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2003 DIGILAW 200 (JK)

Mohd. Ismail Parray (Dr. ) v. State Of J. &K.

2003-06-13

NISAR AHMAD KAKRU

body2003
1. The facts leading to the filing of this writ petition are that the petitioner Associate Professor in the Jammu and Kashmir Institute of Management and Public Administration Services (IMPA for short) was posted as Joint Director vide Government Order No. 1904-GAD of 1997, dated 6.12.1997. In the year 1999 he was sought to be replaced by respondent 3 vide Government Order No. 423-GAD of 1999, dated 5.4.1999. Being aggrieved, the order became subject matter of the writ petition. During the pendency of the writ petition another order was issued bearing No. 1242-GAD of 2000, dated 19.10.2000 appointing respondent 5 as Jt. Director. The said subsequent event constrained the petitioner to lay a motion for amendment of the writ petition which was allowed, consequently, this amended writ petition, questioning both the orders of deputation aforementioned. 2. To succeed in the cause reliance is placed by learned counsel for the petitioner on the Resolution adopted by the Executive Council in its 6th meeting held on July 10th, 1990 which envisages filling up of the post in a regular way and not by deputation (See page 7 of amended writ petition). On the strength of the said resolution it is contended that deputation of respondents 3 and 5 is contrary to law. The argument needs no deliberation for the simple reason that the earlier decision of Executive Council stood modified by Executive Council itself and exercise of such power is not unknown to law, for, the authority which has the power to make an order has also the power to add, amend or rescind the same. In this backdrop, the contention that the impugned order violates the resolution of 6th meeting is bereft of any substance. Since subsequent resolution is not questioned before me, therefore, I refrain from expression of opinion with respect to its legality or otherwise. Suffice it to say that the decision taken in 6th IMPA meeting no more governs the field. Needless to say that this observation shall not debar the Executive Council to reiterate its earlier decision taken in the 6th Meeting, if the exigencies of situation demand so. 3. Next it was contended by learned counsel for the petitioner that the petitioner was relieved whimsically and arbitrarily in contravention of rules which has the effect of rendering the impugned order of transfer liable to be quashed. 3. Next it was contended by learned counsel for the petitioner that the petitioner was relieved whimsically and arbitrarily in contravention of rules which has the effect of rendering the impugned order of transfer liable to be quashed. This argument calls for consideration in the light of observations of the Division Bench made in LPA No. 47/2000, decided on 1.8.2000. The relevant portions may be extracted: "....We at this stage do not propose to go into the question whether the relieving of the respondent (Writ petitioner) was in accordance with Rules or not. The fact remains that the order impugned in the writ petition was implemented. If the relieving was not in accordance with law, that can be argued before the learned Single Judge...." ".....This appeal is disposed of accordingly alongwith the connected CMPs. We, however, leave it open to the respondent to satisfy the learned Single Judge in course of the hearing of the writ petition, if he so desires that the implementation of the order was not in accordance with the rules...." 4. Before addressing to the matter on the touchstone of above-said observations the relevant facts gathered from the supplementary affidavit and its enclosures filed by the petitioner on 1.7.1999 and the reply filed by Shri M.L. Koul, the then Director General IMPA on 12.8.1999 call for a mention. It is seen from the notice bearing No. FC (PS) MN/99, dated 3.4.1999 forming annexure pv to the supplementary affidavit of the petitioner that a meeting was slated on 7.4.1999 at Jammu. The meeting was taken but remained inconclusive, therefore, adjourned to the next day viz 8.4.1999. The parties are not at variance on the count that on 8.4.1999 the petitioners presence was required and he did participate in the meeting, yet he is said to have been relieved at Srinagar on 8.4.1999 notwithstanding the fact that he was undisputably discharging the official functions on the said date. What an amazing stance. It needs a mention that the rule of law requires an authority to act honestly and if he has acted contrary to reason the action amounts to dishonesty. Whether authorities have acted fairly or not, the opinion has to be framed on the facts and circumstances of the particular case. In a situation where rules are not silent, it is appropriate for the Court to glance through the rules to arrive at a just conclusion. Whether authorities have acted fairly or not, the opinion has to be framed on the facts and circumstances of the particular case. In a situation where rules are not silent, it is appropriate for the Court to glance through the rules to arrive at a just conclusion. To achieve the objective, it is advantageous to refer to regulation 39 of the Jammu and Kashmir Civil Service Regulations which may be extracted: "39. Unless for special recorded reasons (which must be of a public nature), the authority under whose orders the transfer takes place, permits or requires it to be made in any particular case, elsewhere or otherwise, the charge of an office must be made over at its headquarters both the relieving and relieved officers being present." 5. A plain reading of the Rule makes it manifestly clear that charge of an office has to be made over at the headquarters in presence of relieving and relieved officer. Situations are conceivable where an officer/official plays hide and seek with a view to prolong his stay at a particular place and post on one or the other pretext despite the fact that the relieving/joining may not brook the delay. If that be so departure from Regulation 39 is not impermissible but the authority shall have to record the reasons in the contemporaneous documents. What were those reasons which prompted the respondents to relieve the petitioner in his absence from the headquarters, no explanation much less tenable one is given in the counter. In spite of the fact that the returns filed in opposition to the writ petition are silent about recording of the reasons yet the respondents were granted opportunity to substantiate adherence to the rules on the basis of contemporaneous record but despite lapse of months together, record relevant to relieving of the petition was not produced, making a room for an inference that action of relieving the petitioner at Srinagar on a date when he was discharging his official duties at Jammu is neither fair nor reasonable. One could understand if stance of the respondents would be that the petitioners continuation was detrimental to be interests of the administration. One could understand if stance of the respondents would be that the petitioners continuation was detrimental to be interests of the administration. Such is not the case and fact of the matter is that his continuation for a couple of days more could have been more beneficial for the department because such continuation would enable the petitioner to brief his successor about know how of the job on the basis of experience he has gained during the period he held additional charge of the post of Joint Director, IMPA from August 1990 to February 1992 and full-fledged charge of the post of Joint Director from 1997 to 1999. 6. In the background of aforementioned factual narrative it becomes manifestly clear that it is not a transfer simplicitor. The order impugned is more vindictive than just and fair, conceived with a mala fide motivation and coupled with the fact that relieving of the petitioner was managed without there being any urgency amounts to abuse of authority in the given facts and circumstances of this case, fall out being, quashing of the impugned order and I would unhesitatingly do so but the difficulty is that neither the respondent 3 nor the respondent 5 mans the post of Joint Director IMPA at present and it is someone else brought on deputation who mans the post but is not a party to the lis, therefore, some alternative mode has to be evolved so as to do justice between the parties and the purpose can be achieved by directing the Respondent-model employer to address to the issue at its own level for undoing the wrong done to the petitioner. Accordingly, the respondents 1, 2 and 4 are directed to consider the petitioner effectively for adjustment/posting on the post of Joint Director IMPA with promptitude. 6. Disposed of. No order as to costs.