Jammu & Kashmir High Court
Sunil Kumar Gupta vs State Of J And K, Through Director Of ... on 19 April, 2004
Equivalent citations: 2004(2)JKJ267
JUDGMENT S.K. Gupta, J.
1. This case has a chequered history. The controversy in the present writ petition lies in a narrow compass as to whether an employee of any Organization, once transferred to some other Government Department by the Government itself, later permanently absorbed there, having been allowed all benefits like seniority, substantive Hen etc. could be ousted from that Department after a long spell of more than ten years, thereby taking away all such rights and benefits so enjoyed by him in the Government Department is justifiable as well as tenable in law.
2. The facts, as set out in the writ petition are that in the year 1991, the Advocate General and the Law Department moved proposals suggesting the Government to utilize the services of the petitioner in connection with various court cases. The Government in the General Administration Department examined the same and on the basis of 'No objection' from all the concerned as well as after due verification of the official position of the petitioner including that of his post, issued Government order No. 241-GAD of 1991 dated 11.3.1991, transferring the petitioner alongwith his post of Section Officer to the office of the Advocate General. On joining his new assignment, the work was also allotted to him by the Advocate General. In view of some controversy raised by the staff over allocation of work, the Advocate General took up the matter with the Government and in the meantime, the Additional Chief Secretary, Home Department, moved a proposal on 2.5.1991 for consideration by the General Administration Department to transfer the petitioner to the Home/Police Department to enable the petitioner to continue to deal with the court cases of the Home/Police Department. This proposal of the Home Department was duly examined and considered by the Government in the General Administration Department and Government order No. 443-GAD of 1991 dated 2.5.1991 read with corrigendum dated 29.8.1991 thereto were issued, transferring the petitioner to the Police Department where the petitioner joined on 6.5.1991. His performance resulted in the issuance of several orders, granting cash rewards. All such orders and certificates of Merit pertaining to the period 1991-92 up to 1996 stood reflected in the service book of the petitioner, maintained by the Police Department. In the meanwhile, considering his performance, respondents No. 2 had, vide letter dated 8.4.1993, addressed to the Additional Chief Secretary, Home Department, recommended promotion of the petitioner to a gazetted status. This matter remained under correspondence between Respondent No. 1 through Home Department and Respondent No. 2 (Annexure P-2, P-3 and P-4). In the year 1994-95, the petitioner also claimed benefit of Combatisation Scheme, 1990, sanctioned by the Government vide Home Department's order No. Home-GR-317 of 1990 dated 22.11.1990 under which all the ministerial posts like Senior Assistants, Head Assistants and the Section Officers stood combatised as Assistants Sub-Inspectors, Sub-Inspectors and Inspectors of Ministerial Executive Cadre respectively. The Home Department examined this case of the petitioner and considering the concurrence of Respondent No. 2 recommended it to the Government in the General Administration Department. The General Administration Department again considered this matter and on the basis of 'No objection' from the concerned, issued Government Order No. 743-GAD of 1995 dated 21.9.1995, granting the benefit of Combatisation Scheme to the petitioner from the date he had joined the Police Department, vide the same order, the post of Section Officer was restored to Milk Federation and another post of Dairy Supervisor carrying the same pay scale, offered by the Agriculture Production (Animal Husbandry) Department was converted into section officer and combatised it as Inspector (MEC).
3. The said Government order No. 743-GAD of 1995 dated 21.9.1995 was challenged by four Police Inspectors (Ministerial) In Srinagar Wing of this Court in SWP No. 1435 of 1995 titled Tilak Raj Sharma and Ors. v. State and Ors. and on 7.10.1995, an interim order came to be passed, staying the operation of impugned Government order No. 743-GAD of 1995 and directed that the position of those writ-petitioners shall be maintained as it existed before 21st of September, 1995 when the said Government order was passed.
The State respondents including the Home Department, General Administration Department, and the Director General of Police etc. filed their objections defending their action with regard to the transfer and permanent adjustment of the petitioner in the Police Department as well as extension of benefit of Combatisation Scheme. Later the State Government filed appeal No. LPA (SW) No. 89 of 1997 at Jammu Wing of this Court. In the said appeal, various grounds were taken to justify the transfer and permanent absorption of the petitioner in the Police Department within the parameters of rules and regulations. In the said LPA, the State Government included the Director General of Police as one of the appellants. The Division Bench hearing the appeal had, vide order dated 17.3.1997, stayed the operation of two impugned orders dated 7.10.1995 and 20.11.1996 of the learned Single Judge. It was further ordered that the status of the writ petitioners in SWP No. 1435/95 shall not be affected by any action of the State Government. Thus, the operation of Government order No. 743-GAD of 1995 was restored, and the petitioner continued to enjoy all benefits having been allowed by the Police Department.
4. The petitioner, however, claimed inclusion of his name in the seniority list in the cadre of Inspectors (Ministerial). Finding that his name did not figure in the said seniority list issued by Respondent No. 2 during the year 1996 and also that respondent No. 2 started dislodging the petitioner from the Police Department, the petitioner had to file the present writ petition, claiming the relief, enumerated as under: --
"a) Allow the writ petition of the petitioner with costs recoverable from Respondent No. 2 in person;
(b) Issue writ in the nature of certiorari, quashing the seniority list of Police Inspectors (Ministerial) issued by Respondent No. 2 inasmuch as it does not include the name of the petitioner in accordance with the CCA Rules, 1956;
(c) Issue writ in the nature of Mandamus commading Respondent No. 2: --
(i) to include the name of the petitioner in the seniority list and assign due placement therein, strictly in accordance with Rule 24 of the CCA Rules, 1956;
(ii) to accord consequential benefits such as time-bound promotion, as admissible under rules governing time-bound promotion;
(iii) to take effective steps to have the matter relating to raising of gazetted status/rank finally decided;
(iv) to consider and promote the petitioner to the post of Administrative Officer strictly in accordance with rules and orders referred heretofore, coupled with the seniority position and performance of the petitioner taking into account the Certificates of Merit and cash reward sanctioned by the Police Department from time to time;
(v) Issue writ in the nature of Prohibition commanding respondents to abide by the rules and regulations and refrain from taking any such action against the service interests of the petitioner as may be detrimental or disadvantageous to the petitioner in any manner, whatsoever; and Pass any other order, command or direction to the respondents as may be considered appropriate in the light of facts and Circumstances submitted heretofore."
5. Two sets of objections were filed in the present writ petition - one by Respondent No. 1, i.e., the State of Jammu and Kashmir through the Learned Addl. Advocate General and another by Respondent No. 2 through the Government Advocate, Mrs. Seema Shekhar Khajuria. In the latter objections, it is explicitly mentioned that the objections are on behalf of Respondents 1 and 2, knowingly that the State had separately filed their objections. Respondent No. 1 took divergent stand when the stand of the State-respondent No. 1 is taken into consideration. The respondent-State had admitted most of the facts and assertions projected by the writ-petitioner including the factum of his permanent absorption in the Police Department with effect from 6.5.1991. Besides, it stood explicitly asserted by the State-Respondent No. 1 that the petitioner will riot be ousted from the Police Department and that he would be considered for promotion as Administrative Officer as and when this post is filled up on substantive basis along with other eligible persons. On the other hand, respondent No. 2 questioned the authority of the State Government in the matter of transfer of the petitioner from Milk Federation/Scheme/Undertaking to the Police Department and grant of benefit of Combatisation Scheme of 1990 in favour of the petitioner. Respondent No. 2 totally disowned the petitioner as an employee of the Police Department. Respondent No. 2 also disowned the orders issued by the Police department granting cash rewards and certificates of Merit and besides it stood denied that the petitioner's service had ever been commended and also that the petitioner's service are no longer required in the Police Department, thus, forming the basis for dropping the promotion case of the petitioner. The respondent No. 2 has tried to justify his proposal for the ouster of the petitioner from the Police Department as his services have been of no use to the Police and could not be utilized in any of the wings of the Police Department. Further, respondent No. 2 questioned the authority of the Government in transferring the petitioner from Milk Federation, being a Co-operative Society, and also in utilizing the post of Dairy Supervisor in place of Section Officer and restoring the post of Section Officer to Milk Federation in terms of Government order No. 743-GAD of 1995. Respondent No. 2 further pleaded that the idea of raising the status of the petitioner to gazetted level was dropped, as the petitioner was not entitled to it. It has also been disputed by respondent No. 2 that the transfer of the petitioner was ordered by the Government due to intervention of the Governor of the State. The respondent No. 2 also denied entitlement of the petitioner for time-bound promotion in terms of SRO-14 of 1996 dated 15.01.1996. Referring to Governing order No. 743-GAD of 1995, Respondent No. 2 contended that vide letter bearing U.O. No. ASH/Milk/22/7 dated 10.11.1995, the Additional Secretary to Government, Animal/Sheep Husbandry Department addressed to the Commissioner/Secretary to Government, General Administration Department, pointed out that surrender of the post of Dairy Supervisor in place of Section Officer was subject to confirmation by the Board of Directors and hence the General Administration Department issued corrigenda dated 31.5.1995 and 1.7.1996.
6. As regards the claim of the petitioner for the post of Administrative Officer in the Police department, respondent No. 2 pleaded that SRO-226 of 1978 dated 13th May, 1978 read with Government Order No. 1952-GD of 1978 dated 08.09.1978 issued by the General Department, prescribing ratio of promotion from amongst the Section Officers and Senior Scale Stenographers/P.As. to the extent of 60:40 was not applicable to the Police (Gazetted) Service and as such, the petitioner could not be considered for the same, being not a member of the Police Service in the cadre of Inspectors (Ministerial).
7. During the currency of the writ petition, different CMPs came to be filed by the petitioner. After the Court had passed orders, interim in nature, on 10.10.1996, directing maintenance of petitioner's status quo and that his seniority shall not be affected to his detriment, CMP No. IA-II/1996 was filed seeking orders of this Court in the matters of his seniority, promotion, time-bound promotion, allowances like kit allowance under Combatisation Scheme of 1990 having been withheld by respondent No. 2. In CMP No. IA-III of 1997, the petitioner sought orders of this court in the matter of implementation of decisions taken by the Government in the Home Department in terms of communications dated 4.4.1997, 17.4.1997 and also orders and directions passed by this Court from time to time. On 30.4.1997, when the case was taken up, the following orders came to be passed:
"Mr. A. Kapoor, Addl. A.G. appears for Respondent No. 1, while Ms. Seema Sheikher, GA, appears for respondent-2. Court directions dated 17.12.1996 (Annexure P-B to this application) has not been implemented. It appears from State Government communications dated April 4, 1997 and April 17, 1997 that respondent-1 wants to implement the court direction in letter and spirit by respondent-2. It is not understandable why respondent-2 is not implementing the same.
Consequently, respondent-2 (Director General of Police, Jammu and Kashmir) is directed to implement the court direction within a period of two weeks from today and submit report in this court."
8. Respondent No. 2 filed compliance report annexing therewith a copy of order No. 47 of 1997 dated 11-1-1997, rejecting time-bound promotion case of the petitioner being not within the competence of respondent No. 2. The petitioner filed rejoinder to the objections filed by respondent No. 2 alleging mis-representation and suppression of facts by Respondent No2. and reiterated the submissions made in the writ petition inasmuch as the petitioner stood permanently absorbed in the Police Department with effect from 6-5-1991 in terms of Government order No. 743-GAD of 1995, being completely in force in view of Division Bench order dated 17.3.1997 in LPA (SW) No. 89 of 1997 filed by the State itself.
9. In the meanwhile, Respondent No. 2 filed objections to the CMP No. IA-III of 1997 in which respondent No. 2 had, under Preliminary Objections explicitly admitted that the petitioner was, at the relevant time, working as Section Officer in the Milk Supply Scheme/Undertaking who was transferred to the Police Department by the Government order No. 443-GAD of 1991 dated 2-5-1991, and vide subsequent Government order No. 743-GAD of 1995 dated 21-9-1995, the utilization of post of Dairy Supervisor was subject to confirmation by the Board of Directors of Undertaking and that the said Board had not confirmed this action. In reply to paras 3 and 4 of the said CMP, respondent No. 2 asserted that respondent No. 2 had never filed or authorized any one to file an LPA against the orders passed at Srinagar on 7-10-1995 in SWP No. 1435/1995. Respondent No. 2 further pleaded in the said objections that no post of Section Officer existed in any cadre of Police Department, the same being a civilian post and not covered under Police Act/Rules.
10. The petitioner filed another CMP No. IA-IV/1997 placing on record some further facts and record having close bearing on the merits of the case to rebut the assertions of respondent No. 2, aforesaid. In the meanwhile, respondent No. 1-State Government filed their objections pleading, inter alia, that after appreciating the performance of the petitioner as also with the concurrence of respondent No. 2, the petitioner was substantively absorbed in the Police Department and his time-bound promotion case was under active consideration under SRO-14 of 1996. Regarding petitioner's claim for promotion, respondent No. 1 also stated that the petitioner would be considered for promotion as Administrative Officer/Dy.S.P. (Ministerial) as and when other persons would be considered. As regards the claim of the petitioner for seniority, State Government also pleaded that his seniority would be determined under Rule 24 of the CCA Rules, 1956. It has also been pleaded by respondent No. 1 that no such action would be taken as may be detrimental or disadvantageous to the service interests of the petitioner including his transfer from the Police Department because of the fact that the petitioner has become a substantive member of the Police Department from 1991. This Court passed a detailed order in CMP No. IA-III/1997 on 29.8,1997 to the effect that since there are many Government orders passed in favour of the petitioner, therefore, his present status in the Police Department deserves to be maintained; the petitioner shall not be shifted from the J&K Police Department till the writ petition is finally decided; without compromising on the status of the petitioner, the respondent shall be at liberty to utilize the services of the petitioner at any place where the competent authority considers him to be suitable in the public interest, even if the petitioner loses the writ petition and finally it is held that the petitioner does not belong to the Police Department, then the petitioner's service in the Animal husbandry Department will not be under any cloud, therefore, the time-bound promotion cannot be refused; the petitioner shall not be considered for the purpose of promotion as Inspector Ministerial and his claim to be included in the seniority list of Police inspectors (Ministerial), shall be decided after the writ petition is disposed of.
11. The petitioner filed two CMPs Nos. 48-D of 1999 and 144-D of 2000. In CMP No. 48-D of 1999, the petitioner placed on record of this court Government Orders No. Home-380 (P) of 1997 dated 12.11.1997, No. Home-137 (P) of 1999 dated 23.03.1999 and No. Home-(P)-43 of 1998 dated 24.02.1998. In this application, the petitioner alleged that respondent-2 has been pressurizing the Respondent No. 1-State authorities, for repatriation of the petitioner from the Police Department on fabricated grounds and other mala fide considerations despite court orders in favour of the petitioner passed from time to time and that the General Administration Department was acting accordingly in the matter of his repatriation to Milk Federation, Jammu, to which he did not belong at the time of his transfer in 1991 and also that the Government Milk Supply Scheme converted into government Milk Supply Undertaking and since emerged into Milk Federation, a Cooperative Society, after his transfer in 1991. The petitioner further alleged that the General Administration Department was moving such a proposal of repatriation for consideration and decision by the Establishment Committee of the Civil Secretariat, which had nothing to do with the service matters of the petitioner whose administrative control lies with the Home Department. The petitioner further alleged that the same move of the General Administration Department at the behest of the respondent No. 2 was in utter disregard of the orders passed by this court on 10-10-1996 and 29-8-1997 and he prayed for summoning the records from the General administration Department showing the decision/recommendations of the Establishment Committee, Annexure 'A' appended with this application are copies of Government order No. Home-380 (P) of 1997 dated 12-11-1997 issued by the Additional Secretary to Government, Home Department, sanctioning In-Situ promotion in favour of the petitioner with effect from January 01, 1995;No. Home-37(P) of 1999 dated 23.03.1999 sanctioning and authorizing allowances and perks in favour of the petitioner from the date he had joined the Police Department "No. Home-(P) 43 of 1998, dated 24-02-1998, attaching the petitioner with the Home Department to continue to maintain liaison with the Government Advocates, Police Department and monitor court cases'. His lien was also ordered to be retained in the Police Department in the Ministerial Executive Cadre in terms of Government order No. 743-GAD of 1995, dated 21-9-1995. Copies of all these Government orders stood endorsed to the Commissioner/Secretary to Government, General Administration Department, respondent No. 2 his subordinate, namely, the Dy. Inspector General of Police, etc., which stood implemented by the Police Department who fixed the pay and allowances including perks in favour of the petitioner and recorded entries in his service book (Annexures B-1 and B-2 with the said CMP).
12. The petitioner filed an appeal No. LPA (SW) No. 456 of 1998 seeking orders of Division Bench on the same lines as had been passed on 17.3.1997 in LPA (SW) No. 89 of 1997 filed by the State and Ors. The petitioner-appellant therein alleged that Respondent No. 1 had, at the behest of respondent No. 2, namely, the Director General of Police, was bent upon damaging the service interest of the petitioner and may not effectively prosecute his appeal, aforesaid or safeguard the rights and interests of the petitioner-appellant which would be detrimental to him. Appreciating the merits of the case, the Division Bench was pleased to condone delay vide order dated 20.11.1998, admitting the appeal. Later vide order dated 08.12.1998, the Division Bench directed that order dated 17.3.1997 in LPA(SW)No. 89/1997 will apply to the case of the petitioner in this appeal and the respondents were directed to comply with this order.
13. Adverting to two CMPs (SW) No. 144-D of 2000 and 48-D of 1999, the same were taken up on 12.3.2001 when rejected by this court inasmuch as the claim of the petitioner for promotion and questioning the decision of the Establishment Committee on repatriation are concerned. The said rejection was based on the fact that the writ petition had not yet been finally disposed of. Aggrieved by the said order dated 12.3.2001, the petitioner filed yet another appeal No. LPA (SW) No. 86 of 2001 which came to be disposed of by the Division Bench vide order dated 23.04.2001 with the clarification that pendency of the writ petition would not preclude the respondents for considering the appellant-writ petitioner for promotion, if he is entitled to it.
14. The Government in the Home Department accordingly considered the matter relating to the promotion of the petitioner as Dy. Superintendent of Police (Ministerial) and for this purpose, they also sought the clearance of the Vigilance Organization and the Vigilance Department (General Administration Department) and they gave their concurrence which formed the basis for a proposal by the Home Department, bearing No. Home-PB/I/Estt/13/98 dated 14.02.2002, in which amongst other position relating to the substantive status of the petitioner having been permanently absorbed stood explicitly mentioned and not only that even the Home Department questioned the action taken by the General Administration Department and the Establishment Committee over repatriation of the petitioner to Milk Federation without any justification and proposal from the Home Department. Instead of appreciating the proposal of the Home Department, the General Administration Department reiterated the decision of the Establishment Committee for repatriation of the petitioner to Milk Federation, Jammu.
15. On 9th July, 2001, when the writ petition was taken up for disposal, this court took notice of various actions and decisions of the Government in favour of the petitioner which were taken on record of this court marked as Annexures C-1 to C-9. Respondent No. 2 also filed a copy of communication dated 15th December, 2000 marked as Annexure C-10. This annexure indicates the action of the General Administration Department and also of the Establishment Committee with regard to repatriation of the petitioner to Milk Federation, Jammu. That court in its judgment and order passed on 9.7.2001, directed the respondents to consider the claim of the petitioner for promotion as Deputy Superintendent of the Police, as per the stand of the petitioner and this should not be taken as expression of opinion of this court. The respondents were directed to take a decision within a period of three months from the date copy of this order is made available by the petitioner to the respondent-authorities. The petitioner was also left at liberty to prefer a representation also. The petitioner was also given liberty to approach this Court again if need would arise. It was further added that the respondents would take notice of the stand taken by them in the Preliminary Objections to CMP No. IA-IV of 1997 and would take decision within the above stipulated period. Later, the petitioner brought to the notice of this court some further apprehension of adverse order against him and, as such, his service rights required to be protected. Allowing this request of the petitioner, the court directed on 19.7.2001 that status quo of the petitioner would be maintained when the matter is under consideration and if any adverse order would be passed, the same be kept in abeyance for a period of six weeks and in that eventuality, the petitioner would be at liberty to challenge the ultimate order which may be passed by the respondents.
16. The petitioner later filed an appeal being LPA (SW) No. 233 of 2001 and on 04-09-2001, the learned Division Bench hearing it, stayed the operation of impugned orders. In the meanwhile, the State through the General Administration Department also filed two appeals being LPA (SW) No. 63 of 2002 and LPA (SW) No. 64 of 2002 challenging the orders of the writ court, aforesaid. On 14.03.2002, the Division Bench remanded the case to the writ court for deciding it as per law and set aside the impugned orders of writ court. Considering the directions of the Division Bench dated 14.03.2002, the petitioner moved an application being CMP (SW) No. 21-C of 2002 in the matter of continuance of status quo position in terms of orders dated 10-10-1996. The said application was taken up the same day, i.e., 14.03.2002 when the learned counsel for Respondent No. 2 appeared and sought time for filing objections thereto. The case was listed for further order on 19.03.2002 when the learned counsel for the respondents stated that in pursuance of the recommendations of the Establishment Committee, Government has taken a decision for repatriation of the petitioner to his parent department, i.e., Society in which the petitioner was initially recruited.
When the learned counsel for the petitioner assailed such a stand of the other side, this court observed that at that stage, this court was not deciding as to which is the parent department of the petitioner because that would be the subject matter of the main case. This court further observed is that whether the petitioner is entitled to relief, which was granted to him during the pendency of the writ petition. In its view, since the decision of the writ petition and passing of the order by the Letters Patent Bench, there has been subsequent development, i.e., some order has been passed by the Government, which order was yet to be brought on the record of this case. Therefore, considering the facts and circumstances of the case, respondents were directed to place the order passed by the Government on record by 03-04-2002 and the case was directed to be listed on 03-04-2002. The writ court made it clear to the learned counsel for the parties that the case would be decided on merit on the said date. Till then the order, which had been passed by the Government repatriating the petitioner to the Society, shall be kept in abeyance. The case was listed on 03-04-2002 and thereafter when the directions for keeping the Government order in abeyance came to be extended and on 16.5.2002, it was directed that the status quo shall be maintained till final disposal of the writ petition. The CMP was accordingly disposed of on 16.5.2002. In the meanwhile, the learned counsel for State-respondent No. 1 placed on record a copy of Govt. order No. 508-GAD of 2002 dated 19.03.2002 the perusal of which revealed that the General Administration Department repatriated the petitioner to Milk Federation, Jammu, on the ground that the Establishment Committee found earlier actions of the General Administration Department in the matter of transfer and then permanent absorption as well as grant of benefit of Combatisation Scheme as erroneous and that there was no rule in terms of which an official on an autonomous body could be posted in the Government Department. Another ground taken therein is that transfer of the post of Dairy Supervisor and conversion thereof into the post of Section Officer in the Ministerial cadre of Police Department was without jurisdiction as the post of autonomous body could not be transferred to a Government Department and, as such, transfer and adjustment of the petitioner in the Police Department was in violation of rules and without competence (of the General Administration Department). It is also mentioned in the said Government order that the Director General of Police does not want petitioner's continuance in the Police Department, as such, the petitioner be reverted to Milk Federation. Besides, in para 7 of the same Government order, a reference stood also made to the proposal of the Home Department but the General Administration Department and the Establishment Committee found no merit in it.
17. I have heard the learned counsel for the parties at length and also meticulously perused the record placed on the case file.
A confusing situation came to be created by the respondents with regard to the existence and working of Government Milk Supply Scheme/Undertaking and Milk Federation, It is, therefore, advantageous to reproduce Government orders issued by the General Administration Department, from time to time. Government Order No. 241-GAD of 1991 dated 11-03-1991 (Annexure P-5) reads as under: --
"Subject : Transfer of Mr. Sunil Kumar Gupta, Section Officer (1550-2550) from Animal Husbandry Department (Govt. Milk Supply Scheme/Undertaking) to Advocate General's Office.
Govt. Order No: 241-GAD of 1991 Date : 11-03-1991 In the interest of administration, Sh. Sunil Kumar Gupta, Section Officer in the pay scale of Rs. 1550-2550 of Government Milk Supply Scheme/Undertaking, Jammu, Animal Husbandry Department is hereby transferred alongwith his post to the office of the Advocate General, J&K, Jammu, to work as a Liaison Officer for expeditious disposal of various writ petitions.
By order of the Government of Jammu & Kashmir Sd/-
Commissioner I Secretary to Govt., General Administration Department."
In its endorsement part, meant for the Secretary to Govt., Law Department at Sr. No. 2), reference to his note dated 08-03-1991 on the subject stood also made. The endorsement at Sr.No. 4 also meant for the Managing Director, Milk Supply Scheme/Undertaking-cum-Milk Federation, Jammu, in which he was directed to relieve transferee immediately. At Sr. No. 5, the petitioner was directed for immediate compliance. In subsequent Government order No. 443-GAD of 1991dated 2-5-1991 read with corrigendum thereto dated 29-08-1991 (Annexures P-6 & P-7), almost the same position with respect to the petitioner's official status and rank was mentioned. In its endorsement part, at Sr. No. 1, meant for the Addl. Chief Secretary, Home Department, reference to his No. Home-Misc/91-Estt dated 2-5-1991 stood made. In the said corrigendum dated 29.8.1991, at Sr. No. 1 of the endorsement portion, meant for the Additional Chief Secretary, Home Department, reference to his OM No. Home-Misc/91-Estt. Dated 26-6-1991 also stood made with copy to Director General of Police, J&K, Srinagar. Later, another Government order No. 743-GAD of 1995 dated 21-09-1995 (Annexure R-3) the captioned subject matters reads:
"Permanent adjustment of Shri Sunil Kumar Gupta, Section Officer, Milk Federation (erstwhile Govt. Milk Supply Scheme/Undertaking) in the Home Department."
18. Under this order, the petitioner was given the benefit of Combatisation Scheme of 1990 and the post of Section Officer brought along with the incumbent, i.e., the petitioner was restored to Milk Federation, Jammu, and in its place, another post of Dairy Supervisor of the same pay scale was converted as Section Officer in the Ministerial cadre of the Police Department. Perhaps this position reflected in this Government order resulted in confusion. However, the respondent No. 2 widened this confusion in objections to the present writ petition and connected CMPs inasmuch as at some places, it stood pleaded that the petitioner being an employee of Milk Federation, a Co-operative Society could not be transferred by the Government to a Government Department and at other places, it stood mentioned that the petitioner held the post of Section Officer on the establishment of Government Milk Supply Scheme/Undertaking. The aforesaid confusion position persisted till the learned counsel for the petitioner clarified the factual position. The learned counsel for the petitioner drew my attention to para 14 of the writ petition and explained that during the period of 1960s or so, there existed Government Milk Supply Scheme, Cheshmashahi, Srinagar and Government Milk Supply Scheme, Jammu, which functioned under the administrative control of the Director, Animal Husbandry Department, J&K. Later the Government decided to convert Govt. Milk Supply Schemes into Government Milk Supply Undertakings and the staff under the aegis of Director Animal Husbandry Department working in Government Milk Supply Schemes came to be transferred to Govt. Milk Supply Undertakings. The functioning of these Government Milk Supply Undertakings, running on commercial lines, were controlled by a Governing Board of Directors with Minister Incharge of Animal Husbandry Department as its Chairman and other senior level functionaries of the Government as its Members. Later, the Government took decision to create Milk Federations - one for Jammu and the other for Kashmir Province which were also put under the administrative control of one and the same Managing Director of Jammu/Kashmir and also with one and the same Governing Body to control functioning of both Milk Federations and Undertakings. Both the Milk Federations came to be registered with the Registrar, J&K Co-operative Societies under the J&K Cooperative Societies Act and the Rules made thereunder.
19. These Milk Federations had to appoint their own staff depending upon their requirements. Regarding the petitioner's factual position, the learned counsel for the petitioner fairly admitted, as also mentioned in the writ petition under same para No. 14 that on 11-6-1985, the petitioner was appointed as Milk Procurement Assistant in the pay scale of Rs. 600-925 which pay scale came to be enhanced to Rs. 825-1240 and brought at par with other MPAs of Milk Federation Kashmir, later revised by the Government from time to time at par with Government Department. The petitioner was adjusted in Accounts-cum-Administration Section in view of his B.Com. qualification where he claimed promotion as Senior Accountant. The Government passed an order allowing the petitioner to work on the said post of Senior Accountant. In the meantime, an incumbent was transferred and deputed by the Finance Department to man the post of Senior Accountant and, as such, the orders of the Minister could not be implemented by the Managing Director. The matter landed before Srinagar Wing of this Court in Civil Suit No. 390 of 1988 in which, the court passed an order on 22.07.1988 to consider implementation of Minister's order, if according to rules and in the meantime, the present position of the plaintiff-petitioner herein shall not be disturbed. The Government in the Agriculture Production (Animal/Sheep Husbandry) Department took a decision and directed the Managing Director to implement court orders and consequently, the Managing Director issued order No. MDJ/P/85-88 dated 19.4.1989 (Annexure P-10) adjusting the petitioner as Section Officer in the pay scale of Rs. 1550-2550 which was also the pay scale of the petitioner at that time. His adjustment as such was subject to confirmation by the Board of Directors and also subject to withdrawal of court cases. Later, the Board of Directors confirmed the action of the Managing Director, aforesaid in terms of item No. 3.07 of agenda considered in June-July, 1989. The relevant extract of the decision of the Governing Body stood annexed as Annexure-P with CMP No. 75-C/2002. Since then, the petitioner held the post of Section Officer which post admittedly belonged to the Government on the Establishment of Directorate of Animal husbandry like that of the Dairy Supervisor in the pay scale of Rs. 1550-2550. The learned counsel for the petitioner further asserted that at the time of his transfer, the petitioner was holding the said post of Section Officer belonging to the Government which position has been duly examined and considered by the Government in the General Administration Department and verified as well while issuing Government order No. 241-GAD of 1991 dated 11-3-1991 and unfortunately, the General Administration Department and the Establishment Committee totally over-looked their own official records. Besides, after his transfer in the year 1991, the Government decided to wind up the Government Milk Supply Undertaking and merged it with Milk Co-operative Federations and the said Milk Federations too are at the verge of their being wound up and decision to hand over the same to private parties is in the pipe line, being under active consideration of the Government; therefore, also the action of the Establishment Committee and the General Administration Department taken at the behest of the respondent No. 2 in respect of the petitioner's repatriation to Milk Federation, Jammu, is totally illegal and contrary to the earlier conscious decisions taken by the Government.
20. During the currency of the present writ petition, not only various decisions came to be taken by the Government in the Home Department in favour of the petitioner, settling his several issues like time-bound promotion, allowances and other perks under the Combatisation Scheme of 1990, seniority and also took effective steps for the promotion of the petitioner to the next higher post of Dy. S.P. (Ministerial) and even obtained clearance certificates from the Vigilance Organization and the General Administration Department being the administrative department of the Vigilance Organization; therefore, the petitioner placed all such communications, decisions, orders and reference on record of the court file through an application bearing No. 75-C of 2002 and pleaded that all such communications and documents be accepted for reference purpose to advance the cause of justice in the case. Copy of Government order No. Home-(P)-517 of 1999 dated 26-11-1999 is Annexure 'A' whereby the Government had sanctioned Leave Travel Concession (for short LTC) in favour of the petitioner for block 1999-2000 with an advance of Rs. 18,000/- which order was implemented in letter and spirit by the Police Department. Annexures 'B' and 'C' appended therewith are two communications dated 27.11.1999 and 20.4,2000 written by the Director, Animal Husbandry Department addressed to the Secretary to Government, General Administration Department by which, the Director Animal Husbandry Department, Jammu asked for restoration of the post of Section Officer to that Department and not to Milk Federation.
Annexure 'D' is a letter from the Managing Director, Milk Federation, Jammu, addressed to the Inspector General of Police, Jammu Zone, Jammu, stating that the petitioner stood transferred along with his post of Section Officer maintaining no lien with them, as such, he expressed his inability to sanction efficiency bar in favour of the petitioner. Its copy stood endorsed to respondent No. 2. Annexure 'E' is another communication from the Managing Director Milk Federation/Undertaking Jammu in which it stood clarified that the post of Section Officer in the pay scale of Rs. 1550-2550 held by the petitioner belonged to the Government under the erstwhile Government Milk Supply Scheme (Animal Husbandry Department) converted into Milk Supply Undertaking which is also under the control of the said Managing Director. Annexure 'F' is a communication dated 24.11.1994 from the Additional Secretary to Government, Home Department addressed to the Commissioner/Secretary to Government, General Administration Department whereby 'No Objection' of the Home Department to the permanent absorption of the petitioner in the Police Department had been conveyed. Its copy also stood endorsed to Respondent No. 2 drawing the attention of Respondent No,2 to the discussion he had with the Additional Chief Secretary, Home Department on 22-11-1994 oh the subject. Annexure 'G' is a statement of vacancy-position that existed on the establishment of Government Milk Supply Scheme before existence of Milk Federation, Jammu.
The post of Section Officer (previously designated as Office Superintendent) and that of the Dairy Supervisor belonging to the Directorate of Animal Husbandry figured at Sr.Nos. 7 and 12 respectively. Annexure 'H' is a letter dated 19.3.2001 from the Director General of Vigilance addressed to the Commissioner/Secretary to Government, General Administration Department whereby the Vigilance Organization gave 'clearance' in the matter of promotion of the petitioner. Annexure 'J' is a detailed proposal dated 14.02.2002 of the Home Department seeking promotion of the petitioner as Dy. Superintendent of Police (Ministerial) in which the Home Department, besides justifying the proposal for promotion, inter alia, raised an issue over the action of the General Administration Department and the Establishment Committee for repatriation of the petitioner without consulting the Home Department which is the Administrative Department of the Police Department. In this communication, the Home Department gave full justification for the petitioner's promotion on the basis of his about 11 years of service in the Police Department with satisfactory performance and in that reference to the decision of the Home Department in the matter of petitioner's seniority position stood explained as well. Annexure 'K' appended with the said CMP No. 75-C of 2002 is the copy of LPA (SW) NO. 89 of 1997 filed by the State including other functionaries like Director General of Police to establish the explicit stand of the State Government as well as respondent No. 2 in favour of the petitioner. Annexure 'L' is the copy of the extract of Manual of Secretariat Procedure showing the manner and powers of the Establishment Committee in considering and deciding the cases of the employees of the Civil Secretariat and or other officials seeking any such benefit in the cadres of the Civil Secretariat. Annexure 'M' is the copy of Government Order No. 430- GAD of 1999 dated 05-04-1999, whereby Government had constituted the Selection Committee/Establishment Committee for dealing with service matters of the Civil Secretariat employees as per rules 69 and 69-A. Annexure 'N' is the Photostat copy of Article 37 of J&K Civil Service Regulations (for short CSRs. ) governing lien of a Government servant and Article 37-G says that the Government has no authority to terminate any such lien of any public servant. Annexure 'P' is the relevant extract of the decision of the Board of Directors for Govt. Milk Supply Undertaking/Milk Federation, Jammu, confirming the appointment by adjustment of the petitioner as Section Officer. Annexure 'Q' is the copy of SRO-177 of 1993 which provides transfer/selection of officers of autonomous bodies, corporation to Combined Services under KAS, and Annexure 'R' is the photostat copy of service book of the petitioner which inter alia, shows petitioner's position as holding the post of Section Officer belonging to Govt. Milk Supply Undertaking and not of Milk Federation.
21. Mrs. Seema Sheikhar Khajuria, learned counsel for respondent No. 2 filed objections on behalf of Respondent No. 2 praying for rejection of the CMP No. 75-C of 2002 taking various grounds. After hearing the learned counsel for the parties on this aspect of the matter on 14.8.2003, this Court allowed the said CMP as the Annexures appended therewith have close bearing on the merits of the case.
22. Needless to mention here, learned counsel for respondent No. 2 filed objections to the said CMP No. 75-C of 2002 showing the same as CMP No. 35-C of 2002. No proper procedure has been followed for effecting necessary correction thereto. However, the same stood considered. Respondent No. 1 chose not to file any objection to the CMP.
23. Learned Additional Advocate General appearing for Respondent No. 1 did not argue on the merits of the case as to whether the transfer and permanent absorption of the petitioner in the Police Department was right or wrong nor he commented upon the performance of the petitioner while posted in the Police Department since 1991 during which period, cash rewards and certificates of merit came to be conferred by respondent No. 2. He simply argued that the Government has issued Government order No. 508-GAD of 2002 dated 19.03.2002, repatriating the petitioner to Milk Federation, Jammu, which Government Order has not been challenged by the petitioner. He did not raise any question against the maintainability of CMP 75-C of 2002 nor questioned the validity and authenticity of documents annexed therewith.
24. Learned counsel for respondent No. 2 argued that the petitioner could not have been transferred to the Police Department as he belonged to Milk Federation, a Society, nor he could be granted benefits in terms of Combatisation Scheme and his absorption in the Police Department is not tenable under Police Manual. She referred to Rule 174 of J&K Police Manual which reads as under:
"174. DIRECT APPOINTMENT OF INSPECTORS AND ASSISTANT SUB-INSPECTORS.
Recruitment may be made directly only to the rank of Assistant Sub-Inspector upto a limit of 50% of the vacancies. The Government may however permit the Inspector General of Police to make appointments direct to other non-gazetted ranks.
25. She further argued that at no stage, respondent No. 2 sought the services of the petitioner in the matter of strike by either Bar Association, Jammu or Chemists & Druggists and all such certificates (Annexures P-1 (i to xiii) would be of no help to the petitioner for claiming substantive absorption in the Police Department. She also argued that since the petitioner has not impleaded the Inspectors of Police (Ministerial Executive Cadre) in the writ petition for the purpose of claiming seniority over them, the writ petition merits outright dismissal. It is also argued that the writ petition is not maintainable at all inasmuch as he has sought relief against respondent No. 2 against whom the petitioner levelled allegations. Further, she argued that when respondent No. 2 found that the petitioner was not entitled to any thing from respondent No. 2, such as promotion, in-situ benefits and combatisation, the respondent No. 2 rightly rejected all such claims of the petitioner, being not an employee of the Police Department. She further argued that no such decision had been taken by the Governor of the State during 1991 for utilizing the services of the petitioner for Court cases and, as such, the Government in the General Administration Department or the Home Department could not have issued the Government orders from time to time granting some benefits and later the General Administration Department rightly considered the view point of respondent No. 2 and issued Government Order No. 508-GAD of 2002 on 19.3.2002, repatriating the petitioner to Milk Federation to which he belonged, which was based upon the recommendations and decision of the Establishment Committee headed by the Chief Secretary.
26. Whereas the learned counsel for the petitioner, on the one hand, argued that the State-respondent including the General Administration Department, Home Department and the Director General of Police and others in Srinagar Wing of this Court took explicit stand justifying the transfer and permanent absorption of the petitioner in the Police Department. He drew my attention towards the pleadings of the State-respondents in SWP No. 1435/1995 titled Tilak Raj Sharma and Ors. v. State and Ors. wherein the State had pleaded under Para IV of their objections that in the year 1991, the Government noticed that the cases pertaining to different departments including the Home Department were going by default for want of proper follow-up action which matter came to be considered by the then learned Advocate General and the Secretary to Government, Law Department, who made out a proposal to the General Administration Department for utilizing the services of the petitioner for maintaining liaison with the Law Officers of Advocate General and the Government Departments. On consideration of the matter and after obtaining 'No Objections' from all the concerned, the Government issued Government order No. 241- GAD of 1991 dated 11-3-1991 firstly, transferring the petitioner to the office of the Advocate General and later, to the Police Department vide Government Order No. 443-GAD of 1991, dated 2-5-1991 for which, the Additional Chief Secretary, Home Department had sent proposals to the General Administration Department. The learned Counsel for the petitioner also drew my attention to the pleadings of the State-respondents under Para V of their said objections under which it is reflected that the petitioner (respondent No. 10 in SWP No. 1435/95) had exhibited excellent performance, outstanding efficiency and also maintained effective liaison with the public, striking Advocates and the representatives of Chemists & Druggists of Jammu with the result that the strikes were called off by them. Under Para VI of the same objections, it stood also pleaded that the General Administration Department had duly examined the matter and considered the 'No Objections' from the concerned before issuing Government Order No. 743-GAD of 1995, dated 21-9-1995. In sub-para (c) at page 11 of the said objections, it stood also pleaded that the seniority of the writ petitioners (in SWP No. 1435/1995) would be required to be determined strictly in accordance with Rule 24 of J&K Civil Services (Classification, Control & Appeal) Rules, 1956. Under the same sub-para (c), it stood also pleaded that respondent No. 1 (writ-petitioner in SWP No. 1330 of 1996) belonged to Undertaking holding the post of Section Officer of the Government since 19.4.1989. A copy of the said objections stood annexed as Annexure K-1 with CMP No. 75-C of 2002.
Annexure 'K' appended therewith is the copy of LPA (SW) No. 89 of 1997 filed by the State through Chief Secretary, Commissioner/Secretary to Government, General Administration Department, Home Department and the Director General of Police. In this appeal, the present petitioner was arrayed as respondent No. 6. The learned counsel for the petitioner drew my attention to page 6 of the appeal in which it stood pleaded by the State-Appellants that the said respondent No. 6 has all along been an asset to the Government and after appreciating his over all performance, dedication, hard labour, etc., several cash rewards and Certificates of Merit came to be issued in favour of the petitioner. Under sub-para (iv) at page 9 of the said appeal, it stood pleaded that respondent No. 6, i.e., writ petitioner herein, had been transferred in the interest of administration from the Government Milk Supply Undertaking (erstwhile Government Milk Supply Scheme) alongwith his post of Section Officer of the Animal Husbandry Department and since 1991, he has been taking care of court cases by maintaining effective liaison with the Government Advocates and the Departments concerned. Under sub-para (v) at pages 10-11 thereof, it stood reiterated the factum of petitioner's said performance holding the post of Section Officer belonging to the Government, Under para 5 at pages 12-13 of the same appeal, it is explicitly pleaded that the matter relating to Government cases having gone by default came to be considered at the highest level of the Government and it was decided that the cases should be entrusted to a particular person who could maintain liaison with all the concerned and hence Government Orders No. 241-GAD of 1991 dated 11-3-1991, No. 443-GAD of 1991 dated 2-5-1991, read with corrigendum dated 29.8.1991 had been issued. Under para 6 of the appeal at its page 14, it stood pleaded that the petitioner maintained effective liaison with the Advocates of Bar Association Jammu, in 1991 and the Druggists and Chemists over the increase in sales tax on medicines in 1993-94 and worked extremely hard and the strikes had been called off, thus, defusing the tension from law and order point of view. Annexure 'L' appended with the said CMP is the copy of Manual of Secretariat Procedure issued by the Government through the General Department after approval thereto under Government Order No. 310-C of 1959 dated 21-12-1959. From the perusal of Rules 67 to 69-A of the said Manual, it will transpire that a detailed procedure stood laid down how to fill up the vacancies by promotion and settle other service matters of the employees of the Civil Secretariat and how the Establishment Committee of the Civil Secretariat will decide such matters. Under Sub-rule (iv) of Rule 69-A, it is also provided that the Chief Secretary may (at his own) refer to the Committee any such matter relating to the establishment as are of an important nature or are likely to set precedent for future. Impliedly, the Establishment Committee had the jurisdiction to deal with the cases of the employees of the Civil Secretariat and to take decisions thereon or of any other employee who would require to be given any such benefit in the Civil Secretariat cadres. Learned counsel for the petitioner pointed out that all service matters of the petitioner after his permanent absorption in the Police Department could be decided either by respondent No. 2 or by the administrative department, i.e., Home Department. Annexure 'N' is the photo-stat copy of Article 37 of J&K CSRs and Article 37-G thereof is reproduced as under:
"A Government servant's lien on a post may in no circumstance be terminated even with his consent, if the result will be to leave him without a lien, or a suspended lien upon a permanent post."
27. The learned counsel for the petitioner argued that in view of the aforesaid provisions of J&K CSRs, the General Administration Department and the Establishment Committee had no right to repatriate the petitioner after his permanent absorption in the Police Department where he has already acquired a permanent lien on the post of Inspector (Ministerial) in terms of Government Order No. Home-43-(P) of 1998 dated 24.02.1998 (Annexure A-1).
28. Annexure 'P with the said CMP is the extract of the decision of Board of Directors who confirmed the action of the Managing Director in respect of adjustment of the petitioner as Section Officer and a rider stood put therein that the grade effect should be given prospectively. The learned counsel clarified that since the petitioner was already in the pay scale of Rs. 1550-2550, which was also the pay scale of the post of Section Officer at the relevant point of time, therefore, no financial benefits had accrued to petitioner.
29. Annexure 'Q' is the photo-stat copy of SRO-177 of 1993 under which the Government framed the rules called "The Jammu and Kashmir Administrative Service (Amendment) Rules, 1993." In these Rules, the Feeding Services for the purpose of induction into KAS stood defined and at page 4 under item (C), it stood provided that the induction by selection would be made from amongst the persons belonging to autonomous bodies/Government owned Public Sector Undertakings. Referring to the said provisions, the learned counsel for the petitioner vehemently assailed the action of the General Administration Department and the Establishment Committee in the matter of repatriation of the petitioner and that too long after more than a decade's permanent absorption in the Police Department. At this stage, the learned counsel for the petitioner drew my attention to the explicit assertion of the State-appellant in LPA(SW) No. 89 of 1997, being Annexure 'K' with the said CMP wherein the said State-appellants explicitly pleaded that the Government is the best judge to decide as to services of which person could be utilized for the public service/in the interest of administration and such powers of the Government could not be interfered by way of writ petition filed by Tilak Raj Sharma & others in Srinagar Wing. The State-appellants have gone ahead further by pleading that instances are not warranted wherein the Government transferred some persons from-autonomous bodies, Corporations, etc. such as J&K Cultural Academy of Arts, Culture & Languages, on the Government side in the interest of public services the Government in its wisdom had to decide such issues and the writ-petitioners in SWP No. 1435/1995 have no right to challenge the said powers of the Government. The learned counsel for the petitioner further drew my attention to the photo-stat copy of service book appended with CMP No. 75-C/2002 as Annexure 'R' which shows all the entries with respect to his performance and pay fixation as Inspector (Ministerial) with effect from 6-5-1991, the date when he had joined the Police Department but neither the General Administration Department nor the Establishment Committee cared little to verify the facts and the official status of the petitioner inasmuch as his holding the post of Section Officer, belonging to the Government is concerned. The learned counsel for the petitioner further submitted that in view of the explicit stand taken by the State in SWP No. 1330 of 1996 and connected CMPs No. IA-III of 1997 and IA-IV of 1997, the objections filed by respondent No. 2 are totally irrelevant, misleading and suppressed material facts and not only that, respondent No. 2 and his subordinate officers filed such affidavits from time to time with oblique motive and to frustrate administration of justice. He referred to the judgment of Hon'ble the Supreme Court of India in case titled Chandra Shashi v. Anil Kumar Verma, 1995(1) SCC 421- laying down that --
"Any one who takes recourse to. fraud, deflects the course of judicial proceedings or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice."
30. The learned counsel for the petitioner further alleged that the authorities of the Police Department who are expected to be custodian and protector of law have themselves violated all rules, regulations and decisions of the Government and for such a long 'lis', the petitioner has been made to suffer too much. All these years, he also alleged that the senior functionaries of the Government in their capacity as Members of the Establishment Committee even ignored the judgment of Hon'ble Division Bench of this Court passed on 23.4.2001 in LPA (SW) No. 86 of 2001 and shelved the promotion case which was also considered in a mechanical and rubber stamp manner by the Departmental Promotion Committee.
31. The learned counsel for the petitioner also drew my attention to two corrigenda issued by the General Administration Department- one is dated 31-5-1995 and the other is dated 1.7.1996. Vide corrigendum order dated 31.5.1995, Government order No. 743- GAD of 1995 dated 21-9-1995 is shown to have been modified on 31.5.1995, i.e., much before the existence of the said Government Order. Its copy stood endorsed to the petitioner as well. The subsequent corrigendum is dated 1.7.1996 in which it is mentioned that earlier corrigendum dated 31.5.1995 was due to typographical error. Copy of the subsequent corrigendum had not been endorsed to the petitioner and since it had been issued at the back of the petitioner, affecting his service rights, it is subject to judicial scrutiny.
32. The learned counsel for the petitioner further submitted that no proper procedure had been adopted while issuing the corrigendum and in violation of the settled procedure in the Civil Secretariat, as defined under the Secretariat Manual coupled with the provisions contained in the Jammu and Kashmir Government Business Rules, framed under Section 43 and Sub-section (2) of Section 45 of the Constitution of Jammu and Kashmir. He alleged that the corrigendum had been issued at incompetent level-officers of the General Administration Department. In rebuttal to the said assertion and allegations, there was no response from the other side nor they produced the record to prove otherwise.
33. On the question of applicability of Rule 174 of J&K Police Manual, the learned counsel for the petitioner submitted that the said rule clearly envisages that the Government is competent to make appointment to the cadre of Inspectors of Police itself or it can authorize the Inspector General of Police to make such an appointment. Therefore, assertion of respondent No. 2 holds no legal force inasmuch as it stood pleaded and argued that the rules do not permit at all for such an appointment.
34. On the question of applicability of SRO-266 of 1978 dated 13th May, 1978 read with Government Order No. 1952-GD of 1978 dated 8-9-1978, issued by the General Department, providing ratio and method of appointment by promotion to the posts of Under Secretaries and or Administrative Officers in the Heads of Departments to the extent of 60:40 for Section Officers and the Stenographers/PAs, the learned counsel for respondent No. 2 has taken a plea that these provisions are not applicable in the Police Department. On the contrary, the learned counsel for the petitioner produced a copy of another Government Order No. 68-Home (P) of 2000 dated 9-2-2000 issued by the Home Department whereby the ratio for such a promotion stood changed and provided that 5 posts of Dy. Superintendents of Police (Ministerial) would go to Ministerial Executive Cadre and 6 posts to Stenographers. Changing the ratio in the Police Department, as per their requirement would not, therefore, dis-entitle the petitioner from such a consideration and, in fact, the Government in the Home Department has already taken decision in this behalf and the matter was consequently considered by the Departmental Promotion Committee in the year 2001. Therefore, on the face of such actions having been taken with all fairness and transparency by the Home Department, assertions of respondent No. 2 to the contrary have no legal force.
In support of all arguments and contentions, the learned counsel for the petitioner relied upon different judgments. In case titled Clerke and Ors. v. Chadburn and Ors. (1985) 1 All ER 211 (paras (H' and T), the petitioner referred to law laid down that:
"...I need not cite authority for the proposition that it is of high importance that orders of the Court should be obeyed. Wilful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claimed that they have validly effected some changes in the rights and liabilities of others, I cannot see why it should be said that although they are liable to penalities for contempt of court for doing what they did, nevertheless, those acts were validly done, it is not undone merely by pointing out that it was done in breach of the law. If a meeting is held in breach of an injunction, it cannot be said that the meeting had not been held. But the legal consequences of What has been done in breach of law may plainly be very much affected by the legality. It seems to me on principle that those defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by illegality that produced them."
35. The learned counsel for the petitioner submitted that the respondents-State including the General Administration Department and senior level officers of the Establishment Committee grossly violated Court directions passed on 10-10-1996 and 29-8-1997 inasmuch as the petitioner had been dislodged from the Police Department in November 1997 and the Additional Chief Secretary, Home Department, through various communications and demi-official letters addressed to respondent No. 2 advised the Police Department not to violate the court orders. On the basis of correspondence exchanged between respondent No. 2 and the Additional Chief Secretary, Home Department, the petitioner was later attached with the Home Department vide Government Order No. Home-43 (P) of 1998 dated 24.02.1998 (Annexure P-1) and it was directed that the D.I.G. Jammu, shall continue to draw and disburse pay to the petitioner. Under the same Government Order, the Government directed retention of lien of the petitioner on the post of Inspector Ministerial in terms of Government Order No. 743- GAD of 1995.
36. Later, the General Administration Department placed the matter before the Establishment Committee and the said Committee took decision for repatriation of the petitioner to Milk Federation, Jammu, knowingly that the petitioner did not belong to Milk Federation at the time of his transfer in the year 1991 to the Police Department and secondly that the Government Milk Supply Undertaking had since been closed down and the Milk Federation Jammu, was also being closed down for which the proposal was under active consideration of the Government and, consequently, the employees of Milk Federation are being thrown on the road side. Therefore, the decision of the Establishment Committee finally culminated into Government Order No. 508-GAD of 2002 dated 19.3.2002 cannot stand judicial scrutiny, besides being contemptuous on the face of court order dated 29.8.1997.
37. In referring the case titled Hukum Chand Shyamlal v. Union of India, 1976 (2) SCC 128 (Para 18), the learned counsel made specific reference to the law laid down-
"It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided will be violative of the fundamental principles of natural justice."
38. The learned counsel for the petitioner argued that under Rules 68, 69 and 69-A of Secretariat Manual, all the cases of the employees of Civil Secretariat could only be considered and decided by the Establishment Committee; therefore, it had no competence and jurisdiction to deal with the case of the petitioner - an Inspector of Police (MEC). According to him, if a statute directs a thing to be done in a particular manner, action taken other way is illegal and applying the ratio of this judgment, the action of the Establishment Committee as culminated into Government Order No. 508- GAD of 2002 dated 19.3.2002 are totally illegal and the result of such a colourable exercise of powers by the concerned cannot stand the test of law, also being clearly contemptuous on the face of court directions of 10-10-1996 and 29-8-1997.
The learned counsel for the petitioner also referred to another case titled Union of India v. Kishori Lal Bablani, (1999) 1 SCC 729 (Paras 6-8) in which it stood laid down that --
"Error (in any administrative action such as promotion) ordered by the Government several years back, could not be re-opened after such a long period in the interest of the proper functioning and morale of the Services concerned.
We do not think that it would be fair to the respondents to take away the benefit which the respondent has secured on the basis of the contentions which are accepted as justified."
39. According to the learned counsel for the petitioner, when the Government had taken conscious decisions in the year 1991 for transferring the petitioner to the Police Department and later permanently absorbed him and granted permanent lien in the cadre of Inspectors (Ministerial) and the Government had taken specific stand before the Division Bench of this Court in their LPA (SW) No. 89 of 1997 and other proceedings including their objections in SWP No. 1435/1995 titled Tilak Raj Sharma and Ors. v. State and Ors. justifying transfer and permanent absorption of the petitioner in the Police Department and not only that, the Government granted all consequential benefits within the parameters of rules and regulations, the respondents-State including the General Administration Department and the Establishment Committee could not be permitted by any law to have taken a contrary decision after a long spell of more than a decade or so to repatriate the petitioner at a stage when the Home Department had already moved proposals for his promotion, as such, all the proceedings and orders/decision taken by the General Administration Department deserve to be declared illegal and unsustainable in law.
40. The learned counsel for the petitioner further vehemently argued that almost all the senior level officers of the Establishment Committee were party to the decision taken by the Board of Directors of Milk Supply Undertaking/Milk Federation in the year 1989 with respect to the appointment of the petitioner as a Section Officer, therefore, those officers including the General Administration Department have set a very bad precedent in finding fault with the decision of the highest authority of the State, i.e., the Governor during the Governor's Rules in 1991 in the State.
In referring to the case titled S.K. Jain v. P.S. Gupta, 2002 (3) SCT 521 Delhi (D.B.), the learned counsel referred to para 12 thereof in which it stood laid down that: "..when there is a challenge to the principles of determination of seniority, the persons who are likely to be adversely affected are not necessary parties. They are at the most a proper party and their absence is not fatal to the maintainability of the writ petition."
41. According to the petitioner, on the mandate of Rule 24 of J&K CCA Rules, 1956, the petitioner claimed benefit of seniority and for this purpose he had submitted complete bio-data of all the Police Inspectors (Ministerial) including that of his own to facilitate the authorities to fix his seniority which stood rejected by respondent No. 2 and also that during the currency of the writ petition, all those Inspectors had either been promoted as Deputy Superintendent of Police (Ministerial) or have retired and even otherwise, non-joinder of such persons in the present writ petition cannot prove fatal to it.
In referring to the judgment dated 30.8.1996 passed by this court in COA (SW) No. 28 of 1996 titled Brig. Rajbir Singh Khanna v. Lt. General Ravi Aipe and Anr., the learned counsel for the petitioner drew my attention to para 3 page 10 which reads as under:
"When any action is taken contrary to court orders/judgments and is found void, complaining party is not required to file a separate cause to seek a declaration that the said action was void.."
42. Relying upon the aforesaid case decided by Mr. Justice B.A. Khan (then he was), the learned counsel for the petitioner submitted that when the General Administration Department and the Establishment Committee violated court orders dated 10-10-1996 and 29-8-1997 and also transgressed their competence and jurisdiction in the matter of taking decision for repatriation of the petitioner to Milk Federation, Jammu, and in consideration of the aforesaid mandate of judgment, the proceedings and the decision of the Establishment Committee finally culminated into Government Order No. 508-GAD of 2002 dt. 19.3.02 get vitiated and cannot stand the test of law.
While referring the case titled Gour Shanker Pani v. State of W.B,, AIR 1996 Cal 13, the petitioner's counsel referred to the law laid down thereunder:
"When there is manifest injustice and after coining to a finding that an equity exists in favour of the petitioner, the writ court can mould the relief in order to do justice between the parties. The concept of justice cannot be restricted on to a strait-jacket formula but is very wide and the Law Courts exist to do justice and come in the aid of a person who seeks justice against an administrative caprice and its ipse dixit."
43. Again while referring to the case titled Style (Dress Land) v. Union Territory, Chandigarh and Anr., AIR 1999 SC 3678, the learned counsel for the petitioner drew my attention to the law laid down that:
"While exercising the powers of judicial review, the Court can look into the reasons given by the Government in support of its action but cannot substitute its own reasons. The court can strike down an executive order, if it finds the reasons assigned were irrelevant and extraneous. The Courts are more concerned with the decision making process than the decision itself."
44. The learned counsel for the petitioner also referred to a case titled Bashir Ahmed Parrey and Ors. v. State of Jammu and Kashmir and Ors. (SWP No. 221 of 1996) filed in this Court. In that case, the petitioners who were Inspectors of Police also claimed benefit of promotion as Dy. Superintendent of Police (Ministerial) and in their case, the respondents-State including the Director General of Police had taken a plea that for such promotion only incumbents are required to undergo capsule training course for some days whereas in the case of the present writ-petitioner, the respondent No. 2 has taken a plea that specialized training course is required which the petitioner has not undergone and as such could not be accepted as an employee of the Police Department in the cadre of Inspectors (Ministerial). At this stage, the learned counsel for the petitioner again made reference to Rule 174 of J&K Police Manual, which does not contain any such stipulation coming in the way of the petitioner. The said writ petition No. 221 of 1996, as contended by the learned counsel for the petitioner stood disposed of having become infructuous in terms of order and judgment dated 14.8.2000 and the petitioner also stood promoted as such.
45. The learned counsel for the petitioner also referred to case titled State of Maharashtra v. Durga, according to which the stands taken by the Government Advocate and the Advocate on panel and situation arising out therefrom stood deprecated. It was held in that case that:
"Stand taken by the Government Advocate/Advocate on panel contrary to the stand taken by the Advocate General is invalid.
Such a situation arising out of different proceedings of filing the appeal or applications independent of Government Pleader's office may result in chaotic condition and, in the given conflicting order also."
46. The learned counsel for the petitioner referred to the objections filed by the respondent-State (No. 1) in the present writ petition and also the connected CMP No. IA-IV of 1997 and the objections of respondent No. 2 both in sharp contrast. Therefore, the stand taken by respondent No. 2 through their learned counsel contrary to the specific stands of the Government requires to be rejected outrightly on the mandate of the aforesaid judgment.
47. The learned counsel for the petitioner also drew my attention to Annexure C-1 to C-9 already taken on record while disposing of the writ petition on 9.7.2000, which establish the genuineness of the pleadings of the petitioner and setting at rest the controversy created by respondent No. 2 and also the changed stand of the Government in terms of Government order No. 508-GAD of 2002 dated 19.3.2002 inasmuch as the petitioner has basically challenged the move of respondent No. 2 for petitioner's ouster from the Police Department.
48. After examining the pleadings of the parties, the documents placed on record and various decisions taken by the Government in favour of the petitioner, from time to time, I am of the considered view that once the petitioner's appointment by adjustment as Section Officer was made in the year 1989 pursuant to court orders dated 22.7.1988 in COS No. 390 of 1988, and the decisions taken by the Government to implement the same which appointment of the petitioner had also been confirmed by the competent authorities in the year 1989 itself after the petitioner had withdrawn all court cases against the concerned, there is no justification at all with the respondents to have raised controversy over the official status of the petitioner qua his post of Section Officer. Re-opening of all such issues after a long spell of more than a decade or so to unsettle the settled things, is not permissible at all in law and, as such, all such contrary pleas taken by the respondents are without any legal foundation, neither acceptable nor tenable in law.
49. The official records and the pleas taken by the Government in various judicial proceedings to establish that during the Governor's/Presidential Rule in the State, the Governor had taken a decision in the year 1991 on the basis of which the then Learned Advocate General and the Law Department made out their respective proposals for utilizing the services of the petitioner which proposals came to be duly examined and considered by the Government in the General Administration Department and after considering 'No Objection' from all the concerned, issued Government orders transferring the petitioner to the Police Department in the year 1991 when his joining there was also accepted by the authorities of the Police Department and allowed him to work assigned to him. On the basis of his over-all performance, which stood classified as 'Outstanding' and the petitioner also categorized as an 'asset' to the Government and the Police Department, respondent No. 2 could not be permitted to take steps to dislodge the petitioner from the Police Department knowingly that the petitioner has become a substantive member of the Police service in the cadre of Inspectors (Ministerial) w.e.f 1991. Respondent No. 2 also acted in an arbitrary and mala fide manner by disowning all these orders and taking a stand that these orders and decisions of the respondents are of no advantage to him for the purpose of claiming anything in the Police Department. The respondent No. 2 also chose to violate orders and decisions of the Government, although, such orders and decisions came to be implemented by the subordinate officers, namely, the Deputy Inspector General of Police. When the Government in the Home Department did not take cognizance of proposals of the Police Department for the ouster of the petitioner from the Police Department, it is stated that influence came to be built on the General Administration Department and the petitioner expressed all such apprehensions for his being dislodged through the medium of proper applications and also appeal under the Letters Patent Rules. Despite that, the General Administration Department acted contrary to their own decisions and official records and issued Government Order No. 508-GAD of 2002 dated 19.3.2002 for repatriation of the petitioner to Milk Federation knowingly that firstly, the petitioner did not belong to Milk Federation at the time of his transfer to Police Department in the year 1991, made in the interest of administration, and secondly, the Government had ordered maintenance of lien of the petitioner in the cadre of Inspectors (Ministerial) which could not be terminated even by the Government itself under Article 37-G of J&K CSRs.
50. When the respondents decided to grant out of turn promotion to the petitioner in consideration of his performance in the Police Department and proposals came to be initiated in the Police Department during the year 1993, which as claimed by respondent No. 2 in the pleadings, to have been dropped later on the ground that the petitioner was not entitled to any such promotion, such actions have neither any justification nor any basis.
51. As regards the claim of the petitioner for his promotion as an Administrative Officer/Deputy Superintendent of Police (Ministerial), when he stood permanently absorbed in the Police Department and given all allowances and perks under the Combatisation Scheme, the consequential benefits could not be deprived of. It was not proper for the General Administration Department to have placed the case of the petitioner before the Establishment Committee in view of the provisions contained in Rules 68, 69 and 69-A of the Secretariat Manual, as the petitioner had not claimed anything on the service cadre of the Civil Secretariat and all his service matters could be decided by either respondent No. 2 or by their Administrative Department which is Home Department. The Members of the Establishment Committee were almost all the senior-level officers of the State Government, who were earlier also the members on the Board of Directors of Milk Supply Undertaking/Milk Federation, and they were party to the decision with respect to the confirmation of appointment of the petitioner as Section Officer. In gross violation of court orders dated 10.10.1996 and 29.8.1997, the General Administration Department and the Establishment Committee took decision to repatriate the petitioner to Milk Federation to which he did not belong at the time of his transfer in the year 1991 to the Police Department. It was well within the knowledge of the General Administration Department and the Members of the Establishment Committee that the Milk Federation was on its way of being closed down and also that the Government Milk Supply Undertaking had since been closed, such an action of repatriation of the petitioner to Milk Federation, Jammu, would certainly amount to throwing the petitioner on the road side. It is, therefore, clearly established that all such proceedings for repatriation of the petitioner had been taken with oblique motive, and on arbitrary and mala fide considerations to damage the service career of the petitioner, despite his services in the Police Department, as stood recognized by the Police Department itself and his subsequent permanent absorption there.
The writ petition is allowed and all such actions of the General Administration Department and the Establishment Committee culminating into Government order No. 508-GAD of 2002 dated 19.3.2002 are declared biased, smack of arbitrariness, mala fide and are declared unsustainable in law and, consequently, set aside and quashed.
52. The petitioner has already become a substantive member of Police Service in the cadre of Inspectors (Ministerial) and pursuant to all such decisions of the Government, he is within his legal, statutory and constitutional rights to claim benefit of seniority in his cadre, but the same, till date, has been denied. The petitioners is, therefore, held entitled to the benefit of seniority and promotion as an Administrative Officer in the cadre of Deputy Superintendents of Police (Ministerial) from the same date other Police Inspectors (Ministerial) came to be promoted as such in the year 2001 on the basis of the recommendations of the Departmental Promotion Committee conducted in the year 2001 when the case of the petitioner was also shelved illegally. The respondents are, accordingly, directed to settle the seniority of the petitioner in the cadre of Inspectors (Ministerial) on the mandate of Rule 24 of J&K CCA Rules, 1956 and also his promotion as an Administrative Officer in the cadre of Deputy Superintendents of Police (Ministerial). This exercise shall be completed within a period of three months.
53. It is noted with anguish that the attitude of respondents including the General Administration Department and particularly that of the Establishment Committee who violated not only Court directions given from time to time, but also contravened their own decisions and orders. They transgressed all limits of fairness and transparency by treating all previous actions of the Government as wrong. Nobody cared to verify the facts with reference to their own records including the entries recorded in the service book of the petitioner and, as such, all the proceedings of the Establishment Committee, General Administration Department as well as those taken by respondent No. 2 are held illegal and, consequently, quashed. It is the duty and the responsibility of the Chief Secretary to Government of Jammu and Kashmir to see to all such legal infirmities, misuse of official powers by all the concerned and take effective steps to insert befitting plugs into the holes being created in the administration by the concerned, who have tried to consider themselves as above law and answerable to none.
54. There is yet another issue which requires due consideration by this Court. I think it is also necessary to give a word of caution that whenever pleadings are signed and filed in the courts, it is legal and moral duty and responsibility of each and every Advocate to verify the facts projected in such pleadings on behalf of their client(s) and consult the records instead of relying upon the oral briefings. If this essential and legal requirement is adhered to strictly, it would be a great service towards this legal profession, which is regarded as the noblest profession, amongst all. Both senior and junior Advocates being the important organs of judicial system in our country, must try to lay strong foundation to the judiciary, and they should uphold the sanctity and traditions of this noblest profession sincerely and honestly. This note of caution is felt necessary because such an element is absent in respect of the pleadings of and on behalf of respondents, which admittedly caused delay in the administration of justice.
55. I wanted to go through the original records relating to the proceedings of the Establishment Committee and the General Administration Department as well as the original service book of the petitioner, so as to verify the entries made in the shadow copy of the service book submitted to this court, but despite verbal assurance by the learned counsel for the respondents to keep the said official records handy, it was not done so either during the course of their arguments or thereafter. This also resulted in delay in the final disposal of the present writ petition.
56. In view of the established facts and circumstances of the case under which the petitioner has been made to suffer all these years and was pushed from wall to wall, therefore, in the larger interest of justice, equity and fair play, I hold the petitioner entitled to costs which are quantified at Rs. 10,000.
Disposed of accordingly.