing discussions, it is apparent that the parent department of the respondent was the veterinary department, now the Animal Husbandry Department and the respondent was sent on deputation to the Panchayat and Rural Development Department. While working in the said department, he was posted at Jashpur and by order of the Collector, Raigarh, he was also posted at Patthalgaon, Distt. Raigarh, which were the tribal areas and were under the Executive Control of the Tribal Development Department. He was suspended on 20.9.2005 and after revocation of his suspension, his services were returned to Panchayat and Rural Development Dept., by the second part of the impugned order dated 27.9.2006, because, he was sent to tribal area while he was working in Panchayat and Rural Development Depari:ment and this incidence of sending the respondent to Panchayat & Rural Development Dept. was not a repatriation because his 10 Writ Apneal No.313/2007 ^S) repatriation would always be in the parent department and not in the department where he was sent on deputation and in view of this, factually there appears to be no illegality committed by the concerned authority while passing the impugned order dated 27.9.2006 filed as Annexure P-1 in the writ petition. (13) So far as passing the impugned order by the learned single Judge on the basis of admissions made and the misconceived concessions given by the State is concerned, we would like to refer to the decision of the Constitution Bench of the Apex Court rendered in the matter of Sanieev Coke Manufacturina Companv Vs. M/s Bharat Cokina Coal Limited and another (1983) 1 SCC 147. wherein it was observed that the Courts are not to act on the basis of concession but with reference to the applicable provisions. (14) Further in the matter of Untron flndia) Ltd V. Shammi Bhan and another (1998 (6) SCC 538) the Apex Court held that a case decided on the basis of wrong concession of a counsel has no precedent value. That apart, the applicability of the statute or otherwise to a given situation or the question of statutory liability of a person/institution under any provision of law would invariably depend upon the scope and meaning of the provisions concerned and has got to be adjudged not on any concession made. Any such concessions would have no acceptability or relevance while determining rights and liabilities incurred or acquired in view of the axiomatic principle, without exception, that there can be no estoppel against statute. (15) Referring to these two decisions, the Apex Court further held in the matter of Union of India and others -Vs- Mohanlal Likumlal 11 WritADpealNo.313/2007 (\^ /• Puniabi and others, 2004 AIR SCW •y'753 that a wrong concession made by the parties cannot bind the parties when statutory provisions clearly provide otherwise." Therefore, if the correct position of fact and law would have been brought to the notice of learned Single Judge, the single Judge would not have passed the impugned order, which he has passed on the basis of concession/admission of wrong facts by the State. (16) In this regard, Shri Rakesh Pandey, learned counsel for the respondent has relied on a decision of the Apex Court rendered in the matter of Saniav K. Sinha-11 and others -vs- State of Bihar and others. (2004) 10 SCC 734 (Para 15) in which, the Apex Court held "that when a senior officer of the Government is filing affidavit based on Government record, Government cannot repudiate in Court the contents of the affidavit." Reliance of learned counsel for the respondent on this decision is misconceived, because, as mentioned in Para 15, the officer had filed the affidavit on the basis of record of the Government which fact was so stated in the affidavit at various places and secondly the State Government has reiterated the same view in the counter-affidavit filed in response to the SLP in the Supreme Court and inspite of all these facts, an adverse contention was advanced. In the present case, as contended by learned Deputy Advocate General appearing for the appellants, the affidavit is contrary to the records available with the Government and the concerned officer, filing the counter-affidavit, appears to have inadvertently and innocently used the words like "parent departmenf for the Panchayat and Rural Development Department either without knowing or without correctly understanding the concept of such word in the realm of service law. ^ 12 WritAppealNo.313/2007 @ Therefore, this argument advanced by learned counsel for the respondent cannot be accepted. (17) For the foregoing discussions, we are of the considered opinion that the impugned order passed by the learned single judge deserves to be set aside. Accordingly, the writ appeal is allowed and the order passed by the learned single Judge on 20.4.2007 is hereby set aside. No order as to cost. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge Rao