# Mahesh Chandra Gautam v. State of U.P. and others

- **Citation:** (2005) 4 ILRA 1181
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-25
- **Case number:** Writ Petition No. 50378 of 2005
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-chandra-gautam-v-state-of-u-p-and-others-40587
- **Pages:** 4

## Headnote

Constitution of India, Art. 226-Service
law-Right of deputanist-petitioner, send
on deputation-from Police department to
the Trade Tax Department-for period of
3 years-the Commissioner Trade Tax by
impugned
Order-repatriated
back
to
Police Department-challenged on ground
that
before
expiry
of
period
of
deputation-the Commission Trade Tax
has no authority-held-in absence of
Rules or Regulations in this regard the
borrowing
department
has
every
jurisdiction it can not be saddled with
surplus staff.
1182 INDIAN LAW REPORTS ALLAHABAD SERIES [2005

Held: Para 9 & 10

There is another aspect of the matter.
The borrowing department cannot be
saddled with surplus staff and if their
services are not required, it is always
open to the borrowing department to
sent the employee back to the parent
department. In my view, the borrowing
department was competent to pass the
orders repatriating the petitioners back
to their parent department.

In view of the aforesaid and in the
absence of any Rules or Regulations, I
am of the opinion that the Trade Tax
Department was competent to repatriate
the petitioners back to the parent
department. The borrowing department
had complete and full jurisdiction to pass
the order repatriating the petitioners to
their parent department.

Case law discussed:

1981 LIC-1057 distinguished
199 (3) AWC 2414
1981 LABIC 1057
2005 (5) SCC-362
2002 (4) AWC-3067 (L.B.)

## Text

4 All] Mahesh Chandra Gautam V. State of U.P. and others
1181
on the property of Gaon Panchayat is
wholly unsustainable in law. This Court is
also of the opinion that if a person is
having capacity to construct Barat Ghar,
he cannot be considered to be a landless
agricultural labourer under the U.P.Z.A.
& L.R. Act and is a person of sufficient
means.

15. For admission of a person as a
Bhamidhar under Section 122-B(4-F) of
the Act, the first condition to be satisfied
is that person must be an agricultural
labourer. In order to prove that he is an
agricultural labourer, applicant claiming
benefit under Section 122-B(4-B) of the
Act is required to prove that his main
source of livelihood is agricultural labour.
For this purpose he shall also that have to
prove the facts giving details such as
where and in whose field he is working as
an agricultural labour as well as his total
income received from working as an
agricultural labour and other relevant
facts. Second important factum required
to be proved is that the main source of
livelihood of a person claiming benefit
under Section 122-B(4-F) of the U.P.Z.A.
& L.R. Act is agriculture labour.

16. In the present case neither there
is any evidence on record to show that
petitioner was ever engaged or working as
an agricultural labour or his main source
of
livelihood
was
income
from
agricultural labour. The report of the
Revenue Inspector dated 5.7.2003 does
not mention petitioner as an agricultural
labourer on the relevant date could not be
settled in his favour under Section 122B(4-F) of the U.P.Z.A. & L.R. Act.

17. In view of the above facts where
petitioner tried to usurp the property of
Gaon Panchayat, this court is of the view
that appropriate proceeding be initiated
against the petitioner, Gram Pradhan and
the collusion order were passed in favour
of petitioner. Consequently, the District
Magistrate,
Etawah
shall
initiated
appropriate
proceedings
against
the
concerned
revenue
official/inspector
alongwith
Gram
Pradhan
and
the
petitioner immediately.

With above directions, writ petition
is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Writ Petition No. 50378 of 2005

Mahesh Chandra Gautam ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Vijay Gautam
Sri Satya Prakash
Sri Amit Srivastava

Counsel for the Respondents:
Sri Suresh Singh
S.C.

Constitution of India, Art. 226-Service
law-Right of deputanist-petitioner, send
on deputation-from Police department to
the Trade Tax Department-for period of
3 years-the Commissioner Trade Tax by
impugned
Order-repatriated
back
to
Police Department-challenged on ground
that
before
expiry
of
period
of
deputation-the Commission Trade Tax
has no authority-held-in absence of
Rules or Regulations in this regard the
borrowing
department
has
every
jurisdiction it can not be saddled with
surplus staff.
1182 INDIAN LAW REPORTS ALLAHABAD SERIES [2005

Held: Para 9 & 10

There is another aspect of the matter.
The borrowing department cannot be
saddled with surplus staff and if their
services are not required, it is always
open to the borrowing department to
sent the employee back to the parent
department. In my view, the borrowing
department was competent to pass the
orders repatriating the petitioners back
to their parent department.

In view of the aforesaid and in the
absence of any Rules or Regulations, I
am of the opinion that the Trade Tax
Department was competent to repatriate
the petitioners back to the parent
department. The borrowing department
had complete and full jurisdiction to pass
the order repatriating the petitioners to
their parent department.

Case law discussed:

1981 LIC-1057 distinguished
199 (3) AWC 2414
1981 LABIC 1057
2005 (5) SCC-362
2002 (4) AWC-3067 (L.B.)

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri Vijay Gautam, Sri
Satya Prakash and Sri Amit Srivastava,
the learned counsels for the petitioners
and Sri Suresh Singh, the learned standing
counsel appearing for the respondents.

2. The petitioners have challenged
the order dated 8.7.2005 issued by the
Joint Commissioner, Trade Tax, whereby
the petitioners have been repatriated back
to their parent department, i.e., the Police
Department. It transpires that on the
request of the Trade Tax Department, the
petitioners were sent on deputation to the
Trade Tax Department for a period of
three years. It is alleged that the period of
three years has not yet expired and, by the
impugned order, the period of deputation
has been cut short and the petitioners have
been repatriated back to their parent
department. The ground of attack is, that
the Joint Commissioner, Trade Tax has no
power to issue the order of repatriation,
inasmuch as, only the parent department
could recall the petitioners. The Joint
Commissioner, Trade Tax has the power
and authority to transfer the petitioners in
the Trade Tax Department itself, but
could not transfer or repatriate the
petitioners back to the parent department
and that the parent department could
alone issue the order of repatriation.
Further, the period of deputation had not
come to an end, therefore, without
canceling the original order, the present
order of repatriation could not have been
issued. The learned counsel further
submitted that the petitioners' lien is still
with
the
Police
Department
and,
therefore, the order of repatriation could
only be passed by the Police Department
and not by the Trade Tax Department. In
support of their contention, the learned
counsels for the petitioners have relied
upon a Full Bench decision of the Punjab
and Haryana High Court, in the case of
Dr.
Bhagat
Singh
vs.
The
Vice
Chancellor,
Punjab
University,
Chandigarh
and
others,
1981
L.I.C.1057, wherein it was held that a
Government Officer who was appointed
as a Vice Chancellor of a University for a
period of three years and sent on
deputation could not be recalled before
the expiry of his term.

3. The learned counsels for the
petitioners further submitted that the
Trade Tax Department should have
written to the parent department to
4 All] Mahesh Chandra Gautam V. State of U.P. and others
1183
repatriate the petitioners rather than issue
the order of repatriation themselves. Since
the Trade Tax Department had no
jurisdiction to issue the impugned order,
the impugned order was liable to be
quashed.

4. On the other hand, the learned
standing counsel submitted that since the
petitioners themselves admitted that they
had no lien on any post in the Trade Tax
Department and that the lien is still with
their parent department, in that event they
cannot be aggrieved by the order of
repatriation.

5. The learned Standing Counsel
further submitted that it is open to the
Trade Tax Department or to Police
Department to cut short the period and
repatriate the petitioners. The Standing
Counsel further submitted that it is open
to both the department to pass the order of
repatriation. In the present case, the
petitioners were found to be surplus and
were not required in the Trade Tax
department. On the basis of the letter of
the Additional Commissioner, the Trade
Tax Commissioner, Lucknow issued an
order
on
7.7.2005
repatriating
the
petitioners to the Police Department.
Based on the order of the Commissioner,
the impugned order was issued by the
Joint
Commissioner.
The
Standing
Counsel further stated that on the basis of
the aforesaid orders, the Additional
Director General of Police, Uttar Pradesh,
Lucknow has accepted the repatriation of
the
petitioners
back to
the
Police
Department and had issued necessary
directions to the authorities to post the
petitioners
at
different
places.
The
submission
of
the learned standing
counsel is, that even assuming that the
Trade Tax Department had no authority to
issue the said order, nonetheless, the order
has
been
accepted
by
the
Police
Department and therefore it does not lie in
the mouth of the petitioner to contend that
they are liable to continue to serve the
Trade Tax Department till the period of
deputation.

6. It my view, the contentions raised
by the learned counsels for the petitioners
cannot be accepted. It is perogative of the
employer to call back its employees sent
on deputation. The employee, who has
been sent on deputation and in the present
case, namely, petitioners have no right or
lien on the deputation post. Even if period
has been cut short, the petitioners have no
right or claim on that post and they cannot
stand before this Court and submit that
they are entitled to continue on that post
till the original period of deputation. In
Hari Om Tripathi vs. Nideshak, Rajya
Nagar Vikas Adhikaram and another,
1999 (3) A.W.C. 2414, this Court held
that the employee, who was sent on
deputation could be reverted back to the
parent department prior to the expiry of
the stipulated period, since the employee
cannot claim any right on the deputation
post.

7. The learned Single Judge further
distinguished the case of Dr. Bhagat
Singh vs. The Vice Chancellor, Punjab
University, Chandigarh and others,
1981 LABIC 1057 and held that the facts
and circumstances in the case of Dr.
Bhagat Singh were totally different and
could not be equated with the facts of the
petitioner. I am in complete agreement
with the aforesaid decision of this Court
and for the aforesaid reason, the decision
cited by the learned counsel for the
petitioner, i.e., namely, the case of Bhagat
Singh is clearly distinguishable and is not
1184 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
applicable to the facts and circumstances
of the present case.

8. In Kunal Nanda vs. Union of
India and another, 2000 (5) SCC 362,
the
Supreme
Court
held
that
a
deputationist can always and at any time
be repatriated to his parent department
either at the instance of the borrowing
Department or on the instance of the
lending department. The Supreme Court
further held that incumbent who had
which has been posted had no vested right
to continue on deputation or get absorbed
in borrowing department. The Supreme
Court held-

"On the legal submissions also made
there are no merits whatsoever. It is well
settled that unless the claim of the
deputationist for a 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 on deputation or get
absorbed in the department to which he
had gone on deputation."

Similar view was taken by a Division
Bench of this Court in Dr. O.P. Singh vs.
State of U.P. and others, 2002 (4) AWC
3067 (LB).

9. There is another aspect of the
matter. The borrowing department cannot
be saddled with surplus staff and if their
services are not required, it is always open
to the borrowing department to sent the
employee back to the parent department.
In my view, the borrowing department
was competent to pass the orders
repatriating the petitioners back to their
parent department.

10. In view of the aforesaid and in
the absence of any Rules or Regulations, I
am of the opinion that the Trade Tax
Department was competent to repatriate
the
petitioners back
to the parent
department. The borrowing department
had complete and full jurisdiction to pass
the order repatriating the petitioners to
their parent department.

11. Consequently, I do not find error
in the impugned order. The writ petitions
fail
and
are
dismissed.
In
the
circumstances of the case, there shall be
no order as to cost.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.07.2005

BEFORE
THE HON'BLE AJOY NATH RAY, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No. 884 of 2005

Mohd. Arif
 ...Petitioner/Appellant
Versus
M/s Mirza Glass Works and others

...Respondents

Counsel for the Petitioner:
Sri Y.S. Saxena
Sri D.K. Kulshreshtha

Counsel for the Respondents:
Sri V. Sahai
C.S.C.