Jammu & Kashmir High Court
Anil Suri And Anr vs State Of J&K; And Ors on 19 August, 2017
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
1. SWP No. 115/2006
2. SWP No.1194/2005
3. SWP No. 1425/2005
4. SWP No. 866/2015
Date of decision: 19/08/2017
________________________________________________________________
1. Anil Suri and anr. Vs. State of J&K and ors.
2. Harvinder Singh. Vs. State of J&K and ors.
3. Harvinder Singh. Vs. State of J&K and ors.
4. Sunil Cannie and ors. Vs. State of J&K and ors.
Coram:
Hon'ble Mr. Justice Sanjeev Kumar, Judge .
Appearing counsel:
For Petitioner(s) : Mr. Abhinav Sharma, Advocate.
Mr. S.S.Ahmed, Advocate.
Mr. Vikram Sharma, Advocate.
For Respondent(s) : Mrs. Seema Shekher, Sr. AAG with
Ms. Mehvish Shah, GA.
(i) Whether to be reported in Yes.
Press/Journal/Media
(ii) Whether to be reported in Yes.
Digest/Journal
________________________________________________________________
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, SWP Nos. 115/2006, 1194/2005, 1425/2005 & 866/2015 Page 1 of 19 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 SWP Nos. 115/2006, 1194/2005, 1425/2005 & 866/2015 Page 2 of 19 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, as claimed by them in the petition, submitted representations against the aforesaid remarks made in the tentative seniority list to the respondent No. 6 and acting upon their representations, the respondent No. 6 vide his Order No. 59/Estt of 2004 dated 17th March, 2004 issued substantive seniority list of ministerial staff of the Motor Vehicles Department indicating therein the names of both the petitioners at S. Nos. 5 and 4 respectively and, therefore, contends learned counsel for the petitioners, the department of Transport also treated the petitioners having been permanently absorbed in the Transport Department on the Divisional Cadre as Junior Assistants and, SWP Nos. 115/2006, 1194/2005, 1425/2005 & 866/2015 Page 3 of 19 therefore, respondent No. 1 was not competent in law to treat them as deputationists and revert them back to their parent departments, as has been done by the respondent No. 1 vide Government order impugned in the writ petition.
5. With a view to substantiate his submissions that the case of the petitioners is one of appointment by transfer and not a deputation, the learned counsel placed reliance upon Rule 24 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 (hereinafter referred to as "the Rules of 1956"). Referring to Rule 9 of the Rules of 1956, the counsel for the petitioners would argue that under the aforesaid Rule, there are three mode of appointment to the Government service provided, i.e.:-
(a) By promotion or by transfer from any other service or class;
(b) By direct recruitment or ;
(c) Partly by (a) and partly by (b) Thus the mode of appointment by transfer, contends the learned counsel for the petitioners, is one of the modes provided for recruitment to the service and, therefore, the petitioners, who were transferred from their respective parent departments to the department of Transport were actually appointed by transfer and became the permanent employees on the cadre of Transport Service with immediate effect. However, this was later on followed by termination of their lien from the parent departments and inclusion of their names in the final seniority list issued in the year 2004. It is, however, contended that in terms of Jammu and Kashmir Transport Controllers (Subordinate) Service Recruitment Rules, 1974 (hereinafter referred to as "the Rules of 1974"), all non-gazetted posts borne on the service have been provided to be filled up by way of direct recruitment and promotion/selection and that the mode of appointment by transfer has not been specifically provided but in terms of Rule 14 of the Rules of 1974, it has been provided that in regard to the matters not specifically covered under the rules, the members of the service shall be SWP Nos. 115/2006, 1194/2005, 1425/2005 & 866/2015 Page 4 of 19 governed by the rules, regulations and orders applicable to the State Civil Services in general and if that being the position, Rule 8 of the Rules of 1956 would be applicable to the employees on the cadre of Transport Controller's (Subordinate) Services which specifically provides "appointment by transfer"
as one of the modes of initial appointment to the service.
6. Learned counsel also relied upon the Judgment of Hon'ble Supreme Court in case titled Ashok Kumar Uppal v. State of J&K and ors, 1998 (4) SCC 179, to substantiate his submissions and has also placed reliance upon the Judgment of Hon'ble Supreme Court in case titled Narender Chadha v. Union of India and ors, 1986 (2) SCC 157 and submitted that when an ad hoc promotee or appointee is allowed to continue for long without being reverted or challenged, he would be deemed to have been regularized and the petitioners in this case have been serving in the Transport department from the years 1997 and 1994 respectively and have acquired a mantle of permanency and, therefore, cannot be reverted at this stage to their parent departments particularly, when their lien in the parent departments too has been terminated.
7. Lastly, it was submitted that under Article 52-C of the Jammu and Kashmir Civil Service Regulations Vo. I, deputation cannot exceed three years and at the most can be further extended for one year on the request of borrowing agency but in any case the total period of deputation cannot exceed a period of four years at a time. The fact that the petitioners were not repatriated after expiry of the period of four years would go a long way to show that even the borrowing department, i.e., the department of Transport treated the petitioners as having been permanently appointed to their department and not liable to repatriation. On the aforesaid grounds, the petitioners assailed the validity of the impugned Government Order.
8. Per contra, learned Senior Additional Advocate General, Mrs. Seema Shekher assisted by Ms. Mehvish Shah, Government Advocate, submitted that the transfer of the petitioners from parent departments, i.e, the department of SWP Nos. 115/2006, 1194/2005, 1425/2005 & 866/2015 Page 5 of 19 Social Welfare and the J&K Khadi and Village Industries Board to the department of Transport was by way of deputation and the person on deputation can always and at any time be repatriated to his parent department to serve his substantive position. This can be done either at the instance of either of the departments and there is no vested right in such person to either continue on deputation indefinitely or to seek absorption in the borrowing department. It is thus contended that it is true that at the relevant point of time keeping in view the exigency of service and to provide requisite man power to the department of Transport, the Government deputed several persons belonging to different departments to the department of Transport by way of a temporary measure, however, when the orders for their repatriation were passed like the one impugned in this petition, the petitioners approached this Court and got interim directions of their continuance and, therefore, succeeded in protracting their stay in the Transport Department.
9. While rebutting the contention of the learned counsel for the petitioners that they have been included in the final seniority list, learned counsel for the State has placed on record a copy of order No. 89-DC dated 30th December, 2005, whereby a fresh tentative seniority list was promulgated by the Transport Department in which the names of the petitioners were deleted. She, therefore, contends that inclusion of the names of the petitioners in the Seniority List of 2004 was inadvertent and erroneous and, therefore, corrected while issuing the seniority list on 30th December, 2005.
10. In support of their submissions, learned counsel appearing for the State relied upon the Judgment of Hon'ble Supreme Court passed in case titled Kunal Nanda v. Union of India and another, 2000 (5) SCC 362 and the Judgments passed by a Co-ordinate Bench of this Court in case titled Manzoor Hussain Gulshan v. State of J&K, 2011 (1) JKJ 338 and Dr. Abdul Ahad v. State of J&K, 2001 SLJ 521.
SWP Nos. 115/2006, 1194/2005, 1425/2005 & 866/2015 Page 6 of 1911. On the basis of case law relied upon by the respondents, it is finally submitted that the order impugned by virtue of which the petitioners have been repatriated to their parent departments is perfectly legal and in consonance with law and does not infringe or violate any of the rights of the petitioners and, therefore, cannot be interfered with.
12. Heard learned counsel for the parties and perused the record.
13. Undoubtedly and as fairly admitted by the learned counsel for the petitioners, the services of the non-gazetted employees of the Transport department are governed by the Rules of 1974 and Rule 5 of the Rules provides for qualification and method of recruitment. For facility of reference, relevant portion of Rule 5, i.e., 5 (1), 5(2) and 5 (3) is reproduced hereunder:-
"5(1) No person shall be eligible for appointment or promotion to any class, category or grade in the service unless he possesses the qualifications as laid down in Schedule 'A' and fulfils the requirements of recruitment provided in the rules and orders for the time being in force.
5(2). Appointments to the service shall be made -
(a) By direct recruitment;
(b) By promotion/selection;
(c) Partly by direct recruitment and partly by
promotion/selection;
In the ratio and in the manner as indicated against
each post in Schedule 'A'.
5 (3) In case suitable candidates are not available for promotion/selection, the posts shall be filled up by direct recruitment and vice versa."
14. From perusal of the Rules reproduced hereinabove, it is abundantly clear that initial recruitment to the Transport Controller's (Subordinate) Services can only be made either by direct recruitment or by promotion/selection and the mode of recruitment by way of transfer is not provided. It is equally true that SWP Nos. 115/2006, 1194/2005, 1425/2005 & 866/2015 Page 7 of 19 Rule 14 of the Rules of 1974, provides for residuary matters not covered by the Rules and provides that in such situation the members of the service would be governed by the Rules, Regulations and Orders applicable to the State Civil Services in general. For facility of reference, Rule 14 of the Rules of 1974 is also reproduced hereunder:-
"14. Residuary matters In regard to matters not specifically provided under these rules, the members of the service shall be governed by the rules, regulations and orders applicable to the State Civil Services in general."
15. As is apparent from bare perusal of the aforesaid rule, the general rules applicable to the State Civil Services would be applicable only with respect to the matters not specifically provided in the Rules of 1974. Rule 5 of the Rules of 1974, as reproduced hereinabove, explicitly provides that the only mode to the recruitment is by direct recruitment or by promotion/selection and, therefore, Rule 8 of the Rules of 1956, cannot be resorted to. It is thus implicit by the reading of the aforesaid Rules that insofar as the recruitment to the Transport Controller's (Subordinate) Services is concerned, the same is only restricted to two modes, i.e., by way of direct recruitment or by way of promotion/selection and no other mode. It is well settled principle of law that when a statute prescribes a particular mode of doing anything, then the same is required to be done in the prescribed mode or not to be done at all. Otherwise also, the principle of 'Generalia Specialibus Non Derrogent' would be attracted to the case on hand. The Rules of 1974 which regulate the recruitment of the Transport Controller's (Subordinate) Services is a special statute and would, therefore, over ride the Rules of 1956 which are general rules governing the members of State Civil Services in general. The law in this regard is well settled. {See UP State Electricity Board and ors v. Hari Shanker Jain and ors, (1978) 4 SCC 16; Motiram Ghelabhai (Dead) through LR Maniram Motiram v. Jagan Nagar(dead) through LRs and ors., (1985) 2 SCC 279;
SWP Nos. 115/2006, 1194/2005, 1425/2005 & 866/2015 Page 8 of 19and Usmanbhai Dawoodbhai Menon and ors v. State of Gujrat, (1988) 2 SCC 271}.
16. In the light of discussion above, I am not inclined to accept the submissions of learned counsel for the petitioners that appointment by transfer is one of the modes provided for initial recruitment to the Transport Controller's (Subordinate) Services and, therefore, the order of their transfer from their parent departments to the Transport Department is required to be construed as an order of appointment by transfer.
17. The alternate contention of the petitioners that they by virtue of their continuous service in the Transport Department have acquired a mantle of permanency which assumption of the petitioners is supported by the subsequent development like termination of their lien by their respective parent departments and inclusion of their names in the final seniority list of the Transport Department is also without any merit. From perusal of the orders of transfers whereby they were brought to the Transport Department, it is abundantly clear that these were merely orders of transfers simpliciter and since the transfer was from one Government department to another Government department, as such the same was covered by the term "deputation" as defined under Article 52-B of the J&K Civil Service Regulations Part-I. The transfers and postings from one Government department to the another Government department are generally termed as 'transfers' but are essentially deputations, as defined under Article 52-B. That being the position, the orders of transfers and postings of the petitioners in the department of Transport are nothing but deputation, inasmuch as, the transfer in terms of Rule 27 of the Rules of 1956 can only be within the service. For facility of Reference, Rule 27 of the Rules of 1956 is reproduced hereunder:-
"27. Posting and transfers:- (1) A member of a service or class of a service may be required to serve in any part of the Jammu and Kashmir State in any post on the cadre of such service or class.SWP Nos. 115/2006, 1194/2005, 1425/2005 & 866/2015 Page 9 of 19
(a) All transfers and postings shall be made by the authority prescribed by Government in this behalf."
18. From bare perusal, it is crystal clear that a member of service or class of service can be required to serve in any part of Jammu and Kashmir State in any post borne on the cadre of such service or class and therefore, any transfer outside the cadre or service is nothing but deputation as defined under Article 52-B of the J&K CSR. Similarly, as provided under Article 52-C of the J&K CSR Vol-I, all deputations other than those from one government department to another are subject to certain standard terms and conditions including the one with regard to the maximum tenure of deputation. A careful perusal of Article 52-C would indicate that it is only the cases of deputations involving deputation of government servants to non-government organizations, including Corporations, Companies, Autonomous Bodies etc. which shall be governed by the standard terms and conditions of the deputation as contained in Schedule XVIII and in addition thereto by the conditions laid down in Article 52-C itself. Article 52-C, therefore, keeps the deputations involving transfer from one Government department to another outside the purview of Article 52-C.
19. That being the position of Rules, the plea of the petitioners that they having not been repatriated even after completion of maximum period of four years of deputation and have, therefore, been treated as permanently absorbed in the Transport Department, is a plea without any substance and dehors the express provisions referred to hereinabove.
20. Once the petitioners, in view of the aforesaid discussion, are held to be deputationists then as rightly contended by the learned counsel appearing for the State, the petitioners have no right to remain in the borrowing department for indefinite period nor have they any vested right to claim absorption in the department where they were on deputation. In the case titled Kunal Nanda v.
SWP Nos. 115/2006, 1194/2005, 1425/2005 & 866/2015 Page 10 of 19Union of India and another (supra), relied upon by the respondents, Hon'ble Supreme Court held as under:-
"6. On the legal submission made also there are no merits whatsoever. It is well settled that unless the claim of the deputationist for permanent absorption in the department where he works on deputation is based upon any statutory Rule, Regulation or order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his subst antive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation.........."
21. Similarly, in the case of State of Punjab and others v. Inder Singh and others, JT 1997 (8) SC 466, the Hon'ble Supreme Court held as under:-
"19. Concept of "deputation" is well understood in service law and has a recognised meaning. 'Deputation' has a different connotation in service law and the dictionary meaning of the word 'deputation' is of no help. In simple words 'deputation' means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who SWP Nos. 115/2006, 1194/2005, 1425/2005 & 866/2015 Page 11 of 19 controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head Constables as the case may be."
22. There is plethora of judicial precedents [(2002) 9 SCC 485, (2001) 10 SCC 520)] dealing with the scope of deputation in which it is now unequivocally settled that 'deputationist' has no vested right either to continue in the borrowing department indefinitely or to seek his absorption in the borrowing department even on the strength of his length of service in the borrowing department. A deputationist being on a temporary posting in the borrowing department is liable to be repatriated and can always be repatriated to his parent department at any time and the deputationist has not right to make any grievance particularly when he is not in any manner prejudiced or adversely affected. The plea of the petitioners that they are required to be treated as permanent employees of the Transport Department as their lien in the parent department has been terminated also cannot be accepted. Needless to say that termination of lien by the parent department is a condition subsequent to absorption. When the petitioners were never permanently absorbed in the department of Transport by any formal order nor was there any process initiated in terms of Rules to do so, there was no justification with the parent department of the petitioners to terminate their lien. The termination of their lien by the parent departments of the petitioners is, therefore, void ab initio and, therefore, the petitioners shall be deemed to be in the service of their parent departments, the termination of their lien notwithstanding.
SWP Nos. 115/2006, 1194/2005, 1425/2005 & 866/2015 Page 12 of 1923. Viewed thus, the order impugned whereby the petitioners have been repatriated to their parent departments cannot be found fault with which otherwise is in consonance with law governing the deputation and, therefore, cannot be interfered with. Consequently, the writ petition of the petitioners being devoid of any merit is dismissed. No order as to costs.
SWP No. 1194/2005:
SWP No. 1425/2005:
24. The petitioner in these petitions is a Supervisor of J&K Khadi and Village Industries Board, Jammu and was transferred and posted in the Regional Transport Office, Jammu on deputation basis vide Government Order No. 1271-GAD of 2002 dated 31.07.2002. While the petitioner was serving in the borrowing department, i.e., Regional Transport Office, Jammu, the substantive seniority list of ministerial staff of Motor Vehicles Department came to be issued vide Order No. 59/Estt of 2004 dated 17th March, 2004.
25. The grievance of the petitioner is that another employee, who was also a Supervisor in the J&K Khadi and Village Industries Board, Jammu, namely Sh. Rajiv Kumar, who was similarly deputed to the Regional Transport Organization, was indicated in the seniority list but his name was not so indicated. Complaining discrimination, the petitioner filed the writ petition, i.e., SWP No. 1194/2005 claiming inter alia a direction to the respondents to absorb him in the Transport department on the analogy of respondent Nos. 6 and 7, i.e., Rajiv Kumar and Anil Suri (both these persons are writ petitioners in SWP no. 115/2006) and also a direction to include his name in the final seniority list of ministerial staff on the analogy of respondent Nos. 6 and 7. It appears that during the pendency of the aforesaid writ petition, Deputy Transport Commissioner, J&K, Srinagar vide Order No. TC/Estt/51 of 2005 dated 16.09.2005 relieved the petitioner and directed him to report to his parent organization. The aforesaid order passed by the office of Transport Commissioner gave fresh cause of action to the petitioner to come to this Court.
SWP Nos. 115/2006, 1194/2005, 1425/2005 & 866/2015 Page 13 of 19Consequently, the petitioner filed SWP No. 1425/2005, challenging the aforesaid Order dated 16.09.2005 whereby he had been directed to be repatriated to his parent department. In the second petition, the petitioner has also made a grievance that the order impugned could not have been passed in the face of a direction issued by this Court on 05.09.2005 in SWP No. 1194/2005, directing the respondents not to repatriate the petitioner. However, it was brought to the notice of this Court that in due deference to the directions passed in SWP No. 1194/2005, the petitioner was not repatriated and was allowed to continue. The respondents however, disputed the right of the petitioner to remain on deputation for ever and resisted his repatriation to his parent department on the grounds which have been taken note of and considered while disposing of SWP No. 115/2006 titled Anil Suri and anr. v. State of J&K and ors.
26. The case of the petitioner, as is apparent from the pleadings of both the writ petitions, is identical and similar to the case of Anil Suri and Rajiv Kumar. As a matter of fact, the petitioner has sought the relief in the writ petitions only on the analogy of Anil Suri and Rajiv Kumar. Since the writ petition, SWP 115/2006, filed by Anil Suri and Rajiv Kumar has already been dismissed, as such on the parity of reasoning given in the aforesaid Judgment, both the writ petitions of the petitioner are also found to be without any merit and, therefore, dismissed accordingly. No order as to costs. SWP No. 866/2015:
27. The petitioners in this petition are Junior Engineers (Mechanical) appointed substantively in Public Works (R&B) Department and have been brought in the Motor Vehicles Department of the Transport Department and posted against clear vacancies of Motor Vehicle Inspectors. The petitioners claim that they possess the requisite qualifications/eligibilities prescribed in J&K Transport Controller's (Subordinate) Service Recruitment Rules, 1974, as SWP Nos. 115/2006, 1194/2005, 1425/2005 & 866/2015 Page 14 of 19 amended by SRO 263 of 2012 dated 08.08.2012, for the recruitment of Motor Vehicle Inspectors.
28. It is the contention of the petitioners that the posts on which they were initially brought in to work as Motor Vehicle Inspectors as per the Recruitment Rules of 1974 read with SRO 263 of 2012, have been provided to be filled up by the Junior Engineers from Public Works (R&B) Department in case the direct recruitment candidates are not available and, therefore, the aforesaid provisions of the Recruitment Rules of 1974 need to be read down to provide for additional mode of recruitment to the post of Motor Vehicle Inspectors by deputation of Junior Engineers from Public Works (R&B) Department holding the prescribed qualifications.
29. On the strength of the aforesaid provisions of the Rules of 1974, particularly, when read with SRO 263 of 2012, the petitioners claim that they are entitled to be appointed as Motor Vehicle Inspectors on substantive basis against the posts lying vacant with effect from the date of initial placement as Motor Vehicle Inspectors on available vacant posts. The petitioners are also seeking a direction to the respondents to permanently absorb them as Motor Vehicle Inspectors against the posts held by them in terms of the recommendations of the Transport Commissioner issued vide his No. TC/JK/Estt./3264 dated 22.05.2014. The petitioners have also prayed for a writ of certiorari for quashing the order of respondent No. 4 issued vide No. TC/JK/Estt./3264 dated 29.01.2015.
30. The case set up by the petitioners is primarily based on the provisions of SRO 263 of 2012 dated 8th August, 2012, whereby amendments have been made in Schedule 'A' under the heading 'Technical' in the Rules of 1974.
31. Before appreciating the submissions made by the learned counsel for the petitioners, it would be appropriate to reproduce the provisions of SRO 263 of 2012 dated 8th August, 2012 as under:-
SWP Nos. 115/2006, 1194/2005, 1425/2005 & 866/2015 Page 15 of 19"Government of Jammu and Kashmir Transport Department Civil Secretariat Notification Srinagar, the 8 th Aug. 2012 SRO 263- In exercise of the powers conferred by the proviso to section 124 of the Constitution of Jammu and Kashmir, the Governor hereby direct that in the Jammu and Kashmir Transport Controller's (Subordinate) Service Recruitment Rules, 1974 in Schedule 'A' under the heading 'Technical' the following amendments shall be made against category 'B':-
(a) the entry appearing in column 5 under the heading 'Minimum Qualification for direct recruitment' shall be stipulated by the following:
"(i) Minimum general education qualification of pass in X standard;
(ii) a Degree in Automobile Engineering.
Or Diploma in Automobile Engineering 3 years course Or A Degree in Mechanical Engineering Or Diploma in Mechanical Engineering 3 years course; and
(iii) Working experience of at least one year in a reputed automobile workshop which undertakes repairs of both light Motor Vehicles, heavy goods vehicles and heavy passengers motor vehicles fitted with petrol and diesel engine; and
(iv) Must hold a driving licence authorizing him to drive motor cycle, heavy goods vehicles and heavy passenger motor vehicle."
(b) the entry appearing in column 6 under the heading 'Method of recruitment' shall be substituted by the following:-
"100% by direct recruitment Or By deputation from in-service Junior Engineers in the PW (R&B) Department, possessing the qualification prescribed for direct recruitment, in case direct recruits are not available and till they become available."
By order of the Governor."
SWP Nos. 115/2006, 1194/2005, 1425/2005 & 866/2015 Page 16 of 1932. The contention of the learned counsel for the petitioners that the amendment made by virtue of SRO 263 of 2012 in the Rules of 1974 has provided an additional mode of recruitment to the post of Motor Vehicle Inspector in the Transport Department, is misconceived, in that, as is apparent from bare reading of the provisions, i.e., SRO 263 of 2012 dated 8th August, 2012, the amendment appears to have been necessitated to bring the eligibility condition prescribed for the post of Motor Vehicles Inspector of Transport Department at par and in tune with the eligibility qualification prescribed under Notification SO 443 (E) dated 12.06.1989 issued under Motor Vehicles Act. 1988, and additionally also with a view to provide for temporarily meeting the shortage of staff in the Motor Vehicles Department. If for one reason or the other, direct recruitments are not made and the direct recruits to man the posts of Motor Vehicle Inspectors do not become available. It is in view of the above, it has been provided that the posts of Motor Vehicle Inspectors shall also be supplied by deputation from in-service Junior Engineers in the Public Works (R&B) Department possessing the qualification for direct recruitment in case direct recruits are not available and till they become available. The aforesaid prescription in the Rules is clear and explicit. A plain reading of the provisions would show that the posts of Motor Vehicle Inspectors are required to be filled up by way of direct recruitment from amongst the candidates fulfilling the eligibility conditions prescribed in SRO 263 of 2012 and, if at a particular point of time, for any reasons whatsoever, the direct recruits are not available, the posts can be temporarily manned by Junior Engineers in the Public Works (R&B) department to be brought in the Motor Vehicles Department by way of deputation and that they would continue on deputation till the direct recruits become available. The aforesaid provision does not admit of any other interpretation than the one is borne natural from its bare perusal. The doctrine of "reading down" cannot be pressed into service to supply something to the provisions which is clear, explicit and categoric in its SWP Nos. 115/2006, 1194/2005, 1425/2005 & 866/2015 Page 17 of 19 terms. Reading down the aforesaid provisions of the Rule of 1974 in the manner suggested by the learned counsel for the petitioners would amount to re-writing the provisions, which is not permissible in law.
33. The Hon'ble Supreme Court in case titled C.B.Gautam v. Union of India and ors, (1993) 1 SCC 78, held that doctrine of "reading down" cannot be invoked where express provisions itself negates the same. Similarly, in case titled Calcutta Gujarati Education Society and anr. Vs. Calcutta Municipal Corpn. and others, (2003) 10 SCC 533, the Hon'ble Supreme Court held as under:-
"35. The rule of "reading down" a provision of law is now well recognised. It is a rule of harmonious construction in a different name. it is resorted to to smoothen the crudities or ironing out the creases found in a statute to make it workable. In the garb of "reading down", however, it is not open to read words and expressions not found in it and thus venture into a kind of judicial legislation. The rule of reading down is to be used for the limited purpose of making a particular provision workable and to bring it in harmony with other provisions of the statute. It is to be used keeping in view the scheme of the statute and to fulfil its purposes."
34. There is thus judicial consensus with regard to invocation of doctrine of "reading down" more oftenly to save the constitutionality of a statute. It is thus clearly laid down by the Hon'ble Supreme Court in plethora of Judgments that the doctrine of "reading down" cannot be invoked where express provisions itself negates the same. In the recent Judgment, the Hon'ble Supreme Court in case titled Shreya Singhal. V. Union of India, (2015) 5 SCC 1, reiterated the aforesaid position of law. Going by the settled proposition of law, doctrine of "reading down" cannot be resorted to in the instant case to supply something to the provisions which does not only amount to re-writing the provisions but is in clear derogation thereof. It is thus held that appointment of Junior Engineers of Public Works (R&B) department possessing the prescribed eligibility condition SWP Nos. 115/2006, 1194/2005, 1425/2005 & 866/2015 Page 18 of 19 is not one of the mode of recruitment to the post of Motor Vehicle Inspector and, therefore, the contention of learned counsel for the petitioners that in the light of the provisions of SRO 263 of 2012, the petitioners be deemed to have been appointed as Motor Vehicle Inspectors substantively with effect from the date of initial appointment is, therefore, without any merit and, therefore, rejected.
35. The petitioners like the writ petitioners in SWP No. 115/2006 are merely deputationists and, therefore, liable to be repatriated at any time to their parent department, the provisions of SRO 263 of 2012 notwithstanding. They, however, have a right to remain in the borrowing department, i.e., in the Motor Vehicles Department till the posts held by them are substantively filled up by way of direct recruitment. This, however, does not mean that they cannot be replaced by another set of eligible in-service Junior Engineers of PW (R&B) Department, if the same is required in the interest of administration.
36. Be that as it may, it is thus concluded that the petitioners, who are merely deputationists of the Motor Vehicles Department, have no vested right either to remain in the borrowing department for indefinite period or to claim their absorption as Motor Vehicle Inspectors on any ground whatsoever, particularly, when the Rules of 1974 as amended vide SRO 263 of 2012 do not provide any such absorption/regularization.
37. The writ petition of the petitioners is, therefore, found to be without merit and hence dismissed. No order as to costs.
(Sanjeev Kumar) Judge JAMMU 19/08/2017 Tilak, Secy.
SWP Nos. 115/2006, 1194/2005, 1425/2005 & 866/2015 Page 19 of 19