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2002 DIGILAW 225 (JK)

State & Mohd. Hussain v. Ali Mohd. Wani & State

2002-07-26

S.K.GUPTA, T.S.DOABIA

body2002
Respondent writ petitioner questioned the legality of two Government orders. These were issued on 26th Feb97 and 30th Dec. 97. These have been, placed on the record of writ petition as Annexure C and E. Both the orders stand quashed by a learned Single Judge of this Court. The State as also respondent No. 3 in the writ petition i.e. Mohd Hussain, have preferred two appeals under Clause 12 of the Letters Patent. 2. Respondent writ petitioner submitted that he is an employee of Vigilance Organisation in the State of Jammu and Kashmir. He joined this department as a Steno Typist. Later on, he was promoted as Junior Stenographer. Two other persons namely Nazir Ahmad Bhat and A.K. Bakaya were also promoted as Junior Stenographers. Respondent writ petitioner submitted that a tentative seniority list of ministerial staff was circulated on 27th Aug 91, In this list, his name figured at, Serial No. 5. According to the respondent writ petitioner this tentative seniority list remained as it is and no final seniority list was issued. This is one aspect of the matter. The other aspect of the matter is that respondent No. 3 to the writ petition i.e. Mohd Hussain, Junior Stenographer was borne on the cadre strength of Government Medical College, Srinagar. He was later on transferred to the office of Custodian Evacuee Property. Thereafter, he was adjusted in the office of Vigilance Commissioner against an available post. This happened on 17th Oct 86. His lien in the parent department was to cease with effect from that date. The further fact is that as Mohd Hussain was deemed to have been absorbed in the department w.e.f. Oct 86 as Junior Stenographer, he came to be placed over and above the respondent writ petitioner. A representation was preferred by the respondent writ petitioner, This came to be rejected on 30th Dec 97. The order by which respondent No,3 to the writ petition Mohd Hussain came to be -adjusted is Annexure C. with the writ petition. The prayer of respondent writ petitioner that he should be placed over and above Mohd Hussain was declined vide Annexure E, which order, as indicated above was passed on 30th Dec. 97. Both these orders were under challenged. The prayer of respondent writ petitioner that he should be placed over and above Mohd Hussain was declined vide Annexure E, which order, as indicated above was passed on 30th Dec. 97. Both these orders were under challenged. These stand quashed by a learned Single Judge of this Court, The basis for quashing these orders was that there was nothing on the record to indicate that absorption of Mohd Hussain in Vigilance Organisation was in the Public interest. It was urged that unless and until the absorption of a person is in public interest, he cannot claim seniority w.e.f, the date he came to be adjusted on an equivalent post in another department. It was this reasoning which prevailed with the learned Single Judge. What has been observed and quoted by the learned Single Judge is:--- i. That there is nothing on the record to suggest the transfer of respondent No. 3 in the Petition was in the public interest; ii. That the record which was produced in court indicated that it was Mohd. Hussain who requested the Commissioner Vigilance department to absorb him in the said department and to consider his seniority in accordance with the Rules; iii. That as his request was not being considered, he sought repetriation on 16th Dec. 93; iv. That the lien of Mohd Hussain was kept alive till 26th Feb97 in the parent organisation was also taken note of. 3. It was thus concluded that the absorption of respondent No. 3 in the writ petition was not in the public interest and therefore, he could not claim seniority over and above the writ petitioner. The learned Single Judge placed reliance on a decision of the Supreme Court reported as V.S. Murty and Others v. The Deputy Chief Accounts Officer and Others, AIR 1983 SC 403. It is this view expressed by the learned Single Judge which is the subject matter of challenge in these Appeals. As indicated above, one appeal has been preferred by the State and the other has been preferred by aforementioned Mohd Hussain. 4. The learned counsel for the appellant State submits that if order dt. 17th Oct 86 i.e. Government Order No. 600-GD of 1986 is taken into consideration, then it becomes clear that the transfer of Mohd. As indicated above, one appeal has been preferred by the State and the other has been preferred by aforementioned Mohd Hussain. 4. The learned counsel for the appellant State submits that if order dt. 17th Oct 86 i.e. Government Order No. 600-GD of 1986 is taken into consideration, then it becomes clear that the transfer of Mohd. Hussain from the office of Custodian Evacuee Property, Kashmir to the office of Vigilance Commissioner was against an available post of the Junior Scale Stenographer and this order was passed in the-interest of administration. It is submitted that once there is a-stipulation in the order that an action is being taken in the interest of administration, then that action would necessarily be in public interest. It is further submitted, that the preamble of the order dt. l7 the Oct 86 provides "In the interest of administration, sanction is accorded to the transfer/adjustment of following Stenographers from and to the Departments noted against each with immediate effect..." The name of Mohd Hussain figures at S. No. 5 in the above order. He, as indicated above has been shown to have been transferred from the office of Custodian Evacuee Property, Kashmir to the office of Vigilance Commissioner against an available post of Jr. Scale Stenographer. It is accordingly submitted by the appellant State that, Mohd Hussain should be deemed to have been transferred to the Vigilance Organisation in the interest of administration and this action should have been recognised as an order having been passed in public interest, The mere fact that the lien of Mohd Hussain was not terminated in the parent department, it is urged would be of no consequence. Similar plea has been taken by appellant Mohd Hussain. He submits that respondent writ petitioner was working as Constable in the Police Department when the appellant was working as Junior Scale Stenographer and had an experience of five years. It is submitted that respondent writ petitioner came in the Vigilance Organisation from the Police Department. His status was converted from that of a Constable to that of Junior Scale Stenographer. At that time, the appellant Mohd Hussain submits that, he had already assumed the duties of Junior Scale Stenographer. It is accordingly submitted that the case of respondent writ petitioner was in no way better. His status was converted from that of a Constable to that of Junior Scale Stenographer. At that time, the appellant Mohd Hussain submits that, he had already assumed the duties of Junior Scale Stenographer. It is accordingly submitted that the case of respondent writ petitioner was in no way better. As indicated above, it is submitted by the appellant that respondent writ petitioner was a Constable and came on deputation to the Vigilance Organisation. 5. When these appeals were taken up, both the sides were called upon to indicate as to whether there is any specific Rule dealing with the fixation of seniority in such matters. This was because in V.S. Murtys case, referred to above, certain Rules under which seniority is to be governed were interpreted. This aspect of the matter was not elaborated by any of the parties. 6. The question which requires consideration is whether Mohd. Hussain is entitled to rank over and above the respondent writ Petitioner and whether the wording used in the order dt 17th Oct86 i.e. "In the interest of Administration sanction is accorded" would be synonymous with the term `public interest This aspect of the matter should not detain us. From the decision on which reliance has been placed by the learned Single Judge be examined. In para 20 of the judgment which has been quoted by the learned Single Judge, it has been observed that "...if the transfer was on administrative ground from one department or office to another, the seniority of the transferred Government servant shall be fixed with reference to the date of his first appointment in the former, department or office from where he is transferred. If on the other hand, the transfer is at the request of the concerned Government servant, his seniority will be determined with reference to the date of his appointment in the department, to which he is transferred......." The afore mentioned observations come to the assistance of the State counsel and also the counsel who has appeared for Mohd Hussain. Order dt. l7th Oct 86 which has been placed on the file of LPA 675/99 as Annexure A, has to be read as it is. This order makes mention of the fact that as many as nine persons were transferred in the interest of administration. Order dt. l7th Oct 86 which has been placed on the file of LPA 675/99 as Annexure A, has to be read as it is. This order makes mention of the fact that as many as nine persons were transferred in the interest of administration. If this be the situation, then the observations of the Supreme Court made in VS Murtys case, which stand quoted above, would come to the rescue of the appellant Mohd Hussain. He would be entitled to get his seniority determined by taking into consideration the service rendered in his erstwhile department. The mere fact that his lien was not terminated would be of no consequence. The lien of a Government servant has to be retained in some department. This was terminated vide order Annexure C with the writ petition i.e. the Government order passed on 26th Feb97. The termination of lien in any way does not affect the issue of seniority. The seniority is to be determined with reference to the contents and the language used in the order dt. l7th Oct 86. The said order has been passed in the interest of administration. In view of the above we find merit in the submission made by the counsel for the State and the appellant. Both the appeals shall accordingly stand allowed the judgement under appeal is set-aside. Disposed of as such.