Mazaharul Islam vs State of Assam and Others

D.N. Chowdhury, J.—The legitimacy of the order of reversion under No WMD. 49/99/9 communicated vide No. WMD. 49/99/12-A dated 15th March, 1999 passed by the Commissioner & Secretary to the Govt. of Assam, Welfare of Minorities Department of the Petitioner, Md Mazaharul Islam, to his parent department is the subject-matter of this proceeding which has arisen in the following circumstances. Md Mazaharul Islam the Petitioner, while he was holding the post of Asstt. Horticulturist in the Agriculture Department under the State of Assam at Udalguri, his service was placed at the disposal of the political Department for appointment as project Officer under the Assam State Char Areas Development Authority for a period of one year with effect from the date of his release vice Shri S.A. Alim withdrawn. It is pertinent to state here that the Petitioner is/was a permanent employee of the Agriculture Department of the State of Assam. A copy of the aforesaid order was endorsed to the Petitioner whereby he was also advised to join in his deputation post after expiry of his leave, as the Petitioner was at the relevant. time on leave. The services of the Petitioner having been placed at the disposal of the political (B) Department, he was appointed as the project officer, Pancharatna Char Development Service Centre in the Goalpara district vice Syed Abdul Alim released, pursuant to which the Petitioner joined as such officer at the Pancharatna Char Development Service Centre. The aforesaid appointment order was communicated under Memo No. PLB 335/84/236-A dated 24th October, 1990. In course of time, the Petitioner was allowed to officiate as in-charge, Technical Director(Crops) until further order in the said vacant post on temporary basis vide order of the Director, Assam State Char Areas Development Authority, under Memo No. ASCADA-530/91-92/8/2066-69 dated 18.12.91. Again by order commuicated under Memo No. PLB 305/83/322A dated 5th March, 1993 issued by the Deputy Secretary to the Govt. of Assam, Political (B) Department, the Petitioner was appointed as Technical Director (Agril) under the Assam State Char Areas Development Authority) in the pay scale of Rs. 3275-100-3575-125-4200-EB-125-4450-150-5050 p.m. The said order was issued in the name of the Governor of Assam. It appears that there was some move for permanent absorption of the Petitioner as the Technical Project Director (Agril) under the Char Areas Development Authority. Vide Notification No. PLB 57/91/16 dated 7th June, 1994 the services of the Petitioner was retained by the Assam State Char Areas Development Authority under the Political (B) Department and the said notification, amongst Ors. , was also endorsed to the Deputy Secretary to the Govt. of Assam, Agriculture Department with reference to his communication No. AGA. 41/93/12 dated 1-12-93, for favour of information and necessary action. A copy of the "No Objection for permanent absorption" furnished by the Petitioner, was also sent alognwith the aforesaid communication to the Deputy Secretary, Agriculture Department. While things rested in that fashion, vide Notification No. PLB 305/83/337 dated 20-2-98, issued by the Political (B) Department in the name of the Governor of Assam, services of the Petitioner, the Technical Project Director under the Directorate of Char Areas Development, Assam at the relevant time, was replaced at the disposal of his parent department, i.e. the Agriculture Department. But this Notification was subsequently cancelled vide notification No. PLB 305/83/341 dated 24th February, 1998. However, by Anr. notification issued in the name of the Governor, under No. WMD. 49/99/9 dated 15-3-99, the services of the Petitioner was agains replaced at the disposal of his parent department, i.e. the Agriculture Department, along with those of other two officers. A copy of the said notification was endorsed to the Deputy Secretary to the Govt. of Assam, Agriculture Department, and requested to place the services of the above-three officers of the Agriculture Department as referred to in earlier communications under No. PLB 174/98/6 dated 20-2-99; No. PLB, 395/93/351 dated 20-2-99 and D.O. No. PLB. 174/98/8 dated 8.3.99. The legality of the aforesaid notification/order dated 15-3-99, is assailed

in this proceeding as arbitrary, discriminatory and malafide.

According to the Petitioner he no longer belonged to the Agriculture Department so much so that he was duly absorbed by the Department of Char Areas Development as a Technical Project Director, in which department he rendered six long years of service. That reversion of the Petitioner to his parent department amounted to reduction in rank so much so that the Petitioner on his reversion to the parent department, was to hold a post inferior in status and responsibility to the one that he was holding there. The Petitioner challenged the aforesaid order as arbitrary discriminatory and in malafide exercise of power.

Respondent No. 3, The Commissioner to the Govt. of Assam, Minority Welfare & Development Department, Dispur, and the Respondent No. 5, Char areas Development, Assam, submitted their respective affidavits.

The Respondent No. 5 in its affidavit stated that the services of the Petitioner was placed at the disposal of the political (B) Department and thereafter the Petitioner was appointed as a Project Officer under the Assam State Char Areas Development Authority in Goalpara District. The Respondent in its affidavit referred to an earlier case of placement of services of one Shri Hirendra Nath Barua, the then Joint Director of Agriculture (H) at the disposal of the Political (B) Department, who was thereafter appointed as Technical Director (Crops) vide Notification No. PL 335/94/Estt. dated 9-10-90. The Respondent further stated that the Assam State Char Areas Development Authority was registered as a society under the Societies Registration Act and initially the funds for creation of the office and establishment was placed by the Agriculture Department. The controlling department of the society was the Political (B) department of the Govt. of Assam and the expenditure was made chargeable under the head of account "305 Agriculture etc." Subsequently, the expenditure was made chargeable under the head of account" 305 Area Development etc." under the Political (B) department and the Director of state Char Areas Development Authority was declared as the drawing and disbursing officer. Subsequently, the directorate of Char areas Development was brought under the control of a newly created department under the Government of Assam, viz, Welfare of Minorities Department. The Respondent in its affidavit also declared that a proposal was submitted by the Director of Assam State Char Areas Development Authority to the Political Department for obtaining the view of the Agriculture Department, the appointing department of the Petitioner, before he was appointed as Technical Project Director (Agri). The Agriculture Department expressed its no objection to the appointment of the Petitioner as such officer if he was found suitable for the said post by the Char Areas Development Authority. The Respondent denied and disputed that the Petitioner was permanently absorbed in the office of the State Char Areas Development Authority. The Respondent referred to the proposal of the Minister of State for Char Areas Development, for permanent absorption of the Petitioner that was made to the Political (B) Department. However, the Political (B) Department in its turn informed that since the office of the State Char Areas Development Authority was not a permanent establishment, its staff could also not be made permenent. This was communicated vide memo No. PLB 57/93/15-A dated 7.4.94. According to the Respondent, it was at the instance of the Petitioner that the aforesaid move was made. The services of the Petitioner was retained, but he was not permanently absorbed by the State Char Areas Development Authority. The Petitioner also made an application to the authorities for raising the pay scale of the post of Technical Project Director (Agriculture) which was turned down by the Political (B) Department. The Petitioner in the meanwhile was promoted to the post of Sub-Divisional Agricultural officer, Nagaon in his parent department vide Govt. Notification No. AGA. 189/95/80 dated 24th July, 1996 vice Shri B Deb promoted but the Petitioner refused to accept the said promotion and informed the Agriculture Department accordingly. The Respondent in its affidavit also referred to the moves made by the Petitioner to stay in the establishment of Char Areas Development Authority and those for parmanent absorption in the said establishment. The Respondent, however, in categorical term denied and disputed the permanent absorption of the Petitioner.

Respondent No. 3, the Commissioner & Secy. to the Govt. of Assam, Welfare & Minority Department, also filed its affidavit through its Deputy Secretary denying and disputing absorption of the Petitioner in the Assam State Char Areas Development Authority.

Dr. H Das, learned Senior counsel appearing on behalf of the Petitioner, referring to the documents from the paper book, submitted that the Petitioner for all intent and purposes, was permanently absorbed in the establishment of the State Char Areas Development Authority and as such, question of his reversion to the agriculture department without his consent does not arise. The Petitioner was allowed to work in the said establishment like that of a permanent employee and, therefore, in such circumstances question of reversion of the Petitioner to his parent department i.e. the Agriculture department, did not arise. The learned senior counsel for the Petitioner further argued that the impugned order dated 15.3.99, was passed malafide at the instance of some political circle for their personal gain.

Mr. Hasibur Rahman, learned Govt. Advocate supporting the impugned order/notification submitted that the Petitioner was out and out an employee who was/is born in the cadre of the agriculture department. His service was transferred and was deputed to the establishment of the State Char Areas Development Authority to/in a post outside his cadre to work in Anr. department on temporary bais. On reversion, such a person is to come back and join in his service in the parent department. Referring to the communications as well as the affidavits, the learned Govt. Advocate submitted that the Petitioner all along remained on deputation and on the necessity of his services to the borrow as department having come to an end, the department was within its power and competence to revert back the officer-on-deputation to his parent department, whose services it had borrowed. The officer all through out his deputation, maintains his lien with the parent department and on reversion, such officers under the law is/are to join in his/their parent department ''

According to Dr. H Das, the learned senior counsel appearing on behalf of the Petitioner, the impugned order/notification suffers from the vice of malafide.

The pleadings do not disclose any express malice of fact, nor any malice of law save arid except the use of the word "malafide" at paragraph 23 of the writ application. The court cannot act upon the pleas of malafide unless there is a clear pleading to that effect and affidavit to support that pleading. A Division Bench of the Calcutta High Court as far back as in 1909, consisting of Jenkins, CJ and Woodroffe, J in the case of Padmasati Dasi v. Rashiklal Dhar, held that provision of order XIX Rule 3 of the CPC must strictly be observed; every affidavit should clearly express as to how much is statement of the deponent''s knowledge and how much of the statement is/was in his belief and the grounds of belief must be stated with sufficient particularity. This view was reiterated by the Supreme Court in the case of The State of Bombay Vs. Purushottam Jog Naik, and Shivajirao Nilangekar Patil Vs. Dr Mahesh Madhav Gosavi and Others, In the instant case, the pleadings as well as the materials in support of the contentions do not persuade me to hold the opinion that the Respondents were actuated by a malice in passing the impugned order/notification.

Change of opinion or anxiety to have something done without mentioning any reason can not necessarily be labelled as malafide exercise of power. Admittedly, the Petitioner was holding a permanent post in the agriculture department and his placement and posting with the political (B) department also show that he was placed at the disposal of the political (B) department for being appointed in the establishment of the State Char Areas Development Authority. There was some moves, may be at the instance of the Petitioner for permanent absorption of the Petitioner in the establishment of the State Char Areas Development Authority, but those moves did not fructify. No such order of absorption was produced by the Petitioner.

Dr. Das, the learned senior counsel appearing on behalf of the Petitioner, however, in course of his argument, referred to a note of the Commissioner & Secretary to the Govt. of Assam, Agriculture Department under U/O No. AGA 41/93/32 dated the 17th day of March, 1999 to the Commissioner & Secretary, Welfare of Minorities Department, whereby the Commissioner and Secretary, Agriculture informed the Commissioner & Secretary, Welfare of Minorities, that the services of the Petitioner was ceded to and permanently absorbed in the Assam State Char Areas Development Authority. However, in the absence of any valid order from the competent authority followed by a communication to that effect, it is difficult to accept the plea of Dr. Das that the Petitioner was ever permanently absorbed in the Char Areas Development Authority. In the absence of absorption, the Petitioner continued to be on deputation to that establishment and in such circumstances, the Respondents/authorities were/was within its/their right to revert the services of the Petitioner to his parent department. The true meaning and import of "deputation" is too well known in service jurisprudence. Deputation means a service and posting outside the cadre or outside the permanent department as a temporary measure with the understanding that on expiry of the deputation, the employee is to be reverted to his parent department to occupy the same position unless in the meanwhile he earns promotion in the parent department as per the rules of recruitment. There cannot be a deputation without the consent of the person deputed and, therefore, such a person is supposed to know his rights and privileges in the deputation post. The position of law as regards deputation and repatriation is too well defined as may be seen from the various judgments of the Supreme Court, viz., in T. Shantharam Vs. State of Karnataka and Others, , Narayan Yeshwant Gore Vs. Union of India (UOI) and Others, ; Bihar State Water Development Corporation Vs. Arun Kumar Mishra and others, , and in State of Punjab and Others Vs. Inder Singh and Others,

In view of the aforesaid discussions and the reasons stated above, the order of reversion of the Petitioner to his parent department vide order/notification dated 15.3.99, as mentioned above, cannot be faulted. In the circumstances the writ petition is liable to be dismissed which is accordingly dismissed. However, in the facts and circumstances of the case, the parties shall bear their own costs.

All the interim orders stand vacated and the Rule stands discharged.