ELVINA ISUDAS CHRISTIAN Vs. M K RAITHATTHA

JUDGEMENT

(1.) Rule 17 of the Learned advocate Mr. H.S.Mulia is appearing for Mr.R.C.Jani, learned advocate appearing for the petitioner. Ms. Siddhiben Talati, learned AGP is appearing for the respondent authorities. The facts of the present petition, in short, are that the petitioner was appointed as a staff nurse on 8.3.80 and since then, the petitioner has been discharging her duties as such in the Medical Branch of Civil Hospital. Thus, the petitioner is directly in services of the State Government. The petitioner was transferred by order dated 22nd September, 1988 on deputation from Medical Department to the Health Department, in the Primary Health Centre concerned in village Sander of Mehsana District According to the petitioner, such transfer is virtually a transfer out of the Government service as the Primary Health Centres are not maintained by the Government and are maintained by the District Panchayat and the staff of the Primary Health Centres is controlled by the District Development Officer and/or the District Health Officer and is transferrable to another primary health centre by such an officer. If the order of transfer is implemented, then the petitioner will be permanently under the Panchayat Service and her services would become transferrable from one village to another village. In para 3 of the petition, the petitioner has made averments about the mala fide of respondent NO.2 in passing the order of transfer. Thereafter, by moving the amendment, the petitioner has amended the petition and in paragraph 3A of the petition, the petitioner has raised the contention that the transfer on deputation to another department from Medical Branch to the Health Department can be made only with the consent of the petitioner as laid down by this Court in the case of Bhagwatiprasad Gordhandas Bhatt versus State of Gujarat, reported in 18 GLR pg. 562. Therefore, in paragraph 9A, the petitioner has prayed to issue a writ of mandamus or any other appropriate writ, order or direction to quash the order annexure "A" dated 22nd September, 1988 and has also prayed for interim relief against the implementation and execution of the said order dated 22nd September, 1988 during the pendency of this petition.

(2.) This Court, while admitting this petition by issuing rule thereon, has granted the interim relief in terms of para 9(B) of the petition. It was, however clarified by this Court that it will be open to the respondent authorities to transfer the petitioner in the same cadre if it becomes necessary for any valid administrative reasons. While granting interim relief, this Court has also considered the judgment of this court in case of Bhagwatiprasad (supra). This interim order passed by this court while admitting this petition is in force till this date and the same has not been challenged by the respondents before any higher forum. The respondents have also not filed any affidavit in reply to the present petition controverting the averments made by the petitioner in the petition.

(3.) It is prima facie clear that the petitioner has been transferred on deputation from Medical Department to the Health Department and as such, same is illegal. The respondent has not pointed out that such transfer has been made with the consent of the petitioner. The word 'deputation' has been mentioned in the impugned order of transfer dated 22nd September, 1988. In the decision of this Court in case of Bhagwatiprasad (supra), it has been observed that the word "deputation" connotes service out side the cadre or out side the parent department in which the petitioner is serving. With consent, the employee can be deputed to any department or any cadre or at any other place of service. The transfer is always limited to equivalent post in the same cadre and in the same department. The deputation and transfer both are basically different from each other in a way that the transfer can be only to equivalent post in the same cadre but the deputation may be to any other department where even the equivalence may not have been determined. The transfer is a right of the master and it is an incident of service and can only be challenged on the ground of mala fide and/or violation of the statutory rules relating to transfer. The deputation can be made only with the consent of the employee because the employe joined the department to render service in that department and he cannot be made to serve somewhere else, may be in a post much lower to his post. If such power is to be conceded, the contract of service may be degenerated into a contract of slavery because the slaves can be employed in any manner and in any work human or inhuman as the master or the owner of the slave desires. Such is not the position of the employees of the State. Therefore, on principles and authority, it appears clear that a person belonging to a cadre cannot be deputed or transferred out side the parent department and out side the cadre. He may be sent on deputation but that too with his consent. The deputation cannot be made without consent of the person to be deputed.