Decided on October 13,1999

R N Sharma Appellant
STATE OF JANDK Respondents


DOABIA, J. - (1.) THE appellant in this appeal was sent on deputation. An order to this effect was issued being order No. 216/ME of 1987 dated 26 -06 -1987. He was to join with Sher -i -Kashmir Institute of Medical Sciences, Soura, Srinagar. It is not in dispute that the appellant in fact had joined there. What is in dispute is as to whether he is entitled to deputation allowance or not. The case of the appellant before a learned Single Judge of this court was that as he was sent to an orgainsation which was not a State department, therefore, he was entitled to deputation allowance. As per him the bar of R -52 (D) of the Jammu & Kashmir Civil Service Regulations would be attracted only if he was sent on deputation from one Government department to another. The Sher -i -Kashmir Institute of Medical Sciences was not held to be a Government department. It was on this reasoning the learned Single Judge of this court allowed the writ. It was concluded that the appellant was entitled to deputation allowance. The fact that Sher -i -Kashmir Institute of Medical Sciences is an independent organisation is being disputed by the learned counsel appearing for the State. The appellant in pursuance of the judgment given by this court was paid the difference of salary in September, 1996. He has come to this Court. He seeks payment of interest. This is the subject matter of appeal preferred by him. This bears No. LPA (SW) No. 171/1995.
(2.) THE State is also feeling aggrieved against the judgment given by the learned Single Judge. It is urged - (i) that the Institute in question is part and parcel of the Government; (ii) that in terms of Regulation 42 (D) of the J&K Civil Service Regulations, the writ -petitioner was not entitled to any deputation allowance; (iii) that only Doctors who have been selected and appointed by the Institute are entitled to higher emoluments and not those who are sent on deputation; (iv) that the respondent/writ -petitioner is not entitled to any deputation allowance and he can claim only that salary which he was getting as an employee of the Health Department.
(3.) THE learned counsel for the appellant has also urged that had he been working with the State Government, then he would have been permitted private practice. This is not being allowed to a Doctor who is working in the said Institute. After having heard the learned counsel for the parties, we are of the opinion that so far as the argument of Mr. Dubey is concerned that is devoid of merit. The Government letter dated 21 -09 -1989 is a complete answer to the argument which is being raised by the learned counsel for the State. In this letter it was observed: ''Government of Jammu and Kashmir General Administration Department. No. GD (Ser) KAS/H/ Sgr dated 21 -09 -1989. The Administrative Officer (Per) S.K. Institute of Medical Sciences, Srinagar. Sub: Deputation of Prof. R.N. Sharma to SKIMS Sir, I am directed to refer to your letter No. SKIMS/Per/2638/89 -8859 dated 01 -08 -1989 regarding the above subject and to say that as per standard terms of deputation contained in the J&K CSR, a deputationist will have an option either to get his pay fixed on the deputation post under the operation of the normal rules or to draw pay of the post held by him in his parent department plus a deputation allowance. As per rule 52 -C (iii) of the J&K CSR an option exercised in this behalf shall be final except that on each occasion when such an employee receives Performa promotion in his parent Department or is reverted to a lower grade in the parent department or is appointed to another grade in the new department or there is a revision of pay scales in his parent department a fresh option shall be allowed to him. In case the doctor has not given any option for drawing pay of the post held by him in his parent department he shall be admissible to get the pay of the deputation post in which event he would not be admissible to draw any deputation allowance. Yours faithfully Sd/ - Under Secretary to Government General Administration Deptt." ;

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