- (1.) SUDHIR Agarwal, J. Heard learned Counsel for the petitioner and Sri Haider Zaidi, learned standing Counsel for the respondents.
(2.) THE writ petition is directed against the order dated 9-10-1984 (Annexure-7) whereby the representation of the petitioner for deputation allowance from 1-9-1978 and onwards has been rejected by the Government vide order dated 14-8-1984 as communicated by the Collector vide impugned order. THE said order also direct that deputation allowance already drawn by the petitioner from 1-9-1978 to 30-6-1984 shall be recovered. In brief the relevant facts are that the petitioner was appointed as stamp clerk in December, 1944 in the Collectorate of District Rampur and was subsequently absorbed and confirmed on the said post. There was a banking company M/s. Rampur Bankers Private Limited, which got involved in certain fraudulent activities of public funds and criminal proceeding were initiated. The Collector, Rampur was appointed as Administrator by the High Court for the purpose of distribution of the assets. He launched a scheme namely "rampur Bankers Refund of Money Scheme" and directed the petitioner to work as clerk on deputation in the aforesaid scheme pursuant whereto the petitioner worked on deputation from 25-5-1967. The aforesaid deputation was duly sanctioned by the Commissioner, Bareilly. It appears that initially the deputation was for a period of five years whereafter an attempt was made to replace the petitioner by some other employee. This matter attracted attention of this Court and on 28-8-1973 this Court passed the following order: "sri Mohd. Abid, an employee of the Collectorate, has been on deputation with Rampur Bankers for five years. It was brought to the notice of the Court that under the Government Rules no official can remain on deputation for more than five years and for this reasons it was under contemplation to revert him to the Collectorate and to post another official on deputation in his place. Such a step will create many problems and the District Magistrate will find it very difficult to make payments in pursuance of the orders of this Court. A new official will take many months to be acquainted with the record and even then cannot easily trace out a particular entry or paper. The District Magistrate will be well advised to move the State Government to exempt Sri Mohd. Abid from the operation of this Rule and he may be allowed to remain on deputation till such time as the District Magistrates considers necessary for making payment to the depositors in pursuance of the orders of this Court. " In pursuance to the order dated 28-8-1973 passed by this Court, it appears that the Collector Rampur referred the matter to the State Government for sanction of the deputation of the petitioner as a special case and since no communication was received, in the mean time the petitioner continued on deputation in the aforesaid refund scheme. The State Government vide order dated 20-6-1984 sanctioned and approved deputation of the petitioner for the period 24-5-1972 to 28. 2 1983. The said order also sanction deputation allowance for a period up to 31-8-1978 only at the rate of 20% and denying deputation allowance for the substantive period. However, for the purpose of deputation allowance the salary admissible to the petitioner including 20% deputation allowance was to be taken into account. The aforesaid order claim to have been issued with the concurrence of the Finance department as stated in para-2 of the said order. It is not disputed that the petitioner attained the age of superannuation on 30-6-1984 while working continuously on deputation and the aforesaid order was issued just ten days earlier to his date of retirement. Immediately thereafter by Government Order dated 29-9-1984 the period of deputation of the petitioner from 1-3-1983 till 30-6-1984 was also approved on the same terms and conditions as contained in the earlier Government Order dated 20-6- 1984. It appears that when the matter was pending before the respondents, the deputation allowance actually continued to be paid to the petitioner but pursuant to the orders dated 20-6-1984 and 29-9- 1984 the petitioner apprehending recovery of deputation allowance, represented the matter to the Government which has been rejected by the Government Order dated 9-10-1984 communicate to the petitioner by the Collector, Rampur vide letter dated 16-10-1984 (Annexure-7 to the writ petition) wherein it has further been directed that in case the deputation allowance has been withdrawn by the petitioner between the period of 1-3-1983 to 30-6-1984 the same may be recovered. Challenging the aforesaid order dated 9-10-1984 passed by respondent No. 1 the petitioner has approached this Court by means of this writ petition.
(3.) A counter-affidavit has been filed and the State Government states that the Government Order dated 13-8-1978 was issued which provides that the maximum period for deputation would be five years and the employee sent on deputation to public undertaking and companies under the control of the Government shall be entitled for deputation allowance. The amount of deputation allowance was also prescribed as 20% of the pay of the incumbent. Another Government Order appears to have been issued on 16-3-1983 directing to ensure repatriation of a Government servant from deputation on the expiry of five years by 31-3-1983 and in case any employee flout such order, action be taken against him and not to pay any deputation allowance or other benefit in the company or undertaking in which he is working on deputation. Learned Counsel for the petitioner submits that his continuance on deputation was not on his volition or request but in the exigency of the circumstances under the orders of this Court as well as the authorities of the State Government. He never requested the respondents to continue him on deputation. In the circumstance, neither it can be said that the continuance of the petitioner on deputation beyond five years or after 1-9-1978 was due to his own fault or on account of disobedience of any Government Order and in these circumstances being the special case, the petitioner was entitled for payment of deputation allowance, which was, a fortiori, rightly paid by the respondent No. 2 and the respondent No. 1 have acted illegally in passing the impugned order directing for recovery of such deputation allowance.;