1. Dispute over employment status—whether an employee on deputation from a university to a board, subsequently approved for permanent absorption, is a permanent employee. (Para 2 , 3 , 8 )
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1999 Supreme(SC) 661
1999(5) Supreme 422
Supreme Court of India
(From Patna High Court)
Mrs. Sujata V. Manohar, D.P. Mohapatra and R.C. Lahoti, JJ.
Umapati Choudhary etc. -Appellant
versus
State of Bihar & Anr. -Respondents
Civil Appeal No. 336 of 1993
With
Writ Petition (Civil) No. 667 of 1992
Decided on 14-5-1999
Counsel for the Parties :
For the Appellant : Pankaj Kalra, Advocate for R.P. Singh, Advocate.
For the Respondent : Irshad Ahmad, Advocate (NP), U.S. Prasad, Advocate.
The Court held that where the lending authority, borrowing authority, and the employee all consent to the permanent absorption of a deputationist, and such appointment is approved by the government, the employee is entitled to be treated as a permanent employee of the borrowing authority.
Headnote:Service Matter-Bihar Sanskrit Education Board Act, 1981-Chairman of Board made request to University to depute competent and experienced person to conduct and control examinations conducted by Board-University deputed appellant as Controller of Examinations of Board-Post of Assistant Registrar (Sanskrit Education) re-designated as Controller of Examinations-Chairman of Board recommended confirmation of appellant-University gave consent for permanent absorption of appellant-Govt. of Bihar issued notification appointing appellant as Controller of Examination-Challenged by employees of University-Single Judge issued directions to State Govt. to decide mode of appointment and service conditions of posts of Controller of Examination-Make substantive appointment in said post-Services of appellant terminated-Appeal-Supreme Court stayed operation of impugned orders-Directed reinstatement of petitioner -Single Judge neither quashed deputation order nor issued any direction for termination-Appellant retired from service-To be treated permanent employee of Board on date of retirement from post of Controller of Examinations-Retirement benefit to be calculated on that basis.
Held : The learned single Judge in the previous writ petition had neither quashed the deputation order nor issued any direction for its termination. Indeed the learned single Judge had dismissed the writ petition. No material has been placed before us to show that between November 1987 when the Judgment of the single Judge was rendered and December 1991 when the Division Bench disposed of the writ petition filed by the appellant the petitioners of the previous case had raised any grievance or made any complaint regarding non-compliance of the directions made in the judgment of the learned single Judge. In these circumstances the Division Bench was clearly in error in declining to grant relief to the appellant. Further, the appellant has, in the meantime, retired from service, and therefore, the decision in the case is relevant only for the purpose of calculating his retiral benefits. (Para 9)
The appellant shall be treated to be a permanent employee of the Board on the date of his retirement from the post of Controller of Examinations and his retirement benefits shall be calculated on that basis. (Para 11)
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2. Whether the appointment was a permanent absorption or a temporary deputation subject to the establishment of substantive service conditions. (Para 2 , 4 )
3. Deputation is a consensual arrangement between the lending authority, borrowing authority, and employee; where all parties consent to permanent absorption, the status is regularized. (Para 9 )
4. Permanent absorption of a deputationist is valid when there is mutual consent from the parent department, the borrowing authority, and the employee. (Para 9 )
5. Appeal allowed; termination orders quashed; appellant to be treated as a permanent employee for the purpose of calculating retirement benefits. (Para 11 )
6. What constitutes a valid deputation in public service?
Deputation is a consensual assignment of an employee from a parent department (lending authority) to another organization (borrowing authority), requiring the voluntary decision of the employer to lend, the acceptance by the borrowing employer, and the consent of the employee. (Para 9 )
7. Under what conditions can a deputationist be permanently absorbed into a borrowing authority?
Permanent absorption is valid when the borrowing authority recommends confirmation, the parent department provides consent or a no-objection certificate, and the appointing authority issues a formal appointment notification. (Para 3 , 8 , 9 )
8. Does a court's direction to determine service conditions for a post automatically render a current temporary appointment invalid?
Not necessarily. If the court directs the government to decide the mode of appointment and service conditions but does not quash the existing appointment, the appointment remains valid unless specifically challenged or terminated based on a legal flaw. (Para 4 , 9 )
Judgment
D.P. Mohapatra, J.-These two cases are inter-linked with each other. Both the cases have been filed by the same person Shri Umapati Choudhary. While Civil Appeal No. 336 of 1993 is directed against the judgment and order dated 17.12.1991 of the Patna High Court in C.W.J.C. No. 6054 of 1991, in Writ Petition (C) No. 667 of 1992 the petitioner has sought quashing of the orders dated 17.3.1992, 20.3.1992 and 21.3.1992 filed as Annexures 11, 12 and 13 respectively of the writ petition which appear to have been passed on the basis of the judgment dated 17.12.1991 in C.W.J.C. No. 6054 of 1991.
2. The controversy raised in the case relates to the question whether the appellant should be treated as a permanent employee of the Bihar Sanskrit Shiksha Board (for short ‘the Board’) or he was on deputation to the Board from Kameshwar Singh Darbhanga Sanskrit University (for short ‘the University). The High Court having held that the appellant could not claim to be a permanent employee of the Board and his service as Controller of Examinations of the Board having been terminated on that basis, he has filed the two cases.
3. The factual matrix relevant for appreciating the controversy may be stated thus:
The Board was constituted under the BIHAR SANSKRIT EDUCATION BOARD ACT , 1981 (Act No. 31 of 1982) and it was vested with the power to direct, supervise and control Sanskrit education upto Madhyama standard in the State of Bihar. The Chairman of the Board made a request to the University to depute a competent and experienced person to conduct and control the examinations conducted by the Board vide his letter No. 21/15 dated 29.7.1981. The Registrar of the University by his letter No. 8105/89 dated 14.8.1981 (Annexure-2 to the S.L.P.) communicated the decision of the University granting permission for the appellant who was then a lecturer in Post Graduate department of the University to be deputed as Controller of Examinations of the board until further orders. The Government of Bihar in the Department of Education by Notification date 17.9.1982 (Annexure-3) authorised the appellant to discharge all duties and responsibilities of the Controller of Examinations of the Board and made the order effective from the first day of deputation. It appears from the letter of the State Government to the Accountant General, Bihar dated 16th June, 1983 (Annexure-4) that the post of Assistant Registrar (Sanskrit Education) which was created in the Bihar Sanskrit Shiksha Parishad on being transferred to the Bihar Sanskrit Shiksha Board was re-designated as Controller of Examinations. Thereafter the question of confirmation of the appellant on the post of Controller of Examinations was taken up by the Board and by the letter dated 15.9.1983 (Annexure-5) the Chairman of the board wrote to the State Government recommending his confirmation. It appears from the said letter that the Board took the decision appreciating the efficiency and hard work put in by the appellant as Controller of Examinations took the decision for his confirmation. In the letter dated 20.4.1985 (Annexure-7) of the Registrar of the University addressed to the Chairman of the Board consent of the University for permanent absorption of the appellant on the post of Controller of Examinations of the Board was communicated. Thereafter, by the Notification dated 10th November, 1986 (Annexure-8) issued by the Department of Education of the Government of Bihar the appellant was appointed as Controller of Examinations under the Board on the pay scale of Rs. 1000 - 1820/- from the date of issue of the Notification till further orders.
4. Some employees of the University challenged the deputation of the appellant as Controller of Examinations of the Board before the Patna High Court in a writ petition, C.W.J.C. No. 2230 of 1982 which was disposed of by Single Judge of the Court by the judgment dated 16.11.1987. The operative portion of the said judgment reads as follows:
“10. Respondent
