Jammu & Kashmir High Court - Srinagar Bench
State Of J&K And Anr vs Nazir Ahmad Ganai And Anr on 27 February, 2024
Bench: Chief Justice, Wasim Sadiq Nargal
Sr. No. 2
Regular
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPASW No. 178/2016
State of J&K and Anr ...Petitioner(s)/appellant(s)
Through: Mr. Hakim Aman Ali, Dy. AG.
Vs.
Nazir Ahmad Ganai and Anr ...Respondent(s)
Through: Mr. Shafqat Nazir, Advocate., R-1
Mr. Zaffar Shah, Sr. Advocate, with
Mr. A. Hanan, Advocate, R-2.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
O R D E R (ORAL)
27.02.2024 N. Kotiswar Singh - CJ
1. A peculiar problem has arisen in this appeal as we are dealing with the appointment that was accorded in December, 1999 in respect of respondent no. 3 before the Writ Court, who is respondent no. 2 herein, as an Assistant House Keeper in Hospitality and Protocol Department, to which the writ petitioner, who is respondent no. 1 herein, was also an aspirant.
2. The learned Single Judge, in the order dated 09.10.2015, took into account that the appointment of respondent no. 2 herein had been continued undisturbed almost for 16 years. Consequently, the learned Single Judge declined to interfere with her appointment at the instance of respondent no. 1 herein.
3. The learned Single Judge also considering that the respondent no. 1 herein was also seeking appointment to the said post, had directed his appointment by way of transfer to the Hospitality and Protocol Department in LPASW No. 178/2016 Page 1 of 6 the post for which he possesses the requisite qualifications. It is this order which is challenged before us in this appeal by the Union Territory of J&K.
4. After hearing the parties and also as can be seen from the pleadings, the present respondent no. 2 was appointed as an Assistant House Keeper in Hospitality and Protocol Department in December, 1999 against a vacant post. The same post was also being claimed by the present respondent no. 1, who had approached this Court earlier by filing a writ petition being, SWP No. 1040/1997. The said petition which was disposed of by the Writ Court on 03.02.1999 directing the authorities to consider the case of the petitioner (respondent No. 1 herein) along with other eligible candidates against the post of Assistant House Keeper as and when it becomes available with Hospitality and Protocol Department of the State and the same shall be in accordance with the J&K Subordinate Service Recruitment Rules, 1992.
5. According to the present respondent no. 1, despite the Court's direction in SWP No. 1040/1997, which required considering the case of the present respondent no. 1 and other eligible candidates, the authorities proceeded to appoint the present respondent no. 2. This appointment became the subject matter of challenge in SWP No. 2209/1999, out of which the present appeal has arisen.
6. The learned Single Judge in the said SWP No. 2209/1999 though cognizant of the fact that the said post was filled without advertising, but considering the fact that the incumbent had already served for over 16 years, invoked the principle of equity and declined to interfere with her appointment.
7. However, considering the fact that the present respondent no. 1 also had a right to be considered for appointment to the said post for which he had approached the Writ Court earlier as mentioned above, the Writ Court was also inclined to grant certain benefit to him. The Writ Court observed that the LPASW No. 178/2016 Page 2 of 6 present respondent no. 1 was already working as a Field Operator in the Fisheries Department. Keeping the said aspect in mind, the Writ Court vide impugned order dated 09.10.2015 directed the authorities to appoint the writ petitioner (respondent no. 1 herein) by way of transfer in the Hospitality and Protocol Department on a post of which he is possessed of the requisite qualifications within a period of four weeks.
8. As evident, the impugned order of the learned Single Judge passed on 09.10.2015 consists of two components. Firstly, it refrained from interfering with the appointment of the present respondent no. 2 by invoking the principle of equity in her appointment as the Assistant House Keeper in Hospitality and Protocol Department. Secondly, the Court directed the authorities to appoint the present respondent No. 1 by way of transfer to the Hospitality and Protocol Department.
9. In the present appeal filed by the Union Territory of J&K, no objection has been raised against the decision of the learned Single Judge not to disturb the appointment of the present respondent No. 2. Similarly, the present the respondent No. 1 also has not assailed the learned Single Judge's decision to maintain the appointment the present respondent No. 2.
10. Thus, in the present appeal, what is being assailed essentially is the direction issued to the authorities qua the writ petitioner, present respondent No. 1, to appoint him by way of transfer in Hospitality and Protocol Department on the post for which he possesses the requisite qualification on various grounds including that it would involve change in cadre which is not contemplated in law.
11. While we can understand the invocation of principle of equity to protect the services of a person who has served for a significant long period of time, even if the initial appointment may not be valid in terms of the statutory LPASW No. 178/2016 Page 3 of 6 rules, we however, are unable to accept the second direction issued by the learned Single Judge to appoint the respondent No. 1 by way of transfer. The learned Single Judge directed the present appellants, respondent therein, "to appoint the petitioner by way of transfer in the Hospitality and Protocol Department on the post for which he possesses the requisite qualification."
12. Such direction for appointment by way of transfer may not be in conformity with the rules, inasmuch as, if there is any post in the Hospitality and Protocol Department, it should typically be filled in terms of the prescribed rules. Unless there is a provision in the service rules for appointment to such post by way of transfer, the Writ Court could not have issued any such direction.
13. Learned counsel for the present respondent no. 1 (writ petitioner therein) submits that if the direction issued to the respondents (appellants herein) to appoint him in the Hospitality and Protocol Department is considered improper, then the Wirt Court's decision not to intervene and protect the service of the present respondent no. 2 is also not proper, inasmuch as, the appointment of the respondent no. 3 was dehors the rules. As such, the entire judgment needs to be set aside, which is also a relief sought in the appeal also.
14. Though the respondent No. 1 may legitimately make such submissions, we are also mindful of the fact that, at this stage, the present respondent No. 2 has already completed more than 23 years of service. As pointed out by the learned Single Judge, there was no stay order on her appointment after its issuance, and she continued her service uninterruptedly. The learned Single Judge also made an observation that even after filing of the writ petition, she was allowed to continue and if the appointment of respondent No. 3, who is the present respondent No. 2, had been stayed, she LPASW No. 178/2016 Page 4 of 6 might have chosen to seek appointment elsewhere and the fact that her appointment was not stayed was sufficient for her to entertain the reasonable belief that it would be maintained, especially since it was not found to be illegal initially at the time of issuance of notice motion.
15. The learned Single Judge also observed that consequently the respondent No. 2 has been prevented from securing employment elsewhere and at this distant point in time, she may not be in a position to secure employment elsewhere, and she would have also surpassed the age limit for obtaining the appointment elsewhere.
16. Considering the factual position and observation made by the learned Single Judge, which do not appear to be unreasonable and unwarranted , we are not inclined to interfere with the said decision of the learned Single Judge to maintain the appointment of the present respondent No. 2.
17. However, with regard to the other direction of the learned Single Judge which the Union Territory of the J&K has primarily assailed, we concur with the counsel for the Administration that no such direction could have been issued for appointment of the writ petitioner, respondent No. 1 herein, by way of transfer in the Hospitality and Protocol Department, inasmuch as, that will also amount to violation of the statutory rules governing appointments. If there is any provision in rules for appointment to such a post through transfer or deputation, the respondent no. 1 would certainly be at liberty to apply for the same. If any such request is made by the respondent No. 1, the administration should duly consider his appointment through transfer or deputation, as the case may be, subject to the service rules.
18. We express this with due consideration, and as also noted by the learned Single Judge that the present respondent no. 1 is presently serving as a Field Operator in the Fisheries Department. Although he has been deprived of LPASW No. 178/2016 Page 5 of 6 the opportunity for appointment to the post of Assistant House Keeper, he has a viable means of livelihood through his present appointment as Field Operator and hence we are not able to agree with the second direction of the learned Single Judge qua the respondent No. 1.
19. Under the circumstance, we modify the order dated 09.10.2015 passed by the learned Single Judge only to the extent qua the present respondent No. 1 that as and when there is any vacant post in the Hospitality and Protocol Department to which the petitioner is also eligible to be appointed, the Government can consider his appointment to such a post through transfer/deputation, provided the rules permit, if the respondent No. 1 makes such an application.
20. We have modified this order keeping in mind that it is primarily in the domain of the executive to see in what capacity or manner the post is to be filled up or utilized and if any such direction by the Writ Court dehors the rules, the same may not be permissible in law.
21. With the above observations and directions, the appeal stands partly allowed.
(WASIM SADIQ NARGAL) (N. KOTISWAR SINGH)
JUDGE CHIEF JUSTICE
SRINAGAR
27.02.2024
Junaid
Whether the order is reportable Yes/No.
Whether the order is speaking Yes/No.
LPASW No. 178/2016 Page 6 of 6