KRISTO MOHAN ROY Vs. STATE OF ASSAM
HIGH COURT OF GAUHATI
Kristo Mohan Roy
STATE OF ASSAM
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Songkhupchung Serto, J. -
(1.) 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.
(2.) 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.
(3.) 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 the employee 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 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 authority .
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 be .;
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