Jammu & Kashmir High Court - Srinagar Bench
Mohammad Masood Lone vs . State Of J&K And Ors. on 3 May, 2019
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
Serial No. 152
Suppl.
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No. 905/2019
IA No. 01/2019
Caveat Nos. 313/2019& 751/2019
Date of order:- 03.05.2019
Mohammad Masood Lone Vs. State of J&K and Ors.
Coram:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Appearance:
For the Petitioner(s) :
Mr. Molvi Aijaz Ahmad, Advocate
For the Respondent(s) :
Mr. B. A. Dar, Sr. AAG for 1-3 Mr. Z. A. Qureshi, Sr. Advocate with Mr. Shuja Ul Haq, Advocate and Ms. Rehana, Advocate for R-4
i) Whether approved for reporting in Yes/No Law journals etc.:
ii) Whether approved for publication in press: Yes/No
1. In the instant petition, petitioner seeks the following reliefs:-
" I. The Hon'ble Court be pleased to grant a writ of certiorari and quash the promotion order of respondent No. 4 bearing No. LA-717-20/Adm/2019 dated 08.02.2019 and post writ petition consideration order bearing No. LA-1644- 51/Adm/2019, dated 22.04.2019 and based on the said promotion order, the consequent transfer order bearing No. LA-872-75/Adm/2019 dated 05.03.2019.
II. The Hon'ble Court be pleased also grant writ of mandamus commanding the official respondents not to disturb the present status of the writ petitioner, i.e., Manager MLAs hostel Srinagar in the interests of justice.
Brief facts:-
2. The grievance of the petitioner is that respondent No. 4, has been promoted on 08.02.2019, by virtue of the promotion order, but the said promotion order is factually and legally wrong to the extent that it has been mentioned in the said promotion order that the respondent No. 4 is promoted against a vacant post after the retirement of Mohammad Maqbool Dar, in February, 2018. It is stated that the said post was not vacant at the time of the promotion of respondent No. 4, but was substantively held by the petitioner. It is stated that to this extent the petitioner challenged the said promotion order in SWP No. 500/2019, on the ground that after the retirement of Mohammad Maqbool Dar, the post of Manager, MLAs hostel, Srinagar, was occupied by the petitioner, who had been promoted in the month of November, 2011, along with Mohammad Maqbool Dar. From the month of November, 2011, after the promotion of the petitioner as also Mohammad Maqbool Dar, to the post of Manager, MLAs hostel, it is stated that Mohammad Maqbool Dar was posted as Manager MLAs hostel, Kashmir, Srinagar, while as the petitioner was at that time posted as Manager MLAs hostel, Jammu and thereafter, was transferred in the month of July, 2012 to MLAs hostel, Kashmir, Srinagar, without giving to the petitioner the charge of the said post.
3. The case of the petitioner is further that on retirement of Mohammad Maqbool Dar, the petitioner was given charge of post on 03.04.2018, as such, was adjusted on regular basis against the post of Manager, MLA hostel, Srinagar, in April, 2018, therefore, the promotion of respondent No. 4 is against the non-existent post.
4. It is stated that this Court on consideration of the matter and in terms of order dated 12.03.2019, disposed of the writ petition with direction to respondents to reconsider the matter and pass fresh orders and to maintain status quo till the orders are passed. Respondents having considered the matter have passed the impugned order bearing No. bearing No. LA-1644-51/Adm/2019, dated 22.04.2019, which is challenged by the petitioner in the instant petition on the grounds detailed out as under:-
5. Petitioner challenges the impugned orders by the medium of instant writ petition on the following grounds:-
I. That in the earlier writ petition, the petitioner had not only challenged the transfer order of the petitioner, but had also challenged the promotion order of the respondent No. 5, for being factually and legally wrong. The said promotion order was challenged to the extent of mentioning that respondent No. 4 is promoted against the vacant post of Manager, MLAs hostel, Srinagar, previously held by Mr. Mohammad Maqbool Dar, obviously on account of the fact that the said post was not vacant and it was hold by the petitioner. In the consideration order, not even a whisper is made against the said fact, while as the Hon'ble Court by its Judgment directed the respondents to reconsider all these orders in light of the averments made in the writ petition, as also in the representations. Therefore, the impugned consideration order is bad in the eyes of law and is not passed by the proper application of mind to the facts of the case and the consequent judgment passed by this Hon'ble Court.
II. That it was open to the respondents to reconsider the said promotion order and pass a fresh and rectify all these mistakes and thereafter, proceed in accordance with law, but since the official respondents have some inclination for posting the respondent No. 4, against the post of the petitioner, therefore, have passed a wrong order of promotion. This speaks of malafidies, the discriminatory treatment which the official respondents are giving in violation to the fairness as envisioned in the mandate of Article 14 of the Constitution of India. Therefore, the impugned order deserves to be quashed along with the promotion order of respondent No. 4 to the extent of mentioning that he has been promoted against the vacant post, previously held by Mr. Mohammad Maqbool Dar, before his retirement.
III. That it shall be in place to mention that the petitioner had made all these things clear also in his representations. It is stated that on this contention of the petitioner no order has been passed, nor has been the said contention of the petitioner considered and dismissed. Therefore, it shall be presumed that, the official respondents have not acted upon the orders passed by this Hon'ble Court.
6. Learned counsel for the petitioner while reiterating the stand taken in the pleadings of the writ petition for the relief prayed for, has raised the following points:-
a) Point number one, has reference to adjustment of petitioner against the post of Manager, MLA hostel, Srinagar, on retirement of Mr. Mohammad Maqbool Dar, on reaching the age of superannuation on 30.04.2018. Learned counsel for the petitioner submits that though the petitioner was promoted as Manager, in the year 2011, in terms of order No. LA-11013-16 dated 17.11.2011, but was not allowed to function as Manager, MLA hostel, Srinagar, as the post was occupied by Mr. Mohammad Maqbool Dar, and on his retirement the charge was given to petitioner on 03.04.2018, therefore, in essence, the petitioner is continuing as Manager, MLA hostel, Srinagar, only from April, 2018, therefore, the order of consideration, rejecting the claim of the petitioner for continuation as Manager, MLA hostel, Srinagar, on the ground that he has continued as Manager at Srinagar for a considerable time, is against the records and amounts to non-application of mind.
b. Learned counsel for the petitioner has raised point number second in the petition regarding wrong promotion made in favour of respondent No. 4. It is submitted that order No. LA-717- 20/Adm/2019 dated 08.02.2018, in terms whereof respondent No. 4 has been shown promoted as Manager, MLA hostel, Srinagar, against the retirement vacancy of Mohammad Maqbool Dar is a wrong/illegal order, as the same amounts to promotion against the non-existing post. learned counsel for the petitioner elaborately submits that there was no post of Manager vacant in February, 2019, as the said post which had fallen vacant on retirement of Mohammad Maqbool Dar was occupied by the petitioner on his adjustment in terms of order dated 03.04.2018, therefore, the promotion of respondent No. 4 being against the non-existing post, as such, being illegal deserves to be quashed.
c. Learned counsel for the petitioner has raised point number third with reference to the adjustment of respondent No. 4 to take charge as Manager, MLA hostel, Srinagar and relieving the petitioner, who is directed to join his duties at Jammu as Manager, MLA hostel, Jammu in place of Mr. Ashok Kumar I/C Manager, as being wrong/arbitrary exercise of power as the petitioner is already adjusted as Manager against the post of Manager, MLA hostel, Srinagar on 03.04.2018. Therefore, the official respondents were having no authority to adjust respondent No. 4 against the post of Manager, against which post the petitioner is working. d. Learned counsel for the petitioner has raised point number fourth that the representation of the petitioner has not been decided in tune with the issues raised therein but only by making mention about the due adherence to the policy governing the transfers. It is further submitted that the respondents have not at all considered the case of the petitioner qua the claim made in the representation, having reference to all the points raised in the petition and by short cut respondents have in non-compliance of the direction passed by the Court issued the orders impugned, resulting in rejecting the claim of the petitioner.
7. Mr. Z. A. Qureshi, learned senior counsel appearing for caveator- respondent No. 4, submits that the orders impugned in totality amounts to compliance of the orders passed by this Court in the earlier writ petition filed by the petitioner bearing SWP No. 500/2019 on 12.03.2019, in terms whereof this Court while registering the claim of the petitioner qua challenge to the order dated 05.03.2019, impugned in that writ petition, whereby the petitioner was asked to join his duties at Jammu and take charge as Manager, MLA hotel, Jammu from Mr. Ashok Kumar I/C Manager and respondent No. 4 was directed to take charge as Manager, MLA hostel, Srinagar, relieving the petitioner. Learned counsel further submits that this Court in the earlier writ petition of the petitioner had detailed out the grounds mainly being premature, violative of policy of the Government; that respondent No. 4, has been promoted as Manager being junior, which is based on malice and such promotion has been made on misrepresentation of the facts and also that the detailed representation is pending disposal before the respondents 1 and 2, seeking rectification/modification of the order resulting in hardships and inconvenience to the petitioner on account of his children, studying in Srinagar and his wife suffering from serious ailment. It is submitted that in the totality of the circumstances, this Court in terms of final order passed on 12.03.2019, disposed of the writ petition with a direction to respondents to re-consider the matter with reference to representations filed by the petitioner and pass appropriate orders and till decision is taken, directed not to disturb the present arrangement of the petitioner. It is submitted that the official respondents have in compliance of the direction passed by this Court on 12.03.2019, considered the representations of the petitioner and found that the petitioner was appointed as Telephone Operator on 11.07.1996, and thereafter was promoted from time to time and is presently holding the post of Manager, MLA hostel, Srinagar. It is further noticed that except for a brief period from 17.11.2011 to 02.07.2012, petitioner has remained all along posted in MLA hostel, Srinagar. It is further noticed that regarding ailment of wife of the petitioner, no medical record has been submitted, justifying such contention and in any case it has been noticed that his posting at Jammu, would not adversely affect his wife in view of the availability of the Medical services in Government Medical College, Jammu. It is further noticed that the petitioner is entitled to rent free accommodation within the premises of MLAs hostel, Jammu and can admit his school going children at Jammu. It is further noticed that the transfer of the petitioner being premature is against the policy of the Government, as the same is not justified in application of the Full Bench Judgment in case titled "Syed Hilal Ahmad and ors. Vs. State of J&K and Ors., reported as 2015 (3) JKJ 398, therefore, Mr. Z. A. Qureshi, learned appearing counsel for respondent No. 4 submits that there is no violation of any of the rights of the petitioner in terms of the impugned orders.
8. Mr. Shuja-ul-Haq Tantray, who also appears on behalf of caveator- respondent No. 4, submits that the claim of the petitioner for the relief sought is already considered by the Court in the earlier writ petition, which culminated in only the directions passed by this Court on 12.03.2019, and the Court has only found entitled the petitioner for re-consideration of his representation, therefore, the further reliefs prayed in the writ petition are no more available to the petitioner. He further submits that none of the rights of the petitioner stand violated with reference to issuance of impugned orders as the orders are simply making promotion of respondent No. 4 and posting him as Manager, MLA hostel, Srinagar, and consequently petitioner has posted at MLA hostel, Jammu.
9. Mr. B. A. Dar, learned Sr. AAG while defending the action of the official respondents in issuing the impugned orders, submits that none of the rights of the petitioner stands violated. He further submits that the reliefs prayed in the writ petition have on consideration culminated the decision rendered by this Court on 12.03.2019, therefore, the parties are bound by the decision. He further submits that petitioner cannot by application of constructive res judicata seek the relief, which was the subject matter of the earlier writ petition and decided in terms of order dated 12.03.2019. Mr. Dar, learned Sr. AAG further submits that the transfer is an exigency of service and it is the choice of the employer to seek suitability of posting of the employee. Learned counsel has referred to and relied upon the Judgment reported as 1990 KLJ 271 titled Karan Singh Vs. Chief of the Army Staff and Anr.
10. Heard learned counsel for the parties, perused the records and considered the matter.
11. Admittedly petitioner feeling aggrieved of his adjustment as Manager MLA hostel, Jammu, made in terms of order dated 05.03.2019, as also against the promotion of respondent No. 4, as Manager, MLA hostel, Srinagar, against the retirement vacancy of Mohammad Maqbool Dar, had challenged the same in the writ petition SWP No. 500/2019 on the grounds detailed out in the petition for the following reliefs:-
" Certiorari, the Hon'ble Court be pleased to grant writ in the nature of certiorari and quash the impugned order as contained in Annexure I to the extent of mentioning at the place of promotion of respondent No. 03 that he is promoted against the vacant post of Mohammad Maqbool Dar, while as the fact of the matter is that it was not vacant. The Hon'ble Court be also pleased to quash the order as contained in Annexure II to the extent, directing the writ petitioner to take charge of the MLAs hostel, Jammu, when the fact of the matter is that he is holding the charge of manager MLAs hostel, Srinagar and to this extent the order as contained in Annexure II is factually wrong.
And Mandamus, the Hon'ble Court be pleased to grant a writ of mandamus directing respondent 01-03 not to disturb the present status of the petitioner as Manager MLAs hostel, Srinagar and also restraining respondent 03 to cause any sort of disturbance by pressurizing the petitioner to hand him over the charge of the said post of Manager MLAs Hostel, Srinagar. And for any other relief order or direction this Hon'ble Court deems fit proper and convenient in the peculiar circumstances of the case, be also passed in favour of the writ petitioner and against the respondents, though not specifically prayed for, for which act the writ petitioners shall ever remain grateful."
12. Admittedly this Court on registering the submissions of learned counsel for the parties with the strength of grounds taken in the writ petition SWP No. 500/2019 for the relief prayed for, disposed of the writ petition in terms of order dated 12.03.2019, by directing the official respondents to re-consider the matter with reference to representations filed by the petitioner. Essentially the claim of the petitioner, qua challenge to the promotion of respondent No. 4 against the post of Manager as also his adjustment in MLA hostel, Srinagar has culminated in the direction passed by this Court on 12.03.2019. In compliance of the said direction, the respondents have now considered the representation of the petitioner and passed the impugned order.
13. In the totality of the circumstances, it is seen that none of the rights of the petitioner stands violated by promoting respondent No. 4, as Manager against available vacancy, as the petitioner's continuation as Manager, MLA hostel, has not been disturbed and he is continuing against the post commensurate to his position and status. It is also seen that the petitioner is not deprived of service benefits attached to the post of Manager, by issuing the impugned orders. Respondent No. 4 was found entitled for promotion against the post of Manager, which has not caused any prejudice to the rights of the petitioner, he is only aggrieved of his adjustment as Manager in MLA hostel, Jammu, on the ground detailed out hereinabove, one having reference to being senior and only continuing in MLA hostel, Srinagar, but his promotion against the post of Manager, which had fallen vacant due to the retirement of Mohammad Maqbool Dar on 30.04.2018, was in essence given effect from April, 2018.
14. Consideration for promotion against the higher post is a well guaranteed right in the Constitution and petitioner on consideration has been promoted, which promotion is intact, but there is no guarantee to petitioner for continuation against the Manager, MLA hostel, Srinagar, in terms of any law or constitutional scheme. Net result of the decision taken by the official respondents is that petitioner while continuing as Manager with all service benefits has been only adjusted in MLA hostel, Jammu, against the post of respondent No. 4.
15. By no stretch of imagination it can be held that the impugned action of the respondents violates the rights of the petitioner guaranteed under the constitution or law. His adjustment amounts to simple transfer and posting which the respondents have made in exercise of their powers/authority.
16. Since transfer is an exigency of service and it is the prerogative of the employer to see at what place the service of an employee can be utilized properly in the larger public interest, as such, employee holding transferable post has no right to insist that he should be allowed to serve at a particular place for a particular period.
17. A full Bench of this Court, while deciding a reference made in a bunch of writ petitions, the lead case being 'SWP No. 1476/14' titled 'Syed Hilal Ahmad vs. State & Ors.' decided on 31st of August, 2015, has settled the issue with respect to enforcement of executive instructions/Government orders. It is well settled legal position that Government instructions are not having statutory force. It is also settled in law that executive instructions/Government orders are subject to statutory rules. Executive instructions cannot supplement the rules. The issue is no more res integra and has been settled by the Supreme Court in a catena of judgments. The Full Bench of this Court, while reiterating the observations of the Supreme Court, has also held that the executive instructions/Government orders are subject to statutory rules. The relevant paras (11, 12 and 18) of the judgment are reproduced below, verbatim et literatim:
"11. It is well settled legal position that Government orders are only administrative instructions, having no statutory force. The 1956 Rules having been issued in exercise of powers conferred under Sub- Section (1) of Section 3 of the Jammu and Kashmir Civil Servants (Removal of Doubts and Declaration of Rights) Ordinance, 1956, the same is the statutory rule governing the field. Thus, the contention of the learned counsel appearing for the petitioners that, minimum two years' service is mentioned in the transfer policy through Government Order No. 861-GAD of 2010 dated 28.07.2010, is bound to be adhered to, has no force. As already stated, Rule 27 being statutory rule, empowering the government to post a government servant at any time in any place or in any post borne on the cadre, the said transfer policy, particularly the term mentioned therein, can be adhered to as far as possible and the same is only an executive instruction based on which no right could be claimed and no right having been vested, the government servant has no right to seek enforcement. Even for the sake of argument, the policy cannot have any binding force because the policy, if construed as binding, goes contrary to Rule 27.
12. It is well settled in law that executive instructions/Government orders are subject to statutory rules and the legislature, who framed the Rule, cannot delegate its power to the authorized officer or executive and the executive can issue Government orders only within the bounds of the Rules. The legislature has not amended Rule 27 fixing any minimum or maximum tenure to a Government servant to serve in a particular station. In the decision reported in AIR 1961 SC 4, (Vasanlal Magan Bhai Sanjanwala v. State of Bombay), Hon'ble the Supreme Court has held that the legislature cannot delegate its essential functions which have been entrusted to it by the Constitution. In the decision reported in AIR 1962 SC 97 (Mohammed Hussain Gulam Mohammed v. State of Bombay) it was held that the authorized officer cannot issue order which is contrary to the statute. If the intention of the executive is to fix minimum or maximum tenure to a government servant to serve in a particular station, it can only recommend the legislature to amend the Rule. In the decision reported in AIR 1986 SC 1323 (Trivedi and sons, D.K v. State of Gujarat), the Hon'ble Supreme Court held that "the rule making authority cannot change the policy of the Act/Regulation". In this case, as on today, Rule 27 is not amended. Moreover no policy decision can be taken in terms of Article 77 or Article 162 of the Constitution of India which would run contrary to the constitutional or statutory schemes as held by Hon'ble the Supreme Court in (2007) 5 SCC 317 ( Post Master General, Kolkata v. Tutu Das Dutta) and (2007) 2 SCC 491 ( Punjab Water Supply & Sewerage Board v. Ranjodh Singh and ors).
18. In the decision of the Hon'ble Supreme Court reported in AIR 2014 SC 263 (supra) it is held that the State Governments are affecting transfers and postings at the whims and fancies of the executive head for political and other considerations and not in public interest. Hence minimum tenure of service is good for the administration and efficiency. Insofar as the State of J&K is concerned, as stated supra, a minimum tenure of two years and maximum tenure of three years is already fixed in Government order dated 28.07.2010 and the said order is a guideline and not having any statutory force. In the said order itself it is stated that premature transfers, wherever unavoidable in the interest of administration, may be ordered on certain contingencies. Hence strict implementation of minimum 2 years and maximum 3 years tenure is not intended in the Government order. In such circumstances, the said Government order will not confer any right of enforcement through Court of law in the light of Rule 27 stated supra".
18. In view of above, this petition is found to be meritless and, as such, shall stand dismissed alongwith connected MP(s). There shall be, however, no order as to costs.
(Ali Mohammad Magrey) Judge Srinagar 03.05.2019 Mohammad Yasin Dar MOHAMMAD YASIN DAR 2019.05.02 22:28 I attest to the accuracy and integrity of this document