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Service Law - Posting (or transfer) beyond the cadre (or parent department) - Appellants selected and appointed as 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 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 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 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 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 to their parent department, i.e., the Directorate of Health Services, accordingly affirmed.Service Law - Posting (or transfer) beyond the cadre (or parent department) -Consent of employee - Relevance and determination of - Held: Broadly, an employee can only be 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 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 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 Court on merits - Proposition upheld as 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 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 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 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 Medicial College, Jammu, (and/or at hospitals associated therewith), was not by way of deputation, and accordingly, there was no question of their reversion to their parent department. The Single Judge also relied upon the Government Order dated 17.7.1997 in order to conclude, that the posting of the appellants at the Government Medical College, Jammu (and/or at hospitals associated therewith) was not beyond their cadre. Referring to paragraph 5(f) thereof, the Single Judge held, that the posting of the appellants was within the scope of the conditions of their employment. The decision was however set aside by the Division Bench and therefore the present appeals. |
