High Court · 2025

1. Heard learned counsel for the petitioner, learned State Counsel appearing on behalf of opposite party no.1 and Mr. Anurag Kumar Singh, learned counsel for opposite parties 2 and 3, whose power filed today is taken on record.

2. Present petition under Article 226 of Constitution of India has been filed challenging office memorandum dated 03.06.2025 whereby petitioner who is currently employed by State Election Commission U.P. on the post of Upper Division Assistant has been sent on deputation from the Head Quarter as Assistant District Election Officer, Balia.

3. Learned counsel for petitioner submits that impugned order is dehors the settled principles of law that an employee cannot be sent on deputation without his consent. It is submitted that it is the specific case of petitioner that he was neither asked for nor gave any consent for such deputation whereas clearly, the post which he is holding at the State Head Quarter is in a different cadre than the one to which he is being sent on deputation. Learned counsel for petitioner has placed reliance on judgment rendered by Hon'ble the Supreme Court in State of Punjab and others v. Inder Singh and others, reported in (1997) 8 SCC 372 as well as a decision of a coordinate Bench of this Court in Sunil Kumar Singh v. State of U.P. and others reported in 2018 SCC OnLine All 6906.

4. Learned counsel for opposite parties 2 and 3 has refuted the submissions advanced by learned counsel for petitioner with submission that admittedly since petitioner is being sent for a different cadre post, he is being sent on deputation. He has also adverted to appointment letter of petitioner dated 11.09.2013 which clearly incorporates a condition that petitioner may be sent for posting at District-level in exigency of service. It is submitted that once petitioner joined service in terms of appointment letter dated 11.09.2013, his consent would be implied. Learned counsel has also adverted to U.P. State Election Commission (Head Quarter) (Group 'C') Service Rules, 2015 [hereinafter referred to as Rules of 2015], particularly Rule 27 to indicate that such deputation is clearly now a part and parcel of the Service Rules which have been to petitioner's appointment. It is submitted that earlier as well, petitioner had filed Writ Petition No.484(S/S) of 2014 challenging his earlier deputation in the Districts and the said petition was disposed of by means of judgment and order dated 20.02.2014 without interfering with the deputation order. framed subsequent

5. Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, it transpires that the sole ground of challenge to impugned order is that petitioner's consent was not taken prior to posting him on deputation by means of impugned order.

6. It is relevant that paragraph 1(vi) of appointment letter dated 11.09.2013 pertaining to petitioner clearly incorporates a condition whereby petitioner could be posted on deputation to posts in various Districts under the State Election Commission. Admittedly, petitioner has joined his services in pursuance of said appointment letter dated 11.09.2013. In the considered opinion of this Court, incorporating doctrine of approbate and reprobate, petitioner would be deemed to have consented to aforesaid condition incorporated in paragraph 1(vi) of appointment letter dated 11.09.2013 and therefore would now be barred by principle of estoppel from raising such a plea.

7. It is also relevant that Rule 27 of Rules of 2015, although notified subsequent to petitioner's appointment also incorporates a condition whereby a person appointed or promoted under the Rules can be posted on deputation by the State Election Commission from Head Quarter to District Election Offices in any District in the State and vice versa.

8. Admittedly, since the Rules are now applicable upon petitioner whereby he would be bound by Rule 27 of Rules of 2015. It is also relevant that petitioner has not raised any challenge to aforesaid Rule 27 of Rules of 2015.

9. Judgments relied upon by learned counsel for petitioner are definitely an exposition for the proposition of law that normally deputation cannot be resorted to without expressed consent of an employee.

10. The aspect of consent being implied and not only expressed has already been dealt with by Hon'ble the Supreme Court in Kavi Raj and others v. State of Jammu and Kashmir and others, reported in (2013) 3 SCC 526 in the following manner:- "24. Before concluding, it is essential to deal with certain inferences drawn by the learned Single Judge of the High Court. According to the learned Single Judge, prior consent of an employee is imperative, binding, peremptory and mandatory, before he is posted on deputation outside his parent department. No statutory rule has been brought to our notice, requiring prior consent of an employee, before his deployment against a post beyond his parent cadre. The mere fact that the appellants' consent was not sought before their posting at Government Medical College, Jammu (and/or at the hospitals associated therewith) would not, in our view have any determinative effect on the present controversy. Broadly, an employee can only be posted (or transferred) to a post against which he is selected. This would ensure his stationing, within the cadre of posts, under his principal employer. His posting may, however, be regulated differently, by statutory rules, governing his conditions of service. In the absence of any such rules, an employee cannot be posted (or transferred) beyond the cadre to which he is selected, without his willingness/readiness. Therefore, an employee's posting (or transfer), to a department other than the one to which he is appointed, against his will, would be impermissible. But willingness of posting beyond the cadre (and/or parent department) need not be expressly sought. It can be implied. It need not be in the nature of a written consent. Consent of posting (or transfer) beyond the cadre (or parent department) is inferable from the conduct of the employee, who does not protest or contest such posting/transfer. In the present controversy, the appellants were issued posting orders by the Principal, Government Medical College, Jammu, dated 30-12-1997. They accepted the same, and assumed charge as Senior/Junior House Officers at Government Medical College, Jammu, despite their selection and appointment as Assistant Surgeons. Even now they wish to continue to serve against posts in the Directorate of Medical Education. There cannot be any doubt about their willingness/readiness to serve with the borrowing Directorate. The consent of the appellants is tacit and unquestionable. We are therefore of the view that the learned Single Judge of the High Court clearly erred on the instant aspect of the matter."

11. In the considered opinion of this Court for the reasons indicated herein above, consent of petitioner for being sent on deputation from State Head Quarter to Districts is clearly implied not only in the conditions of appointment but with advent of the Rules of 2015 as well.

12. In view there of, this Court does not find any good ground to interfere with impugned order.

13. The writ petition therefore is dismissed at the admission stage itself. Order Date :- 1.7.2025 kvg/- GIREESAN KV GIREESAN KV High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench

1. Heard learned counsel for the petitioner, learned State Counsel appearing on behalf of opposite party no.1 and Mr. Anurag Kumar Singh, learned counsel for opposite parties 2 and 3, whose power filed today is taken on record.

2. Present petition under Article 226 of Constitution of India has been filed challenging office memorandum dated 03.06.2025 whereby petitioner who is currently employed by State Election Commission U.P. on the post of Upper Division Assistant has been sent on deputation from the Head Quarter as Assistant District Election Officer, Balia.

3. Learned counsel for petitioner submits that impugned order is dehors the settled principles of law that an employee cannot be sent on deputation without his consent. It is submitted that it is the specific case of petitioner that he was neither asked for nor gave any consent for such deputation whereas clearly, the post which he is holding at the State Head Quarter is in a different cadre than the one to which he is being sent on deputation. Learned counsel for petitioner has placed reliance on judgment rendered by Hon'ble the Supreme Court in State of Punjab and others v. Inder Singh and others, reported in (1997) 8 SCC 372 as well as a decision of a coordinate Bench of this Court in Sunil Kumar Singh v. State of U.P. and others reported in 2018 SCC OnLine All 6906.

4. Learned counsel for opposite parties 2 and 3 has refuted the submissions advanced by learned counsel for petitioner with submission that admittedly since petitioner is being sent for a different cadre post, he is being sent on deputation. He has also adverted to appointment letter of petitioner dated 11.09.2013 which clearly incorporates a condition that petitioner may be sent for posting at District-level in exigency of service. It is submitted that once petitioner joined service in terms of appointment letter dated 11.09.2013, his consent would be implied. Learned counsel has also adverted to U.P. State Election Commission (Head Quarter) (Group 'C') Service Rules, 2015 [hereinafter referred to as Rules of 2015], particularly Rule 27 to indicate that such deputation is clearly now a part and parcel of the Service Rules which have been to petitioner's appointment. It is submitted that earlier as well, petitioner had filed Writ Petition No.484(S/S) of 2014 challenging his earlier deputation in the Districts and the said petition was disposed of by means of judgment and order dated 20.02.2014 without interfering with the deputation order. framed subsequent

5. Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, it transpires that the sole ground of challenge to impugned order is that petitioner's consent was not taken prior to posting him on deputation by means of impugned order.

6. It is relevant that paragraph 1(vi) of appointment letter dated 11.09.2013 pertaining to petitioner clearly incorporates a condition whereby petitioner could be posted on deputation to posts in various Districts under the State Election Commission. Admittedly, petitioner has joined his services in pursuance of said appointment letter dated 11.09.2013. In the considered opinion of this Court, incorporating doctrine of approbate and reprobate, petitioner would be deemed to have consented to aforesaid condition incorporated in paragraph 1(vi) of appointment letter dated 11.09.2013 and therefore would now be barred by principle of estoppel from raising such a plea.

7. It is also relevant that Rule 27 of Rules of 2015, although notified subsequent to petitioner's appointment also incorporates a condition whereby a person appointed or promoted under the Rules can be posted on deputation by the State Election Commission from Head Quarter to District Election Offices in any District in the State and vice versa.

8. Admittedly, since the Rules are now applicable upon petitioner whereby he would be bound by Rule 27 of Rules of 2015. It is also relevant that petitioner has not raised any challenge to aforesaid Rule 27 of Rules of 2015.

9. Judgments relied upon by learned counsel for petitioner are definitely an exposition for the proposition of law that normally deputation cannot be resorted to without expressed consent of an employee.

10. The aspect of consent being implied and not only expressed has already been dealt with by Hon'ble the Supreme Court in Kavi Raj and others v. State of Jammu and Kashmir and others, reported in (2013) 3 SCC 526 in the following manner:- "24. Before concluding, it is essential to deal with certain inferences drawn by the learned Single Judge of the High Court. According to the learned Single Judge, prior consent of an employee is imperative, binding, peremptory and mandatory, before he is posted on deputation outside his parent department. No statutory rule has been brought to our notice, requiring prior consent of an employee, before his deployment against a post beyond his parent cadre. The mere fact that the appellants' consent was not sought before their posting at Government Medical College, Jammu (and/or at the hospitals associated therewith) would not, in our view have any determinative effect on the present controversy. Broadly, an employee can only be posted (or transferred) to a post against which he is selected. This would ensure his stationing, within the cadre of posts, under his principal employer. His posting may, however, be regulated differently, by statutory rules, governing his conditions of service. In the absence of any such rules, an employee cannot be posted (or transferred) beyond the cadre to which he is selected, without his willingness/readiness. Therefore, an employee's posting (or transfer), to a department other than the one to which he is appointed, against his will, would be impermissible. But willingness of posting beyond the cadre (and/or parent department) need not be expressly sought. It can be implied. It need not be in the nature of a written consent. Consent of posting (or transfer) beyond the cadre (or parent department) is inferable from the conduct of the employee, who does not protest or contest such posting/transfer. In the present controversy, the appellants were issued posting orders by the Principal, Government Medical College, Jammu, dated 30-12-1997. They accepted the same, and assumed charge as Senior/Junior House Officers at Government Medical College, Jammu, despite their selection and appointment as Assistant Surgeons. Even now they wish to continue to serve against posts in the Directorate of Medical Education. There cannot be any doubt about their willingness/readiness to serve with the borrowing Directorate. The consent of the appellants is tacit and unquestionable. We are therefore of the view that the learned Single Judge of the High Court clearly erred on the instant aspect of the matter."

11. In the considered opinion of this Court for the reasons indicated herein above, consent of petitioner for being sent on deputation from State Head Quarter to Districts is clearly implied not only in the conditions of appointment but with advent of the Rules of 2015 as well.

12. In view there of, this Court does not find any good ground to interfere with impugned order.

13. The writ petition therefore is dismissed at the admission stage itself. Order Date :- 1.7.2025 kvg/- GIREESAN KV GIREESAN KV High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench