Surendra Singh Gaur vs State Of M.P. And Ors

Brief facts which are necessary to dispose of this appeal are as under:

Therefore, the appellant from the very beginning was fully aware that his past service in the Agriculture department would not be counted in the Irrigation department in computing his seniority. The appellant opted and applied for transfer and absorption in the Irrigation department having the knowledge that there would be greater chances of promotion in the Irrigation department. On his absorption in the Irrigation department, the appellant `was released from the Agriculture department and consequently, he had lost his lien to the post previously held by him in the Agriculture department. Now, the appellant upon absorption in the Irrigation department had to be governed by the conditions of service in the Irrigation department.

It may be relevant to mention that the department of Agriculture by order dated 16.7.1982 gave the appellant proforma promotion to the post of Agriculture Engineer in the Agriculture Service Class-I. The case of the respondents, is that the Irrigation department could not give benefit of past service in the Agriculture department to the appellant more particularly, when the services of the appellant were not borrowed by the Irrigation department but the appellant voluntarily sought transfer and absorption in the Irrigation department In other words, the appellant was transferred on his own volition and request, therefore, his service conditions were governed by the rules of the Irrigation department.

In the counter-affidavit, the respondents further asserted that an employee has a right to continue in his department and maintain seniority, but according to Rules he cannot get transferred and be absorbed in another department and take benefit of the past service of the erstwhile department. Therefore, on transfer to the Irrigation department on his own request, wherein he was permanently absorbed from the date of his taking over charge, he had lost his lien in the Agriculture department and ceased to be an employee of the Agriculture department. Therefore, promotion, if any, could be given to the appellant on the basis of his service in the Irrigation department. The appellant made representation to the Irrigation department regarding ex-post facto merger (absorption) on the post of Executive Engineer. A reply to the representation was sent on 8.8.1983. The same is reproduced as under:

The Irrigation department gave the option to the appellant to go back to the Agriculture department, but the Agriculture department refused to take back the appellant because according to the Agriculture department he had lost his lien in the department and the Agriculture department was not under any obligation to take back the appellant. Thereafter, the appellant filed a writ petition before the High Court of Madhya Pradesh, Indore Bench at Indore (M.P.No. 145/87) praying that "A writ direction or order as may be deemed fit be issued so that the petitioner is placed in service at his proper post with proper pay to which he has become entitled to. Cost of this petition be also awarded to the petitioner."

The Tribunal gave opportunity to the - State Government to file its reply but for seven long years no reply was filed and ultimately the petition was disposed of by the Tribunal without hearing the State Government. The Tribunal after noting the relevant facts observed that according to the service jurisprudence, an employee has a right to continue in his department. He has no right to get transferred to some other department and thereafter claim benefit of his past service. The Irrigation department absorbed the appellant on his own request as an Assistant Engineer on transfer on permanent basis. As a result, the appellant had lost his lien in the Agriculture department He ceased to be an employee of the Agriculture department. The refusal of Agriculture department to accept him back on transfer in the Agriculture department, Engineering Services was well within the jurisdiction of the Agriculture department. The Tribunal did not find any infirmity in the approach of the respondents.

The appellant appeared in person. We have heard him at length and also considered his written submissions. The appellant argued that there is no provision in the Rules for transfer of an employee from one department to another on personal request of a Government servant. The appellant sought transfer to the Irrigation department in his own interest, but just because he was not extended the benefit of past service he cannot be permitted to take a total somersault. Despite this, on the appellant's representation, the Irrigation department vide order dated 8.8.1983 (which has been quoted in the preceding paragraph) mentioned that in case he wanted to go back to the Agriculture department, the Irrigation department had no objection. The Agriculture department refused to take back the appellant on the ground that on his absorption in the Irrigation department, he had lost his lien in the Agriculture department. In this view of the matter, in law, the Agriculture department cannot be given direction to take back the appellant and give him a higher rank. The Tribunal was justified in not directing the Agriculture department to take back the appellant because he had lost his lien in that department on absorption in the-Irrigation department. However, the Tribunal appropriately gave direction for financial benefit to the appellant according to the provisions of the M.P. Fundamental Rules, 1960.

The Tribunal observed that the Agriculture department cannot be directed to take back the appellant and give higher rank with reference to his juniors in the Agriculture department. Since the appellant on his own volition had gone to Irrigation department and after his absorption in the Irrigation department had lost the lien in the Agriculture department, therefore no direction can be given now to the Agriculture department.

We have carefully considered the submissions of the appellant and the respondents. We find no infirmity in the impugned order of the Tribunal. No interference is called for. The appeal being devoid of any merit is accordingly dismissed. In the facts and circumstances of the case, we direct the parties to bear their own costs.