S K BHATTACHARYA Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an appeal against the decision of H. L. Anand, J., holding that the petitioner respondents (petitioners in the writ petition) have been duly absorbed in the Post and Telegraph Department and that the Union of India cannot repatriate them to the Central Public Works Department without their consent. The question again, therefore, is whether the petitioner-respondents had the right to the relief so obtained by them. Salmond has defined a right as "an interest recognised and protected by a rule of right". His editor, J. L. Parker, explains what is meant by "A rule of right" as follows :

(2.) The petitioner respondents, that is, officers and subordinate employees belonged to the CPWD which was doing the Civil Engineering work of the P&T Department also. On 4-5-1963 the PAT Department decided to set up a Civil Engineering Wing of itself with the concurrence of the Ministry of Works & Housing. As a necessary consequence, on 28-6-1963 the Government of India, Ministry of Works & Housing, issued a memorandum staling that all the posts and incumbents of those posts in the CPWD doing the Civil Engineering work for the P&T Department "will cease to be borne on the establishment of the CPWD with effect from 1st July, 1963. these posts and units will form part of the P&T Department from that date...... Officers and staff including work chargedstaff belonging to the CPWD cadres...........shall, until further orders, work under the P&T Department after the date of transfer on the same scale of pay and allowance as those applicable to them at present. They will not be entitled to any deputation (duty) allowance". The petitioner-respondents thus stood transferred to the P&T Department, Respondent No. 6, Shri S. R. Bantwal, was recruited to Central Engineering Service (Class 1) through a competitive examination held by the Union Public Service Commission in December, 1956 and thus joined the CPWD in May, 1958. From June, 1961 he was working in the P&T Zone of the CPWD as an Executive Engineer. Among the petitionerrespondents, he is the only person senior to the appellants. Other petitioner-respondents are junior to the appellants and are not rivals to the appellants for promotion.

(3.) Since these posts in the P&T Zone of the CPWD permanently stood transferred to the P&T Department, the respondents who were the incumbents of these posts were no longer needed in the CPWD because there were no posts in the CPWD which could be held by the petitioner-respondents. Either the petitioner-respondents had, therefore, to be absorbed in the P&T Department in the same way as the posts had been permanently transferred or they would simply go out of employment. They did not cease to be in employment because until further orders they were also transferred to the P&T Department along with the posts. They were not given deputation allowance for the simple reason that their return to the CPWD was not contemplated'. They could not have gone back to the CPWD at the only posts which they held had permanently gone to the P&T Department. The only reason why they also along with the posts were not permanently transferred to the P&T Department was that it was that department which had to take the decision to permanently absorb them.