IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1415 of 2009 PREM CHANDRA OJHA S/O LATE JAI NARAYAN OJHA R/O 143, ANANDPURI, P.S.- SHRIKRISHNAPURI, DISTT.- PATNA. … Appellant(Petitioner) Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY DEPARTMENT OF CO-OPERATIVE, GOVT. OF BIHAR, NEW SECRETARIAT, PATNA 2. THE SECRETARY DEPARTMENT OF CO-OPERATIVE, GOVT. OF BIHAR, NEW SECRETARIAT, PATNA 3. THE DIRECTOR DEPARTMENT OF CO-OPERATIVE, GOVT. OF BIHAR, NEW SECRETARIAT, PATNA 4. BIHAR STATE WAREHOUSING CORPORATION THROUGH ITS MANAGING DIRECTOR B-2, MAURYA LOK COMPLEX, P.S.- KOTWALI, DISTT.- PATNA 5. THE MANAGING DIRECTOR BIHAR STATE WAREHOUSING CORPORATION, B-2, MAURYA LOK COMPLEX, P.S.- KOTWALI, DISTT.- PATNA 6. THE CHAIRMAN BIHAR STATE WAREHOUSING CORPORATION, B-2, MAURYA LOK COMPLEX, P.S.- KOTWALI, DISTT.- PATNA. … Respondents/Respondents ------- For the appellant : In person ----------- PRESENT: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (08.04.2010) As per Mihir Kumar Jha, J. Heard Mr. Prem Chandra Ojha, appellant-writ petitioner in person as well as counsel for the respondents. 2. In this intra-court appeal, the appellant-writ petitioner has assailed the order of learned single Judge dated 6.10.2009 passed in CWJC No. 8058 of 2009 whereby and whereunder his prayer for quashing the order 2 dated 23.6.2009 passed by the Managing Director of Bihar State Warehousing Corporation (hereinafter referred to as “the Warehousing Corporation”) as with regard to repatriation of his services to Bihar State Pharmaceutical and Chemical Development Corporation (hereinafter referred to as “the Pharmaceutical Corporation”) has been rejected. 3. The appellant in person has tried to project before us that the learned single Judge has committed an error in treating the appellant on deputation in Warehousing Corporation inasmuch as the business and functioning of Pharmaceutical Corporation has already been closed down and therefore even though he had initially been deputed from Pharmaceutical Corporation to Warehousing Corporation but then on account of subsequent development of closing down Pharmaceutical Corporation he will be deemed to have been absorbed in the Warehousing Corporation where the age of superannuation is 60 years and as such the appellant was entitled to continue in service till 30.6.2011. 4. In order to appreciate the aforementioned submission only few facts are to be noticed. It is an admitted fact that the appellant-writ petitioner was appointed in the year 1978 in the Pharmaceutical Corporation and was deputed under the orders of Pharmaceutical Corporation dated 12.10.2001 to the Warehousing Corporation where he 3 had submitted his joining on such deputed post in the Warehousing Corporation on 26.11.2002. It is on record that the services of appellant- writ petitioner were never absorbed by the Warehousing Corporation and he had continued only on the basis of periodical extension of the period of deputation. 5. The appellant-writ petitioner however claims that while he was continuing in deputation the Board of Directors of the Warehousing Corporation in its meeting held on 30.12.2008 had taken a decision to absorb all the deputationists continuing in the corporation and on that basis he became entitled for being absorbed in service of the Warehousing Corporation. 6. We have carefully looked into alleged resolution dated 30.1.2008 which is Annexure-1 to the writ petitioner and in our considered opinion, there was no such blanket decision inasmuch as the English rendering of the relevant portion of the decision of Board of Directions of the Warehousing Corporation dated 30.1.2008 would read as follows:- “Agenda Item No. 5; Consideration on the issue of Service conditions of the deputed employees from external Sources Decision:- the matter was considered and it was decided that in future deputation should be for a fixed period of three years. After completion of a period of three years such deputation could be extended for a further period of two years on the basis of the necessity of the Corporation and efficiency of the 4 employee. Upon completion of a period of five years of deputation, the deputed employee may be formally absorbed in the Corporation after assessing the need of the Corporation and the efficiency of the employee. For the present, the deputed employee as per need of the Corporation and the efficiency of the deputed employees may be absorbed by June 2008 or steps be taken for returning their services to the parent employer”. 7. Thus, on a reading of the aforementioned decision of the Corporation dated 30.1.2008 it cannot be held that the Corporation had taken any blanket decision for absorption of each and every deputed employee and at least on that basis the appellant-writ petitioner cannot claim of his being automatically absorbed in the services of the Warehousing Corporation. There is no denial to this fact that even in terms of the said decision of the Warehousing Corporation dated 30.1.2008 no formal order absorbing the services of the appellant-writ petitioner passed and/or issued by the authorities of the Warehousing Corporation. On the other hand, a communication dated 18.12.2008 of the Pharmaceutical Corporation would go to show that a no objection was sent to the Warehousing Corporation that the Pharmaceutical Corporation will have no objection if the services of the appellant-writ petitioner was absorbed in the Bihar State Gland Tiles and Ciramix Industry, Dumarao. This Court is not called upon to decide the question as to whether the consideration of the case of the appellant-writ petitioner for absorption in the Bihar Gland Tiles and Ciramix Industry, 5 Dumarao by itself could have give any right to the appellant-writ petitioner for being absorbed in the Warehousing Corporation and in fact the resolution of meeting of the Board of Director dated 5.9.2008 and 30.12.2008 being Annexure 3 and 4 to the writ petition are by themselves evidence to the fact that the Warehousing Corporation had not taken a decision for absorption of the appellant-writ petitioner in the Warehousing Corporation. 8. In that view of the matter, the impugned decision taken on 23.6.2009 repatriating the services of the appellant-writ petitioner to his parent employer, the Pharmaceutical Corporation on the ground that the appellant-writ petitioner was going to complete the age of superannuation of 58 years as fixed in the Pharmaceutical Corporation cannot be faulted on any score either on fact or in law. 9. There is no denial to the fact that the appellant-writ petitioner continued only on deputation in the Warehousing Corporation from 28.1.2002 till the date of passing of the impugned order dated 23.6.2009 and in that view of the matter when any or every post retiral benefit was to be paid by the parent employer, such decision of Warehousing Corporation to return the services of the appellant-writ petitioner to Pharmaceutical Corporation cannot be held to be bad. In service jurisprudence, the right of deputionists is absolutely limited and he cannot claim absorption by the foreign employer at the deputed place as 6 a matter of right. Such absorption can only be made if both the parent employer as also the employer at the deputed place reach to an agreement to this effect and the employee in pursuant to such decision resiles/abandons his severe ties with his parent employer and gets absorbed at the deputed place under the formal order of such absorption issued by foreign employer. 10. It is in this background we have also looked into the stand of the Warehousing Corporation in its counter-affidavit as reiterated before us by counsel for respondents. The submission of learned counsel for Warehousing Corporation in effect is correct that right from inception the Warehousing Corporation had always made it clear to the Pharmaceutical Corporation that the appellant-writ petitioner would continue only on deputation. 11. We are also not impressed with the plea of discrimination raised by appellant-writ petitioner as with regard to the consideration of the case of absorption of Nirmal Vatsyayan inasmuch as it was/is open for the Warehousing Corporation to take its decision for absorption as per its requirement and at least the resolution of Board of Director dated 5.9.2008 showing active consideration of the case of the petitioner and Nirmal Vatsyayan for absorption in the Warehousing Corporation by itself cannot create any right in the appellant-writ petitioner specially when no formal decision on the absorption of services of appellant-writ 7 petitioner was ever taken. It is for this reason we would not like to go into as to whether the decision taken in Agenda Item No. 8 in the meeting of Board of Directors proposing to consider the case of the appellant-writ petitioner for absorption in the Warehousing Corporation along with other persons namely Sri Nirmal Vatsyayan was a final decision or the same was subsequently amended in the meeting of the Board of Directors held on 4.3.2009 vide Annexure- E to the counter affidavit showing a decision in this respect, inasmuch as no formal order for absorption even in terms of resolution of Board of Directors of Warehousing Corporation dated 5.9.2008 was issued in favour of the appellant-writ petitioner. 12. A conclusive decision can only be such which is formally communicated by the employer and deliberations made in the files or decision taken in the meeting by itself cannot be treated to have acquired finality as was held way back by the Apex Court in the case of Bachhitar Singh vs. State of Punjab; reported in AIR 1963 SC 395. Admittedly, no formal decision was ever taken in the case of the appellant-writ petitioner for his absorption in the Warehousing Corporation and therefore we would readily agree with the reasonings and findings recorded by learned single Judge that the impugned order repatriating the services of the appellant-writ petitioner to his parent employer i.e. Pharmaceutical Corporation does not suffer from any 8 error. 13. We have also not found any material which could even remotely suggest much less establish the allegation of bias in the matter of repatriation of the appellant-writ petitioner to Pharmaceutical Corporation. Such allegations of bias and mala fide are easily made but when it comes to the proving such allegation very often there is no material in support of them. Unless the Court is sure that the impugned order is really based upon mala fide, it can not proceed to quash administrative order which is made in the exigency of the administration. In this connection, we may usefully refer to almost a similar case of repatriation of a deputationist to his parent employer wherein the allegation of bias was brushed aside by the Apex Court in the case of State of M. P. vs. Ashok Desmukh reported in AIR 1988 SC 1240. 14. It is true that on account of certain consideration made by Board of Directors in different meetings of the Warehousing Corporation, the appellant-writ petitioner had nurtured a hope that he may also be absorbed in the Warehousing Corporation but then the hopes and realities stands on two different footings and a hope alone cannot crystallize into a right inasmuch as not all legitimate expectations can be enforced in law. The long and short of this case remains within four corners of service jurisprudence that the appellant-writ petitioner 9 was on deputation from Pharmaceutical Corporation to Warehousing Corporation and such deputation having been continued for a period of seven years, his services were sought to be returned back to his parent employer which cannot be faulted in law. Reference in this connection may also be made to the judgement of the Apex Court in the case of Ratilal B. Soni & Ors vs. State of Gujarat & Ors. reported in J. T. 1990(1) SC 229. 15. The plea that pharmaceutical corporation is not functioning and has gone in liquidation would not change the status of the appellant- writ petitioner nor his order of deputation would by itself become an order of absorption in the Warehousing Corporation. Mr. Prem Chandra Ojha, appellant in person has frankly conceded that till date Pharmaceutical Corporation has not been wound up and its office remains in existence. Such Pharmaceutical Corporation being incorporated as a company under the Companies Act 1956 with its entire share held by the State Government and therefore making it to be a Government undertaking under Section 617 of the Companies Act has its own identity and existence in law. It cannot be dismembered for effecting automatic absorption of the appellant-writ petitioner in the Warehousing Corporation which is again a statutory body under Agriculture Produce (Development and Warehousing) Corporation Act 1956 and has its own rules and regulations for its functioning as is also 10 clear from the general regulations placed on record by way of Annexure- A/6 to the counter affidavit filed by Chairman of the Warehousing Corporation. 16. We are also fully satisfied with the reasons given for terminating the deputation of the appellant-writ petitioner by the Managing Director of the Warehousing Corporation as with regard to his attaining the age of superannuation on 30.6.2009 and the same does not suffer from any illegality specially when it was done a week earlier by the Warehousing Corporation to allow the appellant-writ petitioner to settle his claim for post retiral benefits with the parent employer i.e. Pharmaceutical Corporation. 17. Thus, for the reasons recorded above, we fully endorse the view of learned single Judge in the impugned order while dismissing the writ application of the appellant-writ petitioner. 18. In the result, the appeal, being devoid of any merit, is accordingly dismissed. There would be however no order as to costs. (Dipak Misra, CJ.) Patna High Court, Patna Dated, the 8th April, 2010 AFR/kanchan (Mihir Kumar Jha, J.)