Allahabad High Court
Sunil Kumar Singh vs State Of U.P. Thru Prin.Secy. P.W.D. ... on 9 April, 2018
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Court No. - 17 Case :- SERVICE SINGLE No. - 9082 of 2018 Petitioner :- Sunil Kumar Singh Respondent :- State Of U.P. Thru Prin.Secy. P.W.D. Civil Sectt. Lko. & Ors Counsel for Petitioner :- Shobhit Kant Counsel for Respondent :- C.S.C. Hon'ble Irshad Ali,J.
Heard Sri Shobhit Kant, learned counsel for the petitioner and learned Additional Chief Standing Counsel on behalf of the State/respondents and perused the material brought on record.
This writ petition has been filed challenging the order dated 11.12.2017, whereby the petitioner has been sent on deputation.
Brief facts of the case is that the petitioner is working on the post of Junior Engineer at Nirman Khand, Saharanpur since 18.10.2010. On verbal request of the Government of U.P., the Engineer-in-Chief, Public Works Department, recommended two names of the Assistant Engineers (Civil) and four names of the Junior Engineers (Civil) who were required to be posted at U.P. State Highway authority for repair work at Delhi Saharanpur-Yamnotri Road. On the very next date, vide letter dated 07.11.2017, Chief Engineer, Western Zone, Public Works Department (respondent No.4), recommended the name of the petitioner and without taking his consent, placed him on deputation by means of the impugned order.
Learned counsel for the petitioner submitted that without taking prior consent of the petitioner, he cannot be posted on deputation in any other department. He next submitted that the name of Delhi-Shahranpur-Yamnotri State Highway No.57 has been declared as Delhi-Shahranpur-National Highway 709-B, vide letter dated 18.12.2017. Thus, petitioner cannot be posted on deputation being an employee of the State Government. In support of his argument, he relied upon the two judgments of the Apex Court in the case of State of Punjab & Ors. Vs Inder Singh & Ors. reported in AIR 1998 Supreme Court 7. Paragraph 19 of the aforesaid judgment is quoted below :-
"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 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."
He further relied upon the judgment of the Apex Court in the case of Kavi Raj Vs State of J & K & Ors. reported in 1939 AIR 2013 Supreme Court 767. The para 20 of the aforesaid judgment is quoted below :-
"Before concluding, it is essential to deal with certain inferences drawn by the learned Single Judge of the High Court. According to the learned Single Judge, prior consent of an employee is imperative, pending, peremptory and mandatory, before he is posted on deputation outside his parent department. No statutory rule has been brought to our notice, requiring prior consent of an employee, before his deployment against a post beyond his parent cadre. The fact, that the appellants consent was not sought before their posting at the Government Medical College, Jammu (and/or the hospitals associated therewith) would be in our view have any determinative affect on the present controversy. Broadly, an employee can only be posted (or transferred) to a post against which he is selected. This would ensure his stationing, within the cadre of posts, under his principal employer. His posting may, however, be regulated differently, by statutory rules, governing his conditions of service. In the absence of any such rules, an employee cannot be posted (or transferred) beyond the cadre to which he is selected, without his willingness/readiness. Therefore, an employee's posting (or transfer), to a department other than the one to which he is appointed, against his will, would be impermissible. But willingness of posting beyond the cadre (and/or parent department) need not be expressly sought. It can be complied. It need not be in the nature of a written consent. Consent of posting (or transfer) beyond the cadre (or parent department) is inferable from the conduct of the employee, who does not protest or contest such posting/transfer. In the present controversy, the appellants were issued posting orders by the Principal, Government Medical College, Jammu, dated 30.12.1997. They accepted the same, and assumed charge as Senior/Junior House Officers at the Government Medical College, Jammu, despite their selection and appointment as Assistant Surgeons. Even now, they wish to continue to serve against posts, in the Directorate of Medical Education. There cannot be any doubt, about their willingness/readiness to serve with the borrowing Directorate. The consent of the appellants is tacit and unquestionable. We are therefore of the view, that the learned Single Judge of the High Court, clearly erred on the instant aspect of the matter."
Learned counsel for the petitioner further submitted that prior consent of the petitioner for appointment on deputation was not obtained.
On bare perusal of the aforesaid paragraph of the judgment of Apex Court, it is evident that without taking prior consent of the employee concerned, he cannot be posted in any other department.
In view of the above, the submission advanced by learned counsel for the petitioner has substance.
On the other hand, learned Additional Chief Standing Counsel placed reliance upon the Government Order dated 13.08.1978 and submitted that no prior consent is required in making appointment on deputation in any other departments.
I have gone through the judgment relied upon by the petitioner wherein the Supreme Court has held that prior to making recommendation or appointment on deputation, the consent of the employee is required to be taken. In the present case, this is a specific case of the petitioner that prior to making recommendation or appointment, no consent was taken by him.
This fact was not disputed by learned Additional Chief Standing Counsel.
In view of the law laid down by the Apex Court and on perusal of the material on record, the impugned order dated 11.12.2017 is not sustainable and is hereby set aside.
The writ petition succeeds and is allowed.
No order as to costs.
Order Date :- 9.4.2018 m.a.