CAT says no to ‘deputation’ without employee’s consent

Srinagar, Apr 12: The Central Administrative Tribunal (CAT) in Srinagar Friday ruled that the government cannot carry out the deputation of an employee without his or her consent, even as it put in abeyance an order related to the deputation of an officer.

“There can be no deputation without the consent of the employee,” said a judgment passed by a bench of M S Latif, Member (J), in response to a plea by a senior prosecuting officer, Khurshid Ahmad Khan (APP JMIC Court, Kupwara), who has been deputed to Ladakh for a period of two years. Khan had primarily challenged the order of his deputation on the ground that the same violated Government Order No 1458-JK (GAD) of 2022 dated December 1, 2022, wherein, he said, general principles had been laid down regarding the deputation of employees.

Besides, his plea was based on the contention that his mother was “suffering from medical exigencies and being the only male member in the family, he had to look after his ailing mother”.

In support of her contention, Khan’s counsel, Sehreen Zehra, referred to a Supreme Court judgment ‘Sarita Singh versus Shree Infosoft Private Limited’ in Civil Appeal No 346 of 2022 wherein the apex court has held that “there can be no deputation without the consent of the person so deputed”.

She argued that in the instant case, no consent had been sought from the petitioner, saying as such the order related to his deputation was bad in law and also against the “dictum of the apex court”.

In the counter-argument, Deputy Advocate General, Bikram Deep Singh along with Government Advocate Waseem Gul, representing the government submitted that the petitioner did not have the right to be posted at a place of his choice.

They contended that it was always for the competent authority to decide the matter in the exigency of service.

“There can be no deputation without the consent of the person so deputed,” the tribunal said while relying on the decision of the apex court in ‘Sarita Singh versus Shree Infotech Private Limited’ as also the ‘State of Punjab versus Inder Singh and others’.

It said: “Perusal of the order impugned reveals that the respondents have not sought any consent from the petitioner for his deputation.”

The tribunal also referred to the Supreme Court judgment ‘S K Nausad Rahman and others versus Union of India and others, 2022’ wherein the apex court has held that “preservation of family life is an incident of Article 21 and the State while formulating a policy for its employees has to give consideration to the importance of protecting family life as an element of the dignity of the person and a postulate of privacy”.

While the court noted that the respondents (authorities) had not sought any consent from the petitioner for his deputation, it said: “A deputation involves a tripartite consensual agreement between the lending employer, borrowing employer and the employee.”

Disposing of the petition, the tribunal asked the authorities to consider the representation the petitioner has filed before them having due regard to the averments made therein coupled with the law laid down by the Supreme Court in the cases referred to (by the tribunal).

The court ordered that the decision on the representation be taken positively within 15 days from the date its copy of the order is served upon them.

“Till then the order impugned as it relates to the petitioner shall be kept in abeyance,” it said. “It is expected that the respondents will make every endeavour to pass a speaking order on the representation of the petitioner within the aforesaid period positively.”