J L BAMZAI Vs. STATE OF J&K

JUDGEMENT

(1.) THIS trifle case arising out of Government order by which the appellant was sent on deputation to National Hydroelectric Project Corporation Ltd., has assumed so much of importance that after the dismissal of the writ petition, in the LPA, Honble Justice M.L. Bhat and Honble Justice S.M. Rizvi have differed in their judgments with regard to the provisions of law applicable in the case held to be involving important questions of law which have been referred to me under rule 23 of the J&K High Court Rules. The Division Bench after delivering dissenting judgments formulated the following question for being referred to third Judge in terms of the rule 23 of the J&K High court Rules. 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 the Circular and ignore the administrative exigencies to depute the petitioner to the concern of requisitioning authority in the public interest indicated in the counter affidavit. Further the petitioner having given consent for deputation in the first instance cannot dictate terms in violation of service rules and standard terms deputation not disputed in this case. The circular issued by the respondent -State can be limited for purposes of administrative instructions having discretionary nature only therefore, respondent is at liberty to over -look rather to supersede the same for administrative reasons.

(3.) IN the LPA Justice Rizvi held, "deputation is a transfer outside the department and for that the deputes is compensated by deputation allowance. It is neither a promotion and nor a demotion unless specially provided in the order and in that case it has all legal sequences.....It is not therefore correct to say that transfer and denotation are two different and distinct concepts. As a matter of fact transfer is a wide term and includes the deputation also. The only difference is that in case of deputation, the deputee is transferred outside the department. It is thus clear that neither deputation nor a transfer is a condition of service. Both are exigencies of service and are ordered as and when required by exigency of service, and in the interest of administration". Relying upon the judgment of Honble Bhat J. reported in 1984 SLJ 436, Brother Rizvi J held that the circular in question being administrative directions was not justiciable. Justice Bhat has, however held "the term deputation has a different meaning and connotation. It cannot be synonymous with the term transfer as contained in rule 27 of the J&K Civil Service (Classification, Control and Appeal) Rules 1955, ...............From the aforesaid discussion it would appear that deputation of an employee of a State Government department to a corporation outside J&K State is not a transfer simplicitor. Its attributes are different than the transfer simplicitor and it has got to be regulated and must not be to the disadvantage of the in services Govt. servant who is sought to be deputed outside his cadre" Regarding circular it has been held by Bhat J, "in the present case the circular becomes justiciable. Non -consideration of the appellants objection is also violative of the circular because when option was given to the appellant that option of unwillingness to go on deputation was to be considered on its merits by the respondent."