IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.897 of 2007 1. The State Of Bihar, through the Chief Secretary, Government of Bihar, Old Secretariat, Patna 2. The Finance Commissioner, Government of Bihar, Old Secretariat, Patna 3. The Commissioner-cum-Secretary, Department of Personnel, Govt. of Bihar, Old Secretariat, Patna 4. The Director General, Bihar Institute of Public Administration and Rural Development (BIPARD), Patna, Walmi Campus, Phulwarisharif, Patna .. Respondents/Appellants Versus Dr.Rajan Sinha, son of Late Dr. Ganesh Prasad Sinha, resident of Mohalla-Road No.10-H, Rajendra Nagar, Police Station-Kadam Kuan, District, Patna ... Petitioenr/Respondent ----------- 6 17.05.2011 The present appeal has been filed against the order dated 09.10.2007 passed by the learned Single Judge in C.W.J.C. No. 6871 of 2007. The petitioner is the respondent herein who happens to be the Joint Director in BIPARD on deputation from State Hydroelectric Power Corporation Limited, Patna. Initially, he was appointed as Labour Welfare Officer in Bihar State Sugar Corporation Ltd. His deputation was approved by the Executive Council of BIPARD. It has been urged before the learned Single Judge that the Director General vide office order bearing Memo No. 593 dated 18/21.05.2007, Annexure-7 (to the writ petition), repatriated the services of the 2 petitioner to his parent organization, Bihar State Sugar Corporation Limited on the ground that deputation of the petitioner was subject to further approval from the Personnel and Administrative Reforms Department of the State Government, which was sought under letter no. 14/05/807 dated 29.08.2005 and since the approval is not forthcoming, it is appropriate to repatriate the services of the respondent- writ petitioner to his parent organization. The said action of the authority was challenged before the learned Single Judge on the ground that his deputation has been approved by the Executive Council of the BIPARD. But, as there was no approval of the said action by the Executive Council, hence his deputation cannot be sustained under law. The respondents in the writ petition has argued that his deputation was approved by the Executive Council of BIPARD on 13.06.2006 on the condition that deputation of the respondent-writ petitioner herein was subject to further approval from the Personnel and Administrative Reforms Department of the State Government and in the absence of his approval, he can be repatriated at any time. 3 The learned Single Judge after hearing the matter in extenso on merits has held that as the Executive Council has not approved for repatriation of the respondent-writ petitioner, quashed the repatriations order and further directed the Chief Secretary, Bihar, who happens to be the Chairman of BIPARD, to examine the controversy, with regard to drawing of salary in the higher scale while serving on the post of Officer on Special Duty in the Bihar State Hydroelectric Power Corporation, Patna which also his grievance raised in representation dated 16.04.2007 (Annexure-5 to the writ petition) after giving the petitioner- respondent herein an opportunity of being heard. It is also further directed by the learned Single Judge that the Chief Secretary should examine the aforesaid controversy as early as possible and in any case within a period of one month from the date of receipt/production of a copy of this order and forward his finding to BIPARD for being considered by the Executive Council. But, however, a direction was issued to allow the respondent-writ petitioner to join BIPARD and 4 also for the payment of arrears of salary in the scale in which he was being paid salary in BIPARD but such payment shall be subject to the decision of the Chief Secretary about the admissibility of the scale to the petitioner in BIPARD. Aggrieved by such finding, the present appeal has been filed. Learned counsel appearing on behalf of the BIPARD has contended before us that the respondent-writ petitioner was on deputation in Bihar Hydro Electric Power Corporation Ltd. as Officer on special Duty and remained there from 15.01.2004 to 12.04.2005 in the pay-scale of Rs. 8000/--13500/- as per the Last Pay Certificate issued by the Indira Gandhi Institute of Medical Science, Patna. Thereafter, he submitted his joining in Administrative Training Institute on deputation basis on the post of Joint Director in pursuance to an advertisement and letter dated 12.02.2005. From the said institute he was sent on deputation from BIPARD as Joint Director. The Executive Council has approved his deputation with a condition that unless the deputation is approved by the Department of Personnel and Administrative Reforms, Govt. of 5 Bihar he may be repatriated back to the parent department at a time as the approval was not received by the said Personnel and Administrative Reforms Department. Though there was some anomaly in the pay scale in sending him back to his parent department vide office order bearing Memo No. 593 dated 18/21.05.2007 (Annexure-7 to the writ petition), but, however there was a post facto approval of the Executive Council of the BIPARD which is emanated from the letter of the Director General from the first instance. It is also further submitted by learned counsel that in pursuance of the orders passed by the learned Single Judge as also interim order passed by the Division Bench of this Court, the Chief Secretary has conducted an enquiry and submit a report which became a part of supplementary affidavit filed in the L.P.A. on 11.02.2009 i.e. Annexure-7 to the supplementary affidavit. Report dated 13.12.2008 of Chief Secretary is on two points:- ¼d½ fcgkj jkT; gkbZMªks bysfDVªd ikoj dkWiksZjs”ku] iVuk ds in ij dk;Z djrs gq, MkW0 jktu flUgk ds }kjk mPprj osrueku esa osru fudklh ls lacfU/kr fookj A ¼[k½ MkW0 jktu flUgk ds vH;kosnu fnukad 16-04-2007 ds 6 }kjk dh x;h f”kdk;r ds laca/k esa tkWap A During examining the materials available and hearing the respondent- writ petitioner, the Chief Secretary has come to the conclusion that the respondent is appointed on deputation on the post of Deputy Director, BIPARD and his salary is payable at the scale of Rs.8000/- to 13,500/-. He has also opined that from the Bihar state Hydroelectric Power Corporation, Patna, the respondent was drawing the salary in excess as payable to him and such excess payment is liable to be refunded. It has further argued that there is anomaly in the pay-scale of the respondent (writ petitioner) as he is entitled for pay- scale of Rs.8000/-13500/- on the post of Deputy Director. The fact which reveals from the argument of both sides that there is a dispute with regard to the post held by the respondent (writ petitioner) either on the post of Joint Director or Deputy Director. The contention of the counsel for the respondent posed that he was holding the post of Joint Director and drawing the salary of Deputy Director. The learned counsel for the appellant has filed a supplementary affidavit before this 7 Court stating that there is post facto approval of the action taken by the Director General for sending the respondent to his parent department and hence it cannot be said that the Executive Council has not approved the action of the Director General as he is an authority to act for all practical purposes on the administrative side. Learned counsel for the respondent -writ petitioner has argued that so far as repatriation is concerned prior approval of the Executive Council is necessary while passing an order of deputation, even though it is conditional one. The Department of Personal & Administrative Reforms must take approval of his deputation from the Executive Council who is vested with the power to cancel such deputation and the Director General who being the subordinate authority of the Executive Council cannot pass an order for repatriation without the approval of the Executive Council. The learned counsel also further argued that the learned Single Judge has dealt with such factum of the approval by the Executive Council with regard to the repatriation and hence the order of the learned Single Judge is to be set aside. 8 We had occasion to go through the order of repatriation bearing Memo No. 593 dated 18/21.05.2007 as also the supplementary affidavit filed by the appellant. It is a fact that the report of the Chief Secretary, filed in pursuance to the order passed by the learned Single Judge and also the documentary evidence shows that he was drawing salary in the pay- scale of Rs.8000/- -13500/- and he was holding the post of Deputy Director and it is also admitted fact that the respondent was given opportunity to submit his show cause before the Chief Secretary and after being heard him the Chief Secretary has submitted the report. As the said factum of holding post and also the pay-scale is not the subject matter of the present appeal, we are of the opinion that opportunity can be granted to the respondent- writ petitioner to question the order passed by the Chief Secretary before the appropriate forum in accordance with law. So far as cancellation of deputation of the respondent- writ petitioner is concerned, the fact reveals that he has been brought to the Corporation of BIPARD by way of resolution passed by the Executive Council on the condition that his 9 deputation should be approved by the Department of Personnel and Administrative Reforms and hence it can be treated to be a conditional deputation. But, however, as there was no approval received by the Department of Personnel and Administrative Reforms, we are of the opinion that the action of the Executive Council who has vested with the power to cancel the deputation is correct. No material has been placed before this Court to show that the Executive Council of BIPARD has not acted in the above manner before passing the order of cancellation of deputation of the respondent- writ petitioner to his parent department. We are also of the conscious opinion that as the deputation was conditional one, when such approval was not granted by the Department of Personnel and Administrative Reforms, the authority has to pass the order of cancellation of deputation and to take a decision to repatriate the respondent-writ petitioner to his parent department. Under the above circumstances, we are of the opinion that the Director General who happens to be the subordinate authority of the Executive Council was not vested with power to 10 repatriate the respondent and to cancel his deputation and sent him to the parent department under the guise of not receiving approval from the Department of Personnel and Administrative Reforms. Nothing prevented the authority in placing the matter before the Executive Council for appropriate direction on the basis of approval not being received in the case of respondent, but the record goes to show that no such action has comeforth from the concerned department to place the matter before the appropriate authority before passing the order of cancellation of deputation. Under the above circumstances, we are not in agreement with the statement made in the supplementary affidavit to the effect that the Director General is vested with the power to pass orders against the decisions taken by the Executive Council as it is the Executive Council alone who has to take a decision with regard to the repatriation of the respondent, for the reasons that the Executive Council has to upheld the approval of repatriation which was perhaps conditional one. Under the above circumstances, the same authority ought have to passed the orders as no 11 material has been placed before us by the appellants to show that the Director General has been vested with the powers to pass an order against the resolutions of the Executive Council. Under the above circumstances, we concur with the opinion expressed by the learned Single Judge. Accordingly, we confirm the order passed by the learned Single Judge and dismissed the appeal. However, we make it clear that a fresh look can be given by the Executive Council in the matter. We are also of the opinion that the appellant may place the matter before the Executive Council for passing necessary orders, in case no approval is received from the Department of Personnel and Administrative Reforms. The report submitted by the Chief Secretary has become part of the record of this case. We direct that the matter should be considered on merits by the Chief Secretary after giving an opportunity of hearing to the respondent- writ petitioner, if the respondent is aggrieved against any order of the Chief Secretary, liberty is granted to question the 12 same before the appropriate forum in accordance with law. With the above observation, the appeal is dismissed. Ashwini (T.Meena Kumari,J.) (Akhilesh Chandra, J.)