LexKAVI RAJ & OTHERS versus STATE OF J&K & ORS.
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A B [2013] 3 S.C.R. 620 KAVI RAJ & OTHERS v. STATE OF J&K & ORS. (Civil Appeal No. 162 of 2013) JANUARY 9, 2013 [D.K. JAIN AND JAGDISH SINGH KHEHAR, JJ.] Service Law - Posting (or transfer) beyond the cadre (or parent department) - Appellants selected and appointed as C Assistant Surgeons - But posted against vacant posts of Senior/Junior House Officers, at the Government Medical College pursuant to a Government order issued by the Department of Health and Medical Education pertaining to posting of Assistant Surgeons - Subsequent order by D Principai of the Medical College reverting the appellants to their parent Department, the Directorate of Health Service - Assailed by appellants - Single Judge of High Court set aside the order on ground that the appointment of appellants at the College was not by way of deputation and accordingly there E was no question of their reversion to their parent department - Decision overturned by Division Bench of High Court - On appeal, held: Though the posts of Assistant Surgeons were created by the Health and Medical Education Department of the State Government, the said department comprised of two F independent Directorates, namely, the Directorate of Health Services and the Directorate of Medical Education - Evidently, on facts, the appellants were substantively appointed to the Directorate of Health Services, and not in the Directorate of Medical Education - Their posting at the G Government Medical College was most certainly beyond their parent cadre, and therefore, by way of deputation - Mere fact that consent of the appellants was not sought before their posting at the Government Medical College did not have any determinative effect - Reversion/repatriation of the appellants H 620 KAVI RAJ v. STATE OF J&K 621 to their parent department, i.e., the Directorate of Health A Services, accordingly affirmed. Service Law - Po~ting (or transfer) beyond the cadre (or parent department) -Consent of employee - Relevance and determination of - Held: Broadly, an employee can only be 8 posted (or transferred) to a post against which he is selected - 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 and can be implied - Jn the instant case, the C appellants were issued posting orders by the Principal, Government Medical College - They accepted the same, and assumed charge as Senior/Junior House Officers at the Government Medical College, despite their selection and appointment as Assistant Surgeons - No doubt about their D willingness/readiness to serve with the borrowing Directorate - Consent of the appellants was tacit and unquestionable. Constitution of India, 1950 - Article 141 - Determination - made by Supreme Cowt on merits - Proposition upheld as E legal extended to other similarly situated parties since they were a/so heard by the Supreme Court. The appellants were selected and appointed as Assistant Surgeons. A Government Order pertaining to the posting of Assistant Surgeons was issued by the F Department of Health and Medical Ed· ~ation on 17.7.1997. 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 G Senior/Junior House Officers, at the Government Medical College, Jammu (and at hospitals associated with the , said college). However, by order dated 7.1.1998, the Principal, Government Medic.ii College, Jammu, reverted the appellants to their parent Department, namely, the H 622 SUPREME COURT REPORTS [2013] 3 S.C.R. A Directorate of Health Service, Jammu. The order dated 7 .1.1978 was assailed by the appellants before the High Court primarily on the ground that the Secretary, Department of Health and Medical Education being the appointing authority of the appellants; the Principal B Medical College, Jammu, had no jurisdiction to issue the order dated 7 .1.1998. A Single Judge of the High Court set aside the order dated 7 .1.1998 holding that the consent of the concerned C employees, prior to their appointment on deputation was mandatory; and that absence of consent in the case at hand established that the appointment of the appellants at the Government Medici'il
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