KAVI RAJ Vs STATE OF J&K .
Bench: D.K. JAIN,JAGDISH SINGH KHEHAR
Case number: C.A. No.-000162-000162 / 2013
Diary number: 6221 / 2006
Advocates: VIKAS MEHTA Vs
SUNIL FERNANDES
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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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