Repatriation of long-serving deputationists with NOC, while similarly situated absorbed, is arbitrary.

The seven petitioners were initially appointed as Junior Agriculture Assistants (JAA) in the Agriculture Production Department between 1986 and 2002, possessing a B.Sc. Agriculture degree

They were subsequently deputed to the District Rural Development Agency (DRDA) / Rural Development Department (RDD), where they served as Assistant Project Officers (APOs) and later as In-charge Block Development Officers (I/C BDOs) for 15-17 years

During their deputation, the Agriculture Production Department provided No Objection Certificates (NOCs) for their absorption into the RDD

The petitioners contended that individuals directly appointed to DRDA, including those holding clerical posts, were absorbed into RDD and promoted as BDOs, while they, despite longer service and regular selection through the Services Selection Board (SSB), were denied similar treatment and stagnated as JAAs

Subsequently, vide Government Order No. 45-RD & PR of 2019 dated February 12, 2019, the petitioners were repatriated to their parent Agriculture Production Department to the post of JAA

Furthermore, Government Order No. 81-RD&PR of 2019 dated February 21, 2019, sought to replace petitioners 2 to 6 with private respondents as BDOs

The respondents argued that the petitioners, as deputationists, had no vested right to absorption, and the post of BDO is governed by the Jammu & Kashmir Rural Development (Gazetted) Recruitment Rules, 2003 (SRO 285 of 2003), which does not provide for appointment by transfer or absorption from an outside department

1. Whether the petitioners, having served for 15-17 years on deputation in DRDA/RDD as APOs/I/C BDOs and with NOCs from their parent department, are entitled to absorption in RDD, especially when similarly situated employees were absorbed and promoted

2. Whether the Government Orders for repatriation (No. 45-RD & PR of 2019) and replacement (No. 81-RD&PR of 2019) of the petitioners are sustainable in law, given the long period of service and absorption of similarly situated individuals

The court applied the general principle that a deputationist does not have a vested right to claim absorption

However, it also relied on the constitutional principles of equality before law and non-discrimination enshrined in Articles 14 and 16 of the Constitution of India, asserting that denial of similar treatment to identically situated persons, where a policy for absorption has been adopted by the Government, would be arbitrary

The court acknowledged that while the Jammu & Kashmir Rural Development (Gazetted) Recruitment Rules, 2003 (SRO 285 of 2003) govern BDO appointments, the State's executive power to absorb a category of employees and modify the cadre structure through Cabinet decisions and Government Orders (e.g., Government Order No. 233-RD & PR of 2015) means it cannot discriminate between identically circumstanced employees

The court implicitly invoked the doctrine of legitimate expectation by noting that the NOCs from the parent department removed a substantive impediment to absorption

The court found that while a deputationist generally lacks an inherent right to absorption, the present case presented "peculiar facts"

It highlighted that a policy decision to absorb DRDA employees into RDD had been implemented, leading to the absorption and promotion of APOs and other functionaries who were similarly situated to the petitioners

The court emphasized that the Agriculture Production Department had granted NOCs for the petitioners' absorption, removing the substantive impediment of a lien in the parent department

It reasoned that the State, by exercising its executive power to absorb a category of employees and modify the cadre structure, could not then discriminate against identically circumstanced employees like the petitioners

The court viewed the repatriation of the petitioners after 15-17 years of service, while retaining and promoting others similarly situated, as "manifestly arbitrary" and violative of Articles 14 and 16 of the Constitution of India

It concluded that the respondents' argument about violating Recruitment Rules was unconvincing given that the government itself created new posts and categories for absorption

It concluded that the Government Order No. 45-RD & PR of 2019 dated February 12, 2019, and Government Order No. 81-RD&PR of 2019 dated February 21, 2019, insofar as they related to the petitioners, could not be sustained in law and were quashed

The respondents were directed to absorb the petitioners in the Rural Development Department in accordance with the policy reflected in Government Order No. 233-RD & PR of 2015 and allied decisions, treating them on par with similarly situated APOs who had already been absorbed

The petitioners are to be assigned seniority in RDD with notional effect from the date their immediate juniors were absorbed and considered for promotion to the post of Block Development Officer (if eligible) along with their batchmates, with notional seniority and consequential benefits (monetary benefits prospectively from the date of judgment)

This exercise must be completed within three months