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2015 DIGILAW 83 (JK)

State of J&K v. Iftikhar Ahmad Hakeem

2015-03-10

ALI MOHAMMAD MAGREY, MUZAFFAR HUSSAIN ATTAR

body2015
JUDGMENT : Ali Mohd. Magrey, J.:- 1. This Letters Patent Appeal has been preferred against the order dated 01.08.2014 passed by the learned Writ Court in CMP No. 1690/2014 accompanying the writ petition, SWP No. 1057/2014, whereby the interim order dated 28.05.2014 passed therein, staying the operation of order No. 177-HUD of 2014 dated 23.05.2014 to the extent it related to respondent No. 1 herein, has been made absolute. By the aforesaid Government Order dated 23.05.2014, the Government ordered the transfers and posting of as many as six officers of the J & K Town Planning Organization. Name of the contesting respondent herein, i.e., the writ petitioner, figured at serial No. 1 of the order and he was transferred from the position of I/C Chief Town Planner, Kashmir, and posted Chief Town Planner, Srinagar Development Authority. The order also reads that the post of Sr. Town Planner, Srinagar Development Authority, is upgraded to the level of Chief Town Planner till it is held by the respondent. The respondent challenged the order to the extent it related to him on the ground that in terms of Rule 27 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 he could be transferred within the Cadre of Town Planning (Gazetted) Service and not against a post not part of the Cadre, that too in Srinagar Development Authority, which was a creation of Section 3 of the Development Act. 2. In this appeal it is stated that the issuance of said Government order was necessitated under the exigencies of public service with a view to gearing up and accomplishing the revision of Master Plans of the Cities of Srinagar, Jammu and Katra within the statutorily presented cutoff date, viz. 31.03.2015, in terms of the Jammu and Kashmir (Special Provisions) Act, 2014. The order was implemented much before the ad interim order was passed by the Court, inasmuch as proforma respondent No. 2, Shri V.K. Panth, Chief Architect had assumed the charge of the office of Chief Town Planner, Kashmir. According to the appellants, this fact was brought to the notice of the learned Writ Court, yet the learned Writ Court, without taking this vital aspect of the matter in regard, passed the impugned order dated 28.05.2014. According to the appellants, this fact was brought to the notice of the learned Writ Court, yet the learned Writ Court, without taking this vital aspect of the matter in regard, passed the impugned order dated 28.05.2014. It is further stated that the learned Writ Court erred in law in not appreciating that the order in question was a pure and simple order of transfer and posting issued by the competent authority and that the same was not open to interference by the Court in exercise of its extraordinary writ jurisdiction because a Government employee cannot choose his place of posting, nor has he any say in the matter of transfers and postings. The appellants have taken number of other grounds in the memorandum of appeal. 3. We have heard learned counsel for the parties on the merits of the main writ petition as well as this appeal, and considered the matter. 4. Admittedly, the ad interim order dated 28.05.2014 read with order dated 01.08.2014 has been passed on the sole contention of the respondent-petitioner that in terms of Rule 27 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 (hereinafter referred to as the CCA Rules) he could not be transferred to, and posted on, any post outside his cadre namely, the Town Planning (Gazetted) Service. In fact, the main thrust of the argument of learned counsel for respondent No. 1 during the course of arguments on the main petition was the very same ground. 5. It may be observed here that Rule 27 of the CCA Rules, relied upon and pressed into service on behalf of respondent, is not the only provision that governs the transfers and postings of government servants. Regulation 52-B of the Jammu and Kashmir Civil Service Regulations (CSRs), which provides for appointments by transfer on deputation, also governs the government servants. Whereas Rule 27 of the CCA Rules provides for transfers within the Cadre of a Service, Regulation 52-B of the CSRs empowers the Government to transfer a government servant outside his parent organization/Cadre on temporary basis. 6. Though Regulation 52-B of the CSRs uses the word deputation, however, the two terms - transfer and deputation - are synonymously used. The term deputation means service outside the cadre or outside the parent department. 6. Though Regulation 52-B of the CSRs uses the word deputation, however, the two terms - transfer and deputation - are synonymously used. The term deputation means service outside the cadre or outside the parent department. This has been held by the Supreme Court in State of Punjab v. Inder Singh, AIR 1998 SC 7 . The relevant portion of paragraph 19 of the judgment is reproduced hereunder: "...In simple words deputation means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis..." The law thus is that transfer and posting of a Government servant outside his parent cadre of Service or department is deputation. In other words, if a person is transferred and posted on an ex-cadre post, it would tantamount to his deputation under Regulation 52-B of the CSRs and not a transfer under Rule 27 of the CCA Rules. 7. The case of the respondent herein is that he has been transferred and posted outside his cadre which is not permissible in terms of Rule 27 of the CCA Rules. There is no denial to the fact that the petitioner has been posted outside his cadre, but there is nothing on record to show that the order has been issued in terms of Rule 27 of the CCA Rules. As mentioned above, the Government can order transfer of a person either under Rule 27 of the CCA Rules or in terms of Regulation 52-B of the CSRs. The impugned order has, admittedly, been issued by the Government. It is not the case of the respondent-petitioner that the Government was not competent to issue such an order and post him outside his cadre in terms of Regulation 52-B of the CSRs. The contention that in terms of Rule 27 of the CCA Rules he could be transferred only within his own cadre is, therefore, inconsequential. 8. The question whether transfer is synonymous with deputation or the two terms, i.e. transfer and deputation, are distinct from each other was the subject matter of controversy before a Division Bench of this Court in J.L. Bamzai v. State of J & K, 1990 SLJ 8 : JKJ Soft JKJ/19818. 8. The question whether transfer is synonymous with deputation or the two terms, i.e. transfer and deputation, are distinct from each other was the subject matter of controversy before a Division Bench of this Court in J.L. Bamzai v. State of J & K, 1990 SLJ 8 : JKJ Soft JKJ/19818. In that case there was a difference of opinion between the two Hon'ble Judges comprising the Division Bench and the matter was referred to the decision of a third Judge under rule 23 of the J & K High Court Rules. Precisely, the following two questions were referred to the third Judge: (i) Whether transfer is synonymous with deputation or the two terms i.e., transfer and deputation are distinct from each other? This question shall have to be answered in the light of Art. 52 of the Civil Service Regulations and Rule 27 of the Jammu & Kashmir Civil Service (Classification, Control and Appeal) (ii) Whether or not the administrative circular dated 31.7.1987 relied upon by the petitioner in the present case confers any right on the petitioner and whether the said circular can be made justiciable in a writ petition? There is nothing akin to the second question involved in the present case. It may be mentioned here that in that case the services of the petitioner-appellant had been placed on deputation with National Hydroelectric Project Corporation, New Delhi, for a period of two years on the standard terms and conditions of deputation. The petitioner-appellant challenged his deputation on the ground of being in violation of Circular No. PDD/V/Depute/NHPC/87 dated 31.7.1987 by which a policy decision had been taken by the State regulating the deputation from Power Development Department to various National Projects operating in the State. Adverting to the first question, quoted above, the Court, while dealing with the two provisions held that transfer and deputation are intended to meet and cover the same exigencies, though in different fields and under-different circumstances. It was held therein that the term deputation under Regulation 52 of the Regulations includes transfers made in public interest to any other department, Government Corporation, Company, Autonomous Body or Public Sector Undertaking. It was further held that on transfer, there is no change in the condition of service to the detriment of the employee, nor the employee loses any of the rights conferred upon him under the applicable service rules. It was further held that on transfer, there is no change in the condition of service to the detriment of the employee, nor the employee loses any of the rights conferred upon him under the applicable service rules. In both the cases, he retains his lien in his parent department, his pay is not reduced, his promotion chances are not taken away, he is not demoted to a lower post, nor is any stigma cast upon him. 9. In the instant case, the interests of the petitioner have been duly protected inasmuch as the post of Sr. Town Planner, Srinagar Development Authority has been upgraded to the level of Chief Town Planner till it is held by the respondent. 10. It may also be mentioned that it has been the consistent view of the Courts that since transfer of a government servant is the exigency of service, the same should not ordinarily be interfered with unless the order is passed without jurisdiction, or as a measure of punishment or on mala fide grounds or that the order adversely affects the service conditions of a government servant. Nothing of that sort is pleaded in the instant case except that a person, viz. the proforma respondent No. 1 herein, who by no standards is eligible has been given the charge of the post of Chief Town Planner, Kashmir. On that count, it is argued that the order wholly suffers from all the vices, including mala fides. 11. In view of the above, we are of the opinion that not only does the impugned order warrant interference, but the main writ petition itself deserves to be dismissed as being without any merit. 12. Resultantly, this appeal is allowed and the impugned order dated 01.08.2014 passed by the learned Writ Court admitting the writ petition and making the ad interim order absolute is set aside. The writ petition filed by the contesting respondent is also dismissed as being without any merit. No order as to costs.