Mahesh Kumar Sharma vs State of Chhattisgarh and Others

Hon''ble Shri Satish K Agnihotri J.

Challenge in this petition is to the order dated 15.12.2011 (Annexure P-1), whereby, deputation of the petitioner to the office of the Chief Information Commissioner, has been withdrawn and the Secretary, Chhattisgarh State Information Commission, has repatriated back the services of the petitioner to the parent department i.e. Water Resources Department.

Shri Shrivastava, learned counsel appearing for the petitioner submits that the services of the petitioner was taken on deputation from the Water Resources Department to the General Administration Department by order dated 25.07.2009. Thereafter, on 02.02.2010, he was sent on deputation to the Chhattisgarh State Information Commission.

Shri Shrivastava, further submits that the impugned order suffers from infirmity on three counts; firstly, it was not passed by the competent officer, secondly, the well settled guidelines of repatriation without information to the parent department and the persons concerned, have not been followed and thirdly, before completion of two years of his deputation, his services has been returned back to the parent department.

So far as the question of competence is concerned, the Secretary, State Information Commission is fully competent to repatriate back the services of an employee posted on deputation to his parent department. It is not necessary to obtain consent of the employee or the parent department. Further, if the petitioner was sent on deputation and he is being repatriated back to his parent department one or two months prior to completion of two years, it is not fatal, as the services sent on deputation cannot be retained forever. Firstly, if the transferee department does not want to continue with the services on deputation, the transferee department is within its power to repatriated back the services of an employee, serving on deputation. Thus, there is no infirmity in the impugned order.

The law on deputation is very clear. The Supreme Court in State of Punjab & Others v. Inder Singh & Others1 while considering the deputation and repatriation to the parent cadre/department on expiry of period of deputation observed as under:

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 deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above.

The Supreme Court, in Umapati Choudhary v. State of Bihar & Another2, the word `deputation'' has been defined 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 of the employer to lend the services of his employee 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.

Further, in Kunal Nanda v. Union of India & Another3, the Supreme Court held as under:

6..The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his 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.

The Supreme Court in Prasar Bharti & Others v. Amarjeet Singh & Others4, observed as under:

There exists a distinction between "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 department. Whereas deputation would be a temporary phenomenon, transfer being antithesis must exhibit the opposite indications.

This Court in Azad Mohammad Khan v. State of Chhattisgarh & Another5, after placing reliance upon the decisions of the Supreme Court in a catena of decisions, explained conditions on deputation.

Applying the well settled principles of law on deputation to the facts of the case, continuation of an employee on deputation or repatriation does not depend on his consent. Even before completion of minimum period of deputation, which will come to an end on 01.02.2012 in the instant case, the petitioner/employee is not entitled to continue on deputation forever.

In view of foregoing and for the reasons mentioned hereinabove, the writ petition is dismissed.