^ '-,'^ '^ AP^ HIGH COURT OF CHHATTISGARH: Writ Petition rsVNo. 2607 of 2008 /n Petitioner Azad Mohammad Khan Vs. Respondents And State ofChhattisgarh and another Other connected petitions. Post for pronouncement ofthe Judgment and Order on 25/07/2008 Sd/- Satish K.Agnihotri Judge 57/07/2008 \' HIGH COURT OF CHHATTISGARH AT BILASPUR PETITIONER RESPONDENTS PETITIONER RESPONDENTS PETITIONER RESPONDENTS WRIT PETITION (S) NoJ26QLof20Q8 Azad Mohammad Khan, S/o Late Ramjan Khan, Aged about 48 years, R/o Mahamaya Sentering Shop, Pratappur Naka, Ambikapur (C.G.) VERSUS 1. State of Chhattisgarh - Through the Secretary, Panchayat Evam Gramin Vikash Vibhag, D.K.S. Bhavan, Raipur (C.G.) 2. The Secretary, Water Resources Department., D.K.S. Bhavan, Raipur (C.G.) WRIT PETITION fS) No. 2608 of 2008 1. Umesh Chandra Singh S/o Shri Sheet Basant Singh, Aged about 49 years, R/o G-5, Irrigation Colony, Near Pratapur Naka, Ambikapur (C.G.) 2. Amn Kumar Tiwari S/o Ramanuj Prasad Tiwari, Aged about 47 years, R/o Irrigation Colony, Gandhi Nagar, Ambikapur (C.G.) 3. Narbad Singh Thakur S/o Shri Babulal Thakur, Aged about 49 years, R/o Banki Colony, Fundur Dihari, Ambikapur (C.G.) VERSUS 1. State of Chhattisgarh - through the Secretary, Panchayat Evam Gramin Vikas Vibhag, D.K.S. Bhavan, Raipur (C.G.) 2. The Secretary, Water Resources Department, DKS Bhavan, Raipur (C.G.) WRIT PETITION (S) No. 2609 of 2008 Abdul Rashid Qureshi S/o Shri Abdu Hafiz, Aged about 52 years, R/o Shivdhari Dubey Colony, Ambikapur (C.G.) VERSUS 1. State of Chhattisgarh - through the Secretary, Panchayat Evam Gramin Vikash Vibhag, DKS Bhavan, Raipur (C.G.) 2. The Secretary, Water Resources Department, DKS Bhavan, Raipur (C.G.) l^) PETITIQNER RESPONDENTS PETITIONER RESPONDENTS PETITIONER RESPONDENTS WRIT PETITION (S) No. 2707 of2008 Ramanuj Sharma, aged about 54 years, S/o Late Shri N.P.Sharma, presently posted as Sub Divisional Officer Rura Engineering Ser^ices Sub Division, Lundra, District Surguja (C.G.) resident of F-14, D.C.Road, Irrigation Colony, Ambikapur, District Surguja (C.G.) VERSUS 1. State of Chhattisgarh through Secretary, Panchayat Evam Gramin Vikas Vibhag, D.K.S. Bhavan, Mantralaya, Raipur (C.G.) 2. Secretary, Water Resources Department, D.K.S. Bhavan, Mantralaya, Raipur (C.G.) WMT PETITION (S) No. 2708 of2008 Shiv Kumar Tiwari, aged about 53 years, S/o Shri V.N.Tiwari, presently posted as Sub Divisional Officer, Rural Engineering Services, Sub Division, Ramanujganj, District Surguja (C.G.) resident of Irrigation Colony, Surajpur, District Surguja (C.G.) VERSUS l.State of Chhattisgarh through Secretary, Panchayat Evam Gramin Vikas Vibhag, D.K.S. Bhavan, Mantralaya, Raipur (C.G.) 2. Secretary, Water Resources Department, D.K.S. Bhavan, Mantralaya, Raipur (C.G.) WMT PETITION (S) No. 2710 of2008 T.C.Verma, aged about 47 years S/o Shri L.L.Verma, R/o G-75, Irrigation Colony, Shanti Nagar, Raipur (C.G.) VERSUS 1. State of Chhattisgarh Through the Secretary, Department of Panchayat and Rural Development, D.K.S. Bhawan, Raipur (C.G.) 2. Secretary, Department of Water Resources^ D.K.S. Bhawan, Raipur (C.G.) 3. Engineer-in-Chief, Department of Water Resources, Sihawa Bhawan, Near Civil Line Thana, Raipur (C.G.) @ PETITIONER RESPONDENTS WRIT PETITION fS) No. 2816 of2008 ; Subhash Kumar Agrawal S/o Shri Devisaha Agrawal, aged about 49 years, presently posted as In-charge Sub Divisional Officer Janpad Panchayat Bamhnidih, District Janjgir-Champa (C.G. VERSUS 1. State of Chhattisgarh, through Secretary, Panchayat Evam Gramin Vikas Vibhag, D.K.S. Bhavan, Mantralaya, Raipur (C.G.) 2. Secretary, Water Resources Department, D.K.S. Bhavan, Mantralaya, Raipur (C.G.) r PETITIONER RESPONDENTS WRIT PETITION (S) No. 2950 of2008 K.L.Chandra S/o R.K.Chandra, aged about 50 years, working as Incharge Asst. Engineer, Rural Engineering Ser^ices, Sub Division, Jaijaipur, Distt. Janjgir Champa. VERSUS 1. State of Chhattisgarh, Through its Secretary^ Panchayat and Rural Development, Mantralaya, D.K.S. Bhawan, Raipur (C.G.) 2. The Secretary, Water Resources Development, Mantralaya, D.K.S.Bhawan, Raipur (C.G.) PETITIONER RESPONDENTS WMT PETITION <S) No. 2951 of 2008 * Prakash Rao Fulekar, S/o Late R.R.Fulekar, aged about 42 years, working as Asst. Engineer, Office of Sub Divisional Officer, Rural Engineering Service, Sub Division, Shakti Distt. Janjgir- Champa (C.G.) VERSUS 1. State of Chhattisgarh, Through its Secretary, Panchayat and Rural Development, Mantralaya, D.K.S. Bhawan, Raipur (C.G.) 2. The Secretary, Water Resources Development, Mantralaya, D.K.S. Bhawan, Raipur (C.G.) \. PETITIONER RESPONDENTS WRIT PETITIQN(S) No, 3299of 2008 J.P.Rai S/o S.L.Rai, aged about 50 years, presently working as In Charge-Assistant Engineer, Rural Engineering Services, Sub Division Baikunthpur, District Koriay, (C.G.) R/o Prembag Colony, Baikunthpur, District Koriya (C.G.) VERSUS 1. State of Chhattisgarh through The Secretary, Department of Panchayat Evam Gramin Vikas Vibhag, Ministry D.K.S. Bhavan, Raipur (C.G.) 2. The Joint Secretary, Department of Panchayat Evam Gramin Vikas Vibhag Ministry, D.K.S. Bhavan, Mantralaya, Raipur (C.G.) 3. The Secretary, Water Resources Department, D.K.S. Bhavan, Raipur (C.G.) and WRIT PETITION (S) No. 6340 of2007 A.K.Mishra S/o Shri B.P.Mishra, aged about 44 years, Sub-Engineer, Janpad Panchayat Sitapur, District Surguja (C.G.)« VERSUS 1. State of Chhattisgarh Through the Secretary, Panchayat Evam Gramin Vikas Vibhag, D.K.S. Bhawan, Raipur (C.G.) 2. The Secretary, Water Resources Department, D.K.S. Bhawan, Raipur, (C.G.) 3. The Development Commissioner Chhattisgarh, Raipur (C.G.) WRIT PETITON UNDER ARTICLE 226 / 227 OF THE CONSTITUTION OFINDIA PETITIONER RESPONDENTS Present: Shri P.Diwakar, Senior Advocate with Shri Ashish Surana, Smt. Hamida Siddique, Shri P.S.Koshy, Shri Utkarsh Verma, Shri F.S.Khare, Advocates for the respective petitioners. Shri Anoop Majumdar and Ms. Madhu Nisha, counsel for the petitioner in W.P.(S). No. 6340/2007. Shri Manoj Paranjpe, Advocate for the Intervener in W.P.(S) No. 2608/2008. Shri Y.S.Thakur, Deputy Advocate General for the respondents/State SB: Hon'ble Shri Satish K. Aenihotri, J. (Passed on .^.g.^day ofJuly, 2008) By this batch ofpetitions being Writ Petition (S) Nos. 2607/2008, 2608/2008, 2609/2008, 2707/2008, 2708/2008, 2710/2008, 2816/2008, 2950/2008, 2951/2008 and 3299/2008 filed under Article 226 of the Constitution oi' India, the petitioners assail the validity and legality of the order datrd 30.04.2008, by which the services ofthe petitioners are repatriated to thcir parent department i.e., Water Resources Department. The question of la\v involved inthis batch ofWrit petitions is identical, hence, all the petitions are being disposed ofby this common order. The indisputable facts, in nutshell, as projected by the petitioners are that, tlic petitioners were initially appointed on the post Sub-Engineer/Assistant Engineer in the Water Resources Department in the State of Madhya Pradesh/Chhattisgarh. The substantive department of the petitioners in W.P.(S) No. 2607/2008, 2608/2008, 2609/2008, 2707/2008, 2708/200K, 2710/2008 2816/2008, 2950/2008, 2951/2008 and 3299/2008 is Walcr Resources Department. The services of the petitioners were transferred/deputed/allocated to the Rural Engineering Services (hereinaflcr referred to as "RES") Department by several orders, in view ofthe fact that massive work was going on, wherein more personnel were required. Identicul orders were passed in all the cases except W.P.(S) No. 2710/2008. Some ol' the petitioners, being aggrieved by the order dated 17.02.2006 (Annexure I)/2 (T^ to W.P.(S) No. 2710/2008) whereby the Assistant Engineers of. Waler Resources Department were transferred to the RES Department with tlie consent ofWater Resources Department. On 12.06.2006, some more officers i.e. Assistant Engineers and Deputy Engineers from Water Resourccs Department, were sent on deputation to Panchayat and Rural Developmeiit Department; after obtaining consent from the parent department, as is evident from order dated 06.11.2004 (Annexure P/3 to W.P.(S) No. 2707/2008). 3. Being aggrieved, some ofthe employees filed writ petition being W.P. No. 1000/2006 (J.L.Patanwar & Others v. State of Chhattisgarh & Others), aiid other connected matters praying that the petitioners therein may not IK' posted on deputation in the RES department. The State Govemmeiil, appearing through Shri Verma, leamed Additional Advocate General and Shri Moorthy, leamed Deputy Advocate General, made a statement that tlic department has decided not to appoint any officer by way of' deputation/appointment/transfer on any post of the RES department, which are regular sanctioned post as per schedule attached with the rules and nre lying vacant. In view of the concession made by the State Govemment, tlie petitioners were allowed to extent that the existing posts ofRES departmeiit would not be filled up by way of deputation/transfer/appointment, from otlici departments. It was further directed that the State authorities would conveiie Departmental Promotion Committee and fill up promotional posts lyiiig vacant. The above-stated petitions were accordingly allowed and the orders dated 17.2.2006 and 12.6.2006 were quashed [Annexure P/4 to W.P.(S) No. 2707/2008]. Pursuant to the order dated 14.7.2006 passed by this Court in tlic above stated writ petition i.e. W.P. No. 1000/2006 and other connectcd matters, the respondent authorities repatriated the petitioners working in tlie RES department posted by way of deputation/transfer by the impugned order dated 30.04.2008 [Annexure P/l to W.P.(S) No. 2707/2008]. Beiiig aggrieved, the petitioners have filed this batch ofpetitions. W.P(S) No. 6340/2007, this petition is filed by Shri A.K.Mishra, Sub Engineer, working in RES Department, seeking a relief that tlie respondents/State may be directed not to post any official on deputation/absorption/transfer in the RES department on the post ofAssistanl Engineer or Sub Engineer from Water Resources Department or any otlier department. It is further prayed that the Departmental Promotion Committce meeting may be directed to be held to consider the cases ofpromotion ofSiib Engineers to the post ofAssistant Engineers in the RES Department. Leamed counsel appearing for the petitioners submit that the order datcd 14.7.2006 [Annexure P/4 to W.P.(S) No. 2707/2008] dealt with existing posts of RES Department and the same shall not be applicable to all tlic officers working in the RES department. There are more than 100 engineers working and the govemment has picked up only 15 sub Engineers Ibr canceling the deputation and repatriating them to the parent department i.c. Water Resources Department. This pick and choose method applied by llic State Govemment is arbitrary and unreasonable. The order dated 14.7.2006, passed by this Court was wrongly interpreted by the authorities, as this Coiirt 6. never directed for repatriation of all the Sub Engineers including tlie petitioners, working in the RES department to the parent department i.c. Water Resources Department. The petitioners have been workingprior to 14.7.2006, when the statement was made by the State Government not to depute/transfer or appoint any officer in RES department from the Waler Resources Department and other departments. The consent of Water Resources Department, while repatriating the petitioners to the Waler Resources Department, was not taken. This system was taken to accommodate certain favourite employees on the post. Thus, it is arbitrary and unreasonable. While transferring/allocating/deputing the petitioners in the RES Department, it was a clear understanding that their ser^ices woijld be absorbed in the RES department. Now the State cannot take contrary staiul and cancel the appointment of the petitioners in the RES department by repatriating them to the parent department i.e. Water Resources Departmeiit. Thus, the impugned order dated 30.04.2008 deserves to be quashed as illegiil, improper, arbitrary and unreasonable. Shri Majumdar, leamed counsel appearing for the petitioner in W.P.(S) No. 6340/2007, per contra, would submit that the order dated 14.7.2006 passed by this Court in W.P. No. 1000/2006 and other connected matters is very clear that no officers from other departments may be posted on deputation/absorption or transfer in RES Department. Thus, this Court mny direct the respondent/State not to post any officers from other department 011 the post of Assistant Engineer or Sub Engineer in RES department and ns i' l^- 8. observed in the order dated 14.7.2006, the respondent/State be directed to convene Departmental Promotion Committee for considering the promotion of Sub Engineers of the RES Department to the post of Assistant Engineers in the Department. Shri Y.S.Thakur, learned Deputy Advocate General appearing for tlie State/respondents would submit that the State authorities have not mis" understood or mis-interpreted the order dated 14.7.2006 passed in W.P.No. 1000/2006 and other connected matters. The order dated 14.7.2006 is in accordance with the policy taken by the State Govemment not to post aiiy officer from other department in the RES department on the post of Siib Engineers or Assistant Engineers. The petitioners except in W.P.(S).No. 6340/2007 have permanent lien in the Water Resources Department and thcy cannot claim as a matter ofright continuation or regular posting in any otlicr department including the RES department, even ifthe consent has been takcii from both the department and the concerned employee. The RES Department comes within the department ofPanchayat and Rural Development. According to the policy ofthe State Govemment, an employee can be sent on deputation for a minimum period of frwo years, which can be extended lor further period oftwo years with the consent ofboth the departments and 1:1 ic concemed employee. The petitioners, who were sent on deputation to tlie RES Department in the year 1999-2000 have completed more than six yeor.s and their cases are being considered for repatriation to the parent departmenl i.e. Water Resources Department. The contention ofthe petitioners that therc 10 9. was an understanding that the services of the petitioners sent on deputation/transfer/allocation would be absorbed, is not based on any material as no order of absorption of any of the petitioners or any other employee has been passed by the RES department. The vacant posts in RI^S department are being filled up by regular appointment, not by way of deputation/transfer/allocation. In the process of recruitment, 34 Assistant Engineers have already been selected by the State Public Service Commission [Annexure R-1/6) to W.P.(S) No. 2707/2008] and out ofthem, 10 candidate have been given appointment orders also [Annexure R-1/7) to W.P.(S) No. 2707/2008]. The allegation ofpick and choose by electing only petitioners is also without any basis as the process has already started and all the employees working in RES Department, who have completed 2/4 years, would be repatriated back to the parent department and the same would be filled up by regular appointment. It is further submitted that 59 posts of Assistant Engineers have been filled up by promotion [Annexure R-1/9 to W.P.(S) No. 2707/2008] . The persons appointed in their places by way of' promotion or direct selection have not been impleaded as party-respondents, thus, these petitions deserve to be dismissed on the ground ofnon-joinder of parties also. I have heard learned counsel appearing for the parties, pemsed the pleadings and documents appended thereto. The order dated 14.7.2006 was passed on the basis of statement made by leamed counsel appearing for the State/respondents. The statement made earlier and today is very clear that all 11 the persons posted in RES Department on deputation/transfer/allocation would be repatriated to the parent department i.e. Water Resourccs Department, who have completed 2/4 years of ser^ice on deputation. The State authorities have not interpreted the order dated 14.7.2006 wrongly as the order was passed on the statement made by the State-authorities. 10. The law ofdeputation is very clear. Hon'ble the Supreme Court in the matler ofState ofPunjab and others Vs. Inder Singh and others while considering the deputation and repatriation to the parent cadre/department on expiry of period ofdeputation held as under :- "18. The 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 eamed promotion in his parent department as per the Recmitment Rules. Whether the transfer is outside the normal field pf deployment or not is decided by the authority who colitrols the ser^ice 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............/9 (1997) 8 SCC 372 12 11. Hon'ble the Supreme Court in the case of Umapati Choudhary Vs, State of Bihar andanother has defined 'deputation' in the following terms:- "Deputation can be aptly described as an assignment of an employee (commonly referred to as the deputationist) of one department or cadre or even an organization (commonly referred to as the parent department or lending authority) to another department or cadre or organization (commonly referred to as the borrowing authority). The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision ofthe employer to lend the services of his employee and a corresponding acceptance of such sen^ice by the borrowing employer. It also involves the consent of the employee to go on deputation or not." 12. Further, in the matter of Kunal Nanda v. Union of India and another3, tlie Supreme Court held as under: "6....The basic principle underlying deputation itself is that the person concemed can always and at any time be repatriated to his parent department to serve any substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation...." 13. The Supreme Court in the case ofPrasar Bharti & Ors. V. Amarjeet Singh & Ors4 held as under:- "IS.There exists a distinction befrween 'transfer' and 'deputation'. 'Deputation' connotes service outside the cadre or outside the parent department in which an employee is serving. Transfer\ however, is limited to equivalent post in the same cadre and in the same ' (1999)48.c.c. 659 3 (2000) 5 SCC 362 4AIR 2007 SC 1269 <^^ department. Whereas deputation would be a temporary phenomenon, transfer being antithesis must exhibit the opposite indications." 14. The circular dated 02.12.1988 dealing withthe period of deputation which has been considered in the matter of Radhe Lal Nag v. Govemment ol' Chhattisgarh and others [WP(S) No. 3997/2007] decided on 27.3.2008 reads as under: ".....2. yRlPl^ftd ^T ^PR 4TTcT ^ 3rTTETR ^R ^t^ ^ ^dM^I-ld 'cTqFT f^ 'Irt czrf^xT ^f ^^P? ^FT ^ ^^T ^t ^f ^ f^P? cft ^rpft ^rrf^i ^n? sralSf ^t^ff ^i^iT ^t ^i^^iRi ^ ^cr Pidi<b^ 'cfR ^t ?ra» ^r^ ^TT '^Tft ^ ^ f^ft a»ft ^ldd ^' TrRiPi^Rxi ^? "cTR ^ ^t sra^r ^ ^^^i-^ ^4^? ^<c^4-^ ^ft ^. <ftlPi<P f^TPT ^ ^W^H 3rT^Tfr^T VT^ ft^ f^TT ^' ~^3l ^nr^ l ^ ^WRT yRiPi^Rxi wn ^rer^ ^ 9^?Trr ^t ^r^fSr WRT(<T ^t^ ^ ^fr=T Trr? ^ W^^> f^mT ^t y^ii^c^^ 31^1^-1 ^ ^4^1-d ^PT^ ^f^ft^T ^ ^ll^l^^ ^W ^t STSRR li)441'y ^^Rxicfr ^Kdt ^ w^r 4^ ^JTT^' I......" 15. Applying the well settled principles of law on deputation to the facts of the case, continuation of the employees on deputation or repatriation on completion of deputation period does not depend on their consent. Afler completion of minimum period of deputation, the petitioners/employee may be repatriated back to the parent department. In case ofthose petitioners, who have not completed frwo years service, the State authorities may considcr their cases separately and pass appropriate order in the light of the policy decisions ofthe State Govemment. 16. In view of the foregoing and for the reasons mentioned hereinabove, no interference is warranted with the order dated 30.04.2008. Accordingly, all the petitions being Writ Petition (S) Nos. 2607/2008, 2608/2008, 2609/2008, 14 2707/2008, 2708/2008, 2710/2008, 2816/2008, 2950/2008, 2951/2008 and 3299/2008 are dismissed. 17. In light ofthe above judgment and order, W.P.(S) No. 6340/2007, stands disposed of. Costs easy. — Sd/- Satish K.Agnihotri Judge Amit