2010 (12) TMI 1082 - HC - VAT and Sales Tax

Whether the P.W.D. is ready and willing to accept the petitioners on the same seniority and status as they originally enjoyed in their parent department? Held that - This Court is of the considered view that the present petition does not warrant any interference by this Court under Article 226 of the Constitution of India. Appeal dismissed.

Summary

Issues Involved:
1. Legality of the repatriation order dated 27.06.2008.
2. Jurisdiction of the Commissioner, Commercial Tax to issue the repatriation order.
3. Petitioners' claim for absorption in the Commercial Tax Department.
4. Validity of service conditions and transfer terms.
5. Legitimate expectation and promissory estoppel claims by the petitioners.
6. Possibility of amending Service Rules, 1983 to accommodate the petitioners.

Detailed Analysis:

1. Legality of the Repatriation Order Dated 27.06.2008:
The petitioners challenged the repatriation order on the grounds of illegality, arbitrariness, and malafide intent, arguing that it was issued to prevent their merger into the Trade Tax Department. The court noted that the Commissioner, Commercial Tax, issued the order based on the State Government's authorization dated 27.08.2007. The court found that the repatriation was justified as the petitioners were initially transferred on a temporary basis with specific conditions, including the possibility of being sent back to their parent department.

2. Jurisdiction of the Commissioner, Commercial Tax to Issue the Repatriation Order:
The petitioners contended that the Commissioner lacked jurisdiction as the State Government was the appointing authority. The court, however, observed that the Commissioner acted under the State Government's directive, making the order within jurisdiction. The court emphasized that the decision to transfer services back to the parent department was within the administrative purview of the State Government.

3. Petitioners' Claim for Absorption in the Commercial Tax Department:
The petitioners argued for their absorption based on their long tenure and the existence of vacant posts. The court noted that the Service Rules, 1983, did not provide for the absorption of Assistant Engineers from other departments as Assistant Commissioners in the Commercial Tax Department. The court reiterated that the petitioners' transfer was temporary, and their absorption without following the statutory recruitment process was not permissible.

4. Validity of Service Conditions and Transfer Terms:
The court examined the service conditions agreed upon by the petitioners, which included maintaining their lien in the parent department and the possibility of repatriation. The court found that the petitioners were aware of these conditions and had accepted them voluntarily. The court held that the petitioners could not now challenge these terms, having benefited from them for several years.

5. Legitimate Expectation and Promissory Estoppel Claims by the Petitioners:
The petitioners claimed a legitimate expectation for absorption based on earlier proposals and correspondences. The court, however, held that legitimate expectation could not override statutory provisions. The court referred to precedents, including *State of Punjab vs. Bachhitter Singh* and *Sethi Auto Service Station vs. Delhi Development Authority*, to emphasize that government decisions must be formally communicated to be binding. The court concluded that the petitioners had no enforceable right to absorption based on mere proposals.

6. Possibility of Amending Service Rules, 1983 to Accommodate the Petitioners:
The petitioners argued that the State Government could amend the Service Rules to allow their absorption. The court noted that amending rules was a legislative function, and no mandamus could be issued to compel such amendments. The court referred to *M/s Narinder Hemraj vs. Lt. Governor of Union Territory of Himachal Pradesh*, which established that courts could not direct the executive to amend rules.

Conclusion:
The court dismissed the writ petition, holding that the repatriation order was legal and within jurisdiction. The petitioners' claims for absorption were unfounded as they were based on temporary service conditions and not on statutory provisions. The court emphasized that legitimate expectation and promissory estoppel could not override clear statutory rules, and no mandamus could be issued to amend the Service Rules, 1983.