Holding

A deputationist who, with the consent of all parties, is regularised and absorbed by the borrowing authority is to be treated as a permanent employee of that authority.

Summary

Umapati Chaudhary, a lecturer of Kameshwar Singh Darbhanga Sanskrit University, was deputed to the Bihar Sanskrit Shiksha Board as Controller of Examinations with the consent of the University, the Board and the Government. The Board later sought his permanent absorption, which the University approved, and the State Government gave permission. Some university employees challenged the deputation, and the Patna High Court ordered a substantive appointment but subsequently terminated Chaudhary’s service. The Supreme Court held that deputation is a consensual arrangement requiring the consent of the lending authority, borrowing authority and the employee, and that Chaudhary, having served continuously from 1981 and retired in 1996, must be treated as a permanent employee of the Board for the purpose of calculating retirement benefits. Consequently, the Court set aside the High Court judgment, quashed the termination orders, and allowed the appeal.

Issues considered

Whether a deputationist who has been regularised and absorbed by the borrowing authority becomes a permanent employee of that authority.
Whether the High Court erred in dismissing the writ petition and ordering termination of the appellant’s service.
Whether the consent of the parent department, borrowing authority and employee suffices to validate the deputation and subsequent permanent absorption.

Subjects

deputationservice lawpermanent absorptionretirement benefitspublic interestconsentappointmentBihar Sanskrit Shiksha BoardUniversity

Judgment

A UMAPATICHOUbHARY
v.
STATE OF BIHAR

MAY 14, 1999

B [MRS. SUJATA V. MANOHAR, D.P. MOHAPATRA AND
R.C. LAHOTI, JJ.]

SERVICE LAW-Deputation-Concept of-It is consensual-It involves
a voluntary decision of employer to lend services of his employee and a
.
C corresponding acceptance of such . services by the borrowing employer- .
Consent of employee to go on deputation also required-Parent department,
"the borrowing authority and deputationist, had all given their consent for
deputation and his permanent absorption-No material that deputation was
not in public interest or vitiated by favouritism or mala fide-Since 1981,
D deputationist holding the post-He retired in '1996-Held, deputationist
shall be treated to be a permanent employee of the borrowing department
- on the date of his retirement.

The appellant, a lecturer in Post Graduate department of the University
of Bihar was deputed as Controller of Examinations of the Bihar Sanskrit
E Shiksha Board constituted und.er the Bihar Sanskrit Education Board Act,
1981. The University, the parent department, the Board, the borrowing
authority and the appellant the deputationist, had all given their consent for
deputation of the appellant and for his permanent absorption in the
establishment of the borrowing authority. The Government of Bihar in the
Department of Education by a notification authorised the appellant to discharge
F all the duties and responsibilities of the Controller of Examinations.
Appreciating his efficiency and the hard work put in by the appellant, the
Board took the decision for his confirmation and consent of the University
for permanent absorption of the appellant on the post of Controller of
Examinatfons was communicated. Thereafter the appellant was appointed as
G Controller of Examinations under the Board.

Some employees of the Universities challenged the deputation of the
appellant as Controller of Examinations of the Board, in a writ petition. The
High Court directed the State Government to make substantive appointment
in that post as the appellant had been given a temporary appointment. The
H appellant was communicated with the order of the Chairman of the Board
752
UMAPATI CHAUDHARYv. STATE 753

terminating his service with immediate effect in anticipation of approval of A
the Government. The decision of the Board to terminate the service of the
appellant was approved by the State Government. These orders were
challenged by a writ petition. This Court by an interim order directed that
the appellant be reinstated as Controller of Examinations. The appellant
.continued on the post and retired from that post in 1996.
B
Allowing the appeal, this Court

HELD: 1.1. Deputation can be aptly described as an assignment ofan
employee (deputationist) of one department or cadre or even an organisation
(parent department or lending authority) to another department or cadre or C
organisation (borrowing authority). The necessity for sending on deputation
arises in public interest to meet the exigencies of public service. The concept
of deputation is consensual and involves a voluntary decision of the employer
to lend the services of his employee and a corresponding acceptance of such
services by the borrowing employer. It also involves the consent of the
employee to go on deputation or not. In the case at hand all the three D
conditions were fulfilled. The University, the parent department, the Board,
the borrowing authority and the appellant the deputationist, had all given
their consent for deputation of the appellant and for his permanent absorptlon
in the establishment of borrowing authority. There is no material to show
that the deputation of the appellant was not in public interest or it was vitiated E
by favouritism or mala fide. Since 1981 the appellant was boldlng the post
of Controller of Examinations of the Board. Initially and thereafter taking
into account his efficiency and sincerity in the job the Board sought
permission of the University for regularising his service on that post and
sent its recommendation to the State Government. The University also had
communicated its consent (no objection) for permanent absorption of the F
appellant on the post of Controller of Examinations of the Board. Thereafter
the appointment to the post was to be made by the Board and the Board had
decided to regularise the service of the appellant in the said post. However,
th& Board sought permission of the State Government which was also
accorded. {757-D-E, BJ G
1.2. The Single Judge had neither quashed the deputation order nor
issued any direction for its termination. In these circumstances the Division
Bench was clearly in error in declining to grant relief to the appellant.
Further, the appellant has, in the meantime, retired from service. He shall
be treated to be a permanent employee of the Board on the date of his H
754 SUPREME COURT REPORTS [l 999] 3 S.C.R.

A retirement on the post of Controller of Examinations and his retirement
benefits shall be calculated on that basis. (757-G-H]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 336 .of 1993
Etc.

B From the Judgment and Order dated 17.12.91 of the Patna High Court
in C.W.J.C. No. 6054 ofl99l

Pankaj Kalra and R.P. Singh for the Appellant.

Irshad Ahmad and U.S. Prasad for the Respondent.
c The Judgment of the Court was delivered by

D.P. MOHAPATRA, J. These two cases are inter-linked with each other.
Both the cases have been filed by the same person Shri Umapati Choudhary.
While Civil Appeal No. 336 of 1993 is directed against the judgment and order
D dated 17.12.1991 of the Patna High Court in C.W.J.C. No. 6054of1991, in Writ
Petition (C) No. 667of1992 the petitioner has sought quashing of the orders
dated 17.3.1992, 20.3.1992 and 21.3.1992 filed as Annexures 11, 12 and 13
respectively of the writ petition which appear to have been passed on the
basis of the judgment dated 17.12.1991 in C.W.J.C. No. 6054of199i.

E The controversy raised in the case relates to the question whether the
appellant should be treated as a permanent employee of the Bihar Sanskrit
Shiksha Board (for short 'the Board') or he was on deputation to the Board·
from Kameshwar Singh Darbhanga Sanskrit University .(for short 'the
University'). The High Court having held that the appellant could not claim
p to be a permanent employee of the Board and his service as Controller of
Examinations of the Board having been terminated on that basis, he has filed
the two cases.

The factual matrix relevant for appreciating the controversy may be
stated thus :
G
The Board was constituted under the Bihar Sanskrit Education Board
Act, 1981 (Act No. 31 of 1982) and it was vested with the power to direct,
supervise and control Sanskrit education upto Madhyama standard in the
State of Bihar. Th~ Chairman of the Board made a request to the University
to depute a competen; and experienced person to conduct and control the
H examinations conducted-by the Board vide his letter No. 21115 dated 29.7.1981.
UMAPATI CHOUDHARY v. STATE [D.P. MOHAPATRA, J.] 755

The Registrar of the University hy his letter No. 8105/89 dated 14.8.1981 A
(Annexure- 2 to the S.L.P.) iunicated the decision of the University
granting permission for the api 1t who was then a lecturer in Post Graduate
tlepartment of the University to, e deputed as Controller of Examinations of
the board until further orders. The Government of Bihar in the Department of
Education by Notification dated 17.9.1982 (Annexure- 3) authorised the B
appellant to discharge all duties and responsibilities of the Controller of
Examinations of the Board and made the order effective from the first day of
deputation. It appears from the letter of the State Government to the
Accountant General, Bihar dated 16th June, 1983 (Annexure-4) that the post
... of Assistant Registrar (Sanskrit Education) which was created, in the Bihar
Sanskrit Shiksha Parishad on being transferred to the Bihar Sanskrit Shiksha C
Board was re-designated as Controller of Examinations. Thereafter the question
of confirmation of the appellant on the post of Controller of Examinations was
taken up by the Board and by the letter dated 15.9.1983 (Annexure-5) the
Chairman of the board wrote to the State Government recommending his
confirmation. It appears from the said letter that the Board took the decision
appreciating the efficiency and hard work put in by the appellant as Controller D
of Examinations took the decision for his confirmation. In the letter dated
20.4.1985 (Annexure-7) of the Registrar of the University addressed to the
Chairman of the Board consent of the University for permanent absorption
of the appellant on the post of Controller of Examinations of the Board was
communicated. Thereafter, by the Notification dated 10th November, 1986 E
(Annexure-8) issued by the Department of Education of the Government of
Bihar the appellant was appointed as Controller of Examinations under the
Board on the pay scale of Rs.1000-1820 from the date of issue of the Notification
till further orders.

Some employees of the University challenged the deputation of the F
appellant as Controller of Examinations of the Board before the Patna High
Court in a writ petition, C. W.J.C. No. 2230 of, 1982 which was disposed of by
Single Judge of the Court by the judgment dated 13 .1 l.l 987. The operative
portion of the said judgment reads as follows:

"IO. Respondent no. 3 has been given a temporary appointment and
G
not a substantive appointment. Service conditions for the post of the
Controller of Examination are yet to be provided for. The respondent_:_
State Govt. and the Board are duty bound to decide finally whether
they shall have a Controller of Examination or not and if they decide
to have one they must have a procedure to make a substantive H
I-

756 SUPREME COURT REPORTS [1999] 3 S.C.R.

A appointment. Since the office of the Controller of Examination is not -.
yet permanently filled is by a qualified person in my view, ends of
justice shall be satisfied by giving a direction to the State Government
to proceed forthwith to decide the mode of appointment and service
conditions of the posts of Controller of Examination and make
substantive appointment in the said post. The State Government will
B complete the necessary formalities within six months from today. If
such formalities are not completed within six months and the temporary
appointment of the respondent No. 3 is continued any further it shall

c
be open to the petitioners to Question the validity and genuineness,
of the appointment by notification dated I 0.1.1987.

11. Jn the result, with the directions made above, this application is
-
dismissed. There shall be no order as to costs."

This judgment is under challenge in Civil Appeal No .336 of 1993.
Jn pursuance of the aforementioned judgment of the High Court the
D Secretary of the board by the order dated 17 .3 .1992 (Annexure-11 of the Writ
Petition) communicated to the appellant the order of the Chairman terminating
his service with immediate effect in anticipation of approval of the Government.
The relevant portion of the communication reads as under :

"In pursuance of the Judgment dated 17.12.1991 passed by the Hon'ble
E High. Court in C.W.J.C. No. 6054/91 on the above subject and under
the order of the Chairman, Bihar Sanskrit Education Board your services
are terminated with immediate effect in anticipation of the approval of
the Government."

The decision of the Board to terminate the service of the appellant was
F approved by the State Government vide Notification dated 21.3 .1992 Annexures
14 & 15) issued by Commissioner-cum- Secretary, Human Re.sources
Development Department, Bihar. These orders are under challenge in the writ
petition. Therein by order passed on 27.1.1993 in I.A.No. 1 of 1992 this Court
while issuing notice ordered that in the meantime operation of the impugned
G orders in Annexure-ll dated 17.3 .1992 (Annexure-14) dated 21.3 .1992 shall
remain stayed. This Court further directed that the petitioner be reinstated as
Controller of Examinations and be paid his arrears of salary upto date, within -.
two months from the date of the order, by the Board. The learned counsel
appearing for the petitioner/appellant submitted that in pursuance of the said
order the petitioner/appellant continued on the post of Controller of
H Examinations of the Board and retired from the said post sometime in 1996.
UMAPATI CHOUDHARY v. STATE [D.P. MOHAPATRA, J.] 757

From the contents of the documents discussed in the preceding A
paragraphs the position that emerges is that since 1981 the appellant was
holding the post of Controller of Examinations of the Board. Initially he was
brought on deputation from the University and thereafter taking into account
his efficiency and sincerity in the job the Board sought permission of the
university for regularising his service on that post and sent its recommendation B
to the State Government. The University also had communicated its consent
(no objection) for permanent absorption of the appellant on the post of
Controller of Examinations of the Board. Thereafter the appointment to the
post was to be made by the Board and the Board had decided to regularise
the service of the appellant in the said post. However, the Board sought
permission of the State Government which was also accorded. C

Deputation can be aptly described as an assignment of an employee
(commonly referred to as the deputationist) of one department or cadre or
even an organisation (commonly referred to as the parent department or
lending authority) to another department or cadre or organisation (commonly
referred to as the borrowing authority). The necessity for sending on deputation D
arises in public interest to meet the exigencies of public service. The concept
of deputation is consensual and involves a voluntary decision of the employer
to lend the services of his employee and a corresponding acceptance of such
services by the borrowing employer. It also involves the consent of the
employee to go on deputation or not. In the case at hand all the three E
conditions were fulfilled. The University, the parent department or lending
authority, the Board, the borrowing authority and the appellant the
deputationist, had all given their consent for deputation of the appellant and
for his permanent absorption in the establishment of the borrowing authority.
There is no material to show that the deputation of the appellant was not in
public interest or it was vitiated by favouritism or mala fide. The learned single F
Judge in the previous writ petition had neither quashed the deputation order
nor issued any direction for its termination. Indeed the learned single Judge
..., had dismissed the writ petition. No material has been placed before us to
show that between November 1987 when the judgment of the single Judge
was rendered and December 1991 when the Division Bench disposed of the G
writ petition filed by the appellant the petitioners of the previous case had
raised any grievance or made any complaint regarding non-compliance of the
directions made in the judgment of the learned single Judge. In these
circumstances the Division Bench was clearly in error in declining to grant
relief to the appellant. Further, the appellant has, in the meantime, retired from
service, and therefore, the decision in the case is relevant only for the H
758 SUPREME COURT REPORTS [1999) 3 S.C.R.

A purpose of calculating his retiral benefits.

On consideration of the entire matter we are of the view that the High
Court was in error in dismissing the writ petition filed by the appellant.

Accordingly the appeal is allowed: The impugned judgment dated
B 17.12.1991 in C.W.J.C. No. 6054of1991 is set aside. Consequentially, the writ
petition No .667of1992 is allowed and the orders dated 17.3.1992, 20.3.1992
and 21.3.1992 which are based on the judgment in C.W.J.C. No. 6054of1991
are quashed. The appellant shall be treated to be a permanent employee of
the Board on the date of his retirement from the post of Controller of
C Examinations and his retirement benefits shall be calculated on that basis.
There will, however, be no order as to costs.

R.A. Appeal and petition allowed.

.....