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“  REPORTABLE”   

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 162 OF 2013 (Arising out of SLP (C) No.5042 of 2006)

Kavi Raj & Others …. Appellants

Versus

State of J&K & Ors. …. Respondents

WITH

CIVIL APPEAL NO. 163 OF 2013 (Arising out of SLP (C) No.5893 of 2006

Reva Gaind & Others …. Appellants

Versus

State of J&K & Ors. …. Respondents

J U D G M E N T

JAGDISH SINGH KHEHAR, J.

1. Leave granted.

2. Consequent upon the creation of posts of Assistant Surgeons,  

the Health and Medical Education Department of the State of Jammu &  

Kashmir,  addressed  a  requisition  to  the  Jammu  &  Kashmir  Public  

Service Commission (hereinafter referred to as “the Public Service  

Commission”) to recruit 1255 posts of Assistant Surgeons.  Based on  

the aforesaid requisition, the Public Service Commission issued a  

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notification  dated  31.12.1996  for  inviting  applications  for  1255  

posts of Assistant Surgeons in the pay-scale of Rs.2200-4000.  Based  

on  the  aforesaid  notification,  an  advertisement  dated  2.1.1997  

appeared  in  newspapers  inviting  applications  for  1255  posts  of  

Assistant Surgeons, belonging to the Health and Medical Education  

Department.   

3. In June, 1997 the Public Service Commission after completing  

the  process  of  selection,  prepared  a  select  list  of  successful  

candidates.  The names of the appellants herein, appeared in the  

list of successful candidates.  Consequent upon the selection of the  

appellants as Assistant Surgeons by the Public Service Commission,  

the  Department of  Health and  Medical Education,  issued an  order  

dated  12.8.1997  appointing  the  appellants  against  the  advertised  

posts of Assistant Surgeons.  An extract of the aforesaid order,  

relevant to the present controversy, is being reproduced hereunder:

“The  candidates  belonging  to  Jammu  region  shall  report  to  Director Health Services, Jammu and those belonging to Kashmir  region  to  Director  Health  Services  Kashmir  for  further  postings.  As regards migrant candidates they shall report to  Director, Health Services Jammu for further orders.”

(emphasis is ours)

It is not a matter of dispute, that in furtherance of the order of  

appointment  dated  12.8.1997,  all  the  appellants  reported  to  the  

Director, Health Services, Jammu as they all belonged to the Jammu  

region.  The next step, as is evident from the extracted portion of  

the appointment order, was the appellants’ actual posting.

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4. A  Government  Order  pertaining  to  the  posting  of  Assistant  

Surgeons,  was  issued  by  the  Department  of  Health  and  Medical  

Education on 17.7.1997.  Paragraph 5 of the aforesaid Government  

Order is relevant, and is accordingly being extracted hereunder:

“5. The Doctors appointed against General category  shall be  posted in various Hospitals in the following orders:

a) Allopathic Dispensaries b) Primary Health Centres and Police Hospitals; c) Community Health Centres; d) Sub-District Hospitals; e) District Hospitals; f) Hospitals of Jammu and Srinagar including Evening/Urban  

Clinic  and  after  that  in  Medical  Education  and  other  organizations;

g) Surgeons  shall  be  posted  only  in  such  Hospitals  where  Operation  Theatres  are  available  and  the  Hospitals  are  housed in Govt. Buildings.”

Sub-paragraph (f) of paragraph 5 extracted hereinabove leaves no  

room  for  any  doubt,  that  Assistant  Surgeons  could  be  posted  in  

Hospitals  of  Jammu  and  Srinagar  including  evening/urban  clinics,  

“….and after that…”, in medical education and other organizations.  

In  consonance  with  the  Government  Order  dated  17.7.1997,  the  

Principal, Government Medical College, Jammu, by an Office Order  

dated 30.12.1997, posted all the appellants against the vacant posts  

of Senior/Junior House Officers, at the Government Medical College,  

Jammu (and at hospitals associated with the said college).

5. Despite posting of the appellants at the Government Medical  

College,  Jammu  (and/or  at  hospitals  associated  therewith),  on  

30.12.1997; within a week thereof, by an order dated 7.1.1998, the  

Principal,  Government  Medical  College,  Jammu,  reverted  the  

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appellants to their parent Department, namely, the Directorate of  

Health Service, Jammu. The instant order dated 7.1.1978 was first  

assailed  by  the  appellants  before  the  High  Court  of  Jammu  and  

Kashmir (hereinafter referred to as “the High Court”).  It is now  

the subject matter of challenge by them, before this Court. Since  

the  present  controversy  relates  to  the  order  dated  7.1.1998,  

whereby, the appellants were ordered to be reverted/repatriated to  

their parent department, the same is being extracted hereunder:

“Consequent to the appointment of house surgeons in the various  specialities in this institution,  the Assistant Surgeons, who  were  temporarily  deployed  from  the  Directorate  of  Health  Services, Jammu to meet the exigency of shortage of doctors in  Govt.  Medical  College,  Jammu,  are  hereby  reverted  to  their  parent department.  The doctors listed in Annexure-I attached  hereto stand relieved today the 7th January, 1998 forenoon with  the  direction  to  report  for  duty  to  the  Director  Health  Services, Jammu.”

           (emphasis is ours)

A perusal of the order extracted hereinabove discloses the basis of  

the alleged repatriation of the appellants to the Directorate of  

Health Services, Jammu.  Firstly, the appellants’ parent department  

is described as, the Directorate of Health Services.  Secondly, the  

appellants posting as Senior/Junior House Officers, was disclosed.  

Namely,  to  meet  the  exigency  of  shortage  of  doctors  at  the  

Government Medical College, Jammu.  And thirdly, that the aforesaid  

posting was depicted as a temporary deployment from the Directorate  

of Health Services, Jammu.  Besides the main order dated 7.1.1998  

extracted above, it is also relevant to reproduce the endorsement  

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made at serial no.2 of the aforesaid order, to the Director, Health  

Services, Jammu.  The same is therefore being extracted below:

“2. Director Health Services, Jammu.  This is in reference to  his verbal request for reversion of the Assistant Surgeons to  the  directorate  to  meet  immediate  needs  in  the  health  services.”

(emphasis is ours)

A perusal of the aforesaid endorsement discloses the fourth reason  

for the alleged repatriation of the appellants to the Directorate of  

Health Services, Jammu, namely, to meet the immediate needs of the  

Department of Health Services.

6. So as to assail the order dated 7.1.1998 whereby the appellants  

were repatriated to the Directorate of Health Services, Jammu, three  

writ petitions came to be filed before the High Court.  The details  

of the writ petitions are being narrated hereinbelow:

i) Dr.Shazia  Hamid  vs.  State  of  Jammu  &  Kashmir  (SWP  no.35/98)

ii) Dr.Rajni  Malhotra  vs.  State  of  Jammu  &  Kashmir  (SWP  no.36/98)

iii) Dr.Sarita vs. State of Jammu & Kashmir (SWP no.37/98)

Having  entertained  the  aforesaid  writ  petitions,  the  High  Court  

issued the following interim directions, on 8.1.1998:

“The  grievance  of  the  petitioners  is  that  they  have  been  deployed  to  the  Government  Medical  College  Jammu  by  the  Director  Health  Services,  Jammu  and  the  Principal  Medical  College,  Jammu  has  further  posted  them  in  Medical  College,  Jammu.  They are being relieved by the person of the Principal  Government Medical College Jammu who is having no authority to  transfer them and direct them to report back to Director Health  Services, Jammu.

Issue notice to the respondents, issue notice in the CMP also.

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In the meanwhile, respondents are directed not to disturb the  status  of  the  petitioners  till  objections  are  filed  and  considered by this Court.”

We  are  informed,  that  in  compliance  with  the  said  interim  

directions, all the appellants continued to discharge their duties  

at  the  Government  Medical  College,  Jammu  (and/or  at  hospitals  

associated  therewith).   And  that  eversince,  upto  the  present  

juncture, despite the impugned order (passed by the Letters Patent  

Bench,  of  the  High  Court)  having  been  passed  against  them,  the  

appellants  posting  has  remained  unaltered.   Even  now,  they  are  

discharging their duties at the Government Medical College, Jammu,  

(and/or the hospitals associated therewith).

7. It is also relevant to mention herein, that the main ground on  

which the appellants had assailed the impugned order dated 7.1.1998  

before the High Court was, that the same was not issued by the  

competent  authority.   In  this  behalf,  it  was  the  case  of  the  

appellants, that the Secretary, Department of Health and Medical  

Education  being  the  appointing  authority  of  the  appellants;  the  

Principal Medical College, Jammu, had no jurisdiction to issue the  

order dated 7.1.1998.  It seems to us, that in order to get over the  

main ground of attack raised at the behest of the appellants, the  

Health,  Family  Welfare  and  Medical  Education  Department,  issued  

another order on 20.4.1998, with the same effect and consequences.  

The aforesaid order is also being extracted hereunder:

“Whereas  for  public  health  care  1230  posts  of  Assistant  Surgeons were created vide Government Order No.129-HD of 1996  dated  4.12.96  under  special  recruitment  drive  programme  and  

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referred to Public Service Commission for selection of suitable  candidates.

Whereas  public  service  commission  vide  their  letter  No.PSC/1/Dr/AS/5-96 dated 10.6.97 recommended a panel of 1097  candidates for appointment of Assistant Surgeons.

Whereas  the  Health,  FW  and  Medical  Education  Deptt  issued  appointment orders in favour of 1097 Assistant Surgeons and  directed the two directors of Health Services to post these  doctors  in  rural  areas  and  other  places  in  pursuance  of  guidelines as embodied in Government Order no.635 HME of 1997  dated 17.7.97.

Whereas the two directors of Health Services in violation of  standing  Government  Orders  deputed/attached/adjusted/detailed  to work a good number of new appointments in various health  institutions  and  offices  thus  defeating  the  very  object  of  special recruitment drive.

Now therefore in the public interest and health care the said  Assistant Surgeons are hereby detached with immediate effect  from the places where they have been deputed/attached/adjusted  or detailed to work as the case may be and shall report to  respective directors of Health Services who shall post them  strictly  in  accordance  with  the  guidelines  as  detailed  in  Government Order no.635 HME of 1997 dated 17.7.97 and report  compliance to the Administrative Department within fortnight  positively.”

(emphasis is ours)

The  order  extracted  hereinabove  narrates,  the  exact  sequence  of  

events leading to the eventual posting of the appellants, consequent  

upon their selection as Assistant Surgeons.  It also needs to be  

emphasized, that the order dated 20.4.1998 highlights the fact, that  

the original posting of the appellants at the Government Medical  

College, Jammu (and/or at hospitals associated therewith), had been  

made by the Director of Health Services, in violation of Government  

Orders, and further that, their repatriation to the Directorate of  

Health Services, Jammu was in public interest.

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8. A learned Single Judge of the High Court on 28.5.1998, allowed  

all the three writ petitions (wherein the order dated 7.1.1998 had  

been  assailed).   According  to  the  understanding  of  the  learned  

Single  Judge,  the  concerned  employees  consent,  prior  to  their  

appointment  on  deputation  was  mandatory.   Absence  of  consent,  

according  to  the  learned  Single  Judge,  established  that  their  

appointment at the Government Medical College, Jammu, (and/or at  

hospitals  associated  therewith),  was  not  by  way  of  deputation.  

Since  in  the  present  case,  the  consent  of  the  appellants  had  

admittedly not been obtained prior to their posting vide order dated  

30.12.1997,   the learned Single Judge concluded, inter alia, that  

the  authorities  had  wrongly  assumed,  that  the  posting  of  the  

appellants  at  the  Government  Medical  College,  Jammu  (and/or  at  

hospitals  associated  therewith),  was  by  way  of  deputation.  

Accordingly,  the  learned  Single  Judge  held,  that  there  was  no  

question  of  the  reversion  of  the  appellants  to  their  parent  

department.   For,  according  to  the  learned  Single  Judge,  the  

Government  Medical  College  Jammu  (and/or  at  hospitals  associated  

therewith) comprised of the appellants parent department.   Based  

thereon,  the  learned  Single  Judge  felt,  that  the  

reversion/repatriation  of  the  appellants  to  the  Directorate  of  

Health Services, Jammu, lacked legal sanction.   

9. The learned Single Judge also relied upon the Government Order  

dated  17.7.1997  in  order  to  conclude,  that  the  posting  of  the  

appellants  at  the  Government  Medical  College,  Jammu  (and/or  at  

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hospitals  associated  therewith)  was  not  beyond  their  cadre.  

Referring to paragraph 5(f) thereof, the learned Single Judge felt,  

that the posting of the appellants was within the scope of the  

conditions of their employment.   

10. Besides the aforesaid, the learned Single Judge also arrived at  

the conclusion, that the Principal, Medical College, Jammu had no  

jurisdiction whatsoever to issue the impugned order dated 7.1.1998  

reverting/repatriating the appellants to the Directorate of Health  

Services, Jammu.  In this behalf, the learned Single Judge felt,  

that the Principal, Government Medical College, Jammu had passed the  

order dated 7.1.1998, in his capacity as Head of the Department,  

which was not in consonance with the factual/legal position.   

11. The learned Single Judge summarized his conclusions as under:

“In view of the above, it is held that:

i) The  petitioners  came  to  be  appointed  as  Assistant  Surgeons.

ii) The  Commissioner/Secretary  in  the  Health  and  Education  Department passed clear orders on 17th July, 1997 that the  petitioners be appointed in Jammu Hospitals.

iii) That  the  Director  Health  Services  merely  performed  ministerial act of issuing letter of appointments.  He  acted in compliance of the Government Orders.

iv) That the petitioner came to be appointed against available  vacancies.

v) The concept of the petitioner being on deputation would  not be attracted to the facts of this case.  This is  because  this  was  the  first  appointments  of  the  petitioners.   The  concept  of  parent  department  and  department to which an employee is to be temporarily sent  on deputation is missing in this case.

vi) The fine distinction pointed out on the basis of Rules of  Business may be legally correct, but no factual foundation  has  been  laid  down  for  sustaining  the  argument  as  projected by the State counsel.

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vii) That the order passed during the period when Model Code of  Conduct was in operation and when election process was on,  was also not in accordance with law.”

Accordingly, the learned Single Judge set aside the impugned order  

dated 7.1.1998 passed by the Principal, Medical College, Jammu..

12. Dissatisfied with the judgment rendered by the learned Single  

Judge of the High Court on 28.5.1998, the State Government preferred  

Letters Patent Appeals.  Suffice it to state, that while disposing  

of the Letters Patent Appeals, the common decision rendered by the  

learned  Single  Judge  of  the  High  Court,  was  set  aside  by  the  

Division Bench on 24.2.2006.  The appellants before us, have raised  

a challenge to the order passed by the Division Bench on 24.2.2006.

13. The first Civil Appeal being disposed of by the instant common  

order, has been filed by Dr.Kavi Raj and others, whereas the second  

one has been filed by Dr.Reva Gaind and others.  Leaned counsel for  

the appellants, at the very inception informed us, that the first  

Civil Appeal survives in respect of only five appellants, namely,  

Dr.Kanchan  Anand,  Dr.Arpana  Sharma,  Dr.Mehbooba  Begum,  Dr.Nidhi  

Sharma  and  Dr.Shama  Parveen  Bhat.   As  against  the  second  Civil  

Appeal, it was stated to be surviving only in respect of Dr.Reva  

Gaind,  Dr.Rachna  Wattal,  Dr.Mala  Mandla,  Dr.Karuna  Wazir,  Dr.Ila  

Gupta,  Dr.Simi  Kandhari,  Dr.Indu  Raina,  Dr.Shivani  Malhotra  and  

Dr.Surekha Bhat.  It is therefore apparent, that the instant two  

Civil Appeals are presently surviving only in respect of 14 of the  

appellants, fully described above.   

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14. In  order  to  canvass  the  claim  of  the  appellants,  learned  

counsel invited our attention to the order of the Principal, Medical  

College,  Jammu  dated  30.12.1997,  whereby,  the  appellants  were  

assigned  their  first  posting  as  Senior/Junior  House  Officers  in  

different  departments  of  the  Government  Medical  College,  Jammu  

(and/or at hospitals associated therewith).  Based thereon, it was  

the vehement contention of the learned counsel, that the Division  

Bench  of  the  High  Court  seriously  erred  in  holding  that  the  

appellants were appointed by way of deputation to the Government  

Medical  College,  Jammu.   To  further  the  contention,  that  the  

appellants were not appointed to the Government Medical College,  

Jammu by way of deputation, it was pointed out, that the posts of  

Assistant Surgeons against which the appellants were appointed were  

created  by  the  Health  and  Medical  Education  Department.   The  

requisition to fill up 1255 posts of Assistant Surgeons, was also  

addressed by the Health and Medical Education Department, to the  

Public Service  Commission.  It  was sought to be canvassed, that  

the Government Medical College, Jammu, was a part and parcel of the  

Department of Health and Medical Education, and as such, it was  

submitted,  that the  posting of  the appellants  at the  Government  

Medical College, Jammu (and/or at hospitals associated therewith)  

cannot be deemed to be a posting by way of deputation.  It was  

accordingly  submitted,  that  the  appellants  posting  could  not  be  

deemed to be in a cadre, other than the cadre to which they were  

substantively appointed.  Based on the aforesaid submission, learned  

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counsel  for  the  appellants  endeavoured  to  suggest,  that  the  

conclusions  recorded  by  the  learned  Single  Judge  were  fully  

justified, and in consonance with law.  Learned counsel accordingly  

prayed that the impugned order dated 24.2.2006 be set aside.

15. In addition to the submission advanced at the hands of the  

learned  counsel  for  the  appellants,  as  has  been  noticed  in  the  

foregoing paragraph, it was also his vehement contention, that the  

posting  of  the  appellants  was  in  consonance  with  the  express  

instructions  of  the  State  Government.   In  this  behalf,  learned  

counsel placed reliance on the Government Order dated 17.7.1997,  

whereby  norms  for  issuing  posting  orders  of  candidates  freshly  

selected against the post of Assistant Surgeons, were laid down.  

Placing reliance on paragraph 5(f) of the aforesaid Government Order  

dated  17.7.1997  (extracted  in  paragraph  4  hereinabove)  it  was  

submitted, that the posting of the appellants against the vacancies  

in  the Directorate  of Medical  Education, was  clearly within  the  

purview  of  their  selection  to  posts  in  the  Health  and  Medical  

Education Department.  Since the posting of the appellants was made  

in  consonance with  the Government  Order dated  17.7.1997, it  was  

contended, that it was natural to infer that the same was within the  

cadre to which they were selected and appointed.  It was therefore  

submitted,  that the  impugned order  dated 7.1.1998  passed by  the  

Principal, Government Medical College, Jammu, must be deemed to have  

been  issued  on  a  misunderstanding,  that  the  posting  of  the  

appellants at the Government Medical College, Jammu (and/or hospital  

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associated  therewith)  was  beyond  the  scope  of  their  legitimate  

posting.  For the aforesaid reason also, it was contended that the  

impugned order dated 7.1.1998 needed to be set aside.

16. We  may  also  place  on  record  the  submission  of  the  learned  

counsel for the appellants, on the same lines as the determination  

rendered by the learned Single Judge of the High Court.  To avoid  

repetition, reference may be made to paragraph 8 above.  Learned  

counsel, endorsed the aforesaid factual/legal position.

17. In response to the submissions advanced at the hands of the  

learned counsel for the appellants, the contentions advanced at the  

hands of the learned counsel for the respondents, though exhaustive  

during hearing, are being summarised  hereunder, for an overview:

i) The Department of Health and Medical Education comprises  

of two independent Directorates, namely, the Directorate  

of  Health  Services  and  the  Directorate  of  Medical  

Education.  The posts of Assistant Surgeons, against which  

the appellants were selected and appointed belonged to the  

cadre of posts, under the Directorate of Health Services.

ii) Whereas, at the time of selection and appointment of the  

appellants, the Directorate of Health Services had a cadre  

of  Assistant  Surgeons,  the  Directorate  of  Medical  

Education, which included the Government Medical College,  

Jammu  (and/or  hospitals  associated  therewith),  did  not  

have  any  post  of  Assistant  Surgeons.   Therefore,  the  

posting  of  the  appellants,  at  the  Government  Medical  

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College Jammu (and/or at hospitals associated therewith)  

could only have been by way of deputation.

iii) Cadres under the Directorate of Health Services, as well  

as, the cadres under the Directorate of Medical Education  

are  regulated  by  separate  rules.   While  the  Jammu  &  

Kashmir Medical Education (Gazetted) Service Recruitment  

Rules, 1979, govern the conditions of service of gazetted  

employees  of  the  Directorate  of  Medical  Education;  the  

Jammu  &  Kashmir  Medical  (Gazetted)  Service  Recruitment  

Rules,  1970  regulate  the  recruitment  of  gazetted  

employees, in the Directorate of Health Services.  Under  

the 1979 Rules referred to above, there was no post of  

Assistant  Surgeons.   Therefore  the  posts  of  Assistant  

Surgeon, were clearly not included in the cadre of posts  

under the Directorate of Medical Education.  It was also  

pointed out, that the post of Assistant Surgeon figure in  

the 1970 Rules referred to above, and as such, the posts  

of Assistant Surgeon, find a definite place in the cadre  

of posts, under the Directorate of Health Services.  It  

was sought to be inferred from the above factual/legal  

position, that the appointment of the appellants was in  

the Directorate of Health Services, and their posting at  

the  Government  Medical  College,  Jammu  (and/or  at  the  

hospitals associated therewith) was by way of deputation.

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iv) Referring to the impugned order passed by the Division  

Bench  dated  24.2.2006,  it  was  pointed  out,  that  the  

appellants  before  this  Court  had  not  disputed  a  vital  

factual position recorded therein, namely, that the salary  

of  the  appellants  continued  to  be  drawn  from  the  

Directorate of Health Services, for the entire duration  

during which the appellants had been rendering service at  

the  Government  Medical  College,  Jammu  (and/or  at  the  

hospitals  associated  therein).   It  was  submitted,  that  

this factual position is sufficient to establish, that the  

appointment of the appellants was to the Directorate of  

Health Services, and not in the Directorate of Medical  

Education.

18. Having given our thoughtful consideration, to the submissions  

advanced at the hands of the learned counsel for the rival parties,  

we are of the view, that the submissions advanced on behalf of the  

respondents, as have been summarized above are unexceptionable.  It  

is therefore, not possible for us to accept that the appointment of  

the appellants was substantively made to a cadre under the Director  

of Medical Education.  We are also of the view, that the appointment  

of  the  appellants  in  the  Directorate  of  Medical  Education,  was  

clearly  by  way  of  deputation.   Their  posting  at  the  Government  

Medical College Jammu (and/or at the hospitals associated therewith)  

was most certainly beyond their parent cadre, and therefore, by way  

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of deputation.  The reasons for our aforesaid conclusions, are being  

recorded in the following paragraphs.

19. Even though it is clear, that the posts of Assistant Surgeons  

were created by the Health and Medical Education Department of the  

State Government, it is also clear that the aforesaid department is  

comprised of two independent Directorates, namely, the Directorate  

of Health Services and the Directorate of Medical Education.  The  

employees of each of the two Directorates are governed by a separate  

set of rules.  The rules governing the conditions of service of  

gazetted employees of the Directorate of Medical Education, do not  

have  the  posts  of  Assistant  Surgeons.   The  cadre  of  Assistant  

Surgeons is only found in the rules of recruitment applicable to  

gazettled employees of the Directorate of Health Service.  Secondly,  

the assertion made at the hands of the learned counsel for the  

respondents, that there were no posts of Assistant Surgeon when the  

appellants  were  selected  and  posted  at  the  Government  Medical  

College, Jammu (and/or at the hospitals associated therewith), in  

the Directorate of Medical Education, has not been disputed by the  

learned counsel for the appellants.  In the absence of any posts of  

Assistant Surgeon in the Directorate of Medical Education, it is  

impossible to infer that the appellants (who were selected against  

the  posts  of  Assistant  Surgeons)  could  have  belonged  to  the  

Directorate of Medical Education.  Furthermore, consequent upon the  

selection of the appellants by the Public Service Commission they  

were issued appointment orders dated 12.8.1997.  A relevant extract  

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of the aforesaid appointment order, has been reproduced above.  A  

perusal of the same reveals, that such of the candidates who had  

been selected as Assistant Surgeons, and belonged to Jammu region,  

were to report to the Director, Health Services, Jammu. Whereas,  

those  belonging  to  the  Kashmir  region,  were  to  report  to  the  

Director,  Health  Services,  Kashmir.   The  Directors  of  Health  

Services, Jammu as well as Kashmir, are admittedly incharge of the  

administrative chain of command, in the respective Directorates of  

Health Services. This by itself demonstrates, that the appointment  

of the appellants was to the Directorate of Health Services, and not  

in the Directorate of Medical Education.  Fourthly, the order issued  

by the Principal, Government Medical College, Jammu dated 30.12.1997  

reveals,  that  the  appellants  were  being  posted  as  Senior/Junior  

House  Officers.   The  posts  of  Senior/Junior  House  Officer  are  

distinct and separate from the posts of Assistant Surgeons.  The  

posts of Senior/Junior House Officers, are included in the cadre of  

posts  in  the  Directorate  of  Medical  Education.  The  appellants  

posting as Senior/Junior House Officers also exhibits, that their  

appointment was not within the Directorate of Health Services, but  

was  against  posts  outside  the  Directorate  of  Health  Services.  

Furthermore, even the impugned order dated 7.1.1998 noted, that the  

appellants were being temporarily deployed “…from the Directorate of  

Health Services, Jammu…” to meet the exigency of shortage of doctors  

at the Government Medical College, Jammu.  Sixthly, the endorsement  

at serial no.2 of the order dated 7.1.1998 (extracted in paragraph 5  

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above) reveals, that a request was made by the by the Director,  

Health  Services,  Jammu,  that  the  appellants  be  reverted  to  the  

Directorate  of  Health  Services,  to  meet  the  needs  of  the  said  

service.   Seventhly, the order of the Department of Health and  

Medical Education dated 20.4.1998 reveals, that the posting of the  

appellants  at  the  Government  Medical  College,  Jammu  (and/or  at  

hospitals associated therewith), was made by the two Directors of  

Health  Services  in  violation  of  Government  Orders,  thereby,  

defeating the very purpose for which the appellants were selected  

and appointed.  Lastly, is the unrefuted assertion at the hands of  

the learned counsel for the respondents, that the salary of the  

appellants  continued to  be drawn  from the  Directorate of  Health  

Services,  for  the  entire  duration  during  which  the  appellants  

remained posted at the Government Medical College, Jammu (and/or at  

the  hospitals  associated  therewith).   Had  the  appellants  been  

legitimately  working  within  their  own  cadre,  their  salary  would  

undoubtedly have been drawn from the funds of the Directorate of  

Medical Education.  This factual position puts a final seal on the  

matter, as it does not leave any room for any further imagination.  

Based on the disbursement of salary to the appellants from the funds  

of Directorate of Health Services, the appellants must be deemed to  

be substantive employees of the cadre of Assistant Surgeons of the  

Directorate of Health Services. There is therefore no room for any  

doubt,  that  the  appellants  were  substantively  appointed  to  the  

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Directorate  of  Health  Services,  and  not  in  the  Directorate  of  

Medical Education.   

20. 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  the  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  

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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 the 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.

21. For the reasons expressed hereinabove, we are satisfied, that  

the impugned order passed by the Letters Patent Bench of the High  

Court  on  24.2.2006,  does  not  suffer  from  any  factual  or  legal  

infirmity.  The same is therefore, affirmed.

22. Despite having recorded our conclusions on the merits of the  

controversy, it is also essential for us to take into consideration  

a technical plea advanced at the hands of the learned counsel for  

the appellants.  It was submitted on behalf of the appellants, that  

consequent  upon the  decision by  the learned  Single Judge  (dated  

28.5.1998), whereby, the impugned order of reversion/repatriation of  

the appellants to the Directorate of Health Services dated 7.1.1998  

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was set aside, two Letters Patent Appeals, i.e., LPA (SW) no.88 of  

2000, and LPA (SW) no.89 of 2000 were filed by the respondents  

herein (to impugn the common order dated 28.5.1998, passed by the  

learned Single Judge).  In the first of the aforesaid Letters Patent  

Appeals,  18  Assistant  Surgeons  were  impleaded  as  respondents,  

whereas, in the second Letters Patent Appeal 24 Assistant Surgeons  

were impleaded as respondents.  It was pointed out, that the Letters  

Patent Appeal (SW) no.88 of 2000 was dismissed in default..  The  

said Letters Patent Appeal was never restored.  As such, it was  

submitted, that the order passed by the learned Single Judge on  

28.5.1998,  relating  to  18  Assistant  Surgeons,  (impleaded  as  

respondents therein), attained finality.  Based on the aforesaid  

uncontroverted position, it was submitted, that it is imperative for  

the State Government, now to give effect to the order of the learned  

Single  Judge  dated  28.5.1998,  pertaining  to  the  aforesaid  18  

Assistant Surgeons, (impleaded as respondents in LPA(SW) no.88 of  

2000).   In  the  aforesaid  view  of  the  matter,  it  was  further  

submitted,  that  the  binding  effect  in  connection  with  the  18  

Assistant Surgeons, should be extended to the remaining 24 Assistant  

Surgeons (who had been arrayed as respondents in LPA (SW) no.89 of  

2000.  This, according to the learned counsel for the appellants,  

would also meet the ends of justice, inasmuch as, all similarly  

situated  individuals,  must  be  placed  similarly.   According  to  

learned counsel, if this position is not accepted, the appellants  

would be deprived of their right to equality before the law and to  

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equal protection of the laws, guaranteed under Article 14 of the  

Constitution of India.

23. We have given our thoughtful consideration to the aforesaid  

technical plea advanced at the hands of the learned counsel for the  

appellants.  It is not a matter of dispute, that LPA (SW) no.89 of  

2000 was adjudicated upon by the Division Bench on merits.  In terms  

of the instant order passed by us, we have affirmed the correctness  

of the order passed by the Letters Patent Bench of the High Court on  

24.2.2006.  Thus viewed, it is clear that the controversy was justly  

adjudicated upon by the Division Bench, in respect of 24 Assistant  

Surgeons.  The only question to be decided, while dealing with the  

technical plea advanced at the hands of the learned counsel for the  

appellants is, whether the judgment rendered in LPA (SW) no.88 of  

2000 should be extended to LPA(SW) no.89 of 2000. Or vice-a-versa,  

whether  the order of the learned Single Judge, which has attained  

finality in respect of 18 Assistant Surgeons, should be extended to  

the other 24 Assistant Surgeons.   

24. In so far as the matter pertaining to 24 Assistant Surgeons is  

concerned, the decision rendered by the High Court on 24.2.2006 has  

been affirmed by us on merits.  It is therefore legitimate to infer,  

that the matter has been wrongfully determined by the learned Single  

Judge.  We are of the view, that the decision of the controversy by  

this Court, pertaining to the 24 Assistant Surgeons (whose claim was  

decided  by  the  impugned  order  dated  24.2.2006)  constitutes  a  

declaration  of  law,  and  is  binding  under  Articles  141  of  the  

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Constitution of India.  Such being the stature of the determination  

rendered  in  respect  of  24  Assistant  Surgeons  (whose  claim  was  

adjudicated by the Letters Patent Bench of High Court), we are of  

the view that the same should, if permissible, also be extended to  

the other 18 Assistant Surgeons.  Ordinarily, in a situation when a  

judgment  attains  finality  between  rival  parties,  it  is  not  

legitimate to reopen the issue, even for correcting an error, which  

emerges from a subsequent adjudication.   

25. The factual position in the present controversy is slightly  

different.  Before this Court two Special  Leave Petitions were  

filed.   The  Assistant  Surgeons  against  whom  the  Letters  Patent  

Appeal was dismissed in default, are also before this Court.  They  

have also been afforded an opportunity of hearing. This Court has  

expressed the opinion that the order passed by the Letters Patent  

Bench of the High Court on 24.2.2006 deserves to be upheld.  If the  

Assistant  Surgeons  whose  Letters  Patent  Appeal  was  dismissed  in  

default,  had  not  been  before  this  Court,  it  may  not  have  been  

possible for us to re-adjudicate upon their claim.  Since all of  

them are before us, and have been represented through counsel, we  

have no doubt in our mind, that the determination on merits in the  

instant controversy should be extended to them, as well.  Since such  

a choice can be made in the present case, we are of the view, that  

the proposition which has been upheld as legal, should be extended  

to the others similarly situated.  The converse proposition, does  

not  commend  itself  for  acceptance.   It  would  be  unthinkable  to  

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implement an order, which has been set aside after due  notice and  

hearing.  We therefore, find no merit in the technical plea advanced  

at the hands of the learned counsel for the appellants.

26. The reversion/repatriation of the appellants to their parent  

department,  i.e.,  the  Directorate  of  Health  Services,  Jammu,  is  

affirmed.  The appellants  who have continued to discharge their  

duties  eversince  their  induction  into  service  at  the  Government  

Medical College, Jammu (and/or at hospitals associated therewith),  

will be repatriated/reverted to the Directorate of Health Services,  

Jammu.  Now, that the matter has attained finality, they must be  

relieved  from  their  postings  in  the  Directorate  of  Medical  

Education.   So  as  to  enable  them  to  accept  the  reality  of  the  

situation, and to acclimatize them with the position emerging from  

our order,  we consider it just and appropriate to direct, that the  

appellants be allowed to be continued at their present place of  

posting till 31.3.2013.  They shall be relieved from their posting  

in the Directorate of Medical Education under all circumstances on  

the afternoon of 31.3.2013, for onward posting against a cadre post  

in the Directorate of Health Services.

Disposed of in the aforesaid terms.

…………………………….J. (D.K. Jain)

…………………………….J. (Jagdish Singh Khehar)

New Delhi; January 9, 2013.   

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