Pramod Kumar Sharma vs State of Rajasthan and Others

M.N. Bhandari, J.—1. By this petition, a challenge is made to the order dated 22nd April, 2015 passed by the Chief Engineer, Water Resources Department, State of Rajasthan. A direction is sought for absorption of the petitioner in Urban Improvement Trust, Alwar (in short "UIT").

Learned counsel submits that petitioner was appointed on the post of Junior Engineer in Water Resources Department, Government of Rajasthan vide order dated 5th October, 1987. He was thereupon sent on deputation to UIT, Alwar vide order dated 13th October, 2006. The petitioner is working with the UIT, Alwar since then. The petitioner submitted a representation for his absorption in the service of UIT, Alwar. The Deputy Secretary, Urban Development & Housing Department (in short "UDH Department") vide his letter dated 22nd January, 2010 asked the Chief Engineer, Water Resources Department to send "no objection" for absorption of the petitioner in the service of UIT, Alwar. The Chief Engineer vide his letter dated 4th May, 2011 informed the Deputy Secretary, UDH Department that no departmental inquiry is pending against the petitioner. It was further informed that as against 830 posts of Junior Engineers (Diploma) Civil, 1228 Junior Engineers are working. 105 Junior Engineers are on deputation to various departments thus around 293 Junior Engineers are excess in the Water Resources Department. After few days of the aforesaid communication, another letter was sent by the Deputy Secretary to the Government, Water Resources Department informing about shortage of officers in the department, thus application of the petitioner for absorption in the service of UIT, Alwar was rejected vide order dated 30th May, 2011. So far as UIT is concerned, it issued ''NOC'' for absorption of the petitioner.

It was mainly on the ground that department is short of hands thus representation of the petitioner was rejected. Soon thereafter, one Shri Kumar Sambhav Awasthi was absorbed in the service of UIT, Alwar vide order dated 9th June, 2011. The rejection of the representation made by the petitioner thus becomes discriminatory in nature. Infact, number of similarly placed employees have been absorbed in service of the different autonomous bodies by invoking Rule 158 of Rajasthan Civil Services Rules. The petitioner has been isolated rather discriminated.

Learned counsel submits that even before filing of the present writ petition, certain letters were issued by the Additional Chief Engineer, Water Resources Department so as the Principal Secretary, UDH Department giving out that if petitioner''s service is absorbed by the UIT, they have no objection. It was for one or other reason that formal order was not passed in favour of the petitioner thus without waiting further, writ petition was preferred. In pursuance to the interim order passed by this court, the petitioner is continuing with UIT, Alwar.

Learned counsel for petitioner submits that absorption in the services of autonomous body is permissible under Rule 158 of the Rules. In fact, by invoking the said provision, many employees have been absorbed. The list of those employees has been filed along with additional affidavit. A case of discrimination is accordingly made out. To support the argument, reference of judgment of Apex Court in the case of Ashok Kumar Ratilal Patel Vs. Union of India & Anr., reported in , (2012) 7 SCC 757 has been given. Similarly a reference of judgment of Apex Court in the case of Rameshwar Prasad Vs. Managing Director, U.P. Rajkiya Nirman Nigam Limited & Ors., reported in , (1999) 8 SCC 381 has also been given. Therein, similar issue came up for consideration before the Apex Court and decided favourable to the employee. The discrimination in exercise of powers was held to be illegal. A prayer is made to direct the respondents to absorb the petitioner in the service of UIT, Alwar and accordingly, the impugned order dated 10th February, 2015 be quashed.

A further challenge has been made to the order of suspension dated 22nd April, 2015. It was by making amendment in the writ petition as the order of suspension was subsequent to the filing of the writ. The order of suspension was passed mainly due to non-compliance of the order dated 10th February, 2015 without realizing that petitioner was not relieved by the UIT, Alwar by the aforesaid date so as to join the service with the Water Resources Department. The order of suspension is thus liable to be set aside. It is otherwise not on any of the grounds given under Rule 13 of CCA Rules. No inquiry is contemplated against the petitioner.

The petition has been opposed by learned Additional Advocate General Shri Rajendra Prasad. He submits that any employee sent on deputation has no right to seek absorption. It is morso when it is not provided under the rules. The petitioner was selected and appointed by Water Resources Department. He was sent on deputation to UIT, Alwar in the year 2006 and infact, should have been withdrawn after expiry of reasonable period. In any case, the petitioner was continued and made a representation for his absorption in the service of UIT, Alwar. The representation aforesaid was rejected vide letter dated 30th May, 2011. A challenge to it was not made by the petitioner immediately thereupon or within reasonable period. The present writ petition has been preferred after lapse of almost four years from the date when representation of the petitioner for absorption was rejected. In view of above, writ petition deserves to be dismissed on the aforesaid ground itself.

Coming to other facts, it is submitted that absorption of the petitioner was denied as Water Resources Department is short of Junior Engineers. Presently short fall is of 800 Junior Engineers thus working of the department is suffering on that count. It is precisely for that reason the representation of the petitioner could not be accepted. It is however admitted that Shri Kumar Sambhav Avasthi was absorbed in the service of UIT, Alwar but on his tendering resignation from service of Water Resources Department. Similar offer was not made by the petitioner. In any case, even for Shri Kumar Sambhav Avasthi, Water Resources Department did not agree and sent NOC for his absorption in the service of UIT, Alwar. The order in that regard was passed by UDH Department and not by the parent organization. If UDH Department had committed illegality in carrying out their actions, should not be perpetuated. It is moreso when if right claimed by the petitioner is allowed, every person sent on deputation would claim his right for absorption though does not exist under the law.

So far as absorption of many other employees referred in the additional affidavit is concerned, it is not from Water Resources Department but from different organizations where staff may not be short. Accordingly absorption of any other employee of different department cannot be of any assistance to the petitioner. In view of above, prayer made by the petitioner may not be granted.

Coming to the challenge to the order of suspension, it is submitted that even after rejection of the representation of the petitioner, he did not join service thus for justified reasons, order of suspension was passed. It is moreso when even after relieving the petitioner by the UIT, Alwar. In this regard, specific order was passed on 27th April, 2015 directing the petitioner to join the service in the Water Resources Department without relieving him by UIT, Alwar. The petitioner still did not join the service thus order of suspension is justified and may not be interfered.

I have considered the rival submissions made by learned counsel for the parties and perused the record.

The petitioner was appointed on the post of Junior Engineer in Water Resources Department. He was sent on deputation to the UIT, Alwar in the year 2006. The petitioner made an application for his absorption in the year 2010. The representation/application of the petitioner was processed but was rejected vide order dated 30th May, 2011. It is mainly on the ground that Water Resources Department is short of staff. The correspondence prior to it shows surplus staff with the department but soon thereafter they found shortage of staff in the department. Accordingly representation of the petitioner for his absorption in the service of UIT, Alwar was rejected. The controversy would have come to an end at that stage as absorption cannot be claimed as a right by an employee who has been sent on deputation unless specifically provided under the rules. It is however a fact that one Shri Kumar Sambhav Avasthi was absorbed in the service of UIT, Alwar vide order dated 9th June, 2011 i.e. just after few months on rejection of the representation of the petitioner. The order of absorption of Shri Kumar Sambhav Avasthi was however passed by UDH Department and not by the Water Resources Department or UIT, Alwar. The UDH Department was not parent organization for Shri Kumar Sambhav Avasthi. The order of absorption was passed in favour of Shri Kumar Sambhav Avasthi but it cannot be said to be with proper exercise even if Rule 158 of the Rules applies and permits absorption. It cannot be made applicable even if Shri Kumar Sambhav Avasthi resigned from service of Water Resources Department. If one resigns from service, question of absorption does not arise. The aforesaid shows that in what manner Shri Kumar Sambhav Avasthi was absorbed.

The question for my consideration is as to whether direction can be given to the non-petitioners for absorption of the services of the petitioner taking it to be a case of discrimination. I find that order of absorption has not been passed by the Water Resources Department or UIT, Alwar in favour of Shri Kumar Sambhav Avasthi to make out a case of discrimination per se. An employee sent on deputation is not having right to seek absorption unless so specifically provided under the rules. The issue of absorption of deputationist came up for consideration before the Apex Court in the case of Rameshwar Prasad (supra). There in Para 17, certain directions have been given by the Apex Court, which is quoted hereunder for ready reference:

"In our view, it is true that whether the deputationists should be absorbed in service or not is a policy matter, but at the same time, once the policy is accepted and rules are framed for such absorption, before rejecting the application, there must be justifiable reasons. Respondent No. 1 cannot act arbitrarily by picking and choosing the deputationists for absorption. The power of absorption, no doubt, is discretionary but is coupled with the duty not to act arbitrarily, or at the whim or caprice of any individual. In the present case, as stated earlier, the General Manager (NEZ) specifically pointed out as early as in the year 1988 that appellant''s service record was excellent; he has useful in service and appropriate order of his absorption may be passed. His application for absorption was within three years as provided in Rule 5. There is nothing on record to indicate that for any reason whatsoever, he was not required or fit to be absorbed or the power under Rule 5(1) of the U.P. Absorption of Government Servants in Public Undertakings Rules, 1984 was not required to be exercised in his favour. Interim order dated 17.7.1991 passed by the High Court would not be applicable in case of appellant because his case was considered for absorption in the year 1988. Further on completion of five years on 19.11.1990 he could not have ordinarily been continued on deputation in the service of Nigam. It is apparent that he was absorbed from 19.11.90 because from that date his deputation allowance was also discontinued. If he was to be continued on deputation, there was no reason for non-payment of deputation allowance. So on the basis of statutory rules as well as the policy, the appellant stands absorbed in the service of Nigam."

The discussion made in the aforesaid para reveals when the deputationists can be absorbed in service. It can be when Policy is evolved or rules are framed for absorption. The rejection of the application for absorption should be for justifiable reason. The discrimination in exercise of powers should not be made while undertaking such exercise. In the instant case, the State Government has given justification to deny absorption because Water Resources Department is short of hands. If fact aforesaid is taken into consideration, rejection of representation for absorption of the petitioner cannot be said to be illegal. It is also a fact that after rejection of representation made by the petitioner, it was not challenged immediately. The documents on record however show that even after rejection of representation, petitioner''s case for absorption was processed by both the departments. It may be for that reason, petition was not preferred by the petitioner immediately. The fact remains as to whether discrimination has been caused in this case. It has come on record that order of absorption in favour of Shri Kumar Sambhav Avasthi has been issued by the UDH Department and not by the Water Resources Department. Per se no discrimination has been caused by the Water Resources department. The order was passed by the UDH Department. It is even when Water Resources department raised objection regarding absorption of Shri Kumar Sambhav Avasthi. The UDH Department was expected not to pass order for absorption of Shri Kumar Sambhav Avasthi.

Looking to the facts and overall circumstances, I am of the opinion that matter of absorption of the petitioner in the service of UIT, Alwar needs re-consideration. It is not only after considering the facts given out by the State Government but keeping in mind as to how benefit has been given to Shri Kumar Sambhav Avasthi. The petitioner is working with UIT, Alwar for last nine years and recently also certain Junior Engineers have been sent on deputation to other autonomous body though it is against ex-cadred post created under the rules. The re-consideration of the case of the petitioner should be made without preconceived notion and keeping in mind that even after the impugned order, many of the Junior Engineers have not joined the post in the department, as stated by learned counsel for petitioner. The exercise aforesaid would be undertaken within a period of two months from today.

A challenge to the order of suspension has been made. The order of suspension has been passed precisely on account of non-compliance of the order dated 10th February, 2015. The petitioner was not relieved by the UIT, Alwar immediately after passing of the order. The petitioner could not join the service in Water Resources Department though subsequently on 27th April, 2015, the direction was given to the petitioner to join the post without relieving from UIT, Alwar. The perusal of order of suspension does not reveal either contemplation of inquiry or pendency of criminal case which can be a ground to suspend an employee. Taking into consideration overall facts and as petitioner was not initially relieved by the UIT, Alwar, the order of suspension dated 22nd April, 2015 is set aside.

With the aforesaid, writ petition is disposed of. This disposes of stay application also.

Since period of two months have been given for reconsideration of the case of the petitioner, he would be allowed to continue with the UIT, Alwar for that period.