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2015 DIGILAW 362 (JK)

Abid Nazir v. State of JK

2015-07-27

MUZAFFAR HUSSAIN ATTAR

body2015
Judgment : Government order No. 131-FST of 2015 dated 04-06-2015 is called in question by the petitioner to his extent. In terms of said order, petitioner has been transferred from the post of Agrostologist, Kashmir to the post of DFO, Kargil. This order is called in question, inter alia on the ground that it is issued in malafide exercise of power by respondent no. 2; it has been passed in breach of the transfer policy notified vide Government Order No. 861-GAD of 2010 dated: 28th July, 2010, inasmuch as, petitioner has been prematurely transferred. Mr. Qayoom, learned counsel for the petitioner argued at great length and referred to judgments reported in 2012 (2) SLJ 604, 1973 (1) SCC 194 , 1975 (3) SCC 503 , 2014 SC 263, 1998 (8) SCC 753 , AIR 1964 SC 962 , 2000 SC (2) 1684 and 2000 (8) SCC 395 . Learned counsel submitted that this court while deciding SWP NO: 109/2013 on 29th January, 2014 directed the respondents to consider the petitioner for regularization of his services on the post of Assistant Conservator of Forests (ACF) on the analogy of his colleagues retrospectively. When this judgment was not implemented, petitioner filed the contempt petition No. 342/2014. On 28th November, 2014, the then Commissioner Secretary to Government Mr. Mohammad Afzal appeared in person before the Court in pursuance of Court direction. The said authority submitted that the judgement of the court can be implemented after recommendation of the DPC / PSC and in absence of such recommendation Government was not in a position to implement the same. Two months last and final opportunity was granted by the Court on 28th November, 2014 for implementing the judgment. The Court on 12th March, 2015 directed the respondents to implement the judgment and further directed the respondent no. 1 to issue orders of promotion in favour of the petitioner without seeking clearance of DPC and PSC. Direction was issued for issuance of promotion order within 15 days. After the issuance of aforesaid direction, respondent no. 2 was posted as Principal Secretary to Government Forest Department. MP No. 01/2015 was filed for revival of the contempt proceedings, which was disposed of in terms of order dated 12th March, 2015. Direction was issued for issuance of promotion order within 15 days. After the issuance of aforesaid direction, respondent no. 2 was posted as Principal Secretary to Government Forest Department. MP No. 01/2015 was filed for revival of the contempt proceedings, which was disposed of in terms of order dated 12th March, 2015. Court while allowing the application on 22nd April, 2015 issued two weeks’ notice for compliance of the order and in case of default respondents 1 and 2 were directed to appear in person before the Court. Thereafter, as is disclosed by the official record, on the advice of the State Law Department, Appeal was filed against the order passed in Contempt petition. The Letter’s Patent Bench dismissed the Letter’s Patent Appeal (LPA) vide its order dated 12th May, 2015 by holding that Appeal is not maintainable and is frivolous. The appellant was directed to pay Rs. 10,000/-as costs to the writ petitioner within a period of two weeks. Thereafter, vide Government order No. 112-FST of 2015 dated 15.05.2015, the Government of Jammu and Kashmir has accorded sanction to the promotion of the petitioner. Order was made subject to clearance by the DPC/PSC. It is thereafter, the impugned order was passed. Mr. Qayoom, learned counsel for the petitioner vehemently argued that because of the contempt proceedings initiated by the petitioner and more particularly after the dismissal of the LPA and imposing of cost of Rs. 10,000/- on respondent no. 2, the impugned transfer order was passed. Learned counsel submitted that impugned transfer order to the extent of petitioner is outcome of the bias and has been issued in malafide exercise of power, resultantly vitiating the impugned order to his extent. Learned counsel for the petitioner while referring to the earlier transfer order which has been issued in the month of December, 2013 submitted that the transfer order has been issued in breach of the transfer policy notified vide Government order No. 861-GAD of 2010 dated 28th July, 2010. This case was heard in part on 21st July, 2015. On that date, record was produced by the learned Advocate General, which was perused. The Court on that date deemed it appropriate to direct the respondent no. 2 to file the affidavit in view of the serious allegations levelled against him in the writ petition, inasmuch as, he has been impleaded as party respondent in person. On that date, record was produced by the learned Advocate General, which was perused. The Court on that date deemed it appropriate to direct the respondent no. 2 to file the affidavit in view of the serious allegations levelled against him in the writ petition, inasmuch as, he has been impleaded as party respondent in person. Affidavit has been filed by respondent no. 2 in pursuance of the aforesaid court order. Learned Advocate General, while referring to the official record as also to the affidavit filed by respondent no. 2 submitted that in the facts and circumstances of this case, it cannot be said that petitioner’s transfer order has been issued for any malafide reasons. Leanred Advocate General submitted that the Appeal was filed at the advice of the State Law Department and it was not personal decision of respondent no. 2. Learned Advocate General also submitted that in view of the official record, more particularly from Note 154 onwards, while examining the vacant position in the department, it surfaced that non-IFS officers were posted on IFS cadre post and even on higher ranks and similarly the IFS officers were posted against the non-cadre post or SDR posts. It was submitted that in order to streamline/rationalize the manning of these posts, two proposals were framed. Proposal “A” was submitted to State Cabinet for its approval and Proposal “B” was submitted to Hon’ble Minister for Forest for his approval. It may not be out of place to mention that transfer of the officers of the rank of petitioner could be ordered by approval of Minister Incharge of the Forest Department. The proposals “A and B” which figure at Note 155 of the record were processed and at Note 157, the Principal Secretary observed that in order to streamline the functioning of the department, the above proposals at Note 155 have been made and at Note 158, same was submitted for approval of the Minister Incharge. Perusal of Note 159 of official record would reveal that file was received back from the Hon’ble Forest Minister. It further reveals that after the discussion, revised proposal was framed for approval from the competent authority. It may not be out of place to mention here that petitioner did not figure in the first proposal of transfer. At Note 162, fresh proposals “A and B” were made. It further reveals that after the discussion, revised proposal was framed for approval from the competent authority. It may not be out of place to mention here that petitioner did not figure in the first proposal of transfer. At Note 162, fresh proposals “A and B” were made. Whereas proposal “A” was sent to State Cabinet for its approval and proposal “B” was submitted to Minister Incharge of the Forest Department for its approval. It is this 2nd proposal which was approved by the Minister Incharge of the Forest Department and in this proposal, name of the petitioner also figured for his transfer to Kargil. The Special Secretary to Government at Note 161 dated 02nd June, 2015 forwarded the proposal to the Principal Secretary. The principal Secretary at Note 162 forwarded the same for its approval to Hon’ble Minister. The Note was thereafter approved. Consequently, transfer order was issued. Leanred Advocate General while referring to the record submitted that in the first proposal at least 23 officers were proposed to be transferred. In the 2nd proposal, 28 were proposed to be transferred and out of this, 19 officers did not figure in the first proposal. Leanred Advocate General while referring to the affidavit of respondent no. 2 submitted that the allegation of malafides have been categorically denied by the said authority. Learned Advocate General further submitted that orders have been passed for premature transfers of about 19 officers and orders have been made in the interest of Administration with the approval of the concerned Minster, which is the mandate contained in the Transfer Policy notified vide government Order No. 861-GAD of 2010 dated 28th July, 2010. At this stage, Mr Qayoom learned counsel for the petitioner at the instructions of his client submitted that in the transfer order excepting for petitioner and private respondent who belong to the Kashmir Division all other officers belong to the Jammu Division. The Government Employee is duty bound to work at the place where his employer would post him. Employer is the best judge to know where the employee can discharge his duties to the best of his capabilities, which would suit the interest of Administration. The Government Employee is duty bound to work at the place where his employer would post him. Employer is the best judge to know where the employee can discharge his duties to the best of his capabilities, which would suit the interest of Administration. Transfer order of an employee from one place to another place, however can be interjected by the Court on three well recognized legal grounds viz transfer order is passed by an incompetent Authority; it has been issued in breach of Statutory Rules or has been issued in the malafide exercise of power. In the case on hand, the arguments of the learned counsel for the petitioner is that transfer order of the petitioner has been issued prematurely, thus cannot sustain in law, inasmuch as, Competent Authority has no power to transfer the employee prematurely from one place to the another place. The record would reveal that in the present case, Minister Incharge approved the transfer of the petitioner. It is not only the petitioner, but half dozen of the persons who have been transferred prematurely. This ground of challenge thus cannot sustain in law. The 2nd issue raised by learned counsel for the petitioner assumes significance in this case. More so, when the record show that in the first proposal, the officers both from Jammu Division and Kashmir Division were proposed to be transferred and petitioner did not figure in it. In the 2nd list only petitioner and private respondent have been transferred from Kashmir Division. Proposals “A and B” were framed to streamline/rationalize the posting of the officers in the Forest Department. Proposals naturally affected officers of both the Divisions of the State and it is for this reason, officers from Kashmir Division and also from Jammu Division found their place in the first proposal. When the matter was sent to the Minister Incharge, the file was received back and revised proposal was framed. Nothing is brought on record to show or suggest as what was the pattern on which the fresh proposal was framed. In contradiction thereto, reasons were recorded in framing of initial proposal “A and B”. When the matter was sent to the Minister Incharge, the file was received back and revised proposal was framed. Nothing is brought on record to show or suggest as what was the pattern on which the fresh proposal was framed. In contradiction thereto, reasons were recorded in framing of initial proposal “A and B”. From the perusal of the record, it appears that the decision was subsequently taken to transfer the officers from Jammu Division only, this is how in the 2nd proposal excepting for the petitioner and private respondent, all other officers who figure in it are from Jammu Division. At the time of filing of Appeal before the Division Bench, the respondent no. 2 had assumed the charge of the Principal Secretary to Government Department of Forests. First proposal was made before filing of the Appeal, in which petitioner did not figure. After the and its dismissal of Appeal by the Court on 12th May, 2015, in the 2nd proposal, excepting the petitioner and private respondent all other officers belong to Jammu Division. Petitioner’s transfer cannot be said to be made purely in the interest of Administration. There cannot always be direct evidence/material to support the plea of malafides and bias taken by the parties before the Court of law. The malafides and bias can be discerned from the material available on record. After the State’s Appeal was dismissed and appellant was saddled with costs of Rs. 10,000/-, the petitioner was included in the 2nd proposal and his transfer was ordered to Kargil. Bias is thus writ large on the face of record. This order, further cannot sustain, inasmuch as, contempt petition is still pending before the Court and as a result of his transfer to Kargil petitioner will not be in a position to pursue the same. The specific allegations made in the writ petition against the respondent no. 2 who initially did not file the affidavit, and did same in pursuance to the Court order have not been specifically dealt with. Pleadings in the writ petition are to be specifically dealt with by the parties. The bald and vague stand taken in the affidavit that the allegations are false and baseless, would not be sufficient in law to take wind out of the sails of case of the petitioner. Mr. B. A. Bashir, learned Sr. Pleadings in the writ petition are to be specifically dealt with by the parties. The bald and vague stand taken in the affidavit that the allegations are false and baseless, would not be sufficient in law to take wind out of the sails of case of the petitioner. Mr. B. A. Bashir, learned Sr. Advocate who appeared on behalf of private respondent, while referring to the objections filed by the said respondent, brought to the notice of the Court that almost 6 to 7 times premature transfer of private respondent have been ordered from one place to another place. Learned counsel submitted that his parents are ailing. Learned counsel also submitted that though the private respondent reported for joining duties as Agrostologist, but because of the Court order he has not been allowed to join. Learned counsel also submitted that he made representation for his attachment till disposal of the writ petition. For the above stated reason, this writ petition alongwith connected MP(s) is disposed of in the following manner: By issuance of writ of certiorari, Order No. 131FST of 2015 dated 04-06-2015 to the extent of petitioner is quashed. The private respondent shall remain attached in the office of Chief Conservator of forests, Kashmir, till he is suitably posted. Record is returned back to Mr. H. Aman Ali, learned Advocate in the open court. Disposed of as above.