HIGH COURT OF CHATTISGARH AT BILASPUR
WRIT PETITION S No 7394 of 2009
S D Dhruw
...Petitioners
Versus
State of Chhattisgarh & Others
...Respondents
! Shri Rishi Rahul Soni Advocate for the petitioner
^ Shri N N Roy Panel Lawyer for the State
CORAM: Honble Shri Satish K Agnihotri J
Dated: 17/12/2009
: Judgement
ORDER ORAL
Passed on 17th day of December 2009
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
With the consent of learned counsel appearing for
the parties, the matter is heard finally.
1. By this petition, the petitioner seeks a writ in the
nature of certiorari to quash the order dated 02.12.2009
(Annexure P/1) whereby the petitioner, posted on
deputation at Janpad Panchayat, Gariyaband, District
Raipur as Sub Engineer, has been repatriated to his
parent department i.e. Water Resources Department.
2. The indisputable facts, in brief, are that the
petitioner is a Sub Engineer in Water Resources
Department. The petitioner, vide order dated 16.3.2007,
was sent on deputation to the Panchayat and Rural
Development Department and was posted as Sub Engineer at
Project Execution Unit No. 3, Pradhanmantri Gram Sadak
Yojna, Baloda Bazar, Raipur. Thereafter, the petitioner
was posted at Gariyaband vide order dated 13.06.2007
(Annexure P/2). Under the rationalization scheme, the
petitioner was again posted at Lailunga, District Raigarh
vide order dated 01.10.2008 (Annexure P/3).
3. Being aggrieved by the said order, the petitioner
preferred a writ petition before this Court being W.P.(S)
No. 261/2009 wherein by order dated 19.01.2009 (Annexure
P/4), the co-ordinate Bench of this Court stayed the
effect and operation of the order dated 01.10.2008
(Annexure P/3), till the next date of hearing. W.P.(S)
No. 261/2009 was withdrawn by the petitioner on
10.07.2009. Accordingly, the same was dismissed as
withdrawn. Thereafter, vide the impugned order dated
02.12.2009 (Annexure P/1), the petitioner has been
repatriated back to his parent department, which is
contrary to the guidelines issued by the government vide
its circular dated 02.12.1988 (Annexure P/5) as at the
time of passing the impugned order, the consent of both
the departments i.e. parent as well as borrowing
department, has not been obtained.
4. Shri Soni, learned counsel appearing for the
petitioner submits that the impugned order has been
passed only to harass the petitioner and the same has
been passed with mala fide intention under the political
influence. Thus, this petition.
5. I have heard learned counsel appearing for the
parties, perused the pleadings and the documents appended
thereto. Admittedly, in the present case, it is evident
that the petitioner was sent on deputation by order dated
16.03.2007 and by order dated 02.12.2009 (Annexure P/1),
the petitioner was repatriated back to the parent
department after completion of minimum period of two
years.
6. In Mohd. Masood Ahmad v. State of U.P. & Others1,
the Supreme Court observed as under:
“8. Learned counsel for the appellant
submitted that the impugned transfer
order of the appellant from
Muzaffarnagar to Mawana, District
Meerut was made at the instance of an
MLA. On the other hand, it has been
stated in the counter-affidavit filed
on behalf of respondents 1 and 2 that
the appellant has been transferred
due to complaints against him. In
our opinion, even if the allegation
of the appellant is correct that he
was transferred on the recommendation
of an MLA, that by itself would not
vitiate the transfer order. After
all, it is the duty of the
representatives of the people in the
legislature to express the grievances
of the people and if there is any
complaint against an official the
State government is certainly within
its jurisdiction to transfer such an
employee. There can be no hard-and-
fast rule that every transfer at the
instance of an MP or MLA would be
vitiated. It all depends on the
facts and circumstances of an
individual case. In the present case,
we see no infirmity in the impugned
transfer order.”
7. The law on deputation is very clear. The Supreme
Court in State of Punjab and others vs. Inder Singh and
others2 while considering the deputation and repatriation
to the parent cadre/department on expiry of period of
deputation observed as under :-
“18. The concept of “deputation” is
well understood in service law and
has a recognized meaning.
“Deputation” has a different
connotation in service law and the
dictionary meaning of the word
“deputation” is of no help. In simple
words “deputation” means service
outside the cadre or outside the
parent department. Deputation is
deputing or transferring an employee
to a post outside his cadre, that is
to say, to another department on a
temporary basis. After the expiry
period of deputation the employee has
to come back to his parent department
to occupy the same position unless in
the meanwhile he has earned promotion
in his parent department as per the
Recruitment Rules. Whether the
transfer is outside the normal field
of deployment or not is decided by
the authority who controls the
service or post from which the
employee is transferred. There can be
no deputation without the consent of
the person so deputed and he would,
therefore, know his rights and
privileges in the deputation post.
The law on deputation and
repatriation is quite settled as we
have also seen in various judgments
which we have referred to above…..”
8. The Supreme Court in Umapati Choudhary v. State of
Bihar and another3 has defined `deputation’ in the
following terms:-
“Deputation can be aptly described as
an assignment of an employee
(commonly referred to as the
deputationist) of one department or
cadre or even an organization
(commonly referred to as the parent
department or lending authority) to
another department or cadre or
organization (commonly referred to as
the borrowing authority). The
necessity for sending on deputation
arises in public interest to meet the
exigencies of public service. The
concept of deputation is consensual
and involves a voluntary decision of
the employer to lend the services of
his employee and a corresponding
acceptance of such service by the
borrowing employer. It also involves
the consent of the employee to go on
deputation or not.”
9. Further, in Kunal Nanda vs. Union of India and
another4, the Supreme Court observed as under:
“6..The basic principle underlying
deputation itself is that the person
concerned can always and at any time
be repatriated to his parent
department to serve any substantive
position therein at the instance of
either of the departments and there
is no vested right in such a person
to continue for long on deputation or
get absorbed in the department to
which he had gone on deputation..”
10. The Supreme Court in Prasar Bharti & Ors. vs.
Amarjeet Singh & Ors5. observed that;
“13. There exists a distinction
between `transfer’ and `deputation’.
`Deputation’ connotes service outside
the cadre or outside the parent
department in which an employee is
serving. `Transfer’, however, is
limited to equivalent post in the
same cadre and in the same
department. Whereas deputation would
be a temporary phenomenon, transfer
being antithesis must exhibit the
opposite indications.”
11. Applying the well settled principles of law on
deputation to the facts of the case, continuation of the
employees on deputation or repatriation on completion of
deputation period does not depend on their consent. After
completion of minimum period of deputation, the
petitioner/employee may be repatriated back to the parent
department.
12. In view of foregoing and for the reasons mentioned
hereinabove, no interference is warranted with the order
dated 02.12.2009 (Annexure – P/1). Accordingly, the writ
petition is dismissed at the motion stage itself.
J U D G E