Page 1 “ 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

1

Page 2 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.

2

Page 3 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

3

Page 4 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 7

th

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

4

Page 5 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.

5

Page 6 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

6

Page 7 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.

7

Page 8 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

8

Page 9 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 17

th

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.

9

Page 10 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.

10

Page 11 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

11

Page 12 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

12

Page 13 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

13

Page 14 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.

14

Page 15 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

15

Page 16 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

16

Page 17 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

17

Page 18 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

18

Page 19 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

19

Page 20 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

20

Page 21 was set aside, two Letters Patent Appeals, i.e., LPA (SW) no.88 of

2000, and LPA (SW) no.89 of 2000 were filed by the respondents

herein (to impugn the common order dated 28.5.1998, passed by the

learned Single Judge). In the first of the aforesaid Letters Patent

Appeals, 18 Assistant Surgeons were impleaded as respondents,

whereas, in the second Letters Patent Appeal 24 Assistant Surgeons

were impleaded as respondents. It was pointed out, that the Letters

Patent Appeal (SW) no.88 of 2000 was dismissed in default.. The

said Letters Patent Appeal was never restored. As such, it was

submitted, that the order passed by the learned Single Judge on

28.5.1998, relating to 18 Assistant Surgeons, (impleaded as

respondents therein), attained finality. Based on the aforesaid

uncontroverted position, it was submitted, that it is imperative for

the State Government, now to give effect to the order of the learned

Single Judge dated 28.5.1998, pertaining to the aforesaid 18

Assistant Surgeons, (impleaded as respondents in LPA(SW) no.88 of

2000). In the aforesaid view of the matter, it was further

submitted, that the binding effect in connection with the 18

Assistant Surgeons, should be extended to the remaining 24 Assistant

Surgeons (who had been arrayed as respondents in LPA (SW) no.89 of

2000. This, according to the learned counsel for the appellants,

would also meet the ends of justice, inasmuch as, all similarly

situated individuals, must be placed similarly. According to

learned counsel, if this position is not accepted, the appellants

would be deprived of their right to equality before the law and to

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Page 22 equal protection of the laws, guaranteed under Article 14 of the

Constitution of India.

23.We have given our thoughtful consideration to the aforesaid

technical plea advanced at the hands of the learned counsel for the

appellants. It is not a matter of dispute, that LPA (SW) no.89 of

2000 was adjudicated upon by the Division Bench on merits. In terms

of the instant order passed by us, we have affirmed the correctness

of the order passed by the Letters Patent Bench of the High Court on

24.2.2006. Thus viewed, it is clear that the controversy was justly

adjudicated upon by the Division Bench, in respect of 24 Assistant

Surgeons. The only question to be decided, while dealing with the

technical plea advanced at the hands of the learned counsel for the

appellants is, whether the judgment rendered in LPA (SW) no.88 of

2000 should be extended to LPA(SW) no.89 of 2000. Or vice-a-versa,

whether the order of the learned Single Judge, which has attained

finality in respect of 18 Assistant Surgeons, should be extended to

the other 24 Assistant Surgeons.

24.In so far as the matter pertaining to 24 Assistant Surgeons is

concerned, the decision rendered by the High Court on 24.2.2006 has

been affirmed by us on merits. It is therefore legitimate to infer,

that the matter has been wrongfully determined by the learned Single

Judge. We are of the view, that the decision of the controversy by

this Court, pertaining to the 24 Assistant Surgeons (whose claim was

decided by the impugned order dated 24.2.2006) constitutes a

declaration of law, and is binding under Articles 141 of the

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Page 23 Constitution of India. Such being the stature of the determination

rendered in respect of 24 Assistant Surgeons (whose claim was

adjudicated by the Letters Patent Bench of High Court), we are of

the view that the same should, if permissible, also be extended to

the other 18 Assistant Surgeons. Ordinarily, in a situation when a

judgment attains finality between rival parties, it is not

legitimate to reopen the issue, even for correcting an error, which

emerges from a subsequent adjudication.

25.The factual position in the present controversy is slightly

different. Before this Court two Special Leave Petitions were

filed. The Assistant Surgeons against whom the Letters Patent

Appeal was dismissed in default, are also before this Court. They

have also been afforded an opportunity of hearing. This Court has

expressed the opinion that the order passed by the Letters Patent

Bench of the High Court on 24.2.2006 deserves to be upheld. If the

Assistant Surgeons whose Letters Patent Appeal was dismissed in

default, had not been before this Court, it may not have been

possible for us to re-adjudicate upon their claim. Since all of

them are before us, and have been represented through counsel, we

have no doubt in our mind, that the determination on merits in the

instant controversy should be extended to them, as well. Since such

a choice can be made in the present case, we are of the view, that

the proposition which has been upheld as legal, should be extended

to the others similarly situated. The converse proposition, does

not commend itself for acceptance. It would be unthinkable to

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Page 24 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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