S.S. Kanwar vs State of Chhattisgarh and Others

Manindra Mohan Shrivastava, J.—Heard on I.A. No. 2, application for taking documents on record. On due consideration, the application (I.A. No. 2) is allowed. Documents are taken on record.

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.

The issue arising for consideration in this petition is as to whether the petitioner could be sent on deputation without his consent.

Facts necessary for decision of the present case are that the petitioner was initially appointed as Forest Ranger vide order dated 1-7-1981 in the Department of Forest 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-1), petitioner was promoted to the post of Assistant Conservator of Forest 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.

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 Sangh 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./CG. Cooperative Societies Act, 1960, which performs the functions of collection and disposal and other allied activities relating to forest produce. The Society has been constituted with the avowed object of abolishing contract system 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 Government, 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 & 30th 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 and Others Vs. Amarjeet Singh and Others,

On the other hand, submission of learned counsel for respondents No. 1, 2, 4 & 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 therefore, in view of the provision contained in proviso to F.R. 110 (a), there is no requirement of obtaining consent of the petitioner.

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 controlled by the State Government, therefore, in view of the 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 controlled by the Government 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.

I have considered the rival submissions made by learned counsel for the parties and perused the records.

From the averment made by the respondents in their return and perusal of the bye-laws 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 bye-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.

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.

In the case of State of Punjab and Others Vs. Inder Singh and Others, , the Supreme Court has dealt with the concept of deputation and it has been held as under:

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 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. 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.

In the case of Umapati Choudhary Vs. State of Bihar and Another, , the Supreme Court explained the meaning of the word "deputation" in following words:

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 organisation (commonly referred to as the parent department 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 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....

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:

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.

The submission of learned 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 foreign 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 Government 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 No. 1503-R-149-IV-R-I, dated 18-6-1960].

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 18-6-1960.

Fundamental Rules having been made in exercise of statutory powers u/s 96B 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:--

Transitional provisions.--Until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement 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 made, 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 Governor 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 u/s 96B 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 Shyam Lal Vs. The State of Uttar Pradesh and The Union of India (UOI), Pradyat Kumar Bose Vs. The Hon''ble The Chief Justice of Calcutta High Court, , and also decision of the High Court of Orissa in the case of Baishnab Patnaik and Others Vs. The State,

However, reading of the aforesaid provision of F.R. 110 (a) shows that the proviso to clause (a) has been added by Finance Department Notification dated 18-6-1960. Thus, the addition of proviso is neither by a legislative 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 statutory 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.

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 contrary 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 clearly contrary to the provision that no Govt. servant can be transferred to foreign service against his will.

Until a contrary provision is made by any legislative enactment or under proviso to Article 309 of the Constitution of India or Fundamental Rules itself are amended in exercise of such power, the provision contained in clause (a) of F.R. 110 continue to remain in force and are not limited or restricted by the proviso which is merely an executive instruction.

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.

Petition is accordingly allowed. No order as to costs.