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2015 DIGILAW 252 (MP)

Malkhan Singh v. State of M. P.

2015-03-02

SUJOY PAUL

body2015
ORDER 1. Learned counsel for the parties stated that these matters are identical in nature and, therefore, may be heard analogously. On the joint request, matters were heard analogously. 2. The singular question needs to be decided in this batch of petitions is whether the action of the respondents in sending the petitioners on deputation without obtaining their consent is permissible and legal ? 3. Petitioners are Constables working in 13th Battalion, Special Armed Force (SAF) Gwalior. They are sent on deputation for three years to State Industrial Security Force (SISF). This order dated 20.2.2014 is called in question in this batch of petitions. 4. Shri Sharma, learned counsel for the petitioners submits that the petitioners have been sent on deputation without obtaining their consent, which is not permissible. He submits that as per communication dated 19.12.2013 (Annexure P-3) and 3.9.2014, the employees can be sent on deputation provided they have given consent for the same. Reliance is placed by Shri Sharma on 2010(III) MPWN 56 = 2010(3) MPLJ 452 (Rajaram v. State of M.P.) and another judgment, reported in the same volume at page 401 (K.P.Bhalse v. State of M.P.). In addition, he relied on (1999)4 SCC 659 (Umapati Choudhary v. State of Bihar). He submits that after considering the judgment of Umapati Choudhary (supra), the writ Court in K.P. Bhalse and Rajaram (supra), opined that the deputation without consent is not permissible. 5. Per Contra, Shri Praveen Newaskar, Deputy Government Advocate supported the order. He relied on relevant provision of Fundamental rules and the order passed by this Court in Writ Petition No.1665/2013 (Buddhi Lal Noroji v. State of M.P. and another). He submits that the writ appeal filed against this order was not entertained. 6. I have heard learned counsel for the parties and perused the record. 7. I deem it apposite to reproduce the relevant statutory provision before dealing with the rival contentions advanced at the bar. The relevant portion of Fundamental rule 110 reads as under :- “ FR 110. 6. I have heard learned counsel for the parties and perused the record. 7. I deem it apposite to reproduce the relevant statutory provision before dealing with the rival contentions advanced at the bar. The relevant portion of Fundamental rule 110 reads as under :- “ FR 110. Authorities competent to transfer a Government servant to foreign service :- (a) No Government servant may be transferred to foreign service against his will : Provided that this sub-rule shall not apply to the transfer of a Government servant to the service of a body, incorporated or not, which is wholly or substantially owned or controlled by the Government.” “Foreign Service” is defined in Fundamental rule 9(7), which reads as under:- “(7) “Foreign Service” means service in which a Government servant receives his substantive pay with the sanction of Government (a) from any source other than the revenue of the Governor-General in Council or of a province or the Railway Fund (when established); or (b) from a company working a State Railway.” 8. The question is whether as per Fundamental rules it was necessary to obtain consent of the employees while sending them on deputation to SISF. A plain reading of Fundamental rule 110 makes it clear that a Government servant cannot be transferred to foreign service against his will. The question is whether service in SISF can be treated as “foreign service”. Fundamental rule 9(7) makes it clear that foreign service denotes a service in which an employee receives his substantive pay with the sanction of Government from any source other than revenue of the Governor- General in Council/Governor of a province or the railway fund or from a company working in State Railway. The petitioners have neither pleaded nor proved that the service in SISF amounts to “foreign service”. Proviso to FR 110 in no uncertain term makes it clear that sub-rule (a) shall not be applicable in case of transfer of an employee to the service of a body which is wholly or substantially owned and controlled by the Government. Admittedly, the SISF is owned, administered and controlled by the State Government. Thus, the service in SISF, by no stretch of imagination, can be treated as “foreign service”. Thus, as per FR 110, no consent of the employees was required for sending them on deputation. 9. Admittedly, the SISF is owned, administered and controlled by the State Government. Thus, the service in SISF, by no stretch of imagination, can be treated as “foreign service”. Thus, as per FR 110, no consent of the employees was required for sending them on deputation. 9. So far the internal correspondence of the officers, Annexures P-3 and P-4, are concerned, these are not even administrative instructions issued by the State Government. These are internal correspondence between the officers of the police department. Since the question of deputation is governed by the Fundamental Rules, the said correspondence/letters will not create any legal right in favour of the petitioners nor it will create any hurdle in sending the petitioners on deputation. 10. So far the judgments in K.P. Bhalse and Rajaram (supra), are concerned, it is noteworthy that these judgments were passed on the basis of certain judgments of Supreme Court. However, a careful reading of the judgment of Supreme Court, reported in (1997)8 SCC 378, (State of Punjab and others v. Inder Singh and others) and the judgment in Umapati Choudhary (supra), makes it clear that the apex Court dealt with cases where there was no statutory provision like FR 110. This Court in Rajaram and K.P. Bhalse (supra), has not considered and dealt with the statutory provision, which governs the field of deputation. Thus, the said judgments are clearly distinguishable. This is settled in law that a decision is an authority for which it is decided and not what can logically be deduced therefrom. A little difference in fact or additional fact may make a lot of difference in the precedential value of a decision. See, (2003)2 SCC 111 (Bhavnagar University v. Palitana Sugar Mill (P) Ltd.). 11. At the cost of repetition, it is seen that in K.P. Bhalse and Rajaram (supra), the statutory provision of Fundamental rule was not brought to the notice of this Court. If the aspect of deputation is covered by a statutory provision, it is a relevant factor for the purpose of deciding the matter. Since Fundamental rule was not considered in the judgments cited by Shri Sharma, the judgments are clearly distinguishable. It cannot be forgotten that the Court should not place reliance on a decision without discussing as to how the fact situation of the case before it fits in with the fact situation of the decision on which reliance is placed. Since Fundamental rule was not considered in the judgments cited by Shri Sharma, the judgments are clearly distinguishable. It cannot be forgotten that the Court should not place reliance on a decision without discussing as to how the fact situation of the case before it fits in with the fact situation of the decision on which reliance is placed. The judgments cannot be read as Euclid's theorems or as a provision of a Statute and that too taken out of their context. They must be read in the context of relevant Statute. See, (2011)7 SCC 397 (Union of India v. Arulmozhi Iniarasu and others) and (2003)11 SCC 584 (Ashwani Kumar Singh v. U.P. Public Service Commission and others). 12. In a recent judgment, reported in (2013)3 SCC 526 (Kavi Raj and others v. State of Jammu and Kashmir and others), the apex Court examined the legality of the judgments of Punjab and Haryana High Court passed by writ Court and writ appellate Court. The writ Court interfered with the posting of employees to a different department on the ground that before sending them on deputation, outside their parent department, their consent was not obtained. The Division Bench in LPA disturbed the said finding. The apex Court opined that the view taken by Single Judge of the High Court was clearly erroneous on the aspect of obtaining consent before deputation. The apex Court opined that no statutory rule was brought to its notice requiring prior consent of an employee before his deployment against a post beyond his cadre. The mere fact that employees' consent was not sought before their posting would not have any determinative effect on the controversy. (Para 24). In the present case FR 110 squarely covers the aspect of deputation. Since under FR 110 the deputation without consent is permissible to SISF, no interference is warranted. This view was taken by this Court in Buddhi Lal Noroji (supra),. The Division Bench did not interfere in this order in Writ Appeal No.158/2013. 13. Resultantly, I find no reason to interfere in this matter. However, if any of the petitioners has any personal problem, which has no relation with the power and competency of the respondents to send them on deputation, they are at liberty to prefer a comprehensive representation before the competent authority. 13. Resultantly, I find no reason to interfere in this matter. However, if any of the petitioners has any personal problem, which has no relation with the power and competency of the respondents to send them on deputation, they are at liberty to prefer a comprehensive representation before the competent authority. If such representation is preferred, it will be lawful for the respondents to decide it by reasoned order expeditiously. 14. With aforesaid observations, petitions are dismissed. No cost.