IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8191 of 2010 1. MADHAV MALLIK, S/O LATE DIGAMBER MALLIK, R/O VILLAGE- RAMPUR, P.S.-MADHAWAPUR,DISTRICT-MADHUBANI. Versus 1. THE STATE OF BIHAR. 2. THE DISTRICT MAGISTRATE, NALANDA AT BIHARSHARIF. 3. THE ADDITIONAL DISTRICT MAGISTRATE, (ESTABLISHMENT), NALANDA AT BIHARSHARIF. 4. THE TREASURY OFFICER,TREASURY OF NALANDA AT BIHARSHARIF. For the Petitioner: Mr. Ajey Kumar, Adv. For the State: Mr. Rajesh Kr. Sinha, Adv, A.C. to G.P. 20. ----------- 3/ 16/08/2010 Heard learned counsel for the petitioner and learned counsel for the State The petitioner is an employee of the Bihar State Pharmaceuticals and Chemical Development Corporation Limited. It is one of the several corporations found to be financially unviable. The Government by order dated 24.8.1996 then consciously framed a scheme for absorption of persons like the petitioner in the treasury by the very same order. The petitioner was deputed to the Nalanda Treasury. He was sought to be repatriated to his parent department by an order dated 12.9.2002 which he questioned in C.W.J.C. No.3150/03 stated to be still pending before this Court. The petitioner claims to have continued in the Nalanda Treasury on deputation even thereafter. It is his further case that this order of repatriation was never enforced and the District Magistrate has continued to exercise disciplinary powers - 2 - over him including that of suspension. It is next submitted that the corporation is under liquidation and winding up proceedings are pending. He may not even be able to receive his salary even if he is forced to go back to the corporation in terms of the orders dated 3.4.2010 as presently impugned. Learned counsel for the State submits that under the scheme for deputation dated 24.8.1996, pending absorption it provided that till permanent absorption the work performance of the incumbent shall be reviewed annually to decide whether the deputation should be continued. The petitioner involved himself in a criminal prosecution leading to the institution of a vigilance case for alleged demands of illegal gratification. He was taken into custody. Because of all this he was repatriated by order dated 12.9.2002. Learned counsel for the State is not in a position to deny that notwithstanding an order for repatriation dated 12.9.2002 the petitioner continues to work at the Nalanda Treasury and that order has still not been given effect to. It is next submitted that certain administrative difficulties have arisen because of the petitioner’s behaviour at the Nalanda Treasury and because of which it may not be feasible to continue him at that place. Though there is no such statement in the counter - 3 - affidavit, these are administrative issues to be decided by the administrator himself. Any order of transfer in the interest of the administration does not simpliciter tantamount to a punishment. Learned counsel for the State has very fairly acknowledged that the corporation is under liquidation. This Court is therefore not persuaded to simpliciter relegate the petitioner to his parent corporation where he may not even receive his salary. There was no compulsion on the State Government to formulate a policy dated 24.8.1996. The petitioner having continued since that date under the services of the State Government, this Court is not satisfied that the writ petition merits no consideration in view of order dated 12.9.2002 as matters stand today. The impugned orders dated 3.4.2010 which seek to repatriate him to the corporation at this stage are therefore not sustainable. If the corporation is revived, entirely different considerations may arise on the issue of repatriation and which do not concern the Court at present. If the petitioner continues to be on deputation under the services of the State Government pending an absorption, it remains the discretion of the employer as to where it proposes to post an incumbent and utilize his - 4 - services. Learned counsel for the State submits on instructions that the petitioner should report to the Finance Department of the State Secretariat when he shall be given a suitable posting. If the petitioner presents himself before the Finance Secretary within a maximum period of three weeks from today, it is expected that appropriate posting orders shall be issued to him to be complied with by him forthwith. If the petitioner does not present himself before the Finance Secretary within the time specified the orders dated 3.4.2010 shall merit no interference and the writ petition shall stand dismissed. The impugned orders dated 3.4.2010 are conditionally quashed with the consequential directions contained above. The writ application stands allowed. KC ( Navin Sinha, J.)