Rajasthan High Court - Jodhpur
Ravindra Gurjar vs State Of Rajasthan on 24 September, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 912/2025
Ravindra Gurjar S/o Shri Udai Lal Gurjar, Aged About 34 Years,
R/o Dewali Rural, Udaipur, Rajasthan.
----Appellant
Versus
1. State Of Rajasthan, Through The Director-Cum-Special
Secretary, Directorate, Local Self Department,
Government Of Rajasthan, Jaipur.
2. Udaipur Development Authority, Through Its
Commissioner, Udaipur (Rajasthan).
----Respondents
For Appellant(s) : Mr. Ankur Mathur
Ms. Divya Bapna
For Respondent(s) : Mr. Rajesh Panwar, Sr. Advocate-cum-
AAG with Mr. Ayush Gehlot
Mr. Vijay Purohit
Mr. Hanuman Singh
Mr. Shubham Ojha
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE SANDEEP TANEJA
Judgment
Reserved on : 01/09/2025
Pronounced on : 24/09/2025
REPORTABLE
(PER HON'BLE SANDEEP TANEJA, J.)
1. The present special appeal is directed against the order
dated 09.05.2025 passed by learned Single Judge in S.B. Civil Writ
Petition No.6599/2025, whereby the writ petition filed by the
appellant challenging the validity and legality of order dated
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19.03.2025 issued by respondent No.2 i.e. Commissioner Udaipur
Development Authority (for short "UDA"), has been dismissed.
2. Brief facts of the case are that the appellant was appointed
as Junior Accountant in the Local Self Department. Subsequently,
the appellant was promoted on the post of Assistant Accounts
Officer-II.
3. Respondent No.1, by order dated 20.09.2023, transferred
the services of appellant from Municipal Council (under transfer)
Makrana to UDA. In pursuance of the said order dated
20.09.2023, appellant joined the duty at UDA on 10.10.2023.
However, respondent No.2, by order dated 19.03.2025, relieved
the appellant and repatriated him to his parent department.
4. Being aggrieved by the said order dated 19.03.2025, the
appellant filed the writ petition before the learned Single Judge of
this Hon'ble Court. The learned Single Judge dismissed the writ
petition holding that transfer of the appellant by order dated
20.09.2023 was a transfer on deputation and thus the respondent
No.2 is empowered to repatriate him to his parent department.
5. Learned counsel for the appellant assailing the correctness of
the order passed by learned Single Judge, has submitted that
appellant was transferred by order dated 20.09.2023 by the
respondent No.1 in exercise of powers under Section 336 of the
Rajasthan Municipalities Act, 2009 (for short 'the Act of 2009')'.
Section 336(2) of the Act of 2009 uses the word 'transfer' and not
'deputation', therefore, the appellant's transfer cannot be said to
be a transfer on deputation. Learned counsel has further
submitted that the respondent No.2 is not legally competent to
unilaterally relieve the appellant without any direction or approval
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from the State Government. Learned counsel has also submitted
that the learned Single Judge failed to consider that transfer by
way of deputation involves consent of the employee. However,
consent of the appellant was not obtained before passing of the
order dated 20.09.2023 and, therefore, his transfer cannot be said
to be transfer on deputation. To buttress his argument, learned
counsel has relied upon the judgment passed by a Co-ordinate
Bench of this Court in D.B. Special Appeal Writ No.175/2025 (Dr.
Shankar Lal Bamania Vs. State of Rajasthan & Ors., decided on
09.04.2025).
6. On the other hand, learned counsel for the respondents
supported the order passed by the learned Single Judge and
submitted that appellant was transferred from his parent
department to UDA on deputation as he continued to retain lien in
the parent Municipality. It is further submitted that the respondent
No.2 is competent to relieve and repatriate the appellant to his
parent department.
7. Heard learned counsel for the parties and perused the
record.
8. The issue for consideration is as to whether the posting of
the appellant from Municipal Council, Makrana to UDA by order
dated 20.09.2023 issued by the State Government under Section
336 of the Act of 2009 was on transfer or deputation.
8.1 Section 336 of the Act of 2009 reads as under :-
"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
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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 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."
8.2 Section 336(2) of the Act of 2009 clearly discloses that the
power to transfer an officer or servant of the Municipality to Jaipur
Development Authority or Jodhpur Development Authority or
Rajasthan Housing Board or any Urban Improvement Trust or any
other local body is conferred on the State Government.
8.3 The law relating to the meaning of expression 'deputation' in
service jurisprudence is well settled whereby voluntarily an
employee of one department or cadre or an organization is
assigned to another department or cadre or organization. This
entails a tripartite agreement between the lending employer,
borrowing employer and the employee concerned. Thus, one of
the essential requirements is the consent of employee concerned
to go on deputation.
8.4 The Hon'ble Supreme Court in the case of Umapati
Choudhary Vs. State of Bihar reported in (1999) 4 SCC 659
held as under :-
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"8. Deputation can be aptly described as an
assignment of an employee (commonly referred to
as the deputationist) of one department or cadre 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...."
(Emphasis Supplied)
8.5 Following the above judgment, a Co-ordinate Bench of this
Hon'ble Court in the case of Dr. Shankar Lal Bamania Vs. State
of Rajasthan & Ors. (D.B. Special Appeal Writ
No.175/2025, decided on 09.04.2025) held as under :-
"21) A close scrutiny of the above decisions makes
abundantly clear that 'transfer' is limited to
equivalent posts within the same cadre and the
same department, whereas 'deputation' refers to
service outside the cadre or outside the parent
department in which an employee is serving, and it
is a temporary phenomenon. The concept of
deputation involves a consensual and voluntary
decision by the employer to lend the services of its
employee, along with a corresponding acceptance of
such services by the borrowing employer. It also
requires the consent of the employee to go on
deputation."
8.6 A close reading of Section 336(2) of the Act of 2009 reflects
that it does not provide for consent of either of the parties i.e.
lending employer, borrowing employer and the concerned
employee. Once the State Government, in exercise of powers
conferred in the aforesaid section, issues an order for transfer of
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an officer or servant of a Municipality to a Development Authority,
the employee concerned has no option but to join the duty at the
transferred place. The section does not contemplate seeking of
consent of the employee before issuing his transfer order. In the
absence of his consent, therefore, it cannot be said that the
transfer as provided under Section 336(2) of the Act of 2009 shall
be a transfer by way of deputation.
8.7 On facts also, there is nothing on record that consent of the
appellant was obtained before issuing the order dated 20.09.2023.
Even in the transfer order dated 20.09.2023, it is not mentioned
that the appellant was transferred on deputation.
9. The counsels for the respondents have emphasized that by
virtue of proviso to the aforesaid section, the officer or servant
retains his lien in the parent Municipality and, therefore, the
transfer being temporary in nature should be treated as
deputation. We are not impressed with the said contention of the
respondents.
9.1 It is well settled that function of a proviso is to carve out
exception(s) or to qualify something enacted in the main
provision. However, it can not be interpreted to expand or limit the
main provision. Hence, merely because of by virtue of the proviso,
lien of the officer or servant remains in the parent Municipality, the
transfer cannot be said to be transferred by way of deputation
unless the fundamental requirement i.e. consent of all the three
parties, is fulfilled.
10. The counsels for the respondents have also relied upon
Section 330 of the Act of 2009 in support of their contention that
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the transfer of the appellant from Municipal Council, Makrana to
UDA was on deputation.
The said Section reads 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
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.
(d) by deputation in
2. xxxxx
3. xxxxx
(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."
(Emphasis Supplied)
10.1 A bare perusal of the aforesaid section reveals that the same
relates to appointment to posts in the municipal services and has
nothing to do with power of State Government to transfer an
officer or servant from Municipality to Development Authority,
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therefore, the said provision has no applicability to the facts of the
present case.
10.2 However, it is relevant to note that Section 330 of the Act of
2009 contains both the expression i.e. 'transferred' or 'deputation/
deputed'. It is, thus, apparent that the legislature has used the
expression deputation/deputed in this section, however, no such
expression has been used under Section 336 of the Act of 2009,
which makes the legislative intent clear that transfer by way of
deputation is not provided under Section 336(2) of the Act of
2009.
11. It is also relevant to mention Section 89 of the Udaipur
Development Authority Act, 2023, which reads as under :
"89. Power to transfer.- Any officer or employee
of the Authority may, in accordance with the rules
made under section 95, be transferred by the
State Government to the Rajasthan Housing Board
or any Urban Improvement Trust or any
Municipality on post carrying pay scale not lower
than the pay scale of the officer or employee to be
transferred:
Provided that lien of the officer or employee so
transferred shall remain in the Authority and he
shall be considered for further promotion
whenever a consideration for promotion to the
higher post in his cadre is made in the Authority."
11.1 This provision also confers power only upon the State
Government to transfer any officer or employee of UDA to the
Rajasthan Housing Board or Urban Improvement Trust or any
Municipality.
11.2 On joint reading of Section 336 of the Act of 2009 and
Section 89 of the Act of 2023, it can be easily deduced that the
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power to transfer an employee from Municipality to UDA and vice
versa is exclusively conferred on the State Government.
12. The counsels for the respondents have also argued that
since there is no prohibition under Section 336 of the Act of 2009
on repatriation of an employee by a Development Authority to a
Municipality, therefore, respondent No.2 was competent to relieve
and repatriate the appellant to his parent department. We do not
find any force in the said argument. It is only in the case of
deputation, an employee can be repatriated at any time at the
wish of either of the employers i.e. lending employer or borrowing
employer. However, since we have already held that transfer under
Section 336 of the Act of 2009 is not a deputation and the power
to transfer an officer or servant is exclusively conferred upon the
State Government, we are of the view that power to
retransfer/recall/repatriate is also vested in the State
Government.
13. Resultantly, this Court is of the opinion that the order dated
19.03.2025 passed by the Commissioner, UDA is without authority
of law and the same is hereby quashed. The order dated
09.05.2025 passed by the learned Single Judge is also quashed
and set aside.
14. However, before parting with the judgment, this Court deems it
appropriate to observe that the Commissioner, UDA may refer the
matter for transfer of appellant to the State Government. The State
Government is further directed to decide the matter expeditiously but
not later than 30 days from the date of receipt of reference from the
Commissioner, UDA.
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15. With these observations, the instant special appeal is allowed.
(SANDEEP TANEJA),J (DR. PUSHPENDRA SINGH BHATI),J
deep/-
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