# Ghanshyam Prasad v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1404
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-09
- **Case number:** Civil Misc. Writ Petition No. 56427 of 2013
- **Bench:** Rajes Kumar, Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ghanshyam-prasad-v-state-of-u-p-and-ors-42714
- **Pages:** 4

## Headnote

Constitution of India, Art.-226-Service
law-repatriation to parrant departmentappointment on basis of deputationheld-after expiry of deputation periodrepatriation-held proper.

Held: Para-7
In view of the above, we are of the view that
the petitioner has been sent to Minority
Welfare Department on deputation and on
the expiry of the period of engagement the
repatriation of the petitioner to his parent
department cannot be said to be justified.

Case Law discussed:
AIR 2000SC 2076; 2007(14) SCC 498;
MANU/SC/1536/2009; AIR 1990 SC 1132.

## Text

1404 INDIAN LAW REPORTS ALLAHABAD SERIES

94. The procedure provided in rules 6
to 8 is for the final enquiry and not for the
preliminary enquiry. A report by an enquiry
officer defined under rule 2(c) is also a report
by a person prescribed. It is not necessary for
the enquiry officer to conduct the preliminary
inquiry only on the direction given by the
DM. His job is to submit a report, so that the
DM may take a decision.

Whether there is prima facie case
against the pradhan or not; and

Whether the final enquiry should be
held after ceasing his powers.

96.A report by an enquiry officer
defined under rule 2(c) is also a report by a
person and the manner is prescribed under
the Rules--irrespective of the fact that he was
so asked by the DM or not. In our opinion, it
is also a preliminary report within the
meaning of the proviso to section 95(1) (g)
of the Panchayat Raj Act."

34. The petitioner complainant shall
have an opportunity during the course of
regular
enquiry
to
lead
oral
and
documentary evidence as is provided for
in sub section (11) of Section 6 of the
Rules and further will also have an
opportunity of hearing as contemplated
under sub section 16 of Rule 6. Sub
section (11) and sub section (16) of Rule
6 reads as follows:

"(11).On the date fixed for the enquiry,
the oral and documentary evidence by which
the articles of charge are proposed shall be
produced and the witness shall be examined,
by the Enquiry Officer by or on behalf of the
complainant, if there is one, and may be
cross-examined by or on behalf of the person
against whom the Enquiry Officer is being
held. The witnesses may be re-examined by
the Enquiry Officer or the complainant, as
the case may be, on any point on which they
have been cross- examined, but no on any
new matter, without the leave of the Enquiry
Officer."

(16) The Enquiry Officer may, after
the completion of the production of
evidence, hear the complainant, if any and
the the person against whom the enquiry
is being held, or permit them, or him, as
the case may be, to file written briefs of
their respective cases."

35. Thus it is evident from the scheme
of the Act and the rules framed there under,
the complainant only has a right to
participate in the regular enquiry to the extent
rules provided for, but he has no locus to
challenge the order passed by District
Magistrate either on the report of preliminary
enquiry or that of final enquiry.

36. Rule 8 of the Rules provide that the
Inquiry Officer shall conclude the inquiry
within six months from the date of the receipt
of the complaint and forward to the State
Government the records of the inquiry. Since
the inquiry is pending for the past 20 months, it
is expected that it shall be concluded
expeditiously within three months from the
date of production of certified copy of this
order.

37. The writ petition is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2013

BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE MAHESH CHANDRA TRIPATHI,J.

Civil Misc. Writ Petition No. 56427 of 2013

Ghanshyam Prasad

 ...Petitioner
Versus
State of U.P. and Ors. ...Respondents
3 All] Ghanshyam Prasad Vs. State of U.P. and Ors.
1405
Counsel for the Petitioner:
Sri Sanjay Kumar Singh

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Service
law-repatriation to parrant departmentappointment on basis of deputationheld-after expiry of deputation periodrepatriation-held proper.

Held: Para-7
In view of the above, we are of the view that
the petitioner has been sent to Minority
Welfare Department on deputation and on
the expiry of the period of engagement the
repatriation of the petitioner to his parent
department cannot be said to be justified.

Case Law discussed:
AIR 2000SC 2076; 2007(14) SCC 498;
MANU/SC/1536/2009; AIR 1990 SC 1132.

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

1. Heard learned counsel for the
petitioner and the learned Standing Counsel.

2. The petitioner was Assistant
Development Officer, Block Charganva,
Gorakhpur, Social Welfare Department, who
has been sent to the Minority Welfare and
Waqf Department on deputation for a period
of one year. The said period has been
extended from time to time and now three
years' period has passed, which expired on
31st March, 2013. The respondents have
refused to extend the further period of
deputation and by the order dated 31st May,
2013, the petitioner has been repatriated back
to his parent department, which order is
being challenged by means of the present
petition.

3. Learned counsel for the petitioner
submitted
that
the
petitioner
was
suspended and after revocation of the
suspension, when he has not been allowed to
join the post he was holding, he preferred
Writ Petition No. 23763 of 2013, which has
been entertained and an interim order has
been passed, permitting the petitioner to
function as the District Minority Welfare
Officer, Kushi Nagar and the said interim
order is still continuing, therefore, the
petitioner is entitled to continue to work as
the District Minority Welfare Officer, Kushi
Nagar in the Minority Welfare and Waqf
Department.

4. We do not find any error in the
impugned order and there is no substance
in the submission of the learned counsel
for the petitioner. The petitioner was the
employee
of
the
Social
Welfare
Department, who has been sent on
deputation to the Minority Welfare and
Waqf Department only for a period of one
year where he worked on deputation for a
period of three years and has rightly been
repatriated back to his parent department.
In the Writ Petition No.23763 of 2013,
the claim of the petitioner is that prior to
suspension, the petitioner was working as
the District Minority Welfare Officer,
Kushi Nagar and after revocation of the
suspension he has been posted in a
different department and has not been
permitted to function as the District
Minority Welfare Officer, Kushi Nagar.
On these facts at that stage, the said writ
Petition has been entertained and the
interim order has been passed. The
interim order passed in the said writ
petition is not an impediment in passing
the impugned order, repatriating back the
petitioner to his parent department, after
expiry of the period of deputation.

5. On 4.8.1984, the petitioner was
appointed as an Assistant Development
Officer in Social Welfare Department. By
1406 INDIAN LAW REPORTS ALLAHABAD SERIES
the letter dated 4.4.2008 and 27.10.2008
written by the Secretary, U.P. Government to
the Principal Secretaries Heads of the various
Departments of U.P. applications were
invited from those employees, who are
willing to for the post of Regional District
Minority Welfare Officer/Deputy Director in
the pay-scale of Rs.10000-15200 and for
District Minority Social Officer in the payscale of Rs.0600-10500 on the transfer of
service basis. It appears that the petitioner
applied for the post of District Minority
Welfare Officer. By the order of the Principal
Secretary dated 27.7.2009, the petitioner has
been appointed as the District Minority
Welfare Officer, temporarily on the transfer of
service basis for a period of one year or till the
selection of the regular candidate by the
Public Service Commission. It appears that
the period of one year has been extended from
time to time and now three years period has
been expired on 31.3.2013. The last extension
upto the period of 31.3.2013 was given by the
Government Order dated 19.10.2012. By the
impugned
Government
Order
dated
31.5.2013, the Government has declined to
extend the period of deputation on the ground
that there is no reason to extend the period in
the public interest and has sent back the
petitioner to his parent department.

6. There is no dispute that both, the
Social Welfare Department and the
Minority Welfare Department are two
separate departments. There is nothing to
suggest by any of the Government Order,
referred herein-above, that the petitioner
was to be absorbed in the Minority
Welfare Department at any point of time.
The appointment letter dated 27.7.2009
reveals that the petitioner has been
appointed temporarily as a District
Minority Officer for a period of one year
on transfer of service basis or till the
regular selection of the candidate by the
Public Service Commission, whichever is
earlier, which the petitioner has accepted
and joined. There is nothing to show that
the petitioner at any stage has been
absorbed
in
the
Minority
Welfare
Department. There is no pleading in the
writ petition that the lien of the service of
the petitioner in the Social Welfare
Department has ceased.

7. In view of the above, we are of the
view that the petitioner has been sent to
Minority Welfare Department on deputation
and on the expiry of the period of engagement
the repatriation of the petitioner to his parent
department cannot be said to be justified.

8. In the case of Kunal Nanda v
Union of India, reported in AIR 2000 SC
2076, the Apex Court has held that the
employee
who
has
been
sent
on
deputation
has
no
right
to
claim
absorption.

9. In the case of U.P. Rajkiya
Nirman Nigam v P.K. Bhatnagar, reported
in 2007 (14) SCC 498, the Apex Court
has held that mere fact that he has spent
several years in service in the department
where he has been sent on deputation will
not alter the position from that of a
deputationist to a regular employee.

10. In the case of Union of India v S.A.
Khailiq Pusha, MANU/SC/1536/2009, the
Apex Court has held that the basic principal
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 on deputation or get absorbed in the
department to which he had gone on
deputation.
3 All] Dr. Shiv Singh & Ors. Vs. State of U.P. and Ors.
1407

11. In the case of Ratilal B. Soni and
others v. State of Gujarat and others, reported
in AIR 1990 SC 1132, the Apex Court has
held that employee on deputation do not get
any right to be absorbed on deputation post
and can be reverted back to his parent
department at any time.

12. In view of the above, the writ
petition, being devoid of merits, fails and
is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.10.2013

BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE MAHESH CHANDRA TRIPATHI,J.

Writ A No. 58263 of 2013, W.P. No. 58266 of
2013, W.P. No. 58269 of 2013, W.P. No.
58271 of 2013, W.P. No. 58388 of 2013, W.P.
No. 58389 of 2013

Dr. Shiv Singh & Ors.
 ...Petitioners
Versus
State of U.P. and Ors. ...Respondents

Counsel for the Petitioner:
Sri R.P. Dubey

Counsel for the Respondents:
C.S.C., Sri Vivek Varma

Constitution of India, Art. 226-Service
law-retirement
age-lecturer,
reader/professor-in different degree college
or post graduate colleges-claiming their age
of superannuation as 65 years-in J.P.
Sharma case the Apex Court held age of
retirement as 62 years-entitle for salary
benefit during period they have worked even
after achieving 62 years-petition disposed of
with same direction to release pensionary
benefit-taking into account the age of 62
years-accordingly general mandamus issued.

Held: Para-6
In view of the above, the writ petition is
disposed of with the direction that the
petitioners are entitled for the salary for the
period, during which they have worked in
view of the interim order granted by any
Court or by the Apex Court even after
attaining the age of 62 years but their post
retiral benefits shall be calculated on the
basis of salary drawn when the petitioners
attained the age of superannuation, i.e. 62
years. Respondents nos.2, 3 and 6 are
directed to make the payment to the
petitioners
after
necessary
verification,
within a period of two months as directed
above from the date of presentation of the
certified copy of this order in accordance to
law.

Case Law discussed:
Civil Appeal No. 5527-5543 of 2013

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

1. Heard learned counsel for the
parties.

2. The petitioners retired as Readers,
Lecturer/Associate
Professor/Associate
Professor/Reader. They claimed that their
age of retirement should be 65 years while
the claim of the State Government was that
the age of retirement is 62 years. Matter went
upto the Apex Court. In Civil Appeal
Nos.5527-5543 of 2013, Jagdish Prasad
Sharma etc. Vs. State of Bihar & Ors. and in
other connected appeals arising from the
State of U.P., the Apex Court vide order
dated 17.07.2013 has held that the age of
retirement is 62 years and the claim of the
petitioners that the age of retirement should
be 65 years has been rejected. Before the
Apex Court, it was also contended that some
of the teachers, Professors, Readers etc.
worked on the basis of the interim order after
62 years and, therefore, they are also entitled
for the benefit of service. In respect of such
claim, the Apex Court observed that
"However, persons, who have continued to