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Tripura High Court · body

2020 DIGILAW 20 (TRI)

State of Tripura v. Minakshi De

2020-01-27

AKIL ABDUL HAMID KURESHI, ARINDAM LODH

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JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. These writ appeals and writ petition arise in similar background. They are to be heard together and would be disposed of by this common judgment. For convenience facts may be noted from W.A. No. 181 of 2019. This appeal is filed by the State Government challenging the judgment dated 23.08.2019 passed by the learned Single Judge in Writ Petition No. 943 of 2019. The petitioner therein a doctor by profession, appointed as basic teacher in Tripura Medical Education Service had challenged an order dated 07.08.2019 by which she was transferred on deputation from MBBS Tutor Department of Anatomy Government Medical College Tripura to Teliamura Sub-Divisional Hospital, Khowai Tripura. This was in purported exercise of powers under Rule-21 of the Tripura Medical Education (Administrative & Faculty) Service Conditions Rules, 2015 (hereinafter to be referred to as the said Rules.). Before the learned Single Judge the petitioner contended that powers under Rule-21 of the said rules could be exercised only in extraordinary circumstances and not by way of a routine manner. The rule itself provided that temporary deputation to any place within the State would be permissible in case of health exigency like natural calamities, eruption of epidemics etc. The learned Single Judge in a detailed judgment which is challenged in this appeal, held that the terms "natural calamities, eruption of epidemics etc." should be interpreted adjudice generis. The word "etc." cannot be utilized to widen the scope of Rule-21, thereby giving unlimited powers to the authority to send a medical officer on deputation outside his cadre against his consent. Learned Single Judge noted that no grounds of medical emergency such as natural calamity or eruption of epidemics was cited. The learned Judge therefore while allowing the writ petition observed as under: "[20] Now the question that falls for consideration is whether genus had been framed in rule 21 of the said Rules, 2015 for purpose of interpreting the word 'etc' or its extent in the context of the said rule [the first part]. There cannot be any amount of divergence to hold that the words natural calamities and eruption of epidemics form a genus to denote extreme medical exigency, distinct from health exigency of general nature as referred in this case as shortage of medical officers. There cannot be any amount of divergence to hold that the words natural calamities and eruption of epidemics form a genus to denote extreme medical exigency, distinct from health exigency of general nature as referred in this case as shortage of medical officers. Thus, unless the health exigencies are of that proportion and magnitude as caused by natural calamities and eruption of epidemics that will not embrace the word 'etc.' for reading health exigency therewith and hence, the authority will not have the power to cause transfer or deputation either of a basic teacher [Tutor, Department of Anatomy] like the petitioner or any other member or Tripura Medical Education Service. Hence, this court is of the considered view that the shortage of doctors would not provide adequate character to meet the requisite of health exigency for exercising power under Rule 21 of the said Rules, 2015 [the second part]. Thus, the order of deputation dated 07.08.2019 [Annexure-9 to the writ petition] so far it relates to the petitioner stands interfered with and set aside. But it is incumbent upon this court to state that in any health exigency conforming to the genus as indicated above, the authority may issue any order of temporary transfer or deputation of the member of the Tripura Medical Education Service for a very limited period and that period cannot be open ended but definite having nexus to the exigency for which such order is considered to be made. The respondents should not be oblivious that the particular provision in a piece of legislation is curved out not only to provide power but also to preserve the very object of the said legislation and hence, such power created by non-obstante clause in the Rules, 2015 cannot be invoked or exercised unbridled or brushing aside the restriction implanted therein to avert aberration by the authority. 21. Having observed thus, this writ petition stands allowed. There shall be no order as to costs. The records as produced by the respondents be returned through Mr. Bhattacharjee, learned G.A." 2. Other writ appeals filed by the State Government arise out of similar but separate judgments of the learned Single Judge concerning same issue. Writ petition is filed by the individual teacher who has challenged his transfer on deputation on similar grounds. 3. The records as produced by the respondents be returned through Mr. Bhattacharjee, learned G.A." 2. Other writ appeals filed by the State Government arise out of similar but separate judgments of the learned Single Judge concerning same issue. Writ petition is filed by the individual teacher who has challenged his transfer on deputation on similar grounds. 3. Learned G.A. submitted that the learned Single Judge has committed serious error in setting aside the orders of transfer on deputation. Rule-21 of the said rules empowers the competent authority to post any medical officer on deputation at any place in the State under certain circumstances. The term "etc." cannot be shadowed by the previous expressions of natural calamity or eruption of epidemic. He submitted that the present case there was severe shortage of medical officers at various primary health centers in the remote areas and mofussil towns of the State. Urgent requirement was felt to send the petitioners and other similarly situated tutors to such places. 4. On the other hand, learned counsel appearing for the original petitioners submitted that the learned Single Judge has considered all relevant aspects of the matter and the interpretation of Rule-21 of the said rules adopted by the learned Single Judge is just and proper. They pointed out that there is also a dearth of tutors in Government Medical College at Agartala. Transferring the petitioners outside would not serve any public purpose. 5. In general terms, under deputation a deputationist is required to discharge his duties for a temporary period on an ex-cadre post. Unless the statutory rules so provide, such deputation must be with the consent of the concerned employee and cannot be a unilateral decision of the employer which can be enforced against the employee. In case of State of Punjab and Others vs. Inder Singh and Others, reported in (1997) 8 SCC 372 the Supreme Court had made the following observations: "18. The concept of "deputation" is well understood in service law and has a recognised 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. '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 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. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head Constables as the case may be". 6. The concept that there can be no deputation without the consent of the person so deputed is thus well settled. This would of course be subject to relevant rules. In this context Rule-21 of the said rules is relevant. The said rule reads as under: "Normally posting of the employees belonging to any administrative, teaching, and technical posts under the Tripura Medical Education (Administrative & Faculty) Service Conditions will be within the Medical College or its Teaching Hospital. Authority shall have the right to send any such employee on temporary deputation to any place within the State or outside or temporary transfer to any health Institute in case of health exigency like natural calamities, eruption of epidemics etc." 7. As per this rule normally posting of employees belonging to administrative, teaching and technical posts under the Tripura Medical Education (Administrative & Faculty) Service Conditions would be within the Medical College or its Teaching Hospital. As per this rule normally posting of employees belonging to administrative, teaching and technical posts under the Tripura Medical Education (Administrative & Faculty) Service Conditions would be within the Medical College or its Teaching Hospital. However, the authority would have right to send any such employee on temporary deputation to a place within the State or outside or to temporarily transfer him to any health institute "in case of health exigency like natural calamities, eruption of epidemics etc." Normal rule of no deputation without consent of the deputationist, can therefore be deviated in terms of the said rules as long as the conditions specified for exercise of powers contained therein exist. Such conditions are of health exigency like natural calamities eruption of epidemics etc. The State has not placed in service either existence of the natural calamity or eruption of epidemics. The expression "etc." is correctly read by the learned Single Judge in continuation with the previous expression of natural calamities, eruption of epidemics. The expression "etc." cannot be read in isolation so as to permit a free hand to the administration to compulsorily send any tutor on deputation at any place within the State or even outside for any perceived reason of health exigency. Such health exigency is qualified by the expression "like natural calamities or eruption of epidemics". The expression "etc." takes colour from preceding expression "like natural calamities, eruption or epidemics." 8. The State has also not made out a case that if such vacancies in mofussil areas are left unfilled, the same may lead to a natural calamity or eruption of epidemic. Perhaps if such case was build up, it was open for the State to argue that the health exigency as referred to an envisaged in Rule-21 for exercise of power of compulsory deputation has arisen. Under the circumstances, we have no hesitation in upholding the decision of the learned Single Judge. While doing so, however, being the medical service, we would not abruptly and immediately require the State to withdraw the original petitioners from the present place of postings. In the affidavit-in-reply filed before the learned Single Judge the State Government has specified that the orders of deputation were for a period of 180 days. We are informed that nearly 5 months out of this total of 6 months period of deputation has expired. In the affidavit-in-reply filed before the learned Single Judge the State Government has specified that the orders of deputation were for a period of 180 days. We are informed that nearly 5 months out of this total of 6 months period of deputation has expired. Without disturbing the State machinery therefore, it is provided that the original petitioners may be retained at their places of deputation till the end of a period of 180 days from the date of the orders. However, there shall not be any further fresh order of deputation passed. With these clarifications appeals are dismissed and the writ petitions stand allowed in the same terms. Pending application(s), if any, also stands disposed of.