Ashok Singh Vimal vs The State Of M.P.
2022 Latest Caselaw 13388 MP

                               1

         IN THE HIGH COURT OF MADHYA PRADESH
                      AT GWALIOR

                            BEFORE

     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA

                  ON THE 12TH OF OCTOBER, 2022

              WRIT PETITION NO.19683 OF 2022

      Between:-

      ASHOK SINGH VIMAL S/O RAM
      BAHADUR   SINGH, AGED     40
      YEARS,          OCCUPATION:
      GOVERNMENT SERVICE (FOREST
      GUARD)   RESIDENTS   OF  17,
      FOREST   COLONY,   TAPOWAN,
      JHANSI    ROAD,     GWALIOR
      (MADHYA PRADESH)

                                           ........PETITIONER

      (BY SHRI SURESH AGRAWAL - ADVOCATE)

      AND

1.    STATE OF MADHYA PRADESH
      THROUGH            PRINCIPAL
      SECRETARY     OF     FOREST,
      VALLABH    BHAWAN,   BHOPAL
      (MADHYA PRADESH)
2.    PRINCIPAL CHIEF CONSERVATOR
      OF FOREST, SATPUDA BHAWAN,
      BHOPAL (MADHYA PRADESH).
3.    ADDITIONAL             CHIEF
      CONSERVATOR OF FOREST AND
      OFFICIATING CONSERVATOR OF
                                            2

       FOREST, CIRCLE GWALIOR, NEAR
       TARUN PUSHKAR, CITY CENTER,
       GWALIOR (MADHYA PRADESH)
4.     DIVISIONAL FOREST OFFICER
       GWALIOR      (T)     (MADHYA
       PRADESH)
5.     DIVISIONAL FOREST OFFICER,
       KUNHOPALPUR      WILD   LIFE,
       DIVISION SHEOPUR (MADHYA
       PRADESH)

                                                            ........RESPONDENTS

        (BY SHRI JITESH SHARMA - GOVERNMENT ADVOCATE)
----------------------------------------------------------------------------------------
       This petition coming on for hearing this day, the Court passed the
following:
                                       ORDER

This petition under Article 226 of the Constitution of India has been filed seeking following reliefs :-

It is, therefore, most humbly prayed that the petition filed by the petitioner may kindly be allowed and the order annexure P-1 passed by the Government of Madhya Pradesh forest department may kindly be set aside.

Issue any other suitable writ, order or direction as the Hon'ble court may deem fit and proper under the facts and circumstances of the present case. Further compensation may be granted to the petitioner from the respondents if found tenable in the subject matter.

The Hon'ble court may also award the cost of this writ petition in favour of the petitioner throughout.

The main contention of the petitioner is that by the impugned order

dated 27.5.2022 he has been transferred to Kuno Circle, Sheopur whereas the seniority of the Forest Guards are maintained at district level and, therefore, the transfer of the petitioner would adversely effect his seniority. It is further submitted that since the petitioner has been transferred from one cadre to another cadre, therefore, it amounts to deputation and since the petitioner has been transferred without obtaining his permission/consent, therefore, the order of transfer is bad.

To buttress his contention, the counsel for the petitioner has relied upon the judgment passed by the Supreme Court in the case of State of Punjab and others vs. Inder Singh and others reported in (1997) 8 SCC 372.

Per contra, the petition is vehemently opposed by the counsel for the respondent/State. It is submitted that so far as the question of adverse effect on the seniority of the petitioner is concerned, the said question has already been put to rest by a Co-ordinate Bench of this Court by order dated 5.4.2022 passed in W.P.No.7454/2022 (Pramod Katare vs. State of M.P. and others) and other connected matters and has directed that the seniority at the district level be maintained at their parent district so that they may not suffer prejudice or adversely so far as loss of seniority and promotional prospects in future are concerned. It is further submitted that the writ appeal filed by Ajay Kumar Kadam arising out of order dated 5.4.2022 passed in W.P.No.6242/2022 has already been dismissed by the Division Bench of this Court by order dated 25.4.2022 passed in W.A.No.393/2022 (Ajay Kumar Kadam vs. State of M.P.), therefore, it is clear that the seniority of the petitioner has been protected.

So far as the question of deputation is concerned, it is submitted

that the petitioner has not been sent on deputation to any other different department and there cannot be any deputation on intra department basis.

In reply, it is submitted by the counsel for the petitioner that the petitioner has filed his rejoinder and has relied upon a judgment in which it has been held that the transfer of a person on deputation from one department to another department would amount to deputation which requires pre consent of the employee. (It is not out of place to mention here that the order on which the petitioner is relying is an incomplete document and neither the parties names are known nor the Court which passed the order is known).

Heard the learned counsel for the parties.

So far as the seniority of the petitioner is concerned, it has already been taken note of by the Co-ordinate Bench of this Court in W.P. No.13266/2021 which has already been affirmed by the Division Bench in W.A.No.393/2022, therefore, by the impugned order the seniority of the petitioner will not be adversely effected.

So far as the question of deputation is concerned, the submission made by the counsel for the petitioner does not appear to be convincing. The petitioner has relied upon paragraph 18 of the judgment passed by the Supreme Court in the case of Inder Singh (supra) which reads as under:

18. 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.

It is clear from the said paragraph that transfer of an employee who are posted outside his cadre, that is to say, to another department on a temporary basis would mean deputation. Even otherwise for bringing the analogy of deputation in picture, there has to be a transfer out of cadre to a different department on temporary basis. Merely because the seniority of Forest Guards is being maintained at District level would not mean that his transfer to another district would amount to change of cadre. The cadre of the petitioner would remain the same. Furthermore, it is a transfer within the department. There cannot be any intra department deputation. Thus, the transfer of the petitioner cannot be treated as deputation and, therefore, his pre-consent is not required.

So far as the copy of part of judgment annexed along with the rejoinder is concerned, it is clear from paragraph 11 of the said judgment

that it was a transfer from forest department to Narmada Valley Development Department which was an altogether different department.

No other arguments are advanced.

Considering the submissions made by the counsel for the petitioner coupled with the fact that the transfer is an exigency of service and no one can claim that he should be posted at a particular place and the petitioner must have spent a considerable long period of stay at the present place of posting, no case is made out warranting interference.

The petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE (alok)

ALOK KUMAR 2022.10.14 14:51:17 +05'30'