Kristo Mohan Roy vs State Of Assam And 4 Ors

Heard Mr. U. K. Nair, learned senior counsel appearing for the petitioner and also heard Mr. D. Nath, learned Government Advocate appearing

for the State respondents.

The brief facts and circumstances which lead to the filing of this writ petition are as follows;

The petitioner who is a Senior Assistant in the Department of Health and at present posted in the Office of the Joint Director of Health Services,

Goalpara was shifted to the Office of the Deputy Commissioner, Goalpara, vide Order No. GPE.66/2017/48-B, dated 19.04.2018, (impugned order),

issued by the Deputy Commissioner himself, on deputation. While being situated as such, by another order dated 03.08.2018, he was also temporarily

attached to the works of summary Revision of Electoral Roll in the Election Branch in the Deputy Commissioner’s Office Goalpara. Aggrieved by

the said impugned orders, the petitioner has come before this Court challenging the legality and validity of the same.

It is submitted by Mr. Nair that the petitioner being an employee of Health Department, Deputy Commissioner of Goalpara, cannot exercise such

power of bringing him on deputation to his own office. The learned counsel also submitted that even if it is assumed that the Deputy Commissioner has

power of issuing such deputation order the same cannot be issued by him unilaterally, because before issuance of such orders consent of the

Department from whom the Government Servant is to be borrowed and consent of theemployee himself are required to be obtained. Without such

consent a deputation order cannot be a valid order.

In support of his submission, Mr. Nair referred to paragraph-8 of the judgment and order passed by the Hon’ble Supreme Court in the Case of

Umapati Choudhary â€"Vs- State of Bihar and Anr., reported in (1999) 4 SCC 659. The relevant portion of the paragraph is reproduced here below;

“Deputation can be aptly described as an assignment' of an employee (commonly referred to as the deputationist) of one department or cadres 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. In the case at hand

all the three conditions were fulfilled. The University, the parent department or lending authority, the Board, the borrowing authority and the appellant

the deputationist, had all given their consent for deputation of the appellant and for his permanent absorption in the establishment of the borrowing

authorityâ€​.

The learned counsel also referred to paragraph-18 of the judgment and order passed by the Hon’ble Supreme Court in the State of Punjab and

Ors Vs. Inder Singh and Ors., reported in (1997)8 SCC 372. The contents of the paragraphs are reproduced here below;

“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 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 beâ€​.

Mr. D. Nath, learned Government Advocate submitted that the Deputy is empowered to issue such orders as and when the service of any

Government Servant posted in the district is required. The learned counsel further submitted that such power is given to the Deputy Commissioner by

the Office Memorandum No. ATP-99/2002/6 dated 21st Sept. 2002. The contents of the memorandum referred to by the learned counsel are given

here below;

“GOVERNMENT OF ASSAM

DEPARTMENT OF PERSONNEL; PERSONNEL (B)

DISPUR : GUWAHATI-6

No. ATP-99/2002/6 Dated, 21st Sept. 2002

OFFICE MEMORANDUM

REDEPLOYMENT OF UNDER UTILIZED PERSONNEL.

It has come to the notice of the Government that approved developmental scheme of certain department remain incomplete due to inadequate

workforce, while in some other departments within the same district. Officers and employees remain underutilized as they do not immediately have

any approved scheme execution.

Government, had after careful consideration, had decided that the concerned Deputy commissioners as head of the respective District Development

Committees be authorised to identify the underutilized manpower in different departments within their districts and re-deploy if it in other department in

need of additional manpower to ensure expeditious implementation of their incomplete schemes. It is therefore, impressed upon all development

departments of the State Government to issue suitable instruction to their district officers to assist the respective Deputy Commissioners. In the

identification and proper redeployment of the underutilised staff, if any.

Government further directs the District Development Committee in different district to closely and regularly monitor the implementation of different

approved scheme and to have identification and redeployment of underutilised staff as a regular and routine item on the agenda of their monthly

meetings.

Sd/- (J.P.Saikia)

Commissioner & Secretary to the Govt. of Assam

Personnel (B) Department.â€​

The learned counsel after referring to the above memorandum submitted that it is not the first time that such orders (impugned orders) have been

issued by the Deputy Commissioner, Goalpara. As and when required, in the exigency of the service such several orders have been issued by the

Deputy Commissioners from time to time.

Mr. Nair in reply to the submissions of the learned counsel of the respondents submitted that the memorandum referred to by the learned counsel of

the respondents shows that such orders can be issued only when the service of the Government Servant is required for implementation of

developmental works. However, in the case of the petitioner his deputation order shows that his work is not related with the developmental work. The

learned counsel went on to submit that even such power can be exercised only after following the law settled by the Hon’ble Supreme Court as

stated above.

I have gone through the writ petition and also perused the documents referred to by the learned counsel of the respondents. I have also perused the

judgment referred to by the learned counsel of the petitioner.

It is clear from the judgment and orders referred to by the learned counsel of the petitioner that deputation of a Government Servant can happen

only after the consent of the department from whom the Government Servant is being borrowed and the consent of the Government Servant himself is

given. This is a law already settled by the Hon’ble Supreme Court and there has not been any change on that principle of law. In this case, there

is no pleadings from the side of the respondents that the Medical/Health Department that is the employer of the petitioner and consent of the petitioner

himself were obtained before the impugned orders were issued by the Deputy Commissioner, Goalpara. Therefore, it is evident that the impugned

orders were issued in violation of the settled principal of law. As such, they are illegal and cannot be sustained.

Further, by different letters the department of Health had informed the Deputy Commissioner, Goalpara about the need of the petitioner’s

service in the department itself and had also requested him to repatriate him to the department. All these goes to show that the petitioner was not

sitting idle which he was in his parent department but his service was in full utilization by the department. Therefore, the impugned orders are not only

violative of the settled principal of law but the Office Memorandum itself. Because, the Office Memorandum also clearly states that such orders can

be issued for utilization of service of Government Servants whose service are under utilise or are not so much required by the parent department and

that too if their service is required for implementation of development schemes.

In view of the above, I find that the two impugned orders deserves to be quashed and set aside. Accordingly, they are quashed and set aside.

The writ petition is disposed of.