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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
R.P. Sethi, J.
J.L. Bamzai - Appellant
Versus
State Of J&K & Ors. - Respondent
LPA (REF) No. 16/1988
Decided On : 28 September, 1989
TRANSFER AND DEPUTATION - Whether synonymous or distinct - Justiciability of administrative circulars - Conditions for justiciability - Whether circular relied upon by petitioner confers any right - Whether circular can be made justiciable in a writ petition.
Fact of the Case:
Appellant, an in-charge Geologist, was sent on deputation to National Hydroelectric Project Corporation Ltd. He challenged the order, arguing that it violated a circular regulating deputation from the Power Dev. Deptt. to various National Projects. The circular specified that officers/officials unwilling to go on deputation should state so within a month, failing which their names would not be considered for ex-cadre promotions and their juniors would be posted instead. The appellant declined to join the deputation, and the Government sanctioned his deputation and directed another officer to take his place. The appellant filed a writ petition, which was dismissed by the Single Judge.
Finding of the Court:
1. Transfer and deputation are not synonymous terms, but they are distinct concepts. Transfer is a wider term that includes deputation, but deputation is a transfer outside the department with deputation allowance. 2. Deputation of a Government servant to another department, Government, Corporation, Company, Autonomous Body, or Public Sector Undertaking does not change his condition of service to his detriment. 3. An administrative circular, Government instruction, or order pertaining to the service career of a Government servant is not justiciable unless it has a statutory sanction, is issued by an authority under a statute, affects, modifies, abridges, enlarges, or changes the condition of service, or adversely affects the service rights of a Government employee violating any statutory provision. 4. The circular relied upon by the petitioner did not confer any right upon him and was not justiciable in a writ petition because it was a departmental circular specifying administrative instructions intended to be considered departmentally without having the force of law.
Issues: 1. Whether transfer and deputation are synonymous or distinct concepts. 2. Whether the circular relied upon by the petitioner confers any right on him. 3. Whether the circular can be made justiciable in a writ petition.
Ratio Decidendi: 1. Transfer and deputation are not synonymous terms, but they are distinct concepts. Transfer is a wider term that includes deputation, but deputation is a transfer outside the department with deputation allowance. 2. Deputation of a Government servant to another department, Government, Corporation, Company, Autonomous Body, or Public Sector Undertaking does not change his condition of service to his detriment. 3. An administrative circular, Government instruction, or order pertaining to the service career of a Government servant is not justiciable unless it has a statutory sanction, is issued by an authority under a statute, affects, modifies, abridges, enlarges, or changes the condition of service, or adversely affects the service rights of a Government employee violating any statutory provision. 4. The circular relied upon by the petitioner did not confer any right upon him and was not justiciable in a writ petition because it was a departmental circular specifying administrative instructions intended to be considered departmentally without having the force of law.
Final Decision: The appeal filed by the appellant was dismissed with costs. The interim order of stay granted by the Division Bench was vacated.
1. Whether transfer is synonymous with deputation or the two terms i. e, transfer and deputation are distinct from each other? This question shall to be answered in the light of Art. 52 of the Civil Services Regulations and Rule 27 of the Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rule, 1956.
2. Whether or not the administrative circular dated 31-7-1987 relied upon by the petitioner in the present case confers any right on the petitioner and whether the said circular can be made justiciable in a writ petition.
2. Some of the facts of this case necessary for replying the reference are that vide Government order No: 194-PDD of 1987 dated 18-8-1987 sanction was accorded to place at the disposal of the National Hydroelectric Project Corporation New Delhi the services of the appellant, incharge Geologist. Unit J&K Srinagar for a period of two years on NHPCs standard terms and conditions of deputation." The said order was challenged by the petitioner in writ petition No: 747/1987 on the ground of the same being in violation of the circular No- PDD/V/Depute/NHPC/87 dated 31-7-1987 by which a policy had been taken by the respondent-State regulating the deputation from Power Dev. Deptt. to various National Projects operating in the State. It was submitted that the action of the respondent-State was arbitrary, without jurisdiction and violative of the provisions of Articles 14 and 16 of the Constitution of India. From the record it appears that the Chief Engineer, NHPC Uri addressed a letter dated 27th May, 1987 to the Secretary to Govt. PDD for taking consent of the appellant for being appointed as by. Manager (Geology) in the Project on standard terms and conditions of deputation for a period of two years. The petitioners vide his letter dated 19th June, 1987 addressed to the Secretary to Govt. PDD gave a conditional consent for deputation without being asked for it. He submitted that he was appointed Manager (Geology) on direct promotion. Meantime, a circular dated 31-7-1987 was issued by the Government specifying therein," this department has decided to post the officers/officials one step up on ex-cadre-basis. Accordingly, it is notified for general information of all officers/ officials that in case of their being unwilling to go on posting to these projects/Organizations, they must state so to the Adm. Department within one month so that their names will not be considered for such ex-cadre promotions according to seniority and their juniors will instead be posted (on ex-cadre basis or) for which they (Seniors) shall have no claim subsequently." After the issuance of the aforesaid circular by the Government, the petitioner vide his letter dated 14-8-1987 declined to join on deputation to NHPC. However, the Government of J&K vide the order impugned in the writ petition sanctioned the deputation of the petitioner to the NHPC and directed respondent Sh.J. S Bali to be the Incharge Geologist in place of the appellant. The writ petition was dismissed by, the learned Single Judge (Kuchhai J) holding:-
"Finally I need to observe that the Circular issued by the Respondent relied by the petitioner creates justiciable right by the petitioner before the court and the respondent-State is not under an obligation to become the slave of t
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