IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision: July 4, 2011 1. LPA No. 1275 of 2010 (O&M) Haryana Power Generation Corporation Limited and another …Appellants Versus Dr. T.R. Dhawan and another …Respondents 2. LPA No. 1277 of 2010 (O&M) Haryana Power Generation Corporation Limited and another …Appellants Versus Dr. T.R. Dhawan and another ...Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. B.S. Rana, Advocate, for the appellants. Mr. K.L. Arora, Advocate, for respondent No. 1. Mr. R.K.S. Brar, Addl. AG, Haryana, for respondent No. 2. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. This order shall dispose of LPA Nos. 1275 and 1277 of 2010 filed by the Haryana Power Generation Corporation Limited under Clause X of the Letters Patent against common judgment dated 12.1.2010 rendered by the learned Single Judge allowing writ LPA Nos. 1275 & 1277 of 2010 (O&M) petitions, namely, CWP Nos. 10998 of 1995 and 11368 of 2008, filed by the petitioner-respondent No. 1. 2. Brief facts of the case are that the petitioner-respondent No. 1 was appointed as Medical Officer, HCMS-II on ad-hoc basis in October, 1979. Upon selection by the Haryana Public Service Com- mission, he was absorbed as Medical Officer HCMS- II in August, 1980. Accordingly, the services of the petitioner were placed at the disposal of the Health Department of the Haryana Government. Af- ter the approval granted by the State Government, the petitioner- respondent No. 1 was appointed as a Medical Officer with the Hary- ana State Electricity Board (for brevity, 'the Board') on deputation for a period of one year w.e.f. 24.11.1982, which was extended from time to time. 3. On 10.12.1985, the Board sought the consent of the peti- tioner-respondent No. 1 for permanent absorption in the Board, which was given by him. On 22.12.1987, the Board sent a request to the State Government for his absorption, which was acceded to June, 1988. However, the State Government stipulated that his lien on the post of HCMS-II in the Health Department, Haryana, would be terminated with immediate effect and that recovery of leave salary and pension contribution for the period from 1.11.1986 was to be made from him. On 11.9.1990, the petitioner-respondent No. 1 was conveyed about his absorption by the Board, which reads as under:- “ The Commissioner & Secretary, Haryana Govern- ment 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. 2 LPA Nos. 1275 & 1277 of 2010 (O&M) 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.” 4. Thereafter a request was made by the Board for absorp- tion of the petitioner-respondent No. 1 from the date of his initial appointment with the Board. On 16.9.1994 (P-9), the State Govern- ment gave no objection for permanent absorption of the petitioner- respondent No. 1 in the Board with effect from 25.11.1982 subject to the condition that in terms of Rule 10.14 of Civil Services Rules, Volume-I, Part-I (for brevity, 'the Rules'), pension contribution and leave salary deposited by the Board would not be refunded. It has also come on record that on 28.9.1994, the Board passed a resolu- tion to absorb him w.e.f. 25.11.1982. 5. However, in its meeting held on 20.9.1994, the Board once again considered the case and it was felt that the decision of the State Government not to refund leave salary and pension contri- bution already paid by it for the period from 25.11.1982 to 31.10.1986, is not maintainable because Rule 10.14 of the Rules was not attracted. Moreover, the Medical Officers working with the Board, who were recruited from 25.11.1982 to 15.4.1989 also repre- sented against the absorption of the petitioner-respondent No. 1 w.e.f. 25.11.1982 because they were to be adversely affected in the matter of seniority. It was, thus, decided in the meeting dated 20.9.1994 to repatriate the petitioner-respondent No. 1 back to the State Government. On 28.9.1994, the Board passed an order repa- triating him to his parent department (Annexure P-12 with LPA No. 1277 of 2010). On 3.10.1994, the petitioner-respondent No. 1 made 3 LPA Nos. 1275 & 1277 of 2010 (O&M) a representation for reviewing/recalling of the order dated 28.9.1994 (P-14). On 8.6.1995 (P-18), the Commissioner and Secre- tary to Government, Haryana, Health Department, sent a communi- cation to the Secretary of the Board by observing as under:- “ Haryana Govt. observe that after Dr. T.R. Dhawan joined Haryana State Electricity Board on deputation from Health 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 Gov- ernment conveyed the necessary concurrence for his per- manent 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 refer- ence made to the State Government, the State Govern- ment 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. Dha- wan 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, 4 LPA Nos. 1275 & 1277 of 2010 (O&M) could not be repatriated to the State Government, that too, at such a belated stage. Since your decision of repa- triation 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 ab- sorption of Dr. Dhawan in the Haryana State Electricity Board." 6. The petitioner-respondent No. 1 thereafter approached this Court by filing CWP No. 10998 of 1995. He was allowed to con- tinue with the Board subject to the final decision of the said writ pe- tition. The petitioner-respondent No. 1 also filed another writ peti- tion, namely, CWP No. 11368 of 2008 seeking a direction to the ap- pellant to consider his case for promotion to the post of Chief Medi- cal Officer and to promote him as such by counting the service ren- dered by him with State of Haryana as HCMS-II from 7.8.1980 to 24.11.1982 i.e. before his absorption in the Board. 7. The learned Single Judge after noticing the judgments of Hon'ble the Supreme Court rendered in the cases of S.I. Rooplal and another v. Lt. Governor through Chief Secretary, Delhi and others, 2000 (1) RSJ 336; and Raghavendra Rao and others v. State of Kar- nataka and others, (2009) 4 SCC 635 and a Division Bench judg- ment of this Court in the case of Satish Kumar and another v. Ram Pal and others (LPA No.145 of 2000, decided on 10.12.2003) al- lowed the writ petitions filed by the petitioner-respondent No. 1 by coming to the conclusion that the appellant cannot be allowed to take benefit of their own wrong to challenge the order of absorption, or review the same after it was implemented, and the lien of the pe- 5 LPA Nos. 1275 & 1277 of 2010 (O&M) titioner-respondent No. 2 was terminated by the State Government. The relevant observations made by the learned Single Judge in that regard reads thus: “ 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 ab- sorption in the Board w.e.f. 4.7.1988 and his lien was ter- minated vide 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 An- nexure P.11 reproduced above the State Government al- lowed 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 6 LPA Nos. 1275 & 1277 of 2010 (O&M) return it back to the Board. The respondent Board is es- topped 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 peti- tioner's consent for his absorption. The plea of the re- spondents 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.” xxx xxx xxx xxx xxx xxx xxx xxx xxx The second writ petition filed by the petitioner i.e. CWP No.11368 of 2008 also deserves to be allowed in view of the law laid down by Hon'ble Supreme Court in case of S.I.Rooplal and another Vs. Lt. Governor through Chief Secretary, Delhi and Ors. (supra). The petitioner will be entitled to get benefit of his service rendered, with the State Government for the purpose of seniority and other consequential benefits. The case of the petitioner, for further promotion be considered in accordance with 7 LPA Nos. 1275 & 1277 of 2010 (O&M) law, from the date of his juniors, have been promoted af- ter giving him benefit of the service rendered by him with the Health Department of the State Government. 8. Having heard learned counsel for the appellant we are of the considered view that there is no legal infirmity in the view taken by the learned Single Judge warranting admission of these appeals. It is admitted position on record that it was at the instance of the appellant that the State Government has accorded sanction for per- manent absorption of the petitioner-respondent No. 1 in the Board and even terminated his lien on the post of HCMS-II in the Health Department, Haryana. The only dispute was with regard to non-re- fund of pension contribution and leave salary which has been de- posited by the Board with the State Government, which could be easily sorted out by the appellant with the State Government. 9. As a sequel to the above discussion we see no merit in these appeals warranting interference of this Court. Accordingly, these appeals fail and the same are dismissed. A photocopy of this order be placed on the file of con- nected appeal. (M.M. KUMAR) JUDGE (GURDEV SINGH) July 4, 2011 JUDGE PKapoor 8