' MUHAMMAD AZAM KHAN, C.J.--- The petitioner filed an appeal in the Service Tribunal against the order dated 9-7-2013, whereby he was sent back to the Electricity Department on his original post from the post of Director, State Disaster Management Authority (to be referred as SDMA hereinafter). He alleged in the appeal that he was serving in the Electricity Department. After the devastating earthquake of 2005 he was posted against different posts in Camp Management Authority from 7-5-2008 to 1340-2008. Thereafter, he was transferred in SDMA on 16-11-2010. On 9- 8-2011, his transfer/posting was converted into deputation and he was appointed as Director SDMA (B-19). Thereafter, his period of deputation was extended for three years w.e.f, 16-4-2012 vide notification dated 7-2-2013 but he has illegally been sent back to his parent Department through notification dated 9-7-2013. After necessary proceedings the Service Tribunal dismissed the appeal vide impugned judgment on 25-10-2013.
2. Syed Nazir Hussain Shah Kazmi, Advocate, while arguing on behalf of the petitioner, submitted that the order passed by the respondents for sending him back to his parent Department is against law and not maintainable. The learned counsel submitted that he was posted in SDMA on 7-5-2008. All the employees working in SDMA were merged in SDMA on 13-8-2010. Later on, on 16-11- 2010, he was transferred to SDMA. On 9-8-2011 his transfer was converted into deputation for two years. Later on, on 7-2-2013 his deputation period was extended for another three years. The Department has illegally sent him back before completion of two years' period. He referred to the deputation policy dined 19-12-1979. While relying upon clause (iv) of the policy, he submitted that the borrowing organizations may revert a civil servant on deputation with them to his parent Department even before the expiry of the deputation period, but before doing so, consultation with the parent Department will be necessary. The SDMA sent back the petitioner to his parent Department without consultation of his parent Department, therefore, it is a violation of clause (iv) of the Deputation Policy issued on 19-12-1979. The learned counsel submitted that in case of dispute in two Departments, the matter shall be referred to the Services and General Administration Department for settlement. He has permanently been merged in the services of SDMA vide order dated 13-8-2010. The learned counsel further argued that the parent Department has not appointed him against any post rather he has been made OSD, therefore, virtually he is without post.
3. While controverting the arguments of the counsel for the petitioner, Raja Ghazanfar Ali Khan, the learned Advocate-General, submitted that in the notification dated 26-11-2005 issued by the Government the civil servants serving in different Departments were ordered to be sent in the other Departments but the Electricity Department was not included in those Departments. The petitioner illegally managed to get his orders to remain in SDMA for nefarious designs. The learned counsel submitted that the order has been passed in an illegal manner. There is no mala fide. His post in the Electricity Department is of B-18. He is deriving benefits of B-19 in SDMA. Under the Deputation Policy, a civil servant can be sent back to his parent Department before completion of deputation period. No case for grant of leave to appeal has been made out.
4. I have heard the learned counsel for the parties and perused the record. The record reveals that the petitioner was serving as Deputy Director (Electricity Department). On 13-10-2005, he was appointed as Coordinator of the Crises Management Cell, Nisar Camp. Later on he was appointed as Manager, Camp Management Organization, Headquarter. The additional charge of Commissioner Camp Management was assigned to him on 7-5-2008 and on 16-11-2010 he was transferred as Deputy Director, SDMA. On 9.8.2011 he was sent on deputation as Director, SDMA in the light of prevailing deputation policy for a period of two years. On 7-2-2013, his deputation period was further extended for a period of three years. On 9-7-2013, he was sent back to his parent Department.
5. Without going into the controversy that how the petitioner got himself inducted in SDMA in the presence of Government notification dated 26-11-2005 which provides a list of Departments, the civil servants of which were to be assigned duties in SDMA, I will directly come to the deputation policy. Under the deputation policy dated 12-11-1979, the period of deputation of a civil servant shall not exceed a period of five years. Initially the period of deputation may be three years and after completion of three years period the Government servant is required to serve in his parent Department for a minimum period of two years. Thereafter he can again be sent on deputation.
Although, the Government has authority to extend the period of one year but before proceeding on deputation for second time it is mandatory that a civil servant shall serve in his parent Department for a minimum period of two years. Clause (X) of deputation policy issued on 12-11-1979 is reproduced as under:- "(x) The period of deputation should not exceed 5 years. On return to the parent department after completing a three years period of deputation, a Government servant shall be required to serve in his parent department for a minimum period of two years before he is allowed to proceed on deputation again: ' Provided that the Government may extend the said period up to one year in special circumstances: ' Provided further that after comleting period of deputation, a Government servant shall be required to serve in his/her parent department for a minimum period of two years before he/she is allowed to proceed on deputation again."
' A perusal of the above-reproduced clause reveals that the period of deputation cannot be extended without sending the civil servant back to his parent Department. The proposition came under consideration of this Court in a case titled Chairman BISE v. Raja Muhammad Ayaz Khan and 3 others (Civil Miscellaneous No,194/2012, decided on 30-8-2012), wherein it was observed by this Court as under:--- ' The Government has issued a Deputation Policy by the name of Azad Jammu and Kashmir Government Deputation Policy on 12-11-1979. Para 'x' the Policy relates to the period of deputation.
For proper appreciation para 'x' of the Deputation Policy is reproduced as under:---
(x) The period of deputation should not exceed [5] years. On return to the parent department after completing a three years period of deputation, a Government servant shall be required to serve in his parent department for a minimum period of two years before he is allowed to proceed on deputation again: ' Provided that the Government may extend the said period up to one year in special circumstances; ' Provided further that after completing period of deputation, a Government servant shall be required to serve in his/her parent department for a minimum period of two years before he/she is allowed to proceed on deputation again.'
5. A perusal of the above-reproduced para shows that a maximum period of deputation can be up to five years and any civil servant can be sent to another department on deputation for a period of three years and after completing the period of three years, the incumbent has to report back in the parent department and serve in the department for a period of two years, without serving for two years in the patent department no order for further deputation can be passed. Since the para categorically lays down that maximum period for deputation should not exceed five years, a further period can only be fixed up to two years.
' It appears that initially the order dated 7-10-2009 whereby the respondent was appointed as Secretary AJ&K BISE for a further period of three years, is against para A' of the Deputation Policy, referred to above, after expiry of notification dated 20-7-2006, it was enjoined upon the respondent to report back to the department but it appears that after the expiry of said period, he failed to report back in the department for two years which is mandatory for a new, which should not be more than two years. The respondent filed the writ petition on 21-7-2011 before expiry of three years' period. After the expiry of three years' period on 19-10-2009, the writ petition was not maintainable and undertaking furnished by the counsel for the Board in respect of the some notification, which was not in existence at the time of filing writ petition i.e, 21-7-2011, has no legal value. The same is against the Deputation Policy, it cannot be considered as a valid undertaking."
6. In the light of the above findings recorded by this Court there appears no illegality in the order dated 9-7-2013.
7. I have also considered the argument of the counsel for the petitioner that the order of sending the petitioner back to his parent Department is mala fide. He has relied upon a summary sent by the Minister Civil Defence to the Prime Minister for sending the petitioner back to his parent Department. A perusal of the summary which finds place at page 38 of the paper-book, reveals that the said officer is creating hardships for the Minister in the Department and is enticing the officers of the Department against the Minister. On the basis of such conduct the Minister requested the Prime Minister for sending the petitioner back to his parent Department. If the officer is sent on deputation to another Department and he creates hardships in smooth functioning of that Department, then it is the prerogative of the Department to sent the officer back to his parent Department before completion of the period as laid down in clause (iv) of the deputation policy dated 19-12-1979. The Department was justified in sending the petitioner back to his parent Department.
8. I have also considered the argument of the counsel for the petitioner that no consultation was made with the parent Department. The purpose of this consultation is that the officer who is being sent back to his parent Department, shall not create hardships and the Department shall adjust him in an appropriate manner. The notification for sending the petitioner back to his parent Department was issued by the Services and General Administration Department on 9-7-2013 and in compliance of said order the petitioner has reported back to his parent Department on 29-10- 2013. A civil servant cannot claim that he shall remain posted on deputation on a particular post without consent of the borrowing Department.
9. I have also considered the argument of the counsel for the petitioner that the petitioner has been made OSD and he is without post. It may be observed that under section 9 of the AJ&K Civil Servants Act, 1976, a civil servant is obliged to serve under the Government anywhere outside or within Azad Jammu and Kashmir but a civil servant cannot be posted without any post. The Department is directed to adjust the petitioner against the post lie is entitled to.
10. The result of the above discussion is that finding no force in this petition for leave to appeal, it is hereby dismissed with no order as to the costs.
' Since the petition for leave to appeal has been dismissed, the application for interim relief is also dismissed.