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2002 DIGILAW 380 (JK)

Mehraj-ud-Din Khan v. State Of J. &K.

2002-12-05

SYED BASHIR-UD-DIN

body2002
1. Petitioner, an Executive Engineer of Rural Engineering Wing of the Rural Development Department of the Government on transfer from Kargil was transferred vice Respondent No.7 as Executive Engineer, REW, Anantnag vide Government order No:261- GR (RD) of 2002 dated 24-10-2002. However, this order was withdrawn by the Principal Secretary to Government, Rural Development Department vide Government order No:278-RD of 2002 dated 18-11-2002. This order (Annexure-F) is impugned in the writ petition on grounds alleged in the petition. Along with the writ petition CMP No: 2537/2002 was moved for seeking stay of the impugned order and thereby allowing petitioner to work as Ex-Engineer,REW, Anantnag. At motion stage, the court issued the following order on 22-11-2002, in the main as also in the interim matter;- "Mr. A.M. Dar, Adv, for petitioner, Issue notice to the respondents for filing objections. Issue notice in the CMP also. In the meanwhile, the operation of the impugned order No :278-RD of 2002 dated 18-11-2002 is stayed, till next date before the bench. The order shall however be subject to objections of the other side and shall be subject to amendment /alteration on motion. 2. "Learned counsel for the petitioner to take steps for effective service." However, the respondent No.7 Who was on caveat moved an application for vacation / modification of the above court order. The counsel for the respondent No.7 complains that despite having moved caveat, he was neither served with the notice in the matter nor at all heard and yet the impugned order was passed. It appears that the caveat was not brought to the notice of the Court when the impugned order was passed. But all the same having noticed the caveat and the motion/ objections on record for amendment / alteration of the initial interim direction, the parties were heard on the entire gambit of the interim relief prayed for. 3. Petitioner, a resident of Kargil served as Executive Engineer, REW at Kargil for long 13 years. He developed a serious health problem and sought transfer to the Valley seven filed a writ petition 962/99, which was disposed of on 3-11-1999 with direction to respondents to consider the case and take a decision thereto. He was examined by the Medical Board of the Government of Jammu and Kashmir and it was noted that the person of Shri M.D. Khan, "has clinical presentation suggestive of prinzemetal™s variant angina. He was examined by the Medical Board of the Government of Jammu and Kashmir and it was noted that the person of Shri M.D. Khan, "has clinical presentation suggestive of prinzemetal™s variant angina. He is advised to report to the department of cardiology Medical College hospital Srinagar/SKIMS Sora Srinagar ...." And was further advised among other things to avoid stay at high altitude. The Government, "on medical and humanitarian grounds," transferred and .posted him as Executive Engineer, Anantnag vice Mr. Nazir Ahmad sofi, Respondent No.7, who was directed to sop posting with the petitioner as Executive Engineer, REW Kargil (order dated 24-10-2002,(Annexure-C). Annexures D and E exfacie indicate that the petitioner assumed charge at Anantnag from 26-6-2002 (though not as per prescribed format) and at the same time complained to Director Rural Development Department Srinagar, that his predecessor in officer at Anantnag (Respondent No.7) used un-parliamentary language against him and threatened him to use anti social elements against him (Annexure-H). The Government subsequently on 18-11-2002 has withdrawn the order and attached the petitioner with Director Rural Development Department Kashmir Srinagar. 4. Ld. Counsel for the petitioner refers Annexure-G, Which appears to be an interim direction of the Ld. Single bench, requiring the parties to maintain status quo in writ petition No.1345/2002 and CMP No: 2399/2002. However, neither the nature nor the subject of this writ petition of the CMP, is indicated. It is not also shown if this direction was within the knowledge of respondents. In any case, the direction simple says that the parties shall maintain status quo for one week. Whether this order was communicated to other side and by whom it was to be observed, is not clear. 5. Respondent No.7, the successor in office of petitioner at Anantnag has submitted that the order was withdrawn/modified on his presentation, because he had just eight months to retire and having regard to his age it would cause great hardship to him if he was to work at Kargil when more so at the fag end of his service when he is completing his papers for retrial benefits. His representation to the Government was accepted and order was withdrawn. 6. The counsel for respondents Mr. His representation to the Government was accepted and order was withdrawn. 6. The counsel for respondents Mr. M.H. Attar has also made submission in line with the objections and further states that the petitioner™s order of posting to Anantnag which has been subsequently withdrawn is not an order which is either in the interest of public or in the interest of administration. Instead the order itself says that it has been passed" on medical and humanitarian grounds" as the petitioner has worked at Kargil for more than 13 years. By withdrawal of this order, no public or administrative interest has suffered and therefore, petitioner has no right to challenge the order of withdrawal (Annexure-F) of such order passed on ground personal to petitioner. (Annexure-C). 7. The Government and its officials including those of Rural Dev. Departments have not appeared to contest, possibly as the arrangements are reported not in place for attending the cases filed on behalf of or against the Government and its officials. Be that as it may, the interim direction in the matter cannot await such arrangement to come about, of which arrangement signes to come by are far off. 8. On consideration, having regard to the totality of facts and circumstances of this case, it is a fact that petitioner™s order of transfer and posting to Anantnag is purely on medical and humanitarian grounds and not the least in the, interest of administration or public interest. Withdrawal of such an order by subsequent impugned government order is not equally shown in the interest of administration or public interest. The order simply says that it has been passed to comply with the desire of Minister of Rural Dev. Department. Equally is the consideration that respondent No.7 is retiring within eight months and cannot at such age at the peak of winter be asked to serve at Kargil when even the rules/ circulars on the subject of transfer to Kargil and Leh, do not permit such a course. 9. Looking at the problem from any angle, it appears that the petitioner and the respondent No.7 are fighting it out in between themselves, who among the two is to hold the post of Executive Engihneer, REW Anantnag and for the purpose have not placed the matter in ture colour and spirit before the competent authority/ government. 9. Looking at the problem from any angle, it appears that the petitioner and the respondent No.7 are fighting it out in between themselves, who among the two is to hold the post of Executive Engihneer, REW Anantnag and for the purpose have not placed the matter in ture colour and spirit before the competent authority/ government. On one hand a person with serious cardio health problem is desperate to retain the posting at Anantnag and on the other hand the person with just 8 months to go on superannuation, is trying his every bit to clinge and hang on to the post at Anantnag. Keeping either at the place would serve neither any public interest nor any interest of administration. It appears that the post of Executive Engineer, REW Anantnag is reduced to personal property by the two officers, engaged in mud slugging duel to show each other down. In the process, Interest of public are to suffer abd the measures need to be taken to remedy the situation . The Government would do well immediately to consider the matter and pass orders appointing some suitable hand and giving charge of the post .of Executive Engineer REW Anantnag to a third person (Ex.Engineer,REW), while keeping out these two rival contenders to the post of REW Executive Engineer , Anantnag Neither is fit enough to hold the post. This direction just and proper as it is, is passed in the tell tale facts and circumstances of the case to serve greater public interests. The Government shall comply with this direction within two weeks. Copy of the order besides being sent in the normal course, shall be faxed to principal secretary to Government Rural Development Department at Jammu for compliance. The compliance shall be reported to court.