JUDGMENT
V.N. Sinha, J.
Page 0373
1. Petitioner filed this writ application on 24.5.2007 praying inter alia to direct the Director General, Respondent No. 4 to place him in the pay-scale of Rs. 12000-16,500/- as also to pay the arrears of salary in the said pay-scale with effect from 13.4.2005 with annual increments as also to consider his case for absorption in the Bihar Institute of Public Administration and Rural Development, Patna (hereinafter referred to as “BIPARD”). On 18.7.2007 petitioner filed Interlocutory Application No. 3890 of 2007 praying inter alia to amend the prayers made in the petition as also for quashing of the order bearing Memo No. 593 dated 18/21.5.2007, Annexure-7 to the Interlocutory Application, whereunder the deputation of the petitioner in BIPARD has been cancelled and he has been repatriated to his parent organization, Bihar State Sugar Corporation Limited.
2. Learned Counsel for the petitioner mentioned the writ case on 23.8.2007 before the Civil Application and Motion Bench for early hearing and the Judges constituting the Bench permitted learned Counsel to request the Bench where the matter is pending, whereafter the matter was mentioned before this Court on 27.8.2007 and again on 10.9.2007 when this Court directed that the case be listed amongst the zero item matters as per its seriatum and year of filing accordingly the case was listed on 11.9.2007 but was taken up on 3.10.2007 when at the request of counsel for Respondent No. 4 the matter was adjourned to 05.10.2007 when the matter was heard for some time and then again adjourned to 06.10.2007 when the case was finally heard, as by then parties had exchanged their pleadings as also placed on record the notings from the relevant file.
Page 0374
3. Learned Counsel for the petitioner, in support of his prayer made in the writ petition as also Interlocutory Application, submitted that the Director of the Administrative Training Institute (hereinafter referred to as “A.T.I.”) under letter dated 12.02.2005, Annexure-1 requested the Commissioner and Secretary of all the departments of the State Government that the A.T.I. requires eligible qualified persons/officers for filling up the vacant post of Joint/Deputy/Assistant Director in the A.T.I. on deputation and the letter be circulated amongst the qualified persons/officers working under them so that intending officers may submit their application with Bio-Data for consideration of their case for the aforesaid appointments. Petitioner, while serving as Officer on Special Duty in the Bihar State Hydroelectric Power Corporation Limited, Patna under the Department of Energy, Government of Bihar, learnt about the aforesaid request letter dated 12.02.2005, Annexure-1 as the said letter was also circulated in the office of the Bihar State Hydroelectric Power Corporation Limited, Patna under the orders of the Secretary, Department of Energy, Government of Bihar and he being eligible for the post of Joint Director submitted his application with Bio-Data for being considered for appointment on the post of Joint Director, which was duly forwarded by his then departmental head under Memo No. 451 dated 24.3.2005 to the Director, A.T.I., copy whereof is contained in Annexure-2 and the Bio-Data of the petitioner is contained in Annexure-2/A. The candidature of the petitioner along with other applicants was considered and thereafter the Director, A.T.I. under letter dated 9.4.2005, Annexure-3 informed the Managing Director of the Bihar State Hydroelectric Power Corporation Limited, Patna that petitioner’s request for deputation in the A.T.I./R.D.T.I. on the post of Joint/Deputy/Assistant Director has been favourably considered and he be relieved to join the organization. In consideration of the request of the Director, A.T.I., as contained in his letter dated 09.4.2005, Annexure-3 petitioner was relieved from the Bihar State Hydroelectric Power Corporation Limited. Patna under Letter No. 57 dated 12.4.2005, Annexure-4 and he submitted his joining in the A.T.I. on 13.4.2005 as would appear from Annexure-4-A. His deputation was also approved by the Executive Council of BIPARD, as would appear from the proceedings dated 13.6.2006, as contained in Annexure-9 to the Interlocutory Application. By filing representation dated 16.4.2007, Annexure-5 petitioner requested respondent No. 4 to allow him the salary and emoluments of the post of Joint Director in the pay-scale of Rs. 12,000-16,500/-, as he had applied for being considered for appointment on deputation on the said post, as would appear from Annexure-2 and while acceding to his request for serving the organization on deputation the authorities under letter dated 9.4.2005, Annexure-A-3 had not clearly specified the post, in the circumstances, they were obliged to pay him the salary and emoluments of the post of Joint Director. While the representation dated 16.4.2007, Annexure-5 remained pending, the Director General, Respondent No. 4, passed office order bearing Memo No. 593 dated 18/21.5.2007, Annexure-7, whereunder he repatriated the services of the petitioner to his parent organization, Bihar State Sugar Corporation Limited with effect from 18.5.2007 (after noon) on the ground that deputation of the petitioner in the A.T.I./ R.D.T.I. was subject to further approval from the Personnel and Administrative Reforms Department of the State Government, which was sought under letter No. 14/05/807 dated 29.8.2005 and since the approval is not forthcoming, it is appropriate to repatriate the services of the petitioner to his parent organization.
Page 0375
4. By filing the Interlocutory Application, aforesaid order bearing Memo No. 593 dated 18/21.5.2007, Annexure-7 has been assailed on various grounds, namely, lacking in jurisdiction besides being discriminatory as also violative of the principles of natural justice, since the petitioner was not given any opportunity to explain the facts which persuaded the Director General to pass the order bearing Memo No. 593 dated 18/21.5.2007, Annexure-7.
5. In support of the aforesaid submissions it was pointed out that petitioner’s deputation having been approved by the Executive Council on 15.6.2006 his services could not have been repatriated under the orders of the Director General without the approval of the Executive Council. It was further pointed out that deputation of Sri Bidyadhar Pathak and Sri Amitabh Prasad has been allowed to continue without any approval from the Personnel and Administrative Reforms Department of the State Government and the petitioner has only been singled out for being repatriated infracting Articles 14 and 16 of the Constitution of India. As regards lack of approval by the Personnel and Administrative Reforms Department of the State Government to the petitioner’s deputation in BIPARD it was submitted that reminder soliciting early response to the said proposal/request contained in letter No. 14/05/807 dated 29.8.2005, referred to in the impugned order should have been sent to the Personnel and Administrative Reforms Department to expedite the matter in the light of approval already accorded by the Executive Council of BIPARD on 15.6.2006.
6. With reference to the aforesaid submissions it was submitted that it is a fit case for quashing of the impugned order bearing Memo No. 593 dated 18/21.5.2007, Annexure-7 with direction to the Director General to consider his representation dated 16.4.2007, Annexure-5 for grant of pay-scale of Rs. 12,000-16,500/-.
7. Counsel for Respondent No. 4 began his submission asserting that this writ petition is not maintainable in view of the prayer made in the Interlocutory Application and petitioner has not come to this Court with clean hands as he initially suppressed the repatriation order and filed writ petition raising a controversy about his pay-scale. According to counsel for Respondent No. 4 petitioner should have been well advised to file the writ petition enclosing Annexure-7 but as he did not choose to annex the same with the writ petition and has placed on record along with Interlocutory Application the writ petition itself be dismissed. In this connection, this Court desired to know the date on which the order bearing Memo No. 593 dated 18/21.5.2007, Annexure-7 was served on the petitioner then counsel for Respondent No. 4 candidly admitted that petitioner proceeded on leave before issue of the said order and in the circumstances, the said order was dispatched to him through post and when this Court desired to know the postal mode in which order bearing Memo No. 593 dated 18/21.5.2007, Annexure-7 was dispatched then learned Counsel for Respondent No. 4 informed this Court that the information about the mode of postage is not readily available.
8. On merits counsel for Respondent No. 4 opposed the prayer with reference to the pleadings made in the counter/rejoinder affidavit filed on his behalf to the averments made in the writ petition, Interlocutory Application and further rejoinder to the supplementary affidavit filed on behalf of the petitioner and it was submitted with reference to the pleadings made therein and the notings made by the authorities in the relevant file at pages- 20-21, 26/N that deputation of the petitioner in the A.T.I./BIPARD was subject to further approval of the Personnel and Administrative Reforms Department with clear stipulation that in the event the approval is not granted/received petitioner Page 0376 shall be paid salary for the period served and his services shall be repatriated. Even after issue of reminder for grant/receipt of the approval from the Personnel and Administrative Reforms Department, the approval was not granted, in the circumstances, petitioner had to be repatriated. In this connection, it was also pointed out that information was received from the Bihar State Hydroelectric Power Corporation Limited, Patna under letter No. 1406 dated 9.4.2007 that payment of salary to the petitioner in the pay-scale of Rs. 8,000-13,500/- while he served in the Bihar State Hydroelectric Power Corporation Limited, Patna on the post of Officer on Special Duty was erroneous as the pay-scale admissible to the Officer on Special Duty in the said Corporation is Rs. 6500-10,500/- and to resolve the controversy as regards the admissibility of the pay-scale to the petitioner while he served the said Corporation as also to recover the excess amount paid to him it was necessary to repatriate the petitioner to his parent organization. In this connection, learned Counsel for Respondent No. 4 made special reference to the notes recorded by Respondent No. 4 on 18.5.2007 at pages 26-27/N. As regards the continuation of M/S Bidyadhar Pathak and Amitabh Prasad on deputation in BIPARD without any approval from the Personnel and Administrative Reforms Department it was submitted that their case being different approval was never sought from the Personnel and Administrative Reforms Department in their case and petitioner is ill advised to compare his case with them. As regards the submission of lack of jurisdiction in Respondent No. 4 to terminate the deputation of the petitioner without the approval of the Executive Council of BIPARD it was submitted that Respondent No. 4 was competent on his own in the light of the powers delegated to Director General under resolution dated 22.3.2006, Annexure-10.
9. Having heard counsel for the parties, I am of the view that no sooner the impugned order bearing Memo No. 593 dated 18/21.5.2007, Annexure-7 was made available to the petitioner he placed the same on the record by filing Interlocutory Application No. 3890 of 2007 on 18th July, 2007, much before the case was mentioned or taken up for admission. In the circumstances, for failure to place the same along with the writ petition the writ petition cannot be held to be not maintainable as it is always open for the petitioner to place the impugned orders for perusal of this Court within a reasonable time and in the present case the same has been placed on record within two months of the issue of the said order. In this connection, I would like to observe that the date of the issue of the order is not always the date of service of the order on the concerned party. Accordingly, there is no difficulty in holding that the instant writ petition and the Interlocutory Application No. 3890 of 2007 amending the prayer in the writ petition are maintainable.
10. On the merits of the case, perusal of the impugned order bearing Memo No. 593 dated 18/21.5.2007, Annexure-7 read with the notes of the Director General at pages 26-27/N it is evident that the services of the petitioner has been repatriated to his parent organization on account of controversy/allegations about his payment of salary in the pay-scale of Rs. 8,000-13,500/- in the Bihar State Hydroelectric Power Corporation Limited, Patna, as such, according to this Court, before repatriating the services of the petitioner to the parent organization the Director General was obliged to hear the petitioner on the controversy and was also required to have taken the approval of the Executive Council of BIPARD since the deputation of the petitioner stood already approved by the Executive Council in their proceedings dated 13.6.2006, Annexure-9 and as the repatriation order on account of the controversy Page 0377 regarding payment of salary in the Bihar State Hydroelectric Power Corporation Limited, Patna has been passed without giving opportunity of being heard to the petitioner as also without the approval of the Executive Council, the same is not only violative of the principles of natural justice but also suffers from lack of jurisdiction as under Rule 14 of the BIPARD(Constitution) Rules, 2005 notified by the Department of Personnel and Administrative Reforms, Government of Bihar, the Director General is under obligation to exercise powers under the directions and guidance of the Executive/General Council of BIPARD and it is the Executive Council which is vested with the power under Rule 12(2)(b) to make appointment on any of the post of Officer in BIPARD and according to this Court appointment shall also include appointment by way of deputation and in appreciation of such legal position the deputation of the petitioner was approved by the Executive Council of BIPARD on 16.5.2006. In this connection, this Court will further observe that orders of repatriation are subject to the Constitutional provisions. Reference in this connection may be made to the case of K.H. Phadnis v. State of Maharashtra . Perusal of the said judgment would indicate that as the repatriation order was made on the basis of allegations without giving any opportunity of being heard to explain the allegations taken in support of the repatriation order, the repatriation order which was the subject matter of the said case was quashed. In the present case it is apparent from the notes of the Director General dated 18.5.2007 at pages 26-27/N of the concerned file that the petitioner has been repatriated as allegations have been made that he drew salary in the higher pay-scale while serving as Officer on Special Duty in the Bihar State Hydroelectric Power Corporation Limited, Patna, in the circumstances, before passing the repatriation order the Director General ought to have heard the petitioner and should have given him an opportunity to explain the position and thereafter if not satisfied with the explanation should have obtained the approval of the Executive Council of the BIPARD to repatriate him but as neither the opportunity to explain has been given nor the approval of the Executive Council of the BIPARD has been taken to repatriate the petitioner, this Court has no option but to hold that the repatriation order is arbitrary and violative of Articles 14 and 16 of the Constitution of India and proceeds to quash the impugned order bearing Memo No. 593 dated 18/21.5.2007, Annexure-7, which is, accordingly, Quashed. It is directed that the Chief Secretary, Bihar, who happens to be the Chairman of BIPARD should examine both the controversy, namely, that petitioner drew salary in the higher scale while serving on the post of Officer on Special Duty in the Bihar State Hydroelectric Power Corporation, Patna as also his grievance raised in representation dated 16.4.2007, Annexure-5 after giving the petitioner an opportunity of being heard. The Chief Secretary should examine the aforesaid two controversies as early as possible, in any case within a period of one month from the date of receipt/production of a copy of this order and forward his finding to BIPARD for being considered by the Executive Council. As the impugned repatriation order bearing Memo No. 593 dated 18/21.5.2007, Annexure-7 has already been quashed, petitioner be allowed to join BIPARD and paid his arrears of salary in the scale in which he was being paid salary in BIPARD but such payment shall be subject to the findings of the Chief Secretary about the admissibility of the scale to the petitioner in BIPARD. The arrears of salary be paid as early as possible, in any case within a period of fortnight from the date of receipt/production of a copy of this order.
11. This writ application is, accordingly, allowed to the extent indicated above.