IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3435 of 1997 Anil Kumar Singh, son of Shri Kamleshwar Prasad Singh, resident of Village Gorainpur, P.S. Awtarnagar, District Saran (Chapra). --------- Petitioner Versus 1. The Union of India through the Secretary, Ministry of Non- Conventional Energy Sources, New Delhi. 2. The State of Bihar, through the Secretary-cum-Commissioner, Energy Department, Bihar, Patna. 3. Bihar Renewal Energy Development Agency, Lal Kothi (Shikarpur House), Dr. T.N. Banerjee Road, Chajjubagh, Patna-1 through the Director. 4. The Chairman, Bihar Renewable Energy Development Agency, Lal Kothi (Shikarpur House), Dr. T.N. Banerjee Road, Chajjubagh, Patna. 5. The Special Secretary, Energy Department, Government of Bihar, Patna. 6. The Project Director, National Programme on Improved Chullah, Technical Back-up Support Unit, Mechanical Engineering Department, Bihar College of Engineering, Patna. 7. The Additional Secretary, Energy Department, Government of Bihar, Patna. --------- Respondents ----------- For the Petitioner :- Mr. Vindhya Keshari Kumar, Sr. Adv. Mr. Vijay Anand Singh, Adv. For the Respondents BREDA :- Mr. Manu Shanker Mishra, Adv. ----------- P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (18.07.2011) Mihir Kumar Jha. J. Heard Mr. Vindhya Keshari Kumar, learned senior counsel for the petitioner and Mr. Manu Shanker Mishra, learned counsel for the Bihar Renewable Energy Development Agency (hereinafter to be referred to as ‘BREDA’). In this writ application, the petitioner has assailed the correctness of the two orders dated 31.3.1993 (Annexure-10) and 1.9.1995 (Annexure-18 & 18A), whereby and 2 whereunder, Nanhak Sharma and Mahendra Prasad Sinha, while continuing on deputation, have been absorbed on the post of Technician in BREDA. The petitioner has also sought for a consequential relief of his being absorbed in the services of BREDA with effect from 1.4.1993. Learned senior counsel for the petitioner has submitted that the petitioner once being brought on deputation from his parent employer and having been given some sort of assurance by way of his consideration of case for absorption, could not have given an unceremonial send off specially when the respondents have absorbed similarly situated persons on deputation including Nanhak Sharma and Mahendra Prasad Sinha. He has also submitted that it was in fact the scheme of BREDA well set out in the Article of Association that its activities would be maintained and carried out by use of deputed employees and such deputed employees, with the consent of the parent employer, could be absorbed in the service of BREDA. In this regard, he has also highlighted the letter written by the authorities of BREDA to the 3 parent employer of the petitioner seeking their consent for absorption of the services of the petitioner in BREDA and on that basis, he has proceeded to make submission that the petitioner had a right to be absorbed in the BREDA. In this context, he has also placed reliance on the judgment of the Apex Court in the case of Pramod Kumar Shahi & Ors. Vs. State of Bihar & Ors. reported in 1995(1)PLJR 108 SC. Mr. Mishra, on the other hand, has submitted that all said and done, the tenure of deputation of the petitioner in BREDA was for a period of two years and when BREDA on account of financial reasons could no longer afford to continue the services of the petitioner and one more person working on deputation in the National Program on Improved Chullaha, it had to do away the order of deputation. He has distinguished the cases of the two persons whose services were later on absorbed on 1.9.1995 after more than two years of terminating the deputation of petitioner on 31.3.1993 by taking a plea that the post of Coordinator in specified program of Technical Cell for Improved Chullaha could not be compared with the work which was being 4 done by the two persons on the post of Technician in other schemes. Mr. Mishra has also relied not only on the judgment of the Apex Court in the case of Ratilal B. Soni & Ors. Vs. State of Gujarat & Ors. reported in 1990 Supp. SCC 243 and in the case of Andhra University through its Registrar Vs. M. Sivaram & Ors. reported in AIR 1994 SC 1668 but also on the order of this Court in the case of Ratan Kumar Vs. The State of Bihar & Ors. in CWJC No. 913 of 1998 disposed of on 19.2.1998. In the considered opinion of this Court, the first and foremost question which would be begging for answer is the right of the petitioner to continue on deputation. The petitioner knew very well when he was deputed to BREDA that his tenure was only for a fixed period of two years. It is not in doubt that that the tenure of a period of deputation of two years was duly communicated to the petitioner and on the strength of it he could have continued in BREDA only till the month of May, 1993. BREDA in fact is a Government owned and controlled society, which has taken up a number of schemes for developing the alternative source of renewable energy, solar 5 energy being one of them. The concept of Chullaha under solar energy programme in fact was an innovation of the Government of India, which had undertaken a national program and BREDA for such scheme was given the financial assistance on the basis of which it had carried out the project but, when the Government of India itself had closed down its project of Improved Chullaha and had decided that the respective State Government should bear the expenses and take such scheme under their own control, it was well beyond the financial means of BREDA to continue the deputation of the petitioner. The very fact that not only the services of the petitioner working as Coordinator on deputation but even that of one Vimal Sagar, Assistant Director also deputed from the technical wing of Bihar Engineering College, Patna, was terminated by the same order by itself would go to show that the petitioner was not picked up for any individual discrimination or by way of retaliation. To that extent, this Court would also not find any merit in the submission of Mr. Kumar where he had seriously tried to assail the impugned order as a product of 6 malice of the authorities of the BREDA. Allegation of malafide has to be specific and the person against whom such allegation has to be made is again to be made party to the writ application. Reference in this regard may be made in the judgment of the Apex Court in the case of S. Pratap Singh Vs. State of Punjab reported in AIR 1964 SC 72. This court would also not find that the action of the respondents in repatriating the services back to the parent organization of the petitioner was malafide either on fact or in law. It cannot be malice on fact because the petitioner was deputed in BREDA along with one Vimal Sagar and their services were also dispensed with on account of stoppage of the financial assistance. It is also not malice in law because the action taken by the BREDA despite at one point of time considering the proposal for absorption of the petitioner has itself explained by the Bihar College of Engineering, the employer of the petitioner, which had in no uncertain terms in the letter of Government of Bihar had advocated that the scheme should be allowed to be continued with BREDA as is 7 clearly reflected from the following passage, which is the excerpt of the letter of the University Professor & Dean Engg., Bihar College of Engineering, where the petitioner was working before being sent on deputation to BREDA. In the said letter dated 8th July, 1994, it was clearly mentioned as follows:- “-------A Technical Back-up Support Unit was set-up by the Department of Non-conventional Energy Sources, Govt. of India, New Delhi at the Bihar College of Engineering, Patna, However, the DNES decided to hand-over the responsibility of Technical Support to the Programme to the respective State Governments, and the Department of Energy, Govt. of Bihar, sponsored the Technical Back-up Unit through BREDA w.e.f. September, 1993. The Technical Back-up Unit under the NPIC in the Department of Technical Engineering, Bihar College of Engineering, Patna has adequately trained staff well qualified to carry- out R&D activities and manpower training etc. They can play vital role and contribute a lot of further strengthening the National Programme in the State of Bihar. In my opinion, their services can be better utilized by setting up a „NPIC Technical-Cell‟ under the direct control of BREDA, Patna. Such a „Technical Cell‟ can be sanctioned till the continuation of the National Programme and can be 8 funded jointly by the DNES, New Delhi and the Department of Energy, Govt. of Bihar, Patna. The Bihar College of Engineering, Patna, if called for will be prepared to extend all necessary expertise and technical support in setting-up such a „Technical-Cell‟ under BREDA, Patna.” It would thus be clear that the action of BREDA in terminating the deputation of the petitioner was based on the closure of the scheme and stoppage of the financial incentive. The right of the deputationist to continue in the deputed place in preference to the own organization stands well settled and in this regard, one can only refer to the observations made by the Apex Court in the case of Ratilal (supra) wherein it has been held that a person being on deputation can be reverted back to the parent cadre at any time as he does not get right to be absorbed on the deputed post. The reliance placed by Mr. Kumar on the judgment of the Apex Court in the case of Pramod Kumar Shahi (supra) is also wholly misplaced which infact is not only distinguishable on fact but even otherwise no law can be said to have been laid down 9 therein in view of the observations made by the Apex Court in exercise of power under Article 142 of the Constitution. It may be found from the factual background of that case that 23 persons were working in Primary Agriculture Co-operative Society in Sitamarhi district and their services were taken over on deputation as assistant in Sitamarhi Cooperative Bank and while the services of 19 of them were already absorbed in the Bank, the four persons were given a discriinatory treatment and as such, when the matter went to the Apex Court, the issue which had weighed upon the Apex Court to pass an order in terms of Article 142 was the existence of vacancy in the Bank. It was in this background that when the Apex Court had found that there were sufficient vacancy and that the case of the four of them, who were not absorbed in the Bank, could not have been distinguished with other 19 already absorbed in the Bank that the Apex Court had passed the following order:- “5. In order that this controversy be settled we asked the learned counsel for respondent No.5 whether it would not be appropriate that the appellants and the intervenors be 10 absorbed against the existing vacancies of Assistant/Cashier and Loan Officers in the Bank. Sri Saran, appearing for the respondent Bank would leave the matter to the Court finds reasonable to settle the controversy. In the facts and circumstances of he case and in view of the long period over which these persons have functioned in the posts it is proper that they should be absorbed in the service of the Bank.” One fails to understand as to how this part of direction of Apex Court, purely in exercise of its power under Article 142 of the Constitution of India can be followed by this Court as a precedent for allowing the petitioner to be retained and/or absorbed on the deputed post. The petitioner had not even completed two years whereas the persons who were before the Apex Court had continued for more than ten years on deputation and, therefore, when there is also no vacancy for the petitioner in the program in which they were deputed in BREDA, the Chullaha Program having been already taken away from the control of BREDA by the Government of India, it would be very difficult for this Court to find the applicability of the aforementioned 11 judgment of the Apex Court in the peculiar facts and circumstances of the case of Pramod Kumar Shahi (supra). The rest of the submission of Mr. Kumar that there is a guideline already available in BREDA for absorption of the person on deputation or that others on deputation were absorbed in BREDA would not impress this Court, inasmuch as, BREDA has a number of schemes and if in one of the scheme the absorption of the petitioner was not possible on account of its closure and withdrawal of the financial assistance by the Government of India, that would not mean that BREDA itself had become defunct or that its entire activity had come to an end. Here was a question of absorbing the petitioner in a particular program. His case, therefore, cannot be compared with the two technicians whose services were required in a different program altogether. In fact, Mr. Mishra seems to be correct in placing his reliance on the judgment of Apex Court in the case of M. Sivaram (supra) that if any claim of the petitioner still could have subsisted even after termination of his deputation by the 12 impugned order, it was only against the Bihar College of Engineering where the petitioner came to be appointed and from where the services were sent on deputation to BREDA. That being so, this Court does not find any merit in this application. The impugned order contained in Annexure-10 being passed on financial stringency of the BREDA, there would be no difficulty in holding that the petitioner’s deputation could have very well been brought to an end even before the completion of period of tenure of such deputation. Therefore, the challenge of the petitioner to the absorption of Nanhak Sharma and Mahendra Prasad Sinha who have been absorbed after more than two years of termination of deputation of the petitioner in the services of BREDA, is wholly misconceived specially when they have neither been made party to the writ application nor their case can be compared with the petitioner, who was a Coordinator in the Chullaha Program whereas those persons were Technician in the Wind Energy/Solar energy. The overemphasized submission of Mr. Kumar that the aforesaid two persons were 13 working in a private firm or that the petitioner was brought against a sanctioned post and, therefore, the petitioner ought to have been preferred will be virtually going into the matter of policy or administrative discretion, which this Court would refuse to do so as because it has found good and germane reason for termination of deputation of the petitioner. Thus considering the matter from all possible angles, this Court would not find any merit in this application and, the same is accordingly dismissed. There would be however no order as to costs. Patna High Court Dated the 18th July 2011 A.F.R./Rsh (Mihir Kumar Jha, J.)