{"id":102124,"date":"2006-09-22T00:00:00","date_gmt":"2006-09-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/surendra-singh-gaur-vs-state-of-m-p-and-ors-on-22-september-2006"},"modified":"2016-07-13T08:37:13","modified_gmt":"2016-07-13T03:07:13","slug":"surendra-singh-gaur-vs-state-of-m-p-and-ors-on-22-september-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/surendra-singh-gaur-vs-state-of-m-p-and-ors-on-22-september-2006","title":{"rendered":"Surendra Singh Gaur vs State Of M.P. And Ors on 22 September, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Surendra Singh Gaur vs State Of M.P. And Ors on 22 September, 2006<\/div>\n
Author: D Bhandari<\/div>\n
Bench: S.B. Sinha, Dalveer Bhandari<\/div>\n
           CASE NO.:\nAppeal (civil)  3418 of 2003\n\nPETITIONER:\nSURENDRA SINGH GAUR.\n\nRESPONDENT:\nState of M.P. and Ors.\n\nDATE OF JUDGMENT: 22\/09\/2006\n\nBENCH:\nS.B. SINHA & DALVEER BHANDARI\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
Dalveer Bhandari, J.\n<\/p>\n
This appeal is directed against the judgment of the Madhya Pradesh
\nAdministrative Tribunal, Bhopal Bench at Bhopal, M.R in Transfer
\nApplication No.333 of 1988 dated 7.5,1996.\n<\/p>\n
Brief facts which are necessary to dispose of this appeal are as under:\n<\/p>\n
The appellant was appointed on 18.10.1967 vide Order No.6857\/8432\/14-1 on
\nthe post of Assistant Agriculture Engineer in the department of Agriculture
\nin the State of Madhya Pradesh. He on his own volition on 2.7.1975
\nrequested to be transferred and absorbed in the department of Irrigation.
\nThe appellant made the request for transfer because there were limited
\nchances of promotion in the department of Agriculture and there were
\ngreater opportunities of promotion in the Irrigation department.\n<\/p>\n
According to the stand of the respondents, the – department of Irrigation
\nis a separate department from the Agriculture department and both the
\ndepartments maintain their separate seniority lists. Both the departments
\nwere under the control of the State of Madhya Pradesh, but the service
\nconditions of the employees in both the departments are governed by their
\nrespective rules and guidelines. In both the departments, the seniority is
\ncomputed from the date of appointment in the- department. Therefore,
\naccording to Rules, the seniority of the appellant in the Irrigation
\ndepartment is computed from the date of his taking charge in. the
\nIrrigation department. This position is clear and consistent in the
\ngovernment that when an employee, on his own volition, requests for
\ntransfer from one department to another department, then his seniority is
\ncomputed from the date of joining that department and the employee is not
\nentitled to get benefit of past service.\n<\/p>\n
The Irrigation department on 27.1.1981 accepted the request of the
\nappellant for transfer and consequently he was permanently absorbed in the
\npost of Assistant Engineer (Civil) in the Irrigation department from the
\ndate of taking over the charge. The relevant portion of the transfer order
\ndated 27.1.1981 is reproduced hereinbelow :\n<\/p>\n
“Shri Surendra Singh Gaur, Agricultural Engineer (River Valley Project) .is
\nmerged\/absorbed from the date of taking over charge of the post of
\nAssistant Engineer (Civil) in the Irrigation department, and with the
\nconsent of the Agriculture Department. From the date of taking over charge
\nhe shall be eligible for seniority in the cadre of Assistant Engineers.”\n<\/p>\n
Therefore, the appellant from the very beginning was fully aware that his
\npast service in the Agriculture department would not be counted in the
\nIrrigation department in computing his seniority. The appellant opted and
\napplied for transfer and absorption in the Irrigation department having the
\nknowledge that there would be greater chances of promotion in the
\nIrrigation department. On his absorption in the Irrigation department, the
\nappellant `was released from the Agriculture department and consequently,
\nhe had lost his lien to the post previously held by him in the Agriculture
\ndepartment. Now, the appellant upon absorption in the Irrigation department
\nhad to be governed by the conditions of service in the Irrigation
\ndepartment.\n<\/p>\n
It may be relevant to mention that the department of Agriculture by order
\ndated 16.7.1982 gave the appellant proforma promotion to the post of
\nAgriculture Engineer in the Agriculture Service Class-I.\n<\/p>\n
The case of the respondents, is that the Irrigation department could not
\ngive benefit of past service in the Agriculture department to the appellant
\nmore particularly, when the services of the appellant were not borrowed by
\nthe Irrigation department but the appellant voluntarily sought transfer and
\nabsorption in the Irrigation department In other words, the appellant was
\ntransferred on his own volition and request, therefore, his service
\nconditions were governed by the rules of the Irrigation department.\n<\/p>\n
In the counter-affidavit, the respondents further asserted that an employee
\nhas a right to continue in his department and maintain seniority, but
\naccording to Rules he cannot get transferred and be absorbed in another
\ndepartment and take benefit of the past service of the erstwhile
\ndepartment. Therefore, on transfer to the Irrigation department on his own
\nrequest, wherein he was permanently absorbed from the date of his taking
\nover charge, he had lost his lien in the Agriculture department and ceased
\nto be an employee of the Agriculture department. Therefore, promotion, if
\nany, could be given to the appellant on the basis of his service in the
\nIrrigation department. The appellant made representation to the Irrigation
\ndepartment regarding ex-post facto merger (absorption) on the post of
\nExecutive Engineer. A reply to the representation was sent on 8.8.1983. The
\nsame is reproduced as under:<\/p>\n
\n\n\"Major, Medium & Minor, Narmada Valley\n\nDevelopment Department\n\nNo.3(B)\/189\/P\/31\/18Q       Bhopal, Dated 8.8.1983\n\nTo,\n\n\tShri Surendra Singh Gaur,\n\n\tAssistant Engineer (I.F.C.)\n\n\tOffice of Engineer-in-Chief,\n\n\tIrrigation Department,\n\n\tBhopal.\n\n<\/pre>\n
Sub:- Regarding ex post facto merger (absorption) on the post of Executive
\nEngineer.\n<\/p>\n
Ref.:- Your Representation<\/p>\n
\tWith reference to your above representation, it is informed as per
\n\tthe order that your ex post facto absorption on pay scale .of Class
\n\tI post of Executive Engineer is difficult in Irrigation department.
\n\tIf you want to go back to Agriculture department and that
\n\tdepartment is also ready to take you back, this department has no
\n\tobjection.\n<\/p>\n
Sd\/-\n<\/p>\n
(R.P. Verma)<\/p>\n
Under Secretary<\/p>\n
Govt. of Madhya Pradesh<\/p>\n
Major, Medium Minor & Narmada<\/p>\n
Valley Development Department<\/p>\n
Endt.No.3(B)\/189\/P\/31\/180  Bhopal, Dated 8.8.1983<\/p>\n
Copy forwarded to:-\n<\/p>\n
The Secretary, Govt. of M.P., Agriculture Deptt., for information and
\nnecessary action.\n<\/p>\n
Sd\/-\n<\/p>\n
(R.P. Verma)<\/p>\n
Under Secretary<\/p>\n
Govt. of Madhya Pradesh<\/p>\n
Major, Medium Minor & Narmada<\/p>\n
Valley Development Department”\n<\/p>\n
The Irrigation department gave the option to the appellant to go back to
\nthe Agriculture department, but the Agriculture department refused to take
\nback the appellant because according to the Agriculture department he had
\nlost his lien in the department and the Agriculture department was not
\nunder any obligation to take back the appellant. Thereafter, the appellant
\nfiled a writ petition before the High Court of Madhya Pradesh, Indore Bench
\nat Indore (M.P.No. 145\/87) praying that<\/p>\n
“A writ direction or order as may be deemed fit be issued so that the
\npetitioner is placed in service at his proper post with proper pay to which
\nhe has become entitled to. Cost of this petition be also awarded to the
\npetitioner.”\n<\/p>\n
By later amendment dated 19.12.1984, the appellant prayed for relief as
\nfollows:-\n<\/p>\n
“A writ direction or order as may be deemed fit be issued that the
\npetitioner be given his arrear claim\/dues of promotion (position, pay-scale
\nand pay fixation and arrears of pay) in agriculture service Class-I in
\nAgriculture department effective from the date 29.8.1979 for which he has
\nbeen entitled by the State Government, and also due to this, the further
\npromotions (postings, pay-scale and pay fixations and pay) be given to the
\npetitioner equally which have been given by the Government to his juniors
\nin Agriculture Department in the Class-II and Class-I service as on the
\ndate 29.8.1979. The cost of this petition and the compensation due to this
\nsituation be also awarded kindly to the petitioner.”\n<\/p>\n
The aforesaid petition was transferred to the Tribunal under Section 29 of
\nthe M.P. Administrative Tribunal Act (hereinafter referred to as the Act’)
\nby the order of High Court dated 21.9.1988.\n<\/p>\n
The Tribunal gave opportunity to the – State Government to file its reply
\nbut for seven long years no reply was filed and ultimately the petition was
\ndisposed of by the Tribunal without hearing the State Government. The
\nTribunal after noting the relevant facts observed that according to the
\nservice jurisprudence, an employee has a right to continue in his
\ndepartment. He has no right to get transferred to some other department and
\nthereafter claim benefit of his past service. The Irrigation department
\nabsorbed the appellant on his own request as an Assistant Engineer on
\ntransfer on permanent basis. As a result, the appellant had lost his lien
\nin the Agriculture department He ceased to be an employee of the
\nAgriculture department. The refusal of Agriculture department to accept him
\nback on transfer in the Agriculture department, Engineering Services was
\nwell within the jurisdiction of the Agriculture department. The Tribunal
\ndid not find any infirmity in the approach of the respondents.\n<\/p>\n
The Tribunal however, observed that the appellant was given proforma
\npromotion by the Agriculture department vide order dated 16.7.1982. This
\npost facto promotion to Class-I post was effective from 29.8.1979.
\nTherefore, according to the well-established rules of service
\njurisprudence, the Agriculture department was under an obligation to pay
\nthe difference of’salary and pay, which the appellant had drawn in the
\nAgriculture department as an Assistant Agriculture Engineer and the salary
\nand allowance to which he became entitled to as a result of the proforma
\npromotion to the rank of Agriculture Engineer. The Agriculture department
\nwas directed to re-fix his salary in the higher post with effect from
\n29.8.1979. The difference between revised salary and the salary drawn by
\nthe appellant in the department for the period during which he worked in
\nthe Agriculture department should be worked out and disbursed by the
\nAgriculture department within four months of the communication of those
\norders.\n<\/p>\n
The Tribunal further observed that the Irrigation department had agreed to
\nabsorb the appellant on transfer only as an Assistant Engineer. The
\nIrrigation department was well within its right and justified in their
\nstand that the appellant cannot be absorbed as an Executive Engineer in the
\nIrrigation department. However, having regard to the peculiar circumstances
\nof the case, and keeping in view the well-established principles of `pay
\nprotection’ as applicable in Government service, it will be fair and proper
\nthat the Irrigation department, without giving higher rank, should give the
\nbenefit of `pay protection’ to the appellant. The Tribunal further directed
\nthat the difference between the pay drawn by the appellant as an Assistant
\nEngineer, Irrigation and the pay fixed by the Agriculture department in
\naccordance with the directions given by the Tribunal may be treated as
\npersonal pay of the appellant. This difference (personal pay) will be
\nabsorbed in the future increments to be earned by the appellant in the
\nIrrigation department. The Tribunal also directed that the arrears of
\npersonal pay thus derived may be disbursed to the appellant within six
\nmonths of the receipt of information from the Agriculture department
\nregarding his revised salary at the time of transfer of service to the
\nIrrigation department.\n<\/p>\n
The Tribunal observed that the Agriculture department cannot be directed to
\ntake back the appellant and give higher rank with reference to his juniors
\nin the Agriculture department. Since the appellant on his own volition had
\ngone to Irrigation department and after his absorption in the Irrigation
\ndepartment had lost the lien in the Agriculture department, therefore no
\ndirection can be given now to the Agriculture department.\n<\/p>\n
It may be pertinent to mention that the appellant has already superannuated
\nfrom the service. As far as financial benefits accruing to him because of
\nproforma promotion by the Agriculture department vide order dated 16.7.1982
\nwith effect from 29.8.1979 are concerned, the Tribunal has correctly given
\ndirection so that the appellant can derive the fruits of promotion in
\npursuance to the order dated 16.7.1982 of the Agriculture department.\n<\/p>\n
The appellant appeared in person. We have heard him at length and also
\nconsidered his written submissions. The appellant argued that there is no
\nprovision in the Rules for transfer of an employee from one department to
\nanother on personal request of a Government servant. The appellant sought
\ntransfer to the Irrigation department in his own interest, but just because
\nhe was not extended the benefit of past service he cannot be permitted to
\ntake a total somersault. Despite this, on the appellant’s representation,
\nthe Irrigation department vide order dated 8.8.1983 (which has been quoted
\nin the preceding paragraph) mentioned that in case he wanted to go back to
\nthe Agriculture department, the Irrigation department had no objection. The
\nAgriculture department refused to take back the appellant on the ground
\nthat on his absorption in the Irrigation department, he had lost his lien
\nin the Agriculture department. In this view of the matter, in law, the
\nAgriculture department cannot be given direction to take back the appellant
\nand give him a higher rank. The Tribunal was justified in not directing the
\nAgriculture department to take back the appellant because he had lost his
\nlien in that department on absorption in the-Irrigation department.
\nHowever, the Tribunal appropriately gave direction for financial benefit to
\nthe appellant according to the provisions of the M.P. Fundamental Rules,
\n1960.\n<\/p>\n
We have carefully considered the submissions of the appellant and the
\nrespondents. We find no infirmity in the impugned order of the Tribunal. No
\ninterference is called for. The appeal being devoid of any merit is
\naccordingly dismissed. In the facts and circumstances of the case, we
\ndirect the parties to bear their own costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Surendra Singh Gaur vs State Of M.P. And Ors on 22 September, 2006 Author: D Bhandari Bench: S.B. Sinha, Dalveer Bhandari CASE NO.: Appeal (civil) 3418 of 2003 PETITIONER: SURENDRA SINGH GAUR. RESPONDENT: State of M.P. and Ors. DATE OF JUDGMENT: 22\/09\/2006 BENCH: S.B. SINHA & DALVEER BHANDARI JUDGMENT: JUDGMENT Dalveer […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-102124","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSurendra Singh Gaur vs State Of M.P. And Ors on 22 September, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/surendra-singh-gaur-vs-state-of-m-p-and-ors-on-22-september-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Surendra Singh Gaur vs State Of M.P. 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