Rajasthan High Court - Jodhpur

Ravindra Gurjar vs State Of Rajasthan (2025:Rj-Jd:22538) on 9 May, 2025

Author: Rekha Borana

Bench: Rekha Borana

         [2025:RJ-JD:22538]

               HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                                JODHPUR
                          S.B. Civil Writ Petition No. 6599/2025

          Ravindra Gurjar S/o Shri Udai Lal Gurjar, Aged About 34 Years,
          Resident Of Dewali Rural, Udaipur (Rajasthan).

                                                                                ----Petitioner

                                              Versus

          1.      State Of Rajasthan, Through The Director Cum Special
                  Secretary,      Directorate           Local         Self      Department,
                  Government Of Rajasthan, Jaipur (Rajasthan).

          2.      The Udaipur Development Authority, Udaipur (Rajasthan),
                  Through Its Commissioner.

                                                                             ----Respondents


         For Petitioner(s)          :     Mr. Ankur Mathur
         For Respondent(s)          :     Mr. Vijay Purohit


                       HON'BLE MS. JUSTICE REKHA BORANA

Order

Reportable

09/05/2025

1. The present writ petition has been filed aggrieved of order

dated 19.03.2025 (Annex.4) whereby the petitioner has been

relieved by the Commissioner of Udaipur Development Authority

to join his parent department i.e. Municipal Council, Makrana.

2. Learned counsel for the petitioner raised two grounds:

(i) Firstly, the petitioner had been transferred vide order dated

20.09.2023 (Annex.2) in terms of Section 336 of the Rajasthan

Municipalities Act, 2009 (hereinafter referred to as the 'Act of

2009') to Udaipur Development Authority, Udaipur (hereinafter

referred to as the 'UDA'). The said order was passed on the

recommendation of the State Government and hence, was a

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general transfer order. Thus, if the petitioner is transferred back to

his parent department, there has to be a transfer order approved

by the State Government. Meaning thereby, it is only the State

Government which is competent to transfer the petitioner.

(ii) Secondly, order dated 20.09.2023 cannot be termed to be an

order of transfer on deputation and hence, the Commissioner, UDA

was not competent to relieve the petitioner without the

consent/approval/sanction of the State Government.

3. Per contra learned counsel for the respondent-Department

submits that even though order dated 20.09.2023 reflected the

same to be a transfer order but then in fact it was a transfer on

deputation. Counsel submits that in terms of Section 336(2) of the

Act of 2009, any officer or servant of the Municipality can be

transferred by the State Government to any development

authority but then, the proviso of the said provision specifically

provides that the lien of such officer or servant shall remain in the

parent Municipality.

Meaning thereby, the transfer made in terms of Section 336

(2) of the Act of 2009 is in fact a transfer on deputation. Had it

been intended to be a general transfer order, the proviso as

appended to sub-clause (2) of Section 336 would not have been

incorporated. The inclusion of the proviso itself makes it clear that

any order passed under Section 336 (2) is an order of transfer on

deputation.

4. Counsel further submits that the petitioner having been

transferred on deputation to UDA, the Commissioner of UDA was

very well empowered to send back the petitioner to his parent

department while exercising his supervisory powers in terms of

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Section 8 of the Udaipur Development Authority Act, 2023

(hereinafter referred to as the 'Act of 2023').

5. In support of his submissions counsel relied upon the Hon'ble

Apex Court judgment in the case of Kunal Nanda Vs. Union of

India & Anr.; (2000) 5 SCC 362 and the Delhi High Court

judgment in Shri Sitamber Singh Vs. Union of India & Anr.;

W.P. (C) 12773/2009 (decided on 15.07.2010).

6. Heard the counsels and perused the record.

7. The issues that arise for consideration in the present matter

are :

(i) Whether the transfer in question is a simplicitor transfer or

transfer on deputation?

(ii) Whether the Commissioner, UDA is empowered to cancel the

order of deputation and repatriate the petitioner to his parent

department?

(iii) Whether an employee has a vested right to continue on his

deputed place?

8. Section 336 of the Act of 2009 reads as under:

"Sec.336. Transfer from one Municipality to another.-(1) Any officer or servant of a Municipality who is a member of subordinate service, ministerial service or class IV service may be transferred by the State Government from the service of one Municipality to the services of another Municipality.

(2) Any officer or servant of the Municipality may be transferred by the State Government to the Jaipur Development Authority or Jodhpur Development Authority or Rajasthan Housing Board or any Urban Improvement Trust or any other local body on post carrying pay scale not lower than the pay scale of the officer or servant to be transferred;

Provided that the lien of the Officer or servant so transferred shall remain in the parent Municipality

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and he shall be considered for further promotion whenever a consideration for promotion to the higher post in his cadre is made in the Municipality."

9. A bare perusal of the above provision makes it clear that any

officer or servant of the municipality can be transferred by the

State Government to any Development Authority or any Housing

Board within a State. Further, the proviso to the above provision

provides that the lien of such transferred officer or servant shall

remain in the parent municipality which makes the intent of the

legislation clear that the transfer made in terms of Section 336 (2)

is subject to a lien with the parent municipality.

10. The concept of lien in service jurisprudence applies only in

cases of deputation of an employee from one

department/State/Government to another. The inclusion of the

term 'lien' in the proviso to Section 336 (2) of Act of 2009 cannot

be interpreted anything other than that the transfer made in

terms of the said provision would be a 'deputation'. The said

conclusion is further substantiated by the fact that the proviso

itself provides that seniority etc. of the concerned employee shall

be governed as per the parent department. As observed by Delhi

High Court in the case of Shri Sitamber Singh (supra), there is

not much difference between 'deputation' and 'transfer'. Therein,

the Delhi High Court while relying upon the earlier judgment of

V.H.K. Murti Vs. Special Protection Group & Anr.;2000 (54)

DRJ 157 observed that deputation is just a transfer of the

government employee from one department to another or from

one government to another. The Court defined the term

'Deputation' as under:

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"Deputation" per se being a contractually made ad hoc arrangement, seldom confers any right upon a deputationist, either for completion of the term of deputation or regularisation of such stop-gap arrangement.

11. In view of the overall observations as made hereinabove, it

can be safely concluded that although the employee of a

Municipality can be transferred by the State Government to a

Development Authority or a Housing Board but then the same is a

'transfer on deputation'.

12. This Court is of the above considered opinion also for the

reason that there is no provision other than Section 330 of the Act

of 2009, either in the Act of 2009 or in the Act of 2023 which

prescribes for 'deputation' or revocation of deputation of any

employee of a Municipality. It is only Section 330 of the Act of

2009 which provides for appointment through deputation. Section

330 of the Act of 2009 provides as under:-

330. Recruitment to posts in the Service.-

(1)Upon the creation and constitution of the service, appointments to all posts therein shall, subject to any rules under Section 337 and notwithstanding anything contained in the rules made under Section 339, be made in accordance with the provisions of Sections 332, 333 or, as the case may be, 335.

(a)by direct recruitment,

(b)by promotion,

(c)by transfer, or

(d)by deputation in exceptional case when eligible person is not available in municipal service.

(2)The State Government shall lay down the terms and conditions on which appointments shall be made by transfer or deputation from a State Service. (3)With the approval of the State Government and in conformity with such general or special directions as it

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may from time to time issue, any officer or servant of a Municipality who is a member of the Service may be transferred to the service of another Municipality. (4)It shall not be lawful for the Municipality, -

(a)to take any officer or employee on deputation from any department of the State Government without obtaining prior approval of the State Government,

(b)to relieve any officer or employee without seeking orders of the State Government,

(c)to refuse or not to allow any officer or employee to join the duty when such employee is transferred or deputed by the State Government.

13. A bare perusal of the above provision makes it clear that a

person can be deputed in a Municipality, subject to the prior

approval of the State Government. Further, a person can be

deputed from a Municipality but again, subject to the approval of

the State Government.

14. Interestingly, the above provision although provides for

deputation to a municipality and from a municipality but it does

not provide for any condition for repatriation of a deputed

employee to the municipality. The only conclusion that can be

drawn in the said circumstance is that the general principles of

service jurisprudence which applies in cases of deputation would

apply herein too.

15. Admittedly, order dated 20.09.2023 had been passed while

exercising the powers under Section 336 of the Act of 2009 as it

was a transfer by the State Government from a municipality to a

development authority.

16. This Court is of the clear opinion that the transfer in question

(order dated 20.09.2023) is definitely a 'transfer on deputation'

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governed by Section 336 (2) of the Act of 2009. Issue No.(i) is

answered as such.

17. Coming on to Issue No.(ii) i.e. whether the Commissioner of

the Development Authority is competent to repatriate an

employee of a municipality?

18. Section 8 (1) of the Act of 2023 provides as under:

"8.Appointment of Udaipur Development Commissioner, Directors, Secretary, etc.:-(1) The State Government shall appoint any of its officer as Udaipur Development Commissioner on such salary and allowances and on such terms and conditions of service as may be determined by the State Government. He shall be the Chief Executive of the Authority and shall supervise and control all its officers and servants, including any officer of Government appointed, from time to time, on deputation to the Authority, or to the Executive Committee, or any other committee or any Functional Board or any body thereof. He shall be responsible for collection of all sums due to the Authority and payment of all sums payable by it. He shall ensure adequate security of all assets including cash balances of the Authority. Besides the said powers and duties and the powers and duties delegated by the Authority or the Executive Committee or any other committee or any Functional Board or any body thereof, he shall also exercise the following powers, perform the following functions and discharge the following duties, namely:-

(i) management and supervision of operational units of the Authority;

(ii) except as otherwise provided, appointment of the staff as per strength sanctioned by the Authority or the Executive Committee, as the case may be,including their removal, dismissal or otherwise punishing them in accordance with the regulations made by the Authority;

(iii) promulgation of internal procedure for management of the Authority;

(iv) administration of Projects and Schemes of the Authority;

(v) grant of any permission required to be given under this Act or refusal thereof on behalf of the Authority;

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(vi) calling tenders, scrutinise them and approve or reject them where the value does not exceed rupees one crore and where the value exceeds rupees one crore making recommendation to the Executive Committee;

(vii) executing agreements and entering into contract for and on behalf of the Authority; and

(viii) all other powers, functions and duties as may be determined by regulations."

19. A bare perusal of the above provision makes it clear that the

Commissioner, UDA is the authority empowered to supervise and

control all its officers and servants including the officers or

servants appointed to the authority, on deputation.

20. Further, there is no provision contrary to the above in the Act

of 2009. Therefore, it can safely be concluded that the

Commissioner, UDA is empowered to cancel the deputation of the

petitioner and repatriate him back to his parent department. Issue

No.(ii) is decided as such.

21. Coming on to issue No. (iii) - Whether an employee has a

vested right to continue on his deputed place ?

The issue is no more res integra. As is the settled position of

law, no employee has a vested right to remain on the post where

he has been sent on deputation. It is the right of lending and the

borrowing authorities to cancel the deputation as and when

required and to repatriate back the employee to his parent

department.

22. As held by the Hon'ble Apex Court in Kunal Nanda (supra)

the basic principle underlying deputation itself is that the person

concerned can always and at any time be repatriated to his parent

cadre to serve in his substantive position at the instance of either

of the Departments and there is no vested right in such a person

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to continue for long or to get absorbed in the Department to which

he is deputed.

23. Further, the Punjab and Haryana High Court in the case of

Gurinder Pal Singh and Ors. Vs. State of Punjab and Ors.;

Civil Writ Petition No.7545 of 2004 (decided on 30.09.2004)

while relying upon the judgment passed by the Hon'ble Apex

Court in Ratilal B. Soni Vs. State of Gujarat; AIR 1990 SC

1132 observed and held as under:-

"12. In service jurisprudence, "deputation" is described as an assignment of an employee of one department or cadre to another department or care. The necessity for sending on deputation arises in "public interest" to meet the exigencies of "public service'. The concept of deputation is based upon consent and voluntary decision of the employer to lend the services of his employee, corresponding acceptance of such service by the borrowing employer and the consent of the employee to go on deputation. A deputation subsists so long as the parties to this tripartite arrangement do not abrogate it. However, if any one of the parties repudiate the agreement, the other two have no legally enforcible right to insist upon continuance of the deputation. Even in the cases where deputationists continue for a pretty long period and options for their "absorption"in the borrowing department were taken, yet their repatriation to the parent department was upheld by the Apex Court in Ratilal B. Soni Vs. State of Gujarat; AIR 1990 SC 1132 after holding that "the appellants being on deputation, and they could be repatriated to their parent cadre at any time and they do not get any right to be absorbed on the deputation post.

24. Issue No.(iii) is hence answered in the manner that no

employee has a vested right to continue on his place of deputation

and he can be repatriated back to his parent department at the

wish/request of any of the two, lending or the borrowing

department.

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25. In view of the above analysis and the issues as concluded by

this Court, no case for interference in the order impugned is made

out.

26. The writ petition is hence, dismissed.

27. Stay petition and pending applications, if any, stand

disposed of.