IN THE HON'BLE HI6H COURT OF CHHATnS6ARH AT BILASPUR (C.6.) WRFT PETTTION fS.) N0. 6lC) /2010 g^y PETCTtONER ^/ / \?-- ,v^^v' ^^w ,.^-<(b.-- •»/ f.y t?-' RESPONDENTS S.S. Kanwar, aqed about 50 years, Son of Late. Ram Bharos Kanwar, at present workinq as a "Sub Division Officer", Forest Sub Division Pendra, AAarwah.i Division, Pendraroad, District Bilaspur VERSUS ^"" . ' • ' 1. Stateof Chhattisgdrh, Through : The Secretary, Forest Department, D.K.S. Bhawan, Raipur (C.6.) 2. Principal Chief Conservator of Forest, Raipur (C.6.), 3. ' Managing Director, C.G. State Laghu Vanupaj, Raipur (C.G.), 4. / Divisional Forest Officer, Forest &ivision Pendraroad; Marwahi, District- Bilaspur(C.G.), •^ . ' ' 5. t)ivisional Forest Officer, Forest bivision Dharam.jaiqarh, District - Raiqarh (C.6,), 6. R. P. Tiwari, Superintend Badalkhol, Century, Bagicha, District - Jashpur (C.G.). WRIT PETmON UNDER ARTICLE 226 OF THE CONSTI- TUTION OF INMA FQR ISSUANCE OF APPROPRIATE WRIT OR MANDAMUS/CERTIORARI.ORDER/ORbERS. &IRECTION/ &IRECTIONS rrc. SS!6 i'L^tt^ 1 M 'l^is.»a-,l*3!5 ^? HIGH COURT OF CHHATTISGARH. BILASPUR SINGLE BENCH : HQN'BUS^HR! MANLNDRAMOHAN SHRIVASTAVA,J, PETITIONER RESPONDENTS Writ PetitlonJS) No.610/2010 S.S.Kanwar Versus State of Chhattisgarh & others O R D ER POST QN }7_ 'AUGUST, 2010 Sd/- Manindra Mohan Shrivastava Judge ^.&s HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH : HON'BLESHRI MANINDRA MOHAN SHRFVASTAVA,J. PETITIONER RESPONDENTS Writ Petition (S) No.610/2010 S. S. Kanwar Versus State of Chhattisgarh 8s others Appearance: Shri Vishnu Koshta, counsel for the petitioner. Shri V.V.S. Murthy, Dy. Advocate General with Shri Satish Gupta, Govt. Advocate for the State/respondents No. 1, 2, 4 & 5. Shri N. Naha Roy, counsel for respondent No.6 O RDER (Passed on /?•.08.2010) 1. Heard on I.A.No.2, application for taking documents on record. 2. On due consideration, the application (I.A.No.2) is allowed. Documents are taken on record. 3. Before proceeding to decide the issue involved in this petition, it be noted that in this case, parties, except respondent No.3 are represented. On 16.3.2010, case was directed to be listed for final disposal. 4. The issue arising for consideration in this petition is as to whether the petitioner could be sent on deputation without his consent. 5. Facts necessaiy for decision of the present case are that the petitioner was initially appointed as Forest Ranger vide order dated 1.7.1981 in 't',-: )' -2- the Departinent of Porest within the State of Madhya Pradesh. After re- organization of State under Madhya Pradesh Reorganization Act, 2000, petitioner opted and was allocated to the State of Chhattisgarh. Vide order dated 4th February, 2007 (Annexure P-l), petkioner was promoted to the post of Assistant Conservator of Porest and was sent on deputation to District Union Raigarh Chhattisgarh Rajya Laghu Vanopaj Sangh (hereinafter referred to as "SangH'}. In course of time, the petitioner was posted as Sub Divisional Officer, Pendra, Division Marwahi in the Forest Department where he continued until impugned order dated 4.2.2010 (Annexure P-2) was passed by which the petitioner was transferred from the post of Sub Divisional Officer, Pendra, Marwahi to Deputy Managing Director, District Union Dharamjaigarh. Petitioner submitted a representation on 5.2.2010 (Annexure P-3) submitting that while he was continuing as Sub Divisional Officer in the Forest Department, he has been transferred to District Union Dharamjaigarh under the Sangh without his consent and he never gave any consent either orally or in writing for lending his service on deputation to the Sangh. 6. The only ground urged by learned counsel for the petitioner is that by the impugned order, petitioner has been sent on deputation from his parent department i.e. Forest Department to a Society namely Chhattisgarh Rajya Laghu Vanopaj San.gh without his consent. Learned counsel for the petitioner referred to by-law of the Sangh placed on record as Annexure D-1 by respondent No.6 to contend that the aforesaid Sangh is a Society registered under M.P./C.G. Co-operative Societies Act, 1960, which performs the functions of collection and disposal and other allied activities relating to forest produce. The -3- Society has been constituted with the avowed object of abolishing contract systein and for the larger benefits of tribals and villagers who are engaged in the work of collection of forest produce. It is submitted that though the said Society is an agency and instrumentality of the Governinent, nevertheless, it has a juristic personality of a Society, which is a body corporate. Learned counsel for the petitioner refers to various orders passed by the Government from time to time on 7th July, 2008 8s 30U1 June, 2009 (Annexure D-3) to contend that a perusal of all these orders would show that officers of Forest Department are sent on deputation to the Sangh, as it is ex-cadre posting. Learned counsel for the petitioner, therefore, contends that such a posting outside his cadre i.e Assistant Conservator of Forest in the Forest Department, to any post under Sangh could not be done without his consent. Learned counsel for the petitioner relies upon the decision of the Supreme Court in the case of Prasar Bharti & Ors. Vs. Amarjeet Sineh & Ors1. 7. On the other hand, submission of learned counsel for respondents No. 1, 2, 4 8s 5/State is that it is a case of transfer and not deputation. It is submitted that the Sangh is a body which is wholly controlled by the Government and, fherefore, in view of the provision contained in proviso to F.R. 110 (a), there is no requirement of obtaining consent of the petitioner. 8. Submission of learned counsel for respondent No.6 is that though the Sangh is separate from Forest Department, but as the same is wholly owned and control by the State Government, therefore, in view of the AIR 2007 SC 1269 ,,->;,lV;c^_ ^ff-^ "^ '•;'t. tji K^.tfiijiBgl;), [t I KS33vss'!Ss § ii ^' f v^^1 '''SlBsars'J1'' -4- provision contained in proviso to F.R.110 (a), no consent is required for transferring the petitioner from his cadre of Assistant Conservator of Forest in Forest Department to the post of Deputy Managing Director, District Union of the Sangh. Referring to the by-law and the constitution of the Sangh, it has been argued that the Sangh is wholly owned and control by the Govemment and, therefore, it is not a case of deputation at all, but merely a case of transfer and even assuming it to be a case of deputation, no consent is required in view of the provision contained in Fundamental Rules. 9. I have considered the rival submissions made by learned counsel for the parties and perused the records. 10. From the averment made by the respondents in their return and perusal of the by-law of the Sangh, which have been placed on record as Annexure D-1 by respondent No.6, it is clear that the Sangh is a Cooperative Society registered under M.P./C.G. Cooperative Societies Act, 1960. The Sangh is engaged in the work of collection and disposal and other allied activities relating to forest produce. The Sangh has been constituted with the object of abolishing contract system and to ensure payment of proper remuneration to the tribals and villagers engaged in the work of collection of forest produce. Thus, it is a cooperative movement. From the constitution, duties and functions as contained in the by-laws, it cannot be disputed that the Sangh is an agency and instrumentality of the State Government. For the purposes of discharge of various functions, for which the Society is undertaken, the officer of the Forest Department are placed at the disposal of the Society. -5- •^v^ 11. It is, therefore, clear that forest posts borne in the establishment of the Society, including the post of Deputy Managing Director, are posts outside the cadre of Assistant Conservator of Forest in the Forest Department of the State Government. The impugned order has the effect of transferring the petitioner to an ex-cadre post of Deputy Managing Director under the Society i.e. Chhattisgarh Rajya Laghu Vanopaj Sangh, which clearly amounts to deputation and cannot be termed as simple transfer, as has been painted by the respondents. 12. In the case of State of Puniab 6t Ors. Vs. Inder Sineh & Ors.2 , the Supreme Court has dealt with the concept of deputation and it has been held as under :- "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 siraple 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 the Recruitaiient Rules. Whether the transfer is outside the norinal 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 (1997) 8 SCC 372 -6- 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. In the case of Uinapati Choudhary Vs. State of Bihar and another3, the Suprenie Court explained the meaning of the word "deputation" in following words : "8. Deputation can be aptly described as an assignraent of an employee (commonly referred to as the deputationist) of one department or cadre or even an organisation (comraonly referred to as the parent departraent or lending authority) to another department or cadre or organisation (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 of the employer to lend the services of his eraployee and a corresponding acceptance of such services by the borrowing employer. It also involves the consent of the employee to go on deputation or not. ..... 14. It is thus seen that where a person is sent outside his cadre to which he substantively belongs, to another post which is outside his cadre, it would amount to deputation. It has been clearly held by the Supreme Court in the aforesaid decisions that the deputation involves consent of the borrowing and lending department, as also the employee who is sought to be sent on deputation. The distinction between transfer and deputation was explained by the Supreme Court in the case of Prasar Bharti (supra) in following words: (1999)4 SCC 659 -7- "13. There exists a distinction between "transfer" and "deputation". "Deputation" connotes seryice 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 department. Whereas deputation would be a temporary phenoraenon, transfer being antithesis must exhibit the opposite indications." 15. The submission of leamed counsel for the respondents that as the Sangh is wholly owned and controlled by the Government, the consent of the petitioner would not be necessary in view of the provision contained in proviso to F.R. 110 (a), requires consideration. The said provision is reproduced as under: "F.R. 110. Authorities competent to transfer a Government servant to foreiga 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 Govemment servant to the service of a body, incorporated or not, which is wholly or substantially owned or controlled by the Government" [Proviso added by F.D. Notification N0.1503-R-149-IV-R-I, dated 18.6.1960] 16. A perusal of the aforesaid provision shows that the proviso has been added by Finance Department Notification No. 1503-R-149-IV-R-I, dated 18.6.1990. Fundamental Rules having been made in exercise of statutory powers under Section 96 B of the Government of India Act, 1919 has statutory force. Article 313 of the Constitution of India being relevant in order to deal with the status of Fundamental Rules framed as above is reproduced as below:- y.-:-:-."Ss. % ^S*sS% j i T"JJ ''^SES-''/'? "iis!»aaS^'r' "313. Transitional provisions.—Untilother proyision is made in this behalf under this Constitution, all the laws in force immediately before the comraencement of this Constitution and applicable to any public service or any post which continues to exist after the coinmencement of this Constitution, as an all-India service or as service or post under the Union or a State shall continue in force so far as consistent with the provisions of this Constitution." Under the Constitution, the Union and the State legislature have power to make laws to regulate respective services under the Union and the State Government. What Article 313 provides is that until such laws are raade, the existing law relating to service shall continue to be in force, provided they are not inconsistent with the provision of the Constitution. The words "until other provision is made" refer either to an Act or the Rules framed by the Govemor in exercise of powers conferred under proviso to Article 309 of the Constitution of India. Therefore, in view of provision contained in Article 313 of the Constitution of India, "laws in force" include the Rules framed under statutory powers, including Rules framed under Section 96 - B of the Government of India Act, 1919 continuing to remain in force by virtue of Section 276 of the Government of India Act, 1935. The aforesaid conclusion are drawn by this Court relying upon the decision in the case of Shyamlal Vs. State of Uttar Pradesh and another4, Pradyat Kumar Bose_Vs^ThejIon'ble Chief Justice of Calcutta High Court5, and also decision of the High Court of Orissa in the case of Baishnab Patnaik and others Vs. The State6. \ 4 AIR 1954 SC 369 s AIR 1956 SC 285 6 AIR 1952 Orissa 60 -9- if' S ^ t f 17. However, reading of the aforesaid provision of F.R. 110 (a) shows that the proviso to clause (a) has been added by Finance Department Nodfication dated 18.6.1990. Thus, the addition ofproviso is neither by a legisladve enactment nor in exercise of power conferred under proviso to Article 309 of the Constitution of India by the Governor. In the absence of any other material placed before this Court by respondents, that the inclusion of proviso was in exercise of powers under statutoiy enactment or Constitution, the proviso seems to have been added in purported exercise of executive powers under Article 162 of the Constitution of India. Therefore, what transpires from the examination of aforesaid legal and factual position is that though clause (a) of F.R. 110 has statutory force, the proviso added by way of executive instructions by Finance Department Notification dated 18.6.1960 is merely executive in nature and does not have the force of law. 18. There is no material placed on record by the respondents to demonstrate that there exists any provision under any legislative enactment of the State or in the statutory rules framed by the Governor in exercise of powers conferred under proviso to Article 309 of the Constitution of India to come to the conclusion that no consent of the Government servant would be necessary in case of deputation to foreign service. Though the executive power of a State is co-extensive with the legislative power of the State to make laws, such power could be exercised only for filling the gaps where the rules are silent, but not contray to the provision of any law for the time being in force including statutory rules. The proviso is in direct conflict with and wholly inconsistent with the provision contained in clause (a) of F.R. 110. It is -10- \ cleariy contrary to the provision that no Govt. servant can be transferred to foreign service against his will. 19. Until a contrary provision is made by any legislative enactment or under proviso to Article 309 of the Constitution of [ndia or Fundamental Rules itself are amended in exercise of such power, the provision contained in clause (a) ofF.R.110 continue to remain in force and are not liraited or restricted by the proviso which is merely an executive instruction. 20. In view of the aforesaid discussions, I am of the considered opinion that the impugned order dated 4.2.2010 (Annexure P-2) by which the petitioner has been sent on deputation to a Society, a foreign service, outside his cadre, without his consent and against his will, is illegal and unsustainable in law. Consequently, impugned order dated 4.2.2010 (Annexure P-2) is hereby set aside. 21. Petition is accordingly allowed. 22. No order as to costs. 'raveen Sd/- Manindra Mohan Shnvastava Judge