c ... ^ IN THE HIGH COURT OF JUDICATURE AT_BLLASPUR CHHATTISGARH W.P. No.2-^2L^2Q06 PETITIONER ^•^ /<<T/rf ^><^-7'.- ^"^y"^' sf .^' d^. <\' ^''.^ ^y^' ^\®°^...••' R^''PONDENTS ^T^t^ ^y ^ /< Mohd.Farhan Qureshi, S/o Hazi A.R.Qureshi, Presently working as Sub-lnspector, Transport, Aged about 38 years, R/o S-4 Adarsh Nagar, Durg (C.G.) VERSUS 1. 'State of Chhattisgarh - Through the Secretary, Home Department, D.K.S. Bhawan, Raipur(C.G.) 2. Director General of Police, Police Hd.Qtrs., Raipur(C.G.) / 3. Commissioner of Transport of ,& Chhattisgarh, Raipur (C.G.) 4 Transport Commissioner, Bus Stand, Pandri, Raipur (C.G.) WRITPETIT10NUNDERARTICLE 226/227 OF THECONSTJTUTIQN OF INDIA FOR1SSUANCE OF APPRQPRIATEWRIT, WRITS, ORDER, DIRECTIONS ETC. -^oJ l^A HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition No. 2298 of 2006 AP^ PETITIONER VERSUS Ajay Sharma RESPONDENTS : StateofChhattisgarh&Othets. AND OTHER CONNECTED MATTERS ; K Post for order on ..Lf'. day ofApril, 2008 Sd/- Satish KAgnihotri Judge HIGH COURT OF CHHATTISGARH AT BILASPUR PETITIONER RESPONDENTS Present Writ Petition No. 2298 of 2006 Ajay Sharma, S/o C.L. Sharma, Age 40, Working as Sub- Inspector at Checkpost Bhagatdevri, Distt. Mahasamund (CG). VERSUS 1. State of Chhattisgarh Throiigh Secretary Home (Police) Department, DK8 Bhawaa, Raipur (CG). 2. Transport Commissioner Bus Stand, Pandri, Raipur (CG). 3. Director General of Police, Police Head Quarters Raipur (CG). Shri Rajendra Tiwari, Senior Advocate with Shri Ali Asgar, Advocate for the petitioner. Shri A.S. Kachhwaha, Deputy Advocate General for the State/respondents. PETITIONER RESPONDENTS Present WritPetition No. 2301 of 2006 S.P. Karosia, S/o Late H.R. Karosia, Age 48, Workmg as Inspector at Checkpost Bhagatdevri, Distt. Mahasamund (CG). VERSUS 1. State of Chhattisgarh Through Secretary Home (Police) Department, DKS Bhawan, Raipur (CG). 2. Transport Commissioner Bus Stand, Pandri, Raipur (CG). 3. Director General of Police, Police Head Quarters Raipur (CG). Shri Rajendra Tiwari, Senior Advocate with Shri Ali Asgar, Advocate for the petitioner. Shri A.S. Kachhwaha, Deputy Advocate General for the State/respondents. PETITIONER RESPONDENTS Writ Petition No. 2314 of 2006 L.P. Dwivedi, S/o Chandra Shekhar Prasad Dwivedi, Presently working as Sub-Inspector, Transport, Aged about 52 years, R/o Ganga Nagar, Mungeli Road, Bilaspur (CG). VERSUS 1. State of Chhattisgarh-Through the Secretary, Home Department, DKS Bhawan, Raipur (CG). 2. Director General ofPolice, Police Hd. Qtrs. Raipur (CG). 3. Commissioner ofTransport ofCKhattisgarh, Raipur (CG). 4. Additional Transport Commissioner, Bus Stand, Pandri, Raipur (CG). Present : Shri Rajendra Tiwari, Senior Advocate with Shri Maneesh Sharma, Advocate for the petitioner. Shri A.S. Kachhwaha, Deputy Advocate General for the State/respondents. Writ Petition No. 2315 of 2006 PETITIONER Jodh Singh Saggu, S/o Late Sb-i Mohan Singh Saggu, Presently working as Sub-Inspector, Transport, Aged about 50 years, R/o K Pocket, Qtr.'No. 6-B, Morda Sector, ilsBS RESPONDENTS Bhilai, Distt. Durg (CG). VERSUS State of Chhattisgarh-Through the Secretary, Home Department, DKS Bhawan, Raipur (CG). Director General ofPolice, Police Hd. Qtrs. Raipur (CG). Commissioner ofTransport ofChhaUisgarh, Raipur (CG). Additional Transport Commissioner, Bus Stand, Pandri, Raipur (CG). PETITIONER Present : Shri Rajendra Tiwari, Senior Advocate with Shri Maneesh Sharma, Advocate for the petitioner. Shri A.S. Kachhwaha, Deputy Advocate General for the State/respondents. Writ Petition No. 2318 of 2006 Anil Sharma, S/o Late S.K. Sharma, Aged about 41 years, Presently working as Sub-Inspector, Transport, R/o D-7, P&P Colony, Tagore Nagar, Raipur (CG). VERSUS 1. State of Chhattisgarh-Through the Secretary, Home Department, DKS Bhawan, Raipur (CG). 2. Director General ofPolice, Police Hd. Qtrs. Raipur (CG). 3. Commissioner ofTransport of Chhattisgarh, Raipur (CG). 4. Additional Transport Commissioner, Bus Stand, Pandri, Raipur (CG). Present : Shri Rajendra Tiwari, Senior Advocate with Sb-i Maneesh Sharma, Advocate for the petitioner. Shri A.S. KacKhwaha, Deputy Advocate General for the State/respondents. Writ Petition No. 2320 of 2006 RESPONDENTS PETITIONER RESPONDENTS Suresh Dhruva S/o Shri S. R. Dhruva, Aged about 35 years, Presently working as Sub-Inspector, Transport, R/o At Post Govindpur, Distt. Kanker (CG). VERSUS State of Chhattisgarh-Through the Secretary, Home Department, DKS Bhawan, Raipur (CG). Director General ofPolice, Police Hd. Qtrs. Raipur (CG). Commissioner ofTransport ofChhattisgarh, Raipur (CG). Additional Transport Coimnissioner, Bus Stand, Pandri, Raipur (CG). Present : Shri Rajendra Tiwari, Senior Advocate with Shri Maneesh Shanna, Advocate for the petitioner. Shri A.S. Kachhwaha, Deputy Advocate General for the State/respondents. PETmONER Writ Petition No. 2321 of 2006 T.C. Tatiya, S/o Shri C.L. Tatiya, Aged about 48 years, Presently working as Sub-Inspector Transport, R/o Sector 10, Street No. 45, Qtr. No. 8-B, Bhilai, Distt. Durg (CG). VERSUS ;^-.::^^^^y'^i^^^SSs^ css) RESPONDENTS 1. State of Chhattisgarh-Through the Secretary, Home Department, DKS Bhawan, Raipur (CG). 2. Director General ofPolice, Police Hd. Qtrs. Raipur (CG). 3. Commissioner of Transport of Chhattisgarh, Raipur (CG). 4. Additional Transport Commissioner, Bus Stand, Pandri, Raipur (CG). Present : Shri Ashish Surana, Advocate for the petitioner. Shri A.S. Kachhwaha, Deputy Advocate General for the State/respondents. PETmONER RESPONDENTS Writ Petition No. 2322 of 2006 Mohd. Farhan Qureshi, S/o Hazi A.R. Qureshi, Presently working as Sub-Inspector Transport, Aged about 38 years, R/o S-4 Adarsh Nagar, Durg (CG). VERSUS State of Chhattisgarh-Through the Secretary, Home Department, DKS Bhawan, Raipur (CG). Director General ofPolice, Police Hd. Qtrs. Raipur (CG). Commissioner ofTransport ofChhattisgarh, Raipur (CG). Additional Transport Commissioner, Bus Stand, Pandri, Raipur (CG). Present : Shri Ashish Surana, Advocate for the petitioner. Shri A.S. Kachhwaha, Deputy Advocate General for the State/respondents. PETITIONER RESPONDENTS 1. 2. 3. 4. Writ Petition No. 2323 of 2006 Sanjay Singh S/o Shri R.D. Singh, Aged about 33 years, Presently working as Sub-Inspector Transport, R/o Dalli Rajhara, Distt. Durg (CG). VERSUS State of Chhattisgarh-Through the Secretary, Home Department, DKS Bhawan, Raipur (CG). Director General ofPolice, Police Hd. Qtrs. Raipur (CG). Commissioner ofTransport ofChhattisgarh, Raipur (CG). Additional Transport Commissioner, Bus Stand, Pandri, Raipur (CG). Present : Shri Ashish Surana, Advocate for the petitioner. Shri A.S. Kachhwaha, Deputy Advocate General for the State/respondents. Writ Petition No. 2325 of 2006 PETITIONER RESPONDENTS Bhavesh Sao, S/o Late Shri B.K. Sao, Presently working as Sub-Inspector Transport, Aged about 42 years, R/o 13-B, A-Pocket, Maroda Sector, Bhiali, Distt. Durg (CG). VERSUS State of Chhattisgarh-Through the Secretary, Home Department, DKS Bhawan, Raipur (CG). Director General ofPolice, Police Hd. Qtrs. Raipur (CG). Commissioner ofTransport ofChhattisgarh, Raipur (CG). Additional Transport Commissioner, Bus Stand, Pandri, Raipur (CG). ^r?^^i'@:ffi".^^^^^-i^li®^ ;ii;^^^'JV^;^^,A^^;^i^@%^^^iSX?i^ "p-\, ?. (^3 Present : Shri Ashish Surana, Advocate forthe petitioner. Shri A.S. Kachhwaha, Deputy Advocate General for the State/respondents. PETITIONER RESPONDENTS Writ Petition No. 5886 of 2005 Munna Khan S/o Habib Uddin, Age 49, Working as Constable at Checkpost Bhagatdevri, Distt. Mahasamund (CG). VERSUS 1. State of Chhattisgarh Through Secretary Home CPolice) Department, DKS Bhawan, Raipur (CG). 2. Transport Commissioner Bus Stand, Pandri, Raipur (CG). 3. Deputy Secretary, C.G. Home Department, DKS Bhawan, Raipur (CG). (WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF WD1A) {SB: Hon'ble Mr^Satish K. Aenihotri. J.1 Present : Shri Rajendra Tiwari, Senior Advocate with Shri Ali Asgar, Advocate for the petitioner. Shri A.S. Kachhwaha, Deputy Advocate General for the State/respondents. ORDER (Passed on ...If.'^.day of April, 2008) 1. In this batch ofpetitions, the common question of law involved is asto whether the petitioners, who were sent on deputation to the Transport department can be repatriated in the parent department i.e. Home (Police) department without consent ofboth the parties, before expiry ofthe period ofdeputation. 2. The petitioners, who are Inspectors, Sub Inspectors and Constable, belong to the Home (Police) department. By orders dated 23.07.2005, 29.04.2004, and 21.04.2005, the petitioners were sent on deputation to the Transport department. The period of deputation was two years. According to the petitioners, the petitioners have been repatriated before expiry of the deputation period without there being any allegation of unsuitability against the petitioners, to the parent department. 3. The petitioners have filed these petitions impugning the orders dated 11.11.2005, 8.2.2006 and 09.03.2006 passed by the Home (Police) department and the order dated 28.04.2006 passed by the Additional Transpbrt Commissioner, i.e. the -—f^, [^ borrowing department, whereby the petitioners were posted in the Home (Police) department. 4. The contention of Shri Rajendra Tiwari, leamed senior counsel appearing for the petitioners is that the petitioners were repatriated before completion of two years of deputation. Secondly, the policy ofpick and choose was adopted. Thirdly, the borrowing department i.e. the Transport department has no power to transfer the petitioners and post them in the Police department, without repatriating the petitioners to the Police department. Fourthly, the order of transfer is conto-ary to the transfer policy. 5. Shri A. S. Kachhwaha, leamed Deputy Advocate General for the State/respondents, per contra, submits that it is the privilege of the employer to repatriate back the petitioners, even before completion ofthe period of deputation. Secondly, the orders dated 11.11.2005, 8.2.2006 and 9.3.2006 were passed by the Home (Police) department, whereas the order dated 28.4.2006 was passed by the Transport department in compliance of the order passed by the Home (Police) department. Thus, it should be deemed to have been consented by the parent department as well as the borrowing department. 6. The question of law, as stated hereinabove, came into consideration in the matter ofRadhe Lal Nag v. State Govt. of Chhattisgarh & Others W.P.(S) No. 3997 of 2007, decided on 27.03.2008, wherein this Court, after having examined the circular dated 02.12.1988 dealing with the period ofdeputation, held as under: 6. As per the circular dated 2.12.1988 (Annexure P/3) in normal cases the minimum period ofdeputation is two years, which can be extended for a period of four years. The relevant clause of the circular dated 2.12.1988 (Annexure P/3), reads as under: ".........(2) yRR^RTi ^PT 'EWT ^ra ^ gimrc TR ?r^ ^ ^NT^T "EPR f^t i^f osrf^cT cpt '^cii^ ?pr ^r qnr ^r ci^ c^ -f^ cft ^Tpft •qifS^i 1 1t? '^r'tr 1^*nTff^ '?i?rrf?r ^ fg^ Rcii'tx! f{K 'crf rrai ergT^ •^ •^ic^ift •cr -g^r f^ft "^ ^vKi ^ yRiPiyfcki v{ ^!K ~^ cA sNSr ^ ti4'<i'n sT't? g<w*i^] uft -efi, cblRch f^iTTT c^ -qjT^T ST-FTt^T ijra' f^ f^IT ^T ^37 uIT^ 1 ^ 'wrer yf?iPi^Rhi WPT cisr^ ^- H^PVT ^t sraRr WTRT ?A ^ (TT'T 'qi? ij?T ?PT ? f^TPT ^t y^ll'Hcl?!^ ST-FTt^T ^ '.i4'<l-^ 'g^R ^t^ftcpT cT ^||>HC|?|^ ^fcR? ??T 3RRR •'^•fl'4 Iqf^W 'FR^ft c^ 'ffl'ST '^' utl^ 1 ........" It is further held that the deputationist is entitled to remain for a minimum period of two years from the date of his joining in the borrowing department. The services of the deputationist cannot be repatriated before two years without consent. 7. Hon'ble the Supreme Court Court in fhe matter of State of Punjab and others Vs. Inder Singh and others while considering the deputation and repatriation to the parent cadre/department on expiry ofperiod 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 meanmg 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 of deployment or not is decided by the authority who conta-ols 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............." 8. Hon'ble the Supreme Court in the case of Umapati Choudhary Vs. State of Bihar and another has defined 'deputation' in the following terms:- "Deputation can be aptly described as an assignment ofan employee (conunonly referred to as the deputationist) ofone department or cadre or even an organization (commonly referred to as the parent department or lending authority) to another department or cadre or organization (conunonly referred to as the borrowing authority). The necessity for sending on deputation arises in public interestto meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision ofthe employer to lend the services ofhis employee and a corresponding acceptance ofsuch service by the borrowing employer. It also involves the consent of the employee to go on deputation or not. ' (1997) 8 SCC 372 2 (1999)48.c.c. 659 7 (^ 9. Further, in the matter ofKunal Nanda v. Union oflndia and another , the Supreme Court held as under: "6....The basic principle underlying deputation itselfis that the person concemed can always and at any time be repatriated to his parent department to serve any substantive po^ition therein at the instance of either ofthe 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...." Subsequently, this has been approved by the Supreme Court in the matter of U.P.Gram Panchayat Adhikari Sangh and others v. Daya Ram Saroj and others . lO.The contention ofleamed counsel appearing for the petitioners that the borrowing department i.e. the Transport department has no power to transfer the petitioners is without any basis as the order dated 28.4.2006 passed by the Additional Transport Commissioner was passed in compliance ofthe order dated 9.3.2006, passed by the Home (Police) department. ll.It is well settled principle oflaw that an employee cannot be sent on deputation without his consent but his repatriation does not depend on his consent after completion of deputation period. However, in the case of an employee if his suitability to the post is under question because of misdemeanor or ofher conduct, the borrowing department may repatriate th& employee to the parent department prematurely or parent department may consider to repatriate the deputationist prematurely. 12.For fhe reasons mentioned hereinabove, the respondent authorities are directed to apply the question of law as settled to the facts of each case aad pass appropriate order as the fact of completion of period of deputation is still disputed. These petitions are allowed to the extent tbat the petitioners may be permitted to remain on deputation for a period oftwo years from the date oftheirjoining, and in cases 3 (2000) 5 SCC 362 4 (2007) 2 SCC 138 BgtSSft ;?^?®: 8 |2J ae». ^^!-u^^ " s ^ ^: '•^"'.^ wherein the petitioners have completed two years of deputation period, they may be repatriated back by the respondents without consent ofthe petitioners. 13.Accordingly, the orders dated 11.11.2005, 09.03.2006 and 28.04.2006, are quashed to the extent indicated above. No order as to costs. Sd/- Satish K.Agnihotri Judge Amit/Sahu