2003 ALL SCR 105
SUPREME COURT OF INDIA
SHIVARAJ V. PATIL J.ARIJIT PASAYAT J.
Ram Ganga Command Area Development Authority & Anr. Vs. Sheetal Kumar Vaish & Ors.
Appeal (Civil) 20482049 of 1999C.A.Nos. 21192120/1999
12th March 2003
Cases Cited :
ARIJIT PASAYAT, J.:- These appeals are classic examples of how simple controversies can be turned into confusions galore. The chameleonic somersaults in stands taken by the concerned authorities has added to the confusion in no less measure. The controversy related to simple question as to whether Seethal Kumar Vaish (hereinafter referred to as ’the employee’) was on deputation, and if not, what was his status in employment. The High Court rightly noted that there has been great shift of stands by the parties and ultimately came to the conclusion that the employee was in substantive employment with Ram Ganga Command Area Development Project (hereinafter referred to as the ’Project’) and thereafter in the Ram Ganga Command Area Development Authority (hereinafter referred to as ’the Authority’). He was not liable to be treated as employee of the Kanpur Sakkari Milk Board Limited (in short ’Milk Board’).2. As the stand has shifted and there is no consistency therein, it would be appropriate to cull out the basic features so that the controversy can be best resolved. The judgment of the High Court has been assailed by both the authority and the State of Uttar Pradesh.3. The factual scenario, keeping out the contradictions, as essentially are as follows: The employee was appointed by the Milk Board by order of appointment dated 5/9.4.1974 as Assistant Sales Officer on probation for six months, which period could be extended; the appointment was purely on temporary basis and could be terminated without notice and assigning any reason at any time even before the stipulated period. The authority requested the Area Development Department of the State Government for sending the employee on deputation, by its letter dated 6.2.1977, for being posted in the newly created Animal Husbandry Department. At that point of time, the employee was working as Field Officer. The Milk Board by its letter dated 25.2.1977/1.3.1977 acted on the said request.4. The letter of the Milk Board is of great significance in the present controversy. The same is reproduced:"Office of the Kanpur Cooperative Milk BoardLtd. Nirala Nagar, Kanpur.Letter No. 2128/Admn. Dated 25.2.77/1.3.77The Administrator,Ram Ganga Block Development Authority,3/A/245 Azad Nagar,Kanpur.Subject: Deputation of the field officerShri S.K. Vasya.Sir,With reference to your letterNo.15015/Est/77 dated February 8, 1977,it is respectfully submitted that ShriS.K. Vashya Filed Officer has given hisconsent in writing for going to RamGanga Authority on deputation.Therefore, Mr. Vashya is being relievedfrom this Institute in the after noon of28.2.1977 so that he may submit hisjoining report as per the rules in theAuthority Office. Rules regarding thedeputation be sent separately.YoursSd/-(Ram Janam Singh)Secretary."5. Employee submitted his joining report on 1.3.1977. On 13.6.1977 the State Government intimated the authority about the sanction to appoint the employee as live stock expert.There was a notification about the temporary appointment of the employee on purely ad hoc basis as Subject Matter Specialist (Pashudhan). Employee requested the State Government for extending benefits of service rendered by him in the Milk Board and prayed for grant of increments. The same was turned down by the State Government by letter dated 7.5.1979. The employee continued to write to the Milk Board that he was on deputation and, therefore, the benefits should be available to him. He also questioned the propriety of the Milk Board taking stand that he was not on deputation. Subsequently, the Authority in expectation of Government approval sent the employee on foreign service on deputation for a period of one year. Thereafter the Milk Board at different points of time accepted that the employee was on deputation to the Authority. On 26.5.1982 the Milk Board intimated the Agricultural Production and Rural Development Department that the employee was on deputation.6. The said department by letter dated 4.6.1982 considered the question regarding appointment of the employee in the Authority. This letter is also of great significance in the present controversy and reads as follows:"Government Order No.2944/4.1.1982/RegionalDepartment-1/FromShri Shamshad Ahmed,Commissioner and Secretary,Agriculture Produce and RuralDevelopment Department,Govt. of Uttar PradeshLucknow.ToSmt. Sumita Khandpal,Commissioner and Secretary,Ramganga Command Project,Azad Nagar,Kanpur.Regional Development Department Section-1Dated Lucknow: June the 4th, 1982Subject: Regarding appointment in KanpurRamganga Command Authority of ShriS.K. Vaish, Subject Matter Expert,Dairy and Animal Husbandry,Ramganga Command Project.Madam,Kindly refer to your demi officialletter No.P.E.R.-2/V-11/405 dated 4.5.1982regarding the above said subject matter underconsideration of the Government. In thisregard I am directed to say that afterexamining the related documents placed beforethe before the Government it has come to thefore that Shri Vaish was appointed asAssistant Sales Officer in Kanpur Milk Boardon basic post at the salary of Rs.300-900 bythe order of Milk Board No.4211/Admn./Personal Letter/dated5/7.4.1974.The above pay scale was revised and Rs.300-900 was converted to Rs.550-1200 from1.4.1974. Shri Vaish before joining RamgangaCommand Project on the above said post wasworking on this pay scale from 1.4.1974 to1.3.19877 in Milk Board.2. The appointment of Shri Vaish inRamganga Command Project at the post ofSubject Matter Expert, Animal Husbandry wasdone at the request of the then AdministratorShri Ramakrishna by Government OrderNo.3678/(2)/12(Regional Department 1)/77dated 220.127.116.11. Before joining Ramganga Command Project,Shri Vaish was working at the salary ofRs.550-1200 in Milk Board and was gettingRs.640/- per month and on 1.4.77 his furtherincrement in salary was due. However, whenShri Vaish demanded the enhancement in salaryover Rs.640/- from 1.4.767 it was contendedby the office that determination of salary ofShri Vaish was not to be done by the Head ofthe Department and was to be done by theGovernment. Therefore, after explaining thecircumstances to Shri Vaish the proposal fordetermination of salary of Shri Vaish wassent. However, the Government does not agreewith the basis of the above proposal thatShri Vaish has been appointed in RamgangaCommand Project on deputation. On the otherhand Shri Vaish was given fresh appointmentin Ramganga Command Project by theGovernment. It has become a subject matterof correspondence between the Government andthe officers of the Project and today thesituation is that even after five years ShriVaish is being paid the same salary ofRs.640/- which he was getting before joiningRamganga Command Project and the increment insalary from 1.4.77 has not been approved.There can be some force in the above saidopinion of the Government on purely technicalbasis. However, the reality is that from1.3.77 Shri Vaish is continuously under greatfinancial loss. Certainly, therefore, ShriVaish has to face unexpected mental andeconomic harassment.4. After considering this subjectliberally, the Government has come to theconclusion that to give justice to Shri Vaishonly one alternative is left that Shri Vaishshall be appointed in Ramganga CommandAuthority at the pay scale of Rs.550-1200 asSubject Matter Expert (Dairy and AnimalHusbandry) or on any suitable equivalent postand from 1.3.1977 after also approving thefive increments over basic salary of Rs.640/-being paid to him by Milk Board the salary ofShri Vaish be determined by Ramganga CommandAuthority.5. The Kanpur Milk Board shall also beinformed about the above said appointment ofShri Vaish in the Authority. Shri Vaish alsoholds lien over the basic post of AssistantSales Officer at the pay scale of Rs.550-1200.6. In the opinion of the Government, thisis the only correct and just alternative.Therefore, you please carry out theformalities as aforesaid.By Order,Sd/- Illegible(Shamshad Ahmed)Government Order No. 2944/4.1.82(1)/RegionalDepartment-1 Dated:A carbon copy of the above saidGovernment Order is being sent to theSecretary, Kanpur Cooperative Milk Board,Nirala Nagar (Juhi), Kanpur for hisinformation with reference to his demiofficial letter dated 26.5.1982By Order,(Shamshad Ahmed)Commissioner & Secretary"7. In compliance with the said order, employee was appointed on a temporary basis as Assistant General Manager with clear stipulation that his services are totally temporary and can be terminated at any time by the other side by giving notice for one month or payment of salary in lieu thereof. In terms of the Government order, the basic pay was also fixed. In the meantime the State Government took the decision in March 1982 for abolishing all posts of the Authority except that of Chief Engineer Irrigation. In the resolution it was stipulated that those employees who were directly appointed by the Authority should be absorbed in the vacant posts with the Project and till their absorption with the Project they were to be retained with the Authority. At this juncture came the letter of Milk Board requesting for relieving the employee immediately so that he could join the Milk Board by 1.3.1983. This letter dated 17/24.2.1983 is also of importance and reads as below:"Kanpur Sakkari Milk Board LimitedRef. No. 238/Admn./17/03 Dated: 17/24.2.1983The Chairman &Project Administrator,Ram Ganga Command & Development Authority,3A/101, Azad Nagar,Kanpur 2.Dear Sir,Sri S.K.Vaish, Asstt. Sales Officer,Kanpur Sahkari Milk Board Ltd., Kanpur, whohas been to the Ram Ganga Command Authorityon deputation since 1977 is required to jointhis institution as Asstt. Sales Officerimmediately. You are, therefore, requestedto please relieve him immediately so that hemay be able to join his duties as above by1.3.1983. In case Sri Vaish is notinterested to join back in this institution,his resignation may please be obtained andforwarded so that further action may be takenat this end.Yours faithfully,Sd/-General Manager"8. In line with the request, the Authority relieved the employee so that he can join the Milk Board. This order was the subject matter of challenge before the High Court in which the impugned judgment came to be passed.9. To make the narration of facts complete, one more document needs to be referred i.e. the letter dated 20.5.1985 written by the Milk Board to the authority. The position regarding employee’s employment was indicated as follows: "So far as the termination of line of Mr. Vashya is concerned, from the post of the Assistant Sales Officer in the Kanpur Milk Board, in the above subject, copy of the letter No. ANW dated 25.3.1980 of Mr. Vashya is being enclosed. Vide above mentioned letter, Shri Vashya had admitted himself his services as terminated claiming it as false and improper and on the same ground, he obtained a Certificate from the general Manager Shri B. Dingar of this Institute on 31.3.82 that his lien was existing in the Kanpur Cooperative Milk Board in the month of March, 1982 and it had not been ended. On the basis of the abovementioned grounds and reasons, he was called back vide this Institute letter No. 238/Admin/PF/83 dated 17/21.2.83. But instead of this, Mr. Vashya, as far as it is in the knowledge, had filed a writ petition in the Hon’ble High Court against the order of the Ram Ganga command Authority, regarding submitting the joining report in this Institute and that his position of lien is being maintained as it is about which Shri Vashya is fully aware."10. Before approaching the High Court, questioning the legality of the relieving order, the employee had moved the U.P. Public Service Tribunal (in short ’the Tribunal’) questioning refusal of the increments in 1980. It is relevant to note that before the Tribunal, the State Government and the authorities concerned as well as Milk Board took varying stands, which were highlighted by the employee before the High Court and in these appeals also.11. Mr. Gopal Subramanian, learned senior counsel for the appellant-Authority submitted that the High Court erred on the basic premises by attaching great importance to two aspects, which were really inconsequential. The employee all through took the stand that he was on deputation. Similar was the stand taken by the Milk Board. In fact, the action for sending the employee back was taken by the Authority on the basis of Milk Board’s letter. It is not now open to it to take a different stand. Additionally, the High Court has failed to notice that the order dated 4.6.1982 passed by the State Government was essentially in the matter of fixation of pay and was not determining the question of deputation or otherwise of the employee. Even if it is accepted for the sake of argument that the employee was given employment by the Authority, same was on purely temporary basis as order of appointment clearly indicates. There being no substantive appointment, the question of employee being retained in the Authority after decision of the Government for abolition of posts cannot be countenanced. Similar stand was adopted by learned counsel for the State. Per contra, learned counsel for the Milk Board and the employee submitted that the Authority and the State Government are estopped from taking stand that the employee was on deputation, after having taken a positive stand before the Tribunal about the employee’s status of employment. He supported the views expressed by the High Court.12. As noted above, in view of the conflicting stands of the parties, most of which were self-serving stands and in some cases without reference to the relevant documents, it would be appropriate to find out the essence of the dispute by taking note of various documents, more particularly the order of appointment, the order by which employee’s services were placed at the disposal of the Authority and subsequently orders passed. One thing is clear that from the beginning the employee and the Milk Board as well as the Authority proceeded on the footing that employee was on deputation. This becomes clear from the stand taken by the employee asserting that he was on deputation. That was also his positive stand before the Tribunal. Interestingly, the Milk Board initiated the action for repatriation of the employee by writing to the Authority, clearly indicating that the employee was on deputation. In response to the said letter the Authority acted. Therefore, it is not open to the Milk Board to take a contrary stand. The High Court seems to have lost way amidst the maze of factual red herrings. Great stress was laid on the order dated 4.6.1982 of the Government. As rightly submitted by learned counsel for the Authority, the same was not directly on the question of deputation, but primarily related to fixation of pay.13. Therefore, that letter was not of any conclusive or determinative value so far as the controversy at hand is concerned.14. In view of materials available from the documents referred to above, the inevitable conclusion is that the employee was on deputation from the Milk Board and appointment on temporary basis with the Authority can, by no stretch of imagination, be considered to be substantive appointment. Abolition of posts is an aspect which cannot be lost sight of. Therefore, the order of repatriation which formed subject matter of challenge does not suffer from any infirmity. The High Court erred in interfering with the same. The appeals are allowed with costs fixed at Rs.5,000/-.