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2009 DIGILAW 503 (JK)

Muni Batool v. State

2009-10-23

MUZAFFAR HUSSAIN ATTAR

body2009
1. Government Order No.14-FST of 1988 dated 12.01.1988 is reproduced as under: Government of Jammu and Kashmir Forest Department Subject: Transfer of Junior Assistant-Miss Muni Batool from Wildlife to Forest Department. Government Order No.14-FST of 1988 Dated: 12-01-1988 Miss Muni Batool, Junior Assistant Wild Life Department is transferred to the office of Chief Conservator of Forests, Jammu. The Chief Conservator of Forests will locate a post in his office and draw her pay against the same. Miss Muni Batool, JA will report to CCF immediately. By order of the Government of Jammu and Kashmir. Sd/- Deputy Secretary to Govt. Forest Department The import and purport of said order is to be considered vis-a-vis service rules governing the petitioner. 2. Petitioner initially came to be appointed on ad hoc basis as Jr. Assistant for a period of three months in the Wildlife Department by Chief Wildlife Warden vide Order No.211of 1986-87 dated 10.02.1987 and in terms of Order No.110 of 1987-88 dated 03.09.1987 petitioner was adjusted as regular Jr. Assistant in the pay scale of Rs.800-1500. In terms of Order No.14-FST of 1988 dated 12.01.1988 the petitioner was transferred to the office of Chief Conservator of Forests, Jammu. The Chief Conservator of Forests was directed to locate a post in his office and draw salary of the petitioner. Petitioner was relieved by the Chief Wildlife Warden vide Order No.143 of 1987-88 dated 21.01.1988 on 15.01.1988. Vide Order No.1843-48/Bix 36 dated 22.02.1988, the Chief Conservator of Forests ordered that the petitioner will work as Jr. Assistant in receipt section in place of Mrs Kanwal Nain Kour. Thereafter in terms of office order dated 10.11.1989 the services of the petitioner alongwith one Abdul Hamid, Head Assistant was placed at the disposal of Administrative Officer, Forest Recoveries Jammu. The petitioner was allowed to subscribe to G.P.Fund in the Forest Department which is substantiated by annexure-G of the writ petition. In terms of Annexure-H, which in terms of para 10 of the writ petition is claimed to be seniority list issued by the Forest Department in respect of members of service borne on Jr. Assistant cadre of the service, petitioner figures at S.No.14. Petitioner has been held entitled to get first in situ promotion vide Forest Order No.22 of 1997 dated 21.11.1997, which order has been issued by the Conservator of Forests, W.Plan and Research Circle. Assistant cadre of the service, petitioner figures at S.No.14. Petitioner has been held entitled to get first in situ promotion vide Forest Order No.22 of 1997 dated 21.11.1997, which order has been issued by the Conservator of Forests, W.Plan and Research Circle. The petitioner, it appears, had made an application for fixation of her seniority, which resulted in issuance of communication from the office of Conservator of Forests, Working Plan and addressed to the Chief Wildlife Warden dated 08.08.1999. Perusal of the said communication reveals that the Chief Wild Life Warden was informed that the petitioner is working in Plan Circle. It is also brought to the notice of the Chief Wildlife Warden that the petitioner was initially appointed in the Wildlife Department and transferred to the Forest Department. The communication also states that the petitioner is holding her lien and promotion prospectus in parent department and request was made for fixing her seniority and also to call her back and her adjustment in the Wild Life Department. 3. Respondents have filed objections. In the objections it is admitted that the petitioner was initially appointed in Wild Life Department and thereafter in terms of Government Order she was transferred to the Forest Department. At para 9 of the objections it is submitted that para 10 of the writ petition relates to record and that record is not denied. It is further admitted in para 9 of the objections that place of posting of the petitioner shown in annexure-H is correct. However, it is further submitted that this would not amount to absorption of petitioner in the Forest Department. The claim of the petitioner that she has been appointed by way of transfer in the Forest Department is also denied by the respondents in the objections. The respondents have taken a stand that the petitioner has misinterpreted the orders. 4. Heard learned counsel for the parties. Considered the matter. 5. Rule 9 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 (For short `the Rules of 1956) provide that first appointments to a service or class may be made:- (a) By promotion from the same or by transfer from an other service or class, or (b) By direct recruitment, or (c) Partly by (a) and partly by (b). 6. Rule 2(j) of the Rules of 1956 provide for `Recruitment by transfer. 6. Rule 2(j) of the Rules of 1956 provide for `Recruitment by transfer. The said sub clause of Rule 2 provides that a candidate is recruited by transfer to a service when at the time of his first appointment thereto he is either a member or a probationer in an other service; 7. Rule 21 of the Jammu and Kashmir Civil Service Regulations (hereafter for short `the CSR) defines the Lien which means the title of Government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively. 8. Rule 22-D of the CSR defines the deputation allowance to be an allowance given in addition to pay to a Government servant who is deputed temporarily to work under an employer other than the State Government, like Corporations, Companies, Autonomous Bodies, Central Government or other State Governments. 9. Rule 37-A of the CSR provides that a Government servant on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post. 10. Rule 52(b) of the CSR provides that permanent transfers from one cadre/Department to another will not be treated as deputations. 11. The petitioner admittedly was appointed in Wild Life Department but the Government vide Order dated14-FST of 1988 dated 12.01.1988 transferred the petitioner to Conservator of Forest Officer, Jammu. In the said order it was also directed that the Conservator of the Forests will locate a post and draw the pay of the petitioner. 12. Perusal of the said order reveals that the petitioner has not been ordered to be deputed from Wildlife Department to Forest Department. In terms of Rule 9 of the Rules of 1956 the power to appoint a person is available to the Government/Authority even by transfer from one service or class to other service or class. Rule 8 of the Rules of 1956 provide that all appointments to any service or class shall be made by the Government or by an authority empowered by the Government in this behalf. Rule 8 of the Rules of 1956 provide that all appointments to any service or class shall be made by the Government or by an authority empowered by the Government in this behalf. The claim of the petitioner that she has been appointed by transfer by the Government in terms of order No. 14-FST of 1988 dated 12.01.1988 when looked in the back drop of Rule 8 and 9 of Rules of 1956 do suggest that the petitioner has been appointed by the transfer in the Forest Department. The subsequent developments which have taken place in the department vis-a-vis rights of the petitioner, by allowing her to subscribe to the G.P.Fund, recording her name in the seniority list, allowing to her first insitu promotion, do lead credence to the fact that the petitioner has been after transfer from Wildlife Department accepted and admitted to be Government employee of Forest Department. The petitioner in such circumstances has to get all the service benefits which may accrue to her as an employee of Forest Department including fixation of seniority. The petitioner continues to be in the Forest Department from the year 1988, and even an interim order was passed by the Court on 17.11.1999 directing the respondents to allow the petitioner to continue in the Forest Department. 13. In terms of Rule 37-A of the CSR the moment the petitioner was transferred/appointed from Wildlife Department to the Forest Department she has acquired lien in the Forest Department and her lien in the Wildlife Department has automatically ceased to exist, because an appointee cannot hold two liens simultaneously. The Government order tested on the provisions of the law and the developments which have taken place when the petitioner was transferred to the Forest Department do show that the petitioner was appointed by way of transfer in the Forest Department. The communication dated 08.08.1997 cannot thus adversely affect the service rights of the petitioner and requires to be ignored in view of Government Order No.14-FST of 1988 and communication of Under Secretary to Government, Forest Department dated 26.11.1998. 14. The stand of the one of the respondents that the petitioner is not a member of service of the Forest department cannot even otherwise be countenanced in law as holding the same at this distance of time would be unjust and harsh. 15. Accordingly, this writ petition is allowed. 14. The stand of the one of the respondents that the petitioner is not a member of service of the Forest department cannot even otherwise be countenanced in law as holding the same at this distance of time would be unjust and harsh. 15. Accordingly, this writ petition is allowed. It is declared that the petitioner is member of subordinate Service of Forest Department. By issuance of writ of mandamus respondents are directed to give all service benefits to the petitioner by treating her to be member of Forest Subordinate service, which would include fixation of her seniority in the Forest Department as well. Disposed of.