Employee Absorbed Into Borrowing Organization Whose Lien Is Terminated Cannot Be Repatriated To Parent Organisation- J&K&L HC Observes

A Jammu & Kashmir & Ladakh High Court Bench of Justice Wasim Sadiq Nargal has made clarifications regarding the timeframe for repatriating an employee to his parent department after deputation. In that context, the Court observed that "As per Regulation, 21, 37-A, a person after his permanent absorption in the borrowing department/organization and after his termination of lien in the parent organisation cannot be repatriated to his 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." 

Counsel Rohit Kohli appeared for the appellant, while Counsel MA Bhat appeared for the respondent. 

In this case, two writ petitions were filed by the petitioner, seeking to overturn an order issued by the respondents that resulted in the petitioner being sent back to the State Forest Corporation.

In this case, the petitioner was initially appointed as a Helper in the J&K State Forest Corporation in 1996 but later went on deputation to work in the office of the Minister of Food Supplies and Transport. Subsequently, the petitioner began working as a Junior Assistant in the office of the Chairman of Jammu and Kashmir State Road Transport Corporation (JKSRTC). The petitioner requested permanent absorption in JKSRTC, which was granted with a "No Objection Certificate" from the State Forest Corporation. Over time, the petitioner received various promotions within JKSRTC.

However, the government later ordered the petitioner's repatriation to the State Forest Corporation after 21 years of deputation and 8 years of permanent absorption.

The petitioner challenged this order, arguing that they were permanently absorbed in JKSRTC and, therefore, the repatriation was unlawful. The respondents countered by stating that the petitioner was never formally absorbed, and the approval given by the Chairman of JKSRTC was only consent and not an official order. The respondents also claimed that the promotions earned by the petitioner were unwarranted and a result of political influence.

On hearing the parties and perusing the applicable statutory provisions, the Court observed that as per Civil Services Regulations, deputation cannot exceed beyond a maximum period of 4 years. In light of the same, it was said that, "in the present case, since the petitioner has continued for more than 26 years in JKSRTC as on date, it cannot be construed that the petitioner still continue to be on deputation, when the petitioner stood absorbed permanently way back in 2010 and the respondents never raised any objection in this regard. Even if no formal order was issued by the competent authority as has been pleaded by the respondents, then for such discrepancy or deficiency on part of the respondents, the petitioner can in no way be penalized and be made to suffer more".

Referring to the peculiar facts and circumstances of the case, the Court held that the petitioner could not be repatriated for no fault of his, as it would result in his being an employee neither of the parent department or the borrowing department. 

Subsequently, the Court held that the impugned order dehored the rules and was illegal. In that context, it was said that, "the legal position which emerges in the present case that once an employee on deputation is absorbed in the borrowing department/organization and his lien in the parent department/organization stood terminated, his subsequent repatriation will be dehors the service rules and Civil Services Regulations and is not sustainable in the eyes of law being illegal. The order impugned, whereby the petitioner has been ordered to be sent back to the State Forest Corporation is dehors the rules and the same is illegal." 

Cause Title: Ravinder Kumar v. State of J&K and Ors.

Click here to read/download the Judgment