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Friday, January 11, 2013

service matter = Whether the Principal, Government Medical College, Jammu, can reverte the appellants to their parent Department, namely, the Directorate of Health Service, Jammu. = 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.


                                                                “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  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.
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 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  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.

  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  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.
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   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.
      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.
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
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  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 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.
      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  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  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 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 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 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 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  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 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 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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