Holding

Posting of Assistant Surgeons to a post outside their substantive Directorate of Health Services is beyond their cadre and therefore by way of deputation, necessitating their reversion to the Directorate of Health Services.

Summary

The appellants were selected and appointed as Assistant Surgeons in the Directorate of Health Services, Jammu, but were posted as Senior/Junior House Officers at the Government Medical College, Jammu, which falls under the Directorate of Medical Education. The High Court initially set aside the reversion order, holding that prior consent was required for deputation, but the Division Bench reversed that decision. The Supreme Court held that the posts of Assistant Surgeons belong only to the Health Services cadre, and posting them to the Medical College was beyond their parent cadre, thus constituting deputation. The Court ruled that the lack of prior consent was not fatal, as consent can be implied from the employees' conduct. Consequently, the appellants were ordered to be repatriated to the Directorate of Health Services, with a transitional allowance to remain at their current posting until 31 March 2013. The appeal was dismissed and the reversion affirmed.

Issues considered

The nature of the appointment of the appellants: whether it was substantive in the Directorate of Health Services or in the Directorate of Medical Education.
Whether posting the appellants to the Government Medical College constituted deputation beyond their parent cadre.
Whether prior express consent of the employees is mandatory for such deputation.
Whether the reversion order dated 7 January 1998 was valid and enforceable.

Subjects

service lawpostingdeputationconsentreversioncadrehealth servicesmedical educationArticle 14Article 141

Judgment

[2013] 3 S.C.R. 620

A KAVI RAJ & OTHERS
v.
STATE OF J&K & ORS.
(Civil Appeal No. 162 of 2013)

JANUARY 9, 2013
B
[D.K. JAIN AND JAGDISH SINGH KHEHAR, JJ.]

Service Law - Posting (or transfer) beyond the cadre (or
parent department) - Appellants selected and appointed as
C 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
D 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
E 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
F 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
G 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

H 620
KAVI RAJ v. STATE OF J&K 621

to their parent department, i.e., the Directorate of Health A
Services, accordingly affirmed.

Service Law - Po~ting (or transfer) beyond the cadre (or
parent department) -Consent of employee - Relevance and
determination of - Held: Broadly, an employee can only be
8
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 C
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 D
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 Cowt on merits - Proposition upheld as E
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 F
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 G
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 H
622 SUPREME COURT REPORTS [2013] 3 S.C.R.

A 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 Medici'il College, Jammu, (and/or at
hospitals associated therewith), was not by way of
deputation, and accordingly, there was no question of
D 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
E 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.
F
Disposing of the appeals, the Court

HELD: 1. It cannot be said that the appointment of
the appellants was substantively made to a cadre under
the Director of Medical Education. The appointment of the
G appellants in the Directorate of Medical Education, was
clearly by way of deputation. Their posting at the
Government Medical College Jammu (and/or at the
hospitals associated therewith) was most certainly
beyond their parent cadre, and therefore, by way of
H deputation. [Para 18) [640-G-H; 641-A]
KAVI RAJ v. STATE OF J&K 623

2. Even though it is clear, that the posts of Assistant A
Surgeons were created by the Health and Medical
Education Department of the State Government, it is also
clear that the aforesaid department is comprised of two
independent Directorates, namely, the Directorate of
Health Services and the Directorate of Medical Education. B
The employees of each of the two Directorates are
governed by a separate set of rules. The rules governing
the conditions of service of gazetted employees of the
Directorate of Medical Education, do not have the posts
of Assistant Surgeons. The cadre of Assistant Surgeons c
is only found in the rules of recruitment applicable to
gazettled employees of the Directorate of Health Service.
Secondly, the assertion made by the respondents, that
there were no posts of Assistant Surgeon when the
appellants were selected and posted at the Government 0
Medical College, Jammu (and/or at the hospitals
associated therewith), in the Directorate of Medical
Education, has not been disputed by the appellants. In
the absence of any posts of Assistant Surgeon in the
Directorate of Medical Education, it is impossible to infer E
that the appellants (who were selected against the posts
of Assistant Surgeons) could have belonged to the
Directorate of Medical Education. Furthermore,
consequent upon the selection of the appellants by the
Public Service Commission they were issued
appointment orders dated 12.8.1997. A perusal of the F
same reveals, that such of the candidates who had been
selected as Assistant Surgeons, and belonged to Jammu
region, were to report to the Director, Health Services,
Jammu. Whereas, those belonging to the Kashmir region,
were to report to the Director, Health Services, Kashmir. G
The Directors of Health Services, Jammu as well as
Kashmir, are admittedly incharge of the administrative
chain of command, in the respective Directorates of
Health Services. This by itself demonstrates, that the
H
624 SUPREME COURT REPORTS [2013] 3 S.C.R.

A appointment of the appellants was to the Directorate of
Health Services, and not in the Directorate of Medical
Education. Fourthly, the order issued by the Principal,
Government Medical College, Jammu dated 30.12.1997
reveals, that the appellants were being posted as Senior/
B Junior House Officers. The posts of Senior/Junior House
Officer are distinct and separate from the posts of
Assistant Surgeons. The posts of Senior/Junior House
Officers, are included in the cadre of posts in the
Directorate of Medical Education. The appellants posting
c as Senior/Junior House Officers also exhibits, that their
appointment was not within the Directorate of Health
Services, but was against posts outside the Directorate
of Health Services. Furthermore, even the impugned
order dated 7.1.1998 noted, that the appellants were
being temporarily deployed " ... from the Directorate of
0
Health Services, Jammu ... " to meet the exigency of
shortage of doctors at the Government Medical College,
Jammu. Sixthly, the endorsement at serial no.2 of the
order dated 7.1.1998 (extracted in paragraph 5 above)
E reveals, that a request was made by the by the Director,
Health Services, Jammu, that the appellants be reverted
to the Directorate of Health Services, to meet the needs
of the said service. Seventhly, the order of the
Department of Health and Medical Education dated
20.4.1998 reveals, that the posting of the appellants at the
F Government Medical College, Jammu (and/or at hospitals
associated therewith), was made by the two Directors of
Health Services in violation of Government Orders,
thereby, defeating the very purpose for which the
appellants were selected and appointed. Lastly, is the
G unrefuted assertion by the respondents, that the salary
of the appellants continued to be drawn from the
Directorate of Health Services, for the entire duration
during which the appellants remained posted at the
Government Medical College, Jammu (and/or at the
H hospitals associated therewith). Had the appellants been
KAVI RAJ v. ~TATE OF J&K 625

legitimately working within their own cadre, their salary A
would undoubtedly have been drawn from the funds of
the Directorate of Medical Education. Based on the
disbursement of salary to the appellants from· the funds
of Directorate of Health Services, the appellants must be
deemed to be substantive employees of the cadre of B
Assistant Surgeons of the Directorate of Health Services.
There is therefore no room for any doubt, that the
appellants were substantively appointed to the
Directorate of Health Services, and not in the Directorate
of Medical Education. [Para 19] [641-B-H; 642-A-H; 643- c
A-CJ
3. The mere fact, that the appellants consent was not
sought before their posting at the Government Medical
College, Jammu (and/or at the hospitals associated
therewith) would not have any determinative effect on the D
present controversy. Broadly, an employee can only be
posted (or transferred) to a post against which he is
selected. This would ensure his stationing, within the
cadre of posts, under his principal employer. His posting
may, however, be regulated differently, by statutory rules, E
governing his conditions of service. In the absence of any·
such rules, an employee cannot be posted (or
transferred) beyond the cadre to which he is selected,
without his willingness/readiness. Therefore, an
employee's posting (or transfer), "to a department other F
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. It can be implied. It need not be in the
nature of a written consent. Consent of posting (or G
transfer) beyond the CC!dre (or parent department) is
inferable from the conduct of the employee, who does not
protest or contest such posting/transfer. In the present
controversy, the appellants were issued posting orders
by the Principal, Government Medical College, Jammu, H
626 SUPREME COURT REPORTS [2013) 3 S.C.R.

A dated 30.12.1997. They accepted the same, and assumed
charge as Senior/Junior House Officers at the
Government Medical College, Jammu, despite their
selection and appointment as Assistant Surgeons. Even
now, they wish to continue to serve against posts, in the
B Directorate of Medical Education. There cannot be any
doubt, about their willingness/readiness to serve with the
borrowing Directorate. The consent of the appellants is
tacit and unquestionable. [Para 20) [643-E-H; 644-A-C]

4. In the instant case, consequent upon the decision
C by the Single Judge, whereby, the impugned order of
reversion/ repatriation of the appellants to the Directorate
of Health Services dated 7.1.1998 was set aside, two
Letters Patent Appeals, were filed by the respondents
herein. In the first of the Letters Patent Appeals, 18
D Assistant Surgeons were impleaded as respondents,
whereas, in the second Letters Patent Appeal, 24
Assistant Surgeons were impleaded as respondents. The
first Letters Patent Appeal was dismissed in default and
was never res~red. As such, a technical plea was
E advanced by the appellants, that the order passed by the
Single Judge relating to 18 Assistant Surgeons had
attained finality and that the binding effect in connection
with the 18 Assistant Surgeons, should be extended to
the remaining 24 Assistant Surgeons. However, insofar
F as the matter pertaining to 24 Assistant Surgeons is
concerned, the decision rendered by the Division Bench
of the High Court on 24-2-2006 has been affirmed by this
Court on merits. The decision pertaining to the 24
Assistant Surgeons (whose claim was decided by the
G impugned order dated 24.2.2006) constitutes a
declaration of law, and is binding under Articles 141 of
the Constitution of India. Such being the stature of the
determination rendered in respect of 24 Assistant
Surgeons (whose claim was adjudicated by the Letters
H Patent Bench of High Court), thf! same should, if
KAVI RAJ v. STATE OF J&K 627

permissible, also be extended to the other 18 Assistant A
Surgeons. Ordinarily, in a situation when a judgment
attains finality between rival parties, it is not legitimate to
reopen the issue, even for correcting an error, which
emerges from a subsequent adjudication. The factual
position in the present controversy is, however, slightly B
different. The Assistant Surgeons against whom the
Letters Patent Appeal was dismissed in default, are also
before this Court and they have also been afforded an
opportunity of hearing. Since all of them are before this
Court, and have been represented through counsel, c
undoubtedly, the determination on merits in the instant
controversy should be extended to them, as well.· Since
such a choice can be made in the present case, the
proposition which has been upheld as legal, should be
extended to the others similarly situated. It would be
0
unthinkable to implement an order, which has been set
aside after due notice and hearing. [Paras 22, 24, 25] [644·
F-H; 645-A-C; 646-B-D, E-F, G-H; 647-A-B]
5. The reversion/repatriation of the appellants to their
parent department, i.e., the Directorate of Health Services, E
Jammu, is affirmed. [Para 26] [647 -BJ
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 162
of 2013.

From the Judgment & Order dated 24.02.2006 of the High F.
Court of Jammu & Kashmir at Jammu in LP.A. (SW) No. 88
of 2000.
WITH
C.A. No. 163 of 2013 G

C.A. Sundaram, Nar Hari Singh, Vikas Mehta, Madhavi
Choudhary, Zafar lnayat, Rohini Musa for the Appellant.

Sunil Fernandes, Astha Sharma, Vernika Tomar, lnsha Mir
for~eR~pon~nt. H
628 SUPREME COURT REPORTS [2013] 3 S.C.R.

A The Judgment of the Court was delivered by

JAGDISH SINGH KHEHAR, J. 1. Leave granted.

2. Consequent upon the creation of posts of Assistant
Surgeons, the Health and Medical Education Department of the
B State of Jammu & Kashmir, addressed a requisition to the
Jammu & Kashmir Public Service Commission (hereinafter
referred to as "the Public Service Commission") to recruit 1255
posts of Assistant Surgeons. Based on the aforesaid
requisition, the Public Service Commission issued a
C notification dated 31.12.1996 for inviting applications for 1255
posts of Assistant Surgeons in the pay-scale of Rs.2200-4000.
Based on the aforesaid notification, an advertisement dated
2.1.1997 appeared in newspapers inviting applications for
1255 posts of Assistant Surgeons, belonging to the Health and
D Medical Education Department.

3. In June, 1997 the Public Service Commission after
completing the process of selection, prepared a select list of
successful candidates. The names of the. appellants herein,
E appeared in the list of successful candidates. Consequent upon
the selection of the appellants as Assistant Surgeons by the
Public Service Commission, the Department of Health and
Medical Education, issued an order dated 12.8.1997
appointing the appellants against the advertised posts of
Assistant Surgeons. An extract of the aforesaid order, relevant
F to the present controversy, is being reproduced hereunder:

"The candidates belonging to Jammu region shall report
to Director Health Services. Jammu and those belonging
to Kashmir region to Director Health Services Kashmir for
G further postings. As regards migrant candidates they shall
report to Director, Health Services Jammu for further
orders."

(emphasis is ours)
H
KAVI RAJ v. STATE OF J&K 629
[JAGDISH SINGH KHEHAR, J.]
It is not a matter of dispute, that in furtherance of the order of A
appointment dated 12 8.1997, all the appellants reported to the
Director, Health Services, Jammu as they all belonged to the
Jammu region. The next step, as is evident from the extracted
portion of the appointment order, was the appellants' actual
posting. B

4. A Government Order pertaining to the posting of
Assistant Surgeons, was issued by the Department of Health
and Medical Education on 17.7.1997. Paragraph 5 of the
aforesaid Government Order is relevant, and is accordingly C
being extracted hereunder:

"5. The Doctors appointed against General category shall
be posted in various Hospitals in the following orders:

(a) Allopathic Dispensaries D

(b) Primary Health Centres and Police Hospitals; ,

(c) Community Health Centres;

(d) Sub-District Hospitals; E
(e) District Hospitals;

(f) Hospitals of Jammu and Srinagar including
Evening/Urban Clinic and after that in Medical
Education and other organizations; F

(g) Surgeons shall be posted only in such Hospitals
where Operation Theatres are available and the
Hospitals are housed in Govt. Buildings.·

Sub-paragraph (f) of paragraph 5 extracted hereinabove leaves G
no room for any doubt, that Assistant Surgeons could be
posted in Hospitals of Jammu and Srinagar including evening/
urban clinics, • .... and after that. ..", in medical education and
other organizations. In consonance with the Government Order
dated 17.7.1997, the Principal, Government Medical College, H
630 SUPREME COURT REPORTS [2013] 3 S.C.R.

A 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).

5. Despite posting of the appellants at the Government
8
Medical College, Jammu (and/or at hospitals associated
therewith), on 30.12.1997; within a week thereof, by an order
dated 7.1.1998, the Principal, Government Medical College,
Jammu, reverted the appellants to their parent Department,
namely, the Directorate of Health Service, Jammu. The instant
C order dated 7 .1.1978 was first assailed by the appellants
before the High Court of Jammu and Kashmir (hereinafter
referred to as "the High Court"). It is now the subject matter of
challenge by them, before this Court. Since the present
controversy relates to the order dated 7.1.1998, whereby, the
D appellants were ordered to be reverted/repatriated to their
parent department, the same is being extracted hereunder:

"Consequent to the appointment of house surgeons in the
various specialities in this institution, the Assistant
E Surgeons. who were temporarily deployed from the
Directorate of Health Services. Jammu to meet the
exigency of shortage of doctors in Govt. Medical College.
Jammu. are hereby reverted to their parent department.
The doctors listed in Annexure-1 attached hereto stand
F relieved today the 7th January, 1998 forenoon with the
direction to report for duty to the Director Health Services,
Jammu."

(emphasis is ours)

G A perusal of the order extracted hereinabove discloses the
basis of the alleged repatriation of the appellants to the
Directorate of Health Services, Jammu. Firstly, the appellants'
parent department is described as, the Directorate of Health
Services. Secondly, the appellants posting as Senior/Junior
H House Officers, was disclosed. Namely, to meet the exigency
KAVI RAJ v. STATE OF J&K 631
[JAGDISH SINGH KHEHAR, J.]
of shortage of doctors at the Government Medical College, A
Jammu. And thirdly, that the aforesaid posting was depicted
as a temporary deployment from the Directorate of Health
Services, Jammu. Besides the main order dated 7.1.1998
extracted above, it is also relevant to reproduce the
endorsement made at serial no.2 of the aforesaid order, to the B
Director, Health Services, Jammu. The same is therefore being
extracted below:

"2. Director Health Services, Jammu. This is in reference
to his verbal request for reversion of the Assistant C
Surgeons to the directorate to meet immediate needs in
the health services."

(emphasis is ours)

A perusal of the aforesaid endorsement discloses the fourth D
reason for the alleged repatriation of the appellants to the
Directorate of Health Services, Jammu, namely, to meet the
immediate needs of the Department of Health Services.

6. So as to assail the order dated 7 .1.1998 whereby the
appellants were repatriated to the Directorate of Health E
Services, Jammu, three writ petitions came to be filed before
the High Court. The details of the writ petitions are being
narrated hereinbelow:

(i) Dr.Shazia Hamid vs. State of Jammu & Kashmir F
(SWP no.35/98)

(ii) Dr.Rajni Malhotra vs. State of Jammu & Kashmir
(SWP no.36/98)

(iii) Dr.Sarita vs. State of Jammu & Kashmir (SWP G
no.37/98)

Having entertained the aforesaid writ petitions, the High Court
issued the following interim directions, on 8.1.1998:

"The grievance of the petitioners is that they have been H
632 SUPREME COURT REPORTS [2013] 3 S.C.R.

A deployed to the Government Medical College Jammu by
the Director Health Services, Jammu and the Principal
Medical College, Jammu has further posted them in
Medical College, Jammu. They are being relieved by the
person of the Principal Government Medical College
B Jammu who is having no authority to transfer them and
direct them to report back to Director Health Services,
Jam mu.

Issue notice to the respondents, issue notice in the CMP
also.
c
In the meanwhile, respondents are directed not to disturb
the status of the petitioners till objections are filed and
considered by this Court."

D We are informed, that in compliance with the said interim
directions, all the appellants continued to discharge their duties
at the Government Medical College, Jammu (and/or at
hospitals associated therewith). And that eversince, upto the
present juncture, despite the impugned order (passed by the
E Letters Patent Bench, of the High Court) having been passed
against them, the appellants posting has remained unaltered.
Even now, they are discharging their duties at the Government
Medical College, Jammu, (and/or the hospitals associated
therewith).

F 7. It is also relevant to mention herein, that the main ground
on which the appellants had assailed the impugned order dated
7.1.1998 before the High Court was, that the same was not
issued by the competent authority. In this behalf, it was the case
of the appellants, that the Secretary, Department of Health and
G Medical Education being the appointing authority of the
appellants; the Principal Medical College, Jammu, had no
jurisdiction to issue the order dated 7.1.1998. It seems to us,
that in order to get over the main ground of attack raised at the
behest of the appellants, the Health, Family Welfare and
H Medical Education Department, issued another order on
KAVI RAJ v. STATE OF J&K 633
[JAGDISH SINGH KHEHAR, J.]
20.4.1998, with the same effect and consequences. The A
aforesaid order is also being extracted hereunder:

"Whereas for public health care 1230 posts of Assistant
Surgeons were created vide Government Order No.129-
HD of 1996 dated 4.12.96 under special recruitment drive
8
programme and referred to Public Service Commission for
selection of suitable candidates.

Whereas public service commission vide their letter
No.PSC/1/Dr/AS/5-96 dated 10.6.97 recommended a
panel of 1C37 candidates for appointment of Assistant C
Surgeons.

Whereas the Health, FW and Medical Education Deptt
issued appointment orders in favour of 1097 Assistant
Surgeons and directed the two directors of Health Services 0
to post these doctors in rural areas and other places in
pursuance of guidelines as embodied in Government
Order no.635 HME of 1997 dated 17.7.97.

Whereas the two directors of Health Services in violation
of standing Government Orders deputed/attached/ E
adjusted/detailed to work a good number of new
appointments in various health institutions and offices thus
defeating the very object of special recruitment drive.

Now therefore in the public interest and health care the F
said Assistant Surgeons are hereby detached with
immediate effect from the places where they have been
deputed/attached/adjusted or detailed to work as the case
may be and shall report to respective directors of Health
Services who shall post them strictly in accordance with G
the guidelines as detailed in Government Order no.635
HME of 1997 dated 17.7.97 and report compliance to the
Administrative Department within fortnight positively.·

(emphasis is ours)
H
634 SUPREME COURT REPORTS [2013] 3 S.C.R.

A The order extracted hereinabove narrates, the exact sequence
of events leading to the eventual posting of the appellants,
consequent upon their selection as Assistant Surgeons. It also
needs to be emphasized, that the order dated 20.4.1998
highlights the fact, that the original posting of the appellants at
B the Government Medical College, Jammu (and/or at hospitals
associated therewith), had been made by the Director of Health
Services, in violation of Government Orders, and further that,
their repatriation to the Directorate of Health Services, Jammu
was in public interest.
c 8. A learned Single Judge of the High Court on 28.5.1998,
allowed all the three writ petitions (wherein the order dated
7.1.1998 had been assailed). According to the understanding
of the learned Single Judge, the concerned employees
consent, prior to their appointment on deputation was
D mandatory. Absence of consent, according to the learned
Single Judge, established that their appointment at the
Government Medical College, Jammu, (and/or at hospitals
associated therewith), was not by way of deputation. Since in
the present case, the consent of the appellants had admittedly
E not been obtained prior to their posting vide order dated
30.12.1997, the learned Single Judge concluded, inter alia, that
the authorities had wrongly assumed, that the posting of the
appellants at the Government Medical College, Jammu (and/
or at hospitals associated therewith), was by way of deputation.
F Accordingly, the learned Single Judge held, that there was no
question of the reversion of the appellants to their parent
department. For, according to the learned Single Judge, the
Government Medical College Jammu (and/or at hospitals
associated therewith) comprised of the appellants parent
G department. Based thereon, the learned Single Judge felt, that
the reversion/repatriation of the appellants to the Directorate
of Health Services, Jammu, lacked legal sanction.

9. The learned Single Judge also relied upon the
Government Order dated 17. 7 .1997 in order to conclude, that
H
KAVI RAJ v. STATE OF J&K 635
[JAGDISH SINGH KHEHAR, J.]
the posting of the appellants at the Government Medical A
College, Jammu (and/or at hospitals associated therewith) was
not beyond their cadre. Referring to paragraph 5(f) thereof, the
learned Single Judge felt, that the posting of the appellants was
within the scope of the conditions of their employment.
B
10. Besides the aforesaid, the learned Single Judge also
arrived at the conclusion, that the Principal, Medical College,
Jammu had no jurisdiction whatspever to issue the impugned
order dated 7.1.1998 reverting/repatriating the appellants to the
Directorate of Health Services, Jammu. In this behalf, the C
learned Single Judge felt, that the Principal, Government
Medical College, Jammu had passed the order dated 7.1.1998,
in his capacity as Head of the Department, which was not in
consonance with the factual/legal posititm.

11. The learned Single Judge summarized his conclusions D
as under:

"In view of the above, it is held that:

(i) The petitioners came to be appointed as Assistant
Surgeons. E

(ii) The Commissioner/Secretary in the Health and
Education Department passed clear orders on 17th
July, 1997 that the petitioners be appointed in
Jammu Hospitals. F

(iii) That the Director Health Services merely performed
ministerial act of issuing letter of appointments. He
acted in compliance of the Government Orders.

(iv) That the petitioner came to be appointed against G
available vacancies.

(v) The concept of the petitioner being on deputation
would not be attracted to the facts of this case. This
is because this was the first appointments of the H
636 SUPREME COURT REPORTS [2013] 3 S.C.R.

A petitioners. The concept of parent department anrl
department to which an employee is to be
temporarily sent on deputation is missing in this
case.

(vi) The fine distinction pointed out on the basis of Rules
B
of Business may be legally correct, but no factual
foundation has been laid down for sustaining the
argument as projected by the State counsel.

(vii) That the order passed during the period when
C Model Code of Conduct was in operation and when
election process was on, was also not in
accordance with law."

Accordingly, the learned Single Judge set aside the impugned
0 order dated 7.1.1998 passed by the Principal, Medical College,
Jammu ..

12. Dissatisfied with the judgment rendered by the learned
Single Judge of the High Court on 28.5.1998, the State
Government preferred Letters Patent Appeals. Suffice it to
E state, that while disposing of the Letters Patent Appeals, the
common decision rendered by the learned Single Judge of the
High Court, was set aside by the Division Bench on 24.2.2006.
The appellants before us, have raised a challenge to the order
passed by the Division Bench on 24.2.2006.
F
13. The first Civil Appeal being disposed of by the instant
common order, has been filed by Dr.Kavi Raj and others,
whereas the second one has been filed by Dr.Reva Gaind and
others. Leaned counsel for the ap~ellants, at the very inception
G informed us, that the first Civil Appeal survives in respect of only
five appellants, namely, Dr.Kanchan Anand, Dr.Arpana
Sharma, Dr.Mehbooba Begum, Dr.Nidhi Sharma and
Dr.Shama Parveen Bhat. As against the second Civil Appeal,
it was stated to be surviving only in respect of Dr.Reva Gaind,
H Dr.Rachna Wattal, Dr.Mala Mandia, Dr.Karuna Wazir, Dr.Ila
KAVI RAJ v. STATE OF J&K 637
[JAGDISH SINGH KHEHAR, J.]

Gupta, Dr.Simi Kandhari, Dr.lndu Raina,." Dr.Shivani Malhotra A
and Dr.Surekha Bhat. It is therefore apparent, that the instant
two Civil Appeals are presently surviving only in respect of 14
of the appellants, fully described above.

14. In order to canvass the claim of the appellants, learned B
counsel invited our attention to the order of the Principal,
Medical College, Jammu dated 30.12.1997, whereby, the
appellants were assigned their first posting as Senior/Junior
House Officers in different departments of the Government
Medical College, Jammu (and/or at hospitals associated C
therewith). Based thereon, it was the vehement contention of
the learned counsel, that the Division Bench of the High Court
seriously erred in holding that the appellants were appointed
by way of deputation to the Government Medical College,
Jammu. To further the contention, that the appellants were not
appointed to the Government Medical College, Jammu by way D
of deputation, it was pointed out, that the posts of Assistant
Surgeons against which the appellants were appointed were
created by the Health and Medical Education Department. The
requisition to fill up 1255 posts of Assistant Surgeons, was also
addressed by the Health and Medical Education Department, E
to the Public Service Commission. It was sought to be
canvassed, that the Government MedicarCollege, Jammu, was
a part and parcel of the Department of Health and Medical
Education, and as such, it was submitted, that the posting of
the appellants at the Government Medical College, Jammu F
(and/or at hospitals associated therewith) cannot be deemed
to be a posting by way of deputation. It was accordingly
submitted, that the appellants· posting could not be deemed to
be in a cadre, other than the cadre to which they were
substantively appointed. Based on the aforesaid submission, G
learned counsel for the appellants endeavoured to suggest, that
the conclusions recorded by the learned Single Judge were fully
justified, and in coi:isonance with law. Learned counsel
accordingly prayed that the impugned order d3ted 24.2.2006
be set aside. H
638 SUPREME COURT REPORTS [2013] 3 S.C.R.

A 15. In addition to the submission advanced at the hands
of the learned counsel for the appellants, as has been noticed
in t!ie foregoing paragraph, it was also his vehement
contention, that the posting of the appellants was in consonance
with the express instructions of the State Government. In this
B behalf, learned counsel placed reliance on the Government
Order dated 17.7.1997, whereby norms for issuing posting
orders of candidates freshly selected against the post of
Assistant Surgeons, were laid down. Placing reliance on
paragraph S(f) of the aforesaid Government Order dated
c 17.7.1997 (extracted in paragraph 4 hereinabove) it was
submitted, that the posting of the appellants against the
vacancies in the Directorate of Medical Education, was clearly
within the purview of their selection to posts in the Health and
Medical Education Department. Since the posting of the
D appellants was made in consonance with the Government Order
dated 17.7.1997, it was contended, that it was natural to infer
that the same was within the cadre to which they were selected
and appointed. It was therefore submitted, that the impugned
order dated 7 .1.1998 passed by the Principal, Government
E Medical College, Jammu, must be deemed to have been
issued on a misunderstanding, that the posting of the appellants
at the Government Medical College, Jammu (and/or hospital
associated therewith) was beyond the scope of their legitimate
posting. For the aforesaid reason also, it was contended that
the impugned order dated 7.1.1998 needed to be set aside.
F
16. We may also place on record the submission of the
learned counsel for the appellants, on the same lines as the
determination rendered by the learned Single Judge of the High
Court. To avoid repetition, reference may be made to
G paragraph 8 above. Learned counsel, endorsed the aforesaid
factual/legal position,

17. In response to the submissions advanced at the hands
of the learned counsel for the appellants, the contentions
H advanced at the hands of the learned counsel for the
KAVI RAJ v. STATE OF J&K 639
[JAGDISH SINGH KHEHAR, J.]
respondents, though exhaustive during hearing, are being A
summarised hereunder, for an overview:

(i) The Department of Health and Medical Education
comprises of two independent Directorates,
namely, the Directorate of Health Services and the
B
Directorate of Medical Education. The posts of
Assistant Surgeons, against which the appellants
were selected and appointed belonged to the cadre
of posts, under the Directorate of Health Services.

(ii) Whereas, at the time of selection and appointment c
of the appellants, the Directorate of Health Services
had a cadre of Assistant Surgeons, the Directorate
of Medical Education, which included the
Government Medical College, Jammu (and/or
hospitals associated therewith), did not have any D
post of Assistant Surgeons. Therefore, the posting
of the appellants, at the Government Medical
College Jammu (and/or at hospitals associated
therewith) could only have been by way of
deputation. E
(iii) Cadres under the Directorate of Health Services,
as well as, the cadres under the Directorate of
Medical Education are regulated by separate rules.
While the Jammu & Kash,mir Medical Education
(Gazetted) Service Recruitment Rules, 1979, F
govern the conditions of service of gazetted
employees of the Directorate of Medical Education;
the Jammu & Kashmir Medical (Gazetted) Service
Recruitment Rules, 1970 regulate the recruitment of
gazetted employees, in the Directorate of Health G
Services. Under the 1979 Rules referred to above,
there was no post of Assistant Surgeons. Therefore
the posts of Assistant Surgeon, were clearly not
included in the cadre of posts under the Directorate
of Medical Education. It was also pointed out, that H
640 SUPREME COURT REPORTS [2013] 3 S.C.R.

A the post of Assistant Surgeon figure in the 1970
Rules referred to above, and as such, the posts of
Assistant Surgeon, find a definite place in the cadre
of posts, under the Directorate of Health Services.
It was sought to be inferred from the above factual/
8 legal position, that the appointment of the appellants
was in the Directorate of Health Services, and their
posting at the Government Medical College,
Jammu (and/or at the hospitals associated
therewith) was by way of deputation.
c (iv) Referring to the impugned order passed by the·
Division Bench dated 24.2.2006, it was pointed out,
that the appellants before this Court had not
disputed a vital factual position recorded therein,
namely, that the salary of the appellants continued
D to be drawn from the Directorate of Health
Services, for the entire duration during which the
appellants had been rendering service at the
Government Medical College, Jammu (and/or at the
hospitals associated therein). It was submitted, that
E this factual position is sufficient to establish, that the
appointment of the appellants was to the
Directorate of Health Services, and not in the
Directorate of Medical Education.

F 18. Having given our thoughtful consideration, to the
submissions advanced at the hands of the learned counsel for
the rival parties, we are of the view, that the submissions
advanced on behalf of the respondents, as have been
summarized above are unexceptionable. It is therefore, not
G possible for us to accept that the appointment of the appellants
was substantively made to a cadre under the Director of
Medical Education. We are also of the view, that the
appointment of the appellants in the Directorate of Medical
Education, was clearly by way of deputation. Their posting at
H the Government Medical College Jammu (and/or at the
KAVI RAJ v. STATE OF J&K 641
[JAGDISH SINGH KHEHAR, J.]
hospitals associated therewith) was most certainly beyond their A
parent cadre, and therefore, by way of deputation. The reasons-·
f()r our aforesaid conclusions, are being recorded in the
following paragraphs.

19. Even though it is clear, that the posts of Assistant 8
Surgeons were created by the Health and Medical Education
Department of the State Government, it is also clear that the
aforesaid department is comprised of two independent
Directorates, namely, the Directorate of Health Services and
the Directorate of Medical Education. The employees of each C
of the two Directorates are governed by a separate set of rules.
The rules governing the conditions of service of gazetted
employees of the Directorate of Medical Education, do not have
the posts of Assistant Surgeons. The cadre of Assistant
Surgeons is only found in the rules of recruitment applicable to
gazettled employees of the Directorate of Health Service·. D
Secondly, the assertion made at the hands of the learned
counsel for the respondents, that there were no posts of
Assistant Surgeon when the appellants were selected and
posted at the Government Medical College, Jammu (and/or at
the hospitals associated therewith), in the Directorate of Medical E
Education, has not been disputed by the learned counsel for
the appellants. In the absence of any posts of Assistant Surgeon
in the Directorate of Medical Education, it is impossible to infer
that the appellants (who were selected against the posts of
Assistant Surgeons) could have belonged to the Directorate of F
Medical Education. Furthermore, consequent upon the
selection of the appellants by the Public Service Commission
they were issued appointment orders dated 12.8.1997. A
relevant extract of the aforesaid appointment order, has been
reproduced above. A perusal of the same reveals, that such of G
the candidates who had been selected as Assistant Surgeons,
and belonged to Jammu region, were to report to the Director,
Health Services, Jammu. Whereas, those belonging to the
Kashmir region, were to report to the Director, Health Services,
Kashmir. The Directors of Health Services, Jammu as well as H
642 SUPREME COURT REPORTS [2013] 3 S.C.R.

A Kashmir, are admittedly incharge of the administrative chain of
command, in the respective Directorates of Health Services.
This by itself demonstrates, that the appointment of the
appellants was to the Directorate of Health Services, and not
in the Directorate of Medical Education. Fourthly, the order
B issued by the Principal, Government Medical College, Jammu
dated 30.12.1997 reveals, that the appellants were being
posted as Senior/Junior House Officers. The posts of Senior/
Junior House Officer are distinct and separate from the posts
of Assistant Surgeons. The posts of Senior/Junior House
C Officers, are included in the cadre of posts in the Directorate
of Medical Education. The appellants posting as Senior/Junior
House Officers also exhibits, that their appointment was not
within the Directorate of Health Services, but was against posts
outside the Directorate of Health Services. Furthermore, even
the impugned order dated 7.1.1998 noted, that the appellants
0 · were being temporarily deployed " ... from the Directorate of
Health Services, Jammu .. ." to meet the exigency of shortage
of doctors at the Government Medical College, Jammu. Sixthly,
the endorsement at serial no.2 of the order dated 7 .1.1998
(extracted in paragraph 5 above) reveals, that a request was
E made by the by the Director, Health Services, Jammu, that the
appellants be reverted to the Directorate of Health Services,
to meet the needs of the said service. Seventhly. the order of
the Department of Health and Medical Education dated
20.4.1998 reveals, that the posting of the appellants at the
F Government Medical College, Jammu (and/or at hospitals
associated therewith), was made by the two Directors of Health
Services in violation of Government Orders, thereby, defeating
the very purpose for which the appellants were selected and
appointed. Lastly, is the unrefuted assertion at the hands of the
G learned counsel for the respondents, that the salary of the
appellants continued to be drawn from the Directorate of Health
Services, for the entire duration during which the appellants
remained posted at the Government Medical College, Jammu
(and/or at the hospitals associated therewith). Had the
H appellants been legitimately working within their own cadre, their
KAVI RAJ v. STATE OF J&K 643
[JAGDISH SINGH KHEHAR, J.]
\
salary would undoubtedly have been drawn from the funds of A
the Directorate of Medical Education. This factual position puts
a final seal on the matter, as it does not leave any room for
any further imagination. Based on the disbursement of salary
to/ the appellants from the funds of Directorate of Health
Services, the appellants must be deemed to be substantive B
employees of the cadre of Assistant Surgeons of the
Directorate of Health Services. There is therefore no room for
any doubt, that the appellants were substantively appointed to
the Directorate of Health Services, and not in the Directorate
of Medical Education. c
20. Before concluding, it is essential to deal with certain
inferences drawn by the learned Single Judge of the High
Court. According to the learned Single Judge, prior consent
of an employee is imperative, binding, peremptory and
mandatory, before he is posted on deputation outside his D
parent department. No statutory rule has been brought to our
notice, requiring prior consent of an employee, before his
deployment against a post beyond his parent cadre. The mere
fact, that the appellants consent was not sought before their
posting at the Government Medical College, Jammu (and/or E
at the hospitals ass'.lciated therewith) would not, in our view
have any determinative effect on the present controversy.
Broadly, an employee can only b~ posted (or transferred) to a
post against which he is selected. This would ensure his
stationing, within the cadre of posts, under his principal F
employer. His posting may, however, be regulated differently,
by statutory rules, governing his conditions of service. In the
absence of any such rules, an employee cannot be posted (or
transferred) beyond the cadre to which he is selected, without
his willingness/readiness. Therefore, an employee's posting (or G
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. It can be implied.
It need not be in the nature of a written consent. Consent of H
644 SUPREME COURT REPORTS [2013] 3 S.C.R.
KAVI RAJ
•
STATE OF J&Kv. 645
[JAGDISH SINGH KHEHAR, J.]
I
!.
.
.. "' . . .

posting (or transfer) beyond the cadre (or parent department) was dismissed irfdefault.. The said Letters Patent Appeal was A
. ' .. '
is inferable from.the conduct of the employee, who does not never restored. As such, i! was submitted, that the ordef
protest or, contest such posting/transfer. In the present passed by the learned Single Judge on 28.5.1998, relating to
controversy, the appellants were issued posting orders by the 18 Assistant Surgeons, (impleaded as respondents therein),
Principal, Gove'rnment. Medical College, Jammu, dated attained finality. Based on the .aforesaid uncontroveried
,30.12.199i They aceepted the same, arid'assumed charge as position, it .was submitted, that it is imperative for the State B
Senior/Junior House Officers at the Government Medical Government, now to give effect to the order of the learned Single
College, Jammu," despite their selection and appointment as Judge dated 28.5.1998,pertaining,to.the aforesaid ·18
Assistant Surgeons. Even now, they wish to continue to. serve Assistant Surgeons, (impleaded as respondents in LPA(SW)
against posts;-in the Directorate .of Medical Education ..There . no.88 of 2000). In the aforesaid view of the matter, it was further
c cannot be any doubt, about ttieir willingness/readiness to serve. submitted, that the. binding effect in connection with the 18 c
with the borrowing Directorate. The consent of the appellants Assistant Surgeons, should be. extended to the remaining 24 .
is tacit and unquestionable. We are therefore of the view, that Assistant. Surgeons (who had been arrayed as respondents in
the learned Single Judge of the High Court, clearly erred on the LP.A (SW) no.89, of 2000. This,· according. to the learned
inst~mt aslle.ct of the rnatter. · counsel for the appellants, would also meet the ends of justice, .
. . inasmuch as, all simllarly situated individuals, must be placed D
D , 21. For the reasons expressed hereinabove, we are similarly. According to learned counsel, if this position is not
satisfied, tha_t the impugn~d.order passed by the Letters Patent accepted, the appellan!S would be deprived of their right to
Bench of the High Court on 24.2.2006, does not suffer from any equality before the. law and :to, equal protection of the laws,
factual oi- legal infirmity. The same is therefore, affirmed. , . guaranteed under Article 14 of the Constitution of India.
' i . -. : / . ~ l \ .,- • '- ' - ' ' - ' ' ' ' .
~ '';' (", <" ' • ' - " ' • . : f:;: l :. . • . .l

E .· 22. Despite having recorded our conclusions on the merits .:23. We have given ourJhoughtful consideration to.the:· E
of the controversy, it is also essential' for us to take into aforesaid technical plea advanced at the hands of the learned·
consideration a technical plea advanced at the hands of the counsel.for the appellants ..It is not a matter of dispute, that LPA
learned counsel for the appellants. It was submitted on behalf (SW),no.89 of 2000 wasadjudicated upon by the Division
of the appellants, that consequent upon the:decision by the Benell on merits. .
In terms ofthe
- .
instant order passed . by us,·; ,
F learne~ Single ·Judge (dated 28.5.1998);: whereby, the we. have _affirmed the correctness of the order passed by the, , F
· impugned order of reversion/repatriation of the appellants to the · Letters Patent.Bench of the High.Court on 24.2.2006.,Thus
Directorate of Health Services dated 7.1:1998 was set aside, viewed, it .is clear that the controversy was justly adjudicated
two Letters Patent Appeals, i.e~; LPA (SW) no.88 of 2000, and . upon-by-the Division Bench, i~rrespect of 24,Assistant ·,
LPA (SW) no.89 of 2000 were filed by the responde-nts hereiil Surgeons. The only question to be decided, while dealing with .. ·
G (lo impug~ the 'common o-rder da~ed 28.5.1998, pas~ed ~Y the . the technical plea advanced at the hands of the learned counsel . G
learned Single Judge). In. the first of the aforesaid· Letters · · for the appellants is,· whether the judgment rendered in LPA,':
. Patent Appeals;-18 Assistant Surgeons were impleaded as·· (SW) no.88 of 2000should be extended to LPA(SW) no.89 of· .
respondents, whereas, in the seco'nd Letters Patent Appeal 24 · 2000: Or vice~a~versa, whether the order of the learned Single
Assistant Surgeons were impleaded as responderits. It was Judge, which has attained finality in respect of 18 Assistant
'-
H p~int7d out, that tti~ Le~~rs Pate,nt Appe~I (SW) no'.88 of 2000_ - H
"1 {.' ,'• , I . , , , , I ·' . , \ . ...___ . \, .•

\
644 SUPREME COURT REPORTS [2013] 3 S.C.R.
KAVI RAJ
•
STATE OF J&Kv. 645
[JAGDISH SINGH KHEHAR, J.]
I
!.
.
.. "' . . .

posting (or transfer) beyond the cadre (or parent department) was dismissed irfdefault.. The said Letters Patent Appeal was A
. ' .. '
is inferable from.the conduct of the employee, who does not never restored. As such, i! was submitted, that the ordef
protest or, contest such posting/transfer. In the present passed by the learned Single Judge on 28.5.1998, relating to
controversy, the appellants were issued posting orders by the 18 Assistant Surgeons, (impleaded as respondents therein),
Principal, Gove'rnment. Medical College, Jammu, dated attained finality. Based on the .aforesaid uncontroveried
,30.12.199i They aceepted the same, arid'assumed charge as position, it .was submitted, that it is imperative for the State B
Senior/Junior House Officers at the Government Medical Government, now to give effect to the order of the learned Single
College, Jammu," despite their selection and appointment as Judge dated 28.5.1998,pertaining,to.the aforesaid ·18
Assistant Surgeons. Even now, they wish to continue to. serve Assistant Surgeons, (impleaded as respondents in LPA(SW)
against posts;-in the Directorate .of Medical Education ..There . no.88 of 2000). In the aforesaid view of the matter, it was further
c cannot be any doubt, about ttieir willingness/readiness to serve. submitted, that the. binding effect in connection with the 18 c
with the borrowing Directorate. The consent of the appellants Assistant Surgeons, should be. extended to the remaining 24 .
is tacit and unquestionable. We are therefore of the view, that Assistant. Surgeons (who had been arrayed as respondents in
the learned Single Judge of the High Court, clearly erred on the LP.A (SW) no.89, of 2000. This,· according. to the learned
inst~mt aslle.ct of the rnatter. · counsel for the appellants, would also meet the ends of justice, .
. . inasmuch as, all simllarly situated individuals, must be placed D
D , 21. For the reasons expressed hereinabove, we are similarly. According to learned counsel, if this position is not
satisfied, tha_t the impugn~d.order passed by the Letters Patent accepted, the appellan!S would be deprived of their right to
Bench of the High Court on 24.2.2006, does not suffer from any equality before the. law and :to, equal protection of the laws,
factual oi- legal infirmity. The same is therefore, affirmed. , . guaranteed under Article 14 of the Constitution of India.
' i . -. : / . ~ l \ .,- • '- ' - ' ' - ' ' ' ' .
~ '';' (", <" ' • ' - " ' • . : f:;: l :. . • . .l

E .· 22. Despite having recorded our conclusions on the merits .:23. We have given ourJhoughtful consideration to.the:· E
of the controversy, it is also essential' for us to take into aforesaid technical plea advanced at the hands of the learned·
consideration a technical plea advanced at the hands of the counsel.for the appellants ..It is not a matter of dispute, that LPA
learned counsel for the appellants. It was submitted on behalf (SW),no.89 of 2000 wasadjudicated upon by the Division
of the appellants, that consequent upon the:decision by the Benell on merits. .
In terms ofthe
- .
instant order passed . by us,·; ,
F learne~ Single ·Judge (dated 28.5.1998);: whereby, the we. have _affirmed the correctness of the order passed by the, , F
· impugned order of reversion/repatriation of the appellants to the · Letters Patent.Bench of the High.Court on 24.2.2006.,Thus
Directorate of Health Services dated 7.1:1998 was set aside, viewed, it .is clear that the controversy was justly adjudicated
two Letters Patent Appeals, i.e~; LPA (SW) no.88 of 2000, and . upon-by-the Division Bench, i~rrespect of 24,Assistant ·,
LPA (SW) no.89 of 2000 were filed by the responde-nts hereiil Surgeons. The only question to be decided, while dealing with .. ·
G (lo impug~ the 'common o-rder da~ed 28.5.1998, pas~ed ~Y the . the technical plea advanced at the hands of the learned counsel . G
learned Single Judge). In. the first of the aforesaid· Letters · · for the appellants is,· whether the judgment rendered in LPA,':
. Patent Appeals;-18 Assistant Surgeons were impleaded as·· (SW) no.88 of 2000should be extended to LPA(SW) no.89 of· .
respondents, whereas, in the seco'nd Letters Patent Appeal 24 · 2000: Or vice~a~versa, whether the order of the learned Single
Assistant Surgeons were impleaded as responderits. It was Judge, which has attained finality in respect of 18 Assistant
'-
H p~int7d out, that tti~ Le~~rs Pate,nt Appe~I (SW) no'.88 of 2000_ - H
"1 {.' ,'• , I . , , , , I ·' . , \ . ...___ . \, .•

\
646 SUPREME COURT REPORTS [2013) 3 S.C.R.

A Surgeons, should be extended to the other 24 Assistant
Surgeons.
24. In so far as the matter pertaining to 24 Assistant
Surgeons is concerned, the decision rendered by the High
B Court on 24.2.2006 has been affirmed by us on merits. It is
therefore legitimate to infer, that the matter has been wrongfully
determined by the learned Single Judge. We are of the view,
that the decision of the controversy by this Court, pertaining to
the 24 Assistant Surgeons (whose claim was decided by the
impugned order dated 24.2.2006) constitutes a declaration of
C law, and is binding under Articles 141 of the Constitution of
India. Such being the stature of the determination rendered in
respect of 24 Assistant Surgeons (whose claim was
adjudicated by the Letters Patent Bench of High Court), we are
of the view that the same should, if permissible, also be
D extended to the other 18 Assistant Surgeons. Ordinarily, in a
situation when a judgment attains finality between rival parties,
it is not legitimate to reopen the issue, even for correcting an
error, which emerges from a subsequent adjudication.

E 25. The factual position in the present controver;sy is slightly
different. Before this Court two Special Leave Petitions were
filed. The Assistant Surgeons against whom the Letters Patent
Appeal was dismissed in default, are also before this Court.
They have also been afforded an opportunity of hearing. This
F Court has expressed the opinion that the order passed by the
Letters Patent Bench of the High Court on 24.2.2006 deserves
to be upheld. If the Assistant Surgeons whose Letters Patent
Appeal was dismissed in default, had not been before this
Court, it may not have been possible for us to re-adjudicate
G upon their claim. Since all of them are before us, and have been
represented through counsel, we have no doubt in our mind,
that the determination on merits in the instant controversy
should be extended to them, as well. Since such a choice can
be made in the present case, we are of the view, that the
proposition which has been upheld as legal, should be extended
H
KAVI RAJ v. STATE OF J&K 647
[JAGDISH SINGH KHEHAR, J.]
to the others similarly situated. The converse proposition, does A
not commend itself for acceptance. It would be unthinkable to
implement an order, which has been set aside after due notice
and hearing. We therefore, find no merit in the technical plea·
advanced at the hands of the learned counsel for the appellants.
B
26. The reversion/repatriation of the appellants to their
parent department, i.e., the Directorate of Health Services,
Jammu, is affirmed. The appellants who have continued to
discharge their duties eversince their induction into service at
the Government Medical College, Jammu (and/or at hospitals c
associated therewith), will be repatriated/reverted to the
Directorate of Health Services, Jammu. Now, that the matter
has attained finality, they must be relieved from their postings
in the Directorate of Medical Education. So as to enable them
to accept the reality of the situation, and to acclimatize them D
with the position emerging from our order, we consider it just
and appropriate to direct, that the appellants be allowed to be
continued at their present place of posting till 31.3.2013. They
shall be relieved from their posting in the Directorate of Medical
Education under all circumstances on the afternoon of
31.3.2013, for onward posting against a cadre post in the E
Directorate of Health Services.

Disposed of in the aforesaid terms.

B.B.B. Appeals disposed of. F