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2017 Supreme(J&K) 432
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjeev Kumar, J.
Anil Suri and Anr. – Petitioners
Vs.
State of J&K and Ors. – Respondents
SWP No. 115 OF 2006, 1194, 1425 OF 2005, 866 OF 2015
Decided On : 19-08-2017
For the Petitioners:Mr. Abhinav Sharma, Advocate, Mr. S.S.Ahmed, Advocate, Mr. Vikram Sharma, Advocate
For the Respondents: Mrs. Seema Shekher, Sr. AAG. with Ms. Mehvish Shah, GA.
Deputationists have no vested right to claim absorption in the borrowing department, and the Rules of 1974 do not provide for the absorption or regularization of deputationists.
Headnote:
Deputation - Transport Department Employees - Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, Article 52-B, Article 52-C - The court discussed the appointment by transfer, deputation, and the rights of deputationists. It highlighted the provisions of the Jammu and Kashmir Civil Service Regulations and the Jammu and Kashmir Transport Controller’s (Subordinate) Service Recruitment Rules, 1974. The court emphasized that the deputationists have no vested right to remain in the borrowing department indefinitely or to claim absorption in the borrowing department.
Fact of the Case:
The petitioners, employees of the Government Department or Autonomous Institutions, claimed an indefeasible right to be permanently absorbed in the Transport department after being transferred/deputed by their parent departments. They argued that their transfer to the Transport department was not by way of deputation but an appointment by transfer.
Finding of the Court:
The court found that the petitioners were deputationists and had no vested right to claim absorption in the borrowing department. It held that the termination of their lien by the parent departments was void ab initio, and the petitioners were deemed to be in the service of their parent departments.
Issues: The main issue was whether the petitioners had acquired an indefeasible right to be permanently absorbed in the Transport department and whether their transfer was an appointment by transfer or deputation.
Ratio Decidendi: The court held that the petitioners were deputationists and had no vested right to claim absorption in the borrowing department. It emphasized that the Rules of 1974 did not provide for the absorption or regularization of deputationists.
Final Decision: The writ petitions of the petitioners were found to be without merit and dismissed.
1. The petitioners in all these four petitions are employees either of the Government Department or Autonomous Institutions like J&K Khadi and Village Industries Board, Jammu and have been stated to be serving in the Transport Department on deputation after having been transferred/deputed by their parent departments. Having served in the department of Transport for years together, the petitioners claim that they have acquired an indefeasible right of being permanently absorbed in the Transport department and, therefore, cannot be repatriated to their parent departments. Since the grievance projected and the relief claimed in all these petitions are almost identical and have, therefore, been heard together and taken up for decision by a common judgment.
SWP No. 115/2006:
2. This petition has been filed by the two petitioners. The petitioner No. 1, a Junior Assistant in the Social Welfare Department of the State, was transferred to the office of Transport Commissioner, Jammu against the available vacancy vide Government Order No. 1564-GAD of 1997 dated 29.09.1997. The petitioner No. 2, a Supervisor of J&K Khadi and Village Industries Board, Jammu, was also similarly transferred and posted as Junior Assistant in the office of Regional Transport Organization, Jammu vide Government Order No. 186-GAD of 1994 dated 21st February, 1994. While the petitioners were performing their duties as Junior Assistants in the office of Transport Commissioner, Jammu and Regional Transport Officer, Jammu respectively, respondent No. 4 vide Government Order No. 1604-GAD of 2005 dated 27th December, 2005 directed the reversion of both the petitioners to their respective departments, i.e., Directorate of Social Welfare, Jammu and Khadi and Village Industries Board, Jammu respectively. Aggrieved, the petitioners assailed the validity of Government Order No. 1604-GAD of 2005 dated 27th December, 2005 through the medium of instant petition.
3. On behalf of the petitioners, it was submitted that since their transfer to the Transport department, the petitioners have been continuously performing their duties and their transfer was not by way of any deputation but an appointment by transfer and, therefore, they have acquired an indefeasible right to be treated as permanent employees of the Transport Department. It is thus submitted that the petitioners, who have become permanent employees of the Transport department, cannot be repatriated to their parent departments, more so, when their lien in the parent departments has since been terminated. Reference in this regard was invited to the Communication of Deputy Director (Adm.), Social Welfare Department, Jammu issued vide No. DSWJ/Estt/5487/03 dated 09.12.2003 and Communication of Secretary, J&K Khadi and Village Industries Board, Jammu issued vide No. KVIB/Adm/3828 dated 16th December, 2002, wherein the parent departments of both the petitioners have certified that the lien of the petitioners had been terminated from the date they were relieved from their respective departments.
4. Learned counsel for the petitioners would, therefore, submit that the transfer of the petitioners from their parent departments to the department of Transport was neither a transfer simpliciter nor deputation as is understood under the provisions of Civil Service Regulations but was a case of appointment by transfer. He would further submit that it is because of this reason; the parent departments of the petitioners terminated the lien of the petitioners from their respective departments. It is the further argument of the petitioners that in the tentative seniority list of ministerial staff of Motor Vehicles Department circulated by the Transport Commissioner on 28th November, 2002, the names of the petitioners figured in the Divisional Cadre at S. Nos. 10 and 9 respectively but their inclusion in the seniority list aforesaid was with the remarks against each, i.e., “have his lien in his parent department”. The petitioners,
