“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.
-----------------------
24
