# Director, Institute of Mental Health v. Santosh Kumar Gautam and others

- **Citation:** (2010) 1 ILRA 349
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-04-13
- **Case number:** Special Appeal No. 982 of 2003
- **Bench:** Vijay Manohar Sahai, Raj Mani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/director-institute-of-mental-health-v-santosh-kumar-gautam-and-others-41479
- **Pages:** 7

## Headnote

Sri Ashok Khare
Sri K.M. Saxena
Sri K.N. Saxena
Sri N.S. Chahar
C.S.C.

Constitution of India, Art. 226-Petitioner
working as class 4th employee in mental
Hospital, Agra-under central of Director
Medical Health and Family Welfare-after
conversion of Govt. Hospital in to society
all concerned were required give optionrefused by the petitioner-held-for all
purpose they are govt. employee-can not
be forced to work on deputation without
giving the period of deputation-can not
be treated the employee of new hospital.

Held: Para 30
Since the petitioners opted to remain
government servants and they did not
opt to be posted on deputation in the
new institution. Therefore, they were
sent back to their parental department
i.e.
Health
Department
of
U.P.
Government. The petitioners who did not
opt to be posted in the new institution
on deputation cannot be posted there on
deputation against their option. The
society of the new institution too cannot
be forced to retain those petitioners who
were the government servants and did
not opt to be posted on deputation in the
new institution.

## Text

1 All] Director, Institute of Mental Health V. Santosh Kumar Gautam and others
349
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.04.2010

BEFORE
THE HON'BLE VIJAY MANOHAR SAHAI, J.
THE HON'BLE RAJ MANI CHAUHAN, J.

Special Appeal No. 982 of 2003

Director Institute of Mental Health &
Hospital, Agra

...Appellant
Versus
Santosh Kumar Gautam and others

 ...Respondents

Counsel for the Petitioner:
Sri G.K. Singh
Sri V.K. Singh
Sri A.P. Sahi

Counsel for the Respondents:
Sri Ashok Khare
Sri K.M. Saxena
Sri K.N. Saxena
Sri N.S. Chahar
C.S.C.

Constitution of India, Art. 226-Petitioner
working as class 4th employee in mental
Hospital, Agra-under central of Director
Medical Health and Family Welfare-after
conversion of Govt. Hospital in to society
all concerned were required give optionrefused by the petitioner-held-for all
purpose they are govt. employee-can not
be forced to work on deputation without
giving the period of deputation-can not
be treated the employee of new hospital.

Held: Para 30
Since the petitioners opted to remain
government servants and they did not
opt to be posted on deputation in the
new institution. Therefore, they were
sent back to their parental department
i.e.
Health
Department
of
U.P.
Government. The petitioners who did not
opt to be posted in the new institution
on deputation cannot be posted there on
deputation against their option. The
society of the new institution too cannot
be forced to retain those petitioners who
were the government servants and did
not opt to be posted on deputation in the
new institution.

(Delivered by Hon'ble Raj Mani Chauhan, J.)

1. Heard Sri G.K. Singh, learned
counsel for the petitioner and Sri K.N.
Saxena,
learned
counsel
for
the
respondent.

2. This Intra Court Appeal has been
filed by the Respondent No. 5, the
Director,
Mansik
Arogyashala/Mental
Hospital, Agra, District Agra in Civil
Misc. Writ Petition No. 48859 of 2002
(Santosh Kumar Gautam & 22 Others
Versus State of U.P. and 4 Others) against
the judgment and order dated 23.09.2003
passed by the learned Single Judge in the
above writ petition whereby he had
allowed the writ petition filed by the
petitioners.

3. The relevant facts giving rise to
the present appeal may be summarized as
under:

4. The petitioners-respondents no. 1
to 22 were initially appointed as class
IVth employee on different posts like
Attendants, Rajmistri, Cook, Game Ardali
and Sweeper by the appellant in Mansik
Arogyashala/Mental Hospital, Agra which
was under the control of Medical, Health
and Family Welfare, Department of U.P.
Government. A similar hospital known as
Ranchi Mansik Arogyashala was being
run by the Bihar Government. A writ
petition no. 448/1994 was filed by one
Aman Hingorani against Union of India
and Others before the Hon'ble Supreme
Court in which the Hon'ble Supreme
350 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Court
directed
that
the
Mansik
Arogyashala
be
converted
into
autonomous institution which will be
managed by a committee of management.
In view of the direction of the Hon'ble
Supreme Court in the above writ petition,
the government of U.P. too decided to
convert the Mansik Arogyashala/Mental
Hospital, Agra as autonomous institution.
Consequently, the government of U.P. got
a society registered and converted the
Mansik
Arogyashala
into
"Mansik
Swasthya Sansthan Evam Chikitsalaya,
Agra". The society was registered on
14.11.1996
under
the
Societies
Registration Act. The certificate of
registration was thereafter renewed on
14.11.2001. The Mental Hospital, Agra
which was being run by the government
was thereafter taken over by the society.
The committee of management and the
new institution became the autonomous
body.

5. All the officers and employees
who were previously working in Mental
Hospital were government employees and
they were treated to be on deputation in
the new institution. The state government
thereafter invited options of the officers
and employees who wanted to remain as
government servant or to work in the new
institution on deputation. The petitioners
did not opt to work in the institution on
deputation; rather they wanted to continue
as government servants. Since none of the
petitioners opted to be posted in the new
institution on deputation, therefore the
Commissioner,
Agra
Division
as
Chairman of the Society wrote a letter to
the government to relieve the petitioners
and others from the institution and send
them to their parent department. The
government accepted the request of the
Commissioner, Agra Division and issued
an order dated 23rd September 2002
directing the Director of Medical Health
Services, U.P. government, Lucknow to
see that all the employees who did not opt
to continue in the institution on deputation
run by the society be relieved and be
absorbed
in
medical
and
health
department
of
the
government.
Consequently,
respondent
no.
5
(appellant) vide order dated 29.10.2002
relieved all such employees including the
petitioners-respondents.
Thereafter,
Additional Director, Medical Health and
Family Welfare, Agra (Respondent No. 4)
issued an order dated 31.10.2002 posting
all such employees against various posts
in government health department. The
respondents-petitioners no. 1 to 22 and
one another aggrieved by the aforesaid
order dated 29.10.2002 and 31.10.2002
filed
the
aforesaid
writ
petition
challenging the validity and correctness of
the aforesaid orders passed by the
respondents no. 5 and 4 respectively.

6. The writ petition was opposed by
the respondents. Parties exchanged their
affidavits.

7.

The
main
question
for
consideration before the learned Single
Judge was that whether the petitioners
could be treated on deputation in the new
institution run by the society or they could
be sent back to their parent department?
The learned Single Judge was of the view
that two ingredients were essential for
posting an employee on deputation: -

(1) The deputation period should be for a
definite period.
(2) The employee can be sent on
deputation only with his consent.
1 All] Director, Institute of Mental Health V. Santosh Kumar Gautam and others
351
8. The learned Single Judge found
that in this case neither definite period for
deputation had been given by the
respondents to the petitioners nor their
consent was obtained before they were
treated to be posted on deputation.
Therefore the petitioners could not be
treated as posted on deputation in the new
institution of the society. Consequently,
the learned Single Judge held that the
order
dated
29.10.2002
passed
by
respondent no. 5 relieving the petitioners
from the institution and order dated
31.10.2002 passed by the respondent no.
4 posting them against different posts in
the Health Department were illegal. The
learned Single Judge, therefore, by the
impugned judgment and order allowed the
writ petition and quashed the impugned
orders dated 29.10.2002 and 31.10.2002.

9. The respondent no. 5 (appellant)
being aggrieved by the impugned order
has filed this Intra Court Appeal.

10. The facts of the case are almost
undisputed. Undisputedly, the Mental
Hospital, Agra was a government hospital
which was under the control of Director
of Health and Family Welfare of
Government of U.P.

11. Undisputedly, it was converted
into autonomous body and re-named as
"Mansik
Swasthya
Sansthan
Evam
Chikitsalaya (Institute of Mental Health
and Hospital) Agra" under the control of
Society and it ceased to be under the
direct control of U.P. government.

12. Undisputedly, the petitioners
were appointed by the appellant in the
Mental Hospital, Agra on different dates
as class IVth employee as Attendants,
Rajmistri,
Cook,
Game
Ardali
and
Sweeper, etc.

13. After the conversion of Mental
Hospital, Agra into new institution under
management of society, the petitioners
appointed by the Director continued to be
government servants. They were treated
on deputation in the new institution.

14. The question to be considered by
this Court in the present appeal is,
whether the petitioners (respondents no. 1
to 22) continued to be employees of new
institution named as Mansik Swasthya
Sansthan Evam Chikitsalaya, Agra as
government servant?

15. The submission of learned
counsel for the appellant is that the
Mansik
Arogyashala/Mental
Hospital,
Agra
was
a
government
hospital,
petitioners
were
appointed
by
the
appellant (respondent no. 5), the Director
of the Institute of Mental Health and
Hospital, Agra as such they were
government servants.

16. The government of Uttar
Pradesh on the pattern of Ranchi Mental
Hospital decided to convert the hospital
into autonomous body to be managed by a
society constituted by it. Consequently,
the government formed a society to run
the institution consisting of the following
members:

(i) Divisional
Commissioner,
Agra-
Chairman
(ii) District Magistrate, Agra - Member
(iii) Sr. Superintendent of Police, Agra -
Member
(iv) Health Secretary, Govt. of U.P. or his
representative - Member
352 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
(v) Two non-officials at one of them
shall be a woman - Members
nominated by the Government of U.P.
(vi) Principal, King George Medical
College, Lucknow - Member
(vii) Director
of
AMA
-
Member
Secretary

17. The government got the society
registered
under
the
Societies
Registration, Act on 14.11.1996. The
Mansik
Arogyashala/Mental
Hospital,
Agra was taken over by the society and it
was re-named as "Mansik Swasthya
Sansthan Evam Chikitsalaya, Agra". As a
result of conversion of the hospital into
Mansik
Swasthya
Sansthan
Evam
Chikitsalaya, Agra, the officers and
employees of the Mental Hospital, Agra
did not automatically become the officers
and employees of the new institution;
rather they continued to be government
servant. For the time being, the officers
and other employees of the hospital were
treated to be on deputation in the new
institution as it is clear from the letter
dated 18th February 1997 written by Dr.
Bachhi
Lal,
the
Special
Secretary,
Government of U.P. to Director General,
Chikitsa Evam Swasthya Sevaye, Uttar
Pradesh, Lucknow (Annexure 4). In this
letter, it had clearly been mentioned that
the officers and employees of the hospital
will be treated to be on deputation in the
new institution and only those officers
and employees will be treated to be
officers and employees of the new
institution who will be directly appointed
by the society running the new institution.
The appellant thereafter passed an order
(Annexure 5) calling option from the
petitioners and other employees of the
Mental Hospital, Agra to give their option
as to whether they wanted to continue as
government servant in their parental
department or they wanted to continue in
the new institution on deputation basis.
Santosh Kumar Gautam one of the
petitioners thereafter filed a written
declaration (Annexure 6) that he did not
want to continue in the new institution;
rather he would like to remain in the
government service. Likewise Santosh
Kumar Gautam, the other petitioners too
opted to continue as government servants.
Thereafter, Sri B.K. Sharma, the then
Commissioner, Agra Division/Chairman
of the Society running Mansik Swasthya
Sansthan Evam Chikitsalaya, Agra wrote
a letter (Annexure 7) to the Secretary,
Chikitsa Evam Swasthya Anubhag 7, U.P.
government,
Lucknow
to
post
the
petitioners somewhere in their parental
department as they were not cooperating
in smooth functioning of the institution.

18. On the above letter the
government of U.P. vide letter dated 23rd
September 2002 (Annexure 8) took a
decision that the petitioners and others
who were reported by the Commissioner,
Agra Division/Chairman of the Society
running the new institution, be adjusted in
their parental department. The Additional
Director, Medical, Health and Family
Welfare, Agra Division, Agra thereafter
vide letter dated 31.10.2002 (Annexure
10) sent the petitioners and others back to
their parental department.

19. Learned Counsel argued that the
learned Single Judge had not treated the
petitioners on deputation; even then he
treated them to continue in the new
institution which is inconsistent. The
learned Single Judge had found that the
applicants had not opted to be posted on
deputation
in
the
new
institution.
Therefore, they could not be treated as
1 All] Director, Institute of Mental Health V. Santosh Kumar Gautam and others
353
posted
on
deputation
in
the
new
institution.

20. Learned counsel argued that the
new institution formed and re-named as
Mansik
Swasthya
Sansthan
Evam
Chiktislaya, Agra run by the society is not
the same as Mansik Arogyashala/Mental
Hospital, Agra. The new institution is
under the control of the society while the
Mansik
Arogyashala/Mental
Hospital,
Agra was purely governmental hospital
run by the government. The status of the
officers and employees of the new
institution did not remain the same which
was in the Mansik Arogyashala/Mental
Hospital,
Agra.
The
officers
and
employees of the hospital ceased to be
government servant after conversion of
hospital into new institution. The officers
and
employees
of
the
Mansik
Arogyashala/Mental Hospital, Agra were
treated to be on deputation in the new
institution for the time being and options
were called for from them whether they
wanted to be posted in the new institution
on deputation or they wanted to continue
in the government service. The petitioner
opted to remain as government servant.
Therefore, they were rightly relieved by
the appellant after they were posted by
respondent no. 4 (Additional Director,
Medical Health and Family Welfare, Agra
Region) at different places.

21. Since the petitioners were
government servants and they did not opt
to be posted in the new institution on
deputation, therefore, neither they could
be forced to remain in the same institution
as government servants nor they could be
legally allowed to work in the institution
run by the society. Moreover, the
appellant could not be compelled to retain
the petitioners against his will who did
not opt to remain in the institution on
deputation.

22. The learned Single Judge did not
take into consideration of this aspect of
the matter. The impugned judgment and
order
had
been
passed
without
appreciation of correct legal position,
therefore, the impugned judgment and
order dated 23.09.2003 is liable to be set
aside and the appeal deserves to be
succeed.

23. Learned counsel for the
respondents supported the impugned
judgment passed by the learned Single
Judge and argued that the respondents No.
1 to 22 were employees of erstwhile
Mansik
Arogyashal/Mental
Hospital,
Agra. They were government servant after
conversion of Mansik Arogyashal/Mental
Hospital, Agra into new institution known
as Mansik Swasthya Sansthan Evam
Chiktsalaya, Agra, the officers and
employees became the officers and
employees of the new institution. They
had no other parental department except
the Mansik Arogyashal/Mental Hospital,
Agra. Therefore, they could not be posted
somewhere-else other than the new
institution. The learned Single Judge had
rightly treated them the employees of the
new institution and allowed them to
continue in the new institution which does
not suffer from any infirmity or illegality.

24. We have given anxious
consideration to the arguments advanced
by the learned counsel for the parties. The
'Mansik Arogyashala/Mental Hospital,
Agra' was purely a government Hospital
run by the Director, Medical, Health and
Family Welfare, Govt. of U.P. The
petitioners were employed there as class
IVth employee on different posts like
354 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Attendants, Rajmistri, Cook, Game Ardali
& Sweeper and they were purely
government
servants.
The
Mansik
Arogyashal/Mental Hospital, Agra was
converted into new institution and renamed as "Mansik Swasthya Sansthan
Evam Chikitsalaya, Agra" which was
under the control and management of a
Society registered under the Societies
Registration Act. The status of new
institution became autonomous which is
purely different form the status of Mansik
Arogyashala/Mental Hospital, Agra. The
officers and employees of the new
institution
were
the
officers
and
employees
of
the
society
not
the
employees of the government. The
officers and employees of the Mansik
Arogyashala/Mental Hospital, Agra were
treated to be on deputation in the new
institution for the time being.

25. From a perusal of letter dated
18th February 1997 (Annexure 4), it
appears that the Special Secretary, U.P.
Government had wrote a letter to Director
General, Medical and Health Services,
U.P. Government that the officers and
employees
of
the
Mansik
Arogyashala/Mental
Hospital,
Agra
would be treated to be officers and
employees in the new institution on
deputation. The Director of Medical and
Health was requested to issue order
accordingly treating them on deputation.
Thereafter,
the
Director
of
Mansik
Swasthya Sansthan Evam Chikitsalaya,
Agra passed an order that the officers and
employees
of
the
Mansik
Arogyashala/Mental Hospital, Agra were
the officers and employees of the
government their parental department was
government department they will be
posted
in
the
new
institution
on
deputation. The Director by the same
order had asked every officer and
employee to give a declaration to the
effect that whether he wanted to be posted
on deputation in the new institution or
wanted to remain as government servant
Santosh Kumar Gautam one of the
petitioners gave a declaration (Annexure
6) that he did not want to be posted on
deputation in the new institution; rather he
would continue to be government servant.
The other petitioners too opted to remain
in government service.

26. From a perusal of letter dated
10.06.2002 written by the Commissioner,
Agra Division/Chairman, Mental Health
Institute and Hospital, Agra (Annexure 7),
it appears that he had written a letter to
Secretary, Medical, Health and Family
Welfare, U.P. Government informing him
that as many as 26 employees of erstwhile
Mental
Hospital,
Agra
were
not
cooperating in the smooth functioning of
the institution they be returned to their
parental department.

27. From a perusal of letter dated
23rd September 2002 (Annexure 8), it
appears that the government on the basis
of letter written by the Divisional
Commissioner, Agra ordered for sending
back the employees mentioned in the
letter including the petitioners to their
parental department.

28. From a perusal of letter dated
29.10.2002 written by Director, Mental
Health
Institute
and
Hospital,
Agra(Annexure 9), it appears that the
petitioners and others as mentioned above
were ordered to be sent back to their
parental department.

29. From a perusal of letter dated
31.10.2002, it appears that the Additional
1 All] Union of India and others V. Bhim Yadav
355
Director, Medical and Health Services,
Agra Division (Respondent No. 4) placed
the petitioners and others on different
posts in different districts of Agra
Division.

30. Since the petitioners opted to
remain government servants and they did
not opt to be posted on deputation in the
new institution. Therefore, they were sent
back to their parental department i.e.
Health Department of U.P. Government.
The petitioners who did not opt to be
posted
in
the
new
institution
on
deputation cannot be posted there on
deputation against their option. The
society of the new institution too cannot
be forced to retain those petitioners who
were the government servants and did not
opt to be posted on deputation in the new
institution.

31. In view of the discussions
hereinabove mentioned we are of the
considered opinion that the petitioners
cannot be treated to be employees of the
new institution namely Mansik Swasthya
Sansthan
Evam
Chiktsalaya,
Agra.
Therefore, they cannot be thrushted on the
new institution against the wishes of the
society.

32. The learned Single Judge did not
take into consideration of this fact while
allowing
the
writ
petition
of
the
petitioners. Therefore, the impugned
judgment and order dated 23.09.2003 is
liable to be set aside and the writ petition
is liable to be dismissed.

33. Consequently, the special appeal
is allowed and the judgment and order
dated 23.09.2003 passed by the learned
Single Judge in Civil Misc. Writ Petition
No. 48859 of 2002 is set aside and the
writ petition filed by the respondents is
dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.04.2010

BEFORE
THE HON'BLE VIJAY MANOHAR SAHAI, J.
THE HON'BLE RAJ MANI CHAUHAN, J.

Special Appeal No. 519 of 2004

Union of India, through the Secretary
Ministry of Home New, Delhi and others

 ...Appellants/Applicants
Versus
Bhim Yadav

...Opposite Party

Counsel for the Applicants:
Sri Subodh Kumar
Sri Udit Chandra
S.C.

Counsel for the Opposite Party:
Sri Brijesh Chandra Naik
Sri Jokhan Prasad
Sri P.K. Misra
Sri V.B. Shukla
Sri I.R. Singh

Central Reserved Police Force Act 1949Section
11
(1)-read
with
Central
Reserved Police Force Rules, 1955-Rule
27-dismissal order passed in State of
West Bengal-service of impugned order
or mere residing of petitioner in U.P.-
validity of such order can not be
adjudicated by High Court Allahabadjudgment
by
Single
Judge
without
jurisdiction-objection
if
writ
not
maintainable appeal should also goes to
same
fate-misconceived-petition
dismissed.

Held: Para 4

Having given our anxious consideration
to the question, we are of the considered
opinion that since the removal order and