Sheela Devi Alais Parwati Devi Petitioner v. Chaudhary Shrawan Kumar H.P. Krishi Vishvavidyalaya

Per Justice Rajiv Sharma, Judge (oral).

Petitioner was appointed as Beldar in the respondent-University in the year 2004 on compassionate grounds. Petitioner is aggrieved by the issuance of office order dated 30.4.2014, whereby her services have been placed at the disposal of Animal Husbandry Department on secondment basis. It is averred in the reply that in sequel to Notification dated 22.12.2012, total cadre strength of University has been fixed at 1403, which includes the core strength of category ‘D’ staff as 250 only. 62 category ‘D’ employees including the petitioner have been placed on secondment basis with the Animal Husbandry Department. The authority to send an employee/teacher by the University on secondment basis/Foreign Service by the University has been derived from clause 7.11 (iv) of the Statutes.

2. Petitioner is merely working as a Beldar. It is stipulated in clause 7.11 (v) of the Statutes that the employee at the time of transfer or on Foreign Service/deputation should hold a substantive post in the University. It is in grey area whether the petitioner is holding a substantive post or not, as stipulated in clause 7.11 (v) of the Statutes.

3. It is settled law by now that an employee can not be sent on deputation without his/her consent. The petitioner is working in the respondent University and transferring her to Animal Husbandry Department would amount to change in the Department/cadre, which is not permissible under law.

4. Their Lordships of the Hon'ble Supreme Court in Jawaharlal Nehru University v. K.S Jawatkar, 1989 Supp (1) SCC 679, have held that contract of service entered into by the respondents was a contract with the appellant university and no law can convert that contract into a contract between the respondent and the Manipur University without simultaneously making it either expressly or by necessary implication, subject to the respondent's consent. In this case, the employee of the university i.e Jawaharlal Nehru University was transferred to Manipur University without his consent, which was held to be bad in law. Their Lordships have held as under:

“[7] In this appeal the main contention of the appellant is that the respondent was appointed at the Centre of Post-graduate Studies, Imphal, and when the Centre A as transferred to the Manipur University his services were automatically transferred to that University, and consequently he could not claim to be an employee of the appellant University. The argument proceeds on the assumption that the Centre of Post-graduate Studies at Imphal was an independent entity which existed by itself and was not a department of the appellant University. The submission proceeds on a fallacy. The Centre of Postgraduate Studies was set up at Imphal as an activity of the appellant University. To give expression to that activity, the appellant University set up and organised the Centre at Imphal and appointed a teaching and administrative staff to man it. Since the Centre represented an activity of the appellant University the teaching and administrative staff must be understood as employees of the appellant University. In the case of the respondent, there can be no doubt whatever that he was, and continues to be, an employee of the appellant University. There is also no doubt that his employment could not be transferred by the appellant University to the Manipur University without his consent, notwithstanding any statutory provision to that effect whether in the Manipur University Act or elsewhere. The contract of service entered into by the respondent was a contract with the appellant University and no law can convert that contract into a contract between the respondent and the Manipur University without simultaneously making it, either expressly or by necessary implication, subject to the respondent's consent. When the Manipur University Act provides for the transfer of the services of the staff working at the Centre of Post-graduate Studies, Imphal, to employment in the Manipur University, it must be construed as a provision enabling such transfer of employment but only on the assumption that the employee concerned is a consenting party to such transfer. It makes no difference that the respondent was not shown in the list of Assistant Professors of the appellant University or that the provision was not indicated in its budget; that must be regarded as proceeding from an erroneous conception of the status of the respondent. The position in law is clear, that no employee can be transferred, without his consent, from one employer to another. The consent may be express or implied. We do not find it necessary to refer to any case law in support of this conclusion.

[8] Inasmuch as the transfer of the Centre of Postgraduate Studies from the appellant University to the Manipur University could not result in a transfer of the employment of the respondent from the one to the other, it must be concluded that the respondent continues in the employment of the appellant University. The transfer of the Centre of Postgraduate Studies to the Manipur University may be regarded as resulting in the abolition of the post held by the respondent in the appellant University. In that event, if the post held by the respondent is regarded as one of a number of posts in a group, the principle “last come, first go” will apply, and someone junior to the respondent must go. If the post held by him constitutes a class by itself, it is possible to say that he is surplus to the requirements of the appellant University and is liable to be retrenched, But it appears that the respondent has been adjusted against a suitable post in the appellant University and, has been working there without break during the pendency of this litigation, and we cannot, therefore, permit the appellant University to retrench him.”

5. Their Lordships of the Hon'ble Supreme Court in State of Punjab v. Inder Singh, in (1997) 8 SCC 372, have held that deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis and there should be no deputation without the consent of the person so deputed and would therefore know his right and privileges in the deputation post. Their Lordships have held as under:

[19] 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.”

6. In the case in hand, the transfer of the petitioner ordered by the respondent University without her consent is illegal.

7. Accordingly, the writ petition is allowed. Annexure P-2 dated 30.4.2014, qua the petitioner, is quashed and set aside. Pending applications, if any, also stand disposed of. No costs.