1976 (7) TMI 172 - HC - Indian Laws

Summary

Issues Involved:
1. Legality of the petitioner's deputation to the Civil Defence Organisation.
2. Requirement of the petitioner's consent for deputation.
3. Applicability of Section 5 of the Civil Defence Act, 1968.
4. Validity of Government resolutions regarding deputation and allowances.
5. Entitlement to special pay or deputation allowance.

Issue-wise Detailed Analysis:

1. Legality of the petitioner's deputation to the Civil Defence Organisation:
The petitioner, a Police Inspector, was deputed to the Civil Defence Organisation by an order dated 9th January 1973. The petitioner challenged this deputation, arguing that a Sub-Inspector of Police recruited under the Bombay Police Act and Bombay Police Manual cannot be transferred or sent on deputation to any post or cadre outside the police force. The court examined the provisions of the Bombay Police Act, which stipulates that a member of the police force is always on duty and can be posted anywhere within the state for police duty. However, the court noted that the duties in the Civil Defence Organisation, particularly as an Instructor, do not constitute police duty. Therefore, the petitioner's deputation to the Civil Defence Organisation was deemed illegal and invalid.

2. Requirement of the petitioner's consent for deputation:
The petitioner argued that even if such a deputation could be made under Rule 74, it cannot be done without the consent of the concerned officer. The court agreed, emphasizing that deputation inherently involves service outside the parent department or cadre, and therefore, requires the consent of the concerned employee. The court highlighted that the petitioner was asked to fill in forms indicating his willingness to continue in the Civil Defence Organisation, which he declined. This implied acknowledgment by the authorities that consent was necessary for deputation.

3. Applicability of Section 5 of the Civil Defence Act, 1968:
Section 5 of the Civil Defence Act, 1968 provides that the State Government may appoint as members of the Corps persons who are fit and willing to serve as such. The court noted that the petitioner was not willing to serve in the Civil Defence Organisation, and therefore, could not be appointed as a member of the Corps. Additionally, Regulation 5(2) of the Civil Defence Regulations, 1968 states that members of the police force are not ordinarily eligible for enrollment in a Civil Defence Corps. Thus, the petitioner's deputation to the Civil Defence Organisation was in violation of these provisions.

4. Validity of Government resolutions regarding deputation and allowances:
The petitioner challenged the Government resolution dated 21st December 1962, which allowed for the transfer and/or deputation of police force members to the Civil Defence Organisation without their consent, as ultra vires the provisions of the Bombay Police Manual. The court did not delve deeply into this issue, as it had already determined the deputation to be illegal based on the lack of consent and the nature of duties involved.

5. Entitlement to special pay or deputation allowance:
The petitioner also challenged the Government resolution dated 9th September 1971, which denied special pay or deputation allowance to those sent on deputation to the Civil Defence Organisation. The court did not address this issue in detail, as the primary focus was on the legality of the deputation itself. However, the court implied that deputation allowances are typically provided as an inducement for employees to consent to serve outside their parent department or cadre.

Conclusion:
The court concluded that the petitioner's deputation to the Civil Defence Organisation was illegal and invalid due to the lack of consent and the nature of duties involved. The order dated 9th January 1973 and the resolution dated 24th May 1974, insofar as they related to the petitioner's deputation, were quashed. The respondents were directed to repatriate the petitioner to the parent department. The petition was allowed, and the rule was made absolute to the extent of repatriation, with no order as to costs.