IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP Nos. 2634 and 2903 of 2009 Date of Decision: 19th August, 2010 __________________________________________________________ CWP No. 2634 of 2009 Mohar Singh & others ….Petitioners. Versus State of H.P. & others ….Respondents. CWP No. 2903 of 2009 Devinder Singh ….Petitioner. Versus State of H.P. & others ….Respondents. __________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. __________________________________________________________ CWP No. 2634 & 2903 of 2009 For the Petitioners: Mr. Bhuvnesh Sharma, Advocate with Mr. Ramakant Sharma, Advocate. For Respondents No.1 to 3: Ms. Ruma Kaushik, Addl. Advocate General with Mr. R.K. Thakur, Asstt. Advocate General. For Respondent No. 4: Ms. Monika Singh, Advocate. __________________________________________________________ Dev Darshan Sud, J (oral). Both these writ petitions are being disposed of by a common order as they arise out of the same cause of action. 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes. 2 2. It is undisputed before me that the petitioners, who invoke the writ jurisdiction of this Court, are the employees of the Himachal Pradesh State Cooperative Milk Producers Federation Limited, respondent No. 4. A decision was taken by the Board of Directors of respondent No.4 to deploy the petitioners and others on secondment basis with respondent No.1. Consequently, the petitioners and other twenty employees were sent to the Department of Fisheries where they have to discharge their duties. 3. The petitioners are aggrieved by the order passed by the Directorate of Fisheries, Himachal Pradesh, which is Annexure P-12 in CWP No. 2634 of 2009, by which they have been permanently absorbed in the department of Fisheries, Himachal Pradesh against various posts. 4. The case of the petitioners in a nutshell is that by sending them on secondment, respondent No.4 could not create a new relationship of master and servant. 5. In reply, respondent No.4 states that a decision was taken by the Board to place the services of the petitioners and some other employees holding various posts at the disposal of Fisheries Department. Resolution No. 1082 of 2003 has been passed by the Board approving such secondment. One of the conditions for the secondment was that the consent of employees should have been obtained. 6. The stand of the Government is that the petitioners were sent on secondment basis by a decision Annexure R-IV which is as under: “No. AHY-B(15)-17/2007 Government of Himachal Pradesh Department of Animal Husbandry 3 From The Pr. Secretary (AH) to the Government of Himachal Pradesh, Shimla-2 To The Secretary (Fisheries) to the Government of Himachal Pradesh,\ Shimla-2 Dated: Shimla-2, the 20-2-2009 Subject: Regarding permanent absorption of Employees of HP Milk Federation in the HP Fisheries Department. Sir, I am directed to refer to your letter No. Fish- A(1)-I/2002 dated 2-1-09 on the subject cited above and to say that the employees of HP Milkfed, sent on secondment basis to HP Milkfed, as per decision taken in the review meeting held on 2-12-2003 is quite clear that the posts in the donor department/federation will be abolished and hence the said employees can not be repatriated to parent organization at such a belated stage, however, they are required to be absorbed in the borrowing department i.e. the Fisheries Department. You are, therefore, requested to please issue necessary directions to quarter concerned to implement the decision taken in the meeting held on 2-12-2003 in letter & spirit. (This has the approval of the Hon’ble Chief Minister.) Yours faithfully, Sd/- Deputy Secretary (AH) to the Government of Himachal Pradesh Endst. No: As above Dated: Shimla-2, the 2009 Copy forwarded for information & n.a. to: 1. The Managing Director, HP Milkfed, Totu, Shimla-11. Sd/- Deputy Secretary (AH) to the Government of Himachal Pradesh” 4 Since the posts in the Federation, respondent No. 4, had been absolished, the services of the petitioners were taken over by the Fisheries Department subsequently, on 3.6.2004. The petitioners are aggrieved by this order and they have challenged it on the basis that their consent had not been obtained. 7. I am unable to find out as to what is the exact nature of secondment nor has any law been cited before me on this aspect of the case. It is well settled that merely sending an employee on deputation cannot establish relationship of master and servant. Learned counsel appearing for the petitioner refers to the decision in State of Punjab & others vs. Inder Singh and others (1997) 8 SCC 372 holding: “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 earned promotion in his parent department as per the 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 5 deputation or 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.” (at p.p. 384 &385) This is the settled law. The grievance of the petitioner in these petitions is not only that secondment has no established concept in law but if treated at par with deputation they have to be repatriated to their original/parent cadre and the deputation in the Fisheries Department is against the law. They submit that by sending a person on deputation the bond of master and servant is not snapped. The State pleads that once they have been absorbed in the department of Fisheries, the petitioners have no right which they can urge before this Court. 8. Taking into consideration the facts and circumstances of the case, I hold that Annexure P-12, which has been issued unilaterally, cannot treat the petitioners as employees of the Fisheries Department and they should and ought to have been repatriated to the Milk Federation. This is more so in view of the fact that they were not inducted afresh into the Fisheries Department, but they were all along the employees of the Milk Federation. Even if their secondment is to be treated as deputation, I do not find the element of consent for absorption in the Fisheries Department by the petitioners. The order Annexure P-12 in so far as it relates to the petitioners, is accordingly quashed and set aside. Necessary consequences shall ensue. No order as to costs. Both the petitions are disposed of. August 19th, 2010 (Dev Darshan Sud) (ms) Judge