Jammu & Kashmir High Court - Srinagar Bench
Ghulam Mohammad Sheikh & Ors vs Managing Director on 28 August, 2020
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(Through Virtual Mode)
Reserved on: 25th of August, 2020
Pronounced on: 28th of August, 2020.
WP(C) No. 1199/2020
CM No. 3009/2020
Ghulam Mohammad Sheikh & Ors.
..... Petitioner(s)
Through: -
Mr S. A. Makroo, Advocate with
Mr B. A. Malla, Advocate.
V/s
Managing Director, Jammu and Kashmir Cements Limited.
..... Respondent(s)
Through: -
Mr B. A. Dar, Sr. AAG.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
(JUDGMENT)
01. Impugned herein this petition is the communication bearing No. JKCL:P&A:PF:2020/322 dated 11th of August, 2020, whereby the respondent-Managing Director, Jammu & Kashmir Cements Limited, has asked the Principal, Government Medical College, Baramulla (Kmr.) to repatriate all the 14 Officials/ Officers to the respondent-Organization immediately.
02. The petitioners claim to have been employed in the J& K Cements Ltd. on various posts, including the posts of Section Officer. It is stated that the petitioners rose to their respective levels by the dint of their hard work and were aspiring to achieve higher levels in the respondent-
Organization, but their dreams were shattered when the respondent- Organization, once a profit making organization and premier in the field of Page 2 of 6 WP(C) No. 1199/2020 CM No. 3009/2020 production/ supply of cement to various Departments, suffered losses, thereby resulting in the Organization having been declared as a 'Sick Industry'. Accordingly, the then Managing Director is stated to have issued a communication and also furnished the list of surplus staff to the General Administration Department of the Government of Jammu and Kashmir with the request that the said surplus staff be adjusted/ deployed in other Government Departments so that the expenditure on account of monthly establishment/ salary cost may be reduced. The Government, in the General Administration Department, as stated, took up the matter with the Industries & Commerce Department and, after obtaining the requisite 'No Objection' from them, deployed the aforesaid surplus staff in various newly created Government Medical Colleges situate in Baramulla, Anantnag, Kathua, Doda and Rajouri, while some were deployed in the Geology & Mining Department/ other Government Departments vide Government Order No. 133-GAD of 2019 dated 29th of January, 2019. It is pleaded that the petitioners are discharging their duties in the Government Medical College, Baramulla and other Departments to the best satisfaction of their superior Officers. Thereafter, as stated, the Hon'ble Lt. Governor of the Union Territory of Jammu and Kashmir, after reviewing the functioning of the various Public Sector Units/ Corporations under the Administrative Control of the Industries and Commerce Department, took various decisions for the betterment of the employees as well as the respondent- Organization, which included the one whereby the Jammu & Kashmir Cements Ltd. was decided to be privatized vide order dated 14th of January, 2020. It is further stated in the petition that the petitioners' deployment/ deputation, as aforesaid, was, in terms of Government Order No. 140-JK(GAD) of 2020 dated 27th of January, 2020, Page 3 of 6 WP(C) No. 1199/2020 CM No. 3009/2020 extended by one year by the General Administration Department in accordance with the terms and conditions of the initial deployment order. Subsequently, vide communication dated 11th of August, 2020, the respondent-Managing Director has asked the Principal, Government Medical College, Baramulla (Kmr) to repatriate the deployed staff so that the Plants of the Jammu & Kashmir Cements Ltd., situated at Khrew, Pulwama and Samba, Jammu, will be operated again. It is this communication that the petitioners have called in question before this Court through the medium of the instant petition.
03. Mr S. A. Makroo, the learned counsel for the petitioners, submits that the impugned communication is the outcome of total non-application of mind on the part of the respondent-Managing Director as the respondent- Managing Director has no power and authority to seek repatriation of the petitioners and other deputed staff. It is submitted that in terms of the Jammu & Kashmir Civil Service Regulations, 1956, any deputation case(s), involving deputation of Government servants to a non-Governmental Organization, including Corporations, Companies and Autonomous Bodies, etc., within or outside the State or the Central Government or other Government Departments, are to be decided by the concerned Administrative Department in consultation with the General Administration Department. It is contended that the case of the petitioners for their deployment/ adjustment to various Government Departments was decided by the General Administration Department in consultation with the Administrative Department of the petitioners and that the respondent-Managing Director, thus, has no authority Page 4 of 6 WP(C) No. 1199/2020 CM No. 3009/2020 to issue the impugned communication for seeking repatriation of the petitioners.
04. Mr B. A. Dar, the learned Senior Additional Advocate General, submits that 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 substantive position therein at the instance of either of the Departments. The learned Senior Additional Advocate General contends that the petitioners have no vested right to continue for long on deputation or get absorbed in the department(s) to which they had gone on deputation.
05. Heard the learned counsel for the parties, perused the pleadings on record and considered the matter.
06. It is admitted position that the petitioners have been deputed to various Government departments by the competent authority upon their declaration as surplus staff of the Jammu and Kashmir Cements Limited. There is also no dispute with regard to the implication of Article 52(C) of Jammu and Kashmir Civil Service Regulations, 1956 SR to the cases of the employees who have been deputed to various non-Government Organizations, including Corporations, Companies, Autonomous Bodies, etc., but the Court has to only consider as to what is wrong with the decision of the Board of Directors of the Jammu & Kashmir Cements Limited, as taken in its 103rd Meeting held on 30th of July, 2020, under the Chairmanship of Advisor to Hon'ble the Lt. Government, deciding to revive/ operate both the plants of the Jammu & Kashmir Cements Limited, situated at Khrew, Pulwama, Kashmir and Samba, Jammu, which decision has resulted in the Managing Director of Page 5 of 6 WP(C) No. 1199/2020 CM No. 3009/2020 the respondent-Organization issuing the impugned communication thereby asking the Principal, Government Medical College, Baramulla, to repatriate all the 14 officers/ officials of the respondent-Organization who are deputed there. What is, thus, required to be seen in terms of the applicable laws governing the subject is as to whether the petitioners have any right to claim continuation in the Government departments where they have been deputed as 'Deputationists' or, to put in other words, whether the decision taken by the respondent-Jammu & Kashmir Cements Limited, a Jammu and Kashmir Government Undertaking, seeking repatriation of the petitioners to their parent department from the Departments where they have been deputed is illegal or unwarranted/ uncalled for.
07. The aforesaid moot question can be answered by the application of the provisions of Article 52 of the Jammu and Kashmir Civil Service Regulations, 1956, itself, which, in no uncertain terms, emphasize that the reversion of a 'Deputationist' can be at any stage, either by the lending or the borrowing department and that a 'Deputationist' has no vested right to remain on the cadre of the department where deputed. There, thus, is nothing wrong in repatriation of the petitioners on the cadre posts of their parent department which they were holding in substantive position.
08. Apart from the above provisions of the Jammu and Kashmir Civil Service Regulations, 1956, the law on the subject of repatriation/ reversion of 'Deputationists' is no more res integra.
Page 6 of 6WP(C) No. 1199/2020 CM No. 3009/2020
09. In 'Kunal Nanda v. Union of India & Anr.; AIR 2000 Supreme Court 2076, while dealing with the issue as involved herein this petition, Hon'ble the Supreme Court has observed as under:
"... 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 substantive 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."
10. A similar view was also taken by a Coordinate Bench of our own High Court, in the case of 'Dr. Mohammad Deen v. State of JK & Ors.: KLJ 2000 640', while following the law laid down by the Apex Court of the country in Kunal Nanda's case (supra).
11. The judgments referred to and relied upon by the learned counsel for the petitioners, being distinguishable and having been passed in cases involving different facts/ circumstances, are, thus, not applicable to the case of the present petitioners.
12. For the reasons stated above, I do not find any merit in the instant petition and, as a sequel thereto, same shall stand dismissed accordingly, alongwith the connected CM.
(Ali Mohammad Magrey) Judge SRINAGAR August 28th, 2020 "TAHIR"
i. Whether the Order is reportable? Yes/ No.
ii. Whether the Order is speaking? Yes/ No.
TAHIR MANZOOR BHAT
2020.08.28 13:13
I attest to the accuracy and
integrity of this document