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Madhya Pradesh High Court · body

2010 DIGILAW 545 (MP)

K. P. Bhalse v. State of M. P.

2010-05-12

SHANTANU KEMKAR

body2010
JUDGMENT Shantanu Kemkar, J. 1. With consent heard finally. Petitioner is working on the post of Sub-Divisional Forest Officer in the Forest Department of the State Government. He was transferred from Bhopal to Barwaha vide order dated 20.8.2008. While he was posted at Barwah, the State Government issued an order dated 22.8.2009 (Annexure P-4) by which he has been sent on deputation from Forest Department to Narmada Valley Development Authority (for brevity "NVDA"). Through the same order, the 4th Respondent has been transferred from Betual to Barwah in place of the Petitioner. Aggrieved, the Petitioner submitted a representation dated 23.8.2009 (Annexure P-5) and has filed this petition. On 24.8.2009, the operation of the impugned deputation order has been stayed by this Court. 2. The case of the Petitioner is that the impugned order of deputation sending him from Forest Department to the Narmada Valley Development Authority has been issued without obtaining his consent and as such it is liable to be quashed. He made a categorical statement that he had not given any consent for sending him on deputation. 3. The Respondents No. 1, 2 and 3 in their reply have stated that in the NVDA the employees are being posted from various departments of the State Government. Apart from various works NVDA has to perform the work of wild life management and afforestation, in the circumstances, the services of the Forest Department employees are also being taken in the NVDA. It is also the case of the Respondents that the State Government is empowered to send its employees on deputation to any other Government Departments, to the service of a body, incorporated or not which is wholly or substantially owned and controlled by the Government. Reliance has been placed by the Respondents on Rule 110 of the Fundamental Rules. 4. The 4th Respondent has also filed reply and has justified the impugned order of deputation. It has been stated that the Petitioner was not entitled to have been posted at Barwah as Sub-Divisional Officer Forest, therefore, he has rightly been sent out on deputation to NVDA which is permissible and no consent is required in view of Fundamental Rule 110. 5. Heard learned Counsel for the parties and perused the annexures and the affidavits filed by them. 5. Heard learned Counsel for the parties and perused the annexures and the affidavits filed by them. In order to appreciate the rival contentions, it would be appropriate to take note of the law laid down by the Supreme Court of India and by this Court from time to time in regard to the question involved in this petition. In the case of State of Punjab v. Inder Singh 1998 (78) FLR 272 the Supreme Court has observed thus: Concept of "deputation " is well understood in service law and has a recognised meaning. "Deputation " has a different connotation in service law. 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 which 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. 6. In the case of Umapati Choudhary v. State of Bihar 1999 (82) FLR 797 it has been observed by the Supreme Court that the deputation means: Assignment of an employee of one department/cadre/organisation to another department/cadre/organisation in public interest. Deputation involves voluntary decision of the lending authority, borrowing authority and the employee concerned. 7. In view of the law laid down by the Supreme Court in the case of State of Punjab (supra) and in the case of Umapati (supra) it is clear that there can be no deputation without the consent of employee concerned. It is also clear from the law laid down in the aforesaid cases that if the services of an employee of one department have been assigned to another department, it would amount to deputation. It is also clear from the law laid down in the aforesaid cases that if the services of an employee of one department have been assigned to another department, it would amount to deputation. In the case of R.S. Rathore v. State of M.P. and Anr., LPA No. 610 of 2004, a Division Bench of this Court after considering the case of Umapati Choudhary (supra) vide order dated 27.10.2004 has held that the deputation of a Police Officer in the Office of Lokayukta, without obtaining his consent, to be illegal and was pleased to quash the said order of deputation. 8. From the document (Annexure R-1) filed by the State Government and the document (Annexure R-4) filed by the private Respondent, it is clear that NVDA has been formed and created by the Narmada Valley Development Department of the State Government. The Narmada Valley Development Department is a separate department of the State Government. The said department has framed rules providing creation of post and appointment of the employees in the NVDA. Rule 4(b)(2) provides that Officers/employees of the NVDA shall be appointed on deputation from the concerned Government Departments, Electricity Board or from the Government of India. Thus, the documents Annexures R-1 and R-4 filed by the Respondents make it clear that the appointments in the NVDA which is under Narmada Valley Development Department are to be made by way of deputation from the various departments of the State Government, Electricity Board or from the Government of India. 9. Thus it is very clear that the Petitioner has been sent on deputation from Forest Department to Narmada Valley Development Department an another department of the State Government for working in the NVDA which has been created by Narmada Valley Development Department of the State Government. Admittedly no consent has been obtained from the Petitioner before passing the impugned order of deputation. In the circumstances, there remains no doubt that the Petitioner has been sent on deputation to another department without obtaining his consent. It is not a case of transfer to foreign service and therefore, the provision contained in F.R. 110 has no application to the present case which is a case of deputation without consent. 10. In the circumstances, there remains no doubt that the Petitioner has been sent on deputation to another department without obtaining his consent. It is not a case of transfer to foreign service and therefore, the provision contained in F.R. 110 has no application to the present case which is a case of deputation without consent. 10. In the circumstances, in view of the law laid down by Supreme Court in the cases of State of Punjab v. Index Singh (supra) and Umapati Choudhary (supra) and by a Division Bench of this Court in the case of R.S. Rathore (supra), the impugned order (Annexure P-4) by which the Petitioner has been sent on deputation without obtaining his consent, is liable to be and is hereby quashed. 11. The petition is allowed. No orders as to costs.