NAOLEKAR, J. - (1.) IN all these writ petitions the petitioners, who are Assistant Engineers, Irrigation (Civil) in the Irrigation Department, Government of Rajasthan, have challenged the order dated 29. 5. 2000 (Annexure-2) passed by respondent No. 2 the Chief Engineer, Irrigation, Rajasthan, Jaipur (for short `the respondent No. 2) whereby the petitioners have been sent on deputation on the post of Child Development Project Officer in the Women & Child Development Department, Rajasthan, Jaipur and the order dated 26. 5. 2000 (Annexure-3) passed by respondent No. 3 Director cum Special Secretary (Admn.) Women and Child Development Department, Rajasthan, Jaipur (for Short `the respondent No. 3') whereby the petitioners have been appointed in the Women & Child Development Department on deputation in the same pay scale on which they were placed in their parent Department.
(2.) IN nutshell the petitioner's case is that- (i) neither the Rajasthan Service of Engineers and Research Officer (Irrigation Branch) Rules 1954 (hereinafter shall be referred to as `the Rules of 1954') nor the Rajasthan Service Rules, 1951 (for short `the Rules of 1951') authorise the respondent No. 2 to send the petitioners on deputation; (ii) the order of deputation was issued by the respondent No. 2 without taking assent of the petitioners for sending them on deputation, which is contrary to established principle of law; and, (iii) the order of deputation of the petitioners has been issued arbitrarily, without there being any policy framed by the Government, which can be said to be a reasonable policy, for selecting persons to be sent on deputation. The petitioners have been picked, to be sent on deputation, without there being any uniformed principle laid down in the policy. Further, it is not true that the posts of Assistant Engineer in the Irrigation Department are not available and, therefore, there was a need to send the petitioners on deputation. From the return submitted on behalf of the respondent No. 1 State of Rajasthan and the respondent No. 2 it appears to be their stand that the order of deputation has been issued in the interest of the petitioners themselves. Had the order of deputation not been issued of the petitioners, they would have been declared surplus in the Department of respondent No. 2. That no Rule requires consent of an employee prior to sending/posting him on deputation to other Government Department. The order is not illegal, arbitrary and violative of settled principle of deputation. The order of deputation has been passed in accordance with the provisions of the Rules of 1951. The purpose of sending the petitioners on deputation to the Department of respondent No. 3 is only to safeguard the interest of the petitioners because otherwise, they would have been declared surplus to the requirement of the Department of respondent No. 2 as a whole, in view of the large scale cut in the sanctioned strength of the respondent No. 2's Department including the Indra Gandhi Nahar Department and the Command Area Development Department. The Irrigation Department is the cadre controlling Department, for Engineering cadre, deployed in the Irrigation Department, Indra Gandhi Nahar Department and the Command Area Development Department. The combined sanctioned strength of Assistant Engineers (Civil) of the three Departments was 1392 in March, 1999. The cadre strength of the three departments was reviewed by the Committee of Ministers who had recommended curtailment in the cadre of Assistant Engineers in all the three Departments. Further more, the Budget Finalisation Committee while reviewing the budget proposals for 2000-2001 plan of three Departments had also recommended further curtailment in the cadre of Assistant Engineers (Civil ). The over all effect on the sanctioned strength pursuant to the recommendations of the Committee of Ministers as well as Budget Finalisation Committee was that about 436 posts of Assistant Engineers are to be curtailed. Thus, now only 956 posts of Assistant Engineers (Civil) would be available in the three Departments, Out of these 956 posts of Assistant Engineers available in the Department, 610 posts relate to upgraded posts which are to be assigned to promotion quota in accordance with the rules. Thus there remained 346 posts of Assistant Engineers which have to be distributed between the direct recruitment quota and the promotion quota in the rate of 50-50. The Rules of 1954 provide for maintenance of ratio 50:50 in respect of Assistant Engineers appointed through direct recruitment and through promotion. The promotion quota is further distributed between diploma holder Assistant Engineers and Degree holder Assistant Engineers in the ratio of 60:40. Thus, post of Assistant Engineers shall be divided into 5:3:2 respectively between the direct recruitment quota, promotion quota of diploma holder and promotion quota of degree holders. The consequent strength of direct recruited Assistant Engineers will be 346 divided by 2 which is equal to 173 posts. At present 421 direct recruited Assistant Engineers are available in the Department of respondent No. 2 against required strength of 173. Therefore, 248 i. e. 421-173, direct recruited Assistant Engineers (Civil) are in excess to the requirement of three departments. In order that the Departments may not loose experience hand an alternative arrangement of sending the Assistant Engineers on deputation was adopted in stead of declaring them surplus and losing them once for all. The post of Assistant Engineer is lowest post in the cadre. In view of the fact that the other engineering departments in the State of Rajasthan were also facing the same difficulty of adjusting of excess Assistant Engineers, other non-engineering departments of the State of Rajasthan were contacted for taking the Assistant Engineers of the respondent Department on deputation. Respondent No. 3 the Women & Child Development Department is one of such Departments who agreed to accept the services of the Assistant Engineers of the Irrigation Department. A list of 202 directly recruited junior most Assistant Engineers was sent to the respondents No. 3 for taking them in their Department on deputation, out of which the respondent No. 3 selected 101 Assistant Engineers and selected Assistant Engineers have been given appointment on deputation in the department of respondent No. 3. The petitioners by filing rejoinder have contradicted the facts and figures given by the answering respondents in their return and it is said that 202 Junior Engineers (Civil) are working as Assistant Engineer in the Irrigation Department on working arrangement basis. That apart, 224 more Junior Engineers, who have been given promotion to the post of Assistant Engineers (Civil), are retained illegally. They are in excess of 50% quota prescribed for promotion. The persons, who have been illegally given promotion beyond the quota strength, shall be taken to be out side the sanctioned strength of the cadre, 610 posts of Junior Engineers, to avoid their stagnation, have been upgraded to the post of Assistant Engineers and those persons have been given promotion to the aforesaid upgraded posts. Out of these 610 upgraded posts, 98 posts were upgraded in the year 1989 and 489 posts have been upgraded in the year 1996-97. The petitioners are admittedly senior to them in the cadre of Assistant Engineer. Out of upgraded posts, 276 persons have already retired on their attaining the age of superannuation or compulsory retirement. The upgraded posts, being the posts having their life only till the candidate or the incumbent remained in service, cannot be counted as cadred posts and the upgraded posts are reverted back to the original posts as soon as the person holding that post goes out of service either on account of superannuation or dismissal or removal from service or by resignation. The persons working against total 693 posts (202+224+267) have to be sent back to their original care in case of any curtailment of the posts of Assistant Engineer in the Irrigation Department. In stead of curtailing 693 posts, the respondents are allowing them to continue and the petitioners have been sent on deputation, assuming that the petitioners will be declared surplus. Had the proper and legal method been adopted by the respondents, neither the petitioners could have been sent on deputation nor they can be declared surplus. The learned Advocate General, Shri S. M. Mehta, appearing for the State has relied upon Rule 141 and 144-A of Chapter XIII of Part V of the Rules of 1951 and Rule 7-A of the Rules of 1954 as source of power for sending the petitioners on deputation to the Women & Child Development Department. Rule 7-A of the Rules of 1954 authorises the State to send the employee on deputation in emergency, which says that any person appointed to the Service on or after 26. 10. 1952 shall, if so required, be liable to serve in any defence service or post connected with the Defence of India, on deputation, to any part of India in connection with any emergency for a period of not less than four years including the period spent on training if any, provided that such person shall not be sent on deputation after expiry of ten years of his service from the date of appointment or after attaining the age of forty years. Rule 7-A of the Rules of 1954 authorises the authority to send on deputation an employee whose services are governed under the Rules of 1954 on the post of defence service or the post which is connected with the defence of India if there is an emergency. The deputation shall be not less than four years including the period spent on training.
(3.) IN the present case the petitioners having not sent on deputation to the defence services or the post connected with the defence of INdia for the emergency need. Rule 7-A of the Rules of 1954 has no application to the petitioners' case. Rule 141 of the Rules of 1951 prohibits sending the government servant on transfer to foreign services against his will but this Rule will not apply to the transfer of government servant to the service of body, which is wholly or substantially owned or controlled by the Government, whether incorporated or not incorporated, or to the transfer of the government servant to the service which is paid from a Panchayat Samiti/zila Parishads Fund constituted under the Rajasthan Panchayat Samiti and Zila Parishads Act, 1959. Thus, the transfer of a government servant can be affected to a body which is wholly or substantially owned or controlled by the Government whether incorporated or not, or to a service which is paid from Panchayat Samiti/zila Parishad Fund. Thus Rule applies to the transfer of the Government servant either to the foreign service with his consent or a transfer to the body owned and controlled by the Government or transfer to the service for which the salary is paid from Panchayat Samiti/zila Parishad Fund. The petitioners have been transferred in the Women and Child Development Department and are being sent on deputation. The petitioners' deputation is neither to the foreign service with consent nor to the body incorporated or not, which is substantially owned and controlled by the Government nor to the service which is paid from the Funds constituted under the Rajasthan Panchayat Samiti and Zila Parishads Act, 1959. Therefore, Rule 141 of the Rules of 1951 has no application to the petitioners' case. Rule 144-A of the Rules of 1951 speaks about the terms and conditions of the State Government servants who have been transferred on deputation to the foreign service to Central Government, other State Government Public Undertakings, Autonomous Bodies (whether incorporated or not) and other bodies wholly or substantially controlled by the Government etc. , which shall be as per the order issued by the Government from time to time. A plane reading of Rule 144-A of the Rules of 1951 does not cover the cases of those Government servants who are sent on deputation from one department of the Government to its another department. If the Rule 144-A is assumed to have any application in the matter of transfer of a Government servant on deputation, it will govern the field only if the transfer is made on deputation to the foreign service i. e. to the Central Government, other State Government Public Undertakings, autonomous bodies (whether incorporated or not) and other bodies wholly or substantially controlled by the Government. The other bodies would be in the nature of Government Public Undertakings or autonomous bodies and could not be the other departments of the same State Government. Rule 144-A also does not apply to the petitioners' case. ;