Letters Patent Appeal No.324 OF 2001
Against the judgment and order dated 13th October 1998
passed in C.W.J.C.No. 3267 of 1990
THE BIHAR STATE HYDRO ELECTRIC-------------------Appellant.
Versus
YOGESH KUMAR LABH------------------------------------Respondents.
-----
For the appellant : Mr. Shyama Prasad Mukherji,
Sr. Advocate.
M/s. Shanti Pratap,Adv.
Mr.O.P.Agrawal,Adv.
For the Respondents: M/s. Sujeet Kumar Sinha
Indu Bhushan Pandey,Advs.
PRESENT
THE HON’BLE MR. JUSTICE BARIN GHOSH
THE HON’BLE MR. JUSTICE CHANDRA MOHAN PRASAD
Barin Ghosh There is no dispute that the writ-petitioner
&
C.M.Prasad,JJ respondent was not an employee of the appellant, he was a
deputanist. His parent Department was Small Industries
Service Institute, a Central Government establishment.
There is also no dispute that it was the appellant who
requested the writ-petitioner to give consent for absorption
in the appellant in the post of Assistant Manager(Accounts)
in public interest. The writ-petitioner respondent gave his
consent to the proposal, subject to counting his service as
an employee of the Central Government for the purpose of
settlement of his pension. The appellant approached the
Central Government for its consent for absorption of the
-2-
writ-petitioner in the appellant in the post of Assistant
Manager (Accounts) in public interest. The Central
Government on the other hand asked the appellant to return
the writ-petitioner to his parent Organization. In the mean
time, the Board of Directors of the appellant approved the
proposal for absorption of the writ-petitioner in the post of
Assistant Manager (Accounts). The deputation of the writ-
petitioner expired on 7th September 1987. Despite such
expiry, the writ-petitioner was not returned to his parent
Organization. In the mean time on 14th August 1987, once
again the appellant approached the Central Government to
approve permanent absorption of the writ-petitioner in the
appellant. Ultimately on 19th July 1988 the Central
Government approved absorption of the writ-petitioner in
the appellant in public interest but in the post of Accountant.
On 21st July 1989, the writ-petitioner was informed about
his absorption in the post of Accountant. This resulted in
filing of the writ petition. The same has been allowed by the
judgment and order under appeal and, hence, the present
appeal.
It was the appellant who offered the writ-petitioner
-3-
the post of Assistant Manager (Accounts) upon his
absorption in the appellant which offer was accepted. The
appellant at no point of time offered the post of
Accountant to the writ-petitioner, upon his absorption in the
appellant. In the result, merely on the basis of approval of
the Central Government for absorption of the writ-
petitioner as Accountant in the appellant in public interest,
the appellant could not absorb the writ petitioner in the post
of Accountant.
An employment is a contract and remains a
contract all throughout. Unless the employee agrees, he
cannot be absorbed in the post where he has been deputed.
Neither the original employer, nor the subsequent employer
can compel an employee to work in a post in which the
employee concern did not agree to work.
The appellant having had offered the post of
Assistant Manager (Accounts) to the writ-petitioner and the
same having been accepted by the writ-petitioner, there was
no just reason for the appellant not to appoint the writ
petitioner upon his absorption in the appellant in the post of
Assistant Manager (Accounts). The same having been
-4-
declared by the judgment and order under appeal, there is no
scope of interference. The appeal fails and the same is
dismissed.
Patna High Court, (Barin Ghosh,J)
Dd. 8th Sept.2008
N.A.F.R. / Jay/
(C.M.Prasad,J)