In ordinarily transfers deputationist has no legal right to be absorbed in the post to which he is deputed: Jharkhand High Court
Ordinarily transfers on deputations are made as against equivalent post from one cadre to another, one department to another, or one Government to another; in such case, a deputationist has no legal right in the post. Such deputationist has no right to be absorbed in the post to which he is deputed. In such a case, deputation does not result in recruitment, as no recruitment in its true import and significance takes place as the person continues to be a member of the parent service. The judgement was passed by the High Court of Jharkhand in the case of Rajeshwar Prasad vs The State of Jharkhand & Anr. [W.P.(S) No. 1935 of 2014] by Single Bench consisting of Hon’ble Justice Deepak Roshan.
The facts of the case are the petitioner joined the service of BHALCO, was sent on deputation to the sanctioned post of correspondence clerk in the Minor Irrigation Department, the service condition of the petitioner was never done by the department. Thereafter, the petitioner made a representation before the respondent-authorities for payment of the arrear of salary and other retiral benefit withdrawn the benefit given to the petitioner on account of revision of pay scale based on the recommendation made by 6th pay revision.
Learned counsel for the petitioner submits that the petitioner was appointed by deputation as the appointment of the petitioner was done in the Minor Irrigation Monitoring and Valuation Division, Ranchi on the sanctioned post of correspondence clerk and his service condition was to be determined by Minor Irrigation Department. Moreover, the parent department of BHALCO was on the verge of closure and at the stage of winding up and was not in a position to retain its employee. Further, till his retirement; the petitioner was never repatriated for the obvious reason that the parent department was almost on closure.
learned counsel for the respondent submits that the petitioner was an employee of BHALCO which is a corporation of the State of Bihar. He referred to paragraph 5 of its counter-affidavit and submits that the petitioner was allowed to work on a deputation basis in the Minor Irrigation Department of the State Government and he was working on a deputation and he was paid his salary against the work done by him. He reiterated that he was never a State Government employee 5 and his claim for retiral benefit similar to the State Government employee is not sustainable in the eye of law.
Relying on The Hon’ble Apex Court in the case of Ashok Kumar Ratilal Patel Vs. Union of India & Another wherein “it was held that ordinarily transfers on deputations are made as against equivalent post from one cadre to another, however in cases where the deputation has been made by way of advertisement then, in that case, the same cannot be treated as deputation by transfer rather it will be considered as appointment by deputation.”
While allowing the petition the court finds that “though there was no advertisement; but it was the policy decision of the Government that since BHALCO was on the verge of closure and under winding-up process; all the employees of BHALCO shall be deputed to other organizations of the State Government; as such, the case of this petitioner cannot be termed as transfer by deputation, rather his case will be treated as an appointment on deputation.”