JUDGMENT

1. This is an appeal against the order of the Subordinate Judge of Mayavaram refusing to accept the bid of <NAME>, the appellant, for taking on lease certain property, the subject-matter of a suit before the <ORG>, and directing a re-sale. What happened was, the Receiver, who had been appointed in the suit, was directed by the <ORG> to sell by public auction the lease of certain lands in suit for a year. The conditions of sale were printed and the printed leaflets were circulated. The Receiver held an auction in which the appellant before us, <NAME>, was the highest bidder. When the matter was taken to the Sub-Judge for confirmation, he refused to accept <NAME>'s bid and directed a re-sale. It is against that order that this appeal is filed.

2 The appellant contends that a completed contract had been entered into with him by the Receiver and that the <ORG> should, therefore, have directed a lease to be executed in his favour in the terms of his bid. At the re-sale ordered, the second respondent took the lease at a higher rate. A preliminary objection has been raised to this appeal that no appeal lies. The appeal has been filed under Order XLIII, Rule 1, Clause (s) as against an order under Order XL, Rule I, Civil Procedure Code. We need not, however, decide this question, as we think that, on the merits, the appellant has no ease. The Receiver is an Officer of <ORG> and whatever powers he exercises are delegated powers of the <ORG> which the <ORG> expressly gives him. He has no nowers except what the <ORG> grants him. Unless the appellant can show us that in this case the <ORG> has delegated its power of entering into a completed contract with third parties to the Receiver, any action taken by the Receiver cannot be binding upon the <ORG> or upon the properties. All that the appellant is able to show us is that he made the highest bid and that the published conditions of sale did not expressly state that the <ORG> was subject to the confirmation of the <ORG>. The absence of such a statement cannot, in our opinion, be treated as implying that the <ORG> had abandoned its power of confirming the sale before it would take effect. No doubt the ordinary rule regarding private auction is, that where an auction is held without any reservation, there is an implied condition that the highest bid will be accepted; but no authority has been cited to show that that rule applies to a sale by a <ORG> Officer under the directions of <ORG>. In <ORG> sales, it is acceptance by the <ORG> that constitutes the contract. <CITATION> (1888) 15 Cal. 253. The person who asserts that the <ORG> Officer had power to bind the <ORG> by his acceptance of a bid must prove it. The appellant has not been able to refer us to any evidence to show that such a power had been granted by the <ORG> in this case. We must, therefore, hold that the <ORG> bad ample authority as no contract had been concluded with him and the <ORG>'s order directing a re-sale was within its powers. The appeal fails and is dismissed with costs (costs one set).

3. C.R.P. No. 943 of 1923 is dismissed with costs.


PETITIONER: STATE OF PUNJAB & ORS. Vs. RESPONDENT: INDER SINGH & ORS. ETC. DATE OF JUDGMENT: 14/10/1997 BENCH: A.S. ANAND, S. RAJENDRA BABU ACT: HEADNOTE: JUDGMENT:

WITH CIVIL APPEAL NOS 8302/95 AND 1939/97 AND CIVIL APPEAL NOS 7137-38 AND 7145-47 OF 1997 (Arising out of SLP (C) Nos. 2584, 4937, 3679, 3745 and 12685 of 1996) J U D G M E N T D.P. Wadhwa J.

Leave granted in all the special leave petitions. In this batch of appeals, it is the State of Punjab in <ORG> which is the appellant. There are in all 18 respondents. They were all enrolled as Constables in <ORG> and later deputed to <ORG> (CID) of <ORG>. During the course of their deputation, they earned promotions on ad hoc basis and some of the respondents reached the rank of ad hoc Sub-Inspectors. When they were sought to be repatriated to their parent departments, they were to go back as Constables or Head Constables if in the meanwhile on deputation they earned any promotion in their parent departments. They had served long years in the CID and the prospect of going back as Constables was not to their liking. They, therefore, approached <ORG> and Haryana by filing writ petitions which were allowed to an extent. <ORG> did say that the order of repatriation of the respondents being legal could not be set aside as such. However, directions were issued that the cases of the respondents in their parent departments to considered for promotions on the relevant dates when person junior to them were promoted at different levels and, if necessary, even to relax the rules. In some of the cases two directions were given, namely, (1) if the respondents sought voluntary sought voluntary retirement from the posts they were holding in CID, the order of repatriation would not come in their cases for voluntary retirement be considered on the basis of the posts they were holding in CID; and (2) to determine the seniority of the respondents in their parent departments by giving them the benefit of service they rendered in CID and consequently to be considered for promotion with effect from the date the persons junior to them were promoted.

To understand the rival contentions, we shall consider the case of <NAME> one of the respondents (CA Nos. 1293-1303 of 1996). He was enrolled in <ORG> on August 31, 1966 as Constable and on April 13, 1969 was sent on deputation to <ORG> in the same rank. He was sought to be repatriated on September 15, 1990 while he was holding the rank of ad hoc Sub-Inspector. During this period of deputation, <NAME>, by order dated February 19, 1985 was promoted as officiating Head-Constable after giving him exemption under the relevant rules which we will consider hereinafter. In the parent <ORG>, he was holding the substantive rank of Head Constable. During the pendency of the writ petition in <ORG>, we are told that there was stay of order of repatriation. <NAME> was not, however, given any posting till the judgment was delivered by <ORG>. On November 7, 1994, he was posted in the <ORG> unit at Faridkot. However, this joining was subject to final decision of the present appeal. This <ORG> at the time of the admission of the special leave petitions granted status quo which is continuing. The appellant has, therefore, contended that from the date of repatriation, <NAME> remained absent uptil November 6, 1994. Taking into account this period of four years, <NAME> was on deputation in <ORG> for over 28 years. We may note that the <ORG> has not taken any action against <NAME> for his alleged absence from the date of the order of repatriation till the order of this rejoining <ORG> and his posting at Faridkot. The High <ORG> in granting relief to respondents negatived the contention of the <ORG> that the respondents could not be promoted to higher posts in their parent departments without passing the various departmental examinations as per the relevant Rules. That was how <ORG> dealt with these contentions first by allowing the writ petitions by the learned <NAME> judge and then on appeal before <ORG> filed by the <ORG> against the judgment of the learned single Judge. The High <ORG> was of the view that in terms of sub-rule (3) of Rule 21.25 of <ORG> Rules, when an officer borne on the rolls of a district or range reached a place in seniority which would entitle him to be considered for substantive promotion if he were serving in the establishment to which he belonged permanently, he shall be informed and given the opportunity to return to the district police force. The <ORG> said that admittedly, the writ petitioner, who was sent on deputation to the <ORG>, was not so informed and given the opportunity to return to his parent <ORG> when he was entitled to be considered for substantive promotion to the higher post. As held by the learned single Judge, the appellant who failed in its statutory duty to inform the petitioner when his juniors in the parent department were considered for promotion to the higher post, could not take advantage of its own wrong. The writ petitioner while on deputation to <ORG>, Intelligence <ORG>, was found fit and had been promoted as Sub-Inspector on 12th December, 1989, and was holding that post on the date when the order for the repatriation to his parent department was issued. The High <ORG> said that in view of such peculiar facts, it would be a good ground for relaxing the rule for considering him for promotion to the higher post with effect from the date his immediate juniors were so promoted in accordance with the directions given by the learned Single Judge. The respondent in the writ petitions had prayed for writ of certiorarl for quashing the order of repatriation and a writ of mandamus directing the petitioner to absorb him in <ORG> (Intelligence <ORG>) where he had put in 23 years of service or directing the petitioner to determine the seniority of the respondent in his parent department after giving him benefit of service which he had rendered for 23 years in the <ORG> and consequently to promote him from the date when his juniors were promoted.

The Rules are called Punjab Police Rules and have been framed under the Police Act 1861. It is not necessary for us to quote the relevant Rules in extenso except Rule 21.25 dealing with deputation to CID which is as under:

"21.25(1) Upper and lower subordinate posts other than those of inspectors in <ORG> shall be filled by the deputation of suitable men from districts for periods three years extensible by not more than two years at a time at the discretion of the Deputy Inspector-General, <ORG>.

(2) A Police officer on deputation to <ORG> will retain his original position in the cadre of his district or range. While in <ORG> he will be eligible for officiating promotion in that branch; on reversion from <ORG> he will assume his place in his original cadre. Officiating promotion may be given in the district or range in the place of an officer deputed to <ORG>, such officiating post lapsing on the officer's reversion.

(3) When an officer borne on the rolls of a district or range reaches a place in seniority which would entitled him to be considered for substantive promotion if he were serving in the establishment to which he belongs permanently, he shall be informed and given the opportunity of returning to district police work. No officer on deputation to <ORG> shall be substantively promoted to head constable or higher rank unless both the Deputy Inspector-General, <ORG> and the Deputy Inspector-General, <ORG> and the Deputy Inspector-General of the range to which he belongs agree that he is qualified for such promotion by all the prescribed standards.

(4) The Deputy Inspector-General, <ORG>, may make recommendation on behalf of, sub-inspectors serving under him to the Deputy Inspector serving under him to the Deputy Inspector-

General of the range and the Inspector-General of Police, respectively, for promotion to the selection grade or admission to List F. A sub-inspector who becomes eligible while serving in <ORG> for grade promotion in the selection grade, shall receive such promotion, if the Deputy Inspector-

General of the range and <ORG> agree that he is fit for it.

(5) Annual reports on upper subordinates serving on deputation in <ORG> shall be sent by <ORG>, to the range Deputy Inspector-General concerned for record and other necessary action.

(6) In very exceptional cases and for the political branch only and with the written sanction of the Deputy Inspector-General personally, direct enrollment as constable or in higher ranks, may be made to <ORG>.

Specialists shall, however, when possible, be entertained on contract terms control, terms, so that their services may be dispensed with then their utility ceases or deteriorates.

21.25(A) The Deputy Inspector-

General, <ORG>, shall have complete disciplinary control over all police offices while serving in the <ORG>."

Rules also described the duties of <ORG> by that is not necessary for us to refer to.

Rules relating to promotion and deputation are quite specific and there is no ambiquity about them. Each district/Range (Districts are grouped into Ranges) has its own cadre of officers upto certain ranks. We are concerned with the rank upto Sub-Inspector. Promotion from one rank to another and from one grade another in the same rank is on the basis of selection-cum-seniority. What factors are to be taken into consideration for promotion have been set out in Rule 13.1 and which are of general nature. Upto the rank of Sub-Inspector five lists A,B,C,D and E are to be maintained for the purposes of promotions from the Constable and contain the names of the candidates as per their seniority after they have fulfilled the specified requirements. List A contained the names of the Constables who were eligible for promotion to the selection grade and is maintained by the Superintendent of Police of the District. List B contains the names of all Constables selected for admission to the promotion course for Constables at <ORG>. Selection is made in the month of January each year and is limited to the number of seats allotted to the district for the year with twenty per cent reserve. <ORG> is constituted which conducts tests in general law (Indian Penal Code , Criminal Procedure Code , Indian Evidence Act and Local and Special Laws), interviews and examination of records and prepares the merit list, Rule 13.7 (2) prescribes the eligibility criteria of the Constables who are to be entered in List-B. Those Constables who have passed the Lower School Course at <ORG> Phillaur and are considered eligible for promotion to Read Constables are entered in List-C. Promotions to Head Constables are made in accordance with the principles set out in Rule 13.1(1) and (2). Selection grade Constables who have not passed the Lower School Course but are otherwise considered suitable can be promoted to Head Constables upto a maximum of ten per cent of vacancies but that can be done with the approval of the Deputy Inspector-General of Police. Similarly D List is maintained for selection for admission to the promotion course for Head Constables at <ORG> is made from amongst, all the confirmed Head Constables. Eligibility for admission to the promotion course for Head Constables is prescribed in Rule 13.9(1). Those Head Constables who qualify at <ORG> in the promotion course for Head Constables find their names entered in Part-I of List-D. Rule 13.9(2) prescribes that names of outstanding Head Constables who have not passed the promotion course for Head Constables due to being over-age but otherwise are of exceptional merit and are considered suitable may, with the approval of Inspector-General of Police, be entered in Part II of List D. Further under this sub-rule no more than in per cent of the posts of Assistant Sub-Inspectors will be filled from the names in Part II of List D. Promotions to the post of Assistant Sub-Inspectors are to be made from List D (Part II). Similar procedure is prescribed for promotion of all Assistant Sub-Inspectors to Sub-Inspector from List E (Part-I) which contains the names of Assistant Sub-Inspectors who qualified for promotion course for Assistant Sub-Inspectors at <ORG> List E is also in two parts. Part II of List E contains the names of Assistant Sub-Inspectors of exceptional merit who have not qualified the course for Assistant Sub-Inspectors at <ORG> and are considered suitable for promotion.

<ORG> does not have a cadre of its own officers upto the rank of Sub-Inspectors. Rules 21.25 states that posts other than those of Inspectors in <ORG> shall be filled by the deputation of suitable men from districts for period three years extensible by not more than two years at a time at the discretion of the Deputy Inspector-General, <ORG>. A police officer on deputation to the <ORG> retains his original position in the cadre of the district or range. While in the <ORG> he is eligible for officiating promotion in that branch but on reversion from <ORG> he assume his place in his original cadre. Sub-rule (2) of Rule 21.25 also prescribes that officiating promotion may be given in the district or range in the place of an officer deputed to <ORG> but such officiating post lapsing on the officer's reversion. Under sub-rule (3) of this rule when an officer while on deputation in <ORG> reaches a place in seniority in his district he is entitled to be considered for substantive promotion as if he was serving in that district but he shall be informed and given the opportunity of returning to his district police work. This sub-rule further prescribes that no officer on deputation to <ORG> shall be substantively promoted to Head Constable or higher rank unless both the Deputy Inspector-General, <ORG> and the Deputy Inspector- General of the range to which the officer belongs agree that he is qualified for such promotion by all the prescribed standards. It would appear that under this sub-rule <NAME> while on deputation with <ORG> earned his promotion as officiating Head Constables without his having to have passed Lower School Course in Phillaur and thus promoted to Head Constable out of 10 per cent of vacancies as having been found suitable for the promotion.

In the writ petition of <NAME> he raised the following four questions which according to him needed consideration:

"i) Whether the respondents were bound to absorb the petitioner in the C.I.D. Intelligence department where he had put in 23 years service and had excellant and unblemished service record?

ii) Whether the respondents are justified in repatriating the petitioner after more than 23 years of service and that too without giving him any benefit of 23 years of service which he has rendered in <ORG>?'

iii) Whether the respondents are justified in repatriating the petitioner as constable to his parent department when his juniors have been promoted and are working on the post of sub Inspectors and Inspectors?

iv) Whether the order of repatriation is discriminatory and violative of Articles 14 and 16 of the Constitution of India?

As to what relief <ORG> granted we have noted above.

We find that the respondents have not challenged their repatriation to their respective districts on the rolls of which they are borne but what they contend is that they should hold the same position there as they were holding in <ORG>. They submitted that while they were on deputation to <ORG> their juniors have been promoted and now if they go back they have to work under them. These contentions do not appear to us to be correct. For one the respondents do not have any right to hold on the post which they were having in <ORG> in their parent department and (2) they were holding the posts in <ORG> only on and hoc basis. Appellants have brought on record a chart to show that even Constables who were senior to the respondents are still working as Constables as they could not qualify for further promotion in terms of the Rules mentioned above. In the case of <NAME> no Constable junior to him has been promoted and there are 65 Constables who are senior to <NAME> who are still working as Constables. Respondents have been contended that as per sub-rule (3) of Rule 21.25 they were never informed and given no opportunity of returning to their respective districts after they reached their places in seniority of their districts entitling them to be considered for substantive promotion. In the case of <NAME> appellants have stated that old record of test for List-B was not traceable. However, <NAME> has given his unwillingness to undergo Intermediate School in the term commencing with effect from April 1, 1990 to October 1, 1990. For promotion from Constable to Head Constable passing of B-1 test is a must. <NAME> was not eligible to appear in the test for the first three years as he had not completed three years of service. Subsequently also he did not appear in any test held for the purpose. However, he was promoted on February 19, 1985 as officiating Head Constable by order of the Senior Superintendent of Police, Ludhiana from List C having been given exemption. Appellants have stated that since test is held in January every year circular/letters are issued to the organisations including then <ORG> where their employees are working asking them to appear in the test. This test is held on the same date throughout the State. The Constables who are eager to compete are always on the alert to appear in the test as it is known to all the Constables that the test is being held. Appellants have also brought on record that apart from the fact that every Constable on deputation in <ORG> would come to know of the test, the respondents were also individually informed except that in the case of one or two of the respondents records were not available to show that they had also been individually informed of the test being held. On the dates of holding of the test eligible candidates assemble at the prescribed place where the test is conducted. Several Constables serving in the <ORG> on deputation appeared in B-1 test. So it is very well known to every Constable wherever he may be, the appellants submit. It would, therefore, appear to us that there cannot be any excuse that the candidates were not aware of the holding of the test.

It is when submitted that deputation to <ORG> could not exceed a period of five years after the expiry of this period the respondents should have been sent back to their respective districts and that after all this period on deputation to <ORG> now asking them to appear in test would not only be irregular but arbitrary as well. We do not think that sub-rule (1) of Rule 21.25 limits the deputation to <ORG> for a maximum period of five years. In the first instance deputation is for three years and it can be extended for not more than two years at a time. It cannot be said that after three years the extension is for further two years and no more. We have to give an ordinary meaning to the words used in the sub-rule. We, however, agree with the respondents that every time deputation was extended they should have been informed of their rights in <ORG> while on deputation vis-a-vis their parent department.

Mr. <NAME>, learned counsel for the appellants, State of Punjab, submitted that repatriation of the respondents was necessary as Government thought of injecting fresh blood in CID. It appears to be rather a specious plea. It is not disputed that officers having put in more years than the respondents are still working on deputation in CID. No reason is forth-coming as to why the respondents are the only persons who are picked up to be repatriated. But since this question was not raised in these terms we are not called upon to decide the same.

It was then submitted by the respondents that deputation to <ORG> had no meaning as all the police departments in the State are headed by the Inspector General of Police who is also the administrative head of <ORG>. Reference in this connection was made to Rules 1.2, 1.4 and 1.5. It is, however, not necessary for us to refer to these Rules as we do not find any substance in this contention. Rules are statutory and each district/range in the State has a separate cadre of its officers. There is no cadre of officers upto the rank of Sub inspector in <ORG> and the officers upto this rank are drawn from various districts in the State. Merely because the administrative head of all the police departments in the State is one it cannot be said that there can no rule for deputation to a particular department in the whole of the police establishment in the State. If we refer to the Rule 21.25 Deputy Inspector General, <ORG> has complete disciplinary control over all the police officer while serving in that department. On this very reasoning, there is no scope for the argument that respondents be absorbed in <ORG> as this <ORG> has no cadre of its own upto the rank of Sub-Inspector.

It was then submitted that officers in CID are of exceptional merit and they have vast experience of conducting investigation and in fact they help the district police in the conduct of investigation and that they should be given exemption from appearing in tests or undergoing any training in <ORG> and that they should be promoted in 10 per cent quota meant for officers of special qualities. If that is done it will certainly be in violation of the statutory rules. Promotion has to be by prescribed standards. Moreover it is nobody's case that any vacancy exists to which the respondents could have been promoted. In any case we are not impressed with this argument.

Mr. <NAME> appearing for more of the respondents submitted that the case of <NAME> (CA 1297/95) was different. In his writ petition (No. 8979 of 1991) in <ORG> it was mentioned in order dated June 12, 1991 that <NAME> was working as Sub-Inspector in CID and was being repatriated as Head Constable to his parent department. <ORG> ordered that he shall be repatriated as Sub-Inspector and it shall be open to the authorities to determine his seniority in the parent department in accordance with law. On clarification sought by the <ORG> the court order dated March 6, 1992 states that it shall be open to the <ORG> to determine the seniority of <NAME> and post him to the post he was entitled to and that the order dated June 12, 1991 would not confer any benefit on him. We, therefore, fail to see how this case is any different or that <NAME> would be posted as Sub Inspector in his parent department on repatriation.

During course of arguments, certain decisions of this court were referred to on the question of deputation and the right of the deputationist on his repatriation. These, we may note. <CITATION> . [1991 Supp. (2) SCC 162], the appellant who was working as a Tracer in <ORG> Ahmedabad went to <ORG> by way of deputation. In the <ORG>, the appellant was promoted as Junior Draftsman and there was a proposal to promote him further as Surveyor-cum-Draftsman. But before this promotion could materialise, the <ORG> was wound up. The appellant was, therefore, reverted back to his parent department, i.e., <ORG> and posted as a Tracer and not as a Junior Draftsman. The appellant treated this as a reversion and challenged the same. This Court said that it was not reversion and that when the appellant left <ORG> and joined the <ORG>, he was a Tracer and he could go back only as a Tracer subject, however, that if in the meantime, while he was on deputation, he had qualified for promotion to a higher post in the parent department, that benefit could not be denied to him. The Court said that promotions earned by an employee on deputation did not enjoin any protection and that on repatriation, he could be accommodated only on its original post or to the post to which he stood notionally promoted in the parent department by having so qualified. <CITATION> . (1990) 1 SCR 414], the appellant who belonged to <ORG> was allocated to <ORG> on coming into force of <ORG>, 1961. He went on deputation as Circle Inspector in <ORG> and was later reverted back to his parent cadre in <ORG>. This was challenged by the appellant. This Court held that the appellant being on deputation could be reverted to his parent cadre at any time and he did not get any right to be absorbed on the deputation post. <CITATION> . [1994 Supp. (3) SCC 471]. it was held that when a deputationist was repatriated, he could not claim promotions in the parent department on the basis of officiation in higher post in the borrowing organisation. <CITATION> . Through Secretary, <ORG>, Administrative Reforms & Ors. [(1988) 8 SCR 147], the question before this Court which fell for consideration was whether the service rule requiring eight years of approved service as Section Officer both for the direct recruits as well as for promoters for being eligible for consideration for promotion to the Grade-I post in the <ORG> was arbitrary being in contravention of Articles 14 and 16 of the Constitution of India. This Court laid the following principle:

"The rule-making authority is competent to frame rules laying down eligibility condition for promotion to a higher post. When such an eligibility condition has been be Said that a direct recruit who is senior to the promotees is not required to comply with the eligibility condition and he is entitled to be considered for promotion to the higher post merely on the basis of his seniority. The amended rule in question has specified a period of eight years' approved service in the grade of Section Officer as a condition of eligibility for being considered for promotion to Grade I post of C.S.S. This rule is equally applicable to both the direct recruit Section Officers as well as the promotee Sections Officers. The submission that a senior Section Officer has a right to be considered for promotion to Grade-I post when his juniors who have fulfilled the eligibility condition are being considered for promotion to the higher post, Grade I, is wholly unsustainable. The prescribing of an eligibility condition for entitlement for consideration for promotion is within the competence of the rule- making authority. This eligibility condition has to be fulfilled by the Section Officers including senior direct recruits in under to be eligible for being considered for promotion. When qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment. Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless the fulfils the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion.

Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor it can over-ride it in the matter of promotion to the next higher post. The rule in question which prescribes a uniform period of qualified service cannot be said to be arbitrary or unjust violative of Articles 14 or 16 of the Constitution."

In view of the clear statement of law, the respondents before us cannot claim promotion in their parent department in contravention of statutory Rules as they do not satisfy the eligibility conditions.

<CITATION> . [], the appellant was appointed in <ORG> of the State Government as Second Division Clerk. He was sent on deputation to <ORG> which was then part of <ORG> as Assistant Civil Supplies Inspector. There he was promoted as Second Grade Civil Supplies Inspector. There was a seniority dispute between the appellant and Mr. <NAME> who was appointed in the Food Wind of <ORG>. The Court found that at all levels of appointments and promotions, the appellant was always senior to Mr. <NAME>. But fact remained that the appellant continued to be on deputation in the Food Wing of <ORG> right from 1967 to 1986. When the appellant was sought to be repatriated, he approached <ORG> which by order dated January 28, 1988 directed absorption of the appellant in <ORG> holding that he had not been given any performa promotion in his parent department and that there was no valid ground to reject his request for absorption and that the appellant was entitled for a direction to the respondents to absorb him in <ORG> in the post them told by him. The appellant was, thus, absorbed and was placed above <NAME>. The appellant was then promoted as Assistant Director on January 1, 1980. Similarly, <NAME> was also promoted as Assistant Director. The question before this Court was of the inter se seniority between the appellant and <NAME>. This Court agreed that as per Rules, the appellant could not have been sent on deputation to higher post than the post held by him in the parent Department. But then the Court said that he had uninterruptedly worked in <ORG> and under those circumstances though initially the appellant might have been mistakenly deputed to hold higher post in <ORG>, but "Since the appellant had obviously discharged his duties and higher responsibilities to the satisfaction of all concerned, at this distress of time, it is highly unjust to send him back to hold the post in the parent department which he was entitled to hold and the Tribunal is not right to interfere with action of the department in its absorption of the appellant as per its own earlier order". This judgment is quite distinguished and of no help to the respondents as the question which falls squarely for consideration before us was not there and the appellant in that case had been absorbed by the department. In the present case before us, there is no separate cadre to which the respondents or any one of them could be absorbed. <CITATION> . [], the appellant who was working in <ORG> as Inspector was sent on deputation to <ORG> at Nagpur. He remained there from 1961 to 1975 and earned promotion. His last promotion being that of Assistant Director. When he came back to his parent department, he was appointed as Assistant Director on ad hoc basis. While he was on deputation, his juniors in the parent department were appointed as Assistant Directors on ad hoc basis. After the decision of this Court in <CITATION> [] where it was held that all those officers who were appointed as Assistant Directors in <ORG> should be deemed to have been appointed substantively from the date of their ad hoc appointment. In consequence thereof, they became senior the appellant. This Court held that the appellant was similarly situated along with those who were granted benefit by this Court and merely because the appellant was working in the <ORG> at the relevant time, he could not be prejudiced. The Court extended the benefit given in <NAME> case (supra) to the appellant as well. Again this decision does not support the case of the respondents before us.

Concept of "deputation" is well understood in service law and has a recognised meaning. `Deputation' has a different connotation in service law and the dictionary meaning of the word `deputation' is of no help. In simple `deputation' means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also been in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head Constables s the case may be.

It is no doubt really harsh on the respondents to be sent back after they have served the <ORG> for number of years in higher rank though on ad hoc basis and now when they go back they have to work either as Constables or Head Constables. It was submitted before us that an employee could seek voluntary retirement after putting in 20 years of qualifying service and that <ORG> in the impugned judgment gave option to the respondents to seek voluntary retirement while still working in the <ORG> and holding higher ranks. This option can, however, be limited to only those respondents who have put in 20 years of qualifying service as per the relevant Rules. In our opinion, <ORG> was justified in giving such an option to the respondents to seek voluntary retirement. At the time when special leave petitions were filed against the impugned judgment of <ORG>, this Court directed that status quo be maintained while staying the impugned judgment of <ORG>. <ORG> in the writ petitions filed by the respondents granted stay of the orders of repatriation. After the impugned judgment, there was order of status quo by this Court. In this view of the matter, the respondents continued to be in the <ORG>. We affirm he impugned judgment of <ORG> to the extent that the respondents who put in 20 years of qualifying service in their parent departments and in <ORG> would be entitled to seek voluntary retirement from the ranks they are holding in <ORG> and the period of qualifying service would be counted upto the dare of this judgment. These options the respondents shall give within 30 days from the date of this judgment. The respondents who do not give such option and those respondents who have not put in 20 years of qualifying service would have to revert back to their parent departments.

It is in fact an admitted position that Constables on deputation to <ORG> have reached higher ranks and retired from <ORG> in those ranks. A hope, though not true, is instilled in officers like the respondents that they would continue in the <ORG> holding higher ranks till the age of superannuation. The conduct of the appellants now suddenly asking the respondents to go back to their parent departments when they have put in best years of their lives in <ORG> would appear to be rather unjust. It would have been more appropriate for the appellant to repatriate the respondents after the expiry of the initial period of deputation or at least they should have been told the consequences of their continuing on deputation and sudden repatriation. It would also be more appropriate, considering the fact that the deputation in <ORG> could be for any number of years, that the rules are amended and a separate cadre is created in <ORG> to absorb the officers, if they are on deputation for a number of years. It is submitted before us that Constables who have come on deputation to <ORG> retired while holding higher ranks in <ORG> and they earned their pension on the basis of their holding higher ranks though the pension was being paid by their parent department. This may be on the basis of relevant pension rules as applicable in the State. Now, if the respondents go back to their parent department and work their as Constables or Head Constables their emoluments would be reduced considerably and they would be deprived of getting higher pension when they retire.

Considering the whole aspect of the matter we affirm the order of <ORG> to the extent that option be given to all those respondents who have put in 20 years qualifying service to seek voluntary retirement from the <ORG> in the ranks they are holding and they will be deemed to have worked in <ORG> upto the date of this judgment. The option shall be given within 30 days.

Except as aforesaid the appeals are allowed and the impugned judgment is set aside. Writ Petitions filed by the respondents are dismissed. There will be no order as to costs.


JUDGMENT <NAME> <NAME>, C.J.

1. The question referred to us for decision is--

Is it open to an undischarged insolvent to maintain a suit regarding his after-acquired properties subject to the right of the Official Receiver to intervene in such proceedings?

2. In our view, upon the facts of this case this question does not arise and we are not disposed to enter into any further discussion of this question which is purely one of academic interest.

3. The facts of the case may be quite shortly stated. The insolvent was the plaintiff in <ORG>. He was also an undischarged insolvent. His case as set out in the plaint was that he got emeralds from one <NAME> for sale and that he gave them to the defendant in the suit for sale. The value of the emeralds was fixed, so he alleges, at Rs. 1,000 and it was agreed that the excess realised by the defendant by the sale should be shared equally between the plaintiff and the defendant. He sued to recover the emeralds or Rs. 1,000 the price of the emeralds and for Rs, 250 being his share, as he alleged, of the profits made by the defendant on the allegation that the defendant sold the emeralds for Rs. 1,500 and he asked for the return of the emeralds in case they were not sold by the defendant. Amongst other contentions the defendant raised the plea that: the plaintiff was an undischarged insolvent and was consequently not entitled to sue. An issue was taken upon that contention and the District Mun-sif found that the plaintiff was an undischarged insolvent, but that he could maintain the suit for recovery of the articles bailed. I wish to draw particular attention to the fact that the articles were described by the District Munsif as articles bailed. Then there was an appeal and the first <ORG> fixed the value of the emeralds at Rs. 800 and gave the plaintiff a decree for that amount only. The case came up on second appeal to this Court and the question of the maintainability of a suit by an insolvent with reference to after-acquired property was raised and in view of the fact that a Letters Patent Appeal raising this very point was then pending decision by a Full Bench, our learned brother <NAME>, J., adjourned the case until the Opinion of the Full Bench was delivered. The Letters Patent Appeal, however, abated and the matter again came before our learned brother who, in view of what appears to be a difference of view in a case decided by <NAME> and <NAME>, <ORG>., in <CITATION> (1923) 45 M.L.J. 827 and a later decision of <ORG> in <CITATION> (1927) L.R. 54 LA. 190: I.L.R. 54 C. 595: 52 M.L.J. 734 (P.C.) referred the case to us.

4. Upon the facts of this case the plaintiff's suit was divided into two parts: (1) relating to his commission of Rs. 250--that claim has been held against, and (2) for the return of or the value of the emeralds which he handed over to the defendant for sale. In our view, the first essential in the appellant's case is that the emeralds themselves or their cash value should vest in the Receiver as the after-acquired property of the insolvent under Section 28 of the Provincial Insolvency Act. That section deals both with the actual property of an insolvent at the time of his adjudication and property which may pass into his possession after the adjudication. In the case of property coming into his possession after adjudication--it is after-acquired property--that shall forthwith vest in the Receiver. There is another class of property dealt with in that section and that is the reputed property of the insolvent. Upon the facts of this case the value of the emeralds can in no sense of the word be described as the property of the insolvent. His own case was that this property was given to him by <NAME> for sale. He was a jeweller and goldsmith and so was the defendant. So that in the ordinary course of business, according to his own case, these emeralds were entrusted to him for sale. That statement in his case completely negatives any position occupied by him other than as a bailee of goods for sale and it is important to remember that this statement that there had been an entrustment to the insolvent of these emeralds as a bailee is not controverted anywhere in the written statement of the defendant. Clearly the emeralds were not the property of the insolvent but it has been urged before us that although they are not the property of the insolvent, they may yet be his reputed property.

5. Where goods, precious stones and such like things are given into the hands of a goldsmith or a jeweller either for the purpose of being converted into ornaments or for sale, they are given to him in the ordinary way of his business; and assuming that at the time of his adjudication he is in possession of those jewels, clearly they are not his jewels at all but they are the jewels of the bailor and as such, being easily identifiable, do not pass to the Receiver in the insolvency. The further question arises as to what is to happen if he has recovered the proceeds of the sale. Here again if those proceeds have not been inter-mixed with the money belonging to the creditors and can easily be identified, the money does not vest in the Receiver but this case is a stronger one from the respondent's point of view because the jewels had been parted with and the insolvent had no money in his possession which he had received in respect of the sale. He claims in his suit to get that money from the defendant. If he succeeds, no one, I think, would contest that that money is clearly ear-marked as money belonging to the real owner of the jewels, namely, <NAME> up to the extent of the agreed value Rs. 1,000 and is not available at all for distribution by the Receiver arnongst the creditors in the insolvency. This matter, I think, is made perfectly clear by the notes to Section 38 , which is the vesting section, in the English Bankruptcy Act of Williams on "Bankruptcy," 13th Ed., p. 229. The marginal note is "Trusts arising from employment of bankrupt," and the note says:

Lastly, then, there is the third class of trusts where the bankrupt has not the general, but only a special property, e.g., where property is vested in the bankrupt as an agent, such as a factor, etc. Such property, so long as it or its proceeds remain distinguishable from the mass of the bankrupt's property, will not pass to the trustee of the creditors.

6. Then again at page 230 it is stated:

It is always to be remembered that, although goods in the hands of an agent may be easily distinguishable, they may yet, on the bankruptcy of the agent, pass to his trustee if the principal has permitted the agent to have a possession not consistent with the ordinary usages of trade, and raising a reputation of ownership in the bankrupt.

7. Here the case for the plaintiff uncontradicted by the defendant in his written statement is that there was no entrustment at all which was not consistent with the ordinary usages of trade. As before stated, the insolvent was a jeweller and goldsmith and he himself says that the emeralds were entrusted to him for sale--that is what a jeweller and goldsmith does--and it cannot be said that the emeralds or their value were the reputed property of the insolvent. Under these circumstances and upon the facts of this case the question before us really does not arise. It would arise if the property were property which vested in the Official Assignee or the Receiver as the case may be. Therefore we decline to decide the question. We need express no opinion upon what would happen had the property been the after-acquired property of the insolvent. With regard to the claim for Rs, 250 no question arises with regard to that because that claim has been disallowed in all the Courts.

8. The case must, therefore, be dealt with by the referring Judge in the light of these observations.