# Devendra Kumar v. Rajya Krishi Utpadan Mandi Parishad, U.P., Lucknow and others

- **Citation:** (2004) 2 ILRA 372
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-04-22
- **Case number:** Civil Misc. Writ Petition No.20661 of 1999
- **Bench:** R.B. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devendra-kumar-v-rajya-krishi-utpadan-mandi-parishad-u-p-lucknow-and-others-40370
- **Pages:** 10

## Headnote

Sri V.K. Birla
Sri B.D. Mandhyan
Sri O.P. Lohia
Sri Satish Mandhyan

Financial Hand book (Vol. II-A)-Chapter
III
R.
14-a-Permanent
EmployeeDeputation-Rights
of
deputationist
service in parent department where he
was appointed on permanent basis and
was confirmed after expiry of period of
probation, can not be dispensed with by
prescribing any arbitrary conditions such
as that service of such employee would
come to an end on expiry of period of
deputation- Petitioner was on deputation
and
holds
a
lieu
in
his
parent
department.
This
principle
also
enshrined in Ch. III R. 14-A of Financial
Hand Book Vol. II-A held, corporation
has great sanctity of deputation-By
putting such conditions that petitioners
service shall automatically be terminated
after one year, of great prejudice to
inherent right of petitioner in his parent
department-
conditions
imposed
set
aside and services of petitioner ordered
to be restored forthwith.

Thus from the facts and law as stated
above, it is abundantly clear that the
service of the petitioner in the parent
department where he was appointed on
permanent basis and was confirmed
after expiry of period of probation, could
not be dispensed with by prescribing any
irrelevant, unreasonable and arbitrary
conditions indicated in the letter dated
3.7.1995 (Annexure-10) to the effect
that the service of such employee would
come to an end on expiry of period of
deputation. The petitioner in the case in
hand was on deputation and he holds the
lien in his parent department. This
principle is also enshrined in Rule 14-A
of Chapter III in Financial Handbook Vol.
2-A.

 Para 31

By
imposing
irrelevant
abnormal,
unreasonable conditions, in the order
dated
5.7.1999
(Annexure-10)
while
sending petitioner on deputation to the
Corporation to the ' Mandi Parishad' the
Corporation has marred the sanctity of
deputation
and
by
putting
such
conditions that petitioner service shall
automatically be terminated after one
year is great prejudice to the inherent
right of the petitioner in his parent
department. The conditions imposed in
the
letter
dated
5.7.1995
is
unwarranted, legally not sustainable
therefore these are being set aside.

The action in question 'Mandi Parishad' is
punitive
passed
without
affording
opportunity of hearing to the petitioner in
a peculiar facts and circumstances of the
case. Therefore, the order dated 18.3.1999
being illegal is set aside.
 Para 33
Case law discussed:
(1999) 4 SCC 656 AIR 1999 SC 1948: 1999 (3)
JT 627
AIR 1990 SC 1132
AIR 1989 SC 968
AIR 1965 SC 868
(1964) 7 SCR 471
(1969) 3 SCC 633
AIR 1976 SC 1737
AIR 1965 SC 8681
(1988) 7 ATC 275
1084 Lab. IC (NOC) 135
1999 (8) SCC 381: 1999(7) JT 44
AIR 1970 SC 1263: (1970) 3 SCC 173
AIR 1964 SC 72
1993 (2) LJ (SC) 654
http://www.allahabadhighcourt.nic.in
2 All] Devendra Kumar V. Rajya Krishi Utpadan Mandi Parishad, U.P., Lucknow and others 373
(1996) 7 SCC 260
(1996) 2 SCC 282: 1995 (9) JT 566: AIR 1996
SC 888
(1986) 3 SCC 156
1991 Supp. (1) SCC 600
(2003) 1 SCC 591
(1996) 8 SCC 654
AIR 2000 SC 2076: (2000) 5 SCC 362: 2000
(6) JT 574

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
372
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.4.2004

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No.20661 of 1999

Devendra Kumar

...Petitioner
Versus
Rajya Krishi Utpadan Mandi Parishad,
U.P., Luknow and others ...Respondents

Counsel for the Petitioner:
Sri V.B. Upadhyaya

Counsel for the Respondents:
Sri V.K. Birla
Sri B.D. Mandhyan
Sri O.P. Lohia
Sri Satish Mandhyan

Financial Hand book (Vol. II-A)-Chapter
III
R.
14-a-Permanent
EmployeeDeputation-Rights
of
deputationist
service in parent department where he
was appointed on permanent basis and
was confirmed after expiry of period of
probation, can not be dispensed with by
prescribing any arbitrary conditions such
as that service of such employee would
come to an end on expiry of period of
deputation- Petitioner was on deputation
and
holds
a
lieu
in
his
parent
department.
This
principle
also
enshrined in Ch. III R. 14-A of Financial
Hand Book Vol. II-A held, corporation
has great sanctity of deputation-By
putting such conditions that petitioners
service shall automatically be terminated
after one year, of great prejudice to
inherent right of petitioner in his parent
department-
conditions
imposed
set
aside and services of petitioner ordered
to be restored forthwith.

Thus from the facts and law as stated
above, it is abundantly clear that the
service of the petitioner in the parent
department where he was appointed on
permanent basis and was confirmed
after expiry of period of probation, could
not be dispensed with by prescribing any
irrelevant, unreasonable and arbitrary
conditions indicated in the letter dated
3.7.1995 (Annexure-10) to the effect
that the service of such employee would
come to an end on expiry of period of
deputation. The petitioner in the case in
hand was on deputation and he holds the
lien in his parent department. This
principle is also enshrined in Rule 14-A
of Chapter III in Financial Handbook Vol.
2-A.

 Para 31

By
imposing
irrelevant
abnormal,
unreasonable conditions, in the order
dated
5.7.1999
(Annexure-10)
while
sending petitioner on deputation to the
Corporation to the ' Mandi Parishad' the
Corporation has marred the sanctity of
deputation
and
by
putting
such
conditions that petitioner service shall
automatically be terminated after one
year is great prejudice to the inherent
right of the petitioner in his parent
department. The conditions imposed in
the
letter
dated
5.7.1995
is
unwarranted, legally not sustainable
therefore these are being set aside.

The action in question 'Mandi Parishad' is
punitive
passed
without
affording
opportunity of hearing to the petitioner in
a peculiar facts and circumstances of the
case. Therefore, the order dated 18.3.1999
being illegal is set aside.
 Para 33
Case law discussed:
(1999) 4 SCC 656 AIR 1999 SC 1948: 1999 (3)
JT 627
AIR 1990 SC 1132
AIR 1989 SC 968
AIR 1965 SC 868
(1964) 7 SCR 471
(1969) 3 SCC 633
AIR 1976 SC 1737
AIR 1965 SC 8681
(1988) 7 ATC 275
1084 Lab. IC (NOC) 135
1999 (8) SCC 381: 1999(7) JT 44
AIR 1970 SC 1263: (1970) 3 SCC 173
AIR 1964 SC 72
1993 (2) LJ (SC) 654
http://www.allahabadhighcourt.nic.in
2 All] Devendra Kumar V. Rajya Krishi Utpadan Mandi Parishad, U.P., Lucknow and others 373
(1996) 7 SCC 260
(1996) 2 SCC 282: 1995 (9) JT 566: AIR 1996
SC 888
(1986) 3 SCC 156
1991 Supp. (1) SCC 600
(2003) 1 SCC 591
(1996) 8 SCC 654
AIR 2000 SC 2076: (2000) 5 SCC 362: 2000
(6) JT 574

(Delivered by Hon'ble R.B. Misra, J.)

The present writ petition has been
preferred to quash the order dated
18.03.1999 passed by the Additional
Director (Administration) of Rajya Krishi
Utpadan Mandi Parishad, (in short called
'Mandi
Parishad')
U.P.
Lucknow
(Annexure-18 to the writ petition) and the
order dated 10.03.1999 passed by the
Director, 'Mandi Parishad,' as referred in
the order
dated 18.03.1999. The
petitioner has inter-alia prayed for other
relief
including
for
quashing
the
unreasonable
terms
and
conditions
incorporated
in
the
letter
dated
05.07.1995 of the Managing Director,
Sugar Corporation (Annexure-10 to the
writ petition) so much so saying that the
service of the petitioner was automatically
come to an end after expiry of period of
one year from the date of joining at '
Mandi Parishad.'

1. Heard Sri V.B. Upadhaya, learned
Senior Counsel along with Sri Vidya
Bhushan Upadhaya, for the petitioner and
Sri
V.K.Birla,
learned
counsel
for
respondents no.4 and 5 and Sri Satish
Mandhyan, learned counsel for 'Mandi
Parishad'.

2. The facts giving rise to the
present writ petition in brief are that the
petitioner applied to the post of Junior
Engineer (Civil) in respondent U.P. State
Sugar Corporation Limited (hereinafter
called 'Sugar Corporation') being fully
eligible to the said post, was invited by
Managing Director of 'Corporation' by its
letter 17.4.85 (Annexure-1) invited for
interview to be held on 3.5.1985, and was
duly selected and appointed to the post of
Junior Engineer (Civil). The select list
dated 30.1.1986 is (Annexure-2 to the
writ petition).

3. The petitioner reported duty on
13.2.1986, and was kept on probation for
a period of two years thereafter was
confirmed to the said post. The petitioner
has discharged his duties in different units
of 'Corporation' after being transferred
from time to time under the orders of the
superior officers. The different orders of
the transfer and certificates are enclosed
(Annexures 4,5,6 and 7 to the writ
petition).

4. The petitioner came to know that
'Mandi Parishad', Junior Engineer was
being taken on deputation. Consequently,
the petitioner also applied for deputation
by his application dated 10.02.1995
(Annexure-8 to the writ petition). The
petitioner vide his letter dated 18.05.1995
informed the Corporation that he has
given an undertaking that in case he was
sent to 'Mandi Parishad' on deputation, he
would come back to the Corporation
when recalled for being posted in any
unit. Copy of the said letter is (Annexure9 to the writ petition).

5. The Sugar Corporation allowed
the petitioner to join the 'Mandi Parishad'
on deputation subject to the condition
contained in the letter dated 05.07.1995
(Annexure-10 to the writ petition). The
contents of the letter dated 5.7.1995 are
given here as below:-
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
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Uttar
Pradesh
State
Sugar
Corporation Limited.
Par/As.As.C./3 (Av.Av.(C)/ 2260 Dinank
5 July, 95
Adesh

Rajya
Krishi
Utpadan
Mandi
Parishad, Uttar Pradesh, Lucknow Ke
Patrank Arth.(Ka)-2 (252/ 11 )/95-568,
Dinank 13.6.95 Ke Sandarbh Mein Sri
Davendra Kumar, Avar Abhiyanta (Civil),
Jo Vartman Samay Main Nigam Ki
Vatalpur Ekai Main Tainat Hai, Ki Seva
Mein Tatkalik Prabhav Se Rajya Krishi
Utpadan Mandi Parishad Ko Eted Dwara
Pratiniykti Par Ek Varsh Ke Liya Ish
Shart Ke Sath Uplabdh Kariyee Jati Hai
Ki Parishad Mein Karya Grahan Karney
Ki Tithi Se Ek Varsh Ki Ukt Nirdharit
Pratiniyukti Avadhi Purna Hota Hee Sri
Davendra Kumar Ki Sevayen Nigam Se
Swatah Hee Samapt Man Lee Jayagee.
Vahya Sewa Ki Avadhi Mein Sri
Davendra
Kumar
Ko
Nigam
Mein
Anumanya Vatenman Avem Ush Par
Anumanya Sabhi Bhatta Jo Samay Samay
Par Dei Hai, Anumanya Honge. Jiska
Sampurn Bhar Pratinukti Ki Sewa Avadhi
Mein Rajya Krishi Utpadan Mandi
Parishad Ko Vahan Karna Hoga.

Sri Davendra Kumar Ki Vahya Sewa
Ki Anney Shertey Sanlagn Parishist Ke
Anusar Hogi.

 Sudhir Kumar

 Prabadh Nirdeshak
vil
Subsequently, he was transferred in the
'Mandi
Parishad'
at
Ghaziabad
on
05.07.1996. The petitioner was never
recalled back to the parent department of
'Sugar Corporation' but surprisingly the
petitioner was reverted back to the parent
department by the 'Mandi Parishad' by an
order dated 20.12.1996, (Annexure-15 of
the writ petition). Subsequently, the said
order was recalled by order dated
08.01.1997 (Annexure -16) and the
petitioner was transferred to Bulandshahr.
When the period of deputation had come
to an end as per order dated 05.07.1995,
the 'Mandi Parishad' by its letter dated
21.07.1988
requested
the
'Sugar
Corporation' to extend the period of
deputation. In response to the said letter
the 'Sugar Corporation' wrote to the
'Mandi Parishad ' by its letter dated
17.02.1999 that the service of the
petitioner had come to an end on expiry of
the period of deputation as per terms and
conditions contained in the letter dated
05.07.1995 as such there is no occasion
for extension of service any more. The
said letter dated 17.02.1999 is (Annexure17 to the writ petition). The 'Mandi
Parishad' thereafter by its order dated
18.03.1999 (Annexure-18 to the writ
petition) reverted the petitioner to the
parent department, which is the main
impugned
order
challenged
in writ
petition moreso, without affording the
petitioner opportunity of hearing against
the principle of natural justice.

6. The main controversy involved in
the present writ petition is as to whether
the
petitioner's
lien
in
the
parent
department, i.e., Sugar Corporation could
come to an end automatically on expiry of
the period of one year as contained in the
letter dated 05.07.1995 although he was
continuing in service in the ' Mandi
Parishad ' and as to whether the Sugar
Corporation could legally prescribed a
condition stipulating therein that the
service of petitioner would come to an
end in the parent department on expiry of
period of deputation granted by said letter
and as to whether such a condition was
unreasonable, arbitrary, and violative of
Article 14 of the Constitution of India and
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2 All] Devendra Kumar V. Rajya Krishi Utpadan Mandi Parishad, U.P., Lucknow and others 375
in derogation to the provisions of section
23 of the Indian Contract Act.

7. The petitioner in paragraphs 20
and 21 of the writ petition has clearly
stated that the condition incorporated in
the letter granting permission to work on
deputation in the ' Mandi Parishad ' was
unreasonable, arbitrary and in clear
violation of law as well as principles of
natural justice. The relevant paragraphs
are referred as below:-

"20. That the general terms and
conditions in regard to deputation does
not contain any condition that services of
the petitioner would come to an end after
a period of one year and this particular
condition has been added at the whims
and fancies of the Managing Director by
their letter dated 0.5.07.1995 and as such,
no reliance has been placed of the
disputed terms and conditions and the
services of the petitioner could not be
dispensed with in such an arbitrary and
whimsical manner."
"21. That the aforementioned terms
and conditions are totally unreasonable
and arbitrary inasmuch as, when the
petitioner was going on deputation, the
said term and conditions could not have
been attached and the said terms on the
face of it appears to be unreasonable and
liable to be struck down."

8. The petition being a permanent
employee in the 'Sugar Corporation' and
having joined the 'Mandi Parishad' on
deputation,
his
lien
in
the
parent
department was automatically to come to
an end after one year. In case the Sugar
Corporation was not inclined to extend
the period of deputation, it ought to have
recalled the petitioner from the 'Mandi
Parishad'. The petitioner had already
given an undertaking to return to the
parent department without any objection
when called upon to come back. The
'Sugar Corporation ' never informed or
asked the petitioner to return to his parent
department and as such the service of the
petitioner could not be dispensed with on
the basis of an conditions as contained in
the letter dated 05.07.1995, (Annexure10 to the writ petition) which turns out to
be arbitrary and illegal inasmuch as the
said condition was violative of Article 14
of the Constitution of India and Section
23 of the Indian Contract Act.

9. The following contentions were
raised for and on behalf of the respondent
'Sugar Corporation'
(i) in view of a specific condition given in
the order dated 6.6.1995 {the correct date
is 6.6.1995 not 6.7.1995 as stated in writ
petition, para 9 of counter affidavit of
'Sugar Corporation '(Annexure- CA-1 to
the counter affidavit)} the petitioner was
sent on deputation on a period of one year
only
with
the
condition
that
on
completion of the period of deputation the
service of the petitioner was come to an
end in the 'Sugar Corporation'.
(ii) In the facts and circumstances the
petitioner himself had accepted the terms
in writing, though his letter dated
29.6.1995 (Annexure 9-A to the writ
petition)
(iii) The petitioner had accepted the
terms in writing that he is being sent on
deputation for a period of one year only
and his services will come to an end in the
Corporation after completion of the
period of deputation as such by his own
conviction petitioner relinquished his lien
with parent department.
(iv) In view of the fact that the petitioner
had accepted the terms and conditions of
deputation that his lien and service shall
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
376
come to an end in the parent department
after completion of the period of one year
but the petitioner has filed the present
petition after a lapse of more than three
years as such no relief can be granted to
the petitioner as against the 'Sugar
Corporation".

10. The U.P. Fundamental Rules as
contained in Financial Handbook Vol.IIIV Chapter III Rule-14 A contemplates as
under:
"14-A. (a) A Government Servant's
lien on a post may in no circumstances be
terminated, even with his consent, if the
result will be to leave him without a lien
or suspended lien upon a permanent post.
(b) In a case covered by sub-clause (2) of
Clause (a) of Rule 14, the suspended lien
may not, except on the written request of
the Government servant who is not
performing the duties of the post to which
the lien relates, even if that lien has been
suspended."

11. The concept of deputation is an
assignment of an employee of one
department or organisation to another
department or organisation. It arises in
public interest to meet the exigencies of
public service. Concept of deputation is
consensual and involves a voluntary
decision of employer to lend service of
his employee corresponding to acceptance
by borrowing employer and consent of the
employee to go on deputation to {(H.
Umapati Choudhary v. State of Bihar,
1999 (4) SCC 656=AIR 1999 SC 1948}

12. A person on deputation do not
get any right to be absorbed in the
deputation post. They can be reverted to
parent cadre at any in view of the
Supreme Court in (Ratilal B.Soni v. State
of Gujrat, AIR 1990 SC 1132).
13. Normally vacancies should be
filled up from the cadre and taking
persons on deputation is an exception in
utter exigencies likewise

"filing up of higher posts by
inducting deputationists should be an
exception and not the rule, if suitable
juniors are eligible and available for
promotion but in no case abnormal,
irrelevant stipulations shall mar the
sanctity of deputation."

14. The service on deputation is
equivalent to and is deemed to have been
rendered in the parent department. When
increments and promotion can be earned,
there is no reason why he should not be
treated as being on probation also in the
post held by him in the parent department
even while he is on deputation, in view of
R.L. Gupta vs. Union of India AIR 1989
(SC) 968. In this case the services of the
petitioner
while
on
deputation
as
Secretary to the Commission of Inquiry
under
the
Chairmanship
of
Shri
Ranganath Misra, a sitting judge of the
Supreme Court, was held to satisfy the
requirements of probation in his parent
department in terms of Rule 12 (2) of the
Delhi Higher Judicial Service Rules,
1970.

15. The benefits can not be denied
on the only ground that he had given his
consent to go on deputation. It is well
known that many officers have to be sent
on deputation in the public interest to
other departments in order to meet the
exigencies of public service and that
before sending them on deputation their
consent to go on deputations they should
not be allowed to suffer unless there is a
specific rule to the contrary or other good
reasons for it. That is the ratio of the
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2 All] Devendra Kumar V. Rajya Krishi Utpadan Mandi Parishad, U.P., Lucknow and others 377
decision in State of Mysore v. M.H.
Bellary, AIR 1965, SC 868, (1964) 7 SCR
471 and of the decision in State of Mysore
v. P.N. Nanjundiah, (1969) 3 SCC 633
(ibid, para 13).

16. The parent department does not
lose administrative control over the
employee sent on deputation. Where an
employee of the Punjab Government was
on deputation to the Government of
Himanchal Pradesh, it was held by the
Supreme Court that the former could
place him under suspension and cancelled
his
leave
preparatory
to
retirement
granted by the borrowing authority in
view of Khemi Ram v. State of Punjab,
AIR 1976 SC -1737.

17. A Government servant sent on
deputation retains right of promotion in
his parent department. The service on
deputation is treated as equivalent to the
service in the parent department and
hence for the purpose of promotion in the
parent department it will be deemed to
have been rendered in that department
itself.
The
Government
servant
on
deputation has therefore to be considered
for promotion in his turn in the parent
department. This principle has been
embodied in the 'Next Below Rule".
(State of Mysore v. M.H. Bellary, AIR
1965 SC- 8681.

18. The period of deputation
originally fixed can be cut short, if
considered necessary. A deputationist has
no right to continue in the deputation post.
It depends upon several factors like
aptitude for different type of work, ability
to pick up quickly the intricacies of new
work etc. If found inadequate, a
deputationist can be reverted to his parent
department. There is no stigma attached
to it. (L. Jason Dayavanthappa v.
G.M.Southern Railway, (1988) 7 ATC
275; Shambhunath Lal Srivastava v. State
of U.P., 1984 Lab. I.C. (NOC) 135).

19. Absorption of deputationist in
the department where he is on deputation.
The appellant working in the U.P. Small
Scale Industries Corporation Ltd., joined
U.P. Rajkiya Nigam Ltd., on deputation.
The Nigam wrote a letter to him that if he
is willing for permanent absorption in the
Nigam, he can send his option. The
appellant, after completion of three years,
submitted his option letter for permanent
absorption.
The
deputationist
was
absorbed after he completed statutory
period of five year on deputation
whereupon, he became entitled to be
absorbed as per the relevant rules. The
Nigam did not repatriate him to his parent
department his deputation allowance was
also stopped on completion of five years.
It was held that the appellant stood
absorbed on completing five years and the
order relieving the appellant from the post
on which he was on deputation was
quashed.

In Rameshwar Prosad v. Managing
Director U.P. Rajkiya Nirman Nigam,
Ltd. 199 (8) SCC 381=1999 (7) JT 44.
The
power
of
absorption
though
discretionary,
cannot
be
exercised
arbitrarily or at his or caprice of any
individual. There must be a justifiable
reason before selecting the application for
absorption.

20. The appellant, a lecturer in the
University was sent on deputation to the
Bihar Sanskrit Board, he was authorised
to
discharge
there
all
duties
and
responsibilities
of
controller
of
examination
of
the
Board.
The
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
378
Government of Bihar confirmed the
appellant as controller of examination
Registrar of the University also gave
consent. It was held that the appellant
was a permanent employee of the Board
on the date of his retirement from the post
of controller of Examinations of the
Board, and therefore the retirement
benefits should be calculated on that
basis. Acknowledging and conferring
over deputationist by the borrowing
department to authorities to discharge all
duties and responsibilities of a post
entitled him the status of permanent
employee of borrowing department for all
purpose in view of (Npapati Chaudhary v.
State of Bihar, AIR 1999 SC 1948 SC
1948=1999 (3) JT 627).

21. If the employee is transferred
from one department to another, it is not
necessary that he should be re-appointed
to the department to which he is
transferred. As soon as he is transferred
permanently, he begins to hold the
permanent post which he starts holding in
the transferee department. Further,
whether a person has lien in one
department or in other department the
Government is entitled subject to the
provision of Article 311 (i) of the
Constitution, to delegate the power of
dismissal to any offer. (State of U.P. v.
Ram Nareshilal, AIR 1970 SC 1263;
(1970) 3 SCC 173.)

22. The power vested in a public
body to transfer on deputation, any
official must be exercised honestly,
bonafide and reasonably. It should be
used in the interest of public purpose. If
the
power
is
used
on
extraneous
consideration or for achieving an alien
purpose or on oblique motives, its use
would be mala fide and any colourable
exercise of that power would, therefore,
be struck down by the court in the light of
the observation made in S.Pratap Singh v.
State of Punjab, AIR 1964 SC 72.

23. If transfer by way of deputation
is motivated by a desire to victimize any
person the specific deputation could
always be tested in a cannon of law. No
person can, however, be struck down on
the ground that although it was for the
good of employee but likely to be used for
an unauthorised purpose in view of
Sukumar Mukherjee v. State of West
Bengal, 1993 (2) UJ (SC) 654.

24. The deputationist cannot be put
to prejudice in so far as their service
career in their parent department is
concerned. The deputationist are entitled
to all the benefits in the parent department
as were granted to the juniors or these
who were similarly situated. (Block
Development Officer Association v. State
of M.P. 1996 (7) SCC 260).

25. Temporary promotion granted to
an employee on deputation does not
entitle him to hold his or two substantive
posts at the same time as in his parent
department
as
well
as
borrowing
department,
however
the
grant
of
promotion to such candidate by the parent
department is proper. (Balkrishna Pandey
v. State of Bihar, 1996 (2) SCC 282; 1995
(9) JT 566; AIR 1996 SC 888.

26. The Supreme Court of India in
Central
Inland
Water
Transport
Corporation Ltd. Vs. Brojo Nath Gangula,
(1986) 3 SCC 156 laid down the principle
that unreasonable terms and conditions
cannot be imposed by the employer on its
employees, in view of doctrine of equality
http://www.allahabadhighcourt.nic.in
2 All] Devendra Kumar V. Rajya Krishi Utpadan Mandi Parishad, U.P., Lucknow and others 379
contained in Article 14 of the Constitution
of India.

27. The Supreme Court in Central
Inland Water Transport Corporation Ltd.
(supra) and in the Delhi Transport
Corporation
Vs
D.T.C.
Mazdoor
Congress 1991 Supp (1) SCC 600 as well
as in the case of Hindustan Times Vs
State of U.P. and others 2003 (1) SCC
591, has held as under:-
"39. The respondents being a State,
cannot in view of the equality doctrine
contained in Article 14 of the Constitution
of India, resort to the theory of " take it or
leave it." The bargaining power of the
State and the newspapers in matters of
release of advertisements is unequal. Any
unjust
condition
thrust
upon
the
petitioners by the State in such matters, in
our considered opinion, would attract the
wrath of Article 14 of the Constitution of
India as also Section 23 of the Indian
Contract Act. See Central Inland Water
Transport Corporation Ltd. Vs. Brojo
Nath Ganguly and Delhi Transport
Corporation
Vs
D.T.C.
Mazdoor
Congress. It is trite that the State in all its
activities must not act arbitrarily. Equity
and good conscience should be at the core
of all governmental functions. It is now
well settled that every executive action
which operates to the prejudice of any
person must have the sanction of law.
The executive cannot interfere with the
rights and liabilities of any person unless
the legality thereof is supportable in any
court of law. The impugned action of the
State does not fulfil the aforementioned
criteria."

28. The Supreme Court of India in
Satya Narain Pareek Vs. State of
Rajasthan (1996) 8 SCC 654 para 4 has
held that the permanent employee in
Technical Education Department during
his deputation in the transport department
shall retain his lien in the parent
department.

29. The irregular, unscheduled and
unreasonable transfer of an official on
deputation by placing him in jacket of
unreasonable terms and condition may
cause impairable harm to the government
servant, uproot his family, disrupting the
education of his children and number of
other complications. The Government,
therefore, should be reasonable and fair in
implementation of its policy relating to
deputation.

30. It is well settled that unless the
claim of the deputationist for permanent
absorption in the department where he
works on deputation is based upon any
statutory Rule, Regulation or order having
the force of law a deputationist cannot
assert and succeed in any such claim for
absorption. The basic principle underlying
deputation itself is that, the person
concerned can always and at any time be
repatriated to his parent department to
serve in his substantive position, therein
at
the
instance
of
either
of
the
departments and there is no vested right in
such a person to continue for long
deputation or get absorbed in the
department to which he had gone on
deputation, in view of Kunal Nanda v.
Union of India, AIR 2000 SC 2076; 2000
(5) SCC 362 = 2000 (6) JT 574;

31. Thus from the facts and law as
stated above, it is abundantly clear that
the service of the petitioner in the parent
department where he was appointed on
permanent basis and was confirmed after
expiry of period of probation, could not
be dispensed with by prescribing any
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
380
irrelevant, unreasonable and arbitrary
conditions indicated in the letter dated
3.7.1995 (Annexure-10) to the effect that
the service of such employee would come
to an end on expiry of period of
deputation. The petitioner in the case in
hand was on deputation and he holds the
lien in his parent department. This
principle is also enshrined in Rule 14-A
of Chapter III in Financial Handbook Vol.
2-A.

32. The petitioner is permanent
employee of the ' Sugar Corporation ' and
is an instrumentality of State within the
meaning of Article 12 of the Constitution
of India and as such his service could not
be dispensed with by placing arbitrary and
unreasonable terms and conditions in
violation of Article 14 of the Constitution
as well as Section 23 of the Indian
Contract Act as well as Rule 14-A of the
Financial Rules as contained in Financial
Handbook
Vol.
2-A
Chapter
III,
governing the employees of State of U.P.
The actions of the respondents are in clear
violation of law laid down in the cases
referred to above and against the principle
of natural justice. In these circumstances,
the writ petition deserves to be allowed
with cost and the services of the petitioner
be restored forthwith.

33.

By
imposing
irrelevant
abnormal, unreasonable conditions, in the
order dated 5.7.1999 (Annexure-10) while
sending petitioner on deputation to the
Corporation to the 'Mandi Parishad' the
Corporation has marred the sanctity of
deputation and by putting such conditions
that petitioner service shall automatically
be terminated after one year is great
prejudice to the inherent right of the
petitioner in his parent department. The
conditions imposed in the letter dated
5.7.1995 is unwarranted, legally not
sustainable therefore these are being set
aside. The deputationist absorbed with
the consent of the transfer or department
and transferee/borrowing department may
also be given increment and promotion
under the fair terms and conditions could
be reverted back to the original parent
department to avail his own rights with
his gains legally permissible to him in the
parent department but a deputationist who
has
been
absorbed
in
the
transferee/borrowing
department/Mandi
Parishad if he was confirmed employee
his repatriation or sending back to the
parent department of Corporation could
not
be
made
without
affording
opportunity of hearing. Undisputedly, the
petitioner herein is not confirmed in '
Mandi Parishad ' however, by transferring
the petitioner/deputationist from ' Mandi
Parishad ' to Corporation knowing it fully
well that in the light of unreasonable
terms indicated in the letter dated
5.7.1995 of the Corporation petitioner
shall have no place for sustinance, the
order as indicated in the order dated
18.3.1999 in the garb of letter dated
5.7.1999 shall tantamount terminating the
service of the petitioner/deputationist.
The action in question 'Mandi Parishad' is
punitive
passed
without
affording
opportunity of hearing to the petitioner in
a peculiar facts and circumstances of the
case. Therefore, the order dated 18.3.1999
being illegal is set aside. 'Mandi Parishad'
however is at liberty to consider the case
of the petitioner for absorption in 'Mandi
Parishad' itself or may negotiate with the
Corporation to keep alive the original lien
and to accept his own original employee
in parent department with consequential
gains to be given to the petitioner in the
Corporation only on consensus is arrived
between the transferee Corporation and
http://www.allahabadhighcourt.nic.in
2 All] Ashutosh Agrawal V. Lala Ramanuj Vaishya Bal Sadan
381
the 'Mandi Parishad', then the petitioner
could
be
thrown
away
by
order
simiplicitor dated 18.3.1999 otherwise
shall be punitive in nature. The 'Mandi
Parishad' shall have to deal with the
situation by making negotiations with the
Corporation and both may rectify the
terms and conditions bonafidely, fairly
and in public interest and if 'Corporation '
is willing to take back the petitioner then
only the 'Mandi Parishad' shall pass the
order of repatriation or order of sending
back the petitioner from the 'Mandi
Parishad' to the Corporation. Therefore,
'Mandi Parishad' shall pass appropriate
order within six months from the date of
production of a certified copy of this
order after taking consent of the petitioner
and providing opportunity of hearing and
after deliberation with the Corporation.
However, the petitioner shall be treated
the employee of the Corporation and shall
be entitled to receive his salary and
increments due to him.

In view of the above observations the
writ petition is disposed of.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.04.2004

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No.16040 of 2004

Ashutosh Agrawal

...Defendant
Versus
Lala Ramanuj Dayal Vaishya Bal Sadan

...Plaintiff

Counsel for the Petitioner:
Sri M.K. Gupta

Counsel for the Respondent:
Sri P.K. Jain
Code of Civil Procedure, 1908-O, VIII R.1
Proviso by amendment Act 46 of 1999
and as amended by Act 22 of 2002-S.15b)-Applicability- time limit for filing
Written Statement-Ord. VIII R.1 made
inapplicable to pending suits by S. 15-b
of Act 22 of 2002-Provision of O.22 R.1
as
amended
not
retrospective-Writ
allowed.

"Provision of Order VIII, Rule 1 requiring
the written statement to be filed within
30 days from the date of service of
summons and confers power upon the
Court for reasons to be recorded to
extend
time
for
filing
the
written
statement to a day not later than 90
days
from
the
date
of
service
of
summons. This provision has been made
inapplicable to pending suits by virtue of
the provisions of Section 15-b of act 22
of 2002. The scheme of the amended
provisions which has been discussed
above indicates in the matter of time for
filing the written statement he amended
provisions of Order VIII, Rule 1 would
not be applicable to pending suits and
although the provision is procedural
retrospectively
as
textually
inadmissible."

 Para 4
Case law discussed:
AIR 2003 A.P. 409
AIR 2003 Kant 417
2003 (1) ARC 556

(Delivered by Hon'ble Anjani Kumar, J.)

1. Heard Sri M.K. Gupta, learned
counsel appearing on behalf of the
petitioner and Sri P.K. Jain, learned
counsel for the respondent. Both the
counsels for the parties are agree that the
matter may be heard on merits, as it
relates to the pure question of law. In
these circumstances, it is not necessary to
invite any counter affidavit.

2. The sole argument advanced on
behalf of learned counsel appearing on
behalf of the petitioner is that the