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2018 DIGILAW 447 (JK)

Waseem Farooq Mir v. State of JK

2018-07-02

ALI MOHAMMAD MAGREY, DHIRAJ SINGH THAKUR

body2018
JUDGMENT : Magrey, J. 1. This Letters Patent appeal is directed against an ad interim order passed by the learned Writ Court on 30th of May, 2018, in SWP No.1176/2018: MP No.01/2018, whereby and whereunder, while issuing notice to the otherside, the learned Writ Court has directed the official respondents to maintain the grade as held by the petitioner in the Forest Department. 2. The facts leading to the filing of the instant appeal, briefly and as stated by the appellant/writ petitioner in his appeal, are that the appellant/writ petitioner is a member of the Jammu & Kashmir Forest (Gazetted) Service and is, presently, holding the post of Deputy Conservator of Forests, Baramulla. The appellant/writ petitioner was promoted, as such, in terms of a Government order bearing No.150-FST of 2018 dated 19th of April, 2018, subject to clearance by the DPC/PSC. In the year 2016, as stated, the State Cabinet took various decisions with respect to the creation and restructuring of the posts in the Forest Protection Force, in terms whereof, amongst the Gazetted cadre posts, the post of Deputy Director (Deputy Conservator of Forests) in the pay scale of Rs. 15600-39100 + GP Rs. 6600 was downgraded to Deputy Director (Assistant Conservator of Forests) in the pay scale of Rs. 9300-34800 + GP Rs. 4800. In terms of Government order bearing No. 179-FST of 2018 dated 24th of May, 2018, the appellant/writ petitioner stands transferred and posted as Deputy Director, Forest Protection Force, initially, to Baramulla and, subsequently, vide corrigendum dated 24th of May, 2018, to Kehmil, Kupwara. Aggrieved by the said Government order dated 24th of May, 2018 as also the corrigendum dated 24th of May, 2018, the appellant/writ petitioner filed a writ petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu & Kashmir before the Writ Court, seeking therein a writ of Certiorari quashing the Government order bearing No. 179-FST of 2018 dated 24th of May, 2018, alongwith the corrigendum dated 24th of May, 2018 to the said order. In the aforesaid writ petition, the appellant/writ petitioner had also sought a writ of Mandamus directing the respondents to allow him to perform his duties as Deputy Conservator of Forests, JV Division, Baramulla, Kashmir. The learned Writ Court, in terms of interim order dated 30th of May, 2018, while issuing notice to the other side, directed as under:- “.…. In the aforesaid writ petition, the appellant/writ petitioner had also sought a writ of Mandamus directing the respondents to allow him to perform his duties as Deputy Conservator of Forests, JV Division, Baramulla, Kashmir. The learned Writ Court, in terms of interim order dated 30th of May, 2018, while issuing notice to the other side, directed as under:- “.…. Meanwhile, as ad-interim, it is made clear that in the Forest Protection Force, petitioner shall not be given the grade, lower than that held by him in the Forest Department, pursuant to his placement in terms of order No. 150-FST of 2018 dated 19.04.2018.” 3. This order of the learned Writ Court is impugned herein this appeal by the appellant/writ petitioner on various grounds with particular reference that the order has an outcome of rendering the lis infructuous and without any substance. 4. Mr. Azhar-ul-Amin, the learned counsel for the appellant/writ petitioner, submits that the impugned order in the writ petition, whereby the appellant/writ petitioner, as I/C Deputy Conservator of Forests, has been transferred and posted as Deputy Director, Forest Protection Force, Baramulla, against an available vacancy, is an outcome of malafide attributed to the official respondents with an ulterior motive of adjusting the respondent No.4 from a non-ACF/DCF post to a cadre post. The learned counsel further submits that in terms of the order impugned in the writ petition, the appellant/writ petitioner has been transferred and posted to a post which is lower in pay, grade and status than that of the one held by him. Elaborating the argument, the learned counsel argues that the appellant/writ petitioner is holding the post of Deputy Conservator of Forests, but, while transferring him from such a post, the petitioner has been posted against the post of Deputy Director, Forest Protection force, Baramulla, which post is not equivalent to the post of Deputy Conservator of Forests. The learned counsel has also referred to the decision of the Cabinet pertaining to restructuring of posts in the Forest Protection Force as approved in June, 2016 and placed with the records in the shape of press cuttings. 5. Per Contra, the learned counsel appearing on behalf of the respondents, have, in the first instance, questioned the challenge to the impugned order in the writ petition, merely on the ground that the writ petition is not maintainable as the transfer is an exigency of service. 5. Per Contra, the learned counsel appearing on behalf of the respondents, have, in the first instance, questioned the challenge to the impugned order in the writ petition, merely on the ground that the writ petition is not maintainable as the transfer is an exigency of service. Secondly, the learned counsel have also questioned the maintainability of the appeal on the ground that the order impugned in the appeal is only an ad interim order and not the final judgment. It is further contended that the order impugned in the appeal does not, in any manner, violate the rights of the petitioner, rather it protects his rights, therefore, the petitioner ought not have been aggrieved of such an order. 6. We have heard the learned counsel for the parties, perused the available record and considered the matter. 7. At the first blush, what needs to be stated is that the reasons supplied and the grounds urged coupled with the submissions made with reference to the relief prayed for in the appeal need no observation/finding simply on the ground that this Bench is only examining the legality or otherwise of the order impugned, which is an ad interim order passed by the learned Writ Court. 8. Ordinarily, the appeals, filed under Letters Patent, are not entertained against an ad interim order of a Writ Court as the orders are ad interim in nature, subject to objections from the other side and modification/alteration/vacation. Appellant/writ petitioner has every right to seek modification/alteration/vacation of the ad interim order before the Writ Court and, accordingly, have the writ petition decided on the touchstone of the grounds raised and reasons supplied in the pleadings. The law on the subject is no more res integra. Appellant/writ petitioner has every right to seek modification/alteration/vacation of the ad interim order before the Writ Court and, accordingly, have the writ petition decided on the touchstone of the grounds raised and reasons supplied in the pleadings. The law on the subject is no more res integra. A cue can, in this behalf, be had from the law laid down by a Division Bench of this High Court, in case titled ‘Shivam Enterprises v. Residents of Village Govindsar, Kathua & Ors.’, reported in ‘ 2010(3) JKJ 552 (HC)’, wherein at Paragraph No., it has been held as under:- “Having heard extensive arguments by the learned counsel for the parties and also upon consideration of the records as well impugned interim order, including the order passed by this Court on 30.07.2010 quoted above, we are of the view that since an interlocutory order is the subject matter of challenge in this appeal, instead of deciding the issue on merit by this Court, the interests of justice will be satisfied, if the matter is remanded back to the Writ Court for its early disposal within a timeframe.” In such view of the matter, we, at this stage, restrain ourselves to return any finding on the arguments raised by either of the parties in appeal as, otherwise, it would prejudice the cause of the parties as we, while sitting in appeal against an ad interim order, are conscious of the rights and interests of the parties with reference to claiming decision on merits. 9. Mr. Azhar-ul-Amin, the learned counsel for the appellant/writ petitioner, while raising the arguments with reference to the order impugned in the writ petition being outcome of a malafide, when asked as to where are the pleadings of malafides, as required to be specifically supplied while alleging malafides against the officers of the respondent State, could only refer to the ineligibility of the respondent No.4, who has been posted as I/C DFO, JV Division, Baramulla, in place of the appellant/writ petitioner. The law is that there must be cogent evidence available on record to come to the conclusion as to whether or not, in fact, there was existing a bias or a malafide move which results in the miscarriage of justice. The law is that there must be cogent evidence available on record to come to the conclusion as to whether or not, in fact, there was existing a bias or a malafide move which results in the miscarriage of justice. While dealing with a similar issue, the Hon’ble Apex Court of the country in case titled ‘State of Punjab v. V. K. Khanna & Ors., reported as ‘ (2001) 2 SCC 330 ’, at paragraph No.5, held as follows:- “5. Whereas fairness is synonymous with reasonableness --bias stands included within the attributes and broader purview of the word “malice” which in common acceptation means and implies “spite” or “ill will”. One redeeming feature in the matter of attributing bias or malice and is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will. There must be cogent evidence available on record to come to the conclusion as to whether in fact, there was existing a bias or a mala fide move which results in the miscarriage of justice (see in this context Kumaon Mandal Vikas Nigam Ltd. v. Girija Shankar Pant). In almost all legal enquiries, “intention as distinguished from motive is the all-important factor” and in common parlance a malicious act stands equated with an intentional act without just cause or excuse. In the case of Jones Bros. (Hunstanton) Ltd. v. Stevens, the Court of Appeal has stated upon reliance on the decision of Lumley v. Gye as below: “For this purpose maliciously means no more than knowingly. This was distinctly laid down in Lumley v. Gye, where Crompton, J. said that it was clear law that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation of master and servant by harbouring and keeping the servant after he has quitted his master during his period of service, commits a wrongful act for which he is responsible in law. Malice in law means the doing of a wrongful act intentionally without just cause or excuse: Bromage v. Prosser. ‘Intentionally’ refers to the doing of the act; it does not mean that the defendant meant to be spiteful, though sometimes, as, for instance to rebut a plea of privilege in defamation, malice in fact has to be proved.” 10. We had also pointedly asked Mr. ‘Intentionally’ refers to the doing of the act; it does not mean that the defendant meant to be spiteful, though sometimes, as, for instance to rebut a plea of privilege in defamation, malice in fact has to be proved.” 10. We had also pointedly asked Mr. Azhar, the learned counsel for the appellant/writ petitioner, as to how the appellant/petitioner claims his right over the post of Deputy Conservator of Forests when, admittedly, the petitioner is not holding such post substantively, but the learned counsel only made a reference to the claim of the petitioner to be posted against the post of Deputy Conservator of Forests, commensurate to his status as earned by him while being posted as such by the respondents in his previous order of transfer/posting. 11. It needs must be said that we had no hesitation in deciding the matter finally as it only relates to the legality or otherwise of the order impugned in the writ petition, in terms whereof the appellant/writ petitioner has been transferred and posted as Deputy Director, Forest Protection Force, but the difficulty is that the pleadings are not complete in the writ petition. We also, on the strength of the arguments raised by either side, are convinced that there is no illegality in the ad interim order passed by the learned Writ Court, that is impugned herein this appeal, but that finding may hold good only until the matter is finally decided by the learned Writ Court. 12. In the above backdrop, without expressing any opinion and decision on the merits of the case, we propose to dispose of this appeal in the following manner: I. Appeal, to the extent it seeks setting aside of the impugned ad interim order passed by the learned Writ Court, is dismissed; II. Parties are directed to complete the pleadings in the writ petition on or before the next date of hearing, which date we prepone by directing the Registry to re-notify the writ petition before the learned Writ Court on 16th of July, 2018; III. Writ Court is requested to consider the writ petition for decision with reference to the claim of the rival parties on the next date of hearing, if possible, or, consider modification/alteration/vacation of the impugned ad interim order till the matter is finally decided. 13. Appeal, alongwith connected IA(s), disposed of as above.