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2019 DIGILAW 123 (JK)

Gulshan Kumar v. State of J&K

2019-03-13

DHIRAJ SINGH THAKUR, SINDHU SHARMA

body2019
Judgment 1. The present Letters patent Appeal (LPA) is preferred against the judgment and order dated 22.03.2018 whereby the petition filed by the petitioner-appellant herein challenging his order of transfer bearing No. 26-ADSJ of 2017 dated 31.07.2017 has been dismissed by the learned Single Judge. Briefly stated, the material facts are as under: 2. Petitioner is working against the post of a Seed Examiner since October, 2013. Subsequently, it appears that vide order dated 03rd of March, 2014, the petitioner was re-designated as Tassar Demonstrator in the identical pay scale as Seed Examiner. The cause of action to the petitioner accrued when the respondents issued order dated 31st of July, 2017 whereby he was transferred and posted from Mulberry Circle, Solki, District Rajouri to the office of the Manager Seed, Batote Sericulture Development Department, District Doda. The aforementioned order came to be challenged by the petitioner before the writ Court, inter alia, on the ground that the said order was in gross violation of the provisions of rule 23 of the J&K Civil Services Decentralization and Recruitment Rules, 2010 (for short, the Rules of 2010), inasmuch as, it was asserted that the petitioner was holding a district cadre post and could not have been transferred outside the district. It was also asserted that the pay scale enjoyed by the petitioner against the post of Tassar Demonstrator was less than the minimum of the scale enjoyed by a Senior Assistant and, therefore, in terms of Section 2 of the J&K Civil Services Decentralization and Recruitment Act, 2010 (for short, the Act of 2010), the petitioner could not have been transferred outside his parent district. 3. In response to the petition, the State took a stand that the petitioner belonged to the Divisional cadre as he was holding a divisional cadre post. It was also stated that the name of the petitioner figured in the seniority list prepared at the Divisional level and, therefore, he was not protected in terms of the Act of 2010 or the rules framed thereunder. 4. It was also stated that the name of the petitioner figured in the seniority list prepared at the Divisional level and, therefore, he was not protected in terms of the Act of 2010 or the rules framed thereunder. 4. The writ Court by virtue of judgment and order dated 22.03.2018 dismissed the writ petition by, inter alia, holding that while an employee within a district cadre ordinarily cannot be transferred outside his district, yet in terms of section 4 of the Act of 2010, the State had the power to issue a notification, excluding a post or a category of posts ordinarily falling within the district or divisional cadre and included in the divisional or State cadre. It was held that the petitioner was included in the divisional cadre and, therefore, his transfer could not be said to be bad or illegal. 5. Two issues, therefore, arise for consideration in the present appeal:— i. “Whether the petitioner was holding a district cadre post in district Rajouri. ii. Whether Government had issued any notification with a view to exclude the post held by the petitioner in terms of Section 4 of the Act of 2010 from the district cadre and ordered its subsequent inclusion in the divisional cadre.” 6. With a view to address these two issues, we deem it appropriate to refer to the relevant provisions of the Act of 2010 and the rules framed thereunder. Section 2(c) of the Act of the 2010 envisages as under:— “2 (c) “Divisional Cadre” means the cadre of a department in a Division comprising the following posts:— (i) all non-gazetted posts the basic pay of which exceeds the basic pay for the post of Senior Assistant but does not exceed the basic pay for the post of Sectional Officer and does not include the posts falling under the State Cadre; (ii) such gazetted posts or services as the Government may from time to time notify in this behalf; 6(a) Section 4 of the Act of 2010 is also relevant and envisages as under:— “4. Constitution of District, Divisional and State Cadre. Constitution of District, Divisional and State Cadre. (1) There shall be constituted District, Divisional and State Cadres of the Services which shall be organized on department basis and administered as such, subject to the general policy directives issued from time to time by the Government:— Provided that the Government may, by notification in the Government Gazette, in exceptional circumstances and for sufficient reasons, exclude a post or a category of posts ordinarily falling within District or Divisional Cadre, and include it in the Divisional or State Cadre as may be necessary: Provided further that if there is more than one office at the District/Divisional level in a particular department, each such District or Divisional level office along with its subordinate offices in the District or the Division, as the case may be, shall constitute a separate District or Divisional Cadre, as the case may be, unless the Government, by notification, specifies otherwise. (2) Notwithstanding anything contained in sub-section (I), the posts borne on temporary organizations created for specified works/projects other than the work charged establishment shall be treated as posts in the Divisional Cadre concerned for purposes of recruitment only. 6(b) Rules 23 of the rules framed under the Act of 2010 envisages as under— “23. lntra and inter-cadre transfers A member of the State, Divisional or District cadre shall be transferable only within his own cadre and shall in no case be transferable from one Divisional cadre to another Divisional cadre or District cadre, or from one District cadre to another District cadre or Divisional cadre post:— Provided that for posts in Leh and Kargil Districts, notwithstanding any other provision contained in these rules, members of any of the State, Divisional or District cadres may be transferred for such tenure as the Government may deem appropriate from time to time. In all such cases the lien and promotion prospects of such members shall be protected in their parent cadre.” 7. On a perusal of the scheme of the Act and the rules framed thereunder and, in particular, rule 23, it appears that there is a prohibition on the transfer of an employee holding a district cadre post to another district, unless, of course, the post held by him has been declared as a divisional cadre post in terms of Section 4 of the Act of 2010 by issuance of a notification in that regard. 8. 8. Admittedly, the petitioner is enjoying a pay scale which is less than the basic pay for the post of Senior Assistant. If that be the test, then, in the ordinary course, it would be presumed that the petitioner was holding a district cadre post. With a view, however, to verify as to whether the Government had issued any notification in terms of proviso to Section 4 to exclude the post held by the petitioner from the district cadre and its consequent inclusion in the divisional cadre, this Court, by virtue of order dated 07.08.2018, directed the respondents to produce the material to show as to whether the post of seed Examiner which was re-designated as Tassar Demonstrator had been ever declared as a divisional cadre post. 9. Pursuant to the directions passed by this Court, an affidavit dated 04.12.2018 was filed. It was stated that before coming into operation of the Act of 2010, the services of the petitioner were governed in terms of SRO 124 dated 03.04.2006 which defined the district cadre and divisional cadre as under:— District Cadre: “District Cadre” means the cadre of a Department in a District comprising all the posts whether executive, ministerial, technical or manipulative maximum of the pay scale or the basic pay of which does not exceed Rs. 7000/- per month exclusive of allowances and dearness Pay: Divisional Cadre:— “Divisional Cadre” means the Cadre of Departments in the Divisions comprising the following posts:— (a) all non-gazetted posts, the maximum of the pay scale or the pay, as the case may be of which exceeds Rs. 7000/- per month, exclusive of all allowances and dearness pay; (b) all non-gazetted posts, the maximum of the pay scale or the pay, as the case may be, of which does not exceed Rs. 7000/- per month exclusive all allowances and dearness pay but which are borne on the establishment of officers above the District level;” 10. It was stated that pursuant to the aforementioned SRO, even a common seniority list has been prepared by treating the petitioner as a divisional cadre employee, inasmuch as, petitioner was receiving pay in excess of Rs. 7,000/- per month. 11. It was stated that pursuant to the aforementioned SRO, even a common seniority list has been prepared by treating the petitioner as a divisional cadre employee, inasmuch as, petitioner was receiving pay in excess of Rs. 7,000/- per month. 11. On a perusal of the aforementioned SRO, it becomes clear that the same had been issued in exercise of powers vested in the Governor under Section 124 of the Constitution of J&K. Section 124 for facility of reference is reproduced as under:— “124. Recruitment and Conditions of service of persons serving the State Subject to the provisions of this Constitution, the Legislature may by law regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the State: Provided that it shall be competent for the Governor or such person as he may direct, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the Legislature under this section, and any rules so made shall have effect subject to the provisions of any such Act.” 12. On a perusal of the provisions above, it becomes clear that while the Governor did have the power to issue such an SRO, yet on the enactment of the Act of 2010, it is the provisions of the Act that shall have to prevail as the effect of the rules was subject to the provisions of the Act. With the promulgation of the Act of 2010, the test for determining whether a person holds a post in the district cadre or in divisional cadre has changed. Whereas as per SRO 124, an employee should not have been receiving more than 7,000/- per month exclusive of allowances and dearness pay, to be categorized as holding a district cadre post, as per the provisions of the Act of 2010 and the rules framed thereunder, such an employee, who does not receive pay which is less than or equivalent that of a senior Assistant is to be categorized as holding a post in a district cadre. It has not specifically been denied that the petitioner is receiving pay less than what is being paid to a senior Assistant. It has not specifically been denied that the petitioner is receiving pay less than what is being paid to a senior Assistant. If that be so, we have no difficulty in holding that the petitioner was, in fact, holding a district cadre post especially in view of the provisions of the Act of 2010. 13. The finding recorded by the learned Single Judge that the petitioner was holding a divisional cadre post appears to have been based more on the fact that the name of the petitioner had figured in the seniority list framed for divisional cadre employees. Learned Single Judge also appears to have omitted to notice that there was no notification issued by the Government in terms of Section 4 of the Act of 2010 which could exclude the post held by the petitioner from the district cadre. 14. Learned counsel for the respondents failed to satisfy us that there was any notification which would exclude the post held by the petitioner from district cadre and its subsequent inclusion in the divisional cadre. 15. Be that as it may, for the reasons mentioned above, the appeal is allowed. The judgment and order impugned dated 22.03.2018 passed by the learned single Judge is set aside. The Order dated 31.07.2017 impugned in the writ petition is quashed.