IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4522 of 2011 Ajay Shankar S/O Late Ram Sakal Sinha M/H Moldiar Tola, Vill.- Mokama, P.S.-Mokama, Dist.-Patna. At Present R/O Raghunathpath, R.P.S. More, New Baily Road, Patna. ----Petitioner Versus 1. The State Of Bihar Through The Principal Secretary, Deptt. Of Agriculture, New Secretariat, Govt. Of Bihar, Patna. 2. The Principal Secretary, Deptt. Of Agriculture, New Secretariat, Govt. Of Bihar, Patna. 3. The Administrator, The Bihar State Agriculture Marketing Board (Dissolved), Pant Bhawan, Bailey Road, Patna. ---Respondents. -------- 05 24.08.2011 Heard Mr. Verma, learned counsel for the petitioner and Mr. Umesh Kumar, learned Assistant Counsel to Government Pleader no.1 for the respondents. Present writ petition has been filed seeking, inter alia, the following relief(s):- For quashing the order contained in memo no. 1765 dated 17.09.2010 as contained in Annexure-13 passed by the Administrator of the Bihar State Agriculture Marketing Board (dissolved) whereby his representation filed in the light of order dated 14.07.2010 passed by a Bench of this Court on his writ petition being CWJC No. 5991 of 2009 (Annexure-12) has been considered and rejected. Petitioner has also prayed for payment of arrears of salary for the period during which his application ( Misc. case no. 08 of 2006) was pending before the respondent no.3. Petitioner has also prayed for payment of arrears of salary for diverse periods as also ancillary relief(s) such as payment of C.P.F., Group Insurance, Gratuity and Leave Encashment etc. 2 There is no dispute that petitioner is an employee of the Bihar State Electronic Development Corporation (for short „ the Corporation‟). He was posted in the Bihar State Agriculture Marketing Board (dissolved) (hereinafter referred to as the „Board‟) on deputation between the period 05.08.1991 and 30.10.2004. The petitioner had three spells of service on deputation in the Board. In the light of a resolution taken by the Board of the respondent Marketing Board on 04.12.1999, the petitioner was repatriated to his original cadre/post in the respondent Corporation by an order dated 15.09.2004 (Annexure-9). Pursuant to the said order, he was relieved from the service of the Board w.e.f. 30.10.2004. Petitioner made a representation against such repatriation and his relieving w.e.f. 30.10.2004, before the respondent Managing Director. During the pendency of the said representation, the respondent Board was dissolved w.e.f. 01.09.2006. Said representation of the petitioner was ultimately disposed of by order dated 29.09.2008 ( Annexure-25 to the reply to the counter affidavit). In the setting of these facts the petitioner filed CWJC No. 5991 of 2009. This Court, on a consideration of the materials on record and the rival submissions of the parties, disposed of the said writ case by a proceeding dated 14.07.2010 (Annexure-12). Paragraph nos. 4 and 5 whereof read as under:- “4. In view of the provisions contained in the Repealing Act,, I do not find any illegality in the order of the Administrator dated 29.09.2008, Annexure-8 refusing absorption of the petitioner in Agriculture Department. Counsel for the petitioner, however, submitted that that petitioner having challenged the repatriation order dated 15.09.2004 by filing miscellaneous case on 28.10.2004 and the 3 miscellaneous case having been kept pending until it was treated as Appeal Case No. 08 of 2006 and disposed of under order dated 29.9.2008, this Court should direct the authorities of the Board to pay him the salary for the period between 28.10.2004 till the date of disposal of the appeal i.e. 29.9.2008. 5. Aforesaid submission of the counsel for the petitioner is vehemently opposed by the counsel for the Board Sri B.K.Singh Chouhan. He states that under instruction dated 15.9.2004 petitioner was directed to be relieved by 30.10.2004 and in compliance of the said instruction the Managing Director did relieve the petitioner to join his parent organization under office order No. 871 dated 18.10.2004 with effect from 30.10.2004 and the said office order was communicated to the petitioner as also to his parent organization under memo No. 4558 dated 18.10.2004, in the circumstances, the authorities of the Board cannot be asked by this Court to pay arrears of salary for the period between 28.10.2004 till the disposal of the appeal i.e. 29.9.2008. In this connection, he further pointed out that memo of appeal, which petitioner filed on 28.10.2004, Annexure 11 does not refer to the order relieving the petitioner dated 18.10.2004 with effect from 30.10.2004, as such, petitioner having not challenged the order relieving him either before the Administrator or before this Court he cannot be permitted to question the validity of the order relieving him at this belated stage.” The operative part of the said order is contained in para 7 which reads as under:- “7. Having heard counsel for the parties, I grant liberty to the petitioner to represent before the authorities of the Board to consider his case for payment of salary/emoluments for the period between 28.10.2004 the date on which he filed miscellaneous case before the Managing Director until the date of disposal of the Appeal Case No. 08 of 2006 i.e. 29.9.2008 as according to the petitioner the aforesaid miscellaneous case was treated as Appeal Case no. 08 of 2006 by the Administrator and disposed of under order dated 29.9.2008. If any representation for payment of salary/emolument for the aforesaid period i.e. 28.10.2004 till 29.9.2008 is filed before the Administrator of the Board the same be considered in view of submission noted in paragraph-6 in 4 accordance with law, as early as possible, in any case within three months from the date of receipt of the representation of the petitioner along with a copy of this order before the Administrator, Petitioner should join his parent Corporation as early as possible, within one week from the date of receipt of a copy of this order and be granted continuity of service with effect from 30.10.2004 till the date of joining in the Corporation.” The respondent, in the light of said order, passed an order dated 17.09.2010 ( Annexure-13), which is under challenge. Learned counsel for the petitioner submits that his appeal/representation filed in terms of Chapter 1 Rule 4 of the Bihar State Agricultural Marketing Board Service Condition/Regulation 1978 remained pending during the period between 30.10.2004 to 29.09.2008, and as such, the petitioner is entitled to be paid his salary for the said period by the respondent Board. It is the stand of the petitioner that the aforesaid representation (treated as Misc. Appeal) was statutory in nature, and as such, the respondent Board was obliged to treat him in the service of the respondent Board till disposal of the aforesaid representation/appeal on 29.09.2008. It is also contended that for certain periods while the petitioner was serving the respondent Board on deputation basis he was not paid his due salary and other related benefits and as such the authorities of the respondent Board is/are obliged to pay his due wages/ salary and other related benefits for those periods. A counter affidavit has been filed on behalf of the respondent no.3 (The Administrator, The Bihar State Agriculture Marketing Board (Dissolved)). Relying on averments made therein it has been contended that in accordance with the resolution of the 5 Board of Directors of the respondent Board (minutes whereof have been enclosed as part of Annexure A series) all the personnels/officers serving the Board on deputation basis were required to be repatriated to their parent department/cadre/Corporation in accordance with the said decision of the Apex body of the respondent Board. The petitioner was repatriated to his original department/Corporation by order dated 15.09.2004 followed by the order by which he was relieved on 30.10.2004. It is further the stand of the respondent that a deputationist, like the petitioner, has no vested legal right to continue on deputation. It is contended that the representation of the petitioner, although entertained as an appeal, but was not statutory in nature. A deputationist like the petitioner would continue to be governed by the service condition of the Department/Corporation to which he substantively belongs. The respondents have taken a specific stand in the counter affidavit that the petitioner did not continue in the Board after the order dated 15.09.2004 followed by his relieving from the service of the Board on deputation basis w.e.f. 30.10.2004. It is contended that this position is somewhat admitted. With regard to the payment of salary for the period(s) in question the respondents have disputed the claim of the petitioner for payment of salary for the period between 03.08.1991 to 22.09.1991, October 1993 to May 1994, September 1996 to January 1999 on the ground that for the said three period(s) the petitioner was treated as repatriated to his original Corporation under order(s) of the Board but subsequently under the orders of the Government as well as the Board he was permitted to rejoin the service of the Board on deputation basis. 6 I have heard the parties at length and perused the materials on record. It appears, this Court, having noticed the stand of the parties, by a proceeding dated 14.07.2010 (Annexure-12) disposed of the writ petition permitting the petitioner to represent before the authorities to consider his case for payment of salary/emoluments for the period 28.10.2004 to 29.09.2008 ( the date his representation was disposed of). There is no material on record to show that during this period the petitioner was allowed to continue in the service of the respondent Board in face of the order of repatriation having been passed on 15.09.2004 followed by his relieving of the post held by him in the Board on deputation basis. Petitioner has asserted that his representation was maintainable in terms of Regulation 4 of the Bihar Rajya Krishi Bipnan Board Karmchari Seva Biniyamawali, 1978. On Perusal of the said Biniyamawali/regulation, it appears that said Biniyamawali/regulation has been framed in terms of Section 33 (Tha) and (Ga) of Bihar State Agricultural Marketing Board, Act, 1960. On perusal of Section 33 ( Tha) of the aforesaid Act, it appears the same does not relate to the issue/subject for which the aforesaid representation was filed which was considered and disposed of by a well reasoned order by the respondent no.3. Petitioner has not been able to produce any document to show and/or demonstrate that during the period his said representation (treated as Misc. Appeal) was/were pending, he was allowed to rejoin the service of the respondent Board. There is no material either to show that the order repatriating him to his parent department/Corporation dated 15.09.2004 was 7 stayed by the authorities of the respondent Board. In the eye of law, therefore, he cannot be treated an employee of the respondent Board even on deputation basis during the period in question. The aforesaid view has been taken in the order passed by respondent no.3 which is under challenge. This Court, therefore, finds no merit in the submission of the petitioner that the respondent Board is/was obliged to pay him salary for the period 15.09.2004 to 30.10.2004. As about other prayers made in the application, the respondents, in the counter affidavit, have categorically denied the admissibility of salary for those period(s) on account of the fact that under different order(s) passed by the competent authority the petitioner was relieved from the services of the respondent Board and subsequently he was allowed to join under order of the Government/respondent. It, thus, appears, that the respondents have controverted the stand of the petitioner for payment of salary for these period(s). This Court, in exercise of its writ jurisdiction, would not like to delve into those aspects of the matter. Without expressing any opinion on the aforesaid claims of the petitioner, this Court would permit the petitioner to file a separate representation detailing his claim supported by documents before the respondent no.3 which shall be considered and disposed of in accordance with law. The application is dismissed with the liberty aforesaid. Sym ( Kishore K. Mandal, J.)