RAM PARKASH MAKKARversusSTATE OF HARYANA AND ORS.

                     RAM PARKASH MAKKAR                                        A
                               v.
                   STATE OF HARYANA AND ORS.

                          SEPTEMBER 24, 1992

       (KULDIP SINGH, N.M. KASLIWAL AND B.P. JEEVAN                            8
                        REDDY. JJ.)

      Civil Service :

      Steno/Typist appointed in the Secretariat- Transfer to the Directorate   C
of Local Bodies as Assistant-Selection to the post of Personal Assistant and
confmnation of probation in the Directorate-Whether employee was on
deputation or on regular basis appointment in the Directorate.

      The appellant was appointed as a Steno/Typist on S.1.1973 in the
Secretariat. On 8.1.86, bis senices were placed at the disposal of Direc- D
torate of Local Bodies as an Assistant.

      While be was sening in the Directorate, a vacancy arose in the
category of Persnnal Assistant. On the basis of shorthand/type test, the
appellant was selected and was promoted as a Personal Assistant. On
S.10.1988, the appellant was declared to have completed satisfactorily bis     E
probation in the post of Personal Assistant.

     In 1988-89, the appellant requested the Director, Local Bodies to
absorb him in the Directorate.

      The Director in his letter dated 6.2.1989 to the Deputy Secretary to     F
the Government stated that the post of Personal Assistant in the Dlrec·
torate being a temporary one, and because the appellant was a confirmed
employee of the Secretariat, be could not be absorbed in the Directorate
unless bis lien was terminated.
                                                                               G
      The Secretary to the Government in reply stated that the lien of the
appellant could be terminated from the Secretariat only as and when be
is confirmed in the Directorate.

      On 23.2.1989, the Director in his letter to the Chief Secretary re·
quested him to terminate the lien of the appeallant to enable bis absorp· H
                                   817
    818                   SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.

A tlon In the Directorate.
          On 24.10.1992, the Director reverted the appellant to his parent          ·~

    department with Immediate effect as his services were no longer required        '
    In the Directorate.

B       The appellant cballenget\ the order or Director in a writ petition In
  the High Court, contending that bis appointment as an Assistant In the
  Directorate was a regular appointment; that be was promoted as a Per·
  sonal Assistant on a regular basis in the Directorate; that his probation
  was also declared in the post or Personal Assistant; and that be could not
C be reverted back to the Secretariat Service in the cln:umstances.

          The respondents contended that the appellant was merely deputed
    to serve in the Directorate; that the order dated 7.1.86 clearly recited that
    the appellant could be reverted back to the parent department as and when
    bis services were not required in the Directorate; that the very office of
D   Directorate of Local Bodies was temporary department and so were of the
    posts therein and that in such a situation, there could be no question of
    regular appointment.

     .   The Division Bench of the High Court dismissed the wiit petition,
E   against which the present appeal by special leave was Died.

          Allowing the appeal, this Court,

          HELD: 1.1. The fact that it is termed as an appointment on transfer
    basis coupled with the fact that bis probation was commenced and declared
F   to have been completed satisfactorily in the post of Assistant s•ows that It
    wasacaseofappolntmentbytransferandnotoneofdeputatlon. (822-H]

           1.2. The order does no doubt recite that bis appointment Is purely
    temporary and be Is liable to be reverted back to bis parent department
G   al any time. But this clause must be read along with other nrltals In the
    order and If so read, It must be understood as operative during the period
    or his probation only. Once bis probation was declared lo have been
    satisfactorily completed and • particularly after be was also promoted as
    Personal Assistant In the Department, and his probation commenced aud
    declared In such post also • It appears rather odd to say that he was only
H   on deputation In the Directorate. (823·8]
    RAMPARKASH v. STATEOFHARYANA [JEEVANREDDY,J.]                            819

       1.3. At no stage did any one suggest that the appellant was on A
deputation. II was put rorward as a derence ror the Orsi time, In the writ
petition. [823·F)

     1.4. In the circumstances the appellant must be held lo have been
appointed on regular basis as an Assistant In the Directorate and sub•
sequently promoted as Personal Assistant. It Is not a case or deputation.          B
                                                                         [824·C)
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3931 of
1992.

     From the Judgment and Order dated 20.1.1992 of the Punjab and                 C
Haryana High Court in C.W.P. No. 16271 of 1991.

     O.P. Sharma, K.K. Gupta, Vivek Sharma, R.C. Gubrele, Kamal Jeet
Singh and Ms. Nanita Sharma for the Appellant.

     Kapil Sibal, S.P. Goel, Ms. V. Mohana, Ms. lndu Malhotra, P.N. Puri           D
and Sudershan Goel for the Respondents.

        The Judgment of the Cour; was delivered by

        B.P. JEEVAN REDDY, J. Leave granted.
                                                                                   E
        Heard counsel for the parties.

       The appellant was selected as a Steno-Typist by the Haryana Subor-
dinate Services Selection Board and appointed as such in the Haryana Civil
Secretariat on 5.1.73. On 8.1.86 his services were placed at the disposal of
Directorate of Local Bodies Haryana, Chandigarh as an Assistant. The               F
order dated 8.1.86 appointing him as an Assistant in the Directorates reads
as follows:

              "Shri Ram Parkash, Steno-typist, Haryana Civil
          Secretariat is appointed on transfer basis in this clirec-               G
          !orate as an Assistant in the pay scale of Rs.525-1050. This
          appointment is purely temporary and he can be reverted
          back to his parent department as a."!d when his services
          will not be required.

          He will be on probation for one year and his lien will be                H
    820                    SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.

A            retained in the Haryana Civil Secretariat until he is con-
             firmed in this Directorate."

        While he was serving in the Directorate, a vacancy arose in the
  category of Personal Assistant. A shorthand/type test was held on the basis
  of which the ,appellant was selected and promoted as a Personal Assistant.
B The order of promocion reads as follows:

                 "Shri Ram Parkash Makkar, Assistant of this direc-
             torate is hereby promoted to the post of Personal Assis-
             tant to Director, Local Bodies, Haryana in the pay scale
c            of Rs.1640-40-2600-EB-75-2900 + 75 Sp!. pay. He will be
             on probation for a period of one year, which can be
             extended upto a maximum period of one year. If his work
             and conduct during the probation period is not found
             satisfactory, he will be liable to be reverted to the post of
             Assistant without assigning any reasons.
D
             Dated Chandigarh                                  R.S. Kailay
             the 4th Sept. 1987.                   Director, Local bodies,
                                                    Haryana, Chandigarh.

E         His probation was declared to have been completed satisfactorily in
    the post of Personal Assistant by an order dated 5th October 1988. The
    order reads as follows:

             "As per terms and conditions of promotion order of Shri
             Ram Parkash Makkar, Assistant to the post of Personal
F            Assistant to Director, Local B~es, Haryana, issued vide
             Endst. No.7187-2A-87/32121 dated 4.9.1987, he has been
             declared to have completed his probation period from
             4.9.1987 to 5.9.1988 satisfactorily.•

          Sometime in 1988-89 the appellant appears to have requested the
G Director, Local Bodies, Haryana that he may be absorbed in the Directorate.
    He expressed his disinterestedness in going back to Secretariat. On the basis
    of his request a letter was written by the Director to the Deputy Secretary to
    Government, Haryana Secretariat Establishment (letter dated 6th February
    1989) stating "that the post of Personal Assistant in this Directorate is a tem-
H   porary one and.he is a confirmed employee of Haryana Civil Secretariat and
    RAMPARKASH v.STATEOFHARYANA [JEEVANREDDY,J.]                          821

he can not be absorbed permanently in. this Directorate, unless bis lien is• A
terminated from the Civil Secretariat. It is requested that the lien of the offi-
cial may be terminated from the Civil Secretariat,.so that he can be absorbed
in this Directorate, as this department has no objection in absorbing this offi-
cial against the post of the Personal Assistant." On ·15th February 1989 a letter
was addressed by the Chief Secretary to the Haryana Government to the
Director, Local Bodies stating that "according to rule 3.15 of C.S.R. Vol.I B
Part- I, the lien of Shri Ram Parkash, Steno-typist can be terminated from
Civil Secretariat only as and when he will be confirmed in your Directorate'
On 23rd February 1989, the Director wrote to the Chief Secretary requesting
that 'the lien of Sh. Ram Parkash from the post of Steno-typist may be ter-
minated, so that the official may be absorbed in the Directorate, as this Direc- C
!orate has already referred the case of Govt. for converting the temporary
posts into permanent and it is hoped that these posts will be made permanent
shortly. So under the provision of rule 3.15 of CSR Vol.I Part I, the incumbent
will not have to remain without lien for a long time and it will also not bring
adverse effect on the services of the official.'
                                                                                 D
       .It is not clear as to what happened later but on 24.10.91 the impugned
order was passed by the Director Local Bodies, Haryana. The order reads
as follows:

         "Sh. Ram Parkash Makkar, Steno-typist of Secretariat                    E
         Establishment, who was appointed as Assistant in this
         Department vide Order No.3A-86/832-33 dated 8.1.86 and
         now working as Personal Assistant/D.L.B., is hereby
         reverted to bis parent department with immediate effect
         as per terms and conditions of bis appointment letter as
         the services of the official and no longer required in this             F
         department.

                                                               R.K.Ranga
                                          Director, Local Bodies, Haryana

         Dated Chandigarh
                                                                                 G
         the 24.10.91."

      The appellant questioned the same by way of a writ petition in the
High Court of Punjab and Haryana being CWP 16271 of .1991. The
appellant's contention was that his appointment as an Assistant in the H
    822                   SUPREME COURT REPORTS (1992] SUPP. 1 S.C.R.

A Directorate was a regular appointment, that his probation was also
  declared in the post of Assistant and further that he was promoted as
  Personal Assistant on a regular basis in the Directorate. The fact· that his
  probation was also declared in the post of a Personal Assistant, established
  that his appointment in the Directorate was a regular appointment and
B that, in the circumstances, termination o~ his lien in the Secretariat service
  was only a formality. He submitted tha~ he cannot be reverted baclc to the
  Secretariat Service in the circumstances. The Respondents, however, con-
  tended that the appellant was merely deputed to serve in the Directorate.
  The order dated 7.1.86, they submitted, clearly recited that the appellant
  can be reverted baclc to his parent department as and when his services
C are not required in the Directorate. They submitted that the very Office of
  Directorate of Local Bodies is a temporary department and so/are all the
  posts therein. In such a situation there can be no question of regular
  appointment, they contended.

          A Division Bench of the Punjab and Haryana High Court held,
D agreeing with the respondents that the order dated 8.1.86 shows that the
    appellant was merely deputed to serve in the Directorate which. is evident
    from the fact that the order expressly recited that he can be reverted baclc
    to his parent department as and when his services are not required. The
    Division Bench also observed· that the post on which the appellant was
E   appointed as well as the department itself in which he was appointed was
    temporary and, therefore, question of substantive appointment to the post
    of Assistant or Personal Assistant cannot arise. Accordingly, the Writ
    Petition was dismissed.

F       The main questioned in this appeal is whether the appellant was
  appointed by transfer as an Assistant in the Directorate or whether it was
  a mere case of deputation. We have set out hereinbefore the order o( his
  appointment in the Director.ate. The order ha& to be read as a whole. It
  says that the appellant is "appointed on transfer basis" as an Assistant in
  the Directorate. It also says that his appointment is purely temporary and
G that he can be reverted to his parent department as and when his services
  are not required. The order further says that the appellant shall be on
  probation for one year and that his lien in the Civil Secretariat Service will
  remain until he is confirmed in the Directorate. Now what do these three
  features read together mean? The Division Bench has laid emphasis upon
H the second feature, ignoring the first and the third. With respect we are
    RAMPARKASH v.STATEOFHARYANA [JEEVANREDDY,J.]                        823

unable to agree with its view. The fact that it is termed as an appointment A
on transfer basis coupled with the fact that his probation is commenced
shows that it was a case of appointment by transfer and not one of
deputation. Indeed, the order expressly contemplates his confirmation in
Directorate. It is true that the order does recite that his appointment is
purely temporary and he is liable to be reverted back to his parent B
department any any time. But this clause must be read along with other
recitals in the order and if so read, it must be understood as operative
during the period of his probation only. Once his probation was declared
to have been satisfactorily completed and - particularly after he was also
promoted as Personal Assistant in the Department, and his probation
commenced and declared in such post also - it appears rather odd to say C
that he was only on deputation in the Directorate. The correspondence
between the Directorate and Secretariat referred to hereinbefore further
reinforces our opinion. When the appellant expressed his desire to be
absorbed as Personal Assistant in the Directorate and requested the Direc-
torto approach the Secretariat for terminating his lien, the Director agreed D
with his request and requested the Secretariat to terminate the appellant's
lien therein so as to enable him to absorb the appellant in his service. In
his letter dated 15th Febr'!ary, 1989, the Chief Secretary replied that his
lien will be terminated only when he is confirmed in the Directorate. In his
letter dated 23rd February, 1989, the Director requested the Chief E
Secretary again to terminate the appellant's lien in the Secretariat service
so as to enable his absorption in the. Directorate. All this correspondence
goes to show that all that was remaining to be done was a formal order of
termination of his lien in the Secretariat Service and a corresponding order
of confirmation in the Directorate. It is not without significance that at no
stage did any one suggest that the appellant was on deputation - not even F
in the impugned order. It was put forward as a defence for the first time,
in the writ petition. In the face of all this material, we find it difficult to
agree with the respondents that the appellant was merely deputed to serve
in the Directorate and his reversion back to the Secretariat is unexcep-
tionable.                                                                       G

      We are also not impressed by the argument that the very Directorate
is temporary and, therefore, there is no question of permanent absorption
of anyone in its service. The answer to this argument is furnished by the
Director himself in his letter dated 23rd February, 1989, the relevant H
    824                   SUPREME COURT REPORTS (1992] SUPP. 1 S.C.R.

A portion of which bas been extracted hereinabove. It is evident that the
    appellant stands on the same footing as other regular employees of the
    Directorate in this behalf.

         The learned counsel for the respondents then argued that the
  appellant's promotion as a Personal Assistant was contrary to rules and
B tiu\t be was not eligible to bold the said post. But that is not the ground
  upon which the impugned order was passed. The impugned order does not
  say anything about the appellant's eligibility to hold the post of Personal
  Assistant nor does it say that it is invalid for any reason. We are, therefore,
  not called upon to express any opinion on the above submission of the
C counsel for respondents. Suffice it to say that in the circumstances the
  appellant must be held to have been appointed on regular basis as an
  Assistant in the Directorate and subsequently promoted as Personal Assis-
  tant. It is not a case of deputation.

          For the above reasons, the order dated 24.10.1991 must be held to
D be contrary to law and is accordingly quashed. The Director, Local Bodies,
  Haryana shall consider the appellant's case for confirmation according to
  Rules and pass orders thereon accordings to law, within a period of three
  months from today. The lien of the appellant in the Secretariat service will
  depend upon the orders passed by the Director in pursuance of the
E directions given herein. The Civil Appeal is allowed accordingly. No order
  as to costs.

    V.P.R.                                                      Appeal allowed.