# Dinesh Kumar Singh v. The State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 547
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-18
- **Case number:** Writ A No. 11172 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-kumar-singh-v-the-state-of-u-p-ors-51690
- **Pages:** 19

## Headnote

A. Service Law - Post of Executive Officers
-
Appointment
on
deputation
-
Entitlement to continue beyond the term
of appointment - How far deputation
appointment confers right - Principle of
legitimate expectation - Applicability -
Held,
the
principle
of
legitimate
expectation
was
held
not
to
apply,
because the right to receive foreign
allowance
was
governed
by
policy
decision of the President, in the absence
of
any
right
based
on
contract
or
otherwise. The legitimate expectation was
held to have been displaced by policy
decision - The writ petitioners in the
leading writ petition, notwithstanding the
fact that their's is a case of appointment
on deputation, as distinguished from a
transfer on deputation, have no right to
continue
beyond
their
term
of
appointment, which they have accepted
with open eyes. (Para 25 and 39)

B.
Service
Law
-
'Appointment
on
Deputation' and 'Transfer on Deputation' -
Distinction - Held, an 'appointment on
deputation' is essentially different from a
'transfer
on
deputation'.
The
former
confers a right to hold the post as it comes
after a selection in accordance with Rules.
The
right
is
limited
to
the
tenure
mentioned in the appointment and subject
to its own nature about the period of time
etc. However, it is certainly different from
a 'transfer on deputation', where there is
no right to the post or a lien held with the
consequence that a deputationist may be
called back by the lending employer, the
parent department, or repatriated by the
borrowing employer. (Para 31)

Writ petition dismissed. (E-1)

List of cases cited :-

## Text

_Characters 0–39,863 of 67,695. This is a partial read: ask again with offset=39863 for what follows._

3 All. Dinesh Kumar Singh Vs. The State of U.P. & Ors.
547
to the arrears of salary for twenty-four
months and the arrears of subsistence
allowance directed to be paid hereinabove,
unconditionally.

47. In the result, this writ petition
succeeds and is allowed in part. The
impugned order dated 30.05.2023 passed
by
the
Managing
Director
of
the
Corporation
is
hereby
quashed.
A
mandamus is issued in the terms indicated
hereinabove.

48. There shall be no order as to
costs.
----------
(2024) 3 ILRA 547
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2024
BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 11172 of 2023
Connected with
Writ A No. 11275 of 2023

Dinesh Kumar Singh ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare, Sri Ashok Khare (Sr.
Advocate)

Counsel for the Respondents:
C.S.C.

A. Service Law - Post of Executive Officers
-
Appointment
on
deputation
-
Entitlement to continue beyond the term
of appointment - How far deputation
appointment confers right - Principle of
legitimate expectation - Applicability -
Held,
the
principle
of
legitimate
expectation
was
held
not
to
apply,
because the right to receive foreign
allowance
was
governed
by
policy
decision of the President, in the absence
of
any
right
based
on
contract
or
otherwise. The legitimate expectation was
held to have been displaced by policy
decision - The writ petitioners in the
leading writ petition, notwithstanding the
fact that their's is a case of appointment
on deputation, as distinguished from a
transfer on deputation, have no right to
continue
beyond
their
term
of
appointment, which they have accepted
with open eyes. (Para 25 and 39)

B.
Service
Law
-
'Appointment
on
Deputation' and 'Transfer on Deputation' -
Distinction - Held, an 'appointment on
deputation' is essentially different from a
'transfer
on
deputation'.
The
former
confers a right to hold the post as it comes
after a selection in accordance with Rules.
The
right
is
limited
to
the
tenure
mentioned in the appointment and subject
to its own nature about the period of time
etc. However, it is certainly different from
a 'transfer on deputation', where there is
no right to the post or a lien held with the
consequence that a deputationist may be
called back by the lending employer, the
parent department, or repatriated by the
borrowing employer. (Para 31)

Writ petition dismissed. (E-1)

List of cases cited :-

1. Ashok Kumar Ratilal Patel Vs U.O.I.& anr.;
(2012) 7 SCC 757

2. U.O.I.& anr.Vs S.N. Maity & anr.; (2015) 4
SCC 164

3. Kumari Shrilekha Vidyarthi & ors. Vs St. of
U.P. & ors.; (1991) 1 SCC 212

4. National Buildings Construction Corporation
Vs S. Raghunathan & ors.; (1998) 7 SCC 66

5. Kunal Nanda Vs U.O.I.& anr.; (2000) 5 SCC
362

6. Dr. O.P. Singh Vs St. of U.P. & ors.; 2002 (4)
AWC 3067 (LB)
(Delivered by Hon'ble J.J. Munir, J.)

1. This judgment will decide the
present writ petition and connected Writ-A
548 INDIAN LAW REPORTS ALLAHABAD SERIES
No.11275 of 2023. There are common
questions of fact and law involved in both
the writ petitions, and, therefore, the two
have been heard together, with Writ-A
No.11275 of 2023 being treated the leading
case. The facts, therefore, will be noticed
from the record of Writ-A No.11275 of
2023,
where
affidavits
have
been
exchanged.

2. An advertisement was issued by the
Director, Local Bodies, U.P., Lucknow
dated 20th December, 2018, acting on a
letter of the Government, bearing No.
3591/9-4-18-50ज/
17टी0सी0
dated
05.11.2018, advertising posts of Assistant
Commissioner/ Executive Engineer Class1/
Deputy
Secretary,
Development
Authority, Executive Engineer Class-2,
Executive
Engineer
Class-3,
besides
Executive Officer, Nagar Panchayat, being
22, 13, 16 and 107 posts, in that order. The
advertisement said that in public interest,
the aforesaid posts would be filled up from
amongst officials working under the
Government on the basis of deputation
against each of the four categories of posts.
The pay-scale and the relative essential
qualifications for a direct recruit were
indicated. The advertisement indicated
further eligibility qualifications that a
government servant working in one or the
other department, must possess in order to
be appointed on deputation to one or the
other of the posts advertised. It was also
stipulated that the appointment would be
valid till a regular arrangement was made
or for a period of one year, whichever is
earlier. The other matters mentioned in the
advertisement may not be of much
consequence.

3. The petitioners, who are fourteen in
number in the leading writ petition, have
come up with a case that each of them are
holding permanent substantive posts under
the Government in one department or the
other, and that all of them are eligible. The
petitioners, accordingly, applied in response
to the advertisement for consideration of
their candidature for the posts of Executive
Officers, Nagar Panchayat on deputation.
Each of the petitioners, being eligible, were
called to interview and they faced the
selection committee appointed for the
purpose. Each of them were selected for
appointment.

4. It is common ground that the
petitioners selected for the positions of
Executive Officer, Nagar Panchayat were
granted
appointment
by
means
of
appointment
orders
dated
31.01.2019,
26.02.2019 and 09.03.2019. The orders of
appointment
granted
appointment
on
deputation for a period of one year till a
regular arrangement was made. Pursuant to
the orders of appointment, each of the
petitioners joined immediately and have
been working as Executive Officers, Nagar
Panchayat at different places. The dates of
joining of each of the petitioners are
indicated in Paragraph No.17 of the writ
petition, which all lie in the months of
January to March, 2019. The petitioners say
that subsequent to their joining on the post
of Executive officer, Nagar Panchayat on
deputation, they have been transferred from
one place to another and served also at
stations of transfer, different from the Local
Body to which they were appointed or, so
to speak, initially posted. The current
places of posting of each of the fourteen
petitioners are pleaded in Paragraph No.19
of the writ petition, but no gainful purpose
would be served by enumerating all those
details.

5. It is the petitioners' case that their
work and conduct is satisfactory. There is
3 All. Dinesh Kumar Singh Vs. The State of U.P. & Ors.
549
no cause for complaint to the Local Bodies
concerned, wherever they have served. The
case of the petitioners further is that there is
large vacancy in the cadre of the Executive
Officer, Nagar Panchayat in the State. It is
averred in Paragraph No.21 that apart from
the posts, against which officers appointed
pursuant to the advertisement dated 20th
December,
2018,
are
working
on
deputation, there is a vacancy of 200 posts
of Executive Officers in different Nagar
Panchayat of the State, which continue to
be substantially vacant, and wherefor no
regular selection has been held as yet.
There is said to be an extreme shortage of
regularly
selected
Executive
Officers,
Nagar Panchayat. Regular selection to the
post
of
Executive
Officers,
Nagar
Panchayat is made by the U.P. Subordinate
Service Selection Commission (for short,
'the Commission'). No regularly selected
candidate from the aforesaid Commission
is available or appointed.

6. It is also the petitioners' case that
though they were initially appointed for a
period of one year, but the said period of
time has been extended from time to time,
in consequence of which, the petitioners
have been in continuous engagement. The
extension has been granted beyond the
period of one year vide order dated 24th
August, 2021 issued by the Additional
Chief Secretary to the Government of U.P.
in the Department of Local Bodies. Now,
the State Government have issued a
Government Order, directing the services
of these Executive Officers appointed on
deputation
to
be
discontinued.
The
Government Order of 5th July, 2023 refers
to an earlier Government Order dated
16.03.2019, which in turn purports to give
effect a still older Government Order of
16th March, 1999. Acting in deference to
the Government Order dated 05.07.2023,
the Director, Local Bodies has issued a
consequential order dated 07.07.2023.
There is another order passed by the State
Government on 9th July, 2023, directing
that the charge of the vacant post of the
Executive
Officers,
Nagar
Panchayat,
including those held by the petitioners on
deputation, shall be given as additional
charge to the Executive Officers of
different Nagar Panchayat. The effect of the
Government Order dated 05.07.2023 and
that of the Director, Local Bodies dated
07.07.2023,
is
that
the
petitioners'
appointment on deputation in the Nagar
Panchayat would come to an end and the
petitioners
would
go
back
to
their
respective parent Departments.

7. Aggrieved by the order dated
05.07.2023 passed by the Government and
the order dated 07.07.2023 passed by the
Director, Local Bodies, putting an end to
the appointment on deputation for the
petitioners on positions of the Executive
Officers,
Nagar
Panchayat, this
writ
petition has been instituted under Article
226 of the Constitution.

8. A supplementary affidavit has been
filed on behalf of the petitioners. A counter
affidavit has been filed on behalf of the
Uttar Pradesh Nagar Palika Adhishashi
Adhikari Seva Sangh through its General
Secretary, Kunwar Gaurav Singh. The
affidavit has been filed by one Chaitanya
Kumar Tiwari, the Executive Officer,
Nagar
Panchayat,
Handia,
District
Prayagraj. This association has not been
formally impleaded as a party-respondent
to the petition, but heard nevertheless under
Chapter XXII Rule 5-A of the Allahabad
High Court Rules, 1952, as the decision in
this petition is likely to affect the interest of
other members of the association.

9. A counter affidavit has been
filed on behalf of the State Government,
550 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent No.1, which is a personal
affidavit of the Principal Secretary, Urban
Development,
Government
of
U.P.,
Lucknow.

10. Heard Mr. Ashok Khare, learned
Senior Advocate assisted by Mr. Siddharth
Khare, learned Counsel for the petitioners
and Mr. Dinesh Kumar Singh, learned
Additional
Chief
Standing
Counsel
appearing on behalf of the State. Mr. S.K.
Singh, Advocate, appearing for the nonparties, has been heard under Chapter XXII
Rule 5-A of Rules of the Court, 1952.

11. In the connected writ petition, Mr.
Ashok Khare, learned Senior Advocate
assisted by Mr. Siddharth Khare, learned
Counsel has been heard on behalf of the
petitioners and Mr. Dinesh Kumar Singh,
learned Additional Chief Standing Counsel
for the State.

12. Mr. Ashok Khare, learned Senior
Advocate has argued that the State
Government and the Director, Local Bodies
have, in passing the orders impugned dated
05.07.2023 and 07.07.2023, committed a
manifest illegality, inasmuch as they have
not borne in mind the seminal distinction
between a 'transfer on deputation' and an
'appointment on deputation'. Whilst a
transfer on deputation does not confer any
right on the deputationist to continue on the
post, an appointment on deputation does
confer some rights. It is argued that a
transfer on deputation is no recruitment to
the post where the deputationist is working.
But, an appointment on deputation, by
contrast, is indeed a recruitment to the post.
Therefore, according to Mr. Khare, an
appointment on deputation cannot be
disturbed at the sweet will of the employer.
The rights of an appointee on deputation
have to be judged in accordance with the
terms of appointment and the ancillary
rights arising therefrom, including equities.
In support of this distinction, in the nature
of appointment by way of deputation and a
mere transfer on deputation, Mr. Khare has
placed reliance upon the decision of the
Supreme Court in Ashok Kumar Ratilal
Patel v. Union of India and another,
(2012) 7 SCC 757 and Union of India and
another v. S.N. Maity and another, (2015) 4
SCC 164.

13. Elaborating his submissions, the
learned Senior Advocate argues that the
petitioners'
appointments
are
tenure
appointment, where each of them were
entitled to continue until a regularly
selected candidate. He has invited the
Court's attention to the appointment orders
dated
31.01.2019,
26.02.2019
and
09.03.2019, which say that the appointment
would continue till permanent arrangement
is made or for one year, whichever is
earlier. It is urged that this nature of the
tenure demonstrates the intention of the
Appointing Authority, which is to the effect
as indicated hereinabove. In support of this
submission, the learned Senior Advocate
has called attention to Paragaph Nos.4 and
15 of the report in S.N. Maity (supra),
which read:

"4. The High Court after posing
the questions took note of the fact that the
Union of India had issued an advertisement
in
Employment
News
dated
20-102001/26-10-2001 calling for applications
from eligible candidates for appointment to
the post of Cgpdtm and the Ministry had
proposed to fill up the post by transfer on
deputation, including short-term contract.
The first respondent, being eligible, applied
through his parent department i.e. Central
Mining Research Institute, Dhanbad and
his selection was made by the Union Public
3 All. Dinesh Kumar Singh Vs. The State of U.P. & Ors.
551
Service Commission (for short "UPSC")
which held interview on 4-6-2002 and
finding him suitable, recommended his
name for appointment. The competent
authority approved the appointment of the
first respondent, the petitioner before the
High Court, for the post of Cgpdtm in the
pay scale of Rs 18,400-500-22,400 on
deputation basis for a period of five years
or until further orders, whichever was
earlier from the date of assumption of the
charge of the post. The said order was
communicated vide Letter No. 8/52/2001PP&C (Vol. II) dated 23-6-2003 issued by
the Deputy Secretary to the Government of
India, Department of Industrial Policy and
Promotion.
Thereafter,
a
letter
of
appointment dated 11-8-2003 was issued to
the first respondent in the name of the
President, appointing him on deputation
basis for a period of five years or until
further orders, whichever was earlier.

15. The controversy that has
emerged in the instant case is to be decided
on
the
touchstone
of
the
aforesaid
principles of law. We have already opined
that it is not a case of simple transfer. It is
not a situation where one can say that it is a
transfer on deputation as against an
equivalent post from one cadre to another
or one department to another. It is not a
deputation from a government department
to a government corporation or one
Government to the other. There is no cavil
over the fact that the post falls in a different
category and the first respondent had gone
through the whole gamut of selection. On a
studied
scrutiny,
the
notification
of
appointment makes it absolutely clear that
it is a tenure posting and the fixed tenure is
five years unless it is curtailed. But, a
pregnant one, this curtailment cannot be
done in an arbitrary or capricious manner.
There has to have some rationale. Merely
because the words "until further orders" are
used, it would not confer allowance on the
employer to act with caprice."

14. It is next submitted by the learned
Senior
Advocate
appearing
for
the
petitioner that there does not exist any
reason to issue the order dated 05.07.2023
cancelling
appointment
of
all
the
deputationists on the post of Executive
Officers, Nagar Panchayat. This action is
without reason and in violation of Article
14 of the Constitution. It is argued that the
State Government could not have removed
without cause all the Executive Officers
appointed on deputation by one stroke of
pen, without consideration of individual
cases, the circumstances in each Nagar
Panchayat and the individual performance.
In support of this contention of his, Mr.
Ashok Khare has placed reliance upon the
decision of the Supreme Court in Kumari
Shrilekha Vidyarthi and others v. State
of U.P. and others, (1991) 1 SCC 212. In
this regard, attention has been drawn by the
learned Senior Advocate to Paragraph
No.12 of the counter affidavit, which
claims, according to him, unfettered rights
in the State Government to remove all the
deputation appointees at will and by fiat.

15. The next submission advanced by
the learned Senior Advocate is that the
impugned order dated 07.07.2023 issued by
the Director, Local Bodies, Lucknow has
not been passed upon an individual
application of mind to each case and the
exercise of his discretion, but is one made
on the dictate and command of the State
Government. It is urged that an order,
where
the
Authority,
possessed
of
jurisdiction to pass it, does not do so in the
exercise of its own discretion, but on the
dictate and command of a superior or
another, renders the order non est. Reliance
in this connection is placed by the learned
552 INDIAN LAW REPORTS ALLAHABAD SERIES
Senior Advocate on the decision of the
Supreme
Court
in
Anirudhsinhji
Karansinhji Jadeja and another v. State
of Gujarat, (1995) 5 SCC 302. Learned
Senior Counsel has drawn the attention of
this Court to Anirudhsinhji Karansinhji
Jadeja (supra), where it is observed:

"11. ......... This is a case of power
conferred upon one authority being really
exercised by another. If a statutory
authority has been vested with jurisdiction,
he has to exercise it according to its own
discretion. If the discretion is exercised
under the direction or in compliance with
some higher authority's instruction, then it
will be a case of failure to exercise
discretion altogether. In other words, the
discretion vested in the DSP in this case by
Section 20-A(1) was not exercised by the
DSP at all.

12. Reference may be made in
this connection to Commr. of Police v.
Gordhandas Bhanji [1951 SCC 1088 :
1952 SCR 135 : AIR 1952 SC 16] , in
which the action of Commissioner of
Police in cancelling the permission granted
to the respondent for construction of
cinema in Greater Bombay at the behest of
the State Government was not upheld, as
the rules concerned had conferred this
power on the Commissioner, because of
which it was stated that the Commissioner
was bound to bear his own independent and
unfettered judgment and decide the matter
for himself, instead of forwarding an order
which another authority had purported to
pass.

13. It has been stated by Wade
and Forsyth in Administrative Law, 7th
Edn. at pp. 358-59 under the heading
"Surrender, Abdication, Dictation" and subheading "Power in the wrong hands" as
below:

"Closely akin to delegation, and
scarcely distinguishable from it in some
cases, is any arrangement by which a
power conferred upon one authority is in
substance exercised by another. The proper
authority may share its power with
someone else, or may allow someone else
to dictate to it by declining to act without
their consent or by submitting to their
wishes or instructions. The effect then is
that the discretion conferred by Parliament
is exercised, at least in part, by the wrong
authority, and the resulting decision is ultra
vires and void. So strict are the courts in
applying this principle that they condemn
some administrative arrangements which
must seem quite natural and proper to those
who make them....

Ministers and their departments
have several times fallen foul of the same
rule, no doubt equally to their surprise...."

14. The present was thus a clear
case of exercise of power on the basis of
external dictation. That the dictation came
on the prayer of the DSP will not make any
difference to the principle. The DSP did not
exercise the jurisdiction vested in him by
the statute and did not grant approval to the
recording of information under TADA in
exercise of his discretion."

16. In the connected writ petition, Mr.
Khare has submitted that an additional
feature on facts that requires consideration
is that the petitioner in that case was
appointed on deputation pursuant to the
order of appointment dated 12.07.2022 on
28.07.2022 and has been removed by the
orders impugned, short of completing a
year
of
service
on
the
deputation
appointment.

17. Mr. Dinesh Kumar Singh, learned
Additional Chief Standing Counsel and Mr.
S.K. Singh, learned Counsel appearing on
behalf of the parties heard under Chapter
XXII Rule 5-A of the Rules of Court, are
3 All. Dinesh Kumar Singh Vs. The State of U.P. & Ors.
553
unanimous in refuting the submissions of
Mr. Khare. It is argued by them that
deputation,
whether
by
transfer
or
appointment, does not confer any right
upon the deputationist. It does not give rise
even to a legitimate expectation in favour
of the appointee. It is next submitted that in
any case, so far as the petitioners of Writ-A
No.11275 of 2023 are concerned, they have
completed three years of their tenure on
deputation, which is the usual period for a
deputation appointment in accordance with
the Government Order dated 16.03.1999. It
can be extended up to five years with the
concurrence of the Finance Department,
but that does not confer a right upon the
deputation appointee to ask for a tenure for
the maximum permissible of five years.
Learned Counsel for the respondents have
placed reliance upon the decision of the
Supreme Court in National Buildings
Construction
Corporation
v.
S.
Raghunathan and others, (1998) 7 SCC
66 and Kunal Nanda v. Union of India
and another, (2000) 5 SCC 362. They
have further placed reliance upon a Bench
decision of this Court in Dr. O.P. Singh v.
State of U.P. and others, 2002 (4) AWC
3067 (LB), where S. Raghunathan (supra)
and Kunal Nanda (supra) were followed
to hold about the right of a deputationist to
continue on deputation:

"24.
Applying
the
above
principles, we are of the view that it is the
prerogative of an employer to call back its
employee from deputation or to post any
other officer of higher rank in his place.
Petitioner can have legitimate expectation
where he has permanent lien but he has no
right or lien on the deputation post even if
he has been sent to the borrowing
department for a specific period. We are
further of view that the period of deputation
can be curtailed by the employer at any
point of time on administrative ground or in
public interest. The policy pointed out by
the petitioner is equivalent to the policy of
transfer which does provide for minimum
stay of a Government, employee on a
particular station for three years but the
State Government or for that matter, the
authority competent, may transfer the
employee prior to three years period on
administrative ground or in administrative
exigencies. Policies are merely guidelines
and have no statutory force of law."

18.

We
have
considered
the
submissions advanced on behalf of both
sides by learned Counsel for the parties.

19. The question that falls for
determination in this case is: Whether the
deputation appointment in the petitioners'
favour confers some kind of a right upon
them, which cannot be curtailed by the
orders impugned, relieving them of their
position as Executive Officers, Nagar
Panchayat and asking them to join their
substantive posts in the parent department?

20. All the law relating to deputation,
which says that the deputationist has no
right to the post, bears no lien on it and can
be required by the lending or the borrowing
employers to go back to his parent
department, is said to have no application
here, because there is a seminal distinction
between a 'transfer on deputation' and an
'appointment on deputation'. There is no
cavil about the legal position, where a
deputationist is sent by the lending
department
or the employer to the
borrowing employer, as a purely temporary
arrangement, on deputation, which has
been described as transfer on deputation.

21. In Kunal Nanda, the issue arose
in the context of a claim for permanent
554 INDIAN LAW REPORTS ALLAHABAD SERIES
absorption in the Central Bureau of
Investigation by an Assistant Sub-Inspector
of Police belonging to the CRPF, who had
been sent there on deputation, apparently a
transfer to the borrowing employer, without
any kind of selection in accordance with
Rules by the borrowing department. The
facts in Kunal Nanda may best be
described in the words of their Lordships:

"2. ............... The appellant, a
member of CRPF and serving as an
Assistant Sub-Inspector in the said parent
Department w.e.f. 1-1-1987, joined the
service of CBI on deputation in the same
capacity as ASI on 1-8-1991. He continued
to work as ASI on the deputation terms for
the initial period, which came to be
extended from time to time with the mutual
consent of the lending and borrowing
Department. In the year 1994, no doubt, the
borrowing
Department
expressed
an
inclination for permanent absorption in CBI
and sought for the concurrence of CRPF to
which, it appears, the lending Department
also conveyed its clearance.

3. It may be noticed at this stage
that while on such deputation in CBI, the
appellant was also appointed as SubInspector on 1-6-1995 and in his parent
Department also he was promoted as such.
There are no specific statutory rules as such
governing the question of absorption of a
deputationist. On the other hand, the said
subject is governed by departmental
instructions and circular orders as per
which the qualification and experience of
the officers to be selected should be
comparable to those prescribed for direct
recruits to such posts where direct
recruitment has also been prescribed as one
of the methods of the appointment in the
Recruitment Rules. In consonance with
such procedure, the appellant was asked to
undertake a written test. He made a formal
application disclosing his credentials and
on the basis of his performance in the
written test, the record relating to the last
five years' ACRs (Part I - Personal Data)
for the period 1993-94 to 1997-98 in which
the appellant mentioned about his basic
educational qualification as BA and his
performance in the interview, the Screening
Committee constituted for the purpose
recommended
the
absorption
of
the
appellant in CBI as Sub-Inspector. But
when the appellant was asked to produce
the documents in original in support of his
educational
qualifications
etc.,
the
appellant started explaining that for a
person of his standing in service the basic
educational qualification of passing the
senior secondary examination is enough
and passing of the degree examination, may
not be insisted upon. This was not only
contrary to his earlier representation that he
was
a
graduate
but
the
Screening
Committee's
recommendation
for
absorption in CBI was also on the basis that
the appellant was a graduate, as disclosed
by him. This seems to have been taken also
as proof of his doubtful integrity in
furnishing wrong information about his
educational qualification to be graduation
to somehow gain absorption. Since, in
terms of the relevant Rules the total period
of deputation in the rank of ASI/SI
including that of deputation in any other
cadre/cadre post cannot be for more than
five years, the appellant was repatriated to
his parent Department and also relieved
with effect from 31-1-1999 (AN) with a
direction to report for duty to the parent
Department. ....."

22. The appellant in Kunal Nanda,
having concurrently failed in his challenge
to the order of repatriation before the
Central Administrative Tribunal and the
High Court, appealed by special leave to
3 All. Dinesh Kumar Singh Vs. The State of U.P. & Ors.
555
their Lordships of the Supreme Court.
Negativing the deputationist's claim, it was
held:

"6. On the legal submissions
also made there are no merits whatsoever.
It is well settled that unless the claim of the
deputationist for a permanent absorption in
the department where he works on
deputation is based upon any statutory rule,
regulation or order having the force of law,
a deputationist cannot assert and succeed in
any such claim for absorption. The basic
principle underlying deputation itself is that
the person concerned can always and at any
time be repatriated to his parent department
to serve in his substantive position therein
at the instance of either of the departments
and there is no vested right in such a person
to continue for long on deputation or get
absorbed in the department to which he had
gone on deputation. The reference to the
decision reported in Rameshwar Prasad v.
M.D., U.P. Rajkiya Nirman Nigam Ltd.
[(1999) 8 SCC 381 : 2000 SCC (L&S) 60]
is inappropriate since the consideration
therein was in the light of the statutory
Rules for absorption and the scope of those
Rules. The claim that he need not be a
graduate for absorption and being a service
candidate, on completing service of 10
years he is exempt from the requirement of
possessing a degree needs mention, only to
be rejected. The stand of the respondent
Department that the absorption of a
deputationist being one against the direct
quota, the possession of basic educational
qualification
prescribed
for
direct
recruitment i.e. a degree is a must and
essential and that there could be no
comparison of the claim of such a person
with one to be dealt with on promotion of a
candidate who is already in service in that
Department is well merited and deserves to
be sustained and we see no infirmity
whatsoever in the said claim."

23. No doubt, the decision in Kunal
Nanda is about the right of a deputationist
to be absorbed in the service of the
borrowing department and the essence of
that decision turns on the principle that a
deputationist does not have a right to
absorption in the borrowing department's
service, unless his right is founded on a
'statutory Rule, Regulation or Order having
the force of law', to borrow the words of
their Lordships. But, this principle is about
the right to seek absorption in the
borrowing department's service, which is
not involved here at all. Behind the holding
in Kunal Nanda is also the underlying
principle spoken of by their Lordships in
clear words, that there is no right of the
deputationist to continue in the service of
the borrowing employer and he can be
repatriated to his parent department at the
instance of either of them. This principle, in
turn, is apparently founded on the premise
that a deputation arising in whatever
manner and of whatever nature, to wit, a
'transfer on deputation' or an 'appointment
on deputation', is after all not the
conferment of a substantive right to hold a
post or a lien as it is called.

24. S. Raghunathan was a case
where the deputationists were Executive
Engineers (Civil), employed with the
Central Public Works Department, whose
services had been placed at the disposal of
the
National
Buildings
Construction
Corporation, New Delhi (for short, 'the
NBCC') for appointment as Resident
Engineer (Civil) on projects of the NBCC
in Iraq for a period of two years initially, in
public interest, as per terms and conditions
of appointment shown in the office order
appointing them issued by the NBCC. It
was a case, no doubt, of a 'transfer on
deputation', but never involved the rights of
the deputationists to continue in service of
556 INDIAN LAW REPORTS ALLAHABAD SERIES
the borrowing employer or a question of
lien. The question involved was about the
entitlement of the deputationists to a
component of their pay, called 'foreign
allowance', which, by the terms of their
appointment, they were entitled to receive
at the rate of 125% of their Basic Pay. The
basic pay had been revised in terms of the
Fourth
Pay
Commission,
which
the
deputationists
were
held
entitled
to.
However, the foreign allowance was paid at
the rate of 125% (pre-revised) and not on
the
revised
basic
pay
as
per
recommendations
of
the
Fourth
Pay
Commission.
The
deputationists
had
claimed a revision of the foreign allowance
in the revised basic pay as per the Fourth
Pay Commission and invoked the principle
of legitimate expectation to support their
claim.

25. This claim of the deputationists,
founded as it was on the doctrine of
legitimate expectation, was repelled relying
on Fundamental Rule 51, by holding
foreign allowance not a component of the
salary, but something akin to deputation
(duty allowance), which was in the nature
of a residuary perquisite. Sub-Rule (2) of
Rule 51 of the Fundamental Rules was held
to invest the Government with a discretion
to
pay
the
government
servant
on
deputation in a foreign country such
compensatory allowance as thought fit by
the President. The payment of foreign
allowance as well as its quantum was found
to be left to the absolute discretion of the
President, as it was not one of the
conditions of agreement of deputation. The
principle of legitimate expectation was held
not to apply, because the right to receive
foreign allowance was governed by policy
decision of the President, in the absence of
any right based on contract or otherwise.
The legitimate expectation was held to
have been displaced by policy decision.

26. The policy decision was noted to
be based on an objective assessment of the
prevailing circumstances, including the
financial stringency forthcoming in Iraq.
Also, the right based on a legitimate
expectation
was
rejected
in
S.
Raghunathan by their Lordships, because
there were no pleadings in the writ petition
to support that right. The policy decision
was held not to suffer from any kind of
arbitrariness.
The
decision
in
S.
Raghunathan, though rendered in the
context of a claim by a deputationist, but
does not lay down any principle governing
the right of a deputationist, whether
transferred on deputation or appointed on
deputation, to hold the post for a particular
period of time. The principle of legitimate
expectation has, no doubt, been expounded
copiously by their Lordships, but again, in
the context of the deputationists' right to
receive the foreign allowance at the
specified rate of their revised salary. It is
not in the context of their right to hold the
post on deputation. This decision, therefore,
may not have much bearing on the point,
except about the principle of legitimate
expectation generally expounded there.

27. The Bench decision of this Court
in Dr. O.P. Singh (supra) says it to be a
case where members of the Agricultural
Services, as it is described in the report,
including the petitioner, were sent on
deputation to different departments. The
petitioner was sent on deputation as the
Chief General Manager (Marketing) to the
U.P. State Agro Industrial Corporation
Limited.
The
facts
show
that
the
arrangement
was
purely
interim
or
temporary. The petitioner was sent on
deputation as aforesaid by an order dated
22nd June, 2001 and he took charge on the
26th June, 2001. By an order of the 29th
June, 2002, the State Government posted
3 All. Dinesh Kumar Singh Vs. The State of U.P. & Ors.
557
another officer as the Chief General
Manager (Marketing), U.P. State Agro
Industrial Corporation Ltd., apparently
ousting the petitioner in that case. In Dr.
O.P. Singh, the ousted deputationist
challenged his repatriation on ground that
though
initially
the
deputation
was
temporary and no terms and conditions
were framed, but on 25th May, 2002, the
terms and conditions of his deputation with
the Corporation had come to be settled.
One of the conditions framed was that the
petitioner, who was described as a person
engaged in something called 'outer services'
and working on deputation on the position
of the Chief General Manager (Marketing),
would have a term of three years.

28. By the order of 29th June, 2002,
the deputationist being repatriated to his
parent
department
and
another
deputationist being brought in to substitute
him, it was argued that without amending,
altering or cancelling the order dated 25th
May, 2002, carrying the terms and
conditions of the petitioner's deputation, the
order dated 29th June, 2002 was illegal and
arbitrary. It was also urged that there was
nothing against the petitioner in that case,
who had been successfully working on his
deputation. It was in the context of the
aforesaid facts that their Lordships of the
Division Bench, after noticing the decisions
of the Supreme Court in S. Raghunathan
as well as Kunal Nanda, observed:

"19. It is important to mention at
this place that the learned standing counsel
appearing
for
the
State
Government
produced before us an order, a perusal
whereof Indicates that State Government
on 23rd January, 2002 took a policy
decision of filling the posts in different
corporations including the post of Chief
General Manager (Marketing) in U. P. State
Agro Industrial Corporation by an officer
of
the
rank
of Additional
Director
Agriculture, as such, the contention of the
learned counsel for the petitioner that
without upgrading the post, an officer of
the rank of Additional Director Agriculture
has been posted instead of posting Deputy
Director Agriculture as Chief General
Manager (Marketing) is not correct and has
no force.

24.
Applying
the
above
principles, we are of the view that it is the
prerogative of an employer to call back its
employee from deputation or to post any
other officer of higher rank in his place.
Petitioner can have legitimate expectation
where he has permanent lien but he has no
right or lien on the deputation post even if
he has been sent to the borrowing
department for a specific period. We are
further of view that the period of deputation
can be curtailed by the employer at any
point of time on administrative ground or in
public interest. The policy pointed out by
the petitioner is equivalent to the policy of
transfer which does provide for minimum
stay of a Government, employee on a
particular station for three years but the
State Government or for that matter, the
authority competent, may transfer the
employee prior to three years period on
administrative ground or in administrative
exigencies. Policies are merely guidelines
and have no statutory force of law."

29. Mr. Khare, however, seeks to
distinguish these decisions by submitting
that a case of 'appointment on deputation' is
materially different from a 'transfer on
deputation', which we have already noted to
this end. The facts in S.N. Maity leading to
the appeal by special leave may best be
recounted in the words of their Lordships:

"2. Shorn of the unnecessary
details, the facts which are requisite to be
558 INDIAN LAW REPORTS ALLAHABAD SERIES
stated are that the first respondent was
working as a Scientist E-II in Central
Mining Research Institute (Council of
Scientific and Industrial Research). On 297-2003, he was appointed on deputation to
the post of Controller General of Patents,
Designs and Trade Marks (for short
"Cgpdtm"). After serving there for one
year, by Order F No. 8/52/2001-PP&C
dated 31-8-2004, he was repatriated to his
parent department. The said order was
challenged before the Tribunal contending,
inter alia, that he could not have been
prematurely repatriated to his parent
department and there had been a violation
of the principle of audi alteram partem. The
said stand of the first respondent was
contested by the authorities of the Union of
India proponing, inter alia, that he had no
right to continue in the post as he was on
deputation. Be it stated, some reliefs were
claimed with regard to the TA bills and
salary for certain period. The Tribunal
accepted the stance put forth by the Union
of India and dismissed the original
application.