Himachal Pradesh High Court
Chander Deep Sharma vs State Of Himachal Pradesh And Others on 9 January, 2020
Bench: L. Narayana Swamy, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 4030 of 2019
.
Decided on: 09.01.2020
Chander Deep Sharma ...Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
Coram r to
The Hon'ble Mr. Justice L. Narayana Swamy, Chief Justice.
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1
For the petitioner: Mr. Vishwa Bhushan, Advocate.
For the respondents: Mr. Ajay Vaidya, Senior Additional
Advocate General.
L. Narayana Swamy, Chief Justice. (Oral)
The petitioner, who belongs to the cadre of Assistant Professor, was appointed as such in Dr. Rajendra Prasad Government Medical College, Kangra at Tanda (hereinafter referred to as 'Dr. RPGMC') since 15 th December, 2015.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 10/01/2020 20:26:10 :::HCHP 22. The brief facts of the case are that as per notification dated 7th June, 2008 (Annexure P4), the common .
teaching cadre for Dr. RPGMC Kangra at Tanda and Indira Gandhi Medical College, Shimla (hereinafter referred to as 'IGMC') have been bifurcated and on the basis of the existing sanctioned strength, separate teaching cadres for the aforesaid two institutions have been created. Meaning thereby, IGMC Shimla and Dr. RPGMC Kangra at Tanda have their separate cadres. The petitioner became the permanent cadre/employee of Dr. RPGMC Kangra at Tanda.
3. The contention of the learned counsel for the petitioner is that since the petitioner is having the permanent cadre of Dr. RPGMC Kangra at Tanda, the question of his transfer/deputation to a different Department, i.e. IGMC Shimla or Pt. Jawahar Lal Nehru Government Medical College, Chamba (hereinafter referred to as 'JLNGMC') does not arise.
4. Learned counsel for the petitioner submitted that contrary to the notification (Annexure P4), the petitioner has been sent on deputation vide impugned order, dated 29 th ::: Downloaded on - 10/01/2020 20:26:10 :::HCHP 3 November, 2019 (Annexure P3) to Pt. JLNGMC Chamba. It is his further submission that when deputation is to be made, .
it should be made in accordance with the Statute made by the respondents.
5. He further submitted that the Government of Himachal Pradesh has issued Policy for Cadre Building in Newly Opened Medical Colleges in the State of Himachal Pradesh on 17th November, 2018 (Annexure P5) and the deputation of the petitioner is in contravention of Clause 7 of the said Policy, which provides that till the regular incumbents join after promotion or through HPPSC, the vacancies in the new Medical Colleges shall be filled up by way of deputation from IGMC Shimla or Dr. RPGMC Kangra at Tanda by taking options from the interested faculty. The petitioner should also have been asked by the respondents to exercise the option, but, contrary to the same, he has been deputed unilaterally to work at Pt. JLNGMC Chamba, which act of the respondents is contrary to the Policy framed by them, is also arbitrary and violative of Article 14 of the Constitution of India.
::: Downloaded on - 10/01/2020 20:26:10 :::HCHP 46. To substantiate the plea that the petitioner has been treated altogether differently, the learned counsel for the .
petitioner submitted that in terms of the impugned order dated 29th November, 2019 (Annexure P3), two Doctors were deputed at Pt. JLNGMC Chamba, out of which Dr. Vikrant Chauhan has been recalled by restoring him to the original post, but, the petitioner, in violation of Article 14 of the Constitution, has been made to work at Pt. JLNGMC Chamba only.
7. Per contra, learned Senior Additional Advocate General, prays for dismissal of the writ petition on the ground that though, in the impugned order, the word 'deputed' has been mentioned, but, in fact, the petitioner has been transferred to Pt. JLNGMC Chamba in public interest and that the private interest of a person has to give way to the larger public interest. He has also placed reliance on para 10 of the judgment of this Court in State of H.P. and another versus L.R. Bhardwaj and another, 2010 (1) Shim. LC 69, wherein the judgment of the Supreme Court in National ::: Downloaded on - 10/01/2020 20:26:10 :::HCHP 5 Hydroelectric Power Corporation Ltd. versus Shri Bhagwan and another, (2001) 8 SCC 574, has been .
followed by this Court.
8. We have heard learned counsel for both the parties and have perused the record carefully.
9. As per notification dated 7th June, 2008 (Annexure P4), cadres of the employees of two institutions, i.e. IGMC Shimla and Dr. RPGMC Tanda at Kangra, have been bifurcated by the Government of Himachal Pradesh and the Teaching Faculty members posted at both the Hospitals were required to be asked to exercise their option to choose the cadre, i.e. IGMC Shimla or Dr. RPGMC Tanda. The petitioner opted for Dr. RPGMC Tanda and became the permanent employee of the said institution. Meaning thereby, no doubt, the respondents could have transferred the petitioner within the said institution, i.e. Dr. RPGMC Tanda, but, in order to depute him to a different institution, the respondents were required to ask the petitioner to exercise his option, in terms of Clause 1 of AnnexureA to notification, dated 7 th June, 2008 (Annexure P4) read with Clause 7 the Policy (Annexure P5), ::: Downloaded on - 10/01/2020 20:26:10 :::HCHP 6 which mandates that till the regular incumbents join after promotion or through HPPSC, the vacancies in the new .
Medical Colleges shall be filled up by way of deputation from IGMC Shimla/Dr. RPGMC Kangra at Tanda by taking options from the interested faculty.
10. The spirit behind introduction of Clause 7 in the Policy is that when a person is transferred from one institution to altogether different institution, his option or consent has to be obtained. Whether consent is implied or express, is not forthcoming. But, the plain reading of the said clause transpires that without the consent of the employee, he cannot be transferred or sent on deputation to the other institution.
On this count only, the petition is to be succeeded.
11. In Jawaharlal Nehru University versus K.S. Jawatkar, 1989 Supp. (1) Supreme Court Cases 679, the transfer of an employee of Jawarharlal Nehru University to Manipur University without his consent, was held to be bad in law by the Supreme Court. It is apt to reproduce para 7 of the said judgment herein:
::: Downloaded on - 10/01/2020 20:26:10 :::HCHP 7"7. In this appeal the main contention of the appellant is that the respondent was appointed at the Centre of Postgraduate Studies, Imphal, .
and when the Centre A as transferred to the Manipur University his services were automatically transferred to that University, and consequently he could not claim to be an employee of the appellant University. The argument proceeds on the assumption that the Centre of Postgraduate Studies at Imphal was an independent entity which existed by itself and was not a department of the appellant University. The submission proceeds on a fallacy. The Centre of Postgraduate Studies was set up at Imphal as an activity of the appellant University. To give expression to that activity, the appellant University set up and organised the Centre at Imphal and appointed a teaching and administrative staff to man it. Since the Centre represented an activity of the appellant University the teaching and administrative staff must be understood as employees of the appellant University. In the case of the respondent, there can be no doubt whatever that he was, and continues to be, an employee of the appellant University. There is also no doubt that his employment could not be transferred by the appellant University to the Manipur University ::: Downloaded on - 10/01/2020 20:26:10 :::HCHP 8 without his consent, notwithstanding any statutory provision to that effect whether in the Manipur University Act or elsewhere. The .
contract of service entered into by the respondent was a contract with the appellant University and no law can convert that contract into a contract between the respondent and the Manipur University without simultaneously making it, either expressly or by necessary implication, subject to the respondent's consent. When the Manipur University Act provides for the transfer of the services of the staff working at the Centre of Postgraduate Studies, Imphal, to employment in the Manipur University, it must be construed as a provision enabling such transfer of employment but only on the assumption that the employee concerned is a consenting party to such transfer. It makes no difference that the respondent was not shown in the list of Assistant Professors of the appellant University or that the provision was not indicated in its budget; that must be regarded as proceeding from an erroneous conception of the status of the respondent. The position in law is clear, that no employee can be transferred, without his consent, from one employer to another. The consent may be express or implied.::: Downloaded on - 10/01/2020 20:26:10 :::HCHP 9
We do not find it necessary to refer to any case law in support of this conclusion."
.
12. The Supreme Court in another case titled State of Punjab versus Inder Singh, (1997) 8 Supreme Court Cases 372, has held that deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis and there should be no deputation without the consent of the person so deputed. It would be profitable to reproduce para 19 of the judgment herein:
"19. 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. 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 ::: Downloaded on - 10/01/2020 20:26:10 :::HCHP 10 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."
13. This Court in CWP No. 1098 of 2015 and connected matters, decided on 4th June, 2015, under similar circumstances, has held that deputation should not be done without the consent or option exercisable from the concerned person.
14. Normally, in a case of deputation, person belonging to a particular department is given an option that he has to be transferred to different cadre or different department, then the lending authority is supposed to take consent from the ::: Downloaded on - 10/01/2020 20:26:10 :::HCHP 11 borrowing authority. After obtaining the consent from the borrowing authority, third option is to obtain a consent from .
the person who seeks or is liable to be sent on deputation to the different department. Without there being a consent from the borrowing authority and a consent from the person, who is to be sent on deputation, the deputation order is arbitrary and contrary to the established principles.
15. In the present case, the petitioner has been sent to Pt. JLNGMC Chamba from Dr. RPGMC Kangra at Tanda without there being any consent on his part, as required in terms of Clause 7 of the Policy. Hence, the deputation order is liable to be quashed and set aside. Accordingly, the same is quashed and set aside.
16. Before parting with, we deem it appropriate to record herein that at the time of filing of the writ petition, the petitioner had sought interim directions to stay his deputation order, however, this Court had directed the petitioner to report for duties at the place where he has been deputed. This direction has been issued while keeping in view the principle of urgency knows no law. The profession of the petitioner ::: Downloaded on - 10/01/2020 20:26:10 :::HCHP 12 being a Doctor is of such a nature that in absence of a Doctor, the patients cannot be left to suffer, which is contrary to the .
principle of urgency knows no law.
17. Hence, this Court, vide order, dated 9 th December, 2019, directed the petitioner to report at Pt. JLNGMC Chamba. As per the directions, he reported for his duties at the said place. Though, this petition is allowed, but, in order to enable the respondents to make arrangements, we direct the petitioner to continue at Pt. JLNGMC Chamba till the end of this month, i.e. 31st January, 2020. Thereafter, his deputation order shall automatically stand revoked and he will be repatriated in his original department, i.e. Dr. RPGMC Kangra at Tanda.
18. With these observations, the writ petition is disposed of, so also the pending miscellaneous applications, if any. Copy dasti.
(L. Narayana Swamy) Chief Justice (Jyotsna Rewal Dua) Judge January 09, 2020 ( rajni ) ::: Downloaded on - 10/01/2020 20:26:10 :::HCHP