IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No. 17118-CAT of 2004 Date of Decision: April 21,2008 Union Territory Chandigarh ...........Petitioner Versus Kamlesh Sharma and another ..........Respondents Coram: Hon'ble Mr.Justice M.M.Kumar Hon'ble Mrs. Justice Sabina Present: Ms.Alka Chatarth, Advocate for the petitioner. Mr.R.K.Sharma, Advocate for the respondents * * * M.M. Kumar, J. The instant petition is directed against order dated 28.7.2004 passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity `the Tribunal') in OA No. 747-CH of 2003. The controversy lies in narrow compass because the only question is whether appointment of applicant-respondent No.1 is in the Government Medical College and Hospital,Sector 32, Chandigarh(for brevity `GMCH') could be regarded as appointment by transfer or by deputation from her parent Education Department U.T. Chandigarh. Briefly facts necessary for the disposal of the instant petition are that the applicant-respondent No.1 was appointed as Clerk in the Education Department on 13.7.1974. She was redesignated as Assistant with effect from 1.1.1986 and confirmed with effect from 30.12.1985. The Director, GMCH issued a circular to all the Heads of CWP No.17118-CAT of 2004 -2- Departments/Institutions/Offices of the Chandigarh Administration, the Director PGIMER and Vice Chancellor Punjab University, Chandigarh calling for applications for appointment to the post of Superintendent Grade II as the posts in the GMCH were to be filled on transfer/deputation basis. The applicant-respondent No.1 being eligible applied for the post of Superintendent Grade II for appointment by way of transfer. The application was through proper channel as the application was forwarded by her parent department on 15.10.1999 which has been placed on paper book of the Tribunal by the petitioner as Annexure R5. She was selected and offered appointment on 30.11.1999 (Annexure P2) as Superintendent Grade II in the GMCH Chandigarh and she was relieved by her parent department on 30.11.1999 itself (Annexure P3) where she has worked as a regular employee till her retirement in February,2008. It is pertinent to notice that her lien in the Education Department was retained till the time she was confirmed on the post of Superintendent Grade II in GMCH with effect from 9.12.1999 by order dated 16.10.2004 (Annexure R1/2). For the reasons best known to the Education Department, a letter was sent by the petitioner, Education Department to GMCH-respondent No.3 calling the applicant-respondent No.1 back to her parent department. In that regard, an order dated 1.8.2003 was passed by the GMCH-respondent No.3. That order was challenged before the Tribunal by filing OA No.747/CH of 2003. The Tribunal after taking into account various aspects have found that the petitioner was appointed by transfer and her status was not that of a deputationist. It is pertinent to mention that the applicant – respondent No. 1 was working under the petitioner, Education Department in the pay scale of Rs.5800-9200 and on her selection to CWP No. 17118-CAT of 2004 -3- GMCH-respondent No.3 , she was given pay scale of Rs.6400-10640. Ms. Alka Chatrath, learned counsel for the petitioner has argued that the applicant-respondent No.1 for all intents has to be treated as deputationst because at the time when the applicant-respondent No.1 was selected for deputation, there was no rule for making appointment by way of transfer. The lien of the petitioner has been kept in her parent department and she could have been lawfully recalled at any time. She has further submitted that according to the rules known as Government Medical College and Hospital, Chandigarh (Group `C' Ministerial Posts) Recruitment Rules, 2002, there is no provisions for appointment by transfer. Mr.R.K.Sharma, learned counsel for the applicant- respondent No.1 has,however, submitted that the judgment of the Tribunal has been followed by the respondent Administration in respect of a large number of employees. Even the another judgment rendered in OA No.246-CH of 2004 (Harjit Singh vs. Union of India and others) dated 10.9.2004 (Annexure R1/1) has been followed for granting benefit to various employees who have been working in the GMCH. They were appointed by transfer from Health, Education, DC Office, Rent Office,Chandigarh Transport Undertaking, Industries etc. After hearing the learned counsel for the parties and perusing various documents on record, we are of the considered view that there is no merit in the instant petition because from the facts and circumstances, it cannot be concluded that the petitioner was not appointed by way of transfer. It would be beneficial to make a reference to the terms and conditions of appointment of the applicant- respondent no.1 and the CWP No. 17118-CAT of 2004 -4- relieving order issued by her parent department which reads as under: “Terms and Conditions of appointment of applicant: Smt. Kamlesh Sharma w/o Sh.V.K.Sharma of the office of the Director Public Instructions(C), UT, Chandigarh is selected as Superintendent Gr.II in the pay scale of Rs.6400-10640 in Government Medical College and Hospital, Chandigarh on transfer basis with immediate effect (emphasis supplied). She will have the option either to get her pay fixed in the deputation post under the operation of the normal rules or to draw pay of the post held by her in her parent cadre. She will be on transfer basis initially for a period of one year which is extendable on the basis of evaluation of her performance. She will be governed by the Rules and instructions applicable to the employees working in the Chandigarh Administration. However, her lien will be retained with her parent department under rules. She should join the Govt. Medical College Hospital, Chandigarh within two weeks from the date of issue of this order. RELIEVING ORDER Consequent upon the selection of Smt. Kamlesh Sharma as Supdt.Gr. II in the scales of Rs.6400-10640 in Govt. Medical College,Sector 32, Chandigarh, vide their letter No. 54221-36 dated 30.11.1999 on transfer basis, she is hereby relieved of her duties w.e.f 09.12.1999 (F.N.) Her lien will be retained in this Department as provided CWP No. 17118-CAT of 2004 -5- under rules being confirmed employee.” (Emphasis supplied) A perusal of the afore-mentioned order shows that the petitioner has been given the option either to get salary fixed on the deputation post or to draw pay of the post held by her in her parent cadre. It has further been provided that she was to work on transfer basis for a period of one year and her lien was to be retained with her parent department as per rules. Accordingly she was relieved. The applicant- respondent no.1 is not covered by the expression 'deputation' as defined in Rule 10(21)(1)(i) of the Civil Service Rules, Volume I, Part I, which reads thus: “10.21(1)(i) The terms `deputation' covers only appointment made by transfer on temporary basis. Appointments of Government employees made either by promotion or by direct recruitment in competition with candidates from open market, whether on a permanent or temporary basis shall not be regarded as deputation. Similarly, permanent appointments made by transfer shall not be treated as deputation. (ii) The transfer of an employee from one department to another department under the Punjab Government will not be considered as deputation and no deputation allowance will be admissible.” It is evident that the term 'deputation' is distinct from 'appointment by transfer'. The transfer of an employee from one department to another under the same Government is not to be considered as deputation and no deputation allowance is admissible in such an event. We are further CWP No. 17118-CAT of 2004 -6- of the view that the retention of lien in the Education Department was not with the object of treating the petitioner on deputation but the same is natural result which emanates from the rules. An employee who is appointed by transfer has to retain his/her lien till such an employee is confirmed in the transferred department. In case of deputation there is no question of retention of lien because it is for temporary period that an employee is sent to another department. The basic reason for retention of lien is that in case an employee is not able to successfully complete his/her period of deputation then such an employee may come back to his parent department where he/ she has confirmed lien on a post. It is in this regard that a letter dated 28.3.2003 assumes significance and the same reads as under: “You have been appointed as Superintendent Gr. II in GMCH, Chandigarh w.e.f. 09.12.1999 on transfer basis from the O/o Director Public Instructions, UT, Chandigarh. You are hereby asked to confirm whether you want to acquire the lien on the post presently held by you in GMCH, Chandigarh or otherwise, in case, you want to acquire the lien on the post presently held in GMCH, you should exercise your option in this regard in the enclosed format, immediately, but not later than 31.03.2003 failing which further action as deemed fit will be taken” The Tribunal has further taken into account the impugned order dated 1.8.2003 to show that the applicant- respondent no. 1 was working on transfer basis. The afore-mentioned fact is also evident from letter recalling the applicant- respondent no.1. Both these letters read thus: CWP No. 17118-CAT of 2004 -7- “ On the request of the Director Public Instructions(C), Chandigarh Administration,as conveyed vide Memo No.DPI- UT-AD.I-10(8) 87 dated 31.07.2003, Ms. Kamlesh Sharma presently working as Superintendent Grade II in Government Medical College, Chandigarh, on transfer basis form the Education Department, Chandigarh Administration, is hereby repatriated to her parent department, with immediate effect. She is directed to report to the Director Public Instructions (C), Chandigarh Administration, for further posting. Sh.Harjit Singh, Superintendent Grade II, Procurement Branch I will hold the additional charge of Superintendent Hospital Administration Branch II, in addition to his own duties”. (Annexure A-1) Letter dated 31.7.2003 recalling the applicant: “Continuation this office letter No. DPI-UT-Ad.I-10/8/87 dated 22.7.2003 regarding recalling of one of the officials from your institute. It is intimate that Smt. Kamlesh Sharma, Sr.Assistant working as Supdt. in the institute may please be sent back to this office immediately as there is already shortage of staff. The letter already issued vide letter No.DPI-UT-Ad.I-10(8)87 dated 30.07.2003 is hereby superceded.” On the basis of the afore-mentioned facts, the Tribunal has recorded a categorical finding that by no stretch of imagination the petitioner could have been considered as a deputationist. It has further been rightly held that CWP No. 17118-CAT of 2004 -8- the circular issued by the Medical Superintendent shows that the various posts were being filled on the basis of transfer/deputation. The applicant- respondent No.1 was subjected to selection process. In the process the petitioner competed with other candidates who have applied from other departments which does not happen in case of deploying an employee on deputation. The application of the petitioner was forwarded through proper channel and she was duly relieved of her duties to join her new post on 30.11.1999. Moreover, applicant-respondent No.1 has been confirmed on the post of Superintendent Grade II with effect from 9.12.1999 vide order dated 16.10.2004 (Annexure R1/2). Accordingly, she has been confirmed on the post of Superintendent Grade II with respondent No.3. There is, thus, no ground to differ with the view taken by the Tribunal. Therefore, the writ petition fails and the same is dismissed. ( M.M.Kumar ) Judge ( Sabina ) Judge April 21, 2008 arya