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2018 DIGILAW 918 (JK)

Pankaj Khajuria v. State of JK

2018-11-29

ALI MOHAMMAD MAGREY

body2018
JUDGMENT : SWP No. 2233/2018; IA No. 01/2018: 1. The subject matter of the present writ petition is Forest Order No. 336 of 2018 dated 17th of October, 2018, issued by the respondent No.2, whereby the petitioner has been transferred from I/C Range Officer, Check Post Lakhanpur (Kathua Forest Division) and posted as I/C Range Officer (Wild Life), Kishtwar and the respondent No.6 has been transferred and posted as I/C Range Officer, Check Post Lakhanpur (Kathua Forest Division), vice the petitioner. 2. The main ground of challenge, as agitated by the petitioner in his petition, against the order impugned is that his transfer is bad in law as the respondent No.2-Principal Chief Conservator of Forests, J&K, has no authority to make transfers/postings of officers during the time when the ‘Model Code of Conduct’ is in force as regards the holding of the Panchayat Elections in the State of Jammu & Kashmir. It is submitted that the petitioner, in the capacity as I/C Range Officer Check Post Lakhanpur (Kathua Forest Division), was appointed as a Returning Officer in the Panchayat Halqau Kerian and Gandyal, Block Lakhanpur, Tehsil and District Kathua. To bring home this argument, the petitioner has placed on record his order of appointment as Returning Officer, attached as Annexure-‘A’ to the petition. 3. Mr. Salathia, the learned senior counsel, appearing on behalf of the petitioner, submits that the transfer of the petitioner is against the instructions of the Government notified vide Circular No. 42-GAD of 2018 dated 22nd of October, 2018, whereby the Government, in view of the conduct of Panchayat Elections, 2018 in the State, has ordered that there shall be ban on the transfer of officers/employees who are connected with the conduct of Panchayat Elections, 2018, till the completion of the electoral process, with a further stipulation that all officers/officials involved in the conduct of Panchyat Elections, including Designated Police Officers shall be under the administrative control of the Chief Electoral Officer, J&K, for superintendence and discipline. The learned senior counsel submits that the petitioner was appointed as a Returning Officer in connection with holding of the Panchayat Elections, Phase III, and the order impugned came to be passed by the official respondents at a time when the said elections were yet to be completed. The learned senior counsel submits that the petitioner was appointed as a Returning Officer in connection with holding of the Panchayat Elections, Phase III, and the order impugned came to be passed by the official respondents at a time when the said elections were yet to be completed. In that backdrop, the learned senior counsel submits that the order in question has been issued in gross violations of the circular instructions of the Government (supra). 4. Mr. Abhinav Sharma, the learned counsel, representing the respondent No.6, when asked, submits that the order, impugned herein this petition, has been passed by the official respondents after following due procedure governing the subject. 5. Heard the learned counsel for the parties, perused the record and considered the matter. 6. At the very outset, what requires to be stated herein this petition is that the Government, vide Circular No. 42-GAD of 2018 dated 22nd of October, 2018, with the announcement of the schedule for the conduct of Panchayat Elections, 2018 in the State of Jammu and Kashmir, directed as under: “The Model Code of Conduct which came into force with the announcement of the schedule for elections to Local Bodies will continue till completion of the Panchayat Elections, for which schedule has been issued by the Chief Electoral Officer, J&K. Consequent to the above, the following instructions are hereby issued for strict compliance by all the Administrative Secretaries, Heads of Departments, District Development Commissioners and District Superintendents of Police: - i. There shall be ban on the transfer of officers/employees who are connected with the conduct of Panchayat Elections-2018 till the completion of the electoral process. However, in case where the transfer of an officer/official is considered absolutely necessary in public interest, the concerned Administrative Secretary may approach the Chief Electoral Officer, J&K with full justification and obtain prior clearance before issuance of any such order. ii. All officers/officials involved in the conduct of Panchayat Elections including Designated Police Officers shall be under the administrative control of the Chief Electoral Officer, J&K for superintendence and discipline. Further, all the District Election Officers (Deputy Commissioners) and District Superintendents of Police are enjoined upon to strictly adhere to the instructions issued by the Chief Electoral Officer, J&K, from time to time in order to ensure free and fair elections. 7. Further, all the District Election Officers (Deputy Commissioners) and District Superintendents of Police are enjoined upon to strictly adhere to the instructions issued by the Chief Electoral Officer, J&K, from time to time in order to ensure free and fair elections. 7. A perusal of the circular aforesaid brings it to the fore that the Government has banned the transfer of officers/officials who are connected with the conduct of Panchayat Elections, 2018, till the completion of the electoral process. However, by the same instructions, the Government has, at proviso (i), directed that in case where the transfer of an officer/official is considered absolutely necessary in public interest, the concerned Administrative Secretary may approach the Chief Electoral Officer, J&K, with full justification and obtain prior clearance before issuance of any such order. 8. Applying the ratio of the mandate of the circular aforesaid to the case on hand, the petitioner, who was duly connected with the conduct of Panchayat Elections, 2018, having been appointed as a Returning Officer for Gandyal and Keerian, Block Kathua, Tehsil and District Kathua, has been transferred by respondent No.2, on his own, at a time when the said elections were yet to be completed and the ‘Model Code of Conduct’ was in operation, without seeking any clearance from the Chief Electoral Officer, J&K, as was directed by the Government vide the circular supra. Even if, for the sake of argument, but not admitted, it is assumed that the transfer of the petitioner was absolutely necessary in public interest, the respondent No.2 ought to have sought proper approval/clearance from the Chief Electoral Officer, J&K, for seeking the transfer of the petitioner from one place to another, who was squarely falling with the ambit/scope of circular dated 22nd of October, 2018, after being appointed as a Returning Officer vide order dated 29th of October, 2018. The respondent No.2, in view of the instructions of the Government vide the circular supra, had no authority/power to transfer the petitioner from one place to another. On this ground alone, the impugned transfer order cannot stand the test of judicial scrutiny. 9. In the above background, I find force in the submissions of the learned counsel for the petitioner, as a corollary to which, the petition of the petitioner is allowed and the impugned transfer order No. 336 of 2018 dated 17th of October, 2018, issued by the respondent No.2, is quashed. 9. In the above background, I find force in the submissions of the learned counsel for the petitioner, as a corollary to which, the petition of the petitioner is allowed and the impugned transfer order No. 336 of 2018 dated 17th of October, 2018, issued by the respondent No.2, is quashed. It is, however, made clear that since the election process is completed in so far as the Phase III is concerned, i.e. the phase with which the petitioner was connected as a Returning Officer, therefore, the official respondents shall be at liberty to make fresh transfers/postings of the petitioner as well as the respondent No. 6 commensurate to their status. Writ petition disposed of as above. SWP No. 2287/2018; IA No. 01/2018: 10. In this petition, the petitioner is aggrieved of corrigendum No. Dy. DEO/Kth/2018/2723-27 dated 31st of October, 2018, issued by the respondent No.6, whereby the petitioner has been replaced by the respondent No.8 as Returning Officer in Panchayat Halqua Keerian and Gnahyal, Block Keerian Gandyal, Tehsil and District Kathua. 11. In view of the order passed hereinabove in the earlier writ petition filed by the petitioner, being SWP No.2233/2018, coupled with the fact that the elections in question (Panchayat Elections Phase-III) stand already over, this writ petition has become infructuous. It being so, this writ petition shall stand disposed of as such, along with all connected IA(s). SWP No. 2390/2018; IA No. 01/2018: 12. This writ petition is directed against the order No. 555 of 2018 dated 12th of November, 2018, issued by the respondent No.2, whereby the petitioner has been placed under suspension and attached with the Divisional Forest Officer, Kishtwar. 13. When the matter came up for hearing, this Court, vide order dated 20th of November, 2018, stayed the operation of the impugned order dated 12th of November, 2018, meaning thereby that the petitioner was allowed to continue discharging his duties in the respondent Department. 14. Since the original transfer order dated 17th of October, 2018, which has been made the basis for placing the petitioner under suspension, on being put to judicial scrutiny, stands quashed by this Court in SWP No. 2233/2018, therefore, the suspension order of the petitioner (impugned herein this petition), being order No. 555 of 2018 dated 12th of November, 2018, deserves to be quashed as well. Accordingly, the order dated 12th of November, 2018, issued by the respondent No. 2, whereby the petitioner has been suspended, shall stand quashed. The respondents are directed to allow the petitioner to continue discharging his duties in the respondent Department and grant him all the benefits to the petitioner as are due to him, including the monthly salary in accordance with the rules governing the field. However, the respondents shall be at liberty to make fresh transfers/postings of the petitioner commensurate to his status. Writ petition, along with all connected IA(s), disposed of as above. Registry to place a copy of this order on each file.