Transfer to a Lower Non-Cadre Post Without Consent Amounts to Deputation: Rajasthan High Court

“The transfer of the petitioner from the post of CM&HO to the post of Deputy Controller, which is a non-cadre post, amounts to deputation, and such a transfer was made without the petitioner’s consent.” - Rajasthan High Court holding that the transfer of a Chief Medical and Health Officer (CM&HO) to the post of Deputy Controller in a District Hospital amounted to an unauthorised deputation, as the post was no longer a cadre post under the applicable service rules. The Division Bench of Chief Justice Manindra Mohan Shrivastava and Justice Munnuri Laxman set aside the transfer order and directed the reinstatement of the officer with full pecuniary benefits.

“Transfer is not synonymous with deputation”: Court clarifies legal principles on equivalency and consent in service jurisprudence
Dr. Shankar Lal Bamania was posted as CM&HO, Udaipur, and by the impugned transfer order dated 07.01.2025, was transferred to the post of Deputy Controller, District Hospital, Pratapgarh. He challenged the transfer on the grounds that: “The transfer suffers from stigma, was not based on administrative exigency, and constitutes a reduction in rank.”
The appellant contended that multiple complaints against him had already been closed, and the remaining ones were instigated by subordinates aggrieved by disciplinary action taken against them. It was also submitted that the post to which he was transferred was no longer part of the cadre under the Rajasthan Medical and Health Service Rules, 1963, as amended.

Transfer Without Consent to a Non-Cadre Post Is Not a Transfer but Deputation
“Transfer is limited to equivalent posts within the same cadre and department, whereas deputation refers to service outside the cadre or parent department, and it is a temporary phenomenon.” — Rajasthan High Court Referring to the Supreme Court’s authoritative decisions in Umapati Choudhary v. State of Bihar [(1999) 4 SCC 659] and Prasar Bharti v. Amarjeet Singh [(2007) 9 SCC 539], the Court drew a crucial distinction:
“The concept of deputation is consensual and involves a voluntary decision of the employer and consent of the employee to go on deputation.”
In this case, there was no consent by the appellant for deputation to the post of Deputy Controller. Moreover, the post of Deputy Controller had been omitted from the cadre list after the amendment dated 03.01.2012, and was therefore not an equivalent or cadre post.

Learned Single Judge Misled by Unamended Rules: Court Finds Serious Lapse by Respondents
The Division Bench observed that the learned Single Judge relied on unamended service rules provided by the State, which incorrectly showed the Deputy Controller post as equivalent:
“Had the amended rules been brought to the attention of the learned Single Judge, the present impugned order would not have been passed.”
The Court strongly noted that the respondents failed to prove that the post of Deputy Controller was still a cadre post or equivalent to CM&HO:
“This implies that the transfer amounts to a reduction in rank and deputation. For deputation, the consent of the employee is a sine qua non, which is absent.”

On the Issue of Stigma and Administrative Exigency
Although the petitioner claimed that the transfer order was punitive and stigmatic, the Court held:
“No doubt, the majority of the complaints were closed, and certain complaints are still under enquiry. Therefore, the transfer order cannot be said to be punitive or stigmatic in the facts and circumstances.”
However, even without malice, the transfer was still held illegal because it violated service rules and principles governing deputation.

“Transfer affecting career prospects without authority is interference-worthy” — Court distinguishes between lawful and unlawful transfers
Citing the decisions in Shilpi Bose v. State of Bihar [AIR 1991 SC 532] and N.K. Singh v. Union of India [(1994) 6 SCC 1998], the Court reiterated: “The courts should not interfere with a transfer order unless it is made in violation of any mandatory statutory rule or on the ground of mala fide. However, a transfer order that adversely affects career prospects without authority or violates service rules is not immune.”
In this case, the transfer amounted to a deputation to a non-cadre post without consent, which is legally impermissible.

Allowing the appeal, the Court ruled: “The respondents are directed to take the petitioner to the post of CM&HO, Udaipur and to pay all the pecuniary benefits treating as if the petitioner was still holding the post of CM&HO, Udaipur.”

Date of Decision:  9 April 2025