STATE OF M.P. Vs. D.G. SHAHANE

JUDGEMENT

(1.) CALLING in question tenability of an order -dated 29.11.2012, passed by the learned Writ Court in Writ Petition No. 1393/2008, allowing the writ petition filed by respondent No.1 and directing for payment of pension by the State Government, this appeal has been filed under section 2(1) of the M.P. Uchha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005.

(2.) RESPONDENT No.1/employee D.G. Shahane was working in the Department of State Government under the Directorate of Industries, in Sericulture and Kosa Scheme. In the year 1977, the State Government took a decision to transfer the said Scheme to the MP State Textile Corporation. While transferring the employees vide order -dated State of MP and others Vs. D.G. Shahane and others. 18.8.1977, the State Government fixed the terms and conditions of transfer which are reproduced by the learned Single Judge in paragraph 2 of the order. This goes to show that it was a case of transfer on deputation. Respondent No.1/employee was also transferred, he was promoted by the State Textile Corporation and he accepted the promotion. However, in the year 1984, the State Government again took a decision to constitute a Directorate of Silk within the administrative control of Panchayat and Rural Development Department. Consequently, orders were passed on 19.9.1984, shifting the employees, who were originally transferred to the Textile Corporation back to the Department of the Government. However, respondent No.1/petitioner was not included in the said list and continued to work in the Corporation and finally on attaining the age of 58 years, he retired on 28.8.1999. When pension and other benefits as is payable to the employee of the State Government was not paid, the respondent No.1/petitioner employee represented and when nothing was done, he filed the writ petition. The writ petition has been allowed and the learned Single Judge has found that the petitioner/respondent No.1 was sent on transfer based on certain conditions and while treating him to have been absorbed in the services of the Textile Corporation, no option was taken from him. It was also found that his lien in the State Government was not terminated and till his date of retirement, he continued to have his lien in the State Government. Holding that he is shown to have been absorbed in the services of the Textile Corporation without taking his consent, which is not permissible and further finding that the lien of the employee was retained with the State Government, learned writ court has held that the respondent No.1/petitioner employee is entitled to pension and other benefits as is payable to a State Government employee, as his parent department is the State Government and his lien continued with the State Government till his retirement. Challenging this order, the writ appeal has been filed by the State Government.

(3.) REFUTING the aforesaid Shri Ajay Mishra, learned Senior Advocate, argued that there is no question of implied consent in the matter, once respondent No.1/petitioner's lien was maintained in the service of the State Government, even if the concept of implied consent is applied, the same cannot be sustained for the simple reason that the State Government itself never treated respondent No.1/petitioner to have been absorbed in the services of the Corporation and that is why his lien was kept. That apart, learned Senior Advocate invites our attention to a communication and order passed by the State Government vide Annexure P/41 on 7.8.2003, which is available at page 128 of the paper book in the writ petition, and points out that when all these facts were brought to the notice of the State Government, the State Government passed an order and directed for treating the respondent employee to have retired from the services of the State Government on 28.8.1999 and his claim and pensionary benefits be settled. It is stated that once the State Government has passed this order, there is no reason for agitating the matter now by the Department.