HIGH COURT OF CHATTISGARH AT BILASPUR
Writ Petition No. 2298 of 2006 and Writ Petition No. 2301 of 2006 and Writ Petition No. 2314 of 2006 and Writ Petition No. 2315 of 2006 and Writ Petition No. 2321 of 2006 and Writ Petition No. 2323 of 2006 and Writ Petition No. 2325 of 2006 and Writ Petition No. 5886 of 2005 and Writ Petition No. 2320 of 2006 and Writ Petition No. 2318 of 2006 and Writ Petition No. 2322 of 2006
1. Ajay Sharma
2. S.P. Karosia
3. L.P. Dwivedi
4. Jodh Singh Saggu
5. Anil Sharma
6. T.C. Tatiya
7. Suresh Dhruva
8. Mohd. Farhan Qureshi
9. Bhavesh Sao
10. Munna Khan
11. Sanjay singh
...Petitioners
VERSUS
1. State of Chhattisgarh Through Secretary Home (Police) Department
2. Transport Commissioner Bus Stand
3. Director General of Police
...Respondents
! Shri Rajendra Tiwari with shri Ali Asgar ^ Shri A.S. Kachhwaha
Hon'ble Mr.Satish.k. agnihotri. J
Dated: 04/04/2008
: Jadgment
ORDER
(Passed on 04th day of April, 2008)
1. In this batch of petitions, the common question of law involved is asto whether the petitioners, who were sent on deputation to the Transport department can be repatriated in the parent department i.e. Home (Police) department without consent of both the parties, before expiry of the period of deputation.
2. The petitioners, who are Inspectors, Sub Inspectors and Constable, belong to the Home (Police) department. By orders dated 23.07.2005, 29.04.2004, and 21.04.2005, the petitioners were sent on deputation to the Transport department. The period of deputation was two years. According to the petitioners, the petitioners have been repatriated before expiry of the deputation period without there being any allegation of unsuitability against the petitioners, to the parent department.
3. The petitioners have filed these petitions impugning the orders dated 11.11.2005, 8.2.2006 and 09.03.2006 passed by the Home (Police) department and the order dated 28.04.2006 passed by the Additional Transport Commissioner, i.e. the borrowing department, whereby the petitioners were posted in the Home (Police) department.
4. The contention of Shri Rajendra Tiwari, learned senior counsel appearing for the petitioners is that the petitioners were repatriated before completion of two years of deputation. Secondly, the policy of pick and choose was adopted. Thirdly, the borrowing department i.e. the Transport department has no power to transfer the petitioners and post them in the Police department, without repatriating the petitioners to the Police department. Fourthly, the order of transfer is contrary to the transfer policy.
5. Shri A. S. Kachhwaha, learned Deputy Advocate General for the State/respondents, per contra, submits that it is the privilege of the employer to repatriate back the petitioners, even before completion of the period of deputation. Secondly, the orders dated 11.11.2005, 8.2.2006 and 9.3.2006 were passed by the Home (Police) department, whereas the order dated 28.4.2006 was passed by the Transport department in compliance of the order passed by the Home (Police) department. Thus, it should be deemed to have been consented by the parent department as well as the borrowing department.
6. The question of law, as stated hereinabove, came into consideration in the matter of Radhe Lal Nag v. State Govt. of Chhattisgarh & Others W.P.(S) No. 3997 of 2007, decided on 27.03.2008, wherein this Court, after having examined the circular dated 02.12.1988 dealing with the period of deputation, held as under:
"6. As per the circular dated 2.12.1988 (Annexure P/3) in normal cases the minimum period of deputation is two years, which can be extended for a period of four years. The relevant clause of the circular dated 2.12.1988 (Annexure P/3), reads as under:
"...(2) izfrfu;qfDr dk p;u iSuy ds vk/kkj ij gksus ds mijkUr p;u fd;s x;s O;fDr dks lsok,Wa de ls de nks o"kZ ds fy;s yh tkuh pkfg;s A ;g vof/k nksuks foHkkxksa dh lgefr ls dqy feykdj pkj o"kZ rd c<kbZ tk ldsxh o mls fdlh Hkh gkyr esa izfrfu;qfDr ij pkj o"kZ dh vof/k ds mijkUr cxSj eq[;ea=h th ds] dkfeZd foHkkx ds ekQZr vuqeksnu izkIr fd;s fcuk ugha j[kk tk;s A ,sls leLr izfrfu;qfDr le; c<kus ds izdj.k dh vof/k lekIr gksus ds rhu ekg iwoZ dkfeZd foHkkx dks iz'kkldh; vuqeksnu ds mijkUr lqLi"V la{ksfidk o 'kkldh; lsod dh v|ru xksiuh; oS;fDrd uLrh ds lkFk Hksts tkosa A ...."
It is further held that the deputationist is entitled to remain for a minimum period of two years from the date of his joining in the borrowing department. The services of the deputationist cannot be repatriated before two years without consent.
7. Hon'ble the Supreme Court Court in the matter of State of Punjab and others Vs. Inder Singh and others1 while considering the deputation and repatriation to the parent cadre/department on expiry of period of deputation held 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. Hon'ble the Supreme Court in the case of Umapati Choudhary Vs. State of Bihar and another2 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 the matter of Kunal Nanda v. Union of India and another3, the Supreme Court held 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.." Subsequently, this has been approved by the Supreme Court in the matter of U.P.Gram Panchayat Adhikari Sangh and others v. Daya Ram Saroj and others4.
10. The contention of learned counsel appearing for the petitioners that the borrowing department i.e. the Transport department has no power to transfer the petitioners is without any basis as the order dated 28.4.2006 passed by the Additional Transport Commissioner was passed in compliance of the order dated 9.3.2006, passed by the Home (Police) department.
11. It is well settled principle of law that an employee cannot be sent on deputation without his consent but his repatriation does not depend on his consent after completion of deputation period. However, in the case of an employee if his suitability to the post is under question because of misdemeanor or other conduct, the borrowing department may repatriate the employee to the parent department prematurely or parent department may consider to repatriate the deputationist prematurely.
12. For the reasons mentioned hereinabove, the respondent authorities are directed to apply the question of law as settled to the facts of each case and pass appropriate order as the fact of completion of period of deputation is still disputed. These petitions are allowed to the extent that the petitioners may be permitted to remain on deputation for a period of two years from the date of their joining, and in cases wherein the petitioners have completed two years of deputation period, they may be repatriated back by the respondents without consent of the petitioners.
13. Accordingly, the orders dated 11.11.2005, 09.03.2006 and 28.04.2006, are quashed to the extent indicated above. No order as to costs.
JUDGE