JUDGMENT
Nisar Ahmad Kakru, J.
1. The writ petitioner has called in question the appointment of a deputationist Respondant 4 herein by his borrowing department from the post of an Assistant Legal Remembrance Law Department to the post of the Director Defence Labour Procurement and seeks the following reliefs:
(i) a writ in the nature of certiorari be issued in favour of petitioner against respondents for quashing Government Order No. 1203-GAD of 2006 dated 28.09.2006 to the extent of serial No. 17 (respondent No. 4)
(ii) a writ in the nature of quo-warrant to be issued in favour of petitioner and against respondent No. 4 prohibiting from him discharging functions or duties of the post of Director Defence Labour.
(iii) a writ in the nature of mandamus be issued in favour of petitioner against respondent No. 1 to 3 to accord consideration to petitioner in accordance with SRO 148 of 1977 (J&K Defence Labour Subordinate) Services Recruitment Rules 1977 for the post of Director Defence Labour and promote him accordingly.
2. Going by usual manner the reliefs prayed for in the writ petition need to be appreciated in seriatim but such course is unworkable, for, reliance by the petitioner on the Jammu and Kashmir Defence our Procurement (Subordinate) Service Recruitment Rules. 1977 (hereinafter called Subordinate Service Rules 1977), is absolutely misplaced because the Director is a gazetted and his appointment is governed by the Jammu and Kashmir Defence Labour Procurement (Gazetted) Service Recruitment Rules 1979 (for short Gazetted Recruitment Rules 1979). In that view of the matter relief sought in Clause (iii) of the writ petition extracted above is declined.
3. In respect of prayer (i) extracted above, it is contended by learned Counsel for the petitioner that the appointment by deputation is violative of the rules. To dwell upon the contention rule 4 and schedule appended thereto of Gazetted Recruitment rule 1979 assumes significance which is extracted:
Qualification and method of recruitment. — (1) No person shall be eligible for appointment to any post in any class, category or grade in the service unless he possesses the qualifications as laid down in the schedules and fulfills the other recruitment as provided in the rules and orders for the time being in force.
(2) Appointment to the service shall be made in the manner as indicated in the schedule.
SCHEDULE
_________________________________________________________________________________
Class Cate- Designation Gra- No. Quali- Method of Recruitment.
gory de of fication.
po- For
sts Direct
Recruit-
ment
__________________________________________________________________________________
1 2 3 4 5 6 7
__________________________________________________________________________________
I Director 750-1350
Defence
procurement i) By promotion from class II
From amongst the persons
having at least 15 years service
in the class.
OR
ii) By deputation from outside
the cadre.
II Labour 750- ....
Procurement 1350
By promotion from Assistant
Labour Procurement Officer/
Superintendent of defence
Labour having at least 5 years
service in that class and are
Matriculates at least.
4. Intent apparent on the face of the schedule appended to rule 4 reveals that the method of appointment to the post of the Director is by promotion/selection or deputation. Thus appointment to the post of the Director postulates a decision by the competent authority; to’ opt for one of the modes prescribed by the schedule and the competent authority in this case is the government which has opted for the mode of deputation. Such option is not a departure from ‘the’ rules because appointment by deputation is one of the modes envisaged by the rules. Thus prayer (i) also fails.
5. This brings me to the prayer (ii) of the writ petitioner, seeking a writ of quo warranto. Contention calls for reiteration of the legal position spelt out in the preceding para, that the appointment by deputation is a mode envisaged by Gazetted service Rules 1979. Thus a permissible mode. Suffice it to say that the appointment of the respondent 4 being in consonance with the Rules, writ of quo warranto cannot be issued, accordingly relief is refused
6. Having deliberated upon the reliefs sought I would NOW LIKE TO deal with other contentions, one being that the respondent No. 4 lacks suitability for the post of the Director. To bring home the point it is averred that the petitioner has sufficient experience to procure the labour. The contention has to be considered in the light of the fact that for procurement of labour no specialization is required and anybody who is possessed of commonsense should be able to procure the labour. The contention is otherwise also untenable because experience to procure the labour is not a requirement in terms of the eligibility criteria prescribed by the rules of recruitment relating to the post of the Director. Yet another aspect of the matter, the petitioner is a matriculate who has entered the service on a lower rung whereas the respondent 4 is a law graduate and owes his entry to his performance in the competitive examination of the KCS (Judicial) conducted by the Public Service Commission which service is not excluded for purposes of deputation. Thus examining from any angle the petitioner is on no better pedestal as compared to the respondent 4. Moreover, the paramount consideration is the interest of administration and the Government having found the respondent 4 suitable for the post, the ground is untenable.
7. Contention is also raised, that one Mr. Bashir Ahmad Shah was appointed as Director even without having the requisite experience. The contention need not detain me because the instance, too remote in point of time is neither under challenge nor has it any bearing on the issue, therefore, I choose to refrain from expression of opinion. As regards lack of experience same does not have any support but then appointment contrary to the rules will not render the rule of deputation inoperative and unless mode of deputation is repealed no amount of instances of non adherence to the rules will make the rule of deputation invalid.
8. The impugned order is also challenged on the ground of mala fides sought to be justified by non adherence to the rules. To substantiate the contention it is contended that the mode of deputation has been introduced to the benefit of the respondent 4. The contention is completely answered by schedule appended to rule 4 of Gazetted Recruitment Rules which makes it manifestly clear that the deputation is a mode of appointment made validly by valid rules which are not under challenge and if at times appointments have been made by promotion that course will not invalidate the mode of deputation. It is apposite to notice that until now excepting the appointment of one Bashir Ahmad Shah the appointment to the post of the Director has been made by mode of deputation alone which fact is disclosed by the precedents of deputation averred by the petitioner in the writ petition itself. One can appreciate the eagerness of the petitioner to man a higher post but mode of appointment being the absolute discretion of the Government, it is for the Government to choose the mode between the two i.e. promotion/selection and deputation and it has chosen the mode of deputation. The power being available to the Government no ill will or mala fides are attributable to it. In addition to that the rule does not reserve any quota for in service officers and in absence of reservation of quota the petitioner cannot advance a ground of loss of chance of promotion to higher echelons of service because of application of mode of deputation. Thus appointment by deputation cannot be characterized as mala fide or arbitrary.
9. Indisputably a deputationist cannot lay a claim with the borrowing department for his transfer to a post other than the one he is deputed to, but until repatriation the borrowing department is within its powers to assign the duty to him and extract the work as per requirement, following any other course would render the borrowing department helpless and deprive it of its control over the deputationist and (here being no bar imposed by the rules against the transfer of a deputationist, the borrowing department can transfer him (o any other post and place provided such transfer is not prejudicial to the conditions of his service.
10. In the aforementioned backdrop, the writ petition fails which is dismissed alongwith CMP. No order as to the costs.