M.A.Mufti and Anr. vs State of J&K & Ors.

Kuchhai, J.—The two writ petitions titled above, involve common questions of law and facts. Even the petitioners belong to the common

category of service, challenge one order affecting them. We propose to deal with the petitions by a single order.

In writ petition No: 128/87, first Petitioner, Abdul Majid Majaz Bhat, is reported dead, thus, the petition has become infructuous to the extent of

relief claimed by him.

We have heard learned counsel for both the parties at length, touching the merit on the point involved and we will answer the questions in that

context and also considered the material allowed to be brought on record during admission proceedings.

While replying Mr. Khan, Addl. Advocate General produced extract photostat copies of rules and regulations touching the point which we have

allowed to be placed on record.

5, Before discussing the points involved, it is necessary to state the material facts out of which these petitions have arisen. The petitioners are

members of Indian Forest Service cadre, under the control of Respondent No: 1. It appears that the Services of the petitioners were placed at the

disposal of respondent No. 2 State Forest Corporation vide Order No. 136 of 1983, in their own pay and grade to be appointed in place of M/s

P. P. Patnaik and R. P. Sharma, cadre officers and appear to have been promoted to the posts of General Managers, incharge of certain Forest

Circles. The posts of General Managers under the control of State Forest Corporation appear to have been declared equivalent to the rank and

status of Conservator of Forest Department. The petitioners continued to serve in the higher lank indicated till February 2, 1987, when under

Order No. 17FST of 1987, issued by respondent No. 1 impugned in these petitions, they were recalled to their department, reverting them to the

posts of DCFs/DFOs indicated in the order at item No. 2 and 3 of Annexure P11 to the second petition, to the posts which are lower in rank and

status compared to the posts they occupied in State Forest Corporation Respondent No. 2 and another batch of officers respdts No. 5 to 9

among whom No. 5 D. K. Ved is from I. F. S. cadre and Nos 6 to 9 from State Forest Service have been deputed to Respondent No. 2 for

posting as General Managers while Mr. SDA Salaria has been promoted as Conservator of Forest Central Circle and it is this order the petitioners

have challenged in these petitions under Article 226 of the Constitution of India read with S. 103 of the State Constitution, on the ground that the

petitioners being senior I. F. S cadre officers figuring at serial Nos 18 and 19 in the Civil Lists and in accordance with the practice adopted by the

Respondent No. 1 which has taken shape of rule in order to avoid stagnation of I. F. S. cadre officers, senior I. F S. officers are being deputed to

State Forest Corporation respondent No. 2 for being elevated to higher posts of General Managers equal in rank and status to that of

Conservators of Forests, cadre posts and on reversion such cadre officers are usually ""adjusted against posts equal in rank held by them, in their

parent department, which practice has been violated by virtue of the order impugned reducing the petitioners in rank and status by appointing to

lower posts than they held while on deputation. Moreover, junior cadre officers already on deputation to State Forest Corporation have not only

been retained on the posts of General Managers, but under the impugned order junior officers respondents Nos. 5 to 9 from inferior service, of

State Forest Service and one junior I. F. S. cadre officer have been deputed to be 'elevated to the posts of General Managers under the control of

Respondent No. 2, again, hitting the principle of last come first go applied to promotions. The action of Respondents No. 1 has violated the

provisions of Articles 14 and 16 of the Constitution of India as regards the petitioners denying equal treatment and protection of service, therefore,

these petitions to quash the Order impugned, issue directions to respondents to allow the petitions to continue in the State Forest Corporation and

Mandamus to respondent No, 1 not to appoint any of the respondents Nos. 5 to 9 to the post held by the petitioners.

On issue of notice for admission, the respondents State of J&K, J&K State Forest Corporation including No. 5 appeared.

The respondent No. 1, State of Jammu and Kashmir, has filed Objections seperately in both the petitions supported by an affidavit to the

admissibility of these petitioners on the ground that the petitions are not maintainable as no right of the petitioners is violated. That the petitioners

who are borne on the I. F. S. cadre have been sent on deputation to the State Forest Corporation on standard terms and any higher elevation

granted to them duriag deputation will not confer any right on them to hold the posts continuously or on reversion to the parent department will not

entitle them to such posts equal in rank and status which they were holding while on deputation. That the practice of deputing senior Officers to the

Corporation for higher elevation is not borne on any rule or by Govt. decision and on reversion of the cadre officers to the parent deptt the

petitioners have been placed on the cadre posts held by them substantively The Government has power to depute from amongst cadre officers to

State Forest Corporation without adopting rule of seniority except considering suitability of officers to be deputed, therefore, no right of the

petitioners has been violated.

Mr. Beg, appearing for the petitioners, in Ms arguments challenged the impugned order, which according to him is arbitrary in nature and against

rules of justice for the fact that while placing the services of petitioaers at the disposal of respondent No. 2 State Forest Corporation, they were

given charge of M/s. P. P. Patnaik, R. P. Sharma, cadre officers holding posts of General Managers equal to the rank of cadre posts of

Conservators of Forests, as a result of the representations putforth by the petitioners and their placing in the State Forest Corporation in effect was

promotion to higher posts of General Managers and they could not be on recall' reverted to lower substantive posts by the respondent No. 1 in

their parent department, resulting in reduction of rank within the meaning of Art 31 1 (2) of the Constitution of India. Mr. Beg, further argued that

petitioners should have been given cadre posts of Conservators of Forests equal in rank and status to that of General Managers in the State Forest

Corporation as was practice in the department. The post of General Manager having been equated to the cadre post of Conservator of Forest and

cadre officer on reversion from the State Forest Corporation having been retained on the post of Conservator of Forests otherwise the petitioners

should have been retained on the posts held by them and junior officers who have been holding the posts of General Managers should have been

reverted on the basis of principle of last come first go. Mr. Beg, in support of his argument regarding reduction in rank, referred to AIR 1981: SC:

64, AIR: 1972: SC: 995, AIR 1966: SC: 175; AIR 1970: SC; 77 and latest citation AIR: 1986: SC: 1200.

We will discuss the citations while appreciating the point little later in the body of this order.

Mr. B. A. Khan, Addl. Advocate General, appearing for contesting respondent No. 1 on the other hand argued that petitioners, IFS cadre officers

cannot claim high posts equal in rank and status on recall by parent department which they were holding while on deputation to State Forest

Corporation respdt No. 2, as deputation service confers no right on cadre officers which posts they are not holding substantively, therefore, on

recall fay the parent department and posting to substantive posts does not amount to reduction of rank as BO right is conferred on the petitioners

as cadre officers.

In the light of arguments advanced by the counsel for the parties, the point which falls for determination before us is, whether an IFS cadre

officer, on deputation in accordance with the rules being placed in a higher position, gains a right to hold a post equivalent in rank and status on

reversion in the parent department and if the lenting authority rather parent deptt. can be compelled to extend the deputation and adopt the practice

of deputing only senior officers anticipating promotion and ignoring junior cadre officers for deputation, who have to wait promotion due to their

lower serial.

It is admitted case of the parties that the petitioners are I. F. S. cadre officers figuring at serial No. 18 and 19 in the civil list of cadre officers

under the control of Respondent No. 1, The petitioners belong to Forest Department under the control of respondent No. 1 while the respondent

No. (2) where the petitioners were holding posts of General Managers is a Government Corporation. The method of recruitment and promotion in

both the concerns is altogether different. The feeding channel to the posts under the control of State Forest Corporation respondent No. 2 is in

accordance with the State Forest Corporation Rules of 1978, wherein quota system has been prescribed i. e. by promotion, direct recruit and

borrowing officers by deputation from other Government Departments which has no bearing on the cadre posts under the control of respondent

No. 1 in the Forest Department.

To appreciate the point, we need to reproduce the Order No. 136 dated 11101983 under which the services of the petitioners have been

placed at the disposal of the respondent No. 2, hereunder:

Government Order No. 136 of 1983

Dated 11101983

In the interest of administration the following transfers/adjustment are hereby ordered:

Sh G, H. Kangoo, IFS, Director Soil Conservation is appointed as Conservator of Forests against the vacant poat of Conservator, Working

Plan. Shri Kangoo will however, continue to be on deputation as Director, Soil Conservation which post is declared equivalent in status and

responsibilities to the IFS cadre post of Conservator of Forests under rule 9 (i) of IFS Pay rules, 1968,

S. Prem Singh, IFS presently on deputation to State Forest Corporation is recalled and posted as Conservator of Forests, working Plan in his

own pay andgrade.

4. S/Sh. PP Patnaik IFS and RP Sharma, IFS are recalled from the State Forest Corporation and will report to Chief Conservator ot Forest for

their adjustment;

6. The services of S/Shri S. Saran Singh, IFS and M. A. Mufti, IFS (D.C.F's) are placed at the disposal of the State Forest Corporation in their

own pay and grade on standard terms of depuation in place of Sh. P. P. Patnaik and R. P. Shartna respectively.

By order of the Government of Jammu and Kashmir.

Sd

(GHULAM SHAH)

Comrar. Secretary to Govt.

Forest Department

The order though indicates even the placing of the petitioners in the respondentCorporation on the posts held by M/s. P. P. Patnaik and R.P.

Sharma who were recalled, on standard terms of deputation in their own pay and grade keeping in view the deputation rules of IFS cadre rules of

1966, together with IFS cadre rules of 1968, protecting their cadre without least referring to element of promotion to the petitioners. The order on

its face gives the only benefit of deputation to the petitioners and nothing more can be conceived under the same. The petitioners can get

deputation allowance, higher emoluments and can be elevated to higher excadre posts according to' the exigencies of posts available in the State

Forest Corporation respondent No, 2. The contention of the petitioners that they were placed incharge of posts of General Managers which

amounted to their promotion due to their representations to respdt No. 1 even if accepted, this higher elevation to the petitioners is under the

control of respdt No. 2 and not against a cadre post which are available only under respondent No. 1 in the Forest Department. The adopted

promotion of the petitioners is to the noncadre posts under the control of another agency, an authority foreign to their parent department, which

arrangement is temporary in nature, the post being outside the cadre rules governing the petitioners. Further a cadre officer deputed has a sword of

recall by parent department hanging on his head for administrative exigencies, because deputation in no case is indefinite. Normally a term is fixed

and in case of petitioners, the respondent has taken a stand of three years only in their favour on the analogy of period fixed in the rules applying to

the State Services in general. Even if the term is not fixed it' cannot be treated indefinite as the Govt has power and privilege to terminate even the

fixed term of deputation if the exigencies of public service so demands. The status of cadre officers while on deputation in another department is

that of a stranger who is to fall back in his parent department sooner or latter as warranted for administrative purposes. His position is like a drop

of water in the ocean which drop even if ia the shape of clouds goes high in the sky still it has to fall back in the ocean. The deputation is not a

service absolute in nature. It has nature of special commission to serve in another department, not part of the original service and it has an element

of recall imbedded in the very word of 'deputation' and same cannot be detached This being so, the higher elevation of cadre officer while on

deputation to a noncadre post does not earn right of permanency to him being short of substantive nature based on lenting and borrowing such

service, therefore, any gain earned during borrowed service cannot be retained except length of working days. This kind of service no doubt

confers benefits but does not create rights. The cadre officer can accumulate rights on substantive post alone. For the disposal of the point, the

promotion of petitioners by respondent No. 2, to any noncadre post is immaterial as the respdt has no administrative control for purpose of service

conditions on the petitioners whose services are for all purpose subject to variation by respondent No. 1 in accordance with rules applying to

them, under which the respondent No. 2 borrowing authority is not empowered. The true test for creation of a right for a cadre officer on a post

held by him is that he must be holding the post substantively otherwise he has no legs to stand upon. Once an officer officiates in a lepve vacancy

or otherwise or is appointed on probation on a post or sent or, deputation as in this case, no right is conferred on him while serving on a high post

for the period he is on deputation having been installed on a foreign post rather a strange position as prevalent in his parent department for which

he has no basic right. It is further immaterial whether the appointment in another department is made on a higher post in consultation with the

authority say respondent No. 1, under whom the deputized officer works that consultation may only be taken for purposes of suitability of

incumbent for a particular post. To claim promotion on a cadre post on recall from deputation to parent department on the plea that the officer

enjoyed rank, status higher emoluments equal to next higher cadre post is only an attempt for promotion from back door which no rule will permit

or recognise unless proper selection made by the parent authority in accordance with the rules applying te such cadre officer.

The petitioners having served on noncadre posts equivalent to cadre post of Conservator of Forests, on recall to their parent department

cannot claim equal posting because such posts held by them even if declared equivalent to the post of Conservator of Forests on cadre post as

indicated in IPS Service (Cadre) Rules, 1966, the right of petitioners gets defeated in the light of Government of India decision attached to Rule (1)

of the said Rules in the following words:

The Government of India have held that a cadre post as defined in the Rules means only the post specified under item 1 of the cadre strength of

each State. A noncadre post does not become a cadre post simple, on being declared equivalent to a cadre post. It would become a cadre post

only after it has been included in and specified as such item I of the cadre strength of each State as shown in the schedules to the IPS (Fixation of

cadre strength) Rules, 1966"".

The decision by Govt. of India, the original authority removes the ambiguity and throws sufficient light on the point regarding treatment of

Cadre Officers on deputation on recall to their parent department, even if they have held high rank on noncadre posts parallel to cadre posts they

can not claim same position unless the posts are entered in the cadre schedule of the rules.

The argument of learned counsel for the petitioners that contrary to earlier practice, the crade officers when recalled from the Corporation

(State Forest Corporation) holding posts of General Managers to the parent department have been placed on equivalent cadrejposts of

Conservators of Forests, but at present only petitioners have been singled out to be reverted to lower posts of DCFs which they held substantively

earlier. The factual position may be so, which can be taken as a sheer coincidence of a situation in their parent department due to vacancy having

fallen vacant in the higher cadre at that particular stage otherwise such practice cannot be conceived under the rules which will supercede the rules

of selection to be implemented by respondent No. 1 in respect of the petitioners cadre officers.

Then is the point that cadre officers junior to the petitioners have been retained in State Forest Corporation in preference to the petitioners who

are seniors.

Rule""6 of the IFS (cadre) Rules, 1966 governs the deputation of cadre officers in the following words:

Deputation of cadre Officers:

1) A cadre officer may, with the concurrence of the State Government or the State Governments concerned and the Central Govt, be deputed for

service under the Central Govt. or another State Govt. or under a company, association or body of individuals, whether incorporated or not, which

is wholly or substantially owned or controlled by the Central Govt. or by another State Govt.

2) Cadre officer may also be deputed for service under:

(i) a eompany, association or bedy of individuals whether incorporated or not, which is wholly or substantively owned or controlled by a State

Govt, a municipal corporation or a local body, by the State Govt. on whose cadre he is borne; and

(ii) an international organisation, an autonomous body not controlled by the Govt, or a private body, by the Central Govt. in Consultation with the

State Govt. on whose cadre he is borne;

Provided that no cadre officer shall be deputed to any organisation or body of the type referred to in item (ii), except with his consent.

Provided further that no cadre officer shall be deputed under subrule (I) or subrule (2) to a post carrying a prescribed pay which is less than, or

pay scale, the maximum of which is less than, the basic pay he would have drawn in the cadre post, but for his deputation.

The rule reproduced lays mode and method of cadre officers with respect to deputation without making any distinction regarding senior or

junior cadre officers leaving absolute discretion to the lenting authority to choose officers for deputation. It is perhaps to look suitability of such

officer, otherwise it would limit the discretion of lenting authority to judge the capability of the officer and to look to the requirement of borrowing

agency.

Another point that officers from State Forest Service figuring respondents 6 to 8 indicated in the petition No. 128/87 alleged inferior service

compared to IPS cadre service have been deputed to the State Forest Corporation. As regards the deputation, the respondent No: 2 under SFC

Order No: 337 of 1984 dt. 23584 has to fill vacancies as per clause (b) by deputation quota of 25% from Govt. Deptts. without identifiying such

deputation from IPS cadre or State Forest Service or another Department which breaks claimed monoply of IPS Cadre officers for deputation.

Moreover no Officer of IPS Cadre are State Forest Service enjoys right to go on Deputation to State Forest Corporation as the privilege of

choosing officers, for deputation is with the Govt. or the appointing authority and it dislodges the argument of counsel for the petitioners, that IFS

cadre officers have preferential claim or right to be sent on deputation. We, therefore, are not called upon herein to distinguish the two services of

IPS and State Forest Service cadre officers at this stage for the purposes of deputation.

In the light of the discussion the citations referred by Mr. Beg, in support of his argument indicated above do not apply to the point involved in

this case which is of the nature of pure deputation as held by us, we having gone through the citations. The principle laid in cited cases is applicable

in the same service that too in respect of promotion and with regard to enjoyment of rank, status, emoluments and nature of duty. Because in eur

opinion deputation service does not confer right of substantive nature and on Reversion, cadre officer has to fall on the substantive post and

process of reversion from deputation must be given meaning of home coming on original position violating no right and offending no rule. The case

law cited do net touch deputation, they are distinguishable to the point involved in these petitions.

For the reasons recorded and observations made, we are led to the conclusion that the petitioners cannot convert their simple deputation from

I. F. S cadre post to State Forest Corporation by being appointed to posts of General Managers excadre posts as promotion when they are not

severed from their parent department for purposes of right to hold on charge on posts in the Corporation being only lent officers there on posts not

of substantive nature The benefits of higher rank, status and emoluments enjoyed by the petitioners will last till they are allowed to continue on

deputation and no more. The petitionersfserving on noncadre posts during deputation will not carry their status and rank to thelparent department

on recall and their reversion to the substantive posts held by them immediately before deputation will not amount to reductiun of their rank. The

continued practice of sending senior cadre officers to State Forest Corporation claimed by the petitioners has a tampered history as respondent

No: 1 has not

maintained such practice by deputing junior cadre officers also to the Corporation, who are holding still higher posts. In the absence of fixed term

deputation or rules fixing the term, respondent No. 1 is free even to adopt the principle applied to State Cadre Officers fixing term of deputation in

the present case to the extent of 3 years only. As no rule obstructs fixing of term of deputation for IPS cadre officers. The Govt. is at liberty to fix a

reasonable term of period keeping in view the incidents of such service.

Further, the petitioners in the absence of rules cannot in a selfstyled manner deem themselves superior to the State Forest Service, which is an

independant cadre not held at any stage or declared by Govt. subordinate to IPS cadre. Therefore, the petitioners have no superior claim for

deputation and cannot solely lay hands on excadre posts in the State Forest Corporation, The petitioners can claim promotion ia their own field of

IFS cadre subject to selection and not outside it.

The Government decision to follow the practice of adjusting IFS officers in State Forest Corporation on higher posts to avoid stagnation

appears only hearsay, as denied in the objections supported by an affidavit therefore, in the absence of any material brought on record or referred,

we cannot draw an adverse inference against respondent No. 1 for producing the file prayed by the petitioners to look into the minutes on the

subject. Such policy decision cannot be maintained as a secret but supposed to be public. These observations lead us to hold that allegation of

favouritism brought in, in respect of M/s Salaria and Sharwardhy respondents cannot be given credit, because the petition fails on other grounds.

If he result is that the petitions titled above are dismissed as misconceivea and so also the connected CMPs. The stay ordered in both the

petitions stands vacated.

The files be consigned to records.