Jammu & Kashmir High Court Quashes Order Repatriating Employee To Parent Department After 21 Yrs

Shedding light on the law related to the timeframe for repatriating an employee to his parent department after his deputation, the Jammu & Kashmir High Court has ruled that an employee, who has been permanently absorbed into a borrowing department/organization and whose lien has been terminated in their parent organization cannot be repatriated to their parent organization.

“Once the petitioner who has been sent on deputation is absorbed in the borrowing department/organization and his lien in the parent department stood terminated, his repatriation, subsequently, after 21 years by virtue of order impugned is dehors the service rules and is illegal”, observed Justice Wasim Sadiq Nargal.

The ruling came in response to two writ petitions, where the petitioner sought quashing of the order issued by the respondents whereby the petitioner had been repatriated back to State Forest Corporation

The petitioner, who was initially appointed as a Helper in J&K State Forest Corporation in 1996, was later sent on deputation to the office of the then Minister of Food Supplies and Transport. The petitioner subsequently started working as a Junior Assistant in the office of the Chairman, Jammu and Kashmir State Road Transport Corporation (JKSRTC). The petitioner sought permanent absorption in JKSRTC, which was granted after obtaining a "No Objection Certificate" from the State Forest Corporation. Over the years, the petitioner earned various promotions in JKSRTC.

Subsequently, the government issued an order of repatriation to the State Forest Corporation after a period of 21 years from the petitioner's deputation and 8 years from his permanent absorption.

The petitioner challenged this order, contending that he had been permanently absorbed in JKSRTC, and, therefore, the repatriation was illegal.

The respondents argued that the petitioner was never formally absorbed, and the approval given by the Chairman, JKSRTC, was merely a consent and not an official order. The promotions earned by the petitioner were unwarranted and due to political influence, the respondents countered.

After considering the contentions Justice Nargal highlighted that the petitioner's permanent absorption was approved by the Chairman, JKSRTC, after obtaining a NOC from the State Forest Corporation. The Court also noted that the petitioner continued to work in JKSRTC for more than 21 years, and no objection was ever raised by the respondents during that period.

Deliberating on the timeframe of deputation an employee can undergo the bench observed that under Article 52-C of the J&K Civil Services Regulations, Volume-I, deputation cannot exceed three years and at the most can be further extended for one year on the request of the borrowing agency. So, in any case, the total period of deputation cannot exceed the period of 4 years at a time.

“Admittedly, significant aspect of the matter in the instant case is that the State Road Transport Corporation which was the borrowing department had refused to repatriate the petitioner to his parent organization i.e. State Forest Corporation even after the completion of period of deputation and he was not released and instead,the JKSRTC went on utilizing his services, uninterruptedly and without any hindrance….which leads to the irresistible conclusion that the petitioner has since been absorbed in SRTC and the lien of the petitioner in State Forest Corporation stood terminated”, the bench explained.

Observing that the petitioner was never repatriated to his parent organization even after the expiry of initial period of deputation or the maximum period of deputation of four years as envisaged under 52-C of Civil Services Regulations the bench pointed that instead, he had been allowed to continue in JKSRTC for 21 years till passing of order of repatriation and subsequently, the sudden repatriation by virtue of order impugned after such a long period without any objection from the parent department and absorption by the competent authority in 2010, the order impugned cannot sustain the test of law.

Furthermore, the Court emphasized that once an employee is permanently absorbed in a borrowing organization and their lien in the parent organization is terminated, their subsequent repatriation is illegal and dehors the service rules.

“As per Rule 37-A of Civil Services Regulations, it is clear that Government servant shall acquire a lien on a post on his substantive appointment to a permanent post. Since the consent was given by the State Forest Corporation of the permanent absorption of the petitioner and once the lien of an employee on a particular post comes to an end, it cannot be revived”, Justice Nargal maintained.

In light of these observations, the Court directed the respondents to treat the petitioner as a permanent employee of JKSRTC from the date of their absorption and grant all consequential benefits, including seniority based on various promotions earned over the years. The Court also ordered the release of back wages for the period from November 2018 to November 2022 when the petitioner was not allowed to work despite court orders.

Case Title: Ravinder Kumar Vs State of J&K

Citation: 2023 LiveLaw (JKL) 201

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