CWP No.10998 of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.10998 of 1995 Date of Decision: 12.01.2010 Dr.T.R.Dhawan ...Petitioner Vs. The State of Haryana & Anr. ...Respondents CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.K.L.Arora, Advocate, with Ms.Priya Narain, Advocate, for the petitioner. Mr.Ashwani Markanday, Sr.DAG, Haryana, for respondent No.1. Mr.Narinder Hooda, Advocate, for respondents No.2 and 3. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma, J. ) This order shall dispose of CWP Nos. 10998 of 1995 and CWP No.10998 of 1995 2 11368 of 2008 both titled Dr.T.R.Dhawan Vs. The State of Haryana & Anr. For the sake of brevity facts are taken from CWP No.10998 of 1995. The petitioner by invoking the writ jurisdiction of this court seeks a writ of certiorari for quashing the impugned order, Annexure P.12 vide which the petitioner was ordered to be repatriated to his parents department, in public interest with immediate effect. Brief facts which are not in dispute are that the petitioner is a qualified MBBS doctor who was appointed as Medical Officer, HCMS-II on ad-hoc basis in October, 1979. On posts of Medical Officer being advertised, he applied and was selected by the Haryana Public Service Commission, and in pursuance to the selection he was absorbed as Medical Officer HCMS- II in August, 1980. Services of the petitioner was placed at the disposal of the Health Department of the Haryana Government. The Haryana State Electricity Board (for short the Board) invited a penal of doctors, from the Health Department of the State of Haryana, for being appointed on deputation with the Board. Vide order dated 12.11.1982 the deputation of the petitioner with the Board was consented to by the State Government. Period of deputation was fixed as one year, which was extended by the State of Haryana, from time to time on the recommendations of the Board. In pursuance to the deputation, the petitioner he was appointed as Medical Officer with the Board, on 24.11.1982 vide Annexure P.2. The CWP No.10998 of 1995 3 case of the petitioner, is that the Board being satisfied with the services rendered by him, sought to absorb him permanently in the service of the Board, and accordingly vide letter dated 10.12.1985 asked the petitioner to give his consent/acceptance for permanent absorption, in the Board so that approval of the Government could be obtained. The petitioner gave his consent to his absorption, in response to the second letter issued by the Board in this regard. The consent to absorption, given by the petitioner on 10.12.1985 reads as under:- “ Kindly refer to your letter No.Ch-139/EBG-1772 dated 11.11.85 to the address of C.E.(O&M), PTPS, with a copy to me. I take an opportunity to clarify the meaning of the term “Plus service benefit of Haryana Health Department” as mentioned in the letter under reference is for “PROTECTION OF PAY WHATSOEVER DRAWING BEFORE ABSORPTION IN THE HSEB” on permanent basis besides allowing me the Seniority which I am enjoying in the Health Department. It will kindly be appreciated that my absorption in HSEB should not be detrimental in the matter of pay protection and seniority position so as to meet the ends of justice please. I am confident, the authorities concerned will accede to my legitimate request and have a realistic approach” After the consent was given by the petitioner the Board vide its CWP No.10998 of 1995 4 letter Endst No.CH 210/BBG-1772 dated 22.12.1987 sent a request to the Government of Haryana for his absorption. Request made by the Board was accepted. Order passed by the State of Haryana in June, 1988 in response to the letter of Board reads as under:- “ Dr,Tilak Raj Dhawan was appointed on regular basis in PCMS-II with effect from 7.8.1980. He was sent on deputation with effect from 25.11.1982 to the Haryana State Electricity Board vide Haryana Government Memo No.5/30/1HB/1-81 dated 12.11.1982. Haryana Government in Health Department have decided that they have no objection to the permanent absorption of Dr.Tilak Raj Dhawan in the Haryana State Electricity Board provided his lien is terminated in the Health Department, Haryana. 3. Since Dr.Tilak Raj Dhawan has given his consent to the HSEB for his permanent absorption there, it is accordingly ordered as per Govt. decision referred to above that the lien of Dr.Tilak Raj Dhawan shall cease in HCMS-II with immediate effect and he will have no connection with this Department. The recovery of leave salary and pension contribution may please be made from Dr.Tilak Raj Dhawan for the period from 1.11.1986. 4. This issues with the concurrence of Finance Department conveyed vide their U.O.No.13/2(55)/85-5 FRI, dated 17.5.88.” CWP No.10998 of 1995 5 Finally, the petitioner was conveyed his absorption in the Board vide letter dated 11.9.1990 which reads as under:- “ The Commissioner & Secretary, Haryana Government Health Department has intimated that it has been decided for your absorption in HSEB w.e.f. 4.7.88 and from that date, your lien has been terminated. Since the case was initiated by the Board on your request, you are requested to confirm that the decision of Govt. is agreeable to you.” It seems that thereafter a request was made by the Board for absorption of the petitioner from the date of his initial appointment with the Board i.e. the year 1982, to which the State Government replied as under:- “ This is with reference to your Office Memo No.CH- 262/USG/1772 dated 1.2.91 on the above subject. 2. Please intimate as to what are the solid grounds for absorption of Dr.T.R.Dhawan from 25.11.1982 in HSEB, and whether HSEB itself is not competent to allow this benefit to the employee from this date, particularly when the Government has conveyed concurrence for his absorption in the Haryana State Electricity Board and has also terminated the lien of the Doctor in HCMS-II from 4.7.1988. In this context, your attention is also invited to the provisions made in para 12-A of the instructions dated 17.3.1987 issued by the Finance Department.” CWP No.10998 of 1995 6 It is the case of the petitioner that prior to his absorption, a resolution was also passed by the Board on 28.9.1994. The request of the Board to absorb the petitioner with the Board w.e.f. 25.11.1982 was also accepted by the State Government. Order passed by the State Government in this regard reads as under:- “2. The Government have reconsidered your request and have decided to grant no objection of the State Government for the permanent absorption of Dr.Tilak Raj Dhawan in the Haryana State Electricity Board with effect from 25.11.82 subject to the condition that in terms of Rule 10.14 of CSR Vol.I, Part-I, the Pension contribution and leave salary deposited by the HSEB shall not be refunded. 3. This issues with the concurrence of Finance Department conveyed vide their U.O.No.13/2(55)85-5 FR I dated 30.8.93.” Thus, it may be seen that the absorption of the petitioner was final, and the only dispute which remained was with respect to the pension contribution and leave salary deposited by the Board, with the State Government, while the petitioner was on deputation. In stead of contesting the illegal demand of the State Government, the Board passed the impugned order vide which petitioner was ordered to be repatriated. The impugned order reads as sunder:- “ The Board in its meeting held on 20.9.94 considered the CWP No.10998 of 1995 7 case regarding permanent absorption vis-a-vis repatriation of Dr.T.R.Dhawan, Medical Officer, who is on deputation with HSEB with effect from 25.11.82 to the State Govt. The Board noted that Dr.T.R.Dhawan gave his consent for his permanent absorption in Board's service w.e.f. 25.11.82 i.e. the date from which he had been serving on deputation with this Board vide his Memo No.CH.636/HC-III dated 26.2.86 inter alia stating that:- (i) The present pay being drawn by him be protected. (ii) For leave salary and pension contribution, the matter may kindly be taken up with Haryana Govt.” 2. The matter was accordingly taken up with the State Government which after protracted correspondence on the subject, conveyed its decision for permanent absorption of Dr.Dhawan and to terminated his lien from HCMS-II w.e.f. 4.7.1988 vide Commissioner & Secretary to Government of Haryana, Health Department Memo No.10/37/83-2-HB-1 dated 4.1.90 and Memo No.CH.10/37/83-1-HB-1 dated 30.9.90. The said decision of the state Govt. was resented by Dr.T.R.Dhawan vide his representation which was received in this office on 16.1.91 and accordingly the matter was taken up with the Commissioner and Secretary to Government Haryana Health Department vide letter No.CH.262/EBG-1772 dated 1- 2-91 and No.CH.308/EBG-1772 dated 7.1.93 to convey the CWP No.10998 of 1995 8 decision on the representation of Dr.T.R.Dhawan for his absorption w.e.f. 25.11.82 by accepting pension liability in terms of Govt. Instructions contained in letter bearing No.1/2 (77)-87-FR-II. Dated 22.8.88 as earlier requested vide this office letter No.Ch.226/EBG-1772 dated 19.4.89. 3. The State Government vide its letter No.10/37/83-2-HB- 1 dated 16.9.94 have now conveyed its decision to the absorption of Dr.Dhawan w.e.f. 25.11.82 on the condition that the State Government shall not refund the leave salary and pension contribution in terms of Rule 10.14 of CS Vol.I, Part-I. In this context, the matter has been considered by the Board in its meeting held on 20.9.94 and it is felt that the decision of the State Government not to refund leave salary and pension contribution already paid by the Board for the period from 25.11.82 to 31.10.86 is not maintainable as Rule 10.14 of CSR- I, Part-I, as referred to by the State Government, is not applicable in the instant case as Dr.T.R.Dhawan cannot be termed on foreign service if he is allowed absorption from retrospective effect viz 25.11.82. Thus the decision of the State Government for not refunding the leave salary and pension contribution already paid by the Board is not acceptable to the Board. 4. Besides, Medical Officers working in HSEB who were recruited between the period from 25.11.82 to 15.4.89 have CWP No.10998 of 1995 9 represented against the absorption of Dr.T.R.Dhawan into the service of Board w.e.f. 25.11.82 as this would adversely effect their seniority. Board felt that it would be injustice to the Medical Officers if the request of absorption of Dr.T.R.Dhawan is accepted retrospectively i.e. from 25.11.82. It would not be legally justified and would not stand judicial scrutiny if any of the Medical Officer moves the Court. Board also noted the complaints received against Dr.T.R.Dhawan with regard to his working as well as claiming false T.A. and making purchases in contravention of Board's instructions. 5. Taking overall view of the above factors, sit has been decided by the Board in its meeting held on 20.9.94 to repatriate Dr.T.R.Dhawan to the State Govt. Accordingly, Dr.T.R.Dhawan, HCMS-II is hereby repatriated to his parent Department in public interest with immediate effect. This issues in pursuance of the decision taken by the Board in it meeting held on 20.9.94.” In pursuance to the order Annexure P.12, the petitioner attended the City Dispensary. A request was made for reviewing the order of his repatriation. The request made was accepted vide letter Annexure P.18. The petitioner thereafter approached this Court and by way of interim order the petitioner was allowed to continue with the Board subject to final decision of this writ petition. CWP No.10998 of 1995 10 Mr.K.L.Arora, learned counsel for the petitioner has challenged the impugned order on the ground, that once the absorption of the petitioner was complete, by termination of his lien by the State Government he could not be ordered to be repatriated merely on account of dispute of payment of the leave salary and pension contribution. In fact this was a dispute to be decided between the Board and the State Government. The petitioner also challenged the order, being on the face of it arbitrary and therefore, hit by Article 14 of the Constitution of India. It was also contended that the petitioner could not forcibly be relieved from his duty, without getting an order from the State Government. The ground that the principles of natural justice were violated before passing the impugned order was also raised. Learned counsel for the petitioner also contended that the impugned order deserves to be set aside, in view of order Annexure P.18 passed by the State Government terming the decision of the respondent to be unfair and being in violation of the Rules. It is the case of the petitioner that the State Government has directed the Board to withdraw the order of repatriation, and for issuance of formal order of absorption. Order Annexure P.18 reads as under:- “ Kindly refer to your Endst. No.CH Spl./G.S.127 dated 28.9.94 on the subject noted above. Haryana Govt. observe that after Dr.T.R.Dhawan joined Haryana State Electricity Board on deputation from Health CWP No.10998 of 1995 11 Department on 25.11.1982, the Haryana State Elecy. Board had been insisting for the concurrence of State Govt. for his permanent absorption in the Board. Dr.Dhawan had also agreed to accept the offer of his permanent absorption in Board. As such the State Government conveyed the necessary concurrence for his permanent absorption vide this State Government Memo of even number dated 4.7.1988 and terminated his lien from the HCMS. Since the Board wanted the absorption of Dr.Dhawan w.e.f. 25.11.82 for which the approval of Sate Govt was considered necessary therefore, a reference made to the State Government, the State Government vide Memo of even number dated 16.9.94 agreed for the permanent absorption of Dr.Dhawan w.e.f. 25.11.82. Since the Board wanted permanent absorption of Dr.Dhawan in the Board, for which Dr.Dhawan had also given his consent, therefore, after the consent of the Sate Govt. having been conveyed and the lien of Dr.Dhawan terminated from HCMS. Dr.Dhawan had ceased to be an employee of the State Government and as such, Dr.Dhawan deemed absorbed permanently, in HSEB, could not be repatriated to the State Government, that too, at such a belated stage. Since your decision of repatriation of Dr.Dhawan is unfair and is not in accordance with rules, therefore, you are requested to withdraw your order of repatriation and issue the formal order of CWP No.10998 of 1995 12 absorption of Dr. Dhawan in the Haryana State Electricity Board.' The petitioner also filed another CWP No.11368 of 2008 seeking a writ of mandamus directing the respondents to consider the case of the petitioner for his promotion to the post of C.M.O. (Chief Medical Officer), and to promote him as such (upgradation recently approved by Government) by counting the service rendered by the petitioner with Haryana Government as HCMS-II from 7.8.1980 to 24.11.1982, before his to his absorption in the Board. In support of this contention learned counsel for the petitioner placed reliance on the judgment of Hon'ble Supreme Court, in the case of S.I.Rooplal and another Vs. Lt. Governor through Chief Secretary, Delhi and Ors. 2000 (1) RSJ 336, wherein Hon'ble Supreme Court has been pleased to lay down, that the service rendered by the deputationist on an equivalent post in the past department is required to be counted for his seniority in the deputed post. The operative part of judgment of Hon'ble Supreme Court reads as under:- “ ......This view of ours finds support from a judgment of this Court in the case of K.Anjaiah and others Vs. K.Chandraiah and Ors, 1988 (3) SCC 218. In that case this Court was considering a statutory regulation which in almost similar terms used in the Office Memorandum with which we are concerned, deprived the civil servants of his past service in the parent department. The Regulation involved in the said case CWP No.10998 of 1995 13 reads: “9(1) The persons drawn from other departments will carry on their service and they will be treated as on other duty for a tenure period to be specified by the Commission or until they are permanently absorbed in the Commission whichever is earlier. (2) The services of those staff members working in the Commission on deputation basis and who opted for their absorption in the Commission, shall be appointed regularly as the staff in the Commission, in the cadre to which they belong, as per the orders of Government approving their appointments batch by batch and to determine the seniority accordingly. For this purpose the Commission may review the promotions already affected.” 21. The validity of the said Regulation was challenged and the same was struck down by the Administrative Tribunal in that case and when the matter was brought up in appeal before this Court, the argument of the aggrieved persons that the offending regulation did not violate Artiles14 and 16 was repelled by this Court and it upheld the argument of the deputationist which was as follows: “xx xx that when persons from different sources are drafted to serve in a new service, their pre-existing CWP No.10998 of 1995 14 length of service in the parent department should be respected and preserved by taking the same into account in determining their ranking in the new service cadre and this has been done under Regulation 9(1) that benefit cannot be taken away for determination of the inter se seniority as per Regulation 9 (2) and therefore, the Tribunal was justified in striking down Regulation 9 (2). xxx” 22. However, in that case this Court instead of striking down the said regulation, upholding the contention that a deputationist is entitled to count his seniority when absorbed in the deputed post, observed thus: “xx xx When the Commission finally takes a decision to permanently absorb these deputationist after obtaining their option the question of their inter se seniority in the Commission crops up and Regulation 9 (2) deals with the said situation. In the case of R.S.Mokashi Vs. I.M.Menor this Court had indicated that it is a just and wholesome principle commonly applied to persons coming from different sources and drafted to serve a new service to count their pre-existing length of service for determining their ranking in the new service cadre. The said principle was reiterated by this Court in K.Madhavan case. A three-Judge Bench CWP No.10998 of 1995 15 judgment of this Court in the case of Wing Commander J.Kumar also reiterated the aforesaid well known principle in the service jurisprudence, xx xx “ 23. It is clear from the ratio laid down, in the above case that any Rule, Regulation or Executive Instruction which has the effect of taking away the service rendered by a deputationist in an equivalent cadre in the parent department while counting his seniority in the deputed post would be violative of Articles 14 and 16 of the Constitution. Hence liable to be struck down. Since the impugned Memorandum in its entirety does not take away the above right of the deputationists and by striking down the offending part of the Memorandum, as has been prayed in the writ petition, the rights of the appellants could be preserved, we agree with the prayer of the petitioners/appellants and the offending words in the Memorandum “whichever is later” are held to be violative of Articles 14 and 16 of the Constitution, hence, those words are quashed from the text of the impugned Memorandum. Consequently, the right of the petitioners/appellants to count their service from the date of their regular appointment in the post of Sub-Inspector in BSF, while computing their seniority in the cadre of Sub-Inspector (Executive) in the Delhi Police, is restored.” Mr.Narender Hooda, learned counsel appearing on behalf of CWP No.10998 of 1995 16 respondents No.2 and 3 opposed the writ petition on the plea that an employee has no right to get absorbed, in a post where he was sent on deputation. The writ petition deserves to be dismissed for want of locus standi, of the petitioner to claim absorption with the Board against its decision to repatriate the petitioner. In support of his contention learned counsel for the respondents, referred to the resolution dated 20.9.1994, vide which case of the petitioner for permanent absorption was considered, to assert that it was not a final decision, but a tentative decision only. The contention of the learned counsel for the respondent, therefore, was that it was in pursuance to the resolution dated 20.9.1994 and on consideration of objections by the other doctors, serving in the Board that it was decided to pass order Annexure P.12 declining his absorption in the Board. However, on consideration of the matter, I find no force in the contentions raised by the learned counsel for the respondents. It may be noticed that though the resolution, regarding absorption of the petitioner with the Board, is not happily worded. In pursuance thereto a decision was, in fact, taken by the Board, for his permanent absorption. The decision as conveyed to the State Government was for final absorption of the petitioner with the Board. The Board now cannot be permitted to say that the decision was only tentative. It was in pursuance to the request by the Board, that the State Government had taken, a positive decision, which was conveyed to the petitioner, of his absorption in the Board w.e.f. 4.7.1988 and his lien was CWP No.10998 of 1995 17 terminated vode letter dated 10.9.1990. Decision to absorb the petitioner was final and was conveyed to him. The only dispute was with regard to date of absorption with the Board i.e. 25.11.1982 or 4.7.1988. The matter did not rest here. as vide letter Annexure P.11 reproduced above the State Government allowed absorption of the petitioner with effect from 25.11.1982 and thereafter only dispute was non-refund of pension contribution and leave salary deposited by the Board, which was not correct in view of his absorption with the Board. The State Government was required to return it back to the Board. The respondent Board is estopped estopped from repatriating the petitioner, by interpreting its resolution, to mean that no final decision was so far taken. It is pertinent to note here, that the process of absorption was started by the Board, by seeking petitioner's consent for his absorption. The plea of the respondents that the petitioner cannot seek his absorption, against the desire of the employer is misconceived. The petitioner is seeking to enforce an order of the employer, ordering his permanent absorption in service with the consent of the State Government. The petitioner has challenged the order, vide which previous decision is sought to be reviewed, by repatriation, that too against the directions of the State Government and in violation of principles of natural justice and fair play. Mr. Narender Hooda, learned counsel for respondents No.2 and 3 referred to the judgment of Hon'ble Supreme Court in the case of Raghavendra Rao and Ors. Vs. State of Karnataka and Ors (2009) 4 CWP No.10998 of 1995 18 SCC 635, to contend that merely because the petitioner has been allowed to continue with the Board under the court order, it does not entitle him to be absorbed or made permanent with the Board. This contention of the learned counsel again is misconceived. The petitioner has been allowed to continue in service from the year 1995 in pursuance to the order passed by this court. The petitioner is not seeking his regularization or absorption, on the ground of his having rendered service with the Board, for all these years, but on the basis of decision taken by the Board and the State Government with the consent of the petitioner, for his permanent absorption. Therefore, this judgment is not relevant to the facts of this case. The lien of the petitioner was terminated by the State Government after his permanent absorption. Learned counsel for the respondents also placed reliance on the Division Bench judgment of this court in LPA No.145 of 2000 titled Satish Kumar and Anr. Vs. Ram Pal and Ors., decided on 10.12.2003 to contend, that absorption of the petitioner was bad, as the persons likely to be affected were