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2018 DIGILAW 355 (JK)

Vinod Kumar Gupta v. State of J&K

2018-05-31

SANJAY KUMAR GUPTA, TASHI RABSTAN

body2018
Judgment Tashi Rabstan, J.—This Letters Patent Appeal is directed against order dated 07.05.2018 passed by the learned Single Judge in SWP No. 797/2018 whereby writ petition filed by the writ petitioner-appellant has been dismissed being without any merit. 2. The writ petitioner-appellant by way of SWP No.797/2018 had sought quashment of impugned Order No.37-DCP of 2018 dated 27.04.2018; with a further direction to respondents Nos. 1 and 2 to continue the writ petitioner-appellant to complete the term as per Govt. Instructions issued vide Govt. Order No.60-PDD dated 02.04.2016; and with a further direction to respondents 1 and 2 to issue fresh order of posting of writ petitioner-appellant as well as respondent No.3 in consonance with the said Govt. Instructions, on the ground that the same had been issued in violation of the transfer policy as laid down in Govt. Order No.60-PDD of 2016 dated 02.04.2016 framed in terms of the transfer policy issued vide Govt. Order No.861-GAD of 2010 dated 28.07.2010. 3. The facts in brief are that after appointment, writ petitioner-appellant vide Order No. CEJ/Adm/190 of 2010 dated 08.07.2010 was directed to report to Sub Division IV in Kalakote, where he served till 2014. By Order No.42-DCP of 2014 dated 24.06.2014, the general transfer orders were issued, by which the writ petitioner-appellant was posted in the Direction Office Commercial and Survey Wing, Jammu. It may be noticed that C&S Wing falls under category B of the sensitivity. After putting in about two years in this C&S Wing, the writ petitioner-appellant vide Order No.95-DCP of 2016 dated 21.11.2016 was posted in SD Store ED Kathua (EM&RE)-Sub Division Store Electric, Division, which post fell under the Category A1 as per the Government Instructions on Transfers and Postings in Power Development Department (Annexure-C to writ petition). It is claimed that while the writ petitioner-appellant had not even completed his minimum tenure of two years, respondent No.2 issued impugned Order No.37-DCP of 2018 dated 27.04.2018; by virtue of which a single transfer has been effected with respect to respondent No.3 and that too on the last date of closure of offices of Darbar Move. It is claimed that while the writ petitioner-appellant had not even completed his minimum tenure of two years, respondent No.2 issued impugned Order No.37-DCP of 2018 dated 27.04.2018; by virtue of which a single transfer has been effected with respect to respondent No.3 and that too on the last date of closure of offices of Darbar Move. It is averred that the impugned transfer order provides that in the interest of administration, respondent No.3 who is posted as Junior Engineer in Electric Central Store Division, Jammu, is transferred and adjusted against the post of JE Electric Division, Kathua, Sub Division Store and is directed to take charge from the writ petitioner-appellant during the physical verification of the Store. It is contended that Govt. Instructions envisage rotation of employees. As per Clause A of the Govt. Instructions issued vide Govt. Order No.60-PDD of 2016 dated 02.04.2016, the posts in the Department were allotted categories as per sensitivity. The Categories are A1, A2 and B and the details are provided in the said Govt. Instructions, which reads as under:— “... It has been stated that the rotation of employees shall be done in a manner so as to maximize the chances to each employee to work in the posts of different categories. However, since the number of posts available in three categories may differ, the officers having longest service in category A1 posts shall be first posted to a post in category B, as required. No officer working against a post in category A1 will be transferred and posted in A1 or A2 categories consecutively.” 4. In contradistinction to the case of the writ petitioner-appellant, respondent No.3 was, some 3 to 4 months before the passing of impugned order, vide Order No.303-DCP of 2017 dated 29.12.2017, posted from ED IInd Jammu, Sub Division Store, to P&MM Wing Jammu. ED IInd Jammu, Sub Division Store, was A1 Category post and from this AI category post, respondent No.3 was posted into P&MM Wing Jammu and there respondent No.3 was further posted/deputed to Electric Centre Store Division, Jammu, thus giving him again a post of Category A1. ED IInd Jammu, Sub Division Store, was A1 Category post and from this AI category post, respondent No.3 was posted into P&MM Wing Jammu and there respondent No.3 was further posted/deputed to Electric Centre Store Division, Jammu, thus giving him again a post of Category A1. Thus, it is contended that posting of respondent No.3 from a post of AI category to again in A1 category is arbitrary and illegal and now further after 3 to 4 months only, the said respondent No.3 has managed his transfer and posting in place of writ petitioner-appellant which post too is of SD Store ED Kathua, again a post of AI category, which explicitly portray that respondents have violated Govt. instructions for accommodating respondent No.3 both on count of premature transfer, and on category based posts, therefore, the same is illegal and violative of doctrine of equality before law. According to writ petitioner-appellant it is not a case of transfer but a case of dislodgement of writ petitioner-appellant inasmuch as although he is sought to be replaced/dislodged vide order impugned, no posting has been given to him and he has been kept hanging in the air without any posting. However, learned Writ Court is stated to have without appreciating the same, dismissed the writ petition of the writ petitioner-appellant being without any merit. 5. The precise challenge to order dated 27.04.2018 before the writ Court was that the same was issued in violation of the transfer policy as laid down in Govt. Order No.60-PDD of 2016 dated 02.04.2016 framed in terms of the Transfer Policy issued vide Govt. Order No.861-GAD of 2010 dated 28.07.2010. It is vehemently argued by learned counsel for the writ petitioner-appellant that learned Writ Court has failed to appreciate that the writ petitioner-appellant has been dislodged from the present position and not posted anywhere and it is not a case of transfer but punitive or arbitrary dislodgement, akin to attachment. The basic issue before the learned Writ Court was not his transfer but dislodgement as petitioner has not been given any positing. It is also contended the impugned order in the writ petition is actuated by malice in law as the same has been passed just to accommodate respondent No.3. 6. The basic issue before the learned Writ Court was not his transfer but dislodgement as petitioner has not been given any positing. It is also contended the impugned order in the writ petition is actuated by malice in law as the same has been passed just to accommodate respondent No.3. 6. On the other hand, learned counsel appearing on behalf of official respondents states that the impugned order of transfer was issued in the interest of administration with due application of mind, fairness and without any mala fides. 7. We have head learned counsel appearing for the parties, perused the writ record as well as gone through the appeal. 8. Transfer of Government servants, appointed to a particular transferable post, from one place to another is an exigency and incidence of service and does not affect or alter his terms and conditions of service. The Government has the power to transfer its employees from one place to another carrying equivalent pay scale and grade, but surely the Government has to exercise this power in a bona fide manner to meet the exigency of administration. However, in the present case, situation is totally different as writ petitioner-appellant has not been transferred or attached but he has been dislodged and no posting has been given to him without there being anything adverse against him. There is no denial of the fact that respondent No.3 all along has been enjoying the posting of Category AI in contravention to Govt. Order No.60-PDD of 2016 dated 02.04.2016 and remained posted from Store to Store whereas in case of others, particularly, with respect to the present case, writ petitioner-appellant had never seen such posting. 9. During the course of arguments, learned counsel for the writ petitioner-appellant has produced a copy of Govt. Order No. 132-RDD of 2018 dated 15.05.2018 and copy of communication No.KED/622-23 dated 15.05.2018 issued by the Executive Engineer, Electric M&RE Division, Kathua, addressed to Assistant Executive Engineer, I/C Store Sub Division, Kathua, which, at request, are taken on the record of this appeal. 10. The controversy emerging from the facts of the case pertains to the transfer made by respondent No.2 posting respondent No.3 in place of writ petitioner-appellant without providing any posting to the writ petitioner-appellant. 10. The controversy emerging from the facts of the case pertains to the transfer made by respondent No.2 posting respondent No.3 in place of writ petitioner-appellant without providing any posting to the writ petitioner-appellant. However, certain developments have taken place after filing of writ petition and brought to the notice of this Court; in view of which necessity to tread upon the course adjudicating the propriety or impropriety of impugned order of transfer appears to be an exercise in futility, in that the Government of J&K State in the Power Development Department has vide Government Order No.132-PDD of 2018 dated 15.05.2018 imposed complete ban on transfer/postings of all categories of employees of Power Development Department while providing certain exceptional cases, i.e., transfer on account of medical emergency/ retirement vacancy or some other emergent situation, shall have to be ordered only after seeking prior approval of the Administrative Department. It has also been provided by the aforesaid Government Order No. 15.05.2018 that “any order issued prior to issuance of this order and not implemented so far shall be kept in abeyance”. 11. Another fact which has been brought to the notice of this Court by the learned counsel for the writ petitioner-appellant is that Executive Engineer, Electric M&RE Division, Kathua, vide communication No. RED/622-23 dated 15.05.2018 addressed to Assistant Executive Engineer, I/C Store Sub-Division, Kathua, on the subject “Handing over the charge of Divisional Store” advising latter to handover the charge of receipt of material and charge of issue of material to respondent No.3 after store verification. The said communication has also been forwarded to the writ petitioner-appellant with similar instructions. It is contended by leaned counsel for the writ petitioner-appellant that bare perusal of the aforesaid communication shows that as on date of issuance of Govt. Order dated 15.05.2018, impugned order of transfer had not been fully implemented inasmuch as charge of Divisional Store at Kathua had not been completely handed over to respondent No.3, as such, in terms of Govt. Order dated 15.05.2018, same would have to be kept in abeyance. In these circumstances, case would be the one falling within the ambit of Clause-IV of Govt. Order dated 15.05.2018. Even, the contention of learned counsel for the writ petitioner-appellant that writ petitioner-appellant till date is working and discharging his duties is not controverted by other side. Order dated 15.05.2018, same would have to be kept in abeyance. In these circumstances, case would be the one falling within the ambit of Clause-IV of Govt. Order dated 15.05.2018. Even, the contention of learned counsel for the writ petitioner-appellant that writ petitioner-appellant till date is working and discharging his duties is not controverted by other side. This Court is not inclined to enter upon the realm of adjudicating upon illegality of the impugned order of transfer which has been kept in abeyance vide Govt. Order dated 15.05.2018. In terms of communication dated 15.05.2018, Assistant Executive Engineer, I/C Store Sub Division, Kathua was directed to handover the charge of receipt of material and charge of issue of material to Sh. Sanjeev Kumar, Junior Engineer (respondent No.3 herein) forthwith after Store verification, who in turn directed writ petitioner-appellant to handover the charge of receipt of material to Sh. Sanjeev Kumar, Junior Engineer. As per the communication aforesaid, it reveals that writ petitioner-appellant was possessing the charge of receipt material and charge of issue of material as on 15.05.2018, though respondent No.3-Sanjeev Kumar submitted his joining on 28.04.2018 afternoon, meaning thereby till 15.05.2018 when Govt. Order No.132-PDD of 2018 dated 15.05.2018 was issued, charge was not handed over to respondent No.3-Sanjeev Kumar, as such, case would be the one falling within the ambit of clause (iv) of Govt. Order No.132-PDD of 2018 dated 15.05.2018. 12. For the reasons detailed above and in the given circumstances, instant appeal is disposed of with a direction to the official respondents to proceed in the matter strictly in terms of Govt. Order No. 132-PDD of 2018 dated 15.05.2018. The order of writ Court shall stand modified to this extent.