SRINAGAR, Mar 8: The State High Court today said that a Government employee on the deputation if promoted in the parent department should be given the benefit of such promotions by upgrading his post accordingly or send him back to his parent department.
Justice M K Hanjura said not only this, if a deputationist satisfactorily renders the service and is considered fit for obtaining the increments and the promotions in the new department, he should be deemed to be fit for promotion in the parent department and entitled to promotion in that department, when an officer next below him there, was getting promotion.
Court said the benefits given to one Atul Sharma, to which he is entitled to in the parent department or owing to rendering the services satisfactorily in the new organization, and the promotion in the parent department or new/higher assignment in the new/borrowing organization, cannot be denied to him or disputed.
“Last but not least, the Government is the best judge to decide how to distribute and utilize the services of its employees”, court said.
On the concept of “deputation” the court said, “it is well understood in service law and has a recognized meaning. In simple words “deputation” means service outside the cadre or outside the parent department.”
Deputation, Court added, is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on 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 the recruitment rules.
Whether the transfer is outside the normal field of deployment of not, is to be decided by the authority who control the service or post from which the employee is transferred.
“The deputation and the transfer are not inconsistent and rather are complementary and supplementary to each other. The term transfer as used in the Rule 27 is synonymous with the term deputation as used in the J&K Civil Service Regulations”, court referred to the J&K Civil Services (CC & Appeal Rules) of 1956.
The said rule and some articles of J&K CSR, Court said, would show that in fact transfer and deputation are intended to meet and cover the same exigencies, though in different fields and under different circumstances.
“It is under Rule 27, a Government servant can be transferred only in any post borne on the cadre of such service or class in any part of the State of J&K, he can be transferred by deputation to other departments and institutions without there being any limitation but subject to the conditions specified under the J&K CSR”, read the judgment.
Court further said, that the deputation is a post of temporary duration outside home range and district and the person sent on deputation continues to look homeward for promotion or confirmation.
Court said that a government servant on the deputation can be reverted to his parent cadre at any time and such an employee on the deputation does not get any right to be absorbed on the deputation post.
“An employee, who is on the deputation, has no right to be absorbed in the service, where he is working on the deputation. However, in some cases it may depend upon the statutory rules to the contrary”, court said.
Keeping in view of the case set up by the parties and being contentious in nature and character, court said, that there cannot be any doubt whatsoever that a writ of or in the nature of mandamus can be issued only when existence of a legal right in the writ petitioner and a corresponding legal duty in the respondent State, are established.
“Where the administrative authority is conferred with a discretionary jurisdiction, the High Court, ordinarily, would not issue a writ of mandamus” adding with “The Article 14 of the Constitution of India permits reasonable classification based on qualities or characteristics of persons recruited and grouped together as against those who were left out. Of course, the qualities or the characteristics must have a reasonable relation to the object sought to be achieved”, Justice Hanjura recorded
In service matters, Court held, that the merit or the experience can be a proper basis for classification for the purposes of the promotional avenues in order to promote the efficiency in the administration. The very fact that the person has not gone through the process of the recruitment may itself, in certain cases, make a difference.
“If the educational qualifications are different, then also the doctrine may have no application. Even though the persons may do the same work, their quality of work may differ. Where the persons are selected by a Selection Committee on the basis of merit with due regard to the seniority, a higher pay scale, grade or responsibility granted, given or assigned to such persons, who are evaluated by the competent authority, cannot be challenged”.