The Judgment of the Court was delivered by

Arun Kumar Janah, J.:— In this Rule the petitioners, who are 18 in number, are challenging the order dated December 7, 1974 passed by the Assistant Secretary, Department of Food and Supplies, Govt. of West Bengal. By the said order, a copy of which is annexure ‘D’ to the petition, the services of the petitioners who were working on deputation under the Food Corporation of India (Hereinafter referred to as “FCI”) were withdrawn and were placed at the disposal of the respective Directorates/Offices as indicated in the said order.

2. The case of the petitioners is that they were employees of the State Government in its department of Food and Supplies. After the F.C.I was created under the Food Corporation Act, 1964, an agreement was entered into on the 26th November, 1966 between the State Government and the F.C.I by which it was agreed, inter alia, that the State Government, would entrust the F.C.I with some of its functions and/or work involving reception, payments, purchase, storage, movement, transport, distribution and sale of foodgrains and other food-stuff within the State of West Bengal on behalf of the Government of West Bengal. It was further agreed that the F.C.I with certain exceptions, would take over all the officers and the staff of the State Government who were actually engaged in these functions and absorb such officers and staff who would be taken over by it. Pursuant to the said agreement the petitioners alongwith other staff of the Food Department numbering in all about 5000, were placed at the disposal of the F.C.I by the State Government for their appointment under the F.C.I The petitioners were accordingly appointed in the services in the F.C.I under separate letters of appointment as Assistants in different grades with effect from 12th December, 1966. Since then the petitioners have been working in the F.C.I It is alleged that although there is a provision in the said agreement that those employees of the department of Food and Supplies of the Govt. of West Bengal who were sent on deputation to the F.C.I would be absorbed in the services of the F.C.I, no steps were taken by the F.C.I as contemplated under the said agreement and the F.C.I was following various discriminatory treatment between the staff directly recruited by the F.C.I and the staff who were on deputation, like the petitioners, in the matter of promotion, appointment, seniority etc. It is alleged that as a result of this discriminatory treatment there was great resentment and discontentment amongst the staff who were working on deputation and various representations were made and agitations were started by the Union or Association of the Deputationist staff of the F.C.I, which is known as “Food Corporation of India Deputationists' Association, West Bengal.” It is alleged that the petitions are all active members of the said Union or Association and 13 of them are officebearers of the said Union or Association. It is further alleged that the petitioners as members of the said Union or Association and 13 of them as office bearers of the said Union or Association had occasion to protest against, and they challenged in lawful ways, the discriminatory and arbitrary orders passed from time to time by the F.C.I against the deputationist staff. One of such steps taken by the Deputationists' Association is that it caused a suit, namely, Title Suit No. 1616 of 1974, to be filled in the City Civil Court, Calcutta by the employees affected by an arbitrary and illegal order of promotion. In the said suit an order of injunction was obtained on the 6th December, 1974, restraining the F.C.I from giving effect to the said order of promotion. It is alleged that the said order of injunction was duly communicated to the management of the F.C.I on the same day in the evening, and immediately thereafter on the very next day, that is, on the 7th December, 1974 the impugned order was passed by the Assistant Secretary, Department of Food and Supplies, Govt. of West Bengal, withdrawing the services of the 18 petitioners out of 5000 employees sent on deputation. The petitioners have challenged the said order as mala fide as it has been passed on extraneous considerations and for oblique purpose.

3. The rule is contested on behalf of the Food Corporation of India, the respondent No. 2, and also the State of West Bengal and the Assistant Secretary, Department of Food and Supplies, Govt. of West Bengal, the respondent Nos. 1 and 3 respectively. The case of the respondents is that the petitioners were and are government servants and they have lien on their respective civil post under the Govt. of W.B and as such the petitioners are liable to be recalled by the State of West Bengal. The Stand taken by the F.C.I is that the petitioners being on deputation the F.C.I has no other alternative but to release the petitioners as soon as they are recalled by the Govt. of West Bengal. The contention on behalf of the State of West Bengal is that, as the petitioners were sent on deputation they continue to be employees of the State Government, and under the West Bengal Service Rules and the employee on deputation can be brought back to his parent department at any time during his deputation. In the affidavit-in-opposition filed on behalf of the respondent Nos. 1 and 3 it is stated that on administrative ground it was considered necessary to withdraw the services of the petitioners from the Food Corporation of India, and therefore, the order dated 7th December, 1974 was issued for the repatriation of the petitioners. Mr. Kashi Kanta Maitra, learned Advocate appearing on behalf of the petitioners, contended that the State Govt. had no power to recall the petitioners and even if the State Govt. had such power the exercise of the power was dependent on the fulfilment of certain conditions laid down in clause 9(a), (b) and (c) of the agreement dated 26th November, 1966 between the Govt. of West Bengal and the F.C.I, a copy of which is annexure ‘A’ to the petition. It was contended that even if the State Govt. had the power to recall the petitioners it was not open to the F.C.I to release the petitioners automatically inasmuch as the petitioners were treated as employees of the F.C.I and that such release of the petitioners amounted to termination of their services. It was further contended that even if the Govt. had the poser to recall the petitioners and repatriate them to their respective departments, such a power has been exercised malafide and for a collateral purpose. In order to appreciate the contentions raised by Mr. Maitra it would be necessary to refer to some of the terms of the agreement mentioned above. The aforesaid agreement recites that the F.C.I will take over the undertaking involving reception, payment, purchase, storage, movement, transport, distribution and sale of foodgrains and other food staff within the State of West Bengal on behalf of the Govt. on certain terms and conditions. Clause 9 of the agreement provides as follows:

“9. (a) To facilitate smooth transfer of function under this arrangement by the State Govt. to the Corporation, the latter shall take over of the officers and the staff of the State Govt. actually engaged on these functions at present under the State Govt., unless for special reason any of such officers and staff are not made available by the Govt. for being so taken, the Corporation shall have the right to review its staffing pattern in the light of experience and observe such of the officers and staff as were taken over by it initially and as may be found suitable for such absorption by a committee consisting of officers of the Corporation and the State Govt.

(b) Till such time as the employees of the State Govt. taken over by the Corporation are absorbed by the Corporation they will be on deputation. Such officers and staff on deputation shall continue to be governed by the same pay and scale of pay as under the State Govt. The other terms and conditions of their deputation will be settled by mutual consultation between the Corporation and the State Govt. which in any case shall not be less favourable than what is admissible under the West Bengal Govt. Rules. The Corporation shall bear leave, salary and pension contribution for the staff that would be on deputation to it.

(c) In respect of officers and staff that will be eventually absorbed by the Corporation in its service the Corporation shall make the regulation under the Food Corporation Act and in such manner as to confirm to as far as possible to the conditions of service that governed such officers and staff at present under the Govt. The Corporation shall also relax if necessary its rules of recruitment in order to enable it to absorb the officers and staff that will be eventually absorbed in its service.

(d) The Corporation will, however, bring such personnel as may be necessary from outside for imparting necessary training to its staff in order to enable it to introduce its system and procedure of work.

(e) The Corporation shall also obtain, as far as possible, replacement of officers and staff from the Govt. for work under the Corporation if and when found necessary”.

4. Strong reliance was placed on behalf of the petitioners on the aforesaid terms and conditions contained in clause 9 of the agreement. It was contended that the present case is not one of simple deputation of certain functionaries but it is a case of taking over of the entire undertaking. In other words, not only the functionaries have been lent to the F.C.I but the functions have also been entrusted to the F.C.I It was contended that the petitioners cannot be called back unless the conditions of clause 9 of the aforesaid agreement have been fulfilled. It is stated that no committee consisting of officers of the Corporation and the State Govt. was formed to ascertain which of the officers and staff sent on deputation to the F.C.I will be absorbed by it. It was argued that unless this is done the State Govt. has no right to recall the petitioners. It will however be seen from the copies of the correspondence which are annexure ‘C’ to the petition at page 26, annexure ‘E’ to the affidavit-in-opposition of the F.C.I at page 42 that the State Govt. made it quite clear that when any of the officers or staff on deputation to the F.C.I would be called back to the parent department he would revert to the original post in the F.C.I which he was holding at the time when he was sent on deputation. It also appears from the circular dated 23rd May, 1974 issued by the F.C.I which is annexure ‘K’ to the supplementary affidavit filed by the F.C.I at page 7 that in connection with the decision taken by the F.C.I to allow the State Govt. deputationists with effect from 1st September, 1973 the difference in the Dearness Allowance as admissible under the State Govt. on the prerevised pay and the Dearness Allowance as admissible under the F.C.I an undertaking was taken from the deputationists to the effect that when they will be reverted to the parent department they shall be entitled to Dearness Allowance at the rate as is admissible to the State Govt. employees and would not have any claim to the amount that has been made admissible to him under such circular similar undertakings were given by the deputationists as would appear from annexure ‘L’ to the said affidavit at page 12. This position was accepted by the deputationists and it was clearly understood that the officers and staff who were on deputation might be called back to the parent department at the discretion of the Govt. The power to recall is implied in a case of deputation. It was argued on behalf of the petitioners that in the present case the power to recall on the part of the lending authority is restricted by clause 9 of the aforesaid agreement between the State Govt. and F.C.I It was contended that unless the terms and conditions contained in clause 9 of the said agreement were complied with the State Govt. had no power to recall any of the deputationists. It is to be noticed however that the petitioners are not parties to the agreement and therefore they can have no right under the agreement or the arrangement between the Govt. and F.C.I The petitioners are governed by the West Bengal Service Rules and if the said rules empower the Govt. to recall the petitioners from their deputation the petitioners cannot say that the Govt. had no right to call them back. Moreover, the agreement does not contain any absolute right to be absorbed in the F.C.I On the other hand, clause 9(e) of the agreement which authorises thef FCI to obtain as far as possible replacement of officers and staff from the Govt. for work under the FCI if and when found necessary, clearly contemplates that the Govt. have a right to recall some of the officers and staff who were sent on deputation, the use of the expression ‘replacement of officers and staff from the Govt., necessarily implies that some of the officers and staff may at the discretion of the Govt. be called back from the deputation and replaced by some other employees of the Govt.

5. The next ground of attack against the impugned order is that the petitioners were all temporary or extra temporary employees under the Govt. it is contended that the petitioners, therefore, had no lien to the posts which they had been holding at the time when they were sent on deputation. Referring to paragraph 8 of the affidavit-in-opposition of the FCI it was argued that the petitioners could not have been on lien deputation. Reference was made to the note under clause (a) of Rule 11 of the West Bengal Service Rules (hereinafter referred to as “Service Rules”) and it was contended that as the petitioners were not confirmed in their services they could not have any lien to their respective posts. Reference was also made to Rule 20 of the Service Rules in support of this proposition. It is true that at the time when the petitioners were sent on deputation they had no lien to the respective posts which they were holding but nevertheless the petitioners were sent on deputation and at the time when they were sent on deputation it was decided that the posts which were left vacant on account of the deputation shall remain unfilled, as would appear from annexure ‘B’ to the petition. The other ground on which the power of the Govt. to recall the petitioners has been challenged is that the taking over of the procurement and distribution system of food-stuff together with the Govt. employees connected therewith by the FCI from the State Govt. was in the Mature of a transfer of undertaking and it was not a case of deputation simplicitor. Mr. Maitra has argued that unless the petitioners were holding either a permanent or a temporary post under the Govt. and were also holding alien on a permanent post they could not have been sent on deputation. The interpretation sought to be put by Mr. Maitra is plainly against the language used in Rule 93. Rule 98(b) is as follows:

“98. A transfer to foreign service is not permissible unless

(a) ………

(b) The government servant transferred holds at the time of tranfer; a post either permanent or temporary, paid from general revenue, or holds a lien on a permanent post or, would hold a lien on such a post had his lien not been suspended.”

6. The different conditions mentioned the clause (b) are disjunctive and they are not conjunctive. Therefore it was open to the Govt. to transfer any of its employees to foreign service if he fulfilled any of the conditions mentioned in clause (b). In the present case the petitioners were temporary employees and they were paid from general revenues. Therefore, they were liable to be transferred to foreign service.

7. The other branch of Mr. Maitra's arguments on this point has been that Rule 97 of the Service Rules did not authorize the Govt. to transfer a government servant to foreign service against his will. He contended that the transfer of the petitioners to work under the FCI must, therefore, have been with the consent of the petitioners. It was accordingly argued that since the transfer was with the consent of the petitioners the Govt. had no right to recall the petitioners unless the petitioners consented to such an order. The order sending the petitioners on deputation is dated December 3, 1966. The petitioners were released on December 11, 1966. By notification, No. 5027-F/F-2M-297/66 dated November 19, 1966, a proviso was added to Rule 97. The said proviso reads as follows:

“Provided that the consent of a government servant shall not be necessary to his transfer to the service of a body-corporate or not, which is wholly or substantially owned or controlled by any State Govt. or Govt. of India.

8. The said notification was published in the official Gazette on the 8th December, 1966. It was contended on behalf of the petitioners that the Rules become effective from the date of publication. In the present case the date of publication of the aforesaid notification being subsequent to the release of the petitioners the consent of the petitioners was necessary and the petitioners could not have been transferred to foreign service without their consent, inasmuch as, the amended rule 97 became effective only after its publication. In support of this proposition reliance was placed on the following decisions on behalf of the petitioners: (1) Harla v. State of Rajasthan, AIR 1951 SC 467; (2) State of Bihar v. Abdul Majid, AIR 1954 SC 245; (3) P. Radhakrisna v. State of Andhra Pradesh, AIR 1968 AP 350; (4) I.N Saksena v. State of Madhya Pradesh, AIR 1964 MP 248. It will be noticed that the first of these decisions, reported in AIR 1951 SC, relates to a criminal case. There a resolution was passed by a Council of Ministers purporting to enact the Jaipur Opium Act of 1924 without promulgation or publication in the Gazette or by any other means to be known to the public. After a period of 14 years a clause was added stating that it shall come into force at a date 14 years earlier. On these facts, there was a criminal case and the appellant was convicted under the Jaipur Opium Act. It was in this background that their Lordships held that there must be promulgation and publication of the Act, and though the mode of publication may vary there must be some sort of reasonable publication to make the Act known to the public so that it may be treated as a law in force. The decision in the case of (2) Abdul Majid relates to the question whether the doctrine of English law that a Civil Servant holds office at the pleasure of the Crown is applicable in India or not: There is nothing in that case which can be said to be an authority for the proposition put forward in the present case on behalf of the petitioners. The observations of the Andhra Pradesh High Court in (3) the case of P. Radhakrishna were made in a case in which the facts were completely different. In that case some government employees were promoted on the basis of a Government order changing the ratio of promotion between different classes of employees. The decision taken in the said Government order was subsequently revised by the Government by another Government order which was not published, and the petitioners in that case were reverted on the strength of the subsequent Government order. That Government order was challenged on certain grounds one of which was that there was no publication. The petitioners' rights in that case were being affected, but in the present case the petitioners' rights were not been affected in any way by the amended Rule 97 of the Service Rules. The decision of the Madhya Pradesh High Court cited on behalf of the petitioners does not also support the petitioners, inasmuch as, although there is an observation that it is highly desirable that rules made under delegated legislative powers should be published for the general public, it has also been observed that a rule, if not published, cannot be struck down as invalid if there is no general statutory requirement of publicity in a particular manner. Moreover, even assuming that consent of the petitioners was necessary before they could be transferred to foreign service such consent was for the purpose of transfer to foreign service oo deputation. But there is no provision either in the Service Rules or under any other statutes or rules that consent of the petitioners will have to be taken for the purpose of bringing them back to their parent departments. The agreement between the State Government and the FCI on which reliance was placed on behalf of the petitioners does not confer any right on the government servants who were sent on deputation. The petitioners, therefore, cannot claim any right under the agreement or flowing therefrom.

9. The next point canvassed on behalf of the petitioners is that the State Government having agreed with the FCI to allow the FCI to absorb the deputationists it is estopped from bringing back the deputationists to their respective parent departments under the Government. It was contended that because of better future prospect and in view of agreement between the State Government and FCI the petitioners opted to go on deputation, and therefore, the Government, cannot now recall the petitioners. This argument was advanced on the strength of certain observations of the Supreme Court in the case of (5) Union of India v. Anglo Afghan Agency, AIR 1968 SC 718 and (6) Century Spinning and Manufacturing Co. v. Ulhasnogar Municipal Council, (1970) 1 SCC 582 : AIR 1971 SC 1021. I have already held that consent of the petitioners for their deputation to FCI was not necessary and I have further held that the petitioners cannot claim any right under the agreement which was between the State Government and the FCI and the petitioners were not parties thereto. The observations in the aforesaid two cases relied on by the petitioners will not apply to the case of a government servant in connection with his service. In the case of (5) Anglo Afghan Agency some assurances were given on behalf of the Government in connection with certain conditions relating to export and import of goods. The rerpondents in that case acted on the basis of such assurance. On those facts it was held that it was not permissible for the Government to go back upon the assurance given. Similarly, in the case of (6) Century Spinning and Manufacturing Co. the company made some expansion of its factory on the basis of an assurance that some concessions would be made to it in respect of levy of Octroi Duty on certain conditions. It was held that the respondents, on the facts of that case, were not entitled to act contrary to such assurance. In the present case there was no such assurance given to the petitioners or to any of the deputationists. The petitioners have not also acted to their detriment on the basis of any alleged assurance being given to them. The were perfectly aware that they were being sent on deputation and that naturally they could be called back from deputation at any time at the discretion of the Govt. On these facts, therefore, the observations of the Supreme Court relied on by the petitioners in the aforesaid two cases can hardly have any; application. Reliance was also placed on certain other decisions but it is not necessary to refer to those because those decisions will have no application in the present case for the reasons already mentioned. Mr. Maitra also relied upon the decision in (7) Srikishan v. State of Rajasthan, 1969 Lab. IC 513 in support of his contention that the petitioners who had become employees of the FCI could not be called back by the State Government. The petitioner in that case was an employee of the Government of Rajasthan and after the constitution of the Rajasthan State Electricity Board under the relevant provisions of the Electricity (Supply) Act, 1948 the State Government had issued statutory direction u/s. 78A of the Act in accordance with which he eventually became an employee of the Board. The petitioner challenged an order retiring him from service at the age of 55 years in accordance with the Rajasthan Services (Amendment) Rules, 1967 on the ground that since he was an employee of the Board the Rajasthan Services (Amendment) Rules, 1967 were not applicable to him. The Rajasthan High Court, after a consideration of the relevant Service Rules as well as the effect of the statutory direction u/s. 78A of the Electricity (Supply) Act, 1948 held that the petitioner was an employee of the Board and accordingly quashed the impugned order. It is to be noticed that the decision in that case primarily turned on the interpretation of the direction given under Section 78A of the Electricity (Supply) Act, 1948. The direction of the Government as contained in its order was a statutory direction and it required the Board to offer certain options to the employees who were transferred to the Board. Those options indicated that the employees who were transferred to the Board were not entitled to go back to their respective services under the Government as in the case of deputation but the only relief which they could claim, if they were not willing to serve under the Board, was to claim pension and gratuity as might be admissible on abolition of the posts. In our case the department to which the petitioners belonged has not been abolished and the Government is in a position to take back all the employees. Some of the employee; have in tact been taken back from time to time. These posts are still there and have remained unfilled. The agreement or the arrangement between the State Government and the FCI is not statutory and it does not confer any right upon the petitioners which can be enforced in a writ application. The decisions of the Rajasthan High Court, therefore, is quite distinguishable, and it doss not help the petitioners in the present case.

10. In the next place Mr. Maitra referred to certain rule and regulations of the F.C.I in support his clients' case that the petitioners had become employees under the FCI and therefore, the FCI had no right to release the petitioner even if the Government had passed an order calling them back to there parent departments. He has relied on Rule 10(3) of the food Corporation Rules, 1965 (hereinafter referred to as “Rules”). Rule 10 provides for appointment of officers and other employees under the FCI. Sub-rule (1) of the said Rule enables the Corporation to create such pasts as it considers necessary for the efficient performance of its functions and appoint such officers and other employees as it deems fit. Sub-rule (3) provides that without prejudice to the provisions of sub-rule (1) the Corporation may appoint officers and other employees on deputation from Government or from any public sector or private sector under-taking. Mr. Maitra put a great deal or emphasis on the word ‘appoint’ in Sub-rule (3) and contended that since the appointment was by the FCI the petitioners had become employees under the FCI because their appointments were under the terms and conditions specified by the FCI. Mr. Maitra relied on annexure B(1) at pages 22 and 23 of the affidavit-in-reply in support of his contention. Although the froforma of the appointment letter at page 22 acid the term; and conditions set out at page 23 of the affidavit-in-reply speaks of employment under the FCI it is clearly stated therein that the person who is being employed is on deputation. By such employment by the FCI it cannot, therefore, be said that the petitioners have ceased to be on deputation. In support of this contention Mr. Maitra further relied on regulation 412 of the regulations of the FCI. The said regulation speaks of mode of appointment of its staff by the FCI. Clause (4) of the said regulation provides as follows:

“Notwithstanding anything contained in this regulation, appointment may be made to any post in the Corporation on an ad hoc basis.

(a) by deputation of officers from Central or from any State Govt. or from any public sector undertaking or with the prior approval of the Managing Director from any private sector undertaking for a period exceeding 3 years;

(b) ………

(c) ………

11. On the basis of this regulation it was contended that the petitioners ware regular employees of the FCI and they could not be on deputation because they were in service under the FCI for more than three years. But clause (4) of the aforesaid regulation speaks of appointment of officers. The petitioners are not officers in the FCI. The aforesaid regulation, therefore, does not apply to the petitioners. Even assuming that the said regulation did apply in the case of the petitioners I am inclined to think that the period of 3 years mentioned therein is directory and not mandatory. There is nothing in the rules or regulations that the employees on deputation cannot be retained beyond 3 years. On behalf of the petitioners it was further contended that in view of regulation 7 of the Food Corporation of India (Staff) Regulations, 1971, the petitioners must be taken to be permanent employees of the Food Corporation. Regulation 7 prescribes the mode of appointment. One of the modes of appointment among others is that the Food Corporation may make ad hoc appointment by deputation of suitable officers from the Central or from any State Govt. for a period not exceeding 3 years. The first proviso to regulation 7(3) empowers the authority immediately higher than the appointing authority to extend the period of deputation of employee belonging 10 categories 1, 2, and 3 beyond 3 years but not execeeding 5 years. The second proviso to the said regulation further enables the Board of the Executive Committee to extend the period beyond 5 years in exceptional cases of merit if it is considered necessary in the interest of the Corporation. It was argued on the basis of regulation 7 that the petitioners having been in service under the FCI for more than 5 years and there being nothing to show that they were considered to be exceptionally meritorious they must be taken to permanent employees of the Food Corporation. It must be remembered, however that these regulations came into force in April, 1971. Prior to that date the regulations framed by the FCI did not contain any such provision. The aforesaid provisions of reguiation 7 must be read with the provisions contained in regulation 12 of the aforesaid regulation. Regulation 12 relates for treatment of appointment made prior to coming into force of the said regulations. It provides that appointment made prior to coming into force of the said regulations shall be treated in the following manner, namely.

(a) where the appointment has been made on the basis of a competitive selection of candidate applying against an advertisement issued or against requisition sent to Employment Exchange the appointment shall be deemed to have been regularly made to the service of the Corporation by direct recruitment in the corresponding post in the table set out in Appendix I.

(b) In every other case the appointment shall be deemed to have been made on ad hoc basis in accordance with sub-clauses (a), (b) and (c) of clause (3) of regulation 7 as may be appropriate in the circumstances of each case.”

12. Therefore, after the aforesaid regulations came into force the petitioners had been in service under the FCI for a period of more than 3 years but not exceeding 5 years, and accordingly there could not be any question for consideration of exceptional cases of merit. The argument advanced on behalf of the petitioners on the basis of regulation 7(3)(a) cannot, therefore, be accepted in view of the provisions of regulation 12 of the aforesaid regulations. Mr. Maitra referred to Annexures X-series to the affidavi-in-reply which show that orders relating to granting of leave preparatory to retirement to some of the deputationisrs as well as disciplinary action against some of the deputationisrs were passed by the officers of the FCI and on the basis of these orders Mr. Maitra cotended that his clients must be deemed to be permanent employees under the FCI. I am unable to accept this argument advanced on behalf of the petitioners because the rule 12 of the West Bengal Service (Classification, Control and Appeal) Rules, 1971, specifically provides that the borrowing authority shall have the power of appointing authority for the purpose of placing a government servant under suspension and of the disciplinary authority for purpose of taking disciplinary proceedings against a government servant whose service has been lent to the Government of India or any other State Govt. or to any other authority, and also because of the Govt. Order dated 26-3-67 contained in Annexure ‘M’ to the supplementary affidavit dated 27-6-1975 filed on behalf of the respondent No. 2 The said order, inter alia provides that the leave of the government servants sent to the FCI on deputation will be sanctioned by the FCI and that during the period of their deputation the government servants will be governed by the West Bengal Services Rules so far as earning and accummulation of leave amount or leave salary are concerned and that the rules of the FCI in such matter will not be applicable to them.

13. The next point urged on behalf of the petitioners is that the Impugned order dated December 7, 1974 (Annexure ‘D’ to the petition) has been passed by the Assistant Secretary to the Government of West Bengal in the Department of Food and Supplies and not by the Governor as required undsr Article 166(1) of the Constitution. It was contended that the approval by the Minister in-charge of the Department of Food and Supplies and also by the Chief Minister of the Government of West Bengal will not Bill's the said order an order of the Governor. It was thus contended that the said order was a nullity and the respondents were not entitled to take any action on the basis of the said order. On behalf of the respondents it was contended that the officer who passed the order did in fact, have the authority to make the order under the Rules of Business. Rules of Business of the Government of West Bengal framed under Article 166(3) of the Constitution were placed before the Court and a reference was made to rules 2(c), 6, 9, and 19. These rules together with order No. 19792(50)/FS dated 7-9-74 passed by the Commissioner of Food and Ex-Officio Secretary, Department of Food and Supplies, which was also placed before, the Court, show that the officer who passed the order did really have the authority to make the order. Clause 3(iii) of the aforesaid order states that all matters relating to the deputation of the Gazetted Offiers and non gazetted staff to the Food Corporation of India are to be looked after by the Assistant Secretary, Establishment. Shri A. Majumdar, the Officer who passed the impugned order was the Assistant Secretary, Establishment, at the relevant time. If an order is expressed to have been made in the name of the Governor under Article 166(2) then it cannot be called in question on the ground that it is not an order made by the Governor. But omission to do so will not render an order invalid, and it is open to the Government to establish by evidence that the order was made by the Governor. On behalf the petitioners reference was made to the case of (8) Sangram Singh Jaiswal v. State of Bihar, AIR 1975 Pat. 199. In that case the question arose as to whether the exercise of power to confer exclusive privilege of selling liquor, wholesale or retail, which was delegated by the State Government to the Board of Revenue could be said have been properly exercised by the State Government if such power was purported to have been exercised by recording of minutes by the Excise Minister before forwarding the file to the Chief Minister. It was held that an order made on the basis of such minute did not amount to an order of the State Government. In (9) Dattatrya Moreswar v. State of Bombay, AIR 1952 SC 181, the Supreme Court held that the provision of Article 166 is directive and not imperative in character. The Supreme Court further held that non-compliance with provision either of clause (1) or of clause (2) of Article 166 would lead to the result that the order in question would lose the protection which it would otherwise enjoy had the proper mode for expression and authentic cation been adopted. It could be challenged in any Court of law even on the ground that it was not made by the Governor of the State and in case of such challenge the onus would be upon the State or the authorities to show affirmatively that the order was in fact, made by the Governor in accordance with the rules framed under Article 166 of the Constitution. In view of this interpretation of Article 166 of the Constitution by the Supreme Court and in view of the materials placed before this Court as mentioned above it must be held that the order in question was in fact made by the Governor. The petitioners' challenge to the impugned order on this ground is accordingly overruled.

14. The last ground urged in support of the rule on behalf of the petitioners is that the impugned order is malafide. It is stated that the petitioners who had become permanent employees under the FCI were sought to be victimised because of their trade union activities. It is said that out of 18 petitioners 13 are office-bearers of the Food Corporation of India Deputationists' Association, West Bengal and all the 18 petitioners are active members of the said Association. It is alleged that on account of various wrongful acts and discreminary treatment towards the deputationists by the authorities of the FCI the aforesaid deputationists Association had taken up the cause of the deputationists, and the petitioners had occasion to protest against such wrongful acts and discreminatory treatment, as a results of which they incurred displeasure of the higher authorities. It is further alleged that the impugned order has been passed on extraneous considerations and by way of punishment, and not on the ground of exigency of public administration. In support of their case that the impugned order has been passed malafide the petitioners have stated in paragraph 15 of the petition that the aforesaid deputationists' association caused an affected employee who was also a deputationist to file Title Suit No. 1616 of 1974 in the City Civil Court, Calcutta, in which an order of adinterim injunction was passed restraining the respondent no. 2 from giving effect to the order impugned in that suit. The said interim injunction was passed on December 6, 1974 and immediately thereafter the impugned order was passed on December 7, 1974 and the respondent No. 2 passed the release order against the petitioners on December 10, 11 and 12, 1974. From these facts it was argued by the learned Advocate for the petitioners that impugned order was passed with a view to prevent the petitioners from carrying on their trade union acitivities. These allegations have been denied on behalf of the respondents. It was stated that the plaintiff in the aforesaid suit filed in the City Civil Court is not one of the petitioners. It was pointed out on behalf of the respondents that no particulars about malafides have been pleaded in the petition. It was argued on behalf of the respondents that the Court's decision cannot be based of assumptions which was required to be made in the present case in order to uphold the charge of malafides. Another ground taken by the petitioners in support of the charge of malafides is that by the order of recall each of the petitioners would suffer a financial loss of nearly Rs. 200/- per month. This statement is contained in paragraph 21 of the affidavit-in-opposition to the application for vacating the interim injunction filed by the respondent No. 2 but no such statement is there in the writ petition. This statement has been denied by the affidavit-in-reply filed on behalf of the respondent No. 2. Even if the petitioners suffer some financial loss consequent upon their being called back to their parent department under the Government, that fact itself cannot lead one to the conclusion that the impugned order has been passed malafide. In (10) P.C Wadhwa v. Union of India, AIR 1964 SC 423, the Supreme Court has pointed out that when a person reverted to his substantive rank the question of penal consequences in the matter of forfeiture of pay or loss of seniority must be considered in the context of his substantive rank and not to his officiating rank from which he is reverted, for every reversion must necessarily mean that the pay will be reduced to the pay of the substantive rank. In such a case what is to be considered is the effect of a the relevant factors present in the case. A similar view has also been expressed in the (11) State of U.P v. Shyamlal Sharma, (1971) 2 SCC 514 : AIR 1971 SC 2151. In the present case the petitioners were sent on deputation. They were perfectly aware that they were liable to be called back to their parent department under the Government. The result of the petitioners being called back to their parent department might result in some pecuniary loss. For that reason alone it cannot be said that the order recalling the petitioner to their parent department is malafide, particularly when the petitioners had no right to remain on deputation for any specific period of time. In so far as the grlivance of the petitioners that they will not be able to carry on their trade union activities in the FCI is concerned, it has to be remembered that if the order of repatriation is a valid order it is no concern of this Court to go into such a question in deciding the case. In an unreported decision in (12) Matter No. 25 of 1974, Nripendra Chandra Sarkar v. State of West Bangal, A.N Sen, J. has taken a similar view and I respectfully agree with the view of Sen J. Learned Advocate for the petitioners made an attempt to challenge the impugned order on the ground that only 18 of the deputationists out of 5000 have been called back and this fact by itself was suggestive of malafides on the part of the respondents. From the annexures to the affidavits it would appear that from time to time a number of such deputationists had been called back to their parent department. It is therefore, not correct to say that only 18 persons have been picked and chosen with some, ulterior motive. Mr. Maitra further expressed an apprehension on behalf of his clients, namely, that the present case was really in the nature of the case by the Government and once the petitioners are brought back to their parent departments they would be thrown out of employment because they were all temporary employees. Learned Stating Counsel appearing on behalf of the respondents nos. 1 and 3 gave unequivocal assurance on behalf of his clients that his clients had no intention of doing so and that the petitioners would be suitably posted in different departments under the Government. Considering all aspects of the case and the facts and circumstances as disclosed in the pleadings of the partied it cannot be held that the impugned order has been passed malafide. For the reasons mentioned above, this Rule is discharged but in the circumstances of the case I direct the parties to pay and bear their respective costs.

15. All interim orders are vacated.

16. Rule discharged.