IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 10016 of 2007 1. Bihar State Government Employee’s Association, through its Secretary, Kamala Kant Tripathi, Office of Kamal Bhawan, Yarpur, Rajputana, Patna. 2. Kamla Kant Tripathi, son of Shri Ram Narain Tripathi, resident of Village-Garari, P.S.-Karakat, District-Rohtas 3. Ramendra Kumar Sinha, son of Late Nawal Kishore Prasad Sinha, resident of village – Tutwari, P.O. – Nai Gadam, P.S. – Gaya, District – Gaya 4. Raj Kishore Rajak, son of Shri Rama Rajak, resident of village – Jai Prakash Nagar, P.O. – G.P.O., P.S.- Jakkanpur, Town and District – Patna 5. Yogendra Vishwakarma, son of Late Bulaki Mistry, resident of Mohalla – Satistabad, P.O.-Anisabad, P.S.- Gardanibagh, District-Patna. 6. Janeshwar Yadav, son of Late Talim Yadav, resident of village – Shivaji Nagar, Makhdumpur Bagicha, P.O.-Digha Ghat, P.S.-Dighat, District-Patna 7. Lalan Kumar Das, son of Late Bhuveshwar Lal Das, resident of village & P.O. – Phet, P.S.-Basopatti, District- Madhubani. 8. Yugal Kishore Singh, son of Late Dukhan Prasad Singh, resident of village – Tajpur, P.S. – Kharagpur, P.S. – Kharagpur, District – Munger 9. Khurshid Alam, son of Shri Abdul Qudus Ansari, resident of village – Khedalpura, P.O. – Khagaul, P.S. – Shahpura, District-Patna 10. Shukdeo Yadav, son of late Khattar Yadav, resident of village – Mirjapur, P.O. – Mirjapur, P.S. – Ladaniya, District – Madhubani 11. Rajendra Prasad, son of Late Sahajanand Prasad, resident of village – Nainijor, P.S.-Chhotaki Nainijor, P.S.- Nainijore, District-Buxar 12. Shrinath Yadav, son of Shri Parmanand Rai, resident of Mohalla – Saristabad Pashchimi Tola, P.O. – Anisabad, P.S.-Gardanibagh, District – Patna ………………. Petitioners Versus 1. The State of Bihar, through the Chief Secretary, Main Secretariat, Patna 2. The Commissioner and Secretary, Department of Social Welfare (Previously known as Welfare Department), Government of Bihar, Main Secretariat, Patna 3. The Director, Integrated Child Development Service, Indira Bhawan, 2nd Floor, Boring Canal Road, Patna 4. The Commissioner and Secretary, Department of Finance, Government of Bihar, Main Secretariat, Patna 2 5. The Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Main Secretariat, Patna. ----------- 08. 06/04/2011 Petitioner No. 1 in this Writ Application is Bihar State Government Employees Association, which has filed this on behalf of its members in representative capacity and other petitioners have filed in their individual capacity for their absorption on such posts on which they are working in different I.C.D.S. Projects as well as in different districts offices of Bihar, and at headquarter of the Directorate of I.C.D.S., under the Welfare Department, Government of Bihar. Prayer of all these petitioners is for a direction to the Secretary, Welfare Department as well as Director, Integrated Child Development Scheme (I.C.D.S.), to extend the benefits of permanent absorption to the members of Petitioner No. 1 “Association” as well as other petitioners, in the light of the provisions contained in letter no. 447, dated 24th of August, 1996 (Annexure-1), issued under the signature of the Director, Treasuries and Accounts Directorate-cum-Additional Secretary, Finance Department. Petitioners have 3 emphasized that in view of the provisions contained in Annexure-1, similarly situated surplus employees of different Corporations / Boards / Public Sector Undertakings / Enterprises of the State of Bihar, whose services were placed initially on deputation, have permanently been absorbed in the concerned Departments. Further prayer of petitioners is to restrain the Respondents from repatriating the services of the members of Petitioner No. 1, “Association” and other petitioners, from the I.C.D.S. to their parent Departments, i.e., different Corporations, Boards, Public Sector Undertakings / Enterprises, as parent Department of the petitioners have already been declared defunct and are dead organizations. The Government of Bihar established a number of Board, Corporation, Public Sector Undertakings / Enterprises in the year 1980. Since these Boards, Corporations, Public Sector Undertakings / Enterprises could not achieve the desired object, for the purpose of which they have been established, the State Government decided to wind up these Boards, Corporations, Public Sector Undertakings / Enterprises. The financial condition of 4 these Boards, Corporations, Public Sector Undertakings / Enterprises were such that they could not even generate sufficient resources for meeting expenditures of their establishment. In this circumstance, the State Government decided to wind up non viable Board / Corporations / Public Sector Undertakings. This decision raised question of rehabilitation of different class of employees, working with these Boards, Corporations, Public Sector Undertakings / Enterprises. The Managing Directors of these Boards, Corporations, Public Sector Undertakings / Enterprises, approached the State Government to accommodate their employees, declared surplus, against the vacancies available in the different Departments of State Government. The surplus employees themselves also represented before the State Government for their adjustment, absorption, rehabilitation in such Government Departments, where vacancies are there on the sanctioned posts. Considering such representations of surplus employees, the Treasuries and Accounts Directorate of Finance Department called for names of such employees of different Corporations, Boards, Public Sector Undertakings / Enterprises, which were 5 going to be wound up. Receiving list of such surplus employees, the Treasuries and Accounts Directorate of the Finance Department, considered their case for absorption, initially on deputation basis against declared sanctioned posts available in different Government Treasuries and Sub-treasuries, by issuing letter no. 447, dated 14th of August, 1996 (Annexure-1). This letter was issued under the signature of Directorate of Treasuries and Accounts- cum-Additional Secretary, Finance Department, considering the list of such surplus employees of different Corporations, who were selected initially on deputation, but with the object of their final absorption. In this letter, service conditions of the selected surplus employees were incorporated in Clause 2, sub-clause (2) and sub-clause (6). Clause 2, sub-clause (2) indicated that till the date, all these employees are absorbed against permanent sanctioned posts, they will not claim for promotion on a higher post. Clause 2, sub-clause (6) provided that the performance, appraisal of such employees, placed on deputation, will be made every year and in case of satisfactory service, the matter relating to the extension of their deputation period as well as 6 permanent absorption, will be considered. Petitioners, who were working in different Boards, Corporations, Public Sector Undertakings / Enterprises, details of which has been mentioned in paragraphs 8 and 9 of the Writ Application, also joined in different Treasuries and Sub-treasuries, in terms of Annexure-1, as surplus employees of defunct organizations. In terms of Clause 2, sub- clause (6), several similarly situated surplus employees of different Boards and Corporations were permanently absorbed though initially placed on deputation basis, but the members of Petitioner No. 1 “Association” as well as other petitioners, could not be absorbed, because of non-availability of adequate number of vacancies, despite the fact that their names had also been forwarded for it. At this very stage, Integrated Child Development Scheme was launched by the Union of India for overall improvement of women and children in all the States within the territory of India. This Scheme was wholly financed by the Union of India with the help and aid of the World Bank. In the State of Bihar also this project was launched under the control and supervision of the Welfare Department of the State 7 with the purposes of achieving the object of such Scheme. The Welfare Department of the State of Bihar, opened I.C.D.S. Projects in different districts of Bihar, but due to inadequate number of staff, target of the Scheme was not being achieved successfully. Moreover, on account of insufficient staff in districts, it could not be started in all districts. The Secretary, Ministry of Women and Child Development, Government of India, requested the Secretary, Welfare Department to ensure and take steps for filling up the vacancies at various levels in the I.C.D.S. Project. Hon'ble Supreme Court of India also directed the State of Bihar to make operational all 394 I.C.D.S. Projects earmarked for Bihar. Considering the serious concern of Union of India, the question of requisite number of staff for these I.C.D.S. Projects became very important for the State. Under these circumstances, the Finance Department and the Secretary of the Welfare Department issued letter no. 80, dated 07.02.1996, addressed to Secretaries of the different Departments of the State, asking to forward list of surplus employees of such Corporations / Boards, which were being run previously within their 8 jurisdiction and control. The purpose of issuance of this letter was to utilize services of those surplus employees in the I.C.D.S. Projects, initially by placing them on deputation basis as the Finance Department vide letter no. 8560, dated 30.12.1986 had put a ban on fresh appointment or promotion considering the financial condition in the State. A general instruction had been issued that in case of emergent situation, vacancies available in different Departments could be filled up from amongst the surplus employees of different Corporations, Board, Public Sector Undertakings / Enterprises. The relaxation in appointment had been made, only in case vacancies were going to be filled by surplus employees of Corporations, Boards, Public Sector Undertakings / Enterprises. On request of Welfare Department, list of surplus employees of different Corporations / Boards / Public Sector Undertakings / Enterprises were forwarded, in which names of members of the Petitioner No. 1 “Association” as well as other petitioners were also there for placing their services on deputation in the I.C.D.S. Project as well as in the Directorate of I.C.D.S. under the Welfare Department. A Selection Committee was 9 constituted with the approval of Personnel and Administrative Reforms Department by Finance Department. The Welfare Department published an advertisement in the daily newspaper on 01.11.1992. Applications were invited from the surplus employees of Board / Corporations / Public Sector Undertakings / Enterprises for their selection on deputation basis in different I.C.D.S. Projects. Members of the Petitioner No. 1 “Association” as well as other petitioners submitted their applications for consideration of their cases for absorption on deputation basis. Petitioners were called for interview by the Selection Committee and ultimately they were selected for appointment in different I.C.D.S. Projects, on deputation basis with clear stipulation that benefits available to other similarly situated Government employees will be admissible to these appointees. Petitioners were placed on deputation in different Projects in headquarter of the Directorate as well as in the Welfare Department on Class – III and Class – IV posts. Petitioner’s grievance is that similarly situated surplus employees of some Boards, Corporations, Public Sector Undertakings / 10 Enterprises who had also been selected for appointment on deputation basis in I.C.D.S. Projects against Class – III and Class – IV posts, were absorbed in the light of the service conditions as laid down in letter no. 447, dated 24th of August, 1996 (Annexure-1). Those persons had also been initially absorbed on deputation basis in the Government Treasuries and Sub-treasuries like the petitioners. However, on performance, appraisal of their service, like petitioners, they were also recommended for absorption, but could not be absorbed at the relevant time on account of non-availability of the sanctioned vacant posts. Subsequently, similarly situated surplus employees, when selected / appointed on deputation in the I.C.D.S. Projects, were absorbed in terms of Clause 2, sub-clause (6) of Annexure-1 in the I.C.D.S. Projects as well as in the Welfare Department and also at the headquarters of the Directorate. Petitioners, whose performance were also found satisfactory were entitled for absorption in terms of conditions laid down in Clause 2, sub-clause (6) of letter no. 447, dated 24.08.1996 (Annexure-1), in stead of being absorbed on permanent basis on the posts, they 11 were selected and appointed on deputation, now being repatriated to their parent Department. Persons, who have permanently been absorbed in the Computer Section of the Welfare Department in terms of Clause 2, sub-clause (6) of Annexure-1, their cases are identical to the case of the petitioners. Counsel appearing for the petitioners has submitted that other similarly situated surplus employees of BISCOMAUN and other Boards, Corporations as well as Public Sector Undertakings / Enterprises, initially placed on deputation in the National Savings Department and General Provident Fund Department have also been absorbed after successful completion of two years of their service, in terms of vide Annexure-1 to the Writ Application. However, the Respondent-Secretary, Welfare Department as well as Director have adopted a policy of discrimination in the case of petitioners and other members of Petitioner No. 1 “Association”, so far their matter of absorption is concerned. Petitioners were absorbed on deputation basis pursuant to a valid selection process. Petitioners on account of such selection and appointment on 12 deputation basis had legitimate expectation of being treated in a similar manner, as it has been done in the case of other similarly situated persons. It has also been submitted that the petitioners’ services were initially transferred on deputation basis in the Government Treasuries and Sub-treasuries in terms of policy decision of the Government to rehabilitate the surplus employees of such Boards, Corporations, Public Sector Undertakings / Enterprises, which were decided to be wound up. Simply because the term “Deputation” was used while transferring their services to Government Departments, they can not be deprived of the benefit of the Government policy of absorption, when it has already been given to many similarly situated persons. The language used in Annexure-1 was sufficient to indicate that the term “Deputation” was used only for transferring the services of suitable employees to the Departments, where posts were vacant and where their services can be utilized and absorbed in the light of policy decision of the Government. In Clause 2, sub-clause (6), it is specifically mentioned “in case on appraisal for two years, their services were found satisfactory, they will be absorbed”. It was not a simple case of 13 deputation for a limited period, it was transferring the services on deputation with stipulation of absorption, in case the services were found to be satisfactory. Considering this provision in Annexure- 1, several similarly situated persons were already absorbed. Petitioners’ services were also found satisfactory. In this circumstance there was no reason to repatriate them to same parent Department, for which a decision has been taken by the State Government for its winding up. Repatriation of services of the petitioners to a defunct or dead organization will indirectly amount to terminating them from service. Financial situation of those Boards, Corporations, Public Sector Undertakings / Enterprises were such that they were unable to generate revenue even for payment of salaries to their employees. After so many years, when those Boards, Corporations, Public Sector Undertakings / Enterprises are completely dead, there can not be any reasonable ground for repatriating the services of petitioners to such dead organizations. During pendency of the Writ Application, Respondents came out with letter contained in Memo 14 No. 66, dated 04.01.2008, issued under the signature of Director, I.C.D.S., whereby a general direction has been issued to all heads of I.C.D.S. Projects that services of all such employees, deputed in the different Projects of I.C.D.S. be repatriated to their parent Department, who are going to attend the age of 58 years, i.e., the age of superannuation. As a result of this general direction, the Respondent, heads of I.C.D.S. Project issued order, contained in Memo No. 3505, dated 31.10.2008, whereby service of some of the members of Petitioner No. 1 “Association” have been repatriated to their parent Department, even without issuing any show-cause notice and seeking any explanation. Interlocutory Application has been filed by the petitioner for making additional prayer for quashing the order, contained in Memo No. 66, dated 04.01.2008 and order contained in Memo No. 3505, dated 31.10.2008. During pendency of this Writ Application by order dated 23.01.2009, a direction has been issued that till disposal of this Application, services of petitioners on deputed posts, shall not be interfered with, strictly in accordance with the policy decision 15 as referred to above. In terms of this order, petitioners are still continuing on the posts, they are working on their deputed posts and have not been sent to their parent Department. Petitioners’ have brought Government’s policy decision, contained in Memo No. 1437, dated 08.03.2006, issued under the signature of Deputy Secretary, Finance (Expenditure) and order, contained in Memo No. 7752, dated 25.09.2002, issued under the signature of Additional Secretary, Finance (Resources) on the records of the case. These two letters indicate that in the year 1996-97, surplus employees of Boards, Corporations, Public Sector Undertakings / Enterprises were transferred on deputation basis, with this object that in case their services will be found satisfactory, they will be absorbed in the Government service, on fulfillment of some terms and conditions. Annexure-17, bearing Memo No. 7752, dated 25.09.2002 is specific on the point that surplus employees of different Boards, Corporations, Public Sector Undertakings / Enterprises brought on deputation, prior to issuance of Resolution No. 7469, dated 06.11.1999, will be absorbed, but whosoever has been brought on 16 deputation subsequent to Resolution No. 7469, dated 16.11.1999, their deputation will be cancelled with immediate effect. Counsel for the petitioner has submitted that admittedly all members of Petitioner No. 1 “Association” as well as other petitioners were brought on deputation in terms of Annexure-1, earlier to 16.11.1999. In this view of the matter also, petitioners’ case is fit for absorption, in stead of repatriation of their service to their parent Department. Counter Affidavit has been filed on behalf of Respondent Nos. 2 and 3, stating that surplus employees of various Public Sector Undertakings / Enterprises of the State Government, working on deputation in various Departments of State Government as well as I.C.D.S. Directorate (Social Welfare Department) can not claim absorption as their deputation was of temporary nature with well defined terms and conditions of such deputation. The terms and conditions of deputation does not include any clause, concerning absorption on permanent basis neither there was any such assurance it. The service conditions of such deputed 17 employees are governed by relevant Service Rules of their parent organizations. They are only paid remuneration and other benefits as allowed by terms and conditions of such deputation. It has also been stated that as yet, the Government has not taken any decision regarding absorption of such surplus employees on permanent basis. The Counter Affidavit is vague and evasive. Parawise reply to the statements made in the Writ Application as well as Supplementary Affidavits has not been given. In general terms, it has been stated that the surplus employees brought on deputation in different Government Departments are governed by the service conditions to their parent Department. This statement is completely in contradiction to Annexure-1 as well as Annexure-5 and 6 series. Clause 2 of Annexure-1 relates to service conditions of such surplus employees, who were initially placed on deputation against the vacant posts in different Treasuries and Sub-treasuries. Clause 2, sub-clause (2) is specific that the employees, who have been brought for absorption on deputation basis will not claim promotion to higher posts unless each such deputed employees are not absorbed against the 18 vacant posts. Clause (6) indicates that the performance of these employees brought on deputation will be observed for two years and finding their performance satisfactory, decision will be taken either for extension of their period of deputation or for absorption. There being clear stipulation in Annexure-1 regarding absorption, the stand taken in the Counter Affidavit can not be considered as a correct statement. Annexure-5 is the advertisement published for filling up the vacant posts in the I.C.D.S. Project, from surplus employees of different Boards and Corporations. In response to this, petitioners had applied and they were selected and appointed on deputation basis. Annexure-6 series, which is their appointment order is indicative of the fact that these employees will be governed by the same service conditions / rules, which is applicable in case of Government employees. They will also be entitled for same benefit and relief, which is available to a State Government employee. They were also not allowed the deputation allowance. These Annexures are sufficient to show that the word “Deputation” used in Annexure-1 or Annexure- 5 and 6 is not simple “Deputation”, but it was 19 deputation with a clear stipulation that their services will be absorbed. The Respondents themselves have absorbed service of similarly situated employees as per Annexure-7 series and Annexure-8. Now, they can not deny same benefit to the petitioners, who have worked for such a long time with legitimate expectation of absorption. Petitioners have annexed the order passed in C.W.J.C. No. 8050 of 2003, Annexure-10, whereby in the similar circumstance, surplus employees of BISCOMAUN were directed to be absorbed. Counsel for the petitioners have also brought before this Court the order passed in a batch of Letters Patent Appeals, preferred by surplus employees of BISCOMAUN and other Boards, Corporations, who were going to be repatriated to the parent Department and whose Writ Applications have been dismissed by the Single Judge. All these Letter Patent Appeals were allowed with a direction to the Respondents to absorb their services, permanently in the Department, they were working on deputation, subject to this condition that they were brought on deputation, prior to cut off date of 16.11.1999. The State Government preferred SLP before the Hon'ble Supreme Court against the orders 20 passed in all these LPAs and the same was dismissed. I find that all petitioners who are members of Petitioner No. 1 “Association” as well as other petitioners, stands on similar footing as appellants of the LPA No. 608 of 2006 and its analogous appeals, as such entitled for similar relief. Accordingly, the Respondent Nos. 2, 3, 4 and 5 are directed to pass necessary order of absorption of all these petitioners. None of the petitioners shall be repatriated to those defunct Boards, Corporations, Public Sector Undertakings / Enterprises, which were their parent Department. Petitioners will be allowed to superannuate from the posts, they are working. They will be paid their salary, pensionary benefits, remaining on the same post. With these direction / observations, this Writ Application is disposed of. SKM (Mridula Mishra, J.)