IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4778 of 2010 1. FIRAN MISHRA S/O LATE HIRA KANT MISHRA R/O VILL MISHRAULI, P.O.SIMRI, P.S.KANSI SIMRI, DISTT-DARBHANGA Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, AGRICULTURE DEPARTMENT BIHAR, PATNA 3. THE DIRECTOR AGRICULTURE BIHAR, PATNA 4. JOINT AGRICULTURE DIRECTOR-CUM-CONTROLLER WEIGHTS AND MEASURES BIHAR, PATNA 5. THE ADMINISTRATOR, BIHAR STATE AGRICULTURE MARKETING BOARD (REP.) PATNA 6. DIRECTOR, HORTICULTURE, DIRECTORATE OF HORTICULTURE BIHAR, PATNA ----------- For the Petitioner : Mr.Devendra Kumar Sinha, Sr.Adv., Mr. Prashant Kumar, Adv. and Mr. Girish Chandra Jha, Adv. For the State : SC-22. ----------- 4 10.01.2011 There is no dispute that the petitioner was appointed on class-IV post under the Agriculture Department, State of Bihar. When the Bihar Agriculture Marketing Board was set up, some time in 1973, certain employees of the Agriculture Department were placed on deputation under the Board with lien on their original post in the Department. A letter of the Department dated 7.8.1973 addressed to the Accountant General, as contained in Annexure-1, shows that their services were placed under the Board under certain conditions which included that their services shall not stand transferred 2 permanently to the Board till the concerned employee submitted his option and till then the employee was to be governed with the terms and conditions applicable to a Government servant. Petitioner’s case is that he was also placed under deputation under the Board. Subsequently, finding the petitioner proficient in driving he was appointed as Driver in the Board. After the Board was dissolved it was decided to repatriate the services of the employees working in the Board to the Department. Accordingly a Resolution in this regard was issued by the Personnel and Administrative Reforms Department on 2.9.2008, a copy whereof is Annexure-3 to the writ application. Enclosure to the said Annexure-3 contains the name of the petitioner also and against his name in bracket the word ‘Sarkari’ has been mentioned. Thereafter, the Garden Directorate has posted the petitioner as Driver under the District Garden Officer, Vaishali, vide Annexure-4. The grievance of the petitioner is that he is not being treated as Government servant and is being treated as an employee 3 of the Board. Therefore, he is not being given the benefit of Government service as Government employee counting his service from his initial date of appointment. Counter affidavit has been filed by the Board as well as the officials of the State of Bihar. It is stated in the counter affidavit that pursuant to an office order of the Agriculture Director dated 15.6.1990, as contained in Annexure-A, the services of certain employees of the State Government were transferred to the Board on permanent basis and their lien in the State Government was cancelled. A list of employees is also enclosed with the said Annexure-A. But the list of the employees does not contain the name of the petitioner. Therefore, there is nothing on record to show that, subsequent to transfer of the petitioner on deputation to the Board pursuant to the said letter of the Department dated 7.8.1973, either the petitioner opted for his permanent absorption under the Board or by any subsequent order of the Government his services was transferred to the Board on permanent basis cancelling his lien under the State Government. The 4 counter affidavits thus do not show that the services of the petitioner was ever transferred to the Board on permanent basis. With the counter affidavits only an order has been annexed to show that the petitioner was appointed as Driver in the Board subsequently on 7.6.1974 after his deputation. By producing this document the respondents have tried to submit that a presumption arises that the services of the petitioner was permanently transferred to the Board. This Court is unable to accept the said stand of the respondents. Once the fact that the petitioner was placed on deputation under the Board with lien to his post in the Department pursuant to the said letter dated 7.8.1973 is not disputed, and no document is placed on record to show that subsequent to the same, on the basis of any option of the petitioner or by any specific order his services stood permanently transferred to the Board, the only conclusion which can be drawn is that the services of the petitioner was never transferred to the Board on permanent basis and all through he remained a Government servant on deputation in the 5 Board. Mention of the word ‘Sarkari’ in the Resolution of the Personnel and Administrative Reforms Department dated 2.9.2008, as contained in Annexure-3, also establishes the fact that the petitioner status remained as permanent employee of the State Government. In the circumstances, this Court holds that the petitioner all through remained a permanent employee of the Department and, therefore, upon his repatriation and posting by Annexure-4 he has to be treated as a regular employee of the Department entitled to all consequential benefits. The writ application is therefore allowed with the aforesaid observations and directions. Arvind/ ( J. N. Singh, J.)