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2004 DIGILAW 681 (ALL)

Civil Accounts Association v. Union of India

2004-03-26

ARUN TANDON, B.S.CHAUHAN

body2004
JUDGMENT : ARUN TANDON, J. 1. This bunch of 9 writ petitions has been filed by the recognised Association/Union of Senior Accountants, Accountants, Clerks and Supervisors as well as other employees working in the office of Accountant General (A&E) I and II, Uttar Pradesh, Allahabad, along with individual employees belonging to the said categories of employees working in the said office. 2. All these writ petitions are directed against one common judgment of the Central Administrative Tribunal, Allahabad Bench, Allahabad, dated 2nd January, 2004, passed in the group of Original Applications, being O.A. Nos. 1313 of 2003, 1314 of 2003, 1386 of 2003, 1369 of 2003, 1378 of 2003, 1379 of 2003, 1381 of 2003, 1382 of 2003, 1383 of 2003, 1384 of 2003, 1385 of 2003 and 1386 of 2003. 3. We have heard Sri T.P. Singh, senior advocate, assisted by Sri Vikas Budhwar as well as other Counsels on behalf of the Petitioners, Sri B.N. Singh senior standing Counsel on behalf of Union of India and Sri Amit Sthalekar on behalf of Respondent Nos. 2 to 5. 4. Original applications, referred to above, were filed by the Petitioners feeling aggrieved by the transfers made vide Office Order No. PAG (Audit)-1/Admn./Uttaranchal/171, dated 29.10.2003 and No. DGA/Transfer/232, dated 31.10.2003, whereby certain Senior Accounts Officer, Accounts Officer, Assistant Account Officers, Section Officers, Supervisors, Senior Accountants and Accountants from the office of A.G. (A&E) I and II, Allahabad, were transferred to the office of A.G. (Audit and Accounts) Uttaranchal at Dehradun. 5. The original applications filed by the Petitioners, after exchange of affidavits, were dismissed by the Central Administrative Tribunal, Allahabad Bench, Allahabad, by means of the judgment dated 2nd January, 2003. Hence present writ petition. 6. Material facts for adjudication of controversy at hand are State of Uttaranchal, was created under the U.P. State Reorganisation Act, 2000, passed by the Parliament, whereby certain parts of the State of Uttar Pradesh were carved out for creation of the new State of Uttaranchal. 7. Under Article 151(2) of the Constitution of India, Comptroller and Auditor General of India is required to submit audit report in relation to the accounts of the State to the Governor of the State, who in turn shall lay the same before the Legislature of the State. 8. 7. Under Article 151(2) of the Constitution of India, Comptroller and Auditor General of India is required to submit audit report in relation to the accounts of the State to the Governor of the State, who in turn shall lay the same before the Legislature of the State. 8. Similarly under Sections 10 and 11 of the Comptroller and Auditor General (D.P.C.) Act, 1971, the Comptroller and Auditor General of India is required to compile the accounts of the State and submit report to the Governor. In respect of the State of Uttaranchal also the aforesaid constitutional and statutory obligations are required to be fulfilled by the Comptroller and Auditor General of India. In order to carry out the aforesaid Constitutional and statutory obligation, the office of the Accountant General (Audit and Accounts), Uttaranchal at Dehradun, was established on 9th May, 2002. Since the office of Accountant General (Audit and Accounts), Uttaranchal at Dehradun, was created for the first time in the year, 2002, it was necessary that the newly created office was properly staffed and since it was not possible to make fresh appointments on the various posts in the newly created office, a transfer policy was formulated inter alia providing for transfer for a period of 18 months for the employees working in the office of Accountant General, U.P. at Allahabad. The transfer policy so formulated by the Respondent was given effect to by issuance of the orders of transfer dated 29th October, 2003 and 31st October, 2003. 9. Under the aforesaid orders of transfer, employees working in the office of Accountant General, U.P. at Allahabad, were transferred and posted at Uttaranchal for a period of 18 months. According to Department, audit cycle is a calendar of 12 months and prescription of 18 months takes care of the requirement in connection with the preparation of reports etc. Thus, there was rationality in fixing the period of 18 months for transfer and posting of the employees at Uttaranchal. 10. The aforesaid orders of the transfer were challenged basically on the ground that Petitioner employees aforesaid are not members of any centralized service. Their service conditions are regulated by the Indian Audit and Accounts Department (Senior Account) Recruitment Rules, 1988; Indian Audit and Accounts Department, Audit Officers (Commercial) Recruitment Rules, 1989, the Indian Audit and Accounts Department (Senior Auditor) Recruitment Rules, 1985. Their service conditions are regulated by the Indian Audit and Accounts Department (Senior Account) Recruitment Rules, 1988; Indian Audit and Accounts Department, Audit Officers (Commercial) Recruitment Rules, 1989, the Indian Audit and Accounts Department (Senior Auditor) Recruitment Rules, 1985. The said rules have been framed in exercise of the power under Article 148(5) of the Constitution of India. The said service rules do not provide for any condition of transfer. In the appointment letters issued to Petitioners there was no condition about their being transferred outside State of Uttar Pradesh. Thus, it is submitted that the Petitioners cannot be transferred out side the State of Uttar Pradesh. It is further stated that the office of Accountant General (Audit and Account), Uttaranchal at Dehradun, is neither a branch nor Zonal Office of the Accountant General (A&E) I and II, Uttar Pradesh nor it is a separate Account Office of the State Government of Uttar Pradesh. 11. According to the Petitioners a meeting between the Association and the Administration took place on 19th March, 2002 and in the said meeting, vide item No. 17, it was agreed that only such employees from the Uttar Pradesh would be transferred to the office of Accountant General (Audit and Accounts), Uttaranchal at Dehradun who opt for such transfer. The Petitioners-Association vide their letter dated 8th May, 2002, reiterated their aforesaid stand and insisted that incumbents, who are willing to go on transfer to Uttaranchal alone may be transferred from Uttar Pradesh to Uttaranchal. It is further contended that initially the period for transfer of the employees of the Uttar Pradesh to Uttaranchal was limited to three months only as is clear from the draft policy dated 11th August, 2003, whereby it was proposed that the transfer of the employees of Uttar Pradesh to Uttaranchal shall be on tour basis for the period of three months only. The Respondent, however, revised the aforesaid policy unilaterally and decided to transfer the employees working at Allahabad to Uttaranchal for a period of 18 months at a time as is clear from the circulars letter dated 6th October, 2003. As a consequence of aforesaid transfer policy and circular dated 6th October, 2003, the impugned order of transfers were issued, which according to Petitioners were illegal and unsustainable in the eyes of law. 12. The Counsel appearing for the Respondent Nos. As a consequence of aforesaid transfer policy and circular dated 6th October, 2003, the impugned order of transfers were issued, which according to Petitioners were illegal and unsustainable in the eyes of law. 12. The Counsel appearing for the Respondent Nos. 1 to 4, however, contends that the transfer policy framed by the Respondent envisages transfer for a period of 18 months, which would take care of requirement in connection with the preparation of reports etc. It was imperative for the Respondent to effect transfers of the employees from Allahabad to Uttaranchal so as to properly manage and staff the newly created office of Accountant General (Audit and Accounts) Uttaranchal at Dehradun. It is also stated that the transfer is an exigency of service and the scope of judicial review in transfer cases is very limited and the transfer order cannot be questioned unless it is pleaded that the same is mala fide or is for extraneous considerations or in contravention of statutory rules. 13. Reliance in that regards has been placed on the judgments of the Hon'ble Supreme Court in N.H.P.C. vs. Shri Bhagwan, 2002 (8) SCC 574, State Bank of India vs. Anjan Sanyal and Others, (2001) 5 SCC 508 , Public Services Tribunal Bar Association vs. State of U.P. (2003) 4 SCC 104 , as well as on the judgment in State of Rajasthan vs. Sevanivatra Karmachari Hitkari Sangathan, 1995 (29) ATC 199 (SC) and State of Andhra Pradesh vs. V.C. Subbarayudu and Others, (1998) 2 SCC 516 . 14. The Central Administrative Tribunal, Allahabad Bench, Allahabad, after considering the rival contentions raised on behalf of the parties, as have been noticed hereinabove under the judgment dated 2nd January, 2004, recorded a specific finding that the rules made under Article 148(5) of the Constitution: namely, Indian Audit and Accounts Department, Audit Officers (Commercial) Recruitment Rules, 1989, the Indian Audit and Accounts Department (Senior Auditor) Recruitment Rules, 1985, as well as Indian Audit and Accounts Department (Senior Accountant) Recruitment Rules, 1988, recorded a categorical finding that the rules do not provide for transfer outside the territorial jurisdiction of the Cadre Controlling Authority, be it the Principal Accountant General or the Accountant General. However, the Tribunal has held that the appointment by transfer on deputation with the approval of the Comptroller and Auditor General is permissible in law and for recording such a finding, the Tribunal has held as follows: A perusal of the recruitment rules aforestated would indicate that appointments to the post of Audit Officers (Commercial) as also to the post of Senior Auditor in the Indian Audit and Accounts Department is permissible by promotion, failing which by transfer on deputation. The Indian Audit and Accounts Department, Section Officer (Commercial) Audit Recruitment Rules, 1988, also provide that the recruitment to the post of Section Officer (Commercial) may be made by promotion failing which by transfer on deputation. Position under Indian Audit and Accounts Department (Senior Accountant) Recruitment Rules, 1988, concerning appointment to the post of Senior Accountant and the one under the I.A. and A.D. (Senior Auditor) Recruitment Rules, 1985, are no different. That apart by virtue of the provisions contained in Article 149 of the Constitution, the C and A.G. has the necessary competence and power to issue Departmental Instructions on matters of conditions of service of persons serving in his Department as its Head and such Departmental Instructions have the force of law and hold the field to the extent these are not inconsistent with the statutory rules. However, as held in Accountant General vs. S. Doraiswamy, (1981) 4 SCC 93 , Union of India and Another vs. Amrik Singh and Others, (1994) 1 SCC 269 and Mohan Lal vs. Comptroller 1979 Lab IC 1355, rules made in exercise of power under Article 148(5) will prevail in the event of any conflict with Departmental Instructions. The Cadre of Senior Auditor and feeder cadre of Auditor as well as other cadres we are concerned here with are no doubt "not centralised" for the entire department and the rules with respect to them are applicable to each cadre in the various field offices of the Department but the rules as also the Manual of Standing Orders (Administrative) issued by C and A.G. contain enabling provisions for appointment by transfer on deputation. In this connection it would be worthwhile to quote paragraphs 4.2.1., 4.9.1 and 10.4.1 of the Comptroller and Auditor General's Manual of Standing Orders (Vol.-I) as under: 4.2. Postings and Transfers: 4.2.1. In this connection it would be worthwhile to quote paragraphs 4.2.1., 4.9.1 and 10.4.1 of the Comptroller and Auditor General's Manual of Standing Orders (Vol.-I) as under: 4.2. Postings and Transfers: 4.2.1. Accounts/Audit Officers are liable for service any where in India in any of the offices or posts under the control of the respective Cadre Controlling Authority in whose cadre they are borne. They are also liable, like all other Central Government servants, to be transferred from one office to another subject to the provisions of FR 15.CAG may, if necessary, transfer any officer to any post or office within the I.A. and A.D. Accounts/Audit Officers may also be transferred to any post under the Government or on foreign service to a public sector undertaking/autonomous body/semi Government organisation owned or controlled as may be determined in each case and subject to rules and order issued by Government of India/C.A.G. in this respect from time to time. 4.9. Miscellaneous. 4.9.1. The relevant provisions of postings and transfers, permanent absorption, forwarding of applications, deputation/foreign service mentioned in this Chapter in respect of Accounts/Audit Officers will apply mutatis mutandis to Assistant Accounts/ Audit Officers. 10.4.1. Non-gazetted Government servants can be sent on deputation/foreign service only with the approval of Comptroller and Auditor General of India except in case of deputation to State Government or State or State Government body under the respective State where the Accountant General/Principal Director of Audit can depute such staff borne on the cadre under his control. 10.4.1. Non-gazetted Government servants can be sent on deputation/foreign service only with the approval of Comptroller and Auditor General of India except in case of deputation to State Government or State or State Government body under the respective State where the Accountant General/Principal Director of Audit can depute such staff borne on the cadre under his control. (8) A conspectus of the aforeextracted provisions would indicate that Accounts Officers/Audit Officers, are not only liable for service any where in India in any of the offices or posts under the control of respective Cadre Controlling Authority in whose cadre they are borne but they are also liable to be transferred if necessary, by the C and A.G. "to any post or office within the I.A. and A.D." The applicants here in being borne under the Cadre Controlling Authority of either the Principal Accountant General (Audit)-1 U.P. Allahabad, or the Accountant General (A and E)-I, U.P. Allahabad, are albeit not liable to be transferred by these authorities to the office of A.G. (A & A), Uttaranchal, Dehradun, but C and A.G. being the head of Department has the necessary competence to transfer any officer to any post or office within the I.A. and A.D. The office of A.G. Uttaranchal at Dehradun, being in the Indian Audit and Accounts Department, no exception can be taken to the impugned orders of transfer effected with the approval of the Head quarter, i.e., C and A.G. It may be observed that the Principal Accountant General (Audit)-1 Uttar Pradesh, Allahabad, was initially the Cadre Controlling Authority with respect to the staff in the office of the Accountant General (A and A), Uttaranchal at Dehradun, as well but subsequently by office order no. (Adm.) 15/59 dated 6.8.2002 the office of Principal Accountant General (A and E)-1, U.P. and Uttaranchal came to be redesignated as of Principal Accountant General (A and E)-I, U.P. Allahabad, consequent upon the creation and functioning of the office of Accountant General (A and A) Uttaranchal and Dehradun. The redesignation has in fact been earlier endorsed by the Headquarter's office vide No. 0269-G-1/133-2000-II, dated 22.7.2002, and it became operative with immediate effect as per Appendix 6 to O.A. No. 1313 of 2003. The redesignation has in fact been earlier endorsed by the Headquarter's office vide No. 0269-G-1/133-2000-II, dated 22.7.2002, and it became operative with immediate effect as per Appendix 6 to O.A. No. 1313 of 2003. (9) Transfer of staff from Allahabad/Lucknow on deputation is thus permissible in law and since the applicants have been transferred for limited period of 18 months they may be deemed to have been shifted on deputation irrespective of whether the applicant had opted for the same or not for the exercise of power by the C. and A.G. is not dependent on option. 15. During the pendency of the said original applications, an interim order was granted in favour of the Petitioners as such they continued to work at Allahabad despite the transfer order. 16. These writ petitions come up for consideration before this Court for the first time on 13th January, 2004 and on the said date this Court, having regard to the peculiar facts and circumstances and the public interest involved, passed the following order: Tag and list this petition along with records of Writ Petition Nos. 653 of 2004; 674 of 2004; 664 of 2004 and 741 of 2004. That in pursuance of the directions issued by this Court on 12th January, 2004 the case was taken up today in Chambers at 1.40 p.m. Sri J.P.N. Singh, Senior Deputy Accountant General (Administration), A.G.U.P. Allahabad, along with Sri Sailendra Vikram Singh is present before us. We have heard Sri T.P. Singh, learned senior advocate assisted by Mr. Vikas Budhwar; learned Counsel for the Petitioner and Sri Amit Sthaleker as well as Shri B.N. Singh, for the Respondent. Shri T.P. Singh, learned senior advocate has produced before this Court, the resolution passed by Civil Accounts Association and other Union of employees working in the office of the Accountant General (A and E) I and II, Uttar Pradesh, Allahabad, whereby they have agreed that they are ready to proceed on transfer on tour basis to the State of Uttaranchal provided the maximum period of their stay at Uttaranchal is for a period of six months at the maximum. A copy of the resolution in that regard, in the form or representation, has been produced before us and a copy of the same has also been handed over to Shri Amit Sthaleker appearing for the Respondent who, in turn, assured us that it will be forwarded to the Deputy Comptroller and Auditor General of India, New Delhi. The authority concerned shall take a decision on the said representations of the Union after hearing their representative within one month from today. The representation shall be decided after giving an opportunity of being heard to the representatives of the Union and the order passed, shall be produced before us on the next date fixed. If the members of the Association have not already joined, they are directed to join at the transferred place within 10 days from today and in case, they join within 10 days, the Respondent shall not initiate any disciplinary proceedings against them, for not joining the transferred place within the time stipulated in their transfer orders. Needless to say that Petitioner members shall be entitled for travelling allowance etc. In accordance with Rules and it shall be paid to them by the authorities concerned. List the matter on 16th February, 2004. This order shall cover the cases of those employees who had been transferred whether their petitions are pending before this Court or not. 17. In response to the order of this Court, referred to above, an order has been passed by the Deputy Comptroller and Auditor General on 10th February, 2004, which has been placed before this Court by Sri Amit Sthalekar, Counsel for the Respondent. The order so passed reads as follows: In its order dated 13.1.2004 in Civil Misc. Writ Petition No. 654 of 2004 filed by Civil Accounts Association, Offices of the Accountants General (A and E)-I and II, Uttar Pradesh and others in connection with transfer of staff to the newly created office of the Accountant General, Uttaranchal, Dehradun, the Hon'ble High Court, Allahabad, had directed the Deputy Comptroller and Auditor General of India to take a decision on the resolution/representation dated 12.1.2004 of the Staff Union after hearing their representative within one month from the date of order, i.e. 13.1.2004 and to produce the order so passed before the Hon'ble Court on the next date fixed (16.2.2004). 2. 2. The Staff Associations of both Audit and Accounts employees of Accountants General's offices at Allahabad, in a combined resolution dated 12.1.2004 have made the following demands in connection with transfer of staff to the newly created office of the Accountant General, Uttaranchal, Dehradun: (1) A high power committee comprising of Pr. Accountant General/ Accountant General and representatives of Staff Associations of the Offices of I.A. and A.D. located at Allahabad may be constituted to resolve the issues related to Uttaranchal. (2) Period of transfer to Uttaranchal office may be fixed for 3 to 6 months and during the said period of stay, tour T.A. may be allowed to transferred staff. (3) Consent of staff may be obtained before sending them to Uttaranchal Office. (4) Employees, who have their permanent addresses in Uttaranchal, may be sent first. (5) In the case of working spouse, the consent of wife/husband, who is senior or holding higher post of the two, may be obtained. (6) Women staff may be transferred with their consent. (7) Employees, who are left with two or three years of service, may be transferred with their consent. (8) Physically handicapped employees may not be transferred without their consent. (9) Employees, who are suffering with serious diseases, may not be ever transferred. 3. In compliance to Hon'ble High Court's order dated 13.1.2004, the representatives of staff associations were given an opportunity to be heard by the Dy. Comptroller and Auditor General of India. During the hearing on 4.2.2004 at the Headquarters, the representatives, apart from the demands made in their resolution dated 12.1.2004, requested that: (a) women staff and persons appointed against sports quota may be exempted from the purview of transfer. (b) There should be common transfer policy for transfer of audit and accounts staff, and (c) Determination of staff strength in the reorganised offices should be re-defined. 4. The demands made in the resolution dated 12.1.2004 and the issues raised during personal hearing on 4.2.2004 have been carefully considered keeping in view the administrative expediency to properly run office of the A.G. Uttaranchal in public interest, existing staff position and genuine hardship of women/disabled/ailing/retiring staff as well as the relevant rules/instructions of Government of India. 4. The demands made in the resolution dated 12.1.2004 and the issues raised during personal hearing on 4.2.2004 have been carefully considered keeping in view the administrative expediency to properly run office of the A.G. Uttaranchal in public interest, existing staff position and genuine hardship of women/disabled/ailing/retiring staff as well as the relevant rules/instructions of Government of India. In fact, the existing transfer policy for transfer of non-optee staff has been formulated taking into account all administrative aspect, local situation and the imperative need to properly discharge the constitutional obligations of conducting statutory audit and compilation of State accounts with the existing manpower. The period of transfer has been kept at 18 months because the minimum period required for completion of one cycle of annual audit report and compilation of accounts is 18 months and these work require continuity of staff. Though the transfer policies for audit and accounts staff, which have been approved by the Headquarters on the recommendations of local Accountants General made on the basis of local situations are by and large the same, however, some difference may be there due to difference in staff configuration and the fact that while the audit office is comparatively more officer oriented, the accounts staff comprises more number of Accountants/Clerks. The policy of transfer of 18 months has also been adopted in other newly created States of Chhattisgarh and Jharkhand apart from being followed in North Eastern States. 5. As regards other issues, my observations are as follows, where the demands of staff associations have been accommodated as far as administratively feasible in the large public interest. (a) In the approved transfer policy for audit and accounts staff, physically handicapped employees, those suffering from serious diseases and employees attaining the age of 57 years (i.e., left with three years of service) have already been excluded from the purview of transfer subject to administrative convenience. (b) Unwilling women staff may also be exempted from transfer in the Audit wing subject to equal number of male staff, in addition to the male staff coming under the purview of transfer policy, being transferred to Uttaranchal to make up the deficit of staff required there. (c) In the case of working spouse, the transfer policy already stipulates that in the event of either of the spouse being transferred, the other may either follow him/her or get exempted. (c) In the case of working spouse, the transfer policy already stipulates that in the event of either of the spouse being transferred, the other may either follow him/her or get exempted. (d) Unwilling employees who have been appointed against sport quota may not be transferred subject to administrative convenience and equal number of other staff being transferred to Uttaranchal. (e) In the Government departments, transfer entitlements of staff temporarily transferred to another station are regulated as per existing Government of India's orders. The transfer entitlements of staff transferred to Uttaranchal are also being regulated accordingly. (f) Non-optee employees are being temporarily transferred as per approved policy which also include staff who have their permanent address in Uttaranchal. However, this specific demand would be kept in view while considering permanent separation of cadres in due course. (g) This constitution of a high power committee represented by the Accountants General and Staff Associations for the purpose of resolving the issues related to Uttaranchal is not felt necessary at this stage since the transfer polices in respect of transfer of audit and accounts staff were proposed by the respective Accountants General for Headquarters approval in consultation with local staff associations as far as administratively feasible. (h) The prime necessity at this stage is to make the newly created office of the A.G., Uttaranchal, functional at the earliest in larger public interest with the existing available manpower. Accordingly, persons-in-position have been distributed to U.P. and Uttaranchal in proportion to existing functional requirements in the offices of both the States. Actual rationalisation of staff strength according to current and future volume of work in U.P. and Uttaranchal offices would be taken up once the work stabilizes in these offices after reorganisation of States and permanent separation of cadres is considered thereafter. 18. Thus, the Respondent have tried to justify their policy of transfer for 18 months and the only relaxation shown is in favour of the female employees and the sports persons as well as handicapped category of the employees. The Respondent, by means of the aforesaid order, have only reiterated their earlier stand with regard to the transfer order issued. 19. It has not been disputed before us by the Respondent that the service rules applicable to the Petitioners do not contemplate transfer of employees out side the territorial jurisdiction of Cadre Controlling Authority, i.e., Principal Accountant General or the Accountant General. 20. 19. It has not been disputed before us by the Respondent that the service rules applicable to the Petitioners do not contemplate transfer of employees out side the territorial jurisdiction of Cadre Controlling Authority, i.e., Principal Accountant General or the Accountant General. 20. The only question which remains for the consideration is as to whether in absence of the statutory service conditions providing for transfer, is it permissible under the law that an employee working under one Cadre Controlling Authority can be transferred to the jurisdiction of another Cadre Controlling Authority without his consent. 21. The Tribunal as well as the Respondent have justified the order of transfer of the Petitioners from jurisdiction of one Cadre Controlling Authority to the jurisdiction of another Cadre Controlling Authority on the ground that such transfers are in nature of deputation made with the approval of Comptroller and Auditor General and as such permissible under the law. 22. Broadly stated stand of the Respondent is that the Comptroller and Auditor General by virtue of Article 149 of the Constitution of India has necessary competence and power to issue Departmental Instructions on matters of conditions of service of person serving in his department and such Departmental Instructions have force of law and hold the field to the extent that they are not inconsistent with the rules. Manual of Standing Order (Administrative) issued by the Comptroller and Auditor General contains the provisions for appointment by transfer on deputation and as such it is to be deemed that the Petitioners have been shifted on deputation for a period of 18 months irrespective of the fact as to whether the Petitioners had given their consent for the same or not. 23. The contention raised on behalf of the Respondent appears to be attractive. However, on analysis of the service rules, circular issued and the general principle of law, it would be clear that the stand taken by the Respondent is legally not justifiable. The concept of deputation carries with it the concept of lending and borrowing with the consent of the person, who is to be sent on deputation. However, on analysis of the service rules, circular issued and the general principle of law, it would be clear that the stand taken by the Respondent is legally not justifiable. The concept of deputation carries with it the concept of lending and borrowing with the consent of the person, who is to be sent on deputation. Meaning thereby, there must be a department in which a particular employee is working, the department is willing to lend the service of the employee for another department, the other department is willing to accept the employee so lent for its service and most important the employee has given his consent and is ready and willing to work with the borrower. In absence of any of the aforesaid three conditions, there cannot be any deputation. 24. Reference has been made to the judgment of Hon'ble Supreme Court in Umapati Chaudhary vs. State of Bihar and Another, (1999) 4 SCC 659 . In paragraph 8 of the judgment the Hon'ble Supreme Court has clarified the legal position with regard to deputation and has held as follows: 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 organisation (commonly referred to as the parent department or lending 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 services by the borrowing employer. It also involves the consent of the employees to go on deputation or not. 25. Similarly, reference may also be made to the judgment of the Bombay High Court in Prakash R. Borkar vs. Union of India and Others, 1983 (3) SLR 725, wherein it has been held that transfer on deputation is not permissible without the consent of the employee. 26. Thus, no person contrary to his will can be asked to serve another master. It is not in dispute between the parties that the Cadre Controlling Authority of the office of the Accountant General (A&E) I and II, Uttar Pradesh at Allahabad is different than the Cadre Controlling Authority of the employees working in the office of Accountant General, Uttaranchal. 27. For sending an employee on deputation, his consent is a must. It is not in dispute between the parties that the Cadre Controlling Authority of the office of the Accountant General (A&E) I and II, Uttar Pradesh at Allahabad is different than the Cadre Controlling Authority of the employees working in the office of Accountant General, Uttaranchal. 27. For sending an employee on deputation, his consent is a must. Admittedly, in the facts of the present case, the employees who had approached the Tribunal as well as this Court had not opted for being sent on deputation to Uttaranchal. In absence of their consent to opt for Uttaranchal, it cannot be said that they are being sent on deputation. The impugned order of transfer, as such, cannot be sustained as one being in the nature of deputation. 28. The rules which have been referred to in the judgment of the Tribunal, quoted hereinabove, only provide for transfer from one office or post to another under the control of the same Cadre Controlling Authority in whose cadre they are borne. The Petitioners herein are borne under the Cadre Controlling Authority of either the Principal Accountant General (Audit)-I, U.P. Allahabad, or the Accountant General (A&E)-I, U.P., Allahabad. 29. They are not liable to be transferred by these authorities to the office of Accountant General (Audit and Accounts), Uttaranchal at Dehradun. The power of the Comptroller and Auditor General cannot be extended to confer a power to transfer an employee contrary to the aforesaid service condition to any place within the country. The power upon the Comptroller and Auditor General to Clause 4.2.1 and 10.4.1 cannot be read in a manner to suggest that the Comptroller and Auditor General of India has unlimited power to transfer an employee borne in jurisdiction of one Cadre Controlling Authority to that of another Cadre Controlling Authority. The provisions of the Standing Manual, namely 4.2.1 and 10.4.1 when they contemplate sending of an employee on deputation with the approval of the Comptroller and Auditor General necessarily apply that the consent of the employee who is being sent on deputation has been obtained. The rules cannot be read so as to suggest that an employee can be sent on deputation without his consent to other States. 30. The rules cannot be read so as to suggest that an employee can be sent on deputation without his consent to other States. 30. The finding of the Tribunal, as such, treating the impugned order of transfer to be orders shifting the employees on deputation irrespective of the fact whether the Petitioner-applicants have opted for the same or not, cannot be legally sustained. 31. Moreover, for sending an employee on deputation, he becomes entitled for benefit of deputation allowances etc. Admittedly under the orders impugned no such provision for grant of deputation allowances has been made for sending an employee from Allahabad to Uttaranchal at Dehradun under a different Cadre Controlling Authority. 32. It may also be noted that although the Petitioners are being asked to proceed on transfer by way of deputation but there is absolutely no provision for any deputation allowance being paid to the Petitioner employees. Reference is made to the judgment of Hon'ble Supreme Court in Inder Pal Khanna vs. Accountant General, Haryana and Others, (1984) 1 SLR 491, wherein it has been held that even if there is no provision for payment of deputation allowance, yet if the employee is asked to proceed on deputation he becomes entitled for deputation allowance. The judgment of the Hon'ble Supreme Court, having bearing response of the said controversy, may also be referred to P.C. Wadhwa vs. State of Haryana, AIR 1981 SC 1540 , paragraph 4, wherein it has been held as follows: The mere absence of the provision for payment of deputation allowance cannot be interpreted to mean an absolute bar to the receipt of such deputation allowance. 33. In the facts of the case, we see no reason as to why an employee working at Allahabad on being sent to Uttaranchal by way of deputation, can be denied deputation allowance. 34. In the circumstances stated above, there being no service condition for transfer of an employee borne under one Cadre Controlling Authority to the jurisdiction of another Cadre Controlling Authority in the appointment letter of the Petitioners or in any other statutory service conditions applicable to the Petitioners, the impugned order dated 29.10.2003 and 31.10.2003 are patently illegal and are not sustainable in the eyes of law and are accordingly quashed. 35. Undoubtedly transfer policy framed by the employer is not justifiable in the Court of law as it does not have any statutory force. 35. Undoubtedly transfer policy framed by the employer is not justifiable in the Court of law as it does not have any statutory force. But if the transfer orders are issued contrary to the service conditions applicable, such orders are liable to be struck down. References may be had to the judgments of Hon'ble Supreme Court in Mrs. Shilpi Bose and Others vs. State of Bihar and Others, AIR 1991 SC 532 , Bank of India vs. Jagjit Singh Mehta, (1992) 1 SCC 306 and Union of India and Others vs. S.L. Abbas, (1993) 4 SCC 357 . Moreso, as the Petitioners are not questioning the policy of transfer formulated by the Respondent, the challenge is on the ground that there being no provision for transfer under the service rules, the Petitioners cannot be transferred by the Respondent. Thus, the judgment referred to by the Respondent have absolutely no application to the facts of the present case and the legal contention raised in that regard is totally misconceived. 36. In view of the aforesaid, the petitions succeed and are allowed. The orders impugned dated 29.10.2003 and 31.10.2003 are hereby quashed. The judgment of the learned Central Administrative Tribunal, Allahabad Bench, Allahabad, dated 2nd January, 2004, is set aside. However, it is provided that the Respondent may, after obtaining consent from the employees concerned, send him on deputation to Uttaranchal and shall ensure payment of deputation allowance to such employees. It is further provided that the employees who have joined on transfer at Uttaranchal under the interim order passed by this Court, will be entitled for deputation allowance for the period they have worked at Uttaranchal and they shall not be asked to continue at Uttaranchal without their consent any further.