Basudeva Panigrahi, J. - (1.)These two appeals are directed against the Judgment and order passed by a Single Bench of this Court in C. O. No. 13788 of 1990 and C. O. No. 13796(W) of 1990, whereby the learned Single Judge directed the authorities, i. e. Administrative Training Institute, to regularise the services of the respondent No. 5 in the post of Accountant and dismissed the application of the appellant in F. M. A. T. No. 3467 of 1992.
(2.)The respondent No. 5 was working in the Orientation and Study Centre, Kalyani since 1964. The centre was a Training Institute which was under the control of the then community Development Department of the. Government of West Bengal. In 1967 he was promoted to the post of Cashier cum-Store Keeper at the centre. The Administrative Training Institute was set up in or about 1978. The then Director of ATI wrote to the Principal, requesting him to allow the respondent No. 5 on deputation to the borrowing Institute on promotion. Accordingly, the Principal, Orientation and Study Centre agreed for sparing respondent No. 5 to the ATT and thus, forwarded his Bio-Data. On 19th Jan. 1979, the then Director addressed a letter to the Secretary, Home (Personnel and Administrative Reform) (P & AR) Department, Government of West Bengal for creation of staff for the ATI It was stated that the post of accountant in the said office had to be filled up without delay. It is indicated that the respondent No. 5 having possessed proficiency in accounts and long standing experience who would be very useful in organizing the Institute should be brought on deputation. The Secretary, on the other hand was requested to arrange for the release of respondent No. 5 by the CD Department. On 3rd Feb., 1976 the Deputy Secretary Home (P & AR) Department wrote to the Secretary Agricultural and CD Department stating that since, the post of accountant was created in the ATI which had to be filled-up immediately to enable smooth management of the office. The Secretary, Agricultural CD Department was requested to let Home (P&AR) Department know whether the respondent No. 5 could be immediately spared for appointment to the post of accountant in the ATI on a purely temporary basis. the Deputy Secretary, Department of Panchayat and Community Development in letter dated 3rd April, 1979 expressed that the Department had no objection to spare the services of Sri Misra for the said post The Home (P & AR) Department wrote to the Director ATI on 7th May, 1979 relating to the appointment of respondent No. 5 in the post of Accountant; requesting him for issuance of the necessary order. It is indicated that the terms of deputation to be finalised after consulting with the Finance Department. From the subsequent correspondence with the Home (P & AR Department it reveals that in future some problems might arise in case the respondent No. 5 was not absorbed in the borrowing Department as an Accountant. It was proposed that the promotion to the post of Accountant be given to the respondent No. 5. Accordingly, after consultation with the Director ATI it was decided to fill up the post of Accountant by SCM in the scale of pay of Rs. 330-10-400-15-550-in terms of Home (P.& A.R) Department's order No. 1690 P.A.R.(Trag.)/ 3T-26/79 dated 19.9.1979 for a period of one year with effect from the date of his joining. Copies of the letter was also sent to the parent Department, Principal, Orientation and Study Centre with a request of his immediate relief. However, for some reason or other the respondent No. 5 could not be immediately released from his parent Department for taking up his post in ATI. Therefore, the Government in the Home (P & AR) Department took a decision to find out another suitable person for the post of Accountant in ATI in the scale of Rs. 450-675.00. The ATI requested the concerned Employment Exchanges for sponsoring suitable candidates for the post of Accountant. The names of 7(seven) candidates were forwarded including the appellant who was then serving as Junior Accountant in the Comprehensive Area Development Corporation (CADC). From the interview conducted by the ATI it appears that none of the candidates was found to be suitable to the said post. In the meanwhile, the Administrative Officer, ATI visited the Orientation and Study Centre and discussed the relief of the respondent No. 5 to serve as Accountant in the Institute. The Principal of the Institute expressed his desire to retain the respondent No. 5 in the borrowing Institute in constitution with the Secretary (Panchayat and Community Development). In the meantime,appellant applied in the scale of pay of Rs 330-550.00 to the ATI through proper channel. Nevertheless, none of the candidates who appeared before the interview in the ATI was found suitable for the post yet the appellant stood first in the said interview and implored for his absorption in the said post. Accordingly, the Administrative Officer ATI addressed a letter to the Comprehensive Area Development Corporation (CADC) for absorbing the appellant and if CADC had no objection for his appointment. On 18th July, 1980 the appellant was appointed as temporary U.D. Assistant in the scale of pay of Rs. 330-550.00. On 2nd Aug., 1980 the appellant wrote to the Additional Director accepting the offer of U.D. Assistant in ATI on the terms and conditions mentioned in the office order dated 18.7.1980. The respondent No. 5 was released from his parent Department on 3.7 80 and seems to have joined with ATI as Accountant on 4.7.80. On 29 12.1981 from the office order passed by the Director of ATI; it appears that the respondent No. 5 was employed not only as Accountant but had been allowed to officiate in the post of Head Clerk of ATI until further orders. On 20th Jan., 1982 the Director again issued an order allowing him to draw pay and allowance in the scale of pay of Rs. 425-1050,'- with higher initial starting at Rs. 670.00. This order was to take effect from 30 12. 81. A copy of the said order was sent to the Home (P & AR) Department and also to the Assistant Commissioner of Community Development Department under the caption "absorption of Sri Subhas Chandra Misra under Home (P & AR) Department at ATI, Salt Lake". It was suggested in the said letter for his permanent absorption. The purpose and intent of the letter was to enable the parent Department to fill up that post which was lying vacant on account of release of Sri Misra for the last two years.
(3.)The Home (P & AR) Department in their turn asked the Director ATI for his comments. On 17.2.83 Sri Misra expressed his willingness for his permanent absorption in the borrowing Institute. On 70.8.83 the Home (P.& AR) Department wrote to the Director ATI in response to the latter proposal for Misra's permanent absorption in the post of Accountant stating that this would be considered only after finalisation of the Recruitment Rules of the Employees of ATI. In the meantime, the appellant was confirmed in the permanent post of U. D. Assistant with effect from 2.8.1983. Such as an arrangement continued with Sri Misra being allowed to function as Accountant and officiating Head Clerk and the appellant working as U. D. Assistant till 1985. On 10.5.85 the Deputy Secretary, Community Development Department ; wrote to the then Director, ATI, stating that Sri Misra was taken on : deputation to ATI since 1.7.80 on stipulation that he would be permanently absorbed there. The parent Department however, made persistent : request to the borrowing Institute that since the Administrative Training Centre had expanded considerably which becomes imperative on their part not to keep the post of Cashier-cum-Store Keeper lying vacant for f indefinite period. Therefore, it is necessary either to release Sri Misra . from ATI by 30 6.85 or absorb him permanently in the borrowing Institution. If no intimation would be received from the borrowing Institution it will be deemed that Sri Misra will be absorbed permanently and the parent Department will take steps to fill up the vacancy of Cashier at the O & S Centre, Kalyani. In response to the said letter Home(P&AR) Department wrote to the Director, ATI, stating that the question of permanent absorption of Sri Misra in ATI had to be yet finalised and the draft rules regulating recruitment of the various posts in the ATI had already been sent. The Director, ATI was requested to expedite the matter. The Administrative Officer, ATI had, thus, replied to the CDD stating that the question of absorption of Sri Misra in ATI had been pending for the reason that the relevant recruitment rules was yet to be finalised.
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