Raja Saeed Akram Khan, CJ. The captioned appeal, by leave, arises out of the judgment passed by the High Court on 2.3.2023, whereby the writ petition filed by the appellant, herein, has been dismissed.
2. The facts of the case, shortly stated, are that the appellant, herein, filed a writ petition before the learned High Court, stating therein that he was appointed as the Planning Officer (B-17), in the Planning and Development Department, Azad Government of the State of Jammu and Kashmir, on the recommendations of the Public Service Commission, vide notification dated '21.3.2017. It was alleged that the appellant was posted as Deputy Director (E&M) (B-18), on deputation for a period of three years, through notification dated 23.12.2021. In compliance of the said notification, the appellant assumed the charge on 24.12.2021. It was further alleged that prior to the completion of prescribed period, the respondents initiated a proposal for repatriation of the appellant to his parent Department. The appellant in his writ petition prayed for a direction to the respondents to refrain from cancelling the notification dated 23.12.2021, before completion of the deputation period. The learned High Court, after necessary proceedings, through the impugned judgment dated 2.3.2023, dismissed the writ petition, hence, this appeal by leave.
3. Mr. Asghar Ali Malik, the learned advocate for the appellant, after narration of necessary facts, submitted that the impugned judgment passed by the High Court is based on misconception of law and the record, which is liable to be vacated. The learned counsel next submitted that the proposition involved in the matter has not been considered by the learned High Court, keeping in view the law governing the subject-matter. Moreover, the case-law referred to by the learned High Court while handing down the impugned judgment, is not applicable to the case in hand. The learned counsel further submitted that there was misconception on the part of the learned High Court that the appellant is being repatriated to his parent Department after consultation between the borrowing Department and the parent Department, whereas no such consultation was ever made and the whole move has been initiated to accommodate the private respondent for his appointing ad hoc basis, on political pressure. In support of his arguments, the learned counsel referred to and relied upon the case reported as Abdul Haq Khan vs. Azad Government and others [2016 SCR 51].
4. Conversely, Sardar M.R. Khan and Mrs. Shahnaz Gilani, the learned advocate for the respondents, defended the impugned judgment while controverting the arguments of the learned counsel for the appellant., The learned counsel jointly submitted that the impugned judgment has been passed on the strength of law laid down by this Court, which is perfectly legal and not open for interference. The learned counsel further submitted that under law a deputationist cannot claim stay on deputation for an indefinite period without consent of the borrowing Department and the parent Department can withdraw the order any time even before the completion of the period mentioned therein. The proposition has correctly been considered and legally resolved by the learned High Court, add the learned counsel. Sardar M. R. Khan, advocate, in support of his arguments, referred to and relied upon the case reported as Muhammad Kamran dress vs. Sardar Ahmed and 4 others [2014 SCR 466].
5. We have heard the learned counsel for the parties and perused the record made available with utmost care and caution.
6. The bone of contention involved in the case in hand is that the appellant, herein, was deputed as Deputy Director (E&M) (B-18) with the Mirpur Development Authority, for a period of three years, through notification dated 23.12.2021. Meanwhile, a proposal has been initiated for repatriation of the appellant to his parent Department and appointment of private respondent, herein, on ad hoc basis. For better appreciation, the referred proposal is reproduced as under: After taking into consideration the above-reproduced proposal, we have failed to find from the record any consultation of the parent Department with the borrowing Department, as is prescribed by rule (iv) of the Deputation Policy dated 19th December, 1979, which provides that the borrowing organization may revert a civil servant on deputation to his parent department even before the expiry of deputation period with prior consultation of the parent department. There is no cavil with the proposition that a civil servant cannot claim to remain posted on deputation against a particular post without consent of the borrowing Department, however, in the case in hand, the position is quite otherwise. A proposal has been initiated for ad hoc appointment of Respondent No. 7, herein, by reverting the appellant to his parent Department by itself, while ignoring the procedure for repatriation of a civil servant on deputation, i.e., prior consultation of the borrowing Department with the parent Department. Thus, we are justified in holding that the borrowing Department cannot revert a civil servant on deputation to his parent Department without prior consultation, that too, for extending undue benefit to someone for political consideration. In this regard, the learned counsel for the appellant has rightly referred to the case reported as Abdul Haq Khan vs. Azad Government and others [2016 SCR 51], wherein, it has been observed as under: "5. We have heard the learned counsel for the parties and perused the record. There is no dispute between the parties that the appellant was serving as Principal, Government Boys Post Graduate College Bagh, wherefrom he was transferred and appointed as Registrar, Women University Bagh on deputation vide order dated 22nd May, 2014 in the light of the Deputation Policy, 1979. Under Rule
(x) of the Deputation Policy dated 12th November, 1979, the normal period of deputation is three years and under Rule (iv) of the Deputation Policy dated 19th December, 1979, the borrowing organization may revert a civil servant on deputation to his parent department even before the expiry of deputation period with prior consultation of the parent department. For brevity, Rule (x) of the Deputation Policy dated 12th November, 1979 and Rule (iv) of the Deputation Policy dated 19th December, 1979, are reproduced as under: "(x) The period of deputation should not exceed five 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."
Rule (v) of the Deputation Policy dated 19th December, 1979.
(iv) 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. In case of disagreement in this regard the matter would be referred to the Services and General Administration Department for settlement."
The perusal of the above referred rules makes it abundantly clear that initially the period of deputation shall be three years which may be extended up to 5 years, provided the civil servant served in the parent department for a minimum period of 2 years. The borrowing department may revert the deputationist with prior consultation of the parent department. There is no concept of calling back a deputationist by the parent department."
It was further observed in the referred report, as under: ".... There is no provision in the deputation policy that the parent department may repatriate the deputationist. The Minister, alone is not the parent department. The proposal initiated by the Minister Education (Colleges) dated 13th April, 2015, is against the provisions of the deputation policy and is not maintainable. The High Court failed to consider the deputation policy in its true perspective. The judgment of the High Court is not maintainable."
7. Even otherwise it is not denied by the other side that after sending the appellant on deputation, the post has been filled in. Moreover, during the course of arguments, Sardar M, R. Khan, the learned (counsel for the private respondent was confronted as to what is the status of private respondent?
The learned counsel was unable to explain the situation, hence, the stance taken of the official respondents stands negated and it amounts to make the appellant, herein, as rolling stone. Such practice cannot be allowed. The argument of the learned counsel for the appellant is weighty in nature and we are justified to hold that the learned High Court has not resolved the controversy in consonance with the record and the law laid down by this Court.
In view of the above, the appeal stands accepted. The impugned judgment passed the High Court on 2.3.2023 is set aside, resultantly the writ petition filed by the appellant is accepted and the proposal initiated by the Minister In-charge Electricity is hereby set aside. There will be no order as to costs.